MP High Court Issues Directives/Suggestions To Curb ‘Plastic Pollution’

             It is most heartening, most consoling and most refreshing to learn that the Madhya Pradesh High Court just recently on February 26, 2020 in a latest, landmark and extremely laudable judgment titled “Gaurav Pandey Vs Union of India and Others” in Writ Petition No. 17704/2018 (PIL) has taken serious note of the increasing ‘plastic pollution’ which has a serious adverse impact on our environment due to which all of us are affected directly. It has not just taken serious note of the increasing ‘plastic pollution but has also commendably issued some important directives to the State to curb this menace! It would be in the fitness of things to mention here that it is high time and now urgent steps must be taken as directed by the Madhya Pradesh High Court to ensure that environment is protected and saved from further getting more polluted!

Needless to say, a two Judge Bench comprising of Justice Sheel Nagu and Justice Rajeev Kumar Shrivastava of Gwalior Bench of Madhya Pradesh High Court while disposing of a Public Interest Litigation (PIL) filed by one Gaurav Pandey has directed the Government to issue directions to schools and colleges to stop use of plastic immediately and also to the industries to take immediate steps to stop the production and use of single use plastic. Not just the State Government but even the common man ought to do his/her best to check pollution and stop using plastic as directed by the Gwalior Bench of Madhya Pradesh High Court so rightly! There can be no denying or disputing it!

To start with, the ball is set rolling in this noteworthy judgment authored by Justice Rajeev Kumar Shrivastava for himself and Justice Sheel Nagu by first and foremost pointing out in para 1 that, “This petition is preferred for public cause and has been treated as Public Interest Litigation, whereby public cause was raised to protect the environment from plastic carry bags.”

To be sure, it is then pointed out in para 2 that, “The petitioner has sought relief of implementation of Plastic Waste Management Rules, 2016 (hereinafter shall be referred to as the “Rules of 2016”) in whole of State of Madhya Pradesh and has also prayed that respondents be directed to implement notification bearing No.F5-2-2015-18-5 dated 29.05.2017 in its letter and spirit in the State of Madhya Pradesh and in terms of said notification, prayed to ban production, transport, storage, sale and use of plastic carry bags/polythene. Further relief sought is to initiate imposition of fine against the wrong doers.”

As it turned out, it is then disclosed in para 3 that, “Respondent No. 4 – Municipal Corporation, Gwalior has submitted through its return that all possible steps are being taken by Municipal Corporation and Municipal Corporation is regularly seizing the carry bags from various fruit vendors, grocery shops, sweet shops and with the help of public they have spread message of ‘Swaccha Bharat’. In support of its version, the Municipal Corporation has produced photographs before this Court.”

For the sake of brevity, it must be said that while underscoring the importance of protecting environment, the Bench then goes on to observe most crucially in para 15 that, “It is well said that if you want to survive for years together, you are required to protect the environment. Ecosystem is one of most important factor which protects the environment.”

No wonder, it is then further rightly added in para 16 that, “In the light of above, banning of polythene/plastic bags has to be considered as a most significant moment of life. If any material which is generally used is not biodegradable then the whole ecosystem will be affected and indirectly will affect all living organisms of the world.”

Be it noted, it is then observed in para 18 that, “Polythene is produced from ethylene, and although ethylene can be produced from renewable resources, it is mainly obtained from petroleum or natural gas. Moreover, the widespread usage of polyethylene poses difficulties for waste management if it is not recycled. Polyethylene, like other synthetic plastics, is not readily biodegradable, and thus accumulates in landfills and puts the life of human being as well as animals into danger.” Who can deny or dispute this? Certainly no one! Why then should adequate steps not be taken to check this menace of pollution which puts to stake the very survival of not just animals but also of human being?

To put things in perspective, it is then very rightly underscored in para 19 that, “It is relevant to mention here that the problem raised in this PIL cannot be solved by punitive measures. Time has come to make the citizens/stakeholders aware of their duties and liabilities. This duty of every citizen is constitutionally provided in Article 51-A (g), which for ready reference and convenience is reproduced below:

“(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”

The duty to ensure clean and unpolluted environment is as much of the State and its functionaries as it is of the citizen.”

What’s more, the Bench then rightly calls upon in para 21 that, “In such view of the matter, we are compelled to remind all the stakeholders as well as citizens to awake for the welfare of all living organisms of the world by assuming participative role to achieve the goal of elimination of plastic waste/polythene in terms of the provisions contained in Plastic Waste Management Rules, 2016.”

Frankly speaking, the Bench then minces no words to say in simple and straight language in para 22 that, “At this juncture, it is made clear that the responsibility cast upon each stakeholder is independent and requires honest involvement for eradication/elimination of plastic bags/polythene.”

Most remarkably, the Bench then in para 23 lays down clearly, categorically and convincingly that, “Thus, this writ petition is hereby disposed of with the following suggestions/directions to the Citizens/Authorities/Print & Electronic Media as under:-

(A)             Suggestions

(i)                         Citizens should be made aware of the causes and effect of plastic pollution and how to prevent it.

(ii)                      A campaign must be started to immediately stop using non-biodegradable plastic/polythene.

(iii)                   Citizens should not purchase single use plastic/polythene water bags etc.

(iv)                   Citizens should use cloth/jute made bags for carrying purchases.

(v)                      They may also themselves prepare paper bags from daily newspaper of their house.

(vi)                   Citizens should not embed any plastic/polythene waste in soil/land.

(vii)                Citizens (parents/teachers) should teach children not to use plastic bottles/tiffins in schools/park/malls etc.

(viii)             Citizens should cooperate in this task with different Authorities of the government.

(ix)                   Citizens should carry non-plastic water bottles/daily need articles, which are reusable for many years together.

(x)                      Similarly, it is expected of the Print & Electronic Media to propagate and install awareness amongst the citizens that use of non-biodegradable polythene/plastic has become a national problem. The Media should create an atmosphere in the society for non-use of non-biodegradable, polythene/plastic articles by publishing relevant topics regularly in the media and should also attempt to make the people aware regarding hazardous results of use of non-biodegradable plastic/polythene.

(xi)                   For awareness amongst the children, the subject of adverse effects of use of plastic/polythene and means to manage its waste should be incorporated in curriculum.

(B)                        Directions

(i)                         The State shall pass direction to Schools and Colleges to stop use of plastic immediately.

(ii)                      The State shall issue directions to the industries to take immediate steps to stop the production and use of single use plastic.

(iii)                   The State and its instrumentalities shall issue directives ensuring  manufacturing and marketing of carry bags and packets made of non-plastic bio-degradable material on highly subsidized rates to be affordable to the common man.

(iv)                   For this purpose, the State shall encourage the small scale industry to manufacture and market such bags/packets by establishing necessary plants for this purpose in adequate number in all districts in the State of M.P.

(v)                      The State shall install adequate number of Water Dispensers in the city area to make available pure water to the citizens.

(vi)                   The State should install single use plastic bottles crushing machines in every possible public places in adequate number and on crushing particular numbers of such bottles, deposit return scheme may be started.

(vii)                The State shall install Recycling Plants at various places.

(viii)             The State shall use plastic/polythene waste for Thermal Electric Production Plant.”

Furthermore, the Bench then states in para 24 that, “It is further directed that each stakeholder, as mentioned above, shall submit their independent progress reports through respective Collectors every three months before the Principal Registrar of this Court to ensure compliance of this order. As the order is passed in the interest of public at large, therefore, it is expected that the directions given by this Court shall be complied with in letter and spirit with utmost promptitude.”

To say the least, the Bench then holds in para 25 that, “Principal Registrar of this Court is hereby directed to send copy of the order to all the responsible stakeholders for compliance.”

Finally, it is then held in the last para 26 that, “In case of non-compliance or if the compliance is found to be deficient, the Principal Registrar is hereby directed to list this case before the Bench under caption ‘Direction’.”

In a nutshell, it may well be said that the Madhya Pradesh High Court has very rightly reiterated that plastic bags/polythene must be banned to effectively check and curb plastic pollution! It has also very rightly issued directions/suggestions for the same. No doubt, the crying need of the hour is to implement them in totality and for this to happen all the stakeholders must work in tandem and extend unstinted support and cooperation to each other to achieve the common aim of checking and curbing plastic pollution!

Sanjeev Sirohi

Offence Under SC/ST Act Is Made Out When Offence Is Perpetrated In Public: Allahabad HC

        In a significant development, the Allahabad High Court just recently on February 18, 2020 has pronounced explicitly in a noteworthy judgment titled “K.P.Thakur And Another Vs. State of U.P. And Another” in Application U/S 482 No. – 40418 of 2012 that for constituting an offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the alleged offence should have been committed in “public view”. The single-Judge Bench of Allahabad High Court comprising of Justice Ram Krishna Gautam has clarified in no uncertain terms that where a person is allegedly insulted for being a member of the SC/ST community behind closed doors, the SC/ST Act cannot be applied. It is an important observation and a ruling which has to be abided and adhered to unless it is overruled by a larger Bench of the Allahabad High Court or by the Supreme Court!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed that, “The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the entire proceeding of Complaint Case No. 1577 of 2012, under Sections 323, 504, 506 I.P.C. and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, pending in the Court of Judicial Magistrate, Duddhi, Sonebhadra.”

To put things in perspective, after hearing the learned counsel for the applicants, learned counsel for opposite party no. 2, learned A.G.A. for the State and perusing the record as pointed out in para 2, it is then pointed out in para 3 that, “Learned counsel for applicants argued that a departmental inquiry was pending against Vinod Kumar Tanay, wherein applicant no. 1 K.P. Thakur was Enquiry Officer and applicant no. 2 Binod Kumar was Presenting Officer. This enquiry was being hindered by Vinod Kumar Tanay by any means. He was summoned for recording of evidence in above inquiry, where he came with M.P. Tiwari, another co-worker. It was objected with a direction to M.P. Tiwari not to intervene in the proceeding of enquiry and he was asked to remain outside of the chamber of applicant no. 1, wherein enquiry was being conducted. He made obstruction. The complainant Vinod Kumar Tanay was of habit of creating hindrance in the smooth functioning by making false accusation at different stages because of being member of Scheduled Caste community. In that enquiry too he tried so, for which instant complaint was lodged by applicants to Department’s superiors as well as local authorities. This complaint, with false accusation, was got lodged before court of Judicial Magistrate, Duddhi, Sonebhadra, wherein allegation was levelled with a view to make hindrance in above departmental enquiry, wherein he was examined under Section 200 Cr.P.C. and his two witnesses (co-workers), were examined under Section 202 Cr.P.C., and on the basis of same, learned Magistrate passed impugned summoning order for offences punishable under Sections 323, 504, 506 I.P.C. read with Section 3(1)(x) of SC/ST Act, whereas no assault or abuse in a public view was said to be made by applicants nor it was ever made. The statements, recorded under Section 200 Cr.P.C. as of complainant was with no mention that this occurrence of alleged assault and abuse was made with intention to abuse or insult on the basis of complainant being member of Scheduled Caste community by present applicants, who were not member of Scheduled Caste community. The place of occurrence has been said to be chamber of applicant no. 1 that too after bolting it from inside i.e. it was not an abuse in the public view. The essential ingredients of offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) are intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. In Gorige Pentaiah Versus State of Andhra Pradesh & Others; (2008) 12 Supreme Court Cases 531, Apex Court has propounded at para 6 that a public view is the view, which is of public access. Once it is inside any house, it will not be a public view and in the case of lack of above basic ingredient, the offences of Section 3(1)(x) of the Act is not completed. The same has been propounded by Apex Court while interpreting public view in same case at para 28. In present case, the place of occurrence has been said to be chamber of applicant no. 1 which was said to be bolted from inside. Meaning thereby, that was not a public view at all. The enquiry concluded with dismissal of complainant as well as his witnesses. Applicants being officers of Northern Coalfields Limited being Controller and Head of Department of Mining, where complainant was an employee and they are to take work from him with administrative control and if such type of practice is being permitted then it will be highly impossible for administrative superiors in getting work from administrative inferiors in performance of official duties. The allegations levelled by complainant was false, baseless and under manipulation, for hindering senior officers and influencing enquiry being conducted against him. It was abuse of process of law. Hence, this application with above prayer for setting aside impugned summoning order.”

Most crucially, it is then held in para 9 that, “In present case, the complaint is by an administrative inferior against administrative superior, admittedly, who is conducting a departmental enquiry against him and he had gone there to participate in above proceeding. The Enquiry Officer is to decide as to whether Assisting Officer is to be given to employee, who is delinquent employee in above inquiry or inquiry is to be conducted in camera in Chamber. Any Tom and Harry can never be permitted to come inside, wherein the enquiry is being conducted and to participate in above enquiry, rather if any Assisting Officer is to be taken by delinquent employee; he will have to move an application before Administrative Head or Enquiry Officer for appointing and permitting any Assisting Officer to that delinquent employee and, thereafter, that Assisting Officer may take part in above Administrative Enquiry. In present case, M.P. Tiwari in his statement, recorded under Section 202 Cr.P.C., has said that he went at the place of occurrence to say the justice. Neither he was appointed as Assisting Officer nor he was permitted to take part in enquiry, but he went to that place for saying justice. He was so social worker and so a person of securing cause of justice that without following the procedure, he present himself for saying justice, though he was asked to remain out and he remained outside. The door was locked from inside. It was a Chamber of the Enquiry Officer, where Presenting Officer and Enquiry Officer were present and it can never be said to be a public view. Even if, any occurrence took place at that place, it may never be said to be a public view and it has been verified by Apex Court, mentioned as above. Hence, the very ingredient of offence punishable under Section 3(1)(x) of the Act was missing. The second aspect is that complainant in his statement recorded under Section 200 Cr.P.C. has not said that he was insulted because of being a member of Scheduled Caste community by a persons, who were not members of Scheduled Caste community. This ingredient too was missing in the statement of complainant, recorded under Section 200 of Cr.P.C. Other two witnesses, who were examined were co-workers of the same Department and they were admittedly not inside the room, when this occurrence took place and how this occurrence took place, what was precipitation time and what resulted in this occurrence, were not witnessed by those witnesses. Hence, for the same occurrence, these superiors have lodged complaint with local authorities as well as Department Heads and for the same, this complaint was filed there. What was the precipitating point, could not be determined by those witnesses. Moreso, Apex Court in Vaijnath Kondiba Khandke vs State of Maharashtra and Anr. AIR 2018 SC 2659, has propounded that while dealing with a matter, in which complaint or accusation has been lodged by administrative junior or employee against his Head of Office or administrative superior regarding their exploitation or harassment, the Court must take in mind that if such type of occurrence are being actually visualized, then it will be highly impossible for administrative superiors to take work from administrative juniors. There must be administrative authority of administrative superiors, then and then only, they will be in position to take work from junior employees and mere bald allegation of harassment and such type of exploitation are to be strictly analyzed with all care and caution. Hence, in present case, admittedly, applicants were Enquiry Officer and Presenting Officer. They were conducting a regular departmental enquiry against complainant. Meaning thereby, charge was framed and the employee complainant was charged employee. Meaning thereby, prima facie, he was delinquent employee, for which charge was framed. Preliminary inquiry stage was passed. Thereafter, departmental enquiry was being conducted and when this enquiry was conducted this fuss was created. Who created this and what was the precipitating point was to be visualized and examined by Magistrate before summoning applicants, but casually impugned order of summoning for offence punishable under Section 3(1)(x) of the Act was passed. On above facts and circumstances, as apparently offence under Section 3(1)(x) of the Act was not made out, on the basis of evidence collected in inquiry by Magistrate concerned, hence this application merits to be allowed in part.”

Finally, it is then held in the last para 10 that, “The application is partly allowed. The summoning for offence punishable under Section 3(1)(x) of the Act is hereby quashed. For rest of the offences, the prayed relief is refused.”

In conclusion, it may well be said that the Allahabad High Court through this latest judgment seeks to send an unmistakable message to one and all that offences under SC/ST Act is made out only when the offence is perpetrated in public. If it happens behind closed doors, then the SC/ST Act cannot be applied! No doubt, it has been very rightly reiterated by the Allahabad High Court in this latest judgment that just mere bald allegation of harassment and such type of exploitation are to be strictly analyzed with all care and caution. No denying it!

Sanjeev Sirohi

Judicial Officer’s Integrity Must Be Of A Higher Order And Even A Single Aberration Is Not Permitted: Supreme Court

 

In a latest, landmark and extremely laudable judgment titled Arun Kumar Gupta Vs State of Jharkhand & Anr in Writ Petition (Civil) No. 190 of 2018 with Writ Petition (Civil) No. 391 of 2018, a two Judge Bench of the Apex Court comprising of Justice L Nageswara Rao and Justice Deepak Gupta have very rightly maintained while dismissing the writ petitions filed by judicial officers of Jharkhand who were compulsorily retired that judicial officer’s integrity must be of a higher order and even a single aberration is not permitted. The law pertaining to the vital subject of compulsory retirement of judicial officers have thus been summed up in this noteworthy judgment. All judicial officers must essentially go through this all-important verdict as it directly concerns them and lays down strict parameters pertaining to their integrity which is non-negotiable! It would be instructive for even others to go through it to understand the high bench mark laid down for judicial officers by the Apex Court!

To start with, this notable judgment authored by Justice Deepak Gupta for himself and Justice L Nageswara Rao of the Apex Court first and foremost sets the ball rolling by observing in para 1 that, “These writ petitions have been filed by two erstwhile judicial officers who were members of the judicial service in the State of Jharkhand and are directed against the orders whereby they have been compulsorily retired. In respect of the two writ petitions which are the subject matter of this judgment, this Court passed the following order on 06.09.2018:

“Writ Petition Nos. 190/2018 and 391/2018 shall remain pending. The High Court of Jharkhand may like to reconsider the matter in the light of the entirety of the materials that have been placed before us at the hearing by the Registrar General of the Jharkhand High Court and also by the learned counsel for the High Court.

We make it clear that the High Court is free to decide the matter as may be considered appropriate and that we have expressed no opinion on merits at this stage. The High Court of Jharkhand would be free to support its conclusions in terms of the present order with adequate reasons.

The decision of the High Court in accordance with this order be laid before us at the end of two months from today.

List the matters after two months.”

Pursuant to the aforesaid order, the matters were placed before the Screening Committee of the High Court of Jharkhand and the Screening Committee on 11.10.2018 again found sufficient reasons and approved the earlier action taken to compulsorily retire these officers. The resolution of the Screening Committee was placed before the Standing Committee of the Jharkhand High Court, which approved the resolution of the screening committee on 25.10.2018.”

As it turns out, the Bench then observes in para 2 that, “Challenge is laid in both these writ petitions to the orders of compulsory retirement and especially to the reasons assigned or the material ignored by the Screening Committee. The orders of compulsory retirement have been passed in terms of the Rule 74(b)(ii) of the Jharkhand Service Code, 2001 which reads as follows:

“(ii) The appointing authority concerned may after giving a Government servant at least three month’s previous notice in writing, or an equal amount to three month’s pay and allowance in lieu of such notice, require him in public interest to retire from the service on the date on which such a Government servant completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.”

The aforesaid Rule is pari material to Rule 56(j) of the Fundamental Rules.”

While seeking to reveal the main contention of the petitioner, the Bench then points out in para 3 that, “The main contentions raised on behalf of the petitioners are that their retirement is not in the public interest; their entire service record especially the contemporaneous record has not been taken into consideration and also that the petitioners have been granted various promotions which would have the effect of washing off their previous adverse entries, if any.”

Importantly, the Bench then makes it clear in para 4 that, “While deciding the present case we are conscious of the fact that we are dealing with the cases of judicial officers. The standard of integrity and probity expected from judicial officers is much higher than that expected from other officers. Keeping these factors in mind we shall first discuss the law on the subject and then take up these two cases on merits.”

For the sake of brevity, the essence of what is contained in para 7 is this: “In Chandra Singh v. State of Rajasthan (2003) 6 SCC 545, though this Court came to the conclusion that the compulsory retirement awarded to the applicant was not in consonance with the law, it did not give relief to the petitioner on the ground that even under Article 235 of the Constitution of India, the High Court can assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood. This Court held that this constitutional power of the High Court is not circumscribed by any rule.” The key point of para 47 of this Chandra Singh ruling dealing with higher judicial officers is this: “The nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.”

On a different note, the key point that is then mentioned in para 10 is that, “In Rajendra Singh Verma v. Lt. Governor (NCT of Delhi) (2011) 10 SCC 1, this Court was dealing with the compulsory retirement of a judicial officer from the Delhi Higher Judicial Service. It was held that if the authority bona fide forms an opinion that the integrity of a particular officer is doubtful and it is in public interest to compulsorily retire such judicial officer, judicial review of such order should be made with great care and circumspection. It was specifically observed that when an order of compulsory retirement is passed, the authority concerned has to take into consideration the whole service record of the concerned officer which could include non-communicated adverse remarks also.”

To say the least, the crux of para 11 dealing with the famous ruling RC Chandel v High Court of M.P. (2012) 8 SCC 58 is stated thus: “The Court took note of the fact that the appellant before he had been promoted and confirmed as District Judge and was also given selection grade and super time scale etc., but it held that those promotions would not wash off the earlier adverse entries which shall remain on record.”

More significantly, it is then entailed in para 16 that, “The law on the subject of compulsory retirement, especially in the case of judicial officers may be summarised as follows:

(i)    An order directing compulsory retirement of a judicial officer is not punitive in nature;

(ii)   An order directing compulsory retirement of a judicial officer has no civil consequences;

(iii)    While considering the case of a judicial officer for compulsory retirement the entire record of the judicial officer should be taken into consideration, though the latter and more contemporaneous record must be given more weightage;

(iv) Subsequent promotions do not mean that earlier adverse record cannot be looked into while deciding whether a judicial officer should be compulsorily retired;

(v)  The ‘washed off’ theory does not apply in case of judicial officers specially in respect of adverse entries relating to integrity;

(vi) The courts should exercise their power of judicial review with great circumspection and restraint keeping in view the fact that compulsory retirement of a judicial officer is normally directed on the recommendation of a high-powered committee(s) of the High Court.

It is in the light of the aforesaid law that we will now consider the factual aspects of the present case.”

While mentioning about the need to give reasons for its order, the Bench then elucidates in para 17 that, “In view of the fact that the Screening Committee has given detailed reasoning only after the orders of this Court referred to above and in view of the limited scope of judicial review when there are no allegations of mala fide, we would have avoided giving reasons to uphold such an order since it does not amount to punishment and is not penal in nature. However, since the petitioners have insisted that there is a material against them, we have no option but to refer to some of the reasons given by the Screening Committee.”

While elaborating on the case of Mr Arun Kumar Gupta, the Bench then envisages in para 18 that, “As far as Mr. Arun Kumar Gupta is concerned, there are two very serious allegations against him. The first is that when he was working as Deputy Director, Administrative Training Institute at Ranchi, as many as 10 ladies, who were Civil Service Probationers, made allegations that he was using unwarranted and objectionable language during his lectures, citing indecent examples and using words having double meaning, thereby causing embarrassment to the lady officers. We have perused the complaints which are filed with the reply and the common refrain is that the language used by Mr. Gupta during his lectures was highly sexist.”

Furthermore, it is then pointed out in para 19 that, “There is also another allegation that he had physically hurt a washerman by placing a hot iron on the head of the washerman who had allegedly not ironed his clothes properly. It would be pertinent to mention that the Principal District Judge had reported to the High Court that the victim had personally approached him immediately after the occurrence and he (the Principal District Judge) found that the victim had sustained burn injuries and he got the victim treated. It is true that Mr. Arun Kumar Gupta was exonerated by the successor judicial officer before whom the complainant denied having suffered any injury but we may note that this is a preliminary inquiry and the successor Principal District Judge did not even care to examine his predecessor Principal District Judge, who had not only been approached personally by the washerman, but who had himself noted the burn injuries and had got the victim treated. Therefore, we are of the view that the Screening Committee was right that the victim may have been put under some pressure to withdraw his complaint. These occurrences are of the year 2011-2012 and cannot be said to be very old.”

In balance, after considering the allegations against Mr Arun Kumar Gupta, the Bench then holds in para 20 that, “In our view, the aforementioned two instances are sufficient to decide the case against the petitioner. We may also note that Shri Raju Ramchandran, learned senior counsel appearing for the petitioner has urged that the Screening Committee had only taken the entries from 1992-1993 to 2004-2005 and had ignored the entries from 2005-2006 to 2016-2017. As explained by Mr. Sunil Kumar, learned senior counsel appearing for the High Court, all the ACRs were before the Screening Committee but in the order it is only the adverse entries which have been noted. Be that as it may, we are of the view that even if these adverse entries are ignored, the petitioner cannot be granted relief for the reasons aforesaid.”

Having said this, the Bench then while dwelling on the case of Shri Raj Nandan Rai minces no words to say in simple and straight language in para 21 that, “As far as this officer is concerned, we find that his record on many counts is not at all good. His reputation and integrity have been doubted more than once in the years 1996-1997, 1997-1998 and 2004-2005. Some adverse remarks have been conveyed to him. In the year 2015-2016, even his knowledge of law and procedure is found to be average and his relation with the members of the Bar was found not very good. There are also allegations against him of having granted bail for illegal gratification and substance has been found in this allegation in the report of the Judicial Commissioner, Ranchi (who is equivalent to the Principal District Judge). The officer had granted bail by noting in the order that Section 327 of the Indian Penal Code, 1860 was bailable whereas the offence is non-bailable and an unrecorded warning regarding the integrity of the judicial officer was issued to him in 2012.”

Most significantly, it is then very rightly held most remarkably in para 22 which all judicial officers must always bear in mind that, “As is obvious from the law quoted above, adverse entries with regard to integrity do not lose their sting at any stage. A judicial officer’s integrity must be of a higher order and even a single aberration is not permitted. As far as the present cases are concerned, the matter has been considered by the Screening Committee on two occasions and the recommendations of the Screening Committee have been accepted by the Standing Committee on both occasions. The action taken is not by one officer or Judge, it is a collective decision, first by the Screening Committee and then approved by the Standing Committee.”

Going forward, it is then held in para 23 that, “Senior judges of the High Court who were the members of the Screening Committee and Standing Committee have taken a considered and well-reasoned decision. Unless there are allegations of mala fides or the facts are so glaring that the decision of compulsory retirement is unsupportable this court would not exercise its power of judicial review. In such matters the court on the judicial side must exercise restraint before setting aside the decision of such collective bodies comprising of senior High Court Judges. In our opinion these are not fit cases to interfere with the said decisions.” Finally, it is then held in the last para 24 that, “In view of the above, both the writ petitions are dismissed. Any pending application(s) shall stand(s) disposed of.”

In sum, the Apex Court Bench comprising of Justice Deepak Gupta and Justice L Nageswara Rao have aptly summed up this latest, landmark and extremely laudable judgment by once again reiterating the raising of the bar for judicial officers which we have already discussed and deliberated upon in detail. At a time when corruption, indiscipline and nepotism are spreading their tentacles in every place deep inside every department, it was most imperative that the Apex Court urgently stepped in to ensure that judiciary is protected always from all such vices and this exactly is what the Apex Court has very rightly sought to do by laying down in no uncertain terms that judicial officer’s integrity must be of a higher order and even a single aberration is not permitted! Very rightly so!

Sanjeev Sirohi

SC Shatter Armour Plated Ceiling By Holding Women Eligible For Command Posts

                              The long gruelling, nerve wracking and nail biting legal battle fought by women officers for gender equality finally very rightly ended in their favour as Supreme Court just recently on February 17, 2020 in a latest, landmark and extremely laudable judgment titled The Secretary, Ministry of Defence Vs. Babita Puniya & Ors. in Civil Appeal Nos. 9367-9369 of 2011 with Civil Appeal Nos. 1127-1128 of 2013 and with Civil Appeal No. 1210 of 2020 has finally shattered the plated ceiling by clearly, categorically and convincingly ordering the grant of permanent commission in 10 non-battlefield services in three months and held them to be eligible to hold command posts. In a resounding rebuff to the Army, the Bench of Supreme Court comprising of Justices DY Chandrachud and Ajay Rastogi not just trashed the Army’s “weaker sex” argument for denying them permanent commission as it had just no merit but also blasted the Army’s dogged resistance to provide permanent commission to women officers! The Bench also said that these were “based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminates against women”.

Finally, we thus see that the curtains have been brought down to the long fought legal battle lasting for more than a decade leaving women officers with a big smile on their face which they richly and rightly deserve also! This historic and path breaking verdict will directly benefit 332 women officers who are serving in the Army and others who join the eligibility ranks in the future. Army Chief General Manoj Naravane minced no words in saying that, “The judgment of the Supreme Court is a very enabling one. It gives a lot of clarity on how to move forward. The first task at hand is to comply with the SC judgment to grant Permanent Commission. We have drafted a plan. We will send out letters to everyone and ask for their choice. The same procedure that’s followed for male Short Service Commission (SSC) officers will be followed in ensuring Permanent Commission for women. It will be the same rule now for everyone.”

While expressing her delight at the remarkable judgment, senior advocate Aishwarya Bhati who represented the women officers in the Apex Court very rightly said that, “With this [ruling], we can have a woman as the Chief of Army Staff [who only comes from the combat arms], as it opens doors for that. Though it is a long way to go. Women can now be Brigadiers, Major Generals or Lieutenant Generals. They will be judged not on their gender but on their individual merit, capability or suitability. They [Bench] junked the argument of domestic duties, motherhood, biological requirements of women and [the verdict] will ensure greater gender justice and gender dignity in all walks of life. Women are already performing combat roles in the IAF. This verdict will ensure greater roles commensurate with their individual merit and aptitude.” She also rightly pointed out that, “Women have been in the Army since 1992, so to deny PC to existing officers and command positions to all of them betrays the constitutional guarantee and is also contrary to their impeccable service record for the past 27 or 28 years.”

It cannot be overlooked that apart from Israel where women soldiers were allowed entry in intensive combat roles since 1995, Germany too allowed women in combat since 2001 and Australia too opened all jobs in its defence forces to women in 2013. Pakistan also inducted its first women fighter pilot in 2013. Norway allowed women in all combat roles in 1985. In USA all ground combat jobs were opened to women in 2016. In July 2016, British PM lifted ban on women serving in close combat units. In Canada all military occupations open to women since 1989. North Korea, France and Netherlands are among the other countries that allow women to be in front-line combat positions. Why then should Indian Army lag behind? Of course, all these countries have also been instrumental to a great extent in shaping the decision of the Apex Court in this case!

Before proceeding ahead, it would be prudent to discuss the manner in which this noteworthy case was initiated and finally brought to its logical conclusion. The major events are only being mentioned here and not each and every events. They are as follows:-

2003

In February, Babita Puniya who is a practicing advocate in Delhi High Court filed a PIL before the High Court seeking permanent commission for women officers recruited through Short Service Commission (SSC) in the armed forces on par with their male colleagues.

Several groups of women officers from both the army and air force also approached the High Court for relief separately. Their petition was tagged with that of Babita Puniya.

2006

A policy revision allowed them to serve for a maximum of 14 years as an SSC officer.

Another writ petition was filed by Major Leena Gaurav on October 16, 2006 challenging the terms and conditions of service imposed by circulars earlier that year and to seek permanent commission for women officers.

 

2007

Lt Col Seema Singh also moved the court.

2008

The Centre decided in September to grant permanent commission to SSC women officers in Judge Advocate General department and Army Education Corps and their corresponding branches in Air Force and Navy. More petitions were also filed in Delhi High Court in challenging the 2006 and 2008 circulars.

2010

In March, a Delhi High Court Bench allowed the petition and directed the Defence Ministry to extend permanent commission benefits to the SSC women officers of Air Force and Army who had opted for permanent commission yet not granted the same.

In July, the Army challenged the order. The Supreme Court very rightly refused to put the Delhi High Court order on hold which by implication meant that the Centre was bound to implement the Delhi High Court order. It instead issued notice to women officers.

2011

It was on September 2, 2011 that the case reached the Apex Court in appeal. The Apex Court held that “the operation of the impugned judgment is not stayed at all”.

2018

On May 9, Centre tells Apex Court that it is considering granting permanent commission to women officers recruited through SSC in the Army.

On August 15, PM Modi announces a major shift by declaring that women officers will be able to opt for permanent commission in branches of armed forces apart from existing ones like legal and education.

2019

In February, the government took out a notice announcing permanent commission to women but prospectively and made it applicable to only those women commissioned after the order was notified keeping the serving officers out of the ambit. On February 25, Centre issues order for grant of permanent commission to new SSC officers in eight combat support arms/services.

2020

On February 17, this landmark judgment is delivered which paves the way for permanent commission of women in the army and also makes them eligible for command posts.

To start with, the ball is set rolling in para 1 of this landmark judgment wherein it is observed that, “A quest for equality of opportunity for women seeking Permanent Commissions (PC) in the Indian Army forms the basis of these appeals. The lead appeal originated in a batch of Writ Petitions which were instituted before the High Court of Delhi in 2003 and 2006.”

To recapitulate, it is then pointed out in para 50 that, “The engagement of women officers in the Army has been an evolutionary process. As we have seen, women officers were initially inducted in the year 1992 under the WSES for a period of five years. This was extended for a further period of five years. On the incorporation of a provision for SSCs for women officers, options were granted to those amongst them who had been engaged under the earlier scheme to become SSC officers. As a part of the pool of officers engaged as SSC officers, the tenure was extended to fourteen years with a provision for due promotions while in service. Following the judgment of the Delhi High Court, the Union Government was under a mandate to grant PCs to women officers, to the exclusion of the Combat Arms, and at par with the grant of PCs to their male counterparts. Significantly, the judgment of the Delhi High Court was not stayed by this Court at any stage, though there was a direction that no coercive steps would be initiated on the basis of the judgment in appeal. A direction by this Court not to initiate coercive steps is distinct from a stay on the operation of the judgment. There was no reason or justification for the Union Government not to act upon the directions that were issued by the Delhi High Court, particularly, in the absence of a stay on the operation and enforcement of the judgment. The Union Government continued to thwart implementation despite the order of this Court dated 2 September 2011 clarifying that “the operation of the impugned judgment is not stayed at all.” Scant regard has been paid to the Delhi High Court and to this Court as well. Eventually, nine years after the judgment, the Union Government has communicated a policy circular dated 25 February 2019 by which a decision has been taken to grant women officers PC in eight Arms/Services, in addition to the existing streams of JAG and AEC. Thus, as a matter of policy, the Union Government has taken a decision to allow for the grant of PCs in all the ten streams in which women officers were currently being commissioned as SSC officers.”

To say the least, it was in 1992 that Centre notifies women eligible for appointment as officers for five years in the Army Postal Service, Judge Advocate General Department, Army Education Corps, Signal Corps, Intelligence Corps, Corps of Engineers, Corps of Electrical and Mechanical Engineering and Regiment of Artillery among other Corps. It was in December 1996 that Ministry of Defence deleted the five-year clause for enrollment. It was in November 2005 that the initial process of induction of women officers under the WSES was replaced by SSCs with an outer period of 14 years. The first batch of women officers under the new scheme were recruited in Army in 2008.

Be it noted, the Bench then rightly notes in para 51 that, “The decision of the Union Government to allow PCs to women officers in all the ten streams where they are being inducted as SSC officers substantially renders redundant the submission of Mr Balasubramanian, learned Senior Counsel, based on the provisions of Section 12 of the Army Act. Section 12 contemplates that women will be eligible for enrollment only in those segments of the Army where the Union Government has, by notification, permitted their enrollment and engagement. Even on a textual interpretation of Section 12 as it stands, it is evident that the policy decision dated 25 February 2019 of the Union Government has allowed for the grant of consideration of PCs to commissioned women officers in all the ten streams which have been notified.”

Importantly, it is then rightly underscored in para 52 that, “The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1). The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army. The fundamental right is recognised in the specified streams where women are permitted to seek engagement as equal members of the Armed force that the Indian Army represents. With the Union Government having recognised the induction of permanently commissioned women officers in its policy decision dated 25 February 2019, we are of the opinion that the submissions which have been made by the Union of India betray a lack of understanding of the plain consequences of the decision. The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution.”

To put things in perspective, it is then lamented in para 53 that, “Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court. Repeatedly, in the course of the submissions, this Court has been informed that:

(i)                         The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;

(ii)                      Woman officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force;

(iii)                   A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women;

(iv)                   An all-male environment in a unit would require ‘moderated behavior’ in the presence of women officers;

(v)                      The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and

(vi)                   The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with “minimal facility for habitat and hygiene”.”

While pooh-poohing the specious submissions made, the Bench then minces no words to hold in para 54 that, “The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the ‘weaker’ sex and may not undertake tasks that are ‘too arduous’ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas.”

What’s more, the Bench then goes on to add without mincing any words in para 55 that, “These assertions which we have extracted bodily from the written submissions which have been tendered before this Court only go to emphasise the need for change in mindsets to bring about true equality in the Army. If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets. Confronted on the one hand with a solemn policy decision taken by the Union Government allowing for the grant of PC to women SSC officers in ten streams, we have yet on the other hand a whole baseless line of submissions solemnly made to this Court to detract from the vital role that has been played by women SSC officers in the line of duty.”

More significantly, the Bench then waxes eloquent in para 56 stating that, “The counter affidavit contains a detailed elaboration of the service which has been rendered by women SSC officers to the cause of the nation, working shoulder to shoulder with their male counterparts. Yet, that role is sought to be diluted by the repeated pleas made before this Court that women, by the nature of their biological composition and social milieu have a less important role to play than their male counterparts. Such a line of submission is disturbing as it ignores the solemn constitutional values which every institution in the nation is bound to uphold and facilitate. Women officers of the Indian Army have brought laurels to the force. These are documented in the course of proceedings and have not been controverted in the submissions. Some of the distinctions which women officers have achieved are catalogued below:

(i)            Lieutenant Colonel Sophia Qureshi (Army Signal Corps) is the first woman to lead an Indian Army contingent at a multi-national military exercise named ‘Exercise Force 18’ which is the largest ever foreign military exercise hosted by India. She has served in the United Nations Peacekeeping Operation in Congo in 2006 where she, along with others, was in charge of monitoring ceasefires in those countries and aiding in humanitarian activities. Her job included ensuring peace in conflict affected areas;

(ii)      Lieutenant Colonel Anuvandana Jaggi served as the Women’s Team Leader of the United Nations Military Observers Team in the UN mission in Burundi. She was awarded the United Nations Force Commander’s Commendation and an Appreciation Epistle from the Chief of Army Staff for her commendable effort;

(iii)    Major Madhumita (Army Education Cortps) is the first woman officer in the country to receive the Gallantry Award (Sena Medal) for fighting Taliban terrorists in Afghanistan. Despite adversity, she continued and her speedy rescue and evacuation efforts saved many lives;

(iv)  Lieutenant Bhavana Kasturi recently led a contingent of the Indian Army Service Corps, becoming the first woman to lead an all-men Army contingent in the history of India. Similarly, Captain Tania Shergill recently became first Indian woman Parade Adjutant to lead an all-men contingent in New Delhi on 15 January, 2020;

(v)   In September 2010, the Sword of Honour in the Officers Training Academy, Chennai (the only training center for SSC male and female officers) was given to Lieutenant A Divya amongst 170 male officers and 57 women officers.

(vi)   By a letter (10620/Sect/EME) dated 8 September 2009, women officers were also made part of the Quick Reaction Teams, where women and male officers perform similar duties;

(vii)          The Indian Army entrusts women officers with complex tasks of transporting convoys of between thirty to fifty vehicles in militant prone areas in Leh, Srinagar, Udhampur and the North East. An example was provided of the movement order from Leh to Pathankot dated 15 September 2010 issued to one of the respondents, Major Gopika Bhatti who, in the role of a convoy commander, handled junior commissioned officers, jawans (drivers and supporting staff), vehicles (filled with logistics, arms and ammunitions) and other military equipment;

(viii)      Major Gopika Ajitsingh Pawar was awarded the United Nations Peacekeeping Medal by the Secretary General of the United Nations in recognition of her role as a military member of the United Nations Interim Force in Lebanon.

(ix)    Major Madhu Rana, Preeti Singh and Anuja Yadav were awarded the United Nation Medal completing the qualifying service as military members of the United Nations Mission in the Democratic Republic of Congo;

(x) Captain Ashwini Pawar (Army Ordinance Corps) and Captain Shipra Majumdar (Army Engineer Corps) were awarded the Sena Medal by the President of India in 2007; and

(xi)  Women officers from the Indian Army have been participating in the UN Peace Keeping Force since 2004 and have been deployed in active combat scenarios in Syria, Lebanon, Ethiopia and Israel.

Numerous other commendations certificates and laurels achieved by women officers have been placed on record. Their track record of service to the nation is beyond reproach. To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.”

Most significantly, the Bench then holds in para 69 that, “We accordingly take on record the statement of policy placed on the record in these proceedings by the Union Government in the form of the letter dated 25 February 2019 and issue the following directions:

(i)          The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following:

(a)          All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;

(b)         The option shall be granted to all women presently in service as SSC officers;

(c)           Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;

(d)          As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;

(e)          The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced;

(f)            SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and

(g)          At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.

(ii)           We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and

(iii)   SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.”

Finally, it is then held in para 70 that, “Necessary steps for compliance with this judgment shall be taken within three months from the date of his judgment.”

No doubt, it is an extremely laudable and landmark judgment which must be applauded, appreciated and admired by all of us! It shall certainly go a long way in ensuring that gender justice prevails in Army also! Who can deny this?

It has very rightly held that blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law. It also rightly observed that it is an insult to women as well as the army when aspersions are cast on women, their ability and their achievements in the army. The Apex Court rightly frowns on the reprehensible tendency to always stereotype women as “weaker sex” which cannot be justified under any circumstances!

After this landmark order, the path to gender equality has certainly been remarkably heralded which shall ensure that women are no longer denied permanent commission or denied command posts! Even women officers in the Air Force and other streams shall benefit immensely from it as from now onwards they cannot be denied command posts nor be denied the highest post of Chief also! This judgment shall always be remembered as one of the best judgments which heralded gender equality in defence services also which includes all the services – Army, Navy and Air Force!

Sanjeev Sirohi

Bail Applications Need To Be Disposed Of Expeditiously And Finally: Supreme Court

 

At the outset, it has to be said with a considerable degree of satisfaction that in a significant development with far reaching consequences, the Supreme Court has very strongly once again while expressing its strongest “disenchantment, displeasure and disappointment” about the pendency of bail application filed in August 2018 before the Calcutta High Court  reiterated in a latest case titled Motamarri Appanna Veerraju @ Mav Raju in Criminal Appeal Nos. 328-331 of 2020 (Arising out of SLP (Crl.) Nos. 1631-1634 of 2020) (Diary No. 43544 of 2019) that bail applications need to be dealt with expeditiously and finally. The Apex Court was particularly miffed about the irrefutable fact that the High Court of Calcutta instead of deciding the bail application filed by an accused granted interim orders. Very rightly so!

To start with, the ball is set rolling in this latest judgment delivered by Justice AM Khanwilkar and Justice Dinesh Maheshwari of the Apex Court by first and foremost observing that, “Delay condoned. Leave granted.”

In the real sense, the pitch is then queered by the Bench in this notable case by observing lucidly that, “These appeals take exception to the judgment(s) and order(s) dated 15.05.2019, 05.08.2019, 25.09.2019 and 27.11.2019 passed by the High Court of Judicature at Calcutta in C.R.M. No. 6471 of 2018 granting interim protection to the appellant during the pendency of the bail application which was filed in August, 2018 in connection with offence punishable under Sections 384/385/389/119/403/120B/411/467/468/471/409 IPC and 13 (1) (c) / 13 (1) (d)/13(1)(3) r/w 13(2) Prevention of Corruption Act, 1988.”

To say the least, the Bench then says that, “We have heard learned counsel for the parties. For the nature of order that we propose to pass, it is unnecessary to dilate on the factual matrix of the case, except to observe that the investigation in connection with F.I.R. No. 27 of 2018, Daspur Police Station has already progressed and is at an advance stage of completion, as can be discerned from the chargesheet dated 28.06.2018 and supplementary chargesheet dated 24.08.2019 qua the appellant before this court.”

Be it noted, the Bench then points out that, “The Sessions Court rejected the bail application filed by the appellant whereafter the appellant filed regular bail application before the High Court in August, 2018. Instead of finally disposing of the said bail application with promptitude, the High Court for the reasons, which are not clear to us, chose to grant interim relief to the appellant vide order dated 01.10.2018 and continued that protection until this day. The order dated 01.10.2018 reads thus:-

“…Accordingly, we direct that the petitioner shall be released on interim bail upon furnishing bond of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties of like amount, one of whom shall be local, to the satisfaction of the learned Additional Chief Judicial Magistrate, Ghatul, Paschim Medinipore, on condition that he shall not leave the jurisdiction of municipal limits of city of Kolkata until further orders except with the permission of this Court and on condition that he shall provide the address where he shall presently reside to the investigating officer as well as the trial court and on further condition he shall meet the investigating agency one in a week until further orders. He shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever and he shall appear before the trial court on every date of hearing and in the event he fails to do so, his bail shall stand automatically cancelled without further reference to this Court.

Interim bail shall continue till 30th November, 2018 or until further orders, whichever is earlier. Matter will appear for further hearing on 26th November, 2018.

Urgent Photostat certified copy of this order, if applied for, be delivered to the learned advocates for the parties, upon completion of usual formalities.””

Furthermore, the Bench then observed that, “As aforesaid, the High Court for some reason kept the bail application pending from August 2018, and instead passed successive interim orders until 23.11.2019, which are referred to above.”

To be sure, the Bench then goes on to add that, “The last attempt made by the appellant was for modification of the interim order passed on 01.10.2018. That prayer, however, was answered against the appellant as a result of which the appellant rushed to this court by way of the present appeal.”

Not stopping here, the Bench then further holds explicitly and elegantly that, “In the facts of the present case, instead of deciding the limited issue about modification of interim order passed by the High Court, in the interest of justice, we deem it appropriate to dispose of the main bail application filed by the appellant, vide this order. We are conscious that such a course should be ordinarily eschewed but being convinced about the peculiar fact situation of this case, that approach would meet the ends of justice.”

        As it turned out, the Bench then minces no words to hold clearly and convincingly that, “At the outset, we record our displeasure about the manner in which the bail application filed in August, 2018 has remained pending before the High Court until this day and only interim orders have been passed thereon from time to time as referred to above. We have no hesitation in observing that adopting such a course, that too, by a constitutional Court, is wholly unfathomable and must be eschewed. For, the application for bail or anticipatory bail is a matter of moment for the accused and protracted hearing thereof may also cause prejudice to the investigation and affect the prosecution interests which cannot be comprehended in this order. Such application needs to be dealt with expeditiously and finally, one way or the other and cannot brook delay.”

While pooh-poohing the approach taken in tackling this case, the Bench while refraining from indulging in blame game then minces no words to say that, “It is not necessary for us to go into the question as to who is responsible for the situation but, at the same time, we need to deprecate the course or process followed in the present case. We say no more.”

Needless to say, the Bench then further adds clearly that, “Be that as it may, to do complete justice in the matter, we deem it appropriate to dispose of the main bail application pending before the High Court since August, 2018 in terms of this order by modifying the conditions predicated in the interim order(s) and which had enured in favour of the appellant since 01.10.2018, in the peculiar facts of the present case.”

To say the least, the Bench then concedes that, “We are conscious of the fact that co-accused, whose bail application was rejected by the High Court, had approached this court and his Special Leave Petition being SLP (Crl.) No. 10310 of 2019 has been dismissed by this court on 09.12.2019. However, that order itself makes it clear that even that accused is free to approach the concerned Court after expiry of six months’ time, for bail.”

What’s more, the Bench then opines that, “In our opinion, rejection of bail application of the co-accused ought not to come in the way of the appellant herein, who, as aforesaid, was granted interim protection by the High Court vide interim order on 01.10.2018 and which arrangement has been continued till now without any adverse report against him, including of having jumped any condition imposed by the High Court.”

Importantly, the Bench then also makes it clear that, “The only question is about the nature of conditions to be imposed to ensure that the further investigation, if any, against the appellant can be conducted in a fair manner and also the trial against the appellant is not affected either way.” Who can question this? Certainly no one!

Finally and most importantly, the Bench then goes on to hold meaningfully in the last para by waxing eloquent that, “Accordingly, after hearing both the sides, we deem it appropriate to dispose of the bail application filed by the appellant on the following terms:-

1.  The appellant shall furnish bail bond in the sum of Rs. 25,00,000/- (Rupees Twenty-Five Lakh only) with two sureties of the like amount, one of whom shall be local resident, to the satisfaction of the Additional Chief Judicial Magistrate, Ghatal, Paschim Medinipore.

2.  The appellant shall not travel outside India without prior permission of this Court.

3.  The appellant shall not enter Paschim Medinipore District except for attending the proceedings pending against him in the concerned court, with prefix and suffix of one day.

4.  The appellant shall forthwith furnish his ordinary place of residence to the Investigating Officer, if there is any change from the one already furnished by him in terms of this order.

5.  The passport of the appellant already deposited by him shall remain in the custody of CID, West Bengal.

6.  The appellant shall not intimidate the witnesses and/or tamper with the prosecution evidence in any manner whatsoever and he shall appear before the trial court on every date of hearing and in the event he fails to do so, his bail shall stand automatically cancelled without further reference to this Court, unless his presence has been expressly exempted by the Court in advance, for reasons to be recorded therefor.

7.  The appellant shall report to the Investigating Officer on first Monday of every English Calendar month between 10 a.m. to 12 noon; and on such other day and time as may be required by the Investigating Officer for the purpose of investigation, provided 48 hours advance notice is given to the appellant in that behalf.

8.  The bail application filed by the appellant in the High Court being CRM No. 6471 of 2018 stands disposed of in terms of this order.”

In essence, the sum and substance of this noteworthy judgment delivered by a Bench of Apex Court comprising of Justice AM Khanwilkar and Justice Dinesh Maheshwari is that bail applications need to be disposed of expeditiously and finally and the courts should not be satisfied by just granting interim orders. It also minced no words to express its strongest displeasure about the long pendency of bail pleas in the High Court.

All the High Courts as also the other courts in our country must always fully and firmly abide by what the top court has laid down so rightly and remarkably in this latest, landmark and extremely laudable judgment thus reiterating once again the long stated position held earlier in so many cases! There can certainly be no denying or disputing it!

Of course, we all have heard  time and again the time-tested dictum that, “Justice delayed is justice denied”. This proverbial legal maxim applies here also in bail cases and if the bail applications are not decided swiftly and finally, then it causes a great deal of inconvenience and hardships to the litigants which must be avoided at any cost and for this to happen they must be decided expeditiously as the Apex Court has laid down also in this noteworthy judgment most eloquently, explicitly and elegantly!

Sanjeev Sirohi

Arbitrary Transfers Of High Court Judges Must Stop Now.

It is most hurting, most shocking and most distressing to see that the arbitrary transfer of High Court Judges in our country is not stopping in our country at all which is hurting the smooth functioning of our judiciary immensely as some are even resigning in protest. Just recently we saw Justice Satyaranjan Dharmadhikari of Bombay High Court who was next in line to be the Chief Justice of Bombay High Court resigning in protest against his transfer as his family life would be hugely affected which he found unacceptable. Talking to reporters, Justice Dharmadhikari said that he had resigned as he had been elevated as the Chief Justice of the High Court of another state, although he did not want to leave Mumbai. He disclosed that, “I had to resign due to purely personal and family issues…I did not want to leave Mumbai and they were not ready to elevate me as the Chief Justice of Bombay High Court.”

It is high time and the arbitrary transfer of Judges must stop now immediately! Judges should be transferred only with their consent or when there is a very strong ground which can offer valid and legitimate reasons for doing the same and which must be disclosed! The aura and dignity of the Judges of the High Court must be maintained!

As it turned out, after the  proposed transfer of Justice Dr S Muralidhar of the Delhi High Court decided by the Supreme Court collegium was announced, the Executive Committee of the Delhi High Court Bar Association has resolved to observe complete abstinence from work on February 20 to protest the proposal. The resolution was passed in an emergency executive meeting held at 3 PM on February 19, after the news about the collegium proposal came out in the morning. Justice Dr S Muralidhar enjoys an unblemished and unimpeachable reputation and his several landmark judgments which he has delivered in his tenure as a High Court Judge in Delhi speaks for themselves!

Be it noted, in an urgent meeting of the Executive Committee of Delhi High Court Bar Association held at 3 pm on February 19, 2020 at the office of the Bar Association, the following resolution was unanimously passed:-

(i)                         The Delhi High Court Bar Association expresses its shock, dismay and outrage at the transfer of one of the finest judges to have adorned the Bench – Hon’ble Dr. Justice S Muralidhar – by the collegium of the Hon’ble Supreme Court.

(ii)                      Unequivocally and in the strongest possible terms, the Delhi High Court Bar Association condemns the said transfers. Such transfers are not only detrimental to our noble Institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the Hon’ble Bench.

(iii)                   The Delhi High Court Bar Association sincerely hopes that the collegium of the Hon’ble Supreme Court revisits the issue and recalls the move to transfer Hon’ble Dr. Justice S. Muralidhar from the High Court of Delhi to the Punjab and Haryana High Court.

(iv)                   The Delhi High Court Bar Association also resolves to request its members to abstain from work tomorrow, i.e. 20th February as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered Institution is at stake.

A copy of this resolution to Hon’ble Chief Justice of India.”

To say the least, in an SMS message sent out to all members on morning of February 19, 2020, the Delhi High Court Bar Association (DHCBA) of which Mohit Mathur is President and Abhijat is Hony. Secretary said in simple and straight language that, “DHCBA expresses its shock and unequivocally and in the strongest possible terms condemns the transfer of Justice Dr S Muralidhar by the Collegium of the Supreme Court. The transfer will be a great loss to our institution.”

It may be recalled that Justice Dr S Muralidhar who was made a Judge of the High Court in 2006 is the third senior Judge of the High Court of Delhi. He has been part of several bold and notable decisions in his capacity as a Judge of Delhi High Court. To name a few, the decriminalization of homosexuality, application of RTI to the office of CJI, conviction of UP PAC police cops in Hashimpura massacre case, conviction of Congress leader Sajjan Kumar in the 1984 anti-Sikh riots case  which had claimed the life of more than 3000 Sikhs in Delhi alone etc.

It may also be recalled that earlier ex-Madras High Court Chief Justice Tahilramani had resigned on September 6, 2019 after being transferred to Meghalaya! Nothing on earth can be more unfortunate than this that a woman Chief Justice who by her talent and merit risen so high was compelled to resign even though she had disposed of 5040 cases throughout her tenure as the Chief Justice and was able to dispose of at least 70-80 cases per day! It was Justice Tahilramani who while holding office as Acting Chief Justice of Bombay High Court had in May 2017 upheld the conviction and life imprisonment of 11 people in the Bilkis gang rape case which was transferred to Maharashtra from Gujarat by the top court!

Needless to say, Justice Tahilramani had resigned days after the collegium had declined her request for reconsideration of her transfer to Meghalaya High Court! She deserved to be the Chief Justice of India but what an unbeatable irony that she resigned before even entering the corridors of the Supreme Court as a Judge! How can women be empowered if such a shinning example of talent, humility and politeness is compelled to resign in protest against her transfer to Meghalaya High Court?

No doubt, sources privy to the September 6 dinner told the media that almost all High Court Judges had in unison requested her to reconsider her decision to resign. But she politely refused as she was deeply hurt by her sudden transfer to a much smaller High Court! A source said to media on condition of not being named that, “However, she was resolute and refused to budge. People could feel her pain. She said, her conscience was clear and that she would be leaving the institution with the satisfaction of having performed well.”

As it turned out, a section of lawyers practicing in the Madras High Court shot off a representation to the Supreme Court stating that, “These kind of arbitrary transfers whittle away the independence of the judiciary and the confidence of Judges.” The representation had been signed by advocates NGR Prasad, G Masilamani, R Vaigai and 100 others. The memorandum read as follows: “To now transfer her to one of the smallest High Courts is nothing short of a punishment and a humiliation. It cannot be justified on the principle of administrative interests, which is an expression that can be used in every case. It is ironical that a person of her seniority is being assigned to the smallest High Court. Any transfer should meet with an element of fairness but it is noticed, of late, that there appears to be no norms in the matter of transfer of Judges.” Recalling the words of former Supreme Court Judge V Khalid that transfer could be a more dangerous weapon than dismissal, the lawyers said that, “It is a matter of concern that there are no checks and balances in matters of administration of judiciary. The style of functioning of the collegium leaves one with the impression that the High Court is subordinate to the Collegium. This affects the majesty of the High Courts and erodes their primacy of position in the Constitutional scheme of things.”

It is high time and Supreme Court must also reconsider its decision so that more Judges don’t take the route which other Judges like Tahilramani and Justice Satyaranjan Dharmadhikari had to take due to which our judicial system suffers immeasurably and irreparably! It must be reiterated yet again at the risk of repetition that arbitrary transfer of High Court Judges and Chief Justices must stop now forthwith! If Delhi High Court Bar Association has gone on a token strike against this transfer of Justice Dr S Muralidhar, it is a very serious thing and it deserves due consideration by the Supreme Court and its collegium!

Bluntly put: How long can India afford to lose such distinguished legal luminaries like former Chief Justice of Madras High Court – Tahilramani and former Justice of Bombay High Court – Satyaranjan Dharmadhikari? Such a sensitive and serious issue certainly can no longer be put on the backburner or in a cold storage! It must be addressed swiftly, seriously and systematically! It brooks no more delay anymore now!

In sum, the Judges and Chief Justices of High Courts certainly deserve much better and fair treatment from the Supreme Court collegium! If Judges with impeccable reputation like Tahilramani, Dharmadhikari and others keep resigning one after the other due to their sudden and arbitrary transfers, the very smooth functioning of judiciary especially the High Courts will come under serious question which cannot be permitted ever to happen under any circumstances! One can only fervently hope now that Justice Dr S Muralidhar does not resign too similarly as it is the Delhi High Court which will suffer the most which alone explains why the Delhi High Court Bar Association is standing solidly behind him and very rightly so!

Sanjeev Sirohi

Parental Responsibility Does Not End With Breakdown Of Marriage : Supreme Court

 While affixing responsibility of parents towards their children, the Supreme Court most recently on February 18, 2020 in a latest, landmark and extremely laudable judgment titled Soumitra Kumar Nahar Vs. Parul Nahar in Civil Appeal No(s). 1670 of 2020 (Arising out of SLP (Civil) No(s). 6201 of 2016) With Civil Appeal No(s). 1671 of 2020 (Arising out of SLP (Civil) No(s). 16032 of 2016) has very vocally and rightly observed that the parental responsibility of the couple does not end even if there is a breakdown of marriage. It is the child who always suffer immeasurably and invaluably due to the ego clashes of the couple! This alone explains that why the Apex Court has very rightly sought to affix responsibility on the parents which they owe towards the child!

To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Ajay Rastogi for himself and Justice AM Khanwilkar by first and foremost  observing after granting leave in para 1 that, “In a custody battle, no matter which parent wins but the child is always the loser and it is the children who pay the heaviest price as they are shattered when the Court by its judicial process tells them to go with the parent whom he or she deems fit. It is a kind of dispute which has arisen initially from the Family Court and reached to this Court.”

Be it noted, para 3 then elucidates that, “The husband Soumitra Kumar Nahar assailed the order of the High Court of Delhi dated 4th September, 2015 which partly allowed the appeal with the direction to the wife Parul Nahar to comply with the consent terms qua the visitation rights of the appellant-husband Soumitra Kumar Nahar to meet son Master Shravan. At the same time visitation rights to meet the daughter Sanjana were declined. It was also observed that if the daughter wishes to meet her father, she can do so at her own desire.”

To put things in perspective, it is then mentioned in para 4 that, “Pending Civil Appeal @ Special Leave Petition (Civil) No. 6201 of 2016, a miscellaneous application was filed by the respondent Parul Nahar before the High Court of Delhi of which an order came to be passed on 12th May, 2016 directing Dr. Achal Bhagat (Psychotherapist) to ascertain the background facts regarding the relationship of the children with their father Soumitra Kumar Nahar and paternal grandparents before they joined the sole custody of their mother. It is unfortunate to notice that because of a warpath of the couple, both the paternal grandparents died during pendency of the proceedings.”

To put it succinctly, it is then pointed out in para 5 that, “Since the facts arise are almost common in both the appeals, we have noticed the relevant facts for our consideration from Civil Appeal @ SLP (C) No. 6201 of 2016.”

In hindsight, we need to now recapitulate the relevant facts here as have been discussed in para 6 which states that, “Appellant Soumitra Kumar Nahar and respondent Parul Nahar married as per Hindu rites and customs on 10th December, 2001. They were blessed with a baby girl “Sanjana” born out of the wedlock on 24th May, 2005 and a baby boy “Shravan” was born on 10th October, 2008. It manifests from the record that some trivial matrimonial differences cropped up after the second child was born in October, 2008 and it was unfortunate that the parties started making personal allegations and counter allegations against each other, that forced the appellant-husband to file Guardianship Petition No. 56 of 2011 on 15th April, 2011 under Sections 7, 8, 10 & 11 of the Guardian and Wards Act, 1890. Simultaneously, appellant filed a separate Divorce Petition bearing HMA No. 821 of 2011 in September, 2011 on the grounds of cruelty and adultery.”

Making matters worse, it is then pointed out in para 7 that, “The stage reached where the father of the appellant Soumitra Kumar Nahar filed a suit CS(OS) No. 2795 of 2011 before the High Court of Delhi impleading the appellant and respondent as a party praying for mandatory injunction against the respondent wife from entering into his self-acquired property.”

Due attention must be paid to what is then stated in para 8 that, “It is pertinent to mention here that appellant was residing along with his wife Parul Nahar and parents at B-197, Greater Kailash-I, New Delhi but because of compelling reasons, the appellant-husband and respondent-wife had to leave their matrimonial home and they shifted to the rented accommodation at M-24, Greater Kailash-I, New Delhi.”

After hearing the lawyers from both sides and perusing the material on record, the Bench then minces no words to state unequivocally in para 30 that, “It is indisputed that the rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility. It is the child who suffers the most in a matrimonial dispute.”

Importantly, the Bench then also minces no words to send a simple straight and short message in para 31 that, “It is also well settled by the catena of judgments of this Court that while deciding the matters of custody of the child, primary and paramount consideration is always the welfare of the child. If the welfare of the child so demands, then technical objections cannot come in the way. However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The Courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.”

What’s more, it is then clarified in para 32 that, “At the outset, it may be noticed that the present dispute is nowhere related to the Divorce Petition No. HMA 821 of 2011 which has been filed at the instance of the appellant-husband pending before the competent Court of jurisdiction and indeed may be decided without being influenced by the observations made in the present proceedings independently in accordance with law.”

Simply put, the Bench then makes it known in para 33 that, “So far as the custody of the minor children is concerned, an endeavor was made by the High Court in the first instance to resolve the inter se dispute between the parents keeping in view the paramount interest of the children as they are entitled to the love and affection of both the parents but if the parents are bent upon to lead to a separation or divorce, it is always the children who pay the heaviest price and are the sufferers. If the parents fail to enable themselves to decide their inter se disputes particularly in reference to custody of minor children, the Court, after due scrutiny of the records of the case, reaches to any conclusion that always remain a guess work.”

Most significantly, it is then made amply clear in para 34 that, “All the endeavours are to be made to resolve the matrimonial disputes in the first instance through the process of mediation which is one of the effective mode of alternative mechanism in resolving the personal disputes but if it could not make possible in resolving through the process of mediation, further endeavor must be made by the Court through its judicial process to resolve such personal disputes as expeditiously as possible. Delay in decision certainly cause a great loss to the individual and deprive him/her of their rights which are protected under the Constitution and with every passing day, the child pays heavy price of being deprived of the love and affection of their parents for which they were never at fault but are always the loser which at no stage could be compensated monetarily or otherwise. In the peculiar facts of the present case, the High Court of Delhi, in the first instance, made effort after holding a separate and joint session with the parents along with the children but nothing fruitful came forward and when the litigation came to this Court, tireless efforts were made by this Court keeping in view the paramount interest of the children. The orders passed by this Court to which a reference has been made in detail indicates that it would always remain in the interest of the parties to resolve these disputes amicably sitting across the table but unfortunately the ego of the warring parents came forward and the sufferings of the children are shadowed over it.”

Equally significant if not more is what is then stated in para 35 that, “It is an ideal situation where the grandparents remain in the company of their children and also of their grandchildren, but very few are fortunate to have this pleasure in the fag end of their life. In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grand children and because of this matrimonial tussle between the parties, they have lost their lives. It is a message to the litigating parties to introspect and take stock of their deeds and find out a reasonable amicable solution of the ongoing matrimonial discord to secure peace and of their better future.”

Finally, before winding up, it is then observed in para 39 that, “To finally conclude, we would like to observe that the interim arrangement made by this Court regarding the custody/visitation rights of the parties vide order dated 7th September, 2017 and further subsequent orders shall continue until further orders with the liberty to the parties to take steps in filing of a custody/guardianship petition for the minor children before the competent Court of jurisdiction and taking note of the interest of the minor interest as a paramount consideration being the sufferers of the matrimonial discord, if such an application is filed by either of the party, that may be decided by the Court independently without being influenced/inhibited by the observations made in the instant proceedings expeditiously in accordance with law. At the same time Divorce Petition HMA No. 821 of 2011 shall be decided expeditiously as possible but in no case later than 31st December, 2020.”

Before closing, it would be in the fitness of things to once again say in simple and straight language that the essence of this extremely laudable judgment is that the interest of the child has to be accorded the paramount consideration and parental responsibility does not end with the breakdown of marriage. In other words parents cannot wash their hands off just by terming their marriage breakdown as “end of everything”! All Courts must always follow this laudable approach as laid down by the Apex Court in this noteworthy case!

Sanjeev Sirohi

Accused Cannot Be Convicted Of Rape On Basis Of Sole Testimony Of Prosecutrix Unless Her Testimony Is Of “Sterling Quality”: SC

In a latest, landmark and extremely laudable judgment titled Santosh Prasad @ Santosh Kumar Vs State of Bihar in Criminal Appeal No. 264 of 2020 (Arising out of SLP (Criminal) No. 3780/2018) delivered just recently on February 14, 2020, the Supreme Court has held in no uncertain terms that the conviction of an accused in rape cases cannot be done on the basis of sole testimony of the prosecutrix unless she passes the test of “Sterling Witness”. It has also sought to convey unambiguously that in order to convict an accused on the basis of solitary evidence of the prosecutrix, the evidence must be absolutely trustworthy. This was the crying need of the hour also because we keep hearing also many cases of false complaint being filed with a malafide intention to settle personal scores!

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself and Justice Ashok Bhushan of the Apex Court Bench wherein it is first and foremost observed that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 7.2.2018 passed by the High Court of Judicature at Patna in Criminal Appeal No. 209 of 2015, by which the High Court has dismissed the said appeal preferred by the original accused and has confirmed the judgment and order of conviction passed by the learned Sessions Court convicting the accused for the offences punishable under Sections 376(1) and 450 of the IPC, the original accused has preferred the present appeal.”

To recapitulate, the Bench then observes in para 2 that, “That the appellant herein – original accused was tried by the learned Sessions Court for the offences punishable under Sections 376(1) and 450 of the IPC. A written complaint was filed by the prosecutrix – PW5 on 16.09.2011 before the local police station against the accused alleging, inter alia, that in the preceding night at about 11:00 p.m. she awaken after hearing some sound and whereupon in the light of the mobile phone she found the accused – brother of her husband whereupon she made query. Instead of giving any reply, he committed the rape upon her. According to the prosecution and as per the prosecutrix, thereafter the accused ran away and after getting an opportunity she raised alarm and the neighbours came there including one Suman Devi, her cousin Gotini as well as Shanti Devi, her cousin mother-in-law. She disclosed the event/incident to them. According to the prosecutrix, she informed her mother-in-law and father-in-law who were at Gaya. At the time of incident, her husband was away from the village. Thereafter on their arrival she came to the police station along with them and submitted written report. FIR was registered against the accused being P.S. Case No. 325/2011. Investigation was carried out by the officer in-charge of Makhdumpur Police Station. He recorded the statement of the concerned witnesses. The clothes/apparels of the prosecutrix were seized and were sent to FSL. He also collected the medical report from Dr. Renu Singh, PW7, who examined the victim. Thereafter on conclusion of the investigation, the Investigating Officer filed the chargesheet against the accused for the offences punishable under Sections 376(1) and 450 of the IPC. As the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court which was transferred to the Court of learned Additional Sessions Judge, 1st, Jehanabad, which was numbered as Sessions Trial No. 456 of 2011/90/2012. The accused pleaded not guilty and therefore he came to be tried by the learned Sessions Court for the aforesaid offences.”

Furthermore, the Bench then observes in para 2.1 that, “To prove the charge, the prosecution examined in all eight witnesses including the prosecutrix (PW5) and Dr. Renu Singh – Medical Officer (PW7). Out of the eight witnesses, PW2, PW3 and PW4 did not support the case of the prosecution and therefore were declared hostile. The prosecution also brought on record the FIR, Injury Report and FSL Report. After closure of the evidence of the prosecution, further statement of the accused under Section 313, Cr.P.C. was recorded. The case of the accused was of total denial. Thereafter, on appreciation of evidence on record, the learned trial court held the accused guilty for the offences under Sections 376(1) and 450 of the IPC. The learned trial Court sentenced the accused to undergo 10 years R.I. for the offence under Section 376 of the IPC and 7 years R.I. for the offence under Section 450 of the IPC.”

As a consequence, what we then see is that it is then observed in para 2.2 that, “Feeling aggrieved and dissatisfied with the judgment and sentence passed by the learned trial Court, the accused preferred an appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the said appeal. Hence, the accused has preferred the present appeal.”

To put things in perspective, the Bench then observes in para 5 that, “We have considered in detail the impugned judgments and orders passed by the High Court as well as that of the learned trial Court convicting the accused. We have also considered in detail the evidence on record, both oral as well as documentary.”

More significantly, it is then held in para 5.1 that, “From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 – prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh – Medical Officer and PW7 – Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 – Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.”

No doubt, whatever Dr Renu Singh who is the Medical Officer has stated in her deposition cannot be dismissed lightly. She has clearly and categorically affirmed that there was no physical or pathological evidence of rape thus belying the claims made by PW5 – the prosecutrix! Not just this, she also affirmed that there was no violence marks on the body of the victim which could corroborate and confirm the claims made by the prosecutrix!

As if this was not enough, it is then further pointed out in para 5.3 that, “As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive.” Even the witnesses did not depose in favour of the prosecutrix! How can all this be dismissed lightly? All these clinching facts went a long way in influencing this judgment!

As it turned out, the Bench then concedes in this same para 5.3 while holding that, “Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.”

While referring to the case of Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133, it is then held in para 5.4.1 that, “In the case of Raju (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:

“11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.””

For the sake of brevity, para 12 has not been mentioned here.

 

Most significantly, it is then held in para 6 that, “Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that, in the morning at 10 O’ clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5-prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.”

Finally, it is then held in the last para 6 that, “In view of the above and for the reasons stated above, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial Court and confirmed by the High Court are hereby quashed and set aside. The appellant is acquitted from all the charges levelled against him and he be set at liberty forthwith, if not required in any other case.”

To sum up, this latest judgment sends out a simple and straight message: Accused cannot be convicted of rape on basis of sole testimony of prosecutrix unless her testimony is of “sterling” quality. What exactly constitutes “sterling” quality is elaborated in detail in Rai Sandeep alias Deepu v State (NCT of Delhi) (2012) 8 SCC 21. It is mentioned in this latest judgment also in para 5.4.2 which states that, “In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under:

“22 In our considered opinion, the “sterling witness” should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.””

On similar lines, it is then also held in next para 5.4.3 that, “In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.” The prosecutrix version could not rise up to be of sterling quality. So it was but palpably natural that it was not accepted to convict the accused just on basis of her sole testimony! Very rightly so!

Sanjeev Sirohi,

SC Directs Parties To Make Public Info On Tainted Candidates

                                  In a most welcome judgment with far reaching implications, the Supreme Court just recently while exercising its inherent jurisdiction in a noteworthy judgment titled Rambabu Singh Thakur Vs Sunil Arora & Ors. in Contempt Pet. (C) No. 2192 of 2018 in W.P. (C) No. 536 of 2011 along with others has taken serious note of the increase in the number of tainted candidates facing criminal cases entering politics. It has issued a slew of directions in this latest, landmark and extremely laudable judgment which we shall discuss later. It is heartening to note that the political parties now would be bound to give reasons for fielding tainted candidates over non tainted candidate to contest an election which is certainly a positive step forward in the right direction.

Before proceeding ahead, let us have a cursory look at the way the developments proceeded that led to this historic order. They are as follows: –

2011 November 18: NGO Public Interest Foundation approaches Supreme Court and seeks disqualification of candidates with serious criminal charges pending against them.

2013 December 16: Centre informs Apex Court that the Law Commission of India is considering de-criminalisation of politics and electoral reforms and will submit a report.

2014 February: Law Commission of India in its 244th report dealing with “Electoral Disqualifications” recommends disqualification of candidates against whom charges have been framed with respect to offences punishable with imprisonment of five years or more.

2016 March 8: A three-Judge Bench of the Apex Court headed by Justice Ranjan Gogoi refers the matter to a Constitution Bench of five Judges.

2018 August 9: The Constitution Bench headed by then CJI Dipak Mishra begins hearing the matter.

2018 September 25: Constitution Bench orders that candidates contesting elections should disclose details of pending criminal cases against him/her in the form provided by the Election Commission. A political party should publish on its website information pertaining to candidates with criminal antecedents. Such details should be published in widely circulated newspapers and electronic media.

2019 March 11: Advocate and BJP national spokesperson Ashwini Kumar Upadhyay files a contempt petition in the Supreme Court, which among other things, points out that despite repeated directions, the government and Election Commission have failed to take steps for decriminalization of politics.

2020 January 24: During the hearing of the contempt petitions, the Election Commission agrees to suggestion that all parties should upload on their website details of candidates with criminal antecedents.

2020 January 31: Apex Court reserves its verdict in the contempt petition.

2020 February 13: Finally the Apex Court delivers the landmark judgment issuing further directions to curb criminalization of politics.

To start with, Justice RF Nariman who authored this commendable judgment for himself and Justice S Ravindra Bhatt of the Bench of Supreme Court sets the ball rolling right at the outset by first and foremost observing in para 1 that, “This contempt petition raises grave issues regarding the criminalisation of politics in India and brings to our attention a disregard of the directions of a Constitution Bench of this Court in Public Interest Foundation and Ors. v. Union of India and Anr. (2019) 3 SCC 224.”

While queering the pitch further, it is then eloquently and elegantly observed in para 2 that, “In this judgment, this Court was cognisant of the increasing criminalization of politics in India and the lack of information about such criminalization amongst the citizenry. In order to remedy this information gap, this Court issued the following directions:

“116. Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of this Court.

116.1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

116.2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

116.3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

116.5. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.””

To put things in perspective, the Bench then observes in para 3 that, “On a perusal of the documents placed on record and after submissions of counsel, it appears that over the last four general elections, there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34% and in 2019 as many as 43% of MPs had criminal cases pending against them.”

While pooh-poohing the political parties for fielding tainted candidates with criminal background, the Bench then minces no words in para 4 to convey in simple and straight language that, “We have also noted that the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place. We therefore issue the following directions in exercise of our constitutional powers under Articles 129 and 142 of the Constitution of India:

1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned and not mere “winnability” at the polls.

3) This information shall also be published in:

(a)          One local vernacular newspaper and one national newspaper;

(b)         On the official social media platforms of the political party, including Facebook & Twitter.

4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.

5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.”

Lastly, it is then held in the last para 5 that, “With these directions, these Contempt Petitions are accordingly disposed of.”

No doubt, words cannot be adequate to express our profuse happiness and unstinted support to this daring and durable judgment authored by Justice RF Nariman for himself and Justice S Ravindra Bhat comprising the Bench of the Apex Court which has compelled even political parties who are worst affected by this latest, landmark and extremely laudable judgment to admire, appreciate and applaud it to the fullest! It will certainly now become difficult for political parties to field easily tainted candidates! There can be no denying or disputing it!

Having said this, it must be added that there should be no room for criminals in politics! It is politicians who are the lawmakers of this country and if rapists and dacoits and other criminals decide on what the law shall be then be rest assured as we have seen till now that no rapists will be hanged and it is only once in 16 years that a poor rapist like Dhananjay Chatterjee will be hanged and that too because he didn’t had the money to spend on lawyers and whose petition was drafted by none other than the prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves which is nothing but the biggest “miscarriage of justice” and who was hanged on circumstantial evidence alone! In last more than 40 years we see only 3 rapists being hanged! Why?

It is because our law makers have ensured that the “discretion bomb” enshrined in IPC in various Sections of 376 in rape laws are never defused as many of them can be affected in future by defusing them and even for repeated offenders there is no mandatory death penalty nor for child rapists! Can on earth there be anything more unfortunate than this?

What a shame that more than 3000 Sikhs were killed in Delhi alone during anti-Sikh riots in 1984 and yet not a single offender has been hanged. Even life imprisonment to a few was handed out after more than 3 decades of that ghastly and dastardly crimes! There are many more such cases! Who ensures this? It is our lawmakers with criminal background who ensure that there are so many loopholes in our law that the offenders are rarely ever punished! It is our lawmakers who decide who will be appointed as Judges of High Court and Supreme Court! They have their share of pie in virtually everything! Then still why they alone should not be subjected to serious scrutiny? We are a democratic country and not dictator country!

It is a national tragedy that for getting even a very small job there is proper police verification and even if one case is found that debars one from getting any job! On the contrary, if that same debarred person wants to contest elections to become an MP or an MLA then even after committing dacoities, rapes, murders and what not they are still eligible as long as the case is not finally decided! Why only MP and MLAs are given a blank cheque?

Why all politicians are united that tainted politicians should not be barred as the cases can be false or frivolous but for getting other jobs there should be strictest scrutiny in all matters and even if someone just lodges a case then the person concerned must be promptly debarred from getting any job? Why Supreme Court never dares to remove this inequality between politicians and people? It is politicians and not people who rule this country and there  must be strictest rules for them which we don’t see in our country!

No prizes for guessing that this alone is the major reason why during election rallies we hear provocative slogans of the worst kind which may shame even a criminal! Why is shouting in Parliament and State Assemblies tolerated? Why are there no strict rules for MPs and MLAs? Why many of them get away even after abusing anyone or even slapping anyone or even beating anyone as we have seen many times in news channels? All this must stop by imposing on them the same rules as are imposed on a common man who after getting selected in any job is expected to behave with utmost civility! All this must end now by treating politicians on par with people and rather imposing more strict conditions on the way they conduct themselves in Parliament and Assemblies and even outside!

As per a 2019 report of the Association of Democratic Reforms (ADR) which analysed 4845 out of 4896 election affidavits of incumbent MPs and MLAs, 1765 MPs and MLAs or 36% were facing criminal trial in 3,045 cases. In Maharashtra, 62% of MLAs are facing criminal cases. 43 out of 70 MLAs who won the Delhi Assembly polls have declared criminal cases against them. The percentage of tainted MLAs in West Bengal, Uttar Pradesh and Tamil Nadu Assemblies in 37%, 36% and 34% respectively!

A report by NGO Association for Democratic Reforms said that 233 of 539 (43%) elected to Lok Sabha in 2019 had declared pending criminal cases in their affidavits. This was its break-up of cases: BJP: 116/301 (39%); Congress: 29/51 (57%); DMK: 10/23 (43%); Trinamool: 9/22 (41%); JD(U): 13/16 (81%). It is most shuddering to see that those who are themselves accused of illegal crimes like mining, violation of forest laws and even face rape and murder charges become senior Cabinet ministers in not just State Government but also in Centre! All this hogwash in the name of “innocent till proven guilty” must end once and for all just like is the case in other services and jobs!

It goes without saying that it is high time and now there must be a final and ruthless strike on the deep roots of crime in politics! The Apex Court in this notable judgment has certainly taken the first step in the right direction! As BJP spokesperson Nalin Kohli says that, “It strengthens the electoral democratic process in enabling the voters to make a choice keeping all factors in mind.” But a lot more needs to be done! A good beginning, however has been made which must be continued further! This historic order certainly paves the way for transparency in a very significant topic: Candidate selection and credentials of the political spectrum which forms the bedrock of our democracy and must be preserved in its pure form. It brooks no more delay!

Let me now conclude by finally quoting SY Quraishi who is the former Chief Election Commissioner whom I truly adore, admire and appreciate and who most elegantly and eloquently points out most rightly in his editorial titled “Verdict prioritises morals over myth of winnability” in Hindustan Times dated February 14, 2020 that, “Political parties have been at the vanguard of opposition against any attempt to cleanse the Indian political arena. The most common argument posed by them has been the misuse of vendetta politics – ironically reflecting the nature of their own political play. They conveniently miss the safeguards suggested by the Election Commission of India: (a) only heinous offences that carry at least five years imprisonment would invite a ban against contesting; (b) the case must have been filed at least six months before elections; (c) only when the charges have been framed by a court would a ban be enforced. The other argument put across by the parties is the noble principle in the criminal justice system – “innocent until proven guilty”. They have no answers when I help them recall that there are 270,000 under-trial prisoners, not yet convicted, not yet even been tried languishing in jails for years with as many as four fundamental rights (liberty, freedom of movement, freedom of occupation and right to dignity) conveniently taken away, in addition to the right to vote. At a time when civil liberties to protest peacefully, a fundamental right under the Constitution of India (Article 19), are being infringed upon by the executive of the day, with our judiciary silently watching, all in the name of national interest, why is the Court shying away from barring criminally charged candidates from contesting in wider national interest? If a fundamental right under Article 19 can be kept aside in wider national interest, why not the right to contest an election, which is not even a fundamental right? The Supreme Court once upheld the importance of the principle of institutional integrity in a case involving the Central Vigilance Commission (CVC). So where is the institutional integrity of the supreme institution of democracy, our parliament, with 43% of its honourable members tainted with criminal cases? This upsetting reality has been reflected in the Democracy Index 2019 by the Economist wherein the world’s largest democracy has recorded the sharpest fall since 2006 to find itself at 51st rank, with the tag of a flawed democracy. If the trend continues, we are not too far from the tag of hybrid democracy, the next ladder of the Index, while we continue to protect our honourable tainted politicians under the legal maxim “innocent till proven guilty.”

Sanjeev Sirohi,

HC Cannot Quash Criminal Proceedings On Basis Of Its Assessment Of Statements Recorded Under Section 161 CrPC: SC

In a latest development, we saw just recently how the Supreme Court in a recent judgment titled Rajeev Kourav Vs. Baisahab And Ors. in Criminal Appeal No. 232 of 2020 (Arising out of S.L.P. (Cri.) No. 1174 of 2017) delivered on February 11, 2020 has explicitly held that criminal proceedings cannot be quashed on the basis of statements recorded before police officials in terms of Section 161 CrPC. The judgment that was authored by Justice L Nageswara Rao for himself and Justice Deepak Gupta minces no words in making it absolutely clear that the interference by High Court’s order under Section 482 CrPC is only warranted in order to prevent abuse of process of court and to secure tends of justice. Very rightly so!

To start with, the ball is set rolling in para 1 of this judgment wherein it is envisaged that, “The above Appeal is filed against the judgment of the High Court of Madhya Pradesh, Principal Seat at Jabalpur by which a criminal proceeding against Respondent Nos. 1 and 3 was quashed in exercise of its power under Section 482 of the Code of Criminal Procedure (for short “the CrPC”).”

While elaborating in detail, para 2 then further queers the pitch by stating that, “The Appellant filed a complaint before the Police Station Kareli, District Narsinghpur on which FIR No. 285 of 2014 was registered on 08.05.2014. According to the complaint, it was urged that Respondent Nos. 1 to 3 subjected Nilu, the wife of the Appellant to harassment due to which she committed suicide along with her two children. The first Respondent is the wife of elder brother of the Appellant. The second and third Respondents are the brothers of the first Respondent. The brother of the Appellant and Respondent No. 1 were living separately. Respondent No. 1 was not satisfied with the land which was given by the Appellant’s father to her husband. Respondent No. 1 along with her brothers, Respondent Nos. 2 and 3, started harassing the family of the Appellant especially Nilu. According to the FIR, Respondent Nos. 1 to 3 used to quarrel with the deceased Nilu. On 05.05.2014, Respondent No. 1 filed a false complaint against the Appellant and his parents. She also intimidated Mahendra Singh Kourav, maternal uncle of the Appellant by threatening him that she would pour kerosene oil and set herself on fire along with her children and implicate the entire family of the Appellant in a criminal case. Mahendra Singh Kourav made a complaint about the said incident of intimidation to the Police Station on 07.05.2014. The Appellant, his family members and Respondent Nos. 1 to 3 were called to the Police Station and the matter was settled for the time being. Thereafter, Respondent Nos. 1 to 3 went to the village Jhumri and assaulted the deceased Nilu. Unable to bear the torture, Nilu along with her children Harisharan aged 1 ½ years and Ramsharan aged 1 ½ years committed suicide by jumping in front of a moving train.”

Furthermore, it is then stated in para 3 that, “A final report was filed on 19.07.2014 on completion of investigation. A petition under Section 482 of the CrPC was filed for quashing the criminal proceedings. It was contended on behalf of Respondent Nos. 1 to 3 before the High Court that the ingredients of Section 306 IPC have not been made out and the proceedings are liable to be quashed. According to Respondent Nos. 1 to 3, the FIR and the charge sheet would only disclose that the entire family of the Appellant was being harassed. The Respondents cannot be held guilty of offence under Section 306 as there is nothing on record to show that they have incited the deceased to take the extreme step of committing suicide.”

To put things in perspective, it is then divulged in para 4 that, “The High Court summoned the record of investigation and perused the statements recorded by the Appellant and his family members under Section 161 CrPC. The High Court held that statements recorded under Section 161 CrPC would show that Respondent No. 1 is a quarrelsome lady who has threatened the Appellant’s family of false implication in a criminal case. The High Court observed that none of the persons whose statements under Section 161 CrPC were recorded have mentioned about the complaint of the deceased and that she was thinking of committing suicide due to the harassment of Respondent Nos. 1 to 3. The High Court recorded a finding that Ramsharan Kourav, the uncle of the deceased, has stated in his statement under Section 161 that the deceased informed him that she is unable to bear the torture of Respondent Nos. 1 to 3 and was thinking of putting an end to her life.”

As it turned out, the Bench in para 5 then observes that, “The High Court observed that the allegations made against Respondent Nos. 1 to 3 at the most constitute an offence under Section 506 IPC for criminal intimidation. Read as a whole, the allegations made against Respondent Nos. 1 to 3 did not make out an offence under Section 306/34 IPC. The High Court further held that ingredients of Section 107 IPC are also not satisfied. In that view, the petition filed by Respondent Nos. 1-3 for quashing the criminal proceeding was allowed.”

Most significantly, the Bench then very rightly and remarkably pronounces in para 6 that, “It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.”

Be it noted, it is then pointed out in para 7 that, “Mr. Shoeb Alam, learned counsel appearing for Respondent Nos. 1 to 3 relied upon several judgments of this Court to submit that allegations only disclose a case of harassment meted out to the deceased. The ingredients of Section 306 and 107 IPC have not been made out. It is submitted that there is nothing on record to show that the Respondents have abetted the commission of suicide by the deceased. He further argued that abetment as defined under Section 107 IPC is instigation which is missing in the complaint made by the Appellant. He further argued that if the allegations against Respondent Nos. 1 to 3 are not prima facie made out, there is no reason why they should face a criminal trial.”

Bluntly put, the Bench then minces no words to convey in simple and straight language in para 8 that, “We do not agree with the submissions made on behalf of Respondent Nos. 1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC (Rajendra Singh v. State of U.P. & Anr. (2007) 7 SCC 378).”

What’s more, the Bench then further adds in para 9 that, “Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondent Nos. 1 to 3 which she was not able to hear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 Cr.P.C.”

No doubt, the Bench then very rightly clarifies in para 10 holding that, “We have not expressed any opinion on the merits of the matter. The High Court ought not to have quashed the proceedings at this stage, scuttling a full-fledged trial in which Respondent Nos. 1 to 3 would have a fair opportunity to prove their innocence.”

Finally, it is then held in the last para 11 that, “For the aforementioned reasons, the judgment of the High Court is set aside and the Appeal is allowed.”

It needs no rocket science to conclude what the Supreme Court wants to convey through this latest judgment! It made it amply clear as has already been reiterated above that the quashing of criminal proceedings cannot be meted out by the High Courts if a prima facie case is made out disclosing the ingredients of the alleged offence! The Bench of Apex Court also sought to make it clear that the appreciation of evidence in a petition under Section 482 CrPC was a matter of exceptional circumstance! All the High Courts ought to follow this while deciding in such cases!

Sanjeev Sirohi