No Party Should Suffer Due To The Act Of Court : Supreme Court

                                     It is good to learn that the Supreme Court has once again just recently on November 28, 2019 very rightly reiterated in a latest judgment titled Odisha Development Corporation Ltd Vs. M/s Anupam Traders & Anr. In Civil Appeal No. 9083 of 2019 (Arising out of SLP (Civil) No. 17627 of 2019) along with others the time tested maxim “actus curiae neminem gravabit” which in simple and straight language means that, “No party should suffer due to the act of Court.” This begs the question: Why should any party ever suffer due to the act of court? This is what has been laid down so precisely and explicitly by the top court in this latest case which must be always followed also by all the Courts!

To start with, this latest, landmark and extremely laudable judgment authored by Justice A.S. Bopanna for himself, Justice R Banumathi and Justice Hrishikesh Roy after granting leave in para 1 sets the ball rolling in para 2 wherein it is observed that, “The appellants in eleven of these appeals are the Odisha Forest Development Corporation Ltd. (“OFDC Ltd.” For short) and the State of Odisha is the appellant in two other appeals. The appeals filed by the State of Odisha relate to the same orders in respect of the same private respondents who were the writ petitioners regarding whom the Odisha Forest Development Corporation Ltd. has also filed the appeal. Further, though separate orders passed by the High Court in different writ petitions relating to various petitioners are assailed in all these appeals, the issue involved is the same. Hence all these appeals were clubbed, heard together and are accordingly disposed of by this common judgment. For the purpose of narration of facts, the case as in Civil Appeal arising out of SLP(C) No. 17627/2019, titled Odisha Forest Development Corporation Ltd. vs. M/s Anupam Traders & Anr. Is taken note, which reads as hereunder.”

While elaborating in detail, para 3 then says that, “The appellant OFDC Ltd. issued an e-tender notification dated 22.11.2016 inviting offers online from intending purchasers for advance sale of phal Kendu leaf (KL) of 2017 crop as per the ‘lots’ indicated in the notification.  The private respondent had responded to the notification and made its offer. The bid was opened on 07.12.2016. The private respondent being the successful bidder was required to execute an agreement and deposit the provisional security deposit of Rs. 5,00,000/- (Rupees Five Lakh). The private respondent herein executed an agreement dated 20.01.2017. In terms of the agreement, on the actual quantity of leaves collected, the additional security deposit covering 25% of the purchase price of the lot was to be deposited before 31.05.2017. The private respondent in the instant case was therefore required to deposit the differential security amount of Rs. 27,14,765/- less, the security amount of Rs. 5,00,000/- (Rupees Five Lakh) already paid.”

While continuing in the same vein, it is then stated in para 4 that, “In view of the requirement to pay the same before 31.05.2017, the private respondent addressed a letter dated 02.06.2017 seeking extension of time to pay the said security amount. The extension sought was declined by the appellant through the communication dated 06.06.2017. Since the amount required to be deposited was not made, the appellant cancelled the agreement dated 20.01.2017 by issuing the notice dated 21.08.2017. Since such cancellation would be at the ‘cost and risk’ of the private respondent, the lot was to be put to re-tender. The appellant accordingly proceeded to issue a fresh e-tender notification on 22.08.2017 for sale of the same ‘lots’ of the phal Kendu leaves.”

Moving on, para 5 then states that, “At that stage the private respondent aggrieved by extension of time not being granted, filed the writ petition in W.P. (C) No. 11498/2017, the same was withdrawn and a writ petition bearing W.P. (C) No. 18718/2017 was filed wherein the order dated 21.08.2017 passed by the appellant cancelling the agreement dated 20.01.2017 as also the subsequent Auction Notice dated 22.08.2017 were assailed. In the said writ petition, interim order against the subsequent auction through notice dated 22.08.2017 was sought. While considering the same, the High Court while allowing the appellant to proceed with the subsequent tender process, had stayed the finalization of the sale subject to the private respondent herein depositing an amount of Rs. 20,00,000/- (Rupees Twenty Lakhs only) within one week with the appellant herein. The said order was passed on 08.09.2017 wherein it was further directed that the said amount would be kept in a separate deposit by the appellant. The application filed by the appellant herein seeking vacation of the interim order was considered and at that stage since the vacation of the stay was not opposed by the private respondent herein, it was vacated on 28.03.2018 due to which the subsequent sale was completed on 24.04.2018. The private respondent herein thereafter sought leave to withdraw the writ petition in W.P.(C) No. 18718/2017 thereby giving up the challenge to the cancellation of the auction process wherein the private respondent had taken part and also the challenge to the subsequent auction which had been conducted by the appellant. The High Court while disposing of the writ petition as withdrawn, despite objection put forth by the appellant herein directed refund of the deposit which was made pursuant to its interim order dated 08.09.2017. The appellant herein is, therefore, aggrieved by the order dated 30.04.2019 only to the extent whereby the High Court has directed refund of the amount available with the appellant.”

Going forward, para 6 then points out that, “The facts in the connected appeals is to the same effect except the variation in the ‘lot’ number, quantity of Kendu leaves which was purchased by each of the private respondents therein and the number of the writ petition filed before the High Court. The names of the different tenderers in the individual writ petitions that were filed and the quantum of amount ordered to be deposited by the High Court will be detailed in later part of this judgment. However, in all the cases the writ petitions have been withdrawn and the refund of the deposit ordered is directed to be refunded. In that view, the basic contention which is common, on consideration which answer all the appeals herein.”

To put things in perspective, it is then stipulated in para 15 that, “In a circumstance of the present nature, when it is noticed that the termination of the agreement itself was for non-deposit of the additional security amount to the extent of 25% of the value, the deposit ordered by the High Court cannot be classified as additional deposit in terms of the contract at that stage. If ultimately the writ petition was taken to its logical conclusion and the private respondents had succeeded in such proceedings, only in such event the said amount could have been considered as a belated payment towards additional security deposit and in any event, the consideration in that regard would be in terms of the directions that would have been issued by the High Court. Though that be the position and presently since the writ petition was withdrawn unconditionally, the question is as to whether the respondents were entitled to refund of the amount as a matter of right when all future action for disposal of the subject Kendu leaves was at the …….. ‘cost and risk’ of the private respondents as per Clause 13 of the agreement which is extracted supra. Hence even if the said amount is not considered as the additional security amount in its true spirit as per the agreement and the right of forfeiture at this stage is not accepted in its technical sense in favour of the appellant, the right of the appellant to recover the loss suffered in terms of the agreement cannot be ignored.”

As it turned out, the Bench does not hesitate to point out in para 19 that, “Presently, though the learned senior advocate for the appellant had furnished a chart showing the original price as against the resale price, thereby projecting the net loss suffered by the appellant, the correctness of the same cannot be adjudicated in a proceeding of the present nature arising out of a writ proceeding. The matter being contractual and also requiring factual determination, the same can only be done in an appropriate proceeding. Therefore, though at this stage the said amount of deposit as ordered by the High Court cannot be considered as additional security deposit nor the actual determination of the loss suffered, when in a circumstance the action of the appellant to re-tender was caused to be deferred, through a proceedings initiated at the instance of the private respondent, the condition to deposit the amount should have been considered by the High Court in the background of its intent to protect the interest of appellant. In that circumstance, when the contention of loss being caused was put forth the amount ought to have been allowed to be retained till the procedure as contemplated in law is followed and a decision is taken though not directly as forfeiture.”

Most importantly, it is then observed in para 20 that, “As noticed above, the appellant in any event would have the right to determine the loss suffered and recover the same in accordance with law as the process to re-tender, was at the ‘…….cost and risk’ of the private respondent as stated in the notice of termination. In that circumstance, when it is prima-facie indicated that due to the delay caused at the instance of the private respondents the value of the Kendu leaves had reduced, thereby causing loss, in view of legal proceedings initiated by the private respondents, the Court will have to bear in mind the maxim actus curiae neminem gravabit, namely, no party should suffer due to the act of Court. In such event, since the interim order was at the instance of the respondent the appellant should in our opinion be permitted to retain the amount and complete the process by providing opportunity to the private respondents.”

As a consequence, it is then observed in para 21 that, “In the above circumstance, the direction to refund the amount unconditionally is not found justified and is accordingly set aside. The appellant shall issue appropriate notice(s) to the private respondents indicating details about the manner in which they computed the loss after conducting the second auction at the ‘cost and risk’ of the private respondent. On receiving response to the same, a detailed consideration be made and a speaking order be passed in that regard. The respondents are at liberty to challenge the speaking order to be passed by the appellant and the process being pursuant to a contractual matter the private respondent if aggrieved are entitled to avail their legal remedy before the appropriate forum, in accordance with law and the entitlement of the amount will be decided therein. As per the speaking order passed by the appellant, if it is found that the loss suffered is within the amount available in deposit, appropriate adjustment should be made and the balance if any, be refunded. On the other hand, if the loss caused is found to be more than the amount in deposit, the amount available shall be adjusted and the appellant would have the liberty of initiating action for the recovery of the additional amount, if any, in accordance with law. Such procedure shall be completed within the outer limit of two months from the date on which a copy of this order is available. Until such time, the amount available in fixed deposit as ordered by the High Court shall be retained in the same position and shall not be appropriated for the benefit of the appellant. The adjustment of the amount by the appellant if made after passing the speaking order, the same shall be without prejudice to the contention of both parties and the same shall be subject to the outcome of the proceedings in the matters where the respondents may challenge the speaking order in accordance with law.” Lastly, para 22 then holds that, “Accordingly, all the appeals are allowed in part with no order as to costs. Pending applications, if any, shall stand disposed of.”

On a concluding note, it may well be said that this commendable judgment once again reiterates the time tested maxim “actus curiae neminem gravabit”, which postulates that, “No party should suffer due to the act of Court.” Very rightly so! It also makes it absolutely clear that if the Court in a given case imposes the condition, the same is to be treated as being with a purpose and not as an empty formality! There can be no denying or disputing it! Certainly, no questions can be raised on this!

Sanjeev Sirohi

Order Convening General Court Martial Can Be Challenged Before AFT: SC

                                       In an interesting and significant development, the Supreme Court in Union Of India & Ors. Vs. P.S. Gill in Criminal Appeal No. 404 of 2013 decided on November 27, 2019 has held clearly and convincingly that an order convening a General Court Martial (GCM) can be challenged before an Armed Forces Tribunal (AFT). While differing with an order of the AFT, the Union of India had approached the top court claiming that an order by which the GCM was convened cannot be the subject matter of an appeal before the Tribunal. It was also contended that the jurisdiction of the Tribunal is only for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the Court Martial.  But it got no relief on this and the top court made the picture clear by holding clearly and convincingly what has been stated above. It merits no reiteration that this should now certainly put to rest all speculations on this important topic.

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice L Nageswara Rao for himself and Justice Hemant Gupta wherein it is observed that, “The Union of India is in Appeal against the judgment of the Armed Forces Tribunal, Principal Bench, New Delhi (hereinafter, ‘the Tribunal’) quashing the order dated 23.02.2010 by which General Court Martial was convened against the Respondent.”

                                To recapitulate, it is then pointed out in para 2 that, “In the year 2005, the Chief of the Army Staff directed an investigation by the Court of Inquiry into the allegations pertaining to irregularities in procurement of ration, as a result of which the quality of supplies for the troops was compromised. A Court of Inquiry was convened on 10.10.2005 by the General Officer Commanding-in-Chief (GOC-in-C) Western Command to identify the Army personnel responsible for the aforementioned irregularities. Twenty-three witnesses were examined by the Court of Inquiry. The Court of Inquiry identified Twelve Army personnel who were prima facie responsible for the said improprieties. The Respondent who was working as the Chief Director of Purchase (CDP), Army Purchase Organisation, Ministry of Defence was one out of the twelve persons against whom a prima facie case was found. Disciplinary action was also initiated against the Respondent by the GOC-in-C, Western Command on 14.06.2006 which was challenged by the Respondent by filing a Writ Petition in the High Court of Delhi. By an order dated 11.01.2007, the High Court quashed the Court of Inquiry on the ground that Rule 180 of the Army Rules, 1954 (hereinafter, ‘the Army Rules’) was violated. However, an option was given to the Appellants to either hold a fresh Court of Inquiry after complying with Rule 180 of the Army Rules or to proceed directly under Rule 22 by hearing the charge without relying on the Court of Inquiry. The Court of Inquiry was re-constituted pursuant to the option given by the High Court. Later, the Appellants sought a modification of the order dated 29.07.2008 and informed the High Court that proceedings would be initiated under Rule 22 of the Army Rules since most of the officers involved had already retired and that it would be difficult to re-constitute a Court of Inquiry. The High Court permitted the Appellants to proceed under Rule 22 with the condition that no reliance can be placed on the old Court of Inquiry. The order of the Chief of the Army Staff by which cognizance was taken of the offences and the attachment order issued on 26.09.2008 were the subject matter of another Writ Petition filed by the Respondent in the High Court of Delhi which was dismissed on 03.10.2008.”

                                   While elaborating further, it is then enumerated in para 3 stating that, “A hearing of the charge under Rule 22 against the Respondent was convened on 08.12.2008 and recording of summary of evidence under Rule 23 of the Army Rules was ordered against the Respondent on 24.12.2008. The Commanding Officer of the Respondent i.e. General Officer Commanding (GOC), 15 Infantry Division found that no offence was prima facie made out against the Respondent. The said view was approved by the GOC, 15 Corps on 28.04.2009. In the meanwhile, the Respondent retired on attaining the age of superannuation on 31.05.2009. However, Section 123 of the Army Act, 1950 was invoked by the Appellants to continue the proceedings against the Respondent. The GOC-in-C, Western Command examined the matter and the recommendations made by the GOC, 15 Infantry Division and GOC, 15 Corps and arrived at a conclusion that a prima facie case was made out against the Respondent. An attempt was made by the Respondent to challenge the findings of the GOC-in-C, Western Command, but in vain. The General Court Martial was convened by a letter dated 23.02.2010. The Respondent filed O.A. No. 147 of 2010, assailing the validity of the order convening the General Court Martial. He also sought for quashing the proceedings of the Court of Inquiry, summary of evidence and the conclusion of the GOC-in-C, Western Command holding him prima facie guilty. He further questioned the invocation of Section 123 of the Army Act against him to continue the proceedings even after his retirement. He also sought promotion to the rank of Major General along with his batchmates.”

                                         As it turned out, para 4 then holds that, “The Tribunal held that a prima facie case to proceed against the Respondent by a General Court Martial was not made out. The Tribunal was of the opinion that even if the entirety of evidence of the prosecution is taken to be true, no offence was made out against the Respondent. The Appellants made an attempt to obtain leave to Appeal under Section 31 of the Armed Forces Tribunal Act, 2007 (hereinafter, ‘the Act’) to approach this Court, which was not entertained. Aggrieved by the judgment of the Tribunal, the above Appeal is filed.”

                                   Be it noted, para 13 points out that, “At the outset, it is relevant to note that the O.A. was filed both under Sections 14 and 15 of the Act. Section 15 confers jurisdiction and power on the Tribunal to entertain appeal against any order, decision, finding or sentence passed by a Court Martial.”

                                   To put things in perspective, it is then pointed in para 14 that, “Section 15 (2) of the Act provides for an appeal which can be filed by the person aggrieved by an order, decision, finding or sentence passed by a Court Martial. The order challenged in the OA in this case is a proceeding by which the General Court Martial was convened. As there was no order, decision, finding or sentence by the Court Martial, an appeal under Section 15 per se is not maintainable.”

                                          While explaining the purpose of Section 14, it is then made clear in para 15 that, “Section 14 enables a person aggrieved to make an application to the Tribunal in any service matter. ‘Service matters’ are defined in Section 3 (o) to mean all matters relating to the conditions of their service, which shall include termination of service, inter alia. There are some matters which are excluded from the purview of the definition of ‘service matters’. There is no dispute in this case that the said exclusions do not come into play.”

                                      Of course, it is then also made clear in para 16 that, “Any matter relating to the conditions of service falls within the definition of ‘service matters’ under Section 3 (o) of the Act and can be the subject matter of an application filed before the Tribunal. ‘Conditions of service’ mean those conditions which regulate the holding of a post by any person right from the time of his appointment till his retirement and even after his retirement including pension etc. Therefore, conditions of service also include dismissal from service [State of Maharashtra v. Marwanjee Desai, (2002) 2 SCC 318].”

                                        To put it succinctly, the foregoing discussion leads the Bench to hold in para 18 that, “It is clear from the above that any proceeding which leads to an order of termination would fall within the expression ‘relating to conditions of service’. In any event, the proceedings initiated against the Respondent cannot be said to be not related to his service. A final order to be passed by the General Court Martial, apart from the imposition of other penalties, might have led to the termination of the service of the Respondent.”

                                      More importantly, the Bench then very rightly holds in para 19 that, “We have no doubt in our mind that Section 14 of the Act which confers jurisdiction over service matters of the Army personnel should receive wide construction. This Court had held that an interpretation which confers jurisdiction should be preferred over an interpretation which takes away jurisdiction. [Mantri Techozone v. Forward Foundation, 2019 SCC Online SC 322 (3JB).”

                                 Most importantly, it is then observed in para 20 that, “We are also conscious that the object with which the Act was made is to provide adjudication of complaints and disputes regarding service matters and not only appeals against the verdicts of the Court Martial. It is trite law that statement of objects and reasons can be used as a tool for interpretation. [S.S. Bola v. B.D. Sharma (1997) 2 SCC 522, State of Maharashtra v. Marwanjee F. Desai, (2002) 2 SCC 318]. The sequitur of the above discussion is that the impugned judgment of the Tribunal does not suffer from lack of jurisdiction.”

                                   Going ahead, it is then held in para 21 that, “Regarding the charges sought to be framed against the Respondent, we do not find any error in the approach of the Tribunal. The material on record was perused by the Tribunal to come to a conclusion that no prima facie case is made out against the Respondent. We do not see any reason to interfere with the said findings.” Finally, it is then held in the last para 22 that, “Accordingly, the Appeal is dismissed.”

                                      To summarise, we see that the Apex Court Bench in this latest, landmark and extremely laudable judgment very rightly upholds the AFT order. It has been very rightly held that an order convening a GCM can be challenged before an AFT. It was also rightly submitted by Mr K Ramesh that jurisdiction of the Tribunal cannot be curtailed on pedantic grounds and the order by which General Court Martial was convened was rightly set aside by the Tribunal. No wonder that the Apex Court Bench comprising of Justice L Nageswara Rao and Justice Hemant Gupta very rightly upheld the bona fide submission of the learned counsel Mr K Ramesh and emphatically ruled in his client’s favour while rejecting the submissions made by Ms. Diksha Rai who was the learned counsel appearing for the Appellant who contended that the judgment of the Tribunal is vitiated due to a jurisdictional error! There can be no denying or disputing it!

Sanjeev Sirohi

No Automatic Conviction U/s 306 IPC For Abetment Of Suicide Merely Because Accused Was Found Guilty U/s 498A IPC: SC

        Coming straight to the nub of the matter, it has to be said that the Supreme Court just recently on November 26, 2019 in a latest, landmark and extremely laudable judgment titled Gurjit Singh vs State of Punjab in Criminal Appeal Nos. 1492-1493 of 2010 has remarkably ruled that merely because an accused is found guilty of an offence punishable under Section 498-A of the Indian Penal Code and the death of the wife has occurred within a period of seven years of marriage, the accused cannot be automatically held guilty for the offence punishable under Section 306 of the IPC by employing the presumption under Section 113-A of the Indian Evidence Act. To sustain a conviction under Section 306 IPC, the Apex Court made it clear that the prosecution has to establish that some act or illegal omission by the accused has driven the deceased to commit the suicide. Very rightly so!

To start with, this commendable judgment authored by Justice BR Gavai for himself and Justice Navin Sinha sets the ball rolling by first and foremost observing in para 1 that, “These appeals by special leave challenge the judgment and order dated 20.2.2009 passed by the Division Bench of the Punjab and Haryana High Court in Criminal Appeal No. 544-DBA of 2001 and Criminal Appeal No. 959-SB of 2000. All the four accused, including the appellant herein (accused No. 3), who is husband of the deceased, were charged and tried by the learned trial Court for the offence punishable under Section 304-B and Section 498-A of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The other accused were the father (accused No. 1), the mother (accused No. 2) and the sister-in-law (wife of brother) (accused No. 4) of the appellant. The Additional Sessions Judge, Hoshiarpur, held that the prosecution had succeeded in proving the case against accused Nos. 1 to 3 for the offence punishable under Section 498-A of the IPC but has failed to prove the case against the said accused (Nos. 1, 2 and 3) for the offence punishable under Section 304-B of the IPC. Insofar as accused No. 4 is concerned, it was held that the prosecution has failed to prove the case against her for both the offences and she was accordingly acquitted of the offence charged. The trial Judge, therefore, convicted the appellant and his father and mother for the offence punishable under Section 498-A of the IPC and sentenced them to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 4000/- each and, in default of payment of fine, to further undergo rigorous imprisonment for a period of three months.”

As a consequence what ensued then is stated in para 2 that, “Being aggrieved by the conviction and sentence under Section 498-A of the IPC, the appellant along with his parents preferred an appeal (being Criminal Appeal No. 959-SB of 2000) before the High Court. So also, the State preferred an appeal (being Criminal Appeal No. 544-DBA of 2001), being aggrieved by that part of the order by which the trial Court acquitted accused No. 4 and also acquitted accused Nos. 1, 2 and 3 for the offence punishable under Section 304-B of the IPC. The High Court upheld the conviction of accused Nos. 1, 2 and 3 for the offence punishable under Section 498-A of the IPC. It also upheld the acquittal of accused No. 4 and further held that, though the prosecution could not bring the case under Section 304-B of the IPC, the appellant herein was liable to be punished for the offence punishable under Section 306 of the IPC. The High Court maintained the order of the sentence and fine as recorded by the trial Judge for the offence punishable under Section 498-A of the IPC. For the offence under Section 306 of the IPC, the High Court sentenced the appellant herein to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of five months. Being aggrieved thereby, the present appeals are preferred by the appellant.”

To be sure, it is then elegantly observed in para 5 that, “The perusal of the record would reveal that though the appellant has disputed the date of marriage to be 04.02.1989, both the courts have disbelieved him and rightly so. The deceased died an unnatural death on 28.09.1994 by consuming poison. As such, the unnatural death occurred within a period of seven years of the marriage. The learned trial Judge has acquitted the appellant for the offence punishable under Section 304-B of the IPC since the prosecution has failed to prove the demand for dowry, while convicting him along with the parents for the offence punishable under Section 498-A of the IPC. The High Court maintained the conviction under Section 498-A of the IPC, however, it also convicted the appellant for the offence punishable under Section 306 of the IPC with the aid of Section 113-A of the Indian Evidence Act, 1872.”

More importantly, it is then rightly envisaged in para 33 that, “Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498-A of the IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was a cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit the suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption.”

What’s more, it is then elaborated in para 34 stating that, “It could further be seen from the evidence on record that the time gap between the last visit of the deceased to her parents with regard to the illegal demand and the date of commission of suicide is about two months. As such, there is nothing on record to show that there was a proximate nexus between the commission of suicide and the illegal demand made by the appellant. In the case of Sanju Alias Sanjay Singh Sengar vs. State of M.P. [(2002) 5 SCC 371] this Court found that there was time gap of 48 hours between the accused telling the deceased ‘to go and die’ and the deceased ‘committing suicide’. As such, this Court held that there was no material to establish that the accused had abetted the suicide committed by the deceased.”

It cannot be lost on us that it is then pointed out in para 35 that, “Another aspect that needs consideration is that the cases wherein this Court has held that the conviction under Section 306 of the IPC was tenable though charge was only under Section 304-B of the IPC, it was found the charge specifically stated that the deceased was driven to commit suicide on account of cruelty meted out to the deceased. However, in the present case, the charge reads thus:

“That you all on 28.9.94 in the area of Village Bohan, the death of Jaswinder Kaur wife of you, Gurjit Singh and daughter-in-law of you, Gurdial Singh and Mohinder Kaur and sister-in-law of Ranjit Kaur, was caused otherwise than under normal circumstances, you all being her relatives, within a period of seven years of her marriage subjected her to cruelty and harassment for all in connection with demand for dowry and thereby committed an offence of dowry death punishable under section 304-B of the Indian Penal Code and within my cognizance.””

Needless to say, a bare perusal of para 35 would make it clear what is then mentioned in para 36 stating that, “It would thus be seen, that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the accused had abetted in commission of suicide by the deceased. In that view of the matter, we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable.”

No wonder, the Apex Court Bench then rightly held in para 37 that, “In the foregoing circumstances, the appeals are partly allowed. Conviction under Section 498-A of the IPC is maintained and the conviction under Section 306 of the IPC is set aside. The appellant is acquitted of the charge under Section 306 of the IPC.” Finally, it is then held in the last para 38 that, “The appellant is stated to be on bail, his bail bonds shall stand discharged and he is directed to surrender within four weeks for serving the remaining period of his sentence, if not already undergone.”

It is quite discernible from the above foregoing discussion that the Supreme Court while citing leading case laws like Ramesh Kumar vs State of Chhattisgarh (2001) 9 SCC 618 minced no words to conclude unambiguously that there shall be no automatic conviction U/s 306 IPC for abetment of suicide merely because accused was found guilty U/s 498A IPC by employing the presumption U/s 113-A of the Indian Evidence Act. It is imperative that to sustain conviction under Section 306 IPC, the prosecution has to establish that some act or illegal omission by the accused has driven the deceased to commit suicide. As nothing of any act or illegal omission by the accused could be proved that could be considered as having driven the deceased to commit suicide, therefore the accused conviction under Section 306 IPC is set aside even while he is held guilty under Section 498A of the IPC! Very rightly so!

Sanjeev Sirohi

Maharashtra – Urgent Floor Test Ordered To Curtail Horse Trading and To Protect Democratic Values: Supreme Court

It is quite significant to note that just recently, the Supreme Court on November 26, 2019 in Shiv Sena And Ors. Vs Union Of India And Ors. in Writ Petition (Civil) No. 1393 of 2019 in the ongoing serious political deadlock in Maharashtra has very rightly ordered an urgent floor test to be held on November 27 at 5 PM so that it may well be pretty clear as to whether the newly sworn in Chief Minister Devendra Fadnavis enjoys majority in the State Assembly or not! This latest order was necessitated after Shiv Sena knocked the doors of the Apex Court along with Nationalist Congress Party (NCP) and Congress. It is also notable that the Apex Court has made some very important observations which shall be discussed later.

To start with, this notable and latest judgment delivered by Justice NV Ramana, Justice Ashok Bhushan and Justice Sanjiv Khanna sets the ball rolling by first and foremost pointing out in para 1 that, “There is no gainsaying that the boundaries between the jurisdiction of Courts and Parliamentary independence have been contested for a long time [Erskine May, Parliamentary Practice, 25th edition, 321 (2019)]. However, there is a need and requirement for recognizing institutional comity and separation of powers so as to tailor judicial interference in the democratic processes only as a last resort. This case pertains to one such situation, wherein this Court is called upon to adjudicate and maintain democratic values and facilitate the fostering of the citizens’ right of good governance.”

While laying the background, it is then recapitulated in para 2 that, “Before we pass any orders, we need to make a brief reference to the factual aspects giving rise to the petition herein. It was well known that there existed a pre-poll alliance between the Bharatiya Janata Party [for short ‘BJP’] and the Shiv Sena, who contested the Fourteenth Maharashtra Legislative Assembly elections jointly. On 24.10.2019, the results for the aforesaid elections were declared and no single party had the requisite majority in the House. On 09.11.2019, the Governor called upon the BJP to indicate its willingness to form the Government, being the single largest party with 105 seats. However, the BJP declined to form the Government on 10.11.2019, as the alliance with the Shiv Sena allegedly broke down.” This clearly manifests that at this point of time the BJP did not have the requisite numbers to prove its majority in the floor of the House!

Moving on, it is then illustrated in para 3 that, “Subsequently, the Governor invited the Shiv Sena to form the Government. In this regard, the Shiv Sena is said to have shown its willingness to stake a claim to form the Government, claiming to have support of the majority. However, the aforesaid endeavor was not fruitful either. Thereafter, the Governor’s effort to seek the Nationalist Congress Party’s [for short ‘NCP’] willingness to stake a claim to form the Government was also not successful. Ultimately, the Governor recommended President’s Rule on 12.11.2019, which was imposed by a Presidential Proclamation on the same day.” This clearly manifests that no party had the requisite numbers and the Opposition were not united in staking claim to form the Government at that point of time. The coalition between Shiv Sena, Congress and NCP took an excruciatingly long time to emerge as a legitimate stakeholder. This alone explains why we saw that President’s rule was imposed.

Needless to say, it is then laid bare in para 4 that, “It is brought to our attention that the Petitioners, i.e. , Shiv Sena, NCP and the Indian National Congress [for short ‘INC’] were in discussion to form a coalition government during this period, and accordingly, a press conference is supposed to have been held on 22.11.2019 regarding the same.”

Going forward, it is then enunciated in para 5 that, “It has been canvassed before us that at 5:47 a.m., on 23.11.2019, the President’s Rule was revoked in exercise of powers conferred by clause (2) of Article 356 of the Constitution. Thereafter, the Governor, by letter dated 23.11.2019 invited Respondent No. 3 to form the Government. The oath of office and secrecy was administered accordingly to Respondent Nos. 3 and 4 at around 8:00 a.m. on 23.11.2019 at Raj Bhavan, Mumbai.” This came in for a lot of stinging criticism from various quarters as transparency in sticking to rules were given a complete good bye!

Most importantly, it is then very rightly held in para 27 that, “We may note that in the present case, oath has not been administered to the elected members even though a month has elapsed since the declaration of election results. In such emergent facts and circumstances, to curtail unlawful practices such as horse trading, to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable Government, we are of the considered opinion that it is necessary to pass certain interim directions in this case. In this context, it is necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not. Since the elected members of the Legislative Assembly are yet to take oath as specified in the III Schedule of the Constitution, and the Speaker is also yet to be elected, we request the Governor of the State of Maharashtra to ensure that a floor test be held on 27.11.2019. The following procedure is to be followed for conducting the floor test:

a.  Pro-tem Speaker shall be solely appointed for the aforesaid agenda immediately.

b.  All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m.

c.   Immediately thereafter, the Pro-tem Speaker shall conduct the floor test in order to ascertain whether the Respondent No. 3 has the majority, and these proceedings shall be conducted in accordance with law. The floor test will not be conducted by secret ballot.

d.  The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same.”

Lastly, it is then held in para 28 that, “Eight weeks time is granted to the learned counsel for the respondents to file their respective counter affidavits. Rejoinder affidavit, if any, is to be filed within four weeks thereafter. The matter to be listed after twelve weeks.”

On a concluding note, it may well be said that the Apex Court has chosen the right path in holding that  a floor test to be held on 27.11.2019. The Apex Court has rightly decided not to delay this crucial matter any further as it would have only served in ensuring that horse trading happens which can never be allowed under any circumstances as it gives a bad name to our democratic country and ensures that corrupt politicians rule the roost! To ensure that no unfair means are resorted to by any of the political party and to ensure that democratic values are  duly protected, the Apex Court has also rightly decided to direct that the  proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same!  It has also been made clear that the floor test will not be conducted by secret ballot. It is a highly commendable ruling and it has rightly relied on the proposition that floor test was the best method to test majority and certainly it must be lauded unequivocally!

Sanjeev Sirohi

Lawyers Of West UP Go On Strike On November 25, 2019

                                         It was decided unanimously by all the lawyers of 22 districts of West UP to go on strike on November 25, 2019 and observe it as “protest day”. The lawyers of West UP are not happy with the statement of Union Law Minister Ravi Shankar Prasad about the creation of a high court bench in West UP which he gave. He in principle agreed with the logic behind the demand for a high court bench in West UP but added a rider that first the state government should recommend and then Centre should accept it and also a Full Court of Allahabad High Court must give a consent for the creation of a bench of high court in West UP! He said that without following this procedure a high court bench cannot be created.

Many senior lawyers of West UP especially in Meerut pooh-pooh the specious argument of Union Law Minister and contend that what he is saying is nothing but nonsense! They vouch that it is only Parliament that is fully empowered to create a high court bench not just in West UP but in any part of UP, Bihar and Jammu and Kashmir as has been provided in the State Reorganisation Amalgamation Act, 1954 and there is no need for recommendation by the state government or high court for it! They even ask that whom is he trying to fool?

In addition, the lawyers of West UP also declared that they stand fully behind UP Bar Council Chairman Hari Shankar Singh who had openly batted for the dire need for a high court bench in West UP! The lawyers also resolved that they would not allow any person to enter any of the court premises in any of the 22 districts of West UP who misbehaves with Hari Shankar Singh in any manner! It may be recalled that the office bearers of High Court Bar of Allahabad had opposed Hari Shankar Singh for this very reason but now he receives overwhelming, unstinted and unequivocal support from all the lawyers of all the 22 districts of Western UP who will meet shortly in Bulandshahr on November 30 to formulate their future course of action on pursuing the struggle for the creation of a high court bench in West UP!

It will take some time for me to come to terms with what I have read in various newspapers including Amar Ujala and Dainik Jagran among others dated 17/11/2019 wherein none other than the UP Bar Council Chairman and senior advocate Harishankar Singh who has an impeccable track record has openly not just espoused the creation of a high court bench in West UP at any cost but has also simultaneously warned that if Centre and UP state government do not pay attention to it there will be a very big movement! Why is Centre and UP state government dead determined that as Jawaharlal Nehru had created a high court bench in Lucknow which is just about 200 km away from Allahabad where High Court itself is located on July 1, 1948 and not at any other place and all Prime Ministers following him from Lal Bahadur Shastri to Narendra Modi himself has never broken this even though Justice Jaswant Singh Commission  which was appointed by Centre itself by the then late Mrs Indira Gandhi government in late 1970s headed by former Supreme Court Judge – Justice Jaswant Singh which recommended 3 high court benches for UP but not one was created even though on its recommendations benches of high court were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? This is most shocking! Why a raw deal was accorded to the more than 9 crore people of West UP living here by not creating even a single bench here and ensuring that both high court and a single bench were only in Eastern UP and that too very close to each other leaving the rest of UP especially regions like West UP, Bundelkhand, Poorvanchal etc high and dry?

It must be mentioned here that UP Bar Council Chairman Harishankar Singh while mentioning about one state and one high court concept disclosed that in Lucknow there is a separate high court bench and there are many states where there are 2 to 3 high court benches. In fact, Assam and Maharashtra have 4 benches! He said that UP is the oldest state and according to its area and population the demand for a high court bench is legitimate which will be fulfilled at all cost! He also disclosed that while he was Vice Chairman in 2008 then also he had prominently raised the demand for a high court bench in West UP! He called upon advocates of West UP to give a memorandum for high court bench which has been given umpteen number of times in the past also but he assured that at any cost he would make the lawyers of West UP meet PM Narendra Modi who represents Varanasi and UP CM Yogi Adityanath! He also pulled back no punches to directly say upfront that if PM Modi and CM Yogi don’t give them time to meet him regarding creation of a bench in West UP then he would change the very history and geography of Varanasi. He also minced no words to make it absolutely clear that he represents more than 3 and a half lakh advocates of UP and he would not be afraid to go even to jail or face judicial contempt. He asserted that he earlier also supported the sacred cause of a high court bench in West UP and in future also shall continue doing so relentlessly! It takes great guts and great determination to do what he is doing so openly!

Come to think of it, it is a matter of greatest national shame and most shocking that Uttar Pradesh which is biggest state amongst all the states in India with maximum population at more than 23 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries and there are only 3 countries including China, India, USA which have more population than UP, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in  the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948, 72 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP especially West UP which has 26 districts and is notorious for lawlessness!

Why is it that UP has just one bench and here too West UP which owes for more than half of pending cases has none? Why a single bench only for UP at Lucknow which is so close to Allahabad just about 200 km away and not anywhere else as in West UP where people have to travel about 700-800 km on an average all the way to Allahabad as there is no bench here? Why a bench for Lucknow since July 1, 1948 for just about 8 districts but no bench for West UP even in 2019 for 26 districts for more than 9 crore people living here which constitutes for nearly half of the population of UP? Can this be justified on any ground and under any circumstances? Certainly not!

Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world yet its former Chairperson Darvesh Yadav just within three days of being elected is brutally murdered right inside court premises in Agra in West UP by pumping three bullets on her? Who can deny that even Supreme Court lawyers are not safe in West UP and this stands vindicated by the recent brutal murder of lady advocate Kuljeet Kaur in Noida in West UP right inside her house? Who can deny that many senior lawyers in the past also have been brutally murdered not just  in West UP but in other parts also as we saw in Basti? Just recently we saw a senior and eminent lawyer in Meerut named Mukesh Sharma being brutally murdered just adjacent to his house while he had gone for walk and similarly in other districts of West UP we saw lawyers being murdered! Another advocate Zahid was murdered in Baghpat! In Muzaffarnagar still another advocate Ameer Saifi was murdered! For how long will West UP’s legitimate claim for a high court bench be consistently ignored?

Needless to say, UP must have maximum benches in India and not minimum as most unfortunately we have been seeing since last 72 years! Centre’s adamant approach to not create any bench anywhere else in UP other than Lucknow is responsible for demand being raised for separate state as we see in Bundelkhand, West UP, Poorvanchal and other parts also! Centre can shamelessly create 2 more benches for a peaceful state like Karnataka at Dharwad and Gulbarga for just 4 and 8 districts even though it had a bench already at Hubli also for just 6 crore people living there but for more than 9 crore people of West UP it is not ready to create even a single bench! Karnataka has just about 1 lakh pending cases still it has 3 benches but for UP which has more than 10 lakh pending cases and West UP alone which has more than 5 lakh pending cases it has none! Same is true for Assam and Maharashtra which have 4 benches even though their pending cases stand nowhere when compared to UP whom Ban ki moon who is former UN Secretary General had slammed as “rape and crime capital of India” and even West UP alone has more cases which is more than both the states put together!

Bluntly put: Is this is what Article 14 which talks about right to equality stands for? Is Centre not making an open mockery of Article 14 of Indian Constitution? Are the people of West UP not entitled to get “speedy justice”, “justice at doorsteps” and “cheap justice” just like the people of Karnataka, Maharashtra, Assam etc? Why is it that the high court and benches of 8 states are closer to West UP as compared to Allahabad? Why even Lahore High Court in Pakistan is closer to West UP as compared to Allahabad High Court? Still should a high court bench not be created here?

Needless to say, Centre must clarify its stand and not maintain a conspicuous and deafening silence on it! Former Attorney General Soli J Sorabjee had clearly said in 2001 while he was Attorney General that, “Centre is fully empowered to create a bench in any of the districts in West UP without any recommendation from the Chief Justice or anyone else in this regard.” Former Supreme Court Bar Association Chairman  Krishnamani had also said that, “Only by the creation of a high court bench in West UP will the people living here get real justice.”CJI Ranjan Gogoi while disposing of a petition on this filed by a lady advocate KL Chitra last year had appreciated the dire need for a bench in West UP but also had said that it is for Centre to decide on it!

One hopes fervently that the new CJI would seriously look into it! He himself being a product of a high court bench at Nagpur should certainly go into it deep and set up benches not just in West UP but also in other needy places in different states as was rightly recommended by 230th report of Law Commission of India also so that more talent comes to the horizon and we see that the “poorest of poor” people get “justice at doorsteps” and they are not compelled to travel a long way to get justice as it is they who have to spend more and suffer innumerable hassles! He must act as Centre has failed to act in last more than 72 years especially in case of UP and Bihar which inspite of being lawless states have just one bench and no bench respectively!

It is most shocking that peaceful states like Karnataka, Maharashtra, Assam, Madhya Pradesh among others have more high court benches but the most lawless states have either just one or no bench at all! This must be set right at the earliest!

What a pity that the lawyers of West UP have been on strikes for even 6 months continuously, for 3 to 4 months continuously and every Saturday since May 1981 till November 2019 and many senior lawyers have even faced serious injuries also while protesting for a bench in last more than 50 years but Centre still has just shown no interest to address it just like the previous governments in Centre and Nehru’s legacy is continuing uninterrupted on this score! Should we be proud of this? Not just this, many UP CM have recommended for a bench in West UP with Mayawati even recommending West UP to be created as a separate state in 1995 but not even a bench or even circuit bench created till now which means that the more than 9 crore people are worse than the 3 lakh people of Andaman and Nicobar islands which has a bench at Port Blair!

What an irony that Centre still feels that not a single bench should be created either in West UP or in any other part of UP even though many Union Cabinet Ministers keep raising the demand for a bench! Can on earth there be anything more shameful than this? In just about two to three weeks in October, more than 3 to 4 lawyers have been murdered in different parts of West UP but still litigants are compelled to travel so far away to Allahabad which is about 700 to 800 km away as Centre is just not ready to create a bench in West UP or even in any other part of UP! This is atrocious! UP needs more high court benches which will be a boon for all people of all religions!

Sanjeev Sirohi

Offence Of Attempt To Rape Can Be Attracted Even If Accused Had Not Undressed Himself: Supreme Court

It is imperative to mention right at the beginning that the Supreme Court just recently on November 20, 2019 in a latest judgment titled Chaitu Lal vs State of Uttarakhand in Criminal Appeal No. 2127 of 2009 has upheld the conviction of a man under Section 376 read with Section 511 of the Indian Penal Code for attempt of rape of a woman. The Apex Court has minced no words to make it clear that the attempt to commit an offence begins when the accused commences to do an act with the necessary intention. Very rightly so!

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice NV Ramana for himself and Ajay Rastogi by first and foremost pointing out that, “The present criminal appeal arises out of the impugned order dated 27.03.2009 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No. 144 of 2006 whereby the High Court dismissed the appeal of the appellant and confirmed the order dated 08.05.1992, passed by the Sessions Judge, Chamoli in S.T. No. 36 of 1991 convicting the accused for offences under Section 354 and Section 511 read with Section 376 IPC. The accused was sentenced to undergo rigorous imprisonment of one year for commission of offence under Section 354 IPC and he was further sentenced to undergo two years Rigorous Imprisonment and pay a fine of Rs. 200/- for commission of offence under Section 511 read with Section 376 IPC.”

To recapitulate, the background of this case is then explained in para 2 which states that, “The brief facts according to the prosecution are that the complainant-victim is the aunt of the accused-appellant. The accused-appellant had earlier also committed indecent behavior with the complainant-victim, which is the subject matter of another criminal proceeding. On 12.01.1991, the accused-appellant after seeing the complainant-victim alone took advantage of the same and attempted to molest her. On the same date at around 10:00 P.M while the complainant-victim along with her daughters was sleeping in her house, the accused-appellant entered into the house of the victim in a drunken state. While the complainant-victim was getting up from her bed, the accused-appellant pounced upon her making her fall into the bed. The accused-appellant thereafter lifted her petticoat, sat upon her and attempted to commit rape. Upon hearing the noise, the daughter of the complainant-victim (P.W.2) got up and beseeched the accused-appellant to let go of her mother. Upon hearing the commotion, certain other villagers interfered, accused-appellant ran away after threatening the complainant-victim. Thereafter, the complainant-victim narrated the entire incident to her husband, pursuant to which they approached the Court of the CJM to file the complaint on 16.01.1991.”

While elaborating further, it is then envisaged in para 3 that, “The trial court, vide order dated 08.05.1992, convicted the accused-appellant for offence under Section 354, pursuant to which he was directed to undergo one-year rigorous imprisonment. He was further convicted for offence under Section 511 read with Section 376 IPC and was directed to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/-. Aggrieved, the accused-appellant approached the High Court in Criminal Appeal No. 144 of 2006. The High Court vide impugned judgment dated 27.03.2009 dismissed the appeal and upheld the order of conviction passed by the trial court. Aggrieved by the aforesaid dismissal, the accused-appellant approached this Court by way of present appeal.”

While elaborating on the points favouring the accused-appellant, it is then stated in para 4 that, “The counsel on behalf of the accused-appellant submitted that accused-appellant has been framed by the complainant-victim pursuant to certain existing enmity. Further, it was pleaded that the FIR was registered with a delay of 3 days and the prosecution has failed to explain the same. Lastly, the evidence of the witnesses does not suggest any liability for offence under Section 511 read with Section 376 of IPC.”

As opposed to what has been stated in para 4, para 5 then points out that, “On the contrary, the counsel for the State has supported the concurrent judgments of conviction passed against the accused-appellant.”

After listening patiently, the Bench then observes in para 6 that, “Heard counsel appearing for both parties. In the present case, the statement rendered by the complainant-victim (P.W.1) is corroborated by the daughter of the complainant-victim (P.W.2) who is an eye-witness to the said incident, husband of the complainant-victim (P.W.3) and independent witness Sohan Lal (P.W.4). The courts below have observed that although these witnesses were subjected to lengthy cross-examination, they have remained persistent in their statements and there was no material contradiction so as to raise any doubt regarding their credibility.”

Even more important, para 7 then discloses that, “The statement of the complainant-victim reveals that the accused-appellant had attempted to molest her on numerous occasions. In order to attract culpability under Section 354 IPC, the prosecution has to prove that the accused applied criminal force on the victim with the intention of outraging her modesty. In the case at hand, prior to the commission of the offence, the accused-appellant had attempted to molest the complainant-victim on the same day itself. Later that night, the accused-appellant forcibly entered the house of the complainant-victim in a drunken state, being aware about the absence of her husband. Thereafter, the accused-appellant, exerting criminal force, pounced upon the complainant-victim and forcibly lifted her petticoat. Although, the complainant-victim pleaded the accused to stop considering the fact that she was his aunt; he responded stating, it does not matter to him. The aforesaid action of the accused-appellant is sufficient to prove his culpability.”

What’s more, it is then enumerated in defence of accused-appellant in para 8 that, “The counsel of the accused-appellant has pleaded that the actions of the accused-appellant do not constitute the offence under Section 511 read with Section 376, as the accused-appellant had not committed any overt act such as any attempt to undress himself in order to commit the alleged act. This Court in the case of Aman Kumar and Anr. V. State of Haryana, (2004) 4 SCC 379 held that-

“11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part…””

It cannot be lost on us that it is then very rightly underscored in para 9 that, “The attempt to commit an offence begins when the accused commences to do an act with the necessary intention. In the present case, the accused-appellant pounced upon the complainant-victim, sat upon her and lifted her petticoat while the complainant-victim protested against his advancements and wept. The evidence of the daughter (P.W.2) also reveals that she pleaded with the accused-appellant to spare her mother. In the meantime, hearing such commotion, other villagers intervened and threatened the accused of dire consequences pursuant to which the accused ran away from the scene of occurrence. Here, the evidence of independent witness Sohan Lal (P.W.4) assumes significance in corroborating the events on the date of occurrence, wherein he has averred that at around 10:00 p.m. he heard noise coming from the house of complainant-victim, pursuant to which he saw the accused-appellant’s wife holding his neck coming out from the house of the complainant-victim. P.W.4 had also overheard the complainant-victim complaining that the accused-appellant was quarreling with her.”

Equally important if not more is what is then most rightly stated in para 10 that, “Herein, although the complainant-victim and her daughter were pleading with the accused to let the complainant-victim go, the accused-appellant did not show any reluctance that he was going to stop from committing the aforesaid offence. Therefore, had there been no intervention, the accused-appellant would have succeeded in executing his criminal design. The conduct of the accused in the present case is indicative of his definite intention to commit the said offence.”

While not accepting the contention of the accused-appellant, it is then disclosed in para 11 that, “The counsel on behalf of the accused-appellant placed reliance upon the case of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) 8 SCC 560 to claim the benefit of acquittal for offence under Section 511 read with Section 376 of IPC. But on careful perusal of the aforesaid decision in the backdrop of facts and circumstances of the present case, both the cases are distinguishable as in the case cited above, it is clearly noted that the accused failed at the stage of preparation of commission of the offence itself. Whereas in the present case before us the distinguishing fact is the action of the accused-appellant in forcibly entering the house of the complainant-victim in a drunken state and using criminal force to lift her petticoat despite her repeated resistance.”

Going forward, while not accepting the delay plea of the accused-appellant, it is then pointed out in para 12 that, “Further, the plea of the accused-appellant regarding the delay in registering the FIR has been duly considered by both the courts below. It has been duly noted that the husband of the complainant-victim (P.W.3) was staying in Nandprayag while the incident occurred in the remote village of Salna. Subsequent to the incident, the complainant-victim first travelled to meet her husband (P.W.3). After narrating the said incident to him, she further travelled to register a complaint before Chief Judicial Magistrate, Chamoli, which is again far off from the place of occurrence. Considering the aforesaid factual scenario, the delay in registering the FIR does not affect the case of the prosecution adversely.”

Finally and perhaps most importantly, it is then held in para 13 that, “Considering the facts and circumstances, the guilt of the accused-appellant has been established beyond doubt. In our opinion, therefore, the courts below have rightly convicted and sentenced the accused. In view of the aforesaid observations, the appeal lacks merit and is accordingly dismissed.” Very rightly so!

In conclusion, it may well be stated that the sum and substance of this noteworthy judgment is that the offence of attempt to rape can certainly be attracted even if the accused had not undressed himself as the attempt to commit an offence begins when the accused commences to do an act with the necessary intention as has been very rightly pointed out in the beginning also! In this leading case we saw how the accused-appellant did not show any reluctance to commit the crime and this despite the irrefutable fact that the complainant-victim and her daughter were pleading with the accused to let the complainant-victim go as has been very rightly pointed out earlier also in para 10. So the accused was without doubt rightly convicted in this case as it was accompanied by the credible testimony of an independent witness Sohan Lal (P.W.4) also!

Sanjeev Sirohi

India Cannot Be Ever Complete Without Muslims

                                  It was most ashaming to see that how the students of Banaras Hindu University’s (BHU’s) Sanskrit Vedvigyan Sankay (SVDVS) went on strike  demanding the cancellation of the appointment of Assistant Professor Feroze Khan and transfer him to another faculty. These students were opposing the appointment of a Muslim to teach Sanskrit in Banaras Hindu University’s Sanskrit studies department! Nothing on earth can be more shameful than this! India as a nation cannot be ever complete without Muslims and this cannot be ever denied or disputed!

Why do we forget that Muslims are an integral part of India just as Hindus? Why do we forget that many Muslims like Ashfaqullah Khan smilingly sacrificed their lives while fighting against the Britishers so that we can gain freedom? Why do we forget that it was Abdul Hamid who was the main hero of 1965 war against Pakistan who destroyed more than 22 tanks of Pakistan and inflicted huge damage on them?

Why do we forget that we are a secular nation where all religion are equal and not a theocratic nation like Pakistan where one religion alone reigns supreme? Why do we forget that Dr Abdul Kalam was also a Muslim who fathered India’s nuclear weapons and India’s missile programmes like that of Agni, Prithvi among others and went on to become the most popular President of India acceptable to people from all religion equally? Why do we forget that Muslims have contributed for the betterment of our country in all fields? Why do we forget that it was Maulana Abul Kalam Azad who had opposed the partition of India on ground of religion till the last even though Jawaharlal Nehru, Sardar Patel and Mahatma Gandhi had agreed to it? Why do we forget that it was Khan Abdul Ghaffar Khan who while opposing partition had said that, “Nehru what have you done? You have made me a foreigner in my own country by agreeing to partition of India on the basis of religion?”

I cannot ever even dream of India without Muslims! I still feel that majority of Indians are secular but such shameful incidents damage the reputation of our country on the international fora! I can never forget how Maulana Mehmood Madani had sharply rebuffed former Pakistani dictator General Pervez Musharraf who when while in India had slammed the condition of Muslims in India saying that, “I am seeing that you want to do politics on the condition of Muslims in India. Don’t worry on this score as 90% Hindus are with us. They shall always remain with us.”

It is good to note that students ultimately decided to call off a fortnight long protest against the appointment of a Muslim to teach Sanskrit in BHU’s Sanskrit studies department, ostensibly swayed by the huge support he received even from the Rashtriya Swayamsevak Sangh (RSS) and BHU Vice Chancellor Rakesh Bhatnagar as reported in Hindustan Times newspaper dated November 23. The local chapter of RSS described “as totally wrong” the protest against the appointment of Dr Firoz Khan at the department of Sahitya in the faculty of Sanskrit Vidya Dharma Vigyan (SVDV). RSS which is the ideological mentor of BJP expressed full support for the appointment of Dr Firoz Khan which is extremely commendable!

While elaborating on this, Jai Prakash Lal who is a senior functionary at the Kashi region RSS while coming out in full support of Dr Firoz Khan said that, “It is the firm, and clear view of the RSS that the protest on communal grounds against a person, who is dedicated to teaching Sanskrit reverentially and has been appointed through a legal selection process, is entirely wrong.”

Good to see that BHU students have now called off their 15-day dharna. It was also good to see that the students associated with Joint Action Committee of BHU took out a march to support the appointment of Firoz Khan as an Assistant Professor in the faculty of Sanskrit Vidya Dharm Vigyan. They expressed their full solidarity with him which has only served to enhance their own image in front of the nation! A senior administrative official of the BHU also said that that 99% of the University staff and administration were behind Mr Khan.

It is also good to note that even the BHU Vice Chancellor Rakesh Bhatnagar took a firm stand in favour of the appointment of Dr Firoz Khan which helped defused the protest! He said without mincing any words that, “There is no question of looking back at the matter as the appointment has been done on basis of pure merit.” Why the hell are then some few students objecting on the baseless ground of religion alone? This is most despicable and deserves no space in a democratic country like India which cannot be ever complete without Muslims!

In my personal life only once I witnessed a Muslim who faced discrimination on the ground of religion about which I have never written earlier. My school friend Rais Khan who studied with me in Class XI in Sagar once way back in 1990-91 while standing alone stood a lot dejected with virtual tears in his eyes. I asked him what happened. He said that wherever I go our class fellows stop talking and slowly start going away and I am left totally alone.

Let me be candid enough to concede that I had never observed this till that time but when I started observing I found that he was right and wherever he used to go and stand except he and me, all used to leave on one ground or the other like going to drink water etc! My friend Rais Khan said inconsolably that, “They feel that I am Muslim and as Mulayam Singh Yadav had ordered firing on Hindus at Karsewaks in 1990 in which many Hindus had died so I should be boycotted.” I became very angry for this unpardonable act of theirs!

I immediately consoled Rais and told him that I am with you so just don’t worry and we both will stay together always and you don’t bother about others. I started slamming hard all those who did such boycott act and asked them whenever they tried to taunt me for talking with him that, “What is the fault of my friend Rais Khan if Mulayam Singh Yadav ordered police to open firing on karsewaks? Did Rais Khan play any role in it? When he has no role then why are you all boycotting him for what has been done by a Hindu politician named Mulayam Singh Yadav? Why no one is boycotting him who is the real culprit and who was the real force behind ordering fire on karsewaks? Why is Rais being singled out just on ground of his being a Muslim?” These words of mine did the magic and slowly all Hindus of my class realized their folly and started talking with him gradually one after the other in a normal manner for which he thanked me but I said that there is no need to thank me as you are my friend and shall always remain so no matter what others may say or behave in the most foolish manner!

I must acknowledge that Rais too stood with me in my trying times and even once told the Principal most bluntly that, “If Sanjeev Sirohi will be expelled from school on any ground whatsoever then expel me also because he always stood by me in my trying times while narrating the whole incident. I will not continue with my studies without my friend Sanjeev Sirohi”. The Principal who was a “Sister” of St Joseph Convent School was visibly shaken and she commended me for standing with him when all others had boycotted him!

Coming back to the subject at hand, it is most heartening to note that even Dinesh Sharma who is UP Deputy Chief Minister has come out strongly in support of Dr Firoz Khan and he categorically and clearly asserted that, “Teachers do not have any religion. Students can always raise questions about the appointment process, whether merit has been compromised in the selection process of the teacher. But students cannot raise questions about the religion of teachers. I was taught Sanskrit by a Muslim teacher, Sir Waliullah Khan, when I was studying at Government Jubilee Inter College in Lucknow. Recently, I felicitated Waliullah Khan Sir at a function held in my school. It was such an emotional moment for me.” I have just no words to appreciate Dinesh Sharma for such a strong stand as he has taken on this sensitive issue even as many others strangely prefer to keep quiet on it! Every Indian must emulate the worthy example of UP’s Deputy Chief Minister Dinesh Sharma if we truly want our nation to grow powerful, progressive and prosperous! India as a nation cannot be ever complete without Muslims and we all must ensure that no Muslim ever feels isolated on any ground whatsoever!

It goes without saying that we must all live like good human beings without discriminating against anyone on ground of religion alone. Deanswift had once rightly said that, “We have just enough religion to make us hate one another but not enough to make us love one another.” We must always remember that India as a nation can be complete only with people from all religion living in peace and harmony and respecting each others sentiments always!

If this does not happen then there will be communal violence, strife and discord which can never be in the long term national interest of our country! Strict legal action must be taken against all those who try to discriminate against anyone on ground of religion, caste, sex or community or any other ground whatsoever! There has to be zero tolerance for intolerance!

Sanjeev Sirohi

BSP MP Danish Ali Demands HC Bench For West UP In LS

It is most heartening to note that repeatedly one after the other leaders both from BJP and Opposition parties like BSP are repeatedly raising the legitimate and compelling demand for the creation of a high court bench in West UP! The latest to join the growing list of MPs demanding the creation of a high court bench in West UP is Kunwar Danish Ali of BSP from Amroha who demanded that it should be created at the earliest! Just recently, we saw how even the Chairman of UP Bar Council – Hari Shankar Singh too had strongly demanded so at the earliest! It seems as if a tsunami is flowing with prominent faces from different parties and different fields all unitedly demanding the creation of a high court bench in West UP which is not going to benefit just one religion or community or caste alone but will benefit people from all religions, all communities and all castes equally!

It is also most heartening to see that Union Law Minister Ravi Shankar Prasad clearly acknowledged that Danish Ali’s demand for a bench in West UP was valid and he assured that he will try on this! Danish Ali rightly urged Centre that when it can finish any law in no time then why can’t it create a high court bench in West UP promptly? Danish Ali rightly drew the attention of the House that the demand for a high court bench in West UP is very old and people have to travel so far due to which they have to waste both their time and money! But the reason cited by Union Law Minister Ravi Shankar Prasad for the delay in creating bench in West UP is ludicrous!

How can Ravi Shankar Prasad overlook what the ex-CJI Ranjan Gogoi while disposing of a petition on this filed by a lady advocate KL Chitra last year had said explicitly while appreciating the dire need for a bench in West UP that it is for Centre to decide on it? How can Union Law Minister ignore that even Justice Jaswant Singh Commission had recommended the creation of a high court bench in West UP? How can Union Law Minister ignore that procedure is nothing but the handmaiden of people and it cannot be given precedence over the long sufferings faced by people since 1947 as both high court at Allahabad and a single bench just 200 km away from Allahabad at Lucknow is in Eastern UP? When a bench can be created at Lucknow on July 1, 1948 then why can’t a bench not be created even 72 years later in 2019 or rather 2020 which is about to start in West UP?

It will take some time for me to come to terms with what I have read in various newspapers including Amar Ujala and Dainik Jagran among others dated 17/11/2019 wherein none other than the UP Bar Council Chairman and senior advocate Harishankar Singh who has an impeccable track record has openly not just espoused the creation of a high court bench in West UP at any cost but has also simultaneously warned that if Centre and UP state government do not pay attention to it there will be a very big movement! Why is Centre and UP state government dead determined that as Jawaharlal Nehru had created a high court bench in Lucknow which is just about 200 km away from Allahabad where High Court itself is located on July 1, 1948 and not at any other place and all Prime Ministers following him from Lal Bahadur Shastri to Narendra Modi himself has never broken this even though Justice Jaswant Singh Commission  which was appointed by Centre itself by the then late Mrs Indira Gandhi government in late 1970s headed by former Supreme Court Judge – Justice Jaswant Singh which recommended 3 high court benches for UP but not one was created even though on its recommendations benches of high court were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? This is most shocking! It is most baffling as to why no government in Centre ever fulfils the legitimate and compelling need for a high court bench in West UP for the more than 9 crore people living here in 26 districts knowing fully well that even Justice Jaswant Singh Commission had recommended that a High Court Bench should be created in West UP?

Why even this BJP government led by PM Narendra Modi who now enjoys majority in both Houses of Parliament is not listening to even its own Union Ministers and MPs from West UP who repeatedly keep raising the demand for a high court bench in Parliament itself? Why is it ignored that even former PM Atal Bihari Vajpayee had himself raised the demand for a high court bench in West UP right inside Parliament while he was leader of Opposition? Why is it ignored that more than half of the pending cases are from West UP as was acknowledged by Justice Jaswant Singh Commission also still why not a single high court bench has been created here since last more than 72 years?

It must be mentioned here that UP Bar Council Chairman Harishankar Singh while mentioning about one state and one high court concept disclosed that in Lucknow there is a separate high court bench and there are many states where there are 2 to 3 high court benches. In fact, Assam and Maharashtra have 4 benches! He said that UP is the oldest state and according to its area and population the demand for a high court bench is legitimate which will be fulfilled at all cost! He also disclosed that while he was Vice Chairman in 2008 then also he had prominently raised the demand for a high court bench in West UP! He called upon advocates of West UP to give a memorandum for high court bench which has been given umpteen number of times in the past also but he assured that at any cost he would make the lawyers of West UP meet PM Narendra Modi who represents Varanasi and UP CM Yogi Adityanath! He also minced no words to make it absolutely clear that he represents more than 3 and a half lakh advocates of UP and he would not be afraid to go even to jail or face judicial contempt. He asserted that he earlier also supported the sacred cause of a high court bench in West UP and in future also shall continue doing so relentlessly! It takes great guts and great determination to do what he is doing so openly!

Come to think of it, it is a matter of greatest national shame and most shocking that Uttar Pradesh which is the biggest state amongst all the states in India with maximum population at more than 23 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries and there are only 3 countries including China, India, USA which have more population than UP, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in  the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948, 72 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP especially West UP which has 26 districts and is notorious for lawlessness!

What a shame that US President Donald Trump openly lauded PM Narendra Modi for winning with more than two third majority in UP elections but still this government cannot summon the courage to even create even a single bench in any hook and corner of UP, leave alone West UP! Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world about three and a half lakh members yet its former Chairperson Darvesh Yadav just within three days of being elected was brutally murdered right inside court premises in Agra in West UP by pumping three bullets on her? Who can deny that even Supreme Court lawyers are not safe in West UP and this stands vindicated by the recent brutal murder of lady advocate Kuljeet Kaur in Noida in West UP right inside her house? Who can deny that many senior lawyers in the past also have been brutally murdered not just  in West UP but in other parts also as we saw in Basti? Just recently we saw a senior and eminent lawyer in Meerut named Mukesh Sharma being brutally murdered just adjacent to his house while he had gone for walk and similarly in other districts of West UP we saw lawyers being murdered! Another advocate Zahid was murdered in Baghpat! In Muzaffarnagar still another advocate Ameer Saifi was murdered! For how long will West UP’s legitimate claim for a high court bench be consistently ignored?

Needless to say, UP must have maximum benches in India and not minimum as most unfortunately we have been seeing since last 72 years! Centre’s adamant approach to not create any bench anywhere else in UP other than Lucknow is responsible for demand being raised for separate state as we see in Bundelkhand, West UP, Poorvanchal and other parts also! Centre can shamelessly create 2 more benches for a peaceful state like Karnataka at Dharwad and Gulbarga for just 4 and 8 districts even though it had a bench already at Hubli also for just 6 crore people living there but for more than 9 crore people of West UP it is not ready to create even a single bench! Karnataka has just about 1 lakh pending cases still it has 3 benches but for UP which has more than 10 lakh pending cases and West UP alone which has more than 5 lakh pending cases it has none! Same is true for Assam and Maharashtra which have 4 benches even though their pending cases stand nowhere when compared to UP whom Ban ki moon who is former UN Secretary General had slammed as “rape and crime capital of India” and even West UP alone has more cases which is more than both the states put together!

Centre must stop shamelessly putting the onus on creating benches on Judges of High Court and Full Bench of High Court instead of itself acting as it has done in case of many other states! It is Centre which gets mandate from people to act to address their long term sufferings! How can Centre shift this also on Judges of High Court who are not elected by people and abjure its own responsibility? How can Centre shamelessly ignore that Justice Jaswant Singh Commission also recommended a bench for West UP which Centre has not implemented even though benches were created for other states many decades back as for instance at Aurangabad in Maharashtra in 1985, Madurai in Tamil Nadu and Jalpaiguri in West Bengal?

If West UP can’t be given bench then Centre must disband all high court benches in India! But the 230th report of Law Commission of India in 2009 recommended creation of more high court benches as it would help people get speedy justice! Senior and eminent advocate Naresh Dutt Sharma who is General Secretary of Meerut Bar has very rightly pointed out that, “State government has several times sent resolutions for creating bench in West UP. Central Action Committee of West UP has also spoken several times to State Government and done gherao also. Centre has the power to create a bench in West UP and ensure that cheap justice is given to people here.”

Sanjay Sharma who is former General Secretary of Meerut Bar more bluntly says that, “Law Minister is misguiding Parliament. Centre can directly create bench in UP. There is no need for any resolution. Centre’s intentions are not noble on this. BJP leaders from West UP are also not determined due to which Bench has not been created here.” Centre must stop dishing out excuses and act boldly as it did in case of abrogating special status of Jammu and Kashmir! Ex-CJI Ranjan Gogoi definitely cannot speak lies and he has categorically and clearly said that it is for Centre to take action on this. He never said that it is for full Bench of Allahabad High Court to decide on this as the Union Law Minister is advocating! There can be no denying that people from all religions numbering more than 9 crore will gain immensely in West UP if a bench is created here!

Sanjeev Sirohi

RTI Applicable To Office Of CJI: SC Upholds Delhi HC Judgment

                                         To start with, in a latest, landmark and extremely laudable judgment titled Central Public Information Officer, Supreme Court Of India vs Subhash Chandra Aggarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010, the Supreme Court on November 13 while exercising its civil appellate jurisdiction has clearly and categorically held that the office of Chief Justice of India is a public authority under the Right to Information Act. But it has also added a rider that “when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. The five Judge Constitution Bench comprising of the then Chief Justice of India – Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna heard this all-important case which will have immense significance as it directly concerns the top court and none other than the Chief Justice of India himself!

To put things in perspective, a Constitution Bench of Chief Justice of India Ranjan Gogoi and all the Judges mentioned in the above para upheld the January 2010 Delhi High Court judgment delivered by the then Chief Justice AP Shah, Vikramjit Sen and S Murlidhar which said that the Apex Court and the office of the CJI would fall within the ambit of the 2005 RTI Act which in turn had upheld the then single Judge of Delhi High Court – Justice Ravindra Bhatt (later elevated as Supreme Court Judge) who had held on September 2, 2009 that, “The Office of the Chief Justice of India is a public authority under the RTI Act and is covered by its provisions”.  The Apex Court dismissed three appeals filed by its Central Public Information Officer and Secretary General challenging the order. While on the one hand, the then CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna rendered one judgment and it was Justice Sanjiv Khanna who wrote the majority opinion on behalf of the Bench, on the other hand, Justices NV Ramana and Justice DY Chandrachud delivered two separate concurring judgments.

Needless to say, the introductory para first and foremost sets the tone and tenor of this landmark judgment by pointing out that, “This judgment would decide the afore-captioned appeals preferred by the Central Public Information Officer (‘CPIO’ for short), Supreme Court of India (appellant in Civil Appeal Nos. 10044 and 10045 of 2010) and Secretary General, Supreme Court of India (appellant in Civil Appeal No. 2683 of 2010), against the common respondent – Subhash Chandra Agarwal, and seeks to answer the question as to ‘how transparent is transparent enough’ under the Right to Information Act, 2005 (RTI Act’ for short) in the context of collegium system for appointment and elevation of judges to the Supreme Court and the High Courts; declaration of assets by judges, etc.”

What follows next in para 2 is stated thus: “Civil Appeal No. 10045 of 2010 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal arises from an application moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India on 6th July, 2009 to furnish a copy of the complete correspondence with the then Chief Justice of India as the Times of India had reported that a Union Minister had approached through a lawyer, Mr. Justice R. Reghupati of the High Court of Madras to influence his judicial decisions. The information was denied by the CPIO, Supreme Court of India on the ground that the information sought by the applicant-respondent was not handled and dealt with by the Registry of the Supreme Court of India and the information relating thereto was neither maintained nor available with the Registry. First appeal filed by Subhash Chandra Aggarwal was dismissed by the appellate authority vide order dated 05th September, 2009. On further appeal, the Central Information Commission (‘CIC’ for short) vide order dated 24th November, 2009 has directed disclosure of information observing that disclosure would not infringe upon the constitutional status of the judges. Aggrieved, the CPIO, Supreme Court of India has preferred this appeal.”

Going forward, para 3 then further enunciates that, “Civil Appeal No. 10044 of 2010 arises from an application dated 23rd January, 2009 moved by Subhash Chandra Agarwal before the CPIO, Supreme Court of India to furnish a copy of complete file/papers as available with the Supreme Court of India inclusive of copies of complete correspondence exchanged between the concerned constitutional authorities with file notings relating to the appointment of Mr. Justice H.L. Dattu, Mr. Justice A.K. Ganguly and Mr. Justice R.M. Lodha superseding seniority of Mr. Justice A.P. Shah, Mr. Justice A.K. Patnaik and Mr. Justice V.K. Gupta, which was allegedly objected to by the Prime Minister. The CPIO vide order dated 25th February, 2009 had denied this information observing that the Registry did not deal with the matters pertaining to the appointment of the judges to the Supreme Court of India. Appointment of judges to the Supreme Court and the High Courts are made by the President of India as per the procedure prescribed by law and the matters relating thereto were not dealt with and handled by the Registry of the Supreme Court. The information was neither maintained nor available with the Registry. First appeal preferred by Subhash Chandra Agarwal was rejected vide order dated 25th March, 2009 by the appellate authority. On further appeal, the CIC has accepted the appeal and directed furnishing of information by relying on the judgment dated 02nd September, 2009 of the Delhi High Court in Writ Petition (Civil) No. 288 of 2009 titled Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal & Another. The CIC has also relied on the decision of this Court in S.P. Gupta v. Union of India & Others (1981) Supp SCC 87 to reach its conclusion. Aggrieved, the CPIO, Supreme Court of India has preferred the present appeal stating, inter alia, that the judgment in Writ Petition (Civil) No. 288 of 2009 was upheld by the Full Bench of the Delhi High Court in LPA No. 501 of 2009 vide judgment dated 12th January, 2010, which judgment is the subject matter of appeal before this Court in Civil Appeal No. 2683 of 2010.”

To be sure, while writing the main judgment, Justice Sanjiv Khanna said the court while stressing the need for balancing transparency and accountability with judicial independence, “should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information.” He also added unequivocally that the “independence in a given case may well demand openness and transparency by furnishing the information.” It is certainly crucial as it will now open the door to RTI requests unlike earlier when the judicial system was rather opaque!

As it turned out, the historic order made it clear that, “Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Of course, the Bench said that the type and nature of the information is also a relevant factor to be considered. It also made it clear that, “Distinction must be drawn between the final opinion or resolutions passed by the collegiums with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegiums had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision…Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open”.

To put it succinctly, it is stated in para 89 by Justice Sanjiv Khanna on behalf of five Judges of Constitution Bench that, “In view of the aforesaid discussion, we dismiss Civil Appeal No. 2683 of 2010 and uphold the judgment dated 12th January, 2010 of the Delhi High Court in LPA No. 501 of 2009 which had upheld the order passed by the CIC directing the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. Such disclosure would not in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of clause (e) to Section 8(1) of the RTI Act is inapplicable. It would not affect the right to confidentiality of the judges and their right to protect personal information and privacy, which would be the case where details and contents of personal assets in the declaration are called for and sought in which event the public interest test as applicable vide Section 8(1)(j) and proviso to Section 11(1) of the RTI Act would come into operation.”

What’s more, para 90 then holds that, “As far as Civil Appeal Nos. 10045 of 2010 and 10044 of 2010 are concerned, they are to be partly allowed with an order of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties. Before a final order is passed, the concerned third parties are required to be issued notice and heard as they are not a party before us. While deciding the question of disclosure on remit, the CPIO, Supreme Court of India would follow the observations made in the present judgment by keeping in view the objections raised, if any, by the third parties. We have refrained from making specific findings in the absence of third parties, who have rights under Section 11(1) and their views and opinions are unknown. The reference and the appeals are accordingly disposed of.”

Simply put, the key findings in this landmark judgment authored by Justice Sanjiv Khanna for himself, CJI Ranjan Gogoi and Justice NV Ramana are as follows:-

1.  The Supreme Court of India and the office of the CJI are two different public authorities. The Supreme Court would necessarily include the office of CJI and other Judges in view of Article 124 of the Constitution.

2.  Ordinarily the relationship between the Chief Justice and Judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise.

3.  The details of personal assets of Judges would not amount to personal information and disclosure of the same will not violate right to privacy of Judges.

4.  Confidentiality has to be maintained in some aspects of judicial administration. It was held rightly that, “Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature.”

While delivering a separate but concurring judgment, Justice NV Ramana first and foremost seeks to make it clear that, “In the domain of human rights, right to privacy and right to information have to be treated as co-equals and none can take precedence over the other, rather a balance needs to be struck”.

On transparency, Justice Ramana very rightly elucidates in para 42 of his judgment that, “Coming to the aspect of transparency, judicial independence and the RTI Act, we need to note that there needs to be a balance between the three equally important concepts. The whole bulwark of preserving our Constitution, is trusted upon judiciary, when other branches have not been able to do so. As a shield, the judicial independence is the basis with which judiciary has maintained its trust reposed by the citizens. In light of the same, the judiciary needs to be protected from attempts to breach its independence. Such interference requires calibration of appropriate amount of transparency in consonance with judicial independence.”

While striking a note of caution, Justice Ramana then very rightly observed in para 43 that, “It must be kept in the mind that the transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold. We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary. While applying the second step the concerned authority needs to balance these considerations as well.”

While welcoming this noteworthy judgment, the 69-year-old RTI activist Subhash Chandra Agarwal who fought an arduous 12-yeart-long battle to ensure that the highest office in judiciary is answerable to people termed the Apex Court’s decision on it as “milestone” in the fight for transparency in public offices. He eloquently said that, “This is a landmark judgment and will prove to be a milestone in the era of transparency. The Apex Court has ruled against its own (office) and said that the CJI comes under the ambit of RTI. I wholeheartedly welcome the Supreme Court’s judgment.”

It cannot be denied that a new study by Vidhi Centre for Legal Policy has found that there is a “yawning gap” between the judiciary’s pronouncements on the Right to Information (RTI) Act and the manner in which the High Courts are implementing it. The report said that, “In particular, the lack of transparency in financial matters of the High Courts is very worrying. Most High Courts do not proactively publish details about their budgets and expenditure. Even fewer High Courts are willing to provide copies of their budgets and audit reports under the RTI Act.” The report has also found that several High Courts have included patently illegal clauses in their RTI Rules and despite Section 8 of the RTI Act restricting the number of grounds for denying information to citizens, the RTI rules of several High Courts have included additional grounds for rejecting requests for information! The report also said that it should be a matter of concern to see the judiciary lagging behind the Centre when it comes to abiding by the letter and spirit of the RTI Act! All this must change if this latest, landmark and extremely laudable judgment is to be taken to its logical conclusion!

Justice DY Chandrachud in his separate yet concurring judgment very rightly and remarkably points out while going the extra mile saying in para 117 that, “If the content of the right and the enforcement of the statute are to possess a meaningful dimension in their application to the judiciary – as it must, certain steps are necessary. Foremost among them is that the basis for the selection and appointment of judges to the higher judiciary must be defined and placed in the public realm. This is the procedure which is followed in making appointments but also in terms of the substantive norms which are adopted while making judicial appointments. There can be no denying the fact that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial officer and making judicial appointments. Knowledge is a powerful instrument which secures consistency in application and generates the confidence that is essential to the sanctity of the process of judicial appointments. This is essentially because the collegiums system postulates that proposals for appointment of judges are initiated by the judges themselves.”

Needless to say, Justice Chandrachud also minces no words to make it clear by adding further after mentioning the essential substantial norms in regard to judicial appointments in this same para 117 that, “The present judgment does not seek to define what the standards for judicial appointments should be. However, what needs to be emphasised is that the substantive standards which are borne in mind must be formulated and placed in the public realm as a measure that would promote confidence in the appointments process. Due publicity to the norms which have been formulated and are applied would foster a degree of transparency and promote accountability in decision making at all levels within the judiciary and the government. The norms may also spell out the criteria followed for assessing the judges of the district judiciary for higher judicial office. There is a vital public interest in disclosing the basis on which those with judicial experience are evaluated to higher judicial office particularly having regard to merit, integrity and judicial performance. Placing the criteria followed in making judicial appointments in the public domain will fulfil the purpose and mandate of Section 4 of the RTI Act, engender public confidence in the process and provides a safeguard against extraneous considerations entering into the process.”

No doubt, this extremely landmark and laudable judgment has sent a very loud and clear message that even CJI is not exempted from the purview of RTI Act. This will clearly serve to increase transparency in the functioning of judiciary. This will also send a loud and clear message that the judiciary has to show more and hide less!

It has certainly set a great precedent for other institutions to follow and it won’t be asking too much if we say that Centre must work relentlessly to ensure that those who are left out of its purview are too brought under its ambit! Even political parties and politicians must be brought fully within RTI’s ambit! CBI which is still out of RTI must also be brought within RTI’s ambit!

It must be mentioned here that when the RTI Act was enacted on October 12, 2005, the CBI came under its purview but the CBI later moved for exemption and this was endorsed by the then Union Law Minister M Veerappa Moily of the UPA government even though Moily himself as head earlier of the Administrative Reforms Commission had recommended that armed forces be exempted from RTI Act but no such recommendation was made for the CBI! Anyway, it has to be conceded that a good beginning has been made by the Apex Court by holding clearly that the office of the Chief Justice of India is a public authority under the RTI Act! But it should not stop just here only! This good tempo must be certainly maintained and all those left out should also be brought under its ambit!

Sanjeev Sirohi

UP Bar Council Chairman Harishankar Singh Openly Calls For High Court Bench To Be Created In West UP At Any Cost

                It will take some time for me to come to terms with what I have read in various newspapers including Amar Ujala and Dainik Jagran among others dated 17/11/2019 wherein none other than the UP Bar Council Chairman and senior advocate Harishankar Singh who has an impeccable track record has openly not just espoused the creation of a high court bench in West UP at any cost but has also simultaneously warned that if Centre and UP state government do not pay attention to it there will be a very big movement! Why is Centre and UP state government dead determined that as Jawaharlal Nehru had created a high court bench in Lucknow which is just about 200 km away from Allahabad where High Court itself is located on July 1, 1948 and not at any other place and all Prime Ministers following him from Lal Bahadur Shastri to Narendra Modi himself has never broken this even though Justice Jaswant Singh Commission  which was appointed by Centre itself by the then late Mrs Indira Gandhi government in late 1970s headed by former Supreme Court Judge – Justice Jaswant Singh which recommended 3 high court benches for UP but not one was created even though on its recommendations benches of high court were created at Aurangabad in Maharashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal? This is most shocking!

Was it Jawaharlal Nehru’s last death wish that not a single bench should be created anywhere in any hook and corner of UP except the one which he himself created at Lucknow in 1948? I have not heard of any such thing! If there was any such last wish of Jawaharlal Nehru then Centre must disclose it! It is most baffling as to why no government in Centre ever fulfils the legitimate and compelling need for a high court bench in West UP for the more than 9 crore people living here in 26 districts knowing fully well that even Justice Jaswant Singh Commission had recommended that a High Court Bench should be created in West UP?

Why even this BJP government led by PM Narendra Modi who now enjoys majority in both Houses of Parliament is not listening to even its own Union Ministers and MPs from West UP who repeatedly keep raising the demand for a high court bench in Parliament itself? Why is it ignored that even former PM Atal Bihari Vajpayee had himself raised the demand for a high court bench in West UP right inside Parliament while he was leader of Opposition? Why is it ignored that more than half of the pending cases are from West UP as was acknowledged by Justice Jaswant Singh Commission also still why not a single high court bench has been created here since last more than 72 years?

It must be mentioned here that UP Bar Council Chairman Harishankar Singh while mentioning about one state and one high court concept disclosed that in Lucknow there is a separate high court bench and there are many states where there are 2 to 3 high court benches. In fact, Assam and Maharashtra have 4 benches! He said that UP is the oldest state and according to its area and population the demand for a high court bench is legitimate which will be fulfilled at all cost! He also disclosed that while he was Vice Chairman in 2008 then also he had prominently raised the demand for a high court bench in West UP! He called upon advocates of West UP to give a memorandum for high court bench which has been given umpteen number of times in the past also but he assured that at any cost he would make the lawyers of West UP meet PM Narendra Modi who represents Varanasi and UP CM Yogi Adityanath! He also pulled back no punches to directly say upfront that if PM Modi and CM Yogi don’t give them time to meet him regarding creation of a bench in West UP then he would change the very history and geography of Varanasi. He also minced no words to make it absolutely clear that he represents more than 3 and a half lakh advocates of UP and he would not be afraid to go even to jail or face judicial contempt. He asserted that he earlier also supported the sacred cause of a high court bench in West UP and in future also shall continue doing so relentlessly! It takes great guts and great determination to do what he is doing so openly!

Come to think of it, it is a matter of greatest national shame and most shocking that Uttar Pradesh which is the biggest state amongst all the states in India with maximum population at more than 23 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries and there are only 3 countries including China, India, USA which have more population than UP, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in  the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948, 72 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP especially West UP which has 26 districts and is notorious for lawlessness!

Why is it that UP has just one bench and here too West UP which owes for more than half of pending cases has none? Why a single bench only for UP at Lucknow which is so close to Allahabad just about 200 km away and not anywhere else as in West UP where people have to travel about 700-800 km on an average all the way to Allahabad as there is no bench here? Why a bench for Lucknow since July 1, 1948 for just about 8 districts but no bench for West UP even in 2019 for 26 districts for more than 9 crore people living here which constitutes for nearly half of the population of UP? Can this be justified on any ground and under any circumstances? Certainly not!

Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world yet its former Chairperson Darvesh Yadav just within three days of being elected is brutally murdered right inside court premises by pumping three bullets on her? Who can deny that even Supreme Court lawyers are not safe in West UP and this stands vindicated by the recent brutal murder of lady advocate Kuljeet Kaur in Noida in West UP right inside her house? Who can deny that many senior lawyers in the past also have been brutally murdered not just  in West UP but in other parts also as we saw in Basti? Just recently we saw a senior and eminent lawyer in Meerut named Mukesh Sharma being brutally murdered just adjacent to his house while he had gone for walk and similarly in other districts of West UP we saw lawyers being murdered! Another advocate Zahid was murdered in Baghpat! In Muzaffarnagar still another advocate Ameer Saifi was murdered! For how long will West UP’s legitimate claim for a high court bench be consistently ignored?

Needless to say, UP must have maximum benches in India and not minimum as most unfortunately we have been seeing since last 72 years! Centre’s adamant approach to not create any bench anywhere else in UP other than Lucknow is responsible for demand being raised for separate state as we see in Bundelkhand, West UP, Poorvanchal and other parts also! Centre can shamelessly create 2 more benches for a peaceful state like Karnataka at Dharwad and Gulbarga for just 4 and 8 districts even though it had a bench already at Hubli also for just 6 crore people living there but for more than 9 crore people of West UP it is not ready to create even a single bench! Karnataka has just about 1 lakh pending cases still it has 3 benches but for UP which has more than 10 lakh pending cases and West UP alone which has more than 5 lakh pending cases it has none! Same is true for Assam and Maharashtra which have 4 benches even though their pending cases stand nowhere when compared to UP whom Ban ki moon who is former UN Secretary General had slammed as “rape and crime capital of India” and even West UP alone has more cases which is more than both the states put together!

Bluntly put: Is this is what Article 14 which talks about right to equality stands for? Is Centre not making an open mockery of Article 14 of Indian Constitution? Are the people of West UP not entitled to get “speedy justice”, “justice at doorsteps” and “cheap justice” just like the people of Karnataka, Maharashtra, Assam etc? Why is it that the high court and benches of 8 states are closer to West UP as compared to Allahabad? Why even Lahore High Court in Pakistan is closer to West UP as compared to Allahabad High Court? Still should a high court bench not be created here?

Needless to say, Centre must clarify its stand and not maintain a conspicuous and deafening silence on it! Former Attorney General Soli J Sorabjee had clearly said in 2001 while he was Attorney General that, “Centre is fully empowered to create a bench in any of the districts in West UP without any recommendation from the Chief Justice or anyone else in this regard.” Former Supreme Court Bar Association Chairman  Krishnamani had also said that, “Only by the creation of a high court bench in West UP will the people living here get real justice.”CJI Ranjan Gogoi while disposing of a petition on this filed by a lady advocate KL Chitra last year had appreciated the dire need for a bench in West UP but also had said that it is for Centre to decide on it!

One hopes fervently that the new CJI would seriously look into it! He himself being a product of a high court bench at Nagpur should certainly go into it deep and set up benches not just in West UP but also in other needy places in different states as was rightly recommended by 230th report of Law Commission of India also so that more talent comes to the horizon and we see that the “poorest of poor” people get “justice at doorsteps” and they are not compelled to travel a long way to get justice as it is they who have to spend more and suffer innumerable hassles! He must act as Centre has failed to act in last more than 72 years especially in case of UP and Bihar which inspite of being lawless states have just one bench and no bench respectively!

It is most shocking that peaceful states like Karnataka, Maharashtra, Assam, Madhya Pradesh among others have more high court benches but the most lawless states have either just one or no bench at all! This must be set right at the earliest! Let’s hope that the CJI designate – Sharad Arvind Bobde will act courageously on this score and do what none of his predecessors has ever dared to do and tended to play safe by always leaving the ball in Centre’s court which has done just nothing at all even though the incumbent Law Minister of India Ravi Shankar Prasad is from Bihar where there is not even a single bench even though we keep hearing so many incidents of crime from there and the PM Narendra Modi himself is from UP representing Varanasi still in his previous term he did just nothing on this score and now also has not shown any interest in it notwithstanding the irrefutable fact that the outgoing CJI Ranjan Gogoi had said that it was for the Centre to decide on it!

What a pity that the lawyers of West UP have been on strikes for even 6 months continuously, for 3 to 4 months continuously and every Saturday since May 1981 till November 2019 and many senior lawyers have even faced serious injuries also while protesting for a bench in last more than 50 years but Centre still has just shown no interest to address it just like the previous governments in Centre and Nehru’s legacy is continuing uninterrupted on this score! Should we be proud of this? Not just this, many UP CM have recommended for a bench in West UP with Mayawati even recommending West UP to be created as a separate state in 1995 but not even a bench or even circuit bench created till now which means that the more than 9 crore people are worse than the 3 lakh people of Andaman and Nicobar islands which has a bench at Port Blair!

But Centre still feels that not a single bench should be created either in West UP or in any other part of UP for undisclosed reasons! Can on earth there be anything more shameful than this? In just about two to three weeks in October, more than 3 to 4 lawyers have been murdered in different parts of West UP but still litigants are compelled to travel so far away to Allahabad which is about 700 to 800 km away as Centre is just not ready to create a bench in West UP or even in any other part of UP! UP needs more high court benches and not more temples which are there in abundance!

Sanjeev Sirohi