Bombay HC Directs State & University To Pay Rs 5 Lakhs Each To Bhima Koregaon Accused Shoma Sen

                In a latest, landmark and laudable judgment titled Shoma Sen D/o Kanti Sen Vs. State of Maharashtra and others in Civil Application (CAW) No. 886/2020 in Writ Petition No. 1857 of 2020 decided just recently on 28th August, 2020 by the Nagpur Bench of Bombay High Court comprising of a Bench of Chief Justice Dipakar Datta and Justice RK Deshpande, it has directed Tukadoji Maharaj Nagpur University and the State Government to pay Rs 5 lakh each to former Head of Post Graduate Department of English at Nagpur University Professor (retired) Shoma Sen towards the payment of gratuity, which was withheld after Sen’s arrest in the Bhima Koregaon violence case in June 2018 that is a month before her retirement. The Court lamented that, “Most unfortunate in such testing times to see a Retd. Teacher left to fend for herself”! Although the Bombay High Court had last month directed the University to pay Rs 5 lakh to Shoma Sen, instead of complying with the order, the University filed an application seeking permission to deposit the said sum with the Court registry and not Shoma Sen.

To start with, the ball is set rolling first and foremost in para 1 of this notable judgment wherein it is observed that, “Hearing was conducted through video conferencing and the learned counsel agreed that the audio and visual quality was proper.”

While elaborating on the facts of the case, it is then stipulated in para 2 that, “The petitioner is a retired Professor of Rashtrasant Tukadoji Maharaj Nagpur University (hereafter “the University”, for short). She retired from service on 31st July, 2020 upon attaining the age of superannuation of 60 years. On 6th June, 2018, the petitioner was arrested and detained in custody for more than 48 hours in connection with investigation of an F.I.R. that was registered, alleging that she had committed offences punishable under the Indian Penal Code, 1860 as well as the Unlawful Activities (Prevention) Act, 1967. In view of her continued detention beyond 48 hours, the petitioner was placed under suspension by an order dated 15th June, 2018 issued by the Vice-Chancellor of the University with retrospective effect from the date of her arrest. For almost two years after her retirement, the petitioner was not paid her retiral dues. This resulted in presentation of this writ petition before this Court on 20th July, 2020. She sought for direction on the University to release pension and other retiral benefits. A co-ordinate Bench of this Court [of which one of us (R.K. Deshpande, J.) was a member], by an order dated 13th August, 2020 directed the University to pay to the petitioner a sum of Rs. 5,00,000/- within a period of one week, without prejudice to the rights and contentions of the parties. It was also directed that such payment would be subject to further adjustment upon final adjudication.”

What ensues next is then stated in para 3 that, “The University, instead of complying with this order of 13th August, 2020, has filed this civil interim application bearing No. 886 of 2020. The prayer made in the said application is to permit the University to deposit a sum of Rs. 5,00,000/- with the Registry of this Court and to appropriately modify the order dated 13th August, 2020 in the interest of justice.”

After noting in para 4 that, “We are now tasked to decide this civil interim application”, it is then observed in para 5 that, “Mr. P.D. Meghe, learned counsel for the petitioner, Mr. Arun Agrawal, learned counsel for the University, and Mr. D.P. Thakre, the learned Additional Government Pleader for the State have been heard at length. We have also perused the materials on record.”

To be sure, it is then stated in para 7 that, “Certain facts need to be noticed first. There is indeed an order placing the petitioner under suspension with effect from the date of her arrest, i.e., 6th June, 2018. This is a deemed suspension, by operation of the Rules. It has been contended by Mr. Agrawal that till 31st July, 2018, i.e. the date of retirement of the petitioner on superannuation, departmental proceedings were not initiated against her by issuance of a charge-sheet. No such proceeding has been initiated even today. Despite such position on facts, it is the contention of Mr. Agrawal that clause (a) of sub-rule (6) of Rule 27 of the Rules is attracted. We shall deal with this part of the argument a little later. It has also been contended by Mr. Agrawal, by referring to clause (b) of sub-rule (6) of Rule 27 of the Rules that the police report (charge-sheet) under Section 173(2) of the Code of Criminal Procedure (hereafter “the Code”, for short) having been filed before the jurisdictional Magistrate on 15th November, 2018, judicial proceedings within the meaning of clause (b) of sub-rule (6) of Rule 27 of the Rules are deemed to have been instituted and, therefore, this is an additional ground for which the petitioner is not entitled to release of either pension or gratuity. It is, therefore, submitted by him that the University may not be required to pay the sum of Rs. 5,00,000/- to the petitioner; instead, the University having shown its bona fide to comply with part of the Court’s order dated 13th August, 2020, the said sum may be directed to be deposited with the Registry.”

More significantly, it is then observed in para 9 that, “Suspension, in law relating to disciplinary action, could either be an interim suspension or a suspension by way of penalty. It is well-known that while an employer initiates departmental proceedings against an employee, the employer may, in his wisdom, proceed to conduct and conclude the departmental proceedings even without placing such employee under suspension. Placing an employee under suspension, as an interim measure, thus is not a sine qua non for concluding departmental proceedings. It is further well-known that an employer may place an employee under suspension, as an interim measure, either in contemplation of departmental proceedings or during its pendency. The suspension could continue till the proceedings are closed by passing a final order or may be revoked even before a final order is passed, if the purpose of placing the employee under suspension does not survive. A deemed suspension of the nature the petitioner has suffered is also in the nature of an interim suspension, since its continuation would be subject to either the judicial proceedings that would follow the arrest or the departmental proceedings that the employer may choose to initiate. It is trite that an order of suspension, in contemplation of departmental proceedings, would always precede issuance of the charge-sheet. Bearing this position of law in mind and reference to “an earlier date” in the relevant clause, the conclusion is inescapable that in the event of an order of suspension preceding the order on which date the charge-sheet is issued, the departmental proceedings within the meaning of clause (a) of sub-rule (6) of Rule 27 of the Rules would be deemed to have been instituted on and from the date the employee is placed under suspension. If no order of suspension is issued and the departmental proceedings are drawn up by way of issuance of charge-sheet, such proceedings would be deemed to have been instituted on and from the date the charge-sheet is issued to the delinquent employee.”

Be it noted, it is then aptly pointed out in para 10 that, “In the present case, no charge-sheet has been drawn up in connection with departmental proceedings. In our view, initiation of departmental proceedings is the sine qua non for the purpose of attraction of clause (a) of sub-rule (6) of Rule 27 of the Rules. We reiterate that if departmental proceedings initiated by issuance of charge-sheet is preceded by an order of suspension, the deemed date of institution of such proceedings would relate back to the date the employee is placed under suspension; whereas, if no order of suspension is issued, the deemed date of institution would be the date on which the charge-sheet is issued to the delinquent employee. Since as on date departmental proceedings have not been instituted against the petitioner by issuing charge-sheet, we hold that Mr. Agrawal’s reliance on clause (a) of sub-rule (6) of Rule 27 is misplaced.”

Of far greater significance is what is then stated eloquently and elegantly in para 11 that, “Insofar as judicial proceedings are concerned, we have noted that on 15th November, 2018, the police report under Section 173(2) of the Code has been filed before the jurisdictional Magistrate. Considering the length of time that has passed subsequent thereto, we shall assume that even cognizance of the offence has been taken by the said Magistrate under Section 190 of the Code. We have also noted clause (c) of Rule 130 of the rules prescribing that no gratuity shall be paid until conclusion of departmental or judicial proceedings and issue of final orders thereon. However, what is of vital importance is that as on 31st July, 2018, i.e., when the right to receive gratuity accrued in favour of the petitioner, there was no existence of judicial proceedings instituted against her. In terms of Rule 129A of the Rules, if payment of gratuity is delayed beyond three months from the date of retirement, interest is required to be paid; therefore, at least within such period the gratuity should have been released. The University cannot be allowed to take advantage of its own lapse and contend that it is justified in not processing the papers for release of gratuity in favour of the petitioner having regard to the provision of Rule 27 of the Rules. The argument is rejected as misconceived.”

Briefly stated, para 12 then underscores that, “The decision in Sri Rabindranath Choubey (supra) has been perused. What is significant is that disciplinary proceedings had been initiated against the respondent before the Supreme Court prior to his superannuation from service and, therefore, the Court was called upon to decide whether gratuity could be withheld because of pendency of such proceedings. The ratio of such decision can hardly be applicable in a case of the present nature where neither departmental proceedings nor judicial proceedings were pending as on 31st July, 2018, being the date on which the petitioner retired on superannuation. Law is by now settled that one additional or different fact can make a world of difference between conclusions in two cases even where the same principles are applied in each case to similar facts. Therefore, while relying on the decision of the Supreme Court in The Regional Manager and another v. Pawan Kumar Dubey, reported in (1976) 3 SDCC 334, we have no hesitation to hold that the ratio of the decision in Sri Rabindranath Choubey, (supra) would have no application here.”

More damningly, the Bench then minces no words to hold in para 15 that, “We have also noticed from the pleadings that the University has dragged its feet in processing the pension papers. Such an allegation has come from the side of the State. It is most unfortunate that during these testing times, a retired teacher has been left to fend for herself without the respondents taking adequate care and interest to clear her dues.”

As a corollary, it is then held in para 16 that, “In such circumstances, we find no reason to allow the prayer of the University, as made in the civil interim application, to deposit Rs. 5,00,000/- with the Registry of this Court as well as to modify the order dated 13th August, 2020. The application is absolutely without merit and it is accordingly dismissed, without any order for costs.”

Furthermore, it is then also held in para 17 that, “We direct the University to make over the sum of Rs. 5,00,000/- in favour of the petitioner within a week from date of receipt of a copy of this order. Since the petitioner is in custody, the sum may be transferred to her bank account by NEFT. Payment and receipt of such sum, in terms of this order, shall be without prejudice to the rights and contentions of the parties.”

Going ahead, it is then also held in para 18 that, “Since the petitioner could be entitled to much more on account of gratuity and also that she is at least entitled to provisional pension in terms of sub-rule (4) of Rule 27 of the Rules and has not been paid a farthing since her retirement, we direct the State to release in favour of the petitioner an additional sum of Rs. 5,00,000/-, on adhoc basis, within a period of thirty days.”

Finally, to say the least, it is also directed in para 19 that, “We grant the State two months time to process the petitioner receives her dues of provident fund between 1987 and 2009 without undue delay.”

In essence, the crux of this significant ruling is that no teacher can be deprived of her gratuity and her pay for serving as a teacher just because her name figured in some violence case! The University has been rightly rapped for depriving her of her payment! Similarly the State of Maharashtra too has been rapped! Very rightly so!

Sanjeev Sirohi

Extremism And Violence Has Permeated Through Pakistani Society; Need To Discourage Crime Against Women: Pakistan SC

       In a well-reasoned, well-researched, well-analysed and well-articulated judgment titled Muhammad Abbas Vs The State in Jail Petition No. 499 of 2015 (On appeal against the judgment dated 8.9.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 300-J/2013 and Murder Reference No. 138/2011), the Supreme Court of Pakistan just recently on August 24, 2020 has observed that extremism and violence has permeated through Pakistani society and it has been brutalized. Not enough is done to ensure that crimes against women do not take place. The Court was also of the view that, “Respect and language play an important role to bring about a positive change in society and using terminology such as ‘Ghairat’ or honour is not helpful.” Very rightly so!

To start with, in this latest, landmark and laudable judgment authored by Justice Qazi Faez Isa for himself and Justice Sardar Tariq Masood of the Pakistan Supreme Court, the ball is set rolling in para 1 wherein it is observed:

“Criminal Miscellaneous Application No. 1636 of 2015: This jail petition has been filed with a delay of 57 days. For the reasons mentioned in the application, the delay is condoned and the petition is entertained for hearing.

Jail Petition No. 499 of 2015: On 20 February 2020 Mr. Tariq Mehmood Bhatt, learned Advocate of the Supreme Court, was appointed to represent the petitioner at State expense, as the petitioner was imprisoned and unrepresented.”

While narrating the brief facts of this notable case, it is then stated in para 2 that, “Muhammad Asghar, the complainant, reported to the police that his sister was killed by her husband, the petitioner. The crime was witnessed by Muhammad Asghai (PW-9) and a neighbor Shahadat (PW-10). The crime was stated to have been committed at 1 am on 17 May 2009 and FIR No. 210 was registered at 5.50 am at Police Station Baraghar, District Nankana Sahib. The petitioner was tried by the learned Sessions Judge, Nankana Sahib and was convicted for the qatl-i-amd (murder) of his wife Mst. Saima Bibi (‘the deceased’ under Section 302(b) of the Pakistan Penal Code (‘PPC’) and sentenced to death. He was also directed to pay compensation of fifty thousand rupees to the legal heirs of the deceased and in default of payment to undergo six months simple imprisonment. Murder Reference, to confirm the death sentence, was submitted to the Lahore High Court, Lahore and the petitioner appealed his conviction and sentence. The learned judges of the High Court upheld the conviction of the petitioner but reduced his sentence of death to one of imprisonment for life because the petitioner had fired only once upon the deceased.”

To state the ostensible, the killing of any person cannot be justified and this is underscored in para 13 wherein the key point is that, “For Muslims the Holy Qur’an is the word of God. Killing a person is abhorrent and a grave sin [Holy Qur’an, surah An-Nisa (4) verse 93 and surah Al-Maidah (5) verse 32]. The Holy Qur’an also does not mandate the punishment of death for the offence of adultery [Holy Qur’an surah An-Nisa (4) verse 15 and surah An-Nur (24) verse 2]. If the petitioner suspected his wife of infidelity he should have followed the path prescribed by the Holy Qur’an and the law of Pakistan to resolve the matter.”

Briefly stated, the key point that is contained in para 14 is that, “Making a false allegation of adultery is an offence under section 496C IPC and also constitutes an offence of qazf under the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Published in the Gazette of Pakistan, Extraordinary, Part I, on 9 February 1979). The offence of murder and the offences of false allegation of adultery are separate and distinct offences. The woman or the girl who is killed in the name or pretext of honour has no chance to redeem her honour. She is deprived of both her life and reputation.”

Furthermore, it is then observed in para 15 that, “The petitioner who professes to be a Muslim did not follow the methodology commanded by Almighty Allah and the law of Pakistan to resolve his suspicions about this wife. The petitioner then couched his criminal and un-Islamic conduct by stating he became enraged to see his wife in the company of a man and on account of his ghairat he killed her. Almighty Allah loves those who amongst others restrain their anger [Holy Qur’am surah Al-Imran (3) verse 134]. To become enraged is not an admirable trait nor is ghairat. The word ghairat nor the Arabic ghairatan is used in the Holy Qur’an. The Holy Qur’an also does not permit killing on the ground of adultery, let alone on the ground of ghairat (ghairatun in Arabic), nor prescribes a lesser punishment for such killings. The law of Pakistan also does not permit this. It is inappropriate to interpret Chapter XVI of the PPC, which includes section 302 PPC, by disregarding the requirements of Section 338-F PPC, which necessitates seeking guidance from the Holy Qur’an and Sunnah. Reference may also be made to Article 227 of the Constitution of the Islamic Republic of Pakistan (‘the Constitution’) which mandates that, ‘All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah’.”

Be it noted, the Bench of Supreme Court of Pakistan then concedes in para 16 that, “Pakistan has one of the highest, if not the highest per capita honour killings in the world and predominantly the victims are women. By stating that murder was committed on the pretext of ghairat (honour) the murderer hopes to provide some justification for the crime. It may also elevate the murderer’s social status with those not from familiar with Almighty Allah Commands in the Holy Qur’an. This is unfortunately, more so because there is no honour in such killings. Parliament was rightly concerned with the prevalence of such killings and enacted legislation to dissuade, if not stop such crimes. It did so by ensuring that offenders do not avail of the benefit of section 302(c) PPC, for which the maximum punishment is twenty-five years imprisonment but which does not prescribe a minimum punishment. Parliament specifically stipulated that such crimes attract clause (a) or clause (b) of section 302 PPC, for which the punishment is either death or imprisonment for life. However, the Muhammad Qasim case relied on certain obiter observations in the Muhammad Ameer case and after creating another exception to the erstwhile section 300 PPC this exception was applied to bring the offender’s case within the ambit of section 302(c) PPC, even though the Muhammad Ameer case had held that an honour crime did not come within the ambit of section 302(c) PPC. The language of the proviso read with the definition of fasad-fil-arz is clear. If for the sake of argument it is assumed that there was some ambiguity in the proviso, the statement and objectives introducing it had it removed. The provisos (the one inserted in the year 2005 or the one in year 2016) did not intend to nor created another exception for one who kills in the name or pretext of honour in the erstwhile section 300 PPC, nor did it state that such crimes came within the ambit of section 302(c) PPC; on the contrary it said the opposite.”

In this context, the Bench then also makes it a point to mention in para 17 that, “It may be clarified that we have relied on the law with regard to statement of the accused recorded under section 342 as expounded by this Court in the Faiz case, which was a judgment by a five-member Bench and not on the Mohammad Qasim case, a judgment which was by a three-member Bench. We have also not relied on the obiter observations of another three-member Bench in Muhammad Ameer case. In the Muhammad Qasim case the mandatory requirement to seek guidance from the Holy Qur’an and Sunnah, stipulated in 338-F PPC, was not done, therefore Muhammad Qasim cannot be categorized as having decided a question of law or is based upon or enunciates a principle of law (Article 189 of the Constitution of the Islamic Republic of Pakistan).”

No doubt, the Bench then more significantly points out in para 18 which merits mention particularly the relevant part that, “It needs restating that killing is never honourable. And, a murder should not be categorized as such. It will help deter such killings if the term ghairat is not used to describe them. It is also inaccurate to translate ghairat into English as honour. The word ghairat does not have an exact English equivalent. A more accurate translation of the trait, of ghairat would be ‘arrogance’ and the one with such trait is an ‘arrogant’ person.”

Most significantly, the Bench then further very rightly holds in para 19 that, “Extremism and violence has permeated through Pakistani society and it has been brutalized. Not enough is done to ensure that crimes against women do not take place. Respect and language play an important role to bring about a positive change in society and using terminology such as ghairat or honour is not helpful. The Constitution mandates that ‘tolerance and social justice, as enunciated by Islam, shall be fully observed’ (Preamble and Objectives Resolution of the Constitution of Republic of Pakistan which is required to be given ‘effect’ to (per Article 2A), Almighty Allah commends humility [Holy Qur’an, surah Al-A’raf(7) verse 94], loves kindness [Holy Quran, surah Al-Ma’idah (5) verse 13] and calls upon his slaves to overlook human faults and cultivate gracious forgiveness [Holy Qur’an, surah Al-Hijr (15) verse 85]. One of the Principles of Policy set out in the Constitution requires that, ‘Steps shall be taken to ensure full participation of women in all spheres of national life (Article 34 of the Constitution of the Islamic Republic of Pakistan). Therefore, adverse assumptions, as made in the present case, cannot be permitted. Another Principle is that ‘The State shall protect the marriage, the family, the mother and the child’ (Article 35 of the Constitution of the Islamic Republic of Pakistan). When women and girls are not protected but rather killed in the name or on the pretext of honour the family is destroyed.”

It goes without saying that the Pakistani establishment and the Pakistani ruling party must take serious note of what has been said so clearly, categorically and convincingly by none other than the Supreme Court of Pakistan itself! The whole world should also now take very serious note of it and reputed international organizations instead of taking potshots on Prashant Bhushan’s case should concentrate their energies on what the Pakistan Supreme Court has said so bluntly on honour killings, extremism and hatred that has permeated through Pakistani society! This is the crying need of the hour also!

Needless to say, honour killings and extremism cannot be justified under any circumstances whatsoever! Pakistan is on the verge of being blacklisted because of extremism and violence. It must wake up at least now and start taking reformative steps!

Sanjeev Sirohi

Institution Of 2 Bail Petitions Arising Out Of The Same FIR By The Same Petitioner Is A Matter Of Serious Concern: HP HC Issues Slew Of Directions

In a latest, landmark and extremely laudable judgment titled Sunil Kumar v. The State of Himachal Pradesh in Case No. : Cr.MP(M) No. 1303 & 1321 of 2020 delivered just recently on August 31, 2020,  the Himachal Pradesh High Court expressed its concern over the case of the institution of two bail petitions arising out of the same FIR by the same petitioner. It is most heartening and refreshing to learn that the Bench of Justice Ms. Jyotsna Rewal Dua who authored this notable judgment also directed the Registrar General of the court to try and evolve software wherein filing of more than one bail petition in this Court by the same petitioner during the pendency of previous bail petition, arising out of same FIR can be detected and consequent steps can be taken at the threshold. Very rightly so!

To start with, the ball is set rolling in para 1 of this judgment wherein it is first and foremost specified that, “Two separate bail petitions under Section 439 of the Code of Criminal Procedure has been preferred by the same petitioner, i.e. Sunil Kumar, through two different lawyers. In both these petitions, prayer is for release of petitioner on bail in FIR No. 164 of 2019, registered on 01.11.2019 under Sections 20 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) at Police Station Dharamshala, District Kangra, HP.”

While elaborating further on the two bail petitions, it is then pointed in para 2 that, “Facts regarding simultaneous filing of two bail petitions by one petitioner:-

2(i). Bail Petition, being CrMP(M) No. 1303 of 2020, was instituted through an e-mail on 04.08.2020 on a Power of Attorney signed by the petitioner with endorsement of the Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 14.07.2020. Alongwith this bail petition, an order passed on 02.01.2020 by the learned Special Judge-III, Kangra at Dharamshala, in Bail Application No. 1-D/2020, titled Atul Chambyal  Versus The State of Himachal Pradesh has been appended. Vide this order, Atul Chambyal, a co-accused in the FIR was enlarged on bail. Another order dated 14.07.2020 passed by the learned Special Judge-II, Kangra at Dharamshala, declining the bail application of the petitioner has also been appended. In para 26 of bail petition, an averment has been made that “no other same or similar pending application for the grant of bail save and except the bail application No. 171-D/XXII/2020, which was filed before the Ld. Special Judge-III, Kangrta at Dharmashala as mentioned at para-4 of the bail petition, and neither is the same or similar application/petition for grant of bail pending adjudication before any other Court of law including the Hon’ble Apex Court”. The bail petition is not supported by any affidavit.

2(ii). Second bail petition, being Cr.MP(M) No. 1321/2020, was also instituted through an e-mail on 06.08.2020. It is also on the power of attorney signed by the petitioner with the endorsement of the same Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, dated 30.07.2020. Though no order or document has been appended alongwith the bail petition, but the petition records the factum of rejection of bail application of the petitioner by the learned Special Judge-II, Kangra at Dharamshala, vide order dated 14.07.2020 and enlargement on bail of co-accused Atul Chambyal by the learned Special Judge-III, Kangra at Dharamshala, vide order dated 02.01.2020. In para-9 of this petition, there is a specific averment to the effect that no similar petition had been previously preferred by the petitioner in this Court on same cause of action. It is apposite to reproduce para-9 of the second bail petition hereinafter:-

“9. That no such or similar petition has earlier been filed by the petitioner either in this Hon’ble Court or in the Hon’ble Supreme Court of India or any other court on the same cause of action except the one mentioned above which was dismissed by the Ld. Special Judge-II, Kangra at Dharamshala, District Kangra (H.P.) vide order dated 14.07.2020.”

This bail petition is also not supported by any affidavit.

2(iii). Both these petitions, i.e. Cr.MP(M) Nos. 1303 of 2020 and 1321 of 2020, were listed on 06.08.2020 and 07.8.2020, respectively and incidentally before this Court, when the respondent-State was directed to file status reports in both these matters before the next date of hearing, given as 19.08.2020 and 20.08.2020, respectively. On 19.08.2020, when the first bail petition (Cr.MP(M) No. 1303/2020) was listed, it was pointed out by the Court Reader that Cr.MP(M) No. 1321 of 2020, arising out of the same FIR, is listed on 20.08.2020. Resultantly, both the above petitions were ordered to be listed together on 20.08.2020. On 21.08.2020, both the learned counsel representing the same petitioner in separate bail petitions professed to have separate and positive instructions for proceeding ahead with their separate bail petitions. In view of emergence of serious related issues, Mr. Virender Singh Chauhan, learned Senior Counsel graciously accepted the request to assist as an amicus curiae in the matter.”

To put this in perspective, it is then pointed out in para 3 that, “During hearing of the case, learned counsel for the petitioner in Cr.MP(M) No. 1303 of 2020 stated that the brief was handed-over to him by a local lawyer, whereas learned counsel for the petitioner in Cr.MP(M) No. 1321 of 2020 submitted that he got the brief from the parents/relatives of the bail petitioner. How in quick succession and at whose instance, the Power of Attorneys of the petitioner (in custody) were obtained is not forthcoming. Learned Additional Advocate General has also stated at the bar that the Assistant Superintendent Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh, has not maintained any record that at whose instance, he had endorsed, attested and issued two Power of Attorneys signed and thumb impressed by the same petitioner. While hearing of the case was in progress, learned counsel for the petitioner in Cr.MP(M) No. 1321 of 2020 requested for permission to withdraw the bail petition while marking his presence as counsel in Cr.MP(M) No. 1303 of 2020 alongwith the original counsel therein. This request was not opposed by learned counsel for the petitioner in Cr.MP(M) No. 1303 of 2020.”

More damningly, it is then stated ahead in this same para 3 that, “Institution of two bail petitions arising out of the same FIR by one petitioner is a matter of serious concern. Both these petitions have been filed almost simultaneously in this Court. Though, incidentally, these two petitions have been listed before this Court, but there was always a chance of theirs being listed in different Hon’ble Courts. This Court expresses concern over the misconduct of the bail petitioner in simultaneously filing two parallel bail petitions before this Court in the same case without divulging the complete details. The conduct of the petitioner is appalling. Filing of two petitions by same petitioner arising out of same FIR amounts to abuse of judicial process and is strongly condemned. The Court expresses its disapproval over the manner in which simultaneously two bail petitions have been filed in this Court and records its indignation. The Court was inclined to take action against such conduct. However, on the fervent request made by learned counsel for the petitioner(s) and supported by the learned Amicus Curiae, Cr.MP(M) No. 1321 of 2020 is ordered to be closed as withdrawn with strong warning to the petitioner/his relatives not to indulge in such activities in future.”

Most significantly, it is then underscored in this same para 3 ahead that, “However, before proceeding with the merits of the case in Cr.MP(M) No. 1303 of 2020, in order to ensure that such like incidents do not happen in future, following observations and consequent directions need to be noticed:-

3(a). Separate status reports in both these bail petitions have been filed by the respondent-State. These status reports are verbatim the same. There is no reference in either of the status reports about the same petitioner having filed another bail petition in this Court under the same FIR. These are serious lapses. It has also come to the notice of this Court that invariably, the status reports filed by the respondent-State do not reflect any history of previous bail petitions filed by the concerned petitioner. Such record should also be maintained by the investigating agency. It is necessary that the status report filed by the State should reflect details of all previous bail petitions filed by the petitioner irrespective of the fact whether the same were eventually withdrawn by him or not. Status reports should also clearly indicate criminal history of the accused persons involved in the FIR, as available with the investigating agency. Directed accordingly. Director General of Police, Himachal Pradesh, is therefore directed through the learned Additional Advocate General to forthwith issue necessary orders in this regard to all concerned and ensure compliance.

3(b). In bail matters, lawyers are being engaged, inter alia, on the basis of Power of Attorney of the accused (in custody) endorsed and attested by the Jail Superintendents. In the present case also, both the bail petitions were filed on the strength of petitioner’s Power of Attorneys attested and endorsed on different dates by the same concerned Jail Superintendent. Learned Additional Advocate General as noticed above, has submitted that no record had been maintained by the concerned Jail Superintendent with respect to execution of power of attorneys by the persons in custody. Maintenance of such records is essential not only to avoid situations like the present one, but also to prevent mischief which may be caused to the accused in custody. It is directed that henceforth all Jail Superintendents will maintain proper records with respect to identification of the person at whose instance the power of attorney of the person in custody was being attested and endorsed by the Jail Superintendents. The record amongst others should contain details of name/address/Aadhar Card detail/telephone numbers/relation with accused/purpose for obtaining power of attorney etc. The Director General of Prisons & Correctional Services, Himachal Pradesh, through the learned Additional Advocate General is directed to forthwith issue necessary orders in this regard to all the Jail Superintendents and ensure compliance.”

Briefly stated, the key point of para 3(c) which is equally significant is that, “The situations similar to the one arising in the instant case perhaps could have been avoided had it been mandatory to plead in the petition that on whose instructions, the bail petition was being moved. Learned Amicus Curiae suggested that the persons who are authorized by the accused in custody for moving the bail application should be directed to file their personal affidavit stating therein that they have been authorised by the bail accused to move the bail application. However, taking cognizance of the situation, which arose in the instant case and to avoid its repetition in future, the Registry of this Court through the learned Registrar General is directed to try and evolve a software wherein filing of more than one bail petition in this Court by the same petitioner during pendency of previous bail petition, arising out of same FIR can be detected and consequent steps can be taken at the threshold.”

To sum it up, this latest, landmark and laudable judgment of the Himachal Pradesh High Court very rightly observes that institution of two bail petitions arising out of the same FIR by the same petitioner is a matter of serious concern. To check this from happening regularly, the Himachal Pradesh High Court in this noteworthy case very rightly issues a slew of landmark directions which we have just discussed above. They must be followed in letter and spirit by all the courts and the Director General of Police must ensure that it is implemented in totality! There can be no denying it!

Sanjeev Sirohi

Rape Is Violation Of Victim’s Fundamental Right Under Article 21: Gauhati HC

It is remarkable, refreshing and reassuring to learn that just recently on 31 August 2020, the Gauhati High Court in a latest and laudable judgment titled Nasiruddin Ali vs The State of Assam and Anr. Represented by P.P.  in Case No. Crl.A. 227/2016 has laid down in no uncertain terms that rape is a violation of victim’s fundamental right under Article 21 of the Constitution. Mrs Justice Rumi Kumari Phukan of Gauhati High Court who authored this noteworthy judgment minced no words to say in simple, straight and strict language that rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well! Very rightly so!

To start with, the ball is set rolling in para 2 of this notable judgment wherein it is observed that, “Present appeal is directed against the judgment and order dated 12.07.2016, passed by the learned Assistant Sessions Judge, Tinsukia, in Sessions Case No. 64(M)/2011, whereby the accused/appellant has been convicted under Section 376 of the IPC and sentenced to undergo rigorous imprisonment for a period of 9 (nine) years and to pay fine of Rs. 1,000/-, in default further imprisonment for three month.”

While dwelling on the facts of the case, it is then stated in para 3 that, “The prosecution case in nutshell is that on the night of 26.11.09 at about 10:00 P.M., while the victim was on her way to home on foot from Digboi Chariali market and arrived near Digboi club, one Muslim man having beard forcefully took her to the bathroom of nearby swimming pool and committed rape upon her. On receiving the verbal information from the victim on the following day i.e. on 27.11.2009, at 11.45 A.M., the Digboi Police Station GD Entry No. 1014, dated 27.11.2009 was made and the victim was sent to the hospital for medical examination. ASI Sashi Thakuli, who was entrusted with the investigation of the case by the Officer-in-charge, Digboi P.S., visited the place of occurrence and prepared the sketch map and also recorded the statement of the witnesses. On 27.11.09 itself, as shown by the victim, the accused was apprehended and brought to the police station. The formal ejahar was lodged by the victim on the same day at about 5.30 P.M. and accordingly Digboi P.S. Case No. 264/09, under Section 376 of the IPC was registered. The statement of the victim was recorded under Section 164 of the CrPC and the accused was arrested and forwarded to Court. The medical report of the victim was collected and after completion of the investigation, the charge sheet was filed against the accused/appellant under Section 376 of the IPC.”

To put things in perspective, it is then pointed out in para 28 that, “In his statement under Section 313 CrPC, the accused appellant has given the same statement as he has given in his evidence as DW-1. Thus, the plea of the accused appellant is relevant in the present case, inasmuch, as he has admitted his presence at the time of occurrence at such odd hours of night. In Answer to the Question No. 4 under Section 313 CrPC, he stated as follows:-

“At the time of occurrence, I was doing night duty at Digboi club. At night, security personnel came on patrolling duty twice. I saw one Sanjay Upadhyay entered into the tennis Court along with a girl. I ran to the place along with chowkidar of the garden, Basu ray and one Gogoi and said Sanjay Upadhyay and the girl was caught hold. Sanjay Upadhyay worked in the Digboi Club and I asked Sanjay as to why he had brought girl to the Club and as I rebuked them, both the girl and Sanjay went away. On the very next day, said girl came to my house and asked for my identity card and otherwise, she will lodge case against me. I will examine Vasu Ray as defence witness.””

While punching holes in the accused’s version, it is then pointed out in para 29 that, “Since the accused person has taken a specific plea as stated above, the burden shifts to him to prove such plea. But as discussed above, prosecution has been able to prove that on the fateful day, the accused has committed the offence of rape upon the victim in the said vicinity whereas, the accused has totally failed to prove his plea taken during the course of the trial. He did not produce the other chowkidar, Basu Ray in support of his plea, whereas, evidence of PW-2, who also happened to be present at the time of occurrence has belied the story projected by the accused. Further, his statement also supported the contention of the victim girl that she went to the house of the accused to complain to his wife and thus, the testimony of the victim is found to be an authentic one.”

Be it noted, para 30 then illustrates the nitty-gritty of this leading case by stating that, “Although the victim has reported the matter to so many other persons of the Digboi Club, but those were not examined by the IO, but same cannot be a ground to discard the prosecution case, as evidence of the prosecutrix is supported by other evidence and facts and the circumstances of the case. On closer scrutiny of the entirety of the matter, there appears nothing on the part of the prosecutrix for false indication of the accused person, there being no earlier acquaintance nor any enmity between the duo. Each and every aspect, she narrated, has been supported by the witnesses, but yes, there is no eye-witness to the occurrence and having regard to the isolated place of occurrence, odd hours of night and having no immediate residence nearby, non-having of eye witness/independent witness is natural. The victim has withstand the lengthy cross-examination without any vital contradiction to raise suspicion. Only the fact remains that the victim girl in her statement under Section 164 CrPC after raising all the allegations, has also said one line that for the interest of the family of the accused, she is not interested to proceed with the case. The victim, in course of trial, has also admitted about saying so, but he also boldly denied that because of falsity of allegation, she did not want to proceed with the case. She might have made such statement under pressure being a young girl of 20 years. However it cannot lose sight that the victim pursued the case till conclusion of the trial and her statement remained consistent all through. Some minor omission regarding the time of occurrence 09:30/10:00 pm and that she did not mention in the FIR about working on wages in IOC Hospital, that the FIR did not disclose all details above, are of little consequence and not destructive of genesis of the case. The evidence of prosecutrix in the given facts and circumstances give no room for any doubt and her evidence is akin to the “sterling witness” as she has qualified the test of “sterling witness” as has been held in the decisions referred above. The victim, herein is a poor girl and earns her livelihood as a daily wage earner and there appears no any occasion for false implication of the accused person. Non-seizure of wearing apparels of the victim for tending to FSL, is a lapse on the part of the Investigating Officer. On the other hand, the victim was examined after 2 years of the occurrence and some omission in her testimony that Police took her cloth is not found fatal.”

Interestingly enough, it is then pointed out in para 31 that, “So far as regards the non-finding of injury upon the victim, as per the medical evidence, it is to be noted that injury is not a sine qua non for deciding whether rape has been committed or not. It has to be decided on the factual matrix of each case. The Hon’ble Apex Court in (2013) 11 SCC 688, Radhakrishna Nagesh Vs State of Andhra Pradesh, it has been held that penetration itself proves offence of rape, but contrary is not true, i.e., even if there is no penetration, it does not necessarily mean that there is no rape. The Hon’ble Apex Court further held that absence of injuries would justify any adverse inference against prosecution. In (2014) 13 SCC 574; Krishan Vs State of Haryana, it was also held by the Hon’ble Apex Court that it is not expected that every rape victim should have injuries on her body to prove her case.”

More significantly, it is then envisaged in para 32 that, “In the present case, the conduct of victim is noteworthy, who immediately after the occurrence, reported the matter to the nearby people, to the Police, to the authority of the Digboi Club and the GD Entry and FIR was made on the next day of the occurrence without any delay and there is no material variation in her version. As the FIR was written by some other person, not by the prosecutrix herself, different mentioning of time etc. is not fatal as it does not go to the root of the case. There being no any other adverse circumstances, solitary version of the prosecutrix can be accepted as a true version of the occurrence, which is fully supported by the other evidence on record, coupled with the defence version. The prosecutrix has been able to prove the charge under Section 376 of the IPC, beyond the reasonable doubt and the learned trial Court has appreciated all relevant aspects.”

Most significantly, it is then remarkably and rightly held in para 33 that, “The chastity of a woman ruined as soon as such offence is committed, while in a civilized society, respect or reputation is a basic right. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. Youthful excitement and an attempt for momentary pleasure on the part of a person upon a woman, had a devastating effect in the entire body and mind of the victim. It is to be kept in mind that such offence lowers the dignity of a woman and mars her reputation. The Courts are sensitized that rape is a violation of victim’s fundamental right under Article 21 of the Constitution and rape victim is placed on a higher pedestal than an injured witness. Being the most hatred crime, rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well.”

    Finally, it is then held in the last relevant para 34 that, “For the reasons and the discussions above, this Court is of considered view that the order of conviction is liable to be sustained and calls for no interference. However considering the fact that the accused person have family with five children and behind the bar since the date of conviction, when maintaining the conviction he is sentenced to statutory minimum period of conviction of seven years and the sentence remains the same. The period of detention already undergone shall be set off.”

To sum up, the crux of this ruling is that rape is the most heinous crime and it really tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well. How can any civilized society justify it on any pretext whatsoever? Rape cannot be justified under any circumstances and those who commit it must be prepared to face the music of law as it cannot be condoned under any circumstances!

Needless to say that, “A rape is a rape”! There should be certainly no minimum punishment for it as those who commit it deserve no mercy under any circumstances! Under no circumstances should a rapist be allowed to somehow escape the strictest punishment as laid down under our law! There can be certainly no denying it!

Sanjeev Sirohi

When Can Magistrate Order Investigation U/S 156(3): J&K HC Orders Training For All Magistrates in J&K, Ladakh UTs

                               In a fresh and significant development, the Jammu and Kashmir High Court has in a latest, landmark and laudable judgment titled Sami-ullah Naqashbandi V/s Sadaf Niyaz Shah in CRM(M) No. 113/2020 : Crim. No. 316/2020 has elegantly, explicitly and effectively held that once a Magistrate takes cognizance of an offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code. It must be mentioned here that while taking serious note of the abuse of process of law by a Judicial Magistrate First Class, the Bench of Justice Ali Mohammad Magrey of Jammu and Kashmir High Court directed the Director of Judicial Academy to arrange the training session on the subject for all the Magistrates in Union Territory of Jammu and Kashmir and Union Territory of Ladakh in phased manner. Very rightly so!

To start with, the ball in set rolling first and foremost in para 1 of this notable judgment authored by Justice Ali Mohammad Magrey of Jammu and Kashmir High Court  wherein it is observed that, “ The instant petition, filed under Section 482 of Code of Criminal Procedure (for short “Code”) seeking quashment of order dated 25.06.2020 read with order dated 11.05.2020 passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar).”

While setting out the brief facts of the case, it is then postulated in para 2 that, “Petitioner while performing his duties as Naib Tehsildar, Executive Magistrate, Khanyar, came to know about filing of the complaint by respondent against him as well as other accused persons. The said complaint stated to be filed for commission of offences under Section 166, 166-A and 167, 354, 201, 209 and 120-B IPC. The said complaint was assigned to the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), by the learned CJM, Srinagar. In the said complaint, petitioner has prayed for registration of FIR or in the alternative cognizance of offence mentioned in the complaint. It is stated that the grouse of respondent revolved around possession and dispossession of respondent herein from the property, violation of lease agreement, rights of respondent at the hands of non-applicant therein. It is stated that upon presentation of the complaint the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), passed the following order:

“……After going through the averments made in the application, I deem it proper to get the matter investigated before issuing any process in the matter against the accused person. Since the applicant has put allegations against Tehsildar and Naib Tehsildar also, therefore, the investigation shall be conducted in the instant matter by the SSP, Srinagar. Accordingly, the SSP Srinagar is directed to investigate the matter either by himself or through any police officer not below the rank of SDPO in the earnest and submit his report before the undersigned……””

To be sure, it is then stated in para 8 that, “From the perusal of the complaint it is evident that the respondent has filed the complaint before the Magistrate on 11.05.2020, and on the same day, it was forwarded to SSP, Srinagar, for holding of enquiry and thereafter submitted the report, which report formed the basis for Magistrate to direct investigation in terms of Section 156(3), Cr.PC., because as per Police no cognizable offence appears to have been made out.”

Truly speaking, it is then asked in para 9 that, “The foremost question, thus, arises as to whether the Magistrate was right in issuing direction for investigating the matter in terms of Section 156(3) of Cr.PC., after the process was deferred till completion of enquiry in terms of Section 202 of Cr.PC.”

To put things in perspective, it is then pointed out by the Bench in para 10 that, “Perusal of the order reveals that the Magistrate had on the consideration of the complaint on motion hearing, deferred the issuance of process and directed enquiry to get satisfied about the correctness of the allegations. On receipt of the report, the Magistrate instead of proceeding further in tune with the mandate of law, has in terms of Section 156(3) of CrPC, directed investigation, which is the question as to whether the Magistrate has abused the powers of the Court or not.”

Be it noted, para 19 then states that, “Power under Section 202 is of different nature. Report sought under the said provision has the limited purpose of deciding “whether or not there is sufficient ground for proceeding”. If this be the object, the procedure under Chapter XV of the Code of Criminal Procedure are required to be adhered to in letter and spirit.”

As it turned out, it is then stipulated in para 20 that, “Admittedly the Magistrate has taken cognizance and find it necessary to postpone issuance of process, therefore, directed for enquiry by the Police and on receipt of the report from SSP, Srinagar, the Magistrate was required to proceed in terms of the provisions contained in Chapter XV of the Criminal Procedure Code. Thus, I answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued, when Magistrate takes cognizance and postpones issuance of process, the Magistrate has yet to determine “existence of sufficient ground to proceed” and these cases fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.”

To put it succinctly, it is then stated in para 21 that, “To reiterate for the guidance of all the Magistrates in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, it has become necessary to refer the Judgment reported in (2010) 4 Supreme Court Cases 185 titled Rameshbhai Pandurao Hedau Vs. State of Gujarat, which postulates that while the power to direct a police investigation under Section 156(3) is exercisable at the pre-cognizance stage, the power to direct an investigation or an enquiry under Section 202(1) is exercisable at the post-cognizance stage, when the Magistrate is in seisin of the case.”

Significantly, it is then pointed out in para 22 that, “The settled legal position has been enunciated by the Hon’ble Supreme Court in several decisions and has observed that the Courts are ad idem on the question that the powers under Section 156(3) can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process. Such a view has been expressed in Suresh Chand Jain case reported in (2001) 2 SCC 6218 : 2001 SCC (Cri) 377 as well as in Dharmeshbhai Vasudevbhai case, reported in (2009) 6 SCC 576 : (2009) 3 SCC (Cri) 76 and in Devarapalli Lakshminarayana Reddy case, reported in (1976) 3 SCC 252 : 1976 SCC (Cri) 380.”

More significantly, without mincing any words, it is then aptly pointed out in para 23 that, “On examination of the trial Court records, what transpired is that the learned Magistrate has in very mechanical manner and as a result of non-application of mind, issued directions to the Senior Superintendent of Police, Srinagar, for investigation under Section 156(3) of the Code, ignoring the very spirit of the law, in terms whereof the Magistrates have been authorized/empowered to issue directions for investigation under Section 156(3) of the Code. Thus, the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. In the present case, the Magistrate takes cognizance and postpones the issuance of process, as the Magistrate has yet to determine “existence of sufficient ground to proceed.” Therefore, the Magistrate has abused the process of law by not adhering to the procedure.”

Most significantly, it is then envisaged in para 24 that, “I feel it necessary to refer the decision of the Hon’ble Supreme Court delivered in Dilawar Singh V. State of Delhi case, reported in (2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330, where the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case the Hon’ble Supreme Court also appears to have taken the view that any Judicial Magistrate, before taking cognizance of an offence, can order investigation under Section 156(3) of the Code and in doing so, he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation. Reference has been made to the decision of the Court in Suresh Chand Jain case reported in (2001) 2 SCC 628 : 2001 SCC (Cri) 377. In other words, as indicated in the decisions referred to hereinabove, once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code.”

As a corollary, what then follows is stated in para 25 that, “In view of the above discussion, this petition is allowed and order dated 25.06.2020, passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar) is set aside, however, the Magistrate shall proceed from the stage on receipt of report in terms of Chapter XV of the Code, viz Section 202(1) onwards.”

Finally, it is then held in the last para 26 that, “Since the Court has taken a view that the approach adopted by the learned Magistrate in conducting the case in hand, has not been in consistent with law, rather is an abuse of the process of law, therefore, it has become necessary to send copy of the order to Registrar General of this Court for requesting the Director, Judicial Academy to arrange the training session on the subject for all the Magistrates in Union Territory of Jammu and Kashmir and Union Territory of Ladakh in phased manner. He shall also request the Director, Judicial Academy to circulate the Judgment amongst all the Magistrates well in advance of the training session. Disposed of. Registry to send down the records along with copy of order to the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC), Srinagar, for enabling him to proceed in the matter in accordance with law.”

To conclude, this latest, landmark and laudable judgment by a single Judge Bench of Jammu and Kashmir  High Court of Justice Ali Mohammad Magrey has clearly, categorically and convincingly held that once a Magistrate takes cognizance of an offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code. It also   directed the Director of Judicial Academy to arrange the training session on the subject for all the Magistrates in Union Territory of Jammu and Kashmir and Union Territory of Ladakh in phased manner. This was considered imperative so that no Judge in future errs gravely on this!

Sanjeev Sirohi

SC Sentences Prashant Bhushan To A Fine Of Rupees One In The Contempt Case Over His Two Tweets

                      “Judges cannot speak out even if they are humiliated. How long can the Supreme Court and the Judges suffer the humiliation heaped regularly? It is not a question of one or two tweets. Look at the number of contemptuous statements made by him and the number of contempt cases initiated against him. Yet he justifies his conduct. What use is a warning to someone who does not realize his mistake?”

–          Justices Arun Mishra, BR Gavai and Krishna Murari of Apex Court

We have seen for ourselves how the Supreme Court most recently on August 31, 2020 has in a contempt case titled “In Re: Prashant Bhushan And Anr. in Suo Motu Contempt Petition (Crl.) No. 1 of 2020 taken suo motu cognizance against advocate Prashant Bhushan of the Supreme Court for his two tweets. A three Judge Bench headed by Justice Arun Mishra and along with him Justice BR Gavai and Justice Krishna Murari  have sentenced him to pay a fine of Rupee One, which is to be deposited with the Supreme Court Registry within September 15, 2020. In case of default to deposit, Prashant Bhushan will have to undergo imprisonment for three months and will be debarred from practice for three years!

Needless to say, this is nothing but just a slight reprimand from the top court to Prashant Bhushan which is quite ostensible also when one goes through the 82-page lengthy judgment! A leading role was played by the Attorney General – KK Venugopal who pleaded for magnanimity from the Apex Court for which his stellar contribution cannot be denied! Earlier Prashant Bhushan was held guilty of contempt vide judgment dated 14.08.2020 over his tweets made on June 27 and 29 about the Supreme Court’s functioning and the Chief Justice of India. But the final judgment was not pronounced!

No doubt, it must be mentioned that it was Mehek Maheshwari who is an advocate who had filed a petition before the Supreme Court on July 9 seeking initiation of contempt of court proceedings against Prashant Bhushan for his tweets. Based on Mehek’s petition, the Apex Court then suo motu (on its own) took cognizance of the matter and listed the case for the first time on July 22 and issued notice to Bhushan the same day! After a day-long hearing on August 5, the Supreme Court pronounced its verdict on August 14.

Be it noted, Bhushan’s first tweet said that, “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.” The second tweet referred to CJI Sharad Bobde and said that, “The CJI rides a Rs 50-lakh Harley Davidson motorcycle belonging to a BJP [Bharatiya Janata Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!”

 

To put things in perspective, it is pointed in para 3 that, “At the beginning of the proceedings itself, we had called upon Shri K.K. Venugopal, learned Attorney General for India, to address us. In the morning session, we have heard him at great length. Learned Attorney General stated that this Court, by showing magnanimity, should not impose any sentence on Shri Prashant Bhushan. He submitted that the tweets made by Shri Prashant Bhushan could be considered as bona fide criticism in order to seek improvement in the functioning of the institution. He further stated, that taking into consideration the causes represented by Shri Prashant Bhushan in various public interest litigation and the service rendered by him to different classes of society by bringing their issues to the notice of this Court, the Court should consider not imposing any sentence on him.”

Honestly speaking, it is then very rightly pointed out in para 4 that, “When controverted with various statements made by the contemnor in the affidavit in reply, the learned Attorney General fairly conceded that such statements were not warranted.”

While elaborating further, it is then disclosed in para 5 that, “He suggested that such statements be either withdrawn by the contemnor or should be taken off from the pleadings. When further confronted with the Contempt Petition filed by the learned Attorney General in one of the proceedings against the very same contemnor, the learned Attorney General submitted that since Shri Prashant Bhushan, on a piece of paper, had expressed his regret, he expressed desire not to pursue the said contempt proceedings. The learned Attorney General attempted to read out the statement made by Shri Prashant Bhushan in the contempt proceedings, which was initiated in the year 2009, wherein Shri Prashant Bhushan had expressed his regret. However, when it was pointed out to the learned Attorney General that the said statement was not pertaining to the present proceedings but earlier proceedings, the learned Attorney General stated that when Shri Prashant Bhushan had expressed regret in other proceedings, there is no reason as to why he should not express regret in the present proceedings also. We had also pointed out to the learned Attorney General that the contemnor was pressing the statement made in the affidavit and was raising a plea of truth as a defence. In such circumstances whether it would be appropriate on the part of this Court to take off the said statements from the pleadings. The learned Attorney General, faced with this situation, stated that unless the contemnor withdraws the said statements in view of the provisions of Section 13(b) of the Act, the statements cannot be taken off.”

To be sure, the Bench then again made known the stand of Attorney General by pointing out in para 7 that, “After Dr. Dhavan, learned senior counsel completed his arguments, we again called upon learned Attorney General, to address us by taking into consideration the submissions made on behalf of contemnor by Dr. Dhavan, learned senior counsel. Learned Attorney General was fair enough to state that insistence on the part of the contemnor to press into service various objectionable statements made in the pleading was not warranted and also not justifiable. He fairly stated that in the interest of the administration of justice, the contemnor ought not to have made such statements. He further stated that such statements, which were also concerning various sitting and retired judges of this Court, including the past and present Chief Justices were totally unjustifiable, specifically so when the retired or sitting judges were not in a position to defend themselves. He further submitted that no verdict could be passed without hearing such Judges, and as such, the process would be endless. He submitted that such a defence cannot be looked into. From the tenor of the submission made by the learned Attorney General, it was apparent that the learned Attorney General was at pains due to the statements made by the contemnor in the affidavit.”

Commendably, the Bench then goes on to also very rightly point out about Dr Rajeev Dhavan’s candid acknowledgement in para 10 stating that, “Dr. Dhavan, learned senior counsel, fairly stated that publication of the supplementary statement of the contemnor in various print as well as other media in advance was not proper, and he also stated that no lawyer or litigant should either give an interview, talk to the press or make any statement with regard to pending litigation before any court. He submitted that though a fair criticism of judgment after the judgment was pronounced was permissible in law, making any statement or giving press interviews during the pendency of the litigation was not permissible.” Dr. Rajeev Dhavan also very rightly pointed out that, “In the Ayodhya case, I refrained from making any comment on the judgment as I had argued the case.” Dr Dhavan had appeared on behalf of Muslims in Ayodhya case and his conduct was certainly exemplary which all lawyers must emulate!

Equally commendable is what is then stated in para 11 that, “When Dr. Dhavan, learned senior counsel was confronted with the situation as to how the sitting, as well as retired judges who are not supposed to speak to anyone or to give interviews can defend the allegations made against them, Dr. Dhavan responded that though this Court should not reprimand the contemnor for the tweets made by him, this Court should lay down guidelines for the precautions to be observed by the lawyers and litigants while making any statements with respect to the judges and the institution of administration of justice. He submitted that this, apart from giving a right signal to the contemnor, would also give a signal to all the members of the Bar in the country.”

Regarding the remarks and tweets made by Bhushan, the Bench minces no words to say in para 52 that, “We find no justification to make such a remark/tweet, particularly when it is made by a lawyer with 35 years standing like Shri Prashant Bhushan, who is an officer of the Court and advocates enjoy equal dignity in the system. In spite of learned Attorney General’s insistence that the averments made in the defence should be withdrawn and regret should be submitted, Dr. Dhavan, learned senior counsel, stated that the contemnor is not ready to withdraw the defence taken in the reply. That further makes it clear that while insisting with the unjustifiable defence and insistence to go with it makes the entire episode the one which cannot be ignored.”

Without mincing any words, the Bench then makes it unequivocally clear about lawyer’s ethical duty and fair criticism in para 53 that, “The tweet has been made by the lawyer who has the standing of 35 years and who is involved in several public interest litigations. However, merely because a lawyer is involved in the filing of the public interest litigation for the public good it does not arm him to harm the very system of which he is a part. Though expectation from an ordinary citizen may be different, the duties and expectations that are expected from a lawyer of long standing are on higher side. An advocate cannot forget his ethical duty and responsibility and cannot denigrate the very system of which he/she is an integral part. Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety and the Court cannot continuously ignore it, and the system cannot be made to suffer. When the criticism turns into malicious and scandalous allegations thereby tending to undermine the confidence of the public and the institution as a whole, such a criticism cannot be ignored.”

What’s more, the Bench then concedes in para 90 that, “The Court, from the very beginning, was desirous of giving quietus to this matter. Directly or indirectly, the contemnor was persuaded to end this matter by tendering an apology and save the grace of the institution as well as the individual, who is an officer of the Court. However, for the reasons best known to him he has neither shown regret inspite of our persuasion or the advice of the learned Attorney General. Thus, we have to consider imposing an appropriate sentence upon him.”

To say the least, the Bench then says in para 91 that, “Duly balancing the factors urged by Dr. Dhavan as to the offender, offence, the convicting judgment and the defence taken we have to decide the question of sentence. In our considered view, the act committed by the contemnor is a very serious one. He has attempted to denigrate the reputation of the institution of administration of justice of which he himself is a part. At the cost of repetition, we have to state that the faith of the citizens of the country, in the institution of justice is the foundation for rule of law which is an essential factor in the democratic set up.”

Most significantly, the Bench then minces no words to say aptly and appropriately in para 92 that, “We have given deep thought as to what sentence should be imposed on the contemnor. The conduct of the present contemnor also needs to be taken into consideration. This Court in Tehseen Poonawala (supra) has observed that the said matter was a fit matter wherein criminal contempt proceedings were required to be initiated. However, the court stopped at doing so observing that it would have been an unequal fight. The learned Attorney General had also initiated contempt proceedings against the present contemnor, however on the contemnor submitting regret, the learned Attorney General sought withdrawal of the said proceedings. However, the said proceedings are still pending. In the present matter also not on one occasion but on several occasions, we not only gave opportunity but also directly or indirectly persuaded the contemnor to express regret. Not only that the learned Attorney General had also suggested that it was in the fitness of things that a contemnor expresses regret and withdraws the allegation made in the affidavit in reply, which request was not heeded to by the contemnor. The contemnor not only gave wide publicity to the second statement submitted before this Court on 24.08.2020 prior to the Court, but also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of this Court. If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of Re. 1/- (Rupee one).”

Finally, we see that the Bench observes in para 93 that, “We, therefore, sentence the contemnor with a fine of Re. 1/- (Rupee one) to be deposited with the Registry of this Court by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practicing in this Court for a period of three years.”

On his part, Prashant Bhushan has gracefully accepted the punishment and has said that, “I will respectfully pay the fine as I would have done in case of any other punishment that the court would have given me. My tweets were not intended to disrespect SC but were meant to express my anguish at what I felt was a deviation from its sterling record. This is watershed moment for freedom of speech and seems to have encouraged many people to speak out against injustices.” He also said that he reserve the right to file review plea.

It cannot be ignored that the former Attorney General of India Soli J Sorabjee said that, “I don’t agree with the judgment (punishing Bhushan for contempt of court). The court should have allowed him to prove his defence. The courts must have broad shoulders to shrug off such comments made by the lawyer.” Yet another eminent lawyer and former Solicitor General of India – Harish Salve reacted by saying that, “I am yet to read the judgment. But this (punishment of Re 1 and in default 3 months jail term and 3 years debarment from practice in SC) will put Bhushan in a piquant situation. If he does not pay, he will be seen as an obstinate person who encourages defiance of court verdicts. If he does, he acknowledges that he made a mistake, which I do not think he will find easy.” Abhishek Manu Singhvi who is also an eminent lawyer and former Additional Solicitor General said that, “First the lighter side: Judgment of 180 pages to convict plus 82 pages to sentence = Re 1 fine. More seriously, even after recording their views, they should have let him off with a severe warning. Either way, it’s been a victory for Prashant, something the SC would certainly not have intended.”

I very strongly believe like Soli J Sorabjee that Prashant Bhushan should have been given an opportunity to prove corruption charges that he has levelled against so many Judges and also he should have been allowed to prove his defence.  If he was unable to prove then he should have been punished. But since this latest judgment has come directly from the top court, it has to be accepted gracefully which even Prashant Bhushan has gladly done as is quite ostensible from his reaction also!

I am sure Prashant Bhushan will also pay heed to what the top court has advised him and from next time instead of talking endlessly in media on  serious corruption charges against Judges would produce the evidence straight before the courts so that the whole world can see for themselves what the real truth is! But to just level serious allegations without any proof and that too against many Supreme Court Judges and even former Chief Justices of India cannot be ever justified under any circumstances!

Sanjeev Sirohi

Bombay HC Allows Muharram Procession Of Only 5 Persons With One Videographer And Only One Tazia To Be Carried In The Entire State

                          Considering the dangerous, dreaded and deadly corona virus impact especially in Maharashtra and in Bombay in particular, the Bombay High Court most recently on August 28, 2020 in a noteworthy case titled All India Idara-E-Tahafuz-E-Hussainiyat Vs The State of Maharashtra & Ors. in AD-HOC No. WP-LD-VC-350 of 2020 has in a significant order allowed only five persons with a videographer to carry Tazia, replica of the tomb of Husain who was the martyred grandson of Prophet Muhammad in processions during Muharram on August 30 from 4.30 pm to 5.30 pm from Zanabia Bhendi Bazar to the Shia Cemetry at Mazgaon. The Bombay High Court in this notable case also clarified that it will be the only Tazia to be carried in the entire State of Maharashtra! This restriction has been made primarily to ensure that this Covid-19 pandemic does not spread rapidly due to contact among many people! Very rightly so!

To start with, the ball is set rolling by  a two Judge Bench of  Justice SJ Kathawalla and Justice Madhav J Jamdar of the Bombay High Court in para 1 wherein it is observed that, “The Petitioner All India Idara-E-Tahafuz-E-Hussainiyat through its General Secretary Shri Habib Nasir has stated in the above Petition that they are one of the oldest organization of the Shia Community.”

While stating the purpose of the petition, it is then pointed out in para 2 that, “By the above Writ Petition, the Petitioner is seeking appropriate writ, order or direction to allow the rituals of Muharram to be performed during the present pandemic from 27th August, 2020 till 30th August, 2020 daily for two hours.”

To put things in perspective, it is then enunciated in para 3 that, “In the above Petition, this Court passed an order in the present matter on 27th August, 2020 whereby the Principal Secretary, Home Department and Secretary, Disaster Management Department were directed to hear the President and the General Secretary of the Petitioner Organization at 5.00 p.m. yesterday itself. Both the aforesaid Secretaries were directed to submit their decision with reasons to this Court by 11.00 a.m. today.”

As a corollary, it is then stated in para 4 that, “Accordingly, the parties have been heard by both the aforesaid Secretaries and they have taken a decision with detailed reasons today i.e. on 28th August, 2020. The same has been submitted with this Court at 11.00 a.m. as directed. A copy thereof, has also been served on the learned Advocates for the Petitioner.”

To be sure, it is then stated in para 5 that, “We have perused the aforesaid decision dated 28th August, 2020 and we have heard the learned Senior Advocate for the Petitioner, as also the learned Advocate General for the State of Maharashtra, who was requested to appear in the matter for the State, along with the learned Government Pleader and Additional Government Pleader.”

For the sake of clarification, it is then made clear in para 6 that, “Both the parties have agreed that in view of the limited order, that is being passed hereunder, no reasons in support of this Order be recorded, especially since this Order is being passed as and by way of as exception, which is not intended to be used as a Precedent by other persons, to seek permissions, to hold any festival/festivities, which would involve by their very nature congregation of people.”

Be it noted, it is then stated in para 7 that, “On behalf of the Petitioner, the General Secretary Shri Habib Nasir, has attended the hearing and we have heard him personally via Video Conferencing, though limited to the extent mentioned hereunder.”

Most significantly, the Bench then makes it known in para 8 that, “The said General Secretary, Mr. Habib Nasir has given following undertakings to this Court, which are hereby accepted:

i.                  In a representative capacity for and on behalf of the entire Shia community residing in the State, there will be only one Taziya, which will be carried from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, in the entire State. No other Taziya other than the one mentioned hereinabove, will be carried anywhere in the State.

ii.               The aforesaid one Taziya will be carried/transported from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, via J.J. Hospital, Prince Ali Khan Hospital, Sales Tax Office circle in a trust i.e. transport vehicle large enough to accommodate it. These will not be any procession as such, for carrying the said one Taziya, in the aforesaid manner.

iii.             In no case whatsoever, any congregation of people at any point from the beginning till the end of the said journey of aforesaid one Taziya will be allowed.

iv.            The aforesaid one Taziya will be carried along strictly aforesaid one route.

v.               The aforesaid one Taziya will be carried along the aforesaid route on Sunday 30th August, 2020 from 4:30 p.m. to 5.30 p.m.

vi.            Not more than five persons will carry the aforesaid one Taziya on a truck, as aforesaid along with one videographer. However, after taking the aforesaid one Taziya down near the graveyard, it will be carried on foot, for a distance of not more than hundred meter. The names, ages and addressed of these five persons will be submitted with the office of the Commissioner of Police, Mumbai by 5.00 p.m., on 29th August, 2020.

vii.         The Petitioner and all its members will strictly abide by the rest of the guidelines issued by the Home Department, State of Maharashtra, regarding Muharram-2020, dated 19th August, 2020, a copy of which is annexed to the above Writ Petition as Exhibit-A.”

In addition to what has been stated above, it is then also added further in para 9 that, “The State Government shall, if not already imposed, impose a restriction over gathering of people at the appropriate places, by issuing appropriate orders, including the point where aforesaid one Taziya is to start its journey, up to and including the graveyard, where its aforesaid journey will and, by passing appropriate orders under Section 144 of the Code of Criminal Procedure, 1973. The State shall also provide an escort as also a pilot car for the aforesaid truck, carrying aforesaid one Taziya and will take appropriate measures to keep the traffic away and the road clear along the aforesaid route, which is hereinabove prescribed as a route for carrying aforesaid one Taziya.”

Needless to say, it is then observed in para 10 that, “The Writ Petition is accordingly disposed of.”

Finally, this notable judgment is concluded in para 11 wherein it is stated that, “This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.”

To sum up, we thus see that when corona pandemic has hit worst Bombay and the State of Maharashtra in particular, the Bombay High Court Bench of  Justice SJ Kathawalla and Justice Madhav J Jamdar of the Bombay High Court has permitted one Taziya to be carried out in the entire State of Maharashtra and Muharram procession of only 5 persons with one videographer! This is certainly a right step in the right direction also! The religious sentiments of Shia Muslims have been taken into account but simultaneously many terms and conditions have also been imposed which the petitioner “All India Idara-E-Tahafuz-E-Hussainiyat” through its General Secretary “Shri Habib Nasir” has accepted also as has already been discussed also hereinabove! Very rightly so!

Sanjeev Sirohi

Why Central Govt Not Enacted Law To Prohibit Candidates With Criminal Backgrounds From Contesting Elections As Observed By SC?: Asks Madras HC

It is most refreshing, most reassuring and most remarkable that the Madras High Court has just recently on 13 August 2020 in a well-reasoned, well-articulated, well-worded, well-analyzed and well-balanced judgment titled Jamuna Vs 1. The Secretary to Government, Government of India, 2. The Lieutenant Governor, Puducherry, 3. The District Magistrate-cum-Authorised Officer, Puducherry in H.C.P. No. 90 of 2020 has very rightly demanded from the Centre as to why it does not enact a law to prohibit candidates with criminal background from contesting elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Supreme Court on September 25, 2018 in Public Interest Foundation v. Union of India? The Madras High Court also noted alarmingly that persons with criminal background are becoming policy makers in many parts of the country. Time and again eminent persons have raised their extreme concern on this but Centre from 1947 till now in 2020 has shamelessly turned a deaf ear to it just like it has done in the case of setting up of more benches in big states like UP which has just one high court bench set up in 1948 in Lucknow that is just 200 km away from Allahabad where high court is located leaving the rest of UP especially West UP high and dry. People are compelled to travel whole night to Allahabad shamelessly by our shameless lawmakers who have decided just not to listen to even the recommendations of Justice Jaswant Singh Commission which recommended 3 benches for undivided UP in late 1970s at Agra, Dehradun and Nainital by not approving even a single even while approving benches for other smaller states like Aurangabad in Mahrashtra, Madurai in Tamil Nadu and Jalpaiguri in West Bengal nor to the 230th report of Law Commission of India which recommended setting up of more high court benches! Should we be all as good citizens of our country feel really very proud of this?

Bluntly put: Why for getting a government job even as small as a police constable, we see that there is a proper police verification and even if one false case is registered, the candidate is promptly barred from getting any government job? Why if that very same candidate commits thousands of crimes like rape, murder, gangrape, dacoity, robbery etc in different cases, still he/she would be eligible to fight in elections for becoming an MP or an MLA even from jails on the pretext that the case is “politically motivated” or it is still pending in one court or the other which is yet to be decided? Not just this there is no need to have any educational qualification to become and MP or an MLA! Can there be a bigger mockery of our democratic system and of Article 14 which talks about equality in our Constitution? Even God cannot help the country where criminals themselves become law makers!

To start with, this latest, landmark and laudable judgment authored by Justice N Kirubakaran for himself and Justice Ms. VM Velumani of Madras High Court sets the ball rolling by first and foremost pointing out in para 2 after noting in para 1 that  the matter was heard through “Video Conference” that, “This Petition has been filed by the Wife of the Detenu against the detention order passed against her husband on 05.11.2019 in No.7/DM/RO/D2/PPASAA/2019 as he has got about 19 cases pending registered against him for various offences. Out of the 19 cases, one case was registered for the Offence under Section 302 of Indian Penal Code, one case was registered for the Offence under Section 307 of Indian Penal Code, three cases for the offence of dacoity and one case registered under NDPS Act and so on. Taking note of the above facts, this Court questioned the respondent as to why investigation has not been properly done and charge sheets are not filed even for the case pending from the year 2009 and directed, by Order dated 29.07.2020, to file a report regarding the stages of investigation in the cases registered against the detenu as well as the details of pending trial cases.”

Going ahead, it is then disclosed in para 3 that, “Counter affidavit and a report has been filed on behalf of respondents 2 & 3 giving the details of the stages of the cases pending against the detenu. Out of the 19 cases, in one case alone in S.C. No. 43 of 2016, the detenu has been acquitted and the other cases are pending.”

Alarmingly, it is then disclosed in para 4 that, “It is evident from media reports that criminal elements in Puducherry have close connection and support of political parties. Political parties are having criminals as their members and also office bearers. It is brought to the notice of this Court that many cases are relating to inter-gang rivalries and country made bombs are used to murder the opposite gang members. Totally in 5 cases, country made bombs were hurled by the detenu and his associates. Only in two cases, charge sheets have been filed in Crime No. 95/2015 dated 15.06.2015 on the file of Odiansulai Police Station and in Crime No. 98/2019 on the file of Thirubuvanai Police Station in which offences under the Explosives Substances Act, 1908 have been invoked. So far, no charge sheet has been filed in Crime No. 98/2019 wherein double barrel country made gun was used. The detenu and his associates are said to have used country made bombs for murdering one Velazhagan S/o Iyyavu on 19.04.2017 and a case has been registered in Crime No. 40 of 2017 under Section 302 of Indian Penal Code and 3 of Explosive Substances Act, 1908 and thereafter, the case was transferred to CBCID, Puducherry. Though the case has been registered in the year 2017, the sanction for prosecution under Explosives Substances Act has not been granted by the Government. Only after this Court questioned the attitude of the Respondents by virtue of the order dated 29.07.2020, sanction has been granted last week and chargesheet has also been filed in the said case, Mr. Bharatha Chakravarthy, learned Public Prosecutor would submit. This Court is justified to observe that three years delay in granting sanction for the case registered in the year 2017 is only due to political support enjoyed by the accused. In 2015 case, not even investigation is over for the past 5 years. This would speak about his clout with political parties, especially ruling parties and Police. But for political interference, Police would have filed charge sheets.”

More alarmingly, it is then also conceded in para 5 that, “This would only go to show the lethargic attitude of the police even in the cases involving heinous criminals that too murders by using country made bombs. Many murders are committed cruelly by throwing country made bombs. In three cases registered against the detenu, the detenu and other accused had used country made bombs for committing murders. In 2018, Former Speaker of Puducherry, Sivakumar was murdered by a gang in the same fashion, by hurling country bombs. It is reported in media that even some of the Ministers and Legislators are being given security by rowdy gangs.”

Furthermore, it is then brought out in para 6 that, “It is submitted by Mr. Bharathy Chakravarthy that in most of the cases, accused would be more than ten persons and they will not co-operate with trial and cases are pending because of the Non-Bailable Warrant issued against the accused. Since the cases are pending for a long time, the Courts are compelled to split up the matters and thereafter, conduct trials. This has to be taken into consideration by the lower Courts while granting bail, as the accused violate the bail conditions.”

Honestly speaking, it is then candidly conceded in para 7 that, “It is appearing in the Media that rowdy gangs are operated by many politicians, communal and religious leaders throughout the Country. There seems to be a syndicate between the police force, political leaders and rowdy gangs and hence, the safety and security of the people are jeopardised.”

How can all this be allowed to go on with impunity? But Centre has allowed this to happen right under its nose and even Supreme Court has been a silent spectator to it! This is exactly what is damaging most our image of being a truly democratic country!

While giving a piece of sensible advice to our political parties, the Bench then observes in para 8 that, “Further, it is reported that persons with criminal background are becoming policy makers in many parts of the country and the same has to be prevented and the system has to be cleansed. This is possible, only if the top leaders of our political parties are firm in not admitting the criminals in their political parties. The leaders should have a vision for decriminalization of politics. If criminals are accommodated in political parties and given tickets to contest elections and elected as M.L.A.s, M.P.s, and made as Ministers, wrong message would be sent to the people.”

With due respect to Madras High Court, it must be pointed out here that it is an unpalatable truth that criminals facing serious criminal charges like rape, murder, dacoity are becoming MLAs, MPs and Ministers because our judiciary has given them the long rope even while simultaneously ensuring that for small jobs there is so much strict checking that even one case filed wrongly by someone in enmity can end the chances of getting a small government job! Wrong message is being sent to the people since 1947 yet no law made till 2020 to bar criminals from contesting elections! Here lies the real rub!

Needless to say, the Bench then very correctly and commendably points out in para 9 that, “Persons with criminal background should not become policy makers. Association for Democratic Reforms (ADR) released a report “Lok Sabha Elections 2019 – Analysis of Background, Financial, Education, Gender and other details of the winners” and it revealed that 43% (233 out of 539) elected MPs have serious criminal cases pending against them. Therefore, the Central Government has to come out with a comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State Legislatures and local bodies as observed by the Constitution Bench of Hon’ble Supreme Court in Public Interest Foundation and others vs. Union of India and another on 25th September 2018. Para 119 of the above Judgment is extracted as follows:-

“119. We are sure, the law making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.”

Indian Democracy should not be tainted by criminals. Further, it is seen that some of the criminal elements are floating political parties on their own with the support of their religion or communities and the same is required to be prohibited.”

Finally and far most significantly, it is then held in para 10 that, “In view of the above, this Court, Suo Motu, impleads, “The Director General of Police, Puducherry”, as party respondents to the proceedings and Mr. Bharatha Chakravarthy, learned Public Prosecutor (Puducherry) takes notice on behalf of the newly impleaded 4th respondent, Mr. G. Kathikeyan, learned Assistant Solicitor General, assisted by Mr. S.S. Pajaniradja, Central Government Standing Counsel appearing on behalf of the first respondent shall answer the following queries:

(i)                         How many rowdy gangs are active in Puducherry as well as in other States?

(ii)                      How many persons with criminal background are accommodated by various political parties as top office bearers and District Secretaries and the details of the criminal cases registered against those persons and their position in the respective political party?

(iii)                    How many History sheets have been opened for the past ten years in Puducherry?

(iv)                   How many murders have been committed by Rowdy Gangs in Puducherry as well as in other states?

(v)                      How many cases have been registered so far against the rowdies and what are all the stages of the said cases in Puducherry?

(vi)                   Whether witnesses in the said cases are threatened to turn hostile so as to get acquittal in Puducherry?

(vii)                How many years it takes for a criminal case, especially a murder case to get disposed of in Puducherry?

(viii)             How many persons have been so far detained under the Goondas Act for the past ten years in Puducherry? (Each year detail to be given)

(ix)                   Whether Rowdy gangs are using illegal arms like Pistols etc., apart from using Explosive Substances?

(x)                      If so, in how many cases, the illegal weapons have been used?

(xi)                   Why not the Central Government enact a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Hon’ble Supreme Court on 25.09.2018 in Public Interest Foundation and others vs. Union of India and another reported in 2019 (3) SCC 224?

(xii)                Why not the Puducherry Government enact a law like Maharashtra Control of Organized Crime Act, 1999 to control the criminal activities in Puducherry?

In essence, it would be perfectly in order for Centre to pause, ponder and plan on the volley of queries that have been posed in this noteworthy case by the Madras High Court and answer them to the fullest satisfaction of the court which has posted the matter to be listed after two weeks! Just strong political will is needed to do this to ban criminals from entering politics and if Centre is able to do this, it will only enhance its own credibility in the eyes of not only the courts but also the common man! The earlier this is done, the better it shall be for our national interests!

No doubt, if criminals are barred permanently from anyhow entering politics then our democratic system will slowly start coming back to shape which is the crying need of the hour also! Why can’t this present dispensation led by PM Narendra Damodardas Modi do within its own territory when it can carry out surgical strikes deep inside the territory of a hostile country like Pakistan and also suitably amend Article 370 of the Constitution and repeal Article 35A much to the chagrin of China and Pakistan?

 

Sanjeev Sirohi

SC Orders CBI Probe In Sushant Singh Rajput Case And Holds Bihar Police FIR Valid

In a big setback to Maharashtra government which never wanted CBI probe in Sushant Singh Rajput case, the Supreme Court in this high profile case titled Rhea Chakraborty Vs. State of Bihar & Ors. in Transfer Petition (Crl.) No. 225 of 2020 delivered on August 19, 2020 has in no uncertain terms clearly, categorically and convincingly upheld the Bihar Government’s order to transfer the probe in the case related to the death of the Bollywood actor – Sushant Singh Rajput to CBI. Sushant was found dead in his house in suburban Bandra in Mumbai on June 14. Rhea’s lawyer Shyam Divan who is a senior and eminent lawyer of Apex Court argued that Rhea had no qualms with the case being transferred to the CBI but not at the behest of the executive orders of the Bihar Government. Another senior and eminent advocate – Vikas Singh who appeared for Sushant’s father urged the top court to hand over the case of the late actor’s mysterious death to CBI!

Most intriguingly, the Bombay Police had inexplicably and questionably failed to lodge an FIR even after the lapse of 65 days till now which undoubtedly has created bona fide and serious lingering doubts on its neutrality, credibility and commitment to resolve this case in fairness according to the rule of law! On the contrary, Bihar police had promptly lodged the FIR as soon as they received the complaint from the deceased actor’s father KK Singh at Rajiv Nagar police station in Patna against Rhea and six others including her family members for abetting the actor’s suicide which enhanced its credibility in the eyes of the people!

No doubt, a mandatory time limit of 24 or at the most 48 hours must be fixed within which the police must be made to register the FIR and strictest action must be taken against those police officials who refuse to lodge the FIR. Time and again we keep hearing many such cases where police either refuses to lodge an FIR or forwards some excuse or the other for not lodging an FIR which defeats the very purpose for which it is lodged! It is a long pending reform that is still in waiting queue and now it is high time that it be implemented at the earliest! This will help the litigants a lot especially the victims in their quest for justice and not further rub salt on their deep wounds further!

To be sure, a single Bench of Apex Court of Justice Hrishikesh Roy held that Bihar police had jurisdiction to register FIR with respect to the suicide of Sushant Singh Rajput at the complaint of the actor’s father and held that the transfer to CBI was valid. The Apex Court has directed the Maharashtra police to hand over the case files to CBI and to render necessary assistance. The Apex Court held clearly that, “It is court ordered CBI investigation. Maharashtra police must comply and assist.” Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed that, “This Transfer Petition is filed under section 406 of the Code of Criminal Procedure, 1973 (for short “CrPC”) read with Order XXXIX of the Supreme Court Rules, 2013 with prayer for transfer of the FIR No. 241 of 2020 (dated 25.7.2020) under Sections 341, 342, 380, 406, 420, 306, 506 and 120B of the Indian Penal Code, 1860 (for short “IPC”) registered at the Rajeev Nagar Police Station, Patna and all consequential proceedings from the jurisdiction of the Additional Chief Judicial Magistrate III, Patna Sadar, to the Additional Chief Magistrate, Bandra, Mumbai. The matter relates to the unnatural death of the actor Sushant Singh Rajput on 14.6.2020 at his Bandra residence at Mumbai. The deceased resided within Bandra Police Station jurisdiction and there itself, the unnatural death under section 174 of CrPC was reported.”

While elaborating on the petitioner’s version, it is then enunciated in para 2 that, “The petitioner is a friend of the deceased, and she too is in the acting field since last many years. As regards the allegations against the petitioner in the FIR, the petitioner claims that she has been falsely implicated in the Patna FIR, filed by Krishan Kishor Singh (respondent no. 2) – the father of the deceased actor. The petitioner and the deceased were in a live-in relationship but on 8.6.2020, a few days prior to the death of the actor, she had shifted to her own residence at Mumbai. According to the petitioner, the Mumbai Police is competent to undertake the investigation, even for the FIR lodged at Patna.”

To put things in perspective, it is then disclosed in para 5 that, “Representing the State of Bihar, Mr. Maninder Singh, the learned Senior Counsel submits that the Complaint disclosed a cognizable offence and therefore, it was incumbent for the Patna Police to register the FIR and proceed with the investigation. Since allegations of criminal breach of trust, Cheating and defalcation of money from the account of the deceased are alleged, the consequences of the offence are projected to be within the jurisdiction of the State of Bihar. The Senior Counsel highlights that the Mumbai Police was conducting the enquiry into the unnatural death of the actor u/s 174, 175 CrPC and such proceeding being limited to ascertaining the case of death, does not empower Mumbai Police to undertake any investigation, on the allegations in the Complaint of the Respondent No. 2, without registration of an FIR at Mumbai . Referring to the non-cooperation and obstruction of the Maharashtra authorities to the SIT of Bihar Police which reached Mumbai on 27.07.2020 and the quarantined detention of the Superintendent of Police, Patna who had reached Mumbai on 02.08.2020, senior counsel argues that the Mumbai Police was trying to suppress the real facts and were not conducting a fair and professional inquiry. Since no investigation relatable to the allegations in the complaint was being conducted and FIR was not registered by the Mumbai Police, the action of the Bihar Police in registering the Complaint, is contended to be legally justified. On that basis, the Bihar Government’s consent for entrustment of the investigation to the CBI is submitted to satisfy the requirement of Section 6 of the DSPE Act. Besides, as the petitioner herself has called for a CBI investigation and as the CBI has since registered a case and commenced their investigation, (on the request of the State of Bihar), the Senior Counsel submits that this transfer petition is infructuous.”

As it turned out, it is then held in para 20 that, “In the present case, the Mumbai Police has attempted to stretch the purview of Section 174 without drawing up any FIR and therefore, as it appears, no investigation pursuant to commission of a cognizable offence is being carried out by the Mumbai police. They are yet to register a FIR. Nor they have made a suitable determination, in terms of Section 175(2) CrPC. Therefore, it is pre-emptive and premature to hold that a parallel investigation is being carried out by the Mumbai Police. In case of a future possibility of cognizance being taken by two courts in different jurisdictions, the issue could be resolved under Section 186 CrPC and other applicable laws. No opinion is therefore expressed on a future contingency and the issue is left open to be decided, if needed, in accordance with law.”

As a corollary, para 21 then holds that, “Following the above, it is declared that the inquiry conducted under Section 174 CrPC by the Mumbai police is limited for a definite purpose but is not an investigation of a crime under Section 157 of the CrPC.”

To state the palpable, it is then rightly pointed out in para 30 that, “Having regard to the law enunciated by this Court as noted above, it must be held that the Patna police committed no illegality in registering the Complaint. Looking at the nature of the allegations in the Complaint which also relate to misappropriation and breach of trust, the exercise of jurisdiction by the Bihar Police appears to be in order. At the stage of investigation, they were not required to transfer the FIR to Mumbai police. For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI is held to be lawful.”

Be it noted, the Bench then observes in para 36 that, “The ongoing investigation by the CBI is held to be lawful. In the event a new case is registered at Mumbai on the same issue, in the fitness of things, it would be appropriate if the latter case too gets investigated by the same agency, on the strength of this Court’s order. Such enabling order will make it possible for the CBI to investigate the new case, avoiding the rigors of Section 6 of the DSPE Act, requiring consent from the State of Maharashtra.”

Most significantly, it is then held unequivocally in para 40 that, “The actor Sushant Singh Rajput was a talented actor in the Mumbai film world and died well before his full potential could be realised. His family, friends and admirers are keenly waiting the outcome of the investigation so that all the speculations floating around can be put to rest. Therefore a fair, competent and impartial investigation is the need of the hour. The expected outcome then would be, a measure of justice for the Complainant, who lost his only son. For the petitioner too, it will be the desired justice as she herself called for a CBI investigation. The dissemination of the real facts through unbiased investigation would certainly result in justice for the innocents, who might be the target of vilification campaign. Equally importantly, when integrity and credibility of the investigation is discernible, the trust, faith and confidence of the common man in the judicial process will resonate. When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”

Truth be told, it is then stated in para 41 that, “In such backdrop, to ensure public confidence in the investigation and to do complete justice in the matter, this Court considers it appropriate to invoke the powers conferred by Article 142 of the Constitution. As a Court exercising lawful jurisdiction for the assigned roster, no impediment is seen for exercise of plenary power in the present matter. Therefore while according approval for the ongoing CBI investigation, if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well. It is ordered accordingly.” About this inherent powers under Article 142 of the Constitution, we see that the same has been discussed in detail in para 37 also while dwelling on the case of Monica Kumar (Dr.) and Anr. Vs. State of Uttar Pradesh and Others (2008) 8 SCC 781 pointing out when it can be invoked to render justice.

It is a no-brainer that if the Bombay Police had lodged FIR in time and had followed the proper procedure, the Supreme Court would never have ordered CBI to investigate this sensational Sushant death case! While it conceded that there was nothing to show any wrongdoing by the Mumbai police but as it had not yet initiated an FIR even after 65 days and was carrying out a limited inquiry under Section 174 of CrPC pertaining to inquiry into unnatural death, it lost the plot and ultimately the case was handed out to CBI! All the police of all the States in India must always be very careful of lodging the FIR in time as if they don’t do then they will have to face the consequences as we see in this case also!

No doubt, all those who are in police must read the relevant part of para 23 of this landmark judgment which clearly, categorically and convincingly states that, “Registration of FIR is mandated when information on cognizable offence is received by the police. Precedents suggest that at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case. On this aspect the ratio in Lalita Kumari Vs. Govt. of UP (2014) 2 SCC 1 is relevant where on behalf of the Constitution Bench, Chief Justice P Sathasivam, pronounced as under:-

“120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.””

It is high time and now Centre must also take the requisite steps to make it mandatory for the police to lodge an FIR within a stipulated time frame so that the litigants especially the victims are not traumatized further after the crime has occurred! Also, what is most important is that strictest action must be stipulated against all those policemen who refuse to lodge FIR! It brooks no more delay now!

It goes without saying that people must also be given an alternative to lodge an FIR if police refuses with some other duly constituted body like the State Human Rights Commission or some other body so that people don’t have to suffer interminably as we repeatedly hear cases of police refusing to lodge FIR and instead building pressure on the victim to keep quiet! How can this huge injustice be tolerated any longer? Why should it be allowed any longer?

Bluntly put: Why can’t men in uniform in police be straightaway dismissed from service for refusing to lodge FIR? Why can’t they also be sent to jail for ten to fourteen years for refusing to lodge FIR? Only strong will power is needed which is there in abundance in this present dispensation as we saw when they amended Article 370 of the Constitution! But the moot question is: Will this Government show equal interest on this also?

Sanjeev Sirohi

HP Disapproves Of Employees Managing Posting In And Around Urban Areas And Asks State To Break The Cartel

In a well-reasoned, well-analysed, well-balanced and well-articulated judgment, a two Judge Bench of the Himachal Pradesh High Court comprising of Justice Tarlok Singh Chauhan and Justice Jyotsna Rewal Dua in Sheela Suryavanshi v. State of H.P. & Ors. in CWP No. 511 of 2020 delivered just recently on August 26, 2020 has clearly and convincingly disapproved of employees managing posting in and around urban areas and asked the State to break the cartel! It observed that if the employee has been transferred in order to adjust particular persons with no reasonable basis, then such type of transfers can be termed as “mala fide one” and would, normally be liable to be quashed. Very rightly so!

To start with, this notable judgment authored by Justice Tarlok Singh Chauhan for himself and Justice Jyotsna Rewal Dua starts by first and foremost observing in para 1 that, “The petitioner is a Lecturer (English), who joined Government Senior Secondary School, Sanjauli, on 16.08.2017 and was thereafter ordered to be transferred vice private respondent vide order dated 23.01.2020 and aggrieved thereby has filed the instant petition for the grant of following substantive relief:-

(i)                         That the impugned transfer order dated 23.01.2020 (Annexure P-1) may kindly be quashed and set aside.”

To be sure, the Bench then points out in para 2 that, “It is argued by Shri Ram Murti Bisht, learned Advocate, for the petitioner, that the order of transfer is not sustainable, as it has been passed on extraneous consideration and with malafide intention to simply adjust private respondent No. 3, who at her own request had been posted at GSSS, Theog in July, 2019 and after short stay of six month, on 01.01.2020, on the basis of D.O. note No. 199274, got herself transferred back to GSSS, Sanjauli dislodging the petitioner.”

To say the least, the Bench then expounds in para 10 that, “It may be stated here that if the transfers are made in order to adjust particular persons with no reasonable basis, such type of transfers can be termed as malafide one and would normally be liable to be quashed.”

No wonder, it is then rightly noted in para 11 that, “On the basis of the aforesaid exposition of law, it can conveniently be held that transfer in the instant case has not been made on administrative exigency but to adjust and accommodate respondent No. 3.”

Briefly stated, what para 12 brings out primarily is that record revealed that it was respondent No. 3, who vide letter dated 06.01.2020, addressed to the Education Minister, requested for her transfer on medical grounds. In the letter, the respondent No. 3 points out that presently I am working as PGT (English) in Govt. Girls Sr. Secondary School, Theog Distt. Shimla (HP) from July, 2019. She also points out that I am suffering from Paralytic problems (brain strokes in Dec. 2018) and since then under treatment in IGMC Shimla and it is very difficult to commute between Theog & Shimla daily due to my problem. She then urges in her letter to transfer her on medical grounds from Govt. Girls Sr. Secondary School Theog to Govt. Sr. Secondary School Sanjauli vice Smt. Sheela Suryavanshi, PGT (English) and condone her short stay at GSSS Theog.

More revealingly, it is then brought out in para 13 that, “The medical prescription slip annexed with this application, in fact, is an OPD slip in which it was only mentioned that this is a case of post circulation stroke and the B.P. of the petitioner has been recorded alongwith the details of the medicines. Even after that respondent No. 3 procured another D.O. note on the basis of which she got herself transferred to GSSS Sanjauli.”

Needless to say, it is then made clear in para 14 that, “No doubt, respondent No. 3 was entitled to set forth her grievance including the medical problems to her higher authorities and seek transfer and it was for the authorities, in turn, to accede or not to such request, but under no circumstances, respondent No. 3 could have exercised external influence to have transfer effected.”

Truly speaking, it is then also conceded while pointing out in para 15 that, “Now, the further question is whether request made by respondent No. 3 in the aforesaid letter was genuine and bonafide. We really do not think so.”

To put things in perspective, it is then brought out in para 16 that, “The record reveals that even though respondent No. 3 did suffer a paralytic (brain stroke) in 2018, but then it was on her request that she subsequently came to be transferred on mutual basis to GSSS Theog, where she remained posted from July, 2019 till the passing of the impugned transfer order. The request for transfer on mutual basis was probably made to take advantage under the policy of the transfer.”

While citing the relevant case law, it is then pointed out in para 17 that, “In Rajendra Roy vs Union of India and Anr. 1993 SC 1236, the Apex Court held that “It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down.”

Be it noted, it is then observed in para 18 that, “Off late, this Court has seen a surge in litigation relating to transfer. The State Of Himachal unlike other States is not evenly or uniformly developed in matters of basic infrastructure like education, health services etc. It is for this reason and rightly so that every employee tries to make an endeavour to seek posting in the district or tehsil headquarters where the infrastructure is relatively well developed. This we observe on the basis of the statistics relating to Shimla alone, where floating population is equal to permanent population. Most of these migration in urban areas is directly related with education of children and thereafter it could be for other purposes like better health facilities etc.”

Not stopping here, the Bench then also does not shy away from pointing in para 19 that, “We further notice that because of cartel created by few of the employees serving in the urban and semi urban areas of Himachal Pradesh, the influential employees manage to secure their postings in and around urban areas, leaving practically no room for the other employees.”

To be brutally honest, the Bench then also concedes in para 20 that, “The instant case is one such classical example, which reflects the modus operandi being resorted to by these teachers on completion of their tenure by seeking mutual transfer or creating artificial vacancies and thereafter getting each one adjusted in such vacancies.”

While taking into account the current situation, it is then enunciated in para 21 that, “It cannot be ignored that not only the State or Country but the whole world is in the grip of pandemic COVID-19, because of which students cannot be taught physically in the class rooms and are being taught through online classes.”

Practically speaking, the Bench then also makes it amply clear in para 22 that, “In such circumstances, the respondents are not only duty bound but are mandated by law to ensure that no monopoly in the matter of transfers is created in favour of selected fews but an endeavour has to be made to accommodate maximum number of teachers whose children are appearing for the board examination or examination for professional courses. These students can only study and attend classes online if there is adequate and desired band-width. Even otherwise the facilities of tuition and coaching classes on online are mainly available in these places i.e. the district and tehsil headquarters, therefore, also the State is required to adopt a fair and transparent policy of transfer by calling for the details of all the teachers whose children are to appear in the Board exam or examination for professional courses like MBBS, AIEEE etc. This would not only bring about an end to the monopoly created in favour of few teachers but would also ensure benefit to the student community as a whole.”

While giving the right and remarkable advice, the Bench then opines in para 23 that, “The Central Government, State Governments and likewise all public sector undertakings are expected to function like a ‘model employer’. A model employer is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has obligation to treat its employees equally and in appropriate manner so that the employees are not condemned to feel totally subservient to the situation. A model employer should not exploit the employees and take advantage of their helpless and misery.”

While continuing in the same vein, the Bench then holds in para 24 that, “The action of the State must be reasonable, fair, just and transparent and not arbitrary, fanciful or unjust. The right of fair treatment is an essential ingredient of justice. Exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively, judiciously and without prejudice. Wider the discretion, the greater the chances of abuse. Absolute discretion is destructive of freedom, than of man’s other inventions. Absolute discretion marks the beginning of the end of the liberty.”

While citing the relevant case law, it is then pointed out in para 26 that, “Here it shall be apposite to make a reference to the judgment of the Honble Supreme Court in New India Public School vs. Huda (1996) 5 SCC 510, wherein it was observed that when public authority discharges its public duty, it has to be consistent with the public purpose and clear and unequivocal guidelines or rules are necessary and the same cannot be acted at the whim and fancy of the public authorities or under their garb or cloak for any extraneous consideration.”

 

More significantly, it is then held in para 31 that, “It is not in dispute that the petitioner as also the third respondent hold a State Cadre Post, yet the petitioner has not been posted outside the district and has rather served in and around Shimla within a radius of 35 kms, in her entire service career.”

No less significant is what is then stated in para 32 that, “The case of respondent No. 3 is also not different, as she except for a brief period from 01.09.2010 to 03.04.2012 when she was posted at GSSS, Bisha (Solan), has also remained posted in and around Shimla and have served within a radius of 47 kms out of which 90% of the commutation is on the main National Highways.”

Truth be told, it is then conceded in para 33 that, “Obviously, these postings both in the case of the petitioner as also respondent No. 3 could not have been possible without the active support of the official respondents.”

To put it succinctly, the Bench then candidly goes on to add in para 34 that, “As observed above, there has been a spike in cases relating to transfer and majority of these cases pertain to the respondents-department i.e. Education Department. It is for this precise reason that this Court in CWP No. 1978 of 2019, titled as Sunita Devi vs. State of H.P. & Ors. decided on 18.03.2020 has recommended the State Government to implement online transfer in its Departments, Boards, Corporations etc. having over 500 employees by framing an online transfer policy on similar line as that of the adjoining State of Haryana.”

Fittingly enough, the Bench then holds in para 35 that, “In conclusion, even though we find the transfer of the petitioner to be malafide as it has been made in order to adjust the third respondent with no reasonable basis, but that does not mean that the petitioner would be entitled to be retained at GSSS Sanjauli.”

No doubt, it is then rightly pointed out in para 36 that, “It is well known that, “Hard cases make bad law”.” Para 37 further too rightly points out that, “Robert CJ in Caperton vs. A.T. Massey held that extreme cases often test the bounds of established legal principles. There is a cost to yield to the desire to correct the extreme case, rather than adhering to the legal principal. The cost has been demonstrated so often that it is captured in a legal aphorism “Hard cases make bad law”.”

Without mincing any words, it is then pointed by the Bench in para 39 that, “Granting indulgence to any of the parties in this case would be causing manifest injustice to other teachers who are desirous of serving in Shimla and other district and tehsil headquarters but have failed mainly because of the cartel formed by the influential teachers like the parties in the instant case.”

What’s more, the Bench then adds further in para 40 that, “Even though the petitioner has made out a legal ground for quashing the impugned order, however, this Court is still not inclined to exercise discretion in her favour as “justice” is not on the side of the petitioner.”

To top it all, the Bench then holds in para 41 that, “In the given facts and circumstances of the case as discussed above, neither the petitioner nor the third respondent deserve to be posted in their home district.”

While continuing in the same vein, the Bench then further directs in para 42 that, “Accordingly, while disposing of the writ petition, we direct respondents no. 1 and 2 to transfer the petitioner as also respondent No. 3 outside their home district(s) within two weeks from today. The respondents while effecting the transfers shall bear in mind that the same should not amount to adjustment and should be a meaningful transfer.”

Finally and most significantly, it is then held in para 43 that, “Before parting, we hope and trust that the respondents would take all requisite steps to break the cartel and as far as possible ensure that maximum number of teachers, especially those whose children are to appear in the Board examination and examination for professional courses are afforded an opportunity to serve in the district and tehsil headquarters or wherever requisite infrastructure like adequate band width facility of tuition etc. are available.”

In conclusion, the two Judge Bench of the Himachal Pradesh High Court has taken the right approach in dealing with such cases where influential teachers try to always get plum posting only. It has rightly refused to grant any relief to the petitioner. It also has rightly made it clear that the respondents (official authorities) are not only duty-bound but are mandated by law to ensure that no monopoly in the matters of transfers is created in favour of selected few.

Sanjeev Sirohi