No Interference With Government Conclusion That Use Of Social Media By Army Personnel Enables Enemies To Gain Edge: Delhi High Court

While dismissing a petition challenging the ban on army officers using social media, the Delhi High Court in Lt Col PK Choudhary Vs Union of India & Ors. in W.P.(C) No. 4181/2020 delivered via video conferencing on August 5, 2020 has observed in no uncertain terms that the scope of judicial review over matters concerning defence and security is limited. We thus see that the Delhi High Court declined to interfere with the government conclusion that use of social media by army personnel enables enemies to gain edge. Very rightly so!

To start with, this extremely laudable, latest and landmark judgment authored by Mr Justice Rajiv Sahai Endlaw for himself and Ms Justice Asha Menon first and foremost sets the ball rolling in para 1 by observing that, “The petitioner, a Lieutenant Colonel with the Indian Army, has filed this petition seeking a writ of mandamus directing the respondents (i) Union of India, (ii) Director General of Military Intelligence, and (iii) Chief of the Army Staff to withdraw their policy dated 6th June, 2020 to the extent that it bans the petitioner and other members of the Indian Army from using social networking platforms like Facebook and Instagram and to the extent it orders the petitioner and other members of the Indian Army to delete their accounts from social networking platforms like Facebook and Instagram; declaration is also sought that the respondent no. 2 Director General of Military Intelligence is not empowered under the Constitution of India or under any other law, to modify, amend or abrogate the fundamental rights of the petitioner and other members of the Armed Forces.”

While elaborating further, it is then observed in para 2 that, “The petition came up before us first on 14th July, 2020. It was found that though the petitioner had pleaded that on 9th July, 2020, the policy aforesaid was circulated to the members of the Indian Army but the policy had not been produced before the Court. It was the plea and contention of the counsel for the petitioner that the petitioner, as a responsible officer, to maintain confidentiality, had not annexed the policy, which is for restricted circulation, to the petition or reproduced the contents thereof in the petition. Being of the view that the counsels should be heard only after we have had an occasion to peruse the policy and if the documents prescribing the policy did not record the reasons therefor, the documents containing the reasons for the policy, we directed the counsel for respondents, appearing on advance notice on 14th July, 2020 to circulate in a sealed cover the policy and/or the documents containing the reasons therefor and deferred the hearing to 21st July, 2020.”

To put things in perspective, it is then pointed out in para 17 that, “We find it to be a fit case to apply the law as discussed in the paragraph before the preceding paragraph. Even if there is any error in the respondents issuing the impugned policy and direction, without complying with the procedure prescribed in Section 21 of the Army Act, considering that the issue has an element of urgency and concerns the safety and security of the entire country, we do not deem it necessary to, for the grievance of the petitioner only, render an adjudication on the questions urged and which may require us to refer to the documents and materials shown to us in confidence. What has also weighed in our mind is, that any interpretation given by us in the facts of the present case, of Section 21 of the Army Act, Defence Regulations and army orders, may be prejudicial to the personnel of the armed forces in a case with better facts. The counsel for the petitioner also has in response to the question posed to him not been able to give any explanation, why we should not in our discretion refuse to adjudicate the question urged of violation of fundamental rights of the petitioner of speech and expression without in accordance with law. In fact, save for stating that Facebook and Twitter are more convenient, no answer was forthcoming to, why the filial and other social needs of the petitioner cannot be fulfilled by other means of communication cited by the ASG, which are still available to the petitioner. It was suggested that the petitioner cannot explore other people whose contacts are not known to him. In this context we may record that we find the petitioner, on Facebook and Twitter, following and being followed by a large number of persons from other fields and making comments on their posts/tweets and qua which the ASG said, is breach of earlier advisories/Regulations.”

While citing the relevant case laws, it is then envisaged in para 18 that, “Supreme Court, in People’s Union for Civil Liberties Vs. Union of India (2004) 2 SCC 476 was concerned with writ petitions seeking disclosure of information relating to purported safety violations and defects in various nuclear installations and power plants across the country. It was held that (i) the jurisdiction of the Courts in such matters is very limited; (ii) the Court will not normally exercise its power of judicial review in such matters unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practices; (iii) the order can be set aside if it is held to be beyond the limits for which the power has been conferred upon the authorities by the legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required thereunder, no such case had been made out in the facts of that case; (iv) the State must have the prerogative of preventing evidence being given on matters that would be contrary to public interest and, (v) when any claim of privilege is made by the State in respect of any document, the question whether the documents belong to the privileged class, is first to be decided by the Court; the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question; the claim of immunity and privilege has to be based on public interest.  Again, in State of N.C.T. of Delhi Vs. Sanjeev (2005) 5 SCC 181, it was held that (a) the present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troops, entering into international treaty etc.; the distinctive features of some of these recent cases signify the willingness of the Court to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised; (b) the administrative action is subject to control by judicial review on the grounds of illegality, irrationality and procedural impropriety; (c) if the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous; (d) if a power is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated; and, (e) judicial review can be limited in the case of national security. Again, in Ex-Armymen’s Protection Services Pvt. Ltd. Vs. Union of India (2014) 5 SCC 409, it was held that (i) the decision on whether the requirements of national security outweigh the duty of fairness on a particular case is for the government and not for the Courts; the government alone have access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security; (ii) those who are responsible for the national security must be the sole judges of what the national security requires and it is undesirable that such matter should be made the subject matter of evidence in a Court of law or otherwise discussed in public; (iii) what is in the interest of national security is not a question of law – it is a matter of policy and it is not for the Court to decide whether something is in interest of State or not; and, (iv) once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party. The same was followed in Digi Cable Network (India) Pvt. Ltd. Vs. Union of India (2019) 4 SCC 451.”

While explaining the reasons behind denying the petitioner what he wanted, it is then stated in para 22 that, “It is also in the light of the aforesaid judgments that we have herein observed that we do not deem it appropriate to exercise the discretion vested in us as aforesaid in exercise of powers under Article 226, to not entertain the petition and not adjudicate the issues raised. Had we, on perusal of the impugned policy which itself is a restricted document or the supporting material thereof found the same to be suffering from the vice of non-application of mind or being not based on any material on record or being without proper deliberations, we would have certainly proceeded to answer the legal issue raised by the petitioner, of the ban being imposed on the petitioner and others similarly placed as the petitioner without complying with Article 33 of the Constitution and Section 21 of the Army Act. However, once we are satisfied on the aforesaid parameters and find other means of communication to be still available to the petitioner and the ban being with respect to certain social networking websites only and more so, once we have found the petitioner himself to have been posting tweets which according to the ASG are in violation of the policy earlier in force qua use of social media, we do not deem it apposite to at the instance of the petitioner to go into the questions urged. Rather, we do not appreciate the pleadings of the petitioner as a senior officer in the Army, of army personnel being treated as slaves and the government not trusting its army.”

Most significantly, it is then held in para 23 that, “We may also notice that warfare and inter-country rivalries and animosities today are not confined to accession of territory and destruction of installations and infrastructure of enemy countries but also extend to influencing and affecting the economies and political stability of enemy country including by inciting civil unrest and disturbance and influencing the political will of the citizens of the enemy country. In such a scenario, if the government, after complete assessment, has concluded that permitting of certain social networking websites by personnel of its defence forces is enabling the enemy countries to gain an edge, the Courts would be loath to interfere.”

To summarise, the Delhi High Court Bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon made it clear by this notable judgment that the Government has the power to ban use of social media by army personnel when it feels that this will give enemies an edge as we see here also! The Delhi High Court also took a serious note of the submission of the Centre that army officers were posting pictures and details of their posting locations in social media which can easily convey a full picture to an expert espionage eye. Thus we see that the Delhi High Court clearly and convincingly ruled while dismissing petitioner’s claim that no case for interference is made out! Very rightly so!

Sanjeev Sirohi

Death By Rash Driving: Delhi HC Holds Debarment From Obtaining Driving Licence For Life As Excessive Sentence.

      In a balanced, brilliant and bold decision, the Delhi High Court has just recently on March 12, 2020 in a latest, landmark and extremely laudable 15-page judgment titled Sunil Kumar Mishra vs. State in Crl. Rev. P. 494/2017 which is pertaining to death caused due to rash and negligent driving has very rightly held that lifetime ban on the convict from getting a driving license is too harsh a sentence when his entire livelihood is depended upon driving. While modifying the order of sentence in a revision petition, the Single Bench of Justice Sanjeev Sachdeva of Delhi High Court has very rightly and remarkably observed that, “The punishment of cancellation of the driving license permanently and debarring him from obtaining any driving license throughout his life literally amounts to his civil death because he would not be in a position to carry out his profession for life.” Very rightly so!

To start with, this notable oral judgment authored by Justice Sanjeev Sachdeva of Delhi High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner impugns judgment dated 27.02.2017 whereby the appeal of the petitioner impugning order on conviction dated 28.10.2015 has been dismissed, however, the order on sentence dated 08.11.2015 has been modified.”

While elaborating on the charges against the petitioner and the punishment that he had been sentenced to undergo, it is then observed in para 2 that, “Petitioner was convicted by the Trial Court of the offences punishable under Sections 279/304-A of the Indian Penal Code (IPC for short) and sentenced to undergo rigorous imprisonment for a period of six months for the offence under Section 279 IPC and rigorous imprisonment for the period of 18 months under Section 304A IPC.”

While then elaborating on the decision taken by the Appellate Court, it is then brought out in para 3 that, “The Appellate Court, in the appeal filed by the petitioner, considering mitigating circumstances and also the family condition of the petitioner, while upholding the order on conviction, modified the order on sentence and sentenced the petitioner to pay a fine of Rs 1000/- for the offence under Section 279 IPC and in default of payment of fine to undergo simple imprisonment for a period of 8 days and sentenced the petitioner to undergo rigorous imprisonment for a period of 12 months for the offence under Section 304A IPC, instead of 18 months.”

In addition, it is then also pointed out in para 4 that, “The Appellate Court additionally directed that the driving licence of the petitioner shall stand cancelled and debarred him from obtaining any driving licence throughout his life and directed that no fresh driving licence shall be issued to him.”

By all accounts, the punishment that was imposed by the Appellate Court as narrated in para 4 is far too excessive. This has been acknowledged and appreciated even by the Delhi High Court itself in this landmark judgment even though it admitted that the Appellate Court is empowered to debar a person from holding a licence for as long a period as it deems fit. So no wonder that it had to be set aside!

Be it noted, para 29 very rightly states that, “The petitioner is a driver by profession and cancellation of the driving license of the petitioner permanently and debarring him from obtaining a driving licence for life amounts to a punishment that he cannot carry out the vocation of driving throughout his life.”

Most significantly, it is then very rightly conceded in para 30 that, “The punishment of cancellation of the driving license permanently and debarring him from obtaining any driving license throughout his life literally amounts to his civil death because he would not be in a position to carry out his profession for life.” Who can deny or dispute this? Certainly no one!

Needless to say, it is quite remarkable that Delhi High Court has been gracious enough to concede that the consequences of cancellation of his driving license for life and debarring him from obtaining any driving license throughout his life literally amounts to his civil death as he would be decapitated from carrying out his profession throughout his remaining life which certainly under no circumstances can be justified as two wrongs cannot make a right! The Appellate Court certainly did not deliberate much on this! This alone explains why it failed to appreciate what the Delhi High Court has done now so rightly!

To put it succinctly, the Delhi High Court then rightly held in para 32 that, “In the present case, as noticed above, the concurrent finding of both the courts below is that petitioner caused the death by driving the offending vehicle i.e. truck trailer, in a rash and negligent manner and hit against the deceased from the back, in such a manner that it caused the death of the deceased on the spot. Clearly, it cannot be said that the action of the Appellate Court in directing cancellation of the license driving license is unwarranted. However, in the facts of the case and particularly keeping in view the provisions of section 22 of the Act, I am of the opinion that cancellation of the license driving license of the petitioner for all classes or description of vehicles is excessive.”

Finally and no less significantly, it is then held in para 33 that, “Keeping in view the facts and circumstances of the case, interest of justice would be served, in case, the sentence awarded by the Appellate Court of cancellation of the driving license of the petitioner and debarring him from obtaining any driving license throughout his life, is modified to the extent that the driving license of the petitioner is cancelled for the class and description of medium and heavy goods and medium and heavy passenger vehicle and he is debarred from obtaining a driving licence for medium and heavy goods and medium and heavy passenger vehicle. For obtaining a driving licence of other description of vehicles he shall have to undergo a fresh test of competence to drive.”

In conclusion, it may well be said that it is a fairly balanced and well concluded judgment. Justice Sanjeev Sachdeva of Delhi High Court very rightly acknowledges the power of the Appellate Court to deprive the petitioner of his driving license for life but in the same vein also concedes that it is excessive! This alone explains that why the judgment of the Appellate Court was overturned and the petitioner was granted relief by the Delhi High Court! All the courts must follow the Delhi High Court in similar such cases and take a compassionate view as we see here in this notable judgment!

Sanjeev Sirohi

Delhi High Court Imposes Rs. 50,000 Cost On Woman For False Sexual Harassment Plea

It is most heart warming to note that Delhi High Court in a latest, landmark and extremely laudable judgment titled Anita Suresh vs. Union of India & Ors in W.P.(C) 5114/2015 delivered on July 9, 2019 has rightly gone the extra mile and imposed Rs. 50,000 cost on a woman for false sexual harassment plea. The blatant misuse of laws against men is all too well known even though much as woman activists among others would like to gloss it over on one ground or the other! But this latest extraordinary judgment has served to send a very loud and stern message to all women that they dare not try to misuse laws against men without any valid cause and if they dare to do so then they should be prepared to face the music and cough up a huge amount as fine! From now onwards, women must always ensure before approaching courts that their own hands are clean and if they still don’t care then well they might find themselves landing in a hot soup as we see has happened with the petitioner in this commendable case!

                               To start with, the ball is set rolling in para 1 of this notable judgment by Justice JR Midha of the Delhi High Court wherein it is pointed out that, “The petitioner has challenged the order dated 20th January, 2012 of the Internal Complaints Committee (ICC). The petitioner is seeking a direction to respondent No. 2 to withhold the retirement benefits of respondent No. 3 to initiate independent departmental enquiry against respondent No. 3 and to also prosecute respondent No. 3.”

                            To recapitulate, it is then outlined in para 2 that, “The petitioner was working as an Assistant Director with ESI Corporation in Manesar, Gurgaon in July 2011. On 08th July, 2011, the petitioner made a written complaint to the Director General of ESI Corporation alleging sexual harassment by respondent No. 3. According to the petitioner, respondent No. 3 misbehaved and made attempts of sexual advances. The petitioner reported following two incidents dated 07th July, 2011 in the complaint:-

(i)                         ‘Yesterday when I was seated with my colleagues on the 1st floor of the building, Sh. Verma came and commented indicating sexual advances. I cannot for the reasons of modesty bring on papers the filthy language he uses for me’.

(ii)                      ‘Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon’.”

                                                 To be sure, para 3 then states that, “Respondent No. 1 constituted an Internal Complaints Committee to examine the complaint of the petitioner. Respondent No. 3 appeared before the Committee and denied all the allegations made by the petitioner. According to respondent No. 3, the petitioner made the complaint because of the grudge against him due to certain official work disposed by him in her absence.” Para 4 then reveals that, “The Committee examined the petitioner as well as respondent No. 3. The Committee examined eight witnesses namely Rashmi Kapoor (O.S.), Lakhan (Supervisor Housekeeping), Rajender Yadav (SSO), Prasanna (Staff Nurse), Hema (Staff Nurse), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician).”

                                     Be it noted, para 5 then envisages that, “The Committee submitted its report on 20th January, 2012, in which it observed that the exact content of communication of the incident dated 07th July, 2011 could not be established. The Committee gave benefit of doubt to respondent No. 3 and recommended relocating both the petitioner and respondent No. 3 from their present posting.”

                                     Needless to say, para 6 then brings out that, “Learned counsel for the petitioner urged at the time of the hearing that the findings of the Committee are erroneous and unjustified. It is submitted that the petitioner had proved by sufficient evidence that respondent No. 3 misbehaved and made attempts of sexual advances against the petitioner on 07th July, 2011 mentioned in the written complaint on 08th July, 2011. Respondent No. 3 pressurized the petitioners to withdraw her complaint whereupon a warning was issued to him on 04th November, 2011. The transfer of both the parties to different places was not a justified penalty to the respondent No. 3.”

                                  As things stand, para 7 then discloses that, “Learned counsel for the respondent No. 1 urged at the time of the hearing that respondent No. 1 transferred both the petitioner and the respondent No. 3 from their posting. It was further submitted that respondent No. 3 superannuated on 28th February, 2015.”

                            Furthermore, it is then disclosed in para 8 that, “Vide order dated 28th March, 2019, this Court directed the employer, ESI Corporation to produce the original relevant records which were produced on 09th April, 2019 and have been examined by this Court.”

                              Moving on, it is then illustrated in para 9 that, “The petitioner made the complaint dated 08th July, 2011 against the respondent no. 3 which is reproduced hereunder:-


The Director General,

ESI Corporation,

Hqrs. Office, CIG Marg,

New Delhi – 02.

   Sub: Sexual harassment by Sh. O.P. Verma, Dy Director, ESI Hospital, Manesar, Haryana.


         I am posted as Assistant Director in the office of ESI Hospital, Manesar. In the same office another officer Sh. O.P. Verma, Dy. Director is seated in the adjoining room where I work. For some time passed Sh. O.P. Verma has been misbehaving with me and makes attempts of sexual advances. It was only yesterday when I was seated with my colleagues on the 1st floor of the building. Sh. Verma came and commented indicating sexual advances.

        I cannot for the reasons of modesty bring on papers the filthy language he uses for me. Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there and I will follow you soon.

       I am to request you to safeguard my honour and take necessary action against him. I will explain the earlier instances of harassment as and when the matter will be investigated.

           This matter has also been brought to the notice of the Medical Superintendent in earlier and in the afternoon of 07.07.2011 also.

                                                       Yours faithfully,                                                                                  Signed/-

                                                    ( Anita Suresh)

                                                Assistant Director

                                              ESI Hospital, Manesar.’”

                                To say the least, para 10 then states that, “As per the complaint dated 08th July, 2011 of the petitioner, the respondent no. 3 made comments indicating sexual advances against the petitioner who was sitting with her colleagues on the first floor of the building on 7th July, 2011. The second incident mentioned in the complaint is that the respondent told the petitioner to come alone in the male toilet to check the shortcomings in the presence of the staff and other members.

                            More significantly, para 11 then discloses that, “The Committee examined the petitioner who could not recollect the names of any of the persons present at the time of the aforesaid incidents. The petitioner was shown the relevant papers relating to the staff members present on that day but still she could not recollect the names. The petitioner stated that she confided the incidents to Rashmi Kapoor (O.S.) on the same day after the incident. The Committee examined Rashmi Kapoor who stated that she was not present at the time of incident. However, she stated that the petitioner told her that the attitude of respondent No. 3 towards the petitioner was not good. She further stated that the petitioner told her that respondent No. 3 made two inappropriate comments against her. However, these two comments were not stated by the petitioner in her statement to the Committee.

                                   What’s more, para 12 then points out that, “The Committee examined Lakhan (Supervisor Housekeeping) who stated that the petitioner was matching the goods with the list and he did not witness any incident on 07th July, 2011 as alleged by the petitioner.” Also, para 13 then reveals that, “The Committee examined Rajender Yadav (SSO) who was present at the time of incident and he stated that there was no altercation between the petitioner and respondent No. 3.” All this certainly serves to weaken the petitioner’s claims and the serious charges which she leveled against the respondent No. 3.

                                   Going forward, para 14 then further discloses that, “The Committee examined Prasanna (Staff Nurse) who stated that the petitioner had normal relations with respondent No. 3 who never commented on her in her presence.” Para 15 then also makes it clear that, “The Committee examined Staff Nurses Hema (Nursing Orderly), Pradeep Kataria (Nursing Orderly), Jai Bhagwan (Nursing Orderly) and Kalpana (Dietician) who did not witness any incident on 07th July, 2011.”

                                  Not stopping here, it is then brought out in para 16 that, “The Committee examined respondent No. 3 who denied all the allegations of sexual harassment made by the petitioner. He stated that he brought the absence of soap in the male toilet to the notice of the petitioner. He further stated that his remarks were misinterpreted and taken totally out of context. He further stated that the petitioner made complaint against him due to a grudge which was the result of certain official work disposed by him in petitioner’s absence.”

                                To put things in perspective, para 17 then enunciates that, “On careful consideration of the record of the inquiry proceedings, this Court is of the view that the complaint dated 08th July, 2011 of the petitioner appears to be false. The complaint dated 08thJuly, 2011 contains two incidents out of which the first incident was in the presence of the staff and other members. During the inquiry proceedings, the petitioner could not give the name of any person present at the time of the incident. The petitioner was shown the record of the staff persons present on duty on the date of the incident but still she could not recollect the names of any colleague/staff member. It is not believable that the petitioner would not remember the names of any colleague/staff member. The Committee examined all the persons who were on duty on that day but no persons supported the allegations of the petitioner. The petitioner has not mentioned the alleged comments of respondent No. 3 in the complaint on the ground of modesty. The petitioner did not even disclose the alleged comments before the Committee. Nor reason or justification was been given by the petitioner for not disclosing the same before the Committee. The entire complaint of the petitioner appears to be false and has been filed with some ulterior motive.”

                           It cannot be lost on us that delving deeper, para 18 then brings to light that, “The record produced by the respondent No. 5 contains the service record of the petitioner. The petitioner joined ESI Corporation as an Insurance Inspector on 24thSeptember, 1997. On 15th February, 1998, the petitioner was issued a charge sheet for major penalty proceeding for negligently surveying two firms ignoring vital information and suppressing material information while submitting the survey reports. Vide order dated 23rdOctober, 2001, the Insurance Commissioner took the view that the petitioner had only put one year of service in the Corporation and no malafide intention was proved and therefore, a lenient view was taken and the penalty of ‘Censure’ was imposed upon her. On 03rd March, 2006, the petitioner was issued a charge sheet for major penalty proceeding by Regional Office, Delhi on the allegations that during her posting in Legal Branch as an Insurance Inspector for the period from 22nd March, 2004 to 12th July, 2004, the petitioner had exhibited gross misconduct as she failed to follow the reasonable order of her superiors and exhibited lack of devotion towards duty. Vide order dated 22nd September, 2009, the Insurance Commissioner observed that the conduct of the petitioner was unbecoming of a Corporation employee and imposed the penalty of reduction pay by one stage for one year. The petitioner filed an appeal which was rejected by the Appellate Authority vide order dated 27th October, 2010 and thereafter, she preferred a revision petition which was also rejected. This rejection order was further challenged by the petitioner before this Court in W.P. (C) 8529/2011 which was dismissed by this Court vide order dated 24th November, 2011. On 13thJuly, 2011, the Medical Superintendent of ESIC, Hospital, Manesar, Haryana, Dr. Archana Rani gave a written memorandum to the petitioner who was posted in the hospital as an Assistant Director to show cause as to why the action should not be taken against her for insubordination and gross misconduct. The above mentioned incidents show that the petitioner did not have a clean service record.”

                               Most importantly, it is then held in para 19 that, “There is no merit in this writ petition which is dismissed with cost of Rs. 50,000/- to be deposited by the petitioner with the Delhi High Court Advocates Welfare Trust within four weeks.” Thus we see that all the tall claims made by the petitioner falls flat and fails to impress the Delhi High Court as she could not produce anything substantial to back her tall claims against the respondent No. 3! This alone explains why it is then ruled in the next para 20 that, “Respondent No. 2 is at liberty to initiate appropriate action against the petitioner for filing false complaint against the respondent No. 3 in accordance with law.”

                                      To conclude, the Delhi High Court has acted most wisely by deciding to not allow the petitioner to go scot free. She willingly decided to defame the respondent No. 3 without any concrete ground in front of the whole society. So she had to be taken to task for it! This alone explains why the Delhi High Court imposed Rs 50,000 cost on petitioner for false sexual harassment plea. Very rightly so! Not just this, she should be jailed also for at least six months or an year so that the right message goes across to all women that they dare not misuse the sexual harassment laws against men whenever they want at their own whims and fancies! We all saw how recently even the incumbent CJI Ranjan Gogoi was not spared when a subordinate women employee levelled grave charges but failed to prove anything in front of the in-house Committee set up by the Supreme Court under the chairmanship of Justice Sharad A Bobde and so palapably the CJI Ranjan Gogoi had to be exonerated! Law must apply to erring women also now! This is what the Delhi High Court has rightly sought to do here! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Delhi High Court Directs Government To Set Up 18 Fast Track And 22 Commercial Courts

In a path breaking and hugely significant development, the Delhi High Court in a latest, landmark and extremely laudable judgment titled Prag Chawla vs Government of NCT of Delhi and another in W.P.(C) 3939/2019 has very rightly and commendably directed the government of NCT Delhi to decide on the establishment of 18 fast track courts and 22 commercial courts in various districts of Delhi as demanded by the Delhi High Court. It also sought a report on the decision taken before May 30. A Division Bench of Chief Justice Rajendra Menon and Justice Anup Jairam Bhambhani held quite explicitly on May 16, 2019 that once the High Court has made a demand for establishment of certain courts (fast track and commercial) for speedy disposal of cases, the State Government cannot sit over the appointments but instead is duty bound to sanction the requisite number of posts.

Needless to say, the Delhi High Court was hearing a writ petition filed by one Prag Chawla who sought directions for appointments to the posts for these courts. This matter remained pending before the State government for more than two years. Senior Counsel Dayan Krishnan appeared on behalf of the petitioner along with others while Anupam Shrivastava appeared on behalf of the Delhi government and Rajshekhar Rao represented the Delhi High Court itself.

To start with, this judgment sets the ball rolling in para 1 by first and foremost observing that, “This writ petition has been filed by the petitioner in public interest and the prayer made reads as under:

‘a) Direct the Respondent No. 1 to make the FTC scheme as a permanent feature in place of the present ad-hoc and temporary FTC scheme and accordingly sanction 20 posts of Additional District & Sessions Judge in Delhi Higher Judicial Service along with 95 posts of ancillary staff on permanent basis for Fast Track Courts.

b) Direct the Respondent No. 1 to create 22 posts of Delhi Higher Judicial Service in super time scale for commercial court judges along with ancillary staff.

c) Pass any other order(s) which this Hon’ble Court deems fit and proper, in favour of the Petitioner’.”

To be sure, it is then pointed out in para 2 that, “The Full Court of the High Court of Delhi had sanctioned 20 posts of Additional District & Sessions Judge in Delhi Higher Judicial Service and other requirements and 22 further posts in the Delhi Higher Judicial Service in super time scale for establishment of commercial courts.”

As things stand, para 3 then brings out that, “The matter is pending before the Govt. of NCT of Delhi/respondent No. 1 since more than 2 years and finally the communication received from time to time from the Govt. of NCT of Delhi and the response of the Delhi High Court have been brought before us by Shri Rajshekhar Rao, learned counsel representing the Delhi High Court in the form of a paper book which contains various communications between the Govt. of NCT of Delhi and the Delhi High Court.”

Be it noted, it is then brought out in para 4 that, “On 06.05.2019, the Principal Secretary (Law, Justice & LA) has made a communication to the Registrar General of this Court which reads as under:


With reference to your office letter No. 5002/DHC/Gaz/G-1/2018 dated 22.11.2018 on the above captioned subject, I am directed to inform you that the proposal for creation of 18 post of ADJs in Delhi Higher Judicial Service along with 86 posts of ancillary staff for fast Track Courts was placed before the Council of Ministers for consideration. However, the following information is further required to take necessary action in the matter:

1. Total number of criminal cases relating to serious offences which are pending for more than two years in District Courts.

2. Average rate of disposal of cases @ each Fast Track Court in last two years to consider whether if only 18 Fast Track Courts shall serve the purpose or more number of Courts are required to be established.

The above information may kindly be provided at the earliest”.”

It is then observed in para 5 that, “From the aforesaid, it is clear that the Department wants the total number of criminal cases relating to serious offences which are pending for more than 2 years in the District Courts in Delhi.”

As it turned out, it is then held in para 6 that, “Having heard Mr. Dayan Krishnan, learned Senior Counsel representing the petitioner, Mr. Anupam Srivastava, learned Addl. Standing Counsel for the respondent No. 1/Govt. of NCT of Delhi and Mr. Rajshekhar Rao, learned counsel for the respondent No. 2/Delhi High Court and on going through the records, we find that most of these details have already been furnished by the Delhi High Court and are available with the Govt. of NCT of Delhi. In spite thereof, if any further specific details are required, the Law Secretary should communicate it to the Registrar General of this Court by 18.05.2019 and the Registrar General shall personally furnish the entire information to the Principal Secretary (Law, Justice & LA) on 20.05.2019 by attending his office.”

Going forward, it is then held in para 7 that, “As far as the second query is concerned, the Govt. of NCT of Delhi wants to know as to how many further fast track courts are necessary to be established. The query clearly indicates that the Govt. of NCT of Delhi is even willing to sanction more courts and therefore there should not be any impediment in sanctioning at least the 18 courts indicated in the query.” Para 8 states that, “Accordingly, we direct that appropriate sanction for establishment of 18 fast track courts should be communicated immediately to the Delhi High Court.”

While underlying the reasons behind this landmark order, it is then pointed out in para 9 that, “We are constrained to pass the aforesaid order primarily on account of two facts: one, that the statistics provided by the petitioner which are based on information received under the Right to Information Act shows that more than 6,414 cases under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) are pending in various courts in Delhi and more than 2,800 cases under various other sections, particularly Section 376 IPC are pending in the courts in Delhi. The mandate of Section 309 of the Cr.P.C. is that cases under Section 376 IPC and cognate provisions, which would now also include cases under POCSO are required to be decided within two months; and decision of cases within the time-frame provided under the statute until and unless adequate number of fast track courts are sanctioned.”

What’s more, it is then pointed out in para 10 that, “That apart, Mr. Dayan Krishnan, learned Senior Counsel representing the petitioner has invited our attention to a Division Bench judgment of the Bombay High Court in the case of Vihar Durve s. State of Maharashtra & Ors., 2018 Law Suit (Bom) 2435 and the principles crystallized in paras 32 and 33 thereof which read as under:

32. This Court went to the extent of holding that when the State Government is conferred with the power to establish the Courts, the said power has to be exercised after consultation with the High Court and in the matter of such consultation, the view of the High Court will have a primacy.

33. Thus, it is already held that in the matter of establishing the new Courts, the views of the High Court will have the primacy. Considering the mandate of Article 21 and Article 39-A, it is the duty of the judicial system to take all such steps so as to ensure that no citizen is deprived of his fundamental rights guaranteed under Article 21 of the Constitution of speedy trial. It is a settled position that it is the obligation of the State to provide all possible infrastructure to the judiciary to ensure that the mandate of Article 21 is followed. If the argument of the State is accepted, it would mean that in a given case, when the High Court Administration is of the considered view that a particular place, it is necessary to create certain number of additional posts of Judges, the State will finally decide whether creation of additional posts of the Judges is necessary at that particular place. Therefore, it comes to it that the State will decide how many Judges are required to deal with the pendency of cases at a particular place and for ensuring the speedy trial. If this view is accepted, it will impinge upon the independence of judiciary which is a part of the basic structure of the Constitution of India”.”

It cannot be lost on us that it is then pointed out in para 11 that, “These principles clearly indicate that once the High Court has sought for certain courts for speedy disposal of cases, the State Government cannot sit over it and has no option but to sanction the posts as demanded by the High Court.”

Above all, it is then pointed out in para 12 that, “That apart, now under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the State is also bound to create commercial courts in an endeavour to dispose of commercial disputes. More than 22 courts are required to be established in various Districts of Delhi for clearing cases under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and the demand for the same is also pending before the Govt. of NCT of Delhi. Once the High Court has made a demand, the State is duty bound to sanction the posts and therefore we direct that with regard to 18 fast track courts and 22 commercial courts as demanded by the High Court, the matter be placed before the appropriate authorities namely the Cabinet, a decision taken and a report submitted to this Court on or before 30.05.2019.” The last para 13 then says that, “List on 30.05.2019.”

To conclude, State must comply with what the Delhi High Court has ordered in its extremely landmark and laudable judgment. It has already been stated in detail above. There is thus just no need of repetition!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Delhi High Court Upholds Eviction Order Against National Herald Publisher AJL

At the very outset, it has to be stated quite explicitly that in a major setback to Congress party, Congress chief Rahul Gandhi and his mother Sonia Gandhi, a Division Bench of the Delhi High Court comprising of Chief Justice Rajendra Menon and Justice V Kameswar Rao on February 28, 2019 in this landmark, laudable and latest case titled The Associated Journals Ltd & Anr v. Land & Development Office in LPA 10/2019 & CM Nos. 566/2019 & 649/2019 has clearly and convincingly upheld the eviction order passed against National Herald publisher – Associated Journals Limited to vacate ITO premises where Herald House is located. It must be noted that the eviction order under the Public Premises Act was passed by Centre and the Land and Development Office (LDO) stating that no press has been functioning in the premises for at least the past 10 years and it was being used only for commercial purposes in violation of the lease deed. It would be pertinent to mention here that the order was passed in the backdrop of majority of shares of AJL being transferred to the company Young India (YI), in which Congress chief Rahul Gandhi and his mother Sonia Gandhi are shareholders.

Before proceeding ahead, let us have a glimpse into the brief timeline of this high profile case involving the lease of Herald House which is the building which houses the Congress mouthpiece. It is as follows: –

Oct 30, 2018 – Land and Development Officer terminates the lease given to AJL for the building.

Nov 15, 2018 – The Delhi High Court asks the Centre to maintain status quo with regard to its eviction process.

Dec 21, 2018 – A single Judge Bench of the Delhi High Court dismisses appeal by AJL against the lease termination order.

Jan 6, 2019 – AJL challenges the single Judge judgment before a Division Bench of the Delhi High Court.

Feb 28, 2019 – The 2 Judge Bench of Delhi High Court upholds the Single Judge’s decision.

Interestingly enough, while challenging the eviction order, AJL approached the High Court. The single Bench of Delhi High Court comprising of Justice Sunil Gaur had repelled the challenge in December 2018. The Bench took serious note of the fact that AJL had been taken over by Young Indian Company for all practical purposes. It said that, “This Court is conscious of the fact that Young Indian Company is a charitable company, but modus operandi to acquire 99% of AJL’s shares speaks volumes. The manner in which it has been done is also questionable.”

First and foremost, para 1 sets the ball rolling by stating that, “Seeking exception to a judgment dated 21st December, 2018 passed in W.P. (C) No. 12133/2018 by the learned writ Court, this appeal is filed by the petitioner/appellant herein under Clause 10 of the Letters Patent Act read with Section 10 of the Delhi High Courts Act, 1966.”

What follows next is para 2 wherein it is illustrated that, “The appellant No. 1, the Associated Journals Ltd (hereinafter referred to as ‘AJL’) is a company which was incorporated on 20th November, 1937 for the purpose of publication of newspapers in different languages, the main aim for the publications were to propagate the principles and ideologies of the Indian National Congress (‘INC’). The appellant No. 2, Sh. Nalin Kumar Asthana is the Company Secretary and it is said that he had been authorized by the Board of Directors vide resolution dated 2nd April, 2018 to file this appeal.”

In retrospect, we then see that it is brought out in para 3 that, “Facts as have come on record reveal that on 2nd August, 1962 an agreement for lease/memorandum of agreement was entered into between the President of India (hereinafter referred to as ‘the lessor’) and the appellant company herein (hereinafter referred to as ‘the lessee’) whereby the lessor agreed to demise the suit land for the purpose of construction on certain terms and conditions as is mentioned therein. Clause XIX of the agreement provide for forfeiture and re-enter upon the premises in case the lessee breaches or commits any default in performance of the agreement. However, Clause XX imposes certain restrictions on the lessor in exercising this right of forfeiture of re-entry inasmuch as the lessee is entitled to a notice in writing specifying the breach complained of and in case the breach can be of remedy, to do so. Facts further reveal that the premises in question was leased @ Rs 1,25,000/- per acre for a specific purpose, that is, construction of a 5 storeyed building to enable the appellant company to establish its press and office for publication of the newspaper. It is said that vide letter dated 19th February, 1964, the appellant company expressed its desire for subletting certain portion of the building which according to the appellant was in excess of their requirements for newspaper publication and, therefore, after paying on additional premium of Rs.4,46,536/- sanction for subletting was granted and a perpetual lease in this regard was also executed on 10th January, 1967. Various other terms and conditions were also incorporated which would be referred to as and when required in the subsequent parts of this judgment.”

Of course, para 4 then states that, “It is further the case of the appellant that Clause III (7) of the perpetual lease dated 10th January, 1967 stipulate the manner in which different floors of the building were to be used and it was agreed to between the parties that the premises shall be used in the following manner:-

(i)                         Basement and anyone floor of the building shall be used for the purpose of housing the members and the first floor of the building for the press and offices of the lessee for the publication of the newspaper.

(ii)                      The remaining four floors of the building can be let out to other commercial concerns for housing their office accommodation but cannot be used for the purpose of hotels, cinemas and restaurants etc.”

While elaborating in detail, it is then narrated in para 5 that, “It is said that the AJL, even though it was incorporated on 20th November, 1937 but in the year 2002 its Chairman-cum-Managing Director was one Sh. Motilal Vora who also happens to be the Treasurer of All India Congress Committee (hereinafter referred to as ‘AICC’). Facts that have come on record further reveal that the AJL was an unlisted publishing company having 1057 shareholders as in the year 2010. The total land allotted to the company was 0.3365 acres and the same was situated on the Delhi-Mathura Road, bearing No. 5A, Bahadur Shah Zafar Marg, New Delhi. It is said that sometimes in the year 2009 and, thereafter in the year 2016 it came to the notice of the competent authority, particularly, the technical team in Land and Development Office that the premises in question was being used mainly for commercial purpose through subletting to various organizations and the premises was not being used for any press or newspaper publication activity. Accordingly, it is said that on 6th September, 2016 a letter was addressed to the appellant company notifying that the premises of the company would be inspected by the officers of the Department on 13th September, 2016. In pursuance to the aforesaid communication, inspection was carried out by the technical team on 13th September, 2016/26th September, 2016 and it is the case of the respondents that on inspection, the team did not find any press activity in the premises. The basement was lying vacant, ground floor and first floor were rented to Passport Office, i.e., Seva Kendra, second floor and third floor were used by Tata Consultancy Services and fourth floor by the appellant company. Annexure-P/9 at page 392 of the paper book is the notice of the inspection dated 6th September, 2016. Annexure-P/10 is the communication dated 9th September, 2016 made to the Land & Development Officer on behalf of the appellant company by Sh. Motilal Vora expressing his inability to be available at the time of inspection on 13th September, 2016 and, therefore, on 9th September, 2016 an intimation is sent by the department to the appellant with regard to inspection of the premises on 14th September, 2016. Further, records indicate that certain communications were made for production of certain documents, like certified copy of sanction plan, completion plan of the local bodies etc. and finally records indicate that inspections were carried out in the premises in question on 26th September, 2016 and a breach notice was issued on 10th October, 2016 pointing out certain breaches. In the meanwhile on 26th September, 2016 vide Annexure-P/12, Sh. Motilal ora is said to have made a communication to the departmental authorities in response to the notice issued on 15th September, 2016 wherein he communicated that the basement and fourth floor of the building are being used for press and offices of the lessee and he was pleased to inform that the appellant has taken steps to resume newspaper publication and with this objective in mind, a Editor-in-Chief has been appointed in August 2016 and preparations are in full swing to resume publication of the newspaper in the financial year 2016-17.”

            It is then brought out in para 6 that, “Be that as it may, after the breach notice was issued as indicated hereinabove on 10th October, 2016, the appellant is said to have replied to the same on 19th October, 2016 vide Annexure-P/14. In the communication, the breach notice were referred to and finally a request was made to consider the submissions made in the reply and grant sufficient and reasonable time to study the breaches so as to enable them to file a satisfactory reply.”

Furthermore, it is then stated in para 7 that, “According to the appellant, after this nothing happened. The departmental authorities slept over the matter for a considerable period of time, that is, about 2 years and all of a sudden on 5th April, 2018 constituted a three-member Committee consisting of Sh. K.K. Acharya, Under Secretary (Vigilance), Ministry of Housing and Urban Affairs; Sh. G.P. Sarkar, Dy. Director, Directorate of Estates and Sh. Rajanish Kumar Jha, Dy. Land and Development Officer to confirm the status of the breach and to inspect the premises on 9th April, 2018 at 11 A.M. It is alleged that on 9th April, 2018, the Committee inspected the premises and in its inspection made the following notings:-

“The floor wise report is as under:-

(A)        Basement: The basement was lying more or less vacant. Some scrap materials and an old printing machine, not in working condition, were found lying there. However, front side mezzanine in Basement is being used by Akash Gift Gallery in an area of 84 sq. ft. This comes under misuse category.

(B)         Ground Floor: The floor is rented out to Passport Seva Kendra. Apart from this, unauthorised pucca construction used as panel room in rear in an area measuring 1010-03 sq. ft.

(C)         First Floor: The floor is rented out to Passport Seva Kendra.

(D)        Second and Third Floor: The floors are rented out in Tata Consultancy Services.

(E)          Fourth Floor: The floor is being used by the lessee for its office.

Photographs taken at the premises are also enclosed.”

What’s more, it is then pointed out in para 9 that, “Be that as it may, it is the case of the appellant that in an arbitrary and illegal manner vide impugned order dated 30th October, 2018, the lease was determined and the primary considerations for doing so as is made out from the order dated 30th October, 2018 are:-

(a)          no press or press related activity has been carried out from the premises for the last 10 years,

(b)         misuse of land outside the primary purpose for which the lease was granted,

(c)           100% transfer of shares of AJL to another company, namely, Young India which violates Clause III(13).”

As a consequence, we then see that it is pointed out in para 10 that, “Aggrieved by this order passed by the Land and Development Officer (hereinafter referred to as ‘L&DO’) on 30th October, 2018 the writ petition in question was filed and the learned writ Court having dismissed the same by the impugned order dated 21st December, 2018, this appeal now by the appellant challenging both the orders dated 30th October, 2018 passed by the L&DO and the order passed by the learned writ Court.”

Going ahead, para 11 then reveals that, “Dr. Abhishek Manu Singhvi, the learned Senior Counsel along with Sh. Vivek Tankha, the learned Senior Counsel argued at length and pointed out that the entire action taken by the departmental authorities in passing the impugned order dated 30th October, 2018 and the consequential dismissal of writ petition is contrary to settled principles of law and is unsustainable and is liable to be interfered with.”

Moving on, it would be useful to note that para 46 crucially points out that, “Before adverting to consider various questions as have been submitted before us based on the questions formulated by the learned Senior Counsel as are detailed hereinabove, we, at the very outset, deem it appropriate to address the objection raised by Dr. Singhvi to the effect that formal notices were not issued either by the writ court or by this Court and no counter affidavits have been filed by the respondents and the respondents have tried to bring on record various factual matrix without there being any counter affidavit on their part. We find that the aforesaid submission is devoid of merits and should not detain so long for the simple reason that most of the facts that have come on record are based on the show cause notices issued to the appellant and their replies to the same. These are material on record arising out of the proceedings held before the L&DO and even if they are not stated in the form of a counter affidavit, we can take judicial notice of the same as the appellants themselves have brought them on record in the voluminous paper book filed. As far as the assertion made with regard to the transfer of shares of AJL to Young India and the share holdings of Young India and various other issues connected thereto are concerned, they are based on certain facts stated in the show cause notice issued by the Income Tax authorities on 15th June, 2018 and even if show cause notice is ignored, they do form part of the facts stated by co-ordinate Bench of this Court while deciding three writ petitions decided on 10th September, 2018, that is W.P. (C) No. 8482/2018 and other connected matters which were filed by the shareholders of Young India while challenging the action taken by the Income tax authorities. There is no whisper or serious challenge to these factual aspects by the appellant. They do not say, even orally, that these facts stated and relied upon by the respondents are false, incorrect, fabricated, untrue etc. They only say that certain facts have been stated without filing a counter affidavit. If the facts so stated, cognizance of which have been taken by the writ Court, are based on materials available in proceedings held before the L&DO and by a co-ordinate Bench of this Court in a writ petition, we see no reason as to why we cannot take cognizance or judicial notice of these facts and proceed to consider them for deciding the lis in question, particularly, when there is no specific or categorical denial of them even orally before us at the time of hearing. Accordingly, we are not impressed by the submissions by Dr. Singhvi to say that as no counter affidavit has been filed, therefore, most of the facts stated by Sh. Tushar Mehta should not be taken into consideration.”


To put things in perspective, it is then unfolded in para 48 that, “The first objection of the appellants were to the finding recorded passed on 22nd December, 2018 pertaining to there being no press activity in the premises in question, that is, finding in para-17 of the impugned order. The facts that have come on record clearly shows and it is an admitted position if we analyse the show cause notices issued to the appellants on 10th October, 2016 replied to the same on 19th November, 2016, the second show cause notice dated 5th April, 2018, the third show cause notice dated 18th June, 2018 and the fourth show cause notice dated 24th September, 2018 and the series of replies filed by the appellants on 19th November, 2016, 7th April, 2018, 16th July, 2018 and 9th October, 2018 along with the communication made by Sh. Motilal Vora on 26th September, 2018 available at page-406 of the paperbook that between the period from the year 2008 to 2016, the appellant themselves admitted that there was no publication of the newspaper from the premises in question or from any other place and it was only after the inspection of the premises was conducted for the first time on 26th September, 2016 that indication was made about commencement of newspaper publication for2016-2017.”

More pertinently, it is then rightly disclosed in para 49 that, “In this regard, we may take note of the communication made by Sh. Motilal Vohra on 26th September, 2016 at page-406 of the paperbook. In this communication reference is made to an inspection notice dated 15th September, 2016 and it indicates that one Sh. Ravi Dayal is authorized to be present as a representative of AJL at the time of inspection at 11 A.M. on 26th September, 2016. That apart, as requested in the notice issued, certified copies of the sanctioned plan and occupation certificates were also submitted with this letter. The letter further states that the basement and the fourth floor of the building are being used for press and offices of the lessee and surprisingly the letter further says “I am pleased to inform you that the Associated Journals Ltd. Has taken steps to resume newspaper publication. Towards this objection an Editor-in-Chief was appointed in August, 2016” and the letter further says that preparations are in full swing to resume publication of the newspaper in the current financial year 2016-17. Referring to this letter, the learned Solicitor General had argued that this letter was written only for pre-empting the authorities so that they are not surprised if no printing activities are found in the premises. In fact, Sh. Tushar Mehta is right in contending that this was an attempt by the appellants and, in fact, an admission by them that no printing activity was being carried out in the premises at that point of time. That apart, when we go through the four show cause notices available on record issued on 10th October, 2016, 5th April, 2018, 18th June, 2018 and 24th September, 2018 and the reply filed thereto, we find that various breaches were pointed out in all these show cause notices and they were replied to by the appellant company and the cumulative admitted position that can be made out from the reading of these documents are as under.”

To be sure, what we then read in para 50 is this: “When the premises was inspected on 26th September, 2016, no press activity was being carried out in the area. Press activity and publication of the newspaper was suspended right from the year 2008 and all the employees were granted VRS. After the communication dated 26th September, 2016 was made by Sh. Motilal Vohra digital publication of the English Versions of the newspaper National Herald commenced from 4th November, 2016.”

Be it noted, para 51 then envisages that, “Digital version of Urdu edition Qaumi Awaz commenced on 12th August, 2017. Digital version of Navjivan, that is, Hindi version commenced on 28th August, 2017 and the print weekly newspaper, National Herald Sunday resumed publication from 24th September, 2017 and it is the case of the appellants that these newspapers were printed in a press at Noida. Finally the printing of Hindi weekly newspaper Navjivan commenced publication on 14th November, 2018 and the necessary license and authorization for the purpose of publication indicated hereinabove was granted by the Registrar of Newspapers for India on 21st November, 2017 available at page 581 is a certificate of registration issued by Sh. K Ganeshan, Registrar of Newspaper for India giving registration certificate for a newspaper titled ‘National Herald Sunday’. Accordingly it is clear that publication of the newspapers commenced after a gap of eight years as is indicated hereinabove. If this is the factual position, it can very well be concluded that when the first inspection took place, admittedly there was no printing of press or publication activity and the digital versions in English commenced publication only on 14th November, 2016, that is, about one and half month after the inspection took place on 26th September, 2016. Even though in the breach notice dated 10th October, 2016, there is no mention of there being no press activity but the admitted position is that when this notice was issued on 10th October, 2016 after inspection on 26th September, 2016 and the admission of Sh. Vohra on 26th September, 2016 that there is no printing activity, three other show cause notice issued, that is, 24th September, 2018 before taking the impugned action there is a mention about no press activity being carried out in the premises when the first inspection was ordered on 26th September, 2016.”

As it turned out, para 52 then reveals that, “Contention of Dr. Singhvi was that in the first show cause notice issued there is no breach with regard to printing activity. It was only in the fourth show cause notice that the breach was pointed out and, therefore, this breach being not a breach indicated in the show cause notice, action should not be taken on this ground treating it to be violation of a condition of the lease.”

It cannot be lost on us that it is then stated in para 53 that, “If we go through the detailed order passed by the competent authority which was impugned in the writ petition dated 30th October, 2018, we find that the impugned action has been taken not based only on the show cause notice dated 10th June, 2016, the impugned action is taken based on four show cause notices issued, all the replies and documents submitted by the appellants and after taking note of the totality of the facts and circumstances that came on record based on a combined analysis and scrutiny of all the four show cause notices and their replies, the breach has been recorded. The breach had been continuing right from the year 2008 till commencement of the digital publication on 14th November, 2016 and, therefore, if action is taken by holding that there has been violation of the terms and conditions of the lease deed for a period of more than 8 years and that only to retain the building and to pre-empt the respondents from taking any action, the so-called digital publications and weekly publications were commenced after inspection conducted on 26th September, 2016 is taken note of, we have no hesitation in holding that the breach of there being no printing activity or paper publication for a long period is established and this would mean and comes within the purview of breach of the terms and conditions of the license. The principles of law canvassed by the learned Senior Counsel appearing for the appellant and laid down in the case of S. Shrikrishna Oil Mill vs. Radhakrishnan Ramchandra, (2002) 2 SCC 23 pertaining to tenancy law cannot be applied in a case like this where the lease of government properties is granted to an organization or an establishment to carry out a specific act or purpose and if for a long period of time, the said purpose is not carried out and when there is a breach which even though to some extent may have been rectified when the proceedings for breach were going on, in our considered view, cannot be a ground for holding that the breach has been rectified in full and, therefore, there cannot be determination. It is the case where admittedly printing activities and publication of the newspaper were not being carried out in the premises when the inspection took place initially on 26th September, 2016 and even when the second inspection took place on 9th April, 2018 what was found was that the basement was lying more or less vacant and the fourth floor was being used for lessee for its office. The appellants may be right in saying that on 9th April, 2018, the weekly both Hindi and English were being published from the office at Noida and the office was functional on the fourth floor but on the appellant’s own showing both these newspapers, namely, weekly in Hindi and English commenced on 24th September, 2017 and 14th October, 2018 respectively and if finding there to be no press activity for a long period of 8 years a finding is recorded that there has been breach of the terms and conditions of the lease, we see no reason to hold that the finding recorded is not proper.”

It would be pertinent to mention here that it is then illustrated in para 54 that, “The terms and conditions of the lease stipulated that the land shall be used by the appellant for the purpose of construction of a building for the bonafide purpose of their press and, thereafter, requests have been granted inasmuch as four floors could be used for commercial purpose for housing commercial offices except hotels, cinemas and restaurants but the basement and the 4th floor were to be used for press and office. Admittedly, if not for the entire period, for a long period of time, that is for 8 years there was no press activity and the premises was used only for commercial activity if after examining the totality of circumstances, the lease is determined on recording a conclusive finding to the effect that no press has been functioning in the said premises for 8 or 10 years and is being used only for commercial purpose which violates a clause of the lease agreement, we see no reason to hold that the findings recorded for determining the lease and approved by the learned writ Court is a perverse and incorrect finding. The fact of luck of printing press alleged and the finding recorded is a proper finding based on the facts and circumstances of the present case and merely because after the actions were initiated by inspection and issuance of show cause notice on 26th September, 2016 and 10th October, 2016 if some publication activity both in the form of digital or printing is carried out that would not debar or prevent the respondents from determining the lease finding the same to have been breached continuously at least for a period of 8 years and accordingly, we see no reason to uphold the first objection raised on various grounds as are discussed hereinabove.”


Truth be told, para 55 then elucidates while making it amply clear that, “As far as the contention of the appellant to the effect that once the defects having been rectified and, therefore, the appellants are entitled to the benefit of the re-entry is concerned, if we peruse the breach complained of, it would be seen that the action for determining the lease was undertaken on the basis of following allegations that have been made out on a cumulative reading of various breaches indicated in the four show causes notices. The alleged breaches are:

(a)          misuse of land with reference to the basement being used by Aakash Gift Gallery,

(b)         unauthorized construction on the ground floor and first floor,

(c)           transfer of the lease unauthorizedly to a third entity, and

(d)         no press or printing activity being functional in the area.

Except for contending that the paper publication has commenced and the breach with regard to printing activity has been rectified by publication of the newspaper in the form of a web edition and by printing in the Noida press, other breaches with regard to misuse of the land and unauthorized constructions having been taken place is not rectified and if the allegations of transfer of 100% shares of the appellant company to Young India has the effect  of transfer of the lease as contemplated under Clause III(13) is accepted then the right for re-entry would not be available as these breach still continue to exist.”


It is dwelt upon in para 56. But as it has not much significance, it is best to avoid it.


Going forward, para 57 then enunciates that, “The next issue which was vehemently canvassed before us on behalf of the appellant was with regard to the transfer of shareholding from AJL to Young India. It is the case of the appellant that mere transfer of shareholding cannot be a ground for holding that to be change of ownership or transfer of the lease. Placing reliance on the judgment of Bacha F. Gazdar (supra) detailed submissions were made by Dr. Singhvi to emphasise that a shareholder only acquires a right to participate in the profit of the company. He gets no interest in the profit of the company and even if the shareholders of the company do have some voice in administering the affairs of the company, but their interest is limited to sharing the profits of the company and the company, a juristic person, which is distinct from the shareholders still owns the property. It is argued that in the backdrop of this legal position even if some of the shares of the company have been transferred that would not mean that the ownership of the leased premises also get transferred to Young India Ltd. It was emphasized that the ownership still remains even on such transfer with AJL and the said transfer would not have any effect on the ownership or transfer of the leased premises. To consider this aspect of the matter, we are required to take note of the shareholding pattern of both the companies and the manner in which the transactions have taken place and further in case the “lifting of the veil theory’ is applied, what would be its effect with regard to the issue in question.”

More importantly, it is then observed in para 58 that, “Indian National Congress sometimes referred to as AICC had advanced a loan of Rs 90 crores to AJL. The loan was advanced on the condition that the amount shall be utilized by AJL to write off their accumulated debts and to recommence publication of its newspaper. As per the facts recorded by the co-ordinate Bench of this Court in its decision rendered on 10th September, 2018 in W.P. (C) 8482/2018, the books of account of AJL from 1st April, 2010 to 31st March, 2011 showed an outstanding debt of Rs. 88,86,68,976/- and it ultimately became Rs. 90,21,68,980/- as on 15th December, 2010. On 13th August, 2010, an application was made for incorporation of a charitable non-profit company (a company under Section 25 of the Companies Act named Young India). The application was in Form 1A with the competent statutory authority and on 18th November, 2010 Young India was incorporated and on 18.11.2010 license was granted and ultimately on 23rd November, 2010 Young India was incorporated with Sh. Suman Dubey and Sh. Sam Pitroda as its founder Directors. This company had an authorized share capital of 5,000 shares of Rs. 100/- each valued at Rs. 5,00,000/- and the paid up share capital was 1100 shares of Rs. 100/- each valued at Rs. 1,10,000/- and the company at that point of time had two shareholders, (a) Shri Sam Pitroda – 550 shares valued at Rs. 100/- each and (b) Shri Suman Dubey – 5,000 shares valued at Rs. 100/- each. On 13th December, 2010, the first Managing Committee Meeting of Young India took place and Shri Rahul Gandhi was appointed as its Director, namely, a non-shareholder and Shri Motilal Vora and Shri Oscar Fernandes as ordinary members. Within five days thereafter, that is, on 18th December, 2010, by a deed of assignment the loan of Rs 90 crores and odd outstanding in the books of Indian National Congress as recoverable from Associated Law Journals for the period 2002 to 2011 was transferred to Young India. Three days thereafter, on 21st December, 2010, a Board Meeting of AJL called for an EGM which was subsequently held on 24th December, 2010 and on the said date a loan of Rs. 1 crore was received by Young India from another company M/s Dotex and thereafter on 28th December, 2010 i.e. within a week a formal deed of assignment was executed by AICC assigning the loan of Rs. 90 crores in favour of Young India. Immediately thereafter on 21st January, 2011, an EGM of Associated Law Journal was held approving fresh issue of 9.021 crores shares to Young India and on 22nd January, 2011 i.e. on the next day the second Managing Committee of Young India was held in which Smt. Sonia Gandhi, Mr. Motilal Vohra and Mr. Oscar Fernandes were appointed as Directors and the 550 shares of the existing shareholders of Young India – Suman Dubey and Sam Pitroda were transferred to Smt. Sonia Gandhi and Mr. Oscar Fernandes and on the same day fresh allotment of Young India shares were made in the following manner: (a) 1,900 shares having paid up value of Rs. 1,90,000/- to Shri Rahul Gandhi, (b) 1,350 shares with a paid up amount of Rs. 1,35,000/- in the name of Smt. Sonia Gandhi, (c) 600 shares with a paid up value of Rs. 60,000 in the name of Sh. Motilal Vohra and (d) 50 shares with a paid up value of Rs. 5,000 in the name of Oscar Fernandes and after issuance of PAN by the Income Tax Department a bank account was opened by Young India with Citibank on 14th February, 2011 and the cheque issued by M/s Dotex for Rs. 1 crore was deposited in the Young India Bank account on the said day and on 26th February, 2011 Young India issued a cheque of Rs. 50 lakhs to AICC as consideration for assignment of Rs. 90 crore debt payable by ALJ to AICC. On the same day, i.e., 26th February, 2011, ALJ allotted 9,02,16,899 equity shares to Young India in pursuance to the AGM Meeting decision held on 21st January, 2011 and the ALJ Board Meeting on 26th February, 2011 and thereafter Young India applied for exemption under Section 12-A on 29th March, 2011 and on 9th May, 2011 the Income Tax Authorities granted the exemption with effect from the F.Y. 2010-11.”

Continuing in the same vein, it is then brought out in para 59 that, “Be that as it may, by the aforesaid transaction that had taken place Young India acquired beneficial interest on AJL’s property which on the said date was valued at more than Rs 400 crores on payment of a sum of Rs 50 lakhs to AICC. This, according to the respondent, if viewed in the backdrop of the purpose of transferlease and the modus operandi adopted is nothing but a devise to transfer the property held on lease from the Government by AJL, Young India which became 99% or rather 100% shareholder of AJL.”

Simply put, para 60 then stipulates that, “In the case of Bacha F. Guzdar (supra) relied upon by Dr. Singhvi, a Constitution Bench of the Supreme Court has taken note of certain judgments with regard to corporate identity and a legal position with regard to the rights to property of a company, a juristic person and the relationship of a shareholder with the company and its property, as canvassed by Dr. Singhvi and as observed by the Hon’ble Supreme Court the principle indicates that a shareholder acquires a right to participate in the profit of the company but he does not acquire any right or interest in the assets of the company. It has been held that by investing money in the purchase of shares the shareholder does not get any right to property of the company though he acquires a right in the profits if and when the company decides to divide it. Even though the shareholder of the company have the sole determining voice in administering the affairs of the company and are entitled to as provided in the Articles of Association  to declare the dividends and distribute the profits of the company but their right individually or collectively is nothing more than participating in the profits of the company, it is held that the company is a juristic person and is distinct from the shareholders. In fact, it is the company which owns the property and not the shareholder. The judgment further goes to say that there is nothing in the Indian Law to warrant the assumption that the shareholder who by his share buys any interest in the property of the company which is a juristic person entirely different from the shareholder. This in fact is the law laid down by the Constitution Bench of the Supreme Court in the aforesaid case.”

Needless to say, it is then underscored in para 61 that, “It was vehemently argued by Dr. Singhvi that once this is the accepted legal position that is culled out on a perusal of the law laid down by the Constitution Bench, then by no stretch of imagination can it be argued that on transfer of shares of AJL to Young India Ltd., there is transfer of ownership or lease or property as contemplated in clause 13(3) of the lease in question. By referring to the judgment in the case of Mossanto Manufacturers (supra) and the terms and conditions of the lease deed which prohibited transfer in the said case and by comparing it to clause XIII(3) of the lease deed in question, we were told that in the absence of there being any specific prohibition permitting transfer of ownership of shares or change in the Article of Memorandum, the finding recorded with regard to transfer of ownership of the property recorded by the learned writ Court and the competent authority is unsustainable. The principles laid down in judgment of the Supreme Court in M/s K.G. Electronics (supra) and by this Court in DDA v. Human Care Medical Charitable Trust were also relied upon to canvass this contention.”

To put it succinctly, the Bench then in para 62 minces no words in stating that, “On a consideration of the argument as canvassed by Dr. Singhvi, at the first instance, the same looks very attractive and the findings recorded may look to be unsustainable and perverse, however, it is an equally settled principle of law that in public interest and for assessing the actual nature of a transaction or the modus operandi employed in carrying out a particular transaction, the theory of lifting of the corporate veil is permissible and a Court can always apply this doctrine to see as to what is the actual nature of transaction that has taken place, its purpose and then determine the question before it after evaluating the transaction or the modus operandi employed in the backdrop of public interest or interest of revenue to the State etc. The theory and doctrine of lifting of corporate veil had been considered by the Supreme Court in the case of Gotan Lime Stone (Supra) and in the said case, judgments in the case of Vodafone (supra) and Skipper Construction (supra) etc have been taken note of and in para 30, specific reference has been made to the Constitution Bench judgment in the case of Bacha F. Gazdar (supra). After referring to most of the judgments including the judgment in the case of Bacha F. Guzdar (supra) relied upon by Dr. Singhvi is referred to and finally the consideration to be made is culled out in para 19 of the judgment in the following manner:

“19. As already stated, the question for consideration is whether in the given fact situation the transfer of entire shareholding and change of all the Directors of a newly formed company to which lease rights were transferred by a declaration that it was mere change of form of partnership business without any transfer for consideration being involved can be taken as unauthorised transfer of lease which could be declared void.”

Not stopping here, the Bench then in para 65 makes the picture more clear by categorically and convincingly holding that, “If we consider the transaction in the present case in the backdrop of the aforesaid principles laid down by the Hon’ble Supreme Court, we have no hesitation in holding that the purpose for which the doctrine of lifting of the veil is applied is nothing but a principle followed to ensure that a corporate character or personality is not misused as a device to conduct something which is improper and not permissible in law, fraudulent in nature and goes against public interest and is employed to evade obligations imposed in law. If that is the purpose for which the doctrine of lifting of the veil is to be employed and if we see the transaction that has taken place in the present case with regard to how the transfer of shares between AJL and Young India took place, we find that within a period of about three months, that is, between 23rd November, 2010 to 26th February, 2011, Young India was constituted. It took over the right to recover a loan of more than 90 Crores from All India Congress Committee for a consideration of Rs. 50 Lakhs, thereafter replaced the original shareholders of Young India by four new entities including Sh. Moti Lal Vohra, Chairman of AJL and Young India after acquiring 99% of shares in AJL, became the main shareholder with four of its shareholders acquiring the administrative right to administer property of more than 400 Crores. Even though Dr Singhvi had argued that there is nothing wrong in such a transaction and it is legally permissible, but if we take note of the principles and the doctrine for which the theory of lifting of the corporate veil has received legal recognition, we have no hesitation in holding that the entire transaction  of transferring the shares of AJL to Young India was nothing but, as held by the learned writ Court, a clandestine and surreptitious transfer of the lucrative interest in the premises to Young India. In fact, the contention of Dr Singhvi has to be rejected and rightly so was rejected by the Single Judge even though without applying the principle of lifting of the corporate veil. In case the theory of lifting of the corporate veil, as discussed hereinabove, is applied and the transaction viewed by analyzing as to what was the purpose for such a transaction, the so called innocent or legal and permissible transaction as canvassed before us, in our considered view, is not so simple or straight forward as put before us, but it only indicates the dishonest and fraudulent design behind such a transaction as laid down in various judgments referred to not only in the case of Udyog (P) Ltd. (supra) but also in the case of Union Territory of Estate Officer, UT, Chandigarh vs. S.C. Information Technologies, (2016) 12 SCC 582, Skipper Construction (supra), wherein also the theory has been applied after considering the principle laid down in Solomon (supra) and in para 28, in the case of Skipper Construction (supra), the law has been crystallized in the following manner:

“28. The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. Where, therefore, the corporate character is employed for the purpose of committing illegality or for defrauding others, the court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned. The fact that Tejwant Singh and members of his family have created several corporate bodies does not prevent this Court from treating all of them as one entity belonging to and controlled by Tejwant Singh and family if it is found that these corporate bodies are merely cloaks behind which lurks Tejwant Singh and/or members of his family and that the device of incorporation was really a ploy adopted for committing illegalities and/or to defraud people”.”

It is a no-brainer that it is then concluded in para 66 that, “Apart from the aforesaid judgments, there are various other judgments which have been brought to our notice wherein the said theory of lifting of the corporate veil has been approved and we have no hesitation in holding that the transfer in question, if analyzed in the backdrop of the principles as discussed hereinabove, we see no error in the findings recorded by the learned writ Court to hold that the transfer in question comes within the prohibited category under clause XIII(3) of the lease agreement.”

Finally and perhaps most importantly, let us now dwell on the concluding paras 70 and 71. Para 70 explicitly enunciates that, “Even though during the course of hearing Dr. Singhvi had tried to distinguish each and every judgment relied upon by the respondents to say that on the facts of each case, the same is not applicable, however, we are of the considered view that the said contention cannot be accepted. There may be certain differences with regard to the facts of each case, but this Court is required to take note of the legal principle that has been laid down by the Hon’ble Supreme Court in various cases, evaluate the facts and then apply them. While hearing this appeal, which is an intra-court appeal under Section 10 of the Letters Patent against a judgment of the Single Judge in a proceeding held under Article 226 of the Constitution, this Court has to keep in mind the limitations for interference in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. Power can be exercised in a given set of circumstances and cases where subordinate courts, statutory authorities or tribunals and officers act wholly without jurisdiction or in excess of jurisdiction or in violation of the principles of natural justice or proceed in an erroneous manner which is apparent from the face of the record resulting in omission, commission, error or excess which results in manifest injustice. Whatever be the extensive discretionary jurisdiction available to this Court, it cannot be converted into a jurisdiction akin to that of a Court of appeal, examine the correctness of an impugned decision, substitute the decision of the subordinate authority or court to that of its own and record a different finding. A reasonable finding recorded after grant of proper opportunity to all concerned which meets the requirement of law need not and should not be interfered with by this Court until and unless manifest injustice or violation of statutory enactment or well settled principles are writ large in the proceedings or order under challenge. If the case in hand is analyzed in the backdrop of the jurisdictional power available to this Court under Article 226 of the Constitution, we find that in this case the finding with  regard to no press activity being carried out in the premises for about ten years, misuse of land and 100% transfer of share to another company are all subject matters of four notices issued to the petitioner. The petitioner submitted voluminous documents and replies to these notices which made allegations of unauthorized construction, unauthorized permission to Akash Gift Gallery, clandestine transfer for ulterior motive etc. and the petitioners had in fact admitted the position with regard to there being no press activity and admitted non-publication of the newspaper due to financial trouble for more than eight years. It was only when the breach proceedings took place that press was installed, licence obtained and publication commenced after 24th September, 2017. The appellant also do not deny the fact about there being unauthorized occupation by Akash Gift Gallery, pendency of eviction proceeding. If all these factors are taken note of and a decision is taken by the respondents to say that the dominant purpose for which the lease was granted has been violated and there has been misuse of the conditions of the lease, in the absence of mala fides or ulterior motive having been established, the writ court has rightly refused to interfere into the matter. We also see no reason to make any indulgence into a reasonable order passed by the writ court in the facts and circumstances of the present case.” Lastly, the Bench in para 71 concludes by saying that, “Accordingly, finding no grounds being made out for making any indulgence into the matter, we dismiss the appeal.”

In a nutshell, it can be said with certitude that this is a big jolt to AJL which is publisher of Congress mouthpiece National Herald in which Sonia Gandhi along with Rahul Gandhi hold high stake! The Bench of Chief Justice Rajendra Menon and Justice VK Rao have upheld the single Judge’s December order which had dismissed AJL’s plea against the Centre’s eviction order and had directed it to vacate in two weeks the Herald House in the ITO area in the heart of the capital! AJL had appealed against the single Judge’s December 21, 2018 order after which eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated but failed to get any relief. It had challenged the Centre’s October 30, 2018 order ending its 56-year-old lease and asking it to vacate the premises on the ground that no printing or publishing activity was going on and it was being used only for commercial purposes! Now it is quite palpable that AJL will approach the Supreme Court which is the top court! We have to keep our fingers crossed till Supreme Court finally delivers its judgment on this and refrain from second guessing what will be the final outcome! Only time will tell which way the dice rolls!

Sanjeev Sirohi

1984 Anti-Sikh Riots – Delhi HC Upholds Conviction And Punishment

1984 Anti-Sikh Riots – Delhi HC Upholds Conviction And Punishment Of Over  80 Rioters

                                              First and foremost, the latest landmark and laudable judgment delivered by the Delhi High Court in Shambhir & Ors v State in CRLA 152/1996 along with others on 28 November, 2018 upholding the conviction and punishment of over 80 rioters has brought some solace to all those affected people who lost their near and dear ones in the ghastly 1984 anti-Sikh riots which brought disrepute to our country and alienated many Sikhs from the national mainstream! Delhi High Court by this latest, landmark and laudable judgment has sent a loud, clear and convincing message to all that, “Nobody can be above the law and those who commit crime are bound to be punished sooner or later”! There can be no denying it!

                                    As it turned out, Justice RK Gauba of Delhi High Court who delivered this landmark judgment notes right in para 1: “That the criminal justice administration may falter or crumble, or lose its potency, is no longer a distant doomsday scenario. It appears to have arrived and stares at us in the face. The question as to whether the guilt of the appellants for complicity in rioting and mischief by fire was correctly concluded or not has come up for determination thirty-four years after the crimes were committed and twenty-two years after the trial court had rendered its decision. The whole exercise is reduced to the level of academic.”

                                                    Elaborating on the riots and its background, it is then pointed out in para 2 that, “On 31.10.1984, Mrs Indira Gandhi, the then Prime Minister of India was assassinated by her bodyguards. Riots broke out on the same day in the capital city of Delhi and other parts of the country which, in no time, turned communal, they being directed against the Sikh community. Carnage followed for several days in which thousands suffered physical harm or damage to the property. A large number perished. Semblance of law and order returned, albeit after several days, in the wake of the armed forces being called in aid of the civil administration.”

                                         To be sure, while lambasting the utter failure of the police and the civil authorities in failing to rise to the occasion, it is then noted in para 3 that, “The failure of the police, and the civil authorities, in controlling the situation, or meeting the challenge, by enforcing the law has been chronicled not only in the media reports but also found to be a fact in decisions of the courts of law, in various cases brought at almost each level of the judicial hierarchy, as indeed recorded in the reports of numerous Commissions of inquiry or Committees that were set up in the decades that have followed. The circumstances that prevailed during riots are the harsh reality of which judicial notice may be taken.”

                     No doubt, it is rightly conceded in para 4 of this landmark judgment that, “The anti-Sikh riots of 1984 are indeed a dark chapter in the history of independent India which , it is often said, this country must put behind so as to move ahead. But, for those who suffered personal loss in the form of killings of their near and dear ones, or destruction of their homes, there possibly can never be a closure. The theories of politico-criminal nexus, aided and assisted by police or civil service officials loyal to the cause, being behind the mayhem that was wrecked, virtually with impunity or immunity, continue to abound and haunt. There is also a contrarian view that such dark chapters in the history of the land must never get effaced from memory since they confront us, the civil society at large, by showing a mirror, to expose to us the rot that lies within.”

                                    Truth be told, it is also then rightly conceded while outlining its own priorities in para 5 that, “The communal riots of the likes of 1984 have been erupting time and again, as a scourge, in free India, starting with the partition riots of 1947, more often than not, fanned by socio-political leadership. Many such communal riots have preceded, or followed, those of 1984, each leaving behind numerous cases of mass murders, arson, loot, plunder, et al. In the present context, the court is not concerned with what were the causes for failure of administration or of law and order or, to go further, what reforms are required to ensure that such break-down of administrative machinery, or rule of law, does not recur. The court is concerned more with the enforcement of criminal law in the wake of such serious crimes as were committed in the name of protests taking the ugly shape of communal riots.”

                                          Truly speaking, it is para 6 which actually sets the ball rolling by dwelling on the background of the case and pointing out that, “These twenty-three criminal appeals arise out of the decision of a court of Sessions in a case (sessions case 34/95) relating to rioting accompanied by commission of serious offences in the afternoon of 02.11.1984 in Block no. 32 of a locality known as Trilok Puri, within the territorial jurisdiction of police station Kalyan Puri, Delhi, it being subject matter of investigation through first information report (FIR) no. 426/1984 of the said police station. This case is one of the several cases that were registered around that period, the grievances of the victim community, and the civil society at large, consistently being that there was utter failure on the part of the police in not only controlling the situation but also in bringing the perpetrators of the crime to justice. Allegations have been made generally and with reference to various other cases registered during the said period, they also being echoed in the context of the present case, that the police officials entrusted with the responsibility of taking follow-up action under the criminal law, instead of discharging their obligations, turned their gaze the other way or made endeavour to ensure that those guilty could either escape or even if brought to trial, could avoid their guilt being proved.”

                                      Going forward, para 7 then candidly points out that, “Having heard the defence, and the prosecution, in these appeals and having subjected the trial court record to acute scrutiny, this court finds the grievance as to apathy on the part of agencies connected to the criminal law towards such cases to be correct and well founded. In the considered view of this court, it is not only the police that failed in not (promptly) registering the crimes or collecting all possible or requisite evidence (before it was lost forever) but the other agencies including prosecution, and the court, that also failed to rise to the occasion or live up to the task.”   

                                     Bluntly put, para 8 then brings out that, “As would be noticed in the later part of the judgment, the manner in which the case was handled, or lingered, at the stage of committal proceedings before the Magistrate, was designed to ensure the case would not proceed with the promptitude it deserved. The case resulting from the first final report under Section 173 of the Code of Criminal Procedure, 1973 (“the charge-sheet”) which was placed before the court of the Metropolitan Magistrate (on 20.12.1985), followed by several supplementary reports, saw the committal order being passed only on 18.04.1987. The court of Sessions where the case was allocated had doubts as to the permissibility of joint trial of one hundred and seven (107) persons who had been brought before it under the umbrella of one case. It passed certain orders requiring the cases to be split up. The supplementary charge-sheets in the wake of such directions followed, with no-one interested in expedition. Eventually, the case was put to trial by order dated 04.12.1995 framing charges against ninety three (93) accused whose presence had been secured, this being followed by a similar subsequent order respecting one more who was compelled to appear with great difficulty.”

                                  For the sake of brevity, let us now come directly to para 107. It aptly says that, “At the cost of repetition, one may say again that the areas from which the appellants were apprehended were one of the worst affected in the riots. Almost all houses in the vicinity had been subjected to arson. The household articles of such riot-affected homes were found scattered on public roads and in lanes. A large number of motor vehicles were found abandoned on roads they having been set on fire. The properties which were damaged by fire included religious places, shops or hutments. Even while the local police – which included PW-5, PW-7 and PW-8 – assisted by reinforcements (later joined by paramilitary forces) were trying to bring the situation under control, the riotous mob was moving almost with impunity. The evidence has shown unmistakably that curfew and prohibitory orders had already been promulgated. After such prohibitory orders had come into force, no public person was entitled to be outside his home, not the least so as to be a part of rioters unlawful assembly. If a public person was found to be outside his home in such circumstances, onus would be on him to explain or justify the reasons for his presence at such a place.”

                     Needless to say, para 108 then points out that, “As noted above, the evidence has clearly brought home the case for prosecution that the appellants were outside – part of the mobs which were rioting. They having come up with no reason or explanation for such presence at such place at such point of time, their guilt for disobedience of prohibitory order lawfully promulgated by the Commissioner of Police within the mischief of penal provision contained in Section 188 IPC has been proved.”

                          While craving for the exclusive indulgence of esteemed readers, it must be informed here that para 109 then states that, “As concluded above, the presence of the appellants amongst the rioters mob has been proved. They have not come with any explanation for such presence. It cannot be assumed, without such plea being taken, that they were idle spectators. The object of unlawful assembly having come to their knowledge their continued presence renders them party to its common object. The said assembly having indulged in setting houses on fire pursuant to such common object, charge of rioting has also been proved. Using inflammable materials (deadly weapons) to set houses on fire amounted to offence under Section 148 IPC for which charge had been framed. But, for reasons which are not clear the trial Judge has returned conviction only under Section 147 IPC. There being no appeal by the State, this court feels it would not be proper to convert the conviction for one under Section 147 to Section 148 IPC at this stage.”

                        For esteemed readers exclusive indulgence, it must also be informed here that without mincing any words, it is then observed in para 110 that, “With riots of such magnitude being underway, it called for no imagination for a member of such unlawful assembly to know that its object was to commit offences, such offences clearly including damaging the houses by setting them on fire. It is not a case where a person who was member of the unlawful assembly could not imagine as to what offences were “likely” to be committed. The offence of mischief by fire was being indulged in from house to house, from one locality to the other, in clear view of everyone who was present at the scene. Given the brazen manner in which arson was being committed, awareness that mischief by fire would be the probable and natural result of the acts intended to be committed has to be imputed to each members of the unlawful assembly. In these circumstances, knowledge about the object of the unlawful assembly will have to be imputed to everyone including the appellants who were part of the riotous mob.”

                                Simply put, para 111 then drives home the point that, “Since the evidence unmistakably shows that the appellants were members of the unlawful assembly, the common object whereof was to commit offences that included offences of mischief by fire, having regard to the magnitude of the damage that was openly caused to a large number of houses of Sikhs in the concerned area of Trilok Puri, there was no need for the prosecution to prove any overt act on the part of any of them. Non-recovery of the weapon of such offence is of no consequence. As has been explained by the witnesses, the appellants were apprehended after pursuit and it was highly unlikely that they would continue wielding the weapons (inflammable materials) in their hands till being over-powered. Their accountability for offence under Section 436 IPC is brought home by the rule of vicarious criminal liability under Section 149 IPC.”

                                   Of course, it is then observed in para 112 that, “The trial Judge, while framing charge, had taken care to invoke the penal clause of Section 149 IPC with the offence under Section 436 IPC. It does appear that in the final determination, while convicting the appellants also under Section 436 IPC, reference to Section 149 IPC came to be omitted. This appears to be an inadvertent lapse. It cannot, however, detract from the tone and tenor of the judgment of the trial court that the conviction of these appellants for offence under Section 436 IPC has been recorded with the aid and assistance of Section 149 IPC.” Para 113 envisages that, “On the foregoing facts, and in the circumstances, the judgment of the trial court returning finding of guilty convicting the appellants must be upheld. Ordered accordingly.”

                             It would be pertinent to mention here that Justice RK Gauba of Delhi High Court who delivered this landmark judgment then took the strong view that this case merited much more severe punishment than was actually awarded by the trial court but desisted from doing so as there was no appeal with such prayer to enhance the sentence. Justice Gauba pulled back no punches in making a scathing attack on the leniency displayed in awarding punishment and observed in para 114 that, “Though, having regard to the extensive damage that was caused by the appellants to a large number of houses or other properties of Sikh community by fire, the case merited punishment more severe than the one meted out by the trial court, given the fact that there is no appeal seeking enhancement of the punishment, the trial court having taken a lenient view, there is no occasion for this court to modify the order on sentence either way.”

                                    Having said this, para 115 then sums up by saying that, “The appeals are thus dismissed. The bail bonds of the appellants are cancelled. They are directed to forthwith surrender to undergo the punishment awarded against them. The trial court is directed to take all necessary measures, including issuance of requisite processes to ensure due enforcement and execution of the sentences in accordance with law. The Commissioner of Police and officers or agencies under his control shall render all assistance to the trial court in this day.” Para 116 then directs that, “For compliance, copies of the judgment shall be sent to all concerned by the registery.”

                                        It cannot be lost on us that it is then observed in para 117 that, “Before parting, however, this court deems it necessary and proper to make certain further observations on two particular aspects – one concern stemming from reasons to believe that certain part of the facts noted or gathered by the investigating agency in the wake of FIR No. 426/1984 of Police Station Kalyanpuri may have remained uncovered; the second respecting the inadequacy of the criminal law procedure to deal with crimes of such magnitude and the utmost need for reforms in this regard to be ushered in.” Para 120 says that, “In the foregoing facts and circumstances, this Court directs the Commissioner of Police, Delhi to have the material, and the evidence, in above nature, re-examined by an appropriate agency for such further action under the criminal law as may be requisite.” Para 121 further says that, “A copy of this judgment with specific reference to the above direction shall be additionally sent to the Commissioner of Police.”

                                   More crucially, it is then observed in para 122 that, “The case at hand, as observed elsewhere in this judgment, may be treated as a paradigm which ought not to be followed in cases of such nature. The law and order machinery had broken down. The police forces, and the civil administration, did not take timely or effective action to prevent the riotous conditions from spiraling out of hand.  The criminal law process began, but hesitatingly and belatedly. The fact that these cases have continued to linger in the courts at the stage of trial or appeals or revisions till date itself is an indicator of the reality that the response of the law has been tardy, ineffective and highly unsatisfactory.”

                                           Furthermore, it is then lamented in para 123 that, “In the wake of case FIR No. 426/1984, one hundred and seven persons had been apprehended. The local police did not have the capacity to even keep them in proper custody as a large number of arrestees were kept overnight in the verandah or courtyard of the police station. The remand proceedings before the magistrate were conducted with the accused persons being confined in vehicles stationed outside the court complex. Such difficulties during the period of riots may have been for reasons beyond the control of everyone. But, when the charge sheets had been filed, the committal court did not have the capacity, or the wherewithal, to conduct the proceedings. As is reflected by the record of the trial court, the proceedings post committal of the cases were also difficult to handle. The trial Judge was at a loss as to how to make a head count on each date of hearing. Taking of attendance of such large number of accused itself was not only time consuming but also unwieldy.”

                                     More worryingly, it is then observed in para 124 that, “The criminal procedure, as applies generally, mandates that the proceedings take place in the presence of the accused. This fair justice principle of law is abused, more often than not, to cause delay. The truancy is often seen being used as a tool to get the trial process postponed. In cases of such nature as at hand wherein accused persons sent up for trial were in such large number, it is easy to use the device of truancy. On each date of hearing, some or other accused would remain absent leading to deferment. The whole process consequently gets reduced to a mockery. The result obviously is what the pace of progress in the present case has demonstrated.”

                               Now coming to para 125, it is forthright in pointing out that, “On the criminal prosecution initiated through the charge sheets which had been submitted in December 1985, the question of charge could not come up for consideration till December 1995. The trial Judge, when he set about the task of consideration for framing of charge, found, upon the prosecution itself advising him to this effect, that the case as presented ten years earlier suffered from the defect of mis-joinder (of charges and accused). The charges were eventually framed, after splitting up of the cases, in January 1996. Clearly, the investigating agency, and the prosecution agency had no coordination between themselves. The fact that the initial two charge sheets presented in December, 1985 were prepared, also under the advice of the prosecution branch, shows that the quality of the legal assistance availed of by the State was questionable.”

                                           Honestly speaking, para 126 then acknowledges that, “As mentioned elsewhere in this judgment, the spectre of communal riots has been raising its ugly head in various parts of the country at regular intervals and from time to time. The general criminal law is provenly ill-equipped to deal with the challenge of such crimes of mammoth proportion, particularly when they invariably are perceived to be engineered by those holding control over certain power centers.”

                          It is then underscored in para 127 that, “At the cost of repetition, it needs to be noted again that after each event of communal riots, allegations of political influences having worked as the root cause or for protection of those responsible have surfaced. There perhaps can be no two opinions about the fact that a sense of neutrality in the investigative and prosecution process has to be injected. And towards this end, the possibility of entrusting such tasks to authorities other than normal agencies of the State needs to be explored.”

                            It is then brought out in para 128 that, “Quite often, in cases affecting large sections of society through crimes committed by influential persons, the courts – High Courts or Supreme Court – have felt constrained to set up Special Investigating Teams (SITs) which carry out probe under their supervision. Since such courts are eventually called upon to subject the evidence to scrutiny and adjudicate upon the guilt, recourse to this approach may not always be desirable.”

                                       It is of immense significance to note that para 129 then observes that, “The experience also shows that after such events Commissions of Inquiry are generally set up, the purpose whereof is to gather evidence and probe the causes that led to breakdown of law and order. Such Commissions invariably are headed by retired Judges of the Supreme Court or High Courts. But the establishment of such Commissions, and commencing of work by them, takes some time. During the interregnum, however, the crucial evidence comes to be lost or destroyed. The reports of various Commissions of Inquiry also reveal that the victims or witnesses of such riots are generally petrified or silenced by intimidatory tactics and consequently feel disinclined to come forward with their complaints, or testimonies, till some measures are undertaken to afford protection to them.”

                    It would also be material to note that para 130 then stipulates that, “Pursuant to the Protection of Human Rights Act, 1993, Human Rights Commissions stand established and are in position at State and National level. Though the objective of setting up of such Human Rights Commission is a little distinct, it cannot be lost sight of that such Commissions are generally seen swinging into action without much delay in cases of communal riots. They also have the advantage of the investigative apparatus available to them at all times.”

                                 Not stopping here, it is then observed in para 131 that, “One wonders if the initial task of gathering evidence or, to put it conversely, the duty to “preserve” evidence can be entrusted to the Human Rights Commissions, in cases of communal riot situations. Once a Commission of Inquiry is instituted, under the Commission of Inquiry Act, 1952, further investigative process by gathering all evidence for such cases can be taken over by such Commissions of Inquiry. Given the non partisan and statutory status, as indeed the confidence of people at large enjoyed by these institutions, the possibility of vested interests negatively influencing the process of law would stand ruled out.”

                                  In hindsight, it is then brought out in para 132 that, “There have been initiatives taken in the past to bring in special legislation to cover the subject, this including in the form of Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 and lastly, as per the information available, Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 but the same have remained stuck at the stage of drafting. The court hopes and trusts that the legislature will consider enactment of a special law to deal with such crimes effectively at an early date. The court also hopes and trusts that as and when such special legislation is put in position, it would include provisions to arm the investigating and prosecution agencies, as indeed the criminal courts, with requisite powers, laying down special procedure and rules of evidence for fair, timely and effective dispensation of justice.”

                                          To put it succinctly, it is then observed in para 133 that, “Having regard to the experience that has been gained, including by scrutiny of the records of the present case, this court would suggest the following to be considered for inclusion in the reforms in the criminal law response to deal with such cases:-

(i)                         Suitable amendments (with necessary subordinate legislation) to the Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993 may be considered to entrust the responsibility of taking note of the cognizable offences committed in communal riots and for investigation in accordance with law thereinto may be through SITs specially constituted under their respective control with further responsibility to oversee the prosecution in the wake of such investigation through Special Public Prosecutor(s) (SPP) to be engaged by them.

(ii)                      Though the Commissions referred to above would have their own investigative machinery to carry out the necessary probe in an effective manner, they might need to avail of the assistance of Legal Service Authority (LSA) for reaching out to the victims (or witnesses), and for instilling a sense of trust and confidence, coupled with such witness-protection measures as may be deemed proper for the given situation, and also of the judicial magistracy for mandatory recording of statements of such victims, or witnesses, under Section 164 Cr.P.C. at the earliest inasmuch as provisions for this would make the effort more comprehensive and effective.

(iii)                   The neutral agency of the Commissions entrusted with the added responsibility of taking such case(s) to prosecution would ensure that no charge-sheet is brought to the criminal court for taking of cognizance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.

(iv)                   The law on the subject of communal riots cannot be a complete answer to the challenge unless it also establishes special courts with suitable amendments to the general criminal law procedure as indeed the rule of evidence.

(v)                      Given the technological advancements that have been made and the rise of media – print and electronic – as an effective fourth pillar of the democracy, there is a strong case for utilizing as evidence the press reports, supported by photographic material or video footages put in public domain in trials of criminal cases arising out of communal riots. Such material or video coverage are generally seen to be depicting the specific role of various individuals who form part of the riotous assembly as indeed those leading or provoking such mobs. Time has come for availing of the same, may be in corroboration of oral evidence, in criminal trial process. For this, the law must mandatorily require media persons or houses to share the product of their efforts with the investigating agency in all cases of communal riots, it being also their bounden duty thereafter to prove such material at the trial.

(vi)                   As has been highlighted in this judgment, frequent absences from the court hearings on the part of accused persons has been one of the major causes for delay in the judicial process. There is no reason why general law of criminal trial being held in the presence of the accused be permitted to be abused. For purposes of trial, particularly at the stage of recording of evidence, in cases under Prevention of Corruption Act, 1988, there is an exception carved out by Section 22(c) which permits such witnesses as are in attendance to be examined even if the accused is absent subject, of course, to his right to seek recall for cross-examination once he re-appears. Similar rule of procedure in case of trial in communal cases involving large number of accused would have a salutary effect.

                                   To put things in perspective, it is then directed in para 134 that, “A copy of this judgment shall be sent by the registry also to Secretary (Law, Justice and Legislative Affairs), Government of India and to the Secretary, Law Commission of India, for their respective consideration.”

                                        Finally and most importantly, in its concluding para 135, it is then observed by Justice RK Gauba of Delhi High Court that, “There is no contest to the case for prosecution that the crimes alleged here were actually committed. Thirty four long years have passed after the crimes were committed and, yet, the victims await justice and closure. Is this what we call a potent and effective criminal justice system? Is our judicial apparatus at all equipped to deal with the crimes of such magnitude? Do we have lessons to be learnt from this sordid experiment in the name of criminal law process? It is indeed a matter of lament that there has been no meaningful thought spared till date to usher in reforms in the judicial process to effectively deal with the cases of communal riots which are engineered, more often than not, by those who have clout or influence – of various kind. The manner of prosecution of the case at hand would undoubtedly go – down in judicial history of this country as an example of criminal law process that must never be emulated. From this perspective, and in the expectation that those at the helm draw lessons from here, one hopes that this case is never forgotten.” Very rightly said!

                                    It is thus quite ineluctable that both Centre and Supreme Court must work expeditiously in unison to usher in the reforms which Justice RK Gauba of Delhi High Court has brought out so prominently in this landmark case! Justice must not only be done but also seen to be done which is possible only if cases are decided in the shortest span of time and not after many decades as we see most unfortunately in this case also! This is certainly possible if Judges ensure that no adjournments on small pretext are granted and hearings are conducted expeditiously and not after many months and years which is the root cause for cases not being decided on time! Judges must be fully determined now to work accordingly and become a true source of inspiration for all the people in the society!  

Sanjeev Sirohi, Advocate,

1984 anti-Sikh riots: HC upholds conviction of 80 people

New Delhi:The Delhi High Court Wednesday upheld the conviction of around 80 people and awarded them five year jail term for rioting, burning houses and violation of curfew during the 1984 anti-Sikh riots.

Justice R K Gauba dismissed their 22-year old appeals against conviction by a trial court and asked all the convicts to surrender forthwith to undergo the prison term.

The convicts had challenged the August 27, 1996 judgement of a Sessions Court which had convicted 88 out of the 107 people arrested on November 2, 1984 for rioting, burning houses and curfew violation in Trilokpuri area of East Delhi.

After the assassination of the then Prime Minister Indira Gandhi on October 31, 1984, the next couple of days witnessed widespread rioting and killings of Sikhs in the national capital.

According to the FIR lodged in connection with the Trilokpuri incident, 95 people had died in the rioting and 100 houses were burnt, said senior advocate H S Phoolka, who has been representing the riot victims in various matters.

Of the 88 convicts who moved the high court, several have died during the pendency of their appeals and the case against them has abated, police had earlier said.

HC restrains magazine from using ‘Aaj Tak’ trademark

New Delhi: The Delhi High Court has restrained a person, who runs a fortnightly magazine ‘Aaj Tak Aamne Saamne’, from using any name that is “deceptively or phonetically” similar to trademarks of a major media house.

The court’s order came after Living Media India Ltd, a media conglomerate that owns and operates news channels such as Aaj Tak, filed a suit for injunction against the person and one other. 

The Hindi news channel, Aaj Tak, hosts a programme called ‘Aaj Tak Aamne Saamne’.

The high court said there is a clear violation of the rights of Living Media India Ltd, which had filed a suit seeking injunction restraining a woman and one other from infringing and passing off trademarks ‘Aaj Tak’ or any other trademark “deceptively or phonetically” similar.

The order was passed against a woman, who claimed to own, print and publish the fortnightly magazine ‘Aaj Tak Aamne Saamne’ and its chief managing director, who is also the owner of a domain,\

Justice Jayant Nath directed them to pay damages of Rs 1 lakh to the media house.

As nobody appeared on behalf of the defendants despite service of notice, they were proceeded ex-parte by the court in September 2014.

The high court said the media house has established that it was the registered proprietor of the trade mark ‘Aaj Tak’ and it has a statutory right to the exclusive use of the same. 

“There is a clear violation of the rights of the plaintiffs (media house). It is also clear that the plaintiffs have been using their mark since 1995. The act of the defendants lacks bonafide. 

“The goods and services sold under the deceptively similar trade mark will also lead to passing off the goods and services of defendants as that of the plaintiffs,” it said.

The court passed the decree of permanent injunction in favour of the media house and against the defendants and restrained them and their representatives from using the trademark and the domain name.

Delhi High Court declines Afghan’s man plea to direct wife kids to return with him

NEW DELHI: A bench of justices S Muralidhar and Vinod Goel of Delhi High Court has declined the plea of an Afghan national to direct his wife and their two children. The court also denied him visitation rights to meet his children whenever he comes to India noting that the two, aged nine and four years, have expressed their reluctance to meet him.

Justices S Muralidhar and Vinod Goel noted that the man’s wife has obtained refugee status for herself and the two children under the mandate of the United Nations High Commissioner for Refugees (UNHCR) and their refugee ID cards are valid till April 12 next year.

His counsel also sought an order regarding visitation rights to the father whenever he visits India. However, as the children were not inclined to meet him, the bench said it was not possible at this stage to issue any omnibus order regarding his visitation rights and that he may seek the relief in other appropriate proceedings available to him under the law.

HC seeks Centre’s reply on Tytler’s plea against seizing of passport

NEW DELHI: The Delhi High Court sought response of the Centre on a plea by Congress leader Jagdish Tytler challenging an order of the passport authority impounding his passport for allegedly furnishing false details to them.

Justice Vibhu Bakhru took on record the submission of Additional Solicitor General Maninder Acharya that Tytler is at liberty to apply afresh for passport and his application will be considered uninfluenced from previous proceedings.

The court listed the matter for further hearing on March 6 next year. Tytler, in his plea, claimed that the passport officer has passed the impounding order, for allegedly furnishing false details for renewal of his travel document, in a “most highhanded and arbitrary manner”.

The order was passed by the regional passport officer on March 28, which was challenged before the appellate authority. The latter dismissed the appeal, after which the Congress leader approached the High Court.