SC Upholds Ex Royal Family’s Rights Over Padmanabhaswamy Temple

                                                In a bold, blunt and brilliant decision, the Supreme Court Bench of Justice Uday Umesh Lalit and Justice Indu Malhotra in Sri Marthanda Varma (D) Thr. LRs & Anr. in Civil Appeal No. 2732 of 2020 [Arising out of Special Leave Petition (C) No. 11295 of 2011 Vs. State of Kerala & Ors.] upheld the Shebait rights of the erstwhile royals of Travancore in the administration, maintenance and management of Sree Padmanabhaswamy Temple in Thiruvananthapuram. While allowing the appeal filed by the members of the Travancore family, the top court reversed the 2011 finding of the High Court of Kerala that the rights of the family ceased to exist with the death of the last ruler of Travancore in 1991. It was also made clear that the death of the last ruler will not result in escheat of the rights in favour of the government. In addition, the death will not affect the rights of shebaitship of the family over the deity and they will survive as per custom.

                                  Before going into the nitty gritty, it would certainly be worthwhile to first go through the correct chronological order of this high profile case. It goes as follows:

2009 : TP Sundarajan who is an ex-IPS officer moves the Kerala High Court seeking transfer of control of temple from the royal family to Kerala state.

5-2-2010 : Uthradom Tirunal Marthanda Varma (since deceased) who was managing trustee of the Sree Padmanabhaswamy temple files a writ in the Kerala High Court challenging all civil cases filed against the temple management in subordinate courts.

31-1-2011 : Kerala High Court Division Bench led by Justice CN Ramachandran Nair (since retired) passes  a verdict directing the State Government to constitute a body corporate to take over the temple and its assets.

2-5-2011 : An appeal of Uthradam Thirunal Marthanda Varma who is brother of the last ruler is heard in the Supreme Court which grants interim stay on High Court’s directives and appoints a team of observers to take a detailed inventory of the articles/valuables/ornaments in Kallaras (vaults) on a special leave petition moved by Uthradam.

8-7-2011 : The apex court orders that opening of vaults A and B be kept in abeyance until further orders.

21-7-2011 : Supreme Court considers state’s response and directs setting up of an expert panel to advise on inventory and conservation.

22-9-2011 : Supreme Court examines interim report of the Expert Committee and issues directions.

23-8-2012 : Apex Court examines the interim report of the Expert Committee.

6-12-2013 : Uthradom Tirunal Marthanda Varma passes away.

15-4-2014 : The amicus curiae submits his report.

24-4-2014 : The top court appoints an administrative committee headed by the District Judge of Thiruvananthapuram to manage the temple.

27-11-2014 : The Apex Court accepts some of the recommendations by the amicus curiae.

4-7-2017 : The top court appoints Justice KSP Radhakrishnan as Chairman of the Selection Committee for the Sreekovil.

Jan-Apr 2019 : The case comes up before the Apex Court Bench of Justice UU Lalit and Justice Indu Malhotra for final hearing.

10-4-2019 : Apex Court reserves its verdict on pleas challenging January 31, 2011 judgment of the Kerala High Court in the matter and concludes hearing.

13-7-2020 : Apex Court finally upholds the right of the royal family of erstwhile Travancore family to manage the deity’s property.

                                            Needless to say, what tilted the scales in favour of erstwhile Travancore royal family is stated quite upfront in para 54 that, “Though there may be different accounts and beliefs with regard to the origin and how the Temple was set up, every version accepts that the King of Travancore had a role in the administration of the Temple to begin with, and that he was the one who re-constructed the Temple after a major fire that occurred in the year 1686, and installed a new idol and took full control of the Temple. The King of Travancore was thus responsible for setting up the Temple, in the form that it stands today, and it was the King who installed the new idol, and since then the management of the Temple, till the Covenant was signed, had always been with the Kings of Travancore.”

                                      Briefly stated, while lending further credence to the claims of the erstwhile royal family, it is also then rightly added in para 55 that, “It is also asserted in the grounds in support of the appeal, that the royal family of Travancore had been making endowments in favour of the Temple and that Lord Padmanabha is considered as the family deity by the erstwhile royal family.”

                                    More significantly, it is then stated in para 59 that, “The practices referred to in the earlier paragraph show that right from the conception of a child upto the death of any member of the erstwhile royal family, special prayers are offered and certain rituals are followed. Every male child born in the erstwhile royal family is made “Dasa” of Sri Padmanabhaswamy while every female child is made “Sevini” through prescribed rituals. Special ceremonies are conducted at the time of ‘Upanayanam’ of a male member and marriage of a female member of the erstwhile royal family. Even assuming that these practices are being or could possibly be followed by other families as well, in addition to these features, the fact that the Ruler is an obligatory participant in various temple rituals; that he has an ‘Ekantha Darshan’ with Sri Padmanabhaswamy on all days in the morning hours where, except the Nambi, nobody else can remain present; that the Ruler has to take special permission whenever he leaves the town; and that whenever the deity is taken out in procession, the Ruler leads the procession with the sword drawn out, along with the heir apparent, establish the special relationship that the erstwhile royal family in general and the Ruler in particular, have always had with Sri Padmanabhaswamy. The ceremony of Dedication undertaken by the then ruler in 1750 A.D. bears testimony to such relationship as well as the deep devotion and sense of complete surrender before Sri Padmanabhaswamy. “The Thrippati Danam”, the translation of which is set out in paragraph 5, shows that “all the lands and functions together with all rights and dignities positions of honour and all other possessions” that the royal family was enjoying hitherto before, were dedicated to Sri Padmanabhaswamy. Even the royal sword was placed with utmost reverence on the Ottakkal Mandapam leading to the Sanctum, which the King got back from the high priest. Every further acquisition by the King was always surrendered to Sri Padmanabhaswamy. The King and his successors thus ruled and conducted themselves as “Padmanabhadasas” and agents of Sri Padmanabhaswamy.”

                                       No less significant is what is then stated in para 60 that, “Tested on any parameter, such as historical accounts, popular and customary beliefs, certain practices connected with the rituals and affairs of the Temple that mandatorily require the presence and participation of the Ruler, deep involvement of the members of ruling family and their connection with the Temple and Sri Padmanabhaswamy at various stages of their lives. “The Thrippati Danam” and its significance, and long recognised and accepted fact that the management of the Temple had always been with the Ruler, lead us to conclude that for centuries, the Temple had been under the exclusive management of successive Rulers from the ruling family of Travancore and that the Rulers of Travancore, till the signing of the Covenant, were in the capacity as Managers or Shebaits of the Temple. The expression Shebait is derived from “sewa” which means service and Shebait, in literal sense, means one who renders “sewa” to the idol or a deity. Every Ruler of Travancore would call himself “Padmanabhadasa” i.e. one who is engaged in the service of Sri Padmanabha Swamy.”

                                             Be it noted, it is very rightly pointed out in para 107 that, “In the circumstances, we hold that the death of Sree Chithira Thirunal Balarama Varma who had signed the Covenant, would not in any way affect the Shebaitship of the Temple held by the royal family of Travancore, that after such death, the Shebaitship must devolve in accordance with the applicable law and custom upon his successor; that the expression “Ruler of Travancore” as appearing in Chapter III of Part I of the TC Act must include his natural successors according to law and custom; and that the Shebaitship did not lapse in favour of the State by principle of escheat.”

                                               To put things in perspective, it is very rightly envisaged in para 114 that, “Having given our anxious consideration to the rival suggestions, the composition of the Committees as suggested by the appellants deserves acceptance, especially in light of the conclusions arrived by us that the Managership or the Shebaitship of the Temple continues with the Family. As against the administration contemplated by Chapter III of Part I of the TC Act in the hands of the Ruler of Travancore in absolute terms, the course now suggested by the appellant is quite balanced. The Composition of the Administrative Committee as suggested is broad based and would not be loaded in favour or against the Trustee. However, considering the fact that the present interim Administrative Committee headed by the District Judge is in session for the last more than five years, and various District Judges as Chairpersons of the Committee conducted themselves quite well, in our view, a minor change in the Administrative Committee suggested by the appellants in their Note is called for. Instead of a retired Indian Administrative Service Officer of the rank of Secretary to the Government of Kerala as the Chairperson of the Administrative Committee, in the interest of justice, the District Judge, Thiruvananthapuram shall be the Chairperson of the Administrative Committee. Needless to say that the present Chairperson of the Interim Administrative Committee shall continue to be the Chairperson so long as he holds the post of the District Judge, Thiruvananthapuram. The composition of the Advisory Committee will ensure that the administration of the Temple is conducted in a fair and transparent manner.”

                                        As it ostensibly turned out, it is then stated in para 115 that, “We, therefore, accept the suggestions made by the appellants in their Note adverted to in detail in paragraph 47 hereinabove with regard to the constitution of the Administrative Committee and the Advisory Committee subject to the modification with respect to the Chairperson of the Administrative Committee as stated in the preceding paragraph. The appellant No. 1 shall file an appropriate affidavit of undertaking within four weeks of this judgment in terms of paragraph 1 of the Note and also agreeing to the modification as stated above. The affidavit of undertaking so filed shall be binding on the appellant No. 1 and all his successors. Within four weeks of filing of the affidavit of undertaking, both the Committees shall be constituted and become functional. The Administrative Committee shall immediately appoint  the Executive Officer. Upon the constitution of the Administrative Committee, the Interim Administrative Committee appointed in terms of the Order dated 24.04.2014 shall cease to operate. In terms of the Note submitted by the appellants the powers of “the Ruler of Travancore” under Section 18(2) of the TC Act shall stand delegated to the Administrative Committee while the Advisory Committee shall be deemed to be the Committee constituted in terms of Section 20 of the TC Act. It is made clear that all the members including the Chairpersons of the Administrative Committee and the Advisory Committee must be Hindus and fulfil the requirements in Section 2(aa) of the TC Act. All the other Committees constituted in terms of various orders passed by this Court shall continue for four months, and it shall be upto the Advisory Committee to consider whether the services of those Committees are required or not. It must also be stated that the present security arrangements as deployed by the State Government shall be continued, but the expenses in that behalf shall be borne by the Temple hereafter.”

                            On the whole, this latest, landmark and extremely laudable judgment clearly and convincingly upholds the right of “Managership or the Shebaitship” of Sree Padmabhaswamy temple at Thiruvananthapuram in Kerala to the royal family of Travancore which had been denied to them by the Kerala High Court earlier but it also simultaneously makes it clear that the administration of the temple will be managed by a Committee headed by a District Judge and also consist of chief ‘Thantri’ of the temple and three others nominated by the trustee, the Kerala government and the culture ministry. It was also clarified that the family would not have absolute say in the administration as it agreed before the court to delegate its power to the administrative committee. The royal family also had taken an unequivocal stand before the Apex Court that “the temple is a public temple and no claim can probably be made by the petitioner or anyone to owning the temple or its treasures.”

                                           It also told the court that it was only seeking the right as a trustee of the temple to manage and administer. The court also ordered a second committee to be constituted to advise the administrative committee on policy matters. This would be chaired by a retired High Court Judge nominated by the Chief Justice of the Kerala High Court.

                                     Both Committees should start functioning within the next two months and an executive officer should be appointed without delay. They would take a call on whether to open Kallara B which is considered to be the richest among the temple vaults, for inventorisation. The court also ordered an audit to be conducted for the past 25 years. Audit results have to be filed annually with the State Accountant General. The court ordered status report to be field by the second week of December 2020. A further report should be filed after audit on March 31, 2020.

                                          While granting managerial rights to the royal family, the Bench said plainly that, “Shebaitship is like any other heritable property which would devolve in accordance with custom or usage, and that the rule of custom must prevail in all cases, even after the death of the erstwhile Ruler of Travancore in 1991, the Shebaitship of the Temple being unconnected with the official status of the person who signed the Covenant, must devolve by the applicable laws of succession and custom.” It also said that the “Constitution of India as well as the Travancore-Cochin Hindu Religious Institutions Act did not, in any way, upset or abridge the status enjoyed by the Ruler of Travancore as Shebait of the temple and also did not, in any manner, adversely impact the right of administration vested in the Ruler of Travancore.”

                                        The Apex Court also directed the royal family to file an appropriate affidavit of undertaking within four weeks agreeing to the judgment and said it will be binding on the family members and its successors. It said both the committees will have to be constituted and become functional within four weeks after the affidavit is filed! Ex-royals are certainly happy as they have got the right to manage the deity’s property! Aditya Varma who is scion of Travancore royal family said that, “It is the victory of devotees and people, not the victory of royals.” But truth cannot be denied that the royal family had pursued the prolonged legal battle with full determination leaving no stone unturned and their tireless efforts didn’t go in vain!

Sanjeev Sirohi

SC Allows Woman With Twin Pregnancy To Medically Terminate One Foetus With Down Syndrome

In an interesting turn of events, we saw how just recently on June 16, 2020, the Supreme Court went ahead to allow a woman bearing 25 weeks old twin pregnancy, to undergo procedure for foetal reduction on the grounds of “serious foetal abnormalities”. It must be mentioned here that a three Judge Bench of Supreme Court comprising of Justices R Banumathi, Indu Malhotra and Anirudha Bose allowed the special leave petition preferred against the order of the Bombay High Court, whereby the petitioner was denied relief. It must also be mentioned here that termination of pregnancy on the ground of “physical or mental abnormalities” of the unborn child as envisaged in Section 3(2)(ii) of the Medical Termination of Pregnancy Act, 1971 clearly states that a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy exceeds twelve weeks but does not exceeds twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith that there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Truth be told, we see that here in the present case, the women was 25 weeks pregnant, i.e. beyond the threshold provided under the Act. The women needed permission of the Court to do what she wanted. She had to therefore approach the Court seeking permission to terminate the pregnancy.

To start with, the ball is set rolling in para 1 wherein it is stated that, “We have heard Mr Colin Gonsalves, learned senior counsel appearing for the petitioner.” It is then stated in para 2 that, “The petitioner who is now pregnant by about 24-25 weeks, had sought permission for foetal reduction of one foetus which is affected with down syndrome.”

While elaborating on the background of the case, the Bench then points out in para 3 that, “By order dated 22.05.2020, the High Court had declined to grant permission for foetal reduction. The High Court was of the view that it may not be safe for the mother, and secondly foetal reduction of one foetus, may affect the other normal foetus.”

Going forward, the Bench then brings out in para 4 that, “By order dated 10.06.2020, we had directed the same Medical Board to be re-constituted, and submit an additional report on two issues: (i) To give further opinion whether the abortion of one foetus will affect on the life of the petitioner-mother; (ii) Whether the abortion of one foetus will have an effect on the surviving second foetus.”

To be sure, the Bench then recalls in para 5 that, “We had further directed that an Additional Member be included in the Medical Board, who is a specialist in Foetal Medicine. The Medical Board included Dr. Purnima Satoskar, MD, a Full Time Professor, Department of Obstetrics and Gynecology at Seth G.S. Medical College and Head of Unit & Foetal Medicine Department at Nowrosjee Wadia Maternity Hospital, Mumbai, who has examined the petitioner – Komal Hiwale and has given the following opinion:

“After going through all the reports, I conclude that she has dichorionic diamniotic twin pregnancy. Today she is around 25 weeks pregnant. One foetus is affected with trisomy 21. The other foetus (fetus A) is chromosomally and structurally normal.””

It would be worthwhile to mention here that it is then laid bare in para 6 that, “Dr. Purnima Satoskar has referred to the Guidance Note for Medical Boards for Termination of Pregnancy beyond 20 weeks Gestation as recommended by the Ministry of Health and Family Welfare, Government of India, which permits selective foetal reduction and gave her opinion as under:

“Note on trisomy 21 (Down Syndrome)

This is a chromosomal abnormality and has no treatment. The baby will suffer from significant mental retardation, intellectual disability and may also have other health conditions like heart disease etc. in the affected person. Thus, leading to severe limitations on the patient who needs a full time caregiver and causes mental, logistical and financial challenges to the parents.

It is classified in the list of substantial and serious abnormalities by the MDHFW in its Guidance Note for Medical Boards for Termination of Pregnancy beyond 20 weeks Gestation.””

More crucially, it is then very rightly underscored in para 7 that, “Dr. Purnima Satoskar, in her conclusion, has opined that there is no direct risk of the procedure to the normal twin and opined as under:

“In dichorionic twins, there is no direct risk of the procedure to normal twin as the circulations of the twins are separate.

The procedure carries negligible risks similar to amniocentesis to mother and is proven extremely safe and large series with no maternal deaths.

After discussing this at length with the mother, she voluntarily came up with selective foetal reduction as her preferred choice after fully understanding the risks and benefits and has submitted a handwritten letter expressing the same.

In conclusion, I find no medical reason not to provide the treatment of foetal reduction converting the twin pregnancy with one twin affected with Down syndrome to singleton pregnancy.””

Furthermore, it is then pointed out by the Bench in para 8 that, “We have gone through the earlier report and also the present report submitted by the Medical Board.”

Finally and most crucially, the three Judge Bench of the Apex Court while disposing of the special leave petition and considering all the facts of this particular case holds in para 9 that, “In view of conclusion of the Medical Board, the impugned order of the High Court is set aside and the petitioner – Komal Hiwale is permitted to undergo foetal reduction as per the procedure stated by Dr. Purnima Satoskar. The petitioner – Komal Hiwale as well as her husband shall give their individual consent for selective foetal reduction. A copy of the two affidavits shall be filed before this Court and the same shall form part of the record.”

In conclusion, the three Judge Bench of the Apex Court has very consciously, very convincingly and very commendably permitted a woman who was bearing 25 weeks old twin pregnancy to undergo procedure for foetal reduction on the grounds of “serious foetal abnormalities”. There can be no denying or disputing it! It goes without saying that it is just a mere coincidence and nothing else that the two Judges out of the three who delivered this latest, landmark and extremely laudable judgment – Justice R Banumathi and Justice Indu Malhotra are themselves woman!

Sanjeev Sirohi

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

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

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

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

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

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

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

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

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

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

(emphasis supplied)

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

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

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

Sanjeev Sirohi

Will The Trial Be Vitiated If The Evidence Of Witnesses Were Taken In The Absence Of Accused?

Will the entire trial and conviction be vitiated for non-compliance of Section 273 IPC? Can de novo trial be ordered if it is found that during the trial several witnesses were examined in absentia of the accused ? The Supreme Court is considering this issue in Atma Ram vs. State of Rajasthan, and has stayed the pronouncement of judgment by the Trial Court after conducting de novo trial. Senior Advocate Ranjit Kumar has been appointed as Amicus Curiae by the bench comprising of Justice Uday Umesh Lalit and Justice Indu Malhotra.

The court has posted the matter on 13th March for further consideration. It said: “Once we are seized of the matter, in the fitness of things, let there not be any pronouncement of the judgment. We therefore, direct the trial court not to pronounce the judgment and await further orders by this Court.” High Court Ordered De Novo Trial Atma Ram and three others were convicted by the Trial Court and were sentenced to death. Before the Rajasthan High Court, they took a contention that entire trial is vitiated because the trial court recorded statements of a large number of prosecution witnesses without ensuring their presence in the proceedings. Order sheets of the Trial Court also categorically mentioned that the accused had not been brought to the court from the prison. The High Court held that the proceedings undertaken by the trial court to the extent of recording of the statements of witnesses in absentia of the accused cannot be considered to be lawful as they were held contrary to the mandate of Section 273 CrPC. The High Court had observed:

“The accused were in judicial custody. No satisfaction was recorded by the court in any of the proceedings that presence of the accused was not necessary in the court. Rather, the trial court, time and again intimated the jail authorities that the accused should be brought to the court but then failed to ensure that the direction is complied. Needless to say that the right of the accused to see the evidence being taken in their presence is recognized as an absolute right by Section 273 Cr.P.C. and the same emanates from the principles of natural justice and fair trial. Thus, without any doubt, statements of the witnesses recorded by the trial court in absence of the accused more particularly when they were in judicial custody cannot be treated as having been recorded strictly in accordance with law.”

But, while holding that the conviction recorded was unsustainable it also considered the issue whether, the entire trial should be declared vitiated; or that the matter should be remanded to the trial court for recording the statements of these witnesses afresh by exercising powers under Section 391 Cr.P.C. or that the impugned judgment should be set aside and the de-novo trial directed by exercising powers under Section 386(b) Cr.P.C? The court held that there is no straightjacket formula in any of the precedent that a de-novo trial cannot be directed in any condition as it would render Section 386(b) Cr.P.C. redundant.

The court then ordered that fresh trial/de-novo by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court. It said: “We feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de-novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court.”

 

Supreme Court directs Disaster Management sub-committee, for decrease in water level at Mullaperiyar Dam

NEW DELHI: The Supreme Court of India directed Disaster Management sub-committee of Mullaperiyar Dam to consider reducing the water level up to 139 feet from the present 142 feet. A bench of Chief Justice Dipak Misra and Justice Indu Malhotra took a serious note of the grim flood situation in Kerala and asked the sub-committee to hold an urgent meeting tomorrow morning with the Centre’s National Crisis Management Committee (NCMS).

An effort has to be made to bring down the water level of the Mullaperiyar Dam to 139 feet so that the people living downstream should not live in constant fear,” the bench said.

At least 75 people have died since August 8 after incessant rains lashed Kerala and triggered massive floods and landslides.

However, Tamil Nadu government opposed the plea with regard to bringing down the water level in the dam, saying that the inflow of water presently is over 12,000 cusec in contrast to the outflow of 5,000 cusec.

Supreme Court, questioned Government over adultery law

NEW DELHI: The Supreme Court questioned the Centre’s stand defending the adultery law and his submission that the penal provision on adultery was needed to save the sanctity of marriage, saying it does not appeal to common sense that a woman cannot prosecute her husband for adulterous relationship.

A five-judge Constitution Bench headed by Chief Justice Dipak Misra asked how it preserved the “sanctity” when with the extra-marital affair becomes non-punishable if the woman’s husband stands by her. The bench headed by Chief Justice Dipak Misra, which reserved its verdict on a plea challenging Section 497 of the IPC.

Other judges on the bench are Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

The Chief Justice further said, “We are not questioning the legislature’s competence to make laws, but where is the ‘collective good’ in Section 497 of IPC?

Arguing on behalf of the Centre, Additional Solicitor General Pinky Anand said, “In India, marriage is a sacred institution, so any intrusion into that is something which should attract penal consequences.”

“Where is the sanctity of marriage when the husband can consent?” asked Justice R F Nariman. The bench said the law in question was only “targetting” married women and not the men who can have relationships with unmarried women.