Established Status Quo Brought About By Judgments Interpreting Local/State Laws Should Not Be Lightly Departed From: SC

In an interesting, fresh and significant development, the Supreme Court in a latest, landmark and laudable judgment titled Navin Chandra Dhoundiyal vs. State of Uttarakhand in Civil Appeal No. 3493/2020 (Arising out of SLP (C) No. 10943/2020) along with four other appeals has cogently, categorically and convincingly observed that long standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from. Very rightly so! This commendable judgment was delivered on October 16, 2020 by a two Judge Bench of Apex Court comprising of Justice Uday Umesh Lalit and Justice S Ravindra Bhat.

To start with, Justice S Ravindra Bhat who authored this notable judgment for himself and Justice Uday Umesh Lalit sets the ball rolling in para 1 by first and foremost observing that, “Leave granted. The parties were heard finally in these appeals. The common question which arises for decision is as to the correct interpretation of a condition in the respondent-University’s statutes regarding the date of superannuation of its teachers.”

To put things in perspective, the Bench then points out in para 2 that, “All the appellants are working as Professors in various disciplines, in the respondent Kumaun University (hereafter “the University”). They are aggrieved by an office order dated 21.12.2019 which set out their respective dates of retirement (which were the last dates in the months they attained the age of superannuation, i.e. 65 years). The appellants relied on Statute No. 16.24 of the University, applicable to them, contending that they were entitled to continue beyond the last date of the month in which each of them attained the age of superannuation, till the “30th of June following” in terms of that provision. That statute reads as follows:

“16.24 (1) The age of superannuation of a teacher of the University, whether governed by the new scale of pay or not shall be sixty-five years.

(2) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these statutes.

Provided that a teacher whose date of superannuation does not fall on June 30, shall continue on service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June 30, following.

(Provided further that such physically and mentally fit teachers shall be reappointed for a further period of two years, after June 30, following the date of their superannuation as were imprisoned for taking part in freedom struggle of 1992 and are getting freedom fighters pension)

Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to the commencement to the Kumaun University (Twenty-third amendment) First Statute, 1988 and a period of one year has not elapsed after the expiry of the period of their reemployment, may be considered for re-appointment for a further period of one year.””

As it turned out, it is then stated in para 3 that, “The appellants were aggrieved by the office order dated 21.12.2019 and approached the Uttarakhand High Court in writ proceedings. They argued that they were entitled to continue in service, on extension up to the end of June, 2021. They had relied on a previous judgment of the Division Bench of the High Court – Dr. Indu Singh v. State of Uttarakhand 2017 SCC Online 1527. In that judgment, the Division Bench had, on an interpretation of the relevant provisions (which were worked identically to Statute No. 16.24 as in this case) held that those who retire after 30th June are “entitled to continue till the end of the academic year”. The Division Bench placed emphasis and importance on the legislative intent “to cater to the supreme need to not adversely affect the academic activities of the institution and to safeguard the interest of the students.””

To state the obvious, para 4 then brings out that, “The impugned judgment rejected the appellants’ writ petition, holding that Indu Singh (supra) could not be considered as a binding authority. It was also held that Statute No. 16.24 applies to the teachers of the university. The Division Bench said that Statute No. 16.24 (2) specifically places an embargo on extension in service beyond the age of superannuation. Statute No. 16.24 (2.1) – according to the Division Bench, merely provided that if the superannuation were not to fall on June, 30th, the teacher shall continue in the service till end of the academic session i.e. June, 30th and the same will be treated as re-employment. The Division Bench was of the opinion that whenever the superannuation of an employee falls within the month of June, in that event, his or her retirement would stand extended till the end of June of that particular month. The words used “of the end of the academic session”, was held to be “misleading”. Further, according to the Division Bench, the end of an academic session was not “fixated as on June, even though, most of the universities and their academic session in June 30th. It is not a matter of rule that the same happens everywhere. Therefore, the said concession has been granted only for the month of June.” In other words, the impugned judgment considered Indu Singh (supra) to be limited to holding that the service of an employee or teacher retiring in a given month; would be “extendable only till the end of the month and not more.” The impugned judgment stated that if the appellants were right, every officer would get an extension for a year or so, which could never be the intention of the university or of the government.”

Significantly, the Bench then states in para 9 that, “This Court is of the opinion that on a plain interpretation of Statute No. 16.24, including the proviso in question, it is clearly apparent that firstly each teacher attains the age of superannuation on completing 65 years {Statute No. 1624 (1)}. Secondly, no teacher who attains the age of superannuation has a right or entitlement to re-employment; in fact, the opening expression “No teacher” appears to rule out re-employment of superannuated teachers {Statute No. 16.24 (2)}. Thirdly, and importantly the proviso {to Statute 16.24 (2)} carves out an exception to the main provision, inasmuch as it provides that a teacher whose “date of superannuation does not fall on June 30, shall continue in service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.””

Most significantly, the Bench then minces no words to state upfront in para 13 that, “The above analysis would show that the view of the Uttarakhand High Court, as also the Allahabad High Court (now settled by the full bench decision) consistently have been that teachers superannuating are to be treated as re-employed or allowed to continue, in the larger interest of the pupils, has prevailed. If the view that found acceptance with the impugned judgment were to prevail, there would be avoidable disruption in teaching; the likely delay in filing vacancies caused mid-session cannot but be to the detriment of the students. That apart, this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding, appropriate measures could have been taken, putting all the concerned parties to notice, through amendments. In the absence of any such move, the departure from the prevailing understanding through a discordant judgment, as the impugned judgment is, injects uncertainty. Long ago, this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or status quo brought about by judgments interpreting local or state laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey v Sant Prasad Tewari & Ors 1973 (2) SCR 835 in the following words:

“In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed in M.R. in the case of Brownsea Haven Properties v. Poole Corpn. (1958) [Ch] 574), there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision.””

Of course, it is a no-brainer that the Bench then very rightly holds in para 14 that, “This Court is consequently of the opinion that the impugned judgment is in error. The very object and intent of the proviso to Statute No. 16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid-session. Therefore, the view in Indu Singh (supra), dealing with an identical statute, was correctly interpreted; the other decisions which dealt with Statute No. 16.24 [Professor Sri Krishna Khandelwal and Binod Kumar Singh (supra)] too were correctly decided.”

Finally, it is then held in the last para 15 that, “For the foregoing reasons, the impugned judgment and orders of the High Court are set aside. The appellants are entitled, consequently, to continue till the end of the following June on re-employment. If any of them has been superannuated, he or she shall be issued with orders of reinstatement, with full salary for the period they were out of employment, and allowed to continue till the following June, on re-employment basis. The appeals are allowed without any order as to costs.”

Needless to say, the bottom-line of this notable ruling is that the long standing or established status quo brought about by judgments interpreting local or state laws should not be lightly departed from. There must be cogent, concrete and convincing reasons for doing so. All the courts must always bear this in mind!  There can be no denying or disputing it!

To conclude, all the courts from the top to the bottom must always make it a point to adhere to this basic principle of law as laid down and expounded very rightly earlier also and reiterated in this case yet once again very rightly by a two Judge Bench of Apex Court comprising of Justice Uday Umesh Lalit and Justice S Ravindra Bhat for this is exactly the primary reason that why this latest judgment has acquired so much prominence and became landmark and laudable!

Sanjeev Sirohi

SC Takes Suo Motu Cognizance Of Worst Conditions Of Hospitals

                                      Without wasting any time, the highest court of our country which is the Supreme Court very rightly, very commendably and very consciously took suo motu cognizance of the most degrading, most deplorable and most dehumanizing treatment of the Covid-19 patients and dead bodies in the hospitals etc after watching it live in India TV news channel as also other news channels especially of LNJP hospital in Delhi which has shaken the whole country beyond belief! Chief Justice of India Sharad Arvind Bobde took cognizance of this most serious issue and assigned it to a three-Judge Bench as stated below. Former Union Law Minister and senior and eminent advocate of the Supreme Court Dr Ashwani Kumar too had written to the CJI on June 8 highlighting the undesirable and horrifying manner in which patients and the bodies were being mishandled!

No doubt, we all always consider hospitals to be the safest refuge when we are not well. But after seeing what has been shown in different news channels about how the Covid-19 patients are treated, how they are thrown like animals and how even dead bodies keep lying unattended in hospitals. It is high time that the hospitals and the respective State governments must wake up from their deep slumber, see the ground reality for themselves and from now onwards stop trusting hospitals blindly under any circumstances!

It goes without saying that hospitals too must be held accountable from now onwards just like other institutions. Those hospitals who don’t cater for their patients must be held accountable and punished most severely! There should be no mercy for them as they betray the very purpose for which hospitals are set up! Doctors and nurses who are found wanting also must be held fully accountable and penalized severely for it!

To start with, a 3 Judge Bench of Supreme Court comprising of Justice Ashok Bhushan, Justice Sanjay Kishan Kaul and Justice MR Shah in this crucial suo motu case registered as “In Re Proper Treatment of COVID-19 Patients And Dignified Handling Of Dead Bodies In The Hospitals, Etc. in Suo Motu Writ Petition (Civil) No(s). 7/2020  most crucially set the ball rolling by first and foremost observing that, “The cognizance of suo motu writ petition has been taken on the basis of media reports and programmes aired in several channels presenting horrific scenes from LNJP hospital, which is a Covid dedicated hospital. The India TV, in its programme on 10th June 2020, has shown certain videos which indicate the pathetic condition of the patients admitted in the hospital and the deplorable condition of the wards. The patients are in the wards and the dead bodies are also in the same wards. Dead bodies are seen also in the lobby and waiting area. The patients were not supplied with any oxygen support or any other support, no saline drips were shown with the beds and there was no one to attend the patients. Patients are crying and there is no one to attend them. This is the condition of the Government Hospital of Delhi which has capacity of 2000 beds. As per the Government App, only 870 beds were occupied in LNJP Hospital as on 11.06.2020. The Government App itself gives the details of beds occupied in the Government and Private hospitals in Delhi. In the Government hospitals, the number of beds is 5814, out of which 2620 are occupied.”

More damningly and more tellingly, it is then pointed out by the Apex Court Bench that, “The reports also indicate that the patients suffering from Covid-19 are running from pillar to post to get admission in the hospitals whereas large number of beds are lying vacant in Government hospitals. The large number of beds in Government Covid Hospital being vacant in a situation where patients suspected of Covid-19 are running from pillar to post to get admission in any hospital tells about the mismanagement and sorry state of Government hospitals in Delhi. The State is not only duty bound to increase the number of beds but also to provide appropriate infrastructure and staff for manning the Covid-19 patients. The pathetic condition of the patients and improper care and treatment of the patients shown by the media has pained this Court.”

While rapping the State Government of NCT of Delhi and its officers on its knuckles, the Apex Court Bench then further minces no words to observe that, “The State on whom the duty lies to take care of health of its citizens cannot abdicate its responsibility of ensuring that all hospitals including Government hospitals take care of the Covid-19 patients. The duty of the State of NCT Delhi does not end in informing the people that it has arranged 5814 beds in Government hospitals and 9535 beds including private hospitals. The State and its officers are also duty bound to ensure that patients are taken care, attended, provided all medical facility, the hospitals have necessary infrastructure and staff.”

Going ahead, the Apex Court Bench then further observes that, “We have also noticed that the Government App of Delhi itself indicates that the number in testing of Covid-19 patients has gone down in the month of June, 2020 as compared to the month of May 2020. On 27th May 2020, the number of samples tested is 6018, on 9th June 2020, the number is 4670, on 11th June 2020, the total testing in Delhi is reported as 5077 whereas in the State of Maharashtra as 16,000 and in the State of Tamil Nadu as 17675. The media reports indicate that there is an increase in the number of patients affected by Covid-19 every day in the entire country especially in Delhi, Maharashtra, Tamil Nadu, Chennai and Ahmedabad. The number of patients increasing day by day is 10,000 or more per day. We do not understand why the tests have gone down in State of NCT Delhi. Non-testing of the patients is not a solution to the problem rather increase in the testing facility is the duty of the State, so that people may come to know about their health status regarding Covid-19 and they may take appropriate care and treatment of Covid-19.”

While strongly recommending more testing, the Apex Court Bench then states that, “We impress upon the States to ensure that there should be steep increase in the testing both by Government hospitals and private labs and whosoever desires for testing should not be denied on any technical ground or any other ground. The States may consider simplifying the procedure so that more and more tests be held to benefit the patients.”

Why talk about Delhi alone? Why not talk about other states also? Why should they be not discussed?

As it turned out, the Apex Court Bench then pointed out that, “We have also noticed that apart from Delhi, there is a grim situation in the other States also, more particularly, in the States of Maharashtra, Tamil Nadu, West Bengal and Gujarat.”

What’s more, the Bench also then brings out that, “Mr. Tushar Mehta, learned Solicitor General appearing for the Union of India submits that although there are Covid-19 Guidelines on Dead Body Management issued by the Government of India, Ministry of Health & Family Welfare, Directorate General of Health Services on 15.03.2020 which are in the nature of directives, we notice that there is no proper adherence to the guidelines nor the hospitals are giving due care and concern to the dead bodies.”

Worse still, the Bench then also notes that, “The patients’ relatives are not even informed for several days of the death of the patient as has been reported in the media. It is also brought to our notice that the details of cremation as to when the dead body will be cremated are not even informed to their close relatives. Due to which the families of the patients are not even able to see the dead bodies or attend their last funeral rites.” This a terrible and pathetic state of affairs! What can be worse than this?

Needless to say, the Apex Court Bench then states that, “All these facts, which have been brought to the notice of the Court by the media reports, clearly indicate a very sorry state of affairs of the patients of Covid-19 in the Government hospitals in the NCT of Delhi as well as in other States.”

What followed next was ostensibly as anticipated and as the Bench lays bare that, “We, thus, issue notice to the Union of India, NCT of Delhi, States of Maharashtra, West Bengal, Tamil Nadu and Gujarat as well as to the LNJP Hospital in Delhi. We shall also consider issuing notice to other states, Government and Private hospitals subsequently.”

Furthermore, the Bench then adds that, “Mr. Tushar Mehta, learned Solicitor General accepts notice on behalf of the Union of India and Mr. Sanjay Jain, learned ASG accepts notice on behalf of the NCT of Delhi.”

To put things in perspective, the Bench then further adds that, “Let notice be served to other States through the standing counsel of the States as well as through the Chief Secretaries of the State Governments. LNJP hospital, Delhi be also noticed through its Director. We direct that the Chief Secretaries of the States shall immediately take appropriate notice of the status of patients’ management in the Government hospital in their respective States and take remedial action. Status report with regard to Government hospitals, patient care and the details of the staff, infrastructure etc. should be brought before the Court so that appropriate directions be issued by the Court as found necessary on the next date of hearing.”

Finally, the Bench then in the concluding part concludes by observing that, “Notice be issued today itself by the Registry. List the matter on 17.06.2020 for further consideration. Let the affidavit be filed either by the Chief Secretaries or Secretary, Ministry of Health and Family Welfare of the concerned States. With regard to LNJP hospital, Delhi in addition to affidavit by the Chief Secretaries or Secretary, Ministry of Health and Family welfare, affidavit be also filed by the Director of Medical Superintendent of LNJP hospital. Referring to reports in media showing deplorable state of affairs in the hospital.”

As a corollary, the Delhi government immediately swung into damage control mode and said that it accepted the court’s observations with the “utmost respect and with absolute sincerity”.  It also made it known that, “The Delhi government is determined to provide health care for all to ensure best possible treatment to each COVID-19 patient. But, if there are any gaps that still remain and is brought to our notice we will act on them sincerely and immediately.”

It must be brought out here that Delhi recorded 1877 new corona virus cases on June 11, its highest single day spike taking the tally in the city to over 34,000 mark, according to health authorities. The death toll stood at 1085. Delhi has the third highest number of corona virus cases in India after Maharashtra and Tamil Nadu.

In conclusion, this latest, landmark and extremely laudable wake-up call coming directly from the Apex Court must cause the concerned States and concerned hospitals to immediately swung into action and make the necessary corrections. There can be no excuses or reasons of any kind on this as it directly concerns the lives of the people! The AAP government in Delhi must especially take effective and speedy action to ensure that the deplorable, degrading and detesting conditions of even big hospitals like LNJP are promptly redressed so that the Supreme Court never again is pained to issue compelling directives as we see now!

Sanjeev Sirohi

State Has Solemn Constitutional Duty To Assist Court In Dispensation Of Justice; Cannot Behave Like Private Litigant: SC

        It must be said right at the outset before saying anything else that the Supreme Court most recently in a recent and notable judgment titled M/S Granules India Ltd. Vs Union Of India And Others in Civil Appeal No(s). 593-594 of 2020 (Arising out of SLP (Civil) No(s). 30371-30372 of 2017) in exercise of its civil appellate jurisdiction has minced just no words to remark most unequivocally and unambiguously that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.” The Apex Court was considering an appeal against the High Court order which had dismissed a writ petition challenging denial of exemption from Customs duty on the ground that the authorities of the State were also unaware of the clarificatory notification and neither did the petitioner bring it on record. No doubt, it is high time and the State must now without fail certainly pay heed to what the top court of our country has said so clearly and convincingly which has lot of merit in it and therefore must be adhered to in totality!

To begin with, this latest, landmark and laudable judgment authored by Justice Navin Sinha for himself and Justice Krishna Murari of the Apex Court Bench sets the ball rolling in para 2 by first and foremost observing that, “The appellant is aggrieved by orders dated 07.12.2016 and 14.06.2017, rejecting the writ petition as also the review application arising from the same.”

While elaborating in detail, the Bench then observes aptly in para 3 that, “The appellant, during the year 1993 imported 96 tons of the chemical “Acetic Anhydride” under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 through the Inland Water Container Depot (ICD), Hyderabad under the Advance Licence Scheme. It claimed clearance of the consignment free of import duty in terms of Customs Notification nos. 203/1992, 204/1992, both dated 19.05.1992. The notification contained a scheme permitting import without payment of customs duty subject to fulfillment of certain norms and conditions. The Notification nos. 203/1992 and 204/1992 were amended by a Notification no. 183/1993 dated 25.11.1993, by which the subject imports became liable for duty, the exemption having been withdrawn. The Notification dated 25.11.1993 was further amended by another clarificatory Notification no. 105/1994 dated 18.03.1994 permitting the import of the chemical without customs duty subject to certain terms and conditions. The clarificatory notification was necessitated to obviate the difficulties faced by the importers like the appellant, who had imported the chemical under the advance licence issued by the Director General of Foreign Trade prior to the amendment Notification no. 183/1993 dated 25.11.1993.”

While continuing in the same vein, the Bench then further very rightly points out in para 4 that, “The appellant was allowed to clear the consignments under the aforesaid three Bills of Entry without payment of duty. Subsequently the respondents issued show cause notice under Section 28 (1) of the Customs Act, 1962 with regard to the same consignments as having been imported after 25.11.1993. The appellant made a representation on 20.11.1997 seeking exemption. It was considered favourably in respect of three other consignments under Bill of Entry No. 312 dated 12.09.1993, Bill of Entry No. 28 dated 10.02.1994 and Bill of Entry No. 27 dated 09.02.1994. The entire consignments were imported under the same advance licence. In pursuance of the show cause notice the appellant was held liable to duty by order dated 12.2.1998 with regard to the consignment under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 respectively though these were also under the same advance licence. The respondents while considering the reply to the show cause notice and fixing liability for payment of customs duty did not make any reference to their notification dated 18.03.1994. The Commissioner (Appeals) on the same reasoning rejected the appeal leading to the institution of the writ application.”

Interestingly enough, it is then disclosed in para 5 that, “Dismissing the writ application, the High Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief.”

On the one hand, it is pointed out in para 6 that, “Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No. 14288 of 2004 (CC No. 5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary.”

On the other hand, it is then just aptly pointed out in para 7 that, “Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified.”

On the whole, the Bench then observes rightly after listening to both the sides in para 8 that, “We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfillment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption.”

Most remarkably, it is then very rightly held in para 9 that, “It is unfortunate that the High Court failed to follow its own order in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.”

No doubt, it is a brief but brilliantly written judgment. Before concluding, it holds in the last para 11 that, “The impugned orders are therefore held to be unsustainable and are set aside. The appeals are allowed.” Also, it ably cites the relevant case law titled National Insurance Co. Ltd. vs. Jugal Kishore (1988) 1 SCC 626 in para 10 and briefly stated very rightly holds that, “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.” There has not even an iota of doubt been left by the Apex Court Bench in this leading case to hold most clearly, convincingly and categorically that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.”

Sanjeev Sirohi

SC Dismisses Pre-Arrest Bail Plea Of P Chidambaram

 

                 In a big jolt to former Finance Minister – P Chidambaram, the Supreme Court most recently on September 5, 2019 in the notable judgment titled P Chidambaram Vs Directorate Of Enforcement in Criminal Appeal No. 1340 of 2019 (Arising out of SLP (Cri.) No. 7523 of 2019) has dismissed the fervent plea of pre-arrest bail plea made by him. It has also made some important observations vis-à-vis application of Prevention of Money Laundering Act and the scope of power vested under Section 438 of CrPC to grant anticipatory bail. The Bench of Apex Court comprising of Justice R Banumathi and Justice AS Bopanna  also made it clear that though it disapproved the approach of the High Court Judge in extracting the note produced by the Enforcement Directorate but agreed with his conclusion that it is not a case fit to grant anticipatory bail.

To start with, the ball is set rolling in this noteworthy judgment authored by Justice R Banumathi for herself and Justice AS Bopanna by first and foremost observing in para 2 after granting leave in para 1 that, “This appeal relates to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of Rs 305 crore against approved inflow of Rs 4.62 crores. The High Court of Delhi rejected the appellant’s plea for anticipatory bail in the case registered by Central Bureau of Investigation (CBI) being RC No. 220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. By the impugned order dated 20.08.2019, the High Court also refused to grant anticipatory bail in the case registered by the Enforcement Directorate in ECIR No. 07/HIU/2017 punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002.”

Going forward, it is then pointed out in para 3 that, “Grievance of the appellant is that against the impugned order of the High Court, the appellant tried to get the matter listed in the Supreme Court on 21.08.2019; but the appellant could not get an urgent hearing in the Supreme Court seeking stay of the impugned order of the High Court. The appellant was arrested by the CBI on the night of 21.08.2019. Since the appellant was arrested and remanded to custody in CBI case, in view of the judgment of the Constitution Bench in Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, the appellant cannot seek anticipatory bail after he is arrested. Accordingly, SLP (Cri.) No. 7525 of 2019 preferred by the appellant qua the CBI case was dismissed as infructuous vide order dated 26.08.2019 on the ground that the appellant has already been arrested and remanded to custody. This Court granted liberty to the appellant to work out his remedy in accordance with law.”

What’s more, it is then brought out in para 4 that, “On 15.05.2017, CBI registered FIR in RC No. 220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused viz. (i) INX Media through its Director Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P. Chidambaram and others; (v) Advantage Strategic Consulting through its Director Ms. Padma Vishwanathan @ Padma Bhaskararaman and others; (vi) unknown officers/officials of Ministry of Finance, Govt. of India; and (vii) other unknown persons for the alleged irregularities in giving FIPB’s clearance to INX Media to receive overseas funds of Rs 305 crores against approved Foreign Direct Investment (FDI) of Rs. 4.62 crores.”

Furthermore, it is then also brought out in para 5 that, “Case of the prosecution in the predicate offence is that in 2007, INX Media Pvt. Ltd. approached Foreign Investment Promotion Board (FIPB) seeking approval for FDI upto 46.216 percent of the issued equity capital. While sending the proposal by INX Media to be placed before the FIPB, INX Media had clearly mentioned in it the inflow of FDI to the extent of Rs. 4,62,16,000/- taking the proposed issue at its face value. The FIPB in its meeting held on 18.05.2007 recommended the proposal of INX Media subject to the approval of the Finance Minister-the appellant. In the meeting, the Board did not approve the downstream investment by INX Media in INX News. In violation of the conditions of the approval, the recommendation of FIPB:- (i) INX Media deliberately made a downstream investment to the extent of 26% in the capital of INX News Ltd. without specific approval of FIPB which included indirect foreign investment by the same Foreign Investors; (ii) generated more than Rs. 305 crores FDI in INX Media which is in clear violation of the approved foreign flow of Rs 4.62 crores by issuing shares to the foreign investors at a premium of more than Rs. 800/- per share.”

Moving on, para 6 then further states that, “Upon receipt of a complaint on the basis of a cheque for an amount of Rs. 10,00,000/- made in favour of M/s Advantage Strategic Consulting Private Limited (ASCPL) by INX Media, the investigation wing of the Income Tax Department proceeded to investigate the matter and the relevant information was sought from the FIPB, which in turn, vide its letter dated 26.05.2008 sought clarification from the INX Media which justified its action saying that the downstream investment has been authorised and that the same was made in accordance with the approval of FIPB. It is alleged by the prosecution that in order to get out of the situation without any penal provision, INX Media entered into a criminal conspiracy with Sh. Karti Chidambaram, Promoter Director, Chess Management Services Pvt. Ltd. and the appellant-the then Finance Minister of India. INX Media through the letter dated 26.06.2008 tried to justify their action stating that the downstream investment has been approved and the same was made in accordance with approval.”

What is even more damning is what is stated in para 7 that, “The FIR further alleges that for the services rendered by Sh. Karti Chidambaram to INX Media through Chess Management Services in getting the issues scuttled by influencing the public servants of FIPB unit of the Ministry of Finance, consideration in the form of payments were received against invoices raised on INX Media by ASCPL. It is alleged in the FIR that the very reason for getting the invoices raised in the name of ASCPL for the services rendered by Chess Management Services was with a view to conceal the identity of Sh. Karti Chidambaram inasmuch as on the day when the invoices were raised and payment was received. It is stated that Sh. Karti Chidambaram was the Promoter, Director of Chess Management Services whereas ASCPL was being controlled by him indirectly. It is alleged that the invoices approximately for an amount of Rs. 3.50 crores were falsely got raised in favour of INX Media in the name of other companies in which Sh. Karti Chidambaram was having sustainable interest either directly or indirectly. It is alleged that such invoices were falsely got raised for creation of acquisition of media content, consultancy in respect of market research, acquisition of content of various genre of Audio Video etc. It is alleged that INX Media Group in his record has clearly mentioned the purpose of payment of Rs. 10,00,000/- to ASCPL as towards “management consultancy charges towards FIPB notification and clarification”. Alleging that the above acts of omission and commission prima facie disclose commission of offence, CBI has registered FIR in RC No.220/2017-E-0011 on 15.05.2017 under Section 120B read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the aforesaid accused.”

Be it noted, it is then illustrated in para 8 that, “On the basis of the said FIR registered by CBI, the Enforcement Directorate registered a case in ECIR No.07/HIU/2017 against the aforesaid accused persons for allegedly committing the offence punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002 (PMLA). Ever since the registration of the cases in 2017, there were various proceedings seeking bail and number of other proceedings pending filed by Sh. Karti Chidambaram and other accused. Finally, the Delhi High Court granted bail to Sh. Karti Chidambaram in INX Media case filed by CBI on 23.03.2018. Thereafter, the appellant moved Delhi High Court seeking anticipatory bail both in CBI case and also in money-laundering case filed by Enforcement Directorate. On 25.07.2018, the Delhi High Court granted the appellant interim protection from arrest in both the cases and the same was extended till 20.08.2019 – the date on which the High Court dismissed the appellant’s petition refusing to grant anticipatory bail.”

While continuing in the same vein, it is then envisaged in para 9 that, “The High Court dismissed the application refusing to grant anticipatory bail to the appellant by holding that “it is a classic case of money-laundering”. The High Court observed that “it is a clear case of money-laundering”. The learned Single Judge dismissed the application for anticipatory bail by holding “that the alleged irregularities committed by the appellant makes out a prima facie case for refusing pre-arrest bail to the appellant”. The learned Single Judge also held that “considering the gravity of the offence and the evasive reply given by the appellant to the questions put to him while he was under the protective cover extended to him by the court are the twin factors which weigh to deny the pre-arrest bail to the appellant”. Being aggrieved, the appellant preferred this appeal.”

More importantly, it is then very rightly pointed out in para 55 that, “Of course, while considering the request for anticipatory bail and while perusing the materials/note produced by the Enforcement Directorate/CBI, the learned Single Judge could have satisfied his conscience to hold that it is not a fit case for grant of anticipatory bail. On the other hand, the learned Single Judge has verbatim quoted the note produced by the respondent-Enforcement Directorate. The learned Single Judge was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail. But such incorrect approach of the learned Single Judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein.”

Of course, while clarifying that pre-arrest bail should be given only in exceptional cases, it is then made absolutely clear in para 67 that, “Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that the exceptional circumstances exist to resort to that extraordinary remedy.”

Needless to say, it is then clarified in para 69 that, “Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. “…except according to a procedure prescribed by law.” In State of M.P. and another v. Ram Krishna Balothia and another (1995) 3 SCC 221, the Supreme Court held that the right to anticipatory bail is not a part of Article 21 of the Constitution of India and held as under:-

“7. …..We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

“We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.”

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.” [underlining added]”

Frankly speaking, it is then conceded in para 70 that, “We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual’s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.”

While explaining why anticipatory bail should not be given at the stage of investigation and in economic offences, it is then usefully pointed out in para 81 that, “Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”

Most importantly, while explaining why bail should not be given to P Chidambaram, it is then held in para 82 that, “In a case of money-laundering where it involves many stages of “placement”, “layering i.e. funds moved to other institutions to conceal origin” and “interrogation i.e. funds used to acquire various assets”, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.”

Finally, it also cannot be lost on us as to what is then held in the last para 83 that, “In the result, the appeal is dismissed. It is for the appellant to work out his remedy in accordance with law. As and when the application for regular bail is filed, the same shall be considered by the learned trial court on its own merits and in accordance with law without being influenced by any of the observations made in this judgment and the impugned order of the High Court.”

What followed next was as we saw how a Delhi court on September 5 sent former Union Home Minister and former Finance Minister – P Chidambaram to custody till September 19 in Tihar jail in the INX Media case even as another court granted anticipatory bail to him and his son Karti in the Aircel-Maxis money laundering case. Special Judge Ajay Kumar Kuhar said that, “Having considered all the facts and circumstances of the case, the nature of offences and the stage of investigation, which is still in progress, the accused is remanded in judicial custody till September 19.” In other words, P Chidambaram will be in judicial custody in Tihar jail for the next fourteen days from September 5 to September 19! After being sentenced, P Chidambaram was taken in a blue police bus to Tihar prison from a special CBI court in Rouse Avenue – a distance of 18 km and was ironically lodged in the same jail No. 7 where his son Karti was locked up for 12 days in the same case last year. This is so because Jail No. 7 usually houses those facing ED cases. This is also the first time that a former Union Finance Minister and also a former Union Home Minister has been sent to Tihar jail! But all is not over for Chidambaram.

In conclusion, there can be no gainsaying that his vastly experienced legal team comprising of senior lawyers like Kapil Sibal and Abhishek Manu Singhvi are certainly not going to give up so easily! They will certainly strive to again try more harder when his case comes up for regular bail in a trial court! But they too must have now realized that the going would not be so smooth as they had anticipated earlier which they saw for themselves first in Delhi High Court and now in the Supreme Court!

Sex After Obtaining Consent By False Promise To Marry Is Rape: Supreme Court.

 

It is significant to note that the Supreme Court most recently on April 9, 2019 has very strongly and sternly reiterated in a latest, landmark and laudable judgment titled Anurag Soni v. State of Chhattisgarh in Criminal Appeal No. 629 of 2019 (Arising out of SLP(Criminal) No. 618/2019) has reiterated in no uncertain terms that the consent for sexual intercourse obtained by a person by giving false promise of marriage would not excuse him from rape charges. All those men who dare to indulge in sex after giving false promise of marriage must now always bear it in mind that they will not be excused from rape charges as has been held in this most recent case. This commendable and notable ruling is bound to send a large and clear warning to all men that they cannot take women for granted and have sex with them by falsely promising to marry and then later reneging and escaping from all liabilities!

First and foremost, the ball is set rolling in this latest judgment authored by Justice MR Shah for himself and Justice L Nageswara Rao by pointing out in para 1 that, “The application for impleadment of the prosecutrix is allowed, in terms of the prayer made.” It is then mentioned in para 1.1 that, “Leave granted”.

For the uninitiated, para 2 then states that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.10.2018 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 1270/2014; by which the High Court has dismissed the said appeal preferred by the appellant herein – the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused for the offence under Section 376(1) of the IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 50,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for six months, the original accused has preferred the present appeal.”

To recapitulate, it is then unfolded in para 3 that, “The prosecution case in brief was that the prosecutrix was the resident of Koni, Bilaspur, District Bilaspur. Prosecutrix was familiar with the accused since 2009 and there was love affair between them. The appellant had even proposed her for marriage and this fact was within the knowledge of their respective family members. At the time of incident, accused was posted as Junior Doctor in the government hospital of Maalkharoda and at that time the prosecutrix was doing her studies of Pharmacy in Bhilai. On 28.4.2013 the accused expressed his desire to the prosecutrix that he wanted to meet her and accordingly on 29.4.2013 at 7.25 a.m. the prosecutrix boarded Durg Danapur Express train and reached Sakti railway station from where the accused took her on a motorcycle to his house situated at Maalkharoda and there she stayed from 2 pm of 29.4.2013 to 3 pm of 30.4.2013 and during this period despite refusal of the prosecutirx the accused established physical relation with her on the pretext of marrying her. On 30.4.2013 the accused asked the prosecutrix to leave by saying that on 1st or 2nd May he will talk to his parents about their marriage and he will soon marry with her. On 30.4.2013 at about 6 in the evening accused Anurag Soni and the prosecutirx reached Bilaspur by train and from where their friend namely Umashankar took them on a motorcycle to the house of Mallika Humne, friend of prosecutrix, where the accused dropped her and went back. Next morning accused dropped the prosecutrix at Railway Station, Bilaspur from where she boarded train for Bhilai (Durg). Accused asked the prosecutrix not to tell about the incident to anyone and as a result of which the prosecutrix did not disclose the incident to anyone, but from 2.5.2013 to 5.5.2013 the prosecutrix had repeatedly asked from the accused about the marriage and when she did not receive any reply from the accused, on 6.5.2013, she informed her family members about the incident and then the family members of the prosecutrix had gone to the house of accused at village Kharod and informed his family members about the incident whereupon the family members of accused had said that now marriage of accused and prosecutrix was the only option available. In the meantime, members of both the families used to visit house of each other, however, after keeping the prosecutrix and her family members in dark for about two months, the accused had refused to marry the prosecutrix and performed marriage with another girl and then on 21.6.2013 the prosecutrix submitted written report (Ex. P-3) in the police station Maalkharoda in respect of rape committed by the accused upon her on the pretext of marriage based on which FIR (Ex. P-4) for the offence under Section 376 of IPC was registered against the accused.”

As anticipated, we then see that para 3.1 brings out the following: “That during the course of investigation, the investigating officer recorded the statement of concerned witnesses including the prosecutrix. The investigating officer collected the medical evidence and other evidence. After completion of the entire investigation, a charge sheet was filed against the accused for the offence punishable under Section 376 of the IPC.”

Furthermore, it is then pointed out in para 3.2 that, “That the learned magistrate committed the case to the learned Sessions Court which was numbered as Sessions Trial No. 201/2013. That the learned Sessions Court framed the charge against the accused for the offence under Section 376 of the IPC. The accused denied the charge so framed and claimed trial, and therefore he came to be tried by the learned Sessions Court for the aforesaid offence.”

To be sure, it is then stated in para 3.3 that, “The prosecution in support of its case examined as many as 13 witnesses including the prosecutrix (PW3) as under:

1.  Pritam Soni                   PW1

2.  Manikchand                  PW2

3.  Prosecutrix                    PW3

4.  Patwari Ghanshyam     PW4

5.  Dr. C.K. Singh                 PW5

6.  Dr. K.L. Oraon                PW6

7.  Amritlal                           PW7

8.  Pankaj Soni                     PW8

9.  Dr. P.C. Jain                               PW9

10. Constable Jawaharlal            PW10

11. Sub-Inspector S.P. Singh       PW11

12. Inspector Sheetal Sidar         PW12

13. Srimati Priyanka Soni             PW13

 

Simply put, it is then observed in para 3.4 that, “After the closing pursis were submitted by the prosecution, three witnesses were examined on behalf of the accused in defence. The statement of appellant-accused was recorded under Section 313 of the Cr.P.C. wherein he denied the circumstances appearing against him and pleaded innocence and false implication. As per the accused his marriage was already fixed with one Priyanka Soni and this was in the knowledge of the prosecutrix, even then the prosecutrix and her family members continued to pressurise him to marry the prosecutrix, and then he married with Priyanka Soni on 10.6.2013 in Arya Samaj. Therefore, it was the case on behalf of the accused that a false FIR was lodged against him.”

Needless to say, it is then narrated in para 4 that, “That on appreciation of evidence, the learned Sessions Court observed and held that the prosecutrix gave consent for sexual intercourse on a misrepresentation of fact and the promise by the accused that he would marry the prosecutrix and therefore the said consent cannot be said to be a consent and therefore the accused committed the offence under Section 376 of the IPC. Thereupon, the learned Sessions Court convicted the accused for the offence under Section 376 of the IPC and sentenced him to undergo 10 years rigorous imprisonment.”

Going forward, it is then illustrated in para 5 that, “Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Sessions Court, the accused preferred appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the appeal and has confirmed the judgment and order passed by the learned Sessions Court convicting the accused for the offence under Section 376 of the IPC.”

Be it noted, it is then noted in para 6 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the appeal and confirming the conviction and sentence of the accused for the offence under Section 376 of the IPC, the original accused has preferred the present appeal.”

After hearing the learned counsels appearing on behalf of the respective parties at length, it is then observed in para 9 that, “In the present case, the accused has been convicted for the offence under Section 376 of the IPC. It is the case on behalf of the appellant-accused that as it is a case of consensual sex, the Courts below have committed an error in convicting the accused for the offence under Section 376 of the IPC. Both the Courts below have accepted the case of the prosecution that the consent of the prosecutrix was given on the basis of misconception of fact and, therefore, considering Section 90 of the IPC, such a consent cannot be said to be a consent and, therefore, the accused has committed the rape as defined under Section 375 of the IPC and thereby has committed an offence under Section 376 of the IPC. Therefore, the question which has been posed before this Court is, whether in the facts and circumstances of the case and considering the evidence on record, the Courts below have committed any error in holding the accused guilty for the offence under Section 376 of the IPC?”

What’s more, it is then elucidated in detail in para 13 that, “Applying the law laid down by this Court in the aforesaid decisions, the following facts emerging from the evidence on record are required to be considered:

(i)             That the family of the prosecutrix and the accused were known to each other and, therefore, even the prosecutrix and the accused were known to each other.

(ii)          That though the accused was to marry another girl – Priyanka Soni, the accused continued to talk of marriage with the prosecutrix and continued to give the promise that he will marry the prosecutrix.

(iii)       That on 28.04.2013 the appellant expressed his wish telephonically to meet with the prosecutrix and responding to that the prosecutrix went to the place of the accused on 29.04.2013 by train, where the accused received her at the railway station Sakti and took her to his place of residence in Malkharauda.

(iv)       That during her stay at the house of the accused from 2.00 pm on 29.04.2013, they had physical relation thrice;

(v)          That as per the case of the prosecutrix, the prosecutrix initially refused to have physical relation, but then the appellant allured her with a promise to marry and had physical relation with her;

(vi)       That, thereafter the prosecutrix called the accused number of times asking him about the marriage, howeer, the accused did not reply positively;

(vii)    That thereafter the prosecutrix informed about the incident to her family members on 06.05.2013;

(viii) That the family members of the prosecutrix negotiated with the family members of the accused;

(ix)       That on 23.05.2013, the appellant expressed his willingness to marry the prosecutrix and a social function was scheduled on 30.05.2013, which did not take place;

(x)          That, again the family members of both the parties had talks, in which the marriage was negotiated and a social function was scheduled on 10.06.2013, which was again not held and further, the social event was fixed for 20.06.2013;

(xi)       That on 20.06.2013, the appellant telephonically informed the prosecutrix that he has already married;

(xii)    That, Priyanka Soni PW-13, who is the wife of the accused stated that one year prior to the marriage that took place on 10.06.2013, the negotiators were going on; and

(xiii) That the accused married Priyanka Soni on 10.06.2013 in Arya Samaj, even prior to the social function for the marriage of the accused the prosecutrix was scheduled on 10.06.2013 and even thereafter the social event was fixed for 20.06.2013.”

 

Having said this, the Apex Court then hastened to elegantly add further in para 14 that, “Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B-Pharmacy. Therefore, it is not believable that despite having knowledge that appellant’s marriage is fixed with another lady – Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant-accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.”

To put it succinctly, it is then held in para 15 that, “Now, so far as the submission on behalf of the accused-appellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inception the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.”

It is then held in this same para 15 while condemning the most reprehensible and rapidly multiplying rape crime and without mincing any words that, “As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamount to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him.”

Lastly, it is then held in para 16 that, “In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant-accused under Section 376 of the IPC. We also maintain the conviction of the appellant-accused under Section 376 of the IPC. However, in the facts and circumstances of the case and the request made by the learned counsel appearing on behalf of the appellant-accused, the sentence of 10 years’ RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC. Consequently, the present appeal is partly allowed to the aforesaid modification in the sentence only.”

What should I say of these two Judges – Justice L Nageswara Rao and Justice MR Shah? What should I say about this extremely landmark and laudable judgment delivered by them? I am too small a fry to comment on them. But one thing is for sure: They have left no doubt in sending a loud and clear message to all men that if you dare to indulge in sex with any women by showing a carrot in the form of a false promise to marry, you too then shall be held liable in the same manner just like any other rapist who forcibly rapes woman as you have obtained her consent falsely for which you certainly must face the consequences! They certainly do deserve all the laurels and lavish praise for not hesitating in calling a spade a spade! This will certainly now deter all men from ever indulging in sex with a women after giving false promise of marrying her! Each and every Judge not just in India but all over the world must always adhere and abide by what has been laid down by these two learned Judges in this latest, landmark and laudable judgment so that no men ever thinks that he can get away most easily even after openly cheating a women by first promising to marry her and then having sex with her and still worse then dumping her shamelessly like a commodity from his own life without incurring any kind of liability whatsoever!

 

Sanjeev Sirohi,

SC to hear after 6 weeks plea for reinstatement of woman trial court judge in MP

New Delhi: The Supreme Court Monday granted four weeks to the registrar general of Madhya Pradesh High Court to reply to a plea by a woman judicial officer who is seeking reinstatement after having resigned following an inquiry into her allegations of sexual harassment against a sitting high court judge.

The high court judge was given a clean chit in December 2017 by a Rajya Sabha-appointed panel which probed the allegations.

A bench comprising justices A K Sikri and S Abdul Nazeer said the registrar general as well as the state government would file their responses on the plea within four weeks and the petitioner would file rejoinder within two weeks thereafter.

The bench has listed the matter for hearing after six weeks.

On October 12, the court had issued notices to registrar general of the Madhya Pradesh High Court and state government seeking their response within six weeks.

Earlier, the counsel appearing for the petitioner had said that issue of reinstatement in service needs to be looked into by the top court and the high court’s administrative order of January 11, 2017 should be set aside.

The petitioner has said that her fundamental rights granted under the Constitution for employment, to work and to carry on her profession needs to be secured.

She has sought that the administrative order of January 11, 2017 passed by the Madhya Pradesh High Court, dismissing her application for reinstatement into the Madhya Pradesh Higher Judicial Services, should be set aside.

The petition has said the high court had ignored the categorical finding in the report of the Judges Inquiry Committee dated December 15, 2017 terming the petitioner’s resignation dated July 15, 2014 from her post of Additional District Judge as “unbearable circumstances having no other option”.

It has said that her “resignation was neither voluntary nor conscious but was actuated by her illegal mid-term transfer which was punitive, irregular, unjustified, arbitrary and actuated by bias/mala fides hence amounts to constructive dismissal which merits to be set aside being and the consequential relief of reinstatement with full back wages”.

The plea has said that the Madhya Pradesh High Court had dismissed her application “without assigning any valid reasons for the rejection and in utter disregard of the findings of fact arrived by the Judges Inquiry Committee in its report”.

It added that motion for removal under Article 217 read with Article 124 of the Constitution was instituted against the respondent judge in the Rajya Sabha on allegations of sexual harassment and consequent victimization leveled by the Petitioner.

“After the inquiry proceedings conducted against the Respondent Judge on three charges relating to sexual harassment, consequent victimisation and transfer of the Petitioner, the Judges Inquiry Committee held that the charges were not proved and hence cleared him of all charges,” the petition has said.

It said, however, the Judges Inquiry Committee took note of the arbitrary and sudden transfer of the Petitioner from Gwalior to Sidhi which was done “in complete violation of the transfer policy, not on administrative exigencies and concluded that the transfer of the petitioner was in violation of the transfer Policy – punitive, irregular, unjustified, arbitrary and hurried”.

The woman in her plea added that the judges inquiry committee had opined that “the petitioner be reinstated in service since her resignation was tendered under coercion”.

A motion of impeachment was admitted against the high court judge after 58 members of the Rajya Sabha supported the woman’s case.

The report of the panel comprising Supreme Court judge R Bhanumathi, Justice Manjula Chellur (then Bombay High Court judge) and jurist K K Venugopal (now Attorney General for India) had given a clean chit to the high court judge was tabled before the Rajya Sabha on December 15, 2017.

The panel was set up in April 2015 by then Rajya Sabha chairman Hamid Ansari after admitting a motion supported by 58 members to impeach the judge.

The woman, in her plea, has claimed that she had practised as an advocate in various courts including the Supreme Court, the High Court, Tribunals for 15 years before she qualified in the Madhya Pradesh Higher Judicial Services on March 23, 2011, and thereafter was selected as the 2nd Additional Judge to 1st Additional District and Sessions Judge, Gwalior on August 1, 2011.

She said, after completing her training under the 1st Additional District & Sessions Judge, Gwalior, she was appointed as the VIIIth Additional District and Sessions Judge Gwalior October 1, 2012.

On July 7, 2014, she was transferred to Sidhi from Gwalior which she termed as “illegal”, “unjust” and “punitive transfer” as their was no vacancy in Sidhi nor any administrative exigencies.

SC refuses to entertain fresh plea against Article 370

New Delhi:The Supreme Court Monday refused to entertain a fresh petition on Article 370, which gives special autonomous status to Jammu and Kashmir, and said that the issues raised in it were already part of the pending pleas.

A bench comprising Chief Justice Ranjan Gogoi and Justice Ajay Rastogi asked the petitioner to file an application for impleadment in the pending matters.

During the brief hearing, the bench asked the petitioner as to why he wanted to increase the number of petitions on the issue.

“We have heard the petitioner. The issues raised in the petition are part of the petitions pending,” said the bench.

The petition filed by advocate Vijay Mishra and Sandeep Lamba has sought a declaration that Article 370 of the Constitution had lapsed with the dissolution of constituent assembly of Jammu and Kashmir on January 26, 1957 and it cannot be treated as mandatory for exercise of powers of the President. 

The plea has also sought that the Constitution of Jammu and Kashmir be declared as “arbitrary, unconstitutional and void”, claiming that it was against the supremacy of the Indian Constitution and contrary to the dictum of “One Nation, One Constitution, One National Anthem and One National Flag”.

It has sought declaring as arbitrary some provisions of the Jammu and Kashmir Constitution, which deals with permanent residency and flag of the valley among other issues, for being violative of the Preamble and the Indian Constitution.

The petition has said that continuance of two parallel constitutions, one for the Centre and other for the state of Jammu and Kashmir, “reeks of a weird dichotomy” as most of the provisions of the Indian Constitution has already been extended to the state. 

It has alleged that due to vote bank politics, successive governments did nothing to repeal Article 370 and Constitution of Jammu and Kashmir was adopted much after the Indian Constitution came into force. 

It also added that the instrument of accession of October 26, 1947 does not talk about separate Constitution or constituent assembly for the state.

NOTA cannot be permitted in Rajya Sabha polls: SC

 The Supreme Court today quashed an Election Commission notification introducing the ‘None of the Above’ (NOTA) option in the Rajya Sabha elections, saying it would encourage the “Satan” of defection and graft.

A bench headed by Chief Justice Dipak Misra said the NOTA option was meant only for direct elections and not polls held by the system of proportional representation by means of a single transferable vote.

“When one analyses the exercise of choice of NOTA in the voting process of the Council of States, where open ballot is permissible and secrecy of voting has no room, and further where the discipline of the political party/parties matters, it is clear that such choice will have a negative impact.

“An elector, though a single voter, has a quantified value of his vote and the surplus votes are transferable. There is existence of a formula for determining the value of the vote. The concept of vote being transferable has a different connotation. It further needs to be stated that a candidate, after being elected, becomes a representative of the State and does not represent a particular constituency,” the bench, which also comprised justices A M Khanwilkar and D Y Chandrachud, said.

The apex court said if NOTA was allowed in the election of the members to the Council of States, the aspect of defection would “indirectly usher in with immense vigour”. 

“We may immediately add that the option of NOTA may serve as an elixir in direct elections, but in respect of the election to the Council of States, which is a different one as discussed above, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption,” the bench said. 

The judgement came on a plea of Shailesh Manubhai Parmar, who was the Congress chief whip in the Gujarat assembly during the last Rajya Sabha polls, in which the party had fielded sitting MP Ahmed Patel.

Parmar had challenged the poll panel’s notification allowing the NOTA option in ballot papers. The Gujarat Congress leader had alleged that if the NOTA provision was allowed in the Rajya Sabha polls, it would encourage “horse-trading and corruption”.

The bench today said the provision for introduction of NOTA, as conceived by the Election Commission, was absolutely erroneous. 

“We are disposed to think that the decision could not have also said so, having regard to the constitutional provisions contained in Article 80 and the stipulations provided under the Tenth Schedule to the Constitution. 

“The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the 10th Schedule to the Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection,” it said. 

The top court said that the introduction of NOTA to the election process for electing members of the Council of States will be “an anathema to the democracy” which is a basic feature of the Constitution.

It held that NOTA will destroy the concept of value of a vote and representation and encourage defection, opening the doors for corruption. Such a concept completely ignores the role of an elector in an election and fully destroys the democratic value. 

“It has to be remembered that democracy garners its strength from the citizenry trust which is sustained only on the foundational pillars of purity, integrity, probity and rectitude and such stronghold can be maintained only by ensuring that the process of elections remains unsullied and unpolluted, so that the citadel of democracy stands tall as an impregnable bulwark against unscrupulous forces,” it said.

The poll panel had said NOTA was first introduced in 2014 following an apex court verdict a year earlier and the Congress then did not have any objection in subsequent polls as it suited them.

Two circulars were issued by the Election Commission on January 24, 2014 and November 12, 2015, giving the Rajya Sabha members the option to press the NOTA button in the Upper House polls.

New guidelines on the settlement of non-compoundable offence : SC


At the end of the discussion the Court issued the following guidelines

(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

(II)When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice,

(ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

(VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC.

For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. (VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation.

It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not.

Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.

Uniform Civil Code: The Dormant Law

Prof. Annam Subrahmanyam and Mohan Rao, Bolla

Introduction

The High Court of Kerala in Agnes alias Kunjamol v. Regeena Thomas, has been confronted with a peculiar question of which the law has been dormant. It has, inter alia, reference to a long awaited issue of enactment of Uniform Civil Code. Despite the Constitutional mandate by Part – IV of the supreme law of the land, no state has had courage to make the law on the subject. Long ago, in the Shah Bano Case, the Apex Court has expressed its regrets that Article 44 of the Constitution has remained a dead letter. One decade after Shah Bano Case, in Sarla Mudgal v. Union of India, the Supreme Court of India, has reiterated the need for the Uniform Civil Code for India.

India has been declared more ‘secular’ through the 42nd Constitutional Amendment in 1976. Secular character was considered as one of the basic structures of the Constitution of India by the Kesavananda Bharathi Court. Alas, the plight of women in India has been continuing unabated in the male ‘chauvinistic’ society!

The Peculiar Agnes Case The story of the Agnes case hails from the most literate district of Kerala, viz., Ernakulam. There are several peculiar and interesting issues in this case. Firstly, it pertains to a ‘legal battle between a mother in law and a daughter in law’ in which the mother in law has succeeded in the lower courts. The brief facts of the Agnes case are as follows: The first plaintiff/appellant, Mrs. Agnes, was married to one Sebastian, the youngest son of the defendant. At the time of the marriage, a sum of Rs. One Lakh has allegedly been given to the defendants’ family by the first plaintiff’s family. Sebastian was also allegedly having 75% share in the Prakash Gold Covering business managed by his father. As the father was sick, the business was being run by Sebastian.

 

Another peculiarity of the case was that Sebastian became mentally sick and the sickness aggravated to such a stage that he had caused the death of one of his two children. He was prosecuted under Section 302 IPC but was given the benefit of Section 84 of IPC. He is undergoing treatment in a mental hospital. The other child of the first plaintiff and Sebastian, i.e., Ms. Nayana (minor) is the second plaintiff in the instant case.

 

After the death of the father in law, the business was run by Thomas the elder son of the defendant. The first plaintiff has been living in the ‘Tharawadu’ house (the ancestral residential house in the name of the defendant which is said to have been maintained with the One Lakh rupees brought by the first plaintiff). The defendant has been providing Rs. 1000/- per month and Thomas was giving Rs.2000/- per month for some time to the first plaintiff. Another peculiarity is that the defendants stopped giving the amounts to the Plaintiffs and strangely served eviction notice to the first plaintiff. Thus, the battle between the mother in law and the daughter in law has begun. The daughter in law replied obviously that she would be rendered homeless but the defendant and her family were not willing to provide anything for her and her daughter and were only willing to do something to Sebastian. Apprehending forceful dispossession, the suit was filed by the Plaintiff. The defendant resisted the suit.

 

The daughter in law claims that the amount of Rs. One lakh given by her family at the time of the marriage was utilized for the maintenance of the ‘tharawadu’ (ancestral) house. The house according to her has been orally given to her by the defendant. The defendant being a retired teacher claims that the (‘tharawadu’ house) schedule property was acquired with her own funds. She wants to evict the daughter in law (even without providing anything for her living) and sell the residential house to utilize the sale proceeds for treatment of her son Sebastian.

 

The Trial Court came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit. The Appellate Court too dismissed the appeal. Both the Courts found that “being a Christian there is no ‘tharawadu’ (ancestral) for the family and the first plaintiff has no manner of the right over the suit property.”

 

The Subordinate Status of Women

 

The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role. As housemakers, women’s contribution to the household economy has remained unremunerated and un accounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S. 125 Cr.P.C, some relief to such women. But, such a state of affairs is far from satisfactory. “ The Court lamented that ‘the relief provided under section 125 Cr.P.C., is far from satisfactory.’

 

Justice Bhavadasan has traced the position in Common law and observed that in Common law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out. The Court recalled,’ the Hindu Law has always recognized the independent status of wife. In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives. Both the parties belong to Christianity and the Indian Christian Marriage Act, 1872 does not provide any property rights to the daughter in law.

 

However, the Court held that the principle of ‘ubi jus ibi idem remedium’ applies in this case…,”

Article 44 : The Dead Letter

 

As a matter of regret the Court ruled that Article 44 of our Constitution had remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Court observed that there was no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. The Court expressed its hope that the community is likely to bell the cat by making gratuitous concessions on this issue.

 

The Court further reminded that ‘It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.’

 

The Court realized the difficulties in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecement attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. speaking through Chief Justice Y.V. Chandrachud in Mohd.Ahmed Khan v. Shah Bano Begum held as under:

 

“The High Court expressed wonder as to how long would it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu Law – personal law of the Hindus – – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country…. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacrament origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a common civil code for the whole of India.”

 

Comparing the two provisions viz. Arts.25 and 44 the Court analyzed that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation. …. in Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others it was opined that it was a matter of regret that Art.44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. Accordingly, ‘a common civil code will help the cause of national integration by removing the contradictions based on ideologies.’

 

Relief Granted

 

The evidence was to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforceable right in this regard. The Court finally ruled that certainly, the Plaintiff, ‘has a right to reside in the matrimonial house,’ reminding that her husband has been mentally ill and ‘one can easily understand the plight of the first plaintiff and her daughter.’

 

Accordingly, the appeals were allowed and in the result, the setting aside the judgments of the lower courts, the Hon’ble Court issued an ‘order of permanent prohibitory injunction against the defendant [or any one claiming under her] from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.’

 

The counter claim filed by the respondent/defendant was held dismissed. Further, the plaintiffs were held entitled to their costs throughout.

 

Conclusion

It may be concluded that this judgment of the Kerala High Court through the Justice P.BHAVADASAN would be an eye opener for the parliamentarians to come forward to enact a law in pursuance of Article 44 of the Constitution of India in the interest of rendering famine justice. It is sumitted that we can’t, with a sigh of relief, feel contended with the laudable judgments of the Courts like the one we are discussing about. It may be pointed out that time is ripened and it is for the legislature to enact a law for a Uniform Civil Code. It is analytically clarified in the case and the Court’s historic venture to do justice to an unfortunate Christian woman of whom the law has been silent, was so apt and appreciable.

 

But, the State cannot remain a mere spectator when many a Shah Bano and Agnes suffer due to lack of the statutory aid given in pursuance of Article 44 of the Constitution. By performing its duty, the State would render justice to the needy, deserving and deplorable Chiristian and Muslim (Minority) women. Hope that the parliamentarians exhibit the courage expected by the Supreme Court in Shah Bano and Sarla Mudgal cases by enacting a law in pursuance of Article 44 of the Constitution.