Condition Of Lady Advocates Vulnerable: Lawyer Approaches Supreme Court Seeking CBI Enquiry In Darvesh Yadav Murder Case

To start with, a woman advocate named Ms Indu Kaul who is a regularly practising lady advocate duly entered on the roll of bar Council of Delhi under Advocates Act, 1961  has approached the Supreme Court by filing a Public Interest Litigation (PIL) seeking CBI enquiry in the murder case of Ms Darvesh Yadav who was the newly elected President of UP Bar Council and who was shot dead within just three days of her election right inside court premises! It merits no reiteration that her brutal murder in court premises itself has thrown up very serious questions regarding the security level and this has been taken very seriously even by the Allahabad High Court itself! Chief Justice Govind Mathur of Allahabad High Court has asked all the District Judges of the State to take necessary steps for security of court campuses across the state. The Registrar General of Allahabad High Court in the communication dated June 21 has asked all the District Judges to ensure that adequate security is provided to all the persons related to ‘dispensation of justice’ in the state.

                         Earlier a delegation led by acting Chairman of UP Bar Council Prashant Singh Atal had met the Chief Justice with  regard to murder of advocate and  Chairperson of UP Bar Council – Darvesh Yadav on the Agra court premises. The delegation had demanded security for office-bearers and members of the UP Bar Council and also earnestly requested the Chief Justice to ban entry of persons carrying weapons in court premises across the state. Why ban entry of persons carrying weapons in just UP alone? It should be banned uniformly all across India in all the courts in our country!

                                      It must be mentioned here that in her PIL, advocate Indu Kaul has also sought a direction to the Bar Council of India to formulate a scheme towards the Social Security Measures for lady advocates and also for providing police security to lady advocates in court premises and its amenities beyond court working hours throughout the country. There is a lot of merit in what she has said so eloquently in her petition. The Supreme Court has agreed to hear the matter on June 25.

                                        First and foremost, it is pointed out in the petition that, “The instant petition under Article 32 of the Constitution of India is in the nature of a Public Interest Litigation highlighting the dastardly murder of first chairperson of U.P. Bar Council and lady advocate Ms Darvesh Yadav practicing at Agra District Court on 12.06.2019 by her male colleague Manish Sharma inside the chamber situated in precinct of Agra district court, State of U.P. Late Darvesh Yadav got elected as Chairperson of the Bar Council of Uttar Pradesh on 09.06.2019 and immediately after that she propelled into the world of success being the first lady Chairperson of the state bar council. Prior to this no lady advocate in the country has earned this accolade in any Bar Council in the country. Darvesh was 38 years of age and was single and unmarried. The irony is that the scourge of her dastardly murder was none other than her male colleague Manish Sharma who had been her senior in law college also and thus an old acquaintance. It is claimed by several eyewitnesses to her murder as reported in livelaw.in on 12.06.2019 and the Times of India dated 13.06.2019 and other websites namely Bar and Bench, The First Post etc. that Manish Sharma was heard saying “Tu jeet gayi (You’ve won.)” before he shot her dead thrice minutes after the victory procession was taken out at Agra district court celebrating the victory of Darvesh Yadav’s on her becoming elected as the Chairperson of Uttar Pradesh Bar Council. As reported there had been a fallout between Darvesh and Manish recently and advocate colleagues were surprised to see Manish present at the celebrations. Manish Sharma shot her thrice and then shot himself. Darvesh Yadav succumbed to her injuries on the spot. Manish Sharma was taken to the hospital where he died later. Male insecurity has been a common feature from women placed at a higher position and in many instances this becomes a constant threat for successful women. While reporting this incident it has also been found on social media that this male insecurity might have been the motive for killing Darvesh Yadav as she broke the glass ceiling by intruding and trespassing into the men’s domain.”

                          Furthermore, it is then mentioned that, “It is germane to mention that Bar Council of India respondent no. 3 has made an appeal for Advocate Protection Bill. As reported in livelaw.in dated 12.06.2019 Chairman, Bar Council of India issued a Press Release demanding that a compensation of Rs. 50 lakhs be given to the family of the deceased besides strict security of members of the Bar across country. It is ironical that the Bar Council of India Respondent No. 3 instead of paying a suitable compensation to the deceased from its own Advocate Welfares’ Fund collected from the enrolment advocates’ across the country through respective state bar councils is issuing a Press release. In addition to this Bar Councils from different states and Bar Council of India collect a huge amount of money on the sale of Advocates’ Welfare Stamp affixed mandatorily on every Vakalatnama irrespective of the fact that the case is criminal, jail petition, of women, old and indigent persons and/or PIL.”

                             More importantly, it is then pointed out in the next para that, “This petition raises an important issue that there is no social security provided to the advocates either through bar councils or bar associations. Many a times in case of premature death or fatal illness some bar associations for e.g. Supreme Court Bar Association extends a paltry sum of Rs 50000/- to Rs. 1 lakh for illness and Rs 5 lakhs in case of death and it is not out of context to mention here that on the common appeal for financial assistance by advocates, there has been some occasions when senior advocates/advocates who are well off have made generous contributions/donations. Recently as per the newspapers and bar circulars Delhi Government has promised a sum of Rs. 50 lakhs to the Bar Council of Delhi but as per the information of the petitioner there is no uniform policy of disbursement of the ‘Advocate Welfare Funds’ to ill, indisposed of on death of an advocate. Neither the bar councils nor the bar associations have formulated any policy for providing social security to the advocate members. It will not be out of context to mention here that even after ‘one bar one vote’ advocates do take membership of different associations for availing the bar facilities in the court premises but may opt to cast their vote in a bar of their choice, the paradox is when they suffer illness or injury they are left at the mercy of their own funds. The petitioner by this writ petition vindicates the fundamental rights of ill, indisposed, indigent, old and lady advocates (young and married) as guaranteed under Article 21 of the Indian Constitution to lead a life with dignity in such conditions when they are not in active practice. For instance, the petitioner by way of this Public Interest Litigation raises an issue of national importance as to would there have been any source of sustenance of Darvesh Yadav if luckily she would have survived the attack but became physically indisposed for being able to continue in active practice? An advocate like any other citizen of India has to pay for medical treatment by taking life insurance, medi claim insurance, pension, disability allowance, non-practising allowance for looking after themselves, their old parents, children’s education etc. The present petition thus raises the issue of social security of advocates at large and particularly of lady advocates and protection of lady advocates in court premises, chambers, restrooms, car parking, bar offices and libraries after the court hours.”

                                  What’s more, the sequence of events is then described in chronological order stating that, “The List of Dates is as follows:

09.06.2019 Darvesh Yadav was elected as the Chairperson of Bar Council of U.P.

12.06.2019     The last rites of Ms. Darvesh Yadav were performed in her native village Chandpur, Etah district, UP. State Law Minister Brijesh Pathak also attended the last rites of Darvesh Yadav.

12.06.2019    FIR No. 0390 dated 12.06.2019 has been lodged at P.S New Agra Distt. Agra, Uttar Pradesh by one informant Sunny Yadav, nephew of the deceased. It is reported that the chief minister of Uttar Pradesh gave instructions to the Distt. Authorities for investigation through SSP but no announcement has been made to give ex gratia amount to the deceased advocate.

19.06.2019    The petitioner invokes the extra ordinary jurisdiction of this Hon’ble Court by way of Public Interest Litigation under Article 32 of the Constitution of India praying for protection of lady advocates in the court precincts including her chamber and implementation of social security system by bar councils who have enormous funds in the name of Advocates’ Welfare Funds.”

                     Most importantly, the reasons why relief is sought is very rightly highlighted by the petitioner in para 9 stating, “That the present Writ Petition under Article 32 of the Constitution of India raises important issues pertaining to protection of lady advocates in court premises and also for having a uniform social security measure provided to them for sustaining themselves in case they suffer from any physical disability and premature death. The Petitioner thus invokes the extra ordinary civil writ jurisdiction for the issuance of the writ of mandamus on following amongst other:-

                            REASONS

I.                 BECAUSE the safety in court premises, chamber blocks, bar libraries, bar offices, car parking has no security provision like deployment of police personnels at these places.

II.              BECAUSE for the safety of lady separate rest rooms for ladies at distanced locations in close proximity of chamber blocks need to be constructed.

III.          BECAUSE there are combined chamber blocks for men and lady advocates, lady advocates fall easy prey to misbehaving male advocates including those who do not desist from consuming liquor inside the chambers and under the pretext of liquor loosely conduct themselves at public places like car parking, bar libraries and at times inside the bar offices.

IV.          BECAUSE women by and large are still unsafe in this country post amendments in criminal law and as almost every day one finds reporting about incidents of rape, sexual assault, acid attack etc. The common psyche of men in general and male advocates in particular is a lady advocate working late hours and/or wearing modern dresses is an easy going person and often lewd comments are passed against her.

V.             BECAUSE Lady advocates are found to be contesting elections in many bar associations and bar councils, the brutal murder of Darvesh Yadav in court chamber is a big deterrent for any lady advocate to dare to contest elections.

VI.          BECAUSE such incidents of rape, sexual assault, voyeurism, eve teasing reflects gender disparity even after nearly 100 years of entry of lady advocates who still maintain the rule of ‘sunrise to sunset practice’ as they still do not find it safe to work beyond court hours.

VII.      BECAUSE the women representation in the legal profession is abysmally low despite mushrooming law colleges all over the country as lady advocates still prefer corporate practice and law firms instead of litigations mainly due to lack of infrastructural facilities and security.

VIII.   BECAUSE the young lady advocates who get into marriage and have to stay away from courts periodically when they are on family way, there is no social security measure introduced towards maternity benefits. In case of illness, indisposition, old age and her becoming indigent her situation is even worse for want of non practising allowance.

IX.          BECAUSE there is no retirement age in the profession a lady advocate becomes pitiable in her old age when her practice diminishes due to her health condition and her family still nourishes the impression that being an advocate she must be capable of earning her livelihood. Through social security measures there must be a provision for pension when she opts out of active practice.

X.              BECAUSE wide gender difference is found despite increased women participation due to the professional uncertainties. The requirement of legal professional coupled with societal expectations act as inherent barriers for women. One has to invest at least 12 hours every day to survive in the field. Under these circumstances, a lady lawyer has to slog for long hours in their chambers so without adequate security facilities it is not possible.

XI.          BECAUSE if a lady advocate breaks the stereotype of being meek and that she can break the glass ceiling all circumstances start working against her such as hostility from male colleagues, insecurity in the court premises, lack of social security measures and family expectations. She has to fight it all alone.

XII.       BECAUSE the Bar Council of India instead of paying a suitable compensation to the deceased from its own Advocates Welfares’ Fund collected from the enrolment advocates’ across the country through respective state bar councils is issuing a Press release. In addition to this Bar Councils from different states and Bar Council of India collect a huge amount of money on the sale of Advocates’ Welfare Stamp affixed mandatorily on every Vakalatnama irrespective of the fact that the case is criminal, jail petition, of women, old and indigent persons and/or PIL. Bar Council of India, state bar councils have not formulated any social security measures for the sustenance of the lady advocates in their non-active period in the profession despite having huge savings under ‘Advocates Welfare Funds’ as enrolment fee, verification of licence fee and earnings from welfare stamps.”

                                             All said and done, the petitioner has raised very valid points in her writ petition by which lady advocates can stand to gain immensely if the Supreme Court grants her relief. The petitioner Indu Kaul who herself is a practicing lady advocate has very rightly sought direction to the Bar Council of India to formulate schemes towards the Social Security Measures for lady advocates and most importantly has very rightly sought police security to lady advocates not just in court premises but also beyond court premises in working hours throughout the country. It will be a major breakthrough if the Supreme Court accepts her writ petition and this will not just be her personal victory but it will be the victory of all lady advocates who under present circumstances are working in unfavourable conditions with no security available to them which some times even culminates in their gruesome murder also as we saw just recently in the case of UP Bar Council Chairperson Darvesh Yadav who was murdered right inside court premises shortly after attending the welcome ceremony of being elected as Chairperson! This burning issue directly concerning the security of lady advocates cannot be kept any longer in the cold storage! There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Plaintiff Cannot Be Forced To Add Parties Against Whom He Does Not Want To Fight: Supreme Court

It is worth noting and worth mentioning that in a latest, landmark and laudable judgment titled Gurmit Singh Bhatia Vs Kiran Kant Robinson and others in Civil Appeal Nos. 5522-5523 of 2019 delivered on July 17, 2019, the Supreme Court while exercising its civil appellate jurisdiction has reiterated that, in a suit, the plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. All the courts must always bear this in mind while delivering judgments in such matters. There can be no denying or disputing it!

                                            To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself and Justice DY Chandrachud of Supreme Court wherein it is pointed out that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 3.7.2013 passed in Writ Petition No. 856/2012 and order dated 5.8.2013 passed in Review Petition No. 169/2013 in Writ Petition No. 856/2012 by the High Court of Chhattisgarh at Bilaspur, by which the High Court has allowed the said writ petition preferred by the original plaintiffs and has quashed and set aside the order passed by the learned trial Court allowing the application preferred by the appellant herein for impleading him as a necessary party to the suit filed by respondent nos. 2 and 3 herein – the original plaintiffs, the original applicant – appellant has preferred the present appeals.”

                                       To recapitulate, it is then stated in para 2 that, “The facts of the case leading to these appeals in nutshell are as follows:

          Respondent nos. 2 & 3 herein – the original plaintiffs filed a suit against respondent no. 1 herein – original defendant no. 1 for specific performance of the agreement to sell/contract dated 3.5.2005 executed by respondent no. 1 – original defendant no. 1 in the Court of learned 4th Additional District Judge, Bilaspur. That during the pendency of the aforesaid suit and despite the injunction against respondent no. 1 herein – original defendant no. 1 – original owner not to alienate or transfer the suit property, respondent no. 1 herein – original defendant no. 1 executed a sale deed in favour of the appellant herein vide sale deed dated 10.07.2008. The appellant herein – purchaser who purchased the suit property during the pendency of the suit filed an application in the pending suit under Order 1 Rule 10 of the CPC for impleadment as a defendant in the suit. It was the case on behalf of the appellant herein that he has purchased the suit property and is a necessary and proper party to the suit as he has a direct interest in the suit property. That by an order dated 5.11.2012, the learned trial Court allowed the said application and directed the original plaintiffs to join the appellant as a defendant in the suit.”

                                    Put plainly, it is then pointed out in para 2.1 that, “Feeling aggrieved and dissatisfied with the order passed by the learned trial Court dated 5.11.2012 allowing the application and permitting the appellant herein to be joined as a party defendant in the suit filed by the original plaintiffs – respondent nos. 2 & 3 herein, respondent nos. 2 & 3 herein filed writ petition No. 856/2012 before the High Court of Chhattisgarh. By the impugned judgment and order dated 3.7.2013, the High Court has allowed the said writ petition and has quashed and set aside the order passed by the learned trial Court allowing the impleadment application preferred by the appellant herein by holding that as regards the relief claimed against the original defendants and as no relief has been claimed against the appellant herein, the appellant cannot be said to be a necessary or formal party. That thereafter the appellant preferred a review application which came to be dismissed. Hence, the present appeals by way of special leave petitions.”

                                Be it noted, para 3.1 then discloses that, “Learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that once the learned trial Court allowed the impleadment application submitted by the appellant herein under Order 1 Rule 10 of the CPC holding that the appellant is a necessary and proper party, the High Court, in exercise of powers under Article 227 of the Constitution of India, ought not to have interfered with the same.”

                          Moving on, para 3.2 then further discloses that, “It is vehemently submitted by the learned Senior Advocate appearing on behalf of the appellant that as such the appellant has purchased the suit property from the same vendor and, in fact, the appellant was in prior agreement to sell holder and to protect the interest of the appellant, the appellant is a necessary and proper party. It is submitted that therefore the learned trial Court rightly allowed the impleadment application submitted by the appellant.”

                                          Going forward, it is then further added in para 3.3 that, “Making the above submissions and relying upon the decision of this Court in the case of Robin Ramjibhai Patel v. Anandibai Rama @ Rajaram Pawar, reported in (2018) 15 SCC 614 and the decision of the Bombay High Court in the case of Shri Swastik Developers vs. Saket Kumar Jain, reported in 2014 (2) Mh. L.J. 968, it is prayed to allow the present appeals and quash and set aside the impugned judgments and orders passed by the High Court and restore the order passed by the learned trial Court.”

                                        On the contrary, we then see that para 4 discloses that, “The present appeals are vehemently opposed by Shri M. Shoeb Alam, learned Advocate appearing on behalf of the original plaintiffs. It is vehemently submitted that in fact the appellant purchased the suit property during the pendency of the suit and that too in violation of the injunction granted by the learned trial Court. It is submitted that as such the prior agreement to sell upon which reliance has been placed by the appellant is a concocted and forged one. It is submitted that in any case the appellant cannot be impleaded as a defendant in a suit filed by the original plaintiffs for specific performance of the agreement to sell/contract to which the appellant is not a party. It is submitted that the original plaintiffs are the dominus litis and without their consent nobody can be permitted to be impleaded as defendant.”

                                         While  citing the relevant case law thus adding more ammunition to its submissions, it is then pointed out in para 4.1 that, “It is vehemently submitted that as such the issue involved in the present case is squarely covered against the appellant in view of the decision of this Court in the case of Kasturi v. Iyyamperumal, reported in (2005) 6 SCC 733”.

                                       Furthermore, it is then illustrated in para 4.2 that, “Insofar as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) as well as the decision of the Bombay High Court in the case of Shri Swastik Developers (supra) by the learned Senior Advocate appearing on behalf of the appellant, it is vehemently submitted by Shri M. Shoeb Alam, learned Advocate appearing on behalf of the original plaintiffs that the said decisions shall not be applicable to the facts of the case on hand. It is submitted that in the aforesaid two cases, it was an application by the original plaintiff to implead the subsequent purchaser who purchased the property during the pendency of the suits. It is submitted that as held by this Court in the case of Kasturi (supra), it is for the plaintiff/plaintiffs to implead a particular person/persons as defendant/defendants and if he/they does not/do not join then it will be at the risk of the plaintiff/plaintiffs. It is further submitted that the plaintiff cannot be forced to implead any other person, more particularly who is not a party to the contract, against the wish of the plaintiff. It is submitted that therefore the aforesaid two decisions, upon which reliance has been placed by the learned Senior Advocate appearing on behalf of the appellant, shall not be applicable to the facts of the case on hand. It is submitted that as such the decision of this Court in the case of Kasturi (supra) clinches the issue and shall be squarely applicable to the facts of the case on hand.”

                                              To put things in perspective, it is then ruled in para 5.1 after hearing the learned counsel for the respective parties at length that, “At the outset, it is required to be noted that the original plaintiffs filed the suit against the original owner – vendor – original defendant no. 1 for specific performance of the agreement to sell with respect to suit property dated 3.5.2005. It is an admitted position that so far as agreement to sell dated 3.5.2005 of which the specific performance is sought, the appellant is not a party to the said agreement to sell. It appears that during the pendency of the aforesaid suit and though there was an injunction against the original owner – vendor restraining him from transferring and alienating the suit property, the vendor executed the sale deed in favour of the appellant by sale deed dated 10.7.2008. After a period of approximately four years, the appellant filed an application before the learned trial Court under Order 1 Rule 10 of the CPC for his impleadment as a defendant. The appellant claimed the right on the basis of the said sale deed as well as the agreement to sell dated 31.3.2003 alleged to have been executed by the original vendor. The said application was opposed by the original plaintiffs. The learned trial Court despite the opposition by the original plaintiffs allowed the said application which has been set aside by the High Court by the impugned judgment and order. Thus, it was an application under Order 1 Rule 10 of the CPC by a third party to the agreement to sell between the original plaintiffs and original defendant no. 1 (vendor) and the said application for impleadment is/was opposed by the original plaintiffs. Therefore, the short question which is posed for consideration before this Court is, whether the plaintiffs can be compelled to implead a person in the suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by him?”

                                     As it turned out, it is then envisaged in para 5.2 that, “An identical question came to be considered before this Court in the case of Kasturi (supra) and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell. It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.”

                          More significantly, it is then further added in this same para 5.2 that, “That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law. In the aforesaid decision in the case of Kasturi (supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the parties to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party-defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no. 1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs.”

                                  It cannot be lost on us that it is then envisaged in para 6 that, “Now so far as the reliance placed upon the decision of this Court in the case of Robin Ramjibhai Patel (supra) and the decision of the Bombay High Court in the case of Shri Swastik Developers (supra), relied upon by the learned Senior Advocate for the appellant is concerned, the aforesaid decisions shall not be applicable to the facts of the case on hand as in both the aforesaid cases, it was the plaintiff who submitted an application to implead the third parties/subsequent purchasers who claimed title under the vendor of the plaintiff. Position will be different when the plaintiff submits an application to implead the subsequent purchaser as a party and when the plaintiff opposes such an applicant for impleadment. This is the distinguishing feature in the aforesaid two decisions and in the decision of this Court in the case of Kasturi (supra).”

                         All told, it is then finally held in the last para 7 that, “In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the High Court. No interference of this Court is called for. The appellant cannot be impleaded as a defendant in the suit for specific performance of the contract between the original plaintiffs and original defendant no. 1 against the wish of the plaintiffs. Accordingly, the present appeals stand dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.”

                                   In the ultimate analysis, the Apex Court has made it absolutely clear in this notable case that plaintiff cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law. It has been elaborated upon also in great detail which we have already discussed above. No doubt, all  the courts must always comply with it in all such cases!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Courts Cannot Decide Eligibility And Essential Qualifications For Employment: Supreme Court

At the outset, it would be imperative to mention that in a laudable, landmark and latest judgment delivered on May 3, 2019, the Supreme Court has laid down in no uncertain terms that the courts cannot decide eligibility and essential qualifications for employment. That is certainly also not the job of the Court! In this noteworthy Supreme Court judgment titled The Maharashtra Public Service Commission Through Its Secretary Vs. Sandeep Shriram Warade And Others in Civil Appeal No(s). 4597 of 2019 (arising out of SLP (Civil) No(s). 8494 of 2018) along with other Civil Appeals and authored by Justice Navin Sinha for himself and Justice Arun Mishra has clearly, categorically and convincingly held that, “If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same.”

First and foremost, the ball is set rolling in para 1 wherein it is observed that, “Delay condoned. Leave granted.” Para 2 then brings out that, “The appellants are aggrieved by the orders of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.”

On the one hand, it is pointed out in para 3 that, “Learned counsel for the appellants submitted that academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. The High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.”

On the other hand, para 4 then points out that, “Learned counsel for the respondents submitted that they were Post Graduates (M. Pharma) having more than three years experience in research and development coupled with testing of drugs in a laboratory. They were also eligible to be considered for appointment and were called for selection after scrutiny of their documents by a Committee constituted for the purpose and which recommended them as eligible for consideration. Once they were consciously permitted to participate in the selection process, they could not be declared ineligible for consideration. Reliance was placed on the definition of manufacturing process in Section 3(f) of the Drugs and Cosmetics Act, 1961 (hereinafter called “the Act”). No other grounds were urged by the parties.”

Be it noted, it is then disclosed in para 5 that, “The Maharashtra Administrative Tribunal (hereinafter referred to as “the Tribunal”) in O.A. No. 820 of 2013 held that experience of manufacturing or testing in a research and development laboratory could not be termed as experience for the purposes of the present recruitment. The said experience only entitled the candidate for a preference subject to possessing the basic eligibility and requisite experience in the manufacture and testing of drugs.”

What followed next is disclosed in para 6 which states that, “Reversing the conclusion of the Tribunal, the High Court in W.P. No. 6637 of 2014 and analogous cases held that to deny opportunity to a candidate possessing research experience in synthesis and testing of drugs in a laboratory on the ground that such research experience cannot be linked with manufacturing, would be a perverse interpretation. A candidate having research experience in synthesis and testing of drugs in a laboratory needed to be preferred and could not be denied opportunity by misreading the eligibility conditions. Research work carried out in well reputed laboratories is for the purposes of manufacturing drugs. This order was followed by the High Court in W.P. No. 7960 of 2016 instituted before the High Court directly.”

After hearing the version of both the sides and considering them duly, the Bench then goes on to observe in para 7 that, “We have considered the respective submissions. It is considered prudent to first set out Section 3(f) of the Act and the extract of the advertisements.

“3(f) “manufacture” in relation to any drugs (or cosmetic) includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution but does not include the compounding or dispensing of any drug or the packing of any drop or cosmetic in the ordinary course of retail business and to manufacture shall be construed accordingly.”

Needless to say, it is then stated in para 8 that, “The qualifications in the advertisement dated 04.01.2012 for Assistant Commissioner (Drugs) reads as follows:

“(b) Possess qualification and experience prescribed as under:-

(i)                         Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law, and

(ii)                      Experience gained after acquiring qualification in the manufacture or testing of drugs or enforcement of the provisions of the Act for a minimum period of five years”.”

As things stand, it is then brought out in para 9 that, “The advertisement for Inspectors, reads as follows:-

“Clause 4.5 – Degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in clinical Pharmacology or Microbiology from a University established in India by law; and

Clause 4.6 – Practical experience gained after acquiring qualification above in clause (i) in the manufacture or testing of drugs or enforcement of the provisions of the Act for a period of not less than three years;

Clause 4.7 – Preference may be given to candidates having a post graduate degree in a subject mentioned in clause 4.5 or research experience in the synthesis and testing of drugs”.”

More importantly, the Bench then explicitly and elegantly held in para 10 that, “The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements of a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

To be sure, it is then clarified in para 11 that, “The fact that an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

What’s more, it is then pointed out in para 12 that, “The plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.”

Furthermore, it is then elucidated in para 13 that, “Manufacture has been defined as a process for making, altering, ornamenting, finishing, packing, labeling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale or distribution. Therefore, the experience of testing has to be correlated to the manufacturing process which naturally will be entirely different from the testing carried out in the research and development laboratory before the product is released for manufacture and sale in the market. To say that experience in testing of drugs in a research and development would be at par with the testing done at the time of manufacture before sale cannot be countenanced and has to be rejected.”

It also cannot be lost on us that it is then enunciated in para 14 that, “The preference clause in Clause 4.7 only means that if a candidate with the required degree qualification and practical experience in the manufacturing and testing of drugs for stipulated period of years has an additional desirable attribute of a research experience in a research laboratory, other things being equal, preference could be given to such a candidate. The term “preference” mentioned in the advertisement cannot be interpreted to mean that merely because a candidate may have had the requisite experience of testing in a research and development laboratory he/she possessed the essential eligibility and had a preferential right to be considered for appointment.”

Finally and perhaps most importantly, in the last para 16, it is then held that, “We are therefore unable to uphold the interpretation of the terms of the advertisement as made by the High Court both with regard to the posts of Assistant Commissioner (Drugs) and Drug Inspectors. The impugned orders of the High Court dated 04.05.2017 and 17.07.2017 are set aside. The appeals are allowed. There shall be no order as to costs.”

In conclusion, it can well be said that the Apex Court has made it absolutely clear in this landmark judgment that courts cannot decide eligibility and essential qualifications for employment. This is not their job also! It has thus very rightly imposed self-restrictions on courts itself and made it clear that they are not to be violated! Para 10 of this extremely laudable judgment is most useful to recall in this regard. Very rightly so!

Sanjeev Sirohi,

Supreme Court sets aside merger order of NSEL with 63 moons technologies limited .

Judgment dated 30.04.2019 passed by the Hon. Supreme Court in 63 moons technologies limited (formerly, FTIL) Vs Union of India & Others

Vide a detailed judgment dated 30.04.2019, the Hon’ble Supreme Court of India was pleased to hold that the Order dated 12.02.2016 of forced amalgamation passed by the Central Government, was ultra vires of Section 396 of the Companies Act and violative of Article 14 of the Constitution of India. While allowing the appeals, the impugned Judgment of the Hon’ble Bombay High Court has been set aside by the Hon’ble Supreme Court.

The Order impugned was supported by the Central Government mainly on three grounds as stated and reproduced in Para 59.1 of the Judgment i.e.- a) restoring/ safeguarding public confidence; b) giving effect to business reality of the case by consolidating the business of FTIL and NSEL, and preventing FTIL from distancing itself from NSEL; c) for facilitating NSEL in recovering dues from defaulters by pooling human and financial resources of FTIL and NSEL. It was repeatedly claimed that these three grounds contribute a facet of ‘public interest’ in the context of provisions of Section 396 of the Companies Act.

The Hon’ble Supreme Court held that the first and second ground as mentioned by the High Court, were not even contained in the Draft Order of Amalgamation. Even otherwise, it was held that these grounds were in breach of Section 396(3) and (4) of the Companies Act. (Para 59.2 of the Judgment).

It was further held that so far as the third ground i.e. reason (c) is concerned, that reason by itself was for the purpose of private interest of a group of investors/traders, as distinct from public interest. It was held that-

54. In the context of compulsory amalgamation of two or more companies, the expression “public interest” would mean the welfare of the public or the interest of society as a whole, as contrasted with the “selfish” interest of a group of private individuals….

“59.5… For all these reasons, we find that no reasonable body of persons properly instructed in law could possibly arrive at the conclusion that the impugned order has been made in public interest.”

Further, the Hon’ble Supreme Court held as under:

75…Even otherwise, this is a case where there is complete non-application of mind by the authority assessing compensation to the rights and interests which the shareholders and creditors of FTIL have and which are referred to in Section 396(3) of the Act. This being the case, it is clear that Section 396(3) has not been followed either in letter or in spirit.”

Mr Jignesh Shah, Chairman Emeritus and Mentor, 63 moons technologies, said, “Satyamev Jayate. We have always had full faith in the Indian judiciary and our Hon. courts. Finally, truth has prevailed.”

Mr Venkat Chary, Chairman, 63 moons technologies said, justice has finally prevailed in the reasoned and well-articulated judgment of the Hon. Supreme Court which has upheld the rule of law by laying down the elaborate criterion for what is public interest and due process.

While welcoming the judgment of the Hon. Supreme Court, Mr S Rajendran, MD, 63 moons technologies, said the company has been articulating in the past that the merger will serve no purpose for the stakeholders of either NSEL or FTIL but to benefit only a few people with vested interest. As such, our stand has been fully vindicated.

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,

Supreme Court Designates 37 Lawyers As Senior Advocates

      In a major and significant development, the Supreme Court which is the highest court in India has for the second time designated 37 lawyers as “Senior Advocates”. It goes without saying that it is a big honour for all these 37 lawyers to be designated as “Senior Advocates”. But then they deserve also as they have given their “prime years” in this noble profession of lawyer and that too right in the Apex Court itself and have certainly worked hard relentlessly to achieve it.

So, it goes without saying that they certainly deserve all the “applause and accolades” which they are now getting! We all as citizens of India also ought to know as to who all are these 37 lawyers who have been designated as “Senior Advocates”. They are as follows: –

1.  Madhavi Goradia Divan

2.  R. Balasubramanian

3.  Anitha Shenoy

4.  Aruneshwar Gupta

5.  Jugal Kishore Tikamchand Gilda

6.  Sanjay Parikh

7.  Preetesh Kapur

8.  Ashok Kumar Sharma

9.  Deepak Madhusudan Nargolkar

10.                   Ajit Shankarrao Bhamse

11.                   Nikhil Nayyar

12.                   S. Wasim A. Qadri

13.                   M.G. Ramachandran

14.                   Manish Singhvi

15.                   Gopal Sankaranarayanan

16.                   Mohan Venkatesh Katarki

17.                   Nakul Dewan

18.                   Devadatt Kamat

19.                   Anip Sachthey

20.                   Anupam Lal Das

21.                   G. Venkatesh Rao

22.                   Jayanth Muth Raj

23.                   Arijit Prasad

24.                   Jay Savla

25.                   Aparajita Singh

26.                   Menaka Guruswamy

27.                   Siddhartha Dave

28.                   Siddharth Bhatnagar

29.                   C.N. Sreekumar

30.                   Aishwarya Bhati

31.                   Santosh Paul

32.                   Gaurav Bhatia

33.                   Bharat Sangal

34.                   Vinay Prabhakar Navare

35.                   Manoj Swarup

36.                   Ritin Rai

37.                   Priya Hingorani.

 

Needless to say, this is the second instance of Supreme Court conferring senior designation as per the “Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018”, notified in August 2018. It must be pointed out here that out of these 37 advocates designated as “Senior Advocates”, six are women lawyers who have made a mark for themselves by excelling. They are Aishwarya Bhati, Anitha Shenoy, Madhavi Goradia Divan, Menaka Guruswamy, Priya Hingorani and Aparajita Singh. It would be apt to know in brief about these six women lawyers now designated as “Senior Lawyers”.

To be sure, Madhavi Divan is at present an Additional Solicitor General (ASG) in the Supreme Court. She was appointed ASG on December 17, 2018 and will hold office till June 30, 2020. She obtained her law degree from Pembroke College, Uniersity of Cambridge, UK and began her practice in the Bombay High Court. She has since represented two state governments – that of Gujarat and Madhya Pradesh while also being recognized as an accomplished author. Anitha Shenoy is a 1995 graduate of National Law School of India University, Bangalore and has been the standing counsel for State of Karnataka in the Supreme Court for long.

Furthermore, Menaka Guruswamy is a 1997 graduate of National Law School of India University, Bangalore. She read law as a Rhodes Scholar at Oxford University where she was awarded a Doctor of Philosophy in Law (D. Phil.) and as a Gammon fellow for a Masters in Law at Harvard Law School. She has worked as a human rights consultant to the United Nations and has taught at the New York University School of Law. In the Navtej Johar case which decriminalized homosexuality, she represented IIT students and graduates who belong to the LGBTQIA community. She has also assisted the Supreme Court as amicus curiae in the Manipur Extra-Judicial killings case. She has the rare honour of having her portrait unveiled at Rhodes House in Oxford University. Her name was also included in the Forbes list of 2019 trailblazers which is a great achievement.

Moving on, Aishwarya Bhati is an Advocate-on-Record. In 2017 she was appointed as Additional Advocate General of Uttar Pradesh in Supreme Court. She did not hide her true feelings and termed the “Senior Advocate” designation as a “dream come true” and also acknowledged that she was conscious of the “great responsibility” that comes with the designation.

Going ahead, Priya Hingorani has been in active law practice since 1990 when she was enrolled as an Advocate with the Bar Council of Delhi. Her primary practice has been in the Supreme Court of India and has also appeared in many High Courts. Aparajitha Singh was a junior to “Senior Advocates” Harish Salve and UU Lalit before starting independent practice. She had assisted the Apex Court as amicus curiae to suggest measures for curbing air pollution, which led to the ban of sale of BS III vehicles since April 2017. She was also a part of a Committee which had suggested a common working plan on rehabilitation of destitute widows.

To put things in perspective, it was in September 2018 that the Supreme Court had designated 25 former High Court Judges, who started practice in Supreme Court as senior advocates. It cannot be lost on us that the guidelines are notified pursuant to the Supreme Court judgment in Indira Jaising’s case titled “Ms Indira Jaising v. Supreme Court of India Through Secretary General and others in Writ Petition (C) No. 454 of 2015 which had very clearly prescribed the parameters for designation of advocates as “senior advocates” after senior advocate Ms Indira Jaising who filed the petition pointed out that the present system of designating advocates as “senior advocates” is flawed! This was certainly a major landmark development which shall always be embedded in the golden pages of history and the contribution of Ms. Indira Jaising is certainly historic and remarkable!

What’s more, the guidelines empower a permanent committee called “Committee for Designation of Senior Advocates” to deal with all the matters pertaining to such conferment. This Committee shall comprise of the Chief Justice of India as its Chairperson, along with two seniormost Supreme Court Judges, Attorney General for India and a member of the Bar as nominated by the Chairperson and other members. The Committee is expected to meet at least twice in a calendar year. It will also have a Permanent Secretariat, the composition of which shall be decided by the CJI in consultation with the other members of the Committee.

Be it noted, it would be very significant to now discuss in detail the four point criteria that will play a key role in the assessment of advocates as “Senior Advocates”. Every advocate who aspires to become a “Senior Advocate” must know about this. Even otherwise it would be useful even for those not in this field to know about it so that they understand what it means to be a “Senior Advocate”. The four point criteria for assessment of advocates for senior designation is as follows: –

1.  Number of years of practice of the applicant from the date of enrolment (10 points for 10-20 years of practice, 20 points for practice beyond 20 years) – 20 points

2.  Judgments (reported and unreported), which indicate the legal formulations advanced by the Advocate in the course of proceedings of the case; pro-bono work done by the Advocate; and domain expertise of the Advocate in various branches of law – 40 points

3.  Publications by the Advocate – 15 points

4.  Test of personality and suitability on the basis of interview/interaction – 25 points

Application and eligibility

It would be useful and instructive to mention here that a recommendation in writing can be submitted by the Chief Justice of India or any other Judge of the Supreme Court of India if they are of the opinion that an advocate deserves to be conferred with the designation. An Advocate on Record (AoR) who is seeking to be conferred with the unique distinction as “Senior Advocate” may also submit an application in the prescribed format to the Secretariat. The Secretariat will invite applications from retired Chief Justices or Judges of the High Court and advocates seeking conferment of the distinction every year in the months of January and July. The notice shall be published on the official Supreme Court website, and the information would also be provided to the Supreme Court Bar Association and also to the Supreme Court Advocates-on-Record Association.

As far as eligibility is concerned, it has to be borne in mind that an Advocate shall be eligible for designation as “Senior Advocate” only if he has 10 years combined standing as an advocate or a District Judge, or as a Judicial Member of any Tribunal whose qualification for eligibility isn’t less than that prescribed for a District Judge. It must also be remembered that retired Chief Justices or Judges of the High Courts are also eligible for the distinction of being designated a “Senior Advocate”.

Procedure for designation

It must be reiterated that all the applications and written proposals are to be submitted to the Secretariat which will then compile data on the applicant’s reputation, conduct and integrity, including his participation in pro bono work and the number of judgments in which the advocate appeared during the past five years. The application or the proposal would then be published on the Supreme Court website. The whole point of this exercise would be to invite the suggestions and views of other stakeholders. After the data-base on the Advocate is complied, the Advocate’s case would be put before the Committee for further scrutiny, which will assess the candidates on the basis of four-point criteria which has already been discussed above in great detail.

Simply put, post such overall assessment, the Advocates candidature would then be submitted to the Full Court, which would then vote on the same. It must be noted here that the guidelines however leave no room for doubt by clarifying in no uncertain terms that the cases of retired Chief Justices and Judges of the High Courts will straightaway be sent to the Full Court for its consideration. The Rules also further specify that voting by secret ballot will not normally be resorted to in the Full Court except when “unavoidable”.

While continuing in the same vein, it is then added that the guidelines however do clarify that cases which are rejected by the Full Court can be considered afresh after two years and cases which are deferred can be considered after one year from such deferment. The Rules clarify that if a Senior Advocate is found guilty of conduct, which according to the Full Court disentitles the Senior Advocate to continue to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same. The Full Court should, however, give an opportunity of hearing to the concerned Senior Advocate before any action is taken against them.

Let me say this point blank: Each and every person who is in legal field must know how advocates are designated as “Senior Advocates” in Supreme Court. Not stopping here, it has to be said that even those who are not in legal profession must also know what it takes to become “Senior Advocates”. A humble effort has been made in this direction by me to make my esteemed readers more aware on this front. Hope that they have found it useful!

Sanjeev Sirohi,

All Tribunals Should Be Brought Under One Nodal Agency To Ensure Efficient Functioning” : Supreme Court

“While there cannot be a doubt that to streamline the task of their efficient functioning, the tribunals should be under a nodal agency, as observed in L. Chandra Kumar, we would like the government of India to let the court have the benefit of its views on affidavit by the competent authority”,states the Order

In his turn, Attorney General K. K. Venugopal made submissions on the concerns regarding vacancies in tribunals, and the setting up of a nodal agency to regulate the functioning of the tribunals. In respect of the former, he produced for the constitution bench’s perusal a compilation indicating the vacancies across the various tribunals, the qualifications and experience for the posts, the concerned Ministry/department and the status of the selection process as on March 6.

In the context of the Judicial Members of the CESTAT, the AG pointed out that though the Cabinet Committee on Appointments had approved recommendations for all 6 vacancies in January 2018, two did not join, refusing to accept certain service conditions. Hence, their appointment was cancelled.

For the Debt Recovery Tribunals, the AG advanced that some applications are pending with the Supreme Court, which, on clarification from the Registrar, were revealed to be government proposals for the DRT and the DRAT received by the apex court very recently.

Taking note of this compilation showing the present vacancy position in the tribunals, the bench wished to resolve this issue first. Noting that the CAT, the Intellectual Property Appellate Board, the Armed Forces Tribunal and the ITAT require immediate attention, the court directed that every endeavour be made by the nominee of the Chief Justice to the Selection Committee to expedite the same. Further, in respect of the NCLT and the NCLAT, it required the appointments to be effected within 2 weeks on the basis of the recommendations made.

The bench hinted that after 2 weeks, once the needful is done, it may consider passing further orders in the nature of remitting the matter *to a smaller bench for the purpose of regular monitoring of the due functioning of the tribunals. “We don’t want to get bogged down by what is right and what is wrong. We want our tribunals to function”, stated the Chief Justice. “The government is working very hard despite the elections. Appointments are being made”, he added to the AG on a humorous note. In respect of the nodal agency, recommended to be the Law Ministry by the 1997 authority of L. Chandra Kumar, the AG relied on an affidavit of 2013 where the Union of India has averred the lack of necessity as well as feasibility for having a central agency, citing difficulties like the specialised requirements of the different ministries/departments and the amendment of the Rules of Allocation of Business.

“So far as the Ministry of Law is concerned, it is heavily overloaded. It is Finding it difficult to take over this responsibility. They already have to handle appointments to the higher judiciary. Besides, there are the litigations- thousands of case. I know from experience that For them to undertake 36 Tribunals and to look after all needs as to infrastructure and manpower would not be possible…I have suggested that there should be a National Tribunal Commission for the infrastructure and staff and to control these tribunals on a specialised basis”, submitted the AG.

“While there cannot be a doubt that to streamline the task of their efficient functioning, the tribunals should be under a nodal agency, as observed in L. Chandra Kumar, we would like the government of India to let the court have the benefit of its views on affidavit by the competent authority”, ordered the bench on Wednesday.

The court also reflected, “This reference to the larger bench is with regarded to the implementation of directions that inter alia are to the effect that the tribunals functioning in the country must be under one nodal agency, which this court saw to be the Law Ministry. L. Chandra Kumar is clear and categorical in this regard. Tentatively, we are of the view that the said directions should have implemented by the government of India long back”

*As the hearing approached the challenge to the introduction of the Finance Act, 2017 as a Money Bill, the Chief Justice put his foot down as to the tendency of several lawyers to argue at length for days in the same matter- “20 sets of arguments for 20 days? This is the reason why we are not making any progress. This anarchy in the Supreme Court must stop! There may be 20 cases but we will hear only one argument. You decide among yourselves who will argue. There will be one argument of challenge to the Finance Act. For piecemeal challenges to this Act or that Act, the argument would be the same” “Kudrat Sandhu (the title of the petition attacking the constitutionality of the passage of the Act of 2017 as a Money Bill) does not deserve to be heard right now in the chronological roder.

It just came to be tagged with Madras Bar Association. This is an out-of-turn hearing…the Land Acquisition Act matter is listed before us. It is one because of which thousands of cases remain held up. Similarly, there are other cases holding up thousands of litigations. They are all Small, small issues which will take half a day. We can take those first”, asserted the judge. “We are making it very clear that there will be only one argument.

It can be supplemented by supplying additional facts as to other statutes. But if we have to hear one argument for how each Act is not a money bill, then we will hear the other urgent matters first…”, reiterated Chief Justice Gogoi. Commencing the argument against the Finance Act, Senior Advocate Arvind Datar put forth, “The Finance Act was introduced under Article 109. The lower house had questioned several of its provisions including Part XIV. Up till Part XIV, there is no flaw in the Act. All are fiscal provisions. The difficulty comes where they amend all provisions regarding tribunals.

The Lok Sabha Speaker said these are incidental to the Money Bill provisions. The passage of the Act as such is derogatory, inappropriate and a fraud on the Constitution” He also discussed the Excessive delegation under section 184 of the Finance Act in as much as it empowers the Central government to frame rules for the appointment, removal, qualifications and other terms of service of the Chairperson and Members of the various quasi-judicial bodies- “The individual eligibility criteria go against the R. Gandhi judgment. The number of judicial members is to be more than the administrative members, But now in tribunal after tribunal the former are a minority. The Central government gets the power of removal and, except in the NCLAT, there is no need for the consent of the Chief Justice” The arguments shall resume on Thursday.

 

Remand Order Cannot Be Challenged In Habeas Corpus Petition: Supreme Court

The Supreme Court has observed that the act of directing remand of an accused is a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition. While allowing the appeal filed by Serious Fraud Investigation Office against the Delhi High Court order in a habeas corpus petition, the bench comprising Justice AM Sapre and Justice UU Lalit held that the compliance of sub-section (3) of Section 212 of the Companies Act, in relation to the submission of the report, is essentially directory.

Rahul Modi and Mukesh Modi had approached the High Court contending that, with the expiry of period within which the investigation had to be completed in terms of order dated 20.06.2018, all further proceedings including the arrest of the respondents were illegal and without any authority of law.

One of the questions considered by the High Court was whether it can in a proceeding for habeas corpus under Article 226 of the Constitution of India, test the correctness, legality and validity of an order of remand, passed by a Competent Magistrate. In its order, granting bail to the accused, it said that it could not justify the continued illegal detention; merely on account of the circumstance that the concerned Magistrate has rendered remand orders .

In appeal, the Supreme Court bench noted that the date when the matter was considered by the High Court and the Order was passed by it, not only were there orders of remand passed by the Judicial Magistrate as well as the Special Court, Gurugram but there was also an order of extension passed by the Central Government on 14.12.2018. The court said:

“The legality, validity and correctness of the order or remand could have been challenged by the original Writ Petitioners by filing appropriate proceedings. However, they did not raise such challenge before the competent Appellate or Revisional Forum. The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the matter and whether continued detention of the accused was justified or not. After going into the relevant issues on merits, the accused were remanded to further police custody. These orders were not put in challenge before the High Court.”

Disagreeing with the High Court entertaining the Habeas corpus plea, the bench said:

“It is true that the arrest was effected when the period had expired but by the time the High Court entertained the petition, there was as order of extension passed by the Central Government on 14.12.2018. Additionally, there were judicial orders passed by the Judicial Magistrate as well as the Special Court, Gurugram, remanding the accused to custody. If we go purely by the law laid down by this Court with regard to exercise of jurisdiction in respect of Habeas Corpus petition, the High Court was not justified in entertaining the petition and passing the Order.”

 

Supreme Court Reiterates Basic Principles Of Judicial Review Of Administrative Decisions

“Judicial review under Article 226 is directed, not against the decision, but the decision making process.” The Supreme Court, in a judgment delivered on Thursday, reiterated some basic principles of judicial review of administrative decisions. The bench comprising Justice R. Banumathi and Justice Indira Banerjee were considering an appeal (Sarvepalli Ramaiah vs. The District Collector, Chittoor District) against an order of High court of Andhra Pradesh declining to interfere with the order of the District Collector in refusing to grant ryotwari patta in favour of the appellants. The Apex court upheld the High Court finding that, since the land is classified as “Peddacheruvu Tank” vested with the government and thus there could not be issuance of ryotwari patta in view of the bar contained in Section 2-A of the Andhra Pradesh Inams (Abolition & Conversion into Ryotwari) Act, 1956.
Justice Indira Banerjee, in her concurring opinion also added that no patta can be granted in respect of tanks and water bodies including those that might have dried up or fallen into disuse. Referring to some judgments, the judge added: “This Court has time and again emphasized the need to retain and restore water bodies and held that water bodies are inalienable. Land comprised in water bodies cannot be alienated to any person even if it is dry.”

Justice Banerjee, also delineated some fundamental principles of Judicial review of administrative decisions. Administrative decisions are subject to judicial review under Article 226 of the Constitution, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity.

Except on these grounds administrative decisions are not interfered with, in exercise of the extra ordinary power of judicial review A decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the materials on record. A decision may sometimes be set aside and quashed under Article 226 on the ground of illegality.

This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise. Judicial review under Article 226 is directed, not against the decision, but the decision making process.

Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact.

Mere Inability To Repay Loan Does Not Constitute Cheating: SC

    It has to be acknowledged, appreciated and applauded right at the outset that in a landmark and laudable judgment titled Satishchandra Ratanlal Shah v State of Gujarat and another in Criminal Appeal No. 9 of 2019 [arising out of SLP (Cri) No. 5223 of 2018] delivered on January 3, 2019 held explicitly that inability of a person to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. There can be no denying or disputing it! This noteworthy and commendable judgment authored by Justice NV Ramana for himself and Justice Mohan M Shantanagoudar of the Apex Court were dealing with an appeal against a High Court order refusing to quash summons issued to the accused in a cheating case.

                           As we see, it is first and foremost pointed out in para 1 that, “Leave granted”. It is then pointed out in para 2 that, “The present appeal is preferred against the impugned judgment, dated 12.04.2018, passed by the High Court of Gujarat, in Criminal Miscellaneous Application No. 4033 of 2012, wherein the High Court has dismissed appellant’s application seeking quashing of the order framing the charges dated 04.12.2013 by the Additional Chief Metropolitan Magistrate in Criminal Case No. 388 of 2012.”

Be it noted, para 3 then stipulates that, “It is pertinent to note the facts giving rise to the appeal in a detailed manner. The respondent no. 2- complainant is the director of a money lending company by the name of Dharshan Fiscal Pvt. Ltd. The appellant, who is a retired bank employee, approached the complainant’s company in the month of January 2008 for a loan of Rs. 27,00,000/-. Accordingly, the respondent no. 2 transferred the funds as a loan, which was to be repaid by the appellant within a year with interest. Thereafter, the appellant has not repaid the amount back to the respondent no. 2. Further, respondent no. 2 alleged that when he approached the appellant, he was threatened by the appellant with dire consequences. Thereafter, the respondent no. 2 filed a complaint based on which the FIR bearing I/C.R. No. 22/2012, dated 25.01.2012, was filed before the Kagdapith Police Station, Ahmedabad, against the present appellant under Section 406, 409, 417, 420, 294(b) and 506(2) of IPC. On 23.02.2012, the appellant was enlarged on bail by the High Court after being arrested on 29.01.2012. The appellant preferred an application under Section 482 of the Cr.P.C. for the quashing of the FIR bearing I/C.R. No. 22/2012.”

As it turned out, it is then envisaged in para 4 that, “The charge sheet No. 28 of 2012 dated 01.03.2012, came to be filed against the appellant under Sections 406, 420 and 417 of IPC. Pursuant to the same, the Magistrate issued summons. The appellant alleged that on 04.12.2013, he was given a copy of the said charge sheet and that the charges were framed by the Metropolitan Magistrate on the same day in a blank sheet without giving him an opportunity of being heard, as the appellant was unaccompanied by any counsel. The appellant alleges that the same was in violation of Section 239 of the Criminal Procedure Code.”

To put things in perspective, we then see that it is stated in para 5 that, “In light of the aforesaid developments, the appellant filed an application seeking amendment of the prayer in Criminal Miscellaneous Application no. 4033 of 2012 wherein he sought for the inclusion of prayer seeking to quash and set aside the charge sheet no. 28/2012 in FIR No. I/C.R. No. 22/2012 and the charges framed by the Metropolitan Magistrate vide order dated 04.12.2013 and all further proceeding carried out in Criminal Case no. 388/2012 pending before the Additional Metropolitan Magistrate.”

It cannot be lost on us that it is then observed in para 6 that, “It is pertinent to note that, simultaneously respondent no. 2 had preferred a summary suit in Summary Civil Suit no. 928/2011 seeking the recovery of Rs. 33,46,225/- which was inclusive of the interest upon the principal amount. The same was admitted on 25.04.2011 and is still pending before the City Civil Judge, Ahmedabad.”

Going forward, we then see that para 7 stipulates that, “Vide order dated 12.04.2018, the High Court dismissed the quashing petition preferred by the appellant and directed the trial court to complete the trial within three months. The High Court further went on to observe that, prima facie an offence of cheating under Section 420 is made out but charge under Section 406 pertaining to criminal breach of trust is not applicable in the given factual scenario. However, the High Court did not remove the charges under Section 406 and observed that no case has been made out to get the charges quashed. Aggrieved by the aforesaid dismissal, the appellant has preferred the present Special Leave Petition.”

Needless to say, para 8 while elaborating on what counsel on behalf of appellant urged spells out that, “The counsel on behalf of the appellant has urged that a perusal of the complaint would reveal that the allegations as contained in the complaint are civil in nature and the requisite averments so as to make out a case of cheating are absent. Hence, prima facie does not disclose the commission of the alleged offence. Moreover, it is pertinent to note that after filing Summary Suit No. 928 of 2011 on 21.04.2011, the complainant has filed the written complaint dated 05.01.2012 and has attempted to give the cloak of a criminal offence to the present case which is purely civil in nature, just to harass the appellant. Lastly, the criminal complaint filed by the respondent no. 2 is initiated after a lapse of more than three years from the date of offence i.e. 21.03.2008.”

Interestingly enough, we then see how para 9 brings out that, “On the contrary, the counsel on behalf of respondent no. 2, while supporting the judgment of the High Court has stated that the appellant had fraudulent intention from the beginning having induced the respondent no. 2 to lend the aforesaid amount of Rs. 27 lacs. Further, the appellant never had the intention to repay the loan even though multiple requests were made to him. The counsel pressed that whether the intention was to cheat from the inception or not is a question of fact and the same can only be decided by trial after appreciating the entire evidence.”

More importantly, the Bench then goes on to rightly point out in para 10 that, “Before we analyse the case, it is to be noted that the criminal application preferred by the accused before the High Court was against the order of the Trial Court at the stage of framing of charges, wherein it is the duty of the court to apply its judicial mind to the material placed before it and comes to a clear conclusion that a prima facie case has been made out against the accused. An order for framing of charges is of serious concern to the accused as it affects his liberty substantially. Courts must therefore be cautious that their decision at this stage causes no irreparable harm to the accused.”

What’s more, the Bench then goes on to add in para 11 that, “Coming to the aspect of quashing of the charges, it is well settled that such exercise needs to be undertaken by the High Court in exceptional cases. It is also well settled that the framing of charges being initial stages in the trial process, the court therein cannot base the decision of quashing the charge on the basis of the quality or quantity of evidence rather the enquiry must be limited to a prima facie examination. [refer to State of Bihar vs. Ramesh Singh, 1977 CriLJ 1606].”

More pertinently, it is then further added in para 12 that, “Having observed the background principles applicable herein, we need to consider the individual charges against the appellant. Turning to Section 405 read with 406 of IPC, we observe that the dispute arises out of a loan transaction between the parties. It falls from the record that the respondent no. 2 knew the appellant and the attendant circumstances before lending the loan. Further it is an admitted fact that in order to recover the aforesaid amount, the respondent no. 2 had instituted a summary civil suit which is still pending adjudication. The law clearly recognizes a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment.”

Continuing in the same vein, it is then added in para 13 while lamenting and acknowledging that, “In this context, we may note that there is nothing either in the complaint or in any material before us, pointing to the fact that any property was entrusted to the appellant at all which he dishonestly converted for his own use so as to satisfy the ingredients of Section 405 punishable under Section 406 of IPC. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error.”

Having said this, it is then stated in para 14 that, “Now coming to the charge under Section 415 punishable under Section 420 of IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168). In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached the respondent no. 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, the respondent no. 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred.”

Not stopping here, the Bench then proceeding ahead notes in para 15 that, “Moreover, this Court in a number of cases has usually cautioned against criminalizing civil disputes, such as breach of contractual obligations [refer to Gian Singh v. State of Punjab, (2012) 10 SCC 303]. The legislature intended to criminalize only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements, which resulted in involuntary and in-efficient transfers under Section 415 of IPC.”

While giving a rap on the knuckles to the High Court, the Apex Court Bench then minces no words in clearly and categorically holding in para 16 that, “However, the High Court appears to have been carried away by the moral element involved in the breach of promise and made certain observations. Being a policy consideration, such suggestion need to be restricted. The aforementioned observations of the High Court were not only unnecessary for the adjudication of this matter, but the same could have been understood as casting some kind of aspersions on the accused. This clearly reflected a loaded dice situation against the appellant herein.”

Furthermore, it is then held in para 17 that, “In our considered opinion, the High Court should have maintained judicial restraint and desisted from making such general observations at this stage of the criminal proceeding, as they may had a bearing on the adjudication of the trial. Therefore, the observations made in paragraphs 42 and 43 of the impugned judgment stand expunged.”

In addition to what has been stated above, the Bench then underscored in para 18 that, “In view of the above, we are unable to uphold the impugned order passed by the High Court in Criminal Miscellaneous Application No. 4033 of 2012 and the same is hereby set aside. The application filed by the appellant under Section 482 of Cr.P.C. is allowed and the proceedings initiated based on the FIR instituted at the instance of respondent no. 2 are hereby quashed.” Lastly, it is then stated in para 19 that, “The appeal is allowed in the aforesaid terms.”

In essence, the Apex Court Bench very clearly and convincingly lays down in simple and plain language that, “Mere inability to repay loan does not constitute cheating”. There has to be a fraudulent or dishonest intention that must be shown right at the beginning of the transaction as it is this mens rea which is the crux of the offence. Only then can it give rise to a case for a criminal prosecution for cheating!

This is exactly what Justice NV Ramana and Justice Mohan M Shantanagoudar of the Apex Court have laid down rightly in this noteworthy and commendable judgment! It must be always borne in mind by all judges of all courts right from top to bottom before delivering any judgment in a case like this!

Sanjeev Sirohi