Creation Of More HC Benches In UP

It is most shocking, most disgusting and most disheartening to read that once again criminals are ruling the roost and making the headlines in UP. The latest incident pertains to kidnapping cum murder of a 28 year-old technician named Sanjeet Yadav who worked in a private lab. What is worse is that criminals even took 30 lakh rupees from the deceased Sanjeet Yadav’s family as the family allege after cops told them to do so and still they murdered him most mercilessly! Prior to this we saw how a journalist Vikram Joshi was brutally killed right in front of his two daughters in Ghaziabad’s Vijay Nagar! In Meerut a mother and a daughter are brutally killed! There is no fear of law in West UP among criminals still there is not a single high court bench here!

Just appointing panel or committee to probe into the crime as we saw in case of dreaded gangster Vikas Dubey headed by a former Supreme Court who along with his men killed 8 policemen and wounded several others and who was roaming free inspite of being a history sheeter with more than 60 criminal cases pending against him is a mere superficial exercise which won’t address the root of the problem! Why panel or probe only when criminals are killed? Why not when a journalist or sadhu as we saw in Palghar where two sadhus were mercilessly tortured and beaten to death or when a common man is killed?

It is not for nothing that the former UN Secretary General Ban ki moon had termed UP as the “rape and crime capital of India! It is not for nothing or not for fun that the incumbent UP CM Yogi Adityanath had himself demanded High Court Bench at Gorakhpur way back in 1999 while he was MP from there! It is not for nothing that many UP CMs like Sampoornanand, ND Tiwari, Rajnath Singh and others have earlier recommended the creation of a high court bench in West UP! It is not for nothing that former UP CM Mayawati had recommended UP to be partitioned and also recommended a high court bench for West UP!

It is not OK that when Sampoornanand who was UP CM recommended creation of a high court bench in West UP at Meerut, the then PM Jawaharlal Nehru overruled him as he felt only Lucknow was ideal place where bench was created on July 1, 1948 by him even though it was so close to Allahabad where high court is located! It is not OK that when Justice Jaswant Singh Commission headed by former Supreme Court Judge Jaswant Singh was appointed by former PM late Mrs Indira Gandhi to look into where all high court benches are needed in late 1970s and when he recommended 3 benches for UP at Agra, Nainital and Dehradun, not a single bench was created even though benches were created at Aurangabad in Maharashtra which already had two benches, at Madurai in Tamil Nadu and at Jalpaiguri in West Bengal! It is not OK that once again in 2018 Centre decided to create one more high court bench in Maharashtra for just 6 districts at Kolhapur but not a single for West UP or even the whole of UP! Why is UP repeatedly slapped on its face and not a single more bench approved especially when lawyers of West UP have been repeatedly agitating for the same since last more than 6 decades?

It is not OK that when lawyers of West UP went on strike for 6 months from July to December in 2001, Centre did not take any step to address their demand for a high court bench in West UP inspite of assuring them! It is not OK that when lawyers of West UP again went on strike later, Centre assured them that their grievances would be looked into but suddenly came forward with ridiculous decision to create 2 more high court benches for Karnataka at Gulbarga and Dharwad for just 4 and 8 districts and which already had a bench at Hubli but not a single for the 26 districts of West UP! It is not OK that when lawyers of West UP went on strike for 3 to 4 months in 2014-15, the Centre assures them that their demand would be looked into but yet again nothing is done! It is not OK that the lawyers of West UP have boycotted work many times in last 50 years sometimes for 2 days in a week – Wednesday and Saturday yet not a single bench set up here!

It is no ordinary matter that the lawyers of West UP have been on strike uninterruptedly every Saturday since May 1981 till now which means for more than 39 years against denying West UP even a single bench of high court! It is no ordinary matter that Justice Jaswant Singh Commission had disclosed that 57% of pending cases are from West UP and still it has not even a single bench of high court! It is no ordinary matter that the more than 9 crore people of West UP have to perforce travel more than 700 km on an average all the way to Allahabad to get justice as the elected representatives have only made tall promises but never cared to implement it!

It is a national disgrace that UP which has maximum pending cases in India among all the states which is more than 10 states put together has just one high court bench and that too just 200 km away from Allahabad where high court itself is located at Lucknow and nowhere else! It is a national disgrace that UP which is among the largest States, has maximum population – more than 23 crore, maximum districts – 75, maximum constituencies, maximum MPs – 80, maximum MLAs – 404, maximum PM including Narendra Modi who represents Varanasi as an MP, maximum pending cases – more than 10 lakh and here too West UP accounts for more than half of pending cases as noted by Justice Jaswant Commission about 57%, maximum Judges both in High Court – 160 and also in lower courts, maximum vacancies of Judges, maximum members in UP Bar Council and which is the largest Bar Council in the world yet the former Chairman of UP Bar Council – Darvesh Yadav who was first woman to get appointed to this post was murdered right in court premises in Agra, maximum poverty, maximum villages more than one lakh, maximum fake encounters killings, maximum custody killings, maximum dowry cases, maximum bride burning cases, maximum cases of human rights violations, maximum robberies, maximum dacoities, maximum undertrials, maximum cases of crime, loot, arson and riots and here too West UP tops with Saharanpur riots, Meerut riots, Muzaffarnagar riots tarnishing our international reputation to the extent that former UN Secretary General Ban ki Moon termed UP as “crime and rape capital” of India and what not yet Centre till now from 1948 when a bench was created in Lucknow which is so close to Allahabad is not prepared to create even a single bench for not just West UP but for entire UP? It is a national disgrace that UP sends maximum MPs to Lok Sabha – 80, maximum MPs to Rajya Sabha – 30, maximum MLAs to State Assembly – 404 MLAs and maximum members to State Legislative Council – 100 MLAs and what not yet has least benches just one? It is a national disgrace that inspite of former PM Atal Bihari Vajpayee having vociferously raised the demand for a high court bench in West UP in 1986 right inside Parliament still 34 years later not a singler bench created not just in West UP but in any hook and corner of UP except Lucknow created by Nehru in 1948!

How long will Centre ignore that only Karnataka and Maharashtra have gained from the recommendations of 230^th Law Commission recommendations when 2 more benches were created at Dharwad and Gulbarga for just 4 and 8 districts even though the pending cases of Karnataka are just less than 2 lakh and that of UP are more than 10 lakhs and that of West UP alone are more than 5 lakhs still West UP has no bench and UP has just one bench? How long will Centre ignore that Karnataka has just 6 crore population and still it has high court at Bangalore and 3 high court benches at Hubli, Dharwad and Gulbarga but West UP has population of more than 9 crores still it has not even a single bench leave alone having high court? How long will Centre ignore that the High Courts and Benches of 8 states are nearer to West UP as compared to Allahabad High Court and even Lahore High Court in Pakistan is nearer to West UP than Allahabad? How long will Centre ignore that Allahabad High Court is the biggest court in whole of Asia with maximum Judges and also among the oldest courts which completed its 150 years on March 17, 2016 yet has just one bench only?

It is most shameful and most disgraceful that Allahabad High Court has the dubious distinction of accounting for 14,207, or 98% of a total of 14,484 appeals that are pending adjudication for more than 30 years as was noted by a Bench of Apex Court comprising of Justices LN Rao and S Ravindra Bhat and yet no Prime Minister starting from Jawaharlal Nehru to present Narendra Modi has ever dared to create one more Bench apart from the one at Lucknow! What a pity that an anguished Supreme Court said that, “These facts pose a challenge to the judicial system, inasmuch as the right to speedy trial would also include the right to speedy disposal of appeals of those convicted. If such appeals are not taken up for hearing within a reasonable time, the right of appeal itself would be illusory, inasmuch as incarcerated convicts (who are denied bail) would have undergone a major part, if not whole of the period, of their sentences!”

To be sure, Justices Rao and Bhat also noted that over 33,000 appeals were pending in these 10 High Courts for a period between 20 to 30 years, and again Allahabad High Court had the lion’s share accounting for nearly 20,000 of them. The appeals waiting their turn to be heard for the last 10 to 20 years numbered at 2,35,914 of which 88,732 were in Allahabad High Court! Why should all such steps not be taken to put our judicial system back on rails and not allow it to be in ventilator as most unfortunately we have allowed in last 74 years! Why can’t more high court benches be created in UP so that cases are expedited in different benches as was recommended by the 230th report of Law Commission of India as UP has maximum pending cases in India but which till now has been implemented only in Karnataka and Maharashtra which is most shocking?

Why when former CJI Ranjan Gogoi while deciding on a PIL brought by a woman lawyer KL Chitra for a high court bench in West UP fully appreciated the reasons for setting up a high court bench in West UP but added that it is for Centre to take a decision and yet even after 74 years of independence if Centre fails to act not just for West UP but for whole of UP should Supreme Court not take suo motu action and order for more benches not just in West UP but also in other different parts like Jhansi in Bundelkhand, Gorakhpur in Purvanchal and other needy places? Why Supreme Court never acts on this? It must act now most decisively as this serious issue directly concerns the judiciary! No more dilly-dallying now!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Abstain From Broadcasting Zee Owned Films Jung And Kartavya

It has to be stated right at the outset that in a major and significant development, the Bombay High Court in a recent, remarkable and righteous decision titled “Zee Entertainment Enterprises Limited Vs Teleone Consumer Product Pvt. Ltd. & Ors.” in exercise of its ordinary original civil jurisdiction in its commercial division delivered on 16^th July, 2020 has ordered the television channels Maha movie and Manoranjan TV to abstain from broadcasting Zee owned films – Jung and Kartavya. Very rightly so! This commendable judgment was delivered after the entertainment media giant – Zee Entertainment Enterprises Limited (ZEEL) moved the Bombay High Court to restrain the television channels viz ‘Maha Movie’ and ‘Manoranjan TV’ from broadcasting its films namely “Jung” (1996) starring eminent film stars – Mithun Chakraborthy, Ajay Devgan, Aditya Pancholi and others and “Kartavya” (1979) starring eminent film stars – Dharmendra, Rekha, Aruna Irani and others, without obtaining license from ZEEL for the same.

To start with, this notable judgment delivered by Justice KR Shriram of Bombay High Court sets the ball rolling by first and foremost pointing out in para 1 that, “The present action is filed by plaintiff claiming infringement of plaintiff’s copyright in two cinematograph films “Jung” and “Kartavya” by defendants who are broadcasting the movies on their respective television channels without any permission from plaintiff.”

To be sure, it is then stated in para 2 that, “The papers and proceedings in the present matter have been served by plaintiff upon defendant nos. 1 and 2. Plaintiff has e-filed affidavit of service dated 13^th July 2020 in respect thereof. Further, the intimation of listing of matter on 16^th July 2020, the link of today’s hearing and the causelist has been served by plaintiff upon defendant nos. 1 and 2. Plaintiff has e-filed affidavit of service dated 16^th July 2020 in respect thereof.

To say the least, para 3 then goes on to say: “It is stated that plaintiff company is engaged in the media and entertainment business inter alia of procurement, development, distribution and dissemination, broadcast/re-broadcasting of music, entertainment television programs, including cinematograph feature films, serials, talents hunts, reality shows through satellite, terrestrial and cable channels, through Direct to Home (DTH) using existing and emerging technologies and distribution platforms and is the owner/operator of several leading Indian television channels such as “Zee TV”, “Zee Cinema”, “Zee Marathi” and “Zee Talkies”.”

While elaborating in detail, para 4 then states: “It is stated that the Suit Films, i.e. “Kartavya” and “Jung”, were released in the Indian cinemas in the years 1979 and 1996, respectively. Copies of Censor Certificates issued by the Central Board of Film Certification in respect of the Suit Films are at Exhibits A1 to A2 to the Plaint. By and under a Film Assignment Agreement executed between Soham Rockstar Entertainment and plaintiff, plaintiff acquired exclusive liner rights on demand rights, local cable distribution rights, catch up TV rights, syndication rights, editing rights, promotion rights, dubbing rights, subtitling rights, doordarshan rights, home video rights, subtitling rights in all languages of the world including Indian languages, and non-exclusive performance rights, merchandising rights, dubbing rights and clip rights in a total of sixty four films, including the Suit Films “Jung” and “Kartavya”, for a term of 10 years commencing from 19^th July 2017 in respect of linear rights, home video rights, local cable distribution rights, subtitling and dubbing rights for “Jung”; 1^st October 2016 in respect of on demand rights for “Jung” and “Kartavya”; 15^th September 2016 in respect of home video rights and local cable distribution rights for “Kartavya”, for the entire world, including India and overseas territories. Plaintiff has annexed all the agreements to the Plaint showing how the rights in the said two films have been acquired by plaintiff. Copy of the Film Assignment Agreement executed between Soham Rockstar Entertainment and plaintiff is at Exhibit J to the Plaint. It is stated that plaintiff has the unequivocal, exclusive and absolute rights under the Assignment Agreement to broadcast/publish the Suit Films on television and/or DTH connections. Plaintiff has annexed redacted versions of the agreements to the Plaint, however, during the hearing today, plaintiff has produced the non-redacted versions of the agreements before the Court in a sealed envelope.”

Be it noted, it is then disclosed in para 5 that, “According to plaintiff, in end of June 2020, plaintiff learnt that defendant nos. 1 and 2 were broadcasting the Suit Films on their television channels “Maha Movie” and “Manoranjan TV”, respectively, without any authorization from plaintiff. Upon collecting data from the Broadcast Audience Research Council, plaintiff learnt that Defendant No. 1 has broadcast the movie “Jung” thirty seven times and “Kartavya” thirty two times, and that defendant no. 2 has broadcast the movie “Jung” forty two times and “Kartavya” nine times, on their respective channels. Detailed lists of dates and time slots on which the Suit Films have been telecast on defendant nos. 1 and 2’s television channels are at Exhibits K1 and K2 to the Plaint.”

Most significantly, it is then very rightly held in para 6 that, “Prima facie, the unauthorized broadcast/exploitation of the Suit Films on defendants TV channels is a violation of the copyright vested in plaintiff in respect of the said two Films under the said Assignment Agreement. Plaintiff has made out a prima facie case for the grant of interim injunction. If reliefs as prayed for are not granted, plaintiff will suffer irreparable damage and injury. There are no equities in favour of defendants and the balance of convenience is in favour of plaintiff and against defendants. In the circumstances and in view of the above, plaintiff is pressing for reliefs in terms of prayer clauses – (a), (b) and (e) of the Interim Application, which are hereby granted.”

To put things in perspective, it would be worthwhile now to go through para 7 which stipulates that, “The prayer clauses – (a), (b) and (e) of the Interim Application read as under:

(a) pending the hearing and final disposal of the present Suit, this Hon’ble Court be pleased to pass a temporary order and injunction restraining defendant nos. 1 and 2, acting by themselves and/or through their servants, agents and/or representatives, from, in any manner exploiting/publishing/broadcasting/communicating to public the Film No. 1 and/or Film No. 2 or any audio or video clip thereof, on any platform and/or any other mode or medium;

(b) pending the hearing and final disposal of the present Suit that this Hon’ble Court be pleased to pass a temporary order and injunction restraining defendant nos. 1 and 2, acting by themselves and/or through their servants, agents and/or representatives, from, in any manner, creating, alienating and/or transferring any rights in Film No.1 and/or to any third party;

(c) pending the hearing and final disposal of the present Suit that this Hon’ble Court be pleased to direct defendant nos. 1 and 2, acting by themselves and/or through their servants, agents and/or representatives, by a temporary order and injunction to suspend future broadcasting of the Film No. 1 and Film No. 2 on their respective channels.”

As it turned out, it is then made clear in para 8 that, “Liberty to defendants/recalling this order by giving written notice in advance of at least 5 working days.”

Finally, it is then held in the last para 9 that, “This order will be digitally signed by the Private Secretary of this Court. Associate/Sheristedar of this Court is permitted to forward plaintiff copy of this order by e-mail. All concerned to act on digitally signed copy of this Order.”

In conclusion, all the television channels must pay heed to what the Bombay High Court has held so elegantly, effectively and eloquently! It is in their own best interest to do so! The earlier they understand this, the better it shall be for them! It is only after obtaining licence from those who owe it as we see in this case that films should be broadcasted! No denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Liability For Offence Depends On Role One Plays

In a remarkable, righteous and recent judgment titled “Shailendra Swarup vs The Deputy Director, Enforcement Directorate” in Criminal Appeal No. 2463 of 2014 delivered just recently on July 27, 2020, the Supreme Court Bench comprising of Justice Ashok Bhushan and Justice R Subhash Reddy minced just no words to explicitly, elegantly and effectively hold that the liability to be proceeded with for offence under Section 68 of the FERA, 1973 depends on the role one plays in the affairs of the company and not on mere designation or status. The Supreme Court has held that for proceeding against a Director of a company for contravention of provisions of Foreign Exchange Regulation Act, 1973, the necessary ingredient for proceeding shall be that at the time offence was committed, the Director was in charge of and was responsible to the company for the conduct of the business of the company. Very rightly so!

To start with, we see that in this latest, landmark and laudable judgment authored by Justice Ashok Bhushan for himself and Justice R Subhash Reddy, the ball is set rolling in para 1 wherein it is observed that, “This appeal has been filed against the judgment of Delhi High Court dated 18.11.2009 dismissing the criminal appeal filed by the appellant by which appeal the judgment dated 26.3.2008 of the Appellate Tribunal for Foreign Exchange in Appeal No. 622 of 2004 filed by the appellant was challenged.”

While proceeding ahead, it is then held about the facts of the case in para 2 that, “Brief facts of the case giving rise to this appeal are:

2.1 Modi Xerox Ltd. was a Company registered under the Companies Act 1956 in the year 1983. Between the period 12.6.1985-21.11.1985, 20 remittances were made by the Company MXL through its banker Standard Chartered Bank. The Reserve Bank of India issued a letter stating that despite reminder issued by the Authorised Dealer, MXL had not submitted the Exchange Control copy of the custom bills of Entry/Postal Wrappers as evidence of import of goods into India. Enforcement Directorate wrote to MXL in the year 1991-1993 for supplying invoices as well as purchase orders. MXL on 09.07.1993 provided for four transactions and Chartered Accountant’s Certificates for balance 16 amounts for which MXL’s Bankers were unable to trace old records dating back to 1985. MXL amalgamated and merged into Xerox Modicorp Ltd. (hereinafter referred to as “XMC”) on 10.01.2000. A show cause notice dated 19.02.2001 was issued by the Deputy Director, Enforcement Directorate to MXL and its Directors, including the appellant. The show cause notice required to show cause in writing as to why adjudication proceedings as contemplated in Section 51 of Foreign Exchange Regulation Act, 1973 (hereinafter referred to as “FERA, 1973”) should not be held for contravention. Xerox Modi Corporation Ltd. (successor of MXL) replied the show cause notice dated 19.02.2001 vide its letter dated 26.03.2001. The Directorate of Enforcement decided to hold proceedings as contemplated in Section 51 of the FERA, 1973 read with Section 3 and 4 of Section 49 of FEMA and fixed 22.10.2003 for personal hearing. Notice dated 08.10.2003 was sent to MXL and its Directors. Notice dated 08.10.2003 was replied by the appellant vide its detailed reply dated 29.10.2013. In the reply the appellant stated that he is a practicing Advocate of the Supreme Court and was only a part-time, non-executive Director of MXL and he was never in the employment of the Company nor had executive role in the functions of the Company. It was further stated that the appellant was never in charge of nor ever responsible for the conduct of business of the Company. Along with the reply an affidavit of the Company Secretary dated 04.07.2003 that the appellant who was the Director of erstwhile Company – XML was only a part-time, Director of the said Company and never in charge of day to day business of the Company was also filed. The MXL has also submitted a reply dated 29.10.2003. The Deputy Director, Enforcement Directorate after hearing the appellant, other Directors of the Company passed an order dated 31.03.2004 imposing a penalty of Rs. 1,00,000/- on the appellant for contravention of Section 8(3) read with 8(4) and Section 68 of FERA, 1973.

2.2 Aggrieved by the order dated 31.03.2004 imposing penalty of Rs. 1,00,000/- on the appellant, Appeal No. 622 of 2004 was filed by the appellant before the Appellate Tribunal for Foreign Exchange which appeal came to be dismissed by the Appellate Tribunal on 26.03.2008. Against the order of the Appellate Tribunal dated 26.03.2008, Criminal Appeal No. 575 of 2008 was filed by the appellant in Delhi High Court. The Delhi High Court by the impugned judgment dated 18.11.2009 has dismissed the appeal of the appellant, questioning which judgment this appeal has been filed.”

Be it noted, it is then envisaged in para 3 that, “The High Court, in Criminal Appeal, during pendency of the appeal has stayed the order of penalty. This Court while issuing notice on 19.02.2010 in the present appeal had also stayed the order of penalty imposed on the appellant.”

What’s more, it is then brought out in para 37 that, “Section 68 of FERA, 1973 deals with “Offences by companies”. “………..every person who, at the time of the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be deemed to be guilty of the contravention……….. . .” Section 68(1) creates a legal fiction, i.e., “shall be deemed to be guilty”. The legal fiction triggers on fulfillment of conditions as contained in the section. The words “every person who, at the time of the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business” has to be given some meaning and purpose. The provision cannot be read to mean that whosoever was a Director of a company at the relevant time when contravention took place, shall be deemed to be guilty of the contravention. Had the legislature intended that all the Directors irrespective of their role and responsibilities shall be deemed to be guilty of contravention, the section could have been worded in different manner. When a person is proceeded with for committing an offence and is to be punished, necessary ingredients of the offence as required by Section 68 should be present.”

As it turned out, the Bench then notes in para 41 that, “Learned Additional Solicitor General also submitted that all the three Courts have held and found contravention proved by the appellant, this Court may not interfere with such conclusion. We have already noticed above that the plea of the appellant that he was part-time, non-executive Director not in charge of the conduct of business of the Company at the relevant time was erroneously discarded by the authorities and the High Court and there is no finding by any of the authorities after considering the material that it was the appellant who was responsible for the conduct of business of the Company at the relevant time. Thus, present is a case where the liability has been fastened on the appellant without there being necessary basis for any such conclusion.”

Needless to say, it cannot be overlooked that it is then brought out in para 42 that, “It is also relevant to notice that an order which was passed on 13.02.2004 by the Deputy Director in adjudication proceedings although with regard to different period, the plea of the appellant that he was only a part-time, non-executive Director and not responsible for the conduct of business of the Company was accepted and notice was discharged against the appellant. The order dated 13.02.2004 although related to different period but has categorically noticed the status of the appellant as part time non-executive Director. There being decision of Adjudicating Authority, in the recent past, passed on 13.02.2004, that the appellant was only a part-time non-executive Director of MXL, there has to be some reasons for taking a contrary view by the adjudicating officer in order dated 31.03.2004 with regard to affairs of the same company, i.e., MXL.”

Quite ostensibly, it is then held in para 43 that, “In view of the foregoing discussions, we are of the view that the adjudicating officer has erroneously imposed penalty on the appellant for the alleged offence under Section 8(3), 8(4) and 68 of the FERA, 1973 which order was erroneously affirmed both by the Appellate Tribunal and the High Court.”

Finally, it is then held in the last para 44 that, “In view of the aforesaid, this appeal deserves to be allowed, the judgments of the High Court as well as those of the adjudicating officer and the Appellate Tribunal are set aside. The appeal is allowed and the penalty imposed on the appellant is set aside.”

In summary, the inevitable conclusion that can be drawn from this noteworthy judgment is that the liability to be proceeded with for offence under Section 68 of the FERA, 1973 depends on the role one plays in the affairs of the company and not on mere designation or status. The facts of this case have already been discussed in detail. All courts and all tribunals must always adhere to the crux of this notable judgment as has already been explained in all such similar cases!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Burden Is On The Prosecution To Negate It

n a recent, remarkable and righteous decision delivered on July 28, 2020, the Apex Court in Parminder Kaur @ P.P. Kaur @ Soni vs State of Punjab in Criminal Appeal No. 283 of 2011 has made it abundantly clear that once a plausible version has been put forth by the defence at the examination stage of Section 313 of the Cr. PC, then it is for the prosecution to negate such a defence plea. It was further reiterated by the top court that failure of the trial court to fairly apply its mind and consider the defence could endanger the conviction itself. Very rightly so!

To start with, this notable judgment authored by Justice Surya Kant for himself, Justice NV Ramana and Justice Krishna Murari sets the ball rolling in para 1 by first and foremost observing that, “The present Criminal Appeal has been preferred by Parminder Kaur, impugning the judgment dated 30.11.2009 of the High Court of Punjab and Haryana through which her challenge to a judgment dated 27.02.1999 passed by the Additional Sessions Judge, Barnala was turned down, thereby confirming her conviction of three years rigorous imprisonment and fine of Rs 2000 under Sections 366A and 506 of the Indian Penal Code, 1860 (“IPC”).”

While dwelling on the facts and case history, it is then elaborated in para 2 that, “The prosecution story, as recorded in the FIR at around noon on 24.02.1996, was that the appellant was a single lady living with her child, mother and a young boy as her tenant in the neighbourhood of the prosecutrix’s house.[The name of the prosecutrix/victim has been withheld, in compliance with the ratio in Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551]. About a week prior to registration of the police complaint, the appellant called the prosecutrix to her house and tried to entice her to indulge in illicit intercourse with the rich tenant boy in return for clothes and trips from him. The appellant at about 6.00 A.M. on 19.02.1996 allegedly pushed the visiting prosecutrix into the room occupied by the tenant boy and bolted it from the outside. It was only on hearing the prosecutrix’s screams that after five minutes the door was unlocked, with her father (Hari Singh, PW-2), Bhan Singh and Karnail Singh standing outside. Swiftly, the boy ran out of the room and successfully escaped. Upon the prosecutrix emerging from the room, her father protested and expressed his dismay to the by-standing appellant. Scared for their reputation, the prosecutrix and her father returned to their home without reporting the matter to anyone, except the prosecutrix’s mother. However, on 24.02.1996 at 7.00 A.M., the appellant caught hold of the prosecutrix outside her house and threatened to kill her brother if anyone was informed of the matter. The prosecutrix was able to escape the appellant’s clutches and worried at this high-handedness, proceeded with her father towards the police station to report these two incidents and lodged a complaint.”

As it turned out, para 6 then holds that, “Accordingly, the trial Court held that the appellant had intentionally induced the prosecutrix to perform illicit intercourse with her male tenant, and that she had also criminally intimidated the prosecutrix by threatening her family member. Noting the large number of dependents that the appellant had to support as a single lady, and considering the lack of commission of any assault or rape against the prosecutrix, the appellant was concurrently sentenced to three years rigorous imprisonment and fine of Rs. 2,000 (or further six months rigorous imprisonment in lieu thereof) under Section 366A, and one year rigorous imprisonment and fine of Rs. 1,000 (or further three months rigorous imprisonment in lieu thereof) under Section 506 of IPC.”

As a consequence, what then followed is stated in para 7 that, “The aggrieved appellant approached the High Court which too refused to interfere with the order of contention. While dismissing the appeal, the High Court observed that the statement of the accused under Section 313 CrPC appeared to be an after-thought, and that in the absence of any evidence proving enmity between the parties it was impossible that anyone would falsely implicate a woman in such like offence. The minority of the prosecutrix was noted as having been proved, and the testimonies of PW1 and PW2 were held to be impeccable and corroborating each other completely. Similar to the trial Court, the High Court also explained away the delay in registration of FIR as a result of family reputation put at stake in matter of sexual offence cases. Other omissions in the form of non-examination of Bhan Singh and Hari Singh and failure to catch or trace the identity of the male tenant were deemed insignificant and immaterial.”

Analysis

I. Sweeping generalisations and superficial analysis

Without sparing any punches, the Bench then minces no words to point out in para 10 that, “Having heard learned counsel for the parties at considerable length through video conferencing, we find from the impugned orders that the Courts below failed in making the desired attempt to delve deep into the factual matrix of this case. Many aspects, as discussed hereunder, have completely been ignored or only dealt with hastily. Further, the reasoning is generic and is premised upon generalisations which may not be necessarily true always. It is indisputable that parents would not ordinarily endanger the reputation of their minor daughter merely to falsely implicate their opponents, but such clichés ought not to be the sole basis of dismissing reasonable doubts created and/or defences set out by the accused.”

While continuing in the same vein, the Bench then notes in para 11 that, “Similarly, the five-day delay in registration of the FIR, in the facts and circumstances of this case, gains importance as the father of the victim is an eye-witness to a part of the occurrence. It is difficult to appreciate that a father would await a second incident to happen before moving the law into motion. Sweeping assumptions concerning delays in registration of FIRs for sexual offences, send a problematic signal to society and create opportunities for abuse by miscreants. Instead, the facts of each individual case and the behaviour of the parties involved ought to be analysed by courts before reaching a conclusion on the reason and effect of delay in registration of FIR. In the facts of the present case, neither is Section 366A by itself a sexual offence in the strict sense nor do the inactions of the prosecutrix or her father inspire confidence on genuineness of the prosecution story. No steps were taken to avail of medical examination of the victim, nor was the Panchayat or any social forum approached for any form of redress till the occurrence of the second alleged incident.”

What’s more, the Bench then goes on to elaborate in para 12 that, “Further, it is beyond comprehension that the prosecutrix’s father and his two male associates failed to stop the tenant boy who was allegedly about to commit a sexual offence with the minor victim and neither did they later make any attempt to even register a complaint against him. Strangely, the prosecution has acquiesced to such disappearance of the boy from the scene. Still further, the father of the prosecutrix merely registered his protest to the appellant on the scene, instead of reacting instinctively and approaching police authorities when faced with possible trafficking of his daughter. This conduct of belatedly proceeding against only the prosecutrix creates a lurking suspicion against the prosecution case and it may not be totally improbable to infer that it was a malicious attempt at the behest of Bhola Singh to falsely implicate a weak rape victim and stifle her ability to seek justice.”

II. Shoddy investigation and prosecution

In a damning indictment of the police, it is then pointed out in para 13 while also highlighting the shoddy investigation and prosecution that, “The original record elucidates the lack of serious effort on part of either the investigation agency or the prosecutor to bring home the appellant’s guilt. Save for the initiative of the prosecutrix and her father to register the complaint, no substantive evidence has been gathered by the police. Despite the male tenant having been residing with the appellant allegedly for many months, the police were unable to even discover his name, let alone his antecedents or location. Further, DW-1 casts an impressionable doubt on the existence of the boy in the first place. This is further buttressed by the fact that PW-1 and PW-2 differed in their physical description of the boy’s age, clothing and his whereabouts. If the boy was indeed a tenant and if he did live there for months, it is highly mootable that he couldn’t have been traced.”

To be sure, it is then put forth in para 15 that, “Non-examination of Bhan Singh and Karnail Singh is also a noticeable lapse, given the gaps in the prosecution story. It appears that no serious attempt was made to get them examined to resolve the contradictions in the testimonies of PW-1 and PW-2. Such lack of examination of material independent witnesses, adversely affects the case of the prosecution.”

Furthermore, it is then pointed out in para 14 that, “The spot map prepared by PW-3 also has glaring omissions. The location of Bhan Singh’s house and the place where the appellant allegedly threatened the prosecutrix on 24.02.1996 are not even marked. Letters which the prosecutrix alleged in her examination-in-chief and police complaint that the appellant got written from her, have not been produced during trial. These could have shed light on the relationship between the accused, prosecutrix and the male tenant prior to the incident. It is the duty of the prosecution to lead the best evidence in its possession, and failure to do so ought to lead to an adverse inference.(Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541).”

III. Gross Mis-appreciation of conflicting testimonies

To put things in perspective, it is then envisaged in para 16 that, “Ordinarily, the Supreme Court ought not to re-appreciate evidence. However, where the courts below have dealt with the material-on-record in a cavalier or mechanical manner which is likely to cause gross injustice, then this Court in such exceptional circumstances may justifiably re-appraise the evidence to advance the cause of justice. There is no gainsaying that such re-assessment ought not to take place routinely and ought not to become substitution of an otherwise plausible view taken by the Courts below.”

Needless to say, it is then held in para 17 that, “The trial Court has summarily disregarded the contradictions highlighted by the defence side, on the premise that such contradictions had no material bearing and that there was no reason to disbelieve the prosecutrix. The High Court too has opined that PW-1 and PW-2 have completely corroborated each other and their testimonies were impeccable. These reasons, in our considered opinion, are not only contrary to the record but they also lead to an impermissible reversal of the burden of proof imposed in criminal trials. There are numerous clear contradictions between the testimonies of these two star-witnesses, which we find fatal to the prosecution case.”

IV. Failure to refute Section 313 CrPC statement

Most significantly, it is then rightly underscored in para 21 that, “Under the Code of Criminal Procedure, 1973 after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial Court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself (Reena Hazarika v. State of Assam, (2019) 13 SCC 289). Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities. (M. Abbas v. State of Kerala, (2001) 10 SCC 103). Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defense plea.”

V. Charge of criminal intimidation

In short, the key point of para 25 is that, “Given the facts of this case where the common testimony of PW-1 on both charges has been doubted, it would be unwise to rely upon it as the sole piece of evidence to convict the appellant for criminal intimidation without any other corroboration.”

Truth be told, it is then held in para 22 that, “In the case at hand, the alternate version given by the appellant could not be lightly brushed aside. Her two-part defence, put succinctly, was that first there was no male tenant at all and no one except for her child and mother lived with her, and second, that she was being falsely implicated as vengeance for filing a rape complaint against Bhola Singh with whom the prosecutrix’s father used to work.”

Conclusion

Finally, it is then held in the last para 26 that, “We are thus of the considered view that the prosecution has failed to discharge its burden of proving the guilt of the appellant under Section 366A and 506 of the IPC beyond reasonable doubt. Thus, for the reasons aforesaid, the appeal is allowed and the conviction and sentence awarded by the Courts below are set aside. The appellant is acquitted and consequently set free.”

No doubt, it is a well balanced, well worded and well reasoned order by a three Judge Bench of the Apex Court. It rightly espoused that once an accused makes a plausible defence in his Section 313 CrPC statement, the burden is on the prosecution to negate it. If prosecution fails then the benefit of doubt will go to the defence as we see here. Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

WASTE MANAGEMENT

Sustainable development is one of the major concerns of developing countries. It means present development without compromising the need of future. Resources are scare and have alternative uses, this lead to the problem of allocation of resources. To maintain a healthy and safe environment one need to adopt the waste management strategy, this not only helps in accumulation of waste but also in proper disposal.

National Environmental Management: Waste Act, 2008 was passed by the government of South Africa for this purpose. Government of different countries took huge steps in spreading awareness about the same. Different sectors of economy had adopted distinct methods to perform this management. Some techniques of waste management are-

i) Waste minimization is the process of reducing the amount of waste produced by a person or a society.

ii) Recycling of waste involves reprocessing the particular waste materials, including e-waste, so that it can be used as raw materials in another process. This is also known as material recovery. A well-known process for recycling waste is composting, where biodegradable wastes are biologically decomposed leading to the formation of nutrient-rich compost.

iii) Reuse means using an item more than once. This includes conventional reuse where the item is used again for the same function and new-life reuse where it is used for a new function.

You can even adopt the 3R’S strategy of reuse, reduce and recycle. It help in reduction of waste with large amount. Landfill disposal of wastes, Incineration are some of chemical methods used by industries in proper waste disposal.

Solid wastes are the discarded leftovers of our advanced consumer society. This growing mountain of garbage and trash represents not only an attitude of indifference toward valuable natural resources, but also a serious economic and public health problem. So take up this duty seriously to help your country grow healthy.

Give Highest Priority To Pregnant Women, Then To Senior Citizens

In a well-balanced, well-reasoned, well-analysed and well-worded judgment, a two Judge Bench of the Principal Bench at Jabalpur of Madhya Pradesh High Court comprising of Justice Sanjay Yadav and Justice Atul Sreedharan in its judgment titled In Reference v. Union of India in Writ Petition No. 25097/2019 delivered just recently on July 27, 2020 asked Indian Railways to consider re-prioritising the lower berth allotment by giving the highest priority to pregnant women, then to senior citizens and thereafter to the VVIPs. It must be mentioned here that the said suggestion that was put forth by this two Judge Bench came in the PIL that was registered suo-motu by the MP High Court “to consider certain measures regarding railway journeys in the interest of the public at large”! This makes it all the more special and must be commended in no uncertain terms!

To start with, this notable judgment authored by Justice Atul Sreedharan for himself and Justice Sanjay Yadav sets the ball rolling by first and foremost observing in the opening para that, “This Public Interest Litigation (PIL) has been registered suo-motu by this Court to consider certain measures regarding railway journeys in the interest of the public at large. The PIL owes its genesis to a train journey undertaken by a Judge of this Court while he was travelling from Gwalior to Jabalpur on an official visit. When the train reached the Katni-Murwara station, the Judge got off the train for a cup of tea and suddenly, the train started pulling out from the platform without blowing its horn. The Judge was put to great inconvenience and the accompanying hazard of boarding the running train. The incident made the brother Judge put forth three suggestions to the Indian Railways which if implemented would go a long way to ensure passenger comfort during the journey.”

Be it noted, it is then envisaged in para 2 that, “The Indian Railways is the largest State-owned railways in the world. It is the single largest employer and has more than 1.4 million (fourteen lakh) employees working for it (larger than the Indian Army which has 1.2 million personnel). It plies 7421 freight trains daily, moving three million tons of freight. It also runs 12617 passenger trains transporting about 23 million people every day over a 66000 Kms rail network.

The three-suggestions put forth by the Judge of this Court are as follows:

(1) “It would be in the interest of the public at large that some light signal/sound be fixed on each bogie enabling the passengers outside the train to be alert prior to departure of train with a view to avoid mishappening/accident.

(2) If the website/app is updated by displaying the position of the seats/berths to be allotted at the time of making reservation, that would be more convenient and suitable for the public in general.

(3) The size/number of doors of the bogies should be increased or in the alternative, duration of stoppage of the trains should be increased from two minute to at least five minute, to make the people smooth and easy while boarding or getting off the train.””

While lambasting the nonchalant approach of the railways, the Bench then holds in para 3 that, “The reply filed by the Respondent Indian Railways is most apologetic and regretful for the inconvenience caused to the Judge. As regards the first suggestion the Respondent has replied that the train does not move without at least two whistles and without a display of the green/amber signal on the platform in front of each train. It is further stated that perhaps the Judge may not have heard the whistle/horn of the engine on account of the loud ambient sound on the platform. The Respondent says that further instructions have been issued to the staff concerned that greater caution and care should be taken to ensure that the horn of the engine is loud and audible and that the same is accompanied by repeated announcements on the platform through the public address system and also the video displays regarding the departure of the train.”

To say the least, it is then made clear in para 4 that, “As regards the suggestion that light signals or hooters being fixed on the coaches is concerned, the Respondent in the reply has stated that modification of the coach requires a policy decision and design approval of affecting thousands of trains all over the country and that it would not be possible to switch over to a new system of signaling overnight or even over months. Respondent further says that the system has been developed by a highly specialized body of experts. However, the Respondents undertake to ensure greater display of the green/yellow signals and efficient, loud and repeated blowing of the horn before the train departs from the station.”

Now coming to the second suggestion, it is stipulated in para 5 that, “As regards the second suggestion put forth by the Judge with regard to information relating to vacant position of seats/berths, similar to what is shown on the websites and mobile applications of the airline services operating in the country, the Respondent state that though berths which are vacant for allotment are not displayed on the official website of the railways, a comparison with the airlines would not be an accurate assessment of the problem. The Respondent has stated that there can be no effective comparison between the airlines and the Indian Railways as the number of passenger trains running on an average day in India are over 12,000. It is further submitted by the Respondent that lakhs of passengers travel each day and so it is not physically possible to demonstrate which seats are vacant with the present IT infrastructure. The IT experts associated with the railways have stated that providing information relating to vacant berths and their position in the coach is presently not possible. Under the circumstances, the Respondent states that updating the website and the mobile application for displaying the position of seats/berths to be allotted at the time of drawing reservation is again a policy decision and involves major changes and hence has huge financial implications and therefore unviable.”

Furthermore, it is then stated in para 6 that, “The Respondent while answering the issue of granting lower berths to senior citizens has stated that in the priority list of the railways, the VVIPs like ministers, Supreme Court/High Court judges etc., fall very high and they have to be allotted the lower berths. After the VVIPs are accommodated, priorities are given to pregnant women and senior citizens. The Respondent has expressed their inability to manage to the extent that each and every person should be given the lower berth. However, they state that the best efforts are being made to ensure that senior citizens do get the lower berth. The Respondent also states that design of the railway coaches are being made in such a manner that in future it shall be convenient for every person to climb up to the upper berth also however, some inconvenience while travelling is inevitable and therefore regretted.”

Coming to the third suggestion, it is stated in para 7 that, “As regards the third suggestion relating to widening the doors or increasing the stoppage time of the trains at the stations, the Respondent states that it will not be possible to widen the size of the doors because it will decrease the passenger carrying capacity of the coach and will also compromise the safety of the passenger. It further says that any modification in the passenger coaches contains lot of public expenditure, trials and experiments. As regards the stoppage of a train at a particular station, the Respondent submits that the stop of the train at each station is widely published through railway timetables, announcements, notice board and display board etc. Increasing the stoppage of a train, according to the Respondent, would further delay the train in reaching its destination and that the fixing of the halting time at the stations is based upon an assessment by the Respondent with regard to the number of passengers alighting and boarding a particular train at the station. In other words, an indiscriminate extension of time would be counterproductive to the running of trains as it would cause delays and disrupt the time schedule of the trains in reaching their destinations.”

More significantly, it is then stated in para 8 that, “Having heard the submissions of the learned Amicus Curiae and the learned counsel for the Respondent, we are satisfied with the reply given by the Respondent. The suggestions that were put forth to the Respondent have been considered by the Respondent and they have expressed their inability for the reasons stated hereinabove. This Court cannot force the Respondent to incur expenses which the Respondent does not consider as economically viable and also on account of the large number of trains on which the said measures would have to be implemented which makes the proposals difficult, almost impossible to implement. The suggestions put forth are aspects relating to policy decisions of the Respondent and entailing huge expenditure. This court cannot pass a judicial order in matters which would interfere with aspects of policy relating to the Respondent Indian Railways for which this court lacks the technical expertise to appreciate the difficulties that would be faced by the railways in giving effect to the suggestions.”

Finally and perhaps most significantly, the Bench then minces no words to make it clear in para 9 that, “However, as regards the prioritisation of berth allotment is concerned, the Respondent Indian Railways is requested to consider re-prioritising the berth allotment by giving the highest priority to pregnant women, then to senior citizens and thereafter to the VVIPs. As far as VVIP’s/Officials being given a priority in reservation of seat/berth is concerned, the rationale of officials being given a priority is understandable as they are required to travel at short notice for their official duties. However, as regards the priority of allocation of the lower berth is concerned, the same as it exists on date is unpragmatic. Pregnant women are most vulnerable on account of their medical condition and it would cause them great inconvenience in occupying the middle or upper berth. Thus, the dictates of reason and the fulfillment of a welfare state demands that they be given the highest priority along with passengers suffering from terminal illness or life threatening ailments like cancer and those who are physically or mentally challenged, be considered as priority No. 1 for allotment of the lower berth. The senior citizen who on account of their advanced age and attendant medical issues should be considered as priority No. 2 and lastly, the VVIP’s who are usually serving state functionaries are invariably those blessed with better health and so be considered at priority No. 3. With the above direction to seriously re-consider the prioritisation of allotment of the lower berth in trains, the petition is finally disposed of.”

No doubt, the long and short of this latest, landmark and laudable judgment is stated in para 9 stated above. Indian Railways must now implement the directions given by the two Judge Bench of the Madhya Pradesh High Court at Jabalpur. It brooks no delay anymore!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Social Media Marketing

Marketing refers to activities a company undertakes to promote the buying or selling of a product or service. In other words, marketing is related to buying and selling a product or service. It involves finding out what consumers want and determining whether it is possible to produce it at the right price. The company then makes and sells it.

There are many parts of marketing:

1. Online Marketing
2. Public Relations
3. Advertising
4. Social Media
5. Research
6. Direct Marketing
7. Stratagy
8. Pricing
9. Publicity
10. Branding

All these factors are responsible for a proper marketing. Among them, the term ‘Social Media Marketing’ has became very popular in last few years. The reason behind is continuous growth of social media.

What is Social Media Marketing?

Social media marketing is the process by which the marketing is done using social media platforms. Making money out of social media is a creative job. Social Media Marketing has proved to be one of the most effective forms of marketing over the years. Though the concept of Social Media Marketing is relatively newer, it has never failed to surprise the marketers on how beneficial it can turn out to be.

There are different types of works which can be done through social media:

1. Affiliate Marketing

One can promote different products on social media websites including his affiliate links. One can join groups and pages related to his product niche.

2. Digital Marketing

This is the most used part of social media marketing. One have to promote the products of any company using social media. Instagram & Facebook pages, blogs and websites are the famous way to promote digital marketing. Even the cookies used by the websites helps to advertise the product related to the search history of the customer on internet.

3. E – Commerce

Companies like Amazon, Flipkart, Myntra, Saiggy, Zomato have access to E – commerce. They have to deliver their product to the requested destination by the customer via E – commerce like BluDart. The cab services like Ola & Uber are also the examples of E-commerce as you have to book these cabs using internet.

4. Social Media Influencing

You must’ve heard the names of Bhuvan Bam, Ashish Chanchlani, Shirley Sethia and many more. They are all social media influencers. All these youtubers makes videos of different genres like comedy, music, dance and many more. They became famous due to their talent they’ve shown on social media platforms.

5. Sell photos:

Instagram is the most used social media platforms these days. Specially by youngsters. There are many people who shares their photographs on these platforms and are earn money by doing this. One must have keen interest in Photography to get started. It’s all it want. There’s no need of any DSLR camera either. The photographs captured by mobile camera is enough. A few things that one need to keep in mind here is to post consistently on Instagram.
This can act as his readymade portfolio for interested buyers. One should also remember to add his personalized watermark so that his photos can’t be misused.

But why social media marketing?

To get the answer of this question let’s put a glance on these benefits:

1. Time flexibility
2. No or minimal investment required
3. No physical setup required, one only needs to have a computer/ laptop and a good internet connection
4. Work from any corner of the world
5. Maintain your social life balance
6. One gets enough time to learn new things and developing oneself consistently
7. Travelling expenses and time is saved

These are just a few benifits to use social media for marketing purpose. So one can surely use social media for this purpose because this is one of the easiest ways to earn money.

Doctors Are Frontline Warriors Against Coronavirus: Tripura HC

It is most heartening and most refreshing to learn that the Tripura High Court just recently on July 30, 2020 in a notable judgment titled Karnajit De vs. The State of Tripura in AB 87/2020 made no bones in making an important observation in simple and straight language that, “Doctors are the first line defence of the country in the fight against the corona virus”. It directed the Government to restore the confidence of the Doctors and para-medical staff and all concerned who are sacrificing their lives to fight against the pandemic. Very rightly so!

To be sure, Justice Arindam Lodh of Tripura High Court made this important observation while considering an anticipatory bail plea filed by a person accused of being part of a protest by a group of patients against a doctor. The Judge directed the Investigating Officer to record statement of the doctor and to conduct a Test Identification Parade. Karnajit De who is Additional Government Advocate under the Government of Tripura was charged under Section 323/353/506/34 IPC and Section 3(2) (i) of Epidemic Diseases Amendment Act, 2000 read with Section 3 of the Tripura Medicare Service Persons and Medicare Service Institution (Prevention of Violence & Damage Property) Act, 2013 for allegedly harassing a woman doctor.

To start with, Justice Arindam Lodh sets the ball rolling by first and foremost observing in the opening para that, “Heard Mr. R. Datta, learned counsel appearing for the petitioner as well as Mr. Samrat Ghosh, learned Addl. PP appearing for the State-respondent through video conferencing.” It is then observed that, “Mr. R. Datta, learned counsel appearing for the petitioner, Sri Karnajit De who has approached this Court with an application under Section 438 of the Code of Criminal Procedure for granting anticipatory bail to him in connection with NCC Police Station Case No. 2020 NCC 106 under Section 323/353/506/34 IPC and Section 3(2)(i) of Epidemic Diseases Amendment Act, 2020 read with Section 3 of the Tripura Medicare Service Persons and Medicare Service Institution (Prevention of Violence & Damage Property) Act, 2013.”

While elaborating in detail, it is then pointed out that, “Mr. Datta, learned counsel for the petitioner has drawn my attention at the complaint lodged by the Director of Health Services, Government of Tripura, stating inter alia that one Dr. Sangita Chakraborty, who was serving as District Health Officer, West Tripura, and was discharging her duties as incharge of distribution of COVID-19 patients in the two centres on 24.07.2020, Saturday, at around 7.00 P.M. five post delivery mothers along with their new born babies, who were tested COVID-19 positive, were sent to the Bhagat Singh CO)VID Care Centre, soon after their deliveries to ensure maximum safety and much needed seclusion for the mother and the new born babies under the strict surveillance of Dr. Sangita Chakraborty. It is further stated that when the said patients and the accompanying health staffs reached near B Block of the said centre, some of the previously admitted older inmate patients started protesting indiscriminately demanding that they would not allow entry of any new patients in the centre. It is further stated in the complaint that when the situation had worsened, Dr. Chakraborty realizing the seriousness of the developments, immediately reached the place of occurrence and maintaining the desired composure form of a public servant, tried to convince the unruly protestors and repeatedly insisted to behave responsibly. However, the protestors furiously reciprocated and started abusing Dr. Chakraborty in utterly filthy languages and also threw some sexually coloured remarks. They even went further and started jointly spitting on the face of Dr. Sangita Chakraborty and one of them climbed upstairs from where he took some water in his mouth and showered gargled water upon Dr. Chakraborty, who was then somehow saved by the timely interference of her staff but not before receiving some minor injuries. Some of the protestors even went further and threatened her and her family with dire consequences once they are out of their quarantine, which has left the esteemed doctor and her family in a state of terror and helplessness.”

Most significantly, it is then rightly made clear in no unambiguous terms that, “Needless to say, Doctors are in the frontline of the battle against Coronavirus pandemic, which has now affected lakhs of people and claimed many lives in the country with further reports that para-medical staff and Doctors getting affected by COVID, the focus has now shifted to those brave souls. Our law makers in their own wisdom and after well thought consideration have described the Doctor, para-medical staff, their associates and the police forces as the frontline warriors for their sincere and devoted dedication and constant fight against the deadly disease engulfed in the entire country. Further, they are the “first line defence of the country” in the fight against Coronavirus. It is even reported that many Doctors and nurses have been complaining of fatigue, dehydration and headache due to grueling schedule as they are to work non-stop for seven to eight hours in one go, without any break. They have always taken all kinds of risk not only on their own shoulders but also upon their family members and even to their kids and their old aged parents.”

Equally significant if not more is what is then stated now that, “Coming to the present case, the Director of Health Services, Government of Tripura had lodged a serious complaint against some of the patients, who not only had made the Doctors and other staff vulnerable to the infection which will deprive many patients from their valuable service. They created serious obstacles in treating the COVID patients, who are the mothers of the new born babies and suffering from COVID infections and thus prevented the lady Doctor and her staffs to discharge their official duties smoothly and freely. In my opinion, this kind of acts and commission are not only detrimental to the sentiment, safety and security of the Doctors, the “frontline warriors” of the nation, but also detrimental to the interest of the entire society of our nation as well as of this state. It is not at all tolerable and should not be tolerated for a single moment, and the real offenders are to be booked and punished in accordance with law.”

As it turned out, it is then further held that, “I have given my anxious thought to the submission of Mr. Datta, learned counsel that the petitioner in this petition is an advocate and holding the post of Addl. Government Advocate. According to me, the petitioner being an Advocate is engaged and associated with a Noble profession, and, who, as a representative of the law makers of the State, should be more responsible and dutiful towards the cause of the Doctor and society as a whole. His acts and commissions shall be the example to others. Till now, this Court does not find any specific accusation against the petitioner. However, both the learned counsel appearing for the parties to the lis have apprehended his implication in connection with the offence.”

Furthermore, it is then also held that, “Keeping in view the object of bringing the Ordinance 2020 and the seriousness of the complaint as lodged by the Director of Health Services, Government of Tripura, I direct the Investigating Officer to record confessional statement of the victim Dr. Sangita Chakraborty and her supporting staff under Section 164(5) of the Cr.P.C. within 24 hours, however, at the convenience of the said Doctor and her other associates. The Investigating Officer is further directed to arrange for T.I. parade, if necessary, to identify the real offenders. Learned Addl. P.P. is requested to produce the case diary on 05.08.2020 to find out the reasonable apprehension and accusation, if any, against the petitioner.”

To put things in perspective, it is then also directed that, “A copy of this order may be communicated to the Superintendent of Police, West Tripura, Agartala for compliance of the order forthwith. A copy may also be forwarded to the learned counsel of the petitioner and learned Addl. P.P. for immediate forwarding the copy of the order to the investigating officer to act in terms of the above order.”

To put it succinctly, it is then also clarified that, “In the meantime, the police authorities are given liberty to proceed in accordance with law to protect and restore the confidence of the Doctors and para-medical staff and all concerned who are sacrificing their lives to fight against the dreaded Coronavirus.”

Finally, it is then held that, “List the matter on 05.08.2020. A copy of this order may also be supplied to the learned counsel for the parties through e-mail or Whatsapp duly authenticated by the Registrar (Judicial) which shall serve all practical purposes.”

In essence, this extremely laudable, landmark and latest judgment minces no words to highlight the pivotal role played by doctor in society by terming them as “frontline warriors against coronavirus”. It also very rightly labels the doctors as “first line defence of the country”. It also very rightly advocates that there has to be zero tolerance of any kind of violence against doctors! This is what makes this judgment all so special!

Needless to say, it is the bounden duty of all the governments in our country – by the States and also by the Centre to ensure that doctors are always protected from violence of any kind in any form and those who try to perpetrate violence are promptly identified and strictly punished in accordance with law! Lawyers too must always adore, admire and appreciate the pivotal role played by doctors in society which mostly they do also! No denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

MP HC Asks Person Accused Of Outraging Modesty Of Neighbour To Request Her To Tie The Rakhi

In a first of its kind, the Indore Bench of Madhya Pradesh High Court just recently on 30 July, 2020 in a latest case titled Vikram Vs The State of Madhya Pradesh in Case No. – MCRC-23350-2020 released a person who was apprehended for outraging the modesty of a woman on bail. The unique condition that was imposed for releasing him on bail was that he visits the house of the complainant and requests her to tie the Rakhi band to him “with the promise to protect her to the best of his ability for all times to come”! This is what gave a lot of prominence to this case. The case was heard through video conferencing.

To start with, this notable judgment authored by Justice Rohit Arya of Indore Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost observing that, “This is the first application under Section 439 of Cr.P.C., for grant of bail filed on behalf of the applicant. The applicant is in custody since 02/06/2020 in connection with crime No. 133/2020 registered at Police Station Bhatpachlana, District – Ujjain for the offence punishable under Sections 452, 354(A), 354, 323 and 506 of IPC.”

To put things in perspective, it is then pointed out in this judgment that, “As per the prosecution story, on 20/04/2020 at about 2 : 30 am, the applicant as a neighbor has entered the house of the complainant and caught hold of hand of the complainant attempting to outrage her modesty. Accordingly, case has been registered. Investigation is complete. Challan has been filed.”

On the contrary, the judgment then mention the applicant’s version stating that, “Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the crime. Investigation is complete. Challan has been filed. He is no more required for further custodial interrogation. The applicant is in custody since 02/06/2020. It is further submitted that as a matter of fact, the applicant had asked the husband of the complainant to return back the outstanding loan amount against him, which was advanced by the applicant during the lockdown period. The complainant’s husband had taken exception thereto and as a sequel to the demand, filed the instant false case against the present applicant. Besides, the applicant is a married person and cannot think of entering the house of the neighbour to outrage the modesty of a women/complainant. The family is on the verge of starvation due to his jail incarceration. Further jail incarceration shall jeopardise the life of the family members. Due to prevailing Covid-19 situation, trial is not likely to conclude early in the near future. Under such circumstances, the applicant deserves to be enlarged on bail on such terms and conditions, Hon’ble Court deems fit and proper.”

As a corollary, what then ensues is stated thus: “Per contra, learned Panel Lawyer opposes the bail application supporting the order impugned. It is submitted that even if, this Court is inclined to grant bail to the applicant, certain stringent conditions are imposed.”

Most significantly, it is then pointed out further in this judgment that, “Upon hearing learned counsel for the parties, without commenting upon the rival contention so advanced, but regard being had to the fact that the applicant has already suffered jail incarceration for more than two months, he is no more required for further custodial interrogation, therefore, he is held entitled for enlargement on bail. Consequently, the application of the applicant filed under Section 439 of the Cr.P.C. is hereby allowed. It is directed that the applicant be released on bail, on furnishing personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court, on the condition that he shall remain present before the Court concerned during trial and also comply with the conditions enumerated under Section 437(3) of Cr.P.C., with following further conditions:

(i) the applicant along with his wife shall visit the house of the complainant with Rakhi thread/band on 03 August, 2020 at 11:00 am with a box of sweets and request the complainant to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- (Rs. Eleven Thousand Only) to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant-Vishal for purchase of clothes and sweets.

The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry.

The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.

(ii) the applicant shall furnish a written undertaking with his complete residential details that he shall abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from time to time in the matter of maintaining social distancing, physical distancing, hygiene etc., to avoid proliferation of Novel Corona virus (COVID-19);

(iii) the applicant shall install Aarogya Sethu App (if not already installed) in his mobile phone;

(iv) the applicant shall not tamper with the evidence whatsoever in any manner or induce or threat any person acquainted with the facts of the case;

(v) the applicant shall cooperate during trial and will not seek unnecessary adjournments during trial;

(vi) the applicant shall not leave India or the area without previous permission of the trial Court/Investigating Officer, as the case may be;

(vii) the concerned jail authorities are directed that before releasing the applicant, the medical examination of the applicant be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action including the isolation/quarantine or any further test required be undertaken immediately. If not, the applicant shall be released on bail in terms of the conditions imposed in this order and shall also be given pass or permit for movement to reach his place of residence;

Going ahead, it is then also pointed out in this judgment that, “In the event of violation of any of the terms and conditions of the order by the applicant, the prosecution is at liberty to seek cancellation of the bail granted to the applicant. Learned Panel Lawyer is directed to send an e-copy of this order to all the concerned including the concerned Station House Officer of the police station for information and necessary action. Registry is directed to send an e-copy of this order to the Court concerned for necessary compliance.”

Finally and before concluding, it is then held in the last para that, “It is made clear that this e-copy order be treated as Certified copy in terms of the advisories issued by the High Court from time to time.”

To conclude, it may be very rightly recalled that earlier the Madhya Pradesh High Court had directed few accused to register themselves as “COVID-19 Warriors” and work in the “COVID-19 Disaster Management”, as per directions of the concerned District Magistrate, as a pre-condition for bail. Similarly there have been some other such unique cases also. This latest judgment by Justice Rohit Arya of Madhya Pradesh High Court of releasing an accused on bail on condition of offering the woman to tie him rakhi is certainly unique and gives an opportunity to the accused to reform himself on a very light punishment due to which it is rightly in the headlines also!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Merely Because DNA Report Does Not Establish Paternity

In a well-balanced, well-analysed, well-worded and well-reasoned judgment delivered by a woman Judge named Justice Bharati Dangre of the Bombay High Court in a latest, landmark and laudable judgment titled Vaibhav Bhanudas Ubale Vs The State of Maharashtra in LD VC Dist Bail Application No. 34 of 2020 delivered just recently on July 24, 2020 has very rightly held that merely because the DNA report of a child born after a gang rape does not establish paternity of the accused, it does not mean that the accused can be released on bail. She thus rejected the bail application filed by one Vaibhav Ubale who is accused of raping a minor girl along with two others. A heinous and ghastly offence like gang rape cannot be taken lightly under any circumstances!

To start with, the ball is set rolling in para 1 where it is first and foremost observed that, “The applicant has been arrested in relation to FIR No. 194 of 2018 for the offences punishable under Section 376 of the IPC and Section 3, 4, 5(G), 5(J)(II), 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”). On investigation, charge-sheet vide no. 60 of 2019 has been filed in the Court of District and Special Judge, Pune on 25^th September 2019. The accused has been charged under Section 376(d) of IPC along with two other accused persons and also the relevant provisions of the POCSO Act.”

As it turned out, it is then mentioned in this same para 1 ahead about the applicant’s defence that, “The submission of the learned counsel for the applicant has been roped into the said offence without any rhyme and reason. The counsel placed heavy reliance on the DNA report of the child born out of the alleged act of sexual assault which do not trace the applicant as the father of the baby girl. The DNA report according to the learned counsel, sufficiently absolve the applicant of the act of sexual assault on the prosecutrix and since the charge-sheet is now filed, according to the applicant, a case is made out for grant of bail.”

To put things in perspective, it is then mentioned in para 2 that, “With the assistance of the learned counsel for the applicant, I have perused the charge-sheet which has been uploaded and also placed on record in physical form. The charge-sheet consists of a statement of the prosecutrix dated 9^th November 2018. The said statement is elaborate one and runs into 4 pages. The said statement is recorded after the prosecutrix delivered a baby girl on 6^th November 2018 and since her age at the time of the pregnancy was found to be below 18 years, the Koregaon Park Police station official had made inquiries with her mother. The statement was given by the prosecutrix in presence of her mother and member of the Women Vigilance Committee, Gulshan Arif Shaikh.”

While dwelling on the background and facts, it is then enunciated in para 3 that, “The prosecutrix had narrated her woes and stated that she and her mother were residing separately from her father on account of the frequent fights between the couple. Her mother was incurring the expenditure of the household by doing petty household work in the nearby area. The prosecutrix was pursuing her education in Morris High School Wadgaon Sheri when she was acquainted with one girl Shraddha. She happened to meet her again till both took admission in the same college in XI standard. She also became acquainted with another friend Apurva and it is these two girls who have stated in their statement to the police making reference to the date on which the incident took place.”

While continuing in the same vein and delving deeper, it is then stated in para 4 that, “When the prosecutrix was undergoing her 12^th Board examination in February-March 2018 and while her last paper was of subject Geography and the prosecutrix with her two friends were studying together at Shraddha’s house, shew as introduced to the applicant who was residing in the same locality. On the 3^rd day, when she was introduced to the applicant, her friends took her to his house. For some reason, the other two female friends left her alone in the company of the applicant and the applicant took advantage of the situation. His two male friends in a pre-planned manner arrived in his house with some drinking and eating stuff. The applicant offered the prosecutrix some drink like Thumbs up, which contained some substance which made her feel sleepy and dizzy. The applicant asked the prosecutrix to rest in the bed-room while her friends returned. It is then alleged that the applicant and his two friends committed rape on her. The prosecutrix had narrated the entire incident in great detail which include the specification about the location of the flat of the applicant and the clandestine manner in which the three friends arrived in his flat. Pertinent to note that this description completely matches with the spot panchnama which forms part of the charge-sheet.”

Be it noted, it is then observed in para 5 that, “Fearing the outcome of the act, the prosecutrix did not reveal the incident or the fact that she was pregnant, to her mother. It was only when she had pain in her stomach on 5.12.2018, her mother took her to the hospital and it was revealed to her that the prosecutrix is pregnant. When the police had arrived, the prosecutrix stated that the mother and the daughter were hesitant to report the incident to police and register an offence. However, one of the police personnel which she has described as ‘Sheikh’ tutored her to give a particular statement and on his instructions, she gave her first statement on 6.11.2018 where she implicated one Sony Tapkir and reported of an incident where she accompanied him in a car and where he established physical relation with her. According to the victim’s statement, she gave the earlier statement on the dictate of Shri Shaikh and even told her mother of the same incident. However, subsequently, she gave a detailed statement on 9.11.2018 in form of a supplementary statement on the basis of which FIR has been filed and charge-sheet has also been presented to the Special Court. The statement of two friends of the prosecutrix, support her version to the extent that they went to flat of the applicant but what happened inside the flat is not known to them. The prosecutrix was below 18 yrs of age at the time when the incident took place. She delivered a baby girl which has been forwarded to an orphanage and is leading her life there. The charge-sheet contain sufficient material against the applicant.”

Finally and perhaps most significantly, it is then held in para 6 that, “The case against the applicant is serious one of committing gang rape by three persons and taking advantage of a situation of a poor helpless victim girl. The applicant has indulged into an act of rape. The mere fact that the DNA report do not support the paternity is not a ground to release the applicant at this stage. There is every likelihood that he will pressurize the victim girl once being released on bail. The fact that he is a young boy itself is not sufficient to release him on bail, in light of the material collected by the investigating agency against him. No case for his release on bail is made out. The application is rejected.”

In conclusion, it must well be said that Justice Bharati Dangre of Bombay High Court has very rightly rejected the bail application of the applicant. Not just this, she has also very rightly given right reasons for doing so. She has rightly ruled that merely because DNA report of a child born after gang rape does not establish paternity of the accused, it cannot be construed to mean that the accused can be released on bail as a matter of right!

It is imperative to state here that in heinous crimes like gang rape, bail should not be given at the drop of a hat! A Judge must always in such cases of gang rape exercise his/her mind to the fullest and only then after weighing all the options should an opinion be formed as it will have a direct bearing on the case and the rape victim would be directly affected by it! Justice Bharati Dangre in this leading case too has also very rightly voiced her serious apprehensions about the applicant misusing his position once out on bail and harassing the victim girl. We see so many cases where the accused after getting bail have even burnt alive the rape victim and so in such cases there should be no question of extending bail to the accused as that could directly endanger the life of the rape victim as also her family! 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.

Use Of Social Media By Army Personnel Enables Enemies To Gain Edge

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Begging Before Someone To Stand As Surety

In a well-balanced, well-reasoned, well-analysed and well-articulated judgment, the Himachal Pradesh High Court in Abhishek Kumar Singh vs. State of Himachal Pradesh in Cr.MP(M) No. 1017 of 2020 delivered on July 30, 2020 has made it absolutely clear that even accused has a right to live with dignity. It also made it very clear that begging or pestering before someone to stand as a surety comes at the cost of pride and so the Courts while granting bail should give a choice to the accused to either furnish surety bonds or give a cash deposit. Very rightly so!

To start with, Justice Anoop Chitkara of Himachal Pradesh High Court who authored this latest, landmark and laudable judgment sets the ball rolling by first and foremost observing in para 1 that, “The petitioner, a permanent resident of West Bengal, who is under incarceration for more than six months for committing a white-collar crime, has come up before this Court, seeking regular bail.”

While elaborating on the FIR lodged, it is then pointed out in para 2 that, “Based on a complaint, the police arrested the petitioner on 10^th January 2020, in FIR No. 68 of 2019, dated 25.08.2019, registered under Sections 420, 120-B of Indian Penal Code, 1860 (IPC), in Police Station Nirmand, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offences.”

In hindsight, it is then pointed out in para 3 that, “Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 23.3.2020, Ld. Additional Sessions Judge, Kinnaur at Rampur Bushehar, HP, dismissed the petition, primarily because the amount involved is enormous and there is possibility of tampering the evidence.”

For the sake of clarity, it is then pointed out in para 4 that, “I have read the status report(s) and heard counsel for the parties, as well as Ld. Amicus Curiae.”

More seriously, while dwelling on the facts of the case, it is then noted in para 5 that, “Briefly, the allegations against the petitioner are that he made phone calls from various numbers to the complainant, befooled him to share one-time passwords (OTPs) received by him, and subsequently withdrew Rs. 9,87,000/- from his bank accounts.” Also, while mentioning about his previous criminal history, it is then stated in para 6 that, “As per status report, the petitioner has a similar case registered against him.”

Be it noted, it is then observed in para 15 that, “While deciding bail, the Courts cannot discuss the evidence threadbare. The difference between the order of bail and a final verdict is similar to a sketch and a painting. However, some sketches would be detailed and paintings with a few strokes.”

Interestingly enough, it is then laid bare in para 16 that, “The Police have recovered an amount of Rs. 78,000/- and after that, the accused is in judicial custody for the last more than six months.”

Crucially, it is then also made clear in para 17 that, “Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. The nature of the offence also does not restrict bail. Suffice it to say that due to the reasons mentioned above, this Court believes that further incarceration of the accused during the trial is neither warranted nor will achieve any significant purpose.”

Needless to say, it is then enunciated in para 18 that, “Without commenting on the merits of the case, the fact that the investigation is almost complete and the accused is in jail for a considerable period, coupled with the on going situation due to the Covid-19 pandemic, would make out a case for bail.”

To be sure, it is then stipulated in para 19 that, “The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions.”

Quite ostensibly, it is then rightly observed in para 20 that, “Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”

While explaining the drawbacks of bonds and simultaneously dwelling on the benefits of monetary bail, it is then envisaged in para 24 that, “It is beyond cavil that the sole purpose of a bond is to ensure presence of accused to attend the trial. In rapidly changing times, people travel more, covering long distances. It exposes them to the risk of being arraigned as accused in locations far away from native places. With unique identity details, monetary bail is even better. It would also address the unethical system of unscrupulous stock sureties, throwing them out of questionable practices.”

It would be pertinent to note that it is then palpably made clear in para 25 that, “Even the Legislature was aware of the menace of stock sureties and with a view to curb it, the Parliament, vide amendment of 2005, inserted S. 441-A CrPC, 1973 which read as follows:

441-A. Declaration by sureties. – Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.”

While applauding the legislature, it is then brought out in para 26 that, “In its farsightedness, the legislature kept provision for the situations when an accused does not find any surety or none is ready to stand surety for him, by incorporating S. 445 of CrPC, 1973, which reads as under:

S. 445. Deposit instead of recognizance. – When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond.”

While continuing in the same vein to further enhance the argument to do away with the sureties bond, it is then stated in para 27 that, “The world is passing through the 4^th technological revolution, with future unfolding before us and entering the internet of things. The database of AADHAR, PAN, and Passports ensures individuals’ identity, obsoleting the identification through sureties.”

Going forward, it is then brought out in para 28 that, “Siddhant Maniktala, in his paper ‘Relevance of sureties in criminal jurisprudence when every person in India has an identity’, (Supremo Amicus, Volume 17), writes, Aadhaar may replace surety bond as a means of getting bail because his identity has been established and with the personal data secured with the UIDAI, it will not be difficult to track down the accused in case of his fleeing from justice. It seems much important and a much crucial reform to liberalise bail laws in India. After the introduction of Aadhar, solely generated by UIDAI, (Unique Identification Authority of India) which is a unique identification proof of an individual, the need of surety for granting bail becomes debatable.”

More crucially, it is then rightly underscored in para 29 that, “The right to life guaranteed by Article 21 of India’s Constitution includes the right to live with dignity. Begging or pestering before someone to stand as a surety, comes at the cost of pride.”

No doubt, it is then rightly maintained in para 38 that, “The purpose of a cash bond is not to enrich the State’s coffers but to secure the accused’s presence. An Advocate is an officer of the Court and a vigilant watcher of the interest of her client. Owing allegiance to the Constitution of India and being a professional, it’s her onerous duty to apprise the accused of the existence of the provision of a cash deposit in the statute.”

Truth be told, it is then conceded in para 39 that, “We are already late in encouraging deposits in place of sureties. Cash surety improves the possibility of the accused’s attendance because she is aware that her money is safe and accruing interest on ED. It is further likely to motivate her not to default even once, in contrast to the handing over of cash to stock sureties, with hardly any assurance of its refund.”

Most crucially, it is then very rightly underscored in para 40 that, “Given the advent of online identification, the pragmatic approach is that while granting bail with sureties, the Court should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another, impliedly informing the accused of the existence of her right under S. 445 of Code of Criminal Procedure, 1973. Choosing between sureties and deposits, accused is the Queen and let her be.”

Equally significant if not more is what is then stated in para 43 that, “The Court has a formidable task of performing the tight rope locomotion by embarking on determination of the cash surety in consonance with the accused’s monetary status. It should not be such as to precipitate the misery on the poor accused and deprives her of personal liberty despite being admitted to bail.”

In conclusion, the long and short of this noteworthy judgment is that the surety system of securing bail comes at a great cost of pride of the accused who has to beg before someone to make him/her ready to stand as surety. A more feasible and far better option would be to allow accused to furnish cash deposits for securing bail! Also, it should be left on the accused as to what option he/she wants to exercise to secure bail! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Right To Property Is A Constitutional As Well As Human Right

In a well-balanced, well-reasoned, well-analysed and well-articulated judgment, a two Judge Bench of Supreme Court comprising of Justice Indu Malhotra and Justice Indira Banerjee in Hari Krishna Mandir Trust vs State of Maharashtra in Civil Appeal No. 6156 of 2013 delivered on August 7, 2020 reiterated that the right to property is still a constitutional and a human right. This was held so while allowing an appeal filed by Hari Krishna Mandir Trust in the matter of a land dispute with the Pune Municipal Corporation. Very rightly so!

To start with, this latest, landmark and laudable judgment authored by Justice Indira Banerjee for herself and Justice Indu Malhotra sets the ball rolling by first and foremost observing in para 1 that, “This appeal is against a judgment and order dated 15.09.2008 passed by a Division Bench of Bombay High Court dismissing Writ Petition No. 904 of 2008 filed by the appellant, challenging an order dated 3.5.2006, whereby the State Government refused to sanction modification of a Scheme under the provisions of Section 91 of the Maharashtra Regional and Town Planning Act, 1996, hereinafter referred to as “the Regional and Town Planning Act”.”

While discussing the facts of the case, it is then enunciated in para 2 that, “One Thorat family was the owner of Plot No. 1092 at Bhamburda in Pune. By a registered deed of conveyance dated 21.12.1956 one Mrs. Krishnabhai Gopal Rao Thorat sold the northern part of the plot admeasuring 4910 sq.m. jointly to Swami Dilip Kumar Roy, one of the most eminent disciples of Sri Aurobindo, and Smt. Indira Devi, daughter disciple of Swami Dilip Kumar Roy. The names of Swami Dilip Kumar Roy and Smt. Indira Devi were duly recorded in the relevant revenue records in 1959.”

Interestingly enough, it is then disclosed in para 3 that, “Swami Dilip Kumar Roy had moved to Pune to propagate the philosophy of Sri Aurobindo and established the Hare Krishna Mandir with his daughter disciple Smt. Indira Devi, on the land purchased from Mrs. Krishnabai Gopal Rao Thorat.”

To be sure, it is then disclosed in para 4 that, “According to the appellants, by an order dated 20.8.1970 of the Pune Municipal Corporation, Plot No. 473 which was originally numbered Survey No. 1092, was divided. Final Plot No. 473B was sub divided into 4 plots being plot Nos. 473 B1 comprising an area of 1025 square meters, 473 B2 comprising an area of 603.00 square meters, 473 B3 comprising an area of 2838 square meters and 473 B4, a private road admeasuring 414.14 square meters.”

Furthermore, it is then revealed in para 5 that, “Plot No. 473 B1 was owned by Mrs. Kanta Nanda, Plot No. 473 B2 by Mr. Premal Malhotra and Plot No. 473 B3 by Swami Dilip Kumar Roy and Smt. Indira Devi. Plot No. 473 B4, which was a vacant plot of land, was shown as an Internal Private Road measuring 444.14 Sq. mtr., in the possession of Swami Dilip Roy and Smt. Indira Devi and the holders of Plot Nos. 473 B1 and 473 B2, namely Mrs. Kanta Nanda and Mr. Premal Malhotra. It is not in dispute that the Pune Municipal Corporation was not mentioned in the order dated 20.8.1970.”

While continuing in the same vein, it is then stated in para 6 that, “On 20.8.1970 the City Survey Officer directed issuance of separate property cards in view of a proposed Development Scheme under the Regional and Town Planning Act which included Final Plot No. 473, and an Arbitrator was appointed. The Arbitrator made an Award dated 16.5.1972 directing that the area and ownership of the plots were to be as per entries in the property register.”

Going ahead, it cannot be overlooked that it is then explicitly mentioned in para 92 that, “From the records of the case, particularly the order dated 20.8.1970 of sub division of plot number 473B and the award of the arbitrator, it is patently clear that the name of Pune Municipal Commissioner was at no point of time reflected as holder of the private road. There is no whisper as to how the road came to be shown in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

Interestingly enough, it is then further revealed in para 93 that, “On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. Never belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were three plots 473B1, B2, B3 and 473B4 shown as vacant land held by the owners of all the three adjacent plots.”

Most significantly, it is very rightly underscored in para 96 that, “The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others, (2008) 4 SCC 644 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with law.”

To put things in perspective, the Bench very rightly makes it a point to put across in a forthright manner in para 98 that, “It has been established beyond any iota of doubt that the private road admeasuring 414 sq. meter area had never been acquired by the Pune Municipal Corporation. The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.”

As it turned out, the Bench then makes it clear in para 99 that, “In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by this Court in Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415. Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. V. State of Karnataka (2011) 9 SCC 1 even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a land holder of his land, without compensation. Statutory authorities are bound to pay adequate compensation.”

More crucially, the Bench then also makes it amply clear in para 107 that, “In the facts and circumstances of the instant case, in the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator. In our considered opinion, the Bombay High Court erred in law in dismissing the Writ Petition with the observation that the land in question had vested under Section 88 of the Regional and Town Planning Act.”

Equally significant is what is then stated in para 115 and para 116. Para 115 states that, “In the absence of any proceedings for acquisition or for purchase, no land belonging to the Appellant Trust could have vested in the State.” Para 116 further states that, “The High Court also erred in its finding that the modification proposed involved substantial alteration by deletion of a public road and was therefore impermissible. The modification only involved deletion of the name of Pune Municipal Corporation as holder of the private road. The finding that deletion of a public road is a substantial alteration is, for the reasons already discussed above, completely baseless.”

Be it noted, it is then observed in para 117 that, “The appeal is therefore allowed, and the judgment and order under appeal is set aside.”

Finally, it is then observed in the last para 118 that, “In exercise of our power under Article 142 of the Constitution of India to do complete justice between the parties, we direct the Respondent authorities to act in terms of the Award dated 16^th May, 1972 and delete the name of the Pune Municipal Corporation as owner of the private road in the records pertaining to the Scheme and carry out such other consequential alterations as may be necessary under Section 91 of the Regional and Town Planning Act. The appellant trust shall within a fortnight from the date of this order, give an undertaking to the Planning Authority not to obstruct access of adjacent plot owners through the private road in question. The necessary alteration or modification under Section 91, as directed above, shall be carried above, shall be carried out within six weeks from the date of furnishing of the undertaking by the appellant, as directed above.”

In essence, the key takeaway from this latest, landmark and extremely laudable judgment is that the two Judge Bench of Apex Court comprising of Justice Indu Malhotra and Justice Indira Banerjee has once again very firmly reiterated that right to property is a constitutional as well as human right. It is also made clear that the Executive has no right to deprive a person of his/her property without specific legal authority. 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.

Considerable Unexplained Delay By Drug Authorities

In a recent, remarkable and righteous decision titled Medipol Pharmaceutical India Pvt. Ltd. vs. Post Graduate Institute of Medical Education & Research in Civil Appeal No. 2903 of 2020 (arising out of SLP (C) No. 26349 of 2019) delivered on August 5, 2020 by a two Judge Bench of the Apex Court comprising of Justice RF Nariman and Justice Navin Sinha have observed categorically and convincingly that considerable unexplained delay on the part of drug authorities to test a sample can render any penalty under Drugs and Cosmetics Act, 1940, based upon the said analysis of the sample as void. The Court was considering an appeal filed by Medipol Pharmaceutical India Pvt. Ltd. which was blacklisted. The writ petition filed by this Medipol company before the Punjab and Haryana High Court was dismissed. But the Apex Court found the State order of blacklisting the company as arbitrary and therefore it set aside this blacklisting order and made it clear that while exercising its power to blacklist a company, the State has to act fairly and rationally without in any way being arbitrary. Very rightly so!

To start with, this latest, landmark and laudable judgment authored by Justice RF Nariman for himself and Justice Navin Sinha first and foremost after granting leave then goes on to observe in para 2 that, “Having heard learned counsel for the parties, it is important to first set out a few basic facts:

i) A notice inviting quotations was issued on 06.07.2015 by the Respondents herein for Clotrimazole Cream 1% 15 gm tube, the quantity being required for the first year and second year, being:

DEMAND QUANTITY REQUIRED

1^st YEAR 3400 tubes

2^nd YEAR 3400 tubes

ii) To this N.I.Q., the Appellant submitted its quotation on 09.07.2015, in which it was specified that the shelf life of the said cream would be only 2 years.

iii) After rates were negotiated and re-negotiated, a supply order was issued on 04.11.2015 in which it was clearly stated:

“8. Not more than 1/6^th of the shelf life would have expired when drug pharmaceuticals are received in medical store PGI, Chandigarh.”

iv) In accordance with the supply order, the first instalment of 1700 tubes of Clotrimazole Cream was supplied on 18.01.2016, there being no complaint whatsoever in respect of the said supply. However, when the second instalment of 1700 tubes of the self-same Cream was supplied to the Respondent on 08.04.2016, various complaints were made. The first Respondent drew samples on 29.11.2017, which samples were sent for testing to the Government Analyst under Section 25(1) of the Drugs & Cosmetics Act, 1940.

v) The first test report dated 27.03.2018 specifically stated that the sample was received on 26.12.2017. This report, which is dated a few days before the shelf life of the Cream expired, found that the sample was 61.96% w/w as against an acceptable standard of 95-105%.

vi) As a result thereof, two show cause notices were issued on 13.04.2018 and 30.5.2018 by the State Drugs Controller and Drug Inspector respectively to the Appellant in which the Appellant was asked to explain why its licence should not be suspended or cancelled under Rule 85(2) of the Drugs and Cosmetics Rules, 1945 made under the Drugs and Cosmetics Act, which relates to licence to manufacture this product.

vii) The Appellant replied to the show cause notices on 26.04.2018 and 01.06.2018. However, a third show cause notice was issued on 26.09.2018 by the Respondent in which the question as to blacklisting arose for the first time.

viii) The reply of the Appellant to this show cause notice dated 04.10.2018 specifically requested the authorities not to take any action until a final report of the appellate lab, which was pending, was received.

ix) However, without waiting for this report, on 21.01.2019, the Appellant was blacklisted for a period of 2 years. A perusal of this report would show that there are no reasons given for the same. Finally, the appellate lab test report of the Central Drugs Laboratory, Kolkata, dated 19.08.2019 tested a sample that was received on 11.02.2019, that is, long after the expiry date of the Cream, in April, 2018. Even this sample, when tested, yielded a result of 92.01% which is way above the 61.96% that was found in the first test report.

x) A post-decisional hearing, based on this report, was given to the Appellant, and it was then found that the blacklisting order was in order inasmuch as on 18.09.2019 the Drug Committee, which consisted of a Chairman, two Members, two Special Invitees, one Director and one Convenor, then expressed their views on the arguments of the Appellant stating, inter alia, that on testing, the subject drug was found to be only 61.96%, which is markedly below the prescribed standard limit of 95-105%.

xi) As against the decision then taken, the Appellant filed a writ petition in the Punjab & Haryana High Court, which was dismissed by the impugned order dated 17.09.2019. After extracting the appellate lab test report, the Court found that being 3% below 95%, which is the prescribed standard, there was no good ground to interfere with the impugned order of blacklisting.”

As a corollary, it is then stated in para 3 that, “What is clear from the narration of the facts stated above is that the Drug Inspector drew samples on 29.11.2017 which was long after supplies had been made to the Respondent on 08.04.2016 and complaints received. From the date of drawal of smaples on 29.11.2017 till the date on which the samples were received by the Government Analyst on 26.12.2017, there is yet another delay of almost one month. Also, owing to no fault of the Appellant, the sample that could be sent to the Central Drugs Laboratory, Kolkata, under Section 25(3) of the Drugs and Cosmetics Act, was received by the aforesaid Laboratory only on 11.02.2019, long after the expiry date of the goods in question, which was in April, 2018. Even this sample, when tested yielded a result of 92.01%, which is only roughly 3% below the required minimum standard. What is important to note is that the Government Analyst’s report was shown to be completely wrong. Finally, to cap it all, after a post-decisional hearing given to the Appellant, the seven-member Committee opined that there was no reason to recall the blacklisting order based on the result of the first laboratory test report, completely ignoring the appellate test report.”

To state the obvious, it is then stated in para 4 that, “On these facts, we find that the impugned decision reflected in the minutes dated 18.09.2019 is wholly perverse inasmuch as it is based only upon the first laboratory test report.”

To put things in perspective, para 5 then envisages that, “The High Court, instead of striking down this decision in judicial review proceedings, went into the appellate laboratory test report itself and stated that as it was 3% below the prescribed percentage of 95%, the blacklisting order ought not to be interfered with.”

As it turned out, the Bench then minces no words to state unambiguously in para 6 that, “The High Court ought not to have gone into the appellate laboratory test report by itself. It ought to have struck down the impugned decision on the ground that it relied upon something irrelevant, namely, the first laboratory test report and ignored the appellate report. The High Court ought also to have appreciated that the appellate laboratory report was at complete variance with the first laboratory test report – the variation being a huge figure of 30%. This was despite the fact that the appellate laboratory test report tested a sample of the Appellant’s product long after its shelf life had expired.”

Be it noted, it is then stipulated in para 12 that, “Though the aforesaid judgments pertain to criminal prosecutions under the Drugs and Cosmetics Act, Prevention of Food Adulteration Act and Insecticides Act, yet, they lay down that a valuable right is granted to a person who is sought to be penalized under these Acts to have a sample tested by the Government Analyst that is found against such person, to be tested by a superior or appellate authority, namely, the Central Drugs Laboratory. These judgments lay down that if owing to delay which is predominantly attributable to the State or any of its entities, owing to which an article which deteriorates with time is tested as not containing the requisite standard, any prosecution or penalty inflictable by virtue of such sample being tested, cannot then be sustained. We have seen that on the facts of this case, the sample drawn and analyzed by the Government Analyst was delayed for a considerable period resulting in the sample being drawn towards the end of its shelf life. Even insofar as the samples sent to the Central Drugs Laboratory, there was a considerable delay which resulted in the sample being sent and tested 8 months beyond the shelf life of the product in this case. It is thus clear that the valuable right granted by Section 25 of the Drugs and Cosmetics Act kicks in on the facts of this case, which would necessarily render any penalty based upon the said analysis of the sample as void.”

Finally and far most importantly, it is then held in para 15 that, “We have seen in the present case that the post-decisional hearing proved to be an eyewash as the seven-member Committee did not even refer to the findings of the appellate report, which showed that the Government Analyst’s report was wholly incorrect, 61.96% being widely off the mark. Given the fact that there is considerable unexplained delay on the part of the Drug authorities and the Respondent resulting in the first and second samples being tested late – the second sample being tested 8 months after its shelf life had expired – it is clear that the order of blacklisting dated 21.02.2019, as confirmed by the order dated 18.09.2019, is infirm and is therefore, set aside. Concomitantly, the impugned High Court judgment is also set aside.”

To conclude, the two Judge Bench of the Apex Court comprising of Justice RF Nariman and Justice Navin Sinha have very rightly held that considerable unexplained delay on the part of drug authorities to test a sample can render any penalty under the Drugs and Cosmetics Act, 1940, based upon the said analysis of the sample, as void. It has also remarkably put forth very cogent and convincing reasons for holding so as we have already noted above. The State must always adhere to what the Apex Court has held so rightly in this notable case and act fairly and rationally without in any way being arbitrary. Thus we see that the blacklisting order was so very rightly set aside here!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

MBA Degree Not Equivalent To PG Degree/Diploma In Human Resource Management

Just recently, a three Judge Bench of the Supreme Court in North Delhi Municipal Corporation Vs Kavinder and Others in Civil Appeal No. 232 of 2020 delivered on July 21, 2020 has observed that Master of Business Administration (MBA) degree is not equivalent to a post graduate degree or diploma in Social Work, Labour Welfare, Industrial Relations or Personnel Management. What can be surmised from this is what the top court held so clearly and convincingly in this very case that, “Tribunal was manifestly in error in holding that the candidate was qualified merely because he studied two subjects as a part of his MBA degree programme.” Very rightly so!

To start with, Dr Dhananjaya Y Chandrachud who authored this noteworthy judgment for himself, Justice Indu Malhotra and Justice KM Joseph of the Supreme Court sets the ball rolling by first and foremost observing in para 1 that, “The appeal arises from a judgment and order of the Division Bench of the High Court of Delhi dated 29 November 2016. The High Court has, in exercise of its jurisdiction under Article 226 of the Constitution, affirmed a judgment and order of the Central Administrative Tribunal at its Principal Bench at New Delhi, by which the first respondent was held to be qualified for appointment to the post of Labour Welfare Superintendent.”

While elaborating on the posts advertised, it is then stipulated in para 2 that, “An advertisement was issued for inviting applications for various posts in the Municipal Corporation of Delhi on a competitive basis. Among the posts that were advertised was that of a Labour Welfare Superintendent in the Municipal Corporation.. The qualification and experience required for the post were prescribed as follows:-

“Essential Qualifications:

(1) Degree of a recognized University or Equivalent.

(2) Experience in the field in responsible capacity of Labour Welfare/Industrial Relations/Personnel Management and/or in allied fields.””

To put things in perspective, it is then envisaged in para 3 that, “The selection process was conducted by the Delhi Subordinate Services Selection Board by way of written examinations. Even after the candidate had appeared for the examinations, the Board or the appellant retained the authority to cancel their candidature during the recruitment process, if she/he failed to meet the said eligibility criteria. The first respondent applied for the post and appeared in the examination conducted by the Board. He was provisionally short-listed for the Part II examination upon the declaration of the results of the Part I objective examination. He was, however, declared not to be eligible for selection.”

As a corollary, what followed next is then stated in para 4 that, “Aggrieved by his non-selection, the first respondent moved the Central Administrative Tribunal (CAT) contending that he fulfilled the eligibility requirements. The Tribunal, by its judgment and order dated 20 May 2016, came to the conclusion that the first respondent fulfilled the conditions of eligibility. The first respondent holds a B.Sc. degree from Maharshi Dayanand University, Rohtak and thus, satisfied the first condition of eligibility. With regard to the second condition, the Tribunal noted that the first respondent did not claim to have a degree or diploma in Social Work or Labour Welfare, but that as a student of the MBA degree programme of Maharshi Dayanand University, Rohtak, he had studied certain subjects which had a bearing on the eligibility requirements. Accepting the contention of the first respondent, the Tribunal held that he had studied Human Resource Management and Industrial Relations in the course of the MBA degree programme. It was on this basis that the first respondent was held to be eligible and having passed the competitive examination, a discretion was issued for his appointment to the post. This order of the Tribunal has been affirmed by the Division Bench of the High Court of Delhi while rejecting a writ petition instituted by the appellant.”

To be sure, it is then enunciated in para 5 is that, “The issue which falls for determination in the appeal is whether the first respondent fulfills the requirements of eligibility. The advertisement issued by the appellant specifies that the essential qualifications would consist of (i) a degree of a recognized University or equivalent; (ii) a post graduate degree/diploma in Social Work, Labour Welfare, Industrial Relations or Personnel Management or in any other allied subject of a recognized University/Institution or equivalent.”

After hearing both the sides, the Bench then, more significantly, goes on to add in para 8 that, “While assessing merits of the rival contentions, we must at the outset have due regard to the basis which has been adopted by the first respondent in support of his contention that he fulfills the eligibility requirements. The categoric position of the first respondent is that during the course of the MBA degree programme, he had studied the subjects of Human Resource Management and Industrial Relations and Labour Legislation. Having regard to this position, the issue which falls for determination is whether this would lead the Court to the conclusion that the first respondent fulfills the eligibility requirements. The eligibility requirements stipulated in the advertisement are that the candidate must have a post graduate degree or diploma in (i) Social Work; or (ii) Labour Welfare; or (iii) Industrial Relations; or (iv) Personnel Management; or (v) in any other allied subject of a recognized University/institution or equivalent.”

Most significantly, it is then made absolutely clear in para 9 that, “The first respondent completed the MBA degree programme from Maharshi Dayanand University, Rohtak. The mark sheets which have been relied upon by the first respondent indicate that during the course of the second semester, he studied Human Resource Management as a subject. In the fourth semester, the first respondent had a course in Industrial Relations and Labour Legislation. Studying these two subjects would not lead to the conclusion that the first respondent holds a post graduate degree or diploma in the disciplines which have been specifically spelt out in the advertisement or in any allied subject. The MBA degree cannot be regarded as allied to a post graduate or diploma in Social Work, Labour Welfare, Industrial Relations or Personnel Management. The recruitment was being made to the service of the appellant. The advertisement did not specifically provide how equivalence was to be established between a postgraduate degree/diploma in the subjects specified in the advertisement and a post graduate degree/diploma in an allied subject. The appellant as an employer was best suited to judge whether the degree of the first respondent was in an allied subject. Unless this assessment was perverse or contrary to the requirement prescribed, the Tribunal had no reason to interfere. We are of the view that the Tribunal was manifestly in error in holding that the first respondent was qualified merely because he studied two subjects as a part of his MBA degree programme, namely, Human Resource Management and Industrial Relations and Labour Legislation. The High Court has simply affirmed the view of the Tribunal.”

Finally, we then see that it is held in the last para 10 that, “For the above reasons, we are of the view that the findings which have been arrived at by the Tribunal and affirmed by the High Court are erroneous. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 29 November 2016. In consequence, OA No 1492 of 2013 filed by the first respondent before the Central Administrative Tribunal shall stand dismissed. However, in the circumstances of the case, there shall be no order as to costs.”

In conclusion, the three Judge Bench of the Apex Court has made it amply clear in this latest, landmark and laudable judgment that the Master of Business Administration (MBA) degree is not equivalent to a post graduate degree or diploma in Social Work, Labour Welfare, Industrial Relations or Personnel Management. It also minced just no words to convey in simple, suave and straight language that, ““Tribunal was manifestly in error in holding that the candidate was qualified merely because he studied two subjects as a part of his MBA degree programme.” Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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