Category: law and order

Independence and Fearlessness of Judiciary not only Expected from Superior Courts but also from District Judiciary

It is most pleasing, most heartening and most refreshing to learn that the highest court of India that is the Supreme Court has most recently on September 26, 2019 in a latest, landmark and extremely laudable judgment titled Krishna Prasad Verma (D) Thr. LRs Vs State of Bihar & Ors in Civil Appeal No. 8950 of 2011 has minced absolutely no words to underscore clearly, convincingly and categorically the independence, sanctity and fearlessness of judiciary. No nation can function smoothly where judiciary does not function independently. While quashing disciplinary action taken against a judicial officer, the Supreme Court took a strong and commendable stand that independence and fearlessness of judiciary is not only expected at the level of the superior courts but also from the district judiciary.  

                                       To start with, this extremely commendable judgment authored by Justice Deepak Gupta (oral) for himself and Justice Aniruddha Bose in its introductory part that is para 1 of this judgment sets the flow by first and foremost observing most rightly that, “In a country which follows the Rule of Law, independence of the judiciary is sacrosanct. There can be no Rule of Law, there can be no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected at the level of the Superior Courts but also from the District judiciary.” Who can deny this? All those who form a part of the District judiciary must also always bear this in mind while deciding cases!

                                       While continuing in the same vein and taking it further, it is then pointed out in para 2 that, “Most litigants only come in contact with the District judiciary. They cannot afford to come to the High Court or the Supreme Court. For them the last word is the word of the Magistrate or at best the Sessions Judge. Therefore, it is equally important, if not more important, that the judiciary at the District Level and at the Taluka level is absolutely honest, fearless and free from any pressure and is able to decide cases only on the basis of the facts on file, uninfluenced by any pressure from any quarters whatsoever.”

                                            To be sure, it is then further pointed out in para 3 that, “Article 235 of the Constitution of India vests control of the subordinate Courts upon the High Courts. The High Courts exercise disciplinary powers over the subordinate Courts. In a series of judgments, this Court has held that the High Courts are also the protectors and guardians of the judges falling within their administrative control. Time and time again, this Court has laid down the criteria on which actions should be taken against judicial officers. Repeatedly, this Court has cautioned the High Courts that action should not be taken against judicial officers only because wrong orders are passed. To err is human and not one of us, who has held judicial office, can claim that we have never passed a wrong order.”

                                           It is remarkable to note that the top court in this extremely landmark judgment has very candidly admitted in para 3 that to err is human and made it amply clear that no Judge of Supreme Court also can claim that he/she has never passed a wrong order! This is really laudable and all Judges even of the Supreme Court and even the Chief Justice of India must always remember this! There can be no denying it!

                                       Needless to say, it is then also however, made absolutely clear in para 4 that, “No doubt, there has to be zero tolerance for corruption and if there are allegations of corruption, misconduct or of acts unbecoming a judicial officer, these must be dealt with strictly. However, if wrong orders are passed that should not lead to disciplinary action unless there is evidence that the wrong orders have been passed for extraneous reasons and not because of the reasons on the file.”

                                 Briefly stated, it is then held in para 5 that, “We do not want to refer to too many judgments because this position has been laid down in a large number of cases but it would be pertinent to refer to the observations of this Court in Ishwar Chand Jain Vs. High Court of Punjab & Haryana and another, (1988) 3 SCC 370, wherein this Court held as follows:

“14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Having regard to facts and circumstances of the instant case we have no doubt in our mind that the resolution passed by the Bar Association against the appellant was wholly unjustified and the complaints made by Shri Mehlawat and others were motivated which did not deserve aany credit. Even the vigilance Judge after holding enquiry did not record any finding that the appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments.””     

                                          As a corollary, it is then laid down in para 6 that, “Thereafter, following the dicta laid down in Union of India & Ors. Vs. A.N. Saxena, (1992) 3 SCC 124 and Union of India & Ors. Vs. K.K. Dhawan, (1993) 2 SCC 56, this Court in P.C. Joshi Vs State of U.P. & Ors. (2001) 6 SCC 491, held as follows:

“7. In the present case, though elaborate enquiry has been conducted by the enquiry officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The enquiry officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best, he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawan case and A.N. Saxena case that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case.””

                                      While endorsing this again, it is then pointed out in para 7 that, “In Ramesh Chander Singh Vs. High Court of Allahabad & Anr. (2007) 4 SCC 247, a three-judge Bench of this Court, after considering the entire law on the subject, including the authorities referred to above, clearly disapproved the practice of initiating disciplinary proceedings against the officers of the district judiciary merely because the judgment/orders passed by them are wrong.”

                                       More importantly, it is then made clear in para 8 that, “No doubt, if any judicial officer conducts proceedings in a manner which would reflect on his reputation or integrity or there is prima facie material to show reckless misconduct on his part while discharging his duties, the High Court would be entitled to initiate disciplinary cases but such material should be evident from the orders and should also be placed on record during the course of disciplinary proceedings.”

                                    On a different note, it is then pointed out in para 9 that, “Coming to the facts of this case there are two charges against the appellant, who was a judicial officer. The charges are as follows:

                                     CHARGE-1

“You, Sri Krishna Prasad Verma while functioning as Additional Distt. & Sessions Judge, Chapra granted bail to M/s Bishwanath Rai and Pradeep Rai on 11.7.2002 in S.T. No. 514 of 2001 arising out of Chapra (M) Khatra P.S. Case No. 453/2000 registered U/s 302/34 I.P.C. notwithstanding the fact that the bail petitions of Bishwanath Rai was earlier rejected by this Hon’ble Court vide order dated 27.3.2001 and 4.7.2001 passed in Cr. Misc. No. 34144/2000 and 15626/2001 respectively, that of Sheo Nath Rai vide order 13.2.2001 and 26.11.2001 passed in Cr. Misc. No. 3387/2001 and Cr. Misc. No. 30563/2001 respectively and that of Pradeep Rai vide order dated 28.2.2001 passed in Cr. Misc. No. 3599/2001.

The aforesaid act on your part is indicative of some extraneous consideration which tantamount to gross judicial impropriety, judicial indiscipline, lack of integrity, gross misconduct and an act unbecoming of a Judicial Officer.

                                    CHARGE-2

You, Sri Krishna Prasad Verma while functioning as Additional District and Sessions Judge, Chapra with an intent to acquit Raju Mistry, the main accused in N.D.P.S. Case No. 15/2000 arising out of Revealganj P.S. Case No. 137/2000 (G.R. No. 1569 of 2000) registered under sections 22, 23 and 24 of the Narcotics Drugs and Psychotropic Substances Act, 1985 closed the proceeding in great haste resulting in acquittal of Raju Mistry, who was charged of driving a Jeep bearing No. W.B.C. 4049 carrying 90 Kg. Charas, without exhausting all coercive methods to record the statement of the Investigating Officer of the case as there is no proof on the record to show that the non-bailable warrant issued against the said Investigating Officer was ever served on him.

The aforesaid act on your part is indicative of some extraneous consideration which tantamount to gross judicial impropriety, judicial indiscipline, lack of integrity, gross misconduct and an act unbecoming of a Judicial Officer.””

                                    To put things in perspective, it is then elaborated upon in para 10 that, “As far as the first charge is concerned, a major fact, which was not considered by the enquiry officer, the disciplinary authority as well as the High Court was that the Additional Public Prosecutor, who had appeared on behalf of the State had not opposed the prayer of the accused for grant of bail. In case, the public prosecutor does not oppose the bail, then normally any Judge would grant bail.”

                                What’s more, it is then stated in para 11 that, “The main ground to hold the appellant guilty of the first charge is that the appellant did not take notice of the orders of the High Court whereby the High Court had rejected the bail application of one of the accused vide order dated 26.11.2001. It would be pertinent to mention that the High Court itself observed that after framing of charges, if the non-official witnesses are not examined, the prayer for bail could be removed, but after moving the Lower Court first. The officer may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct. It would be pertinent to mention that the enquiry officer has not found that there was any extraneous reason for granting bail. The enquiry officer virtually sat as a court of appeal picking holes in the order granting bail.”

                                           Be it noted, it is then illustrated in para 12 that, “It would be important to mention that it seems that later it was brought to the notice of the appellant that he had not taken note of the order of the High Court while granting bail on 11.07.2002. Thereafter, he issued notice to all the three accused on 23.08.2002 i.e. within less than two months and cancelled the bail granted to all the three accused on 11.07.2002. If he had made the mistake of not seeing the whole file, on that being brought to his notice, he corrected the mistake. After the appellant cancelled the bail and the accused were again arrested, they again applied for bail and this bail application was rejected by the appellant on 18.12.2002.”

                                 What we then see being unearthed is pointed out in para 13 that, “After rejection of the bail application of the accused, two out of three accused moved the High Court. The High Court granted bail to one of the accused and the bail application of the other was rejected, not on merits but on the ground that he did not disclose the fact that he had earlier moved the High Court for grant of bail. This itself is clear indicator of the fact that probably even the order passed by the appellant is not an incorrect one.”

                                 Moving on, it is then further pointed out cogently in para 14 that, “Coming to the second charge, which is under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS”). On 18.07.2002 the appellant, a Special Judge, closed the evidence of the prosecution which resulted in material witnesses not being examined and consequently the accused was acquitted. As far as this obligation is concerned, the enquiry officer on the basis of the statements of two clerks of the Court has made lengthy observations that the appellant did not send any communication to the Superintendent of Police, the District Magistrate and other authorities to ensure the production of the witnesses. According to the enquiry officer, this being a serious matter, the evidence should not have been closed and the appellant should have made efforts to approach the senior officials to get the witnesses produced. The Code of Criminal Procedure or the NDPS Act do not provide for any such procedure. It is the duty of the prosecution to produce the witnesses. Even in this case, interestingly, the Public Prosecutor had made a note on the side of the daily order-sheet that he is unable to produce the witnesses so the evidences may be closed. We fail to understand how the appellant has been hanged whereas no action has been taken or recommended against the Public Prosecutor concerned. We are constrained to note that the enquiry officer, while conducting the enquiry, has noted, while considering the arguments of the delinquent official, that he had raised a plea that he closed the evidence because the Public Prosecutor had made the statement, but while holding the appellant guilty of misconduct no reference has been made to the statement of the Public Prosecutor.”

                           Interestingly enough, it is then enunciated in para 15 that, “We may also note that the case of the appellant is that he had given 18 adjournments for production of the witnesses to the prosecution in the NDPS case. Such a judicial officer is between the devil and the deep sea. If he keeps on granting adjournments then the High Court will take action against him on the ground that he does not dispose of his cases efficiently and if he closes the evidence then the High Court will take action on the ground that he has let the accused go scot-free. That is not the purpose of Article 235 of the Constitution of India. That is why we again repeat that one of the responsibilities of the High Court on the administrative side is to ensure that the independence of the District judiciary is maintained and the High Court acts as a guardian and protector of the District judiciary.”

                         More consequentially, it is then enunciated in para 16 that, “We would, however, like to make it clear that we are in manner indicating that if a judicial officer passes a wrong order, then no action is to be taken. In case a judicial officer passes orders which are against settled legal norms but there is no allegation of any extraneous influences leading to the passing of such orders then the appropriate action which the High Court should take is to record such material on the administrative side and place it on the service record of the judicial officer concerned. These matters can be taken into consideration while considering career progression of the concerned judicial officer. Once note of the wrong order is taken and they form part of the service record these can be taken into consideration to deny selection grade, promotion etc., and in case there is a continuous flow of wrong or illegal orders then the proper action would be to compulsorily retire the judicial officer, in accordance with the Rules. We again reiterate that unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinary proceedings should not be initiated merely on the basis that a wrong order has been passed by the judicial officer or merely on the ground that the judicial order is incorrect.”

                               Finally, it is then held in the last para 17 that, “In view of the above discussion, we allow the appeal, set aside the judgment of the High Court and quash all the orders passed against the delinquent officer. He is directed  to be given all consequential benefits on or before 31.12.2019. The appeal is allowed with costs of Rs 25,000/-.”

                                       In summary, it is a very well written judgment which leaves no room for doubt whatsoever! All the Judges of the District Judiciary must abide in letter and spirit what has been held so rightly and brilliantly in this extremely landmark judgment by the top court! All the Superior Courts must also follow it and respect the District judiciary as directed in the said order!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Rights of Victims and Society at Large not Subservient to Rights of Accused

It has to be said right at the outset that a two Judge Bench of the Apex Court comprising of Justice Navin Sinha and Justice BR Gavai just recently on October 4, 2019 in Fainul Khan vs State of Jharkhand and another in Criminal Appeal No(s). 937 of 2011 with Criminal Appeal No(s). 938 and 939 of 2011 has very rightly maintained that the rights of victim and society at large cannot be subservient to rights of accused. The accused certainly has the right to get a fair trial but what also cannot be denied is that the rights of victim and society at large cannot be accorded any inferior position. There has to be a fair and proper balance between the rights of victim and society at large on the one hand and the rights of the accused on the other hand.

                                     To start with, this notable judgment authored by Justice Navin Sinha for himself and Justice BR Gavai first and foremost set the ball rolling by pointing out in para 1 that, “The appellants are aggrieved by their conviction under Section 302/149 of the Indian Penal Code (IPC) sentencing them to rigorous imprisonment for life, along with conviction under Sections 323/149 and 147 IPC, sentencing them to varied terms of imprisonment under the same. The sentences have been directed to run concurrently.” The appellants had high hopes that their sentence would be reduced. This alone explains why they preferred this appeal!

                                        To recapitulate, it is then unfolded in para 2 that, “The occurrence is said to have taken place on 01.11.1983 at about 06.30 PM. The accused were variously armed with spears and lathis. P.W.7 and 8 are stated to be injured eye witnesses. P.W.6 also claimed to be an eye witness. The police report was lodged by P.W.8 at the hospital.”

                             While presenting the appellant’s version, it is then pointed out in para 3 that, “Learned Senior Counsel Shri Sidharth Luthra making the lead arguments on behalf of the appellants submitted that charge was framed under Sections 302/149 and 323/149 IPC against six persons. But the charge framed under Section 147 was defective being against four persons only and without the aid of Sections 141 and 146. It was next submitted that the appellants have been seriously prejudiced in their defence because proper opportunity to defend was denied under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) as the incriminating questions put to them were extremely casual and perfunctory in barely two pages. All relevant questions with regard to the accusations were not put to the appellants, denying them the opportunity to present their defence. It cannot be considered as a mere irregularity, to hold that no prejudice has been caused to the appellants. Emphasising the inconsistencies in the prosecution evidence it was submitted that P.W.7 claims lathi injury on his thigh and leg, but P.Ws6 and 8 are silent on the role of appellant Fainul Khan, and appellant Mir Shaukat is stated to have assaulted on the thigh of P.Ws.6 and 7 when according to the F.I.R. he hit on the head of P.W.8. Reliance in support of the submissions was placed on Masalti vs. State of U.P., AIR 1965 SC 202, Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 and Samsul Haque vs. State of Assam, (2019) SCC Online 1093; 2019 (11) SCALE 458.”

                                     Furthermore, para 4 says that, “It was next submitted that P.W.6 was not an eye witness to the assault. He had arrived upon hearing the commotion after the appellants had left and the deceased was lying on the ground. P.W.6 also does refer to the presence of P.W.7 at the place of occurrence.” Also, para 5 then states that, “The evidence of P.Ws 6 and 8 to be injured eye witnesses was also challenged in absence of any injury report with regard to them. False implication of the appellants could not be ruled out in view of previous enmity having been admitted by the prosecution witnesses. P.W.8 deposed that the deceased was assaulted on his head from behind and fell on his face, but no facial injury has been found on the deceased.”

                                  Not stopping here, it is then illustrated in para 6 that, “The deceased was assaulted with a spear by accused Siddiq and Zabbar. The allegations of assault by the appellants on the deceased with a lathi are omnibus, since only one bruise has been found on the upper arm. There existed no common object because in that event nothing prevented the appellants from individual assaults each on a sensitive part of the body of the deceased, such as the head. Alternatively, the three appellants at best may be liable for a lesser offence relying on Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh and Ors., (2017) 3 SCC 261.”

                                   On the contrary, it is then pointed out in para 7 that, “Learned counsel for the State submitted that there was no lacunae in the examination of the accused under Section 313 Cr.P.C. In any event the appellants have not been able to demonstrate any prejudice. Moreover this objection cannot be raised at the present belated stage when it had not been raised at any earlier stage. Reliance was placed on Shobhit Chamar vs. State of Bihar, (1998) 3 SCC 455 and Fahim Khan vs. State of Bihar, (2011) 13 SCC 142.”  

                                     What’s more, it is then argued on behalf of the State by the learned counsel in para 8 that, “The absence of any injury report with regard to P.Ws.7 and 8 may at best be a case of defective investigation. It cannot discredit them as injured eye witnesses in view of the nature of their oral evidence and that of P.W.11, the officer-in-charge of the Kisko police station where the deceased and the injured were taken for treatment. There are concurrent findings with regard to the presence of the appellants. There is ample evidence of the appellants sharing a common object with the co-accused.”

                                After hearing both the parties, it is then observed by the Bench in para 9 that, “We have considered the submissions on behalf of the parties as also perused the materials on record. Originally there were six accused. Two of them have since been deceased and the fate of one is not known. Section 464, Cr.P.C provides as follows:-      

        “464. Effort of omission to frame, or absence of, or error, in charge. – (1) No finding, sentence or order by a Court of competent jurisdiction shall be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

                                          xxx”

The appellants were well aware that six of them were charged together for a common assault under Sections 302/149 and 323/149 because of their sharing a common object. The appellants were also aware that two of the accused were carrying a deadly weapon, spears, and which were used for assault. We are therefore of the considered opinion that no prejudice has been caused to the appellants and the omission by the court in framing charge under Section 147 alone against four persons only was a mere inadvertent omission. The presence of one bruise injury on the deceased is also not considered relevant in the facts of the case. The objection about a defective charge, without any evidence of the prejudice caused, has been raised for the first time in the present appeal and for that reason also merits no consideration.”  

                                    Be it noted, it is then envisaged in para 10 that, “P.W.8 and the deceased were going together when they were surrounded and assaulted by the accused persons. We do not find any lacunae in the evidence or cross-examination of the witness to doubt his presence and the injuries suffered by him in the same occurrence. P.W.7, a resident of the locality and an independent witness also suffered injuries during the same occurrence. However, we are not satisfied that P.W.6 is an eye witness. The witness was at home and reached the place of occurrence after hearing the commotion by which time the deceased was lying on the ground. P.W.7 deposed that P.W.6 reached after him. P.W.7 deposed of assault by appellant Sainul upon P.W.8 with lathi and also upon the witness himself by appellants Fainul and Mir Shaukat causing injuries on his head and right hand. Appellant Mir Shaukat is also stated to have assaulted the witness on his thigh with lathi. P.W.8 deposed that the accused surrounded him and the deceased. Appellant Sainul assaulted the deceased on the head. The witness was assaulted on his face, head and hand with the lathi. Both the witnesses deposed that they were then taken to the hospital along with the deceased where their injuries were examined. P.W.8 during the course of his deposition also showed the scars caused to him by his injuries, noticed by the trial judge. The statement of the two witnesses is also stated to have been recorded at the hospital. The fact that there is no injury report, in our opinion, can at best be classified as a defective investigation but cannot raise doubts about the credibility of their being injured witnesses in the same occurrence. The fact that P.W.8 may be related to the deceased or previous enmity existed, are irrelevant in the facts of the case. P.W.11, the officer-in-charge of the Kisko police station where the deceased and injured were taken, has specifically deposed that he submitted a request for the injury report of the witnesses and pursuant to which their injury reports were made available to him. Only thereafter was the charge sheet submitted by him. We do not find any material in his cross-examination to discredit his statements.”  

                                           Briefly stated, para 11 then brings out that, “Section 313, Cr.P.C. incorporates the principle of audi alteram partem. It provides an opportunity to the accused for his defence by making him aware fully of the prosecution allegations against him and to answer the same in support of his innocence. The importance of the provision for a fair trial brooks no debate.”

                                 While adding a caveat, it is then very rightly enunciated in para 12 that, “But equally there cannot be a generalized presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to an accused thereunder. Ultimately it will be a question to be considered in the facts and circumstances of each case including the nature of other evidence available, the kind of questions put to an accused, considered with anything further that the accused may state in his defence. In other words, there will have to be a cumulative balancing of several factors.”

                           Most importantly, it is then very rightly underscored further in this same para 12 that, “While the rights of an accused to a fair trial are undoubtedly important, the rights of the victim and the society at large for correction of deviant behaviour cannot be made subservient to the rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial.”

                                    Needless to say, it is then also clarified in para 13 that, “In the facts of the present case, considering the nature of ocular evidence available of the injured witnesses P.Ws.7 and 8 who have also been cross-examined by the appellants, and the evidence of P.W.11, we are of the considered opinion that no prejudice has been caused to the appellants. A specific question was put to the appellants that they participated in an unlawful assembly with the common object of murdering the deceased. Further, it was also put to them that they had caused injuries to P.W.7 and 8. Merely because no questions were put to the appellants with regard to the individual assault made by each of them, it cannot be said in the facts of the case that any prejudice has been caused to them.” It is also made clear in this same para further that, “The appellants did not offer any explanation or desire to lead evidence except for stating that they had been falsely implicated.”

                               It would be imperative to now mention that it is then stated in para 17 that, “In view of the above discussion we regret our inability to consider the alternative submission of Shri Luthra. The appellants were undoubtedly the members of an unlawful assembly some of whom were also armed with spears and assaulted the deceased. All the accused surrounded the deceased obviously to prevent his escape. The initial assault was made on the head of the deceased with the lathi by appellant Sainul. The deceased fell down and when he was trying to stand up, he was assaulted by two persons with spears. P.W.7 was assaulted on the head by appellant Fainul. In the fracas the fact that the assault by appellant Mir Shaukat landed on the thigh of the witness is not of much relevance. Likewise, P.W.8 was assaulted by appellant Sainul on the face and head. The fact that the co-accused may have assaulted on the head again cannot be considered very relevant to eschew the absence of common object.”

                                     Finally, it is then held in the last para 18 that, “We, therefore, find no reason to interfere with the conviction of the appellants. The appeals are dismissed. The appellants are stated to be on bail. Their bail bonds are cancelled and they are directed to surrender forthwith to serve out remaining period of sentence.”

                                             We thus see that the appellants appeals fail to find any favour with the top court. We also see that the Bench gives fair and adequate reasons for rejecting their appeals. So their bail bonds also stand cancelled! They have now no option but to surrender forthwith and serve out the remaining period of sentence which is indispensable now!  

                                              To sum up, it is a very well balanced and well written judgment which makes it absolutely clear that while it is true that the accused has a right to get a fair trial which is very important also but what is equally important is that the rights of the victim and also the society at large for correction of deviant behaviour cannot be made subservient to the rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial. There has to be a proper balance which is what has been underscored also very aptly by the top court in this noteworthy case also! Very rightly so!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Businesses that are majorly affected!!!

In the pandemic situation where the world seeks a miracle of vaccines, there are many business that came to halt or even they are going to be shut soon. Currently the major task of ours is to stop the spreading of corona virus. It is wisely said “If there is Health there is Wealth”. First we need to cope up with the pandemic situation and then business can be again built, if we stay alive.

CNBC Global CFO survey says that 40% of the business are facing the problem in transportation of the goods and it is expected that it would take more 5-6 months to start and run normally (25% of them said 6 months and other would take a long than that).

intermodal container stacked on port
Photo by Samuel Wölfl on Pexels.com

 

 “Nobody knows. The economic issues are totally driven by public health issues. You tell me how long we will be at home and I will tell you how long it will take for the economy and supply chains to recover.”

-words of Yossi Sheffi, Professor at Massachusetts Institute of Technology and the director of the MIT Center for Transportation and Logistics. Yossi Sheffi further says, if we want to build our business again as soon as possible than there is only one way out to do this and that is to join the war again corona virus and defeat it as early as possible, this epic war is started by many of the companies with their different types of help they can provide, like wise:

  • Auto manufacturers like Tesla and GM motors are providing ventilators to the hospital.

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(Image source: LosAngelesTimes)

  • Apple and Facebook are the largest in supplying protective mask in the U.S.

woman in face mask using smartphone
Photo by Anna Shvets on Pexels.com

  • HanesBrands in contract with US federal government has decided to make cotton mask when the use of N-95 mask will be minimum. They decided to make 1.5 million mask weekly, and further if needed can go upto 5-6 million mask per week.

close up of face masks
Photo by Karolina Grabowska on Pexels.com

The supply chain is completely disturb there is over manufacturing as there is no one to load and unload the trucks. Border shipping is still allowed but shipping through overseas it still a major concern. There will be also huge disturb in supply chain of for pre-planned Indian weddings, as now weddings are postponed or might be done in simple way, the business related to it like party plots, wedding photographers, ca tress, decorators, wedding materials, transportation, apparels and even small-small business related to it. A single event covers many business so all the business are affected largely.

group of people gathering inside room
Photo by Vireshstudio photographer on Pexels.com

 

The business of theater and restaurant are also at halt, which may cause a major set back as there are many of the workers working in restaurant it self. In film industry too many of the workers are engaged.

 

 

 

 

 

 

State Legislature Cannot Enact Law Providing Direct Appeal To Supreme Court

Without mincing any words, it has been held very categorically and convincingly by the Apex Court in HS Yadav vs Shakuntala Devi Parakh in Civil Appeal No(s). 5153 of 2019 most recently on October 15, 2019 that a State Legislature cannot enact a law providing an appeal directly to the Supreme Court of India. All the States are bound to comply with this latest, landmark and extremely laudable judgment. The Bench comprising of Justice Deepak Gupta and Justice Aniruddha Bose struck down Section 13(2) of Chhattisgarh Rent Control Act, 2011, in so far as it provides an appeal directly to the Supreme Court, holding explicitly that the same is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature.

                                          To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice Deepak Gupta for himself and Justice Aniruddha Bose by first and foremost observing that, ““Whether the State Legislature can enact a law providing an appeal directly to the Supreme Court of India?” is the question arising in this appeal.” The entire judgment, therefore, revolves rightly around this moot question. Very rightly so!

                                 To be sure, it is then envisaged in para 3 that, “Section 13 of the Act provides for an appeal against orders of the Rent Controller and the Tribunal. It reads thus:-

“13. Appeal.-(1) Notwithstanding anything to the contrary contained in this Act, a landlord and/or tenant aggrieved by any order of the Rent Controller shall have the right to appeal in the prescribed manner within the prescribed time to the Rent Control Tribunal.

(2) Appeal against an order of the Rent Control Tribunal shall be with the Supreme Court.”

                                   Needless to say, it is then pointed out in para 4 that, “A bare perusal of Section 13 shows that from any order of the Rent Controller an appeal lies to the Rent Control Tribunal and in terms of Section 13(2), an appeal lies as a matter of right to the Supreme Court.”

                                        What follows next is as mentioned in para 5 that, “When the present appeal, filed under Section 13(2) of the Act, came up for admission, while issuing notice we had also ordered as follows:-

            “xxx                   xxx                      xxx

Notice be given to the learned Advocate General of the State of Chhattisgarh and the learned Attorney General for India as to whether the provisions contained in Section 13(2) of the Chhattisgarh Rent Control Act, 2011 providing for an appeal to the Supreme Court of India against the order of the Rent Control Tribunal, Chhattisgarh would be within the legislative competence of the State Legislature.

              xxx                  xxx                           xxx””    

Para 6 then further states that, “Pursuant to the notice, learned Attorney General has appeared and assisted the Court.”

                                As it turned out, it is then noted in para 7 that, “At the outset, we would like to point out that the Tribunal has been constituted in exercise of the powers vested in the State Legislature under Article 323B of the Constitution of India which deals with tribunal for other matters. Sub-clause (h) of Clause (2) of the said Article which empowers the appropriate legislature to constitute a tribunal to deal with the issues relating to rent and its regulations read as follows:-

“323B. Tribunals for other matters:-

(1)     xxx                        xxx                        xxx

(2) The matters referred to in clause (1) are the following, namely:-

         xxx                        xxx                         xxx

(h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants:”

                              Of course, it is then clarified in para 8 that, “It is not in dispute before us that the State has the power to constitute the Tribunal. The only issue is whether in terms of Section 13(2) of the Act, the State Legislature could provide an appeal as a matter of right from the order of the Tribunal to the Supreme Court.”

                                        What’s more, it is then laid down in para 9 that, “Article 246 of the Constitution specifically provides that Parliament has exclusive powers to make laws in respect of matters enumerated in List I (Union List) of the Seventh Schedule. As far as the Concurrent List, i.e. List III is concerned, both the Union and the State have the power to enact laws but if the field is occupied by any law enacted by Parliament then the State cannot legislate on the same issue.”

                                      Simply put, it is then made clear in para 10 that, “Entry 77 of List I of the Seventh Schedule reads as under:-

“77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practice before the Supreme Court.”

Entry 77 gives power to the Union in respect of jurisdiction and the powers of the Supreme Court. This power cannot be exercised by the State Legislature.”     

                                  While continuing in the same vein, it is then enunciated in para 11 that, “It would also be apposite to refer to Entry 65 of List II of the Seventh Schedule, which reads as follows:-

“65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.”

A bare reading of Entry 65 clearly indicates that the State Legislature has no power to enact any legislation relating to jurisdiction and power of the Supreme Court. This power is specifically excluded.”

                                   Be it noted, para 12 then lays bare that, “Entry 46 of List III of the Seventh Schedule is also relevant. This reads as follows:-

“46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list.”

Even Entry 46 makes it clear that as far as the jurisdictional powers of the Supreme Court are concerned, they cannot be exercised under the Concurrent List. Therefore, the powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there. However, the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have.”

                                 More importantly, it is then observed unambiguously in para 13 that, “We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of Courts. As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded.”

                                  Equally important is what is spelt out in para 14 that, “We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature. Section 13(2) of the Act is accordingly struck down.”     

                                     A key point is then made in para 15 that, “While dealing with the issue, we may make reference to the fact that the Rent Control Tribunal is a tribunal constituted under Article 323B of the Constitution.”

                             While referring to a landmark case of the past, it is then revealed in para 16 that, “In L. Chandrakumar vs. Union of India (1993) 4 SCC 119, this Court clearly held that tribunals constituted under Articles 323A and 323B of the Constitution are subject to the writ jurisdiction of the High Courts. In view of the law laid down in L Chandrakumar’s case (supra), the High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution against the orders of the Rent Control Tribunal.”

                                    Finally and no less importantly, it is then held in the last para 17 that, “In view of the above, we hold that an appeal under Section 13(2) of the Act directly to the Supreme Court is not maintainable. We, therefore, dismiss this appeal. However, we keep it open to the appellant to approach the High Court for redressal of his grievance under Article 227 of the Constitution. If the appellant does so, the High Court shall decide the matter strictly in accordance with law. Pending application(s) if any, stand(s) disposed of.”

                                         No doubt, on a concluding note, it has to be said that it is a very well written and well reasoned judgment which deserves unqualified appreciation. All the State Legislatures must always keep in mind in similar such cases what the Apex Court has so very rightly laid down in this case also  so elegantly, eloquently and effectively! As a corollary, no denying that it must always be ensured by all the State Legislatures that no law should be enacted which provides direct appeal to the Supreme Court in such cases  as  has  been  very held in this case!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Absence Of Injury On Prosecutrix Implies Her Consent For Sex

In a clear, categorical and convincing observation, the Punjab and Haryana High Court in Union Territory, Chandigarh v Amit Kumar @ Rachu and others in CRM-A No. 1887-MA of 2017 (O&M) delivered just recently on October 16, 2019 minced no words in observing that absence of injury on the person of the prosecutrix would lead to an inference that she was a consenting party to sexual intercourse. The Punjab and Haryana High Court in this notable case refused to grant Leave to Appeal against the judgment of acquittal in a rape case. It has thus been made absolutely clear by the Punjab and Haryana High Court in this latest, landmark and extremely laudable judgment that to attract the offence of rape, the victim should not be a consenting party to a sexual intercourse and absence of injury on the person of the prosecutrix would palpably lead to the logical conclusion that she too was a consenting party and therefore rape charges would not be attracted in such case!

                 CRM No. 27600 of 2017

                                                      To start with, this noteworthy judgment authored by Justice Jaswant Singh for himself and Justice Lalit Batra of Punjab and Haryana High Court at the very outset points out that, “Present application has been filed under Section 5 of the Limitation Act read with Section 482 Cr.P.C. for condonation of delay of 53 days in filing the appeal. Upon notice, counsel for respondent No. 1 has filed a reply dated 27.05.2019 to the present application. After hearing counsel for the parties, the delay of 53 days in filing the application for grant of leave to appeal is condoned. Application stands disposed of accordingly.”

               CRM-A-1887-MA of 2017      

                                     Starting from scratch, para 1 first and foremost lays the groundwork by pointing out that, “Present application has been filed under section 378(3) of the Code of Criminal Procedure 1973 (in short “the Code”) for grant of Leave to Appeal against the judgment of acquittal dated 30.01.2017 passed by learned Additional Sessions Judge-cum-Judge Special Court, Chandigarh, whereby respondents accused have been acquitted for the offences under Section 363, 366, 120-B, 376-D, 342 Indian Penal Code (IPC).”

                                 While dwelling on the facts of the case, para 2 then says that, “Tersely put the facts of the case of the prosecution are that  PW-2 (Pappu son of Munshi Ram, father of the prosecutrix/victim) moved a complaint to the local police station wherein he stated that his daughter (prosecutrix) was found missing. He also alleged in the complaint that on 30.10.2015 at about 11/12 P.M. she went to attend a ‘Jagran’ but she did not come back to the house till morning. He made her frantic search but he failed to find out any clue of her whereabouts. Later on, he came to know that four boys, namely, Amit, Suraj, Kannu and Vikas (respondents/accused) abducted her in a car bearing Registration No. CH-01-AR-6944. On the basis of this complaint, a formal F.I.R. (Ex. P-17) was registered under Sections 363, 366, 120-B IPC. During investigation, all the accused were arrested and prosecutrix was also recovered. Her statement under Section 164 Cr.P.C. was got recorded by the Investigating Officer. Accused were medically examined and prosecutrix was also subjected to medical examination.”

                                       Needless to say, it is then pointed out in this same para 2 ahead that, “After completion of necessary formalities of investigation, the report under Section 173 Cr.P.C. was presented before the Court of Judicial Magistrate and thereafter the case was committed to the Court of Sessions. Copies of report as envisaged under Section 208 Cr.P.C. were supplied to the respondents accused free of cost. Finding a prima facie case, the accused respondents were charge-sheeted for the commission of offences under Sections 376-D, 366, 342 read with Section 120-B of Indian Penal Code.

                                     On the face of it, para 2 then further discloses that, “To prove its case against the respondents accused, the prosecution has examined the following Ten (10) witnesses which are as under:-

Prosecutrix as PW-1, Pappu, complainant/father of the prosecutrix as PW-2, HC Gulzar Singh as PW-3, HC Yash Pal as PW-4, Dr Parijat as PW-5, Sonu as PW-6, Dr. Chandrani as PW-7, ASI Rajvir Singh as PW-8, Constable Sonu Kumar as PW-9 and Sandeep Garg as PW-10.”

                                          Furthermore, it is then mentioned in this same para 2 that, “On completion of prosecution evidence, the statements of accused under Section 313 Cr.P.C. were recorded in which all the incriminating circumstances appearing by way of evidence of prosecution against the respondents accused were put to them and they pleaded their innocence and false implication. Accused-Amit Kumar @ Racha in a statement under Sectiion 313 Cr.P.C. put forth a stand that he has been falsely implicated by the parents of the prosecutrix, as there was love affair between the prosecutrix and him and the family members of the prosecutrix, in order to teach him a lesson, have concocted this false case. Chances of defence was given by the trial Court to the respondents accused but no defence evidence was produced. On the basis of weak evidence produced by the prosecution against the respondents, they have been acquitted of the charges for the commission of offences under Sections 376-D, 366, 342 read with Section 120-B of Indian Penal Code.”

                                         After hearing the version of both parties, the Bench then holds in para 3 that, “We have heard learned cousnel for the parties and have also gone through the paper-book very carefully with their assistance. We are of the view that the prosecutrix in this case was neither kidnapped nor abducted. The story of the prosecution put forward in the Trial Court looks to be highly improbable. The defence version is probable. Admittedly, the prosecutrix was running about more than 18 years of her age at the time of alleged incident. As per the alleged case of the prosecution, the prosecutrix was abducted by the accused from ‘Jagran’ at the knife point and the accused further took her to a hotel situated in Sector-42, Chandigarh. It is not established by the prosecution that how from assembly crowd of ‘Jagran’, the accused could manage to abduct her. It is not the case of prosecution that ‘Jagran’ was concluded at around 11/12 P.M. As such, the prosecutrix was supposed to sit in the gathering of ‘Jagran’ till its conclusion. It is not cleared by the prosecution how she came in the compnay of the accused and how the accused branded a knife on her in order to abduct her.”

                                             While continuing in the same vein, it is then further elaborated upon in this same para 3 that, “Further, prosecutrix has testified that she was kept confined in a ‘Jhuggi’ for two days. If the prosecutrix was wrongly confined at the house of accused Shanti wife of Balwant Singh for about two days, she should be the first person to raise hue and cry. It is not the case of prosecution that prosecutrix was given any intoxicant, by virtue of which she lost her senses for two days and was not in a position to raise noise. Therefore, in the absence of any intoxication, the prosecutrix was able to raise hue and cry in case she kept confined forcibly in the house of Shanti for two days. Medical examination has also highlighted that there was no injury on any part of the prosecutrix. Medical expert PW-5 (Dr. Parijat) has stated that there was chances of recent sexual intercourse with the prosecutrix. In cross examination, this Medical Expert has testified that no injury on the private part of the prosecutrix was noticed. Meaning thereby, the doctor did not find any injury on the person of the prosecutrix, from which it can be inferred that she was a consenting party to the sexual intercourse. There is no corroborative evidence to the testimony of the prosecutrix that she was victim of rape. Her testimony had not stood the test of credence and in these circumstances, we are inclined to extend the benefit of doubt to the respondents. The statement of other witnesses is formal in nature. The contradictions, as observed by the Trial Court in the impugned judgment, are itself sufficient to discard the case of the prosecution in toto. As such, the Trial Court has not committed any mistake in giving the benefit of doubt to the accused for want of cogent and convincing evidence.                  

                              Not less important is what is then stated unequivocally in para 4 that, “That apart, the scope of the Appellate Court, while dealing with the appeals against acquittal, is settled. Though there is no embargo on the Appellate Court to reverse the decision based on the evidence upon which the acquittal is based, generally the order of acquittal based on presumption of innocence of the accused, is further strengthened by acquittal. The Appellate Court, while considering an apppeal against acquittal, has to consider whether there are compelling and substantial reasons for reversing the order of acquittal. The Appellate Court can reverse the order of acquittal if the view taken by the Court is palpably erroneous and it could not have been taken by the Court of competent jurisdiction and is taken against well settled canon of criminal jurisprudence. Merely because the Appellate Court, on re-appreciation and re-evaluation of the evidence, is inclined to take a different view, interference with the judgment of acquittal is not justified. If the view taken by the trial Court is a possible view, even if two views are equally balanced it need not result in interference by the Appellate Court in the judgment of the trial Court of acquittal. The Appellate Court will have to see whether there is perversity in the decision if the conclusions are contrary to the evidence on record or the Court’s entire approach is patently illegal or it is based on erroneous understanding. If the order of acquittal is to be reversed, the Appellate Court must examine and discuss the grounds given by the trial Court to acquit the accused and must give cogent reasons to overturn the findings. Thus, while considering the order against acquittal, generally the Appellate Court should not interfere where view taken by the trial Court is not unreasonable or perverse. With the legal position in mind, we have considered the view taken by the trial Court is a possible view and it does not require any interference by this Court.”

                             Lastly, it is then held in the last para 5 that, “In view of the above discussion, this Court is of the opinion that the trial Court, while appreciating the entire evidence in its proper perspective, has rightly held that the prosecution has failed to prove its case beyond any reasonable doubt. Thus, no case for any kind of interference in the impugned judgment is made out. The view of the trial Court is hereby affirmed and is mainatained. The instant application is without any merit and, therefore, dismissed. Leave to Appeal is declined.”

                        In the ultimate analysis, what the foregoing discussion as we saw in different paras of this notable ruling boils down to is this: The absence of injury on the prosecutrix implies her consent for sex. In addition, there was no corroborative evidence that could substantiate the testimony of the prosecutrix that she was victim of rape. The bottom line is: Sex with consent without any injury anywhere on body and absence of any corroborative evidence cannot be considered rape at all! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 

Mere Suspension Of Sentence Or Grant Of Bail To The Accused Cannot Imply That The Conviction Ceases To Operate

 It goes without saying that in a latest, landmark and laudable judgment titled Santosh Kumar vs Delhi Jal Board in WP (C) 10100/2017 & CM No 41286/2017 delivered just recently on October 15, 2019, the Delhi High Court has very rightly reiterated that suspension of sentence, pending an appeal, doesn’t imply a suspension of order of conviction. Justice Rekha Palli of Delhi High Court who authored this noteworthy judgment very rightly pinpoints that in a criminal trial, if a convict has been granted bail or suspension of his sentence pending his appeal, that doesn’t mean that his conviction ceases to operate! Very rightly so!

                                         To start with, the ball is set rolling first and foremost in para 1 wherein it is pointed out by Justice Rekha Palli of Delhi High Court that, “The present writ petition under Articles 226 and 227 of the Constitution of India filed by the workman assails the award dated 25.08.2017 passed by the learned Labour Court-XVII, Karkardooma Courts, Delhi in LIR No. 515/2017, whereunder the petitioner’s claim for reinstatement in service has been rejected.”

                                     To recapitulate, it is then laid bare in para 2 that, “The petitioner, who was working as an Assistant Pump Driver in the respondent Delhi Jal Board was involved in an incident leading to registration of a FIR No. 51/2010 against him under Section 363, 366, 368 and 376 of the Indian Penal Code, 1860 (IPC) at Police Station Kotwali Dehat, Bulandshahr, U.P. The petitioner came to be arrested on 22.09.2010 and consequently he was on 09.02.2011 placed under deemed suspension w.e.f. the date of his arrest, which suspension continued from time to time.”

                                           To be sure, it is then pointed out in para 3 that, “After trial, the petitioner was convicted on 05.12.2011 under Sections 363, 366, 368 and 376 IPC by the Court of the Additional District and Sessions Judge, Bulandshahr, U.P. and sentenced to life imprisonment. The petitioner thereafter preferred an appeal before the Hon’ble High Court of Judicature at Allahabad wherein, vide order dated 18.02.2013, he has been granted bail and stay of the fine imposed on him.”

                                    Truth be told, para 4 then postulates that, “In the light of his conviction the respondent, after issuing him a show cause notice, imposed the penalty of removal from service on the petitioner on 02.08.2013 and consequently relieved him on 20.06.2014.” 

                          Needless to say, para 5 then discloses that, “Aggrieved by his termination, the petitioner raised an industrial dispute which came to be rejected after the labour Court found that the disciplinary authority had, after considering the relevant factors, rightly come to the conclusion that the petitioner’s further retention in service was undesirable.”

                                      While explaining the intent behind filing the present petition, it is then stated in para 6 that, “The present petition has been filed assailing the aforesaid award passed by the Labour Court. Learned counsel for the petitioner submits that even though the petitioner’s appeal is still pending adjudication before the High Court, once his sentence stands suspended and he has been released on bail, the respondent is duty bound to take him back in service as the effect of the said suspension, would tantamount to the order of conviction and sentence being treated as non est. He, therefore, prays that the impugned award be set aside as the same has been passed without properly appreciating the effect of his sentence being suspended by the High Court.”

                           On the contrary, it is then pointed out in para 7 that, “Mr Rameezuddin Raja, who appears on advance notice on behalf of the respondent, while supporting the impugned order submits that in view of the settled position that mere suspension of sentence does not imply that the order of conviction has been stayed or that the employer should ignore the fact and effect of such conviction. He, therefore, prays that the writ petition be dismissed.”

                                        What follows next is what is stated in para 8 that, “I have considered the submissions of the learned counsel for the parties and with their assistance perused the record.”

                               Most importantly, it is then held in para 9 that, “In the light of the admitted position that it is only the petitioner’s sentence which had been stayed by the High Court and that there is no stay of the petitioner’s conviction under Section 363, 366, 368, 376 IPC, I find absolutely no merit in the petitioners’ contention. It is the settled legal position that mere suspension of sentence or grant of bail to the accused in criminal proceedings, cannot imply that the conviction ceases to operate. The only effect of such suspension, during the pendency of an appeal, is that the accused is protected from incarceration, and the same does not in any manner affect the conviction order.”

                                  Tersely put, para 10 then underscores that the Delhi High Court rejected the claim of the petitioner by relying upon the rule laid down by the Apex Court in Union of India vs Ramesh Kumar AIR 1997 SC 3531` which primarily says that, “If the Disciplinary Authority comes to the conclusion that the offence for which the public servant has been convicted was such as to retention in the public service prima facie undesirable, it canm impose upon him under Rule 19(1) of CCS (CCA) Rules, 1965, the penalty of dismissal or removal.”

                               It cannot be lost on us that it is then envisaged in para 11 that, “In the light of the aforesaid, it is evident that even though the petitioner’s sentence has been suspended during the pendency of his appeal, the conviction order against him continues to operate. The respondent, therefore, was justified in coming to the conclusion that further retention of the petitioner in service was undesirable. Needless to state that in case the petitioner is successful in his pending challenge to the order of conviction before the High Court, it will be open for him to approach the respondent with a request to reconsider his dismissal from service.”

                                   Now coming to the concluding paras, para 12 holds that, “For the aforesaid reasons, this Court finds absolutely no infirmity in the impugned award warranting exercise of its writ jurisdiction under Article 226/227 of the Constitution of India.”

                                      Lastly, it is then held in para 13 that, “At this stage, it is noticed that the present writ petition, which is wholly meritless, could not be taken up for preliminary hearing for the last two years mainly on account of non-availability of the learned counsel for the petitioner. The writ petition along with pending application is dismissed with costs of Rs 10,000/- payable to the Delhi High Court Staff Welfare Fund within four weeks.”   

                               No doubt, the long and short of this noteworthy judgment is what has also been very rightly reiterated by Justice Rekha Palli of the Delhi High Court that, “In a criminal trial, mere suspension of sentence or grant of bail to the accused cannot imply that the conviction ceases to operate.” It has also been rightly held that the only effect of such suspension during the pendency of an appeal is as mentioned in this laudable judgment that the accused is protected from incarceration, and the same does not in any manner affect the conviction order! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.   

Abortion-a right or a choice?

What happens when people take the decisions of your life? When an unborn child is murdered before even stepping into this world? Who gave them the right to do so? Is it legal or illegal when a young girl is murdered with her unborn child by her parents? These questions triggerd in my mind while reading a recent story which took place in Telangana, where a 20-year old girl was murdered overnight by her parents because she refused for abortion. Digging deep into this story, I found out that the young girl was in love with a man from another caste and this was also a reason because of which her parents committed an unlawful crime by killing her overnight because her actions were against them. Earlier she agreed with her parents on aborting the child but later on she changed her mind and wanted to bring the baby in the world but she didn’t knew what misfortune was coming in her way and the poor child died even before opening his eyes. Who among us will be the one like her parents? Will try to commit this false crime? Or who among us will take a stand and support her and who all will fight with her? Stories like this revolve around the world where again the society plays a major role, not allowing the people to live and breath. According to the WHO, every year an estimated 40-50 million people who face unplanned pregnancy decide to have an abortion in the world. What a strange thing which is a tabu in some parts of the world where men cause women to be pregnant but it is the woman who alone bears the child and goes through a difficult period of pain and suffering. I am not only talking about teenage pregnancies but also about the mothers who face early pregnancy or about the mother who does not want to perceive. I am neither against the abortion nor standing with it, but as a girl I want the society to let the mother decide what she wants and not force her to kill the child because of various reasons.

shutter stock.com

Medical Termination of Pregnancy(MTP)

Since the Medical Termination of Pregnancy Act allows women to seek abortion as a part of reproductive rights and gender justice. This amendment places India on the top league of the countries where a woman can make individual choices from their perspective. In India, abortions are legal in certain situations, as for unmarried girls, rape victims and for married women with different reasons. There has been a decreasing rate in abortion since India made it illegal to detect the sex of the foetus. But there is a time limit given to the woman for getting an abortion done. A woman should always make sure to have a safe abortion procedure inorder to keep her body safe and always ask the doctor before getting it done.

Reasons why women get this done

1.Peer pressure, the biggest reason for a woman to get her child aborted. Where society never lets the woman live and allow to make her own decision which makes the abortion as the only solution. 2.Female Foeticide, which comes under peer pressure, where the society never lets a girl child to step into this world and gets her killed before her birth. 3.Rape victims and differently- abled.

Since this is a very vague and wide topic, I would like to end it here with a quote “Abortion is a part of being a mother and caring for children because part of her caring of her children is knowing when its not a good idea to bring them into the world”-Katha Pollitt.

top yaps.com

https://timesofindia.indiatimes.com/city/hyderabad/honour-killing-parents-held-for-murdering-pregnant-girl-in-telangana/articleshow/76273724.cms

Privacy Laws In India

Current laws and license agreements in India which allow for surveillance entail a significant potential for abuse, since the country lacks sufficient privacy safeguards . A privacy law is deemed necessary to ensure that data is not retained indefinitely, that data is not shared and disclosed to unauthorised third parties and that unauthorised parties do not have access to collected and intercepted data. In a democratic regime, surveillance should be targeted and carried out under a judicial warrant and the absence of privacy legislation deprives individuals from necessary safeguards. While the Information Technology Act and its Rules do entail some provisions for data protection and regulate certain types of surveillance, they appear to be inadequate. This is partly due to the fact that there is currently no law in India which establishes the right to privacy and as Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, represent a decisive step in creating a legal regime in India for data protection, but nonetheless appear inadequate in addressing issues relating to the collection of, access to, sharing of, disclosure and retention of data5 . Furthermore, they do not ensure the establishment of an independent body, such as a Privacy Commission, to oversee the handling of personal data and to address potential cases of breach.

Justice AP Shah Privacy Principles
The Planning Commission of the Government of India held meetings of the Group of Experts on Privacy Issues throughout 2012, which was chaired by Justice AP Shah, the former chief justice of the Delhi High Court . The CIS participated in these meetings and helped draft the Report of the Group of Experts on Privacy by the Justice AP Shah committee . This report entails a list of recommended national privacy principles, which should be followed in the creation of a privacy law. According to the report, the national privacy principles of India should be the following:


• Principle of Notice
• Principle of Choice and Consent
• Principle of Collection Limitation
• Principle of Purpose Limitation
• Principle of Access and Correction
• Principle of Security
• Principle of Openness
• Principle of Accountability


The first principle of notice states that the data collector should notify all individuals of its information practices, before any personal information is collected about them. Additionally, this principle also requires data controllers to notify individuals when their personal data has been breached, when such data has been legally accessed by third parties and when the data controller’s privacy policy changes. The second principle of choice and consent states that the data controller should provide individuals the choice to opt-in or opt-out with regards to the provision of their personal data, as well as that individual consent should only be taken by the data controller after providing. The third principle of collection limitation states that the data controller shall only collect personal information from data subjects as is necessary for the purposes identified for such collection, regarding which notice has been provided and consent from the individual taken. The fourth principle of purpose limitation states that personal data collected and processed by data collectors should be adequate and relevant to the purposes for which they are processed. In other words, a data controller should only collect, process, disclose, make available or otherwise use personal data for the purpose as stated in the notice after taking consent from individuals. The fifth principle of access and correction applies to individuals. In particular, this principle states that individuals should have the right to access their personal information which is being held by a data controller and to make corrections or to delete information when it is inaccurate .

The sixth principle of disclosure of information prohibits the data controller from disclosing personal data to third parties, unless informed consent has been provided by the individual for such disclosure. This principle also states that disclosure of information for law enforcement purposes must be in accordance with the laws in force. The seventh principle of security states that data controllers should be responsible for ensuring the security of all personal data that they have collected or which is in their custody.. The eighth principle of openness requires data controllers to take all necessary steps to implement practices, procedures, policies and systems in a manner proportional to the scale, scope and sensitivity to the data they collect, in order to ensure compliance with the privacy principles, information regarding which shall be made in an intelligible form, using clear and plain language, available to all individuals. Finally, the ninth principle of accountability states that the data controller should be accountable for complying with measures which give effect to the privacy principles.


Such measures should include mechanisms to implement privacy policies, including tools, training, education, as well as external and internal audits. In the report, the Group of Experts on Privacy recommended that such national privacy principles are applied to the cases of interception of communications, access to data and audio and video recording. In particular, it is emphasized that, with regards to the interception of communications and access to data in India, the principles of notice, choice and consent, and access and correction should be applied. With regards to audio and video recording in India, the application of the same principles, additionally including the principle of collection limitation, is recommended. Furthermore, the Group of Experts on Privacy also recommended the enactment of a privacy law in India which would include the establishment of Privacy Commissioners, as well as of self-regulating organisation (SROs) and co-regulation, which would supplement the role played by the Privacy Commissioners to ensure the implementation and enforcement of policies for a wide range of sectors and industries. Additionally, the Group of Experts recommended the establishment of a system of complaints which would include Alternative Dispute Resolution Mechanisms (ADRs), as well as the inclusion of offenses, penalties and remedies in the Privacy Act.

Child Labour-The loitering horror

It’s to remind us all of one of the painful horrors which still lurks in the world, it is observed all over the world (12 June) and is celebrated every year by UN is a sanctioned holiday by ILO (International Labour Organization).

Child labour is a horrific crime, many a times it’s forced upon naïve lives and children take up jobs at an early age so that they can also become a bread winner for their family due to financial woes. It’s a vile practice which still exists today in remote areas and many a times goes unnoticed.

Most of the third world countries have the largest number of child labourers’ eg.-South Africa, Afghanistan, Pakistan and Myanmar and also in many parts of India. It’s a phenomenon which most of us are aware about and many a time we try our best to contribute to eradicating this heinous practice from our world.

Economic factors is just one of the reasons which compels children to work, especially due to inflation, children tend to take up jobs at small hotels or shops where informal labour exists, due to this they can easily work around but are also misused by their superiors.

Due to child labour one’s freedom is curtailed along with the banishment of their own carrier and also they are unable to have access to many opportunities which life has to offer. One is unable to focus on self-growth and ones’ goals in life have to be forgotten. The child is put into a whirlpool of reeling pain and is trapped in the wrong sphere at such a young age and also exposes himself to other horrors.

In most of the third world countries family sizes can be huge and just one bread winner’s income won’t suffice the whole family, hence many children are encouraged by their parents to take up jobs in the informal sector and to earn money so that they can satisfy their basic needs. Many factories used to employ children between the age of eleven to thirteen as workers luckily this practice has almost vanished away due to child labour laws.

Many students in developing countries lose interest in studying it could be family problems, financial woes or lack of interest and take up trifling jobs so that they can start earning, this not only ruins their carrier but also can expose them to adverse snarls of the world at a young age.

One of the biggest reasons of child labour is financial problems, most of the children who commit themselves to working as a child labourer are people belonging to BPL (below poverty line), and one of the only ways to work out things in their life is by working and earning at a young age, it could be the nearest tea stall near your house where you see small boys lending their energy or even the newspaper delivery boy who comes on his worn out bicycle. Most of them even end up working as construction labourers, risking their innocent lives.

One of the other reasons for increase in child labour is improper enforcement of laws and irregular checks by the government. As citizens of this country and as humans of the world we can do our bit by educating ourselves on this trivial topics. To contact legislators if we come in contact and come across child labourers in our neighbourhood. Also to not shriek away from giving your domestic workers their fair share of income so that we can break the cycle of child labour. And to buy from local grocery stores and not bargain with small sellers are just a few of the things we can do to improve this disturbing situation.

Abdhi Upadyay

Importance of INTERNSHIPS for college students!!!

In the world full of competitors to be successful student/businessman etc. should have a different approach. They need do things which have already less participants. It would be best if none of the competitors are present, it doesn’t mean you have to do very odd thing. Everyone needs a better lifestyle and a proper career so that they can live luxurious life with the family, for that we have to start at early as possible and gain the maximum experience. There are many of the websites nationally and internationally that provide work to college students as in the name of freelancers some of the popular sites are:

1- Internshala

2- LetsINTERN

3- LinkedIN

4- GlassDoor

5- Hello Intern

6- Twenty19

7- AngelList

8- Indian Internships

9- Oyster Connect

10- Interlelo

The above listed Internship site are the popular one yet there are many more to be listed.

  • Internships not only make a student financial independent at college life but it plays a very important role as while on last year of college it boost the CV and the chances of selection in your dream company gets increased by 10 folds.
  • Internship help a student start to build a professional network that can be a resource for the student.
  • Internship also help student to decide a second option of career and also can make it as a part-time works on his professional job.
  • Many companies are in search of students who have already completed an internship related to professional job which will also help student to do the work which is of his choice and already experienced on it.
  • Internships provide a great impact on confidence of the student which will help a lot in the actual job.
  • Students gain knowledge and get aware on how to talk with superior person, how to keep conversation on and most importantly how to influence anybody with the power of the words.
  • Students also get hands on to manage the task assigned. They also get to know to give a separate time table to each task and mange the workflow while studying.
  • They get the professional guidance even if they fail to mange the task as the internship provider cannot force any student and they encourage the student on compilation of task.

 

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This are the most benifits of the Internship…Hope it will be helpful.

If you are in college and not having any internship, than go for it…It will prove helpful in the future.

 

SC Explains Tests To Be Applied While Sentencing In A Criminal Case

It must be mentioned right at the outset that the Supreme Court most recently on October 22, 2019, in State of Madhya Pradesh vs Udham and others in Criminal Appeal No. 690 of 2014 has briefly explained the three tests to be applied while sentencing in a criminal case. It has laid down in no uncertain terms without mincing any words that, “The aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society.” Very rightly so!

                                            To start with, this latest, landmark and extremely laudable judgment authored by Justice NV Ramana for himself, Justice Mohan M Shantanagoudar and Justice Ajay Rastogi sets the dice rolling by first and foremost stating in para 1 that, “The present appeal is directed by the appellant-State against the final order dated 06.11.2012, passed by the High Court of Madhya Pradesh (Gwalior Bench) in Criminal Appeal No. 659 of 2011, whereby the High Court partly allowed the appeal filed by the respondents-accused herein and reduced the sentence awarded by the Trial Court to the period already undergone for the offences under Section 326 of the Indian Penal Code [hereinafter referred to as ‘IPC’] read with Section 34 of IPC, and Section 452 of the IPC.”

                                        While presenting the prosecution version, it is then stated in para 2 that, “The prosecution case is that the complaint lodged a report on 15.04.2008 that at around 9 p.m., while he was sitting inside his house with three other people, the respondents-accused barged in, carrying weapons. More specifically, respondent nos. 1 and 3 were carrying axes, while respondent nos. 2 and 4 were carrying sticks. The respondents-accused asked the complainant why he had not kept his cow tied, and subsequently, on respondent no. 4’s exhortation, the respondents-accused attacked the complainant and the others present at that time resulting in various injuries to them. Respondents-accused then allegedly threatened the complainant that if he did not keep his cow confined, he would be killed.”

                                         To put things in perspective, it is then elaborated upon in para 3 while putting across what the Trial Court ruled upon that, “The Trial Court tried the respondents-accused and ultimately convicted them for the offences under Section 326 read with Section 34 of IPC as well as the offence under Section 452 of IPC. The respondents-accused were sentenced to undergo 3 years rigorous imprisonment and a fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) each for the offence under Section 326 read with Section 34 of IPC. They were further sentenced to undergo rigorous imprisonment for 1 year with a further fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) each for the offence under Section 452 of IPC. In case of default of payment of fine, they were to undergo further rigorous imprisonment for 6 months. All sentences were made to run concurrently by the Trial Court.”

                                 As a corollary, what follows next is illustrated in para 4 that, “Being aggrieved, the respondents-accused filed an appeal before the High Court, challenging only the quantum of sentence imposed on them by the Trial Court. Vide impugned order, the High Court partly allowed the appeal and reduced the sentence to the period of imprisonment already undergone by them, which was a period of 4 days, while enhancing the fine amount imposed upon them by Rs. 1500/- (Rupees One Thousand Five Hundred Only) each. The respondents-accused were directed to deposit the enhanced fine within a period of 30 days, failing which they were to undergo simple imprisonment for a period of 30 days.”

                                             As it turned out, para 5 then states that, “Aggrieved by the impugned order, the State has filed the present appeal challenging the order of the High Court reducing the sentence awarded to the respondents-accused. The learned counsel for the appellant-State submitted that the High Court erred in not considering the gravity of the offence and the facts and circumstances of the case, particularly the fact that the respondents-accused had undergone imprisonment of only 4 days.”

                                 Simply put, para 6 then enumerates that, “On the other hand, the learned counsel for the respondents-accused submitted that the High Court has correctly appreciated the facts and circumstances of the case in passing the impugned order, and therefore, the same does not merit any interference from this Court.”

                                   After hearing the learned counsel for the parties as mentioned in para 7, it is then envisaged in para 8 that, “At the outset, it is pertinent to note that the reasoning of the High Court, for passing the impugned order and partly allowing the appeals of the respondents-accused herein, is limited to one sentence. The High Court states in its order that looking to the nature of the offence, the fact that this is the first offence of the respondents and the period of sentence already undergone by them, it is passing the impugned order.”

                             It would be of immense significance to note what is then stated so eloquently, elegantly and effectively in para 9 that, “At this stage the observations of this Court in Accused ‘X’ v. State of Maharashtra, (2019) 7 SCC 1, in which two of us were part of the Bench, with respect to sentencing in India are relevant here-

49. Sentencing is appropriate allocation of criminal sanctions, which is mostly given by the judicial branch. [Nicola Padfield, Rod Morgan and Mike Maguire, “Out of Court, Out of Sight? Criminal Sanctions and No Judicial Decision-making”, The Oxford Handbook of Criminology (5th Edn.).] This process occurring at the end of a trial still has a large impact on the efficacy of a criminal justice system. It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner. We need to appreciate that a strict fixed punishment approach in sentencing cannot be acceptable, as the Judge needs to have sufficient discretion as well.

50. Before analysing this case, we need to address the issue of the impact of reasoning in the sentencing process. The reasoning of the trial court acts as a link between the general level of sentence for the offence committed and to the facts and circumstances. The trial court is obligated to give reasons for the imposition of sentence, as firstly, it is a fundamental principle of natural justice that the adjudicators must provide reasons for reaching the decision and secondly, the reasons assume more importance as the liberty of the accused is subject to the aforesaid reasoning. Further, the appellate court is better enabled to assess the correctness of the quantum of punishment challenged, if the trial court has justified the same with reasons…”

                                                       (emphasis supplied)”   

                                         While pooh-poohing the manner followed by the High Court in sentencing the accused, it is then pointed out in para 10 that, “In the present case, it is clear that there is no detailed analysis of the facts of the case, the nature of the injuries caused, the weapons used, the number of victims, etc. given by the High Court in the impugned order. The High Court while sentencing the accused, has not taken into consideration the second charge proved against the respondents-accused herein, under Section 452 of IPC. Even the fact that the respondents-accused had only undergone sentence of 4 days at the time of passing of the impugned order, brings into question the High Court pointing to the same as a reason for reducing their sentence. As such, the order of the High Court merits interference by this Court.”

                                     While underscoring the invaluable importance of the sentencing policy, para 11 then postulates that, “We are of the opinion that a large number of cases are being filed before this Court, due to insufficient or wrong sentencing undertaken by the Courts below. We have time and again cautioned against the cavalier manner in which sentencing is dealt in certain cases. There is no gainsaying that the aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society. In light of the same, we are of the opinion that we need to provide further clarity on the same.”  

                                         While continuing in the same vein, it is then very rightly articulated on sentencing policy in para 12 that, “Sentencing for crimes has to be analyzed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defense, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).”

                                  Not stopping here, it is then stipulated in para 13 that, “Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.”

                               Of course, it is then rightly elaborated upon in para 14 that, “Coming to the appropriate sentence which is to be imposed on the respondents-accused in this case, the facts of this case need closer scrutiny. The respondents-accused entered the house of the complainant, attacked the others present with axes and with sticks. Four people, including the complainant, were injured. The injuries caused were incised wounds on the hands and backs of the victims, an incised wound next to the ear of one of the victims and bruising, etc. The respondents-accused were convicted for the offence under Section 326 read with Section 34 of IPC, which carries a maximum sentence of life imprisonment, or of imprisonment of a term which may extend to ten years, and fine. They were also convicted under Section 452 of IPC, which carries a maximum sentence of seven years along with fine.”

                               It cannot be lost on us that it is then also rightly pointed out in para 15 that, “The respondents-accused herein were males of age 33 years, 33 years, 28 years and 70 years respectively at the time of the incident. The main allegation as against the respondent nos. 1 and 3 is that they had used an axe to attack the victim. In this scuffle there is no dispute that some of the respondent-accused herein were also injured profusely. Further the motivation seems to be that the cow belonging to the victims had entered the household of the accused and the respondent no. 1 with his co-accused are proved to be the aggressor herein. From the perusal of the record, the injuries on some of the victims are not specifically attributed. The respondent group was numerically matched with that of the victims and there were two respondents-accused within the group carrying lathis. The bodily integrity was compromised as a result of the injury caused, but there was no evidence led to indicate any permanent establishments of any part. The scope of intrusion of privacy due to the assault is also minimal. There was no material destruction involved in the crime.”  

                                 To put it succinctly, it is then observed in para 16 that, “In this context, we need to note that the facts of the case highlighted above, however, need to be balanced with the fact that this was the first offence committed by the respondents-accused and that the motive, which is stated to be trivial. There is a requirement to treat the crime committed herein differently than other objectionable situations such as police atrocities etc. [refer to Yashwant v. State of Maharashtra, AIR 2008 SC 4067]. Having regard to the fact that the occurrence of the crime is of the year 2008 and the respondents-accused have been, in a way, only ordered to undergo four days of jail term with a fine of Rs 1,500/-, we need to enhance the same to commensurate with the guilt of the respondents-accused.”

                            Going ahead, it is then observed in para 17 that, “Comparatively, having perused certain precedents of this Court, we are of the considered opinion and accordingly direct that for the commission of the offence under Section 326 of IPC read with Section 34 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 75,000/- (Rupees Seventy-Five Thousand Only)  each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months. For the offence under Section 452 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 25,000/- (Rupees Twenty-Five Thousand Only) each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months.”

                                      Furthermore, it is then held in para 18 that, “For the offence under Section 326 of IPC read with Section 34 of IPC, the respondent no. 4, who is presently aged around 80 years, is sentenced to serve rigorous imprisonment for 2 months and to pay a fine of Rs. 50,000/- (Rupees Fifty Thousand Only) within a period of 1 month, on default of payment of which he is to suffer simple imprisonment for 1 month. For the offence under Section 452 of IPC, respondent no. 4 is sentenced to serve rigorous imprisonment for 2 months and to pay a fine of Rs. 15,000/- (Rupees Fifteen Thousand Only) within a period of 1 month, on default of payment of which he is to suffer simple imprisonment for 1 month.”

                                       Coming to the last two paras, para 19 holds that, “The above sentences are to run concurrently. Further, the respondents are directed to be taken into custody forthwith, to serve out their remaining sentence, as imposed hereinabove.” Lastly, the last para 20 concludes by holding that, “Accordingly, the appeal is partly allowed and the impugned order of the High Court is modified in the afore-stated terms.”

                                     On a concluding note, it may well be said that it is a very key judgment from the sentencing perspective in criminal cases as it lays down the tests to be applied in such cases which we have already discussed quite elaborately in various paras stated above of this noteworthy judgment! The three-Judge Bench of Apex Court very rightly cautions the High Courts and all the other lower courts that the aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society! So the Judges should weigh carefully all the various factors which can tilt the sentencing before arriving at any decision!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Rape Case Can’t Be Quashed When ‘Settlement’ Was Made Under Threat & Coercion: SC

In a major and significant development pertaining to rape cases, the Supreme Court of India has most recently on October 25, 2019 in Miss XYZ vs State of Gujarat & Anr in Criminal Appeal No. 1619 of 2019 (Arising out of S.L.P. (Crl.) No. 4294 of 2019 has set aside a Gujarat High Court order which had quashed a rape case by recording ‘settlement’ between the accused and the victim. The victim had lodged an FIR alleging that her manager raped her by threatening to publish her nude picture he had with him. In this latest, landmark and extremely laudable judgment, the Apex Court has very rightly held that rape case can’t be quashed when victim has a case that ‘settlement’ was made under threat and coercion.

                                      To start with, after the leave is granted to appeal against the Gujarat High Court order in para 1, the ball is set rolling in para 2 of this noteworthy judgment authored by Justice R Subhash Reddy for himself, Justice Uday Umesh Lalit and Justice Indu Malhotra of the Apex Court wherein it is observed that, “This appeal is filed by the 2nd respondent in R/Special Criminal Application No. 9897 of 2017 filed before the High Court of Gujarat, at Ahmedabad. By the impugned order, High Court has allowed R/Special Criminal Application by quashing FIR No. CR-1-60-2017 registered on the file of Mahila Police Station, Ahmedabad City, District Ahmedabad.”

                                   While stating the background, it is then disclosed in para 3 that, “The appellant herein, is the informant in crime registered in FIR No. CR-1-60-2017 on the file of Mahila Police Station, Ahmedabad City. On her complaint the aforesaid crime is registered against the 2nd respondent for the alleged offence punishable under Sections 376, 499 and 506(2) of the Indian Penal Code, 1860.”

                                            While dwelling then on the facts of the case in detail, it is then pointed out in para 4 that, “The complaint was filed with the following averments:

She is a permanent resident of Jodhpur, Rajasthan State and had come to Ahmedabad in Gujarat City for employment and she met the 2nd respondent, who is the Managing Director of the G.S.P. Crop Science Pvt. Ltd. After conducting interview she was appointed as his Personal Assistant in the month of November, 2014. When the appellant was not well, the 2nd respondent started visiting her residence and when she was in sleep, the 2nd respondent has taken an inapprorpiate pictures of her. When she was attending the office, the 2nd respondent by showing her pictures, was blackmailing her. When she visited Odhav, Kathwada and Nandesari, Baroda on official work of the company, the 2nd respondent used to take advantage of the situation when the appellant was alone, and was blackmailing to make viral her pictures and to terminate her employment. As the financial condition of the appellant was not stable, she did not disclose this to anyone. In December, 2014 the 2nd respondent took the appellant to Baroda for some work, by threatening to publish her nude pictures, committed rape on her. Even after coming back to Ahmedabad, the 2nd respondent again took her to Baroda on the pretext of some work and committed rape by similar threats in the hotel. The 2nd respondent was also visiting her rented premises at Ahmedabad and used to commit rape on her under the threat of termination of employment and publication of her pictures. The 2nd respondent rented an apartment at Adani Pratham in August, 2015. When the appellant was residing in the said apartment, the 2nd respondent used to come to the said apartment and was demanding sexual favours. As she was fed up with the exploitation by the 2nd respondent, she vacated the rental premises in June, 2016. In view of serious threat by the 2nd respondent to her life, she left for Jodhpur and her marriage was fixed with one Mr. Shoukin Malik who is the resident of Badi Sadri, Rajasthan in the month of December, 2016. The 2nd respondent having come to know about the marriage of the appellant with Shoukin Malik, he contacted Mr. Shoukin Malik on telephone and informed him that the appellant is not of good character, she had physical relationship with him and with other boys. As Mr. Shoukin Malik refused to meet the 2nd respondent, the 2nd respondent sent a cover to the residence of Shoukin Malik containing her nude/inappropriate pictures.”    

                                  As a corollary, what we then see being mentioned in para 5 is this: “In view of such allegations as referred above made in the complaint, a case is registered against the 2nd respondent for the alleged offence under Sections 376, 499 and 506(2) of IPC.”

                                       In response, para 6 then brings out that, “When the complaint is under investigation, the 2nd respondent has filed R/Special Criminal Application No. 9897 of 2017 before the High Court of Gujarat seeking quashing of FIR itself and also further consequential steps taken pursuant to the registration of crime.”

                                     Furthermore, para 7 then points out that, “Primarily, it was the case of the 2nd respondent before the High Court that there was absolutely no truth in the allegation of rape as alleged by the appellant and it was only consensual sex between the parties. It is further alleged that in view of the allegations made by the appellant, a settlement is purported to have been arrived at between them in the month of July, 2016. A written agreement was also entered into and the same is signed by the parties. It is stated in the agreement that the dispute between the parties is settled and the 2nd respondent has allegedly paid a huge amount to the appellant. It is further the case of the 2nd respondent that whatever the electronic and other materials lying with the parties were agreed to be destroyed. Further it was the case of the 2nd respondnet that the alleged telephonic calls made by the 2nd respondent to Mr. Shoukin Malik of Rajasthan was absolutely false and baseless. Pleading that the complaint filed and investigation taken up is a gross abuse of process, the 2nd respondent has sought quashing of the proceedings.”

                                                 As we see, it is then observed in para 8 that, “By referring to the rival contentions of the parties and the materials on record, the High Court has recorded a finding that the case of the 2nd respondent falls under Exceptions 5 and 7 as carved out in the judgment of this Court in State of Haryana vs. Bhajanlal & Ors. AIR 1992 SC 604, and further the allegations and facts as mentioend in the FIR, appear to be improbable and the same is malicious prosecution, quashed the proceedings registered against the 2nd respondent.”

                                   Most importantly, while quashing the proceedings of the Gujarat High Court, the Bench then holds in para 13 that, “Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted to the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant that such document itself is obtained under threat and coercion, it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaints and the serious allegations made against the 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.”

                                 Needless to say, it is then also clarified in para 14 that, “Though Learned senior counsel Sri Mukul Rohatgi relied on the judgment of this Court dated 21st August, 2019 in Criminal Appeal No. 1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further  investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law.”

                                Lastly, it is then held in the last para 15 that, “For the aforesaid reasons, this criminal appeal is allowed and the impugned order dated 13th December, 2018 passed in R/Special Criminal Application No. 9897 of 2017 by the High Court of Gujarat is set aside. The 2nd respondent shall appear before the concerned Police Station on 18-11-2019 at 11.00 a.m. and co-operate with the investigation. Till then no coercive action shall be taken against him.”

                                    In conclusion, what the Supreme Court has held in this case is certainly indisputable. If a woman victim has a case that settlement in a rape case was made under threat and coercion, it can’t be quashed by a court! The Supreme Court thus in this case has set aside the order passed by the Gujarat High Court and rightly said that the case shall proceed henceforth  and the respondent shall appear before the concerned police station and cooperate with the investigation!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Plea of Privacy Not Tenable to Resist Gender Detection Test

It has to be remarked first and foremost that in an important and a landmark observation, the Madhya Pradesh High Court has just recently on October 4, 2019 in a notable judgment titled Smt. Surbhi Trivedi Vs. Gaurav Trivedi in Misc. Petition No. 4820 of 2018, held that in a matrimonial dispute, if gender of one of the parties is questioned by the other party, the court may direct such a party to undergo medical examination and the plea of violation of privacy shall not be tenable. This extremely important judgment was passed by Justice Subodh Abhyankar in a petition invoking supervisory jurisdiction of the High Court under Article 227 of the Constitution filed by one Surbhi Trivedi (Petitioner), through Advocate Sampoorn Tiwari, against an order of the Family Court whereby the Principal Judge had directed that her gender be verified by a Government lady doctor. Justice Abhyankar while concurring with the respondent’s-husband contentions clearly held that the Family Court had not committed any illegality or jurisdictional error in directing the petitioner to undergo feminity test. It was held that the parties must be given an opportunity to produce any evidence “having a nexus with the lis”.

                                       Regarding the law laid down, it is clearly mentioned in this judgment right at the outset that, “In a matrimonial dispute, if gender of one of the parties is questioned by the other party, it assumes importance and the party raising such issue also has a right to adduce the evidence in this behalf and the other party to rebut the same. This Court is conscious of the fact that one’s sex/gender is one’s own business, but when it comes to marriage, the other partner’s rights are also closely attached with the same, as it assumes importance to maintain a healthy and peaceful married life, and since he or she also has a fundamental right to life under Article 21 of the Constitution of India, the rights of both the parties are evened out. The plea of violation of privacy or any fundamental right is not tenable.”

                                  To start with, the ball is set rolling in para 1 of this landmark judgment wherein it is envisaged that, “This petition has been field by the petitioner/wife under Article 227 of the Constitution of India against the orders dated 16.8.2018 as also order dated 25.9.2018 passed in Case No. 112-A/2017 by the Principal Judge, Family Court, Jabalpur, whereby the learned Judge, by accepting an application filed by the respondent husband under Section 151 of CPC has directed that the gender of the petitioner be verified by a Government lady doctor and vide order dated 25.9.2018, the petitioner is directed to keep herself available for medical examination on 10.10.2018 before the Dean, Netaji Subhash Chandra Bose, Medical College, Jabalpur.”

                          To recapitulate, it is then pointed out in para 2 that, “Brief facts of the case are that the marriage of the petitioner-wife and the respondent husband was solemnized on 22.11.2009 at Jabalpur and after sometime a dispute arose between the parties which led to the present petitioner-wife filing an application under Section 9 of the Hindu Marriage Act, 1955 in the Family Court, Jabalpur. A reply to the aforesaid application has also been filed by the respondent along with an application under Section 151 of CPC with a prayer that as the petitioner lacks womanly attributes and is a transgender hence she be examined medically at Netaji Subhash Chandra Bode Medical College, Jabalpur. A reply to the aforesaid application was also filed by the petitioner opposing the same on the ground that the marriage between the parties was solemnized on 22.11.2009 and since last eight years the husband has never raised this issue before any authority and suddenly he has realized that the petitioner is transgender, which in itself is absurd hence the application is liable to be dismissed. It was further stated that even according to the reply of the respondent they had consummated the marriage, hence the said application being frivolous be dismissed.”    

                        While elaborating upon the decision of the Family Court, it is then stated in para 3 that, “The learned Judge of the Family Court vide the impugned order dated 16.8.2018 has allowed the said application taking note of the medical papers submitted by the respondent in respect of the petitioner’s physical attributes and it is directed that the petitioner shall get herself examine at the Netaji Subhash Chandra Bose Medical College, Jabalpur and its cost shall be born by the respondent only.”

                               Needless to say, after hearing the learned counsel for the parties and perusing the record as mentioned in para 6, it is then pointed out in para 7 that, “The learned Judge of the Family Court vide its impugned order dated 16.8.2018 has allowed the aforesaid application holding that the medical examination of the petitioner is necessary. In the considered opinion of this Court, no illegality or jurisdictional error has been committed by the learned Judge of the Family Court for the reasons assigned as here under.”

                                Most importantly, it is then very rightly held in para 8 without mincing any words that, “This Court is of the considered opinion that if any evidence having a nexus with the lis between the parties, should be allowed to be produced. In a matrimonial dispute, if gender of one of the parties is questioned by the other party, it assumes importance and the party raising such issue also has a right to adduce the evidence in this behalf and the other party, to rebut the same. This Court is conscious of the fact that one’s sex/gender is one’s own business, but when it comes to marriage, the other partner’s rights are also closely attached with the same, as it assumes importance to maintain a healthy and peaceful married life, and since he or she also has a fundamental right to life under Article 21 of the Constitution of India, the rights of both the parties are evened out. In such circumstances, the plea of violation of privacy or any fundamental right is not tenable.”

                                    It cannot be lost on us that it is then further pointed out in para 9 that, “In the judgment rendered by the Coordinate Bench of this Court in the case of Amol Chavhan Vs. Smt. Jyoti Chavhan, reported as 2012 (1) MPLJ 205, wherein, this Court, in a case where an application was filed by the wife for medical examination of the husband to ascertain if the husband is impotent or not, has held that the order passed by the trial Court directing the medical test of the husband to ascertain the impotency is just and proper. The relevant para 10 and 11 of the said judgment reads as under:-

‘10.  The Apex Court has relied on Sharda vs. Dharampal, reported in (2003) 4 SCC 493 to hold that medical examination by experts is permissible to ascertain the truth of the matter. In view of this, question No. 1 deserves to be answered against the petitioner. The Court below took a plausible stand and, therefore, cannot be interfered in this proceeding under Article 227 of the Constitution.

11. So far the issue regarding infringement of petitioner’s personal or fundamental rights flowing from Article 21 is concerned, in the opinion of this Court, there is no such infringement in a proceeding of this nature, where a question raised regarding impotency of petitioner by the wife, the Court has inherent power to direct the petitioner to undergo medical test.’

Reference may also be had to the judgment of the Hon’ble Apex Court in the case of Dipantia Roy Vs. Ronobroto Roy, reported in (2015) 1 SCC 365 wherein the DNA of the son was directed to be taken where the allegation was of infidelity of the wife by the husband.”

                                          What’s more, it is imperative to now mention that it is then made absolutely clear in para 10 that, “Having held in favour of the medical test, this Court is also of the firm opinion that if such rights to defend oneself are used in a manner so as to harass, scandalize or demoralize the other party, the Courts are competent enough to impose heavy cost on the person alleging the same so as to discourage such practice. In view of the aforesaid, in the considered opinion of this Court no case for interference is made out.”

                                               In other words, the Madhya Pradesh High Court while firmly ruling in favour of medical test which according to it does not violate any right to privacy or any other fundamental right also simultanously makes it amply clear that if such rights to defend oneself is itself made an instrument of oppression by using it as a potential weapon to harass, scandalize or demoralise the the othe party then the Court will not refrain from imposing heavy cost on the person alleging the same to send a strong and unmistakable message that if it is misused then those misusing it would have to face the music of law!

                                Lastly, it is then held in the last para 11 that, “As a result, petition being devoid of merit is hereby dismissed. It is also directed that the petitioner shall be examined as directed by the learned Judge of the Family Court and for this purpose she is now directed to appear before the Dean, Netaji Subhash Chandra Bose Medical College, Jabalpur on 14.10.2019 at 11.30 AM. The report so prepared be furnished to the concerned Court in a sealed envelope for its use in the proceedings.”

                                        In conclusion, it may well be said with a fair degree of satisfaction that Justice Subodh Abhyankar of the Madhya Pradesh High Court has very rightly held and very rightly interpreted in this latest, landmark and extremely laudable judgment that plea of privacy not tenable to resist gender detection test by parties in matrimonial disputes. Parties must therefore be always ready to submit themselves for gender detection test whenever and wherever it is considered necessary! What is wrong in it? Nothing wrong!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.  

Inconvenience of Accused to Approach Court Seeking Permission To Travel Abroad

To start with, we ought to know fully well that the Supreme Court just recently on October 21, 2019 in a notable judgment titled Barun Chandra Thakur vs. Ryan Augustine Pinto & Anr. In Criminal Appeal No. 1618 of 2019 (Arising out of SLP (Cri.) No. 9873 of 2019 (@ SLP (Cri.) Diary No. 26654 of 2019) has observed categorically and convincingly that mere inconvenience in the matter of approaching the court seeking permission to travel abroad cannot be a reason to dilute such condition imposed in an anticipatory bail order. The Apex Court Bench comprising of Justice Arun Mishra and Justice Ravindra Bhat had observed thus in an appeal filed by a victim’s father against the order of the Punjab and Haryana High Court that diluted conditions in the anticipatory bail order by allowing an application filed by the accused. Very rightly so!

                                First and foremost, the ball is set rolling in para 1 of this noteworthy judgment wherein it is pointed out that, “Delay condoned. Permission to file SLP is granted. Leave granted. With the consent of counsel of the parties, the appeal was heard finally.”

                             Delving deeper, it is then pointed out in para 2 that, “The respondent had approached the Punjab & Haryana High Court seeking modification of orders made previously, which had granted anticipatory bail to him. By the impugned order, the conditions governing his anticipatory bail were modified. In these circumstances, the father of the victim of the crime has approached this Court, claiming to be aggrieved by the modifications in the impugned order.”

                                   To recapitulate, it is then pointed out in para 3 that, “The facts necessary for the purpose of this order are brief: a First Information Report (FIR No. 250 dated 08.09.2017) was registered for offence punishable under Section 302 of the Indian Penal Code, 1860 (“IPC”) read with Section 25 of the Arms Act, 1959, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2005 and Section 12 of Protection of Children from Sexual Offences Act, 2012 (POSCO) at Police Station, Bhondsi. Investigation of the said case was transferred to the Central Bureau of Investigation (for brevity “CBI”). Consequently, the case was again registered on 29.09.2017. The respondent was released on interim bail on 07.10.2017, upon furnishing bail bond to the satisfaction of the investigation agency, subject to statutory terms and conditions.”

                                    While going into the nitty gritty of the case, para 4 then reveals that, “The interim bail was subsequently made absolute on 21.11.2017. One of the conditions stipulated in the order of the final bail was that he would not leave India without prior permission of the Court. This order was appealed by a Special Leave Petition. That petition was dismissed on 11.12.2017. After the grant of interim bail, the respondent sought leave to travel abroad for about three weeks between 19.01.2018 and 09.02.2018. By an order dated 18.01.2018, permission was granted. The respondent approached the High Court thereafter, with an application for modification of order granting bail, in so far as the order imposed the restriction on his travel. That application was permitted to be withdrawn. Yet again, on another application CRM-M No. 55170/2018 was filed. In this application, the respondent argued that the CBI had not gathered any incriminating material against him, and that the charge-sheet was filed on 05.02.2018, did not contain any allegation regarding his involvement and role in that crime, and further investigation was kept open under Section 173(8) of Code of Criminal Procedure, 1973 (for short, “CrPC”).”  

                                 Furthermore, it is then pointed out in para 5 that, “In this second application for modification, it was argued that the respondent frequently travelled abroad and the condition of having to secure prior permission was cumbersome and extremely inconvenient. The respondent, in support of his application placed reliance upon certain judgments, including a judgment of this court. The CBI opposed the application, emphasizing that the conditions imposed were not unreasonable, but in the larger interest of justice. It was also pointed out that the conditions were imposed by virtue of Section 437 of the CrPC.”

                                Most importantly, it is then very rightly held by the Apex Court Bench in para 9 that, “On an overall conspectus of the circumstances, this court is of the opinion that since the charge-sheet had been filed, there was no material alteration in the facts, justifying the High Court to modify the conditions governing the grant of anticipatory bail. Significantly, an identical application for modification of the conditions of bail was made earlier by the respondent, which did not meet with success; he withdrew that application. There could be no gainsaying to that the right to travel abroad is a valuable one and an integral part of the right to personal liberty. Equally, however, the pre-condition of securing prior permission before travelling abroad is a crucial ingredient which undoubtedly was engrafted as a condition for the grant of anticipatory bail in this case. Mere inconvenience in the matter of approaching the court, therefore absent of any significant change of circumstances (i.e. framing of charges or no significant or serious material emerging during the trial, in the course of deposition of key witnesses, as to the role of the respondent), ought not to have led to dilution of the terms of the High Court’s previous consistent orders. At best, the condition for seeking permission before travelling abroad could have been regulated, not deleted altogether.”

                                        Finally, it is then held in para 10 that, “Having regard to the above, this Court is of the opinion that the impugned order cannot be sustained; it is accordingly set aside. The condition originally imposed upon the respondent as a part of the order granting anticipatory bail to secure prior permission before travelling abroad is hereby restored. At the same time, the trial court is enjoined and directed to deal with the application seeking permission, whenever made, as expeditiously as possible and in any case, ensure that orders are made within one week of filing it (i.e., application seeking prior permission). It goes without saying that such orders shall be made after considering the view of the CBI and taking note of relevant factors, and at the same time, ensuring that reasonable period before undertaking the travel is also given.” The last para 11 then winds up the judgment by saying that, “The appeal is allowed in the above terms.”

                              In essence, the long and short of this latest, landmark and extremely laudable judgment is that mere inconvenience of the accused in the matter of approaching the court seeking permission to travel abroad cannot be a reason to dilute such condition imposed in an anticipatory bail order! While pooh-poohing the leniency displayed by the Punjab and Haryana High Court, the Apex Court Bench minced just no words to make it absolutely clear that, “At best, the condition for seeking permission before travelling abroad could have been regulated, not deleted altogether.” Very rightly so! All the High Courts and lower courts must always keep this in mind what the Apex Court Bench comprising of Justice Arun Mishra and Justice Ravindra Bhat have laid down so categorically and convincingly! 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.

Justice Sharad Arvind Bobde To Be The New CJI

  It is official now that the seniormost Judge of Supreme Court – Justice Sharad Arvind Bobde to take over from the incumbent Chief Justice of India (CJI) – Justice Ranjan Gogoi on November 18 just a day after Justice Gogoi retires as CJI on November 17! PK Mishra who is the Principal Secretary to the PM Narendra Modi presented the warrant of appointment to the CJI-designate – Justice Sharad Arvind Bobde in New Delhi on October 29, 2019. President Ram Nath Kovind on October 29 appointed Supreme Court Judge – Justice Sharad Arvind Bobde as the next Chief Justice of India from November 18! He was sworn in as Chief Justice of Madhya Pradesh High Court on 16 October, 2012 which he held till 11 April 2013 and was elevated to the Supreme Court on 12 April 2013.

                                    To state the obvious, the notification issued by the Ministry of Law and Justice states that, “In the exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, the President is pleased to appoint Shri Justice Sharad Arvind Bobde, Judge of the Supreme Court, to be the Chief Justice of India with effect from 18th November, 2019.” Justice Bobde has certainly an impeccable reputation of always being polite, precise and yet powerful in expressing himself in his judgments which he has rendered in last so many years in his official capacity as Judge of the Supreme Court! Justice Bobde will be the 47th CJI and will have a fairly long tenure of almost one-and-a-half-years, with his term set to end on April 23, 2021.

                                           Needless to say, Justice Bobde is the second Judge from Maharashtra’s Nagpur region to be appointed CJI after Justice Mohammad Hidayatullah who was the 11th CJI from 25 February 1968 to 16 December 1970. The legal fraternity in Nagpur is certainly extremely delighted over his appointment into the most prestigious chair of CJI and they have every right to feel delighted because Nagpur town becomes the talking point in each and every corner of the country due to his being appointed as CJI. 

                                            He was born on April 24, 1956 at Nagpur and hails from a family of reputed lawyers. His grandfather was a reputed lawyer. His father – Arvind Shriniwas Bobde was a two time Advocate General of the Maharashtra government in 1980 and 1985. Justice Bobde’s elder brother late Vinod Bobde was also a senior Supreme Court lawyer  and a Constitutional expert.

                                          It must be mentioned here that Justice Sharad Arvind Bobde completed Bachelor of Arts and LLB degrees from Nagpur University. Nagpur High Court Bar Association (HCBA) Secretary – Praful Khubalkar, who once worked as a junior lawyer in Justice Bobde’s chamber was all praise for the CJI-designate over his knowledge and professionalism. Without hiding his true feelings, Khubalkar said frankly that, “It’s a proud moment for the legal fraternity in Nagpur that Justice Bobde, once a member of the bar here, has been appointed to the top post in Indian judiciary. He has worked in the Nagpur Bench for several years and he was designated as a senior advocate from Nagpur. Justice Bobde’s arguments in the court as a lawyer used to be so impressive that people would flock to listen to him. I had the opportunity to be in his chamber. I was his junior and closely watched the way he used to work and argue cases. I had the opportunity to be in his chamber. I was his junior and closely watched the way he used to work and argue cases. We have seen Justice Bobde work as a lawyer, senior advocate and then as a Judge of the Bombay High Court here.”

                                                     Not stopping here, Khubalkar further went on to add that, “He used to encourage junior lawyers. Senior members and lawyers here are very happy and delighted over his appointment. In his honour, we are planning a grand felicitation programme.” Nagpur District Bar Association President Kamal Satuja said that, “It was a matter of great pride that a legal luminary from Nagpur has been appointed as the CJI. He is a role model for all members of the legal fraternity. He will always be a source of inspiration for young lawyers who will be encouraged to strive for excellence. It is not only a dream come true for Justice Bobde, but for the entire legal fraternity.” There can be no denying it!

                                               We must also remember that Justice Bobde was appointed an Additional Judge of the Bombay High Court on 29 March 2000 just two years after he was designated as a senior advocate and remained a Judge of Bombay High Court till 15 October 2012. He had a practice of over 21 years and was involved in several high stake cases, including the Adarsh housing society scam and the PIL against Lavasa Corporation Limited. He had the power to always convince Judge by his strong persuasive power armed with deep knowledge of law while he was lawyer for which he shall be always remembered as the lawyers of Nagpur never tire to point out very rightly!

                                               Frankly speaking, when asked about what were his best moments in his 22 years as a lawyer, he took no time in replying honestly that filing insolvency pleas on behalf of 3.9 lakh Maharashtra farmers to save them from debt recovery officers was a very satisfying case. He candidly disclosed that, “The farmers were perennially debt ridden because their products didn’t even fetch them the money invested to grow crops. There was an agitation by Sharad Joshi to stop debt recovery officers of cooperative banks from entering the village as they were taking away the utensils and other items from the farmers’ homes. I advised them and then filed insolvency pleas on behalf of farmers. The Bombay HC and later SC stayed debt recovery from farmers.”  

                                       While recalling his experiences as a Judge, he pointed out that he dealt with a case of a rape-cum-murder of a young girl. A labourer Arumugam was convicted and sentenced. But the investigating officer committed suicide and left a note confessing that he had framed the labourer by planting false evidence and tutored witnesses. Justice Bobde then pointed out that, “I was of the opinion that not only the man should be acquitted, but there should be prosecution of the witnesses who gave false evidence. This case made me realise why a Judge should not only seem to do justice but also strive to do justice by looking deeply into every aspect of every case.”

                                                    It cannot be lost on us that it was Justice Bobde who while being on the Constitution Bench had first pushed for mediation of the Ayodhya dispute in order to “heal heart and minds”. It also cannot be ignored that it was Justice Bobde who had spoken up repeatedly during the 40-day hearings in court on the need to bring the bitter acrimony between the two communities to an end. During the hearing, he had very rightly observed that, “We cannot undo what has already happened. But we can put an end to the acrimony, heal the relationship between the two communities.” What can be more important than this what Justice Bobde has so very rightly pointed out! Justice Bobde has handled many important cases in his more than six-year tenure as a Supreme Court Judge!

                                                  It must be recalled here that it was Justice Bobde who was part of the three-Judge Bench who passed the historic interim verdict that was passed on May 18, 2018, which set aside the order of Karnataka Governor Vajubhai Vala granting Karnataka Chief Minister BS Yeddyurappa 15 days to prove his party’s majority and instead directed that a floor test be conducted within 24 hours. On the administrative side, Justice Bobde headed the first-of-its-kind three-member in-house Committee, also comprising of Justices Indira Banerjee and Indu Malhotra of Supreme Court which gave a clean chit to CJI – Ranjan Gogoi who was facing serious allegations of sexual harassment leveled by a former Supreme Court staffer as they found no substance in those allegations leveled by the woman staffer on CJI Ranjan Gogoi!

                                      It deserves to be mentioned here that a few of the other important decisions passed by Justice Bobde include the two-Judge order passed in 2017, where the Apex Court rejected a woman’s plea seeking termination of her foetus, after reviewing a medical report that the 26-week-old foetus had a chance of survival; and a 2016 order passed by a three-Judge Bench which had suspended the sales of firecrackers in the National Capital Region, citing the extreme pollution. His notable judgments include his bold opinion upholding privacy as a fundamental right. He wrote that the first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal liberty’ and life itself. He also rightly wrote that, “There are innumerable activities which are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy.”

                                                 Happily enough, Justice Bobde was also part of the Apex Court Bench which had rightly insisted that a citizen cannot be deprived of essential services and welfare subsidies of the State for lack of an Aadhaar card. He was also a member of the Apex Court Bench which had rightly suspended the sale of firecrackers in the National Capital Region in 2016 to curb pollution. In 2016, he was part of a Bench led by then CJI TS Thakur which ruled that seeking votes in the name of religion might be a greater evil than whipping up sentiments based on caste or religion. In 2017, he upheld that Karnataka government’s ban on a book on the grounds that it outraged the religious feelings of Lord Basavanna’s followers.  

                                                         It is most heartening to note that Justice Sharad Arvind Bobde is among the seven Judges of the Supreme Court who have disclosed their assets on the Apex Court’s website. When his attention was drawn to the thin presence of women Judges in the Constitutional Courts, he said politely that, “I will strive for an objective and unbiased approach to select more women Judges for the High Courts and the Supreme Court. But, the problem is their availability. They have to be 45 years or more to be eligible for selection as HC Judges. So, we cannot create woman Judges for Constitutional Courts overnight. They have to be in the system.” When asked whether there is a systemic bias against selecting more women Judges, he retorted that, “No, it is because of their non-availability. There could be another reason for this. Whenever the Collegium proposes a name to government for appointment as HC Judge, a steady stream of complaints pour in making all kinds of allegations. May be, the women do not want, and rightly so, to get enmeshed in such unwarranted controversies created by frivolous complaints.”

                                           On the question of age of Judges, Justice Bobde is on the same page as CJI who proposed to the Union Government to increase the retirement age of High Court Chief Justices and Judges of High Court to 65 years from the present 62 years. He struck the right chord when he said that, “It will ease the competition to become a Supreme Court Judge. But more importantly, it is a waste of experience and talent acquired over the years, if a Judge is eased out of the system at the age of 62 years when the person is at the peak of his intellectual ability.”   

                                       On appointments of Judges, he said that, “I agree there should be transparency in appointments but I also believe that protection of a person’s reputation is also important. We don’t complain why someone is not inducted in the Cabinet, as reasons for non inductions are not crucial. Similarly, in the army, do you say that why so and so has not been made a general? I don’t think withholding such things amount to secrecy, it’s primacy.”

                                                       While defending the time taken in the appointments of Judges, he agreed that the process was long drawn but said there was reason for it. He said that a lot of inputs are taken into account while appointing the Judges adding also that the information is processed at the High Court Collegium level, then at the Supreme Court level, and sometimes even independent information is taken into consideration. Many senior lawyers have wished him and hoped that justice will be delivered in time under his leadership! Sanjay Hegde who is a senior advocate in Supreme Court too said that, “I wish him good luck and good health, for the task ahead. Hopefully, he will be a calming influence in what looks like increasing turbulent times. Many high courts are working at half strength due to lack of appointments. His pleasant but firm personality may yet smoothen the path of judicial regeneration.”

                                                   We recently saw how Justice Bobde was heard saying in his courtroom that it was only lately that the Judges had understood the benefits of hearing a case continuously, without a break, as they had heard the Ayodhya dispute. This may be an indication that, in future, important cases may be heard on a day-to-day basis in the top court! What can be more good news than this for the litigants?

                                            In conclusion, it will be the biggest boon for litigants if cases are decided in time and Justice Sharad Arvind Bobde seems fully committed to achieve that! What more can litigants ask? We all must wish him the very best for all the challenges and opportunities that lies in his tenure as CJI!

                                              One is pretty confident that he will certainly rise high to fulfil the huge expectations that litigants and people have from him! His cool, calm yet firm approach while deciding cases will certainly immensely benefit our nation! He rightly says that, “Questioning by itself is healthy, but they should not be mala fide and vicious. Personal attacks on Judges are uncalled for and destructive. It is not only the authority of the judiciary which is under challenge by social media, online articles and opinion heads but every kind of authority worth its name. What is happening in society? There is challenge to authority of parents, schools, the Parliament. This is the age of challenging authority.” Justice Bobde has rightly pointed out and we all must strive to ensure that we behave in a disciplined way and refrain from such conduct which is totally uncalled for! There can certainly be no denying it!    

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.