While clearly and convincingly holding that possessory title over property cannot be claimed merely on the basis of ‘casual possession’, the Supreme Court in a latest, landmark and laudable judgment titled Poona Ram v. Moti Ram (D) Th. LRs & Ors. In Civil Appeal No. 4527 of 2009 authored by Justice Mohan M. Shantanagoudar for himself and Justice NV Ramana on January 29, 2019 observed that a casual act of possession does not have the effect of interrupting the possession of the rightful owner. Very rightly so! Who can deny it?

                                First and foremost, the ball is set rolling in para 1 wherein it is observed that, “The judgment dated 28.08.2006 passed by the High Court of Judicature of Rajasthan at Jodhpur in Civil Second Appeal No. 97 of 1984 and the concurrent judgment dated 10.10.2006 in Civil Review Petition No. 18 of 2006, dismissing the same, are called in question in this appeal by the unsuccessful defendants.”

                                      To recapitulate, it is then pointed out in para 2 that, “The brief facts leading to this appeal are as under:

     A suit came to be filed for declaration of title and for possession by Respondent No. 1 herein. Undisputedly, the plaintiff  Moti Ram had no document of title to prove his possession, but claimed possessory title based on prior possession for a number of years. However, according to the plaintiff, he had been wrongly dispossessed by defendants on 30.04.1972 which was within the 12 years preceding the filing of the present suit. The Trial Court decreed the suit and the First Appellate Court reversed the findings of the Trial Court. The First Appellate Court dismissed the said suit on the ground that the defendants had proved their title and possession over the suit property.”

                                       Going forward, it is then eloquently mentioned in para 3 that, “As mentioned supra, the plaintiff did not have any title deed with respect to the suit property. He based his claim mainly on his alleged long possession over the property, and claimed that there was nobody with better title over it than him. Per contra, the defendants relied on two sale deeds, viz., Ex. A-6 dated 06.02.1956, executed by the original owner Khoom Singh in favour of Purkha Ram, and Ex. A-2 dated 21.06.1966, executed by Purkha Ram in favour of the appellant/Defendant No. 1. It was also not disputed that the plaintiff did not have possession as on the date of filing of the suit, inasmuch as he has alleged that he was wrongly dispossessed by the defendant on 30.04.1972 prior to filing the suit.”

                                   To be sure, it is then revealed in para 4 that, “The only questions to be decided in this appeal are whether the plaintiff had better title over the suit property and whether he was in settled possession of the property, which required dispossession in accordance with law.”

                         As it turned out, para 5 while elaborating on what the appellant contended states specifically that, “Ms. Christi Jain, learned counsel appearing for the appellant/Defendant No. 1 taking us through the material on record, contends that there is nothing on record to show that the plaintiff was in possession of the property at any point of time, much less for a longer time lawfully. There is no material to show that the plaintiff has possessory title over the suit property. Additionally, she argues that the sale deeds mentioned supra relied upon by the defendants would clearly reveal that the defendants were in possession of the property as owner thereof, from the date of purchase of the suit property.”

                                      It cannot be lost on us that it is then unfolded in para 6 that, “Undisputedly and as duly admitted by both parties, the property in question originally belonged to Jagirdar Khoom Singh of Barmer. The property in question is part of a larger property under the Jagirdari system, a few parts of which were rented out or sold. After the system of Jagirdari was abolished, these jagirs were resumed in the year 1955-56. While a few persons continued in illegal possession, others had purchased parts of the land from the Jagirdar, and the remaining land vested in the State Government and municipalities. After the resumption of the jagir, it seems that the Barmer Municipality established a planned and well-managed colony named Nehru Nagar on the said land. Ex. 12, Ex. 13 and Ex. 14 are the survey maps of the Municipality. A perusal of Ex. 12 (first survey) reveals that Moti Ram was in possession of the land, the plot to the east of which was possessed by Nawala Harijan and in the east of Nawala Harijan’s plot, possession of Purkha Ram (to recall, predecessor-in-interest of the defendants) on the site has been indicated. Further, the possession of Purkha Ram has also been indicated on a plot to the south of the land duly possessed by Moti Ram. Thus, it is clear that the plots of land owned by Khoom Singh, in possession of these persons, were not uniformly situated. However, after the Municipality took over possession, it seems that orderly formation of the plots was undertaken. Though there was some confusion raised by the plaintiff with regard to the boundaries of the property in question, the First Appellate Court being the final court of fact, on due appreciation of the entire material on record, gave a definite finding that the Trial Court was not justified in decreeing the suit, and observed that Purkha Ram was in possession of the property in question even prior to 1966, and had sold the same through registered sale deed in June 1966 vide Ex. A-2. This sale deed shows the measurement of the land, which corresponds to the plots in question approximately. The judgment of the First Appellate Court reveals that the Municipality had let out only three plots to the Jagirdar, and those three plots together measured 32 x 66 hands (unit of measurement). Thus, each plot measured 32 x 22 hands. These were numbered as Plot No. 4, Plot No. 5 and Plot No. 7. The disputed site is Plot No. 7.”   

                                   Truth be told, para 7 then goes on to disclose that, “The official record (survey map), Ex. 14, which relates to the plot in question, i.e., Plot No. 7, reveals that it was owned by Poona Ram, who is Defendant No. 1 and the appellant herein. It is also relevant to note that sanction for constructing the house was given to Purkha Ram in the year 1957. Obviously, such sanction would have been accorded only on the basis of title and possession of the property.”

                                     To put things in perspective, para 8 then goes on to elucidate while explaining the concept behind suit based on possessory title that, “Section 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguishable from proprietary title. It cannot be disputed and is by now well settled that ‘settled possession’ or effective possession of a person without title entitles him to protect his possession as if he were a true owner.”    

                                  It would be pertinent to now mention here that para 9 then goes on to illustrate specifying that, “The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence (12 Edn. at paras 59-60) states:-

    “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.

x                        x                     x                      x                        x

In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.

Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit)”.”

                                 Back home, it is then worthily recalled in para 10 about the relevant past noteworthy judgments that, “As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. V. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. V. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section 6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior permission within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.”

                                           Now turning to para 11, it goes on to then add further that, “It was also observed by this Court in Nair Service Society Ltd (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiffs and thus be able to raise a presumption prior in time.”

                                     Not stopping here, it is then pointed out in para 12 that, “In the case of Rame Gowda (dead) by Lrs. v. M. Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC 769, a three-Judge Bench of this Court, while discussing the Indian law on the subject, observed as under:-

   “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner”.”

                                In essence, it is then summarized in para 13 laying down that, “The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

                                        Having said this, let us now see what para 14 enunciates. It enunciates that, “As mentioned supra, Purkha Ram had purchased three plots from Jagirdar Khoom Singh. In sale deed Ex. A-6, three plots have been mentioned as plots of three houses. One of these, being Plot No. 7, was sold by Purkha Ram to the appellant, one plot being Plot No. 4 was sold to Teja Ram and the third plot being Plot No. 5 was retained by Purkha Ram.” 

                             It would be pertinent to mention here that para 15 then stipulates that, “In order to prove possession of the property, the plaintiff relied upon the rent note Ex. 1, which shows that the plot in question was let out by the plaintiff to one Joga Ram in the year 1967. On 12.05.1967, a fire broke out and the entire fodder stored on the plot got burnt. Thereafter, the plot was kept vacant. DW-7, who has been referred to in order to establish spreading of the fire, stated that the fire started due to sparks coming from a railway engine. But there was no railway line adjacent to the disputed land which could have caused a fire. Even otherwise, the rent note Ex. 1 does not refer to the plot in question, and its boundaries have also not been mentioned. Merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession.”       

                           While strongly rebutting the tall claims of the plaintiff, it is then pointed out in para 16 that, “The plaintiff/Respondent No. 1 makes much of the old body of a motor vehicle belonging to him lying on the property. Ex. 2 clearly reveals that one part of the motor vehicle was lying on the disputed property and another part was lying on the plot of the plaintiff. The said body of the motor vehicle is about 3 to 4 feet in length only and the same was lying on the boundary of the disputed property. But the plaintiff/Respondent No. 1 claims possession of the entire plot based on such fact. Absolutely no material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff.”          

                     To say the least, it is then clarified in para 17 that, “The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. Even otherwise, there is no confusion at all regarding the identity of the property in question and on the basis of material on record, the First Appellate Court has correctly ruled that the appellant/Defendant No. 1 has proved his title and possession over the suit property since the date of his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same.”

                                      After considering the position of law and facts of the case, it is then spelt out in para 18 that, “Having regard to the position of law and facts of the case, we are of the considered opinion that the High Court was not justified in interfering with the judgment of the First Appellate Court, which has come down very heavily on the procedure adopted by the trial Judge in deciding the matter, more particularly when no fault can be found on facts with the judgment of the First Appellate Court.”

                                   In this same para 18, it is then also spelt out that, “Generally, it is not open to the High Court to interfere with the findings of fact recorded by the First Appellate Court when such findings are based on the evidence on record, and are not perverse or against the material on record.”

                                    More importantly, it is then held in para 19 that, “The conclusion arrived at by the High Court and the reasons assigned for the same are not correct inasmuch as there is absolutely no material in favour of the case of the plaintiff to show possessory title. In order to claim possessory title, the plaintiff will have to prove his own case, and also will have to show that he has better title than any other person. Since there is no documentary proof that the plaintiff was in possession of the suit property, that too for a long period, he cannot be allowed to succeed based on minor discrepancies in the evidence of the defendants. Accordingly, the appeal succeeds and is allowed.”

                           Finally, we see that in the last para 20, it is then held that, “The impugned judgment of the High Court dated 28.08.2006 and its review stands set aside and the judgment of the First Appellate Court is restored. Consequently, suit stands dismissed.” No doubt, this latest, landmark and laudable judgment leaves no room of doubt for anyone to reach the foregone conclusion that casual act of possession over property does not confer possessory title. We all must also always bear it in mind along with other salient points highlighted so brilliantly in this significant and laudable judgment!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.  

It has to be said right at the outset that in a landmark, latest and laudable judgment titled Rajesh v State of Haryana in Criminal Appeal No. 93 of 2019 (Arising out of SLP (Cri.) No. 8867 of 2016)  by a two Judge Bench of Supreme Court comprising of Justice L Nageshwara Rao who authored the judgment for himself and Justice MR Shah and delivered on January 18, 2019, the Supreme Court very clearly and convincingly reiterated that conviction under Section 306 of the Indian Penal Code (Abetment of Suicide) is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. The Bench was considering an appeal in this case against the High Court judgment that had confirmed the conviction of Rajesh for abetting suicide of his brother-in-law, Arvind. It may be recalled that in his suicide note, Arvind had disclosed that false allegations of demand of dowry were made against him and that a Panchayat was also conducted in which he was slapped by the accused. He took the extreme step of committing suicide as he was unable to withstand the harassment and had said in the suicide note that his in-laws including the accused are responsible for his death.  

                                  To start with, this landmark judgment begins by first and foremost pointing out in para 1 that, “The Appellant was convicted under Section 306 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) and sentenced to undergo five years rigorous imprisonment. The appeal filed by the Appellant was dismissed by the High Court. Hence, this appeal.”

                                   To recapitulate, the ball is then set rolling in para 2 wherein it is pointed out that, “According to the complaint filed by Bharat Singh (PW-1), his son Arvind was married to Manju, daughter of Laxmi Narayan on 07.11.2000. Indera is the sister-in-law of Arvind and the Appellant Rajesh is his brother-in-law. Arvind committed suicide on 23.02.2002 by consuming Sulfas tablets. On 01.03.2002 when Bharat Singh and other family members entered into the room of Arvind to sprinkle Gangajal, they found a suicide note on the bed of the deceased. It was stated that Arvind committed suicide due to the behavior of the Appellant, Laxmi Narayan and Indera who made false allegations against deceased regarding demand of dowry. A Panchayat was held in the village at the instance of the accused during which the Appellant slapped the deceased. The Appellant and his sister Indera used to threaten the deceased on telephone at the instance of their father Laxmi Narayan.”

                                 Elaborating further, it is then pointed out in para 3 that, “In the suicide note, the deceased Arvind stated that false allegations of demand of dowry were made against him and that a Panchayat was also conducted in which there was an attempt to assault him. There were continuous threats from his father-in-law (Laxmi Narayan), his brother-in-law (Appellant) and the sister-in-law (Indera) that his family members will also be implicated in a criminal case. Unable to withstand the harassment, the deceased took the extreme step of committing suicide and held his father-in-law, the Appellant and his sister-in-law responsible for his death.”

                                 Going forward, para 4 then goes on to further elucidate that, “On completion of investigation, a charge-sheet was filed under Section 306 IPC. 12 witnesses were examined on behalf of the prosecution and Manju, wife of the deceased was examined as DW-1. On a consideration of the oral and documentary evidence, the Trial Court held the Appellant, his father and sister guilty of committing the offence under Section 306 IPC. The Appellant and his father Laxmi Narayan were sentenced to imprisonment of five years. Accused Indera was sentenced to three years imprisonment on being convicted for committing an offence under Section 306 IPC. The Trial Court took note of the Panchayat that was held in September 2001 which was five months prior to 23.02.2002 on which date Arvind committed suicide. Reference was also made to the evidence of PW-1 (Bharat Singh) who stated that he and his son Arvind (deceased) had forgotten about the Panchayat episode in view of the apology tendered by the accused. However, the Trial Court observed that continuous threats held out by the accused to implicate the deceased and his family members in a false dowry case assume importance. The Trial Court also relied upon the suicide note to hold the accused guilty of the offence of abetment to suicide. The version of the defence that Arvind Committed suicide due to his depression, due to unemployment and lack of income, was rejected.”     

                                    Not stopping here, para 5 then goes on to further elaborate stating that, “The appeal filed by the Appellant was dismissed by the High Court. The conviction and sentence of Laxmi Narayan and Indera were set aside by the High Court by the same judgment. The High Court referred to the suicide note Exhibit ‘PA’ to conclude that there was no error committed by the Trial Court in convicting the Appellant. The High Court also relied upon the evidence of PW-1 and PW-5 who spoke about the convening of the Panchayat by the accused in September, 2001 during which false allegations were made against the deceased. The High Court upheld the conviction of the Appellant while acquitting his father and sister, only on the ground that the Appellant slapped Arvind during the Panchayat which was conducted in September, 2001.”

                       Be it noted, para 6 then goes on to illustrate that, “It is no doubt true that Arvind committed suicide on 23.02.2002. He left a suicide note which was found by his family members on 01.03.2002. There is also no dispute that Arvind blamed his father-in-law (Laxmi Narayan), his sister-in-law (Indera) and the Appellant for harassment and threats that he would be implicated in a false case of demand of dowry. Admittedly, a Panchayat was held in September, 2001 during which the accused leveled allegations of demand of dowry by Arvind. More than five months thereafter, Arvind committed suicide on 23.02.2002. In the meanwhile, according to the prosecution, Arvind was being threatened by the accused through telephone conversations. The point that arises for our consideration is whether the Appellant can be held guilty for committing an offence under Section 306 IPC in the facts and circumstances of the case.”

                                        It would be pertinent to mention here that para 8 then goes on to add stating that, “Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. (See Amalendu Pal alias Jhantu v. State of West Bengal (2010) 1 SCC 707).”

                                    More importantly, it is very rightly held in para 11 that, “We are of the opinion that the evidence on record does not warrant conviction of the Appellant under Section 306 IPC. There is no proximity between the Panchayat held in September 2001 and the suicide committed by Arvind on 23.02.2002. The incident of slapping by the Appellant in September, 2001 cannot be the sole ground to hold him responsible for instigating the deceased to commit suicide. As the allegations against all the three accused are similar, the High Court ought not to have convicted the Appellant after acquitting the other two accused.”

                                      Most importantly, it is then held in para 12 that, “We are not in agreement with the findings of the Trial Court that the deceased (Arvind) committed suicide in view of the continuous threats by the accused regarding his being implicated in a false case of demand of dowry. The evidence does not disclose that the Appellant instigated the deceased to commit suicide. There was neither a provocation nor encouragement by the Appellant to the deceased to commit an act of suicide. Therefore, the Appellant cannot be held guilty of abetting the suicide by the deceased.” Very rightly so!

                                Finally, the last para 13 then concludes by stating that, “For the aforementioned reasons, the appeal is allowed and the conviction and sentence of the Appellant is set aside. His bail bonds stands discharged.” There can be no denying or disputing it! The Apex Court has given valid and compelling reasons for holding so as we have already discussed above!

                                 It also rightly cited the case of Praveen Pradhan v State of Uttaranchal (2012) 9 SCC 734 in para 10 wherein it was held that, “Words uttered in a fit of anger or omission without any intention cannot be termed as instigation.” The accused neither provoked nor encouraged the deceased to commit an act of suicide then how could he be held liable for the same? This was what the Apex Court also very rightly concluded in this landmark, latest and laudable judgment for which it has to be richly commended!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has to be said right at the beginning that in a landmark, latest and laudable judgment with far reaching consequences, the Supreme Court on January 18, 2019 in Nand Kishore v State of Madhya Pradesh in Criminal Appeal No. 94 of 2019 (Arising out of S.L.P. (Crl.) No. 7645 of 2013) has commuted to life imprisonment the death sentence which was earlier confirmed by the Madhya Pradesh High Court of a convicted for the rape and murder of an eight-year-old girl. It must be noted that this notable judgment which was authored by Justice R Subhash Reddy for himself, Justice Sharad A Bobde and Justice L Nageswara Rao took a balanced and reasonable view after taking into account all the facts and circumstances of the case. This alone explains why death penalty was not confirmed rather was commuted to that of life imprisonment with actual imprisonment of 25 years  without remission.

                                         While craving for the exclusive indulgence of esteemed readers, it must be informed here that the Bench of Apex Court observed right at the outset in para 2 that, “This criminal appeal is filed by the appellant in Criminal Appeal No. 798 of 2013 filed before the High Court of Madhya Pradesh at Jabalpur, aggrieved by the judgment dated 25.06.2013. By the aforesaid judgment, while dismissing the appeal preferred by the appellant herein convicted for the offence under Sections 302, 363, 366 and 376(2)(i) of the Indian Penal Code (IPC), the High Court answered the reference in affirmative by confirming the death sentence awarded to the appellant.”

                            To recapitulate, para 3 then starting from the scratch brings out that, “Necessary facts, in brief, giving rise to this appeal are that the deceased, a minor girl aged about 8 years, had gone to attend the ‘Mela’ along with her younger brother namely Chhunu (PW-4) on 03.02.2013. It is the case of the prosecution that the appellant who is aged about 50 years then, took away the deceased from the ‘Mela’ and committed rape and murdered her. Narendra (PW-2) informed the police stating that his daughter, who had gone to attend the ‘Mela’, has not returned home. Upon such complaint, case was registered and investigation commenced. In the course of investigation one Amit Mourya (PW-1) informed the Investigating Officer that when he was coming to his shop from residence, he saw a dog running away with a leg of a child in its mouth and on being chased, the dog dropped the leg and ran away. Further, it was the case of the prosecution that in the process of investigation, Investigating Officer found a headless body of the deceased in the bushes near the ‘Dushera Maidan’, Bhopal. It is alleged that the left leg of the deceased was found at a distance of 100 ft and both legs were fractured. Further, it is noticed that there were severe injuries on the private parts of the deceased inflicted by the appellant due to which the intestine had come out. During the process of investigation the statement of the appellant was recorded under Ex. P8 and the blood stained cloths and articles he used for the offence were recovered from his house. After completing the investigation, the appellant was chargesheeted for the offence punishable under Sections 363, 366, 376(2)(i) and 302 of the IPC and Sections 5 and 6 of Protection of Children from Sexual Offences Act, 2012.”

                                     Needless to say, it is then brought out in para 4 that, “The trial court, after appreciation of the evidence on record, which is mainly circumstantial, came to the conclusion that the appellant has committed rape on the minor girl and murdered her and further, by recording a finding that the crime committed by the appellant is heinous and barbaric, falls within the category of ‘rarest of rare’ cases, imposed the death sentence. The appellant is also convicted and sentenced for the offence punishable under Sections 363, 366, 376(2)(i) of the IPC. In view of the award of death sentence, the trial court has made a reference to the High Court for confirmation, as contemplated under Section 366 of the Code of Criminal Procedure (Cr.PC). Questioning the conviction recorded and sentence imposed, the accused has filed appeal in Criminal Appeal No. 798 of 2013 and the High Court has disposed of, by common judgment, Criminal Reference No. 05/2013 and Criminal Appeal No. 798/2013. The High Court, by judgment dated 25.06.2013, while dismissing the appeal of the appellant, has affirmed the reference confirming the death sentence awarded to the appellant.” The Bench then observes in para 5 that, “We have heard learned senior counsel for the appellant, Sri Sanjay R. Hegde and also learned counsel appearing for the State Ms. Swarupama Chaturvedi.”

                                        What must be noted here is that the learned senior counsel for the appellant Sanjay R Hegde while pooh-poohing the manner in which the trial court and the high court imposed death sentence on the appellant called for it to be modified as we see has been pointed out also in para 6 which states that, “In this appeal, it is contended by learned counsel for the appellant that there is no acceptable and convincing evidence to prove the guilt of the accused beyond reasonable doubt, the appellant is convicted by the trial court based on the circumstantial evidence which is not enough to record guilt of the accused. It is submitted that from the evidence on record, the prosecution has also failed to prove concept of ‘last seen’. It is further submitted that the trial court as well as High Court has committed error in imposing the death sentence upon the appellant without examining mitigating circumstances. It is submitted that the sentence imposed is illegal and contrary to the legislative mandate under Sections 235(2) and 354(3) of the Cr.PC. It is contended that without examining relevant considerations of legislative policy discernible from Sections 354(3) and 235(2) of the Cr.PC, only by recording a finding that the incident is barbaric, the trial court and the appellate court have recorded that the case of the prosecution falls under ‘rarest of rare’ cases and imposed death sentence. It is submitted that all the mitigating circumstances which exist were to be considered. The penalty of death imposed is required to be modified.”       

                                        What is more, it is then pointed out further in para 7 that, “To support his contention, learned counsel has referred to certain cases decided by this Court in identical circumstances. It is specifically submitted that relevant aspects, like, the socio-economic background of the appellant, lack of criminal antecedents, possibility of reform, are not considered. It is also brought to the notice of this Court that the local Bar Association, Bhopal had refused to represent the appellant, as such, the appellant was not represented by counsel before the trial court until the date of the framing of the charge. On request made by the appellant on the day of framing of charge, for grant of legal aid, trial court has requested one Mr. Katyayani to appear and the same day charges were framed and the trial was preceded with.”

                             It is beyond a shadow of doubt that the local Bar Association of Bhopal by refusing to represent the appellant has done no good to the victim who was brutally raped and murdered! It only served to arouse sympathy among the Judges of the Apex Court who decided this case as the accused was not represented by any lawyer in lower court! This only worked to the advantage of the accused!

                                    Of course, every accused has a right to be defended by a lawyer no matter how heinous the crime may be and this among other reasons only served to save the appellant from being pushed to the gallows! Let us not be oblivious of the irrefutable and basic principle of law that, “One of the cardinal principles of the criminal justice system in India is that an accused is deemed innocent until proven guilty.”  The Apex Court too has time and again sent a loud and clear message that every accused has a right to be represented by an advocate of his choice and this is reiterated in Section 303 of Cr.PC also and no accused under any circumstances should be condemned unheard as the doctrine of audi alteram partem very clearly enunciates which literally means “hear the other side”!

                                 To be sure, no accused should be judged without a fair hearing in which the accused too are given the opportunity to respond to the evidence against them. How can this be possible if they are denied access to lawyer who is supposed to represent them? All lawyers who are in the legal profession must always bear it in mind!

                        Anyway, coming back to the case itself, it is then finally and most importantly rightly pointed out in para 14 that, “The learned counsel appearing for the State has placed reliance on the judgment of this Court in the case Mukesh & Anr. V. State (NCT of Delhi) & Ors (2017) 6 SCC 1 [known as Nirbhaya case] in support of her case and submitted that applying the ratio laid down in the aforesaid judgment, the case falls in the ‘rarest of rare’ cases attracting death penalty. With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra) is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) of the Cr.PC to impose death penalty on the accused. Taking into account the evidence on record and the totality of the circumstances of the case, and by applying the test on the touchstone of case law discussed above, we are of the view that the case on hand will not fall within the ‘rarest of rare’ cases. In that view of the matter, we are of the view that the death sentence imposed by the trial court, as confirmed by the High Court, requires modification. Accordingly, this appeal is allowed in part; while confirming the conviction recorded by the trial court, as confirmed by the appellate court, we modify the sentence to that of life imprisonment with actual period of 25 years, without any benefit of remission. It is further made clear that sentences imposed for all offences shall run concurrently.”

                              All said and done, this landmark, latest and laudable judgment clearly and convincingly has sent a loud and clear message that death sentence should not be inflicted at the drop of a hat! There must be very serious and compelling reasons and the case must fall within the ‘rarest of rare’ cases! If there are chances of accused reforming himself/herself then death penalty should not be imposed. All courts from top to bottom must abide by what has been laid down by the Apex Court in this landmark case!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It must be noted right at the outset that in a noteworthy judgment titled Sadhna Chaudhary v State of U.P. and others in Writ Petition No. 170 (S/B) of 2006 by a two-Judge Bench of Allahabad High Court comprising of Chief Justice Govind Mathur and Justice Shabihul Hasnain and delivered on 12 December 2018 has upheld the dismissal of a judicial officer on grounds of misconduct, on the basis of two orders passed by her in land acquisition cases. This has certainly sent shockwaves across Uttar Pradesh especially in judicial circles. The legal battle is still not over as she (the petitioner) still has the right to challenge this in the Apex Court which is the highest court in India! But certainly it is a big setback for her!

                         First and foremost, it is pointed out in para 1 that, “Heard Sri Prashant Chandra, Senior Advocate, assisted by Ms. Mahima Pahwa, learned counsel for petitioner, learned Standing Counsel for State of U.P. as well as Sri Upendra Nath Mishra for High Court of Judicature at Allahabad, opposite party no. 2.” The ball is then really set rolling in para 2 wherein it is pointed out that, “Present petition has been filed by a judicial officer against the order passed by the Appointments Department of the State Government dated 17.01.2006, by which the petitioner was dismissed from service on the recommendation of the Full Court of the Hon’ble High Court of Judicature at Allahabad.” Para 3 then brings out that, “Petitioner was working as Additional District Judge, Ghaziabad when the impugned order was passed. Petitioner has prayed that a direction be issued for not giving effect to the dismissal order dated 17.01.2006 and thereafter allow her to discharge her duties as before.”

                                While striking a note of caution, it is then underscored in para 4 that, “Great caution is required in this case because it is a matter of a high ranking judicial officer and her career, which is at stake. It will therefore be necessary to first lay down the facts of the case before dealing with the arguments and law on the subject.”

                           Delving deeper, para 5 then very clearly and convincingly points out that, “The petitioner had initially joined the services as Additional Munsif in the year 1972. She was later on promoted as Civil Judge (Senior Division) in the year 1983. She was subsequently promoted to the Higher Judicial Cadre in the year 1987. While she was posted as 2nd Additional District Judge, Ghaziabad, the petitioner had decided a Land Acquisition Reference No. 193 of 2006 (Lile Singh v. State & 35 others) on 10.2.2003 and while deciding the said Land Acquisition Reference, the petitioner had relied on the rates of a compromise deed but she awarded solatium, additional amount and interest etc. over and above the said agreed rates. This rate was over and above the rate at which two other claimants had entered into the  compromise deed. This compromise deed was relied by the petitioner as the exemplar in Rs. 284 per square yard was the rate agreed between the parties which was inclusive of all such benefits i.e. solatium, interest and additional amount. The petitioner relying on the same should instead of stucking to the same, enhanced the rate of Rs 74.40 per square yard determined by the Special Land Acquisition Officer (SLAO) to Rs 264/- per square yard i.e. Rs 20/- less than compromise rate and thereafter she allowed, addition of solatium, additional compensation and interest etc. which actually made the landing cost as Rs. 720/- per square yard. Thus the aforesaid enhancement was appear to be disproportionate and against judicial propriety and norms. It was also not justified on her part to rely on the rates of compromise deed and take it as market rate because it was barred under Section 11(3) of the Land Acquisition Act and thereafter allowing additional amount over and above that agreed rate which was completely incomprehensible.”   

                                    While continuing in the same vein, it is then added in para 6 that, “Similarly while being posted as Additional District Judge, Court No. 1, Ghaziabad, the petitioner had decided another Land Acquisition Reference No. 91 of 2001 (Umesh Chandra v. State & 66 others) on 07.11.2003. While deciding the said reference, the petitioner had illegally disregarded all the exemplars filed by the defendants including her own award dated 16.08.1988, passed in another case only five months prior to acquisition for the land acquired in the same village and in the same area and under the same Scheme in which she herself had awarded only Rs. 108 per square yard. Thus while ignoring the aforesaid relevant material available on record, the petitioner has enhanced the rate of compensation to Rs. 100/- per square yard to Rs. 160/- per square yard. The aforesaid enhancement also appears to be disproportionate and the said reference appears to be decided against the judicial norms. In the meantime, this Court while deciding a First Appeal filed by Agra Development Authority against an order of land Acquisition Reference, passed a judgment and order dated 5.3.2004. In this judgment some far reaching observations were made with regard to the manner in which Land Acquisition References were being decided in the State of U.P. Further a direction was issued to the Registrar of the High Court to place the copy of the judgment before the Administrative Committee of the High Court for taking appropriate action against the concerned judicial officers, who appear to be in collusion with the claimants/beneficiaries.”

                                  Going forward, it is then added in para 7 that, “In compliance of the aforesaid judgment, a Committee was constituted by the High Court for looking into the matter, which submitted its report on 19.9.2004, where after the Administrative Committee resolved to initiate disciplinary proceeding against certain judicial officers including the petitioner, whose actions were prima facie found to be suspicious.”

                                 To be sure, it is then revealed in para 8 that, “A charge sheet was issued to the petitioner on 25.10.2004 containing two separate charges in the aforementioned two separate cases about recklessly deciding the aforesaid two Land Acquisition References of Lile Singh (supra) and Umesh Chand (supra) and awarding additional amount including additional compensation, solatium and interest etc. in violation of all judicial norms and propriety, which led to the inference that the same was actuated by extraneous considerations and which indicates towards a failure of maintenance of absolute integrity and complete devotion to duty. This amounted to misconduct and, therefore, the petitioner was asked to submit a detailed reply to the said charges.”

                                 Not stopping here, it is then elucidated in detail in para 9 that, “The petitioner submitted her reply on 4.1.2005 followed by supplementary reply dated 19.5.2005 and 21.6.2005 wherein she tried to explain her conduct and the manner in which the aforesaid two Land Acquisition References were decided by her. Thereafter the enquiry proceedings were held after following the principles of natural justice and giving opportunity of hearing to the petitioner. Finally an enquiry report was submitted by the Enquiry Officer on 9.9.2005 in which a conclusive finding was given by the two Hon’ble Judges appointed as enquiry committee, that errors in both the aforesaid orders passed by the petitioner while deciding two Land Acquisition References are not mere error in the judgment but they are such blunders, which according to the Enquiry Judges was ‘shocking’. Since the said blunders were not attributable to mere errors of judgment which can be corrected in Appeal or in Revision, but were evidently deliberate, therefore, the Enquiry officer had proved both the charges against the petitioner.”

                       It is then elaborated further in the same para 9 that, “Consequent to the above enquiry report the matter was placed before the Hon’ble Chief Justice with regard to determination of question of quantum of punishment. When the aforesaid enquiry report dated 9.9.2005 was placed before the Hon’ble Chief Justice, the matter was directed to be placed before the Administrative Committee by the Hon’ble Chief Justice vide order dated 12.9.2005. Thereafter the office had put up a report dated 17.09.2005 that as per an earlier resolution of the Administrative Committee dated 28.02.1997, it would be appropriate to first call for comments of the delinquent officer to the show cause notice which may be given to her regarding the aforesaid enquiry report, with the approval of the Hon’ble Chief Justice. Thus a show cause notice was served on the petitioner on 26.09.2005, whereby the copy of the enquiry report was furnished to her and objections to the same were invited from the petitioner, who submitted her detailed reply on 22/24.10.2005. The same was placed before the Administrative Committee on 29.11.2005. The Administrative Committee, after duly considering the enquiry report dated 9.9.2005, the comments of the delinquent officer dated 22/24.10.2005, along with the office note dated 17.09.2005, resolved that the enquiry report dated 9.9.2005 of the two Hon’ble Judges be accepted and thereafter the matter was referred to the Full Court for consideration of quantum of punishment.”

                                   As things stand, it is then disclosed in para 10 that, “When the aforesaid matter came up for consideration before the Full Court in its meeting dated 17.12.2005, it was resolved by the Full Court that the enquiry report be accepted and that the officer be given punishment of dismissal from service. The aforesaid resolution/decision of the Full Court was thereafter communicated to the State Government and on that basis, the order of dismissal was passed by the Appointments Department of the State Government on 17.01.2006, which has been assailed by the petitioner in the instant writ petition.”  

                          Needless to say, para 11 while presenting the petitioners version goes on to enunciate that, “Petitioner while challenging the impugned punishment order has mainly contended that with regard to the alleged errors in deciding the first Land Acquisition Reference i.e. Lile Singh v. State, the grant of solatium, additional amount and interest is a benefit provided by the statute to the person, whose land was acquired and the same cannot be refused by the Tribunal only on the ground that the financial burden shall increase on the Acquiring Body. Similarly with regard to the alleged errors in deciding the second charge pertaining to the Land Acquisition Reference of Umesh Chandra v. State, it was submitted that her own award passed in the case of Surendra v. State decided on 24.3.1993 was not followed by her, mainly because the said case was affected by different Notification issued under Section 4(1) and the acquisition was for the same scheme.”

                              Going ahead, para 12 then further goes on to add that, “The petitioner has contended that writ petitions were filed against the two orders passed by the petitioner in the aforesaid two Land Acquisition References and both the said writ petitions filed by the Acquiring Body were subsequently dismissed by this Hon’ble Court vide judgment and orders dated 20.5.2015 and 21.5.2015 and, therefore, the award passed by the Hon’ble High Court and hence her stand is vindicated and she cannot be said to have committed any mistake in passing the two orders, as the amount decided by her in the Land Acquisition References was not changed in the writ petitions filed before the High Court. Since her decision stood affirmed even by the High Court, therefore, no punishment can be justified for passing the orders in the aforesaid two Land Acquisition References.” Finally, in para 13 also the petitioners version is described and it states that, “The petitioner has lastly prayed for parity of treatment while claiming similarity with the case of Sanjay Kumar Goel v. State of U.P. decided on 31.5.2011 wherein the petitioner was exonerated.”

                              Having said this, it is time to now discuss on what point of view the High Court submits on this. Starting from the scratch, it is first and foremost observed in para 14 that, “Per contra, the submission of the High Court is that in such matters, it is not the final decision of the judicial officer, which is relevant but what is relevant is the ‘decision making process’ and if the decision making process is in violation of all judicial norms and propriety, which is not supported by consistent judicial approach and if the decision making process of a judicial officer is actuated by extraneous consideration, ulterior motives, recklessness and improper considerations, then even if the final decision may be upheld by superior courts but the decision making process being arbitrary and irrational, cannot allow the judicial officer to escape from his responsibility.”

                                Of course, para 15 then further states that, “It was further submitted that in the instant case, the petitioner utterly failed to give any suitable reply to the main contention of the Charge No. 1 as to why she had placed reliance at the first place on a compromise deed entered between the two persons for fixing the rate of land for determining the market value, though there is a statutory bar under Section 11(2) & (3) of the Land Acquisition Act that rate of land fixed through agreement cannot be a criteria for determining the market value of adjoining land acquired through same or similar notification. Similarly no suitable explanation could be given by the petitioner that when she had relied on the agreement deed, which contained the rate of Rs 284/- per square yard and this amount included 30% solatium, additional compensation and interest, then why the charged officer awarded a sum of Rs. 264/- per square yard (while deducting only Rs 20 therefrom) and then awarded addition of solatium, additional compensation and interest over and above the said agreed amount. This ultimately resulted in the landing cost of Rs. 720/- per square yard as against Rs. 284/- per square yard given to the claimants of the adjoining villages even under the “compromise agreement”. Thus a total enhancement in compensation by the order passed by the changed officer came to be more than 47 crores which was about 10 times more than the compensation of SLAO. No suitable explanation could be given by the petitioner for allowing the aforesaid wind fall gain to the claimants which was absolutely ‘shocking’.”

                                Furthermore, it is then pointed out in para 15 that, “Similarly with respect to the second charge, the petitioner could not explain as to why she had ignored/disregarded the sale deed executed barely 19 days before Section 4 Notification and that too of a small piece of land, which was the best exemplar. This exemplar was actually relied upon by the SLAO, while determining the rate of compensation at Rs. 100/- per square yard. It cannot be presumed by any stretch of imagination that when in the sale deed executed barely 19 days before Section 4 Notification, the rate of land was 90 per square yard, on the basis of which the SLAO had determined the compensation at Rs. 100/- per square yard, the same could have been enhanced to Rs. 160/- per square yard. This clearly demonstrates that the enhancement of compensation in this case also was actuated evidently by extraneous considerations, which gave wind wall gains to the claimants, which was most shocking and unexplainable, especially when the charged officer/petitioner neither followed her own award given five months back in the case of Surendra v. State nor accepted the sale deed executed barely 19 days before Section 4 Notification, which was rightly relied upon by the SLAO in reaching to the amount of compensation.”

                                 What’s more, it is then explicitly laid down in para 16 that, “It was further submitted that though the writ petitions filed by acquiring body i.e. NOIDA authorities against the orders passed in several Land Acquisition References were collectively decided by this Court vide judgment and orders dated 20.5.2015 and 21.5.2015. However, in the said judgments, it was never considered as to what was “the decision making process” which was adopted by the petitioner and as to how the same was grossly arbitrary, reckless and bereft of judicial propriety. This Court while collectively deciding several First Appeals filed against several orders in Land Acquisition References had, while relying on several judgments of the Hon’ble Apex Court land acquisition matters laid down broad principles which should be followed in land acquisition matters, however while passing the aforesaid two orders, but individual approaches of the individual judicial officers and their individual decision making processes in reaching to the respective conclusions was never looked into by this Court and, therefore, the aforesaid judgments dated 20.5.2015 and 21.5.2015 cannot be said to be the conclusive findings of the High Court on the decision making process of the petitioner, as no such finding is recorded in the same.”  

                                  To fortify and buttress its stand, the High Court then cites decided case by Apex Court as pointed out in para 17 which states that, “In this regard, it was contended on behalf of High Court that the Hon’ble Apex Court in the case of Union of India v. K.K. Dhawan, reported in 1993 (2) SCC 56 has held in paras 28 and 29 that “the officer, who exercises judicial or quasi-judicial powers if acts negligently or recklessly or attempts to confer undue favour on a person or takes decision which is actuated by corrupt motive, then he is not acting as a judge”.”

                                   It is further pointed out in this same para 17 that, “The Hon’ble Apex Court returned a conclusive finding that in such matters, the Courts are not concerned with the correctness or legality of the final orders with reference to the ultimate decision, because an error in judgment, can be corrected in appeal or revision, but the Government is not precluded from taking the disciplinary action against the officer concerned if there is evident violation of the Conduct Rules and if the decision making process is found to be reckless and arbitrary and actuated by corrupt motives. Thereafter the Hon’ble Apex Court has mentioned certain cases/occasions as an example, in which disciplinary actions can be taken against the judicial and quasi judicial offers in the discharge of their judicial functions.”

                       It cannot be lost on us that it is then noted in para 18 that, “The aforesaid decision of the Hon’ble Apex Court passed in the case of K.K. Dhawan (supra) by the Hon’ble three Judges Bench was distinguished by another judgment of the two Judges Bench of the Hon’ble Apex Court passed in the case of Junjarao Bhikaji Nagarkar v. Union of India, reported in 1999 (7) SC 409, wherein paras 40 to 44 of the same, the initiation of disciplinary proceeding against judicial/quasi-judicial authorities was not appreciated if it is based on their discharge of judicial/quasi-judicial functions. However, the Hon’ble Apex Court in a latest judgment of Union of India v. Duli Chand, reported in 2006 (5) SCC 680 upheld the Hon’ble three Judges decision of K.K. Dhawan’s case (supra) and overruled the decision of Nagarkar’s case. Therefore as per the settled position of law, the legality and correctness of the decision making process and the conduct of the officers in discharge of his duties has to be considered in the matter of disciplinary proceeding initiated against him and the final decision passed by the officer has no relevance. On this basis, it was submitted on behalf of High Court that since the decision making process adopted by the petitioner while deciding both the Land Acquisition References are bereft of judicial propriety, settled judicial norms and are actuated by extraneous considerations, therefore, it amounts to misconduct, for which the petitioner has rightly been dismissed from service. The finding given by the Enquiry Officer about the wind fall gain made available to the claimants by the petitioner were absolutely shocking and since the same were not mere errors of judgment, but they are evident blunders deliberately by the petitioner, therefore, the Enquiry Officer had rightly concluded from the decision making process of the two orders of the petitioner that it was the result of extraneous considerations and the same was not mere error of the judgment therefore both the charges were rightly proved.”

                       More pertinently, it is then observed in para 19 that, “The Apex Court in catena of judgments including the case of Bank of India v. Degala Suryanarayana, reported in 1999 (5) SCC 762, para-11 and Mihir Kumar Hajara Chaudhary v Life Insurance Corporation, reported in 2017 (9) SCC 404, para 30, has held that strict rules of evidence are not applicable to the departmental enquiry and the Enquiry Officer upon analysis of document/material should give its conclusion that there had been a preponderance of probability to prove the charges on the basis of material available on record. The scope of judicial review in matters regarding disciplinary enquiry is very limited and findings arrived at in a disciplinary enquiry are interfered with only when there are no material for the said conclusion, which is not the case in hand and therefore, there is no justification for any interference in the matter.”

                                   Simply put, para 20 then goes on to add further stating that, “It is a settled position of law as laid down in the case of R. Ravi Chandran Ayer v. Justice A.M. Bhattacharyaji & others, reported in 1995 (5) SC 457, paras 21 to 23 and Newal Singh v. State of U.P., reported in 2003 (8) SCC 117, para-2 that a judicial officer, against whom the charges of acting against judicial norms and propriety have been proved in a departmental enquiry. A judicial officer is not an ordinary Government Servant and must be above suspicion. The conduct of the judicial officer must be beyond doubt as a Judge must be a person of high integrity, honesty and required to have moral vigour, fairness and should be impervious to corrupt or venial influences.”

                             Interestingly enough, it is then noted in para 21 that, “Furthermore by virtue of Article 235 of the Constitution of India, ‘control’ over subordinate judiciary is vested in the High Court and the said control is exclusive in nature, comprehensive in extent and effective in operation and is to subserve a basic feature of the Constitution i.e. independence of Judiciary. The Scheme envisaged in the Constitution makes the High Court, the sole authority, which have administrative and disciplinary control and jurisdiction over the employees and officers of subordinate Courts.”

                              No wonder, it is then pointed out in this same para that, “The Hon’ble Apex Court passed in the case of Rajendra Singh Verma v. Lt. Governor (NCT of Delhi), reported in 2011 (10) SCC 1 (paras 129 to 134 & para-218) has held that the High Court retains the subordinate Judiciary, which includes the power to initiate the disciplinary proceedings, place them under suspension during enquiries and to impose appropriate punishment on them, therefore, highest credence has to be given to the decision taken by the Full Court of the Hon’ble High Court in service matters of its officers and employees under Article 235 of the Constitution of India.”

                                  While pooh-poohing the grounds on which the petitioner relied while claiming parity, it was then observed by the High Court Bench in para 22 that, “So far as reliance placed by the petitioner on a judgment and order dated 31.05.2011 passed by a Coordinate Bench of this Hon’ble Court in Writ Petition No. 425 (S/B) of 2016 i.e. Sanjay Kumar Goel v. State of U.P. & others is concerned, with which parity of treatment was claimed by the petitioner it may be noticed that the petitioner has tried to draw parity with the petitioner of the aforesaid writ petition by suggesting that the said officer was similarly situated and the aforesaid case was also a case of dismissal passed against a judicial officer for deciding Land Acquisition Reference under similar circumstance and since he was acquitted in the said case, therefore, parity should be given to the petitioner as well, however, it is noteworthy that the mere fact that a judicial official punished with the order of dismissal was exonerated by this Hon’ble Court in a land acquisition matter by allowing his writ petition, cannot justify that the same treatment should be given to all judicial officers so punished. In that case, the land acquisition proceedings were initiated by Ghaziabad Development Authority whereas NOIDA was the acquiring body while in the case of the petitioner the Scheme was different, the authority was different and even the exemplars were different. The entire circumstances of the ‘decision making process’ of that case were absolutely different than the case in hand, therefore no parity can be drawn between the two and hence the reliance placed by the petitioner on the aforesaid judgment passed in the case of Sanjay Kumar Goel (supra) was absolutely misconceived.”

                                 It would be imperative to mention here that it is then conceded in para 23 that, “Even from a perusal of the records of the enquiry produced by the High Court Registry it is quite evident that the reply to the show cause notice dated 26.09.2005, the detailed comments/reply of the petitioner dated 22/24.10.2005 submitted against the same have already been duly considered by the Administrative Committee and the Full Court and only thereafter the punishment order of dismissal was recommended on 17.12.2005 on the resolution dated 29.11.2005 of the Administrative Committee. The appointing authority, while considering the recommendation of the Full Court and applying its independent mind, has thereafter passed the impugned punishment order dated 17.01.2006. We do not find that there is any infirmity or illegality in the aforesaid punishment order.”

                                  Finally and most importantly, let us now discuss the concluding paras. Para 24 envisages that, “In view of what has been stated herein above, we are of the concerned opinion that no case is made out in favour of the petitioner. The petitioner has utterly failed in justifying her conduct in discharging her judicial functions and in deciding the two Land Acquisition References, in the most reckless and arbitrary manner, which were bereft of all judicial propriety and since it amounted to misconduct under the Conduct Rules, therefore, the finding of the Enquiry Officer in proving the aforesaid two charges cannot be negated.” Lastly, para 25 then concludes by holding that, “The instant writ petition, being devoid of merit, deserves to be dismissed. It is ordered accordingly.”

                                   All said and done, while the petitioner has certainly lost the legal battle in the High Court of Allahabad but she still has the option to further pursue her legal battle in the Supreme Court. The jury is still out on what the petitioner decides to do and what the outcome is finally! But certainly she has suffered a major setback but we must remember that it is not the final setback for her as all doors are still not closed on her! The Allahabad High Court certainly has sought to send out a loud and clear message that, “A judicial officer is not an ordinary government servant and must be above suspicion.” There can be no denying this! But it would be premature to treat this as final verdict! She can still be acquitted by the Apex Court if her lawyers can prove that she been treated harshly! Let’s wait and see what unfolds in the coming days on this because only time will tell what happens and whether the Allahabad High Court will stand vindicated or the petitioner!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh. 

It must be said with consummate ease that in a landmark, latest and laudable judgment titled Sarvepalli Radhakrishnan University & Another v. Union of India & Others in Writ Petition (Civil) No. 1001 of 2017 with Writ Petition (Civil) No. 731 of 2018 which was delivered on January 17, 2019 by a three-Judge Bench of Supreme Court and authored by Justice L Nageswara Rao for himself, Justice Sharad A Bobde and Justice R Subhash Reddy, the Supreme Court has imposed a whooping penalty of Rs 5 crore on a medical college for playing fraud on it. It also ordered prosecution of its dean. While clearly barring the R.K.D.F. Medical College Hospital and Research Centre from making admissions for the 1st year MBBS course for the next two years, the three-Judge Bench of Apex Court has also ordered prosecution of college dean SS Kushwaha under Section 193 of the Indian Penal Code. The Apex Court also directed the college to pay compensation of Rs. 1 lakh to each student admitted in the college for the academic year, apart from the refund amount payable to them.

                    To start with, para 1 of this judgment first and foremost brings out that, “Permission was granted for the establishment of Petitioner No. 2-R.K.D.F. Medical College Hospital and Research Centre (hereinafter referred to as “the College”) by Respondent No. 1 on the recommendation of Respondent No. 2-herein- Medical Council of India, with an intake capacity of 150 MBBS seats annually for the academic year 2014-15. An inspection was conducted on 23rd and 24th of February, 2015 for grant of renewal for admitting the 2nd Bath of 150 MBBS students for the academic year 2015-16. The Medical Council of India (MCI) recommended to the Central Government to reject the permission for admission of the 2nd Batch of 150 MBBS students for the academic year 2015-16 in view of the deficiencies found in the Assessment Report. A review/reassessment was done by the Executive Committee of Respondent No. 2 at the request of the Central Government. The Executive Committee of Respondent No. 2 reconsidered the matter and recommended to the Central Government not to renew the permission for the 2nd Batch of MBBS students for the academic session 2015-16. There was a further recommendation that the College should be debarred from making admissions for the next two academic sessions. The Central Government accepted the recommendation made by Respondent No. 2 and rejected the request for renewal. Yet another review/reassessment was done by the Central Government pursuant to the directions issued by this Court in SLP (C) No. 19543 of 2015 vide order dated 8th September, 2015. A Committee was constituted to afford an opportunity of hearing to the College. The College was denied permission to admit the 2nd Batch of the MBBS students for the year 2015-16 by an order of Respondent No. 1 dated 28th September, 2015. The High Court of Delhi quashed the said order dated 28th September, 2015 and directed the Central Government to examine the matter afresh vide its order dated 29th December, 2015 in Writ Petition (C) No. 9663 of 2015. The Central Government reiterated its decision by an order dated 1st January, 2016 to not grant permission to the College to admit the 2nd Batch of MBBS students. One more inspection was ordered by the High Court of Madhya Pradesh on 11th May, 2016 in Writ Petition (C) No. 21223 of 2015. Respondent No. 2 filed SLP (C) No. 14729 of 2016 challenging the order dated 11th May, 2016 passed by the High Court of Madhya Pradesh.  On 15th July, 2016, this Court directed that a fresh inspection should be conducted. The order dated 15th July, 2016 was modified by this Court on 9th September, 2016 by which the Oversight Committee was requested to consider the matter pertaining to the admission of students in the College for the year 2016-17.”

                                To be sure, it is then added in para 2 that, “By an order dated 27th September, 2016, the Oversight Committee accorded approval to the College for admission of students for the year 2016-17. The Oversight Committee directed the College to rectify the deficiencies and submit a compliance report to the Ministry of Health & Family Welfare by 27th September, 2016. The College was informed that a bank guarantee of Rs. Two Crores in favour of Respondent No. 2 has to be furnished by 27th September, 2016. It was stated that non-compliance of the conditions imposed by the Oversight Committee would result in the College getting debarred from fresh intake for two years commencing 2017-18. The 2nd Batch of 150 students for the academic year 2016-17 were admitted pursuant to the conditional permission for renewal granted by the Central Government.”

                               Truth be told, it is then brought out in para 3 that, “A joint verification inspection was conducted on 5th and 6th January, 2017 for renewal of permission to the 3rd Batch of MBBS students for the academic year 2017-18. Finding gross deficiencies in the infrastructure, clinical material, teaching faculty and other physical facilities in the College, the Executive Committee of Respondent No. 2 concluded that the undertaking given by the College on 28th September, 2016 was breached. The Committee decided to recommend to the Central Government to debar the College from admitting students for the academic years 2017-18 and 2018-19. The Central Government accepted the recommendations made by Respondent No. 2 and by an order dated 31st May, 2017 debarred the College from making admissions for the years 2017-18 and 2018-19. The High Court of Madhya Pradesh allowed Writ Petition  (C) No. 8100 of 2017 filed by the College questioning the legality of order of the Central Government dated 31st May, 2017. The College was permitted to provisionally admit 150 students. Aggrieved by the judgment dated 21st July, 2017 of the High Court of Madhya Pradesh, Respondent No. 2 filed SLP (C) No. 20400 of 2017 before this Court. The re-inspection as directed by the High Court of Madhya Pradesh was confirmed by this Court by an order dated 14th August, 2017. It was made clear in the said order that the admission of students shall be completely provisional, being dependent on the result of the inspection. It was further mentioned that the admission of students shall be liable to be cancelled if the College fails in the inspection and the students will not be entitled to claim any equity. The students were directed to be informed by the Counselling committee about the said condition. An inspection was scheduled to be conducted on 14th & 15th September, 2017 for renewal of the 4th Batch of students in College for the MBBS course. According to Respondent No. 2, the said inspection had to be aborted midway as the assessors were manhandled and physically forced to leave the College. At the request made by the College, another inspection was conducted on the 25th & 26th September, 2017. The Executive Committee of Respondent No. 2 considered the Assessment Report at its meeting held on 26th September, 2017 and decided that admissions of the 4th Batch of 150 MBBS students for the year 2017-18 should be cancelled in view of the following deficiencies found in the inspection conducted on 25th & 26th September, 2017:

I.                 Bed Occupancy at 10 a.m. on day of assessment was 01.07% (i.e. 7 out of 410).

II.              There were no Major Surgical operation on day of assessment.

III.          There was NIL Normal Delivery or LSCS on day of assessment.

IV.          Data of Clinical material like Casualty attendance, Discharges, Major & Minor Operations, Radiological Investigations as provided by the Institute are inflated.

V.             ICUs: There was NIL patient in NICU/PICU & only 1 patient each in ICCU, MICU, SICU on day of assessment.

VI.          Blood Bank: NIL Unit was dispensed on day of assessment.

VII.      Deficiency of faculty is 15.65% as detailed in the report.

VIII.   Shortage of residents is 40% as detailed in the report.

IX.          Diet order was not recorded in the register on day of assessment.

X.              MRD is partly manual.

XI.          Facilities in Central Research Laboratory are not adequate. There are NIL ongoing or completed research projects.

XII.       RHTC: Cold Chain equipment are not available. Survey / MCH / Immunization / Family Welfare registers are not available. No activities under National Health Programmes are carried out.

XIII.   UHCC: Cold Chain equipment are not available. Survey / MCH / Immunization / Family Welfare Registers are not available.”

                                    Bluntly put: How can all this be dismissed lightly? How can all this be overlooked? How can all this be justified on any ground? How can all this justify mild action? How can all this not justify most strict action?

                        No wonder that the Executive Committee of Respondent No. 2 rightly decided to act tough as pointed out in para 4 which states that, “The Executive Committee of Respondent No. 2 further decided that Regulation 8(3)(1)(b) of the Establishment of Medical College Regulations, 1999 (“the MCI Regulations) should be invoked in view of the deficiencies found in the bed occupancy and residents. The said decision of Respondent No. 2 was approved by the Oversight Committee.”

                       Be it noted, it is also clarified in para 4 as to what Regulation 8(3)(1)(b) entails. It is as follows:-

“Regulation 8(3)(1)- The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Counil of India for purpose of renewal [as per latest time schedule] prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.

   (b) Colleges in the stage of III & IV renewal (i.e. Admission of fourth & fifth batch): [If it is observed during any inspection of the Institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is < 65%, compliance of rectification of deficiencies from such an institute will not be considered for renewal of permission in that Academic year.]”

                                    Needless to say, it is then divulged in para 5 that, “Respondent No. 2 directed the College to discharge all the students admitted for the academic year 2017-18 by its letter dated 29th September, 2017. The Principal Secretary (Medical Division Department), Government of Madhya Pradesh- Respondent No.3-herein was requested to cancel the admission of students made in the College for the academic year 2017-18.”

                   While elaborating in detail, it is then pointed out in para 6 that, “The communications dated 29th September, 2017 to the College and the Respondent No. 3 are subject matter of challenge in this Writ Petition. The College sought a further direction that a fresh inspection should be conducted strictly in accordance with the Assessor’s Guide. While issuing notice on 23rd October, 2017, this Court stayed the operation of the communication dated 29th September, 2017. On 24th October, 2017 it was clarified that the students admitted as per the order dated 14th August, 2017 in SLP (Civil) No. 20400 of 2017 shall be permitted to continue with their studies. Thereafter, on a consideration of the Assessment Report pursuant to the inspection dated 25th & 26th September, 2017 and the submissions made on behalf of both sides, this Court by an order dated 14th December, 2017 directed the admission of the students to be cancelled. This Court took note of the order dated 14th August, 2017 which made the admission of students subject to the result of the inspection. As the students were found not to be complicit and not having any role to play in non-compliance of the requisite standards by the College, this Court considered it expedient to direct the students to be accommodated in other colleges. By referring to the Assessment Report pursuant to the inspection done on 25th & 26th September, 2017, learned Senior Counsel for Respondent Nos. 1 and 2 submitted that the College was indulging in fraud by showing persons who were not sick as patients only for the purpose of showing compliance of the minimum requirements. The learned Senior Counsel appearing for the College refuted the said contention and argued that all the patients were genuine. As this Court was in no position to determine the truth or otherwise of the allegations, an enquiry was directed to be conducted into the correctness of the statistics, reports and material placed before this Court by the College along with the Writ Petition. For the said purpose, a committee was constituted by this Court. A senior officer deputed by the Director, Central Bureau of Investigation (CBI), was directed to head the Committee which would have two doctors of the All India Institute of Medical Sciences (AIIMS) as its members. It is relevant to note that in the said order dated 14th December, 2017 it was made clear that the College may have to face prosecution under Section 193 of the Indian Penal Code, 1860 (IPC) if the allegations made by Respondent No. 2 were found to be correct. The decision to constitute a committee by this Court was arrived at after a thorough examination of the voluminous material placed on record by the College. The material was constituted of several photographs showing patients occupying the beds and their case sheets. A bare perusal of the photographs did not convince us that the patients were genuine. After a close scrutiny of the case sheets, we had serious doubts about the necessity for admission of persons suffering from minor ailments as in-patients.”

                                 By the way, it is then pointed out in para 7 that, “The students who were admitted in the College for the year 2017-18 were directed to be adjusted in the other private medical colleges in the State of Madhya Pradesh for the academic year 2018-19 by an order passed by this Court on 3rd July, 2018. The students were directed to pay the fees to the colleges to which they are admitted. It was mentioned in the said order dated 3rd July, 2018 that the entitlement of the students for refund of the fee paid for admission to the College shall be adjudicated at the final hearing of the Writ Petition.”

                                 As it turned out, para 8 then specifies that, “The Committee appointed by this Court on 14th December, 2017 submitted its Report on 12th July, 2018. It was mentioned in the Report inter alia, that the Committee visited the College on 29th January, 2018 around 11.30 a.m. and found that the patient waiting area for OPD Registration was totally empty. After visiting several wards in the hospital, the Committee found that the attendance of patients was abysmally low and the patients shown to be admitted in OPDs/wards were not in conformity with the actual number of patients. It was further stated in the Report that a scrutiny of the medical case files of the in-patients showed that their admission was not necessary. The case duty rosters for duty doctors as well as nurses were not available in the wards and the junior doctors on duty were not able to identify and confirm who had written the case notes/progress notes on the case files.”

                           More importantly, para 9 while dwelling on the conclusions of the Committee observes unambiguously that, “The Committee collected the medical sheets of 435 patients who were shown to have been admitted in the hospital on the date of the inspection conducted on 25th & 26th September, 2017. The hard disk that was obtained from the hospital for verification of the details of patients who were admitted prior to 7th January, 2018 was examined by the CBI. It was found that the hard disk was empty and did not contain any data. The conclusion of the Committee after a detailed enquiry revealed the following:  

“i. The petitioner college has claimed that 6 doctors namely, Dr. Ritesh Kumawat, Dr. MR Gaikwad, Dr. SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur couldn’t attend the MCI inspection on 25.09.2017 as they were summoned by Court/Police in connection with a motor accident case. However, such claim were found to be incorrect.

ii. All of the six doctors namely, Dr. Ritesh Kumawat, Dr. MR Gaikwad, Dr. SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta, Dr. Ram Ballabh Thakur, when examined, denied having received any notice from police regarding the motor accident.

iii. Out of the 10 doctors (Sr. Residents/ Jr. Residents) who were not counted by the assessors on the strength of the petitioner college as faculty on the ground that they were not residing in the college hostel, 9 doctors could be contacted. Examination of those 9 doctors revealed:

·      07 doctors confirmed during enquiry that they were not staying in the hostel in the college campus and they themselves had conveyed the MCI assessors in this regard. It is mandatory to stay in hostel as per Assessor’s Guide issued by MCI for academic year 2018-19.

·      The other two resident doctors, i.e. Dr. Meenal Parmar and Dr. Arpita Mishra, stated that they were staying in the hostel but were not considered on the strength of the college by the MCI assessors.

iv. Out of the 8 resident doctors whih petitioner college had claimed to be on night duty and so couldn’t appear before MCI assessors by 11 AM, enquiry revealed that:

·      Out of the above mentioned 8 resident doctors, 6 resident doctors stated that they were not on payroll of the petitioner college on the day of inspection i.e. 25.09.2017. Even 4 of those doctors had stated that they never joined the hospital.

·      1 doctor (Dr. Ritesh Kumawat) stated that he was not present on the day of the inspection, i.e. 25.09.2017.

·      And another doctor Dr. Devyani Patel was present on 25.09.2017 but she was rightly excluded by the MCI assessors as she couldn’t make her presence by 12 noon (which was mandated as per Assessor’s Guide).

v. The 3 doctors namely Dr. Priyank Jain, Dr. Manoj Sahu and Dr. Amit Jain, who were not treated as Sr. Resident doctors by the MCI assessors doesn’t seem to be justifiable considering the fact that all three of them were treated as Sr. Resident Doctors on earlier inspection on 05.01.2017.

vi. Two tutors who have been shown as present in the assessment by the college had not attended the assessment proceedings on 25.09.2017.  

vii. Due to vague and incomplete type of the addresses mentioned in the record of the petitioner college, most of the patients could not be located as merely the names of the colonies and sub areas have been found to be mentioned on the patient case sheets. In the identified 21 patients, 8 are the employees/students of various RKDF institutions.

viii. On the basis of the medical analysis of the case sheets of the patients most doctors from AIIMS are of the similar view that it is doubtful that all these patients were actually admitted and that too for such a long duration.

ix. Most of the doctors are also of the opinion that the range of cases shown to be admitted was grossly inadequate for training of students.

x. The doctors were also of the opinion that in most of the case sheets prescriptions, operative notes, etc. appears to have been written by the same person in a very unprofessional manner. Also histopathological reports are very sketchy and incomplete.

xi. Dr. S.C. Sharma, Professor and HoD, ENT Department of petitioner’s college on 25/26.09.2017. As per his opinion most of the patients appear to be fictitious.

xii. Dr. H.L. Nag, Professor, Orthopedics, AIIMS has examined 52 medical sheets of the patients shown on bed in Orthopedics Department of petitioner’s college on 25/26.09.2017. He held that majority of those cases could have been managed without hospital admissions.

xiii. Dr. Naval Kishore Vikram, Professor General Medicine AIIMS has examined 97 medical patients of General Medicine and 12 patients of TB & Chest Department who were shown to be on bed on 25/26.09.2017. He has concluded that it appears doubtful that those patients were actually admitted in the hospital. Most of the patients appear to be over treated by various medications, particularly antibiotics. He also held that most of the cases had limited number of diagnosis which is grossly inadequate for training of medical students.

xiv. Dr. Pankaj Hari, Professor Paediatrics Department, AIIMS has examined 62 medical sheets of the patients shown on bed in Paediatrics Department of petitioner’s college on 25/26.09.2017. He concluded that the admitted cases have limited diagnosis which is quite inadequate for training of students in a medical college. He also raised doubt over the authenticity of those medical files.

xv. Dr. Vinod K. Khetan, Professor, Department of Dermatology and Venerelogy, AIIMS, examined 10 medical sheets of the patients shown on bed in Dermatology department of petitioner’s college on 25/26.09.2017. He raised serious doubts over the authenticity of patient being actually admitted. He also opined that the range of cases admitted and their work up is grossly inadequate for the training of students.

xvi. Dr. Namrata Sharma, Professor, Deptt. Of Opthalmic Sciences, AIIMS has concluded that in out of total 17 cases, admission of the 02 patients was required whereas in all other cases patient could have been managed under day care OPD.

xvii. Dr. Mamta Sood, Professor, Deptt. Of Psychiatry, AIIMS examined 08 medical sheets of the patients shown on bed in Psychiatry Department of petitioner’s college on 25th/26.09.2017. Though she mostly agreed that the treatment shown to be given to the patients was appropriate, but she opined that they didn’t require to be admitted.

xviii. Dr. Ongikla Bhutia, Professor, Division of Oral Maxillofacil Surgery, AIIMS examined 11 medical sheets of the patients shown on bed in Oral Maxillofacial Surgery Department of petitioner’s college on 25/26.09.2017. The doctor opined that the diagnosis appeared repetitive. Neither pre-operative radiography nor post operative radiography were found on record. Consent for the surgery was also found to be absent in some cases.

xix. Dr. Deepika Deka, Professor, Deptt. Of Obstetrics and Gynaecology, AIIMS had examined 56 medical sheets of the patients shown on bed in Obstetrics and Gynaecology Department of petitioner’s college on 25/26.09.2017. She raised doubt whether actual surgery was performed or not. She also raised doubt over the genuineness shown for those patients.

xx. Dr. Subodh Kumar, Professor, Deptt. Of Surgical Disciplines, AIIMS examined 96 medical sheets of the patients on bed on 25/26.09.2017. He raised serious doubt over the genuineness of patients actually admitted. He also held that spectrum of cases shown to be admitted was grossly inadequate for training of students”.”

                         To put things in perspective, para 10 then enumerates that, “When the matter was listed on 5th December, 2018, Shri Vivek Tankha, learned Senior Counsel appearing for the College, submitted that the College intends to submit an apology for the lapses on their part. He requested us to give a quietus to this matter. He submitted that there are students presently studying in the institution who would be affected by any adverse order passed against the College.” In other words, Vivek Tankha who was the learned Senior Counsel who appeared for the College left no stone unturned to convince the Court that a quietus should be given to this matter as the College intended to tender an apology and the students studying there would be adversely affected! But the Bench was not quite convinced by it.

                           It would be imperative to mention here that para 11 while rebutting all untenable defences of College also took it to task for misleading it while also appreciating the line of action taken by MCI and observed that, “It has been brought to our notice by the Respondent No. 2- MCI that during the inspection conducted on 23rd & 24th February, 2015 for the purpose of granting admission for the academic year 2014-15, it was found that there were patients who were fake and others who had been admitted without any significant illness. The MCI was constrained to invoke Regulation 8(3)(1)(a) and Regulation 8(3)(1)(d) of the MCI Regulation in view of the College submitting forged/fake documents for the purpose of showing compliance with the minimum requirements. A complaint was made by Dr. A.K. Banerjee, Ex-Associate Professor of Surgery of the College on 25th March, 2015 alleging that more than 50% of the doctors who were shown as full-time Faculty Members were full-time private practitioners. Dr. Paresh Ruparel who was shown as a Professor of Surgery in the College was working as a surgeon at V.S. Hospital affiliated to MHL Medical College, Ahmedabad and was also running a private hospital. Dr Ruparel was referred to Ethics Committee and he was suitably dealt with for misdemeanor.”

                                Continuing in the same vein, it is then further added by the Apex Court Bench in the same para 11 that, “Without delving deep into the details of the Report submitted by the Committee, it is clear that the College is guilty of practicing fraud on this Court. The conduct of the College administration in indulging in manipulations and hoodwinking the authorities to project compliance of the requisite minimum standards for admission of students does not deserve to be condoned. The impunity with which the College has manufactured records to convince us that they were being unnecessarily hounded by the MCI in spite of their compliance with the required standards is deprecated. The brazen attempt by the College in taking this Court for a ride by placing on record maneuvered documents to obtain a favourable order is a clear-cut act of deceit. The justification given by the College regarding the absence of certain residents has turned out to be a concocted story. Had we not initiated an enquiry by the Committee of Experts, the fraud played by the College on this Court would not have come to light. It is trite that every litigant has to approach the Court with clean hands. A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief. The conduct of the College in this case to mislead this Court for the purpose of getting a favourable order is reprehensible and the College deserves to be dealt with suitably.”    

                           Of course, it is then elaborated in para 13 that, “In the affidavit filed along with the Writ Petition, Mr. S.S. Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre stated that the contents in the Writ Petition are true and correct to the best of his knowledge and belief. According to the College, the Assessment Report pursuant to the inspection conducted on 25th and 26th September, 2017 was unfair as the justification for the absence of six members of the faculty was not accepted. The averment in the Writ Petition is to the effect that the said six doctors who had received summons from the Sub-inspector of Police, Bairagarh were at the police station at 11 a.m. on 25th September, 2017 in connection with the complaint relating to a motor accident case. The Committee enquired into the correctness of the claim made by the College regarding the absence of the six faculty members. Mr. Mohan Sharma, Assistant Sub-Inspector of Police of Bairagarh Police Station stated that there was no such notice issued for summoning the six doctors to the police station. On further enquiry, the six doctors namely Dr. Ritesh Kumawat, Dr. MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur denied having received any notice from the police station. Dr. Ritesh Kumawat further denied having filed any complaint regarding the motor accident. On the basis of the above findings of the Committee, it is clear that a false statement has been made by the College on the basis of a fabricated document. It was averred in the Writ Petition by the College that there were 365 patients in the hospital at the time of inspection on 25th September, 2017 but the inspection team recorded that they were only seven patients available. In support of their submission, reliance was placed on the computerized data of the Medical Records Department. The hard disk that was collected by the Committee to study the details of the patients who were admitted in the hospital prior to January, 2018 turned out to be empty and no data could be retrieved. The assertion made by the College regarding the genuineness of the patients in the hospital turned out to be false in the enquiry conducted by the Committee. The Committee had serious doubts whether the patients were actually admitted. Most of the case sheets, prescriptions, operative notes, etc. appeared to be written by the same person in a very unprofessional manner. The histopathological reports were found to be sketchy and incomplete. On a thorough examination of the case sheets, the experts from AIIMS opined that admission of the patients was unnecessary in a number of cases. In view of the fake and incomplete addresses mentioned in the records of the hospital, most of the patients could not be located. Only 21 patients were identified and 8 out of these turned out to be employees/students of the College. All this goes to show that the College has indulged in large scale malpractices in showing compliance of the minimum required standards to obtain permission for admission of students. The College further tried to mislead this Court that it is compliant in all respects, to get permission for the admission of students.”

                             While sparing no punches in lambasting the College for misleading the Court, it is then clearly and categorically held in para 14 that, “The brazen manner in which the College has indulged in relying upon manipulated records to mislead this Court for the purpose of getting favourable order deserves to be dealt with in a serious manner. We find that this is a fit case where Mr. S.S. Kushwaha, Dean of the College must be held liable for prosecution under Section 193 IPC.”

                 It is then rightly reiterated in para 15 that, “There have been instances of errant medical colleges making admissions to the medical courses without obtaining the requisite permission. This Court came down heavily on such deviant colleges by imposing penalties for the illegalities committed by them in the matter of admission and for putting the students’ future in jeopardy. [(2015) 4 SCC 580 45.6 – Medical Council of India v. M.G.R. Educational & Research Institute University and (2016) 11 SCC 530 31, 31.2 & 31.4 – Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS)] We have noticed a disturbing trend of some medical colleges in projecting fake faculty and patients for obtaining permission for admission of students. The Committee exposes the evil design of the College in resorting to deceitful methods to cheat the authorities concerned and this Court to secure permission for admission of students. Apart from the prosecution of the Dean, the College is liable to be suitably punished for committing perjury.”  

                                 It would be instructive to note that while not being convinced of the apology tendered by the College through its learned senior lawyer Vivek Tankha, the Apex Court Bench then noted in para 16 that, “We are unable to persuade ourselves to accept the apology offered on behalf of the College. The College has been habitually indulging in foul play which is clear from the course of events in 2015 when faculty members were found to have been working elsewhere and running hospitals. The bravado shown by the College in an attempt to cheat the MCI, the Government and this Court has to be condemned. The Committee constituted by this Court is due to the vehemence with which the Counsels appearing for the College were trying to convince us that they are fully compliant with all the requirements. ‘Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shown of pentinence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the Court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward’. [TN Godavarman Thirumalpad (102) v. Ashok Khot and Anr. (2006) 5 SCC 1 at Para 31]”

                                     It is then clarified in para 17 that, “The students who were admitted in the 1st Year MBBS Course in the College for the academic year 2017-18 were duly cautioned and informed that their admission was purely provisional and they cannot claim any equity if the College was later on found to be deficient. They have been directed to be admitted in other colleges for the years 2018-19. In the process, students have lost a precious academic year. However, they are entitled for the refund of the fee collected from them for admission to the College.”

                            Finally and most importantly, it is then concluded in para 18 that, “For the aforementioned reasons, we pass the following order:

(i)             Mr. S.S. Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre i.e. Petitioner No. 2- herein is liable for prosecution under Section 193 IP. The Secretary General of this Court is directed to depute an Officer to initiate the prosecution in a competent Court having jurisdiction at Delhi.

(ii)          The College is barred from making admissions for the 1st Year MBBS course for the next two years i.e. 2018-19 and 2019-2020.

(iii)       A penalty of Rs. Five crores is imposed on the College for playing fraud on this Court. The amount may be paid to the account of the Supreme Court Legal Services Committee.

(iv)       The students are entitled to receive the refund of fee paid by them for admission to the College for the academic year 2017-19. In addition, the College is directed to pay a compensation of Rs. One Lakh to the said students.”

Lastly, in para 19, it is held that, “The Writ Petition is dismissed accordingly.

WRIT PETITION (CIVIL) NO. 731 OF 2018:     

    The Writ Petition is hereby dismissed in terms of the above judgment.”

                               In the ultimate analysis, it has to be said in all fairness that this latest, landmark and laudable judgment has sought to send a very loud and clear message to all Colleges that if they dare to break all rules and regulations and hope to get away easily by just tendering an apology, then they are themselves responsible for inviting trouble and are heading themselves into trouble for which no one but they themselves will be solely liable and held accountable and punished! They will be left with just no option but to shell out a huge penalty as we see in this high profile case where the concerned College is ordered to not just pay Rs 5 crore penalty but also to refund the fees paid by the students to the College for the academic year 2017-19 and in addition pay a compensation of Rs one lakh to the said students. All arguments and apologies tendered by the College through its learned Counsel Vivek Tankha just simply failed to cut ice with the three-Judge Bench of Apex Court who delivered this most latest and laudable judgment which has made headlines in all newspapers and all news channels! No doubt, all Colleges must always from now onwards bear this in mind and shed the false myth that they could easily take the system for granted and get away by just tendering an apology! The earlier this is done, the better it shall be for them to ensure that they too don’t end up with egg on their face as we see here!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It has to be stated right at the outset that in a landmark judgment titled Rajendra Pralhadrao Wasnik v State of Maharashtra in Review Petition (Criminal) Nos. 306-307 of 2013 in Criminal Appeal Nos. 145-146 of 2011 delivered on December 12, 2018 which is certainly going to be a trendsetter in the time to come, a three Judge Bench of the Supreme Court comprising of Justice Madan B Lokur while authoring this landmark judgment for himself, Justice S Abdul Nazeer and Justice Deepak Gupta clearly and convincingly held that criminals are also entitled to life of dignity and probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. We thus see that pertinent issues are discussed on ‘sentencing’ which shall be discussed indepth now in the coming paragraphs. It will help us better understand and appreciate the intricacies of law!

                                    To be sure, this landmark and laudable judgment begins at the outset by first and foremost stating explicitly in para 1 that, “ ‘Sentenced to death’ – these few words would have a chilling effect on anyone, including a hardened criminal. Our society demands such a sentence on grounds of its deterrent effect, although there is no conclusive study on its deterrent impact. Our society also demands death sentence as retribution for a ghastly crime having been committed, although again there is no conclusive study whether retribution by itself satisfies society. On the other hand, there are views that suggest that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored. There is also a view that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime.” Absolutely right! What wrong has the top court said? Nothing wrong!

                                      While buttressing its stand as spelt out in para 1 and going ahead, it is then observed in para 2 that, “These conflicting views make it very difficult for courts to take a decision and without expert evidence on the subject, courts are ill-equipped to form an objective opinion. But, a Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684 has thrown its weight behind a humanitarian approach and mandated consideration of the probability of reform or rehabilitation of the criminal and required the prosecution to prove that it was not possible for the convict to be reformed or rehabilitated. However, the Constitution Bench left open a corridor of uncertainty thereby permitting, in the rarest of rare cases, the pronouncement of a sentence of death. It is this paradigm that confronts us in these petitions.”  

                            Background

                                  Going forward, para 3 then elucidates the background of this landmark case. It says that, “The appellant is convicted for the rape and murder of a girl aged 3 years. The offence was committed in the intervening night of 2nd and 3rd March, 2007. On the basis of circumstantial evidence led by the prosecution, the appellant was found guilty of and convicted for offences punishable under Sections 376(2)(f), 377 and 302 of the Indian Penal Code (IPC) by the Sessions Judge, Amravati in Sessions Trial No. 183 of 2007 by a judgment dated 6th September, 2008.”

                                      Needless to say, it is then primarily pointed out in para 4 that, “With regard to the sentence to be awarded, the Trial Judge heard the prosecution and the appellant on 6th September, 2008 and again on 6th September, 2008 and again on 8th September, 2008 on which date he passed a preliminary order. Thereafter, the learned Sessions Judge passed an order on 10th September, 2008 awarding the sentence of death to the appellant.” Para 6 then brings out that, “On an overall view of the circumstances of the case, the Sessions Judge concluded that any alternative option of punishment is unquestionably foreclosed and therefore the only sentence that could be awarded to the appellant is of capital punishment.”

                                   Be it noted, para 7 then further goes on to mention that, “The appellant preferred an appeal against his conviction and sentence before the Bombay High Court being Criminal Appeal No. 700 of 2008. This was heard along with Criminal Confirmation Case No. 3 of 2008. Both these were taken up for consideration and the conviction was upheld and capital punishment awarded to the appellant was confirmed by the High Court by a judgment and order dated 26th March, 2009.”

                                        It cannot be lost on us that it is then very rightly pointed out in para 29 that, “The result of the above discussion is that ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence. The precautions that must be taken by all the courts in cases of circumstantial evidence is this: if the court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out; if the court has no doubt, on the circumstantial evidence, that the accused is guilty, then of course a conviction must follow. If the court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. Even in such cases, the court must follow the dictum laid down in Bachan Singh that it is not only the crime, but also the criminal that must be kept in mind and any alternative option of punishment is unquestionably foreclosed. The reason for the second precaution is that the death sentence upon execution, is irrevocable and irretrievable.”

                                     No doubt, it is also then elegantly pointed out in para 30 that, “Insofar as the present case is concerned, learned counsel for the appellant did not lay much stress on commuting the death sentence to one of life imprisonment only on the basis of the circumstantial evidence on record. Therefore, we need not examine the nature of the crime and other factors or detain ourselves in this regard. We have referred to the various decisions cited by learned counsel only for completeness of the record and to reaffirm the view that ordinarily death sentence should not be awarded in a conviction based on circumstantial evidence.”  

Reform, rehabilitation and re-integration into society

                        Simply put, it is then underscored in para 31 that, “The discussion on the reform or rehabilitation of a convict begins with the acknowledgement in Bachan Singh that the probability that a convict can be reformed and rehabilitated is a valid consideration for deciding whether he should be awarded capital punishment or life imprisonment. This Court has also accepted the view that it is for the State to prove by evidence that the convict is not capable of being reformed and rehabilitated and should, therefore, be awarded the death sentence.” It is then acknowledged in para 32 that, “This view has been accepted universally in all the decisions that were cited before us by learned counsel for the appellant.”

                                       Truth be told, para 45 then makes it abundantly clear that, “The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability (not possibility or improbability or impossibility) that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence. This is one of the mandates of the “special reasons” requirement of Section 354(3) of the Cr.P.C. and ought not to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the court, through evidence, that the probability is that the convict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his conduct in jail, his conduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, contact with his family and so on. Similarly, the convict can produce evidence on these issues as well.”

                                   Having said this, it is then very rightly brought out in para 47 that, “Consideration of the reformation, rehabilitation and re-integration of the convict into society cannot be over-emphasised. Until Bachan Singh, the emphasis given by the courts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana (2013) 2 SCC 452 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner. As observed in Sangeet “In the sentencing process, both the crime and the criminal are equally important.” Therefore, we should not forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime. Therefore, it is for the prosecution and the courts to determine whether such a person, notwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken. The process of rehabilitation is also not a simple one since it involves social re-integration of the convict into society. Of course, notwithstanding any information made available and its analysis by experts coupled with the evidence on record, there could be instances where the social re-integration of the convict may not be possible. If that should happen, the option of a long duration of imprisonment is permissible.”

                                 Continuing in the same vein, para 48 then states clearly that, “In other words, directing imprisonment for a period greater than 14 years (say 20 or 25 years) could unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment.” Very rightly so! There can be no denying it!

                        For esteemed readers exclusive indulgence, it would be imperative to now mention what para 73 says. It explicitly states that, “It is therefore quite clear from the various decisions placed before us that the mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding a sentence. Not only is it statutorily impermissible (except in some cases) but even otherwise it violates the fundamental presumption of innocence – a human right – that everyone is entitled to.”     

                                        As it turned out, we see that it is then observed in para 74 that, “Insofar as the present case is concerned, it has come on record that there are two cases pending against the appellant for similar offences. Both these were pending trial. Notwithstanding this, the Trial Judge took this into account as a circumstance against the appellant. It would have been, in our opinion, far more appropriate for the Sessions Judge to have waited, if he thought it necessary to take the pendency of these cases into consideration, for the trials to be concluded. For ought we know, the two cases might have been foisted upon the appellant and he might have otherwise been proved not guilty.”

                                 Quite remarkably, it is then elucidated in para 75 that, “We may generally mention, in conclusion, that there is really no reason for the Trial Judge to be in haste in awarding a sentence in a case where he might be considering death penalty on the ground that any other alternative option is unquestionably foreclosed. The convict would in any case remain in custody for a fairly long time since the minimum punishment awarded would be imprisonment for life. Therefore, a Trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. It must be appreciated that a sentence of death should be awarded only in rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned. In other words, courts must “make assurance double sure.” [Shakespeare’s Macbeth, Act IV, Scene I]”

                                            Finally and most importantly, let us now discuss the concluding paras. Para 79 stipulates that, “Insofar as the present petition is concerned, the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did not take into consideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, no material or evidence was placed before the courts to arrive at any conclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in not producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the appellant for the purpose of sentencing. The Trial Court was also in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the appellant which it could not, in law, consider. However, we also cannot overlook subsequent developments with regard to the two (actually three) similar cases against the appellant.” Lastly, para 80 then concludes by holding that, “For all these reasons, we are of opinion that it would be more appropriate looking to the crimes committed by the appellant and the material on record including his overall personality and subsequent events, to commute the sentence of death awarded to the appellant but direct that he should not be released from custody for the rest of his normal life. We order accordingly.”

                              All said and done, it is a very progressive and humane judgment which accords the highest priority to even the right of criminal to lead a life of dignity and respect. It also lays down that the probability of reformation/rehabilitation to be seriously and earnestly considered before awarding death sentence. It is very rightly held that, “A trial Judge can take his time and sentence the convict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence.”

                                         The Apex Court also commendably said that there were views that punishment for a crime must be looked at with a more humanitarian lens and the causes for driving a person to commit a heinous crime must be explored and that it must be determined whether it is possible to reform, rehabilitate and socially reintegrate into society even a hardened criminal along with those representing the victims of the crime. Absolutely right! 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

To begin with, it has been a long and gruelling wait of 34 long years for the survivors of 1984 anti-Sikh riots to finally see one big leader Sajjan Kumar being sentenced to life term by Delhi High Court in a recent landmark judgment titled State Through CBI vs Sajjan Kumar & Ors in CRL.A. 1099/2013 reserved on 29th October 2018 and pronounced on 17th December 2018. This landmark and laudable judgment was authored by Justice Dr S Muralidhar of Delhi High court for himself and Justice Vinod Goel. But there is still a long way to go because many other big stalwarts of Congress party like Jagdish Tytler among others have always been under the scanner but have somehow managed to save themselves from the long arms of the law as the Akali leaders among others keep pointing out repeatedly!

                                     At the outset, this historic judgment begins by bringing out that, “In the summer of 1947, during partition, this country witnessed horrific mass crimes where several lakhs of civilians, including Sikhs, Muslims and Hindus were massacred. A young poet, Amrita Pritam, who fled to this country with her two little children from Lahore was witness to the manifold tragedies during that perilous journey. She was moved to pen an ‘Ode to Waris Shah’ in which she spoke of the fertile land of Punjab having “sprouted poisonous weeds far and near” and where “Seeds of hatred have grown high, bloodshed is everywhere / Poisoned breeze in forest turned bamboo flutes into snakes / Their venom has turned the bright and rosy Punjab all blue.” The killings would continue in the streets of Delhi.

Thirty-seven years later, the country was again witness to another enormous human tragedy. Following the assassination of Smt. Indira Gandhi, the then Prime Minister of India, on the morning of 31st October 1984 by two of her Sikh bodyguards, a communal frenzy was unleashed. For four days between 1st and 4th November of that year, all over Delhi, 2,733 Sikhs were brutally murdered. Their houses were destroyed. In the rest of the country too thousands of Sikhs were killed.

A majority of the perpetrators of these horrific mass crimes, enjoyed political patronage and were aided by an indifferent law enforcement agency. The criminals escaped prosecution and punishment for over two decades. It took as many as ten Committees and Commissions for the investigation into the role of some of them to be entrusted in 2005 to the Central Bureau of Investigation (CBI), 21 years after the occurrence.

The present appeals arise as a result of the investigation by the CBI into the killings of five Sikhs in the Raj Nagar Part I area in Palam Colony in South West Delhi on 1st and 2nd November 1984 and the burning down of a Gurudwara in Raj Nagar Part II. Six accused, including Sajjan Kumar a Congress leader who was a Member of Parliament at that time, were sent up for trial some time in 2010. Three years later, the trial court convicted five of the accused: three of them for the offences of armed rioting and murder and two of them for the offence of armed rioting. Sajjan Kumar stood acquitted by the trial Court of all offences. The convicted accused as well as the CBI appealed to this Court.  

In the judgment that follows this Court has partly allowed CBI’s appeal and reversed the acquittal of Sajjan Kumar. This Court has convicted him for the offences of criminal conspiracy and abetment in the commission of the crimes of murder, promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of communal harmony, defiling and destruction of the Gurudwara by burning. Further while affirming the conviction and sentences awarded by the trial court to the other five accused, this Court has additionally convicted and sentenced them for the offence of criminal conspiracy to commit the aforementioned crimes.

The accused in this case have been brought to justice primarily on account of the courage and perseverance of three eyewitnesses. Jagdish Kaur whose husband, son and three cousins were the five killed; Jagsher Singh, another cousin of Jagdish Kaur, and Nirpreet Kaur who saw the Gurudwara being burnt down and her father being burnt alive by the raging mobs. It is only after the CBI entered the scene, that they were able to be assured and they spoke up. Admirably, they stuck firm to their truth at the trial.

This Court is of the view that the mass killings of Sikhs in Delhi and elsewhere in November 1984 were in fact ‘crimes against humanity’. They will continue to shock the collective conscience of society for a long time to come. While it is undeniable that it has taken over three decades to bring the accused in this case to justice, and that our criminal justice system stands severely tested in that process, it is essential, in a democracy governed by the rule of law to be able to call out those responsible for such mass crimes. It is important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done.”

                                      Having said this, let us now turn to what the opening para i.e. para 1 of this landmark judgment says. It says that, “These appeals are directed against the judgment dated 30th April 2013 passed by the District & Sessions Judge, North-east District, Karkardooma Courts, Delhi (‘trial Court’) in SC No. 26/2010 arising out of FIR No. RC-SI-1/2005/S0024 registered at PS Delhi Cantonment acquitting Sajjan Kumar (Accused No. 1: ‘A-1’) of the offences of criminal conspiracy and abetment while, at the same time, convicting Balwan Khokar (‘A-2’), Mahender Yadav (‘A-3), Captain Bhagmal (Retd.) (‘A-4’), Girdhari Lal (‘A-5’), and Krishan Khokar (‘A-6’). The trial Court convicted A-2, A-4, and A-5 for the offences punishable under Sections 147, 148, and 302 read with 149 IPC. A-3 and A-6 were convicted for the offences punishable under Sections 147 and 148 IPC. By the order on sentence dated 9th May 2013, they have been sentenced in the following manner:

(i)                         For the offence punishable under Section 302 read with Section 149 IPC, A-2, A-4 and A-5 were sentenced to imprisonment for life along with payment of a fine of Rs. 1,000/- and, in default of payment of fine, to undergo rigorous imprisonment (‘RI’) for six months;

(ii)                      For the offence punishable under Section 147 IPC, all five convicted accused were sentenced to two years’ RI along with payment of a fine of Rs. 1,000/- and, in default of payment of fine, to undergo RI for six months;

(iii)                   For the offence punishable under Section 148 IPC, all five convicted accused were sentenced to three years’ RI along with payment of a fine of Rs. 1,000/- and in default of payment of fine, to undergo RI for six months.”    

                                  Needless to say, para 2 brings out that, “The Central Bureau of Investigation (‘CBI’) has filed Crl. A. 1099/2013 challenging the complete acquittal of A-1 and the acquittal of the other accused for the other charges framed against them. The complainant, Jagdish Kaur (PW-1), had also preferred Crl. A. 850/2013 against the acquittal of A-1 which was subsequently withdrawn, with this Court granting her liberty to address arguments in Crl. A. 1099/2013.” Para 3 then states that, “The convicted accused, have filed separate appeals. Crl.A.861/2013 has been preferred by A-2, Crl.A.715/2013 by A-3, Crl.A.851/2013 by A-4, Crl.A.710/2014 by A-5 and Crl.A.753/2013 by A-6.”

       Charges framed against A-1

                           As it turned out, para 4 then elucidates that, “Four articles of charge were framed against A-1. First, he was charged with having committed the offence of criminal conspiracy punishable under Section 120B read with Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC on account of entering into an agreement, on or about 31st October 1984, with A-2 to A-6 as well as Mala Singh, Santosh Rani @ Janta Hawaldarni, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki, Balidan Singh, Raj Kumar @ Rajaram (all since deceased), and other known and unknown persons including police personnel to commit the following acts:

(i)     Rioting,

(ii)    Rioting armed with deadly weapon,

(iii)    Murder,

(iv)    Mischief causing damage,

(v)   Mischief by fire with intent to destroy houses etc.,

(vi) House trespass in order to commit offence punishable with death,

(vii)   Dacoity,

(viii)  Promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of harmony,

(ix) Injuring or defiling place of worship with intent to insult the religion of Sikh community, and

(x) Making statements conducing to public mischief.

                                                          Going forward, para 5 then says that, “Secondly, A-1 was charged with being a principal offender who abetted and instigated the aforementioned co-accused persons in the wake of the assassination of Smt. Indira Gandhi to commit, in pursuance of the aforementioned conspiracy, offences punishable under Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC and thereby having committed the offence punishable under Section 109 IPC read with the aforementioned provisions of the IPC.”

                                                   To be sure, para 6 then adds that, “Thirdly, A-1 was charged with having delivered fiery/provocative speeches to the mob gathered at Raj Nagar, Palam Colony, Delhi Cantonment on 1st/2nd November 1984 and having instigated and promoted violent enmity against the Sikh community and disturbed harmony between the two religious groups/communities of the locality in retaliation of the assassination of Smt.Indira Gandhi, giving rise to feelings of enmity, hatred, and ill will between members of the non-Sikh and Sikh communities which was prejudicial to the maintenance of harmony and disturbed public tranquility and was thereby guilty of committing the offence punishable under Section 153A IPC.”

                                                            In the same vein, it is then pointed out in para 7 that, “Fourthly, A-1 was charged with having publicly made a statement on 1st/2nd November 1984, to wit, by asking members of the Jat community to not leave any Sikh or any other person who had given shelter to Sikhs alive, inciting the mob gathered there by delivering fiery/provocative speeches and was thereby guilty of committing the offence punishable under Section 505 IPC.”

                          Charges framed against A-2 to A-6        

                                     Of course, para 8 then stipulates that, “Nine articles of charge were framed separately against the five other accused, viz. A-2 to A-6. Firstly, they were charged in a manner similar to A-1 with commission, on or about 31st October 1984, of the offence of criminal conspiracy punishable under Section 120B read with Sections 147, 148, 302, 395, 427, 436, 449, 153A, 295 and 505 IPC.”

                                       Moving ahead, para 9 then goes on to state that, “Secondly, they were charged with having been members of an unlawful assembly on 1st/2nd November 1984 in Raj Nagar, Palam Colony, Delhi Cantonment using force and violence in pursuance of the common object to loot, damage, and burn the properties of the Sikh community as well as to kill members of the Sikh community residing in the area in retaliation to the assassination of Smt. Indira Gandhi and were thereby guilty of commission of the offence punishable under Section 147 IPC. Thirdly, they were charged with commission of the aforementioned acts while being members of an unlawful assembly armed with guns, jellies, iron rods/pipes, lathis, kerosene oil, etc. and were thereby guilty of commission of the offence punishable under Section 148 IPC.”

                                               As we see, it is then next pointed out in para 10 that, “Fourthly, they were charged with having committed, while being members of the aforementioned unlawful assembly, the murders of Kehar Singh son of Dhyan Singh, Gurpreet Singh son of Kehar Singh, Raghuvinder Singh son of Gurcharan Singh, Narender Pal Singh son of Gurcharan Singh, and Kuldeep Singh son of Hardev Singh and were thereby guilty of commission of the offence punishable under Section 302 read with Section 149 IPC. Fifthly, they were charged with committing mischief and causing loss and damage amounting to approximately Rs. 3,30,000/- while being members of the aforementioned unlawful assembly and were thereby guilty of commission of the offence punishable under Section 427 read with Section 149 IPC.”

                                                      Interestingly enough, para 11 then reveals that, “Sixthly, they were charged with committing mischief while being members of the aforementioned unlawful assembly by setting fire to a place of worship, viz. the Raj Nagar Gurudwara, as well as the dwelling houses H.No.RZ-1/129 & RZ-15, Shiv Mandir Marg, Raj Nagar, Palam Colony, New Delhi and were thereby guilty of the commission of the offence punishable under Section 436 read with Section 149 IPC. Seventhly, they were charged with having committed house trespass while being members of the aforementioned unlawful assembly by entering H.No.RZ-1/129 & RZ-15, Shiv Mandir Marg, Raj Nagar, Delhi Cantonment, which were the dwelling house of the five deceased persons, in order to commit the offence of murder which is punishable with death, and were thereby guilty of commission of the offence punishable under Section 449 read with Section 149 IPC.”

                More importantly, para 12 then reveals that, “Eighthly, they were charged with having committed dacoity while being members of the aforementioned unlawful assembly in H.No.RZ-1/129 & RZ-15 which belonged to the deceased persons, and were thereby guilty of commission of the offence punishable under Section 395 read with Section 149 IPC. Lastly, they were charged with destroying/damaging/defiling a place of worship, i.e. the Raj Nagar Gurudwara held sacred by the Sikh community, while being members of the aforementioned unlawful assembly with the common intention of insulting the Sikh religion and were thereby guilty of commission of the offence punishable under Section 295 read with Section 149 IPC.”

                                         Summary Of Findings

                                   Most importantly, it is time now to focus on what the summary of findings are of the two Judge Bench of Delhi High Court in this landmark case. Para 368 states that, “The summary of conclusions arrived at by the Court is as under: –

(i)           There was an abject failure by the police to investigate the violence which broke out in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi is apparent from the several circumstances highlighted hereinabove. (Para 136)

(ii)       There was an utter failure to register FIRs with respect to the five deaths that form the subject matter of the present appeals. The failure to record any incident whatsoever in the DDR and the lack of mention of PW-1“s statement therein, amongst other circumstances, established the apathy of the Delhi Police and their active connivance in the brutal murders being perpetrated. (Paras 146 and 149)

(iii)   What happened in the aftermath of the assassination of the then Prime Minister was carnage of unbelievable proportions in which over 2,700 Sikhs were murdered in Delhi alone. The law and order machinery clearly broke down and it was literally a “free for all” situation which persisted. The aftershocks of those atrocities are still being felt. (Para 152)  

 (iv)    This was an extraordinary case where it was going to be impossible to proceed against A-1 in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them. Even if they were registered they were not investigated properly and even the investigations which saw any progress were not carried to the logical end of a charge sheet actually being filed. Even the defence does not dispute that as far as FIR No. 416/1984 is concerned, a closure report had been prepared and filed but was yet to be considered by the learned MM. (Para 159)

(v) The argument that the CBI deliberately suppressed the fact of the pendency of the closure report in FIR No. 416/1984 is born out of sheer desperation. Even if FIR No. 416/1984 was not closed as “untraced”, the fact remains that there was no progress whatsoever in the said FIR. (Para 160)

(vi) PW-1 comes across as a fearless and truthful witness. Till she was absolutely certain that her making statements will serve a purpose, she did not come forward to do so. Nothing in the deposition of PW1 points to either untruthfulness or unreliability. Her evidence deserves acceptance. (Paras 219 and 220)

(vii) PW-4 is also definitely a witness in support of the case of the prosecution. (Para 232)

(viii) PW-6 was one of the persons who had suffered tragedies and had no reason to falsely implicate anyone. (Para 242)

(ix) The failure to examine important witnesses including PWs 3, 4, 6, 7, 9 and 12 by the Riot Cell of the Delhi Police and also the non-examination of Daljit Kaur and Harbhajan Kaur establishes that the Riot Cell did not carry out any genuine investigation. PW-1 was justified in not joining such an investigation. (Paras 280 and 281)   

(x) The trial Court completely omitted to address the charge of conspiracy despite detailed arguments submitted by the CBI in that regard. There was a two-pronged strategy adopted by the attackers. First was to liquidate all Sikh males and the other was to destroy their residential houses leaving the women and children utterly destitute. The attack on the Raj Nagar Gurudwara was clearly a part of the communal agenda of the perpetrators. (Paras 288 and 294)

(xi) The mass killings of Sikhs between 1st and 4th November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, answer the description of crimes against humanity”. Cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere. (Paras 367.1 and 367.10)

(xii) Common to the instances of mass crimes are the targeting of minorities and the attacks spearheaded by the dominant political actors facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system. Decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither “crimes against humanity” nor “genocide” is part of our domestic law of crime. This loophole needs to be addressed urgently. (Para 367.6)

(xiii) The acquittal of A-1 by the trial Court is set aside. He is convicted of the offence of criminal conspiracy punishable under Section 120B read with Sections 302, 436, 295 and 153A(1)(a) and (b) IPC; for the offence punishable under Section 109 IPC of abetting the commission of the aforementioned offences; and for the offence of delivering provocative speeches instigating violence against Sikhs Crl.A. 1099/2013 & Connected Matters Page 201 of 203 punishable under Section 153A (1) (a)and (b) IPC. (Para 307)

(xiv) The convictions and sentences of A-2 to A-6 as ordered by the trial Court are affirmed. Additionally, each of them is convicted for the offence of criminal conspiracy punishable under Section 120B read with Sections 436, 295, and 153A (1) (a) and (b) IPC. (Paras 331, 356, 360 and 366)

                    Sentences

                               No less important is the sentencing part of this landmark judgment. Let us deal with it one by one. First and foremost, para 369 states that, “As far as A-1 is considered, he is sentenced as under:

(i)                         For the offence of criminal conspiracy punishable under Section 120B read with

(a)          Section 302 IPC, to imprisonment for life, i.e. the remainder of his natural life,

(b)         Section 436 IPC, to RI for 10 years and fine of Rs 1 lakh and in default of payment of fine to undergo simple imprisonment (SI) for 1 year;

(c)           Section 153A(1)(a) and (b) IPC, to RI for three years; and

(d)         Section 295 IPC, to RI for two years.  

(ii)                      For the offence punishable under Section 109 read with Sections 302, 436, 153A, and 295 IPC to identical sentences as in (i) (a) to (d) above.

(iii)                   For the offence punishable under Section 153A(1)(a) and (b) IPC, to RI for three years.

All sentences shall run concurrently.

                                       Be it noted, it is then directed in para 370 that, “The bail and surety bonds furnished by A-1 stand cancelled and he shall surrender not later than 31st December 2018, failing which he shall forthwith be taken into custody to serve out the sentences awarded to him. A-1 shall not from this moment till his surrender leave the NCT of Delhi in the meanwhile and shall immediately provide to the CBI the address and mobile number(s) where he can be contacted.”                

                               All said and done, it is a landmark and laudable judgment but the victims of the 1984 anti-Sikh riots have had to wait for far too long more than 34 years which is most disgusting and disgraceful! Even now they have to fight a long legal battle in the Supreme Court! They must be given top priority and decided at the earliest! Nearly 3000 Sikhs being killed in Delhi alone and no one being hanged or even awarded life term until recently is a huge national shame for which both Centre and the judiciary are equally responsible for not doing enough to act swiftly and sternly against the powerful political offenders!

                          Before concluding, let me again remind esteemed readers what is so rightly pointed out in para 367.6 of this landmark judgment. It says that, “In India, the riots in early November 1984 in which in Delhi alone 2,733 Sikhs and nearly 3,350 all over the country were brutally murdered (these are official figures) was neither the first instance of a mass crime nor, tragically, the last. The mass killings in Punjab, Delhi and elsewhere during the country’s partition remains a collective painful memory as is the killings of innocent Sikhs in November 1984. There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in U.P. in 2013 to name a few. Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies. The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system. As these appeals themselves demonstrate, decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither ‘crimes against humanity’ nor ‘genocide’ is part of our domestic law of crime. This loophole needs to be addressed urgently.” So this must be done at the earliest as has been very rightly pointed out by the Delhi High Court in this landmark judgment! There can be no denying it!

                                In conclusion, if there has to be respect for law in our country, the punishment for those indulging in such heinous crimes has to be swift and strict! Just because accused enjoys political patronage they should not be allowed to evade the due process of law as we have seen in many cases including  this one also for many decades because this would tantamount to making a mockery of our legal system and due process of law which cannot be permitted to happen in our country under any circumstances because doing so would lead our country to anarchy, dictatorship and lawlessness! No one who indulges in crime should ever be allowed to get away under any circumstances.

                                       It cannot be lost on us that in this 1984 anti-Sikh riots also there are many other big fishes who are still roaming free and they too must be brought to book and after following due process of law must be sent behind bars or to gallows which is the right place for them who mercilessly ensured the killings of thousands of Sikh men, women and even children without having any mercy on anyone! Can anyone deny this? Why have they been allowed to take law for granted? Why the killers were not sent to gallows promptly? Why even after killing of nearly 4000 Sikhs all over the country, no one has been hanged till now?

                                   Bluntly put: What image does this send of India in abroad? That one can get away with doing anything provided one has the right connections and the right political patronage! This must end now once and for all! No one should be allowed to get away after committing crime of any kind! Only then will our image in international forum get strengthened which will not just garner more investment in India from other countries but also strengthen India’s demand for a permanent seat in the UN Security Council! Also, this will severely hamper hostile countries like Pakistan from easily misguiding young Sikh youths and they will also realize that in India no one who killed their near and dear ones are being spared or left scot free just because of their political connections! India must act tough now on killers and those who masterminded such mass killings must be now punished most swiftly and most strictly!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.   

In what has come as a big shot in the arm for the present ruling dispensation at the Centre led by PM Narendra Modi, the Supreme Court in its landmark judgment titled Manohar Lal Sharma vs Narendra Damodardas Modi & Ors in Writ Petition (Criminal) No. 225 of 2018 with W.P. (C) No. 1205/2018, W.P. (Crl) No. 297/2018 and W.P. (Crl) No. 298/2018 delivered on December 14, 2018 has dismissed a string of petitions seeking an independent probe into the 2015 Rafale deal, according it a clean chit in all respects – decision-making, pricing and procurement procedure. The Bench of Chief Justice of India Ranjan Gogoi and Justices SK Kaul and KM Joseph pronounced this landmark, laudable and excellent judgment on a batch of PILs by Advocates ML Sharma, Vineet Dhanda, Prashant Bhushan and former Union Ministers Arun Shourie and Yashwant Sinha and AAP MP Sanjay Singh for registration of FIR and Court-monitored investigation by CBI into corruption allegations in Rafale deal. All petty politics must now stop over Rafale deal and what the highest court of the land has held so unambiguously must be respected by all of us including the petitioners!

                                          To begin with, para 1 sets the ball rolling by first and foremost pointing out that, “The issues arising in this group of writ petitions, filed as Public Interest Litigations, relate to procurement of 36 Rafale Fighter Jets for the Indian Airforce. The procurement in question, which has been sought to be challenged, has its origins in the post-Kargil experience that saw a renewed attempt to advance the strategic needs of the armed forces of the country.”

               In retrospect, para 2 then brings out that, “As far back as in the month of June of the year 2001, an in-principle approval was granted for procurement of 126 fighter-jets to augment the strength of the Indian Airforce. Simultaneously, a more transparent Defence Procurement Procedure (“DPP”) was formulated for the first time in the year 2002. A robust ‘offset clause’ was included in the DPP in the year 2005 so as to promote Indigenisation and to that effect Services Qualitative Requirements (“SQRs”) were prepared in June 2006. On 29th June 2007 the Defence Acquisition Council (“DAC”) granted the “Acceptance of Necessity” for the procurement of 126 Medium Multi Role Combat Aircrafts (for short “MMRCA”) including 18 direct fly-away aircrafts (equivalent to a single squadron) to be procured from the Original Equipment Manufacturer (“OEM”) with the remaining 108 aircrafts to be manufactured by Hindustan Aeronautics Limited (for short “HAL) under licence, to be delivered over a period of 11 years from the date of signing. The bidding process commenced in August 2007. Six (06) vendors submitted proposals in April 2008. The proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. All these were completed in the year 2011. The commercial bids were opened in November, 2011 and M/s Dassault Aviation (hereinafter referred to as “Dassault”) was placed as the L-I sometime in January 2012. Negotiations commenced thereafter and continued but without any final result. In the meantime, there was a change of political dispensation at the centre sometime in the middle of the year 2014.”     

                          To be sure, para 3 then brings out that, “According to the official respondents negotiation continued. A process of withdrawal of the Request for Proposal in relation to the 126 MMRCA was initiated in March 2015. On 10th April, 2015 an Indo-French joint statement, for acquisition of 36 Rafale Jets in fly-away condition through an Inter-Governmental Agreement (hereinafter referred to as “IGA”), was issued and the same was duly approved by the DAC. The Request for Proposal for the 126 MMRCA was finally withdrawn in June 2015. Negotiations were completed after Inter-Ministerial Consultations with the approval of the Cabinet Committee on Security (for short “CCS”). The contract along with Aircraft Package Supply Protocol: Weapons Package Supply Protocol: Technical Arrangements and Offset contracts was signed in respect of 36 Rafale Jets on 23rd September, 2016. The aircrafts were scheduled to be delivered in phased manner commencing from October 2019.”

                                     More importantly, it is then brought out in para 4 that, “Things remained quiet until sometime in the month of September, 2018 when certain newspapers reported a statement claimed to have been made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India. This seems to have triggered of the writ petitions under consideration.

                                  The first writ petition i.e. Writ Petition (Criminal) No. 225 of 2018 has been filed by one Shri Manohar Lal Sharma, a practicing lawyer of this Court. What is sought for in the said writ petition is registration of an FIR under relevant provisions of the Indian Penal Code, 1860 and a Court Monitored Investigation. The further relief of quashing the Inter-Governmental Agreement of 2016 for purchase of 36 Rafale Jets has also been prayed for.

                           Writ Petition (Civil) No. 1205 of 2018 has been filed by one Shri Vineet Dhanda claiming to be a public spirited Indian. The petitioner states that he was inspired to file the writ petition being agitated over the matter on the basis of the newspaper articles/reports.

                        The third writ petition bearing Writ Petition (Criminal) No. 297 of 2018 has been filed by one Shri Sanjay Singh, a Member of Parliament alleging illegality and non-transparency in the procurement process. The said writ petition seeks investigation into the reasons for “cancellation of earlier deal” and seeks a scrutiny of the Court into the alteration of pricing and, above all, how a ‘novice’ company i.e. Reliance Defence came to replace the HAL as the Offset partner. Cancellation of Inter-Governmental Agreement and registration of an FIR has also been prayed for.

                          The fourth and the last writ petition bearing Writ Petition (Criminal) No. 298 of 2018 has been filed by Shri Yashwant Sinha, Shri Arun Shourie and Shri Prashant Bhushan claiming to be public spirited Indians. They are aggrieved by non-registration of FIR by the CBI pursuant to a complaint made by them on 4th October, 2018 which complaint, according to the petitioners, disclose a prima facie evidence of commission of a cognizable offence under the provisions of the Prevention of Corruption Act, 1988. The prayer, inter alia, made is for direction for registration of an FIR and investigation of the same and submitting periodic status reports to the Court.”  

                                   It is then underscored in para 5 that, “Adequate Military strength and capability to discourage and withstand external aggression and to protect the sovereignty and integrity of India, undoubtedly, is a matter of utmost concern for the Nation. The empowerment of defence forces with adequate technology and material support is, therefore, a matter of vital importance.”

                                 Simply put, para 6 then stipulates that, “Keeping in view the above, it would be appropriate, at the outset, to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement and to indicate whether such parameters are more constricted than what the jurisprudence of judicial scrutiny of award of tenders and contracts, that has emerged till date, would legitimately permit.”

                                                  Broadly speaking, para 7 then makes the picture more clear by pointing out that, “Parameters of judicial review of administrative decisions with regard to award of tenders and contracts has really developed from the increased participation of the State in commercial and economic activity. In Jagdish Mandal vs State of Orissa and Ors, (2007) 14 SCC 517, this Court, conscious of the limitations in commercial transactions, confined its scrutiny to the decision making process and on the parameters of unreasonableness and mala fides. In fact, the Court held that it was not to exercise the power of judicial review even if a procedural error is committed to the prejudice of the tenderer since private interests cannot be protected while exercising such judicial review. The award of contract, being essentially a commercial transaction, has to be determined on the basis of considerations that are relevant to such commercial decisions, and this implies that terms subject to which tenders are invited are not open to judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or a class of tenderers. [See Maa Binda Express Carrier & Anr. Vs. North-East Frontier Railway & Ors. (2014) 3 SCC 760]. Para 8 then states explicitly that, “Various Judicial pronouncements commencing from Tata Cellular vs. Union of India (1994) 6 SCC 651, all emphasise the aspect that scrutiny should be limited to the Wednesbury Principle of Reasonableness and absence of mala fides or favouritism.”

                           Truth be told, para 9 then seeks to clarify that, “We also cannot lose sight of the tender in issue. The tender is not for construction of roads, bridges, etc. It is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government keeping in mind the nature of the procurement itself. This aspect was even emphasized in Siemens Public Communication Networks Pvt. Ltd. & Ors. (2008) 16 SCC 215. The triple ground on which such judicial scrutiny is permissible has been consistently held to be “illegality”, “irrationality” and “procedural impropriety”.”

                            As it turned out, para 11 then elucidates that, “It is our considered opinion/view that the extent of permissible judicial review in matters of contracts, procurement, etc. would vary with the subject matter of the contract and there cannot be any uniform standard or depth of judicial review which could be understood as an across the board principle to apply to all cases of award of work or procurement of goods/material. The scrutiny of the challenges before us, therefore, will have to be made keeping in mind the confines of national security, the subject of the procurement being crucial to the nation’s sovereignty.”

                                       Going forward, it is then observed in para 12 that, “Adopting such an approach, on 10th October, 2018 when the first two writ petitions were initially listed before the Court, the Court had specifically observed in its order that it is proceeding in the matter by requiring the Government of India to apprise the Court of the details of the steps taken in the decision making process notwithstanding the fact that the averments in the writ petitions were inadequate and deficient. The Court had also indicated that it was so proceeding in the matter in order to satisfy itself of the correctness of the decision-making process. It was also made clear that the issue of pricing or matters relating to technical suitability of the equipment would not be gone into by the Court. The requisite information was required to be placed before the Court by the Government of India in sealed cover. Before the next date of hearing fixed i.e. 31st October, 2018, the other two writ petitions came to be filed.”

                                Be it noted, it is then revealed in para 13 that, “On 31st October, 2018, the Court in its order had recorded that in none of the writ petitions the suitability of the fighter jets and its utility to the Indian Airforce had been called into question. Rather what was doubted by the petitioners is the bona fides of the decision-making process and the price/cost of the equipment at which it was proposed to be acquired.” Para 14 then states that, “Pursuant to the order dated 10th October 2018, a note in sealed cover delineating the steps in the decision-making process was submitted to the Court and by order dated 31st October 2018 this Court had directed that such of the information which has been laid before the Court, which can legitimately be brought into the public domain, be also made available to the petitioners or their counsels. Details with regard to the induction of the Indian Offset Partner (IOP), if any, was also required to be disclosed. The Court also directed that the details with regard to pricing; the advantages thereof, if any, should also be submitted to the Court in a sealed cover.”

                                     Needless to say, para 15 then states that, “It is in the backdrop of the above facts and the somewhat constricted power of judicial review that, we have held, would be available in the present matter that we now proceed to scrutinise the controversy raised in the writ petitions which raise three broad areas of concern, namely, (i) the decision-making process; (ii) difference in pricing; and (iii) the choice of IOP.”  

              Decision Making Process

                                       It cannot be lost on us that para 16 then spells out that, “The details of the steps in the decision-making process leading to the award of the 36 Rafale fighter aircrafts’ order have been set out in response to the order dated 10th October, 2018. The Government states that the DPP 2002 has been succeeded by periodical reviews in 2005, 2006, 2008, 2011, 2013 and 2016. The preamble to DPP has been referred to capture its essence, which emphasises that –

“Defence acquisition is not a standard open market commercial form of procurement and has certain unique features such as supplier constraints, technological complexity, foreign suppliers, high cost, foreign exchange implications and geo-political ramifications. As a result, decision making pertaining to defence procurement remains unique and complex.”

It also states that –

              “Defence procurement involves long gestation periods and delay in procurement will impact the preparedness of our forces. The needs of the armed forces being a non-negotiable and an uncompromising aspect, flexibility in the procurement process is required, which has also been provisioned for.”

It is DPP 2013 which is stated to have been followed in the procurement in question.

                              It is no doubt true that paragraph 77 of the DPP 2013 reads as follows:

                    “77. This procedure would be in supersession of Defence Procurement Procedure 2011 and will come into effect from 01 June 2013. There are, however, cases which would be under various stages of processing in accordance with provision of earlier versions of DPP at the time of commencement of DPP-2013. The processing of these cases done so far under the earlier procedure will be deemed to be valid. Only those cases in which RFP is issued after 01 June, 2013, will be processed as per DPP-2013.”           

In other words when it is stated that only those cases in which RFP is issued after 1st June 2013 will be processed as per DPP 2013, in this case where the RFP was issued much prior to 1st April 2013 and it was withdrawn, as already noted, in June 2015, a question may arise as to how it could be claimed that DPP 2013 was followed. We, however, also notice clause 75 of DPP 2013 which reads as follows:

                  “75. Any deviation from the prescribed procedure will be put up to DAC through DPB for approval.”

                                    To put it gently, it is then observed in para 17 that, “Also, we notice that the official respondents have sought support from paragraph 71 of the DPP 2013. Para 71 of DPP 2013, in respect of the IGA has been referred to, which postulates possibilities of procurement from friendly foreign countries, necessitated due to geo-strategic advantages that are likely to accrue to the country. Such procurement would not classically follow the Standard Procurement Procedure or the Standard Contract Document, but would be based on mutually agreed provisions by the Governments of both the countries based on an IGA, after clearance from the Competent Financial Authority (hereinafter referred to as “CFA”). Of the total procurement of about Rs 7.45 lakh crores since 2002 under DPP, different kinds of IGAs, including Foreign Military Sales and Standard Clauses of Contract account for nearly 40%. With the object of promoting indigenization, a robust offset clause is said to have been included since 2005. As per the Defence Offset Guidelines of 2013, the vendor/Original Equipment Manufacturer (hereinafter referred to as “OEM”) is free to select its IOPs for implementing the offset obligation.”

                                           It would be pertinent to mention here that while shedding light on the unresolved issues involved in procuring the 126 fighter aircrafts is concerned, para 18 states eloquently that, “As far as the endeavour to procure 126 fighter aircrafts is concerned, it has been stated that the contract negotiations could not be concluded, inter alia, on account of unresolved issues between the OEM and HAL. These have been set out as under:

“i) Man-Hours that would be required to produce the aircraft in India: HAL required 2.7 times higher Man-Hours compared to the French side for the manufacture of Rafale aircraft in India.

ii) Dassault Aviation as the seller was required to undertake necessary contractual obligation for 126 aircraft (18 direct fly-away and 108 aircraft manufactured in India) as per RFP requirements. Issues related to contractual obligation and responsibility for 108 aircraft manufactured in India could not be resolved.”   

                                     Truly speaking, para 19 then minces no words in clearly and convincingly pointing out that, “The aforesaid issues are stated to have been unresolved for more than three years. Such delay is said to have impacted the cost of acquisition, as the offer was with ‘in-built escalation’ and was influenced by Euro-Rupee exchange rate variations. The stalemate resulted in the process of RFP withdrawal being initiated in March 2015. In this interregnum period, adversaries of the country, qua defence issues, inducted modern aircrafts and upgraded their older versions. This included induction of even 5th Generation Stealth Fighter Aircrafts of almost 20 squadrons, effectively reducing the combat potential of our defence forces. In such a situation, government-to-government negotiations resulted in conclusion of the IGA for the supply of 36 Rafale Aircrafts, as part of a separate process. The requisite steps are stated to have been followed, as per DPP 2013. An INT (Indian Negotiating Team) was constituted to negotiate the terms and conditions, which commenced in May 2015 and continued till April 2016. In this period of time, a total of 74 meetings were held, including 48 internal INT meetings and 26 external INT meetings with the French side. It is the case of the official respondents that the INT completed its negotiations and arrived at better terms relating to price, delivery and maintenance, as compared to the MMRCA offer of Dassault. This was further processed for inter-ministerial consultations and the approval of the CCS was also obtained, finally, resulting in signing of the agreement. This was in conformity with the process, as per para 72 of DPP 2013.”

                                      Of course, para 20 then adds that, “The petitioners, on the other hand, seek to question the very fulfillment of the prerequisites for entering into an IGA. The Government of France, giving onlya ‘Letter of Comfort’ and not a ‘Sovereign Guarantee’ has been questioned.”

               Taking the argument of the petitioners forward, para 21 then brings out that, “It is a say of the petitioners that para 71 envisages three eventualities, where the question of entering into an IGA would arise, which have not arisen in the present case:

(a)          Proven technology and capabilities belonging to a friendly foreign country is identified by our Armed Forces while participating in joint international exercises;

(b)         Large value weapon system/platform in service in a friendly foreign country is available for transfer or sale normally at a much lesser cost; or

(c)           Requirement of procuring a specific state-of-the-art equipment/platform where the Government of the OEM’s country might have imposed restriction on its sale and thus the equipment cannot be evaluated on ‘No Cost No Commitment’ basis.”

                                          Now coming to one of the most important paras of this landmark judgment which vindicates Centre’s stand on Rafale deal, para 22 very clearly and categorically holds that, “We have studied the material carefully. We have also had the benefit of interacting with senior Air Force Officers who answered Court queries in respect of different aspects, including that of the acquisition process and pricing. We are satisfied that there is no occasion to really doubt the process, and even if minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court. We have been informed that joint exercises have taken place, and that there is a financial advantage to our nation. It cannot be lost sight of that these are contracts of defence procurement which should be subject to a different degree and depth of judicial review. Broadly, the processes have been followed. The need for the aircrafts is not in doubt. The quality of the aircraft is not in question. It is also a fact that the long negotiations for procurement of 126 MMRCAs have not produced any result, and merely conjecturing that the initial RPF could have resulted in a contract is of no use. The hard fact is that not only was the contract not coming forth but the negotiations had come practically to an end, resulting in a recall of the RFP. We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126. We cannot possibly compel the Government to go in for purchase of 126 aircraft. This is despite the fact that even before the withdrawal of RFP, an announcement came to be made in April 2015 about the decision to go in only for 36 aircrafts. Our country can afford to be unprepared/underprepared in a situation where our adversaries are stated to have acquired not only 4th Generation, but even 5th Generation Aircrafts, of which, we have none. It will not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”      

                               Going forward, para 23 then observes that, “We may also note that the process was concluded for 36 Rafale fighter jet aircrafts on 23rd September, 2016. Nothing was called into question, then. It is only taking advantage of the statement by the ex-President of France, Francois Hollande that these set of petitions have been filed not only qua the aspect which formed the statement, that is, the issue of IOPs but also with respect to the entire decision-making process and pricing. We do not consider it necessary to dwell further into this issue or to seek clause-by-clause compliances.”

              Pricing

                                         On the issue of pricing, first and foremost the Apex Court Bench held in para 24 that, “The challenge to the pricing of the aircrafts, by the petitioners, is sought to be made on the ground that there are huge escalations in costs, as per the material in public domain, as found in magazines and newspapers. We did initially express our disinclination to even go into the issue of pricing. However, by a subsequent order, to satisfy the conscience of the Court, it was directed that details regarding the costs of the aircrafts should also be placed in sealed covers before the Court.”

                                       To put things in perspective, it is then very rightly observed by the top court in para 25 that, “The material placed before us shows that the Government has not disclosed pricing details, other than the basic price of the aircraft, even to the Parliament, on the ground that sensitivity of pricing details could affect national security, apart from breaching the agreement between the two countries. The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereinafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament, and is in public domain. The Chief of the Air Staff is stated to have communicated his reservation regarding the weaponry which could adversely affect national security. The pricing details are stated to be covered by Article 10 of the IGA between the Government of India and the Government of France, on purchase of Rafale Aircrafts, which provides that protection of classified information and material exchanged under the IGA would be governed by the provisions of the Security Agreement signed between both the Governments on 25th January, 2008. Despite this reluctance, the material has still been placed before the Court to satisfy its conscience.”   

                             To say the least, it is then clarified in para 26 that, “We have examined closely the price details and comparison of the prices of the basic aircraft along with escalation costs as under the original RFP as well as under the IGA. We have also gone through the explanatory note on the costing, itemwise.

   Suffice it to say that as per the price details, the official respondents claim there is a commercial advantage in the purchase of 36 Rafale aircrafts. The official respondents have claimed that there are certain better terms in IGA qua the maintenance and weapon package. It is certainly not the job of this Court to carry out a comparison of the pricing details in matters like the present. We say no more as the material has to be kept in a confidential domain.”

              Offsets

                       To put it succinctly, para 27 then envisages that, “The issue of IOP is what has triggered this litigation. The offset contract is stated to have been governed by the Defence Offset Guidelines of DPP 2013. Two of the said contracts were signed with Dassault and M/s MBDA Missile Systems Limited on 23rd September, 2016, the same day on which the IGA was signed between the Government of India and the Government of France. These are the French industrial suppliers of the Aircraft package and Weapon Package respectively. There are stated to be no offset obligations in the first three years, but the offset obligations are to commence from October 2019 onwards.”

                        While craving for the exclusive indulgence of esteemed readers, it must be informed here that para 28 then while shedding light on the complaint of the petitioners brings out that, “The complaint of the petitioners is that the offset guidelines contemplate that the vendor will disclose details about the Indian Offset partner however, in order to help the business group in India in question, an amendment was carried out in paragraph 8 of the Offset Guidelines that too with retrospective effect. By virtue of the said amendment it is contended that cloak of secrecy is cast about the Offset partner and the vendor is enabled to give the details at a much later point of time. It is contended, however, that other provisions of the Offset Guidelines remain unamended, and, therefore, Government cannot pretend ignorance about the Indian Offset partner as has been done in the affidavit filed. It is complained that favouring the Indian business group has resulted in offence being committed under the Prevention of Corruption Act.”    

                     For esteemed readers exclusive indulgence, it must also be informed here that para 29 then discloses that, “As per clause 8 of DPP 2013, dealing with the processing of offset proposals, it has been stated in clause 8.2 as under:

                  “8. Processing of Offset Proposals

                    8.2 The TOEC (Technical Offset Evaluation Committee) will scrutinize the technical offset proposals (excluding proposals for Technology Acquisition by DRDO as per para 8.3) to ensure conformity with the offset guidelines. For this purpose, the vendor may be advised to undertake changes to bring his offset proposals in conformity with the offset guidelines. The TOEC will be expected to submit its report within 4-8 weeks of its constitution”.”

                                   Having said this, let us now turn to para 30 which says that, “It has been categorically stated that the vendor/OEM is yet to submit a formal proposal, in the prescribed manner, indicating the details of IOPs and products for offset discharge. A press release in the form of a ‘Clarification on Offset Policy’, posted on 22nd September, 2018 has also been placed before us. Inter alia, it states that the Government reiterates that it has no role to play in the selection of the IOP. As per the Defence Offset Guidelines, the OEM is free to select any Indian company as its IOP. A joint venture is stated to have come into being between Reliance Defence and Dassault in February 2017, which is stated to be a ‘purely commercial arrangement’ between the two private companies. Media reports of February 2012 are stated to suggest that Dassault, within two weeks of being declared the lowest bidder for procurement of 126 aircrafts by the previous Government, had entered into a pact for partnership with Reliance Industries (Another business group) in the Defence sector. Dassault has also issued a press release stating that it has signed partnership agreement with several companies and is negotiating with over hundred other companies. As per the guidelines, the vendor is to provide details of the IOPs, either at the time of seeking offset credit or one year prior to discharge of offset obligation which would be due from 2020 onwards. The aforesaid press release is in conformity with the clause dealing with IOPs which reads as under:

                    “4. Indian Offset Partner

                     4.3 The OEM/vendor/Tier-1 sub-vendor will be free to select the Indian offset partner for implementing the offset obligation provided the IOP has not been barred from doing business by the Ministry of Defence.”

                                Now coming to para 31, it stipulates that, “Despite the aforesaid illustration, the petitioners kept on emphasising that the French Government has no say in the matter, as per media reports. It is also stated that there was no reason for Dassault to have engaged the services of Reliance Aerostructure Ltd., through a joint venture, when the company itself had come into being only on 24th April, 2015. The allegation, thus, is that the Indian Government gave a benefit to Reliance Aerostructure Ltd., by compelling Dassault to enter into a contract with them, and that too at the cost of the public enterprise, HAL.”

                                       Now let us talk about para 32. It says: “It is no doubt true that the company, Reliance Aerostructure Ltd., has come into being in the recent past, but the press release suggests that there was possibly an arrangement between the parent Reliance company and Dassault starting from the year 2012. As to what transpired between the two corporate would be a matter best left to them, being matters of their commercial interests, as perceived by them. There has been a categorical denial, from every side, of the interview given by the former French President seeking to suggest that it is the Indian Government which had given no option to the French Government in the matter. On the basis of materials available before us, this appears contrary to the clause in DPP 2013 dealing with IOPs which has been extracted above. Thus, the commercial arrangement, in our view, itself does not assign any role to the Indian Government, at this stage, with respect to the engagement of the IOP. Such matter is seemingly left to the commercial decision of Dassault. That is the reason why it has been stated that the role of the Indian Government would start only when the vendor/OEM submits a formal proposal, in the prescribed manner, indicating details of IOPs and products for offset discharge. As far as the role of HAL, insofar as the procurement of 36 aircrafts is concerned, there is no specific role envisaged. In fact, the suggestion of the Government seems to be that there were some contractual problems and Dassault was circumspect about HAL carrying out the contractual obligation, which is also stated to be responsible for the non-conclusion of the earlier contract.”

                                      It is a no-brainer that para 33 while vindicating Centre’s position on rafale deal very clearly and convincingly points out that, “Once again, it is neither appropriate nor within the experience of this Court to step into this arena of what is technically feasible or not. The point remains that DPP 2013 envisages that the vendor/OEM will choose its own IOPs. In this process, the role of the Government is not envisaged and, thus, mere press interviews or suggestions cannot form the basis for judicial review by this Court, especially when there is categorical denial of the statements made in the Press, by both the sides. We do not find any substantial material on record to show that this is a case of commercial favouritism to any party by the Indian Government, as the option to choose the IOP does not rest with the Indian Government.”

                    Conclusion:

                                 In conclusion, it is then observed in para 34 that, “In view of our findings on all the three aspects, and having heard the matter in detail, we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. We, thus, dismiss all the writ petitions, leaving it to the parties to bear their own costs. We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.”

                                          It must be revealed here that Centre has sought correction in para 25 of this landmark and laudable judgment which had stated that the pricing details were shared with the Comptroller and Auditor General of India and that the report was examined by the Public Accounts Committee. The Centre said the error in the Apex Court’s judgment was “perhaps on account of misinterpretation of a couple of sentences in a note” that was handed over to it in a sealed cover. The government said in an application to the court that, “The observations in the judgment have resulted in a controversy in public domain, and would warrant correction by the court in the interest of justice.” The government said in its original note submitted to the court, the word “is” had been replaced by the word “has been”, which created the confusion. The report of the CAG will be placed before the PAC as and when it is ready, the government said in the application.

                                               All said and done, Opposition must refrain from making a political capital out of this small mistake which Centre has itself acknowledged and has sought correction also to it! There is no point in making a mountain out of a molehill! But it is the Opposition which must realize this and gracefully accept this landmark judgment!

                                      No doubt, this landmark, laudable and extraordinary judgment must be truly respected by each and every Indian and we all should desist from making India a laughing stock in front of the world by crying “scam, scam and scam without giving any proof to substantiate it.” We all need to appreciate that the  Supreme Court is the highest court of the land and its landmark and laudable judgment must be respected by Centre, Opposition and all of us in equal measure! Former UP CM Akhilesh Yadav very rightly and gracefully has accepted this landmark judgment of three-Judges Bench of the Apex Court and has refused to support the Congress demand for a JPC into it! Politics over defence deals is most deplorable and disgusting and it is our national security which suffers the most in this political one-upmanship game! How can any good Indian support it? All petty politics over it must stop and political interest must relinquish its prime position which must be replaced by national interest and it has to be above everything else if our nation is to progress and prosper in the real true sense! Is it a tall order? Certainly not!     

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It must be noted first and foremost that in a landmark judgment with far reaching consequences for Assistant Public Prosecutors, the Aurangabad Bench of Bombay High Court in Maharashtra State Public Prosecutors Association Through its President Sanjay Purushottam Deshmukh versus 1. The State of Maharashtra Through its Secretary, Home Department, Mantralaya, Mumbai. 2. The Director of Prosecution, State of Maharashtra, Church Gate, Mumbai in Writ Petition No. 8117 of 2017 which was  reserved on 10th July 2018 and pronounced on 24th August 2018, has quashed resoundingly a government resolution dated May 12, 2015 imposing a condition that the Assistant Public Prosecutor, whose rate of conviction is less than 25% of the cases handled by him, is not entitled to promotion and thus accepted the contention of the petitioners as valid. A Division Bench of Justice SV Gangapurwala and Justice SK Kotwal at Aurangabad held that the said notification was irrational, unreasonable and against the law of the land. So it had to be quashed and naturally so! The Court was hearing a writ petition filed by Maharashtra State Public Prosecutors Association and the respondents were State of Maharashtra and the Director of Prosecution in the State. PR Katneshwarkar was advocate for the petitioner and NT Bhagat, A.G.P. for the State/respondent No. 1.

            Submissions

                                 As it turned out, para 5 brings out that, “Learned Counsel for the petitioner submits that the impugned Government Resolution, specially Clause Nos. 4 and 7, mandating the Assistant Public Prosecutors in Maharashtra State to secure minimum 25% conviction in criminal cases for getting promotion, is unreasonable, contrary to the provisions of Criminal Procedure Code and decision of Supreme Court as well as decision of the High Court.”

                            To be sure, para 6 then points out that, “Learned Counsel for the petitioner submits that the Public Prosecutor, who represents the State in the criminal trial, is not expected to assure the State that in any case he would secure the conviction. On the other hand, being officer of the Court it is the duty of Public Prosecutor to place before the Court every material collected by the Investigating Officer fairly, irrespective of the fact whether it supports the prosecution case or not.”

                                         Bluntly put: Who can deny or dispute this? How can the Investigating Officer be biased and always disposed towards securing the conviction of the accused under any circumstances? Will this not make an open mockery of justice which always demands neutrality from not just Judges but also the Investigating Officers?  

                       It also cannot be lost on us that it is rightly contended in para 7 that, “Learned Counsel for the petitioner submits that the result of criminal trial depends on quality and quantity of evidence collected by the Investigating Officer and not on the performance of the Public Prosecutor. There is no nexus between the performance of Public Prosecutor and conviction or acquittal.” Absolutely right! To link the performance of Public Prosecutor with conviction or acquittal would be downright absurd!

                                   No wonder, it is then rightly stated in para 8 that, “His last submission is that the impugned Government Resolution being irrational and against the law of the land, deserves to be quashed. He placed reliance on the case of “S.B. Shahane and others Vs. State of Maharashtra and another”, [1995 Supp (3) Supreme Court Cases 37] and “Sushil Hiralal Chokhani Vs. State of Maharashtra”, [(2005) All M.R. (Cri.) 2673].” Can any sane person call such a Government Resolution rational? Speaking for myself, it has been rightly quashed by the Aurangabad Bench of the Bombay High Court!

                                    It would be apposite to now mention what has been contended by the Respondents. To begin with, it is pointed out in para 9 that, “Learned Counsels for the respondents submit that in the Maharashtra the rate of conviction in criminal case is less which compelled the Government to take policy decision and to pass the impugned Government Resolution for improvement in conviction rates, which is neither bias nor malafide, and therefore, the Court cannot interfere with the same. They submit that the conviction rate in Maharashtra State has dropped drastically as compared to the other States, which affects the public at large and sends a wrong signal to the society. The impugned Government Resolution was passed as a policy decision for achieving greater conviction rate and such sincere act of the State cannot be interfered by the Court.”

                                 Continuing in the same vein, it is then brought out in para 10 that, “Learned Counsels for the respondents submit that the respondents conduct seminars and workshops for the Public Prosecutors with sole object to help them to become competent and achieve higher conviction rate.” Para 11 then states that, “Respondents placed reliance on the case of “Delhi Science Forum Vs Union of India”, [1996 (2) SCC 405] wherein it is held that, “The Courts have their limitation as these issues rest with the policy makers of the nation. No directions can be given or is expected from the Courts while implementing such policies, unless there is a violation of infringement of any of the provisions” and “Tamil Nadu Education Department Vs State of Tamil Nadu”, (1980 Vol 3 SCC 97) wherein it is held that, “What was regarded as administratively impractical might, on later thought and activist reconsideration, turn out to be feasible and fair. The Court cannot strike down a Government Order or a Policy merely because there is a variation or contradiction. Life is sometimes a contradiction and even consistency is not always a virtue. What is important to know whether mala fide vitiates or irrational and extraneous factors foul”.”   

                                    Needless to say, para 12 then states that, “In fact, after going through the affidavit filed by respondent No. 2, it reveals that the respondent No. 2 has not played any role for passing the impugned Government Resolution and it was the policy decision of Government of Maharashtra. Our attention was drawn to the case of “Brij Mohanlal Vs Union of India and others”, [(2012) 6 SCC 502] wherein while considering when the Court should or should not interfere in the policy decision of the State, the following parameters are laid down:

(I)                         If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(II)                     The change in policy must be made fairly and should give the impression that it was done so arbitrarily on any ulterior intention.

(III)                  The policy can be faulted on grounds of mala fides, unreasonableness, arbitration or unfairness, etc.

(IV)                 If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(V)                     It is dehors the provisions of the Act or legislations.

(VI)                 If the delegate has acted beyond its power or delegation.”

                            After perusal of all the facts before it by the respondent, the Bench notes in para 13 that, “No doubt, after going through the data placed on record by the respondents, it is clear that conviction rate in Maharashtra State is dropping down. Now the question arises whether to enhance the conviction rate the Public Prosecutor, who represent the State in the criminal trial, can be compelled to get conviction at least in 25% cases handled by them.”

                           Going forward, it is then pointed out in para 14 that, “In the case of “S.B. Shahane and others Vs State of Maharashtra” (supra), while giving directions to the Government to separate Prosecution Department from Police Department, the Apex Court considered 14th Law Commission Report. The relevant paragraphs of that report are reproduced as under:-

“Para 12 – Police Prosecutors and their functioning –

                 It is obvious that by the very fact of their being members of the Police Force and the nature of the duties they have to discharge in bringing a case in court, it is not possible for them to exhibit that degree of detachment which is necessary in a prosecutor. It is to be remembered that a belief prevails amongst the Police Officers that their promotion in the Department depends upon the number of convictions they are able to obtain as prosecuting officers. Finally, they only control supervision of the work of these prosecuting officers that is exercised by the Department Officials.”

“Para 15. – Suggested remedial measure –

We therefore suggest that as a first step towards improvement, the prosecuting agency should be completely separated from the Police Department. In every district a separate prosecution department may be constituted and placed in charge of an official who may be called a ‘Director of Public Prosecutions’. The entire prosecution machinery in the District should be under his control. In order to ensure that he is not regarded as a part of the Police Department he should be independent official directly responsible to the State Government. The departments of the machinery of the Criminal Justice, namely, the Investigation Department and the prosecuting department should thus be completely separated from each other.”   

                                            It would be of immense significance to note here that para 15 explicitly states that, “After considering the above observations of the Law Commission, the Apex Court found that the Police Prosecutors who were functioning under the administrative and disciplinary control of the superior officers of the police force, were not able to exhibit needed degree of detachment expected of Prosecutors because their promotions to higher post in Department depended on the number of conviction they were able to obtain from the Court in the prosecutions conducted by them. Therefore, it was felt that the Prosecution Department should be beyond the control of police administration.”

                             Moving on, it is then observed in para 16 that, “The Apex Court in the case “State of Bihar Vs Ramnaresh Pandey and another” reported in (AIR 1957 SC 389) observed that the Public Prosecutor is an officer of the Court and he is bound to assist the Court with his fairly considered view and Court is entitled to have the benefit of the fair exercise of his function. Following this view the Division Bench of this Court in the case of “Sushil Chokhani” (supra) also held that the duty of Public Prosecutor is not merely to secure the conviction of and imposition of punishment to the accused. It is his primary duty to place before the Court all the evidence collected by investigating agency whether it be in favour or against accused for consideration thereof by the Court. Utmost fair and impartial attitude is expected in that regard from the Public Prosecutor.”

                                        Having said this, we now need to turn our attention to para 17 which while underscoring the need for Public Prosecutors to perform their duty impartially and drawing red lines for the State observes clearly and convincingly that, “Thus, it is clear that Public Prosecutors being an officer of the Court, is not expected to only grab the conviction, but is expected to act fairly before the Court and his performance should be only in the form of assistance to the Court for arriving at proper conclusion regarding conviction or acquittal of the accused. Considering such impartial duty to be performed by the Public Prosecutor, the State cannot set target before the Public Prosecutors to get conviction at least in 25% criminal cases handled by them. What is expected by the State of Maharashtra from the Public Prosecutor is totally against law as discussed above. In other words, by passing the impugned Government Resolution, the State Government cannot fix bench-mark for the Public Prosecutors to secure at least 25% conviction in the criminal cases handed by them, to get promotion.”

                             While underscoring the critical role played by the Investigating Officer, it is then pointed out in para 18 that, “The conviction or acquittal in criminal trial depends on various factors and mainly on the quality of material collected by the Investigating Officer. If the Investigating Officer has collected good quality of material as evidence against the accused and if he has taken necessary precaution while sealing and forwarding the important Muddemal articles to Chemical Analyst, certainly such case may result into conviction, provided that material witnesses stand constant at the stage of evidence. For conviction, the credit goes to Investigating Officer and witnesses. The conviction in criminal trial is not merely related with performance of the Public Prosecutor but as discussed supra depends upon various factors.”

                                  While punching holes in the impugned Government Resolution mandating 25% conviction in criminal trial, para 19 then goes on to add that, “Therefore, issuance of the impugned Government Resolution mandating achievement of 25% conviction in criminal trial is only as a result of above-said misconception. If any negligence has been committed by the Public Prosecutor while conducting the case, that cannot be ascertained only from conviction or acquittal, but it can be ascertained only on examination of the record of that particular case. Therefore, we hold that the condition of particular conviction rate to be achieved by Public Prosecutors, embodied in the impugned Government Resolution is definitely unreasonable.”

                                 Now coming to the concluding paras 20 to 22. Para 20 minces no words in concluding that, “Thus, the impugned Government Resolution is irrational, unreasonable and against the law of the land. Therefore, in view of the parameters laid down by the Apex Court in the case of Brij Mohan Lal” (supra), this Court can definitely quash the impugned Government Resolution. It follows that this Writ Petition deserves to be allowed.” Para 21 states that, “The Writ Petition is allowed. The impugned Government Resolution dated 12.05.2015 is quashed.” Finally, the judgment is concluded in para 22 by observing that, “Rule is made absolute in the above-said terms. Parties to bear their respective costs.”

                                       In the ultimate analysis, it is an exemplary and elegantly written landmark and laudable judgment which certainly deserves to be applauded! It is worth emulating by all the courts in all parts of India! This will ensure that Public Prosecutors can impartially render their job without getting biased with pre-determined notion to ensure conviction of accused at any cost to fulfil the criteria of ensuring the set 25% conviction rate to be eligible for promotions and other benefits which is downright absurd and can never serve the true purpose of justice in the real sense! No doubt, the Aurangabad Bench of Bombay High Court which has dared to deliver this landmark judgment deserves unqualified appreciation for it! It is the biggest warning to all States that they should desist from setting such ridiculous criteria and those who have already done so must immediately make suitable amendments to comply unconditionally with what the Aurangabad Bench of Bombay High Court has laid down so emphatically in this landmark case!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

It must be observed right at the outset that in a remarkable and landmark judgment delivered on October 31, 2018 in Reena Hazarika v State of Assam in Criminal Appeal No. 1330 of 2018 (arising out of SLP(Crl.) No. 2440 of 2018) authored by Justice Navin Sinha for himself and Justice RF Nariman, the two Judge Bench of Apex Court observed quite clearly and convincingly that a solemn duty is cast on the court in the dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing. It was also held that, “Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem, rather it confers a valuable right upon an accused to establish his innocence”. It also made it explicitly clear that if there has been no consideration at all of the defence taken by the accused under Section 313 of the Code of Criminal Procedure, the conviction can stand vitiated.   

                              In retrospect, it must be pointed out that a woman, who was convicted for the murder of her husband, had approached the Apex Court assailing concurrent verdicts of the trial court and the high court. In her 313 CrPC statement, she had stated that she was falsely implicated by one Manoj. She also said that she suspects some other persons are behind the murder of her husband.

                                   To put things in perspective, it is pointed out in para 2 that, “The appellant is the wife of the deceased convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 1000/- and in default, imprisonment for one month.” It is then pointed in para 3 that, “The deceased resided along with the appellant and his minor daughter CW-1, Miss Puja Hazarika, aged about 9 years, in the tenanted premises belonging to PW-1 Manoj Kumar Deka, PW-2 Dipen Deka and PW-3 Bhrigumoni Deka, who are brothers. The appellant is stated to have assaulted the deceased in the intervening night of 10.05.2013/11.05.2013. PWs. 1, 2 and 3 are stated to have heard noises and on going there, found the deceased with head injury attributed to a fall, but that the deceased was otherwise alright. They were unable to take him to the hospital because of rains and the unavailability of an ambulance. According to the post-mortem report proved by PW-6, Dr. Ritu Raj Chaliha the deceased had the following injuries on his person:-

(i)                         Chop wound of size 11cm x 2cm x muscle deep present on left side of cheek 6 cm medial tragus and 1 cm above angle of mandible.

(ii)                      Chop wound of size 9cm x 2cm x muscle deep present back of occipital region.

(iii)                   Chop wound of size 4cm x 2cm x muscle deep present on left side of forearm.

(iv)                   Laceration of size (5 x 4) cm present over left wrist joint on posterior aspect.

(v)                      Chop wound of size (4 x 1) cm x muscle deep, present over temporal region on right side.

(vi)                   Chop wound of size (6 x 2) cm of muscle deep present over back of scapula.

(vii)                Fracture of temporal bone on both sides.

 All injuries were ante mortem and caused by moderately heavy sharp cutting weapon and homicidal in nature.

                                     Simply put, it is then pointed out in para 4 that, “The Trial Court and the High Court held that the present was a case of circumstantial evidence. The last seen theory establishes the presence of the appellant with the deceased at night. Her unnatural conduct because she was not crying, she was the assailant of the deceased.” It is then rightly elaborated upon in para 5 that, “Mr. Singh, learned counsel for the appellant submitted that the courts below have erred in holding that the links in the chain of circumstances stood established leading to the only inescapable conclusion of the appellant being the assailant and no other hypothesis of innocence being possible. PW-6 has deposed that the injuries were caused by a moderately heavy sharp cutting weapon such as a dao, and that the fracture of the temporal bone may have been caused by a moderate heavy weapon. The recovery from the place of occurrence, as proved by PW-7 S.I. Nilomani Malakar, is of an ordinary knife used for cutting betel nut, one feet long with a bent sharp point. Chop injuries were not possible with the same. The alleged knife was not even shown to PW-6 for eliciting opinion if the injuries could have been caused by the same.”  

                                   Going forward, para 6 then states that, “Miss Diksha Rai, learned counsel for the appellant submitted that the appellant was last seen with the deceased in the room, confirmed by CW-1. The appellant has failed to offer any explanation of the circumstances as to how the death occurred at night. Her unnatural conduct in not even weeping was also noticed by PW-7. The knife used for assault , and blood soaked clothes of the deceased have also been recovered.”

                                Striking a note of caution, it is then observed in para 7 that, “We have considered the respective submissions, the orders of the courts below, as also the evidence available on record. Normally this court under Article 136 of the Constitution, would be reluctant in appeal to interfere with the concurrent findings of two courts by reappreciating the facts and evidence. But in an appropriate case, if this court finds that there has been erroneous consideration and appreciation of facts and evidence, leading to miscarriage of justice, this court is duty bound to ensure that ultimately justice prevails. It is a well established principle of criminal jurisprudence that several accused may go free, but an innocent person should not be punished. In Anant Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460 this court observed as follows:-

“16. Ordinarily, it is not the practice of this Court to re-examine the findings of fact reached by the High Court particularly in a case where there is concurrence of opinion between the two Courts below. But the case against the appellant is entirely based on circumstantial evidence, and there is no direct evidence that he administered a poison, and no poison has, in fact been detected by the doctor, who performed the post-mortem examination, or by the Chemical Analyser. The inference of guilt having been drawn on an examination of a mass of evidence during which subsidiary findings were given by the two Courts below, we have felt it necessary, in view of the extraordinary nature of this case, to satisfy ourselves whether each conclusion on the separate aspects of the case, is supported by evidence and is just and proper. Ordinarily, this Court is not required to enter into an elaborate examination of the evidence, but we have departed from this rule in this particular case, in view of the variety of arguments that were addressed to us and the evidence of conduct which the appellant has sought to explain away on hypotheses suggesting innocence. These arguments, as we have stated in brief, covered both the factual as well as the medical aspects of the case, and have necessitated a close examination of the evidence once again, so that we may be in a position to say what are the facts found, on which our decision is rested”.”  

                                  While reiterating that benefit of doubt must be given to the accused, it is then stated in para 8 that, “The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given.”

                                 Needless to say, para 9 then brings out that, “Before proceeding with the discussion further, we deem it proper to notice that the appellant did not have the benefit of a lawyer of her choice, both before the trial court and the High Court, naturally because of some handicap. She had to be provided legal assistance by the Legal Services Authority. This is not to make any comment or observation on the nature of the defence made available with the appellant but only to notice her handicap in establishing her innocence.”

                                        As it turned out, para 10 then observes that, “Pw-1 deposed that he was told by the deceased at about 11:00 p.m. on 10.05.2013 that he had suffered a head injury because of a fall, and that the witness did not provide any first aid to the deceased though he along with his brother PW-2, did try to call an ambulance at about 12:00 am. Additionally, that he did not see any other injuries on the deceased. On the contrary, CW-1 deposed that PW-1 had applied Dettol to the wounds of the deceased.” What follows next is para 11 which envisages that, “Contrary to the statement of PW-1, his brother, PW-2 deposed that he was woken up at about 2-3 a.m. by the appellant who was crying and told him that her husband had suffered head injury. The deceased is then stated to have himself told the witness that the injury was not serious. The contradiction in the evidence of PW-1 and PW-2 is further compounded by the third brother PW-3, deposing that PW-2 informed him of the injury to the deceased at 12:00 am. All the three witnesses have deposed that the deceased was of heavy built, because of which they were unable to take him to the hospital on the motor-cycle, for the treatment. The post mortem however recites that the deceased was of average built. If the deceased had merely suffered a head injury by fall and was otherwise fit to talk to the witnesses, we see no reason why he could not have been taken to the hospital on a motorcycle. While PW-3 states that the deceased was wearing clothes, the post-mortem report shows that the deceased was brought in an underwear only. The clothes of the deceased were found near the well in a gunny bag. But PW-7 did not consider it necessary to have the blood group examined by the FSL, which in our opinion in the facts of the case is a major lapse.”  

                       While pooh-poohing the serious charges levelled against the appellant, it is then observed in para 12 that, “The post-mortem report makes it evident that the chop wounds could not have been caused by the small knife alleged to have been recovered. Fracture of the temporal bone with the knife was an impossibility. PW-6 in the deposition ruled out that the injury could be caused by a fall. The post mortem did not find any alcohol in the body of the deceased. The witness also opined that injury no. 4 could have been caused while the deceased may have attempted to save himself from assault. The multiple injuries could certainly not have been caused by one person and tells an entirely different story by itself that the assailants may have been more than one. The chop injuries were possible by a modertae and heavy weapon like a dao. In our opinion also, if the deceased was of average built, it is difficult to accept, according to normal prudence and human behaviour and capacity, that the appellant being a woman, could have made such severe and repeated assault on the deceased, who was her husband, with a small knife, without any resistance and suffered no injury herself.”

                                     Punching further into the holes of the prosecution version, it is then observed in para 13 that, “PW-7 claimed to have found a knife with the smell of Dettol. Even if the knife had been wiped to erase traces of blood the wooden handle could have revealed much if it had been sent to the FSL. The witness again offers no explanation why he did not do so. No bottle of Dettol has been recovered. There is absolutely no evidence that the deceased would often assault the appellant and the minor child in a drunken condition. The fact that PW-7 did not notice tears in the eyes of the appellant, deemed an unnatural conduct by the courts below, cannot be sufficient to draw an adverse inference of guilt against the appellant. The appellant being in a helpless situation may have been stunned into a shock of disbelief by the death of her husband. It is not uncommon human behaviour that on the death of a near relative, or upon witnessing a murderous assault, a person goes into complete silence and stupor showing no reaction or sensibility. We also find it difficult to believe and rely upon the evidence of CW-1 primarily because of her minority. If the deceased had been assaulted by the appellant in the room at night, it would certainly have led to noise and shouts and the witness could not have possibly slept throughout without waking up.”

                                    It also cannot be lost on us that the very basis of the prosecution case against the appellant stands eroded when we go through para 14. It is pointed out in para 14 that, “PW-1 deposed that he informed the police the next morning at about 8:00 a.m. But PW-7 has deposed that information was given to the police station by PW-1 at about 12:00 p.m. on 11.05.2013 and the General Diary entry no. 452 made in the police station at 12.20 p.m., and the F.I.R. registered at 7:45 p.m. These are suspicious circumstances which leaves enough time for planning after thinking for the manner in which allegations were to be made for deflecting that the occurrence took place in a manner other than what may have happened actually.”

                         To be sure, it is then brought out in para 15 that, “In the background of the aforesaid discussion regarding the nature of evidence and the manner of its appreciation, we deem it proper to set out the English translation in the paper book of defence taken by the appellant under Section 313 Cr.P.C. as follows:-

“Ans: On the date of occurrence at about 8-8:30 while I have returend from my work at Satgaon, I saw that my husband was lying in the room with bleeding injury. On my cry, Manoj Deka and his brothers come there with drink in the hand of one brother. Thereafter I saw Manoj Deka was putting Dettol on the wound of my husband. I also rang to 108 ambulance. When, I wanted to call police Manoj Deka, snatched the phone from me. On my crying neighbouring peoples arrived there. I tred to take my husband to medical but due to non co-operation by Manoj Deka and others, I failed to take him to Medical. On that night at about 9.30 my husband expired and Manoj Deka and other neighbours were sitting. Subsequently, Manoj Deka has falsely implicated me. I have the suspicion that my husband was physically assaulted earlier at some place by Mintu Nath, Dipak Das and Jeetu Deka while taking liquor and brought my husband on injured condition and laid in the room. I also saw the lock of my room in broken condition, when I arrived here. I have not killed my husband. I am innocent.”

In this same para, it is then pointed out that, “PW-2 has acknowledged in his evidence that he would have drinks with the deceased. According to the post-mortem report, the stomach of the deceased was found empty, suggesting that the assault had taken place earlier in the evening contrary to the evidence of PWs. 1, 2 and 3 suggesting the assault in the late hours of the night by which time the deceased would undoubtedly have had his dinner.”

                      While underscoring the rights conferred by Section 313 of the Cr.P.C on the accused, para 16 then points out that, “Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word ‘may’ cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valubale right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby.Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.”  

                        It is then lamented in para 17 that, “Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr. P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh vs State of Madhya Bharat AIR 1953 SC 468. A similar view is expressed in M. Abbas vs. State of Kerala, (2001) 10 SCC 103 as follows:-

“10….On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible. Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities….”

                           While allowing the appeal in para 19, it is then finally and perhaps most importantly held in para 18 that, “The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was the assailant of the deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case.” Rightly said!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.  

To begin with, it has to be appreciated and applauded in the right earnest that in a latest landmark judgment in W.P.(C) No. 35073 of 2014 delivered recently on August 8, the High Court of Kerala has in a historic move directed the Indian Railways to treat identity cards issued to lawyers by respective Bar Councils as a valid identity proof to undertake a train journey/travel. The court also asked the authorities concerned in the railways to issue appropriate orders notifying the above as expeditiously as possible. The railways have done accordingly by issuing a Circular and from now onwards the Bar Council ID Card is valid proof of identity for train journey as railways issues circular following landmark Kerala High Court judgment.

                                        To be sure, the Circular issued by Joint Director Passenger Marketing of Railway Board following the judgment states that, “In pursuance of the judgment of the High Court of Kerala in W.P. (C) No. 35703 of 2014 the matter has been examined and it has been decided that photo identity cards with serial number issued to Advocates by Bar Councils of India may also be accepted as proof of identity of passengers for undertaking journey by train”. The Circular instructs Principal Chief Commercial Managers of all Zonal Railways to issue necessary instructions to all concerned to avoid inconvenience to passengers. It also directs the Zonal Managers to give wide publicity through all possible means to the revised instructions for the information of general public.

                                     Be it noted, this landmark and laudable judgment by Kerala High Court begins by pointing out that, “The petitioner, who is stated to be a practising Advocate on the Rolls of the Bar Council of Kerala, remonstratively accuses the Indian Railways of acting unfairly and discriminatorily in refusing to recognize and accept the photo identity cards issued by the Bar Council of Kerala as also that of the other States, as a valid proof of identity to undertake journey on trains in reserved seats.”

                     On the face of it, para 3 states explicitly that, “The singular grievance impelled by the petitioner in this writ petition is that even though several types and categories of identity cards are accepted by the Indian Railways, the photo identity cards issued by the various Bar Councils in India are expressly excluded. This, the petitioner predicates, is unfair and arbitrary, particularly because the said identity cards are issued by the various Bar Councils acting under the provisions of the Advocates Act, 1961.” Absolutely right! Who can deny or dispute it?

                                 To put things in perspective, on August 8, the Kerala High Court through a landmark judgment of Justice Devan Ramachandran directed the Railways to accept ID cards issued by Bar Councils as valid proof as they are statutory bodies under the Advocates Act. The order was made in this case where the request to consider the lawyer identity cards were rejected by the Indian Railways stating that Bar Councils were not government bodies, and further they are available at different levels in the country (district, state, national) and hence in the absence of any uniformity in the cards issued by such bodies, the same ought not to be considered as valid and acceptable.

                                      Needless to say, para 10 points out that, “After Sri. C.S. Dias and Sri. Manayani made their submissions as above, I elicited the specific views of the Kerala Bar Council through their Senior Counsel Sri. Gracious Kuriakose and the learned senior counsel informs me that it is the unequivocal and firm stand of the Bar Council of Kerala that the identity cards issued by them be accepted by all Authorities, including the Indian Railways and that they are always willing to offer verification of such cards as and when it is so required by any Authority, including the Railways.”

                                     As it turned out, while disapproving the stand of Railways, Justice Devan Ramachandran then held in para 11 that, “ Once I hear the submissions of Sri. Gracious Kuriakose, the learned senior counsel as afore, it becomes ineluctable that there cannot be any further cause or concern for the Indian Railways, in accepting the photo identity cards issued by the various Bar Councils, since the respective Councils are obligated to verify and affirm the authenticity of a card issued by them, in case its genuineness is suspected for any reason by the competent Authorities of the Indian Railways. This is more so because they are statutory bodies, operating under the ambit of the Advocates Act, thus enjoining them to ensure the validity and rectitude of the cards and documents issued by them, if it is so required by any Authority, in terms of law.” It was also held that the notion of different level of Bar Councils was incorrect, there being only one respective Bar Council for a state and a Bar Council of India at the national level. The Court therefore asked the authority concerned in the railways to issue appropriate orders notifying the above as expeditiously as possible.

                                           It cannot be lost on us that para 12 then stipulates that, “In the above perspective and being guided by the specific averments in para 7 of the counter affidavit filed on behalf of the Indian Railways, wherein they say that they will accept the identity card issued by the various Bar Councils if they undertake to verify its genuineness in case suspicions are raised on the authenticity of the cards, I order this writ petition and direct the competent Authority of the Indian Railways to issue appropriate proceedings/orders notifying the acceptance of the identity cards issued to Advocates by the Kerala Bar Council and all other Bar Councils in India as valid proof of identity for train journey/travel.”

                                     Finally and most importantly, para 13 then enunciates that, “This exercise shall be completed by the competent amongst the respondents 1, 5 and 6 as expeditiously as is possible, but not later than 2 months from the date of receipt of a copy of this judgment and the consequential orders shall be notified and published as per application procedure. This writ petition is thus ordered.”

                                All said and done, it is most heartening and refreshing to see that this landmark and laudable judgment delivered by the Kerala High Court through Justice Devan Ramachandran directing the Indian Railways to treat identity cards issued to lawyers by respective Bar Councils as a valid identity proof to undertake a train travel has now finally been implemented by the Railways by issuing the requisite Circular in this regard! This should have been there right from the start but better to be late than never! No doubt, full credit and full marks for this certainly goes to the Kerala High Court which has conveyed a loud and clear message to one and all that just like other identity cards, the identity cards issued to lawyers are also reliable identity proof and can be relied upon at any given point of time!    

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.