No Big Discounts This Festive Season

Over the past few months from the period of lockdown not a single mall,retail shops were open.Due to which there was no demand and supply of any particular goods.As in the phased manner the malls and retail shop owner were given permission to get back on to their work.But the trend of buying has already come down of the people due to the financial crisis that they have faced.Many have lost jobs or many were sent on unpaid leaves for time being.

In the upcoming festive season that has started from Raksha Bandhan it has been noted that the season end sale was not there as it used to be previously.Malls have just started their operation and many have not given discounts to the customers and even many online selling sites have not put up their discount hoardings.The reason behind not putting discounts for malls and retail outlets is the fear of Covid-19.This is all applied in the case of apparels and electronic items offline.

The company heads are saying that these trend will definitely be followed as the festive season continues.Less discounts are given because either they have limited stock mostly what remained unsold before the lockdown.If we talk about particular categories like television,discounts that have been given are lowest in 5 years.This is due to shortage of production and supplies.Many retailers are witnessing around 30 to 50% of their average pre-pandemic sales,it has been noted that people are buying only particular thing what is needed.

If we talk about Flipkart and Amazon they did not replied to the comments which were seeking discounts.They said that discounts have already came down.The period from Onam to Diwali account more than 40 to 50% of the electronic sale for most of the companies.It is being noted that demand could exceed supply in the coming months.So this festive season and specially on Diwali we will not be able to see the tagline of “Diwali Khushiyonwali”.Lets hope for the best this festive season.

Women Empowerment: Wind Of Change.

Women empowerment implies the ability in women to take descision with regard to their life and work and giving equal rights to them in all spheres like personal, social, economical, political, legal and so on. Women empowerment has become the buzzword today with women working alongside men in all spheres. They profess an independent outlook, I whether they are living inside their home or working outside. They are increasingly gaining control over their lives and taking their own decisions with regard to their education, career, profession and lifestyle.

With steady increase in the number of working women, they have gained financial independence, which has given them confidence to lead their own lives and build their own identity. They are successfully taking up diverse profession to prove that they are second to none in any respect. But while doing so, women also take care to strike a balance between their commitment to their home and family. They are playing multiple roles of a mother, daughter, sister, wife and working professional with remarkable harmony and ease.

While it is true that women, by and large, do not fave discrimination in society today, unfortunately, many of them face exploitation and harassment which can be of diverse types: emotional, physical, mental, and sexual. They are often subject to rape, abuse and other forms of physical and intellectual violence.

The successive government have implementated various constitutional and legal rights to help women lead purposeful and meaningful lives. There is an increasing awareness about women’s rights which is evident know the emergence of several NGOs and self -help groups. At the individual level too, women are now breaking the shackles if suppression and making their voices hard for their rights.

The parliament of India too has passed various legislations to save momen from various forms of injustice and discrimination. Following are some of these laws to empower women: Equal Remuneration Act – 1976, Dowry prohibition Act-1961, Medical Termination of Pregnancy Act-1971, Maternity Benefit Act-1961, Commission of Sati (prevention) Act -1987, Prohibition Of Child Marriage Act-2006.

More recently in the wake of Nirbhaya case involving the rape and brutal murder of para medical student in Delhi, the Government passed the the Juvenile Justice (Care and protection of Children)Bill,2015. This act makes a significant departure from the earlier Juvenile Justice (Care and Protection of Children) Act, 2000, as the Juvenile age inviting punishment for offense now stands reduced from 18 to 16 years.

If we want to bring about women empowerment in the true sense, there is crying need for the elimination of the male superiority and patriarchal mindset. Also, women need to be given equal opportunities for education and employment without any sense of discrimination. Unless there is attitudinal change in arming them with legal and constitutional rights will be simply inadequate.

Registry Is Part And Parcel of The System: SC

In a fresh, welcome and interesting development, the Supreme Court has just recently on July 6, 2020 in a latest, landmark and extremely laudable judgment titled Reepak Kansal vs. Secretary-General, Supreme Court Of India & Ors. in Writ Petition (Civil) No. 541 of 2020 has taken a stern view of the increasing tendency to blame the Registry for listing some cases more swiftly as compared to others. Justice Arun Mishra who authored this notable judgment for himself and Justice S Abdul Nazeer observed that the Registry which is part and parcel of the judicial system, is blamed unnecessarily for no good reasons. Very rightly so!

                                    To start with, the ball is set rolling in para 1 of this noteworthy judgment wherein it is observed that, “The petitioner, who is an Advocate practicing in this Court, has filed the writ petition under Article 32 of the Constitution of India against various officers of the Registry of this Court and the Union of India. Prayer has been made to issue an appropriate Writ, Order or Direction in the nature of Mandamus directing the respondents not to give preference to the cases filed by influential lawyers/petitioners, law firms, etc. Prayer has been made to direct the respondents to give equal treatment to the cases filed by ordinary lawyers/petitioners and not to point out unnecessary defects, refund the excess court fee and other charges, and not to tag the cases without order or direction of the Court with other cases. A prayer has also been made to direct the Secretary General of this Court to take action against the erring officers for their involvement in the listing, clearing and bench hunting.”

                                      While mentioning the chief grouse of the petitioner, the Bench notes in para 2 that, “It is averred in the petition that equal treatment has not been given to the ordinary lawyers/litigants. They favour some law firms or Advocates for reasons best known to them.”

                                 While mentioning of the first instance, it is then unfolded in para 3 that, “The petitioner’s first instance is that a Writ Petition (Civil) D. No. 10951 of 2020 was filed by him on 16.4.2020. The Registry pointed out three defects, i.e. (1) Court Fee of Rs 530 was not paid, (2) Documents to be placed as per index, and (3) Details given in index were incomplete and annexures were not filed, matter to be rechecked. The petitioner had clarified vide email dated 18.4.2020 that he had paid the court fee of Rs. 730/- and there was no annexure with the petition. However, the petitioner was forced to pay more court fees to get the matter listed. Despite the letter of urgency, the Registry failed to register and list the writ petition. The petitioner requested the Secretary, Supreme Court Bar Association, about not listing the writ petition. On 27.4.2020, the writ petition was listed before the Court.”

                                         While mentioning of the second instance, it is then narrated in para 4 that, “The second instance given by the petitioner is that a Writ Petition (Civil) D. No. 11236 of 2020 was filed on 12.5.2020, which has not been listed by the Registry till today. He was informed that there were no defects in the writ petition, but a copy of the writ petition was missing. After that, no update was given by the Registry.”

                                                 Now coming to the third instance, it is then mentioned in para 5 that, “The third instance given is about Writ Petition (Civil) No. 522 of 2020 (Diary No. 522 of 2020) filed by the petitioner on 20.05.2020. The Dealing Assistant pointed out defects on 26.5.2020. The defects were pointed out by the Dealing Assistant after six days of filing, though the application for urgency was filed in the petition. The following note was made by the Registry:

            “MATTER NEEDS TO BE RECHECK AS WHOLE INDEX IS BLANK, PETITION, AFFIDAVIT, VAKALATNAMA, MEMO OF APPEARANCE AND APPLICATION ALL ARE UNSIGNED AND DEFICIT COURT FEE ETC.”

       The petitioner clarified that the signed documents were already uploaded. The matter was urgent, and he had uploaded them again along with signed documents on 26.5.2020. Again the defects were pointed out on 29.5.2020 by the Dealing Assistant to the following effect:

             “APPLICATION IS NOT PROPER AS HEADING NOT TALLY WITH INDEX AND BE SPECIFIC ABOUT THE SUBJECT AND PRAYER OF APPLICATION.”

       The petitioner cured the defects on 29.5.2020. After that, the Dealing Assistant did not recheck the matter. On 2.6.2020, the petitioner made a call and requested the Branch Officer concerned to direct the Dealing Assistant to recheck the matter. On 2.6.2020, the matter was rechecked and numbered as Diary No. 11552 of 2020. The case was verified on 6.6.2020 and listed for 6.7.2020 (computer-generated) which would make the case infructuous. The application for urgency was not considered. The petitioner was informed that the case was likely to be listed on 6.7.2020. He sent an email about the urgency. The Registry was not willing to list the Diary No. 11552 of 2020 despite the application for urgency. Hence, the writ petition has been filed.”

                                      Truth be told, para 6 then states that, “It is averred that on 23.4.2020, W.P. Diary No. 11006 of 2020 titled as Arnab Ranjan Goswami v. UOI was filed at 8.07 p.m. without annexure. The Registry had chosen not to point out any defects, and a special supplementary list was uploaded on the same day. The category was not specified in the notification to be heard during a nationwide lockdown. No procedure was followed by the Registry for urgent hearing during the lockdown. The petitioner made a complaint to Secretary-General against illegal activities of the Registry but the same is without response.”

                                            To put things in perspective, it is then illustrated in para 9 stating that, “Although defects were noted, Writ Petition (C) Diary No. 10951 of 2020 was listed, heard and finally decided on 27.4.2020. It was filed on 17.4.2020. 18th and 19th April 2020 were the holidays. There were only five working days, and during the nationwide lockdown, the court functioning was minimal. The case was mentioned in the cause list on 26.4.2020 to be listed on 27.4.2020. Thus, it could not be said that there was delay much less inordinate one by the officials of the Registry in listing the matter mentioned above.”      

                                        While continuing in the same vein, it is then revealed in para 10 that, “Concerning the second instance, i.e., Diary No. 11236 of 2020, which was filed by petitioner on 9.5.2020, the Registry has noted several defects on 14.5.2020. The petitioner is still lying with defects.”

                                      Not stopping here, it is then further revealed in para 11 that, “Concerning the third instance i.e., Writ Petition No. 522 of 2020 (D. No. 11552 of 2020), the same was filed on 20.5.2020. Again, a defective petition and defects were pointed out by the Registry on 26.5.2020 that the whole index was blank. Petition, Affidavit, Vakalatnama, Memo of Appearance, and Application were all unsigned with a deficit court fee, etc. The petitioner removed the defects. However, other defects were caused, such as the application filed was not proper as heading did not tally with the index, and specific subjects and prayers were not mentioned. The defects were re-cured, and the petition was re-filed on 3.6.2020. The matter was processed and listed on 9.6.2020 and was heard and dismissed on 12.6.2020 as other matters on the similar issues were pending as such the matter was not considered to be necessary. The petitioner has not disclosed about listing of the case for 12.6.2020, and its decision and averred that the computer-generated date was 6.7.2020. The Registry did not follow the computer-generated date, and the case was listed for 12.6.2020 on which it was dismissed. The petitioner himself was responsible for 12-13 days of delay in removing the defects.”

                                      While dwelling on the out of turn hearing given to eminent journalist Arnab Goswami, it is then pointed out in para 12 that, “As to case of Arnab Goswami, it was listed urgently in view of order of competent authority. It pertained to liberty and freedom of media.”

                                        Of course, it is then also very rightly pointed out in para 13 that, “In the aforesaid circumstances, considering the ongoing pandemic caused by COVID-19, the Registry of this Court is working with less strength, and because of the facts described above and circumstances, we find that there was no justification for the petitioner to allege discrimination vis-à-vis to him and to favour any particular individual. The defects were there in all the three cases filed by the petitioner.”

                                        Furthermore, it is then envisaged in para 14 that, “The petitioner has filed this writ application in a hurry. When it was listed, he circulated a letter to the effect that, as per procedure, he expected that he would be called for interaction by Registrar of this Court to find out his fitness whether he could argue a case in person. The petitioner ought to know that he is an Advocate of this Court and argues the matter in this Court. As such, it was not necessary to summon him for adjudging his capability as to whether he could argue the case. Be that as it may circulating such a letter was not appropriate at his stance and why he doubted his ability to argue. There was no justification to entertain this kind of apprehension in mind. He ought to have been careful in circulating such a letter seeking a wholly unjustified adjournment.”

                                          As if this was not enough, it is then further stated in para 15 that, “In the letter circulated by him, it was further stated that he wanted to collect the evidence and to file it, and for that purpose, he prayed for six weeks time. The conduct indicates that the petitioner was careless and not serious while he made the allegations. He filed writ application without due inquiries, and without collecting the requisite material. Such conduct was least expected of an officer of this Court. Petitioner ought to have been careful before cast of unnecessary aspersions on the Registry and staff of this Court.”

                                     Making matters worse, it is then also brought out in para 16 that, “The petition as filed could not be said to be maintainable. The petitioner has impleaded the Secretary General, various Registrars, and officers of the Registry, SCBA, and Union of India in his writ application. In contrast, Writ is filed against this Court itself. He ought to have impleaded the Supreme Court of India in the Writ Application through Secretary General. The omission indicates careless conduct on the part of the petitioner. The petition was filed in undue haste.”

                                            More significantly, it is then underscored in para 17 that, “We take judicial notice of the fact that a large number of petitions are filed which are defective; still, the insistence is made to list them and mention is made that they should be listed urgently. It happens in a large number of matters, and unnecessary pressure is put upon the Assistants dealing with the cases. We find due to mistakes/carelessness when petitions with defects are filed, it should not be expected that they should be listed instantly. To err is human and there can be an error on the part of the Dealing Assistants also. This is too much to expect perfection from them, particularly when they are working to their maximum capacity even during the pandemic. The cases are being listed. It could not be said that there was an inordinate delay in listing the matters in view of the defects. The Court functioned during the lockdown, the cases were scanned and listed by the Registry. The staff of this Court is working despite danger to their life and safety caused due to pandemic, and several of the Dealing Staff, as well as Officers, have suffered due to Covid-19. During such a hard time, it was not expected of the petitioner who is an officer of this Court to file such a petition to demoralize the Registry of this Court instead of recognizing the task undertaken by them even during pandemic and lockdown period.”   

                                             Let us discuss now in brief the salient points of para 18 wherein the Bench holds that, “We see, in general, it has become a widespread practice to blame the Registry for no good reasons. To err is human, as many petitions are field with defects, and defects are not cured for years together. A large number of such cases were listed in the recent past before the Court for removal of defects which were pending for years. In such situation, when the pandemic is going on, baseless and reckless allegations are made against the Registry of this Court, which is part and parcel of the judicial system. We take judicial notice of the fact that such evil is also spreading in the various High Courts, and Registry is blamed unnecessarily for no good reasons. It is to be remembered by worthy lawyers that they are the part of the judicial system; they are officers of the Court and are a class apart in the society.” Some relevant case laws discussed in detail in this para about the expectations from lawyers include R. Muthukrishnan v. The Registrar General of the High Court of Judicature at Madras, Writ Petition (C) No. 612 of 2016 and Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC 156.

                                           Most significantly, the Bench then minces no words in para 20 to hold that, “We expect members of the noble fraternity to respect themselves first. They are an intellectual class of the society. What may be proper for others may still be improper for them, the expectations from them is to be exemplary to the entire society, then only the dignity of noble profession and judicial system can be protected. The Registry is nothing but an arm of this Court and an extension of its dignity. Bar is equally respected and responsible part of the integral system. Registry is part and parcel of the system, and the system has to work in tandem and mutual reverence. We also expect from the Registry to work efficiently and effectively. At the same time, it is expected of the lawyers also to remove the defects effectively and not to unnecessarily cast aspersions on the system.”

                                 Be it noted, it is then held in para 21 that, “Thus, we find no ground to entertain the petition. We expect the petitioner to be more careful and live up to the dignity of the profession which it enjoys.”

                                             Finally, it is then held in para 22 that, “We dismiss the petition and impose cost of Rs. 100/- (Rupees One Hundred only) on the petitioner as a token to remind his responsibility towards noble profession and that he ought not to have preferred such a petition.”

                                         In essence, the long and short of this extremely laudable judgment is that lawyers must appreciate and admit that registry is part and parcel of the system and just like Bar is an arm of the Court. Lawyers must refrain from casting aspersions on Registry at the drop of a hat. For the system to operate smoothly, it is imperative that the Bar and the Registry work in tandem and mutual reverence as very rightly pointed out in para 20 that was discussed earlier! 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

Is Judiciary Not Capable Of Punishing Criminals?

No matter how hard we all who are in the legal profession may try to deny but it is an unpalatable fact that the image of judiciary has taken a severe beating in the eyes of the people in last few decades as the criminals mostly escape either totally unscathed or face very lenient punishment which is just not done. Very rarely do we see them getting the strict punishment which they deserve also! It is high time and judiciary must now come out of its comfort zone and take strong steps to salvage its sagging reputation in the eyes of the people! Laws must be amended now to favour the victim and not the criminal as we see most unfortunately right now much to our chagrin!  

                                               If judiciary had ensured that Vikas Dubey was sentenced promptly to even 14 years in jail without any relief, he probably would not have been able to spread his criminal roots so deep in the society that permeated not just politicians but even the police! Why are murderers accused allowed to come out so easily on bail? Why are history sheeters allowed to not just come out on bail but also contest elections?

                                        Why judiciary allows even dacoits and hard core criminals to contest elections and become MPs and MLAs? Why when for getting even a small job, one has to get police verification done and even a single false case disqualifies one to get the small job but for politicians who rule this country is it that even after facing 1000 criminal cases still they are not rendered ineligible? Why are they allowed to contest even from jails? It is here that judiciary has most miserably failed as it has done nothing to contain it due to which the percentage of politicians with criminal antecedents are increasing very rapidly with every passing election!

                                             Why those who commit brutal crimes are allowed to get away by following the “rarest of rare case” doctrine propounded in Bachan Singh’s case by Supreme Court in 1980 which ensures that rarely ever is a hardened criminal ever hanged? Why it takes several decades before the case is finally decided? Why even after Supreme Court sentences a criminal is he allowed to fritter away time by first filing mercy petition, then filing review petition and then filing curative petition and worst of all no time limit is fixed for deciding mercy petition, review petition and curative petition?

                                       Why there is no mandatory death penalty for gang rape and rape cum murder? Why are “discretion bombs” in form of “may” not defused in rape laws so that criminals don’t gain from it? Why judiciary has ensured that just a few rapists-cum-murderers are hanged in last many decades which has only served to further encourage criminals?

                                            Why are witnesses not accorded full protection and why is it not ensured that they are saved from being killed? Why a witness has to depend on himself to ensure his/her protection and reach court safely at his/her own risk in most of the cases due to which many times they are either badly wounded or are even killed? Why are witness protection schemes not fully implemented in all the States and why judiciary does not take any action to ensure that the same is done urgently?  

                                                Why judiciary has miserably failed to ensure that its own landmark recommendations on police reforms as outlined in Prakash Singh case in 2006 have not been implemented even after 14 years in 2020? Why in cases of custodial torture, judiciary does not ensure that those who are guilty of torturing and killing innocent persons are not just sent behind bars but also are sent to the gallows? Why judiciary does not realize that lenient approach to custodial torture only results in police getting emboldened to indulge in more such tortures and many times we see that innocent persons face the most worst brunt?

                                       Why has judiciary not ensured that for cases of corruption involving crores of rupees there is mandatory death penalty? Why instead do we see many times that those involved in corrupt cases are allowed to easily secure bail? Why judiciary has failed to act tough against corrupt people in last so many decades after independence?

                                    Why is it that when a truly dedicated and determined Chief Minister like Yogi Adityanath of UP known all over for his impeccable conduct and firm determination to weed out criminals from each and every hook and corner of the state and decides to “name and shame criminals” who indulge in destroying public and private property, burning buses, vehicles etc do we see that judiciary steps in and speaks vociferously for protecting the “right to privacy’ of criminals just like Allahabad High Court did? Why is it that protesters were allowed by judiciary to block national highway at Shaheen Bagh for more than 100 days and none other than the Supreme Court appointed a high powered Committee  comprising of senior lawyers like Sanjay Hegde which only further emboldens others to similarly indulge in such anti-national acts? Why protesters are allowed to block rail tracks etc as we saw earlier during the Gurjar reservation stir and why judiciary is not prepared to do anything to stop it forthwith?

                                               Why judiciary feels that there is nothing wrong in hanging just one poor Dhananjoy Chatterjee who was the son of a priest and that too on just circumstantial evidence alone in decades and not allowing the son of a former top IPS cop to be hanged even though there was direct evidence and the murder was committed most ruthlessly as we saw in Priyadarshini Mattoo murder case and the accused who was a senior in a Law College is set free after about just 14 years or so in prison? Why judiciary holds its hand very tight to ensure that many rapists cum murderers are able to easily escape death penalty even after committing the most ghastly and most dastardly crime? Why judiciary never does any serious introspection on this that by not hanging rich and powerful rapists cum murderers, they only serve to send a loud and clear message that the rich and powerful can get away by doing anything in their life?    

                                            Why judiciary ensures that those who commit most heinous offences like rape, murder etc are given bail after some time like few months or an year at the most? Why judiciary never cares to see that those very offender who comes out on bail once again resorts to crime and destroy the life of yet another person most easily? Why judiciary allows criminals to contest from jails and get bail very easily even after committing most horrifying crime just by paying money for surety etc which the rich and the powerful don’t find any difficulty in doing so?  

                                                Why judiciary ensures that criminals gain most in hugely populated state like UP which has maximum pending cases all over India by having just one high court bench and that too just about 200 km away from Allahabad high court at Lucknow since 1948 and no bench in remote areas like West UP where more than 9 crore people live and litigants have to travel more than 700 km on an average to travel all the way to Allahabad to get justice due to which victims suffer the most? Why judiciary ensures that peaceful states like Maharashtra which tops in justice index list has 4 high court benches and UP which is in the bottom among all big states has just one? Why judiciary ensures that Centre led by the then Congress government partially implements the landmark recommendations to create more high court benches at Maharashtra in Aurangabad, at Jalpaiguri in West Bengal and Madurai in Tamil Nadu but not a single for UP for which it had recommended 3 high court benches at Agra, Dehradun and Nainital? Why judiciary behaves like a helpless spectator knowing fully well that many former UP CM have supported the demand for more benches in UP and Yogi Adityanath had demanded for Gorakhpur in 1999 while in his capacity as an MP from there?

                                                   Why judiciary knowing fully well that West UP accounts for more than 57% of the total criminal pending cases in UP as was acknowledged even by Justice Jaswant Singh Commission in his report has never ensured that a high court bench is created here? Why can’t judiciary take the lead in this direction instead of passing the buck always on Centre? Why for just 6 crore people of Karnataka there is a high court and 3 benches but for more than 9 crore people of West UP there is not even a bench?

                                     Why UP which has more than 23 crore population has just one high court bench due to which cases are not being decided in time and it is criminals who are having a gala time and still judiciary decides to play safe even though it acknowledges that West UP deserves a high court bench? Why judiciary fails to appreciate that the more than 9 crore people of West UP especially the litigants have to suffer immeasurably due to no bench being created here? Why can’t UP have more high court benches?

                                     Why can’t judiciary ensure that those who are arrested for heinous offences are not able to come out on bail after just few months? Why can’t judiciary be more proactive to ensure just like UP CM Yogi Adityanath to ensure that no one is allowed to block roads, rail tracks under any circumstances? Why instead should judiciary question UP CM instead who has always lead from the front in taking on criminals which only encourages anti-social elements and lumpen elements to take law for granted and indulge in destruction of public and private property, blocking of road, rail etc?

                                  Can our nation afford it? Can our nation afford more Shaheen Bagh? Let me reiterate: Judiciary must now come out of its comfort zone and do some honest introspection on this!

                                       Needless to say, Supreme Court certainly has heavily blundered on Shaheen Bagh by not ordering the prompt removal of protesters from highway and instead forming Committee to talk with them who broke law and caused maximum inconvenience to commuters! Judiciary is certainly capable of punishing criminals only if it stops kowtowing before them on one pretext or the other! Criminal cases should not linger for several decades as we see most unfortunately for which it is judiciary which has to act decisively now!

                                          No doubt, bail should not be given ever for heinous offences like rape, murder etc! Only then can criminals be checked most effectively! Clearly, the ball lies now in the court of the judiciary!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Manu Sharma Finally Prematurely Released From Tihar Jail

We finally see that Manu Sharma aged 43 years who was serving life sentence for the sensational murder of model Jessica Lal in a city restaurant in 1999 is now out of jail after the Lieutenant Governor approved his premature release as well as 18 other convicts. Following the May 28 order of the Delhi government in the name of L-G Anil Baijal, Director General (Prisons) Sandeep Goel said Manu Sharma was released on June 1 after completing all formalities pertaining to prisoners permanently released from the jail. Manu Sharma also known as Siddhartha Vashishtha was numbered 18 on the list.

                                           To be sure, the order of Manu Sharma release said that, “In exercise of the power conferred by Section 432 of the Code of Criminal Procedure..the Lt Governor of the National Capital Territory of Delhi is pleased to remit the un-expired portion of the sentence of the following 19..life convicts on the recommendations of the Sentence Review Board in its meeting held on May 11, 2020.” The Sentence Review Board (SRB) in its meeting held on May 11, had recommended the release of Sharma and 18 others. Sandeep Goel who is DG (Prisons) said that, “Sharma walked out of jail on Monday. He spent 17 years behind bars. His actual period with remission is 23 years and four months.”

                                     It would be vital to mention here that Manu Sharma who is son of former Union Minister Vinod Sharma was sentenced to life imprisonment by the Delhi High Court in December 2006 for shooting and killing model Jessica Lal after she refused to serve him liquor at the Tamarind Court restaurant owned by socialite Bina Ramani which was an unlicensed bar at Qutub Colonade in South Delhi’s Mehrauli area on the night of April 30, 1999 at a private party. The trial court had initially acquitted him but the Delhi High Court which undertook the case amid nationwide outrage and protests, reversed the trial court decision and sentenced him to a life term. The Supreme Court also in 2010 upheld the life sentence.

                                                It cannot be denied that the women rights activists have called ‘unfortunate’ the decision to prematurely release Manu Sharma saying that it sets a wrong precedent. But it also cannot be overlooked that in 2018, Jessica Lal’s sister Sabrina Lal had written to Tihar jail authorities saying that she has no objections to Sharma’s release. Sabrina Lal also said that, “The past is behind me. Our fight was always for justice. I just hope that he is a reformed man and learned his lesson.” This certainly played a key role in ensuring his release.

                                                   It also cannot be denied that Sunil Gupta who was the prison’s legal officer for 35 years and who knew Sharma inside prison said that, “He helped the jail factory in branding its products and made it famous. It was his idea to open outlets or sell the products on the web. His non-profit also focused on prisoners’ children. Had Sharma not been a “high-profile prisoner he may have been released just after completing 14 years in prison. Also, one must remember that a prison is a reformation centre. It is not a place to lock anyone forever.”      

                                     It must also be pointed out here that Manu Sharma’s lawyer – Amit Sahni said that his client was already out on emergency parole since the first week of April, as part of measures to decongest jails amid the pandemic. He further said that the L-G had accepted the SRB’s recommendations as per which Manu Sharma is entitled for permanent release from jail. Sharma has undergone imprisonment of 16 years, 11 months and 24 days in actual and 23 years, 4 months and 22 days with remission. He had also availed parole 12 times and furlough 24 times.   

                                      It must also be disclosed here that Manu Sharma’s case had come up for review multiple times since 2017, only to be rejected. The Sentence Review Board (SRB)  is chaired by the Delhi Home Minister. Director General (Prisons), Principal Secretary (Home), Principal Secretary (Law), Joint Commissioner of Police (Crime), the government’s chief probation officer and a district judge are also part of the Committee. This time too the plea of Manu Sharma was decided solely on merit. His good conduct in jail also played a big role in securing his early release.

                                                  As per sources, the Board also took into consideration the Delhi Police’s response which has not opposed the premature release of the convict in the meeting. The chief probation officer, social welfare department also recommended the same. All this led to his early release.

                                            It would be instructive to note that an application for remission is considered only when a life term convict has spent 14 years in jail. The Board takes into account several factors such as conduct of the prisoner in jail, whether crime was premeditated or a spurt of the moment act, nature and gravity of crime, propensity for committing crime, prospects of post release rehabilitation, etc. Very rightly so!

                                                    Since 2018, Manu was lodged in the open jail of the prison. Open jail prisoners are allowed to step out but have to spend the night inside the complex. The media first reported this development on April 22, 2018, and that it was possibly the penultimate step towards his release. In November 2019, Manu’s advocate approached the Delhi High Court seeking his release. The Delhi High Court then asked the Board to consider Sharma’s case for release in its next meeting on May 11.

                                             It must also be brought out here that initially when the Delhi High Court took up the case, Manu Sharma was represented by none other than the legendary Ram Jethmalani (now deceased) and later in the Supreme Court. The Supreme Court had held that “presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending”.

                                      So finally we see that Manu Sharma too is now a free man. His case is a message to all that a fit of anger can destroy our so many years in jail. So it is always advisable to rein in one’s anger as it can save us from getting into deep trouble!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Worrisome Trend Of Litigants To Criminalise Contractual Disputes

In a recent, remarkable and righteous decision, the Orissa High Court on July 13, 2020 in S Ranjan Raju vs. State of Odisha in BLAPL No. 1747 of 2020 in the matter of an application under Section 439 of Criminal Procedure Code, 1973 has explicitly and elegantly called for a procedural reform of conducting mandatory preliminary inquiry before the registration of a FIR in contractual disputes and other civil cases urging that such safeguard can prevent criminalization of disputes that are civil in nature. Very rightly so! Why should a civil dispute be allowed to acquire the colour and complexion of criminal cases?

                                            To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice SK Panigrahi wherein it is observed that, “The petitioner is named as accused in the complaint lodged by one Kallakuri Gola Babu under Sections 341/417/420/406/294/506, I.P.C. which was sent for enquiry under Section 156(3), Cr.P.C. by the learned J.M.F.C., Chandikhole in I.C.C. No. 39 of 2020 and a case was registered as Badachana P.S. Case No. 13 of 2020 corresponding to C.T. Case No. 123 of 2020 in the file of Assistant Sessions Judge, Chandikhole, awaiting submission of final form. The petitioner has also approached before the learned Assistant Sessions Judge, Chandikhole vide Bail Application No. 33 of 2020 which was rejected vide order dated 20.02.2020 which was rejected vide order dated 20.02.2020 with a reason that the case diary was not available at the time of hearing.”

                                     While dwelling on the facts of the FIR, it is then stated in para 2 that, “The factual conspectus as set out in the F.I.R. is that the complainant has alleged in his complaint dated 28.01.2020 that the complainant had allegedly owed Rs. 64,00,000/- (rupees sixty four lakhs) from the petitioner. Apparently, the petitioner and the complainant are co-villagers and had business relationship for the last 15 years. The petitioner is the proprietor of “M/s. Kallakuri Entrepreneurs” in Bhubaneswar and the complainant is the Managing Director of the “Kallakuri Foods Pvt. Ltd.” The complainant used to supply Ghee (Surya Chandra Brand) and Banaspati (K.G. Brand) to the petitioner for the last one and half decade. The petitioner and the complainant were in good terms in their business relationship over the years. It is alleged that the complainant had made payment to the petitioner for purchasing one flat at Bhubaneswar in “Smruti Residency” with utmost belief and trust that the said flat would be delivered in future towards the settlement of the outstanding dues pending with the petitioner. It is further alleged that while the complainant requested to the petitioner over telephone to settle his outstanding dues or transfer the flat in his name. Instead, the petitioner is alleged to have abused the complainant and threatened to kill him. The allegation also demonstrates that on 22nd of January, 2020 at about 5.30 P.M, the Petitioner and the Complainant started hotly discussing about the outstanding amount due on the petitioner at a spot near a petrol pump at Chandikhole. As per F.I.R., the petitioner alleged to have scolded the informant with abusive languages and assaulted him by means of iron rod for which he sustained injuries. The petitioner is in custody since 12th of February, 2020 and since then the business transactions between the petitioner and the complainant has also been stopped.”

                                          On the one hand, it is pointed out in para 3 that, “Learned counsel for the petitioner, Mr. Bibhu Prasad Das submits that the complainant had intentionally lodged a false case against the petitioner, he had never abused or assaulted the complainant and they had very cordial business relationship for such a long period of time. The petitioner was purchasing Ghee and Banaspati from the complainant thereby effecting crores of rupees as turnover. Learned counsel for the petitioner further submits that the complainant had never paid anything to the petitioner for the purpose of purchasing of flat but the petitioner had purchased a flat from his hard earned money where he was residing and the complainant was eyeing over the said flat to get it transferred in his name. When the petitioner did not show his inclination for transferring the said flat, the complainant intentionally entangled the petitioner in this false and fabricated case. The allegation of assault to the informant by means of iron rod is totally false and fabricated. It is nothing but a means to foist a criminal case against the petitioner and to intentionally harass him.”  

                                         On the other hand, it is then pointed out in para 4 that, “Per contra, Mr. S.S. Mohapatra, learned Additional Standing Counsel vehemently objected the bail application of the petitioner on the ground that the petitioner’s submission of passport and Air ticket cannot be considered to be a valid plea of alibi even if it is assumed that the petitioner was not present at the time of the alleged occurrence at the crime spot. The correctness or otherwise of the said allegations has to be decided only in the Trial.”

                                    Truth be told, it is then observed in para 5 that, “Perused the Case Diary and the relevant documents, while scanning through the materials on record, it was found that the petitioner and the complainant had a long-standing business relationship. In the meantime, learned counsel for the complainant handed over some account statements pertaining to “M/s. Kollakuri Entrepreneurs” for perusal of this Court, which reflected some of the financial transactions, E-Waybill and some Tax Invoices which establishes their long-standing business relationship. However, the said documents do not show any evidence regarding payment of money to the petitioner for the purpose of transferring the flat in question. Thus, these documents fail to come to the aid of the complainant, since it does not reflect anything regarding the transfer of money done by the complainant to the petitioner for the purpose of transferring the said flat in question. Even if it is assumed that the complainant had paid the money to the petitioner seeking the transfer of the said flat in his name, he has failed to produce any document or Bank statement or draft or cheque as proof of the alleged transactions.”

                                       More significantly, it is then envisaged in para 6 that, “The instant case, prima facie, seems to be born out of a civil dispute between the parties and it was given a colour of criminal case. Of course, a thorough trial may bring different version of the story. Coming to the charges invoked by the complainant under Section 420, 417, I.P.C. etc. to set the criminal proceedings in motion, it is, at best, falling under a breach of contract but the element of cheating, prima facie, does not come to the fore. The case in hand, prima facie, has the ingredients of a civil dispute having several remedies available outside this Court. Nevertheless, the truth or otherwise of the instant case can be unearthed at the stage of trial. One of the major reasons why litigants opt for a criminal prosecution as opposed to civil proceedings because of a perceived notion that criminal proceedings offer quick relief which often drives the litigants to initiate false and vexatious proceedings. The Apex Court in Indian Oil Corporation v. NPEC India Ltd. & Ors. AIR 2006 SC 2780 took note of this issue stating that people prefer a criminal case over civil proceedings because of the prevailing notion that civil law remedies are notoriously time consuming and do not adequately protect the interests of lenders and creditors. This tendency is also observed in several family disputes leading to irretrievable break down of marriages. A general notion prevalent in the mind of an average litigant is that if a person could somehow be involved in a criminal prosecution, there are high chances of imminent settlement. Any effort to settle a civil dispute which does not involves any criminal offence, by applying pressure though criminal prosecution should be discouraged. Apart from the precedents, there are in-built mechanisms in statutes conferring on courts the power to prevent the abuse of the process of the court with respect to a matter which should be dealt by a civil court.”  

                                            Be it noted, it is then observed in para 7 that, “The Apex Court in Lalita Kumari vs. Govt. of U.P. & Ors. 2014 (2) SCC 1 has also held that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not. As per the said decision, an illustrative category of cases in which a preliminary inquiry may be made are: Matrimonial disputes/family disputes, Commercial offences, Medical negligence cases, Corruption cases and Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. Hence, when a criminal case is falsely initiated for disputes that are civil in nature, a remedy is available under Section 211 of the IPC read with Section 182 of the IPC.”

                                             As it turned out, it is then put forth in para 8 that, “The Advisory Council of the National Mission for Justice Delivery and Legal Reforms [Tenth Meeting held on 18.10.2016] noted that out of over 18.6 million criminal cases pending in the subordinate courts of the country only 2.8 million cases pertain to serious crimes. Needless to state, filing of frivolous cases which seek to wreck vengeance by tweaking civil disputes into criminal cases adds to these petty crimes. Such attempts should be stalled so that the focus of attention in the criminal courts remain on serious crimes, which affect the society at large.”

                         Most significantly, it is then very rightly underscored in para 9 that, “There is a growing tendency among litigants to give civil cases the colour and complexion of criminal cases in the likelihood of an imminent settlement. This Court is regularly witnessing a worrisome trend of increasing instances of abuse of the process of law by litigants seeking to settle civil disputes, using the criminal law machinery. It is imperative that in cases of some contractual disputes or other kinds of civil dispute which are sought to be criminalized should follow a procedure of conducting a mandatory preliminary inquiry before resorting to file/registering a FIR. This safeguard of conducting a preliminary enquiry can prevent criminalization of disputes that are civil in nature. The duty to curb such menace, by not forcing a person to go through the rigmarole of criminal prosecution, in purely civil disputes, commences with the police. It is once again reiterated that the case in hand may throw some different perspective after the trial, the entire discussion is based on the prima facie view taken by this court and the general trend prevalent in the criminal litigation.”   

                                     In conclusion, it can well be said that Orissa High Court in this latest, landmark and laudable judgment has very rightly expressed its grave concerns over the worrisome trend that has gathered steam since last many years to wrongly criminalise contractual disputes of civil nature for imminent settlement which is most despicable. It is beyond a straw of doubt that Para 9 very well sums up the essence of this noteworthy judgment. All courts must always pay heed to what the Orissa High Court has held so effectively, elegantly and eloquently in this notable case in similar such cases!

                                          Even the police must pay heed to it as it concerns them also! There can be certainly no denying or disputing it! It will certainly save the parties from being subjected to false, vexatious litigation and will ensure that the civil disputes are settled in the manner in which they deserve to be best settled!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

My Family Also Victim Of Judicial Delay: Justice R Banumathi

To start with, it must have been a great honour for all those who could attend the farewell function that was organized in honour of eminent and learned Supreme Court Judge – Justice R Banumathi to bid her farewell as she retires on July 19, 2020. The President and Members of the Executive Committee of the Supreme Court Bar Association hosted a function to bid farewell to her. Her track record is most distinguished and impeccable with many landmark judgments to her credit!

                                     Be it noted, Justice R Banumathi had assumed the role of a Supreme Court Judge on 13 August 2014. She is the sixth women to be a Judge of the Supreme Court of India. It goes without saying that she proved her mettle by her extremely elegantly, effectively and eloquently written landmark judgments and this has been acknowledged even by critics what to talk about others! When she spoke, all used to listen in silence and acknowledged that she had the deepest knowledge of law and everything associated with it! No denying it!

                                              To put things in perspective, Justice R Banumathi’s long and arduous journey in the legal field as a Judge commenced with her direct recruitment as a District Judge vide the Tamil Nadu Higher Judicial Service. Right from the start, she started delivering landmark and laudable judgments! In April 2003, she was elevated as a Judge of the Madras High Court. In November 2013 she was transferred to Jharkhand High Court and was appointed its Chief Justice.

                                           It would be imperative to mention here that the farewell ceremony commenced first and foremost with a “Welcome Address” speech delivered by senior advocate – Kailash Vasdev who is the Vice President of the Supreme Court Bar Association which he did with absolute perfection. The ceremony then progressed ahead with Attorney General KK Venugopal stating that it was a sad day as one of the most beloved Judges of the Supreme Court was leaving. He recounted the multiple great orders rendered with complete perfection by Justice R Banumathi during her time first as a District Judge, then as a High Court Judge and then finally as a Supreme Court Judge.

                                         Going ahead, KK Venugopal also could not restrain himself from saying it straight from his inner heart that, “We are losing a good Judge; a great Judge. So, all I can say is, bon voyage. I know you love your family; you’ve spoken about your grandchild. But, I hope you come back to legal work soon, maybe by way of arbitration.” When such a senior, so experienced and so learned Attorney General like KK Venugopal who in age is even much senior to Justice R Banumathi at 89 says something straight from his heart then everyone sits and takes notice and very rightly so! What greater tribute can be given to her and that too by none other than the eminent jurist and Attorney General of India – KK Venugopal! But she has certainly earned this with her extremely brilliant and bold judgments which no one can ever deny or dispute!    

                                                As if this was not enough, then came another legal giant named Dushyant Dave who is the present President of the Supreme Court Bar Association who was even more candid and said suavely yet simply when his turn came for speaking that, “My Ladyship, I must confess that the Court will have a serious vaccum without you and the Collegium will find it difficult to fill it up. The Bar will miss you, as it is in you we found an independent Judge who was always willing to listen to us.” Who does not know the impeccable credentials of senior advocate named Dushyant Dave who never hesitates in calling a spade a spade? This is the best tribute that any Judge can expect but very few are so lucky to get such a tribute and Justice R Banumathi has earned it by her flawless judgments and impeccable conduct!

                                         Not stopping here, Dushyant Dave also noted that, “Justice Banumathi embodied the cornerstone of the rule of law, which was the bedrock of democracy, by being fiercely independent and giving multiple dissenting opinions”. In fact, this is what made her so special just like we see in the case of another eminent Judge – Justice Dr DY Chandrachud who never fights shy to even overrule some of the judgments of his legendary father – late Justice YV Chandrachud who served as Chief Justice of India for the longest term ever till now of more than seven years as we saw in case of adultery and 1976 verdict in the famous ADM Jabalpur case!  

                             Going forward, Dushyant Dave also listed her achievements and contributions by not only being the President of the Tamil Nadu State Judicial Academy, but also by authoring various handbooks and books on the various aspects of law. He further did not fight shy in highlighting her kind and encouraging disposition towards members of the Bar. He said elegantly and effectively that, “The Bar is really grateful about the way you treated members of the Bar; the affection that you showered on us, even while being firm with us with your decision-making. Specially the younger members of the Bar, whom you treated with utmost respect and kindness.” This is exactly what endeared her to young lawyers so much for which she deserves full credit also!   

                            As it turned out, Dave then after speaking on some other key topics then concluded his address saying that, “In you, the Bar found someone who was really a friend. Today, when you are leaving us, we are feeling quite sad. Fortunately, you are not leaving Delhi and I hope you will join us, maybe by way of arbitration.” Dushyant Dave certainly too deserves praise for having communicated his true feelings so simply and suavely!

                             Simply put, Justice R Banumathi then commenced her farewell address by thanking everyone for joining her on a Friday evening to share good words and also good thoughts about her. While speaking straight from her heart, she could not restrain herself while recounting her childhood days and her journey to the top court from saying that, “I was born in a very small village, in a backward district in Tamil Nadu. I lost my father in a bus accident, when I was 2 years. In those days, we had to file a suit for compensation. My mother filed a claim and the court passed a decree. But, we couldn’t get the amount due to complicated procedures and lack of assistance. Myself, my widowed mother and my two sisters, we are victims of court delay and its procedural lags. We did not get the compensation till the last day.”

                             Having said this, she further also observed that, “Despite comments on pendency of cases, various positive initiatives had been taken by the Central Government, State Governments and the judiciary to aid in the accessibility to justice and to ensure more efficiency of the system.”

                                    Furthermore, she also added that, “With more citizen-centric services such as availability of judgments/orders online, easier accessibility to cause lists, e-payments, e-summons, mobile apps etc., these are all arms meant to increase transparency of the system.”

                                              What is the best tribute that Centre can give to Justice R Banumathi and the likes of her? Centre must take all such good measures which can ensure that pending cases are expedited swiftly and smoothly so that people get justice in time and not suffer endlessly as we saw in case of Justice R Banumathi herself in her childhood days! As for instance, creating more High Court Benches as was also strongly recommended by the 230th report of Law Commission of India especially in big states like Uttar Pradesh which is the most populated state in India, has maximum pending cases in India and still has least benches just one bench and that too at Lucknow which is just 200 km away from Allahabad where High Court itself is situated leaving the remote areas like West UP where people numbering more than 9 crore have to travel more than 700 km all the way to Allahabad to get justice as the Justice Jaswant Singh Commission’s landmark recommendations to create a high court bench in West UP was not implemented even though benches were created in other places like Aurangabad in Maharashtra, Jalpaiguri in West Bengal and Madurai in Tamil Nadu!

                                  None other than the former CJI – Ranjan Gogoi while in his capacity as CJI had in a case brought by a lady lawyer named KL Chitra had accepted the dire need for a Bench of High Court in West UP but put the ball of decision making in the court of Centre! What is Centre waiting for? 74 years have already lapsed yet not a single more Bench created in UP which figures in bottom index in state list while Maharashtra which tops the index has 4 Benches! Is Centre waiting for 75 years or for 100 years? It is for Centre to answer!

                                      It is most shameful and most disgraceful that Allahabad High Court has the dubious distinction of accounting for 14,207, or 98% of a total of 14,484 appeals that are pending adjudication for more than 30 years as was noted by a Bench of Apex Court comprising of Justices LN Rao and S Ravindra Bhat and yet no Prime Minister starting from Jawaharlal Nehru to present Narendra Modi has ever dared to create one more Bench apart from the one at Lucknow!

                                  To be sure, Justices Rao and Bhat also noted that over 33,000 appeals were pending in these 10 High Courts for a period between 20 to 30 years, and again Allahabad HC had the lion’s share accounting for nearly 20,000 of them. The appeals waiting their turn to be heard for the last 10 to 20 years numbered at 2,35,914 of which 88,732 were in Allahabad high Court! Apart from this, it cannot be denied that Allahabad High Court is biggest court in whole of Asia and has 160 Judges which is maximum in India and yet has just one Bench only!

                                     What a pity that an anguished Supreme Court said that, “These facts pose a challenge to the judicial system, inasmuch as the right to speedy trial would also include the right to speedy disposal of appeals of those convicted. If such appeals are not taken up for hearing within a reasonable time, the right of appeal itself would be illusory, inasmuch as incarcerated convicts (who are denied bail) would have undergone a major part, if not whole of the period, of their sentences!” Why should all such steps not be taken to put our judicial system back on rails and not allow it to be in ventilator as most unfortunately we have allowed in last 74 years!

                                    Apart from creating more Benches, more Judges must also be appointed so that the cases are decided more quickly! Out-of-court settlements must also be encouraged through mediation and other mechanisms! Judgments must not be too long so that other cases also get time to be decided! Appropriate use must be made of information technology such as digitization of appeal records/paper books, feasibility of creation of a dedicated pool of amicus curiae who would assist the court in such old matters; feasibility to creation of dedicated special benches for hearing and disposal of old cases as was pointed out by none other than Apex Court itself just recently! Adjournments especially in lower courts on one pretext or the other must be checked and only then can we expect that our moribund judicial system will come back to shape as it ideally should also be! All such steps must be taken like creating a definite time limit for deciding mercy petition, review petition, curative petition, appeal for Presidential pardon etc so that cases don’t just keep lingering endlessly!         

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera

Victim Under SC/ST Act Includes Parents & Family Members Of Persons

In a recent, remarkable and righteous decision delivered just recently on July 21, 2020, the Kalaburagi Bench of the Karnataka High Court in Marenna @ Mareppa v. State in Crl. Petition No. 200315/2020 has very rightly held that a victim under the SC/ST Atrocities Act includes not only the person who sustains injuries arising out of the crime but also his parents and family members. It is a very significant observation and ensures that the rights of the parents and family members are adequately protected. The case pertained to a deadly attack carried out on a 14-year-old boy whose head was allegedly hit by an axe by the petitioners-accused. They were also accused of abusing the boy in filthy language by mentioning the name of his caste.

                                                 To start with, Justice Hanchate Sanjeev Kumar who delivered this latest, landmark and extremely laudable judgment through ‘Virtual Court’ sets the ball rolling by first and foremost pointing out that, “Crl. P. No. 200315/2020 is filed by the petitioner/accused No. 2 under Section 439 of Cr.P.C and Crl.P. No. 200318/2020 is filed by the petitioner/accused No. 1 under Section 439 of Cr.P.C., seeking to enlarge them on bail.” This Criminal Petition is filed under Section 439 of CrPC, 1973 praying to release the petitioner on bail in Crime No. 72/2020 of Shahapur Police Station for the offences punishable under Sections 143, 147, 148, 323, 307, 504 and 506 read with Section 149 of IPC and Sections 3(1)(r), 3(1)(s) of SC/ST Act, 1989 pending on the file of District and Sessions Judge, Yadagiri. These petitions have been heard and reserved for orders on July 14, 2020. It is then pointed in para 2 that, “Since both the petitions arising out of same Crime i.e., in Crime No. 72/2020 of Shahapur P.S., they are taken up together, heard and disposed of by this common order.”

                                         While dwelling on the definition of victim, it is envisaged in para 16 that, “Therefore, the definition “victim” as enumerated in the Act is wide enough, which include any individuals who falls within the definition of the SC/ST Act who has suffered or experienced physically, mentally, psychologically, emotionally or monetary harm or suffered harm to his or her property. If a person sustains injuries arising out of crime then, he himself, his parents, family members are also to be considered as victim as per the above definition. It is not only stipulated a physical harm is to be caused but if there is a harm mentally, psychologically, emotionally or monetarily or if there is any harm in respect of the property then such person is also coming within the definition of the victim.”

                                                While continuing in the same vein, it is then further added in para 17 that, “In the present case, the first informant is the mother of the injured person. Therefore, definitely the first informant is victim in the present case. It is not only the mother alone is becoming the victim but father and other blood relative are also coming within the definition of victim to consider the present case. The first informant is the mother of the minor boy, the minor boy who had sustained injuries due to the assault  stated to have been committed by the petitioners and other accused. Therefore, certain rights are conferred to the victim and witnesses under the SC/ST Act.”  

                                           It would be instructive to now have a cursory glance at what para 18 states that, “Sub-section (5) of Section 15-A of the SC/ST Act guarantees a right to a victim or dependents to participate in any proceedings thus right of ‘Audi Alteram Partem’ is conferred. For ready reference, Sub-section (5) of Section 15-A of the SC/ST Act is extracted as under:

         “A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.””

                                       More significantly, it is then very rightly stated in simple and straight language in para 19 that, “Therefore, when a right of Audi Alteram Partem is conferred on the victim or his dependents, then the court has to give an opportunity/right of audience to the victim or his/her dependent to hear them as to enable them to participate in the proceedings including bail proceedings also. Therefore, a victim or dependent has a right to be heard by the Court enabling the victim or dependents to participate in any proceedings in respect of not only bail proceedings but also in the proceedings of discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission or conviction, acquittal or sentencing of a case. The court is able to hear the victim or respondent in respect of a proceedings as enumerated in Sub-section (5) of Section 15-A of the SC/ST Act only when the victim or dependent are made as parties in the proceedings, otherwise it cannot be possible for the court to hear the victim/dependents and to receive any written submission as stated in the said provision. The victim or dependent may participate either personally or through an Advocate or through Public Prosecutor or Special Public Prosecutor or appear himself/herself. As per Section 15 of the SC/ST Act, the Special Public Prosecutor are assigned the duties to represent the State in genre but in specie on behalf of the victim or dependent/complainant/first informant to prosecute the case. But the Parliament in its wisdom by inserting Chapter IV-A and Section 15-A of the SC/ST Act confers right of victims and witnesses and more expressly provided the victim or dependent to participate in any proceedings. Therefore, Sub-section (3) of Section 15-A of the SC/ST Act only enumerates giving such information to the victim or dependents through Special Public Prosecutor or State Government about any proceedings pending in the court. But Sub-section (5) of Section 15-A of the SC/ST Act confers a right on the victim or dependents to make them to participate in a proceedings and to hear their submissions and also to file written submissions in this regard in the proceedings pending before the court. Therefore, unless the victim or dependent as enumerated in Section 2(ec) of the SC/ST Act is made a party in the proceedings in the case pending before any court, it is not possible for the court to hear whatever submission to be put forth by the victim or dependents in the proceedings before the court. Therefore, under these circumstances, making the victim or dependent as party in the proceedings pending before any court is necessary and mandatory.”   

                                                Most significantly, it is then finally held in para 27 that, “Therefore, under these circumstances, the following guidelines are issued:

i)                 A right is conferred on the victim or his/her dependents to participate in the proceedings initiated under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as enumerated in Section 15-A as discussed above. Therefore, the first informant/complainant/victim or dependents shall be made as a party in the proceedings and issue necessary notice to the victim or dependents/first informant/complainant/victim or dependents and to hear them in any proceedings as envisaged under Sub-section (5) of Section 15-A of the SC/ST Act.

ii)              The Special Courts trying with the offence/s under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 shall direct the District Legal Services Authority to provide an advocate on behalf of the victim or his/her dependents/first informant/complainant from the Panel Advocates of District Legal Services Authority.  

                 The Registrar General is hereby requested to circulate this order to all the concerned Special Courts trying/dealing the offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and to the Member Secretary, Karnataka State Legal Services Authority (KSLSA), who in turn shall inform all the District Legal Services Authority and Secretary, High Court Legal Services Committee (HCLSC) to provide legal services to the victim or dependents in any proceedings pending before the Special Court or High Court, as the case may be, as stated above.”

                                   In a nutshell, the long and short of this notable judgment is that the victim under SC/ST Act includes not just the victim who suffered injuries of the crime but also includes the parents and family members of the person suffering injuries of the crime! There can be no denying or disputing it! It would be pertinent in this regard to recollect here what para 15 states that, “Section 2 (ec) of the SC/ST Act defines ‘victim’, as under:

“ “victim” means any individual who falls within the definition of the “Scheduled Castes and Scheduled Tribes” under clause (c) of sub-section (1) of section 2, and who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this Act and includes his relatives, legal guardian and legal heirs.””

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Creation Of More HC Benches In UP

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Abstain From Broadcasting Zee Owned Films Jung And Kartavya

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Liability For Offence Depends On Role One Plays

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Burden Is On The Prosecution To Negate It

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

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

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

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

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

                         Analysis

I.                 Sweeping generalisations and superficial analysis

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

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

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

II. Shoddy investigation and prosecution

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

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

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

III. Gross Mis-appreciation of conflicting testimonies

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

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

IV. Failure to refute Section 313 CrPC statement

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

V. Charge of criminal intimidation

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

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

                                Conclusion

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

WASTE MANAGEMENT

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

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

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

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

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

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

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

Give Highest Priority To Pregnant Women, Then To Senior Citizens

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Social Media Marketing

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

There are many parts of marketing:

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

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

What is Social Media Marketing?

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

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

1. Affiliate Marketing

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


2. Digital Marketing

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


3. E – Commerce

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

4. Social Media Influencing

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

5. Sell photos:

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

But why social media marketing?

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

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

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