Woman Driven Out Of Matrimonial House Can File Case Where She Has Taken Shelter: SC

Leaving not even an iota of doubt, the Supreme Court just recently on April 9, 2019 in a latest case titled Rupali Devi v State of Uttar Pradesh in Criminal Appeal No. 71 of 2012 with Criminal Appeal No. 619 of 2019 [Arising out of SLP (Cri.) No. 5695/2010], Criminal Appeal No. 620 of 2019 [Arising out of SLP (Cri.) No. 8246/2010], Criminal Appeal No. 621 of 2019 (Arising out of SLP (Cri.) No. 7387/2011), Criminal Appeal No. 622 of 2019 [Arising out of SLP (Cri.) No. 5052/2014], Criminal Appeal No. 623 of 2019 [Arising out of SLP (Cri.) No. 5139/2014] has laid down categorically that women can file matrimonial cases, including criminal matters pertaining to cruelty from the place where they have taken shelter after leaving or being driven out of their matrimonial home. This landmark and extremely laudable judgment came on an appeal filed by Rupali Devi against the Allahabad High Court which dismissed her plea to file a dowry harassment case from her parents house. We thus see that after failing to get any relief from Allahabad High Court, Rupali Dei ultimately gets justice from the top court!

To be sure, it must be mentioned here that the Allahabad High Court held that cruelty punishable under Section 498A of the IPC is not a continuing offence and thus cannot be probed or punished in a jurisdiction outside the one in which the matrimonial house of the complainant is situated. But this was overruled by the top court. The top court has laid down clearly and categorically the law in this regard!

To start with, this noteworthy and commendable judgment authored by CJI Ranjan Gogoi for himself, Justice L. Nageswara Rao and Justice Sanjay Kishan Kaul sets the ball rolling in para 1 by first and foremost observing that, “Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members”. It is then further said in this same para 1 that, “This is the precise question that arises for determination in this group of appeal.” Absolutely right!

Needless to add, it is then clarified in para 2 that, “The opinions of this Court on the aforesaid question being sharply divided, the present reference to a larger Bench has been made for consideration of the question indicated hereinabove.” There can be no denying it!

Furthermore, it is then brought out in para 3 that, “In

(i) Y. Abraham Ajith and Others . Inspector of Police, Chennai and Another (2004) 8 SCC 100.

(ii) Ramesh and Others v. State of Tamil Nadu (2005) 3 SCC 507.

(iii) Manish Ratan and Others v. State of Madhya Pradesh and Another (2007) 1 SCC 262.

(iv) Amarendu Jyoti and Others v. State of Chhattisgarh and Others (2014) 12 SCC 362.

a view has been taken that if on account of cruelty committed to a wife in a matrimonial home she takes shelter in the parental home and if no specific act of commission of cruelty in the parental home can be attributed to the husband or his relatives, the initiation of proceedings under Section 498A in the courts having jurisdiction in the area where the parental home is situated will not be permissible. The core fact that would be required to be noted in the above cases is that there were no allegations made on behalf of the aggrieved wife that any overt act of cruelty or harassment had been caused to her at the parental home after she had left the matrimonial home, it is in these circumstances that the view had been expressed in the above cases that the offence of cruelty having been committed in the matrimonial home the same does not amount to a continuing offence committed in the parental home to which place the aggrieved wife may have later shifted.”

While referring to the past relevant rulings, it is then elaborated in para 4 that, “In Sujata Mukherjee v. Prashant Kumar Mukherjee (1997) 5 SCC 30; Sunita Kumari Kashyap v. State of Bihar and Another (2011) 11 SCC 301 and State of M.P. v. Suresh Kaushal & Anr. (2003) 11 SCC 126 a seemingly different view has been taken. However, the said view may appear to be based in the particular facts of each of the cases in question. For instance, in Sujata Mukherjee (Supra) there was a specific allegation that the husband, after committing acts of cruelty in the matrimonial home, had also gone to the parental house of the wife where she had taken shelter and had assaulted her there. On the said facts this court in Sujata Mukherjee (Supra) held that the offence is a continuing offence under Section 178 (c) of the Cr.P.C. In Sunita Kumari Kashyap (Supra), there was an allegation that the wife was illtreated by her husband who left her at her parental home and further that the husband had not made any enquiries about her thereafter. There was a further allegation that even when the wife had tried to contact the husband, he had not responded. In the said facts, this court took the view that the consequences of the offence under Section 498A have occurred at the parental home and, therefore, the court at that place would have jurisdiction to take cognizance of the offence alleged in view of Section 179 of the Cr.P.C. Similarly in State of M.P. vs. Suresh Kaushal (Supra) as the miscarriage was caused to the wife at Jabalpur, her parental home, on account of cruelty meted out to her in the matrimonial home, it was held that the court at the place of the parental home of the wife would have jurisdiction to entertain the complaint under Section 179 Cr.P.C.”

To put it aptly, it is then unfolded in para 5 that, “The above two views which the learned referring bench had considered while making the present reference, as already noticed, were founded on the peculiar facts of the two sets of cases before the Court. It may be possible to sustain both the views in the light of the facts of the cases in which such view was rendered by this Court. What confronts the court in the present case is however difficult. Whether in a case where cruelty had been committed in a matrimonial home by the husband or the relatives of the husband and the wife leaves the matrimonial home and takes shelter in the parental home located at a different place, would the courts situated at the place of the parental home of the wife have jurisdiction to entertain the complaint under Section 498A. This is in a situation where no overt act of cruelty or harassment is alleged to have been committed by the husband at the parental home where the wife had taken shelter.”

Interestingly enough, it is then laid bare in para 6 that, “A look at the provisions of Chapter XIII of the Code of Criminal Procedure, 1973 (Cr.P.C) dealing with the jurisdiction of the Criminal Court in inquiries and trials will now be required. Section 177 of the Code of Criminal Procedure contemplates that “every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed”. It is, therefore, clear that in the normal course, it is the court within whose local jurisdiction the offence is committed that would have the power and authority to take cognizance of the offence in question.”

Notably, it is then spelt out in para 7 that, “Sections 178 and 179 are exceptions to the above rule and may be set out hereinunder:

“178. Place of inquiry or trial –

(a)When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.”

“179. Offence triable where act is done or consequence ensues – When an act is an offence by reason of anything which has been done and of a consequence which has ensured, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued”.”

What’s more, it is then envisaged in para 8 that, “Section 178 creates an exception to the “ordinary rule” engrafted in Section 177 by permitting the courts in another local area where the offence is partly committed to take cognizance. Also if the offence committed in one local area continues in another local area, the courts in the latter place would be competent to take cognizance of the matter. Under Section 179, if by reason by the consequences emanating from a criminal act an offence is occasioned in another jurisdiction, the court in that jurisdiction would also be competent to take cognizance. Thus, if an offence is committed partly in one place and partly in another, or if the offence is a continuing offence or where the consequences of a criminal act result in an offence being committed at another place, the exception to the “ordinary rule” would be attracted and the courts within whose jurisdiction the criminal act is committed will cease to have exclusive jurisdiction to try the offence.”

It would be instructive to take note of what para 9 illustrates. It stipulates that, “At this stage it may also be useful to take note of what can be understood to a continuing offence. The issue is no longer res integra having been answered by this court in State of Bihar v. Deokaran Nenshi (1972) 2 SCC 890. Para 5 may be usefully noticed in this regard.

“5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all”.”

It cannot be lost on us that it is then mentioned in para 10 that, “The question that has posed for an answer has nothing to do with the provisions of Section 178 (b) or (c). What has to be really determined is whether the exception carved out by Section 179 would have any application to confer jurisdiction in the courts situated in the local area where the parental house of the wife is located.”

For the sake of brevity, it must be stated briefly that it is then mentioned in para 12 that, “Section 498A of the Indian Penal Code was introduced by the Criminal Law (second amendment) Act, 1983. In addition to the aforesaid amendment in the Indian Penal Code, the provisions of Section 174 and 176 of the Code of Criminal Procedure, 1973 relating to inquiries by police in case of death by suicides and inquiries by magistrates into cause of such deaths were also amended. Section 198A was also inserted in the Code of Criminal Procedure with regard to prosecution of offences under Section 498A. Further by an amendment in the first schedule to the CrPC the offence under Section 498A was made cognizable and non-bailable. Of considerable significance is the introduction of Section 113A in the Indian Evidence Act by the Criminal Law (second amendment) Act, 1983 providing for presumption as to abetment of suicide by a married woman to be drawn if such suicide had been committed within a period of seven years from the date of marriage of the married woman and she had been subjected to cruelty.”

In plain and simple language, it is then stated in para 13 that, “The object behind the aforesaid amendment, undoubtedly, was to combat the increasing cases of cruelty by the husband and the relatives of the husband on the wife which leads to commission of suicides or grave injury to the wife besides seeking to deal with harssament of the wife so as to coerce her or any person related to her to meet any unlawful demand for any property, etc. The above stated object of the amendment cannot be overlooked while answering the question arising in the present case. The judicial endeavour must, therefore, always be to make the provision of the laws introduced and inserted by the Criminal Laws (second amendment) Act, 1983 more efficacious and effective in view of the clear purpose behind the introduction of the provisions in question, as already noticed.”

More importantly, it is then outlined in para 14 that, “ “Cruelty” which is the crux of the offence under Section 498A IPC is defined in Black’s Law Dictionary to mean “The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment, outrage (Abuse, inhuman treatment, indignity)”. Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being illtreated are aspects that cannot be ignored while understanding the meaning of the expression “cruelty” appearing in Section 498A of the Indian Penal Code. The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatize the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.”

Most importantly, it is then underscored in para 15 that, “The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The provisions contained in Section 498A of the Indian Penal Code, undoubtedly encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband and the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view amount to commission of cruelty within the meaning of Section 498A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 Cr.P.C which would squarely be applicable to the present case as an answer to the question raised.”

Lastly, we then see that para 16 concludes by saying that, “We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

All said and done, it is certainly a landmark and laudable judgment which has spoken vocally for the affected woman. This alone explains that why the three-Judge Bench of Apex Court headed by CJI Ranjan Gogoi has held categorically and convincingly that, “498A case can be filed at a place where a woman driven out of matrimonial home takes shelter.” Very rightly so! This will certainly save a woman from being subjected to unnecessary inconveniences like travelling to some other place just to file a case! 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.

Sex After Obtaining Consent By False Promise To Marry Is Rape: SC

It is significant to note that the Supreme Court most recently on April 9, 2019 has very strongly and sternly reiterated in a latest, landmark and laudable judgment titled Anurag Soni v. State of Chhattisgarh in Criminal Appeal No. 629 of 2019 (Arising out of SLP(Criminal) No. 618/2019) has reiterated in no uncertain terms that the consent for sexual intercourse obtained by a person by giving false promise of marriage would not excuse him from rape charges. All those men who dare to indulge in sex after giving false promise of marriage must now always bear it in mind that they will not be excused from rape charges as has been held in this most recent case. This commendable and notable ruling is bound to send a large and clear warning to all men that they cannot take women for granted and have sex with them by falsely promising to marry and then later reneging and escaping from all liabilities!

First and foremost, the ball is set rolling in this latest judgment authored by Justice MR Shah for himself and Justice L Nageswara Rao by pointing out in para 1 that, “The application for impleadment of the prosecutrix is allowed, in terms of the prayer made.” It is then mentioned in para 1.1 that, “Leave granted”.

For the uninitiated, para 2 then states that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.10.2018 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 1270/2014; by which the High Court has dismissed the said appeal preferred by the appellant herein – the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused for the offence under Section 376(1) of the IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 50,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for six months, the original accused has preferred the present appeal.”

To recapitulate, it is then unfolded in para 3 that, “The prosecution case in brief was that the prosecutrix was the resident of Koni, Bilaspur, District Bilaspur. Prosecutrix was familiar with the accused since 2009 and there was love affair between them. The appellant had even proposed her for marriage and this fact was within the knowledge of their respective family members. At the time of incident, accused was posted as Junior Doctor in the government hospital of Maalkharoda and at that time the prosecutrix was doing her studies of Pharmacy in Bhilai. On 28.4.2013 the accused expressed his desire to the prosecutrix that he wanted to meet her and accordingly on 29.4.2013 at 7.25 a.m. the prosecutrix boarded Durg Danapur Express train and reached Sakti railway station from where the accused took her on a motorcycle to his house situated at Maalkharoda and there she stayed from 2 pm of 29.4.2013 to 3 pm of 30.4.2013 and during this period despite refusal of the prosecutirx the accused established physical relation with her on the pretext of marrying her. On 30.4.2013 the accused asked the prosecutrix to leave by saying that on 1st or 2nd May he will talk to his parents about their marriage and he will soon marry with her. On 30.4.2013 at about 6 in the evening accused Anurag Soni and the prosecutirx reached Bilaspur by train and from where their friend namely Umashankar took them on a motorcycle to the house of Mallika Humne, friend of prosecutrix, where the accused dropped her and went back. Next morning accused dropped the prosecutrix at Railway Station, Bilaspur from where she boarded train for Bhilai (Durg). Accused asked the prosecutrix not to tell about the incident to anyone and as a result of which the prosecutrix did not disclose the incident to anyone, but from 2.5.2013 to 5.5.2013 the prosecutrix had repeatedly asked from the accused about the marriage and when she did not receive any reply from the accused, on 6.5.2013, she informed her family members about the incident and then the family members of the prosecutrix had gone to the house of accused at village Kharod and informed his family members about the incident whereupon the family members of accused had said that now marriage of accused and prosecutrix was the only option available. In the meantime, members of both the families used to visit house of each other, however, after keeping the prosecutrix and her family members in dark for about two months, the accused had refused to marry the prosecutrix and performed marriage with another girl and then on 21.6.2013 the prosecutrix submitted written report (Ex. P-3) in the police station Maalkharoda in respect of rape committed by the accused upon her on the pretext of marriage based on which FIR (Ex. P-4) for the offence under Section 376 of IPC was registered against the accused.”

As anticipated, we then see that para 3.1 brings out the following: “That during the course of investigation, the investigating officer recorded the statement of concerned witnesses including the prosecutrix. The investigating officer collected the medical evidence and other evidence. After completion of the entire investigation, a charge sheet was filed against the accused for the offence punishable under Section 376 of the IPC.”

Furthermore, it is then pointed out in para 3.2 that, “That the learned magistrate committed the case to the learned Sessions Court which was numbered as Sessions Trial No. 201/2013. That the learned Sessions Court framed the charge against the accused for the offence under Section 376 of the IPC. The accused denied the charge so framed and claimed trial, and therefore he came to be tried by the learned Sessions Court for the aforesaid offence.”

To be sure, it is then stated in para 3.3 that, “The prosecution in support of its case examined as many as 13 witnesses including the prosecutrix (PW3) as under:

1. Pritam Soni PW1

2. Manikchand PW2

3. Prosecutrix PW3

4. Patwari Ghanshyam PW4

5. Dr. C.K. Singh PW5

6. Dr. K.L. Oraon PW6

7. Amritlal PW7

8. Pankaj Soni PW8

9. Dr. P.C. Jain PW9

10. Constable Jawaharlal PW10

11. Sub-Inspector S.P. Singh PW11

12. Inspector Sheetal Sidar PW12

13. Srimati Priyanka Soni PW13

Simply put, it is then observed in para 3.4 that, “After the closing pursis were submitted by the prosecution, three witnesses were examined on behalf of the accused in defence. The statement of appellant-accused was recorded under Section 313 of the Cr.P.C. wherein he denied the circumstances appearing against him and pleaded innocence and false implication. As per the accused his marriage was already fixed with one Priyanka Soni and this was in the knowledge of the prosecutrix, even then the prosecutrix and her family members continued to pressurise him to marry the prosecutrix, and then he married with Priyanka Soni on 10.6.2013 in Arya Samaj. Therefore, it was the case on behalf of the accused that a false FIR was lodged against him.”

Needless to say, it is then narrated in para 4 that, “That on appreciation of evidence, the learned Sessions Court observed and held that the prosecutrix gave consent for sexual intercourse on a misrepresentation of fact and the promise by the accused that he would marry the prosecutrix and therefore the said consent cannot be said to be a consent and therefore the accused committed the offence under Section 376 of the IPC. Thereupon, the learned Sessions Court convicted the accused for the offence under Section 376 of the IPC and sentenced him to undergo 10 years rigorous imprisonment.”

Going forward, it is then illustrated in para 5 that, “Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Sessions Court, the accused preferred appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the appeal and has confirmed the judgment and order passed by the learned Sessions Court convicting the accused for the offence under Section 376 of the IPC.”

Be it noted, it is then noted in para 6 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the appeal and confirming the conviction and sentence of the accused for the offence under Section 376 of the IPC, the original accused has preferred the present appeal.”

After hearing the learned counsels appearing on behalf of the respective parties at length, it is then observed in para 9 that, “In the present case, the accused has been convicted for the offence under Section 376 of the IPC. It is the case on behalf of the appellant-accused that as it is a case of consensual sex, the Courts below have committed an error in convicting the accused for the offence under Section 376 of the IPC. Both the Courts below have accepted the case of the prosecution that the consent of the prosecutrix was given on the basis of misconception of fact and, therefore, considering Section 90 of the IPC, such a consent cannot be said to be a consent and, therefore, the accused has committed the rape as defined under Section 375 of the IPC and thereby has committed an offence under Section 376 of the IPC. Therefore, the question which has been posed before this Court is, whether in the facts and circumstances of the case and considering the evidence on record, the Courts below have committed any error in holding the accused guilty for the offence under Section 376 of the IPC?”

What’s more, it is then elucidated in detail in para 13 that, “Applying the law laid down by this Court in the aforesaid decisions, the following facts emerging from the evidence on record are required to be considered:

(i) That the family of the prosecutrix and the accused were known to each other and, therefore, even the prosecutrix and the accused were known to each other.

(ii) That though the accused was to marry another girl – Priyanka Soni, the accused continued to talk of marriage with the prosecutrix and continued to give the promise that he will marry the prosecutrix.

(iii) That on 28.04.2013 the appellant expressed his wish telephonically to meet with the prosecutrix and responding to that the prosecutrix went to the place of the accused on 29.04.2013 by train, where the accused received her at the railway station Sakti and took her to his place of residence in Malkharauda.

(iv) That during her stay at the house of the accused from 2.00 pm on 29.04.2013, they had physical relation thrice;

(v) That as per the case of the prosecutrix, the prosecutrix initially refused to have physical relation, but then the appellant allured her with a promise to marry and had physical relation with her;

(vi) That, thereafter the prosecutrix called the accused number of times asking him about the marriage, howeer, the accused did not reply positively;

(vii) That thereafter the prosecutrix informed about the incident to her family members on 06.05.2013;

(viii) That the family members of the prosecutrix negotiated with the family members of the accused;

(ix) That on 23.05.2013, the appellant expressed his willingness to marry the prosecutrix and a social function was scheduled on 30.05.2013, which did not take place;

(x) That, again the family members of both the parties had talks, in which the marriage was negotiated and a social function was scheduled on 10.06.2013, which was again not held and further, the social event was fixed for 20.06.2013;

(xi) That on 20.06.2013, the appellant telephonically informed the prosecutrix that he has already married;

(xii) That, Priyanka Soni PW-13, who is the wife of the accused stated that one year prior to the marriage that took place on 10.06.2013, the negotiators were going on; and

(xiii) That the accused married Priyanka Soni on 10.06.2013 in Arya Samaj, even prior to the social function for the marriage of the accused the prosecutrix was scheduled on 10.06.2013 and even thereafter the social event was fixed for 20.06.2013.”

Having said this, the Apex Court then hastened to elegantly add further in para 14 that, “Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B-Pharmacy. Therefore, it is not believable that despite having knowledge that appellant’s marriage is fixed with another lady – Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant-accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.”

To put it succinctly, it is then held in para 15 that, “Now, so far as the submission on behalf of the accused-appellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inception the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.”

It is then held in this same para 15 while condemning the most reprehensible and rapidly multiplying rape crime and without mincing any words that, “As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamount to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him.”

Lastly, it is then held in para 16 that, “In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant-accused under Section 376 of the IPC. We also maintain the conviction of the appellant-accused under Section 376 of the IPC. However, in the facts and circumstances of the case and the request made by the learned counsel appearing on behalf of the appellant-accused, the sentence of 10 years’ RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC. Consequently, the present appeal is partly allowed to the aforesaid modification in the sentence only.”

What should I say of these two Judges – Justice L Nageswara Rao and Justice MR Shah? What should I say about this extremely landmark and laudable judgment delivered by them? I am too small a fry to comment on them. But one thing is for sure: They have left no doubt in sending a loud and clear message to all men that if you dare to indulge in sex with any women by showing a carrot in the form of a false promise to marry, you too then shall be held liable in the same manner just like any other rapist who forcibly rapes woman as you have obtained her consent falsely for which you certainly must face the consequences! They certainly do deserve all the laurels and lavish praise for not hesitating in calling a spade a spade! This will certainly now deter all men from ever indulging in sex with a women after giving false promise of marrying her! Each and every Judge not just in India but all over the world must always adhere and abide by what has been laid down by these two learned Judges in this latest, landmark and laudable judgment so that no men ever thinks that he can get away most easily even after openly cheating a women by first promising to marry her and then having sex with her and still worse then dumping her shamelessly like a commodity from his own life without incurring any kind of liability whatsoever!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

May’s Brexit Deal Voted Down For The Third Time

It has to be acknowledged candidly that in a huge jolt to the British Prime Minister Theresa May, the British lawmakers have outrightly rejected for a third time on March 29 her Brexit deal to avoid a chaotic no-deal divorce from the European Union (EU) thus sounding its probable death knell and leaving Britain’s withdrawal from the EU in turmoil on the very day it was supposed to leave the bloc. Thus we see that attempts by both Parliament and British Prime Minister Theresa May to clear the Brexit deadlock have floundered and failed miserably! There can be no denying or disputing it!

Needless to say, MPs failed to back any of eight alternative options in a vote held on night of March 27, while Ms Theresa May’s pledge to make way for a successor in time for the next phase of Brexit negotiation did not cut ice and failed to persuade enough MPs to back her deal. It goes without saying that the decision to reject a stripped-down version of May’s divorce deal has left it totally unclear how, when or even whether Britain will leave the EU in the coming days ahead! No doubt, this certainly plunges the three-year Brexit simmering crisis to a more deeper level of uncertainty.

As it turned out, after a special sitting of Parliament, lawmakers voted 344-286 against May’s 585-page EU Withdrawal Agreement, agreed after two years of tortuous negotiations with the bloc. This is certainly without an iota of doubt a major setback for British PM Theresa May! May had told Parliament in no uncertain terms that the vote was the last opportunity to ensure that Brexit would take place and cautioned that if the deal failed, then any further delay to Brexit would probably be a long one beyond April 12.

To put things in perspective, hours after May promised her Conservative members of Parliament on March 27 that she’d step down if they back her Brexit deal, she still looked short of having the numbers needed to win. It’s already been overwhelmingly defeated twice but still May was determined to try again. It must be pointed out here that May told the House of Commons that, “There are those who will say: ‘The House has rejected every option so far, you’ll probably lose so why bother?’ I bother because this is the last opportunity to guarantee Brexit. If we do not vote for this motion today, people will ask: Why did you not vote for Brexit?”

What’s more, May told Parliament after the defeat that, “I fear we are reaching the limits of this process in this House. This House has rejected ‘no deal’. It has rejected ‘no Brexit’. On Wednesday, it rejected all the variations of the deal on the table. This government will continue to press the case for the orderly Brexit that the result of the referendum demands.” The British pound, which has been buoyed in recent weeks by hopes that the likelihood of an abrupt ‘no-deal’ Brexit is receding, fell half a percent after May lost, to as low as $1.2977. This is certainly not surprising and was much anticipated!

Truth be told, within minutes of the vote, European Council President and Summit Chair Donald Tusk tweeted that EU leaders will meet on April 10 to discuss Britain’s departure from the bloc. The EU executive, the European Commission said that a “no-deal” exit on April 12 was now “a likely scenario”. It was a third straight failure for May, who had offered to resign on March 27 if the deal passed, in a bid to win over eurosceptic rebels in her Conservative Party who support a more decisive break with the EU than the divorce her deal offers.

Simply put, it leaves May’s Brexit strategy in tatters. Her strongly pro-Brexit Trade Minister Liam Fox had said on March 29 that it represented the last chance to “vote for Brexit as we understood it”. It must be mentioned here that the deal had twice been rejected by huge margins and although May was able to win over many Conservative rebels, a hard core of eurosceptics and the Northern Irish Democratic Unionist Party, which props up her minority government refused to back it.

It may be recalled that in a referendum on June 23, 2016, those favouring Brexit (Leave) won by 52% to 48% (Remain). The “transition period” was scheduled to start from March 29, 2019 and to end on December 31, 2020 which could be extended by up to two years if both the UK and the EU agree. This was to allow both time to agree to their future relationship. But all this was subjected to Parliament accepting PM Theresa May’s deal which has already been rejected twice and now rejected again for third time putting the proposed plan in a soup! During this transition period, the UK was expected to follow all EU rules, but would have no say in the framing of new ones.

It must be brought out here that in November 2018, the UK and the EU agreed to the terms of the exit, known as the withdrawal agreement. However, the agreement has failed to clear in British Parliament with MPs voting twice against it in 2019. On January 15, they voted 432-202 to reject the deal. Withdrawal agreement is a legally binding document that has to be passed by both the British and the European Parliaments. It covers the following:

a) Irish backstop: Right now, there is free movement of goods and people between the Republic of Ireland which will remain part of the EU and Northern Ireland which is part of the UK. The Irish backstop is a measure in the withdrawal agreement which will primarily make sure that this continues after Brexit and comes into effect only if the deal deciding the future relationship between the UK and EU is not agreed by the end of the transition period. Until then, the backstop keeps the UK effectively inside the EU Customs Union (a trade agreement that fortbids trade negotiations with EU member states separately from the EU). It also means that Northern Ireland conforms to some rules of the single market (goods, services, people and money move between EU member states and some other states).

b) Citizens rights: The draft deal preserves the rights of the more than three million EU citizens living in Britain and the one million British citizens living in the EU.

c) Brexit bill: It calls for a fair settlement for UK taxpayers that the British government estimates to be up to 39 billion pounds.

It must also be brought out here that the British PM Theresa May then renegotiated certain terms with the EU but on March 12, MPs voted against the withdrawal agreement again, this time by 391 votes to 242. The following day, the MPs then rejected the idea of leaving the EU without a deal – an option called the “No Deal”. Under this, it would be legal for the UK to unilaterally leave the European Union, cancel Brexit and cuts all ties immediately with no need for agreement at all in place with the other 27 EU countries.

Furthermore, the UK would simply follow the World Trade Organization rules to trade with the EU and other countries while trying to negotiate free-trade deals. Under WTO rules, each country sets tariffs on goods entering. If the UK chooses to put no tariff on goods from the EU, it must also have no tariffs on goods from every WTO member. If no other course of action can be agreed, the default option then would be that UK crashes out of the EU on April 12. Then we saw how on March 14, they voted 413-202 in favour of Prime Minister May asking the EU for a delay to carry out Brexit.

It is a no brainer that now Parliament will again try to take control of UK’s departure from the EU with some lawmakers hoping to force PM Theresa May to drop her Brexit strategy and pursue close economic ties with the bloc. Underlining how uncertainty is hurting business, the UK head of German industrial giant Siemens, Juergen Maier said that, “Britain was wrecking its reputation for stability and he urged lawmakers to back a customs union with the EU.”

More importantly, the head of the European Commission Jean-Claude Juncker said in an interview on Italian state TV RAI on March 31, 2019 that, “The European Union has had a lot of patience with Britain over Brexit but patience runs out.” Juncker whose words were translated into Italian said he would like Great Britain to be able to reach an agreement in the coming hours and days that could be followed. He said that, “So far we know what the British Parliament says no to but we don’t know what it might say yes to.”

Be it noted, Parliament will vote on different Brexit options on April 8, possibly showing a majority backing for a customs union and then May could try one last roll of the dice by bringing her deal back to a vote in Parliament as soon as Wednesday. May’s government and her party, which has grappled with schism over Europe for 30 years, was in open conflict between those pushing for a customs union with the EU and eurosceptics who are demanding a cleaner break with the bloc. May’s enforcer in Parliament – known as the chief whip – said that the government should have been clearer that May’s loss of her majority in Parliament in a snap 2017 election would inevitably lead it to accept a softer Brexit. Julian Smith said that, “The government as a whole probably should have just been clearer on the consequences of that. The parliamentary arithmetic would mean that this would be inevitably a kind of softer type of Brexit.” Smith also lamented that ministers had tried to undermine the Prime Minister.

It would be imperative to mention here that Article 50 is part of the Lisbon Treaty among EU member states. It covers how a member country can leave. This Article was triggered at the end of March 2017, hence Brexit Day in March 2019. It must also be mentioned here that to stop the Article 50 process, the UK may act on its own and to extend it all the EU countries must agree.

Logically speaking, if the deadlock between Parliament and government continues, then in such a situation the MPs or the executive could trigger a general election. This would well mean the end of British PM Theresa May’s reign as PM! Let’s wait and watch how things play out in UK in the days ahead! But one thing is clear: The sailing would be very rough for British PM Theresa May which even her best admirers would readily agree! Her Brexit deal being rejected for the third time is already a big setback for her!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

SC Designates 37 Lawyers As Senior Advocates

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

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

1. Madhavi Goradia Divan

2. R. Balasubramanian

3. Anitha Shenoy

4. Aruneshwar Gupta

5. Jugal Kishore Tikamchand Gilda

6. Sanjay Parikh

7. Preetesh Kapur

8. Ashok Kumar Sharma

9. Deepak Madhusudan Nargolkar

10. Ajit Shankarrao Bhamse

11. Nikhil Nayyar

12. S. Wasim A. Qadri

13. M.G. Ramachandran

14. Manish Singhvi

15. Gopal Sankaranarayanan

16. Mohan Venkatesh Katarki

17. Nakul Dewan

18. Devadatt Kamat

19. Anip Sachthey

20. Anupam Lal Das

21. G. Venkatesh Rao

22. Jayanth Muth Raj

23. Arijit Prasad

24. Jay Savla

25. Aparajita Singh

26. Menaka Guruswamy

27. Siddhartha Dave

28. Siddharth Bhatnagar

29. C.N. Sreekumar

30. Aishwarya Bhati

31. Santosh Paul

32. Gaurav Bhatia

33. Bharat Sangal

34. Vinay Prabhakar Navare

35. Manoj Swarup

36. Ritin Rai

37. Priya Hingorani.

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

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

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

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

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

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

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

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

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

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

3. Publications by the Advocate – 15 points

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

Application and eligibility

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

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

Procedure for designation

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

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Kartarpur Meet Delayed Over Khalistan Activists

It is nothing but stupidity of the highest order that politicians of India are not ready to learn any lessons from repeated betrayals by Pakistan and always indulges in day dreaming. This alone explains why inspite of so much of tension between India and Pakistan, India foolishly once again decided to trust Pakistan and go ahead with holding the second meeting with Pakistan to discuss modalities for the Kartarpur corridor! What did India get in return? Once again India was compelled to call off the meet with Islamabad on April 2 over legitimate concerns about the inclusion of pro-Khalistani activists in a Pakistani committee to facilitate Sikh pilgrims!

Why do our politicians behave so shamelessly and senselessly? Why do politicians expect that Pakistan will not play the Khalistan card to foment unrest in Punjab? Should Kartarpur corridor be opened at all under such circumstances? What has happened to our politicians?

Why can’t politicians of India nuke all relations with Pakistan and label it as “Aatankistan” as demanded by Maulana Mehmood Madani and BJP MP Rajeev Chandrashekhar long time back when he was an independent MP? Why politicians of India want to give Pakistan an opportunity to create unrest in Punjab? Why can’t we just lay off totally from Pakistan?

How can religion be above nation? How can religious interests be above national interests? Why our politicians repeatedly want to give Pakistan one more chance? Do they understand the consequences of what they do?

No wonder that on Pakistan’s 10-member panel we saw a man who demanded Sikh referendum last year. Sources said that the induction of Gopal Singh Chawla on the 10-member committee of the Pakistan Sikh Gurudwara Parbandhak Committee (PSGPC) which will “help facilitate” the visit of Indians pilgrims to the Kartarpur Sahib gurudwara. It is this same Gopal Singh Chawla who had played a key role in raising pro-Khalistan slogans and putting up posters on a Sikh referendum in November 2018 during the visit of pilgrims!

What was most shocking was that Centre decided to adopt a “relax” approach and “care a damn” approach and did not lodge any protest? Should we be proud of it? What did we get in return? Now that same Gopal Singh Chawla is on the 10-member committee of Pakistan panel! Had Centre strongly protested at the first place perhaps they had dared not bring him in the panel! But for inexplicable and undisclosed relations, Centre for the sake of Sikh pilgrims decided to bite the bullet!

Centre must stop biting the bullet! Centre must not fritter away the extreme goodwill that it has generated after the Balakot air strike among the people! What did Centre get by declaring Ramzan ka ceasefire with Pakistan and terrorists? It gave them a golden opportunity to pounce on our soldiers, kill them and behead them! Can any Indian be ever proud of this so called “Ramzan ka ceasefire”? When there is no Holi ka ceasefire or Diwali ka ceasefire or Christmas ka ceasefire then why Ramzan ka ceasefire? Does Pakistan or its army or terrorists ever care for it? They use it as a golden opportunity to kill more soldiers of ours on the border areas! Shame on our leaders who give them such a golden opportunity! One hopes that no politician will ever again place Pakistan and terrorists above nation! Terrorists have no nation yet repeatedly our leaders stupidly, shamelessly and senselessly declare “Ramzan ka ceasefire”! Terrorists have no religion then why link Ramzan with terrorists? It is for our leaders to ponder upon!

What’s more, Pakistan’s Information Minister Fawad Chaudhry not just announced Chawla’s inclusion but also went ahead to announce at last three other pro-Khalistan elements – Tara Singh, Bishon Singh and Kuljeet Singh. What could Centre do under such circumstances? India should have cancelled Kartarpur but our reaction once again was mild and we decided to just postpone talks!

Needless to say, Kartarpur corridor represents the best opportunity for Pakistan to revive militancy in Punjab. Who is allowing them to do this? Centre if it decides to go ahead with Kartarpur corridor as we all are seeing for ourselves. Who will be most happy with Kartarpur corridor? Pakistan, terrorists and the likes of Navjot Singh Sidhu whom BJP keeps criticizing so frequently yet is determined to fulfil his “dangerous and divisive” agenda of fully opening Kartarpur corridor in the name of Sikh pilgrims getting an opportunity to visit the birthsite of Guru Nanak!

To be sure, sources said that, “These developments have raised fresh concerns in India about the safety and security of pilgrims from India and misuse of the corridor for anti-India activities. India has made amply clear in the meeting and draft agreement that Kartarpur Sahib Corridor shall not be misused for any anti-India propaganda and activities. India has been strongly emphasizing on the need for foolproof security of pilgrims on Pakistani soil and demanding commitment from Pakistan to insulate them from any anti-India propaganda or activity during their visit to Gurudwara Kartarpur Sahib.”

What does Centre think it is doing? What does Centre think that Pakistan will honour its commitments of not fuelling anti-India propaganda from its soil? Why Centre places Sikh religion above India? Why is Centre not ready to learn anything from our past experiences with Pakistan?

How long will our leaders hope that Pakistan will address India’s concerns at the earliest? How long will our leaders overlook photos of dreaded slain terrorist Bhindrawale pasted all over the route to the Gurudwara Kartarpur Sahib not sparing even the Gurudwara also as we saw with our own eyes on various news channels? How long will our leaders overlook photo of Pakistan Army Chief Qamar Javed Bajwa with dreaded Khalistani terror leaders shaking hands and congratulating each other obviously for being able to fool our leaders who are not ready to see the stark reality which even an insane person can see through? It is for our leaders to decide!

At a time when our nation is on the verge of war with Pakistan, should we even think of opening the Kartarpur corridor let alone open it? Don’t we read nowadays frequently that our alert planes forced Pakistani planes to flee back when they tried to sneak into India? Should then religion be placed above nation? Sikh or Hindus or Muslims or Christians cannot be above our nation that is India!

Don’t our leaders know that Pakistan always indulges in double-speak? Don’t our leaders know that Islamabad is surreptitiously usurping land belonging to Kartarpur Singh Gurudwara in the name of developing the corridor? Don’t we know that India and Pakistan signed a pact in 1974 to facilitate visit of their pilgrims to the shrines located in each other’s territories but Kartarpur Sahib was not included despite repeated Indian requests?

Which reasonable person will ever trust Pakistan when it has been repeatedly betraying India and mercilessly killing our soldiers and not sparing even our women and children? How can BJP which proudly calls itself “party of chowkidar” and PM Narendra Modi who always proudly calls himself “chowkidar” do the stupidity most senselessly and most shamelessly of trusting Pakistan again and allowing Khalistani terrorists to misuse this route for their own dangerous and divisive agenda of “Khalistan 2020” as they keep propagating in UK, Canada, USA etc? At whose instance? Only and only BJP and PM Narendra Modi can best answer this!

All talks on Kartarpur corridor must be called off and similarly there should be no talks on opening of Sharda corridor for Hindu pilgrims or any other corridor because nation and national interest come first, always and every time and the religion and religious interest comes next, always and everytime! It is our politicians who ought to remember this always!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Nations Must Make Gun Laws More Stricter

It must be said with utmost regret that due to guns being easily available in various countries we see that the most ghastly, dastardly and cowardly attack on innocent people as we saw just recently in the New Zealand city of Christchurch on a mosque in which at least 50 people were killed and 50 injured in a mass shooting on March 15, 2019. All these precious lives would not have been lost if there were more stricter gun laws in place. Gun should not be given to any person whoever applies for it without proper verification!

To put things in perspective, a 28-year-old man named Brenton Tarrant has been taken into custody and charged with murder. The shooter targeted two mosques in Christchurch: the Al Noor mosque where 42 people were killed mercilessly and another at the Linwood mosque where seven people died. The alleged shooter also live-streamed his dastardly and ghastly attack on social media, most gruesomely displaying how he entered the mosque and shot worshippers as they struggled to flee. It is reported that seven Indians have also lost their lives in this cowardly and most reprehensible attack!

Needless to say, in a brief press conference, New Zealand Prime Minister Jacinda Ardern called the mass murder a “terrorist attack” and said that the perpetrators held “extremist views” that have no place in New Zealand. She very rightly lamented that, “This is one of New Zealand’s darkest days.” India reiterated its unstinted support to New Zealand in its hour of crisis along with other nations.

It is gratifying to learn that in the wake of the terrorist attacks at two mosques in Christchurch in New Zealand, its Prime Minister Jacinda Ardern has said that she would soon announce new gun laws. While New Zealand’s gun laws are not as restrictive as in, say, Australia, those of countries such as the US are far more relaxed. The New York Times listed what it takes to own a gun in several countries. Let us discuss some of them here apart from those listed in The New York Times. They are as follows: –

New Zealand

1. Background check (criminal, medical, mental health, domestic violence records).

2. Character references.

3. Interview in person between authorities and applicant’s partner or next of kin.

4. Inspection for firearm storage facilities at home.

5. A gun safety course.

It must be pointed out here that Reuters quoted Radio New Zealand as reporting that more than 99% of applicants for a firearms licence in 2017 were successful. The country, whose population is 5 million, has an estimated 1.5 million firearms. Only owners are licensed, not weapons, so there is no monitoring of how many weapons a person may possess. This loophole must be plugged right now in the wake of the dastardly attack on a mosque which has left 50 dead! Buying hand guns and certain semi-automatic rifles requires a special permit. It is recommended that no person from now onwards should be allowed more than one gun and here too there must be proper and strict police verification. It is also recommended that vehicles should be checked at various points to ensure that no person is carrying gun especially at religious shrines and other important places.

Australia

1. Must join and regularly attend a hunting or shooting club, or be a collector.

2. Course on firearm safety and operation, written test and practical assessment.

3. Storage that meets safety regulations.

4. A review of criminal history, domestic violence, restraining orders and arrest history, with possible interviews of family and community members.

5. Specific permits for specific types of weapons; wait is of at least 28 days.

No doubt, these laws are some of the toughest in the world. Countries like New Zealand must emulate them to ensure that no person is ever able to carry out such ghastly attack so easily! Here it must be revealed that Australia had introduced them after a lone gunman killed 35 people in Port Arthur in 1996 using a semi-automatic AR-15 (the same weapon that was used in Christchurch), Reuters reported. Australia had banned semi-automatics, launched a gun amnesty in which tens of thousands of weapons were handed in and made it much tougher to own them. Gun owners must provide a valid reason for owning a weapon and gun clubs must inform the authorities of inactive members.

United States

1. Background check for criminal convictions, domestic violence and immigration status.

2. Many US states have additional buying restrictions, including waiting periods and expanded background checks.

3. Where these waiting periods do not apply, an application may be cleared in days. Roughly a third of American gun owners buy guns without a background check, which federal law does not require when buying directly from a private seller. This loophole must be checked forthwith. There must be a proper background check. It is because of such loopholes that we keep listening in news that gun attacks keep happening regularly in USA.

4. Fugitives, those convicted of a felony with a sentence exceeding 1 year, past or present and those who were involuntarily admitted to a mental facility are prohibited from purchasing a firearm unless rights restored.

5. Forty-four states have a provision in their state constitutions similar to the Second Amendment to the United States Constitution, which protects the right to keep and bear arms. The exceptions are California, Iowa, Maryland, Minnesota, New Jersey and New York. In New York, however, it must be stated that the statutory civil rights laws contain a provision virtually identical to the Second Amendment.

6. Additionally, the US Supreme Court held in McDonald v. City of Chicago (2010) that the protections of the Second Amendment to keep and bear arms for self-defense in one’s home apply against state governments and their political subdivisions.

7. More recently, the Ninth Circuit Court ruled in its 2016 decision titled Peruta v. San Diego County that the Second Amendment does not guarantee the right of gun owners to carry concealed firearms in public.

Japan

1. A firearms class and a written exam, held up to three times a year.

2. A doctor’s certificate of mental fitness and absence of a history of drug abuse. It is a commendable provision.

3. Firing training (permission for undertaking this course may take up to a month). One-day training class, with a firing test has to be cleared.

4. Interview with police, whom applicant must convince why he or she needs a gun. This again is very commendable and every country must emulate it.

5. Review of criminal history, gun possession record, employment, even personal debt and relationships with friends, family and neighbours.

6. Application for gunpowder permit.

7. Certificate from a dealer describing gun.

8. Hunting licence (if hunting is purpose).

9. Gun safe and ammunition locker that meet regulations, to be inspected by police.

10. An additional background review.

Russia

1. Hunting licence, or reasons why gun needed for self-defence which is commendable.

2. A test of relevant laws, handling, first aid skills.

3. A doctor’s note certifying absence of mental illness or drug history which is again very commendable.

4. All the above before application. After applying, a background check which again is commendable.

China

1. Reasons to possess a firearm.

2. Storage at gun range, remote hunting ground or pastoral area.

3. Demonstration of knowledge of safe gun use and storage.

4. A background check of mental illness, criminal record and domestic violence.

5. In China, most civilians are prohibited from keeping guns inside their homes. This is the most commendable provision and it must be emulated in countries like New Zealand and USA where incidents of violence and misuse of guns is increasing!

United Kingdom (UK)

1. In the UK, access by the general public to firearms is tightly controlled by law which is much more restrictive than the minimum rules required by the European Firearms Directive, but it is less restrictive in Northern Ireland. All countries must emulate UK.

2. No wonder that UK has one of the lowest ratews of gun homicides in the world.

3. Members of the public may own sporting rifles and shotguns, subject to licensing, but handguns were effectively banned after the Dunblane school massacre in 1996 with the exception of Northern Ireland.

Ukraine

1. Ukraine is the only country in Europe where firearms are not regulated by statute.

2. Citizens are permitted to own non-fully automatic rifles and shotguns as long as they are stored properly when not in use.

3. Handguns are illegal except for target shooting and those who hold concealed carry permits.

4. A citizen may be issued a firearms license if that person:

(i) is 25 years of age for rifle ownership, 21 years of age for smoothbore weapon ownership, 18 years of age for cold or pneumatic weapon ownership;

(ii) has no criminal record;

(iii) has no history of domestic violence;

(iv) has no mental illness or history of mental illness;

(v) has a good reason (target shooting, hunting, collection).

5. Gun owners are required by Order to renew their licenses and registration of their guns every three years. Failure to comply will result in revocation as well as confiscation of guns.

6. Concealed carry licenses are available but are not normally issued unless a threat to life is present and can be proven.

Israel

1. In 2018, Israel significantly loosened firearms restrictions, allowing all citizens who had undergone combat training and qualified in Advanced Infantry Training (Rifleman 07) to apply for a private handgun licence.

2. Prior to 2018, only a small group of people were eligible for firearm licenses: certain military personnel, police officers or prison guards; residents of settlements (in the West Bank and the Golan Heights) or those who often work in such towns and licensed hunters and animal control officers.

3. Age requirements vary. It is 21 for those who completed military service or civil service equivalent, 27 otherwise and 45 for non-citizens.

4. Firearm license applicants must have been a resident of Israel for at least three consecutive years.

5. Background check (criminal, health and mental history) should be passed.

6. Applicant should establish a genuine reason for possessing a firearm (such as self-defense, hunting or sport).

7. A weapons-training course should be passed.

8. Those holding firearm licenses must renew them and pass a shooting course every three years.

Kuwait

1. Kuwait has strict firearms laws.

2. Hunting shotguns are the most commonly licensed weapons.

3. Handguns are only allowed for VIPs.

4. Automatic rifles and machine guns are not legally permitted for civilian possession.

Lebanon

1. Ownership of any firearm other than handguns, hunting arms and antiques is illegal and only the latter two are permitted to leave the owner’s home.

2. Disregard for this law is prevalent.

3. Lebanon does not officially grant the right to bear arms, but it is a firmly held cultural belief in the country.

4. Firearms licenses are granted to certain individuals but the test is not open to the public and requires a particular need to be demonstrated.

5. Gun control has been largely unsuccessful due to a historic gun culture and a lack of effective central government control or authority over many parts of the country.

Malaysia

1. Malaysia has strict gun laws.

2. The Arms Act (1960) requires the citizens of Malaysia to have a license for manufacture, import, export, repair or ownership of firearms.

3. A firearm license can only be granted by the Chief Police Officer of a state.

4. Discharging in crimes such as extortion, robbery, resisting arrest and house-breaking is punished by the death penalty.

5. Exhibiting a firearm for any of the scheduled offences (without discharging) carries a penalty of life imprisonment and caning of not less than six strokes.

6. Possession of unlawful firearms carries a sentence of up to fourteen years in prison and caning.

7. While the general public cannot obtain a gun through legal means but a black market for guns does exist.

North Korea

1. Firearms cannot be easily acquired.

2. In 2009, North Korea enacted a new law strictly regulating firearms.

Pakistan

1. It is very easy to acquire gun.

2. It has permissive firearms laws compared to the rest of South Asia.

3. It has the sixth highest number of privately owned guns in the world.

4. The law in Pakistan does not stipulate that a gun license should be denied or revoked.

5. Gun culture is strong in Pakistan.

6. A license permits ownership of any number of weapons including handguns of any size and fully automatic weapons.

Philippines

1. It has generally strict gun laws, though liberal in comparison to other Asia-Pacific countries.

2. Gun control became notorious in 1972 during presidency of Ferdinand Marcos who implemented a near-prohibition of all civilian guns.

3. Applicants must be of a minimum age of 21 years and have no history of criminal activity or domestic violence.

4. License-holders may carry handguns in public with the acquisition of a Permit to Carry (PTC), which are granted on a may-issue basis.

5. Applicants must demonstrate a need for a PTC like an imminent threat of danger.

6. PTCs are typically granted to lawyers, accountants, media practitioners, cashiers, bank tellers, priests, ministers, rabbis, imams, physicians, nurses or engineers.

7. Inspite of strict laws, gun culture is strong.

Kenya

1. Gun law in Kenya is specified in the Firearms Act (Cap. 114) laws of Kenya.

2. The Chief Licensing Officer (CLO) has discretion to award, deny or revoke firearms licenses.

3. Applicants must be 21 years of age or older, pass a stringent background check for criminal activity, mental health and domestic violence and state bona fide reasons for their need to privately own and carry a firearm.

4. Checks are regularly repeated with failure to pass resulting in immediate revocation of the license.

5. Once licensed to own a gun, no additional permit is required to carry a concealed firearm.

South Africa

1. To apply for a firearm license in South Africa, the applicants must pass a competency test covering the specific type of firearm you are applying a license for and a test on the South African firearm laws.

2. Once these tests are passed then the applicant need to apply for a competency certificate where the South African Police Service will perform a background check and an inspection of the premises where the firearm will be stored.

3. After both the tests are passed and the certificates are awarded the applicant can then apply for a firearm license in the categories ranging from self-defence to professional training.

4. Different license categories have different restrictions as for instance the amount of ammunition that the owner may hold.

Argentina

1. Firearms in Argentina are restricted and regulated by ANMaC (Agencia Nacional de Materiales Controlados) since late October 2015 when said agency replaced RENAR (Registro Nacional de Armas de la Republica Argentina), both being a branch of the Ministry of Justice and Human Rights.

2. To own a firearm in Argentina, one must be a legitimate user.

3. Applicant must be 21 years of age or older, provide a medical certificate that certifies they are physically and mentally fit, complete a safety course, provide a legitimate means of income and undergo and pass a background check.

4. A successful applicant is fingerprinted and issued a license which has to be renewed every five years.

5. One may not legally fire a firearm in Argentina if they are not a legitimate user, even if that gun belongs to someone else.

6. Once a legitimate user wants to purchase a firearm, they must provide a secure location to store the firearm(s), and give an acceptable reason for wanting a firearm – such as collecting, target shooting, hunting, business or self-defense in the home.

7. Firearms must be purchased through a licensed dealer and registered with ANMaC.

8. If a firearm is inherited, a re-registering form must be filed.

9. There is no limit on the number of firearms owned so long as they are properly stored.

10. Handguns above .32 calibre are conditional-use; fully automatic handguns are prohibited to civilians.

Brazil

1. All firearms in Brazil are required to be registered.

2. The minimum age for ownership is 25.

3. Certificates of aptitude and mental health are required prior to the acquisition of a firearm and every three years thereafter.

4. It is generally illegal to carry a firearm outside a residence.

5. Executive Order No. 5.123 of 1 July 2004 allows the Federal Police to confiscate firearms which are not possessed for a valid reason.

6. Self-defense is not considered a valid argument.

Mexico

1. Under the Mexican Constitution, citizens and legal residents have the right to own arms, but may only carry them in accordance with police regulation.

2. Applicants must have a clear criminal record and proven income and residence thereby clearly implying that they cannot be homeless.

3. New firearms are purchased through the Ministry of Defense.

4. Prohibited weapons include large-calibre handguns, shotguns with barrels shorter than 25 inches (640 mm) or bore greater than 12 gauge and rifles which are fully automatic or of large caliber.

5. One handgun is permitted for home defense.

6. Collectors may be authorized to possess additional and prohibited weapons.

7. A carry license may be issued to those employed by private security firms or those who may be targets of crime.

Indonesia

1. Indonesia has generally strict gun laws.

2. Licenses are normally only issued to civilians employed in a profession that involves firearms such as military and law enforcement, with an exception for politicians and businessmen.

3. Applicants must be of a minimum age of 21 years to obtain a firearms license and go through a very thorough background check and mental evaluation.

4. They must also state a bona fide reason for wanting to own a firearm, which would include hunting, target shooting, collecting security and self-defense.

5. All firearms must be registered.

6. Gun permits are valid for five years and may be renewed.

7. Civilians cannot possess military weapons, but may possess long rifles.

8. Handguns can be used only for sport shooting and hunting.

Thailand

1. A firearm license in Thailand is granted only for self-defense, property protection, hunting or sporting use.

2. Applicants for a firearms license must be at least 20 years of age, have a record of good behavior, have an occupation and receive income and have a permanent address in Thailand with a name “listed in the house registration specifically in the area where the applicants are applying for a license for at least six months.

3. A license may not be issued to anyone who is a repeat offender or mentally unstable.

4. Since October 2017 citizenship is required to purchase and use firearms.

5. Fully automatic firearms and explosive devices are prohibited.

India

1. Guns in India are strictly regulated by law.

2. The Arms Act, 1959 and the Arm Rules 1962 prohibit the sale, manufacture, possession, acquisition, import, export and transport of firearms and ammunition unless under a license which is difficult to obtain.

3. Licenses are valid for three years and may be renewed.

4. The Arms Act classifies firearms into two categories: Prohibited Bore (PB) and Non-Prohibited Bore (NPB) where all semi-automatic and fully automatic firearms fall under the Prohibited Bore category.

5. The Indian Government has a monopoly over the production and sale of firearms with the exception of some breech-loading smooth-bore shotguns of which a limited number may be produced and imported.

6. The criteria considered during issue of NPB firearm permits are whether the applicant faces a threat to their life. PB firearms criteria are more stringent and are often for persons in government positions who face immediate danger or threats and for those whose occupation involves open threats and dangers and family members of such people.

All said and done, all nations must make more stricter laws for not just buying a gun but also for keeping them. Also, those who have guns must be made to undergo compulsory thorough scrutiny and police verification. They must be made to go through medical tests and also under no circumstances should any person have more gun than one. Those who are repeated offenders should not be allowed to keep guns. Ammunition also must not be unlimited. Police must check this on regular basis. Those who are found violating the rules must be made to pay a heavy penalty and also sentenced to jail for at least five years! All this will certainly go a long way in ensuring that the dastardly killing of innocents by those who have weapons are checked to a large extent! There must be mandatory, proper and strict checking of all vehicles and all persons at all religious places at various points so that innocent devotees are never again killed in the dastardly, ghastly and cowardly manner in which we recently saw in two mosques in Christchurch in New Zealand which shook the whole world! Above all, gun laws must be made more stricter and those who have guns must be thoroughly made to undergo suitable test and proper police verification and held duly accountable! Those who are either mentally unstable or have a past criminal record must not be allowed to keep gun!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Finally India Now Has Lokpal In Place As Anti-Graft Body

It has been a long and gruelling wait for Lokpal to finally come in place as an anti-graft body. On March 19, Justice Pinaki Chandra Ghosh who is a former Supreme Court Judge and former Chief Justice of Andhra Pradesh High Court who retired in May 2017 and a current member of the National Human Rights Commission (NHRC) was appointed as India’s first Lokpal after President Ram Nath Kovind administered the oath of office to Justice Pinaki as the country’s first Lokpal. Earlier we saw how President Kovind had nominated former Attorney General of India Mukul Rohatgi as “eminent jurist” as member of the panel to select Lokpal against the vacancy arising following the death of senior advocate PP Rao. The Lokpal Selection Committee was headed by the Prime Minister and had as its members – Lok Sabha Speaker, Leader of the Opposition in the Lower House, Chief Justice of India and an eminent jurist nominated by President. A Judge of the top court nominated by the Chief Justice of India or any other member can also be selected to be a part of Lokpal Selection Committee.

To put things in perspective, all eight newly-appointed members of anti-corruption ombudsman Lokpal on March 27 took the oath of office. They were administered the oath by Lokpal chairperson Justice Pinaki Chandra Ghose. Former Chief Justices of different High Courts – Justices Dilip Babasaheb Bhosale of Allahabad High Court, Pradip Kumar Mohanty of Jharkhand High Court, Abhilasha Kumari of Manipur High Court and Ajay Kumar Tripathi of Chhattisgarh High Court took oath as judicial members in the Lokpal. Also, first former woman chief of Sashastra Seema Bal (SSB) Archana Ramasundaram, ex-Maharashtra Chief Secretary Dinesh Kumar Jain, former IRS officer Mahender Singh and Gujarat cadre ex-IAS officer Indrajeet Prasad Gautam were sworn in as the Lokpal’s non-judicial members.

In retrospect, we all saw earlier how way back in 2011 the social reformer Anna Hazare had crusaded for getting this law enacted and many eminent individuals from different walks of life joined him though most of them had a political agenda to fulfil unlike Anna who had no political aspirations to realize! But the overall objective was good that there must be an effective anti-graft body in place in India. There can be no denying it!

Simply put, it was in January 2011 that the government formed a Group of Ministers to suggest measures to tackle corruption. Also, the Group of Ministers were entrusted with the onerous task of examination of the proposal of a Lokpal Bill due to relentless agitation by Anna Hazare. In July 2011, the Union Cabinet approved the Lokpal Bill and both Houses of the country passed it in December 2013.

Needless to say, the Lokpal and Lokayuktas Act, 2013 came into being on January 1, 2014. Both UPA and NDA came on one platform to supports its passage as any opposition to it would send a wrong signal among the people which no party can afford but dilly-dallying on one ground or the other saw it being kept in abeyance for a long period of more than five years and it was only after the incumbent CJI Tarun Gogoi intervened and repeatedly sent signals to Centre that this institution of Lokpal could finally see the light of the day! Parliament has certainly not covered itself with glory by ensuring the excruciatingly slow progress of Lokpal institution since the last more than five years!

It may be recalled that it was way back in 1966 that the historic recommendation for a Lokpal at the Centre was first made by the Administrative Reforms Committee of 1966. It had recommended two independent authorities – one at the Centre and one at the State level to probe complaints against State functionaries including MPs. The idea of a Lokpal as Ombudsman first came up in Parliament in 1963 during a discussion on budget allocation for the Law Ministry and it was LM Singhvi who first coined it in 1962. It is now after 56 years that we finally now have a Lokpal in place! This is terrible!

According to Professional Referral Source (PRS) legislative research, the Lokpal Bill has been introduced eight times in the Lok Sabha in 1968, 1971, 1977, 1985, 1989, 1996, 1998 and 2001. It would be vital to mention here that each time the Lok Sabha was dissolved before the Bill’s passage could be ensured except in 1985 when it was withdrawn. Also, it must be borne in mind that several commissions including the First Administrative Reforms Commission of 1966 as mentioned above, the National Commission to Review the Working of the Constitution of 2002 and the Second Administrative Reforms Commission of 2007 recommended the constitution of Lokpal. According to PRS Legislative Research which is an Indian non-profit organization, Sweden which was first country to have a Lokpal along with Finland, Denmark, the Netherlands, Austria, Portugal, Spain, New Zealand, Burkina Faso and the United Kingdom are some of the countries which have the office of an ombudsman that is Lokpal.

To be sure, it must be mentioned here that the Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or has been Prime Minister, or a Minister in the Union Government, or a Member of Parliament, as well as officials of the Union Government under Groups A, B, C and D. Also, it must be mentioned that chairpersons, members, officers and directors of any board, corporation, society, trust or autonomous body either established by an Act of Parliament or wholly or partly funded by the Centre are also covered. Not stopping here, it also covers any society or trust or body that receives foreign contribution above Rs 10 lakh.

What’s more, the Lokpal Act, which stipulates appointment of a Lokpal at the Centre and Lokayuktas in the States to look into cases of corruption against certain categories of public servants was passed in 2013. It is worth noting that according to the rules, not less than 50 percent of the members of the Lokpal panel shall be from amongst the persons belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women. Also, upon selection, the chairperson and members shall hold office for a term of five years or till they attain 70 years of age.

It would be imperative to mention here that the Lokpal cannot inquire into any corruption charge against the Prime Minister if the allegations are pertaining to international relations, external and internal security, public order, atomic energy and space, unless a full Bench of the Lokpal, comprising of its chairperson and all members, considers the initiation of a probe and then at least two-thirds of the members approve it also. It is good that such a hearing should be held in camera but it is quite baffling to note that if the complaint is dismissed, the records shall not be published or made available to anyone. How can this be justified? Why can’t there be more transparency? Why this hush hush? Is there something to hide?

Interestingly enough, a preliminary inquiry should be completed within 30 days of receiving a complaint. The period can be extended to a further three months. It must be mentioned that a full inquiry has to be completed within six months which is extendable by another six months. It must be also mentioned that trial should be completed within a year of filing the case and the time period can be extended to a maximum of two years. It is commendable that a Lokpal does not need prior sanction from the government to investigate a complaint.

More crucially, a complaint under the Lokpal Act should be made in the prescribed form and must be pertaining to an offence under the Prevention of Corruption Act against a public servant. Also, there is no restriction on who can make such a complaint. When a complaint is received, the Lokpal may after examining it order a preliminary inquiry by its Inquiry Wing, or refer it for investigation by any agency, including the CBI, if there is a prima facie case found.

Be it noted, before the Lokpal orders an investigation by the agency, the Lokpal is mandated to call for an explanation from the public servant to determine whether a prima facie case exists that can be pursued. The Act makes it clear that this provision will not interfere with any search and seizure that may be undertaken by the investigating agency. The Lokpal may refer the complaints pertaining to the Central Government servants to the Central Vigilance Commission (CVC). The CVC will then send a report of the Lokpal regarding officials falling under Groups A and B and proceed as per the CVC Act against those in Groups C and D.

Now let us turn to the procedure for preliminary inquiry. The Inquiry Wing or any other agency will have to ensure completing its preliminary inquiry and submitting a report to the Lokpal within 60 days. Before submitting its report, it has to seek comments from both the public servant and the competent authority. Also, there will be a competent authority for each category of public servant. As for instance, for the Prime Minister, it is the Lok Sabha and for other Ministers, it will be the Prime Minister and for department officials, it will be the Minister concerned.

Going forward, a Lokpal Bench comprising of not less than three members shall consider the preliminary inquiry report, and after giving an opportunity to the public servant shall decide whether it should proceed with the investigation. It can order either a full investigation, or initiate departmental proceedings or close the proceedings. It is also empowered to proceed against the complainant if the allegation is false. The preliminary inquiry should normally be completed within 90 days of the receipt of the complaint.

It must be disclosed here that the agency ordered to conduct the probe has to file its investigation report in the court of appropriate jurisdiction and a copy before the Lokpal. A Bench of at least three members will consider the report and after considering it may then grant sanction to the Prosecution Wing to proceed against the public servant based on the agency’s chargesheet. It may also ask the competent authority to take departmental action or direct the closure of the report.

Earlier, the authority vested with the power to appoint or dismiss a public servant was the one to grant sanction under Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act. But now this power will be wielded by the Lokpal which is a judicial body and will have to seek the comments of the ‘Competent authority’ as envisaged in Section 24 as well as the public servant’s comments before granting such sanction.

All said and done, finally now India has in place a Lokpal as the anti-graft body to check and combat corruption which is certainly a great milestone and was due since a long time! But it would be premature to rush to any conclusions soon. We have to see now effectively it functions and what all roadblocks its faces in its functioning! One truly hopes that the Lokpal will be able to meet the high expectations of the people and function effectively for which it has been constituted! Some shortcomings must be revisited like Lokpal must have power to deal with not just public servants who come within the purview of the Union as we see right now but also broadened to include in its ambit the public servants in the states also! It must be ensured by Lokpal that all Lokayuktas are appointed in all States and there is no vacancy in any State on any ground whatsoever!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Adding Additional Accused: To Invoke Section 319 CrPC Stronger Evidence Than Mere Probability Of Complicity Of A Person Required: SC

It would be imperative to mention right at the outset that in a significant pronouncement, the Supreme Court just recently on March 15, 2019 in Sugreev Kumar v. State of Punjab & Ors in Criminal Appeal No. 509 of 2019 (Arising out of SLP (Cri.) No. 9687 of 2018 has unequivocally reiterated that to add a person as additional accused under Section 319 of the Code of Criminal Procedure, stronger evidence is required than mere probability of complicity of that person. This notable and commendable judgment authored by Justice Dinesh Maheshwari for himself and Justice Abhay Manohar Sapre while setting aside an order of the Punjab and Haryana High Court unambiguously observed that while invoking Section 319 CrPC should not proceed as if an infallible case is required to be shown by the prosecution in order to proceed against the proposed accused persons. Very rightly so!

While leave is granted in para 1, we then see that para 2 brings out that, “In this appeal, the complainant-appellant has called in question the judgment and order dated 02.07.2018 in Criminal Revision Application No. 2626 of 2014 whereby, the High Court of Punjab and Haryana at Chandigarh, has upheld the order dated 24.07.2014 as passed by the Additional Sessions Judge, Fazilka in S.C. No. 9 of 14.01.2014 on an application filed under Section 319 of the Code of Criminal Procedure (‘crPC’) seeking summoning of additional accused persons to stand the trial.”

As things stand, para 2.1 then brings out that, “The sessions case aforesaid is pending trial for the offences under Sections 302, 307, 341, 34 of the Indian Penal Code (‘IPC’) and Sections 25, 54 and 59 of the Arms Act. By the said order dated 24.07.2014 on the application under Section 319 CrPC, the Trial Court, while partly granting the prayer of the prosecution to summon one of the accused Sonu son of Jaipal to face the trial, has dismissed the prayer for summoning the other 7 persons namely, Krishan Dev, Vikash son of Krishan Dev, Rajan, Mukesh @ Jungli, Devinder @ Veeru, Surinder Mahal and Prithvi Raj.”

In hindsight, it is then observed in para 3 that, “The background aspects, so far relevant for the present purpose, could be noticed, in brief, as follows:

3.1 The prosecution case is that on 29.08.2013, the appellant accompanied by his father, brother and other associates, proceeded to reclaim possession of their land from the erstwhile tenants in compliance with the directions issued by the Court of Assistant Collector Grade-1, than on reaching the site at about 3:30 p.m., they found that the concerned revenue officers were not present and while they were making their way back to the village in search of the revenue officers, 3-4 cars intercepted them and about 10-12 persons emerged from the said vehicles, some of them being the alleged tenants, who were armed with pistols, rifles, swords, dangs, sotas and 12 bore gun; and that after a heated exchange of words, the appellant, his family members and their associates were attacked by the accused which resulted in the demise of the appellant’s father and brother while the others sustained varying injuries with the appellant receiving three bullet injuries.

3.2 For the incident in question, FIR came to be filed against 11 persons for the offences under Sections 302, 307, 341, 148 and 149 IPC as also Sections 27, 54 and 59 of the Arms Act. However, after investigation, only 3 persons, namely, Vikram Gilla, Gurmit Singh and Sunil Kumar, were charge-sheeted.

3.3 In trial, the appellant was examined by the prosecution as PW-1, who asserted in relation to the incident in question, inter alia, as under:-

“…… After alighting from the car Vikas raised Alarm that they be taught lesson for taking possession of their land. Then Vikram fired from his rifle on my father which hit him. Then my brother Sandeep alighted from the Jeep and Vikram with his rifle fired two shots at him which hit on the left side of his chest and waist. Krishan again raised Lalkara and instigated Sonu why are you standing and asked him to kill all sons of Hanuman. Then Sonu fired three shots from, his revolver out of which two fires on my chest near the heart and one near the left shoulder. Vikram again fired shot from his gun on my father which hit him on his waist. Then allthe accused started indiscriminating firing with their revolver, 12 bore gun and pistols and the fires hit with the vehicles. Mahi Ram, Budh Ram, my father and Sham Lal our servant. Thereafter we raised Raula of MAR DITTA MAR DITTA. Then accused tried to run away on their vehicles but Innova did not start and they left the Innova then along with 12 bore rifle and ran away from the spot in another vehicles….(sic)”

3.4 In his cross-examination, the appellant deposed that Krishan Dev, Vikas, Sonu, Rajan, Mukesh @ Jungli, Devinder @ Veeru, Surinder Mahal and Pirthi Raj were declared innocent after investigation by the police, but volunteered to state that they were wrongly declared innocent.

3.5 Pending further cross-examination of the appellant, an application under Section 319 CrPC was filed by the prosecution to summon the aforesaid 8 persons to face trial on the basis of the testimony of the appellant (PW-1), wherein, he had asserted that all of them were present at the crime scene; and had assaulted and injured the applicant, his family members and associates on exhortation by Krishan Dev which resulted in the demise of his father and brother. Hence, it was submitted that there was sufficient material on record to summon all the aforesaid persons to face the trial in this case.”

To be sure, it is then pointed out in para 4 that, “In its impugned order dated 24.07.2014, the Trial Court referred to certain inconsistencies in the testimony of the appellant as compared to his statement under Section 161 CrPC and the FIR; and found no case for summoning 7 of the aforesaid persons but considered it just and proper to summon Sonu son of Jaipal, who had allegedly fired three shots from his firearm, which hit the appellant.”

As it turned out, it is then disclosed in para 5 that, “Against the order aforesaid, the appellant filed a criminal revision petition, being CRR No. 2626 of 2014, before the High Court of Punjab and Haryana at Chandigarh which was dismissed by the impugned order dated 02.07.2018. It is mentioned in paragraph 4 of the order impugned that the learned counsel for the petitioner had confined the relief only qua the respondent Nos. 2 and 3, Krishan Dev and Vikas son of Krishan Dev. The High Court upheld the order of the Trial Court while observing as under:

“11. In this case, statements of complainant and witnesses is same, which were recorded by the police during investigation. Learned trial Court has observed in its order that Vikas was attributed lalkara to the effect that complainant party be taught lesson for taking possession of the disputed land while Sugreev (PW) had admitted in his cross-examination that possession of the disputed land had not yet been taken by them. This shows that respondents, Krishna Dev and Vikas were arrayed as accused because of enmity between the parties and the police during investigation had collected the evidence which prove that both these respondents were far away from the place of occurrence.

12. Hon’ble Apex Court in the case Brijendra Singh (supra) has observed that for summoning the additional accused under Section 319 Cr.P.C. degree of satisfaction is much stricter. Power under Section 319 Cr.P.C. is discretionary and extraordinary power which is to be exercised sparingly and only in those cases where circumstances of the case so warrants and strong and cogent evidence occurs against a person from the evidence led before the Court and not in a casual and cavalier manner. …….”

As anticipated, para 6 then envisages that, “Assailing the order aforesaid, the learned counsel for the appellant has strenuously argued that the High Court as also the Trial Court have failed to consider the fact that respondent No. 2 Krishan Dev and respondent No. 3 Vikas are the main perpetrators of the crime; and had planned everything in advance for executing the crime and to escape from the law. Learned counsel would submit that the exhortation (lalkara) was a previously planned one as the possession of the land was to be handed over to the appellant and his family members; that the Innova car, which is registered in the name of respondent No. 2, was recovered from the scene of the crime; and that the report submitted by the police is based on the statement of witnesses at the instance of the respondents Nos. 2 and 3, where some of them are related to respondent No. 2 and while the others are his acquaintances. Learned counsel would submit that with the evidence available on record, a clear case for proceeding against the aforesaid persons alongwith the charge-sheeted accused is made out. Learned counsel for the appellant has referred to and relied upon the decisions in Hardeep Singh v. State of Punjab : (2014) 3 SCC 92 and Brijendra Singh & Ors. V. State of Rajasthan : (2017) 7 SCC 706.”

On the contrary, it is then brought out in para 7 that, “Per contra, learned counsel for the respondents have duly supported the orders impugned and have submitted that no case for interference is made out as the Court under Section 319 of CrPC are to be exercised sparingly and, in this case, the Trial Court and the High Court, after having thoroughly examined the record, found no substance in the application so moved. More specifically, learned counsel for respondent No. 6 has pointed out that before the High Court, the appellant had given up the challenge qua this respondent. Learned counsel would submit that the impugned order has been passed after due consideration of the material on record; that his name was neither reflected in the FIR nor in the statement under Section 161 CrPC; that after police investigation, nothing incriminating was found against him and even the Trial Court has found no cogent evidence against him.”

Furthermore, para 8 then stipulates that, “During the course of submissions, it has been pointed out that since after passing of the orders impugned, further evidence of the prosecution was recorded in the trial and thereafter another application under Section 319 CrPC was moved for summoning of the aforesaid 7 persons but the same was also rejected by the Trial Court on 28.09.2018. It has also been submitted that practically, the entire prosecution evidence in the matter is over.”

To put it succinctly, the Bench then held in para 9 that, “Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the disposal of applications moved in this matter under Section 319 CrPC cannot be approved; and in the given set of facts and circumstances, it appears just and proper that the Trial Court should re-examine the entire matter with reference to the principles applicable to the case, in order to take a decision afresh as to whether the persons above-named or any of them deserve to be tried together with the other accused persons.”

While encapsulating the purpose behind Section 319 of CrPC, the Bench then underscores in para 10 that, “It remains trite that the provisions contained in Section 319 CrPC are to achieve the objective that the real culprit should not get away unpunished. By virtue of these provisions, the Court is empowered to proceed against any person not shown as an accused, if it appears from evidence that such person has committed any offence for which, he could be tried together with the other accused persons. In Hardeep Singh (supra), the Constitution Bench of this Court has explained the purpose behind this provision, inter alia, in the following:

“12. Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur cum nocens absolvitur (judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon of light while explaining the ambit and the spirit underlying the enactment of Section 319 Code of Criminal Procedure.

13. It is the duty of the court to do justice by punishing the real culprit. Where the investigation agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?

*** *** ***

19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.”

What’s more, it is then significantly laid down in para 11 that, “As regards the degree of satisfaction required for invoking the powers under Section 319 CrPC, the Constitution Bench has laid down the principles as follows:

“95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

*** *** ***

105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sesssions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction in the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. InSection 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused.” The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused”.”

Simply put, is then noted in para 12 that, “Thus, the provisions contained in Section 319 CrPC sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prima facie opinion which is to be formed for exercise of this power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.”

It is a no-brainer that the Bench then held in para 13 that, “While applying the above-mentioned principles to the facts of the present case, we are of the view that the consideration of the application under Section 319 CrPC in the orders impugned had been as if the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the Trial Court and the High Court have proceeded as if an infallible case was required to be shown by the prosecution in order to proceed against the proposed accused persons. That had clearly been an erroneous approach towards the prayer for proceeding against a person with reference to the evidence available on record.”

Be it noted, para 14 then states that, “The appellant (PW-1) has made the statement assigning specific roles to the proposed accused persons. At this stage of consideration of the application under Section 319 CrPC, of course, the Trial Court was to look at something more than a prima facie case but could not have gone to the extent of enquiring as to whether the matter would ultimately result in conviction of the proposed accused persons.” Para 15 then further states that, “The other application moved by the prosecution after leading of further evidence in the matter has been rejected by the Trial Court essentially with reference to the impugned orders dated 24.07.2014 and 02.07.2018, which are the subject matter of challenge in this appeal.”

Suffice it to say, para 16 then sums up by saying that, “In the totality of the circumstances of this case, rather than dilating further on the evidence, suffice it would be to observe for the present purpose that the prayer of the prosecution for proceeding against other accused persons, having not been examined in the proper prospective and with due regard to the applicable principles, deserves to be restored for reconsideration of the Trial Court.”

Finally and perhaps most importantly, it is then held in the last para 17 that, “Accordingly, this appeal is allowed in part, to the extent and in the manner that the impugned orders are set aside and the applications made by the prosecution under Section 319 CrPC are restored for reconsideration of the Trial Court. In the interest of justice, it is made clear that we have not pronounced on the merits of the case either way and it would be expected of the Trial Court to reconsider the prayer of prosecution for proceeding against the proposed accused persons totally uninfluenced by any observation herein regarding facts of the case but with due regard to the evidence on record and to the law applicable.”

All said and done, it is a must read judgment which makes the position on Section 319 CrPC very clear. It specifies clearly and convincingly that a person can be added as an additional accused only when there is strong and cogent evidence and mere probability of complicity of that person is not enough to add him as accused. Thus now there is no unambiguity and no uncertainty left on this as to the test that has to be applied while considering an application to add a person as an additional accused for which the Apex Court Bench comprising of Justice Dinesh Maheshwari and Justice Abhay Manohar Sapre have to be appreciated and applauded for delivering such a landmark and laudable judgment so elegantly!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

P&H HC Directs Protection Of Honest Officers While Setting Aside CM’s Remarks On Khemka

In a major development, the Punjab and Haryana High Court in a latest, landmark and laudable judgment titled Dr. Ashok Khemka Versus State of Haryana and others in CWP-317-2019 (O&M) delivered on March 18, 2019 has very clearly and convincingly not just upheld the integrity of eminent IAS officer of 1991 batch – Dr Ashok Khemka known all over India who because of his upright and impeccable credentials has emerged as an eyesore for politicians of all hues but also very rightly expunged Haryana Chief Minister ML Khattar adverse remarks in his Personal Appraisal Report (PAR). Every honest and upright person will be most happy to learn about this! There can be no denying or disputing it!

Not just stopping here, the two Judge Bench of Punjab and Haryana High Court comprising of Justice Rajiv Sharma and Justice Kuldip Singh also observed without mincing any words that, “Since number of such officers whose integrity is beyond doubt and who have professional integrity of higher standard is depleting very fast, therefore, they need protection from being damaged by recording adverse remarks against the record.” Absolutely right! This landmark judgment authored by Justice Kuldip Singh for himself and Justice Rajiv Sharma made the above mentioned observation while deciding Dr Khemka’s appeal which he had filed against an order of the Central Administrative Tribunal (CAT) which had rejected “in toto” his application for expunging remarks made by Manohar Lal Khattar as the accepting authority and restoration of a grade of 9.92 as awarded by Cabinet Minister Anil Vij in his PAR for the period from April 8, 2016 to March 31, 2017, when he served as the Principal Secretary to Government of Haryana, Science and Techno logy Department.

There can be no gainsaying the irrefutable fact that Dr Ashok Khemka who is a 1991 batch IAS officer shot into limelight in 2012 for cancelling the mutation of a land deal between Congress President Rahul Gandhi’s brother-in-law Robert Vadra and DLF. In a career spanning 21 years, the 52-year-old Dr Ashok Khemka has been transferred 52 times! Can on earth there be anything more unfortunate than this that an IAS officer whom none other than Punjab and Haryana High Court has hailed as an “honest and upright officer” was subjected to repeated transfers and harassed and humiliated in a way which under no circumstances can ever be justified by any upright person?

First and foremost, this extremely commendable and noteworthy judgment sets the ball rolling by observing that, “Petitioner-Dr Ashok Khemka, who is an Indian Administrative Services (IAS) Officer and holding the rank of Principal Secretary to Government of Haryana, has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India for quashing of the impugned order dated 31.12.2018 (Annexure P-1) passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short ‘the Tribunal’). Petitioner has also prayed for expunging the adverse remarks and over all grading given by Accepting Authority under Section V-Acceptance of the PAR for the period from 8.4.2016 to 31.3.2017 (Annexure P-2) while restoring the overall grade of 9.92 as given by the Reviewing Authority.”

To recapitulate, it is then pointed out that, “Brief facts of the case are that applicant-petitioner is 1991 batch Indian Administrative Services Officer (IAS), presently posted as Principal Secretary, Department of Sports, Government of Haryana. Under All India Services (Performance Appraisal Report), Rule 2007 (for short the AIS (PAR) Rules, 2007, the Performance Appraisal Report (for short ‘the PAR’) is written for every member of All India Services for each financial year as per Schedule 2.”

For the sake of brevity, it is enough to mention that in this laudable judgment, we then see that there are general guidelines in the said schedule for filling the PAR for which time frame is given in Schedule 2, Form II, Guideline 9.

To be sure, it is then pointed out that, “Applicant-petitioner claims that in his case for the PAR for the period from 8.4.2016 to 31.3.2017, Accepting Authority wrote the remarks on 31.12.2017 and took 184 days in doing the same. Further on the comments of applicant-petitioner under Rule 9(2) of the AIS (PAR) Rules, 2007, no decision has been taken so far. Petitioner has also made a representation dated 1.6.2018 to the Chairperson of Referral Board stating that due to failure of the Accepting Authority to decide the representation within the prescribed time frame, the views of the Reviewing Authority has acquired the finally ipso juris and must be acted upon by expunging the appraisal of the Accepting Authority. However, no response has been received.”

As it turned out, this significant judgment then mentions that, “Applicant-petitioner moved the Tribunal by filing the Original Application No. 060/01058/2018, titled as ‘Dr Ashok Khemka vs. State of Haryana and another’ on 4.9.2018 claiming the following relief:-

(i) expunge the remarks and the overall grade recorded by the Accepting Authority in “Section V-Acceptance” of the Performance Appraisal Report for the period, 8th April 2016 to 31st March 2017 and restore the overall grade of 9.92 as per appraisal done by the Reviewing Authority;

(ii) grant any other relief, which may be deemed to be just and proper; and

(iii) allow he present O.A. With costs.”

What’s more, it is then pointed out that, “The plea of the applicant-petitioner did not find favour from the Tribunal which vide its order dated 3.12.2018 held that the Accepting Authority recorded the appraisal report on 31.12.2017 well within the time prescribed under relevant Rule 5 (1) of the AIS (PAR) Rules, 2007 and para 9.4 of the General Guidelines. Hence, the application was dismissed.”

To put things in perspective, it is then pointed out in this notable judgment that, “We have heard learned counsel for the parties and have carefully gone through the case file. In this case, it is not disputed that for recording the PAR of the IAS Officer, certain time frame has been given as reproduced above. Before the Tribunal, the applicant-petitioner had claimed that the remarks by the Accepting Authority were time barred and that since his representation under Rule 9(7B) of the AIS (PAR) Rules, 2007 has not been decided, the views of the Reviewing Authority have become final. Undoubtedly, the statutory representation of the petitioner has not been decided by the Accepting Authority within the time frame. Under Rule 5 of the AIS (PAR) Rules, 2007, the Central Government can make such addition in the form or the cut off date as may be considered necessary or desirable. Therefore, the time frame as fixed for recording the PAR could be varied. The Tribunal has relied upon Rule 5(1) of the AIS (PAR) Rules, 2007 and para 9.4(1) of the General guidelines which provide that if the PAR relating to the financial year is not recorded by 31st December of the year in which financial year ended, no remarks shall be recorded thereafter, and the officer may be assessed on the basis of overall record and self-assessment of the year concerned, if he has submitted his self-assessment on time. The time frame is the technical aspect of the matter. However, before this Court, it has been argued that even on merits, the views of Accepting Authority are to be rejected.”

Needless to say, it is then pointed out that, “We have carefully examined the PAR of the applicant-petitioner. It comes out that the applicant-petitioner at the relevant time was working as Principal Secretary to Government of Haryana, Science and Technology Department.”

It must be clarified here as has been pointed out also in this judgment itself that Reporting Authority is Chief Secretary of Haryana and period worked is from 08/04/16 to 31/3/2017. Reviewing Authority is Science and Technology Minister Haryana and period worked is from 23/07/2016 to 31/3/2017. Anil Vij who is Health Minister is Reviewing Authority. Accepting Authority is Chief Minister of Haryana and period worked is from 08/04/16 to 31/3/2017. The Reporting Authority grades Dr Khemka mostly as 8.1, 8.2, 8.3, 8.4 and overall grades him as 8.22 and 8.27 but Reviewing Authority who is Anil Vij grades him much better and grades him mostly as 9.8, 9.9, 10 and overall grades him as 9.92 and 9.87 which is certainly very good.

Going forward, it is then pointed out in this historic ruling that, “Regarding integrity of the applicant-petitioner, it is recorded that “his integrity is beyond doubt”. The Reporting Officer wrote the following comments on the overall qualities of the officer i.e. the present petitioner which are reproduced below:-

“Sh. Khemka is an intelligent and experienced officer. The officer possesses a very good understanding of various Acts and Rules. He can examine an issue thread bare bringing out all the pros and cons. He possesses good command over the written and spoken word. Against the revised plan budget estimate of Rs. 26.62 crores of the Science and Technology department, Rs. 25.35 crores was spent. Five years backlog for Haryana Vigyan Ratna and Yuva Vigyan Ratna Awards was cleared by him. The officer fully understands the power of social media. He frequently tweets on diverse subjects, including matters not directly related to his department. He has a sympathetic attitude towards the Scheduled Castes and weaker sections of society”.”

Moving on, it is then observed that, “The Reporting Authority (Minister concerned) wrote the following remarks about the qualities and strength of the officer i.e., the present petitioner which are reproduced below:-

“Mr. Ashok Khemka is well-known in the country for effective professional integrity under very difficult circumstances. Despite being in a relatively unimportant post, Mr. Ashok Khemka has shown excellent achievements under severe constraints. He is very innovative and was the first to use WHATSAPP in court proceedings to effect service upon the respondent. By his personal example, Mr. Ashok Khemka inspires many young officers. He has immense potential which can be utilized better by the Government”.”

Furthermore, it is then pointed out that, “The Reporting Authority gave the overall grade on the scale of 1-10 as 9.92. However, the Accepting Authority i.e., the Chief Minister differed with the opinion of the Reviewing Authority and recorded the following remarks: –

“The Reviewing Authority has differed with the Reporting Authority but has not given any reason for the same. At best, his comment that the officer “has shown excellent achievements under severe constraints” contained in para 3 of Section IV can be so construed. But this is not substantiated since neither the Reviewing Authority nor the officer himself has specified any constraint what to talk of “severe constraints”. I, therefore, think that report of the Reviewing Authority is slightly exaggerated”.”

More importantly, the Punjab and Haryana High Court Bench comprising of Justice Kuldip Singh and Justice Rajiv Sharma then very rightly held for which they must be appreciated and applauded that, “We are of the considered view that the remarks recorded by the Accepting Authority are liable to be expunged. The Accepting Authority has recorded that Reviewing Authority has differed with the Reporting Authority but not given any reason for the same. However the same is found to be absolutely incorrect as the Reviewing Authority has given brief reasoning recording that the petitioner is well known in the country for effective professional integrity under very difficult circumstances. Even Accepting Authority has not made any adverse remarks regarding the integrity of officer. Reference has been made to ‘excellent achievements under severe constraints’. It has also been mentioned that he is very innovative and has immense potential which can be utilized better by government. The Accepting Authority has recorded that the Reviewing Authority or the officer himself has not specified any constraint what to talk of ‘severe constraints’.”

It cannot be lost on us that the Bench then further goes on to held that, “We are of the view that some of the matters are better understood than said in expressed words. The severe constraints in which an honest and upright officer works under the political leadership are well known. There are so many pulls and pressures and the officer has to work according to the rules despite all these pulls and pressures. The Reviewing Authority has recorded that the petitioner is well known in the country for effective professional integrity under very difficult circumstances.” This alone explains why he was frequently transferred from one place to another because the brutal truth is that an honest person is rarely favoured wherever he/she goes!

It also has to be borne in mind that the Court then commendably and very rightly goes on to state that, “We are of the view that a person of such professional integrity needs to be protected as the professional integrity in our political, social and administrative system is depleting very fast. Even the Reporting Authority i.e., the Chief Secretary, Haryana has recorded that petitioner is an intelligent and experienced officer. His integrity is beyond doubt. Therefore, an officer with such integrity many time has to face adverse circumstances which have been mentioned by the Reviewing Authority as ‘constraints’. Since number of such officers whose integrity is beyond doubt and who have professional integrity of higher standard is depleting very fast, therefore, they need protectonfrom being damaged by recording adverse remarks against the record.”

Most importantly, the Bench then also held most rightly that, “Consequently, we are of the considered view that leaving aside the time frame, the opinion of the Accepting Officer is liable to be expunged and so is the grading which is given 9.00 by the Accepting Authority. At the same time, we are of the view that the time frame fixed under the Rule for recording PAR is not a water tight compartment and there can be some flexibility in the same. Further it comes out that the Accepting Authority has not decided the representation of the petitioner so far. For the reasons recorded above, the impugned order dated 3.12.2018 (Annexure P-1) passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh is set aside. The remarks of the Accepting Officer and the grading of 9.00 given by the Accepting Authority are hereby set aside and the opinion given by the Reviewing Authority is restored. The grading of 9.92 given by the Reviewing Authority is also restored and will prevail upon the grading given by the Reporting Authority. Accordingly, the petition is allowed.”

On a concluding note, let me be honest enough to concede that the names of Justice Kuldip Singh and Justice Rajiv Sharma shall always be written in my heart at least for this best judgment I have ever read and most notably for openly rooting in favour of a dead honest IAS officer who has always been in news for taking on corruption not fearing even the first family of India that is the Gandhi family which will hundred percent boost the morale of many more honest officers like him who due to frequent postings and adverse reports tend to succumb! But Dr Ashok Khemka is not one of them inspite of facing repeated transfers, harassment and humiliation and has emerged as the best example of an honest and upright IAS officer whom every Indian can and in fact must inevitably look upon as a worthy inspiration to follow! Anil Vij is the one politician who has hundred percent backed Dr Khemka as is evident in his observations and gradings which has already been discussed above and therefore every Indian must be proud of him also!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Karol Bagh Hotel Blaze Kills 17 As Rules Flouted Openly

No words can be adequate to condemn most strongly the complete and callous flouting of rules by hotels with impunity which is squarely and solely responsible for such hotel blaze as we saw just recently in Hotel Arpit Palace in Karol Bagh which ultimately resulted in the killing of 17 people for no fault of theirs! Their only fault was that they trusted the big name of the hotel in New Delhi’s Karol Bagh and paid for it with their invaluable lives! Time and again we see such innumerable incidents happening yet everything is soon forgotten only for another incident to revive those unpalatable memories again with a more bad taste perhaps in many such cases!

Needless to say, the permanent and painful loss suffered by the near and dear ones of those killed is beyond words to describe and is irreparable! No money announced as compensation can ever be enough to compensate the lives of those who have died! But both Centre and State Government feel proud to announce quick compensation but do nothing to frame strictest rules to ensure that no one dare again violate safety norms in hotels and lodging homes!

To be sure, a fire is suspected to have been triggered by an electrical short circuit that engulfed a hotel named Arpit Palace that killed at least 17 people including an IRS officer and the chef who tried to escape from the blaze by jumping off the five-storey building. A woman from Myanmar were among the many who were injured while jumping to escape the fire. A hydraulic skylift was later used to rescue the trapped guests and staff.

No doubt, the casualty figure went up as people were asleep when the fire broke out! What further compounded the tragedy was that as people got up after hearing noise and went down they found the door to be locked and they could not find any safe passage to go out! There were 53 people in the 45-room hotel which had a canopy on the terrace housing what appeared to be a restaurant.

As it turned out, a massive fire swept through a four-floor hotel in Central Delhi’s Karol Bagh in Hotel Arpit Palace in early wee hours of morning. The blaze, in which 35 people were injured and 17 killed started in the second floor of the Arpit Palace Hotel around 3.30 am and most of the guests in hotel were asleep and were caught completely off the guard! Most of those who died lost their lives because of suffocation. Suresh Kumar who was an Indian Revenue Officer and hailed from Panchkula town in Haryana was among the 17 people who died in the fire that engulfed a five-storey hotel in Delhi’s Karol Bagh area before dawn. Suresh Kumar was posted as Assistant Commissioner in the GST (Goods and Services Tax) wing of the Revenue Department in Delhi. Suresh jumped to escape fire but succumbed to injuries sustained from the fall!

According to Delhi police, and fire services, the hotel flouted a number of rules. We shall briefly discuss some of the major lapses. They are as follows: –

1. The rooftop restaurant was illegally constructed and this was the major cause of the fire that broke out.

2. The entry to the rooftop was closed to obtain NOC (No Objection Certificate) from the fire department in December 2017, but it was illegally reopened later.

3. A restaurant and a kitchen were illegally operating on the rooftop and without a straw of doubt this was what contributed most to the fire engulfing so rapidly all over the hotel.

4. A temporary structure was constructed on the rooftop using fibre sheets.

5. The lone emergency exit at the back of the guest house were found blocked.

6. There were extra floors constructed.

7. The height is above 15 metres.

8. No panic alarm at any place in the hotel.

9. No proper signage towards the hotel emergency exit was on display.

10. Plastic and other inflammable material used on the walls and partition of walls and in the rooftop restaurant contributed in a big manner in spreading of fire.

11. No safety arrangements for the hotel’s guests.

12. Storage and cooking activities also found operating in basement.

13. High use of smoke-causing material such as asbestos inside the building.

14. Use of compressed sawdust in woodwork, which easily catches fire and helps spreads it.

15. Hose pips were not connected to sources of water and fire extinguishers were non-functional.

16. Modification in the original design of the guesthouse led to blockade of ventilation outlets.

17. Fire exits were used for staff passage and used to be locked after midnight.

18. The hotel owner began violations on the terrace or the fifth floor after it obtained a fire clearance in December 2014 as fire NOC is valid for three years.

19. The stairs were not wide enough to allow more than two people from running together and that led to stampede and people fell on each other.

20. There were no lights inside the building which made it more difficult for people to find a way out.

Even the Supreme Court appointed monitoring committee had observed that unauthorized construction had increased in Karol Bagh since the last sealing drive in 2007. It found that basements and terrace have extended structures. Storage and cooking activities were also found in basements.

It is a crying national shame that even 22 years after the Uphaar cinema hall fire tragedy of 1997 that killed 59 people still the Hotel Arpit Palace staff had no training on how to use the fire fighting equipment. Police informed the court that the owners had illegally constructed a “bar-cum-restaurant” on the rooftop and further covered it with fibre sheets that began melting in the heat. This should never have been done at the first place!

Simply put, the crime branch submitted that, “Many people were forced to jump despite reaching the terrace and two died because of this”. The police also told the court that due to illegally constructed restro-bar, many were forced to jump from the terrace and two died because of the jump. It also informed the court that Rakesh Goel and his brother Shardendu Goel, in whose name the license was issued were well aware of the irregularities committed in the functioning of the hotel. Deputy Commissioner of Police (Central) Mandeep Singh Randhawa said a case under Section 304 (Punishment fopr culpable homicide not amounting to murder) and 308 (Attempt to commit culpable homicide) of the Indian Penal Code has been registered. He also said that, “Manager Rajendra and General Manager Vikas have been arrested. Owner Shubhendu Goyal is absconding.”

Going forward, the police also told the court that the manager and the general manager disclosed the day-to-day affairs to the Goel brothers and both of them are well aware of the irregularities committed in the functioning of the hotel. The fire safety certificates of 14 more hotels in Central Delhi’s Karol Bagh area were suspended after teams from the Delhi Fire Services conducted a drive to check the safety norms in hotels. A total of 98 hotels were inspected.

It must be brought out here that the property in question where fire occurred which is famously called Hotel Arpit Palace was actually not a hotel and had a licence issued by police that allowed only boarding and lodging facilities. Then how was hotel operating with impunity? Why didn’t police take action promptly? The lives of many could have been saved had the police acted promptly!

Not stopping here, North MCD Mayor Adesh Gupta said the Hotel Arpit Palace which came up in 1993 was an “unauthorized construction” and was “booked” in 1993-1994 but the hotel continued operations and practically became untouchable once the Delhi Laws (Special Provision) Act came into effect in 2006. What is incomprehensible is that even if for the sake of argument we accept that the Act came in the way of sealing the hotel yet why did the civic body did not penalize the hotel for height violations and for illegally running commercial operations on the terrace? People will keep dying as long as such illegal activities for the sake of making quick money is not stopped forthwith permanently!

What is most disconcerting is that almost all such guest houses in Karol Bagh and the rest of the city also add a kitchen quietly which is otherwise prohibited in such establishments by obtaining a licence for a restaurant they run from the same building. Fire officials revealed that the owners of Hotel Arpit made multiple kitchens, including an illegal one also on the rooftop. They also revealed that this rooftop kitchen, along with other modifications did not show up in the last fire safety inspection conducted in 2017.

It is most distressing and disquieting to learn that both police and municipal officials blatantly and brazenly handed out renewal certificates without carrying out proper inspection as required and without noticing the open and flagrant violation of all rules and norms and flagging violations of the same in their report. The fire inspection certification holds good for a period of three years and the municipal corporation issued the health licence that is renewed every year. The guilty police and municipal officials must be punished most strictly and dismissed from service and sent behind bars so that no one again dares to break rules without any fear of law!

Why do governments wake up only after the tragedy in which many innocents lose their life? Why is everything soon forgotten thereafter? Why in India there is no value of human life? Why politicians become happy after announcing compensation of few lakhs of rupees? Why is corruption not punishable with either life or death and same for those who violate rules which endangers the lives and safety of others?

Truth be told, just enacting rules are not enough! They must be implemented also strictly. Those who break rules must be punished most strictly! We all know too well how the Bawana factory fire in 2018 killed as many people as the Hotel Arpit fire now. The Bawana factory was registered as a plastic manufacturing unit but was used to package firecrackers illegally!

It is well known that for factories there is the building code that envisages elaborate safety norms. But here again any unit which works out of a covered area of less than 250 square metres on all floors is completely exempted from seeking a fire safety certificate! Why? Don’t we know all too well that many of the factories that are in news headlines for catching fire in Delhi fall in the exempted category? Why still are they exempted? Why are they not brought out from the exempted category?

Why are surprise inspections not carried out time and again? Why when once the fire safety licence is granted do we see that there is just no inspection until and unless it comes up for renewal three years later? Why is fire department working with just 40% of the sanctioned staff strength and not 100%?

Why where multiple agencies are entrusted with the onerous task of issuing a number of licences do we see that there is rarely ever a joint on-site inspection at regular intervals as was commendably suggested by none other than the Law Commission of India in a 2012 consultation paper on manmade disasters? Why Centre and State Government display a nonchalant approach on such a serious issue? Why can’t they become more serious?

To put it succinctly, why is it ignored that in this 2012 consultation paper it had sought the scrutiny of buildings right at the construction stage and not just after they were completed and yet why no action taken by any government on it? More to the point, this 2012 consultation paper asked for “mandatory re-inspections at specified intervals” which must be laid down either in the rules or by way of administrative instructions. On surprise inspections, Neelam Krishnamoorthy from the Association of the Victims of Uphaar Tragedy said that, “The authorities could begin by conducting surprise inspections. It is the only way to ensure that whatever fire safety apparatus that is found installed at the time of certification is in a working condition.” Still why are such landmark and laudable suggestions not implemented forthwith? Why annual reviews are not mandated by law? The government has a lot of explaining to do on this! It must be done at least now forthwith as it brooks no delay anymore!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Uncivilized And Heartless Crime: SC Enhances Compensation To Acid Attack Victim

To start with, the Supreme Court which is the highest court of our nation has most recently on March 15, 2019 in an extremely laudable and landmark judgment titled State of Himachal Pradesh & Anr v Vijay Kumar alias Pappu & Anr in Criminal Appeal No(s). 753 of 2010 has minced just no words in stating clearly and convincingly about acid attack crime that a crime of this nature does not deserve any kind of clemency. It is the most uncivilized and most heartless crime and this even the top court has acknowledged for which there cannot be any justification of any kind. The Apex Court also directed the two convicts to pay Rs 1,50,000 each as compensation to acid attack victim.

First and foremost, the ball is set rolling in para 1 by penning down in this commendable and noteworthy judgment authored by Justice Ajay Rastogi for himself and Justice AM Khanwilkar that, “The challenge in this appeal is against the judgment of the Division Bench of the High Court of Himachal Pradesh at Shimla dated 24th March, 2008 filed at the instance of the State of Himachal Pradesh whereby the High Court was pleased to partially allow the appeal filed by the respondents and altered the nature of offence from one under Section 307/34 IPC to one under Section 326 IPC and reduced the sentence of 10 years rigorous imprisonment and fine of Rs. 5,000/- each to 5 years rigorous imprisonment and increased the fine to Rs. 25,000/- each and in default, to undergo further imprisonment of six months.”

For the uninitiated, the background is then chalked out in para 2 wherein it is pointed out that, “In the instant case, the victim has suffered 16% burn injury which was caused due to acid attack on the darkest day of her life, i.e. on 12th July, 2004. To unfold the prosecution version in nutshell that, on 12th July, 2004 at about 9.00 a.m. PW-13 Shami Verma resident of Mashobra, who was present at BCS at Khalini-Dhalli By-Pass saw PW-5 Kumari Ishita (victim) crying with burn injuries, who had jumped into the water tank nearby. PW-13 Shami Verma took out PW-5 Kumari Ishita-victim from the tank and informed to the Police Post, New Shimla, that a girl with burn injuries was present near her residence and this information (Exhibit PR) was recorded by the Incharge of the Police Post, New Shimla, who deputed a police officer on wireless set to go to the site. PW-36 Shakuntla Sharma went to the site and shifted the victim to the hospital and recorded her statement on which a case was registered. During investigation, PW-5 Kumari Ishita (victim) stated that when she was going to college, two boys came on a scooter and threw some acid over her from a jug and run away from the spot. After investigation, challan was filed against both the accused respondents who were tried by the learned trial Court leading to their conviction which convicted them for offence under Section 307/34 IPC and sentenced them to undergo rigorous imprisonment of 10 years with a fine of Rs. 5,000/- each by judgment dated 30th November, 2005 which came to be challenged by them in appeal before the High Court of Himachal Pradesh.”

As it turned out, para 3 then states that, “Taking note of the chemical burns caused by sulphuric acid of around 16% which is evident from the report of Dr. Piyush Kapila (PW-2), Department of Forensic Medicine, the High Court arrived at the conclusion that the offence under Section 307/34 IPC was not made out and converted the offence from Section 307/34 IPC to Section 326 IPC and sentenced them for a period of 5 years rigorous imprisonment with a fine of Rs. 25,000/- each vide impugned judgment dated 24th March, 2008.”

Needless to say, para 4 then brings out that, “The accused respondents have accepted the coniction and have undergone their sentence in terms of the judgment impugned dated 24th March, 2008 and have deposited the fine amount of Rs. 25,000/- each as informed to this Court and were released on 9th December, 2008 after undergoing sentence in terms of the impugned judgment.”

To be sure, it is then also brought out in para 5 that, “The main thrust of the submission of the learned counsel for the appellants is that it was a case of acid attack on innocent young victim of 19 years and learned trial Court has rightly convicted the accused respondents under Section 307/34 IPC and sentenced them to 10 years rigorous imprisonment and there was no reasonable and cogent justification for the High Court to interfere with the impugned judgment of the learned trial Court dated 30th November, 2005 and once they had been held guilty, their alteration of punishment is uncalled for and prayed for restoring the conviction and sentence held by the learned trial Court dated 30th November, 2005. Learned counsel further submitted that if this Court is not inclined to restore the conviction and sentence passed by the learned trial Court dated 30th November, 2005, at least the victim is entitled for compensation admissible under the law.”

On the contrary, it is then pointed out in para 6 that, “Learned counsel for the respondents has supported the judgment of the High Court dated 24th March, 2008 and submitted that the respondents were young at the given point of time on the date of incident dated 12th July, 2004 and looking into the chemical burns of 16% which the victim had suffered, by no stretch of imagination, it could be considered to be a case of Section 307 IPC of committing an attempt to murder. Further, in the given facts and circumstances, it was not even a case of Section 326 IPC but they have accepted the wrong which had been committed by them and after undergoing sentence in terms of the impugned judgment, both were released on 9th December, 2008 and there is no justification to restore the conviction and sentence awarded by the learned trial Court dated 30th November, 2005. In support of his submission, reliance is placed on the judgment of this Court in Sachin Jana and Another Vs. State of West Bengal 2008(3) SCC 390 and submitted that it was a case where the victims suffered more than 50% burn injury caused due to acid and the conviction was under Section 307 IPC and yet this Court had reduced the sentence to 5 years rigorous imprisonment with fine of Rs. 25,000/-.”

Simply put, para 7 then states that, “In this background, the question for consideration is whether the imposition of sentence by the High Court is proportionate to the crime in question and whether the victim is entitled to what has been awarded under the impugned judgment.”

On the one hand, para 8 points out that, “Learned counsel for the appellants submits that by no stretch of imagination, the period undergone, can be regarded as appropriate for the offence under Section 326 IPC and definitely not when there is acid attack. She submitted that there may not be any misplaced sympathy and exhibition of unwarranted mercy to pave the path of injustice to the victim.”

On the other hand, para 9 then discloses that, “Learned counsel for the respondents submitted that the incident has happened long back on 12th July, 2004 and by this time, the victim as well as the respondents have been living their individual lives and respondents have undergone the sentence passed and were released on 9th December, 2008. They are leading a reformed life and after a long lapse of time, to send them to custody would tantamount to a gross injustice to them.”

What’s more, para 10 then envisages that, “The two-Judge Bench of this Court in Sachin Jana and another’s case (supra) where the accused persons faced trial for offence under Sections 148, 323, 324 and 307 read with Section 149 IPC on account of 50% burn injury which was caused due to acid attack were convicted by the High Court for offence under Section 307/34 IPC but their custodial sentence was reduced to 5 years and a fine of Rs. 25,000/-. The relevant extract is as under:-

“9. It is to be noted that three persons suffered injuries on account of acid poured on them. The doctor had indicated that each of the injured persons suffered more than 50% burn injury which was caused due to acid and the same was sufficient to cause death if not attended by medical aid at appropriate time.

12. When the evidence on record is analysed, it is clear that Section 307 read with Section 34 IPC has clear application. The acid burns caused disfigurement.

13. Considering the nature of dispute the custodial sentence is reduced to 5 years. However, each of the appellants is directed to pay a fine of Rs. 25,000. If the amount is deposited by the appellants within six weeks from today, out of each deposit, Rs. 10,000 shall be paid to each of the victims PWs 1, 2 and 3: in case the amount of fine imposed is not deposited, the default custodial sentence of one year each”.”

Going ahead, the Bench then stipulates in para 11 that, “The matter in reference to the victim suffered due to acid attack was further considered by a two-Judge Bench of this Court in Ravada Sasikala Vs. State of Andhra Pradesh and Another 2017 (4) SCC 546 where learned trial Court convicted the accused person under Section 326 and 448 IPC and sentenced him to suffer rigorous imprisonment for one year and directed to pay a fine of Rs. 5,000/-. The High Court while confirming the conviction under Section 326 IPC released the accused to the period which he had already undergone of 30 days which came to be interfered by this Court and the punishment and sentence of one year under Section 326 IPC was restored. But while doing so, this Court also ousted the compensation which the victim may be entitled for under Section 357 and Section 357-A of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”).”

It is most heartening to note that it is then very rightly noted in para 12 without mincing any words that, “Indeed, it cannot be ruled out that in the present case the victim had suffered an uncivilised and heartless crime committed by the respondents and there is no room for leniency which can be conceived. A crime of this nature does not deserve any kind of clemency. This Court cannot be oblivious of the situation that the victim must have suffered an emotional distress which cannot be compensated either by sentencing the accused or by grant of any compensation.”

Delving deeper, it is then held after considering all the points in para 13 that, “After going through the material on record, we are of the considered view that the accused respondents have rightly been held guilty and their conviction under Section 326 IPC and sentence for 5 years at least needs no interference but at the same time, we are disposed to address on victim compensation which may at least bring some solace to the victim for the sufferings which she had suffered.”

While referring to past leading and relevant case laws, it is then held in para 14 that, “In Ankush Shivaji Gaikwad Vs. State of Maharashtra 2013 (6) SCC 770, a two-Judge Bench of this Court referred to the amended provision, 154th Law Commission Report that has devoted entire chapter of victimology, wherein the emphasis was on the victim.

Continuing in the same vein, para 15 then states that, “In Laxmi Vs. Union of India and Others 2014 (4) SCC 427, this Court observed that Section 357-A came to be inserted in the Code of Criminal Procedure, 1973 by Act 5 of 2009 w.e.f. 31st December, 2009 which, inter alia, provides for preparation of a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. This Court further directed that acid attack victims shall be paid compensation of at least Rs 3 lakhs by the State Government/Union Territory concerned as the aftercare and rehabilitation cost.

Not stopping here, it is then held in para 16 that, “In State of M.P. Vs. Mehtaab 2015(5) SCC 197, this Court directed the compensation of Rs. 2 lakhs noticing the fact that occurrence took place in 1997 and it observed that the said compensation was not adequate and accordingly, in addition to the said compensation to be paid by the accused, held that the State was also required to pay compensation under Section 357-A CrPC and reliance was placed on the decision in Suresh Vs. State of Haryana 2015(3) SCC 227.”

Moving on, it is then unfolded in para 17 that, “Victim Compensation Scheme has been considered by this Court in State of H.P. Vs. Rampal 2015 (11) SCC 584 and this Court opined that compensation of Rs. 40,000/- was inadequate taking note of the fact that the life of young child aged 20 years was lost and taking note of the precedents observed that in the interest of justice, the accused is required to pay a sum of Rs. 1 lakh and the State to pay a sum of Rs. 3 lakhs as compensation.”

Most importantly, it is then held in para 18 that, “Taking note of the precedents of which reference has been made, we consider it appropriate to observe that both the accused shall pay the additional compensation of Rs1,50,000/- (Rupees One Lakh and Fifty Thousand) each and the State of Himachal Pradesh shall pay the compensation as admissible under the Victim Compensation Scheme as in vogue to the acid victim (Ishita Sandhu, D/o Late Shri Rikhi Ram Sandhu) (Appellant No. 2). If the accused does not pay the additional compensation amount of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand) each within six months, the defaulting accused shall suffer rigorous imprisonment of six months. The State shall deposit the compensation before the trial Court within three months from today and the learned trial Court, after proper identification of the victim, disburse at the earliest.”

To put things in perspective, para 19 then enunciates that, “The impugned judgment of the High Court stands modified and the appeal is accordingly disposed of. Lastly, it is held in para 20 that, “Pending application(s), if any, stands disposed of.”

No doubt, it is an exceptional, elegantly written and excellent judgment which will send the right, loud and clear message to one and all that acid throwing will not be taken lightly under any circumstances and the accused should be prepared not just to suffer jail sentence but also pay huge penalty as fine! No justification by accused of any kind would be able to stand scrutiny before the court! The State Government must ensure that it deposits the compensation before the Trial Court within three months and the learned trial Court after proper identification of the victim disburse it at the earliest! It merits no reiteration that all the courts from top to bottom must always ensure that acid throwing is not taken lightly ever and accused as we see in this landmark case are made to pay heavily so that it acts as a suitable deterrent to others from indulging in such wanton and despicable acts!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Change Lawyer If Case Is Not Being Attended Properly: SC’s Message To Litigants

To begin with, the message to litigants by the top court that is Supreme Court in its latest, landmark and laudable judgment is simple and straightforward: Change lawyer if case is not being attended properly. In other words, the Apex Court has sought to convey in plain and simple language that litigants should just stop condoning lawyer’s mishandling of case and should not restrain themselves from changing lawyer whenever the need to do so arises! This is truly commendable and ought to be appreciated and applauded in no uncertain terms!

Needless to say, the Apex Court in this noteworthy and commendable judgment titled Estate Officer, Haryana Urban Development Authority & Anr. v. Gopi Chand Atreja in Civil Appeal Nos. 5051-5052 of 2009 delivered on March 12, 2019 has given a subtle yet firm message to litigants who usually tend to blame their lawyers, rightly or wrongly, for getting adverse orders from courts on technical grounds like delay, which could have been avoided easily if they were vigilant enough that they will be squarely responsible if they don’t be vigilant and don’t change lawyer well in time if the case is not being attended to by them properly! Who can deny or dispute this? The litigants must now abide by what the top court has so explicitly here!

First and foremost, this notable judgment authored by Justice Abhay Manohar Sapre for himself and Justice Dinesh Maheshwari of the Supreme Court sets the ball rolling by noting in para 1 that, “These appeals are directed against the final judgment and orders dated 23.01.2008 and 05.05.2008 passed by the High Court of Punjab & Haryana at Chandigarh in R.S.A. No. 4110 of 2007 and R.A.C. No. 23-C of 2008 in R.S.A. No. 4110 of 2007 respectively whereby the High Court dismissed the second appeal as well as the review application filed by the appellants herein.”

Briefly stated, para 2 then stipulates that, “These appeals involve a short point as would be clear from the facts mentioned hereinbelow.” Going one step forward, it is then mentioned in para 3 that, “The appellants herein is the Haryana Urban Development Authority (hereinafter referred to as “HUDA”). They are the defendants whereas the respondent is the plaintiff in the civil suit out of which these appeals arise.”

What follows next is elaborated in para 4 which says that, “The respondent filed a civil suit being Civil Suit No. 305 of 2000 in the Court of Civil Judge (Jr. Division), Karnal against the appellants (HUDA) claiming a decree for declaration with consequential relief of permanent and mandatory injunction in relation to the suit land. The suit was decreed by the Trial Court on contest vide judgment/decree dated 01.05.2001.”

As a consequence, it is then pointed out in para 5 that, “The appellants (defendants) felt aggrieved and filed first appeal being Civil Appeal No. 92 of 2001 in the Court of Additional District Judge, Karnal. By judgment dated 07.02.2002, the first Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court.”

As it turned out, para 6 then reveals that, “The appellants felt aggrieved and filed second appeal in the High Court of Punjab & Haryana at Chandigarh. Since the appeal filed by the appellant was barred by 1942 days, the appellants filed an application under Section 5 of the Limitation Act and prayed for condoning the delay in filing the second appeal.”

Furthermore, it is then disclosed in para 7 that, “By impugned order dated 23.01.2008, the High Court rejected the application and declined to condone the delay. The High Court held that the cause pleaded by the appellants for condoning the delay is not a sufficient cause. As a consequence, the second appeal was also dismissed as being barred by limitation.”

To be sure, it is then brought out in para 8 that, “Challenging the said order, the appellants filed a review petition. By order dated 05.02.2008, the High Court also dismissed the review petition.”

Interestingly enough, it is then pointed out in para 9 that, “Against the orders dated 23.01.2008 and 05.02.2008, the appellants (defendants) have filed these appeals by way of special leave in this Court.”

Of course, it is then rightly asked in para 10 that, “So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants’ second appeal on the ground of limitation.”

Continuing in the same vein, it is then stated in para 11 that, “In other words, the question arises for consideration in these appeals is whether the High Court was justified in not condoning the delay of 1942 days in filing the second appeal by the appellants (defendants).” Para 12 then states that, “Heard Mr. Vishwa Pal Singh, learned counsel for the appellants and Mr. Gagan Gupta, learned counsel for the respondent.”

More crucially, it is then stated in para 13 that, “Having heard the learned counsel for the parties and on perusal of the records of the case, we find no merit in these appeals.” Going further, it is then held in para 14 that, “In our view, the delay of 1942 days in filing the second appeal in the High Court was rightly not condoned by the High Court for the reasons mentioned below.”

While enumerating on the reasons why the High Court did not condone the delay, it is then held in para 15 that, “First, the delay was inordinate; Second it was not properly explained; and Third, the ground alleged in support of application filed under Section 5 of the Limitation Act did not constitute a sufficient cause.” Very rightly said! There can be no denying or disputing it!

To put things in perspective, it is then explained in para 16 that, “The appellant-HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well-established legal department to look after the legal cases filed by HUDA and against the HUDA in various Courts. They have panel of lawyers to defend their interest in Courts.”

Simply put, it is then conceded in para 17 that, “It is not in dispute that the appellants had been contesting the civil suit and the first appeal since inception. The appellants were, therefore fully aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long time and not to file the appeal within 90 days or/and re-file it immediately after curing the defects.”

To put it succinctly, it is then made in amply clear in para 18 that, “If, according to the appellants-HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refilling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.”

Frankly enough, the Bench then very rightly underscores in para 19 in plain and simple language that, “In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer.”

Beyond a shadow of doubt, the Bench then in para 20 very rightly holds that, “In our view, it is a clear case where the appellant-HUDA, i.e., their officers who were in-charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. In such circumstances, the officer-in-charge of the case should be made answerable for the lapse on their part and make good the loss suffered by the appellants-HUDA.”

Now coming to the concluding paras. Para 21 minces no words to make it absolutely clear that, “A delay of 1942 days (4 years 6 months), in our view, is wholly inordinate and the cause pleaded for its condonation is equally unexplained by the appellants. In any case, the explanation given does not constitute a sufficient cause within the meaning of Section 5 of the Limitation Act. It was, therefore, rightly not condoned by the High Court and we concur with the findings of the High Court.” Lastly, para 22 concludes by saying that, “The appeals thus fails and are accordingly dismissed.”

No doubt, it is truly a worth reading judgment and worth emulating by all the courts from top to bottom! The litigants must now always bear it in mind what the Apex Court has said so convincingly and categorically in this regard! Litigants must waste no time in changing lawyer if they find that the case is not being attended properly! This will benefit the litigants themselves in the longer run if they adhere to what the Apex Court has held so unambiguously in this landmark, latest and laudable case which is being rightly appreciated all over!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Vandalism In Colleges: Allahabad HC Issues Guidelines For All State Aided Universities

It has to be said with consummate ease that in a notable and latest judgment titled Lucknow University Vandalism v. State of UP in PIL CIVIL No. 19390 of 2018 that was reserved on 29.10.2018 and delivered finally on 28.02.2019, the Allahabad High Court has commendably disposed of a suo motu PIL that it had instituted after violent protests caused injuries to many staff members of Lucknow University on July 4, 2018, by issuing temporary guidelines to all the state-aided universities. These guidelines were formulated by a Committee appointed by the Allahabad High Court on July 6. It will remain in effect until the state government and all government-aided universities frame the necessary rules and regulations to ensure a congenial and conducive environment for academic pursuits in institutions of higher learning.

As it turned out, a Division Bench of Allahabad High Court consisting of Justice Vikram Nath and Justice Rajesh Singh Chauhan had constituted the suo motu PIL after violent protests by a collection of individuals protesting against the rejection of their applications to the university. They alleged that their admission to the post-graduate courses had been denied because they had agitated against the visit of Yogi Adityanath. In the ensuing protests that followed, 10 University staff members were injured including Proctor Vinod Singh and Chief Provost Sangita Rani.

To begin with, the ball is set rolling in the judgment by first and foremost beginning by quoting Swami Vivekananda who once famously stated that, “Education is the manifestation of perfection already in man.” The background in which the purpose of education along with work atmosphere prevalent in any educational institution is then underscored and set out in para 1 which first and foremost points out that, “Education is the light that shows a mankind the right direction to surge. The purpose of education is not just making a student literate but after rationale thinking, knowledge and self-sufficiency. If education fails to inculcate self-discipline and commitment to achieve in the minds of a student, it is not their fault but it is somehow the fault of the entire system. Education is an engine for the growth and progress of any society; it not only imparts knowledge and skill along with inculcating values but it is also responsible for building human capital which creates, operates and sets technical, innovation and economic growth. Besides the above, if the atmosphere of any educational institution, in particular that of higher educational institution is not worthy of studying, nothing can be achieved out of that organisation and all that the students would achieve would be the degraded values, uncivilised and rustic behavior, irresponsible attitude towards the society and nation, sense of responsibility for one and all, etc. Resultant thereof there would be no scope and hope for development of the society and nation in all walks of life, whether it is social, economic, technical, political, philosophical etc. If the atmosphere of any higher educational system/institutes is destroyed, it results in the complete destruction of the values and thus the very purpose of such an organisation is defeated.”

While narrating the nitty gritty of this particular case, it is then observed in para 2 that, “In a backdrop of peculiar facts and circumstances, this Court took cognizance of a news item published in almost all the newspapers in respect of an unbecoming and unfortunate incident dated 4.7.2018 whereby a group of about 25 students, some of whom were rusticated students of the Lucknow University, entered into the University premises in the morning, blocked the way of the Vice Chancellor, raised slogans and threatened him of dire consequences. The motive of the aforesaid untoward incident was to pressurise the Vice Chancellor to take back the rusticated students in the University. It appeared that the said move was politically motivated inasmuch as the slogans to that kind were being uttered by some of the rusticated students. Anyhow, the Vice Chancellor escaped from the aforesaid vandalism with the aid and assistance of the security personnel of the University but in the afternoon when the Vice Chancellor was returning from one function, these students attacked him and his security inside the University campus, resultant thereof about ten teachers of the University were injured along with several security personnel and other ministerial staff of the University. Taking suo motu cognizance of the aforesaid incident in question, this Court passed an order dated 5.7.2018 as under:-

“In all the leading newspapers of Lucknow one of the front-page news is about the attack on the teachers of Lucknow University forcing the Vice Chancellor of the University to close the University indefinitely (sine die) and also at the same time stalling the entire admission process for the Academic Year 2018-19. The report further mentions that on 4.7.2018 a group of about 25 students which included some of the students who had been expelled from the University entered the University premises firstly around 11.30 A.M. and surrounded the Vice Chancellor and raised slogans and also threatened him of dire consequences and demanded re-admission. Later again at about 1.30 P.M. when the Vice Chancellor was returning from a function inside the University premises, these students again attacked the Vice Chancellor and his security. In the entire transaction that took place about 10 teachers of the University were injured along with several security and other ministerial staff of the University. The newspaper report further mentions that the police was informed about the likelihood of the expelled students creating ruckus but despite the same local police did not take appropriate measures to control the situation which was apprehended by the University administration.

It is unfortunate and extremely painful that the students have the courage, audacity and boldness to enter the premises from where they have been expelled and tried to create physical violence and attacked the Vice Chancellor, teachers of the University and staff of the University. Copy of the Hindustan Times Daily published from Lucknow and Dainik Jagran Daily published from Lucknow be made part of the record.

We accordingly direct that this may be registered as a Public Interest Litigation titled ‘Lucknow University Vandalism’.

Put up tomorrow at 10.15 A.M.

We require the presence of the Vice Chancellor, the Registrar and the Proctor of the Lucknow University before the Court for providing necessary assistance. Further we require the presence of the Director General of Police, U.P. and the Senior Superintendent of Police, Lucknow to inform the Court about the steps taken when the University authorities first informed about the likelihood of the incident taking place and also the steps taken after the incident had taken place. Sri Ramesh Pandey, learned Chief Standing Counsel will inform all the authorities mentioned above, both that of University and also of administration so that their presence is ensured”.”

To be sure, it is then explained in para 3 about taking suo moto cognizance by the Court that, “The purpose to take suo motu cognizance of the aforesaid incident was not confined to Lucknow University, but was to bring under its ambit and take judicial notice of a state-wide issue of rampant vandalism and anarchy prevalent in most government aided institutions/Universities in the State, relating to the environment in higher educational institutions, University or Degree College or Medical College or Management College etc. so as to ensure an atmosphere which is conducive and which encourages the students to attain their goals as per their dreams, and where parents do not hesitate in sending their wards to the institution concerned for the reason of any non-congenial, un-academic or unruly atmosphere. If the atmosphere of the higher University/Institute is such where vandalism, goondaism and anarchy is so deep rooted and is a routine feature, no sensible and responsible parent and student would prefer to take admission there. Normally, such types of incidents take place in higher Universities/Institutions, which are managed and controlled by the Government as against the private Institutions/Universities that maintain proper discipline. The stark contrast between the institutions managed/controlled by the Government and private universities/institutions is glaring when it comes to lack of security measures for students and staff on University campus. This Court vide order dated 6.7.2018 expressed its concern as under:-

“We had registered this Public Interest Litigation (P.I.L.) not only for the unfortunate incident which took place at the campus of Lucknow University, but also taking into consideration the number of incidents of rowdyism and vandalism which are occurring in the public institutions of higher education and learning in the State. Violent protests, vandalism, and aggressive agitation are not protected under the umbrella of the Right to Freedom of Speech and Expression and neither our constitutional ideology nor our values endorse it. In fact, such acts only tarnish the core values and ethos of the Constitution.

The incidents of vandalism in Universities’ campuses are spreading and it is becoming a recognizable national pattern. The students instead of adopting peaceful means of protests are now adopting radical and aggressive methods of protests, which are intensifying with each passing day. The support of political parties to such students bodies has further polarized the situation and is going against the spirit of student activism. In the present case, there is visible support of the outsiders in the vandalism, who are not associated with the institution in any manner.

Universities are the temple of modern India. They are the protective spaces for the promotion of democratic ideals of social imagination and civic values. They are trusted upon to educate and produce intelligent, compassionate, critically engaged citizens fully aware of the fact that without informed and educated citizens, there will be no law and order. But at present what is happening across the public universities in the country is juxtaposition. Students need to feel safe in order to learn, and therefore, it is necessary that we have discipline, law and order, a friendly environment of teaching and learning at all educational institutions. Failing in providing so, good students are turning their backs from public universities where education is provided for peanuts and moving to private universities and institutions which are charging hefty fees and flourishing. The basic requirement is determination of good learning environment in these Institutions. The Government is spending Crores of rupees on these Institutions, providing subsidized education for all. Entire infrastructure and human resource made available for imparting education is being utilized to the minimum and in fact is being wasted.

When so much expenditure is incurred, we feel it would be befitting that such huge expenditure would be appropriately and properly utilized to produce the best and for that, if a little more is required to spend, the Government should not think even twice, but implement such security measures as they may deem fit to ensure the best learning environment for the students.

Instead of involving all the different concerned Departments, we require the Chief Secretary of the State to constitute a Committee of the Principal Secretary and experts in the subject for designing a mechanism and laying down standard guidelines and policies for safe and healthy learning environment at these Institutions where students may come free from any kind of apprehension or fear of getting into any incident or mess and the parents may also feel free to send their children to such Institutions, rather than keeping them at home and suggesting that Institutions are unsafe or diverting them to other Private Institutions”.”

Going ahead, the Bench then observes in para 4 that, “Expressing its concern, as above, this Court vide order dated 6.7.2018 fixed the next date for 16.7.2018 and issued direction as under:-

“By the next date fixed, the Chief Secretary will file an affidavit, placing on record constitution of committee as required above and also may be fixed for the Committee to submit its report. We also require the Vice-Chancellor, Lucknow University to work out on similar lines by constituting a Committee and submitting the suggestions. He will also indicate in his affidavit the Constitution of the Committee and the time the Committee would take to submit its report.

Let a copy of the order be provided to Shri Ramesh Pandey, learned Chief Standing Counsel, free of cost, latest by Monday i.e. 9.7.2018, for necessary compliance. Other parties may obtain certified copies of the order on payment of usual charges.

The personal appearance of Vice-Chancellor and the Director General of Police would not be necessary for the next date, however, they are free to come to apprise the Court, but the Proctor, the Registrar of the Lucknow University and the Senior Superintendent of Police will remain present on the next date”.”

It would be instructive to note that it is then illustrated in para 5 that, “On 16.7.2018, this Court passed the following order: –

“Pursuant to our order dated 6.7.2018, the Proctor, the Registrar of the Lucknow University and the new Senior Superintendent of Police, Lucknow, Shri Kalanidhi Naithani are present.

Shri Savitra Vardhan Singh, learned counsel representing Luknow University has filed two separate affidavits, one sworn by the Vice-Chancellor and the other by the Proctor of the Lucknow University. Further, Shri V.K. Shahi, learned Additional Advocate General along with Shri Ramesh Pandey, learned Chief Standing Counsel and Shri Siddharth Dhaon, learned Additional Chief Standing Counsel have filed three separate affidavits, one sworn by the Chief Secretary, the other by the Director General of Police and the third by the present Senior Superintendent of Police, Shri Naithani.

Copies of the affidavits filed by the University have been provided to the State. Appropriate reply may be given within 10 days.

Further, in the affidavit filed by the Chief Secretary, an office order dated 13.7.2018 has been annexed as Annexure-I, whereby a Committee of 11 members have been constituted under the Chairmanship of the Additional Chief Secretary, Higher Education, Department of Government of U.P. and the said Committee is required to submit a report within a month, as observed in the order dated 6.7.2018.

Further, from perusal of affidavit of the Director General of Police reflects that on 5.7.2018, the Circle Officer, Shri Anurag Vats was transferred. Further, the Senior Superintendent of Police, who was posted at the time of incident, has also been transferred on 7.7.2018.

Annexure-A3 is a circular issued by the Director General of Police to all the Senior Superintendent of Police and Superintendent of Police in-charge of the different districts to provide adequate security and ensure that the atmosphere in the Institution of Higher Education of the State is made safe and secure.

According to the affidavit filed by the present Senior Superintendent of Police, the investigation is still going on. Separate police teams have been constituted to arrest the accused who have not been arrested so far. Only 7 accused have been arrested so far. In paragraph 15, it is stated that adequate police force has been deployed at the campus to keep the campus safe and secure. Other steps taken by the present Senior Superintendent of Police have also been mentioned in the affidavit and necessary papers have been attached. Further, 15 days’ time is sought by the Senior Superintendent of Police to arrest the remaining accused and complete the investigation.

The Proctor and the Registrar may submit their replies to the affidavits filed by the State today, if they so desire.

In the affidavit filed by the Vice-Chancellor, Annexure-A5 is an office order dated 11.7.2018, whereby a Committee of 15 members, chaired by the Vice-Chancellor, has been constituted to submit its report as required in the order dated 6.7.2018. In paragraph 17 it has been stated that the Committee will submit its report within 15 days from today.

In our order dated 6.7.2018, we had heard the parties present before the Court orally and had accordingly required them to file their affidavits to place their respective versions, which included 3 officers of the University and two from the Police Department. We have been informed that after passing of the order dated 6.7.2018, the Police administration transferred the then Senior Superintendent of Police on 7.7.2018. No affidavit has been filed by the then Senior Superintendent of Police. A reply may be filed to the affidavit filed by the Proctor by the then Senior Superintendent of Police also.

Further the Principal Secretary (Home) and the Director General of Police, both may file their separate affidavits placing on record the urgency and the reason why the Senior Superintendent of Police was transferred on the very next day when we had taken cognizance and had passed the order dated 6.7.2018.

On this aspect, we are not observing anything at this stage but after perusal of the affidavits of the Director General of Police and Principal Secretary (Home), if necessary, the same would be appropriately dealt with.

List this matter on 06th August, 2018 at 10.15 a.m.

By the said date the University would submit it’s report as it has required 15 days’ time and the progress of the Committee constituted by the Chief Secretary may also be placed on the next date.

On the next date, the Proctor of the Lucknow University and the Senior Superintendent of Police, Lucknow may again remain present”.”

Furthermore, it is then noted in para 6 that, “In compliance of the order being passed by this Court, Sri VK Shahi, learned Addl. Advocate General gave a statement on 13.8.2018 before this Court, that a Committee, as per the directions of this Court, has been constituted under the Chairmanship of Additional Chief Secretary, Higher Education in which there are eleven members and the said Committee is deliberating on the issue and would be submitting its report within fifteen days. On the same date i.e. 13.8.2018, two affidavits, one by Professor Vinod Singh, the Proctor and the other by the Vice Chancellor of the University were filed giving suggestions regarding modalities, which are required in the interest of the Institution in question. A copy of those suggestions was provided to the Committee so constituted under the Chairmanship of Additional Chief Secretary, Higher Education with the direction for the consideration and providing with further suggestions so that the atmosphere of these higher educational institutions be conducive, fixing the next date as 4.9.2018. Sri V.K. Shahi, learned Addl. Advocate General apprised the Court on 4.9.2018 that the Committee of eleven persons constituted by the Government is deliberating and apparently its report has been prepared, therefore, a week’s further time was sought to place the aforesaid report on record. Therefore, the case was posted for 18.9.2018.”

What follows next is what is so explicitly stated in para 7 that, “On 18.9.2018, Sri V.K. Shahi, learned Addl. Advocate General filed two affidavits; one was sworn by the Superintendent of Police, Lucknow placing on record status of the investigation and another one duly sworn by the Secretary, Higher Education, Lucknow enclosing therewith a copy of suggestions given by the Eleven Members Committee constituted by the Chief Secretary, Government of U.P. under the order of this Court. Since the suggestions had already been provided by the Vice Chancellor of Lucknow University on 6.8.2018 and the suggestions by the State Government through affidavit were filed later, this Court directed the Vice Chancellor, Lucknow University to examine the suggestions given by the Committee of the State Government and thereafter prepare a comprehensive report of suggestions which the University may prepare incorporating all the suggestions of the Committee of the State Government, which are not included in the University Report/ Suggestions so that this Court could consider the same on the next date and pass appropriate orders. This Court on 18.9.2018 directed the counsel for the Lucknow University to prepare a comprehensive report and place it before the Court in Hindi and English both, fixing the next date for 29.10.2018.”

To put things in perspective, it is then very rightly underscored in para 8 stating that, “The endeavour of this Court was to determine and prescribe the modalities to create perfect educational atmosphere in the higher Universities / Colleges / Institutes, be it Government Organisations, semi-Government organisations or private organisations so that the students of these organisations / institutes could not only achieve the best education, but also achieve their goals and prove to become assets to the society. It would be in the best interest of the nation inasmuch as the students, who reach on to higher posts and positions in the State instrumentalities and become the instrumentalities in policy making and could contribute their best. The modalities which are set up, rather have been determined and settled jointly by the State Government as well as by the Vice Chancellor of the Lucknow University would be fruitful not only for the University of Lucknow but for all the Universities; whether it be Medical University or Engineering College, Management College or any Degree College of the State Government.”

More importantly, it would be incumbent to now mentions what para 9 illustrates. It states quite explicitly and elegantly that, “On 29.10.2018, learned counsel representing Lucknow University filed an affidavit sworn by the Vice Chancellor, Lucknow University enclosing therewith a copy of the comprehensive report relating to the security measures to be taken by the higher educational institutions of the State as also by the State administration.”

For the sake of brevity, it must be said that in this same para 9, it is then mentioned specifically that,

“Comprehensive Report pursuant to order dt. 18.09.2018 passed by the Hon’ble High Court in PIL Civil No. 19390/2018

In due compliance of the directives of Hon’ble High Court the Vice-Chancellor, Lucknow University submitted his report as an Annexure to his Affidavit Dt. 06.08.2018. To the same reference 11 member Committee constituted by the State convened its meeting on 06.08.2018. After thorough discussion for providing conducive and free environment to the student for education in Universities/Institutions and to frame security standards and procedure report was prepared and submitted before the Hon’ble High Court by the State. In view of the order dt. 18.09.2018 and to prepare a comprehensive report, perusal of the report/minutes dt. 06.08.2018 prepared by the State was done. To invite more suggestions on the subject issue the Vice-Chancellor, Lucknow University convened a meeting of the Vice-Chancellors of all the Universities of the State of U.P. on 23.10.2018. Under the Chairmanship of the Vice-Chancellor, Lucknow University, the Vice-Chancellor of the six Universities and Registrars of the other Universities participated. During the meeting discussion at length was done for providing education friendly, free and healthy environment to the students of the University/Educational Institutions. Security measures and standards for maintenance of law and order in the Universities was also discussed. During the meeting there was a consensus about following measures for necessary action at the level of University Administration/State Administration.

Action to be taken at the level of University Administration:

1. The Proctor along with his team shall visit all the departments of University on regular intervals and ensure tough measures for security. He should maintain law and order in the campus by conducting surprise checks.

2. By department-wise co-ordination with the Heads of Departments responsibility and administrative work should be allotted to every member of proctorial team.

3. Fundamental Security standards should be established for controlling and regulating such incidents in University. Directives should be prepared for permitting entry to the students, teachers and employees of the University.

4. Grievance Redressal mechanism should be enforced for immediate redressal of the grievances of the students and the employees.

5. For ensuring internal security of the Universities and making standards, security audit of the campus should be done in due consultation with Police Administration.

6. For successful functioning of the Central mess or other mess of the University hostels, a committee should be constituted so that timely action could be ensured to deal with the unexpected incidents in the hostels.

7. For maintaining peace and discipline in the University, the Proctor of the University should make effective protocol and should ensure compliance.

8. Student Care System should be established at the level of University and regular efforts should be made for its empowerment.

Action to be taken at the level of state administration/district administration:

1. Regular meetings of the State level coordination committee must be ensured so that security standards in the Universities could be effectively implemented.

2. The Proctors of State Universities should be delegated with the powers of an Executive Magistrate as under Criminal Procedural Code on a permanent basis. These powers are conferred to them temporarily only during examination times.

3. Universities should be declared Academic/peace zones. Necessary legal action should be taken against whosoever found violating such zones.

4. For staging dharna/demonstration by the students, permission from University/District Administration should be made compulsory. Such demonstrations should be banned in University campus and should be permitted only on the places as identified by the District Administration outside the University.

5. Unauthorized entry of the outsiders and expelled students into the University Campus should be kept in the category of Criminal Trespass and action should be taken under the relevant provisions of Criminal Law Amendment Act/Goonda Act.

6. The District Administration should ensure the security audit standards of the campus in due coordination with University Administration.

7. Section 144 format should be prepared by police administration and guidelines should be prepared for its implementation in due consultation with university administration.

8. No student group under the banner of any political party should be allowed to enter into the University Campus. Unauthorized dharna/demonstrations should be prohibited under Section 144 of the Criminal Procedure.

Needless to say, it is then clarified in para 10 that, “The above-mentioned directions / measures are not all-inclusive and are open to additions by the appropriate authorities, so as to ensure the best interest of students, staff and Universities / institutions’ motto and curriculum and ought to be incorporated and enacted upon by the concerned Universities / institutional authorities so as to ensure the best possible outcome from each student, faculty and staff member. These guidelines would provide these government managed / controlled institutions / Universities to compete and be at par with the private institutions by eliminating anti-social activities and elements, thus resulting in meritorious and diligent students to opt for and take admission in these government managed / controlled institutions without any hesitation.”

It also cannot be discounted that it is then observed in para 11 that, “This Court has taken judicial notice of the budget sanctioned by the State for the State controlled / managed Universities / institutions which is a whooping amount of Rs 3506376 lacs i.e. almost Rs. Three thousand fie hundred crores for the educational financial year 2018-2019.” Para 12 then illustrates the enormous budget allocated for higher education in the state of U.P. for the financial years 2016-2017, 2017-2018 and 2018-2019.

Now coming to para 13, it minces no words in holding that, “It has been noticed by this Court that a huge budget is allocated for higher education but the atmosphere of the higher educational institutes of U.P. whether it be University or Colleges is not so productive and conducive for students inasmuch as quite often there is threat of insecurity for trivial issues. Students, who are not interested in studying and are interested in destroying the educational atmosphere of the University / Organisation ruin and collapse the entire atmosphere of the organisation for their ulterior motives resultant thereof the students at large, who are genuinely interested in studying, who come to the University to achieve higher standards in studies so as to achieve their goal, cannot achieve the same and sometimes give up on their dreams and aspirations, knowingly and unknowingly, and join those anti-social elements of the University, who are proxy students or ostensible students, consequently, depriving the nation from dedicated students with good academic background. All the aforesaid anti-social activities can be cured by adopting proper mechanism as there is no scarcity of funds, therefore, the aforementioned huge fund may be utilised in maintaining law and order along with a good, conducive and productive atmosphere in the campus.”

Honestly speaking, the Bench then acknowledges candidly in para 14 that, “We cannot turn our eyes away from the apparent and ostensive difference in tuition fee between the government managed / controlled institutions and the private universities / colleges, the result of which is evident when it comes to quality of education being imparted at both types of institutions.”

What’s more, the Bench then points out in para 15 that, “Education empowers an individual with intrinsic as well as instrumental values. It is but a means of development of the society as a whole which in effect is a step towards the empowerment of mankind. For this purpose to be truly fulfilled, education friendly environment is a must. With the Right to Education having been deemed as a Fundamental Right, our policy makers have ensured that proper and solid foundation be laid towards achieving this goal of educating every young mind in the nation. But it is important to take note here that an academic friendly environment is not only necessary just at the basic, primary level but also in higher educational institutes / Universities. It is these higher educational institutions / organizations that pave way for the next leaders of the nation in all streams of life, and therefore it is of utmost importance that a professional, productive and constructive environment is maintained in these institutes so as to enable the students to achieve their academic goals.”

It cannot be lost on us that the Bench then in para 16 among other things acknowledges the unpalatable truth that, “Unwarranted behaviour on University campus as in the present case which encourages vandalism, hooliganism, goondaism and anarchy is becoming a pattern / trend in the country and as is evident in this case, students with political / monetary backing are creating ruckus and chaos without any fear of sanction. It is time that these corrosive activities in the name of Student Body Elections and other activities be checked and controlled as per the regulations applicable by the Supreme Court not just for the sake of security but also to inculcate the ideology and principle of idealism and professionalism on campuses. It is the duty of the administrative system of the University and the State to ensure mental peace and safety for their children within the minds of parents.”

Simply put, the Bench then stipulates in para 17 that, “To ensure and fulfil the agenda, initiated today via this PIL, it is of utmost importance that the guidelines / measures above discussed should be implemented and enacted upon with utmost urgency so as to achieve productive and positive outcomes.”

Truth be told, the Bench then also acknowledges in para 18 that, “It has also been noticed that despite the colossal amount allocated to the University / Universities in budget, students with quality academic background and merit do not turn up to take admission on account of non-productive atmosphere in such Universities and these students prefer Private Universities / Colleges over Universities / Colleges managed and controlled by the Government. It is a well-known fact that with the backing of the sanctioned budget by the State, the government managed / controlled institutions / Universities hire the best ie. Crème de la crème, of faculty after due process and proper vetting. But due to the non-academic environment present in most of these institutions / Universities, meritorious students who avoid taking admission in the said Universities / institutions are depriving themselves, thus resulting in wastage / non-optimum utilization of the vast reservoir of knowledge at their dispense. The State is willing to finance and pump in money for the betterment of students as is evident from the budget quoted in the earlier part of this order but it’s a shame that the best of the best students cannot make use of this facility because of such unruly activities. Further, the free structure is very low and no substantial fund is generated out of fee of the students because of which for financial aid, such Universities bank upon the Central / State budget. The Universities may utilize this budget to uplift the educational atmosphere and standard of the University by providing good facility of library, improving standards of faculties, creating extra curriculum facilities relating to education, social, philosophical, physical and mental fitness etc in the Universities besides a sense of security and protection so that not only good students get attracted to the University but are also able to achieve high standards in life which would be in the best of their interest and in the best interest of the nation too. Therefore, the modalities which have been suggested by the competent authority of the State as well as by the Vice Chancellor of the University as considered above may be adopted in its letter and spirit.”

Finally and perhaps most importantly, it is then directed by the Allahabad High Court Bench in para 19 that, “We accordingly issue a Mandamus to the State Government and to all the government aided institutions of higher education and learning in all streams of education to frame the necessary statutes, rules and regulations and by laws / ordinances as may be necessary for maintenance of a congenial and conducive atmosphere of education within the campuses taking into consideration the suggestions / recommendations contained in the comprehensive report quoted in this order and any other provision which may be deemed necessary as we have already held that the suggestions and recommendations contained in the report are only inclusive and not exhaustive. For the said purpose we also direct the State Government and the government aided educational organizations to bring about the necessary laws within six months and till such time as necessary laws are enacted, the suggestions and recommendations quoted above may be implemented forthwith.”

All in all, this latest, landmark and laudable judgment by the 2 Judge Bench of the Allahabad High Court was the crying need of the hour! The State Government and the government aided educational organizations must abide by what the Allahabad High Court has directed so commendably and courageously by constituting suo moto PIL. It brooks no delay anymore! The comprehensive report submitted must be implemented in totality at the earliest along with other all such measures which even though not listed but are necessary in making the atmosphere of educational institutions more conducive and vibrant!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Delhi HC Upholds Eviction Order Against National Herald Publisher AJL

At the very outset, it has to be stated quite explicitly that in a major setback to Congress party, Congress chief Rahul Gandhi and his mother Sonia Gandhi, a Division Bench of the Delhi High Court comprising of Chief Justice Rajendra Menon and Justice V Kameswar Rao on February 28, 2019 in this landmark, laudable and latest case titled The Associated Journals Ltd & Anr v. Land & Development Office in LPA 10/2019 & CM Nos. 566/2019 & 649/2019 has clearly and convincingly upheld the eviction order passed against National Herald publisher – Associated Journals Limited to vacate ITO premises where Herald House is located. It must be noted that the eviction order under the Public Premises Act was passed by Centre and the Land and Development Office (LDO) stating that no press has been functioning in the premises for at least the past 10 years and it was being used only for commercial purposes in violation of the lease deed. It would be pertinent to mention here that the order was passed in the backdrop of majority of shares of AJL being transferred to the company Young India (YI), in which Congress chief Rahul Gandhi and his mother Sonia Gandhi are shareholders.

Before proceeding ahead, let us have a glimpse into the brief timeline of this high profile case involving the lease of Herald House which is the building which houses the Congress mouthpiece. It is as follows: –

Oct 30, 2018 – Land and Development Officer terminates the lease given to AJL for the building.

Nov 15, 2018 – The Delhi High Court asks the Centre to maintain status quo with regard to its eviction process.

Dec 21, 2018 – A single Judge Bench of the Delhi High Court dismisses appeal by AJL against the lease termination order.

Jan 6, 2019 – AJL challenges the single Judge judgment before a Division Bench of the Delhi High Court.

Feb 28, 2019 – The 2 Judge Bench of Delhi High Court upholds the Single Judge’s decision.

Interestingly enough, while challenging the eviction order, AJL approached the High Court. The single Bench of Delhi High Court comprising of Justice Sunil Gaur had repelled the challenge in December 2018. The Bench took serious note of the fact that AJL had been taken over by Young Indian Company for all practical purposes. It said that, “This Court is conscious of the fact that Young Indian Company is a charitable company, but modus operandi to acquire 99% of AJL’s shares speaks volumes. The manner in which it has been done is also questionable.”

First and foremost, para 1 sets the ball rolling by stating that, “Seeking exception to a judgment dated 21st December, 2018 passed in W.P. (C) No. 12133/2018 by the learned writ Court, this appeal is filed by the petitioner/appellant herein under Clause 10 of the Letters Patent Act read with Section 10 of the Delhi High Courts Act, 1966.”

What follows next is para 2 wherein it is illustrated that, “The appellant No. 1, the Associated Journals Ltd (hereinafter referred to as ‘AJL’) is a company which was incorporated on 20th November, 1937 for the purpose of publication of newspapers in different languages, the main aim for the publications were to propagate the principles and ideologies of the Indian National Congress (‘INC’). The appellant No. 2, Sh. Nalin Kumar Asthana is the Company Secretary and it is said that he had been authorized by the Board of Directors vide resolution dated 2nd April, 2018 to file this appeal.”

In retrospect, we then see that it is brought out in para 3 that, “Facts as have come on record reveal that on 2nd August, 1962 an agreement for lease/memorandum of agreement was entered into between the President of India (hereinafter referred to as ‘the lessor’) and the appellant company herein (hereinafter referred to as ‘the lessee’) whereby the lessor agreed to demise the suit land for the purpose of construction on certain terms and conditions as is mentioned therein. Clause XIX of the agreement provide for forfeiture and re-enter upon the premises in case the lessee breaches or commits any default in performance of the agreement. However, Clause XX imposes certain restrictions on the lessor in exercising this right of forfeiture of re-entry inasmuch as the lessee is entitled to a notice in writing specifying the breach complained of and in case the breach can be of remedy, to do so. Facts further reveal that the premises in question was leased @ Rs 1,25,000/- per acre for a specific purpose, that is, construction of a 5 storeyed building to enable the appellant company to establish its press and office for publication of the newspaper. It is said that vide letter dated 19th February, 1964, the appellant company expressed its desire for subletting certain portion of the building which according to the appellant was in excess of their requirements for newspaper publication and, therefore, after paying on additional premium of Rs.4,46,536/- sanction for subletting was granted and a perpetual lease in this regard was also executed on 10th January, 1967. Various other terms and conditions were also incorporated which would be referred to as and when required in the subsequent parts of this judgment.”

Of course, para 4 then states that, “It is further the case of the appellant that Clause III (7) of the perpetual lease dated 10th January, 1967 stipulate the manner in which different floors of the building were to be used and it was agreed to between the parties that the premises shall be used in the following manner:-

(i) Basement and anyone floor of the building shall be used for the purpose of housing the members and the first floor of the building for the press and offices of the lessee for the publication of the newspaper.

(ii) The remaining four floors of the building can be let out to other commercial concerns for housing their office accommodation but cannot be used for the purpose of hotels, cinemas and restaurants etc.”

While elaborating in detail, it is then narrated in para 5 that, “It is said that the AJL, even though it was incorporated on 20th November, 1937 but in the year 2002 its Chairman-cum-Managing Director was one Sh. Motilal Vora who also happens to be the Treasurer of All India Congress Committee (hereinafter referred to as ‘AICC’). Facts that have come on record further reveal that the AJL was an unlisted publishing company having 1057 shareholders as in the year 2010. The total land allotted to the company was 0.3365 acres and the same was situated on the Delhi-Mathura Road, bearing No. 5A, Bahadur Shah Zafar Marg, New Delhi. It is said that sometimes in the year 2009 and, thereafter in the year 2016 it came to the notice of the competent authority, particularly, the technical team in Land and Development Office that the premises in question was being used mainly for commercial purpose through subletting to various organizations and the premises was not being used for any press or newspaper publication activity. Accordingly, it is said that on 6th September, 2016 a letter was addressed to the appellant company notifying that the premises of the company would be inspected by the officers of the Department on 13th September, 2016. In pursuance to the aforesaid communication, inspection was carried out by the technical team on 13th September, 2016/26th September, 2016 and it is the case of the respondents that on inspection, the team did not find any press activity in the premises. The basement was lying vacant, ground floor and first floor were rented to Passport Office, i.e., Seva Kendra, second floor and third floor were used by Tata Consultancy Services and fourth floor by the appellant company. Annexure-P/9 at page 392 of the paper book is the notice of the inspection dated 6th September, 2016. Annexure-P/10 is the communication dated 9th September, 2016 made to the Land & Development Officer on behalf of the appellant company by Sh. Motilal Vora expressing his inability to be available at the time of inspection on 13th September, 2016 and, therefore, on 9th September, 2016 an intimation is sent by the department to the appellant with regard to inspection of the premises on 14th September, 2016. Further, records indicate that certain communications were made for production of certain documents, like certified copy of sanction plan, completion plan of the local bodies etc. and finally records indicate that inspections were carried out in the premises in question on 26th September, 2016 and a breach notice was issued on 10th October, 2016 pointing out certain breaches. In the meanwhile on 26th September, 2016 vide Annexure-P/12, Sh. Motilal ora is said to have made a communication to the departmental authorities in response to the notice issued on 15th September, 2016 wherein he communicated that the basement and fourth floor of the building are being used for press and offices of the lessee and he was pleased to inform that the appellant has taken steps to resume newspaper publication and with this objective in mind, a Editor-in-Chief has been appointed in August 2016 and preparations are in full swing to resume publication of the newspaper in the financial year 2016-17.”

It is then brought out in para 6 that, “Be that as it may, after the breach notice was issued as indicated hereinabove on 10th October, 2016, the appellant is said to have replied to the same on 19th October, 2016 vide Annexure-P/14. In the communication, the breach notice were referred to and finally a request was made to consider the submissions made in the reply and grant sufficient and reasonable time to study the breaches so as to enable them to file a satisfactory reply.”

Furthermore, it is then stated in para 7 that, “According to the appellant, after this nothing happened. The departmental authorities slept over the matter for a considerable period of time, that is, about 2 years and all of a sudden on 5th April, 2018 constituted a three-member Committee consisting of Sh. K.K. Acharya, Under Secretary (Vigilance), Ministry of Housing and Urban Affairs; Sh. G.P. Sarkar, Dy. Director, Directorate of Estates and Sh. Rajanish Kumar Jha, Dy. Land and Development Officer to confirm the status of the breach and to inspect the premises on 9th April, 2018 at 11 A.M. It is alleged that on 9th April, 2018, the Committee inspected the premises and in its inspection made the following notings:-

“The floor wise report is as under:-

(A) Basement: The basement was lying more or less vacant. Some scrap materials and an old printing machine, not in working condition, were found lying there. However, front side mezzanine in Basement is being used by Akash Gift Gallery in an area of 84 sq. ft. This comes under misuse category.

(B) Ground Floor: The floor is rented out to Passport Seva Kendra. Apart from this, unauthorised pucca construction used as panel room in rear in an area measuring 1010-03 sq. ft.

(D) Second and Third Floor: The floors are rented out in Tata Consultancy Services.

(E) Fourth Floor: The floor is being used by the lessee for its office.

Photographs taken at the premises are also enclosed.”

What’s more, it is then pointed out in para 9 that, “Be that as it may, it is the case of the appellant that in an arbitrary and illegal manner vide impugned order dated 30th October, 2018, the lease was determined and the primary considerations for doing so as is made out from the order dated 30th October, 2018 are:-

(a) no press or press related activity has been carried out from the premises for the last 10 years,

(b) misuse of land outside the primary purpose for which the lease was granted,

As a consequence, we then see that it is pointed out in para 10 that, “Aggrieved by this order passed by the Land and Development Officer (hereinafter referred to as ‘L&DO’) on 30th October, 2018 the writ petition in question was filed and the learned writ Court having dismissed the same by the impugned order dated 21st December, 2018, this appeal now by the appellant challenging both the orders dated 30th October, 2018 passed by the L&DO and the order passed by the learned writ Court.”

Going ahead, para 11 then reveals that, “Dr. Abhishek Manu Singhvi, the learned Senior Counsel along with Sh. Vivek Tankha, the learned Senior Counsel argued at length and pointed out that the entire action taken by the departmental authorities in passing the impugned order dated 30th October, 2018 and the consequential dismissal of writ petition is contrary to settled principles of law and is unsustainable and is liable to be interfered with.”

Moving on, it would be useful to note that para 46 crucially points out that, “Before adverting to consider various questions as have been submitted before us based on the questions formulated by the learned Senior Counsel as are detailed hereinabove, we, at the very outset, deem it appropriate to address the objection raised by Dr. Singhvi to the effect that formal notices were not issued either by the writ court or by this Court and no counter affidavits have been filed by the respondents and the respondents have tried to bring on record various factual matrix without there being any counter affidavit on their part. We find that the aforesaid submission is devoid of merits and should not detain so long for the simple reason that most of the facts that have come on record are based on the show cause notices issued to the appellant and their replies to the same. These are material on record arising out of the proceedings held before the L&DO and even if they are not stated in the form of a counter affidavit, we can take judicial notice of the same as the appellants themselves have brought them on record in the voluminous paper book filed. As far as the assertion made with regard to the transfer of shares of AJL to Young India and the share holdings of Young India and various other issues connected thereto are concerned, they are based on certain facts stated in the show cause notice issued by the Income Tax authorities on 15th June, 2018 and even if show cause notice is ignored, they do form part of the facts stated by co-ordinate Bench of this Court while deciding three writ petitions decided on 10th September, 2018, that is W.P. (C) No. 8482/2018 and other connected matters which were filed by the shareholders of Young India while challenging the action taken by the Income tax authorities. There is no whisper or serious challenge to these factual aspects by the appellant. They do not say, even orally, that these facts stated and relied upon by the respondents are false, incorrect, fabricated, untrue etc. They only say that certain facts have been stated without filing a counter affidavit. If the facts so stated, cognizance of which have been taken by the writ Court, are based on materials available in proceedings held before the L&DO and by a co-ordinate Bench of this Court in a writ petition, we see no reason as to why we cannot take cognizance or judicial notice of these facts and proceed to consider them for deciding the lis in question, particularly, when there is no specific or categorical denial of them even orally before us at the time of hearing. Accordingly, we are not impressed by the submissions by Dr. Singhvi to say that as no counter affidavit has been filed, therefore, most of the facts stated by Sh. Tushar Mehta should not be taken into consideration.”

NO PRESS ACTIVITY

To put things in perspective, it is then unfolded in para 48 that, “The first objection of the appellants were to the finding recorded passed on 22nd December, 2018 pertaining to there being no press activity in the premises in question, that is, finding in para-17 of the impugned order. The facts that have come on record clearly shows and it is an admitted position if we analyse the show cause notices issued to the appellants on 10th October, 2016 replied to the same on 19th November, 2016, the second show cause notice dated 5th April, 2018, the third show cause notice dated 18th June, 2018 and the fourth show cause notice dated 24th September, 2018 and the series of replies filed by the appellants on 19th November, 2016, 7th April, 2018, 16th July, 2018 and 9th October, 2018 along with the communication made by Sh. Motilal Vora on 26th September, 2018 available at page-406 of the paperbook that between the period from the year 2008 to 2016, the appellant themselves admitted that there was no publication of the newspaper from the premises in question or from any other place and it was only after the inspection of the premises was conducted for the first time on 26th September, 2016 that indication was made about commencement of newspaper publication for 2016-2017.”

More pertinently, it is then rightly disclosed in para 49 that, “In this regard, we may take note of the communication made by Sh. Motilal Vohra on 26th September, 2016 at page-406 of the paperbook. In this communication reference is made to an inspection notice dated 15th September, 2016 and it indicates that one Sh. Ravi Dayal is authorized to be present as a representative of AJL at the time of inspection at 11 A.M. on 26th September, 2016. That apart, as requested in the notice issued, certified copies of the sanctioned plan and occupation certificates were also submitted with this letter. The letter further states that the basement and the fourth floor of the building are being used for press and offices of the lessee and surprisingly the letter further says “I am pleased to inform you that the Associated Journals Ltd. Has taken steps to resume newspaper publication. Towards this objection an Editor-in-Chief was appointed in August, 2016” and the letter further says that preparations are in full swing to resume publication of the newspaper in the current financial year 2016-17. Referring to this letter, the learned Solicitor General had argued that this letter was written only for pre-empting the authorities so that they are not surprised if no printing activities are found in the premises. In fact, Sh. Tushar Mehta is right in contending that this was an attempt by the appellants and, in fact, an admission by them that no printing activity was being carried out in the premises at that point of time. That apart, when we go through the four show cause notices available on record issued on 10th October, 2016, 5th April, 2018, 18th June, 2018 and 24th September, 2018 and the reply filed thereto, we find that various breaches were pointed out in all these show cause notices and they were replied to by the appellant company and the cumulative admitted position that can be made out from the reading of these documents are as under.”

To be sure, what we then read in para 50 is this: “When the premises was inspected on 26th September, 2016, no press activity was being carried out in the area. Press activity and publication of the newspaper was suspended right from the year 2008 and all the employees were granted VRS. After the communication dated 26th September, 2016 was made by Sh. Motilal Vohra digital publication of the English Versions of the newspaper National Herald commenced from 4th November, 2016.”

Be it noted, para 51 then envisages that, “Digital version of Urdu edition Qaumi Awaz commenced on 12th August, 2017. Digital version of Navjivan, that is, Hindi version commenced on 28th August, 2017 and the print weekly newspaper, National Herald Sunday resumed publication from 24th September, 2017 and it is the case of the appellants that these newspapers were printed in a press at Noida. Finally the printing of Hindi weekly newspaper Navjivan commenced publication on 14th November, 2018 and the necessary license and authorization for the purpose of publication indicated hereinabove was granted by the Registrar of Newspapers for India on 21st November, 2017 available at page 581 is a certificate of registration issued by Sh. K Ganeshan, Registrar of Newspaper for India giving registration certificate for a newspaper titled ‘National Herald Sunday’. Accordingly it is clear that publication of the newspapers commenced after a gap of eight years as is indicated hereinabove. If this is the factual position, it can very well be concluded that when the first inspection took place, admittedly there was no printing of press or publication activity and the digital versions in English commenced publication only on 14th November, 2016, that is, about one and half month after the inspection took place on 26th September, 2016. Even though in the breach notice dated 10th October, 2016, there is no mention of there being no press activity but the admitted position is that when this notice was issued on 10th October, 2016 after inspection on 26th September, 2016 and the admission of Sh. Vohra on 26th September, 2016 that there is no printing activity, three other show cause notice issued, that is, 24th September, 2018 before taking the impugned action there is a mention about no press activity being carried out in the premises when the first inspection was ordered on 26th September, 2016.”

As it turned out, para 52 then reveals that, “Contention of Dr. Singhvi was that in the first show cause notice issued there is no breach with regard to printing activity. It was only in the fourth show cause notice that the breach was pointed out and, therefore, this breach being not a breach indicated in the show cause notice, action should not be taken on this ground treating it to be violation of a condition of the lease.”

It cannot be lost on us that it is then stated in para 53 that, “If we go through the detailed order passed by the competent authority which was impugned in the writ petition dated 30th October, 2018, we find that the impugned action has been taken not based only on the show cause notice dated 10th June, 2016, the impugned action is taken based on four show cause notices issued, all the replies and documents submitted by the appellants and after taking note of the totality of the facts and circumstances that came on record based on a combined analysis and scrutiny of all the four show cause notices and their replies, the breach has been recorded. The breach had been continuing right from the year 2008 till commencement of the digital publication on 14th November, 2016 and, therefore, if action is taken by holding that there has been violation of the terms and conditions of the lease deed for a period of more than 8 years and that only to retain the building and to pre-empt the respondents from taking any action, the so-called digital publications and weekly publications were commenced after inspection conducted on 26th September, 2016 is taken note of, we have no hesitation in holding that the breach of there being no printing activity or paper publication for a long period is established and this would mean and comes within the purview of breach of the terms and conditions of the license. The principles of law canvassed by the learned Senior Counsel appearing for the appellant and laid down in the case of S. Shrikrishna Oil Mill vs. Radhakrishnan Ramchandra, (2002) 2 SCC 23 pertaining to tenancy law cannot be applied in a case like this where the lease of government properties is granted to an organization or an establishment to carry out a specific act or purpose and if for a long period of time, the said purpose is not carried out and when there is a breach which even though to some extent may have been rectified when the proceedings for breach were going on, in our considered view, cannot be a ground for holding that the breach has been rectified in full and, therefore, there cannot be determination. It is the case where admittedly printing activities and publication of the newspaper were not being carried out in the premises when the inspection took place initially on 26th September, 2016 and even when the second inspection took place on 9th April, 2018 what was found was that the basement was lying more or less vacant and the fourth floor was being used for lessee for its office. The appellants may be right in saying that on 9th April, 2018, the weekly both Hindi and English were being published from the office at Noida and the office was functional on the fourth floor but on the appellant’s own showing both these newspapers, namely, weekly in Hindi and English commenced on 24th September, 2017 and 14th October, 2018 respectively and if finding there to be no press activity for a long period of 8 years a finding is recorded that there has been breach of the terms and conditions of the lease, we see no reason to hold that the finding recorded is not proper.”

It would be pertinent to mention here that it is then illustrated in para 54 that, “The terms and conditions of the lease stipulated that the land shall be used by the appellant for the purpose of construction of a building for the bonafide purpose of their press and, thereafter, requests have been granted inasmuch as four floors could be used for commercial purpose for housing commercial offices except hotels, cinemas and restaurants but the basement and the 4th floor were to be used for press and office. Admittedly, if not for the entire period, for a long period of time, that is for 8 years there was no press activity and the premises was used only for commercial activity if after examining the totality of circumstances, the lease is determined on recording a conclusive finding to the effect that no press has been functioning in the said premises for 8 or 10 years and is being used only for commercial purpose which violates a clause of the lease agreement, we see no reason to hold that the findings recorded for determining the lease and approved by the learned writ Court is a perverse and incorrect finding. The fact of luck of printing press alleged and the finding recorded is a proper finding based on the facts and circumstances of the present case and merely because after the actions were initiated by inspection and issuance of show cause notice on 26th September, 2016 and 10th October, 2016 if some publication activity both in the form of digital or printing is carried out that would not debar or prevent the respondents from determining the lease finding the same to have been breached continuously at least for a period of 8 years and accordingly, we see no reason to uphold the first objection raised on various grounds as are discussed hereinabove.”

RE-ENTRY CLAUSE

Truth be told, para 55 then elucidates while making it amply clear that, “As far as the contention of the appellant to the effect that once the defects having been rectified and, therefore, the appellants are entitled to the benefit of the re-entry is concerned, if we peruse the breach complained of, it would be seen that the action for determining the lease was undertaken on the basis of following allegations that have been made out on a cumulative reading of various breaches indicated in the four show causes notices. The alleged breaches are:

(a) misuse of land with reference to the basement being used by Aakash Gift Gallery,

(b) unauthorized construction on the ground floor and first floor,

(d) no press or printing activity being functional in the area.

Except for contending that the paper publication has commenced and the breach with regard to printing activity has been rectified by publication of the newspaper in the form of a web edition and by printing in the Noida press, other breaches with regard to misuse of the land and unauthorized constructions having been taken place is not rectified and if the allegations of transfer of 100% shares of the appellant company to Young India has the effect of transfer of the lease as contemplated under Clause III(13) is accepted then the right for re-entry would not be available as these breach still continue to exist.”

REGARDING CIRCULATION

It is dwelt upon in para 56. But as it has not much significance, it is best to avoid it.

REGARDING TRANSFER OF SHARE/PROPERTY

Going forward, para 57 then enunciates that, “The next issue which was vehemently canvassed before us on behalf of the appellant was with regard to the transfer of shareholding from AJL to Young India. It is the case of the appellant that mere transfer of shareholding cannot be a ground for holding that to be change of ownership or transfer of the lease. Placing reliance on the judgment of Bacha F. Gazdar (supra) detailed submissions were made by Dr. Singhvi to emphasise that a shareholder only acquires a right to participate in the profit of the company. He gets no interest in the profit of the company and even if the shareholders of the company do have some voice in administering the affairs of the company, but their interest is limited to sharing the profits of the company and the company, a juristic person, which is distinct from the shareholders still owns the property. It is argued that in the backdrop of this legal position even if some of the shares of the company have been transferred that would not mean that the ownership of the leased premises also get transferred to Young India Ltd. It was emphasized that the ownership still remains even on such transfer with AJL and the said transfer would not have any effect on the ownership or transfer of the leased premises. To consider this aspect of the matter, we are required to take note of the shareholding pattern of both the companies and the manner in which the transactions have taken place and further in case the “lifting of the veil theory’ is applied, what would be its effect with regard to the issue in question.”

More importantly, it is then observed in para 58 that, “Indian National Congress sometimes referred to as AICC had advanced a loan of Rs 90 crores to AJL. The loan was advanced on the condition that the amount shall be utilized by AJL to write off their accumulated debts and to recommence publication of its newspaper. As per the facts recorded by the co-ordinate Bench of this Court in its decision rendered on 10th September, 2018 in W.P. (C) 8482/2018, the books of account of AJL from 1st April, 2010 to 31st March, 2011 showed an outstanding debt of Rs. 88,86,68,976/- and it ultimately became Rs. 90,21,68,980/- as on 15th December, 2010. On 13th August, 2010, an application was made for incorporation of a charitable non-profit company (a company under Section 25 of the Companies Act named Young India). The application was in Form 1A with the competent statutory authority and on 18th November, 2010 Young India was incorporated and on 18.11.2010 license was granted and ultimately on 23rd November, 2010 Young India was incorporated with Sh. Suman Dubey and Sh. Sam Pitroda as its founder Directors. This company had an authorized share capital of 5,000 shares of Rs. 100/- each valued at Rs. 5,00,000/- and the paid up share capital was 1100 shares of Rs. 100/- each valued at Rs. 1,10,000/- and the company at that point of time had two shareholders, (a) Shri Sam Pitroda – 550 shares valued at Rs. 100/- each and (b) Shri Suman Dubey – 5,000 shares valued at Rs. 100/- each. On 13th December, 2010, the first Managing Committee Meeting of Young India took place and Shri Rahul Gandhi was appointed as its Director, namely, a non-shareholder and Shri Motilal Vora and Shri Oscar Fernandes as ordinary members. Within five days thereafter, that is, on 18th December, 2010, by a deed of assignment the loan of Rs 90 crores and odd outstanding in the books of Indian National Congress as recoverable from Associated Law Journals for the period 2002 to 2011 was transferred to Young India. Three days thereafter, on 21st December, 2010, a Board Meeting of AJL called for an EGM which was subsequently held on 24th December, 2010 and on the said date a loan of Rs. 1 crore was received by Young India from another company M/s Dotex and thereafter on 28th December, 2010 i.e. within a week a formal deed of assignment was executed by AICC assigning the loan of Rs. 90 crores in favour of Young India. Immediately thereafter on 21st January, 2011, an EGM of Associated Law Journal was held approving fresh issue of 9.021 crores shares to Young India and on 22nd January, 2011 i.e. on the next day the second Managing Committee of Young India was held in which Smt. Sonia Gandhi, Mr. Motilal Vohra and Mr. Oscar Fernandes were appointed as Directors and the 550 shares of the existing shareholders of Young India – Suman Dubey and Sam Pitroda were transferred to Smt. Sonia Gandhi and Mr. Oscar Fernandes and on the same day fresh allotment of Young India shares were made in the following manner: (a) 1,900 shares having paid up value of Rs. 1,90,000/- to Shri Rahul Gandhi, (b) 1,350 shares with a paid up amount of Rs. 1,35,000/- in the name of Smt. Sonia Gandhi, (c) 600 shares with a paid up value of Rs. 60,000 in the name of Sh. Motilal Vohra and (d) 50 shares with a paid up value of Rs. 5,000 in the name of Oscar Fernandes and after issuance of PAN by the Income Tax Department a bank account was opened by Young India with Citibank on 14th February, 2011 and the cheque issued by M/s Dotex for Rs. 1 crore was deposited in the Young India Bank account on the said day and on 26th February, 2011 Young India issued a cheque of Rs. 50 lakhs to AICC as consideration for assignment of Rs. 90 crore debt payable by ALJ to AICC. On the same day, i.e., 26th February, 2011, ALJ allotted 9,02,16,899 equity shares to Young India in pursuance to the AGM Meeting decision held on 21st January, 2011 and the ALJ Board Meeting on 26th February, 2011 and thereafter Young India applied for exemption under Section 12-A on 29th March, 2011 and on 9th May, 2011 the Income Tax Authorities granted the exemption with effect from the F.Y. 2010-11.”

Continuing in the same vein, it is then brought out in para 59 that, “Be that as it may, by the aforesaid transaction that had taken place Young India acquired beneficial interest on AJL’s property which on the said date was valued at more than Rs 400 crores on payment of a sum of Rs 50 lakhs to AICC. This, according to the respondent, if viewed in the backdrop of the purpose of transferlease and the modus operandi adopted is nothing but a devise to transfer the property held on lease from the Government by AJL, Young India which became 99% or rather 100% shareholder of AJL.”

Simply put, para 60 then stipulates that, “In the case of Bacha F. Guzdar (supra) relied upon by Dr. Singhvi, a Constitution Bench of the Supreme Court has taken note of certain judgments with regard to corporate identity and a legal position with regard to the rights to property of a company, a juristic person and the relationship of a shareholder with the company and its property, as canvassed by Dr. Singhvi and as observed by the Hon’ble Supreme Court the principle indicates that a shareholder acquires a right to participate in the profit of the company but he does not acquire any right or interest in the assets of the company. It has been held that by investing money in the purchase of shares the shareholder does not get any right to property of the company though he acquires a right in the profits if and when the company decides to divide it. Even though the shareholder of the company have the sole determining voice in administering the affairs of the company and are entitled to as provided in the Articles of Association to declare the dividends and distribute the profits of the company but their right individually or collectively is nothing more than participating in the profits of the company, it is held that the company is a juristic person and is distinct from the shareholders. In fact, it is the company which owns the property and not the shareholder. The judgment further goes to say that there is nothing in the Indian Law to warrant the assumption that the shareholder who by his share buys any interest in the property of the company which is a juristic person entirely different from the shareholder. This in fact is the law laid down by the Constitution Bench of the Supreme Court in the aforesaid case.”

Needless to say, it is then underscored in para 61 that, “It was vehemently argued by Dr. Singhvi that once this is the accepted legal position that is culled out on a perusal of the law laid down by the Constitution Bench, then by no stretch of imagination can it be argued that on transfer of shares of AJL to Young India Ltd., there is transfer of ownership or lease or property as contemplated in clause 13(3) of the lease in question. By referring to the judgment in the case of Mossanto Manufacturers (supra) and the terms and conditions of the lease deed which prohibited transfer in the said case and by comparing it to clause XIII(3) of the lease deed in question, we were told that in the absence of there being any specific prohibition permitting transfer of ownership of shares or change in the Article of Memorandum, the finding recorded with regard to transfer of ownership of the property recorded by the learned writ Court and the competent authority is unsustainable. The principles laid down in judgment of the Supreme Court in M/s K.G. Electronics (supra) and by this Court in DDA v. Human Care Medical Charitable Trust were also relied upon to canvass this contention.”

To put it succinctly, the Bench then in para 62 minces no words in stating that, “On a consideration of the argument as canvassed by Dr. Singhvi, at the first instance, the same looks very attractive and the findings recorded may look to be unsustainable and perverse, however, it is an equally settled principle of law that in public interest and for assessing the actual nature of a transaction or the modus operandi employed in carrying out a particular transaction, the theory of lifting of the corporate veil is permissible and a Court can always apply this doctrine to see as to what is the actual nature of transaction that has taken place, its purpose and then determine the question before it after evaluating the transaction or the modus operandi employed in the backdrop of public interest or interest of revenue to the State etc. The theory and doctrine of lifting of corporate veil had been considered by the Supreme Court in the case of Gotan Lime Stone (Supra) and in the said case, judgments in the case of Vodafone (supra) and Skipper Construction (supra) etc have been taken note of and in para 30, specific reference has been made to the Constitution Bench judgment in the case of Bacha F. Gazdar (supra). After referring to most of the judgments including the judgment in the case of Bacha F. Guzdar (supra) relied upon by Dr. Singhvi is referred to and finally the consideration to be made is culled out in para 19 of the judgment in the following manner:

“19. As already stated, the question for consideration is whether in the given fact situation the transfer of entire shareholding and change of all the Directors of a newly formed company to which lease rights were transferred by a declaration that it was mere change of form of partnership business without any transfer for consideration being involved can be taken as unauthorised transfer of lease which could be declared void.”

Not stopping here, the Bench then in para 65 makes the picture more clear by categorically and convincingly holding that, “If we consider the transaction in the present case in the backdrop of the aforesaid principles laid down by the Hon’ble Supreme Court, we have no hesitation in holding that the purpose for which the doctrine of lifting of the veil is applied is nothing but a principle followed to ensure that a corporate character or personality is not misused as a device to conduct something which is improper and not permissible in law, fraudulent in nature and goes against public interest and is employed to evade obligations imposed in law. If that is the purpose for which the doctrine of lifting of the veil is to be employed and if we see the transaction that has taken place in the present case with regard to how the transfer of shares between AJL and Young India took place, we find that within a period of about three months, that is, between 23rd November, 2010 to 26th February, 2011, Young India was constituted. It took over the right to recover a loan of more than 90 Crores from All India Congress Committee for a consideration of Rs. 50 Lakhs, thereafter replaced the original shareholders of Young India by four new entities including Sh. Moti Lal Vohra, Chairman of AJL and Young India after acquiring 99% of shares in AJL, became the main shareholder with four of its shareholders acquiring the administrative right to administer property of more than 400 Crores. Even though Dr Singhvi had argued that there is nothing wrong in such a transaction and it is legally permissible, but if we take note of the principles and the doctrine for which the theory of lifting of the corporate veil has received legal recognition, we have no hesitation in holding that the entire transaction of transferring the shares of AJL to Young India was nothing but, as held by the learned writ Court, a clandestine and surreptitious transfer of the lucrative interest in the premises to Young India. In fact, the contention of Dr Singhvi has to be rejected and rightly so was rejected by the Single Judge even though without applying the principle of lifting of the corporate veil. In case the theory of lifting of the corporate veil, as discussed hereinabove, is applied and the transaction viewed by analyzing as to what was the purpose for such a transaction, the so called innocent or legal and permissible transaction as canvassed before us, in our considered view, is not so simple or straight forward as put before us, but it only indicates the dishonest and fraudulent design behind such a transaction as laid down in various judgments referred to not only in the case of Udyog (P) Ltd. (supra) but also in the case of Union Territory of Estate Officer, UT, Chandigarh vs. S.C. Information Technologies, (2016) 12 SCC 582, Skipper Construction (supra), wherein also the theory has been applied after considering the principle laid down in Solomon (supra) and in para 28, in the case of Skipper Construction (supra), the law has been crystallized in the following manner:

“28. The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. Where, therefore, the corporate character is employed for the purpose of committing illegality or for defrauding others, the court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned. The fact that Tejwant Singh and members of his family have created several corporate bodies does not prevent this Court from treating all of them as one entity belonging to and controlled by Tejwant Singh and family if it is found that these corporate bodies are merely cloaks behind which lurks Tejwant Singh and/or members of his family and that the device of incorporation was really a ploy adopted for committing illegalities and/or to defraud people”.”

It is a no-brainer that it is then concluded in para 66 that, “Apart from the aforesaid judgments, there are various other judgments which have been brought to our notice wherein the said theory of lifting of the corporate veil has been approved and we have no hesitation in holding that the transfer in question, if analyzed in the backdrop of the principles as discussed hereinabove, we see no error in the findings recorded by the learned writ Court to hold that the transfer in question comes within the prohibited category under clause XIII(3) of the lease agreement.”

Finally and perhaps most importantly, let us now dwell on the concluding paras 70 and 71. Para 70 explicitly enunciates that, “Even though during the course of hearing Dr. Singhvi had tried to distinguish each and every judgment relied upon by the respondents to say that on the facts of each case, the same is not applicable, however, we are of the considered view that the said contention cannot be accepted. There may be certain differences with regard to the facts of each case, but this Court is required to take note of the legal principle that has been laid down by the Hon’ble Supreme Court in various cases, evaluate the facts and then apply them. While hearing this appeal, which is an intra-court appeal under Section 10 of the Letters Patent against a judgment of the Single Judge in a proceeding held under Article 226 of the Constitution, this Court has to keep in mind the limitations for interference in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. Power can be exercised in a given set of circumstances and cases where subordinate courts, statutory authorities or tribunals and officers act wholly without jurisdiction or in excess of jurisdiction or in violation of the principles of natural justice or proceed in an erroneous manner which is apparent from the face of the record resulting in omission, commission, error or excess which results in manifest injustice. Whatever be the extensive discretionary jurisdiction available to this Court, it cannot be converted into a jurisdiction akin to that of a Court of appeal, examine the correctness of an impugned decision, substitute the decision of the subordinate authority or court to that of its own and record a different finding. A reasonable finding recorded after grant of proper opportunity to all concerned which meets the requirement of law need not and should not be interfered with by this Court until and unless manifest injustice or violation of statutory enactment or well settled principles are writ large in the proceedings or order under challenge. If the case in hand is analyzed in the backdrop of the jurisdictional power available to this Court under Article 226 of the Constitution, we find that in this case the finding with regard to no press activity being carried out in the premises for about ten years, misuse of land and 100% transfer of share to another company are all subject matters of four notices issued to the petitioner. The petitioner submitted voluminous documents and replies to these notices which made allegations of unauthorized construction, unauthorized permission to Akash Gift Gallery, clandestine transfer for ulterior motive etc. and the petitioners had in fact admitted the position with regard to there being no press activity and admitted non-publication of the newspaper due to financial trouble for more than eight years. It was only when the breach proceedings took place that press was installed, licence obtained and publication commenced after 24th September, 2017. The appellant also do not deny the fact about there being unauthorized occupation by Akash Gift Gallery, pendency of eviction proceeding. If all these factors are taken note of and a decision is taken by the respondents to say that the dominant purpose for which the lease was granted has been violated and there has been misuse of the conditions of the lease, in the absence of mala fides or ulterior motive having been established, the writ court has rightly refused to interfere into the matter. We also see no reason to make any indulgence into a reasonable order passed by the writ court in the facts and circumstances of the present case.” Lastly, the Bench in para 71 concludes by saying that, “Accordingly, finding no grounds being made out for making any indulgence into the matter, we dismiss the appeal.”

In a nutshell, it can be said with certitude that this is a big jolt to AJL which is publisher of Congress mouthpiece National Herald in which Sonia Gandhi along with Rahul Gandhi hold high stake! The Bench of Chief Justice Rajendra Menon and Justice VK Rao have upheld the single Judge’s December order which had dismissed AJL’s plea against the Centre’s eviction order and had directed it to vacate in two weeks the Herald House in the ITO area in the heart of the capital! AJL had appealed against the single Judge’s December 21, 2018 order after which eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated but failed to get any relief. It had challenged the Centre’s October 30, 2018 order ending its 56-year-old lease and asking it to vacate the premises on the ground that no printing or publishing activity was going on and it was being used only for commercial purposes! Now it is quite palpable that AJL will approach the Supreme Court which is the top court! We have to keep our fingers crossed till Supreme Court finally delivers its judgment on this and refrain from second guessing what will be the final outcome! Only time will tell which way the dice rolls!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

India Will Now Not Tolerate Sponsored Terrorism

Let me begin with a candid confession: Hitting terrorists right where their terror training camps were operating openly in Pakistan with full impunity was something which I could not imagine even in my wildest of dreams but this present dispensation led by Prime Minister Narendra Damodardas Modi has made this happen in reality! India has certainly outsmarted even Israel! It has to be borne in mind that Israel has never had to deal with a nuclear armed state or with conventional armed forces of the size of Pakistan’s. This has undoubtedly boosted India’s image and has shattered the charade that India only knows how to tolerate terror attacks but never knows how to retaliate against such attacks!

To be sure, India has hit targets now across the international border that is deep inside the very heart of Pakistan in Balakot in Khyber Pakhtunkhwa. PM Narendra Modi on March 1, 2019 rightly declared that the country will no longer be “helpless” in the face of terror, saying a “New India” will pay back terrorists with ‘interest’ and that their influence has been curtailed and will be curbed further. While reiterating his government’s firm resolve to hit hard against terrorism by retaliation, PM Modi slammed the previous Congress-led UPA government for not following such aggressive tactics and accused it of “blocking” surgical strikes post 26/11 Mumbai attacks in November 2008. The then Air Force Chief wanted to hit deep inside Pakistan but Centre did not then give the green signal!

Simply put, PM Narendra Modi rightly said that, “The country has been facing the menace of terrorism for years but there is a big difference now…India will no longer be helpless in the face of terror.” No one can deny that the whole world including Pakistan and terror groups operating in Pakistan are now themselves feeling terrorized by what India has done under the leadership of PM Modi and for this we all must feel proud of him! One can gauge this even if we hear Pakistani leaders themselves saying in Parliament that India had the guts to send 14 air fighter planes right inside Pakistan to hit and we could not prevent it! On the contrary, India had gunned down their F-16 airfighter which tried to enter India very swiftly! This alone explains why many Opposition members in Pakistan cried “Shame, Shame” the moment Imran Khan entered Parliament!” Who can deny this? Only the political opponents of PM Modi!

It is a national tragedy and a national shame that some major opposition parties after initially hailing the air strikes have now suddenly taken a U turn and are shamelessly questioning the capability of our air force to strike deep inside Pakistan and calling for concrete proof so that they can believe it! Nothing on earth can be more shameful! PM Modi is right in saying that, “The world is supporting India’s fight against terror but a few parties suspect our fight against terror. These are the same people whose statements are helping Pakistan and harming India.”

Telling Opposition parties to stop weakening India with their statement to strengthen their own politics, the PM rightly said, “Modi will come and go, India will remain. Don’t weaken India for your political mileage. Your politics can wait but not the nation’s security.” Air Marshal Hari Kumar who as Air Officer Commanding-in-Chief (AOC-in-C) of Western Air Command oversaw the Balakot air strike on terrorist training camp of Jaish-e-Mohammad rightly said that, “What was the task set to us we have achieved it. The rest of it is for the government to decide. Nobody wants war.” But he then rightly added a rider that, “Neither can we tolerate terrorists killing our citizens. We cannot tolerate cross border terrorism. The message has to be sent that we cannot lose citizens, in uniform or otherwise. Our IAF has the capability to hit anywhere.”

Will Opposition leaders question this also? When the whole world including dreaded terror group Jaish-e-Mohammad who claimed responsibility for the Pulwama terror suicide bomb attack on CRPF is acknowledging air strikes by India in Pakistan, some of our politicians shamelessly led by the like of Mamata Banerjee are questioning whether the air strikes by the Indian Air Force (IAF) on a terror camp in Pakistan resulted in any casualties at all. Mamata said without any remorse while talking to the media at the State secretariat most brazenly and recklessly that, “From today one, we are hearing, particularly on national television channels that 300-350 persons died in the air strikes. We want to know how many people actually [have] died. Did anyone die at all? Where were the bombs dropped? Were the bombs dropped at the right place?”

If Opposition parties still continue questioning our forces, they will themselves be squarely responsible for contributing the most in ensuring Modi and BJP’s thumping majority in the upcoming elections! God cannot stop BJP from winning if Opposition leaders keep mocking at our soldiers by asking for proof so that they can believe what Government says or for what top defence officers say! Time will prove whether I am right or wrong!

Let me say this on record: I am not associated with BJP in any manner or with any of its sister organizations like RSS among others! In fact, till recently I was in fact the worst critic of BJP and my dislike started with BJP’s handling of Kargil war under stewardship of former PM late Atal Bihari Vajpayee and stupidly welcoming Pakistani invader Musharraf like a royal emperor only to get attack on Parliament, attack on Akshardham, releasing the chief of Jaish-e-Mohammad Masood Azhar along with 3 others etc, foolishly choosing not to retaliate hard even after the Defence Services Chiefs wanted to hit Pakistan hard and this continued even after PM Modi took over for foolishly declaring Ramzan ka ceasefire thus directly helping Pakistan and terrorists to attack freely our soldiers wherever they want and whenever they want or going to Pakistan all of a sudden and getting Pathankot in return and then again foolishly inviting ISI agent only to be rebuffed by Pakistan when India’s turn came for sending NIA to Pakistan or allowing withdrawal of criminal cases from about 10,000 stone pelters as we saw in Mehbooba’s term as CM who came to power with BJP’s support.”

My blind hatred for BJP diminished after surgical strikes that Indian army soldiers carried out after Uri terror attack and it now stands almost destroyed after this unexpected air strikes right inside Pakistan where terror training camps were operating with impunity! Honestly speaking, I am deeply impressed by these air strikes and I truly applaud and appreciate PM Modi for taking such a courageous decision that has shaken Pakistan to the core! No political party and no PM in last three decades ever dared to do what BJP under stewardship of PM Modi has chosen to do now! The whole world is talking about it! India cannot be taken for granted now no matter how loudly the Opposition parties may scream!

But Opposition parties led by Mamata are leaving no stone unturned to undermine it! My father till recently always used to admire her leadership qualities to which I used to nod! But now I have told even my father point blank that how can any true Indian talk like this and speak in a way that directly helps our enemy nation that is Pakistan? My father conceded then that she should not have spoken like this as she is directly questioning rather insulting not just PM Modi but even our forces who fight so valiantly!

Even Lt Gen (Retd) DR Soni while speaking in a news channel too was at pains to note that leaders question directly our forces and their capability to strike deep inside Pakistan and said that what impact will it have on the morale of young soldiers and officers with about 5 years experience these politicians don’t think while speaking! How frustrated Pakistan is can be well gauged by the fact that it has brazenly started indiscriminate firing in border areas just like it did after the surgical strikes in 2016 and now the same old story is being repeated again! What bigger proof is needed than this? The Opposition once again after initially welcoming the attack have started following Mamata! Are they not responsible for scripting their own electoral debacle?

It is high time and Opposition must specify whether it stands with Pakistani version or with Indian version? You cannot have it both ways! No true Indian will ever back Pakistani version which even some of their own brave journalists are not ready to accept. Very rightly so!

Is the brother of Masood Azhar speaking lies and shedding crocodile tears while saying that they have suffered a lot and lost many? Countering denials of the Pakistani government and military, Maulana Ammar who is the younger brother of Masood Azhar who heads Jaish-e-Mohammad has in an audio confirmed that Indian fighters hit the JeM camp near Balakot in Khyber Pakhtunwa province of Pakistan. He said that, “This is a declaration of war by the enemy. The Indian aircraft did not attack any safe house of any agency. It did not bomb the headquarters of any agency. They bombed a centre where students were learning jihad for the assistance of Muslims of Kashmir. This is not a jihad of any agency, by coming out of its territory to attack us, India has ensured we start our jihad against it.”

Will Mamata and the likes of her question this also? Have they not really gone crazy in their blind hatred for PM Modi? You answer that! Every true Indian should endorse what Arun Jaitley has said that, “Opposition has given a chance to Pakistan to smile.” Should we be proud of this? People will reply them by voting! Not for me to reply by pen!

I don’t know who is misguiding Mamata Banerjee to venture to even say something senseless like this that, “We don’t war for the sake of politics. If war takes place in the interests of the country then our full support is with the country. We don’t want war for political interests and for winning an election. We want peace.”

What message is she trying to send by saying this? Does India want war? Has India engineered Pulwama attack for political interests? Has India retaliated for winning an election?

What type of peace is she talking about? That peace under which stone pelters alone are given full freedom to attack our brave soldiers fearlessly and act like true Pakistani soldiers? That peace under which our forces keep getting killed and we keep inviting foolishly ISI agents as was actually done after Pathankot terror attack? That peace under which Ramzan ka ceasefire is declared as we have seen time and again which actually is unfettered licence to terrorists and BAT (Border Action Team) of Pakistan to attack our soldiers when unarmed and unprepared, behead them and take their head to be kept as trophy or to be played as football with amongst themselves as has happened also actually? This is the type of peace which Mamata wants?

What is worse is that once Mamata says something so brazenly and foolishly, we see leaders from other parties too quickly jumping in the bandwagon and singing the same tune like her! They are themselves responsible for scripting their own defeat well in advance! Even God cannot save them from losing if they keep endorsing what Pakistan says and keep assailing our forces capability to strike deep inside Pakistan!

Even some Pakistani ministers have acknowledged right inside Parliament that this is the first time after 1971 that Pakistan has been attacked by India! Are they also speaking lies? Obviously India will not send 12 planes and drop 1000 tonnes bomb just to kill a crow or just to target few trees or just to fool the world! Will Opposition question this also! God help them! Even God will refuse to help them in the upcoming elections if they refuse to mend their ways!

As it turned out, Finance Minister Arun Jaitley rightly said in a dig at opposition and sections of media who have raised questions about the effectiveness of IAF’s strikes on Jaish-e-Mohammad’s terror camp at Balakote deep inside Pakistan that “compulsive contrarians discovered a new Balakote” which lies just next to LoC inside Indian territory. Jaitley while speaking at the launch of book titled ‘Mann Ki Baat – A Social Revolution on Radio’, based on Prime Minister Narendra Modi’s monthly radio broadcast rightly and wisely said that, “When our Air Force reached Balakot in Khyber Pakhtunkhwa, before one could gather any information someone started saying it is very close to the LoC (Line of Control) and some people whom I call compulsive contrarians discovered a new Balakote without even checking that Balakote is not across the LoC but in our own Poonch.” Why will our own Air Force attack our own territory” Jaitley rightly asked, suggesting that the simple question escaped the “compulsive contrarians” because of their bias.

Let me tell Jaitley: Every true Indian stands with Centre in what they have done and proudly salute for doing what no government in power in Centre has ever done before! Even Israel has applauded it as “most courageous”! I am so proud of PM Modi for what he has done after Pulwama attack that it is for the first time in life that I who till some time back was his worst critic will venture to even say that, “God must ensure PM Modi’s victory as he deserves it richly for what he has done. By retaliating strongly we have proved to the world that we are not just sitting ducks and can strike very hard where it hurts the most and most swiftly when provoked!”

Lord Krishna had once famously said that, “Vinash kale viprit buddhi” which means that when time is destined to bring disaster then mind also stops working! This is what all those leaders of opposition led by Mamata Banerjee are demonstrating now most brazenly!

Mamata and the likes of her are not ready to believe even Maulana Ammar who is younger brother of jasih chief Masood Azhar who said that, “Today the enemy has answered all questions itself when the enemy crossed the mountains and entered our land and launched attacks on our Islamic centre.” Mamata will not buy any argument that is opposed to her nonsensical stand! She stands fully exposed!

Maulana Mehmood Madani of Jamiat-Ulema-e-Hind has warned Pakistan that they will be sorted out if they don’t reform. He also said that just recently Hindustan has proved that we are not weak. Now will Mamata and likes of her question Madani also? How long will Mamata run away from the stark truth? It is advantage BJP and she is only further serving to accelerate the pace!

Will Mamata question space technology also and photos of the destroyed sites of Jaish hideout? What has happened to her? So surprising that even some of her learned MPs like Derek O’ Brien of TMC are questioning BJP leader Manoj Tiwari for wearing army dress and insulting army! What is wrong in it? Manoj Tiwari rightly asked that if someone wears Nehru’s dress, will it be his insult? The whole nation is proud of Army!

Rajanth Singh who is Union Home Minister and whom every true Indian saluted after he shouldered a coffin of a slain CRPF soldier during a wreath laying ceremony for the martyrs of Pulwama terror attack rightly and wisely said that, “You have seen the power of our Army and CRPF. Once the government decided to strike terrorist hideouts on Pakistani soil, there was no second thought. Our jawans successfully accomplished the plan and destroyed the camp where around 300 terrorists were staying and taking training.” He further rightly quipped that, “As Pakistan is a neighbouring country, we should have cordial relations with it. Indian PMs have always tried their best to have a good relationship, and Atal Bihari Vajpayee even went there with a peace message. But I wonder why Pakistan does not give up its nefarious designs against India.”

Talking about the response of the global community after the Pulwama attack, Rajnath also rightly said: “Today, the entire world has come on a single platform against terrorism. Even the Organisation of Islamic Cooperation (OIC), which represents about 57 Islamic countries, invited India to its conference. This shows that India’s influence over the world communities has increased.” Who can deny this?

Union Minister of External Affairs Sushma Swaraj addressed the OIC as a guest of honour, which was a big diplomatic success for India. She rightly and sagaciously summed up by saying that, “The success of a country could be measured by its military and diplomatic wins. Our armed forces destroyed terror camps in Pakistan and we also successfully won the diplomatic battle.”

It is most heartening to note that Rajanth Singh has declared that the government had decided to fight a decisive war against terrorism and it has begun! He also said after laying the foundation stone of CRPF Group Centre in Chakia (Chandauli) in UP that, “Terrorism has emerged as a big challenge before the world community. Not only India, but most of the countries in the world are affected by terrorism. But, I assure you that it would not last very long as our government has decided to wage a decisive war against terrorism to eliminate it completely from the Indian soil.”

Talking of all-round pressure on Pakistan to stop supporting terrorism, Rajnath predicted that, “A situation will soon arise when Pakistan will be compelled to eliminate terrorism from its soil. Otherwise, a situation would be created for complete elimination of terrorism from Pakistani soil. No power in the world can stop it. India has shown the world that it could hit terrorism not only on its own soil but also on foreign soil.”

No doubt, this present dispensation at Centre has very swiftly and sternly proved this also which has forced dreaded terror group Jaish-e-Mohammad who initially roared like a tiger by claiming responsibility to mellow down and then cry like a cat and lick its wound in the open as we saw Maulana Ammar doing who is younger brother of Jaish chief Masood Azhar! Centre’s crackdown on terrorists, on sympathizers of terrorists like Hurriyat by withdrawing their security and sending some of them to jail, withdrawing MFN status from Pakistan, imposing 200% duty on import items, banning Jamaat-e-Islami, deciding not to give India’s share of water to Pakistan etc are some few steps which are really comemdnable even though there are many more that have been taken or are being contemplated currently to be taken in future! Pakistan must wake up before it is too late!

It is a no-brainer that Foreign Minister of Pakistan Shah Mehmood Qureshi should stop fooling the world by saying that, “We will not allow Pakistani soil to be used by any group or any organisation for terrorist activities against any state including India”. Even an insane person will not believe Qureshi! This is because when Hafiz Saeed who is Chief of terror group Lashkar-e-Taiba or Syed Salaluddin who is chief of Hizbul Mujahideen and ehad of United Jihad Council publicly threaten to kill Indian and butcher them mercilessly and to bleed India by thousand cuts, do they do so because they are shooting some film?” How long will Qureshi and Pakistan fool this world?

Former Pakistani Army Chief and President Gen Pervez Musharraf had himself said a long time back that, “Osama to hero hain ji hero. Hafiz Saeed bhi to hero hain. Woh to bilkul aasli hero hain. Wohi baat Syed Salaluddin ki hain. Bharat ke liye ye aatankwadi hain paar hamare liye to yeh freedom fighter hain ji aur bilkul aasli hero hain ji.” Will Qureshi deny this also? What all will he deny?

How long will Qureshi refuse to see the ground reality and the writing on the wall? Qureshi and his country Pakistan must remember the abiding validity of the time-tested old adage that, “You can fool some of the people some of the time, you can fool all the people some of the time, you can fool some of the people all the time but you cannot fool all the people all the time.”

No matter how hard Opposition parties may try to discredit the present dispensation, the real dirty face of Pakistan stands exposed in front of the world! The present dispensation has now sent a very strong message that India will not tolerate sponsored terrorism and will not respect any longer the boundary lines to target terror training camps! I must confess that I who till recently considered myself the most trenchant critic of BJP and PM Narendra Modi too has been radically transformed and melted substantially by these air strikes and tough measures taken against Pakistan for sponsoring terrorism from its soil!

Keep it up! Bravo! Don’t rest till each and every terrorist is eliminated and keep launching such surgical strikes whenever any information is received from anywhere of terror camp operating in any part of Pakistan! The whole nation stands with you very firmly! Have just no doubt on this!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this:

Rate this: