‘Exceeded Jurisdiction’: Division Bench Of P&H HC Sets Aside Single Bench Order

At the outset, it must be stated that the Punjab and Haryana High Court just recently on June 30, 2020 in a noteworthy judgment titled Punjab and Haryana High Court through its Registrar (Computerization) v. Zahur Haider Zaidi & Ors. in Case No. : LPA No. 401/2020 (O&M) & Case No. : LPA No. 402/2020 (O&M) has set aside a single Bench order on administrative side passed during judicial hearing. The Division Bench of Punjab and Haryana High Court comprising of Chief Justice Ravi Shankar Jha and Justice Arun Palli while setting aside the order of a single Judge whereby orders pertaining to administrative side of the High Court were passed during hearing of two criminal matters said clearly, categorically and convincingly that, “Running of the High Court on the administrative side cannot be permitted to be taken up by each and every Judge on the judicial side as he thinks fit as that would lead to collapse of the system of the administration of the High Court.” It was also clarified that if any Judge faces technical problem during hearing of cases via video conferencing, the proper course would be to bring the same to the notice of the Registrar General of the High Court.

Needless to say, it is pointed out at the beginning itself that, “With the consent of learned counsel for the parties, the matter is being taken up and heard via video conferencing.” The ball is then set rolling by observing that, “Both these appeals have been filed by the Punjab and Haryana High Court being aggrieved by the orders dated 21.05.2020 and 10.06.2020 passed by the learned Single Judge in CRM-M No. 7051 of 2020 and CRM-M No. 7434 of 2020 directing the High Court to ensure that technical persons are available at the time of hearing of cases through video conferencing and that such technical persons should ensure that every case is available on-line on the computer by downloading the cause list onto the laptop/computer and make an icon on the desktop of that computer as also download the pleadings of all the cases listed on that day onto the computer and make individual icons on the desktop so that the Court can access each case at the click of the mouse. It is also directed that such technical person should ensure that the cases so downloaded are as per the cause list and are properly and accurately uploaded.”

To say the least, the Bench then notes that, “It is submitted by learned counsel for the appellant that the said directions were issued in the criminal matters that were being heard by the learned Single Judge. It is submitted that they have no grievance and have not challenged the orders passed in the criminal cases but are only aggrieved by the directions issued to the High Court regarding making available of technical persons for regular court work.”

While elaborating further, the Bench then observes: “It is submitted that in CRM-M No. 7051-2020, the petitioner was praying for regular bail whereas in CRM-M No. 7434 of 2020, the order passed by the Special Judge, CBI Court, Chandigarh cancelling the bail of the petitioner therein was assailed. Thus, the High Court (appellant) was not a party to those proceedings. However, being aggrieved by the directions/orders that are being assailed in the present appeals, the High Court in the first instance moved two applications in each of the cases; seeking to be impleaded as party and for recalling the order(s) dated 21.05.2020. Vide order dated 10.06.2020, the learned Single Judge impleaded the appellant as party to the proceedings. But the prayer for recalling/modifying the order dated 21.05.2020 has since been declined vide order dated 10.06.2020 and instead it was observed that “as regards recalling/modification of the order, I see no reason to do so because if training had already been imparted to the staff of each Court, it is the duty of such court staff to ensure, in tandem with other officers/officials of the Registry, to upload all case files on to the computers/laptops/i-pads etc. available to each Court”. Thus these appeals.”

More to the point, the Bench then observes that, “Learned counsel for the appellant having taken us through the grounds on which the order dated 21.05.2020 was sought to be recalled as also the grounds of appeal at hands has demonstrated that the impugned directions issued by the learned Single Judge are rather causing practical difficulties and have made it nearly impossible for the High Court (appellant) to regulate and manage the video conferencing process. He submits that the role of the technical staff of the Computer Section of the High Court is confined only to resolving the technical issues concerning connectivity or audio/video disturbances during the hearing. Whereas the task of downloading the cause list, pleadings, making individual icons on the desktop, downloading the cases as per the cause list, has specifically been assigned to the secretarial staff attached to each Court/Judge. Thus, he submits in the wake of the directions issued by the learned Single Judge, the technical staff is now required to take up even the secretarial work. It is, therefore, prayed that the impugned directions be set aside.”

Be it noted, the Bench then brings out that, “It is informed that the number of technical staff available in the High Court is very limited whereas adequate and sufficient trained staff including Special Secretary/Secretary/Private Secretary/Judgment Writer/Stenographers (stenography line) and Special Secretary/Court Secretary/Reader/Superintendent (Reader Line) and Law Researchers have already been provided to each Court/Judge and they have also been directed to ensure that the Court is able to take up the video conferencing without any hindrance by downloading the paper books, making icons on the desktop and ensuring downloading of the cause list in accordance with the serial numbers notified. It is the secretarial staff that is responsible for the aforesaid task and has to be utilized for that purpose and not the technical staff of the High Court.”

Importantly, it is also clarified by the Bench that, “Thus, the secretarial staff attached to each Court/Judge that consists of Special Secretary/Secretary/Private Secretary/Judgment Writer/Stenographers (stenography line) and Special Secretary/Court Secretary/Reader/Superintendent (Reader Line) and Law Researchers is obliged to ensure that the court proceedings through video conferencing are held unhindered. Undoubtedly, the technical staff of this Court are fully skilled/trained to deal with any technical snag/issue during the video conferencing but not equipped to manage the procedural functioning of the Court which is a specialized task of a regular court staff. In the circumstances, we are of the considered opinion that the impugned directions deserve to be set aside.”

More importantly, the Bench then observes that, “We are also impelled to observe that of the two matters listed before the learned Single Judge, in one regular bail was prayed for and in the other the order of cancellation of bail was under challenge in which the issues regarding the problems arising in the video conferencing were neither involved nor raised. In such circumstances, if any inconvenience was faced by the learned Single Judge owing to lack of any technical/secretarial assistance, the proper course that should have been adopted was to bring the problem to the notice of the Registrar General of this Court for its resolution.”

Most importantly, the Bench then makes it a point to say clearly, categorically and convincingly that, “We are of the considered and firm opinion that the learned Single Judge exceeded his jurisdiction in issuing directions purely relating to the administration of the High Court “in a criminal matter” as the extraordinary and inherent powers of the Court cannot be invoked in purely administrative matters. Judicial powers cannot be invoked to run the administration of the High Court, which task vests in the Chief Justice or in the Full Court of the High Court and is regulated by Rules and instructions issued in that regard. Running of the High Court on the administrative side cannot be permitted to be taken up by each and every Judge on the judicial side as he thinks fit as that would lead to collapse of the system of the administration of the High Court.”

Going ahead, it is then held that, “Moreover, as the issue in respect of which the impugned directions have been issued was neither subject matter of challenge nor within the roster assigned to the learned Single Judge and therefore, the learned Single Judge exceeded the jurisdiction vested in him rendering the directions nonest. The law in respect of the issue has been clarified by the Supreme Court in the case of Campaign for Judicial Accountability and Reforms v. Union of India and another (2018) 1 SCC 196.”

Finally, it is then held that, “In the circumstances, the impugned directions issued by the learned Single Judge vide orders dated 21.05.2020 and 10.06.2020 to the extent that the technical staff of the High Court has been directed to take up the secretarial work are set aside. It is made clear that the responsibility as delineated in the preceding paragraphs about the technical staff shall be followed and implemented by the Registry subject to any modification or change that shall be caused by orders passed subsequently on the administrative side. Both the appeals are accordingly allowed and stand disposed of in the above terms.”

No doubt, all the High Court Judges must always pay heed to what the Division Bench of Punjab and Haryana High Court has held so explicitly in this leading case! This will save them from getting their order overturned by a Division Bench as we see in this leading case! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Absence Of Injury On Prosecutrix Implies Her Consent For Sex

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

CRM No. 27600 of 2017

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

CRM-A-1887-MA of 2017

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

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

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

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

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

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

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

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

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

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

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