What’s more, it is then pointed out by the Youth Bar Association of India in para 8 of its petition that, “That it is of utmost necessity that present situation may be addressed and meaningful directions may be issued for interest of justice in large public interest.” More importantly, para 8 then mentions the grounds which justify the issuance of directions by the Supreme Court for filling up the judicial vacancies. The numerous grounds which have been mentioned are as follows:-

1. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.

2. Because judiciary is a limb of the democracy. It should not be left bare handed to cause its own work done. Not providing adequate human resource to cause its function perform is nothing less than impeding dispensation of justice. Justice, socio-economic or political are the constitutional goals aspired by the founding fathers. Preamble of the Constitution containing the collective aspirations of the framers of the Constitution forms part of a basic structure. It provides that ‘justice’ as the basic features for democracy to survive. Any obstruction in the dispensation of justice shall amount to deviation from the aspirations of Constitution makers. Wait for long to get justice in the want of sufficient strength of judges is impliedly an impediment in the dispensation of justice.

3. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed under Section-151A of THE REPRESENTATION OF THE PEOPLE ACT, 1951 as well as under ARTICLE 62(1) AND (2) OF THE CONSTITUTION OF INDIA, which deals with the specific time of the appointment to be done in case of the President of India and that is being strictly observed while making appointment but while in appointment of judges although having prior information regarding the retirement of the Hon’ble Judges still no effective steps are taken to fill up those vacancies.

4. Because speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of adequate judges or financial resources. The state may have its financial constraints and expenditure but the law does not permit any government to deprive its citizens of the constitutional rights on plea of poverty.

5. Because the Right to Speedy Trial is considered as a Fundamental right of the citizen of this country which has been explicitly dealt by this Hon’ble Court in Hussainara Khatoon Vs State of Bihar AIR 1979 SC 1377 in the year 1979 and this right is implicit in ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDIA. It is the constitutional obligation of the government to devise such procedures as would ensure and implement speedy trial. This Hon’ble court being majestic authority has to act as guardian of Fundamental rights of the citizens.

6. Because Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice.

7. Because ‘Justice delayed is justice denied’. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process as an option, it would tantamount to denial of not only access to justice but justice itself.

8. Because the leniency shown by the Government by the way of withholding the recommended names from this Hon’ble court for the appointment of judges in High Court for a long period of time without any justification increases the vacancy at its peak. It is important to maintain the ratio of judges to the population for the fast as well as timely disposal of cases.

9. Because in Supreme Court Advocates-On-Record Association vs. Union of India (1993) 4 SCC 441 in its para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice Of India and in the case of High Court by the Chief Justice of that High Court…..”. Thus, duty is cast upon the Chief Justice of the concerned High Court to fill up the vacancies but despite a huge number of vacancies, the Hon’ble High Court is not proposing enough names to fill up the vacancies.

10. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries i.e. legislature and executive.

11. Because primacy to be accorded to Hon’ble Chief Justice of India’s views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. Therefore, the government cannot sit idle over the recommended names by this Hon’ble Court.

12. Because as per the Article 50 of the Constitution of India for the very specific purpose of independence of judiciary, a direction is given to take steps to separate the judiciary from the executive in the public services of the State.

13. Because the citizens of this country being frustrated due to the long pendency of the cases and dates after dates started losing faith on judiciary and it may lead to the worst situation in the upcoming time that the society will start taking law in their own hands and the ultimate sufferer in whatever situation may be are the common and poor people of this country.

14. Because the main intention of the framers of the constitution in regard to judiciary was to carry out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution. In that sense the judiciary has to act as a sentinel on the qui vive. But the intention of the framers of the constitution is not adhered to at its inception by not appointing judges as per the sanctioned strength.

15. Because the young lawyers who have opted law and litigation as means to live with the dignity are on the verge of extinction due to prolong delay in disposal of the cases. The inordinate delay caused in conclusion of the cases hampering, on the one hand, entire justice administration, on the other hand, affecting adversely the young lawyers striving for a securing career.

16. Because the reputation of the institution is at the stake. Unexplained delay in filling up the vacancies and delayed disposal of cases consequent thereto impeding the trust and the faith of not only the sufferer but also the common people in this institution.

17. Because ‘judiciary’ is the part of basic structure of the Constitution and also considered to be a pillar of democracy. Interference, by any means, affecting its smooth functioning amounts to interference in the independence of judiciary. Causing delay in appointing the judges might not be the expressive way of interfering with the independence of judiciary but it might be an indirect way of hampering its independence. For rule of law to prevail, judicial independence is of prime necessity.

18. Because while filling up the vacancies in the Council of the States and the House of the People a statutory time limit has been prescribed in Section-15A of THE REPRESENTATION OF THE PEOPLE ACT, 1951. The above said section states as follows-

‘151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151. – Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy: Provided that nothing contained in this section shall apply if-

(a) the remainder of the term of a member in relation to a vacancy is less than one year; or

(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period’.”

19. Because it is further stated that even in the case of filling up the vacancies in the office of the President Article 62(1) of the Constitution of India has clearly stated that “an election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term” and Article 62(2) of the Constitution of India states that “an election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of the occurrence of the vacancy; and the person elected to fill the vacancy shall subject to the provisions of Article 56 be entitled to hold the office for the full term of 5 years from the date on which he enters upon his office”.”

20. Because it is an admitted fact that judiciary, in this country is the last resort and faith left to a victim as well as to an aggrieved person. The citizen of this country comes before the judiciary with a hope to get justice and justice within time. Even the same was also the intention of the maker of the Constitution of India, but unfortunately the interest of that intention is not taken care of. It is further submitted that in case of vacancy of legislative bodies, by-election is being conducted and the vacancy is filled up but in case of judiciary it is being given a step motherly treatment.

21. Because for instance it may be mentioned here that the Calcutta High Court has a total strength of 72 but there has been no appointments as per the sanctioned strength, which resulted into huge protest. The question arises here that who is responsible for such a huge vacancy? The answer of this question is very well enumerated in the case of ‘Supreme Court Advocates-on-record Association vs. Union of India’ (1993) 4 SCC 441. In para 486(2) it is stated that “initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India and in the case of High Court by the Chief Justice of that High Court…..”.

22. Because the constitutional task assigned to the judiciary is in no way less than that of other functionaries – legislature and executive. Indeed, it is role of the judiciary in carrying out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitution by checking excessive authority of other constitutional functionaries beyond the ken of the constitution.

23. Because the delay in appointment of the judges is not only destroying the functioning of democracy but also leading towards the lawless society which also violates the main intention of the maker of the constitution.

24. Because this Hon’ble Court in Supreme Court Advocates-On-Record Assn. Vs Union of India (1993) 4 SCC 441, it has been explicit in giving primacy to the opinion of Hon’ble Chief Justice of India. It is pertinent to mention herein that in para 478(8) it is clearly stated about the instances of non-appointment which are permissible and justified.

25. Because due to the non-appointment of judges increases the huge backlog of pending matters awaiting disposal at the High Court. It is pertinent to mention herein that disposal of cases is a “must” and should mean ‘disposal with a decision’ and not merely “striking out” from the list of pending matters. The non-appointment of judges is more than painful for the judiciary which universally professes that “delayed justice almost amounts to denial of justice”.

26. Because the central government is sitting idle over the subject matter neither paying any heed to the representation submitted by the Bar Association nor giving any valid reasons in writing for withholding the clearance of names of the judges which are already cleared by the Hon’ble Chief Justice of India.

27. Because the concept of separation of powers is a well-known fundamental political maxim which many modern democracies have adopted. Our Constitution has not strictly adhered to that doctrine but it does provide for distribution of powers to ensure the one organ of the Government does not trench on the constitutional powers of other organs. This is evident from Part V and Part VI of the Constitution. There is and can be no dispute that the distribution of powers concept assumes the existence of a judicial system free from external as well as internal pressures. Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every judge to the people of third great country. There can be no two opinion at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society. Even though on the question that our judiciary should be independent of the executive and the legislature there is no divergence of views at the Bar, there was some difference of opinion on the actual content of the concept.

28. Because the Constitution makers strived to ensure that justice promised in the Preamble of the Constitution is pure and is not in any manner polluted by executive or political interference as is wrtit large on the face of the Constitution. Extraordinary powers have been conferred on the Supreme Court and the High Courts under Articles 32 and 226, respectively, manifesting the confidence of the people in the court’s ability to do justice. By Article 50 of the Constitution of India a direction is given to take steps to separate the judiciary from the executive in the public services of the State. The offices of the Attorney General and Advocates General have been given constitutional status with a view to making quality legal advice available to the Union and the States so that they function consistently with the rule of law and safeguard public interest.

29. Because the concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a) primacy as ‘pater families’ of Indian Judiciary, (b) primacy to be accorded to his views amongst the consultees mentioned in Articles 124(2), 217(1) and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e., the executive. The position of the Chief Justice of India under the Constitution is unique, in that, on the judicial side he is primus inter pares, i.e., first among equals, while on the administrative side he enjoys limited privacy in regard to managing of the court business. As regards primacy to be accorded to his views vis-à-vis the President, i.e. the executive, although his views may be entitled to great weight he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views. However, his views would be of higher value vis-à-vis the views of his colleagues, more so if he has expressed them after assessing the views of his colleagues but his view will not eclipse the views of his colleagues forbidding the President, i.e. the executive, from relying of them. The weight to be attached to his views would be much greater as compared to the weight to be accorded to the views of the other consultees under Article 217(1) since he has had the advantage of filtering their views and ordinarily his views should prevail except for strong and cogent reasons to the contrary but that does not mean that the views of the other consultees would be rendered irrelevant or non-est forbidding the President, i.e. executive, from noticing or relying on them. The views of the Chief Justice of India would be entitled to even greater weight when he is the sole consultee under the constitution, e.g. Article 222(1), more so when it concerns a member of the judicial family and ordinarily his view should be accepted and acted upon by the President, i.e. the executive, unless there are compelling reasons to act otherwise to be recorded in writing so that the apprehension of the executive having acted in a manner tantamounting to interference with judicial independence is dispelled.

30. Because the Framers of the Constitution placed a limitation on the power of the Executive in the matter of appointment of Judges to the Supreme Court and the High Courts. The requirement of prior ‘consultation’ with the superior Judiciary is a logical consequence of having an “independent Judiciary” as basic feature of the Constitution. If the Executive is left to ignore the advice tendered by the Chief Justice of India in the process of consultation, the very purpose and object of providing consultation with the Judiciary is defeated. Therefore, there should not be any doubt regarding the basic intention of the constitution makers that the Executive is bound by the advice/recommendation of the Chief Justice of India in the process of consultation under Articles 124(2) and 217(1) of the Constitution.

Frankly speaking, there is no reason why the Supreme Court should not issue writ as prayed by the petitioner in the nature of mandamus, orders or directions to the respondents to immediately appoint Judges as per sanctioned strength in Hon’ble High Courts and Subordinate Courts functioning in the country in the interest of justice. We all know fully well how the former CJI TS Thakur had publicly wept over the state of affairs in judiciary especially the huge vacancies in courts all across the country while requesting the Centre to take steps to fill them up! Even the incumbent CJI Ranjan Gogoi had himself immediately on assuming office had suo motu taken cognizance of the huge vacancies in lower courts and High Courts. Not just this, he has also ensured that all the vacancies of Judges in the Supreme Court are filled up fully which has happened after a long time! Similarly in big courts like Allahabad High Court also earlier we used to see how more than half of the Judges post kept lying vacant but now under CJI Ranjan Gogoi things have changed a lot even though still a lot remains to be done and he has directed all the High Courts as also the Public Service Commissions to fill up the vacancies at the earliest and keeps reminding them at regular intervals!

One fondly hopes that the petitioner’s legitimate prayer is accepted by the Apex Court as it is in the public interest and not in interest of the petitioner or any other private individual! The petitioner has very remarkably pointed out that just like seats of MLAs and MPs are filled up at the earliest similarly why the same we don’t see in case of Judges? Not just this, he has also pointed out so many other strong points which I have already illustrated above which are certainly commendable and deserve to be accepted in totality!

No doubt, we have to keep our fingers crossed till the Apex Court finally delivers its judgment on it! But there can be no two opinions that the petitioner has really put across his valid point that “non-appointment of Judges affects speedy justice” with strong and cogent reasons which cannot be disputed! When MPs and MLAs can be appointed in time and not even one seat is left vacant and as soon as it becomes vacant, bye-elections are held at the earliest then why the same yardstick is not applied to appointment of Judges also who play the pivotal role of dispensing justice which directly affects the law and order situation in our country which in turn affects our global standing and international reputation?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

First and foremost, after stating that, “Heard learned Counsel for the applicant and learned A.G.A.” in para 1, it is then clearly pointed out in para 2 that, “By means of instant application filed under Section 438 of Cr.P.C., the applicant has sought anticipatory bail in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC lodged at Police Station, Kotwali Nagar, District Raebareli.”

It would be pertinent to mention here that it is then pointed out in para 3 that, “Before adverting to the factual matrix of this case and to ascertain as to whether the applicant is entitled for grant of anticipatory bail or not; a serious legal question has been raised before this Court by the learned A.G.A. that the applicant without exhausting the remedy under Section 438 of Cr.P.C. before the jurisdiction Sessions Court, has directly approached this Court. Therefore, this application is not maintainable and the applicant has to be relegated to the Court of Sessions first and then he can approach this Court. In this background, the legal question that arises for consideration of this Court is that-

‘Whether the application filed under Section 438 of the Cr.P.C. is maintained before the High Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction with that of the High Court?’”

What’s more, it is then rightly pointed out in para 6 that, “On plain and meaningful reading of the abovesaid provision, it is crystal clear that it confers concurrent jurisdiction on the High Court as well as the Court of Sessions. The wide discretion has been entrusted on the Court of Sessions as well as on the High Court to enlarge such person who comes to the Court, on anticipatory bail. Both the courts have got jurisdiction to enlarge the applicant on anticipatory bail, considering the relevant guidelines in the said provision.”

To be sure, it is then rightly pointed out in para 16 that, “In a decision reported in 1983 (2) KLJ 8 in the case of K.C. Iyya Vs. State of Karnataka, the High Court of Karnataka has observed as follows:

‘7. Since both the Courts, the Court of Sessions and this Court have concurrent powers in the matter, it appears desirable, for more than one reason, that the Sessions Court should be approached first in the matter’.”

In a similar vein, it is then also rightly stated in para 17 that, “In the case of Shivasubramanyam Vs. State of Karnataka and another; 2002 CRI.L.J 1998, the Karnataka High Court has reiterated the abovesaid principles and ultimately held that the application filed under Section 438 of Cr.P.C. directly to the High Court is maintainable only under exceptional and under special circumstances, but not as a routine and the party cannot come before the Court as a matter of right.”

In totality, it is then observed in para 18 that, “By looking into the abovesaid discussions, I am of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C. as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application.”

It also cannot be lost on us that it is then observed in para 19 that, “In the case of Sri Kwmia Gwra Brahma Vs. State of Assam (Bail No. 3024 of 2014), the Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C. and he can later approach the High Court.”

Needless to say, para 20 then leaves no stone unturned to make it absolutely clear that, “The intention of bringing out Section 438 of Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors.”

Be it noted, it is then illustrated in para 21 why the party should first approach the lower court by stating that, “It is worth to note here that whenever the concurrent jurisdiction is vested under the statute simultaneously in two courts of one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. Moreover, the party will get two opportunities to get the remedy either before the Sessions Court or before the High Court but if once he approaches the High Court, he would run the risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible.”

While continuing in the same vein as to why the parties should first approach the lower court, it is then further noted in para 22 that, “It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. Moreover, considering the work load of the courts in the country, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court under Section 438 of Cr.P.C. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs.”

Not stopping here, it is then further observed in para 23 that, “The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition.”

Going forward, it is then stipulated in para 24 that, “It is also worth to note here that the Sessions Court and the High Court arte concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviate the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision.”

To say the least, it is then summed up in para 25 by holding that, “Therefore, looking to the abovesaid rulings of different High Courts, I do not find any strong reason to deviate from the said view taken by the other High Courts. Hence, I am of the opinion, the point formulated by me noted above has to be answered accordingly.”

While proceeding ahead on a sure wicket, it is then envisaged in para 26 that, “Hence, I answer the point raised as follows:

“The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision”.”

Interestingly enough, it is then observed in para 27 that, “Having held in such manner, now let me see whether the petitioner has approached this Court with any such extraneous or special reason.”

Briefly stated, it is then recapitulated in para 28 that, “Factual matrix of the case is that an FIR was lodged by informant Sri Atul Kumar Singh, Officer In-charge of Police Station Kotwali Nagar, District Rae bareli in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC against the applicant. It is alleged in the FIR that the complainant along with S.I. Pawan Pratap Singh, S.I. Umesh Chandra, S.I. Vivek Tripathi and some police constables were engaged in checking of the vehicles. In the meantime, they received an information through “Mukhbir” that a Bolero vehicle is on the way in which 7-8 persons are seated and they are in possession of Ganja. It is also alleged that the Bolero was stopped and five persons were arrested. The arrested persons were disclosed their identity as Jitreya Tarabdar, Radheshyam Viswas, Jayant Sardar, Brojoshish Viswas and Bobby Halder.”

Moving on, para 29 then discloses that, “It has been averred by the applicant in the bail application that he is a member of Gram Sabha and due to difference in opinion between him and the Gram Pradhan, he has been falsely implicated in the present case by the local police. In the earlier occasion also, the son of the applicant, namely, Vikas Kumar was falsely implicated in a case at the instance of the same Gram Pradhan. It is also disclosed in the application that against the present applicant, a criminal case is pending before the court of Additional District Judge VIth, Raebareli arising out of Case Crime No. 71 of 2018, under Section 8/20 of N.D.P.S. Act but in the entire application, the applicant has not disclosed the urgency for filing the instant application before this Court directly.”

As it turned out, para 30 then sums up saying that, “In view of the above facts and circumstances the learned Counsel for the applicant also failed to explain as to why he has rushed to this Court directly for seeking said discretionary relief under the provisions of Section 438 of Cr.P.C. He has also failed to disclose any extraneous or special reason.” Para 31 then states that, “Lastly, learned Counsel for the applicant has sought permission to withdraw the bail application with liberty to approach the concerned Sessions Court.”

Finally and most crucially, it is then held in para 32 that, “Considering the abovesaid circumstances and the request made by the learned Counsel for the applicant for withdrawing the bail application with liberty to approach the concerned Sessions Court and also in the interest of justice, the instant bail application is dismissed as withdrawn with liberty to the applicant to approach the concerned sessions court and file an application under Section 438 of Cr.P.C.”

In a nutshell, this extremely laudable, latest and landmark judgment which has been delivered recently by the Allahabad High Court has served to send an unmistakable message to all litigants that they should first approach the Sessions Court only and only then should they knock the doors of the High Court. The benefits of doing so has already been pointed out in detail above. It is only under exceptional circumstances that the litigant can approach the High Court directly without approaching the Sessions Court which has to be explained also. Such permission also cannot be granted as a matter of routine unless there are “extraneous or special reasons” to do so! In this present case, the applicant clearly failed to prove any such “extraneous or special reasons” and so had no option but to withdraw the plea and the Allahabad High Court was magnanimous enough to grant the permission to do so accordingly with liberty to approach the Sessions Court! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Before proceeding ahead, it would be instructive to briefly state the background about FATF. The FATF was established in July 1989 by a G-7 summit in Paris to examine and develop measures to combat money laundering. In October 2001, it expanded its mandate to also incorporate efforts to combat terrorist financing as well.

It must be specifically mentioned here that the FATF’s objectives are “to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system”. It would not be out of context to mention here that the FATF monitors the progress of members and non-members in implementing the FATF Recommendations stipulating “a comprehensive and consistent framework of measures which countries should implement in order to combat money laundering and terrorist financing as well as the financing of proliferation of weapons of mass destruction”. Also, it identifies jurisdictions with “weak measures to combat money laundering and terrorist financing (AML/CFT) in two FATF public documents that are issued three times a year”.

Interestingly enough, the FATF’s decision-making body , the FATF Plenary, meets three times in Paris between July and June. The FATF’s 38 members (36 member jurisdictions and two regional organizations, the European Commission and Gulf Cooperation Council), two observer jurisdictions (Indonesia and Saudi Arabia), and multiple observer organizations (mainly international banks and law enforcement bodies) attend the Plenary meet. India is a FATF member but Pakistan is not.

It would be pertinent to mention here that the multilateral international watchdog against money laundering and financing of terrorism – the FATF had placed Pakistan on a list of “jurisdictions with strategic deficiencies”, also known as the “grey list” last June that is in June 2018 for failing to counter fund-raising by terror groups such as Lashkar-e-Taiba (LeT) and Jaish-e-Mohammad (JeM). FATF’s reasoning is Pakistan’s “structural deficiencies” in anti-money laundering (AML) and combating financing of terrorism (CFT). Who does not know Pakistan’s leading role in fomenting terrorism in Jammu and Kashmir and other parts of India?

Interestingly enough, this is not the first time that Pakistan has found itself on one of FATF’s list of not-so-good guys. Pakistan was there earlier also in 2008 and then again from 2012 to 2015 for its direct role in fomenting terrorism and promoting various terror groups. The other countries that are on the FATF list, in alphabetical order, are Ethiopia, Serbia, Sri Lanka, Syria, Trinidad and Tobago, Tunisia and Yemen.

During an assessment in February, FATF said pointblank that, “Pakistan made ‘limited progress’ in curbing terror financing and failed to show proper understanding of risks posed by banned groups such as Islamic State and al Qaeda.” It must be brought out here that following an assessment at its June 19-21 plenary meeting in Orlando, Florida, FATF expressed “concern that not only did Pakistan fail to complete its action plan items with January deadlines, it also failed to complete its action plan items due May 2019”.

Be it noted, the international watchdog FATF said in a statement issued on June 22 that, “The FATF strongly urges Pakistan to swiftly complete its action plan by October 2019 when the last set of action plan items are set to expire. Otherwise, the FATF will decide the next step at that time for insufficient progress.” It is quite ostensible that though the statement didn’t specifically mention the “black list”, which entails harsher financial sanctions, people familiar with developments said the tacit threat was an indication FATF could downgrade Pakistan from the grey list. Pakistan has every reason to feel most worried on this key issue which directly affects its economy and its reputation on the international forum!

Needless to say, after Pakistan was placed in the grey list, it was asked to implement a 27-point action plan and a 15-month deadline to curb terror financing and money laundering in order to avoid being downgraded to a worse “black list” which could lead to strict sanctions which could impact imports, exports, remittances and access to international lending. It could lose potential loans and foreign investment which it badly needs now as its economy is in dire straits, be shunned by the IMF, the World Bank, the ADB and the EU and also suffer a downgrade by credit rating agencies such as Moody’s, S&P and Fitch which will further harm its economy! Pakistan has to now show that it has taken action in concrete terms and lip service just won’t work in its favour! Following inspections by FATF and Asia Pacific Group (APG) earlier this year, experts had clearly concluded that Pakistan had done a lot to align its domestic laws with international counter-terror obligations but had failed to do enough on the ground to curb fund-raising or freeze assets of eight terror groups, including LeT, JeM, Jamaat-ud-Dawah, Falah-e-Insaniyat Foundation, al Qaeda, Islamic State, Haqqani Network and the Taliban.

Furthermore, at the meeting in Florida, the participants agreed to keep the pressure on Pakistan to act tough against terror groups operating from its soil. It was disclosed by diplomatic sources that contrary to media reports, there was no voting at this meeting. The voting will be part of the October plenary when Pakistan’s fate is decided. For the second time, FATF crtiticised Pakistan for its failure to “demonstrate a proper understanding of Pakistan’s transnational TF (terror financing) risk”.

More significantly, it will be at the October plenary in Paris that Pakistan will need 15 countries to support it to stay out of the grey list. Whether Pakistan will remain in the grey list or is placed in the black list will be pretty clear by October 2019. Pakistan can draw some comfort from the fact that China which is its traditional partner and a close ally will take over the presidency of FATF and it will be in a position to help Islamabad to stay out of the grey list or at least block it from being placed in the black list. In front of global pressure we saw how China had to relent and endorse declaring Masood Azhar as a global terrorist! How things pan out ultimately will be clear only in October!

While making its stand clear on Pakistan, India said that it expects Pakistan to take all necessary steps to effectively implement the FATF action plan fully by September and take credible, verifiable and irreversible measures to address global concerns to terrorism and terrorist financing emanating directly or indirectly from its soil. In response to a media query pertaining to the FATF report, Minister of External Affairs Spokesperson Raveesh Kumar said that the FATF has decided to continue to keep Pakistan on its compliance document (i.e. Grey List) for the International Cooperation Review Group (ICRG) monitoring for its failure to complete the action plan items due in January and May 2019. FATF which is a Paris-based global body is arduously and relentlessly working to curb terrorist financing and money laundering and has asked Pakistan to reassess the operation of banned terrorist outfits in the country.

To put things in perspective, the FATF in a statement issued at the conclusion of its plenary meeting in Orlando, Florida said that Pakistan should also demonstrate that “facilities and services owned or controlled by designated persons are deprived of their resources and the usage of the resources” – a reference to UN-designated terrorists such as LeT founder Hafiz Saeed and JeM chief Masood Azhar allegedly having access to the financial assets of their groups. The watchdog also asked Pakistan to take action to “identify and take enforcement action against illegal money or value transfer services” and to improve “inter-agency coordination including between provincial and federal authorities on combating” terror financing. The statement by FATF also said that, “Law enforcement agencies should identify and investigate the “widest range of TF activity” and investigations and prosecutions should “target designated persons and entities”.”

Not stopping here, FATF also further added that, “Pakistan should also demonstrate effective implementation of targeted financial sanctions (supported by a comprehensive legal obligation) against all 1267 and 1373 designated terrorists.” So far, Pakistan has seized 800 properties belonging to JuD, FIF, JeM and arrested some of their leaders. But it needs to do a lot more and act against other terror groups also operating from its soil like Hizbul Mujahideen etc. FATF had also questioned Pakistan on the funding of these terror groups-run schools. It asked that, “Where is the investigation about the source of funds for these bodies?” Pakistan has itself assessed that it takes $14 million (about Rs 180 crore) a year to run all of them.

It would be worthwhile to mention here that Pakistan has narrowly managed to avoid being placed on the FATF blacklist for now following support from all-weather friend ally China, traditional ally Turkey and Malaysia. It would also be useful to mention here that the FATF charter mandates support of at least three member states to avoid the blacklisting. Pakistan may have got a temporary respite but the black clouds looming on the horizon are still intact as a formal decision of the FATF on blacklisting is to be announced in October 2019.

As things stand, in a statement after the end of the plenary, FATF urged Pakistan to complete its action plan by October 2019 when the last set of ‘action plan’ items is set to expire.” If Pakistan still does not comply by October, FATF will decide the next step at that time for insufficient progress which could refer to a possible blacklisting. The Indian delegation headed by Financial Intelligence Unit chief PK Mishra had pressed for Pakistan’s blacklisting and provided fresh evidence on the role of Hafiz Saeed’s Falah-e-Insaniyat Foundation (FIF) and its deputy Shahid Mahmood in the June 16-21 meet in Orlando, US. Citing investigations into FIF, Delhi vehemently argued that Pakistan based terror groups continue to create unrest in other Indian states too besides Jammu and Kashmir.

It must be reiterated here that Pakistan which has been on the global money laundering and terror financing watchdog FATF’s “grey list” since June 2018 after it was placed in the list of terrorist financing and money laundering risks following a thorough assessment by the Asia Pacific group (APG) of the country’s security mechanism and its financial systems has been under scanner since a long time and cannot run away from its dubious role in fomenting terrorism in India, Afghanistan and other countries! It cannot be lost on us that India which is the co-chair of the joint group of FATF and the Asia Pacific group (APG) along with other global powers, has been pushing vocally for blacklisting of Islamabad as the country has clearly failed to meet international standards in combating financial crimes and terror financing. APG which functions under the FATF is the largest of nine FATF-Style Regional Bodies (FSRBs) whose 41 members include both India and Pakistan. 11 of these members are members of FATF as well. India became a member of the APG in March 1998 and Pakistan in May 2010.

To say the least, Pakistan has not been able to implement the action plan which was assigned to it by the APG and FATF, deadline of which ended in January 2019, but was given breather of sorts till May 2019. FATF has also demanded that Pakistan should work on implementing its 10-point action plan to address its strategic deficiencies. Pakistan must act now decisively against terror groups and terror support emanating from its soil if it wants to escape being blacklisted in October 2019! Pakistan is left with no option now but to either fall in line or be ready to face action. FATF has made this crystal clear to Pakistan. Now the choice is of Pakistan as to what does it want to do!

Time is clearly running out for Pakistan. It has been unable to complete 25 action points. It has one last chance, till its 15-month deadline ends in October, when the FATF plenary will be held! It cannot just escape its responsibility by blaming India for everything! The four countries which originally named Pakistan in the grey list last year – US, UK, Germany and France said that they want “sustained and irreversible” action against its terror infrastructure. Pakistan should now shut down its terror factories operating from its soil and should stop day dreaming that just lobbying with China and other countries like Malaysia will save it from being black listed! It should not forget how China ditched Masood Azhar from being labelled a global terrorist after international pressure mounted even though earlier it kept saving him repeatedly! Pakistan should stop blaming India as it has got accustomed to for everything and act decisively against terror groups and terror support emanating from its soil! If it fails to do so, it will face sanctions. Now it is for Pakistan to decide what it wants to do! The ball is now clearly in Pakistan’s court!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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How long will Centre overlook that many UP CM have in the past recommended that high court bench must be created in West UP at the earliest? How long will Centre overlook that it was Sampoornanand who had first recommended the creation of a high court bench in West UP at Meerut in 1955 after more than 100 elected representatives from West UP met him and apprised him of the need for the same? How long will Centre just admonish UP CM Yogi Adityanath that he cannot do anything on this just like it admonished him for placing 17 castes in SC list as it is the Parliament’s jurisdiction and State cannot on its own do so but itself will just do absolutely nothing to create a high court bench in West UP even as the law and order situation is turning from worse to worst and even though many of its elected MPs, Union Ministers like Defence Minister Rajnath Singh, Home Minister Amit Shah, Gen VK Singh, Sanjeev Baliyan and many other former Union Ministers also like Dr Mahesh Sharma, Satyapal Singh among others who have all spoken in one voice demanding the creation of a high court bench in West UP and have repeatedly raised this legitimate and crying demand in Parliament also?

It is a matter of greatest national shame that Uttar Pradesh which is the biggest state amongst all the states in India with maximum population at more than 22 crore as UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi keep proudly bragging about at public rallies time and again which is more than even that of Pakistan and many other countries, maximum MPs in Lok Sabha at 80, maximum MPs in Rajya Sabha at 31, maximum MLAs in Vidhan Sabha at 404, maximum MLAs in Vidhan Parishad at 100, maximum Judges at lower courts at more than 5000, maximum Judges in High Courts at 160, maximum pending cases in lower courts at more than 50 lakhs, maximum pending cases in high court at more than 10 lakh, maximum members in UP Bar Council which is more than one lakh which is the highest not just in India but in the whole world as is pointed out in the website of UP Bar Council itself, maximum elected representatives at all levels including villages like Sarpanch, maximum villages which is again more than one lakh, maximum tehsils, maximum Mayors, maximum constituencies at 80, maximum districts at 75, maximum poverty and what not yet has least high court benches in India – only one and that too just about 200 km away from Allahabad at Lucknow! What a shame that Jawaharlal Nehru had the great guts to create a high court bench in Lucknow on July 1, 1948 about 71 years ago which is just 200 km away from Allahabad where main high court is located but no PM had the guts to create a high court bench thousands of kilometers away at any of the 13 districts in hilly areas which now constitute a separate state called Uttarakhand and the people then numbering 88 lakh living there had to travel so far for more than 50 years after independence which led to resentment and agitation of a separate state and now it has a high court nor at any other district in UP!

Why is it that West UP which owes for more than 57% of the total pending cases of UP as acknowledged by the Justice Jaswant Singh Commission itself has not even a single bench of high court in any of the 26 districts? Why is it that the situation in West UP is so lawless which can be gauged from this that the newly elected Chairperson of UP Bar Council – Darvesh Singh Yadav was shot dead right inside court premises just three days after being elected just recently on June 12, 2019 yet West UP has not even a single bench of high court? Why is it that another lady advocate Kuljeet Kaur who was a Supreme Court lawyer and wife of a retired Army Officer has been found murdered in less than a month after UP Bar Council former Chairperson Darvesh Yadav’s murder right inside her house in Noida in West UP which prompted the Honorary Secretary of the Supreme Court Bar Association to write to UP CM seeking protection of live and properties of the advocates and to say that, “This murder exposes the serious slackness in law and order situation in Noida.”

Where is Noida located? It is in West UP where Centre for undisclosed reasons has been shamelessly opposing the creation of a bench in any of the 26 districts and the people living here are compelled to travel whole night all the way to Allahabad to attend court hearings as there is no bench here!

Why is it that the former UP High Court Chief Justice Dilip Babasaheb Bhosale who hails from Maharashtra in a heinous case involving rape of few women on national highway in Bulandshahr in West UP had rightly said as Chief Justice of Allahabad high Court that there is total lawlessness in UP as compared to Maharashtra where women can travel alone in night anywhere without any fear but still see the crowning irony that Maharashtra has 4 high court benches at Panaji, Nagpur, Aurangabad and latest at Kolhapur for just 6 districts but for UP just a single bench since 1948? When peaceful states like Maharashtra can get benches in no time then why Allahabad High Court in UP which has maximum pending cases in India has been denied its due share unfairly for such a long time?

Why the lawyers of more than 20 districts of West UP keep going on strike for last nearly 40 years from May 1981 till now every Saturday protesting the denial of bench but Centre does not deem it fit to even consider it most seriously? Why the lawyers of West UP even went on strike for 6 months in 2001 and earlier also several times similarly and not stopping here even went on strike for 3 months in 2014-15 also and for nearly a month every year time and again but still West UP has no bench? Why is it that litigants of West UP are compelled to travel more than 800 to 900 km away to Allahabad to attend cases as there is no high court bench in West UP yet CJI says nothing on it? Why even the repeated murder of lawyers, police officers and others fail to shake Centre to do anything on this score?

Why is it that West UP always remains in the news for wrong reasons for brutal crimes and still Centre never orders creation of a bench for it? Why is it that the population of West UP at more than 9 crore is more than all states except UP of which it is a part, Maharashtra and Bihar and here too areawise West UP at 98,933 square km is bigger than Bihar which has just 94,000 square km but still has not even a bench? What a crying shame that UP CM Yogi Adityanath government has the ability to bear Rs 36,000-crore for construction of 600 km Ganga Expressway for better connectivity of Allahabad with western districts of the state and which will be the longest expressway in the world but it can’t spare just a few crores for creating a high court bench in lawless West UP or at Bundelkhand or at any other deserving place so that people are not compelled to travel so far and waste huge money in doing so for various expenses like staying, travelling, etc as Centre is just not ready for it!

Why can’t Centre take serious steps to address this cancerous problem of law and order in UP root and branch by creating more benches here and not just resorting to baby steps, gimmickry and bandaid measures like reducing time limit to reach Delhi by about an hour or so by spending more than 20 crores on creating 14 lane national highways? Why can’t Centre direct UP government to immediately create a bench in West UP? Who is stopping Centre?

Who can deny that Allahabad High Court is the biggest high court not just in India but in whole of Asia yet has just one bench which is so close at Lucknow and is also one of the oldest high court which completed its 150 year of creation in 2016? Who can deny that Bar Council of UP has maximum members in whole world yet its former Chairperson Darvesh Yadav just within three days of being elected is brutally murdered right inside court premises by pumping three bullets on her? Who can deny that many senior lawyers in the past also have been brutally murdered not just in West UP but in other parts also as we saw in Basti?

Why is it that UP has just one bench and here too West UP which owes for more than half of pending cases has none? Why a single bench only for UP at Lucknow which is so close to Allahabad just about 200 km away and not anywhere else as in West UP where people have to travel about 700-800 km on an average all the way to Allahabad as there is no bench here? Why a bench for Lucknow since July 1, 1948 for just about 8 districts but no bench for West UP even in 2019 for 26 districts for more than 9 crore people living here which constitutes for nearly half of the population of UP? Can this be justified on any ground and under any circumstances? Certainly not!

If Lucknow is capital then so is Bhopal which has neither high court nor bench and same is true for Dispur which is capital of Assam, Bhubaneshwar which is capital of Odisha, Dehradun which is capital of Uttarakhand, Thiruvananthapuram which is capital of Kerala, Raipur which is capital of Chhattisgarh, etc! Allahabad High Court must get its due share as it has maximum pending cases, maximum Judges and what not yet has just one bench since 1947 till 2019 which is most shameful and most disgraceful! Allahabad High Court needs special care and not special neglect as most unfortunately we have been seeing till now!

It must have maximum benches in India and not minimum as most unfortunately we have been seeing since last 72 years! Centre’s adamant approach to not create any bench anywhere else in UP other than Lucknow is responsible for demand being raised for separate state as we see in Bundelkhand, West UP, Poorvanchal and other parts also! Centre can shamelessly create 2 more benches for a peaceful satte like Karnataka at Dharwad and Gulbarga for just 4 and 8 districts even though it had a bench already at Hubli also for just 6 crore people living there but for more than 9 crore people of West UP it is not ready to create even a single bench! Karnataka has just about 1 lakh pending cases still it has 3 benches but for UP which has more than 10 lakh pending cases and West UP alone which has more than 5 lakh pending cases it has none! Same is true for Assam and Maharashtra which have 4 benches even though their pending cases stand nowhere when compared to UP whom Ban ki moon who is former UN Secretary General had slammed as “rape and crime capital of India” and even West UP alone has more cases which is more than both the states put together!

Is this is what Article 14 which talks about right to equality stands for? Is Centre not making an open mockery of Article 14 of Indian Constitution? Are the people of West UP not entitled to get “speedy justice”, “justice at doorsteps” and “cheap justice” just like the people of Karnataka, Maharashtra, Assam etc?

Needless to say, Centre must clarify its stand and not maintain a conspicuous and deafening silence on it! Former Attorney General Soli J Sorabjee had clearly said in 2001 while he was Attorney General that, “Centre is fully empowered to create a bench in any of the districts in West UP without any recommendation from the Chief Justice or anyone else in this regard.” Former Supreme Court Bar Association Chairman Krishnamani had also said that, “Only by the creation of a high court bench in West UP will the people living here get real justice.”CJI Ranjan Gogoi while disposing of a petition on this filed by a lady advocate KL Chitra last year had appreciated the dire need for a bench in West UP but also had said that it is for Centre to decide on it!

How long will Centre take to decide it? Another 100 years or 200 years or 300 years or never? It must have the guts to at least specify its clear stand on this! Dr BR Ambedkar who is the founding father of Constitution wanted UP to be divided into 3 parts as it was very big but Centre decided not just to not divide UP but also not to allow any bench anywhere else other than in Lucknow for reasons it has never had the guts to disclose from 1947 till now even though it created 2, 3 and more benches for smaller states shamelessly which alone explains that it did not accept the historic recommendation of Justice Jaswant Singh Commission to create 3 benches in UP in Agra, Nainital and Dehradun!

If a high court bench is created in West UP, it is “poorest of poor” and the most deprived and hapless women who will benefit most as they will be saved from the unnecessary trouble of travelling so far and spending so much extra money, time etc to just attend one hearing alone! We all saw how a 8 year old girl was brutally raped and murdered in Aligarh just recently! Rape, gang-rape and murder have become a very common thing in West UP! This alone explains why former PM Atal Bihari Vajpayee who is the tallest leader of NDA till now himself forcefully raised this crying demand for bench in West UP inside Parliament more than 33 years ago in 1986 when he was Leader of Opposition!

On a concluding note, Centre must have some pity on woman at least who are most unsafe in lawless UP and especially West UP where they are repeatedly being brutally murdered as we have seen in case of Supreme Court lawyer Kuljeet Kaur, former UP Bar Council Chairperson Darvesh Yadav among others and immediately order creation of more benches not just in West UP but also in other parts of UP where the crime rate is high! Crime rate is highest in West UP which necessitates prompt creation of high court bench here! Will Centre deny or question this also? It cannot even if it wants because the crime statistics are easily available! Centre must now immediately come into action and order the creation of a high court bench in West UP as strongly recommended by Justice Jaswant Singh Commission also! Let’s hope so fervently!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

To start with, this latest judgment authored by Justice Ajay Rastogi for himself and Justice AM Khanwilkar first and foremost after granting leave as mentioned in para 1 then goes on to point out in para 2 that, “The present appeal has been preferred by the accused appellant against whom a criminal case bearing no. RC04/16-NIA-HYD came to be registered along with four other accused persons for the offences punishable under Sections 120-B, 109, 150, 153A, 302, 201 read with Section 34 of IPC; Sections 3 and 27 of the Arms Act and Sections 15, 16, 17, 18 & 20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter being referred to as “UAP Act”).”

Moving on, it is then stated in para 3 that, “After completion of the investigation, final report was submitted before the trial Court against the accused persons including appellant. The appellant claims that there was no material for registering the criminal case neither investigating nor submitting the final report against him. At this stage, the appellant filed application under Section 227 of Code of Criminal Procedure, 1973 (hereinafter being referred to as “CrPC”) seeking his discharge from the case for the aforesaid offences. The application was dismissed by the trial Judge/Special Judge who ordered for framing of charges against him for the aforesaid offences under Order dated 2nd January, 2018 came to be challenged by the appellant in a writ petition filed under Article 226 and 227 of Constitution of India read with Section 482 CrPC which was dismissed by a lucid impugned judgment dated 22nd November, 2018 which is a subject matter of challenge in the instant appeal.”

To recapitulate, para 4 then while dealing with the background of the case states that, “The background facts giving rise to this appeal which needs to be noted are that a criminal case came to be registered as Crime No. 124/2016 on 16th October, 2016 for the offences punishable under Section 302 read with Section 34 IPC by Commercial Street Police after a complaint was filed by one Jayaram (CW-1), who stated that on 16th October, 2016 at around 12.40 p.m. when he along with his friends namely Rudresh, Harikrishna and Kumar assembled near Srinivas Medical Stores, Shivajinagar, one person (accused) being the pillion rider of the motorcycle hacked Rudresh with a sharp edged and lethal machete on the right side of his neck and fled. Rudresh was taken to a hospital wherein he was declared brought dead.”

Delving deeper, it is then envisaged in para 5 that, “Initially, four accused persons (Accused nos. 1 to 4) were arrested on 27th October, 2016. Accused no. 5 (appellant herein) was arrested on 2nd November, 2016. Subsequently, the task of investigation was entrusted to National Investigating Agency (NIA) by the Union of India, Ministry of Home Affairs, New Delhi on 7th December, 2016. NIA registered FIR in RC No. 24/2016 against all five accused persons on 21st April, 2017 which stated that accused nos. 1 to 4 conspired with the accused appellant (accused no. 5) to kill RSS members and in furtherance of their acts, they committed offence punishable under Sections 302, 201 read with Section 34 IPC. The accused persons were said to be in possession of weapons without license, thereby it attracted the offence punishable under Sections 3 and 27 of the Arms Act. Further, the acts of the accused persons including the accused appellant amounted to offences punishable under Sections 120B, 109, 150, 153A, 302, 201 read with Section 34 IPC and under Sections 16(1)(a), 18 and 20 of the UAP Act.”

To put things in perspective, it is then revealed in para 6 that, “The appellant sought discharge under Section 227 CrPC along with other accused persons which came to be rejected vide order dated 2nd January, 2018 and framed charges against the accused persons including accused appellant. Special NIA Court under its Order dated 2nd January, 2018 while deciding the application of appellant seeking discharge under Section 227 observed that it was admitted by the defence counsel that the appellant is the President of Bengaluru unit of Popular Front of India (PFI) and the other accused persons nos. 1 to 4 are also the members of PFI.”

More damningly, it is then further revealed in this same para 6 that, “It was also admitted by the defence counsel that there was frequent telephonic/mobile phone conversation among the accused persons nos. 1 to 5 prior and subsequent to 16th October, 2016 (the date of the incident) which gave rise to the Special NIA Court to arrive at a conclusion that the material placed in the charge-sheet on record gives rise to sufficient grounds of subjective satisfaction of prima facie case of alleged offence of conspiracy being hatched among the accused persons. It further observed that the accused appellant has failed to justify the necessary ingredients of Section 227 CrPC and finally held that the matter deserved to be proceeded with framing of charge. The said order came to be affirmed by the High Court on dismissal of the writ petition preferred by the unsuccessful appellant vide its impugned judgment dated 22nd November, 2018.”

On the contrary, it is then pointed out in para 7 that, “Ms. Kamini Jaiswal, learned counsel for the appellant submits that the impugned judgment has resulted in grave miscarriage of justice and is based on an erroneous interpretation of the factual circumstances of the case and the High Court has not taken into consideration the oral and documentary evidence on record in the proper perspective which has vitiated the entire proceedings and led to gross injustice.”

More pertinently, it is then observed in para 23 that, “That apart, we have also gone through the relevant record and extract of the charge-sheet placed on record for perusal, the fact reveals that the accused appellant is the President of Bengaluru unit of Popular Front of India (PFI) and the other accused nos. 1 to 4 are also the members of PFI. It reveals from the charge-sheet that there was frequent telephonic/mobile conversation between appellant (accused no. 5) with other accused persons (accused nos. 1 to 4) prior and subsequent to 16th October, 2016 (the alleged date of incident) which persuaded the Court to arrive to a conclusion that there is a prima facie material of conspiracy among the accused persons giving rise to sufficient grounds of subjective satisfaction of prima facie case of alleged offences of conspiracy being hatched among the accused persons and truth & veracity of such conspiracy is to be examined during the course of trial.”

Most pertinently, it is then held in para 24 that, “After going through the records and the judgment impugned before us in the present facts and circumstances, we find no error in the judgment passed by the trial Court and confirmed by the High Court by the impugned judgment dated 22nd November, 2018 which calls for our interference.”

Needless to say, it cannot be lost on us that it is then enunciated in para 25 that, “We make it clear that what has been observed by this Court is only for the purpose of disposal of the present appeal and any observations made shall either way not prejudice the rights of the parties during the course of trial and the trial Court may also not to be influenced/inhibited by the observations made by us and proceed with the trial independently in accordance with law.” Para 26 then states that, “With these observations, the appeal is dismissed.” Lastly, para 27 then concludes by holding that, “Pending application(s), if any, stand disposed of.”

In a nutshell, it can well be said that the road ahead for the appellant – Asim Shariff is very bumpy and thorny! He clearly failed to get the relief of discharge which he was seeking from the case in which he was accused of various provisions under the Indian Penal Code and the Unlawful Activities (Prevention) Act for being involved in the murder of a RSS worker – Rudresh in Karnataka! Also, accused No. 4 has confessed that accused appellant was the mastermind behind the killing of RSS member! He has to now face the law as there is no option now before him! Very rightly so! The famous dictum which states that, “As you sow so shall you reap” clearly applies on the appellant here!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

To start with, the ball is set rolling by Justice AM Dhavale who authored this noteworthy judgment by first and foremost pointing out in the introductory part in para 1 that, “Heard Shri Nilesh S. Ghanekar, learned counsel for the appellant and Shri S.J. Salgare, learned APP for respondent/State.” Para 2 then states that, “Considering the important issue of mode of recording of evidence of deaf and dumb victim girl, the appeal is admitted.” Furthermore, it is then stated in para 3 that, “With the consent of the parties, the matter is taken up for final disposal at the stage of admission.”

To recapitulate, it is then pointed out further in detail in para 4 that, “The appellant has been convicted for offence u/s 376(2)(1) IPC for committing rape on a deaf and dumb girl and is sentenced to suffer RI for 10 years and to pay fine of Rs. 10,000/-, in default to suffer RI for three months. He is also convicted for offence u/s 323 IPC. On 16.11.2016, the victim’s brother lodged FIR at Shirur Police Station, Tq. Shirur Kasar, Dist. Beed. As per the FIR, the informant had five sisters and the victim was deaf and dumb. She was aged 23 years. Since 7-8 days prior to the FIR, the victim girl had abdominal pains and was feeling weakness. When she was taken to the Civil Hospital, it was disclosed that she was pregnant for five months. When the informant and his parents made enquiry with her as to with whom she had relations, she pointed by signs the house of the accused and stated that the person residing there had entered her house before Ramjan and used force to press her neck and thereafter committed sex with her. FIR was registered at Crime No. 226/2016 and was investigated into. The investigation revealed that the victim was illiterate and was not even knowing the scientific sign language of the deaf and dumb persons. Her statement was recorded through an interpreter from mentally retarded school and its video recording was done.”

To be sure, it is then revealed in para 5 that, “Shri S.J. Salgare, learned APP submits that, the victim girl has delivered a child and there was DNA testing which proved that the accused was biological father of the child. The accused has taken a defence of total denial. Shri Ghanekar, learned counsel for the appellant submits that, when witness or victim girl is deaf or dumb, her evidence should be recorded as per Section 119 of the Evidence Act. He relies on the judgment of the Apex Court in State of Rajasthan vs. Darshan Singh @ Darshan Lal reported in 2012 AIR SCW (S.C.) 3036, wherein it was laid down that,

21. To sum up, a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign for language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.”

Going forward, it is then brought out in para 6 that, “Shri Ghanekar submits that, since the victim girl was illiterate, first course to record her evidence in writing was not possible but the ld. Trial Judge committed error in recording her statement with the aid of interpreter without giving him oath. Besides, the interpreter was the same person who had recorded her statement u/s 161 Cr.P.C. The ld. Trial Judge was bound to record the signs made by victim girl while giving answers. He argued that, though there is no specific defence that the act was committed with the consent, the prosecution is bound to show that if there was sexual intercourse it was against the will or without the consent of the victim girl. She was major and cannot be presumed to be mentally retarded or idiot. She is capable of giving consent and if the act has taken place with her consent, there would be no offence. He points out that, the victim girl had not disclosed the incident to anybody for a period of more than five months. Even the FIR was not immediately lodged after knowledge of her pregnancy. Shri Ghanekar relies on the evidence of Dr. Babasaheb Dhakane (PW6) to submit that the pregnancy of the victim girl was detected by her relatives in August-2016 only whereas the FIR is filed in November-2016. The victim’s brother has turned hostile. He also pointed out that, as per Section 119, it is mandatory to record the evidence of deaf and dumb person with videography. This has not been followed. The victim girl was not in a position to tell her name and age. No questions were asked to make enquiry about her intellectual capacity. Considering the facts, there was no fair trial and the accused has been prejudiced.”

On the contrary, it is then pointed out in the next para 7 that, “Per contra, learned APP submits that, statement of deaf and dumb was recorded with the help of interpreter and it was also videographed. Her evidence is supported with DNA report which shows that the accused is biological father of the child begotten by her. He refers to the evidence of PW3 that, she has identified the accused at the time of her evidence and showed by signs that he had pressed her throat and had moved her hand on her stomach indicating that the accused is responsible for her pregnancy.”

After hearing both the sides and considering their viewpoint and facts, it is then held in para 8 that, “Considering the facts, the most material issue in this matter is whether PW3 – the victim girl was consenting party or not? She was major and it is nobody’s case that she was not sound. She was capable of giving consent. There are some facts which may support the defence story that she was consenting as there was delay in reporting the matter to police. Nonetheless, there can be reasons which can be accepted for delay in lodging the FIR in such matters.”

More significantly, it is then held in para 9 that, “I find that, the ld. Trial Judge while dealing with a case of deaf and dumb girl ought to have considered the provisions of Section 119 and the apex court’s judgment on the same. The trial court did not verify her understanding capacity. Though evidence of the witness was recorded by appointing an interpreter, the ld. Trial Judge has not followed certain conditions. No oath was administered to the interpreter that he would fully and correctly interpret the questions put to the witness and shall also fully and correctly interpret the answers given by the witness in sign language to the court. As per Section 119 of Evidence Act amended from 03.02.2013, the proviso lays down that, when the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed. The apex court has observed that, the Judge has not only to record the interpretation given by the interpreter but also he has to record the signs made by the witness. This is difficult and now the videography will solve the problem faced by the Judge in recording the signs. These provisions are not followed.”

What’s more, it is then further held in para 10 that, “Considering the facts, it is difficult to determine whether the prosecutrix was a consenting party or not. In the light of these facts, the conviction cannot be sustained and the matter will have to be remanded to the Sessions Judge with direction to record the evidence of PW3-victim girl afresh by following the provisions of Section 119 as interpreted by the Apex Court in Darshan Singh @ Darshan Lal’s case (supra). The Judge shall record the competency to understand and interpret the sign language of deaf and dumb person. The Judge shall give oath to the interpreter for correctly interpreting the questions to the witnesses and the answers given by the victim to the court. Once it is done, the evidence shall be recorded and the same shall be videographed. The prosecution shall make arrangement of the videography of the evidence. The focal point of the evidence should be, whether the act was with consent or without consent. However, the parties shall be at liberty to lead evidence and challenge the same on any other legally permissible point according to law.

It cannot be lost on us that it is then held in para 11 that, “Considering the facts the appeal is partly allowed. The conviction is set aside. The matter is remanded to the trial Court to record evidence of the prosecutrix again and decide the matter afresh. Since the accused is in Jail from 17.11.2016, he is permitted to file fresh Bail Application which the trial Court shall consider on its own merits.”

Not stopping here, it is then further held in para 12 that, “The appellant is directed to remain present in the trial Court on 08.07.2019. The ld. Trial Judge shall hear the matter expeditiously and shall dispose it of within one month from the date of receipt of record and appearance of the parties. The Registrar shall forward the record immediately.” Finally, it is then held in the last para 13 that, “In view of disposal of main appeal, nothing survives in the connected Criminal Application and same stands disposed of.”

In a nutshell, the Aurangabad Bench of Bombay High Court in this notable case seeks to explain how to record the evidence of deaf and dumb rape victim. The Trial Court was directed to follow the procedure of recording such evidence and also to dispose it of within one month as pointed out in the above para. The Trial Court earlier didn’t follow the proper procedure in this regard as has already been explained in detail in the above paras and now it has to comply according to the procedure laid down by the Aurangabad Bench of Bombay High Court. Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

While the ball is set rolling in the first para of this notable and praiseworthy judgment authored by Hon’ble Mr Justice Harnaresh Singh Gill for himself and Hon’ble Mr Justice Rakesh Kumar Jain wherein it is pointed out that, “By way of present appeal, appellant-Ravinder Yadav has assailed the judgment and decree dated 03.04.2019 passed by the District Judge, Narnaul, vide which his petition filed under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) against respondent-Padmini @ Payal was dismissed.” The appellant thus wanted the Division Bench of High Court to review the judgment and decree which went against him!

To recapitulate, it is then pointed out in the next para that, “The facts which need to be elaborated are that the marriage of the appellant and the respondent was solemnized on 09.03.2015 as per Hindu rites and ceremonies. The marriage was consummated but no child was born out of the said wedlock. As per the allegations in the petition, the respondent-wife always imbibed with independent and modern thoughts posing herself to be a broad minded lady. Right from the next day of marriage, respondent started quarrelling with the appellant and his parents and threatened them to do everything under her command. The respondent flatly refused to perform household work and alleged that if she was compelled to do so, she would commit suicide and create problems for appellant and his family members. It was alleged that the respondent used to consume liquor and take drugs and had illicit relations with one Kuldeep Shekhawat. She was in the habit of leaving matrimonial home without informing the appellant and his family members and on asking, she used to say that nobody was allowed to interfere in her personal life. The respondent often used to make phone calls on mobile No. 9521677437 (at some places the mobile number is mentioned as 9621677437) and whenever the appellant called her she would remain busy on whatsapp and facebook with strangers and friends. The respondent even refused to share bed with the appellant which had caused mental cruelty to him. As per the appellant, the respondent left her matrimonial home on 17.04.2015 without informing him and his family members. On 06.05.2015, her father along with other respectable came to the appellant’s place and used bad words against him and his family members. The respondent also broke the Mangalsutra (Necklace) in the presence of the Panchayat members and flatly refused to live with the appellant as his wife and left her matrimonial home on 13.05.2015.”

Needless to say, it is then pointed out in the next para that, “On the other hand, the respondent-wife, though admitted the factum of marriage yet specifically denied that she had ever raised her voice, rather asserted that she had followed all the social and religious customs in her matrimonial home. She alleged that the appellant is M.Sc., M.Ed. qualified and was doing job in a private school. It is also alleged that the appellant used to pressurize the respondent to bring more money from her parents and asked her parents to sell their land, but the respondent and her father did not accede to such demand of the appellant. It was the appellant and his parents, who harassed the respondent physically and mentally and used to call a Tantrik for doing black magic upon her. She had denied the factum of attempting to commit a suicide. She used to prepare the food for the appellant and his family members at proper time and used to serve the guests as well. It was also denied by the respondent that she was a wanderer or used to consume liquor or drugs. The incident dated 06.05.2015 was admitted by the respondent as her family members came to drop her back to her matrimonial home. However, she was never accepted by the appellant and his family. They tortured her and ultimately she was turned out of her matrimonial home.”

As things stand, it is then pointed out in the next para that, “In the present case, issues were framed on 09.05.2017 and the appellant had examined as many as five witnesses along with his mother, namely, Bhatteri Devi as PW-2.”

Moving on, it is then illustrated in the next para that, “On the other hand, respondent had appeared into the witness box as RW-1 along with his father and other witnesses. After taking into consideration the evidence on record, the petition under Section 13 of the Act was dismissed on the ground that marriage was solemnized on 09.03.2015 and the respondent-wife had been residing with her parents since 13.05.2015 and the present petition was filed by the appellant-husband on 25.02.2016. It was, thus, held that the allegations of cruelty remained unsubstantiated.”

After hearing both sides, it is then held in the next para that, “We have heard learned counsel for the parties and are of the view that there is no infirmity and illegality in the impugned judgment and decree passed by the trial Court.”

Furthermore, it is then held in the next para that, “PW-3, namely, Vartika, in her cross examination had testified that the respondent was having illicit relations with one Kuldeep Shekhawat and his name was told to her by her friend Raveena. This witness further stated that she had come in contact with the respondent while studying and staying as a Paying Guest and had made a complaint to the owner of the P.G. regarding the behavior and conduct of the respondent-wife. Neither the owner of the P.G. stepped into the witness box to throw light on the said aspect nor any link evidence in this regard was led. Thus, the oral evidence of Vartika, PW-3 will not advance the cause of the appellant/petitioner.”

What’s more, it is then pointed out in the next para that, “Though it is an admitted fact, as it had come through oral testimony, that the respondent-wife has been residing separately since 13.05.2015, but to our mind, it is the appellant, who alone is instrumental in ensuring that the respondent-wife stays away from her matrimonial home and there is no intentional cessation of cohabitation on the part of the respondent-wife nor there is any intention to desert the appellant-husband.”

It cannot be lost on us that it is then made clear in the next para that, “The statutory period of two years of desertion, as envisaged under the Act, immediately preceding the presentation of the petition, had not expired, before the filing of the divorce petition by the appellant. At this stage, it would be relevant to consider Section 13(ia) and (ib) of the Act which reads as under:-

13. Divorce

(1) Any marriage solemnised, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

[(i) xxx xxx xxx

[(ia) has after the solemnization of the marriage, treated the petitioner with cruelty; or

[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or”

To be sure, we thus see that it is then laid down explicitly in the next para that, “In Section 13(1)(ib) of the Act, it has been specifically laid down that desertion is to be considered for the continuous period of not less than two years, immediately preceding the presentation of the petition.”

As it turned out, it is then held in this new para that, “In the case in hand, the respondent-wife has allegedly left her matrimonial home on 13.05.2015 and the present petition was filed on 25.02.2016, thus, on the date of filing of the divorce petition, the statutory period of two years had not expired. Thus, the present divorce petition had rightly been rejected on this count by the Court below.”

To say the least, it is then held that, “Thus, the relief of divorce was denied because the legislation in its wisdom had framed the Act on the basis of “fault theory” and “break down theory” which was not proved in the present case.”

To put things in perspective, it is then pointed out that, “In Rajni Goyal versus Amit Kumar 2015 (2) R.C.R. (Civil) 871, the Hon’ble Court has held that “adultery is a serious charge and has to be proved beyond reasonable doubt. But at the same time it is difficult to procure direct evidence for procuring such a charge. It is only from the circumstances that an inference can be drawn that the spouse against whom complaint has been made was leading an adulterous life”.”

More importantly, it is then held that, “To our mind, in the present case there is ordinary wear and tear of the married life of the parties, which happens in day to day life. Mere aggressive behavior and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home.”

To put it succinctly, it is then aptly pointed out that, “It has been held by the Apex Court in Samar Ghosh versus Jaya Ghosh, 2007 (2) R.C.R. (Criminal) 515 that the concept of cruelty differs from person to person, depending upon his or her upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Therefore, it is essential for the party claiming the relief to prove that a particular conduct or behaviour has resulted into cruelty to him or her. The aggrieved party has to make specific case that the conduct of the spouse had caused cruelty to him/her. It is for the Court to weigh the gravity of alleged cruelty. It has to be seen whether the conduct was such that no reasonable person would tolerate it.”

Finally and perhaps most importantly, it is then very rightly held that, “In the present case, no cogent evidence has been placed on record that the behaviour of respondent is uncalled for. Regarding relationship of respondent-wife with Kuldeep Shekhawat the same had not been proved and above all Kuldeep Shekhawat had not been arrayed as party in the divorce petition so that he could join the proceedings and some light could have been thrown on the allegation. As a matter of fact adultery cannot be considered without impleading the alleged adulterer as per Rule 10 of Hindu Marriage (Punjab) Rules, 1956. Rather unsubstantiated and uncorroborated testimony associating the respondent with adulterer has caused mental cruelty to the respondent. Thus nuptial knots cannot be allowed to be broken on these types of unfounded allegations of cruelty, physical or mental. In view of the above, we do not find any illegality or infirmity in the order passed by the learned trial Court, which may warrant interference by this Court in the present appeal. Hence, the present appeal is dismissed. No order as to costs.”

In conclusion, the Division Bench of Punjab and Haryana High Court has made it explicitly clear in this latest, landmark and extremely laudable judgment that mere aggressive behaviour of wife cannot be a ground for divorce. There have to be strong grounds on which divorce can be granted. Just mere allegations of adultery also are not sufficient to constitute a ground of divorce. It must also be proved beyond a shadow of doubt for it to be admissible in a court of law. It was held in this case that the husband failed to produce cogent evidence against the wife and therefore his petition for divorce on the ground of cruelty was rejected! It was also very rightly held that mere aggressive behaviour wife and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.