tag:blogger.com,1999:blog-79937711116264786892024-03-15T09:16:52.988-07:00BiharWatch, Journal of Justice, Jurisprudence and LawBiharWatch, Journal of Justice, Jurisprudence and Law is an initiative of East India Research Council (EIRC) and MediaVigil. It focuses on justice, constitutionalism, legislations and judgements besides aesthetics, philosophy, science, ecocide and economic history. It attempts to keep an eye on consciousness, unsound business, jails, cyber space, big data, migrants and neighbors. Editor: Dr.G.Krishna, M.A., LL.M., Ph.D, Post Doc (Berlin), UGC-NET (Law) Email: forcompletejustice@proton.memediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.comBlogger7123125tag:blogger.com,1999:blog-7993771111626478689.post-69236253227714280312024-03-15T09:16:00.000-07:002024-03-15T09:16:22.189-07:00In contractual dispute between the parties, no criminal liability arises: Justice Bibek Chaudhuri, Patna High Court<p style="text-align: justify;"><b>Bangalore based KEONICS, Datacon Technologies
Pvt. Ltd conducted entire work of data entry establishment of
data center, but IEMS not operational till date: Department of Prohibition, Excise and Registration, Bihar</b> </p><p style="text-align: justify;">In Dileep Kumar v. State of Bihar, the judgement of Patna High Court's Justice Bibek Chaudhuri held that "this Court is of the opinion that for the dispute between the parties, no criminal liability arises. Therefore, I have no other alternative but to quash the criminal proceeding against the petitioners in both the writ petitions." In effect, his March 2024 judgement endorses the interim order passed by Justice Rajeev Ranjan Prasad in September 2022.</p><p style="text-align: justify;">The case was filed on July 13, 2022 for quashing of FIR dated June 2, 2022 registered under Sections 353, 420, 406 and 120B of the Indian Penal Code (IPC) and all other consequential proceeding. The criminal writ was registered on August 3, 2022. The case arose out of PS. Case No.-82 Year-2022, Thana- Sachivalaya, Patna. <br /><br />There were six petitioners including Dileep Kavitha, Director Datacon Technologies Pvt Ltd, South Bangalore, Bengaluru, Karnatka, Raghavendra Narayan Kulkarni, Amresh Singh, Ex Project Incharge, Datacon Technologies Pvt Ltd, Patna, Pramit Kumar Keshari System Administrator/ Data Centre Expert, Datacon Technologies Pvt Ltd, Dhanbad, Jharkhand and Datacon Technologies Pvt. Ltd. through its Director Dileep Kumar. The five respondents were Director General of Police,
Bihar, Patna, Senior Superintendent of Police, Patna, Officer-In-charge,
Sachivalaya Police Station, District Patna and Krishna Kumar, Deputy
Commissioner, Prohibition, Excise and Registration Department, New
Secretariat, Patna.</p><p style="text-align: justify;">Bihar State Beverages Corporation Limited (BSBCL) and Karnataka State Electronics Development Corporation Limited (KEONICS) entered into a contract on January 16, 2017, by executing a Master Service Agreement (MSA) as Total Solution and Service Provider (TSSP) to implement the project of IEMS for the Department of Prohibition, Excise and Registration, Government of Bihar. KEONICS undertook the project of IEMS through its impanelled agency Datacon Technologies Private Limited. the sixth petitioner. </p><p style="text-align: justify;">The FIR alleges that he the KEONICS, the vendor has not completed the project by the prescribed time limit and the vendor of the Datacon Technologies Pvt. Ltd. failed to provide required infrastructure. There was some problem from very beginning of the project. The petitioner contended that the project could not be completed because of negligence on the part of the department. Despite issues raised by ‘KEONICS’ the department did not take remedial measures. It was pointed out that the agreement contains an arbitration clause. The petitioner's counsel submitted that the FIR reveals that the allegations are in the nature of a complaint with regard to deficiency in service which cannot give rise to a criminal proceeding. He submitted that the Deputy Commissioner, Prohibition, Excise and Registration Department, Bihar misused his position as a government servant and influenced the officer in-charge of Sachiwalaya police station to register a criminal case against the petitioners. </p><p style="text-align: justify;">On September 29, 2022, the Court had passed an interim order wherein it observed that the allegations are at best in the nature of a complaint against deficiency in service or a breach of contract by the vendor, the sixth petitioner. Justice Rajeev Ranjan Prasad's <a href="https://patnahighcourt.gov.in/vieworder/MTYjODY3IzIwMjIjMiNO-5EH6--am1--G8V7TU=">interim order</a> reads: "this Court directs that till further order, no coercive action shall be taken against the petitioners." <br /></p><p style="text-align: justify;">The
petitioners submitted that the Department committed contractual breach
in the form of Master Service Agreement, which
nowhere prescribed for criminal liability against the other party.
Moreover, IEMS is having detailed provision for dispute resolution which
includes escalation, mediation and provision of arbitration clause as
per Arbitration and Conciliation Act, which can be invoked in case the
complainant Department has any grievances against the vendor i.e.
KEONICS. The respondents submitted that on behalf of KEONICS, Datacon Technologies
Private Limited conducted entire work of data entry establishment of
data center, but they have not made IEMS operational till date. </p><p style="text-align: justify;">The
petitioners' contended that the entire dispute cropped up on the
question of non-payment of money which the Datacon Technologies Private
Limited claimed for their work through KEONICS.</p><p style="text-align: justify;">The <a href="https://patnahighcourt.gov.in/viewjudgment/MTYjOTQ0IzIwMjIjMSNO-MJtVgMB1Cpg=">final judgement</a> dated March 15, 2024 reads: "BSBCL, KEONICS and Datacon Technologies Private
Limited are directed to sit together to resolve their grievances within
four weeks from the date of this order, so that IEMS may be made
operation, subject to any technical glitches and the question regarding
payment or non-payment of the costs for the project shall be determined
directly between BSBCL and KEONICS."</p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-58673838542675799112024-03-14T23:50:00.000-07:002024-03-14T23:50:39.131-07:00Has the case concerning murder of Judge Uttam Anand been solved? <p style="text-align: justify;">On March 14, 2024, CBI informed the Jharkhand High Court that no significant information has been derived from the WhatsApp chats of two people convicted in the murder of Judge Uttam Anand in Dhanbad. <br /></p><p style="text-align: justify;">Uttam Anand, an Additional District Judge, was knocked off by the auto-rickshaw near Randhir Verma Chowk, Dhanbad. The incident was captured on CCTV. He was killed while he was out for a morning walk on July 28, 2021. The incident happened at 5 am. Jharkhand High Court's division bench of Acting Chief Justice Shree Chandrashekhar and Justice Ananda Sen was heard a public interest litigation initiated suo moto after the murder. </p><p style="text-align: justify;">Justice N V Ramana, the then Chief Justice of India had spoken to the then Chief Justice of Jharkhand High Court. The Court had started monitoring the investigation which was initially started by the Dhanbad police. When the the investigation did not yield quick results, the case was handed over to the CBI. The CBI picked up two persons -- Lakhan Verma and Rahul Verma, the driver and conductor of the auto-rickshaw that hit Judge Anand. The CBI had re-registered the case and filed the charge sheet in October 2021. CBI had registered a case on August 4, 2021 in the matter of the murder of Uttam Anand, Additional District Judge, Dhanbad on the request of
Jharkhand Government and on further Notification from Government of
India. </p><p style="text-align: justify;">Jharkhand High Court had directed the CBI to take over the probe into the death case of Dhanbad district judget. A Division Bench of Chief Justice Dr Ravi Ranjan and Justice Sujit Narayan Prasad gave this direction after accepting the recommendation made by the Jharkhand Government in August 2021. </p><p style="text-align: justify;">Prior to that a case was registered by State police on a complaint
from wife of deceased vide FIR No.300/2021 dated July 28, 2021 at Police
Station Dhanbad under Sections 302 and 34 of IPC against an unknown auto driver. Two
persons were arrested by local police. Supreme Court of India had taken suo-motu cognizance in the matter. It had passed directions
for regular monitoring of the case by the High Court of
Jharkhand at Ranchi. After taking over the investigation of the said case, CBI constituted a Special Investigation Team. After thorough investigation, covering all the
possible aspects, CBI filed a chargesheet on October 20, 2021 against these two
accused before the Court at Dhanbad. As many as 58 prosecution witnesses were
examined. The trial was completed in a record time of almost six
months. The entire investigation and trial was completed within one year from the incident. The Trial Court had found both the accused guilty and convicted them on July 28, 2022. <br /></p><p style="text-align: justify;">The sessions court of Dhanbad had framed charges on February 2, 2022. Dhanbad's Additional District and Sessions Judge-8 convicted both of offences under sections 302 (murder), 201 (causing disappearance of evidence) and under 34 (common intention) of the Indian Penal Code (IPC). The Court pronounced the quantum of the sentence on August 6, 2022. A fine of Rs 30,000 was also imposed on both convicts.</p><p style="text-align: justify;">The CBI had issued a <a href="https://cbi.gov.in/press-detail/NTE2OQ==">statement</a> when the Special Judge, CBI Cases, Dhanbad (Jharkhand) sentenced Lakhan Kumar Verma and Rahul Kumar Verma on August 6, 2022. Both have to undergo Life Imprisonment for remainder of Natural Life without any remission in a case related to murder of Uttam Anand, then Additional District & Sessions Judge, Dhanbad. <br /> <br /><br /> <br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-5774494584394290332024-03-14T22:19:00.000-07:002024-03-14T22:19:09.157-07:00Trust of the school, not State under Article 12 of Indian Constitution: Patna High Court <p>In Dr. Nand Kumar Singh v. District Magistrate, Samastipur, Patna High Court's Justice Anjani Kumar Sharan dismissed the writ petition as maintainable on March 14, 2024. The Court <a href="https://patnahighcourt.gov.in/viewjudgment/MTUjMTA4ODgjMjAxOSMxI04=-74oZeN6f2xQ=">concluded</a>, "it is clear that there is a private dispute between the parties and present writ application has been filed by the<br />petitioner for the enforcement of his private right, which cannot be granted since the trust of the school does not come under the purview of the State within Article 12 of the Constitution of India". </p><p>The law is well settled on this issue. The Court relied on the decisions of Supreme Court in Committee of the Management of DPS v. M.K. Gandhi (2015), Trigun Chandra Thakur v. State of Bihar (2019) and St. Mary’s Education Society v. Rajendra Prasad Bhagav to arrive at the conclusion that the writ application is not maintainable.</p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-47493227975402936162024-03-14T08:49:00.000-07:002024-03-14T08:49:38.898-07:00Supreme Court upholds the order of Justice Prabhat Kumar Singh, Patna High Court <p style="text-align: justify;">Upon hearing the criminal appeal of five petitioners, namely, Srikant padhayay, Shashikant Upadhayay, Srina Upadhayay, Ashutosh Kumar and Asim Priyanshu, Supreme Court's bench of Justices C.T. Ravikumar and Sanjay Kumar concluded that "there is no ground for interfering with the order of the High Court rejecting the application for anticipatory bail rather not considering application on merits. Since their action is nothing short of defying the lawful orders of the Court and attempting to delay the proceedings, this appeal must fail. Consequently, it is dismissed." The case arose out of PS. Case No.-79 Year-2020 Thana- Govindganj, East Champaran. </p><p style="text-align: justify;">The 33 page long <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=248132023&type=j&order_date=2024-03-14">judgement </a>authored by Justice Ravikumar was delivered on March 14 , 2024. The Court relied on Court's decisions in Prem Shankar Prasad v. State of Bihar (2022), State of Madhya Pradesh v. Pradeep Sharma (2014) and Lavesh v. NCT of Delhi (2012).<br /></p><p style="text-align: justify;">It all began with a pre-arrest bail application which was moved in connection with FIR No.79 of 2020, registered against him and co-accused at Govidganj, Police Station, District East Champaran, Bihar, under Sections 341, 323, 354, 354 (B), 379, 504, 506 and 149 of the Indian Penal Code, 1860 (IPC) and Section 3/4 of Prevention of Witch (Daain) Practices Act, 1999. The Court refused to interfere with the order of Justice Prabhat Kumar Singh of Patna High Court. In this case, FIR was registered pursuant to the directions of the learned Chief Judicial Magistrate, East Champaran, Motihari on complaint No.395 of 2020 filed by Ashutosh Kumar, Respondent No.4 under Section 156 (3), Cr. PC. </p><p style="text-align: justify;">The allegations in the complaint is as follows: On February 22, 2020, at about 8.00 am, when Jagmati Kunwar, the grandmother of respondent No.4 reached in front of the house of appellant No.2, Shashikant Upadhyay, he said that she is the witch who made his child sick and shall not be spared. Then, the appellants and eight other family members gathered around her and the 4th appellant caught hold of her hair and asked the others to bring dung. Thereupon, accused Paritosh Kumar brought dung and accused Rishu put dung into the mouth of Jagmati Kunwar. Consequently, she vomited and fell down. When respondent No.2/complainant and other witnesses went for her help, the second appellant Shashikant Upadhayay assaulted and abused respondent No.2. Co-accused Paritosh Kumar and Jishu Kumar tore the blouse of Kiran Devi and she was disrobed. Another co-accused Soni Devi snatched a gold chain from the complainant. The co-accused Ravikant and appellant No.5 tore the clothes of Jagmati Kunwar and made her half-naked.<br /></p><p style="text-align: justify;">In this backdrop, the five petitioners who apprehend arrest in registered for the offences punishable under Sections 379/354B and other sections of the IPC had filed a petition for pre-arrest bail in Patna High Court on November <span id="ctl00_MainContent_fvCaseStatusCri_Label26">22, 2022</span>. It was registered on <span id="ctl00_MainContent_fvCaseStatusCri_Label1">December 1, 2022.</span> </p><p style="text-align: justify;">Section 379 deals with "Punishment for theft". It reads: "Whoever commits theft shall be
punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both." <span class="label label-default">Section 354B</span> deals with "Assault or use of criminal force to woman with intent to disrobe". It reads: "Any man who assaults
or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to
be naked, shall be punished with imprisonment of either description for a term which shall not be less
than three years but which may extend to seven years, and shall also be liable to fine."</p><p style="text-align: justify;"> Justice Prabhat Kumar Singh of the High Court heard the matter and dismissed petition for pre-arrest bail of these five petitioners and dismissed it as not maintainable. </p><p style="text-align: justify;">The 2-page long High Court's <a href="https://patnahighcourt.gov.in/vieworder/NiM2NzY2OCMyMDIyIzIjTg==-ov3iIlZSe--am1--8=">order </a>dated April 4, 2023 reads: "It is submitted on behalf of the State and the informant that petitioners have been declared absconder and processes of sections 82 and 83 have been initiated against them to ensure their appearance in the Court. Considering the aforesaid development, petition for pre-arrest bail of the petitioners is dismissed as not maintainable." <br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-87809227863394959802024-03-13T10:02:00.000-07:002024-03-13T10:02:25.514-07:00Order of Single Judge Bench of High Court restored, Order of Division Bench set aside: Supreme Court<p><b>"Transfer on the instance of MP/MLA always would not per se vitiate the order of transfer"</b> <br /></p><p style="text-align: justify;">In Sri Pubi Lombi v. State of Aurnachal Pradesh (2024), the <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=401142023&type=j&order_date=2024-03-13">judgement </a>of Supreme Court's bench of Justices J.K. Maheshwari and Sanjay Karol has set aside the judgment and order dated September 22, 2023 of the Division Bench of the Gauhati High Court and restored the judgement of the Single Judge bench dated July 11, 2023. The Single Judge bench had upheld the order of transfer dated April 20, 2023. It observed that transfer made on the basis of UO Note dated February 28, 2023 put up by the Member of the Legislative Assembly, 29-Basar (ST) Assembly Constituency (MLA) itself cannot be held to vitiate the transfer until there is an allegation of any malafide exercise of powers by the respondents-authorities in issuing the order. The Single Judge bench had dismissed the writ petition challenging the modified order of transfer in absence of any allegation of malafide.</p><p style="text-align: justify;">The Division Bench of the High Court heard the writ appeal and had set aside the order of the Single Judge bench . It observed that the UO Note of the MLA was approved without application of mind with regard to administrative exigencies by department in public interest or in the service. </p><p style="text-align: justify;">The judgment of the Division Bench was questioned before the Supreme Court. It was contended that in the matter of transfer scope of judicial review is limited,. It can be reviewed only when transfer is in violation of the statutory provisions or due to malafide reasons. It is not open to the Court to interfere with the orders of transfer on a post which is transferrable, in absence of any malafide alleged or infraction of any professed norms if such transfer is not detrimental. The State supported the contention of the appellant. It submitted that the Division Bench has committed an error in setting aside the well-reasoned judgment of Single Judge.<br /></p><p>The judgement authored by Justice Maheshwari was delivered on March 13, 2024.</p><p style="text-align: justify;"><b>Note</b>: The judgment dated 22.09.2023 passed by the Division Bench of the Gauhati High Court in Writ Appeal No. 266/2023 which reversed the judgment of the Single Judge dated 11.07.2023 passed in Writ Petition (Civil) No. 199 (AP) 2023 do not appear to be on the website of Gauhati High Court. Supreme Court's website refers to <span class="bt-content">Justices Soumitra Saikia and Arun Deve Choudhury for </span>verdict dated
<span class="bt-content">22-09-2023 in </span><span class="bt-content">WA-266-2023. It </span>refers to <span class="bt-content">Justices Soumitra Saikia and Arun Deve Choudhury "although its a Single Judge bench" for the verdict dated</span>
<span class="bt-content">11-07-2023 in </span><span class="bt-content"></span><span class="bt-content">WPC-199(AP)-2023. These errors need to be rectified. <br /></span></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-4916094666996211942024-03-13T01:29:00.000-07:002024-03-13T01:35:56.916-07:00Patna High Court sets aside illegal order of Sub- Divisional Magistrate, Ballia, Begusarai<p style="text-align: justify;">Setting aside the order of Sub- Divisional Magistrate, Ballia, Begusarai, Patna High Court observed that "The impugned order is not only bad in law, but perverse and passed without following the procedure and power of the Executive Magistrate under Chapter-X of the Cr.P.C." Rameshwar Prasad Singh, S/o Late Nathuni Singh, the petitioner from Manserpur, Ballia, Begusarai, had challenged an order dated June 8, 2017 passed by the Sub-Divisional Magistrate, Ballia, Begusarai, in Dispute Case No. 01 of 2016-17, registered on the basis of a plain official letter, written by Sadanand Singh, respondent no. 7 to the Executive Magistrate. The case was filed on <span id="ctl00_MainContent_fvCaseStatusCri_Label26">July 18, 2018.</span></p><p style="text-align: justify;"></p><p style="text-align: justify;">It has been noted by the Court that by passing the impugned order on June 8, 2017, the Sub-divisional Magistrate, Ballia, Begusarai, passed an order restraining the opposite parties from making any obstruction to the petitioner (respondent no. 7 in High Court) from carrying on repairing as well as renovation work of his hut, situated on khesra no.-519, over a land measuring about 2 dhurs.</p><p style="text-align: justify;">In its <a href="https://patnahighcourt.gov.in/viewjudgment/NyM4NTYjMjAxOCMxI04=-wO2UkI8Y5Gw=">order</a>, the Court recorded that "no proceeding under <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&sectionId=22533&sectionno=144&orderno=166">Section 144</a> of the Cr.P.C. or <a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_000010_197402_1517807320555&orderno=167">Section 145</a> of the Cr.P.C. was initiated by the Sub-divisional Magistrate while passing the impugned order in the nature of injunction. By such order, it is alleged on behalf of the petitioner that the petitioner is prevented from his enjoyment over the subject land." Section 144 (7) states that where an application under Section 144 (5) or 144 (6) is received, the Magistrate, or the State
Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or
it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State
Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the
reasons for so doing.</p><p style="text-align: justify;">The Advocate for the petitioner submitted that prior to making such application before the Sub-divisional Magistrate, the respondent no. 7 himself filed a suit for declaration of his title and other consequential relief before the 1st court of the Civil Judge (Senior Division) at Begusarai, which was registered as Title Suit No. 5 of 2016, dated January 2, 2016. In this suit the respondent no. 7 being the plaintiff did not file any application for temporary injunction restraining the defendants from making any obstruction against the repairing work of his hut. The Court recorded that "On the contrary, suppressing the this fact, the respondent no. 7 obtained a most illegal order from the Sub-divisional Magistrate, Ballia, Begusarai." The judgement was authored by Justice Bibek Chaudhuri. <br /></p><p><br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-30159029760349127092024-03-12T23:41:00.000-07:002024-03-13T00:02:36.661-07:00Registrar Generals of High Courts, Chief Secretaries and Police stations must ensure strict compliance with Section 173 of Cr.P.C: Supreme Court <p style="text-align: justify;">On March 12, 2024, in Dablu Kujur v. State of Jharkhand (2024), Supreme Court's bench of Justices Bela M. Trivedi and Pankaj Mithal reiterated Court's order dated July 17, 2023, whereby DGPs for the States of Bihar and Uttar Pradesh were directed to submit their respective reports on the steps taken by them to ensure that chargesheets are being filed in compliance with the relevant provisions of the Code of Criminal Procedure (Cr.P.C), 1973. This order was passed by Court's bench of Justices Sanjiv Khanna and Trivedi.</p><p style="text-align: justify;">The March 2024 <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=80012023&type=j&order_date=2024-03-12">order </a>authored by Justice Trivedi records that in compliance with the earlier order, the affidavits have been filed on behalf of the State of Jharkhand, Uttar Pradesh and Bihar with regard to the steps taken/being taken by them for submitting the Chargesheets/Police Reports in accordance with law. In conclusion, the Court's order reads:
"It is further directed that the officer in charge of the police
stations in every State shall strictly comply with the afore-stated
directions, and the non-compliance thereof shall be strictly viewed by
the concerned courts in which the Police Reports are submitted. Copy of
this order be sent to all the Chief Secretaries of the States/UTs as
also to Registrar Generals of the High Courts for perusal and
compliance."</p><p style="text-align: justify;"> </p><p style="text-align: justify;">The Court observed, "The Police Report submitted by the police under Section 173(2) being very important piece of document from the view point of the prosecution, the defence and the court, we deem it necessary to elaborately deal with the various aspects involved in the said provision. For the reasons stated hereinafter, we are of the opinion that it is incumbent on the part of the Investigating Officer to strictly comply with the requirements of the said provisions, as non-compliance thereof gives rise to many legal issues in the court of law." Section 173 deals with the report of police officer on completion of investigation. Section 173 (2) deals with required post investigation steps, the required eight details in the prescribed format of the police report which is supposed to be forwarded to a Magistrate empowered to take cognizance of the offence, and communication by the police officer regarding action taken by him to the person by whom the information relating to the commission of offence was first given. As per Section 2(r) of Cr.P.C, “Police Report” means a report forwarded by a Police Officer to a Magistrate under sub-section (2) of Section 173.</p><p style="text-align: justify;">Section 173 reads: “173. Report of police officer on completion of investigation. —(1) Every investigation under this Chapter shall be completed without unnecessary delay. [(1A) The investigation in relation to [an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E] from the date on which the information was recorded by the officer in charge of the police station.] (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating—</p><p style="text-align: justify;">(a) the names of the parties;<br />(b) the nature of the information;<br />(c) the names of the persons who appear to be acquainted with the circumstances of the case;<br />(d) whether any offence appears to have been committed and, if so, by whom;<br />(e) whether the accused has been arrested;<br />(f) whether he has been released on his bond and, if so, whether with or without sureties;<br />(g) whether he has been forwarded in custody under section 170.<br />(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under [ sections 376,376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)].]<br />(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.<br />(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.<br />(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.<br />(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report—<br />(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;<br />(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.<br />(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.<br />(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).<br />(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)”.<br />10. The procedure for investigation has been laid down in Section 157 of Cr.P.C. which states inter alia that if from the information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. Such report would be in the nature of preliminary report. As per Section 169, upon the completion of the investigation, if it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before the Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. Section 170 deals with the cases to be sent to Magistrate when evidence is sufficient. The relevant part of Section 170(1) reads as under: -“170. Cases to be sent to Magistrate, when evidence is<br />sufficient.—(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.” </p><p style="text-align: justify;">Section 172 pertains to the Diary of proceedings in investigation, which requires every police officer making an investigation under Chapter XII Cr.P.C. to enter his proceedings in the investigation in a diary day by day. Sub-section (IA) of Section 172 requires that the statements of the witnesses recorded during the course of investigation under section 161 have to be inserted in the case diary; and sub-section (1B) of Section 172 requires that such diary shall be a volume and duly paginated. </p><p style="text-align: justify;">The Court observed that "though there are various reports required to be submitted by the police in charge of the police station before, during and after the investigation as contemplated in Chapter XII of Cr.P.C., it is only the report forwarded by the police officer to the Magistrate under sub-section (2) of Section 173 Cr.P.C. that can form the basis for the competent court for taking cognizance thereupon. <u>A chargesheet is nothing but a final report of the police officer under Section 173(2) of Cr.P.C. It is an opinion or intimation of the investigating officer to the concerned court that on the material collected during the course of investigation, an offence appears to have been committed by the particular person or persons, or that no offence appears to have been committed.</u></p><p style="text-align: justify;">It further observes, "When such a Police Report concludes that an offence appears to have been committed by a particular person or persons, the Magistrate has three options: </p><p style="text-align: justify;">(i) he may accept the report and take cognizance of the offence and issue process, </p><p style="text-align: justify;">(ii) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report, or </p><p style="text-align: justify;">(iii) he may disagree with the report and discharge the accused or drop the proceedings. </p><p style="text-align: justify;">If such Police Report concludes that no offence appears to have been committed, the Magistrate again has three options: </p><p style="text-align: justify;">(i) he may accept the report and drop the proceedings, or (ii) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, or </p><p style="text-align: justify;">(iii) he may direct further investigation to be made by the police under sub-section (3) of Section 156.</p><p style="text-align: justify;">The Court referred to Satya Narain Musadi v. State of Bihar (1980), wherein, the Court observed that statutory requirement of the report under Section 173(2) would be complied with if various details prescribed therein are included in the report. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). But in <u>Dinesh Dalmia v. CBI (2007)</u>, it has been held that even if all the documents are not filed, by reason thereof the submission of the chargesheet itself would not be vitiated in law. It also cited Court's recent opinion in CBI v. Kapil Wadhwan (2024), wherein the Court observed "Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C."</p><p style="text-align: justify;">It emerges from the cited judgements of the Supreme Court that non-compliance with Section 173(2) of Cr.P.C does not vitiate the chargesheet. But Justice Trivedi infers the contrary. She says, "The above referred discussion has been necessitated for highlighting the significance of the compliance of requirements of the provisions contained in Section 173(2) of Cr.P.C."</p><p style="text-align: justify;">Significantly, her order directs that "the Report of police officer on the completion of investigation shall contain the following: -<br />(i) A report in the form prescribed by the State Government stating-<br />(a) the names of the parties;<br />(b) the nature of the information;<br />(c) the names of the persons who appear to be acquainted with the circumstances of the case;<br />(d) whether any offence appears to have been committed and, if so, by whom;<br />(e) whether the accused has been arrested;<br />(f) whether he has been released on his bond and, if so, whether with or without sureties;<br />(g) whether he has been forwarded in custody under section 170.<br />(h) Whether the report of medical examination of the woman has been attached where investigation relates to an offence under [sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)”<br />(ii) If upon the completion of investigation, there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, the Police officer in charge shall clearly state in the Report about the compliance of Section 169 Cr.PC.<br />(iii) When the report in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report, all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.<br />(iv) In case of further investigation, the Police officer in charge shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and shall also comply with the details mentioned in the above sub para (i) to (iii).</p><div style="text-align: justify;">Justice Trivedi has reversed the judgements in <u>Dinesh Dalmia v. CBI</u> (2007) and <u>CBI v. Kapil Wadhwan </u>(2024) in this regard. It is apparent from the judgement that strict compliance with Section 173 of Cr.P.C has been made mandatory. </div>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-84833361333241320622024-03-12T21:33:00.000-07:002024-03-12T21:33:12.370-07:00All breach of contract cases are not criminal cases, Supreme Court sets aside Karnataka High Court judgement <p style="text-align: justify;">In Naresh Kumar v. State of Karnataka, the Supreme Court's bench of Justices Sudhanshu Dhulia and Prasanna B. Varale set aside the appeal and the
order of Justice Suraj Govindaraj, Karnataka High Court dated December 2, 2020. The Court quashed the criminal
proceedings arising out of FIR No.113 of 2017. The Court concluded that "Essentially, the present dispute between the parties
relates to a breach of contract....In the case at hand, the dispute between the parties was
not only essentially of a civil nature but in this case the
dispute itself stood settled later as we have already
discussed above. We see no criminal element here and
consequently <u>the case here is nothing but an abuse of the
process</u>." </p><div style="text-align: justify;">In this case, Naresh Kumar and Rajesh Kapoor, the appellants had challenged the order of the Karnataka High Court by which
their petition under Section 482 of Criminal Procedure
Code for quashing the FIR has been dismissed in December 2020. The case
of the appellants before the High Court of Karnataka was
that the FIR which was instituted by Wasim Ahmed, the complainant i.e.
respondent no. 2 is primarily a civil dispute and it has no
criminal element and the entire criminal proceedings
initiated against the appellants is nothing but an abuse of
the process and consequently, they had invoked the
extraordinary powers of the High Court under Section 482
of the Criminal Procedure Code. </div><p style="text-align: justify;">The two appellants before
the Court are the Assistant Manager (Marketing) and the
Managing Director of a company, which is a manufacturer
of bicycles. Respondent no.2 was given a contract, for the assembly of bicycles,
their transport and their delivery, at the rate of Rs.122/-
for each bicycle, and since they had assembled 83,267
bicycles, they raised invoices amounting to Rs.
1,01,58,574/- and were liable to be paid the same. But respondent no.2 contended that instead, a
payment of only Rs.35,37,390/- was given by the
appellants. Hence, it was a case of criminal breach of trust
and cheating and the First Information Report No. 113 of
2017 against the appellant no. 1 was filed on May 24, 2017
under Sections 406, 420 and 506 of the Indian Penal Code (IPC)
at P.S. Doddaballapura, Bangalore Rural District. Later on, a Chargesheet dated May 30, 2019, was filed
in the court where both the appellants were made accused. </p><p style="text-align: justify;">Supreme Court's judgement records that subsequent to the filing of FIR there was an admitted
settlement between the appellants and respondent No. 2
by a Compromise Deed dated December 27, 2017 by which as a
full and final settlement between the two parties, an
additional amount of Rs. 26 lakhs were to be paid by the
appellant, which has been duly given and accepted. This
amount was deposited in the account of respondent no. 2
on December 29, 2017. This was done by the appellants in order
to give a quietus to the whole situation and to bring peace,
according to the appellants. Therefore, as of now, a total
amount of Rs.62 lakhs as against Rs. 1,01,58,574/- which
was claimed by the complainant has been admittedly paid.
The case of the respondent no. 2 against the settlement
dated December 27, 2017 is that the respondent no. 2 was coerced
in entering into this settlement and this is not a settlement
arrived at by the free will of the complainant and therefore
the prosecution of the appellants is necessary under the
criminal law.</p><p style="text-align: justify;">Supreme Court observed that the High Court did not accord any importance to the fact that settlement had occurred by a Compromise Deed dated December 27, 2017. It found it strange that the High Court refused to accept the
contention of the appellants that the dispute between the
parties in any case is civil in nature. The High Court was
of the opinion that since the appellants had claimed that
the complainant assembled only 28,995 bicycles, which
would make them liable to pay only an amount of Rs.35
lakhs, but instead the appellants had paid an amount of
Rs.62 lakhs which shows that the actual number of
bicycles which were assembled by the complainant was
much more than 28,995 bicycles, as claimed by the
appellants and therefore, the appellants had an intention
to cheat the complainant right from the beginning. Thus,
it was held by the High Court that <i>prima facie</i> a case of
cheating is made out against the appellants. </p><p style="text-align: justify;">After hearing the counsels for both the parties, the Supreme Court held the considered view that "the findings of the High
Court on this aspect are not correct. We do not agree with
the findings arrived at by the High Court for two reasons.
Firstly, the dispute between the parties is primarily, civil
in nature. It is after all a question of how many bicycles
the complainant had assembled and the dispute between
the parties is only regarding the figure of bicycles and
consequently of the amount liable to be paid. This is a civil
dispute." </p><p style="text-align: justify;">It observed that "The complainant has not been able to establish
that the intention to cheat the complainant was there with
the appellants right from the beginning. Merely because
the appellants admit that only 28,995 bicycles were
assembled, but they have admittedly paid an amount of
Rs. 62,01,746/- to the complainant, which is of a much
higher number of bicycles, would not prove that the
intention of the appellants right from the beginning was to
cheat. This amount i.e. the additional amount of Rs. 26
lacs have been paid by the appellants pursuant to a
settlement. The reasons and the logic for arriving at a
settlement are quite different. In this case it seems, it is
primarily to bring a quietus to the dispute and to have
peace and to avoid litigation. The mere fact that the
appellants have paid an additional amount pursuant to
the settlement, cannot be presumed as an act of cheating."</p><p style="text-align: justify;">As to the complainant's claim that he was coerced into the settlement, the Court noted that the allegation that the complainant was
coerced into a settlement, looks unlikely for two reasons.
First, there is no FIR or Complaint that the complainant
was coerced into this settlement. Secondly, this amount
was duly accepted by the complainant. </p><p style="text-align: justify;">The Court observed that this is a case where the inherent powers should have
been exercised by the High Court under Section 482 of the
Criminal Procedure Code as the powers are there to stop
the abuse of the process and to secure the ends of justice. Section 482 empowers the High Court with inherent power "to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It does not grant new powers to the High Court but rather preserves its inherent powers to prevent abuse of court processes and ensure justice. Section 482 can be used to quash even non-compoundable offences. <br /></p><p style="text-align: justify;">Drawing in the judgement in Paramjeet Batra v. State of Uttarakhand
(2013), the Court recognized that although
the inherent powers of a High Court under Section 482 of
the Code of Criminal Procedure should be exercised
sparingly, yet the High Court must not hesitate in
quashing such criminal proceedings which are essentially
of a civil nature. This power is to be used only for the
purpose of preventing abuse of the
process of any court or otherwise to
secure ends of justice. It pointed out that the High Court
must see whether a dispute which is
essentially of a civil nature is given
a cloak of criminal offence. In such a
situation, if a civil remedy is
available and is, in fact, adopted as
has happened in this case, the High
Court should not hesitate to quash
the criminal proceedings to prevent
abuse of process of the court.” Supreme has held that "criminal proceedings cannot be
taken recourse to as a weapon of harassment" in Randheer Singh v. State of U.P. (2021). The Court has reiterated in Usha
Chakraborty v. State of West Bengal & (2023) that where a dispute which is
essentially of a civil nature, is given a cloak of a criminal
offence, then such disputes can be quashed, by exercising
the inherent powers under Section 482 of the Code of
Criminal Procedure. </p><p style="text-align: justify;">Justice Dhulia authored the <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=44722021&type=j&order_date=2024-03-12">judgement</a> dated March 12, 2024. Drawing on the Supreme Court's judgement in Sarabjit Kaur v. State of Punjab (2023), he underlined that "A mere breach of contract,
by one of the parties, would not attract prosecution for
criminal offence in every case". He also relied on the Court's verdict in Vesa Holdings (P)
Ltd. v. State of Kerala, (2015) which dealt with the <u>distinction
between the offence of cheating and a mere breach of
contractual obligations</u> and held that
<u>every breach of contract would not give rise to the offence
of cheating</u>, and it is required to be shown that the accused
had fraudulent or dishonest intention at the time of
making the promise. </p><p><br /></p><br />mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-21726598318613284862024-03-12T08:27:00.000-07:002024-03-12T20:24:20.288-07:00Brajnagar Coal Mines Workers's Union wins against cruelty of Mahanadi Coalfields Ltd, Coal India Ltd<p style="text-align: justify;">Supreme Court's bench of Justices Pamidighantam Sri Narasimha and Sandeep Mehta upeold the judgment of the Orissa High Court and the Industrial Tribunal, Rourkela, Odisha directing the regularization of workers and payment of wages in Mahanadi Coalfields Ltd v. Brajnagar Coal Mines Workers's Union. The Tribunal's judgement was passed on May 23, 2002. It establishes the victory of Brajnagar Coal Mines Workers's Union against Mahanadi Coalfields Ltd, a subsidiary of Coal India Ltd. The Court's order reads:'we are of the opinion that there is no merit in the appeals filed by the appellant. This is a case of wrongful denial of employment and regularization, for no fault of the workmen and therefore, there will be no order restricting their wages." <br /></p><p style="text-align: justify;"><span class="ILfuVd" lang="en"><span class="hgKElc">Drawing on Article 136 of the Constitution of India, </span></span><span class="ILfuVd" lang="en"><span class="hgKElc">Supreme Court entertained the Special leave petition. Under Article 136, "the Supreme Court may, in
its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India" </span></span><span class="ILfuVd" lang="en"><span class="hgKElc">under </span></span>its Civil Appellate Jurisdiction. </p><p style="text-align: justify;">The High Court and the Tribunal has held that the workers were engaged in a work which was "regular and perennial in nature". Mahanadi Coalfields Ltd, Coal India Ltd, the appellant filed a Writ Petition (C) numbered 2002/2002 before the Orissa High Court. The High Court dismissed the writ petition and "affirmed the findings of the Tribunal." It also dismissed the Review Petition bearing No. 77/2017 filed by the Mahanadi Coalfields Ltd, Coal India Ltd. </p><p style="text-align: justify;">Notably, in its <a href="https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=eISc8sUCYnQFBVP%2BVeJCOL8v1N0b3tKYKjHbaBw0DEHc0yrPHr44MiVn2GwTdoh4&caseno=RVWPET/77/2017&cCode=1&appFlag=">order </a>dated November 11, 2021, Orissa High Court's bench of Chief Justice Dr. S. Muralidhar and Justice K.R. Mohapatra asserted that "No ground is made out for review of the order dated 11th January, 2017 passed in W.P.(C) No.2002 of 2002. The review petition is accordingly dismissed." <br /></p><p style="text-align: justify;">Prior to this High Court's bench of Justices S.C.Parija and K.R. Mohapatra heard the writ petition of the Management of Mahanadi Coal Field Limited, Ib Valley area, Brajarajnagar assailing the award dated May 23, 2002 by Government Industrial Tribunal-cum-Labour Court, Bhubaneswar (CGIT) in Tr. Industrial Dispute Case No.27 of 2001. It passed the dismissal <a href="https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=JWh84WYVV%2BM86K4sXzCHn36x7Pkan5arA63ppwtLR1WT%2F2camJDSSJIi6k55a0Cv&caseno=WP(C)/2002/2002&cCode=1&appFlag=">order</a> saying, "we find no reason as to why 13 out of 32 numbers of Workmen should be discriminated, when 19 of them have already been regularized pursuant to an out of Court settlement, during pendency of the reference before the learned CGIT, more particularly when the jobs they were discharging were regular and permanent in nature. For the reasons as aforestated, we do not find any infirmity in the impugned award so as to warrant any interference.".<br /></p><p style="text-align: justify;">The Workers' Union asserted that the list in the industrial reference dated May 20, 1997 showed that workers were arbitrarily deprived of regularization, wherein certain workers from the bunker and the plant were left out of the settlement without any reason. It is also argued that the work in the railway siding was perennial and regular in nature, similar to the works in the bunker. As there was no resolution of the claim of regularization of similarly placed workers, they pursued the remedy under the Industrial Disputes Act, 1947. These workers suffered for no fault of theirs and an order of regularization must naturally lead to grant of consequential back wages. The Assistant Labour Commissioner took up the entire cause which culminated in the settlement dated April 5, 997. In the settlement, Mahanadi Coalfields Ltd, Coal India Ltd had "agreed to regularize 19 contractors" out of 32 workers. The Union Government invoked the power of reference to refer the matter to the Tribunal to adjudicate the interest of all the 32 workers. The Tribunal was naturally bound by the reference to consider the claim of all the 32 workers.</p><p style="text-align: justify;">The Court observed, "What appeals to us is that the 32 workers who entered the service of the appellant in 1984, continued uninterruptedly till 1994, when the respondent-union sought their permanence.....It is proved that the remaining workers stand on the same footing as the regularized employees, and they were wrongly not made part of the settlement. This is established by the Tribunal, by examining the nature of work undertaken by the first set of 19 workmen and that of the other 13 workmen....The Tribunal finally came to the conclusion that the nature of the duties performed by the 13 workmen are perennial in nature. The appellant has failed to establish any distinction between the two sets of workers. The Tribunal was, therefore, justified in answering the reference and returning the finding that they hold the same status as the regularized employees." </p><p style="text-align: justify;">The Court also observed, "We are also not impressed with the artificial distinction which the appellant sought to bring about between the 19 workers who were regularized and the 13 workers who were left out. The evidence on record discloses that, of the total 32 workmen, 19 workers worked in the bunker, 6 worked in the Coal Handling Plant, and 7 worked on the railway siding. However, of the 19 workers who were regularized, 16 worked in the bunker, and 3 worked in the Coal Handling Plant. However, 3 workers from the same bunker, 3 workers from the same Coal Handling Plant and again 7 workers from the same railway siding were not regularized." It concurred with the findings of the Tribunal. The Tribunal had "come to a conclusion that the denial of regularization of the 13 workmen is wholly unjustified." <br /></p><p style="text-align: justify;">The Court concluded, "With respect to payment of backwages, we are of the opinion that the workmen will be entitled to backwages as observed by the Industrial Tribunal. <u>However, taking into account, the long-drawn litigation affecting the workmen as well as the appellant in equal measure and taking into account the public interest, we confine the backwages to be calculated from the decision of the Tribunal dated 23.05.2002.</u> This is the only modification in the order of the Tribunal, and as was affirmed by the judgment of the High Court. For the reasons stated above, the appeals arising out of the final judgment and order of the High Court in W.P. (C) No. 2002/2002 and order in Review Petition No. 77/2017 are dismissed with the direction that the concerned workmen shall be entitled to backwages with effect from 23.05.2002." The <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=320722021&type=j&order_date=2024-03-12">judgement </a>dated March 12, 2024 was authored by Justice Sri Narasimha.</p><p style="text-align: justify;">Is it fair on the part of the Court to modify Tribunal's judgement and confine <i>"the backwages to be calculated from the
decision of the Tribunal dated 23.05.2002."</i><b> </b>Why backwages should not be calculated from the outset? It is it normal to refrain from imposing cost on Mahanadi Coalfields Ltd for denying adequate wages for such a long time?
</p><br />mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-58259112977363991512024-03-11T23:07:00.000-07:002024-03-11T23:10:31.456-07:00Supreme Court's 9-Judge Constitution Bench to decide ambit of legislative power under Entry 33, Concurrent List and Entry 52 of Union List, VII Schedule <p style="text-align: justify;">Supreme Court's 9-Judge Constitution Bench comprising Dr. D. Y. Chandrachud, Chief Justice of India, Justices Hrishikesh Roy, Abhay S. Oka, B.V. Nagarathna, J.B. Pardiwala, Manoj Misra, Ujjal Bhuyan, Satish Chandra Sharma and Augustine George Masih is all set to hear State of Uttar Pradesh v. M/s. Lalta Prasad Vaish along with connected matters on March 19, 2024. The Advocates and Parties-in-person have been asked to be ready to present their cases before the Court. </p><p style="text-align: justify;">The 3-judge bench of Justices H.K. Sema, Altamas Kabir and Lokeshwar Panta had referred it to a 9-judge bench by the <a href="https://webapi.sci.gov.in/jonew/judis/29708.pdf">judgement </a>dated October 25, 2007. The judgement was authored by Justice Kabir. The judgement formulated the following six questions for the 9-judge bench to consider: </p><p style="text-align: justify;">1. Does Section 2 of the <a href="https://www.indiacode.nic.in/bitstream/123456789/6826/1/a-1_-_industries_act1951.pdf">Industries (Development and Regulation) Act, 1951</a>, have any impact on the field<br />covered by Section 18-G of the said Act or Entry 33 of List III of the Seventh Schedule of the Constitution? </p><p style="text-align: justify;">Q.2 Does Section 18G of the aforesaid Act fall under Entry 52 of List I of the Seventh Schedule of the<br />Constitution, or is it covered by Entry 33 of List III thereof?</p><p style="text-align: justify;">Q.3 In the absence of any notified order by the Central Government under Section 18-G of the above Act, is the power of the State to legislate in respect of matters enumerated in Entry 33 of List III ousted?</p><p style="text-align: justify;">Q.4 Does the mere enactment of Section 18-G of the above Act, give rise to a presumption that it was the intention of the Central Government to cover the entire field in respect of Entry 33 of List III so as to oust the States’ competence to legislate in respect of matters relating thereto? </p><p style="text-align: justify;">Q.5 Does the mere presence of Section 18-G of the above Act, oust the State’s power to legislate in regard to matters falling under Entry 33(a) of List III ?; </p><p style="text-align: justify;">Q.6 Does the interpretation given in Synthetics and Chemicals Case (1990) 1 SCC P 109, in respect of Section 18-G of the Industries (Development and Regulation) Act, 1951, correctly state the law regarding the States’ power to regulate industrial alcohol as a product of the Scheduled industry under Entry 33 of List III of the Seventh Schedule of the Constitution in view of clause (a) thereof?</p><p style="text-align: justify;">Section 2 of the <a href="https://www.indiacode.nic.in/bitstream/123456789/6826/1/a-1_-_industries_act1951.pdf">Industries (Development and Regulation) Act, 1951</a> states: "It is hereby declared that it is expedient in the public interest that the Union should take under its control the industries specified in the First Schedule." The First Schedule of the Act read with Sections 2 provides a list of industry engaged in the manufacture or production of any of the articles. </p><p style="text-align: justify;">Notably, Industries (Development and Regulation) Act, 1951 has been placed under Ninth Schedule of the Constitution of India which <span class="ILfuVd" lang="en"><span class="hgKElc">contains a list of central and state laws which cannot be challenged in courts. It was added by the Constitution (First Amendment) Act, 1951. The first Amendment had added 13 laws to Ninth Schedule. </span></span><span class="ILfuVd" lang="en"><span class="hgKElc">The Constitution (First Amendment) Act, 1951</span></span> was enacted by the provisional Parliament amidst vociferous protest. </p><p style="text-align: justify;">Section 18-G of the Act deals with power of the Central Government to control supply, distribution, price, etc., of certain articles. </p><p style="text-align: justify;"><span class="ILfuVd" lang="en"><span class="hgKElc">Entry 52 of Union List I covers "Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest." </span></span></p><p style="text-align: justify;"><span class="ILfuVd" lang="en"><span class="hgKElc">Entry 33 of Concurrent List III covers "33. Trade and commerce in, and the production, supply and distribution of,—(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;(b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute." Notably, this entry was substituted by the Constitution (Third Amendment) Act, 1954 amidst from opposition party leaders in the Parliament and State Assemblies. Karpoori Thakur (</span></span><span class="ILfuVd" lang="en"><span class="hgKElc">Bharat Ratna </span></span><span class="ILfuVd" lang="en"><span class="hgKElc">) had opposed it on the ground that it erodes State's autonomy in breach of the intent of the framers of the Constitution. <br /></span></span></p><p style="text-align: justify;">The case emerged out of Special Leave Petition No. 16505 of 2004 filed by the State of Uttar Pradesh and its officers in the Excise Department on June 23, 2004 against the Judgment and Order passed by the Division Bench of the Allahabad High Court on February 12, 2004 in Civil Misc. Writ Petition No. 1027 of 1999, which was filed by <u>R.P. Sharma</u> in his capacity as the sole proprietor of M/s Bimal Paints and Chemical Industries situated at Aligarh in Uttar Pradesh. The writ petitioner was the holder of a licence in Form FL No. 41 granted under the provisions of the Uttar Pradesh Excise Act, 1910 and the rules under it. The petitioner was aggrieved by the levy of licence fee on the sale of specially denatured spirit to licencees holding licence in Form FL 41 @ 15% ad valorem on the sale made by a distillery/wholesale vendor to FL 41 licencees purportedly under the provisions of the U.P. Licences for the Possession of Denatured Spirit and Specially Denatured Spirit Rules, 1976 as amended from time to time. The petitioner contended that the licence fee levied on a FL 41 licence is neither regulatory nor a compensatory fee because no services are rendered to the licensee which could justify it as a regulatory fee. </p><p style="text-align: justify;">The High Court has held the impugned licence fee to be wholly illegal upon observing that in the case before it, the respondents had not claimed that the fee in question was being charged for ensuring that the rectified spirit is not diverted and used for human consumption, but that the fee was being charged for sale/purchase of denatured spirit. The High Court was of the view that having regard to the findings of this Court in State of U.P. v. Vam Organic Chemicals Ltd (2004) imposition of fee on such ground was not acceptable since legislation with regard to denatured spirit was outside the purview of the State Legislative powers. It was held that denatured spirit is outside the seisin of the State Legislature which has jurisdiction over only potable alcohol. Citing paragraph 42 of the judgment in Vam Organic’s case, the High Court observed "Assuming that de-natured sprit may by whatever process be renatured, (a proposition which is seriously disputed by the respondents) and then converted into potable liquor this would not give the State the power to regulate it." The High Court held that the licence fee was illegal. It directed the respondents to refund the fee collected from the writ petitioners along with interest at the rate of 10% per annum from the date of realization/deposit till the date of refund within two months of production of the certified copy of the judgment. </p><p style="text-align: justify;">Supreme Court granted interim stay on the High Court's judgement on August 22, 2004. Subsequent to the stay, several other similar writ petitions were filed by several licence holders holding licences in Form FL Nos.16, 17, 39 and 41 which were all disposed of by applying the decision in R.P. Sharma’s case. Seven of the writ petitioners filed special leave petitions in this Court and on leave being granted in four of the matters, they were converted into Civil Appeals. The remaining three matters were at the special leave petition stage. On November 29, 2004, SLP(C) No. 26110 of 2004 (State of U.P. Vs. Anil Kumar Sharma) together with SLP (C) No. 26111 of 2004 (State of U.P. vs. Priyambada Jaiswal) were directed to be tagged with R.K. Sharma’s case, namely, SLP(C) No. 16505 of 2004. Similarly, SLP(C) 19275 of 2004 (State of U.P. vs. Somaiya Organic (India) Ltd.) was tagged with SLP(C) No. 16505 of 2004 on 16th August, 2005. The four other matters, which were converted into appeals, were also tagged with SLP(C) 16505 of 2004 by order dated April 26, 2007. On account of these orders all the eight matters have came up for final hearing and disposal before the 3-judge bench of Supreme Court.</p><p style="text-align: justify;">The Court observed that the common challenge in all the matters is that the State had no power to regulate the manufacture and sale of denatured spirit in view of Section 2 and Section 18G of the Industries (Development and Regulation) Act, 1961. It is also the common case in all these matters that by Section 2 of the aforesaid Act of 1961 read with Entry 52 of List I of the Seventh Schedule of the Constitution, the Parliament declared alcohol industry to be an industry, control of which by the Union is expedient in the public interest and consequently the power to legislate in respect thereof is now vested exclusively in Parliament.</p><p style="text-align: justify;">All these matters were decided by the High Court relying on the decision of the Supreme Court in State of U.P. and Ors. vs. Vam Organic Chemical Ltd (2004) and on the decision of the 7-Judge Bench of the Court in the case of Synthetics and Chemical Ltd. vs. State of U.P. (1990). Notably, the former had relied on the latter judgement. </p><p style="text-align: justify;">The Court recorded the submission that while deciding the case of Ch. Tika Ramji v. State of Uttar Pradesh (1956) the central issue was with regard to the question as to whether legislation by the Centre under Entry 52 of List I would also affect the concurrent powers vested in the State by way of Entry 33 in List III of the Seventh Schedule to the Constitution. Although, the said judgment was rendered in the context of the U.P. Sugar Factories Control Act, 1938 to provide for the licensing of sugar factories and for regulating the supply of sugarcane intended to be used in such factories and the price at which it could be purchased and for other incidental matters, the provisions of both Section 2 as well as Section 18 G of the Industrial (Development and Regulation) Act, 1951 fell for consideration in the said case. The Supreme Court while dealing with the said provisions held that the provisions of Section 18G of the 1951 Act did not cover sugarcane, nor did it indicate the intention of the Parliament to cover the entire field of such legislation. It was also held that the expression "any article or class of articles related to any scheduled industry" used in Section 18G, 15 and 16 of the Act did not refer to raw material but only to finished products of the scheduled industries the supply and distribution of which Section 18-G was intended to regulate, its whole object being the equitable distribution and availability of manufactured articles at fair prices and not to invest the Central Government with the power to legislate in regard to sugarcane. It was also held that even assuming the sugarcane was an article which fell within the purview of Section 18-G of the Act, no order having been issued by the Central Government thereunder, no question of repugnancy could arise, as repugnancy must exist as a fact and not as mere possibility and the existence of such an order would be an essential pre-requisite for it.<br /></p><p style="text-align: justify;">It was pointed out that the decision in the Ch. Tika Ramji v. State of Uttar Pradesh (1956) case was not been brought to the notice of the 7 Judge Bench which decided the Synthetics and Chemicals case and it, did not, therefore, have the benefit of the reasoning which prompted this Court earlier to hold that one aspect of Entry 33 of List III was not covered by the U.P. Sugar Industries Control Act, 1938. The 7 Judge Bench did not also have the benefit of the reasoning in Ch. Tikaramji’s case which had held that in the absence of any notified order under Section 18-G of the 1951 Act no question of repugnancy could arise, which Mr. Dwivedi urged, recognised the State’s power to legislate with regard to matters under Entry 33 of List III notwithstanding the provisions and existence of Section 18-G in the 1951 Act.</p><p style="text-align: justify;">The decision in SIEL Limited v. Union of India (1998) was also cited wherein relying on the policy decision in Ch. Tikaramji’s case, the Court explained and distinguished the decision of the 7 Judge Bench in Synthetics and Chemicals case. Following decision of the Supreme Court in A.S. Krishna v. State of Madras (1957), the judges held that the contention of the appellants that by the enactment of Section 18-G the power of the State to legislate under said Entry 33 of List III was taken away, was untenable. The Court observed that apart from the provisions of Article 254(2) of the Constitution the enactment of Section 18-G did not by itself create any repugnancy between the Parliamentary legislation and the State legislation, namely, the U.P. Sheera Niyantran Adhiniyam, 1964.</p><p style="text-align: justify;">The sum and substance of the submission of S.K. Dwivedi, the senior counsel for the appellants,was that the mere existence of Section 18-G in the Statute book could not oust the competence of the State legislature to enact legislation in respect of matters falling under Entry 33 of List III of the Seventh Schedule to the Constitution. The 3-judge bench noted that his submissions have a good deal of force, since by virtue of the interpretation of Section 18-G in the Synthetics and Chemicals case the power of the State to legislate with matters relating to Entry 33 of List III have been ousted, except to the extent as explained in the Synthetics and Chemicals case in paragraphs 63-64 of the judgment, where the State’s power to regulate, as far as regulating the use of alcohol, which would include the power to make provisions to prevent and/or check industrial alcohol being used as intoxicant liquor, had been accepted. It was also stated in paragraph 64 of the judgment that the Bench recognised the power of the State to regulate not as an emanation of police power but as an expression of the sovereign power of the State. It endorsed the view that the 7 Judge Bench did not have the benefit of the views expressed by the Supreme Court earlier in Ch. Tikaramji case where the State’s power to legislate under the Concurrent List stood ousted by legislation by the Central Government under Entry 52 of List I and also in view of Section 18-G<br />of the Industries (Development and Regulation) Act, 1951. </p><p style="text-align: justify;">The 3-judge bench of Supreme Court observed, "In our view, if the decision in the Synthetics and Chemicals case (supra) with regard to the interpretation of Section 18-G of the 1951 Act is allowed to stand, it would render the provisions of Entry 33 (a) of List III nugatory or otiose." It concluded, "this aspect of the matter requires reconsideration by a larger Bench of this Court, particularly, when the views expressed by 7 Judge Bench on the aforesaid question have been distinguished in several subsequent decisions of this Court, including the two decisions rendered by Constitution Benches of five Judges."<br /></p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-62991781088755278852024-03-11T09:37:00.000-07:002024-03-11T10:10:40.427-07:00Order of Single Judge of Allahabad High Court "suffering from patent illegality, perversity", violation of principle of natural justice, quashed, set aside: Supreme Court<div style="text-align: justify;"></div><p style="text-align: justify;">In Suneeta Devi v. Avinash (2024), Supreme Court's bench of Justices B. R. Gavai and Sandeep Mehta concluded that the order of <a href="https://elegalix.allahabadhighcourt.in/elegalix/WebDownloadJudgmentDocument.do?judgmentID=7380138">Order </a>of Single Judge of Allahabad High Court dated July 3, 2019 passed "is found to be suffering from patent illegality, perversity and having been passed in sheer violation of principles of natural justice and hence, the same is quashed and set aside." <br /></p><p style="text-align: justify;">A primary school situated in the village Mai Kharagpur, tehsil Lalganj, district Azamgarh was found to be falling on the proposed alignment of the National Highway and accordingly, the same was demolished by the National Highways Authority of India (NHAI) for the purposes of construction of the highway. The villagers requested the NHAI to construct new primary school in the village which was accepted by the NHAI. The Land Management Committee issued a proposal identifying and providing a plot of land in the village for the construction of the new primary school and forwarded the same for approval to the State authorities vide communication dated September 2, 2018. The proposal was accepted by the Sub-Divisional Officer, Lalganj (SDO) vide order dated September 17, 2018 and NHAI started construction of the school.</p><p style="text-align: justify;">The respondents i.e. Avinash and Ram Jee filed a writ petition in the Allahabad High Court styling it to be a Public Interest Litigation (PIL). In the PIL, no assertion was made stating that the plot of land in question had ever been allotted to the private respondents being the writ petitioners in the PIL. This PIL was dismissed by the Division Bench of the Allahabad High Court by its order dated October 27, 2018 observing that whatever steps had been taken by the authorities being the members of the Gram Sabha, the objection thereto by the respondents was nothing but an attempt to interfere in public work. It was also held that no public interest was involved in the petition.</p><p style="text-align: justify;">The respondents filed a Writ-C No. 10806 of 2019 challenging the proposal dated September 2, 2018 praying to restrain the NHAI authorities from constructing the primary school on the Plot No. 821M in village Mai Kharagpur.The Writ-C No. 10806 of 2019 was held to be not maintainable and came to be dismissed by the Division Bench of the Allahabad High Court by its order dated April 18, 2019 observing that since the dispute related to landed property, it could not be adjudicated upon by High Court in exercise of powers conferred under Article 226 of the Constitution of India and liberty was granted to the writ petitioners (the respondent in Supreme Court) to avail appropriate relief by filing a civil suit before the Civil Court in accordance with law. </p><p style="text-align: justify;">The respondents concealed the factum of filing the two writ petitions and filed yet another writ petition being Writ-C No. 15225 of 2019 in the Allahabad High Court assailing the validity and legality of the resolution/proposal dated September2, 2018 of the Land Management Committee and its approval by SDO by its order dated September 17, 2018. </p><p style="text-align: justify;">The Court has recorded that a pertinent declaration was made by the respondents in the original writ petitioners in Writ-C No. 15525 of 2019 that the petition which they had filed in the High Court, was the first writ petition of its kind.</p><p style="text-align: justify;">The Supreme Court observes, "The High Court seems to have proceeded in hot haste and immediately on the first listing of the writ petition, the standing counsel for State of U.P. was summoned and directed to obtain instructions. The matter was posted to the very next day i.e. 3rd July, 2019 and without issuing notice to the other respondents including the appellant herein, who was an impleaded respondent in the writ petition, and merely taking note of the oral submissions of the standing counsel, the writ petition was allowed by order dated 3rd July, 2019 holding that disputed plot No.821M vested in the allotees (original writ petitioners being respondent Nos. 1, 2 and 3 herein) and the Land Management Committee or SDO had no right to reserve this land for construction of a primary school. The resolution dated 2nd September, 2018 and the approval by the SDO dated 17th September, 2018 were declared to be illegal and were set aside."</p><p style="text-align: justify;">The respondent before the High Court came in appeal before the Supreme Court seeking to assail the order dated July 3, 2019. 13. A stay was granted by the Court on the operation of the impugned order. Counter affidavit has been filed on behalf of the private respondents (respondent Nos. 1, 2 and 3 being original writ petitioners) and the same is taken on record. However, when the matter was taken up for hearing, no one appeared to contest the matter on behalf of these respondents.</p><p style="text-align: justify;">The appellant's counsel stated that the school in question has already been constructed and is operational on the disputed plot of land which was a government land. He urged that factum of filing of two earlier writ petitions with similar prayers was concealed by respondents while filing writ petition-Writ-C No. 15225 of 2019. The appellant being the impleaded respondent in the writ petition, was never heard by the High Court because the writ petition was allowed without issuing any formal notice.</p><p style="text-align: justify;">Supreme Court observed, "On a perusal of the admitted facts as emanating from record, we are persuaded to hold that the impugned order passed by the High Court smacks of arbitrariness and perversity. The writ petition filed claiming title on the disputed plot of land was taken up in hot haste and was allowed without issuing formal notice to all the respondents. Even the State authorities were not given proper opportunity of filing a counter. The standing counsel was instructed to appear without any formal notice being issued and was given a single day’s opportunity to present the factual report. Based on the factual report and noting the oral submissions of the standing counsel, the writ petition came to be allowed by the High Court quashing the proposal dated 2nd September, 2018 and approval by SDO dated 17th September, 2018. The manner in which the proceedings were undertaken indicates that the High Court was keen on not allowing the respondents therein to be heard in the writ proceedings." </p><p style="text-align: justify;">It further observed that the original writ petitioners, the respondent before the Supreme Court had apparently made false and misleading averments in the opening para of the Writ-C No.15225 of 2019, that no previous writ petition had been filed craving similar relief. As a matter of fact, the writ petition deserved rejection with exemplary costs because as noted above, the factum of filing of the previous two writ petitions was concealed by the respondents, the original writ petitioners. It recorded that "The writ petition was manifestly tainted on account of concealment of material facts. Even in the counter affidavit filed in the present case, the respondent Nos. 1, 2 and 3-original writ petitioners have not disputed that the factum of filing of the previous two writ petitions not being disclosed while filing the Writ-C No. 15225 of 2019. </p><p style="text-align: justify;">The Court did not impose any cost in the matter because no one has appeared to defend the matter on behalf of the respondents. The <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=284292019&type=j&order_date=2024-03-11">judgment </a>dated March 11, 2024 was authored by Justice Mehta. <br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-64082093052158300072024-03-11T08:20:00.000-07:002024-03-11T08:20:10.613-07:00Division Bench of High Court of Punjab and Haryana "erred in law" in Ashok Khemka case: Supreme Court <p style="text-align: justify;">Supreme Court's bench of Justices Vikram Nath and Satish Chandra Sharma examined whether the High Court of Punjab and Haryana should to have interfered with the Order of Central Administrative Tribunal (CAT), Chandigarh Bench dated December 3, 2018 in exercise of its jurisdiction under Article 226 of the Constitution of India. The High Court set aside CAT's order and expunged the opinion of the Accepting Authority; and (ii) restored (a) the opinion of the Reviewing Authority; and (b) the grade awarded by the Reviewing Authority regarding performance appraisal report under the provisions of the All India Services (Performance Appraisal Report) Rules, 2007. </p><p style="text-align: justify;">In its <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=198012019&type=j&order_date=2024-03-11">judgement</a>, the Supreme Court observes, "it is our opinion that the High Court entered into a specialised domain i.e., evaluating the competency of an IAS officer by way of contrasting and comparing the remarks and overall grades awarded" to Ashok Khemka by (i) the Reporting Authority; (ii) the Reviewing Authority; and (iii) the Accepting Authority, without the requisite domain expertise and administrative experience to conduct such an evaluation. It also observed that "The High Court ought not to have ventured into the said domain particularly when the Accepting Authority is yet to pronounce its decision qua the Underlying Representation."</p><p style="text-align: justify;">In this backdrop, the Court concluded that "the learned Division Bench of the High Court erred in law. Accordingly, we set aside the judgement of the Division Bench of the High Court. Additionally, as we have been informed that the Accepting Authority is yet to take a decision on the Underlying Representation, we direct the Accepting Authority to take a decision on the Underlying Representation under Rule 9(7B) of the PAR Rules within a period of 60 (sixty) days from the date of pronouncement of this Judgement." It granted liberty to Ashok Khemka to take recourse to remedies as may be available under law. The judgement dated March 11, 2024 was authored by Justice Sharma. </p><p><br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-70342972270090525242024-03-11T07:57:00.000-07:002024-03-11T07:57:13.909-07:00Supreme Court sets aside conviction and sentence under Section 302 of IPC for death due to celebratory firing <p style="text-align: justify;">In Shahid Ali v. State of Uttar Pradesh (2024), Supreme Court's bench of Justices Vikram Nath and Satish Chandra Sharma set aside conviction and sentence under Section 302 of Indian Penal Code (IPC) and the version of the Prosecution, the Trial Court judgment of conviction and order dated February 23, 2018, passed by Sessions Judge, Firozabad and the judgment of Allahabad High Court dated April 4, 2019. The <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=256992021&type=j&order_date=2024-03-11">judgement</a> dated March 11, 2024 was authored by Justice Satish Chandra Sharma. <br /></p><p style="text-align: justify;">The Court observed that "The act of celebratory firing during
marriage ceremonies is an unfortunate yet prevalent practise in our
nation. The present case is a direct example of the disastrous
consequences of such uncontrolled and unwarranted celebratory firing."
But in the absence of any evidence on record to suggest that either that
the Appellant aimed at and / or pointed at the large crowd whilst
engaging in such celebratory firing; or there existed any prior enmity
between the Deceased and the Appellant, the Court was "unable to accept
the Prosecution’s version of events as were accepted by the Trial Court
and confirmed by the High Court."</p><p style="text-align: justify;">The Court probed question as to whether the Appellant’s act of engaging in celebratory firing during marriage ceremony could be construed to be an act so imminently dangerous so as to, in all probability, cause death or such bodily injury as was likely to cause death? <br /></p><p style="text-align: justify;">In its judgement, the Court held that "The Appellant is convicted for an offence under Section 304 Part II of the IPC. The appellant has already undergone approximately 8 years of incarceration." It factored in the totality of circumstances of the case. The fact that there was no previous enmity between the Deceased and there was no intention may be attributed to the Appellant as may be culled out from the record to cause death of the Deceased. The Court drew on position of law enunciated by the Court in Kunwar Pal Singh v. State of Uttarakhand, (2014) and subsequently, in Bhagwan Singh v. State of Uttarakhand (2020). It found that "the Appellant is guilty of commission of ‘culpable homicide’ within the meaning of Section 299 IPC i.e., punishable under Section 304 Part II of the IPC."</p><p style="text-align: justify;">It concluded that "Considering the facts and circumstances of the case, we award a sentence equivalent to the period already undergone. The conviction and sentence awarded to the Appellant under Sections 25 & 27 of the Arms Act remains unaltered. Resultantly, the Appellant be released forthwith, if not required in any other case." <br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-1751648441118947112024-03-10T05:21:00.000-07:002024-03-10T05:25:00.173-07:00Supreme Court set-aside three judgments of Patna High Court on incorrect decsions of Bihar Public Service Commission <p style="text-align: justify;">Drawing on the ratio of <u>Aarav Jain v. Bihar Public Service Commission</u> (Civil Appeal No. 4242 of 2022), Supreme Court's bench of Justices J.K. Maheshwari and K.V. Viswanathan set-aside the judgments of Patna High Court dated November 3, 2021, September 4, 2021 and April 19, 2023 by its judgement in <u>Sweety Kumari v. State of Bihar</u>. The <a href="https://patnahighcourt.gov.in/viewjudgment/MTUjMTgwMzgjMjAyMSMxI04=-q1nnO4BFQvM=">judgement </a>of Patna High Court's bench of Justices Vikash Jain and Rajesh Kumar Verma dated November 3, 2021 was authored by the former. <br /></p><p style="text-align: justify;">Supreme Court's <a href="https://main.sci.gov.in/supremecourt/2022/13182/13182_2022_13_1501_47134_Judgement_22-Sep-2023.pdf">judgement </a>records that "upon issuance of directions by this Court, the State Government is ready to accommodate all the three candidates (namely Sweety Kumari, Vikramaditya Mishra and Aditi) who have also secured more marks than cut-off for their respective categories." This appeal arose out of S.L.P. (C) No. 9964 of 2022 and two similar appeals. The appeal was filed on April 27, 2022. The petitioner's advocate was Harish Pandey. <br /></p><div style="text-align: justify;">The Court drew on the verdict in Aarava Jain case wherein Supreme Court had repelled the contention of Bihar Public Service Commission (BPSC) regarding cancellation of the candidature due to non-submission of the originals at the time of the interview as their true photocopies were on record and subsequently, the originals were also submitted before BPSC. The Court was of the opinion that the plea of non-submission of the originals at the time of interview is neither related to the qualification nor eligibility and a verification and vigilance report is anyway obtained by the State during probation. Therefore, the production of the original was not a mandatory condition. The stand of the BPSC had materially resulted in the dis-qualification of candidates who were otherwise in the merit list. Therefore, in the facts and circumstances of the case, the Court directed that the rejection of candidature was improper, unjustified and not warranted. The Court granted relief to the eight candidates in the civil appeal of Aarav Jain by adjusting the available five vacancies in the unreserved category and for the other three candidates belonging to EBC, SC and BC category, it was directed to the State to either adjust them against future vacancies which were stated to be available at that time or the State was permitted to borrow three posts from future vacancies, one each in respective categories. It was also held that the power to vary the vacancies of the said advertisement always vests in the employer under the wisdom and discretion of the State. The Court gave weight to the fact that all the candidates secured marks more than the cut-off and, therefore, such meritorious candidates would only be an asset for the institution helping in disposal of cases. The Court further directed to allow to all these eight candidates the benefits of increment and other notional benefits at par to other selected candidates as per their merits without arrears of salary.</div><p style="text-align: justify;">The Court also drew on the analogy drawn in the case of Charles K. Skaria and Others v. Dr. C. Mathew and Others (1980) 2 SCC 752 whereby Justice V. R. Krishna Iyer speaking for the Court held that the factum of eligibility is different from factum of proof thereof. This Court held that if a person possesses eligibility before the date of actual selection, he cannot be denied benefit because its proof is produced later. In the Sweety Kumari case case, the proof was available and true photocopies were on record. The appellants’ candidature could not have been rejected merely because the original was not produced before the Commission at the time of interview in particular when such requirement was not mandatory, in view of the manner in which the Rules are couched.</p><p style="text-align: justify;">The judgement records that according to Supreme Court's directions vide order dated August 14, 2023, the Registrar General of Patna High Court filed an affidavit after perusing the documents produced before him by the State of Bihar and the BPSC. Notably, in the said affidavit, it was admitted that the case of the appellants Sweety Kumari and Vikramaditya Mishra is similar to the case of Aarav Jain. <br /></p><p style="text-align: justify;">The judgement observes that the judgments passed by the High Court of Judicature at Patna in Sweety Kumari v. State of Bihar (CWJC No. 18038/2021) dated November 3, 2021, Vikramaditya Mishra v. State of Bihar (CWJC No. 3707/2020) dated September 4, 2021; and Aditi v. Bihar Public Service Commission Patna and Others. (CWJC No. 15325/2022) dated April 19, 2023 were under challenge. By these judgments, the High Court upheld the decision of the Chairman, BPSC and other official respondents including State of Bihar, Secretary, BPSC and the Special Secretary-cum-Controller of Examinations. The candidature of appellants was rejected by the official respondents on account of non-furnishing of original character certificates (in case of Sweety Kumari and Vikramaditya Mishra) and law degree (in case of Aditi) respectively. </p><p style="text-align: justify;">The High Court in the first two cases dismissed the writ petitions relying upon the order passed in the case of a similarly situated candidate titled as Aarav Jain v. The Bihar Public Service Commission and Ors. (CWJC No. 24282/2019) decided on May 4, 2021. Whereas in the third case, the High Court while dealing with the case of the appellant Aditi and one similarly placed candidate named Ankita, through a common order found that though the appellant Aditi has her case on merits at par with Ankita, but due to non-availability of the vacancy in EWS category the relief as granted to Ankita cannot be extended to appellant Aditi. The appellants Sweety Kumari, a candidate of Scheduled Caste (SC) category and Vikramaditya Mishra, unreserved category candidate, appeared in 30th Bihar Judicial Service Competitive Examination conducted for selection of Civil Judge (Junior Division) pursuant to an Advertisement No. 6 of 2018 dated August 21, 2018/August 23, 2018. Both the candidates have been declared successful in the preliminary examination vide the results declared on January 7, 2019 and main examination vide result declared on October 5, 2019 after obtaining more marks than the cut-off for their respective category. Pursuant to this, they were called for interview vide letter dated December 15, 2019. The candidature of the appellants Sweety Kumari and Vikramaditya Mishra was rejected on account of not producing the original character certificates at the time of interview. True photocopies were produced. However, while declaring the result on November 27, 2019/November 29, 2019, the candidature of the present two appellants as well as of one, Aarav Jain were rejected by a common communication. The appellant Aditi had applied in the Economically Weaker Section (EWS) category in furtherance to the 31st Bihar Judicial Service Competitive Examination. She secured 501 marks, whereas cut-off was 499. Her candidature was rejected on the ground of not having the law degree certificate on the date of interview. The candidature of the similarly situated candidate Ankita was also cancelled on the same ground. However, on the filing of separate writ petitions which was disposed of by a common order, Ankita was granted relief by the High Court due to availability of vacancy in SC category, but Aditi was denied relief due to non-availability of the vacancy in the EWS category.</p><p style="text-align: justify;">In this backdrop, the following questions were considered by the Supreme Court:<br />i) Whether the rejection of the candidatures of the appellants due to non-production of the original<br />certificate at the time of interview by the BPSC is justified?<br />ii) In the facts and circumstances of the case, what relief can be granted to the appellants?</p><p style="text-align: justify;">After considering these questions, the Court directed that "The appellants Sweety
Kumari and Vikramaditya Mishra be accommodated being successful
candidate in the 30th Examination and appellant Aditi be accommodated
being a successful candidate in the 31st Examination. We clarify that
this judgment is passed in the peculiar facts of the case to mitigate
the plea of discrimination to candidates who are before us and who
knocked the door of the court well within time. It is made clear here
that similarly situated candidates would not be entitled to claim the
same benefit further, because they have not come before this Court
within a reasonable time." The judgement dated September 22, 2023 was authored by Justices J.K. Maheshwari. The High Court received the order on October 6, 2023 from Assistant Registrar, Supreme Court of India. </p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-65499860353371962052024-03-09T09:14:00.000-08:002024-03-10T10:12:16.449-07:00SIT probe ordered, Patna not a safe place for anyone including Advocates: Patna High Court <p style="text-align: justify;">"If, in the city of Patna, the Advocates
are assaulted by some goons at about 10:00 P.M., this Court cannot
accept the incident as an isolated incident, but <i>prima facie</i> holds that
the city is not a safe place for any people to reside," observed Patna High Court in <u>Abhishek Kumar Srivastava v. State of Bihar</u>. The <a href="https://patnahighcourt.gov.in/vieworder/MTYjNDczIzIwMjQjMiNO-jhr5foPdxcA=">order</a> was passed on March 5, 2024. <br /></p><p style="text-align: justify;">Justice Bibek Chaudhuri of Patna High Court observed that the Senior Superintendent of Police, Patna is directed to form a Special Investigating Team (S.I.T.) with two other Officers not below the rank of Sub Divisional Police Officer, who are in no way connected with Jakkanpur Police Station to investigate into the case. While investigating into the case under the supervision of Senior Superintendent of Police, Patna, the Senior Superintendent of Police, Patna shall consider the observation by this Court in the light of the F.I.R. submitted by the petitioner as to whether offence punishable under Sections 148/149/324/326/307 of the I.P.C. are to be added or not. At the same time, the Senior Superintendent of Police, Patna is requested to render all possible help to the petitioner, the injured and other Advocate inhabitants of the said house, so that they can at least stay without fear of being implicated in some heinous offences involving offences against women in future and until further order no coercive step shall be taken against the accused persons<br />in connection with Jakkanpur P.S. Case No. 110 of 2024. </p><p style="text-align: justify;">The Court clarified that every citizen has a right to lodge complaint against the wrong doer, but it is expected from the Police authority that the Police shall take action against the wrong doer on ascertainment of fact as to whether such incident actually took place or not.</p><p style="text-align: justify;">Senior counsel on behalf of the petitioner being assisted by almost all the counsels of the Patna High Court, cutting across the lines of their affiliation to the respective Associations insisted that the Court to take up the case pertaining to the assault on Abhishek Kumar Srivastava, an Advocate of Patna High Court who was staying in a rented accommodation at Patna within the jurisdiction of the Jakkanpur Police Station. There was some altercation on March 1, 2024 between the petitioner his co-tenants Advocates, who used to reside in the same rented accommodation and the landlord, over parking of vehicle. After sometime of altercation, Nitish Kumar, the landlord pounced back over the informant and his associates being other Advocates of the Court, who reside in the same tenanted premises with some unknown goons. The petitioner was assaulted and his friend Ranveer Parwat, Advocate was also severely assaulted with the help of kitchen knife, as a result of which, he received bleeding injury on the left eye brow affecting his left eye also. They were initially medically treated in a local hospital. Thereafter they were shifted to Patna Medical College and Hospital. The informant went to lodge F.I.R. to the Police Station. Initially, Police was reluctant to accept the F.I.R., but on much persuasion F.I.R. was received and a case was registered bearing Jakkanpur P.S. Case No. 109 of 2024, under Sections 323/308 of the I.P.C. </p><p style="text-align: justify;">As a follow up action, the landlord was called to the Police Station and he was released under Section 41(A) of the Cr.P.C. In order to save the landlord and the goons, who were involved in severely assaulting the Advocates, a complaint was made to be lodged by the wife of the landlord bearing Jakkanpur Police Station Case No. 110 of 2024, under Section 354 of the I.P.C. against the petitioner and his Advocate friends, who reside in the same tenanted premises. </p><p style="text-align: justify;">The Court's order observes, "When the F.I.R. discloses an assault upon Advocates with the help of a kitchen knife, which is a sharp cutting weapon. There is no explanation as to why at least F.I.R. was not lodged under Section 326 of the I.P.C. considering the gravity of injury. Secondly, when the F.I.R. discloses that the unarmed young persons pursuing their profession as Advocates, were attacked by the landlord with a bunch of anti-socials and specially, when one of the Advocate was assaulted by sharp cutting weapon on the most vital part of the body, why on due consideration of the <i>prima facie</i> intention of the accused persons, no case under Section 307 of the I.P.C. was instituted. Thirdly, why no case was instituted under Sections 147/148/149 of the I.P.C. when on perusal of the F.I.R. itself it is found that the assailants came in pursuance of their common object to cause physical assault, grievous hurt and in such a manner where intention can be <i>prima facie</i> ascertained of attempt to commit murder."</p><p style="text-align: justify;">The order records that on the contrary, a case under Sections 323 and 308 of the I.P.C. was registered against the landlord and other unknown persons. The landlord was called to the Police Station and he was released under Section 41 (A) of the Cr.P.C. after interrogation. <br /></p><p style="text-align: justify;">The Senior Counsel for the petitioner contended that this is not a fit case where the accused persons should be released on an undertaking under Section 41(A) of the Cr.P.C. </p><p style="text-align: justify;">The order records that "The legal profession as well as the duties discharged by the learned Advocates are the onerous duty of helping the third pillar of democracy in dispensation of justice. When from the facts and circumstances, it is ascertained that some young Advocates residing in a tenanted flat have been pursuing their profession in their initial stage, this Court is absolutely clueless to note as to why one or two of them would be assaulted by the landlord and his associates, under whom they stay." </p><p style="text-align: justify;">It further records that "The very registration of case presumably suggests that the Police authority attached to Jakkanpur Police Station has taken the side of respondent no. 9 being the landlord to this unfortunate junior Advocates. Therefore, this Court considers it absolutely necessary to relieve the Police Officer attached the Jakkanpur Police Station of the investigation of the cases filed both by the petitioner and the wife of the landlord."</p><p style="text-align: justify;">The order reads: "Let, a copy of this order be immediately sent to the Senior Superintendent of Police, Patna (respondent no. 5) for information and compliance."</p><p style="text-align: justify;">The Court directed that the Police attached to Jakkanpur Police Station shall refrain from Investigating into the cases any further and there shall not be any recording in the case diary from 2:15 P.M. of today i.e. on 5th March, 2024. If, any such recording takes place in the case diary that shall be considered as <i>nonest</i>. The Senior Superintendent of Police, Patna is also requested to preserve the C.C.T.V. footage of the locality and Jakkanpur Police Station.</p><p style="text-align: justify;">This case was discussed during a discussion on "Human Rights Violations
and Law: Ground Reality and Challenges" and a memorial lecture in Patna.</p><p><br /> </p><p> </p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-39246995204711833842024-03-07T23:44:00.000-08:002024-03-08T07:22:02.223-08:00Amendment to Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules set aside: Chief Justice bench, Patna High Court <p style="text-align: justify;">Drawing on the principle of <i>ejusdem generis</i> and the principle of a delegate being prevented from further delegation, Patna High Court's bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar has set aside the amendment to Rule-38(3) of the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019 in <u>Abhay Kumar v. Union of India</u>. The Court also set aside delegation of power to exempt given to the State by Clause-13 of Appendix-IX under Environment Impact Assessment Notification, 2006. The <a href="https://patnahighcourt.gov.in/viewjudgment/MTUjMTExODEjMjAyMSMxI04=-8qu--ak1--Uc9LaIA=">judgement </a>was authored by Chief Justice K. Vinod Chandran. </p><p style="text-align: justify;"><i>Bihar State Pollution Control Board (BSPCB) failed to persuade the Court to allow it to absolve the brick-kilns from getting environmental clearance. BSPCB's stance makes it a pollution abetter, and not a pollution controller. <br /></i></p><p style="text-align: justify;">The Court emphasized that "the State has not been conferred with any such power of exemption by the statute; neither the MMDR Act nor the Environment Protection Act. In that circumstance the power delegated to the Union Government cannot further be delegated to the State Government on the principle of 'deligatus non protest delegare'."</p><p style="text-align: justify;">The petitioner was aggrieved with a notification, by which quarrying for the purpose of brick-kiln was deemed to be a non-mining activity for the purpose of environmental clearance and also required that such clearance would be imperative only if the depth of quarry is not more than one and a half meters from the adjoining ground level.</p><p style="text-align: justify;">Notably, Section 4 of the Mines and Mineral (Development and Regulation) Act, 1957 (MMDR Act) states that any person undertaking reconnaissance, prospecting or mining operation in any area shall do so only with a reconnaissance permit, a prospecting license or a mining lease granted under the Act and the Rules made there under. Section 15 of the MMDR Act confers power on the State Government to make Rules with respect to the grant of quarry leases/mining leases and other mineral concessions. It is also pertinent that Section 14 of the MMDR Act as it earlier stood excluded Sections 4 to 13 from application to minor minerals and the same was amended with effect from 1986 by excluding only Sections 5 to 13. Hence Section 4 would be applicable even for minor minerals.</p><p style="text-align: justify;">It is noteworthy that the Mines Act, 1952 and the MMDR Act are complementary enactments and one does not exclude the other. Any activity carried on involving underground excavation, including an open cast working, is brought under the Mines Act, as a ‘mine’ and there is no separate definition of ‘mine’ under the MMDR Act. </p><p style="text-align: justify;">But Supreme Court has held that despite no activities being carried on underground even an open cast working is defined under the Mines Act in Bhagwan Dass v. State of Uttar Pradesh (1976), Sri Tarkeshwar Sio Thakur Jiu v. Dar Dass Dey & Co. (1979). The Court relied on these judgements. </p><p style="text-align: justify;">The Court's order records that the State Government has been conferred with the power to make rules in<br />respect of minor minerals under Section 15 of the Act. Section 15 does not grant any power to the State Government to exempt any activity which involves minor mineral quarrying; from the requirement of a permit, license or lease." The State framing rules under Section 15 of the MMDR Act cannot altogether exempt a mining activity from being carried out without permit, license or lease. The State has under Section-15 of the MMDR Act brought out the Bihar Minor Mineral Concession Rules, 1972 and the Bihar Bricks Supplies and Price Control Act, 1984 along with other rules which regulate the policy of mining within the State; which cannot and do not provide for an exemption from the rigours of the MMDR Act. The subject notifications brought in by the Union Government and the State are not under the MMDR Act and we dealt with the said enactment only to emphasize that the MMDR Act read with the Mines Act require a permit even in the case of brick-kilns, where there is extraction of clay.<br /></p><p><br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-91385847819422100732024-03-07T23:01:00.000-08:002024-03-07T23:01:16.155-08:00No ray of hope for recovery of kidnapped child, case disposed of: Justice Bibek Chaudhuri, Patna High Court <p style="text-align: justify;">Patna High Court's bench of Justice Bibek Chaudhuri observed, "In view of such affidavit having been filed by the head of the Special Investigating Team, the Special Investigating Team is directed to file its final report regarding their failure to recover the kidnapped boy in the jurisdictional court of the learned Magistrate" in Awadhesh Kumar v. State of Bihar. The case arose out of PS. Case No.-685 of 2014 Thana- Nagar District- Vaishali. <br /></p><p style="text-align: justify;">The petitioner had prayed for issuance of a writ in the nature of mandamus against the respondents and other consequential relief, directing them to transfer the matter pertaining to Town P.S. Case No. 685 of 2014 for investigation to the Central Bureau of Investigation (C.B.I.) and recovery of 11 years old son of the petitioner namely Vinayak Kumar, who has been kidnapped by some unknown persons on 10th August, 2014. A Special Investigating Team was constituted under the leadership of S.D.P.O., Mahnar, Hajipur for the recovery of the victim boy, The Special Investigating Team conducted investigation and submitted charge-sheet against some accused persons, who initially demanded ransom for release of the child. This case is pending before the competent court. The present writ petition was kept alive directing the respondents time and again to take appropriate steps for recovery of the kidnapped boy.</p><p style="text-align: justify;">On February 12, 2024, the High Court had passed an order directing the Special Investigating Team to intimate the Court as to whether there is any chance for recovery of the boy. The S.D.P.O., Mahnar, Hajipur, being the head of the Special Investigating Team filed an affidavit stating, inter alia, that the investigation had proceeded with all possible direction, but the kidnapped boy could not be recovered. The incident happened about nine and half years ago. Therefore, after the expiry of such long period, there is no ray of hope that the child would be recovered. Vasant Vikas, Advocate appeared for the petitioner and Nashrul Hoda Khan and Irshad were Standing Counsels for the State.The writ petition was disposed of on March 6, 2024.<br /></p><p><br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-63622404280950679292024-03-07T22:31:00.000-08:002024-03-07T22:31:38.720-08:00Action under criminal justice system and under service jurisprudence may run together: Justice Dr. Anshuman, Patna High Court <p style="text-align: justify;">In Ashok Kumar Sharma v. State Of Bihar, Justice Dr. Anshuman observed, "this Court is of the firm view that action under criminal justice system and under service jurisprudence may run together...The official shall be at liberty to continue the departmental and criminal proceeding simultaneously, but shall only take care that findings of a criminal case and findings of service matters should be different and their standard of provings are also different." </p><p style="text-align: justify;">The petition has been filed for staying the departmental proceeding initiated against the petitioner pursuant to memo of charge dated April 13,2017 till completion of the criminal case based on the same set of facts and charges and evidences. <br /></p><p style="text-align: justify;">The writ petition was disposed off directing the authorities to proceed in accordance with law and under strict guideline of Bihar Government Servant (Classification, Control & Appeal) Rules, 2005. Notably, the Court that had passed an interim order in favour of the petitioner vide memo of charge dated April 13, 2017 but it reversed it after the final hearing. The <a href="https://patnahighcourt.gov.in/viewjudgment/MTUjNjY3MCMyMDE4IzEjTg==-g9e78HAoUNo=">judgement </a>was passed on March 6, 2024. The petitioner's counsel Amit Kumar and Nilotpal Sharma, the counsel for the State, the respondent made their submissions.</p><p style="text-align: justify;">The Court had to decide whether the department proceeding and criminal case on the same set of allegations can run simultaneously or not. The Court observed, "the position of law is very clear that criminal jurisprudence tests the ingredients of the action which constitute a crime beyond all reasonable doubts, whereas, the departmental proceeding tests the imputation of the work done by the employees against the employer in violation of terms of services in which employee has to work. Therefore, the event<br />may be same, but the test for criminal jurisprudence and service jurisprudence are distinct and varies from case to case." <br /><br /> </p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-56487371727780643852024-03-07T10:09:00.000-08:002024-03-07T10:13:43.217-08:00Supreme Court upholds Patna High Court Order against Order of POCSO Judge, Araria under the Protection of Children from Sexual Offences (POCSO) Act<p style="text-align: justify;">In <u>Bablu Yadav v. State of Bihar</u>, Supreme Court's bench of Justices Abhay K. Oka and Ujjal Bhuyan passed its judgement on March 1, 2024 in an appeal which arose out of final judgment and order dated April 3, 2023 passed by the Patna High Court in Criminal Appeal (Division Bench) No. 196/2022. </p><p style="text-align: justify;">The appellant had filed his appeal on July 3, 2023. The High Court's bench of Justices A<span class="bt-content">.M. Badar and Sandeep Kumar </span>had concluded that "the accused was not awarded fair trial." It observed, "The manner in which the trial was commenced, conducted and concluded by the learned trial court clearly displays and demonstrates glaring abuse of prescribed procedure of conducting the criminal trial and, therefore, there is no alternative but to direct for De-novo trial of the accused from before the stage of framing of the charge as breach of mandatory provisions of law commenced before framing of the charge causing miscarriage of justice." The High Court's order reads: "I. The impugned Judgment and Order dated 15.12.2021 passed by the learned trial court, i.e., <b><u>Special Judge, POCSO, Araria in Special POCSO Case No.36 of 2021</u></b> between the parties is quashed and set aside. II. The instant Criminal Appeal filed by the accused is partly allowed to the extent indicated herein before. III. Since the trial is vitiated, the matter is remanded to the learned trial court for fresh trial from before the stage of framing of the charge." The order was authored by Justice A<span class="bt-content">.M. Badar.</span></p><p style="text-align: justify;">In its <a href="https://webapi.sci.gov.in/supremecourt/2023/26259/26259_2023_7_36_51005_Order_01-Mar-2024.pdf">order</a>, Supreme Court has "approved the approach adopted by the High Court." It observed that as far as the conduct of the trial is concerned, the Special Court, pursuant to remand, will have to follow the Code of Criminal Procedure, 1973 (Cr.PC) in its true letter and spirit. The Special Court will have to go by the provisions of Section 309 of the Cr.PC and the other provisions which follow Section 309 in Chapter XXIV of the Cr.PC. It directed the second respondent and the Prosecutor appointed by it to appear before the Special Court on March 15 March, 2024 at 10:30 a.m. </p><p style="text-align: justify;">The Court's direction reads: "On 15th March, 2024, the Special Court shall fix a date for recording of evidence and shall also pass an order of issue of summons to the witnesses, if required, and proceed with the trial as indicated above by following the provisions of Chapter XXIV of the Cr.PC in its true letter and spirit. On the aforesaid date, the Special Court will also grant time of only one week to the second respondent to appoint an Advocate of his choice." On his failure to do so, the Advocate, who was already appointed to espouse the cause of the second respondent, will continue to represent the second respondent. The direction issued vide order dated 6th November, 2023 to the State Government to provide adequate Police protection to the appellant, witnesses in the case, the members of the family of the appellant and the Prosecutrix, will continue to operate till the disposal of the trial. The Appeal has been disposed of.</p><p style="text-align: justify;">The appellant had filed an appeal challenging the <a href="https://patnahighcourt.gov.in/viewjudgment/NSMxOTYjMjAyMiMxI04=-kUmTm1Kb3BE=">order </a>passed by Patna High Court and the Special Judge, Araria in the case under Protection of Children from Sexual Offences (POCSO) Act, 2012. The Araria Court had convicted him of the offences. The High Court ordered for de novo trial as the Trial Court failed to follow the due process of law, principles of natural justice and the mandatory statutory provisions under the Cr.P.C.The The appellant had enticed the a 8-year-old victim child. He took her to the shop and then to the ‘Bagaan’. After committing penetrative sexual assault on her, he had absconded. In its judgment, Patna High Court had observed, “In the result, there is no alternative but to hold that the learned trial court has failed to follow due process of law while convicting the accused and imposing him the sentence as indicated in the opening paragraph of this Judgment."<br /></p><p><br /> <br /></p><br />mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-80107153854054646892024-03-04T08:09:00.000-08:002024-03-04T08:09:53.802-08:00Chief Justice bench sets aside arbitrary promotion elligibility rule of the Bihar Subordinate Prohibition Service Rules<p style="text-align: justify;">In
its order dated March 4, 2024, Patna High Court's bench of Chief
Justice K. Vinod Chandran and Justice Harish Kumar set aside Rule 11(4)
of the Bihar Subordinate Prohibition Service Rules, 2017, which
extinguished completely, the avenue of promotion to the post of
Sub-Inspector; to non-graduate Assistant Sub-Inspectors. Before the
introduction of these Rules of 2017, the Assistant Sub-Inspectors were
considered for promotion on the basis of their suitability and seniority
without any specification of minimum educational qualification. The
Rules of 2017 abruptly changed the criteria and introduced graduation
for promotions. The Bihar Subordinate Prohibition Service (Recruitment
and Service Conditions) (Amendment) Rules, 2018 rechristened the Rules
of 2017 as The Bihar Subordinate Prohibition Service Rules. It further
amended sub-rule (4) of Rule 4 making provision for 50% of total
sanctioned strength of Sub-Inspectors to be filled by direct recruitment
and remaining 50% to be filled up by promotions from amongst Assistant
Sub-Inspectors on seniority cum eligibility. </p><p style="text-align: justify;">Dhananjay
Kumar, the petitioners' counsel contended that even now the
Sub-Inspectors who are not graduates are promoted to the post of
Inspectors. The Assistant Sub-Inspectors and the Sub-Inspectors more or
less are engaged in the same duties. When the prescription of a minimum
eligibility of graduation is not there for promotion from Sub-Inspectors
to Inspectors, it is arbitrary to totally obliterate avenues of
promotion for the Assistant Sub-Inspectors who have spent a long period
in the police service.</p><p style="text-align: justify;">P.
K Shahi, Advocate General submitted that there were substantial
amendments brought to the service rules in the Excise Department,
especially in the context of the prohibition introduced in the State.
The eligibility for recruitment of Sub-Inspectors was made at par with
the eligibility in the police manual. The non-graduate Sub- Inspectors
is a dying cadre and hence, they are being considered for promotion to
the post of Inspector. The State contended that prohibition was
introduced and the eligibility of graduation prescribed for direct
recruitment. The necessity to have a commonality of persons in the very
same cadre was the ground urged to sustain the amendment. The State
admitted that the said commonality is not maintained in the cadre in
which the petitioners seek promotion to, and its higher cadre. The cadre
of Sub-Inspectors still have non-graduates, who were promoted from the
post of Assistant Sub-Inspectors. The Non-graduate Sub-Inspectors also
have an avenue of promotion to the post of Inspector; despite the cadre<br />of
Inspector, even in the year 2009, as is revealed from Annexure-1, the
Bihar Excise Service Recruitment and Service Conditions) Rules, 2009
had basic eligibility of a graduate degree, for direct recruitment.
Insofar as promotion from the post of Sub-Inspector, Excise and direct
recruitment, the eligibility was: (i) satisfactory service in the
post of Sub-Inspector, Excise; (ii) passing of required departmental
examination in accordance with the rules of Excise Superintendents and
Inspectors; (iii) satisfactory character assessment, and (iv) seniority.
The said post of Inspector, Prohibition has been removed from a
gazetted post and now included as a non-gazetted post under the Rules of
2017.</p><p style="text-align: justify;">The
Court's judgement reads, "we are of the opinion that the prescription
under Rule 11(4) insofar as prescribing an educational qualification for
promotion to the post of Excise Sub-Inspector from Assistant
Sub-Inspector Excise, to be the same as it is prescribed for direct
recruitment to the said post is arbitrary. We hence, set aside Rule
11(4) of the Rules, also noticing the fact that as per Rule 11(1),
promotions to the post of Inspector, Prohibition from the
Sub-Inspectors, Prohibition is on the basis of seniority-cum- eligibility.
We have not been shown any extenuating circumstance requiring a
different yardstick to be applied for the purpose of promotion from
Assistant Sub-Inspectors to Sub-Inspectors when even the further
promotion post is not dependent on a graduate degree."</p><p style="text-align: justify;">The
<a href="https://patnahighcourt.gov.in/viewjudgment/MTUjMzM0MiMyMDIyIzEjTg==-rnkUbe95QcE="> judgement </a>was authored by Chief Justice Vinod Chnadran. It concludes,
"We set aside Rule 11(4) of the Rules of 2017 and mandate that the
promotions from Assistant Sub-Inspectors to Sub-Inspectors in the quota
available for such promotions, as per the rules, shall be made on the
basis of seniority-cum- eligibility, which is the criteria for promotion to the next higher post."<br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-77675205612979997932024-03-04T03:55:00.000-08:002024-03-04T03:55:52.193-08:00Dissenting judgement of Justices S. C. Agarwal and A.S Anand in Narasimha Rao case upheld by 7-judge bench, no immunity for lawmakers indulging in graft <p style="text-align: justify;">A 7-judge Constitution Bench of Supreme Court comprising the Chief Justice, Dr. D. Y. Chandrachud, Justices A.S. Bopanna, M.M. Sundresh, Pamidighantam Sri Narasimha, J.B. Pardiwala, Sanjay Kumar and Manoj Mishra unanimously pronounced a judgment in a 135 page long judgement in <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=101772014&type=j&order_date=2024-03-04">Sita Soren v Union of India</a> on March 4, 2024. The case was heard and judgement was reserved on October 5, 2023. The case was filed on March 26, 2014 and registered on March 28, 2014 as a SLP. It was admitted on December 4, 2018. The Criminal Appeal No. 451 of 2019 was registered on March 7, 2019. Sita Soren is a third time MLA from Jharkhand. It has been alleged that she took bribe to ensure voting for a candidate during a Rajya Sabha election. The fact has emerged that she did not vote for the candidate from whom she is said to have taken bribe for voting. </p><p style="text-align: justify;">The 7-judge bench has answered the question of law raised by the <a href="https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=T2Oj5Y97nX2tmju2FyqIU15wDMF9YlNECkVeF6tbDJlTWlQFgKm4uTO9kJ3hZJ%2BJ&caseno=W.P.(Cr.)/128/2013&cCode=1&appFlag=">Judgement of the High Court</a>.
It implies that Sita Soren will face the charge sheet filed by the CBI
against her on the charge that she had taken bribe to cast vote in Raya
Sabha polls. She is daughter-in-law of JMM chief Shibu Soren and wife of
late Durga Soren. She was in jail for seven months. She is now out on
bail. She is an MLA from Jama, Dumka, in Jharkhand. <br /></p><p style="text-align: justify;"></p><p style="text-align: justify;">It was a regular criminal appeal arising out of a judgment of the Jharkhand High Court, declining to quash prosecution against Sita Soren, the appellant, who is being prosecuted, under relevant provisions of the Prevention of Corruption Act and the Indian Penal Code, for the alleged offense, of taking a bribe to vote in a Rajya Sabha election, Sita Soren, the appellant was at the relevant time a sitting MLA of Jharkhand. She's alleged to have taken a bribe, from an independent candidate, to vote for him rather than for her party candidate. But in the event, the vote was actually for her party candidate, because that comes out in the open voting, then there were complaints that election was countermanded. There was a fresh election and again, she voted for her party candidate, etc. But she was sought to be prosecuted on this allegation. Originally, the Writ Petition (Criminal) was filed on June 18, 2013 and registered on June 21, 2013 in Jharkhand High Court. The single judge bench of Justice R.R.Prasad had heard and passed the <a href="https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=T2Oj5Y97nX2tmju2FyqIU15wDMF9YlNECkVeF6tbDJlTWlQFgKm4uTO9kJ3hZJ%2BJ&caseno=W.P.(Cr.)/128/2013&cCode=1&appFlag=">order</a> appeal on February 17, 2014. The High Court had examined as to whether Article 194 (2) of the Constitution of India confers any immunity on the MLAs for being prosecuted in a criminal Court of an offence involving offer or acceptance of bribe. </p><p style="text-align: justify;">It all began in the context of the notification by the Election Commission of India fill up two vacant seats of Rajya Sabha from Jharkhand by March 31, 2012. March 30, 2012 was fixed for the poll. Praveen Kumar Singh, Pradeep Kumar Balmuchu, <b>Sanjeev Kumar</b>, Ansuman Mishra, Pawan Kumar Dhoot and Raj Kumar Agarwal filed their nominations. It emerged that none of the major political parties, which fielded its candidate in the election, had decisive majority to to get their candidate elected. Jharkhand Mukti Morcha (JMM) had fielded its candidate <b>Sanjeev Kumar</b>. But 10 MLAs of JMM including Sita Soren, the petitioner proposed to nominate R.K.Agarwal, an independent candidate.</p><p style="text-align: justify;">In such a backdrop, Babu Lal Marandi and Dr. Ajay Kumar, lodged a complaint on March 27, 2012, before the Chief Election Commissioner of India, alleging that the process of election being influenced by the money power and horse trading. Responding to the complaint, the Election Commission of India alerted concerned departments including the Income Tax Department on March 27, 2012 itself to check the menace of Horse Trading and use of money power. In the late night of March 29, 2012, The Chief Commissioner of Income Tax, Ranchi received information to the effect that huge money is being taken from Jamshedpur to Ranchi for distribution among some of the MLAs participating in the Rajya Sabha election. On receiving such information, Income Tax authority, with the help of the local police, put a picket on Jamshedpur-Ranchi Highway. During that course, an Innova car was intercepted from which unaccounted cash of Rs. 2.15 crores were recovered. One Sudhanshu Tripathy, the custodian of the cash, explained that the cash of Rs. 2.15 crores had been handed over to him by Sumitra Sah, son-in-law of R.K.Agarwal to be handed over to Arun Kumar Khandelwal, an employee of Jay Shree Motors Ltd, Ranchi, belonging to R.K.Agarwal. Upon seizure of cash, the then Deputy Director, Income Tax, Ranchi, lodged a written complaint to Officer-Incharge of Namkum Police Station, Ranchi, which was registered as Namkum P.S. Case No. 58 of 2012 on 30/03/2012, under Section 171(F) and 188 of the Indian Penal Code.</p><p style="text-align: justify;">While adjudicating in a Public Interest Litigation (PIL), Supreme Court, found it to be a grave case of involvement of money power to influence the process of the election of the Council of the States, directed the CBI to take up the investigation relating to the criminality of the persons involved. In compliance with the order, Principal Secretary, Election Commission of India, asked the Secretary, Union Mnistry of Personnel, Public Grievance & Pension to entrust the case relating to the Election of Rajya Sabha to CBI. The CBI took up the investigation of Namkum P.S. Case No. 58/2012 and re- registered the case as RC 2(S)/ 2012-AHD-R, for investigation. The CBI found that out of 80 elected MLAs, 79 MLAs, participated in the election, whereas one MLA of CPI (M), did not participate. During investigation, it was found that the petitioner by calling R.K.Agarwal on cell phone, asked him to pay Rs. 50 lakhs as an advance for proposing his nomination. Lateron, Air bag was handed over at the residence of Nalin Soren, where most of the MLAs of JMM were present. This Air bag was dropped by Sita Soren at the residence of one Rajendra Mandal. </p><p style="text-align: justify;">It was found that in the evening of March 29, 2012, Rs. 1 corer was given by Raj Kumar Agarwal at hotel Radison Blue, Ranchi. The said air bag containing money was brought to the residence of the petitioner and on the following day, it was taken in the vehicle of IOCL to Jamshedpur. The Election Commission did countermand the election and, therefore, Agarwal was seen coming to the residence of this petitioner at several occasions for getting back a sum of Rs. 1.50 crores, but Sita Soren did not oblige him. After the investigation, a charge sheet was filed against number of accused persons, including Sita Soren on the charge that the petitioner did receive illegal gratification of Rs. 50 lakhs from R.K.Agarwal for proposing his nomination and also Rs. 1 crore for voting in his favour but the petitioner never voted in favour of Agarwal. </p><p style="text-align: justify;">On submission of the charge sheet, the Court took cognizance of the offences punishable under Sections 120B and 171 (E) of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against Sita Soren the petitioner and others vide order dated June 7, 2013. It was this Court's order taking cognizance of the offences was challenged in the High Court. </p><p style="text-align: justify;">Justice Prasad held that "I am of the view that the act of the petitioner of receiving money pursuant to the conspiracy and the agreement with R.K.Agarwal, will have no nexus with the vote on account of the fact that she did not cast vote in favour of the said R.K.Agarwal and, thereby, she will have no immunity as guaranteed under Sub-clause (2) of Article 194 of the Constitution of India. Accordingly, I do not find any illegality with the order taking cognizance and, thereby, it never warrants to be quashed."<br /></p><p style="text-align: justify;">The 7-judge Constitution Bench disagreed with the judgement of a 5-judge Constitution Bench in P.V. Narasimha Rao v. State (1998) and overruled the judgment of the majority. In a 3:2 majority judgment, a 5-judge Bench consisting of Justices S.C. Agrawal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha and S. Rajendra Babu in the P V Narasimha Rao case held that legislators enjoy immunity from criminal prosecution for bribery in matters connected to their speech and votes in Parliament and Legislative Assemblies as per Article 105(2). In the majority <a href="https://webapi.sci.gov.in/jonew/judis/30316.pdf">verdict</a>, Justice S P Bharucha had held: “… no member (of Parliament) is answerable in a court of law or any similar tribunal for what he has said in Parliament." The dissenting order by Justices S.C. Agrawal and Dr. A.S. Anand stood against extension of immunity for having received bribe for the purpose of giving a vote in the House for the acts preceding the making of such speech or giving vote by the legislators. <br /></p><p style="text-align: justify;">By an order dated September 20,2023, a five-judge bench of the Court had
recorded <i>prima facie</i> reasons doubting the correctness of the decision
in P.V. Narasimha Rao and referred the matter to a larger bench of seven
judges. <br /></p><p style="text-align: justify;">Prior to that on September 23, 2014, a bench of two judges of the Court, observed that it was of the view that since the issue arising for consideration is “substantial and of general public importance”, it must be placed before a larger bench of three judges of this court. On March 7, 2019, a bench of three judges which heard the appeal observed that the precise question was dealt with in a judgment of a 5-judge bench in P.V. Narasimha Rao case. This bench was of the view that “having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of public importance”, the matter must be referred to a larger bench.</p><p style="text-align: justify;">The 7-judge bench appreciated the <a href="https://webapi.sci.gov.in/jonew/judis/13283.pdf">dissenting order of Justice S.C. Agarwal</a> and Justice Dr. A.S. Anand in P.V. Narasimha Rao case. Justice Agarwal had noted a serious anomaly if the construction in support of the immunity under Article 105(2) for a bribe taker were to be accepted: a member would enjoy immunity from prosecution for such a charge if the member accepts the bribe for speaking or giving their vote in Parliament in a particular manner and in fact speaks or gives a vote in Parliament in that manner. On the other hand, no immunity would attach, and the member of the legislature would be liable to be prosecuted on a charge of bribery if they accept the bribe for not speaking or for not giving their vote on a matter under consideration before the House but they act to the contrary. Justice Agarwal observed that the anomaly would be avoided if the words “in respect of” in Article 105(2) are construed to mean ‘arising out of’. In other words, in such a case, the immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part for the cause of action for the proceedings giving rise to the law; and The judgment of Justice Agarwal has specifically dwelt on the question as to when the offence of bribery would be complete. The judgment notes that the offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of the bribe would be treated to have committed the offence even when he fails to perform the bargain underlying the tender and acceptance of the bribe. This aspect bearing on the constituent elements of the offence of a bribe finds elaboration in the judgment of Justice Agarwal but is not dealt with in the judgment of the majority in the P.V. Narasimha Rao case.<br /></p><p style="text-align: justify;">The 7-judge bench observes, "The judgment of the majority in P.V. Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered."</p><p style="text-align: justify;">This Constitution Bench judgement reads:"An individual member of the legislature cannot assert a claim of privilege to seek immunity under Articles 105 and 194 from prosecution on a charge of bribery in connection with a vote or speech in the legislature. Such a claim to immunity fails to fulfil the twofold test that the claim is tethered to the collective functioning of the House and that it is necessary to the discharge of the essential duties of a legislator. Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery."</p><p style="text-align: justify;">It concludes that "Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee; Corruption and bribery by members of the legislatures erode probity in public life."</p><p style="text-align: justify;">In the penultimate paragraph, the bench observed that "The interpretation which has been placed on the issue in question in the judgment of the majority in PV Narasimha Rao (supra) results in a paradoxical outcome where a legislator is conferred with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but eventually decides to vote independently will be prosecuted. Such an interpretation is contrary to the text and purpose of Articles 105 and 194.</p><p style="text-align: justify;"></p><p style="text-align: justify;"></p><div style="text-align: justify;">Notably, the 7-judge Constitution Bench which upholds the dissenting judgement of Justices Agarwal and Anand in Narashimha Rao case refers to the dissenting order in Court's verdict of 5-judge Constitution Bench in <a href="https://main.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_26-Sep-2018.pdf">Justice (Retd.) K.S. Puttaswamy v. Union of India</a> (2018). The latter had referred to the dissenting jugement of Justice H. R. Khanna as part of 5-judge bench in the case of <a href="https://webapi.sci.gov.in/jonew/judis/5622.pdf"><u>ADM Jabalpur v. S. S. Shukla</u></a> (1976) to uphold it. During the course of the hearing it was cited in Sita Soren case as well. </div><div style="text-align: justify;"> </div><div style="text-align: justify;">In the Puttaswamy case the majority judgement observed, "The Rajya Sabha or the Council of States performs an integral function in the working of our democracy and the role played by the Rajya Sabha constitutes a part of the basic structure of the Constitution." It has been reiterated by the 7-judge bench. It recorded that "It was emphasised that the creation and composition of the Rajya Sabha (Upper House) is an indicator of, and is essential to, constitutional federalism....Therefore, Rajya Sabha could not have been by-passed while passing the legislation in question and doing away with this process and also right of the President to return the Bill has rendered the statute unconstitutional." In his dissenting judgement, Dr. Chandrachud observed, "The Aadhaar legislation was passed as a money bill in the Lok Sabha. Whether it was permissible, in constitutional terms, to by-pass the Rajya Sabha, is the question. The role of the Rajya Sabha in a bicameral legislative structure, the limits of executive power when it affects fundamental rights and the duty of the state to abide by interim orders of this Court are matters which will fall for analysis in the case."</div><p style="text-align: justify;">It emerges that dissenting judgements are like pole stars which pave the path for comprehensive justice. <br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-2720900610959701152024-03-02T02:12:00.000-08:002024-03-02T02:35:46.479-08:00Ensure compliance with Police Manual to deal with missing arms and cartridges: Chief Justice Vinod Chandran<p style="text-align: justify;">In pursuance of public interest, Rohit Kumar, the petitioner, a practicing advocate sought an audit as well as physical verification of the arms and ammunition as well as records of arsenal and armoury kept with the Bihar Police, including the Bihar Military Police, which are situated at District Headquarters (Police Line) and the Headquarters of Bihar Military Police. </p><p style="text-align: justify;">The petitioner had filed CWJC No.11642 of 2021 in the Patna High Court. The petitioner had prayed for setting up of a Special Team by the Patna High Court to investigate cases registered under Samsatipur and Siwan Mufassil Police Stations in relation to missing of huge cache of ammunition. <br /></p><p style="text-align: justify;">The petitioner relied on the report of the Accountant General (Audit) about <u>missing of arms and cartridges</u> from the arsenal of Darbhanga Police Line in February 2019. He had alleged that the police officials themselves are responsible for missing of arms and ammunition, which find their way to the hands of extremists/miscreants/criminals. The Superintendent of Police(E), CID, Bihar, Patna has filed a counter affidavit. It is stated that in pursuance to the order of the Court dated August 2, 2021, details of the progress of the investigation in the referred crimes were called for. </p><p style="text-align: justify;">The order records that with respect to the Samastipur Muffasil Police Station case, 10 persons, who were from the police force itself, were arraigned as accused and on investigation, it was found that 7 of them were involved in the incident. The Investigating Officer has also requested for issuance of arrest warrant against the accused persons. </p><p style="text-align: left;">With respect to the Siwan Mufassil Police Station case, disciplinary proceedings were initiated against two Sub-Inspectors and a Constable and punishment has been inflicted on them. </p><p style="text-align: justify;">With respect to the Konch Police Station case, 18 police personnel were arraigned as accused and Charge Sheet No. 50 of 2019 dated March 9, 2019 had been submitted in the court against five of them. It was also stated that further investigation is going on against some other named persons also. The Senior Superintendent of Police, Darbhanga had reported vide Annexure-D that there was no case of missing arms’ cache reported in the District Police Lines.</p><p style="text-align: justify;">In the counter affidavit, it was also pointed out from Police Manual (Vol-1) that an annual report of arms, ammunition, equipment and stores, as on 31st March previous year, is to be submitted to the Assistant Inspector General in Police Manual Form No. 169 on the 1st of May by all districts. The certification to be made in the said form is to the effect that the articles are duly accounted for and the balance corrected, with any variation also to be indicated. Strict compliance of the Police Manual Rule is directed through Memo No. 1991 dated 16.08.2021, communicated to all the Range I.G./D.I.G./S.S.Ps and S.Ps. of Bihar. As of now, it is submitted that there is regular compliance of the Police Manual insofar as the certification to be submitted on the close of year. </p><p style="text-align: justify;">Police Manual Rule Nos. 1096, 1097 and 1098 containing detailed procedure for inspection of arms and ammunition, is also specifically referred to. The responsibility to carry out such inspection has been conferred on the Range DIG/IG and the Arms and Ammunition Inspection Team from the Police Headquarters, Patna would also be carried out. As of now, in every district, officers and men from Armory Cadre have been posted to ensure proper upkeep and maintenance of arms and ammunition. Annexure-F is the detailed report submitted by the Dy.S.P. (Armoury), Central Arms Workshop and Stores, Patna for the last five years, which inspection was carried out by the Central Arms Inspection Team. </p><p style="text-align: justify;">A supplementary counter affidavit was filed pursuant to the orders of High Court dated October 5, 2021 regarding the present status of verification of the arms and ammunition and also the investigation in cases. </p><p style="text-align: justify;">In the Samastipur Mufassil Police Station case, departmental proceedings were initiated against many named accused police officials and four have been dismissed from service after they were found guilty in the disciplinary proceedings. </p><p style="text-align: justify;">As far as the Siwan Police Station case, it was found that 35 round cartridges were allotted to a police constable and the same were robbed from him, which has also been written off from the district records. A similar article of theft having been revealed in the investigation, has also been placed on record. One pistol, which was found missing, was also deposited in the armory by the allottee, afterwards. The reports of the Superintendents of Police, Samastipur, Siwan and Gaya are produced as Annexure- A, B and C in the supplementary affidavit.</p><p style="text-align: justify;">The Court observed that "We are of the opinion that the department has been cautioned on the subject matter sought to be agitated before this Court in the above writ petition in the nature of Public Interest Litigation. We see that the Police Manual also has sufficient precautionary measures to ensure the proper up keep of the armouries and enable periodic inspection of the same. Sufficient progress has also been made in the cases registered in Samastipur, Siwan and Gaya Police Stations."</p><p style="text-align: justify;">The Court did not set up any Special Team to investigate cases registered under Samsatipur and Siwan
Mufassil Police Stations in relation to missing of huge cache of
ammunition, as per the prayer of the petitioner. The Court concluded that "We are of the opinion that the writ petition
can now been disposed of directing the Department and its officials to ensure due compliance of the Police Manual." The bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad decided the case on April 18, 2023. The <a href="https://patnahighcourt.gov.in/viewjudgment/MTUjMTE2NDIjMjAyMSMxI04=-Sy6XGn6ilsI=">order</a> was authored by the Chief Justice. </p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-90306378839084535102024-03-01T07:54:00.000-08:002024-03-01T07:54:12.355-08:00Bihar Public Land Encroachment Act provides remedy for removal of encroachment from public lands: Patna High Court <p style="text-align: justify;">Rekha Devi (West Champaran, Betiah) filed a case against the State of Bihar in the Patna High Court as CWJC No.3571 of 2023 for removal of encroachment from a public land. The writ application was filed as a Public Interest Litigation (PIL) seeking direction for removal of encroachments over alleged public lands. The Bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad passed the final order dismissed the writ petition on April 17, 2023. </p><p style="text-align: justify;">The order referred to the Bihar Public Land Encroachment Act, 1956 which provides remedy for removal of encroachment from public lands. Section 4 of the Act allows an opportunity to the noticee (petitioner) to raise any defense which they could have raised if they were defendants in a properly framed suit for removal of encroachment. The Act also provides an opportunity of hearing under Section 5; as well as the consequences of non-appearance in the proceedings.</p><p style="text-align: justify;">It is only after observing the above procedure that final order is to be passed by the Collector under Section 6 of the Act, either dropping the proceedings or passing orders for ensuring removal of encroachment, damages or otherwise. The order of the Collector for removing encroachment is also subject to appeal under Section 11 of the Act. Section 13 of the Act also provides an opportunity of review in case of any mistake or error in the course of any proceedings.<br /></p><p style="text-align: justify;"></p><p style="text-align: justify;"></p><p style="text-align: justify;">Notably, the Bihar Public Land Encroachment Act, 1956 was amended by the Bihar Public Land Encroachment (Amendment) Act, 2012. The amendment in Section 6 of the Bihar Public Land Encroachment Act, 1956 deleted (i) Clause (C) of Sub-Section-(1) of Section-6 of the 1956 Act. It substituted "(2) If any person does not comply with the orders passed by the Collector under this section, he shall be punishable with imprisonment for a term, which may extend to one year or with fine up to Rs. 20,000/-(twenty thousand) or with both" in place of (ii) Sub-section (2) of Section-6 of The Bihar Public Land Encroachment Act, 1956. <br /></p><p style="text-align: justify;">The order notes that the issue raised by the petitioner was essentially an issue falling within the scope and ambit of the Act. The writ petition, by way of a PIL, therefore, is misconceived. If the instant case were to be entertained as a PIL, then all issues of encroachment would be required to be dealt with by this Court as a PIL. <br /><br />The Court observed that "We find that no public interest concerning any marginalised section/society has been espoused in the instant writ proceedings, so as to allow the petitioner to bypass the statutory remedy whereby and whereunder the alleged encroachers of the public lands would be dealt with in a fair procedure, and leave it open for the petitioner to pursue remedy in accordance with law." The <a href="https://patnahighcourt.gov.in/viewjudgment/MTUjMzU3MSMyMDIzIzEjTg==-hn--ak1--4Usb18VY=">order</a> was authored by Justice Madhuresh Prasad. <br /></p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-4769761560689037862024-02-29T20:25:00.000-08:002024-02-29T20:25:26.899-08:00Notorious Verdict? Children as Disqualification: After Haryana law on contesting panchayat elections, Rajasthan law for jobs <p style="text-align: justify;">Unlike Kerala which uses education as tool for the goal of population control and remains sensitive to the reproductive rights of citizens, the two-child norm against Panchayat members of Haryana and now for job seekers in Rajasthan is reminiscent of notorious sterilization laws and judgements of the U.S. which restricted to blacks and racial minorities. In the aftermath of the Supreme Court's judgement in 2003. a The Two Child Norm Bill, 2005 was introduced as a private bill in the Rajya Sabha. This bill is aimed at providing for population control through promotion of "voluntary sterilization" among eligible couples having two living children and measures for promoting two child norm. The case of Aadhaar Number shows that what is promoted as "voluntary" measure gets transformed into coercive measure. It emerges that there two kinds of norms for panchayat elections and for the election to state assemblies and parliament in Haryana and for job seekers in Rajasthan. <br /></p><p style="text-align: justify;">Meanwhile, the number of babies born in Japan totaled 758,631 in 2023, <a href="https://www.japantimes.co.jp/news/2024/02/27/japan/society/japan-2023-births-record-low/">hitting a record low for the eighth straight year and representing half the figure of some 1.5 million logged in 1983</a>. The 2023 figure declined by 5.1% from the previous year's preliminary
total of 799,728, the largest ever margin of decline. The figure fell
below the 800,000 mark for the first time in 2022. "<a href="https://india.unfpa.org/sites/default/files/pub-pdf/iar_2023_rgb_web.pdf">Caring for Our Elders Institutional Responses: India Ageing Report 2023</a>" of United Nations Population Fund and International Institute for Population Sciences indicates that an ageing population will give birth to economic crisis. The UN report estimates that India’s elderly population (people over 60 years old) will grow at a rapid 41% between 2021 and 2031. The number of elderly people will be larger than the number of children (people who are younger than 15 years old) by 2046. Notably, in 2021 there were 39 elderly persons for every 100 children in India, and 16 elderly persons for every 100 working-age persons. The UN report shows that the elderly people will constitute about 20% (or one in five members) of India’s population by 2050. By the end of the 21st century, 36%, or a little more than one-third, of India’s population will be over 60 years old.</p><p style="text-align: justify;">In such a backdrop, order of Supreme Court's bench of Justices Suryakant, Dipankar Dattaand K.V. Viswanathan upholding the judgment of a Division Bench of Rajasthan High Court dated October 12, 2022 appears to be caught in a time warp. The order ought to read with the UN report and the <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjJgf33jNKEAxWQV2wGHagKDhgQFnoECBAQAQ&url=https%3A%2F%2Fmain.sci.gov.in%2Fsupremecourt%2F2012%2F35071%2F35071_2012_Judgement_24-Aug-2017.pdf&usg=AOvVaw1eAmoq28f4uLqkVPy0c66T&opi=89978449">leading order of Justice (Dr.) D. Y. Chandrachud</a> as part of the unanimous judgement by 9-judge Constitution Bench of the Supreme Court delivered on August 24, 2017. He observed, "When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been. The decision of the US Supreme Court in <u><a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep274/usrep274200/usrep274200.pdf">Buck v Bell</a></u> (1927) ranks amongst the latter. It was a decision in which Justice Oliver Wendell Holmes Jr. accepted the forcible sterilization by tubular ligation of Carrie Bucks as part of a programme of state sponsored eugenic sterilization. Justice Holmes, while upholding the programme opined that: 'three generations of imbeciles is enough'." In an 8-1 decision, the Supreme Court upheld Virginia’s sterilization law. The Court decided that since sterilization only occurred after months of observation and an institutional board hearing, the practice was constitutional. Justice Oliver Wendell Holmes, a eugenics enthusiast, wrote for the Court. Holmes stated that society’s welfare would be promoted by sterilizing Carrie Buck since she could likely have another child with a mental impairment. Holmes went on to say that since the country asks men to potentially lose their lives in battle, other citizens should be willing to suffer “lesser sacrifices.” <span style="font-weight: 400;">Notably, Justice Pierce Butler dissented, thinking that personal liberty was at stake, and the state’s justification was not sufficient. </span>Dr. Chandrachud referred to Siddhartha Mukherjee's book The Gene: An Intimate
History, which provides a moving account of the regressive times. </p><p style="text-align: justify;"><span style="font-weight: 400;">In 1942, the US Supreme Court decided <a href="https://supreme.justia.com/cases/federal/us/316/535/"><u>Skinner v. Oklahoma ex rel Williamson</u></a> case. Jack Skinner was a chicken thief that the state of Oklahoma sought to sterilize. But the Supreme Court decided differently in this case, stating that reproduction is one of the basic rights of man. Therefore, sterilization violated the Equal Protection Clause of the Fourteenth Amendment. The Court also noted that being a chicken thief was not identified as an inheritable trait. It marked a shift in public attitudes towards eugenics. Eugenics came to be associated with the Nazi party, which committed mass genocide against the Jewish people and others in the Holocaust while claiming to promote the Aryan race. The Buck v Bell case was a landmark decision for the eugenics movement. Another eight thousand three hundred people in the state of Virginia and sixty-thousand people nationwide were involuntarily sterilized until the practice and eugenics as a whole fell out of favor in the 1970s. <br /></span></p><p style="text-align: justify;">Its <a href="https://main.sci.gov.in/supremecourt/2022/41062/41062_2022_4_21_50676_Order_20-Feb-2024.pdf">order</a> dated February 20, 2024 reiterated Supreme Court's judgement in <u><a href="https://webapi.sci.gov.in/jonew/judis/19165.pdf">Javed v. State of Haryana</a></u> (2003) which had held that "the classification, which disqualifies candidates for having more than two living children, was non-discriminatory and intra-vires the Constitution, since the objective behind the provision was to promote family planning."</p><div style="text-align: justify;">The aggrieved appellant, Ramji Lal Jat, an ex-serviceman had applied for
the post of Police Constablein the Rajasthan Police on but his
candidature was rejected in light of a Rule of the Rajasthan Police
Subordinate Service Rules, 1989, on the ground that since he had more
than two children after June 1, 2002, he stood disqualified for public
employment under the State, as per the Rajasthan Various Service
(Amendment) Rules, 2001, which provides that “no candidate shall be
eligible for appointment to the service who has more than two children
on or after 01.06.2002.” He had approached the Rajasthan High Court
which turned down his claim on the premise that the subject-Rule, under
which the appellant has been disqualified, falls within the realm of
policy and does not warrant any interference by the Court. <br /></div><div><p style="text-align: justify;">On July 30, 2003, the Supreme Court's bench of Justices R.C. Lahoti, Ashok Bhan and Arun Kumar delivered its judgment in the case of Javed v. State of Haryana [Writ petition (Civil) No. 302 of 2001]. In this case the constitutionality of Sections 175 and 177 of the Haryana Panchayati Raj Act, 1994 was upheld by the Court. The cumulative effect of these Sections is to disqualify persons having more than two children from becoming Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such. The Court observed, "“Fundamental rights are not to be read in isolation. They have to be read along with the Chapter on Directive Principles of State Policy and the Fundamental Duties enshrined in Article 51A. Under Article 38 the State shall strive to promote the welfare of the people and developing a social order empowered at distributive justice - social, economic and political. Under Article 47 the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular the constitutionally down-trodden....The concept of sustainable development which emerges as a fundamental duty from the several clauses of Article 51A too dictates the expansion of population being kept within reasonable bounds.” The order was authored by Justice Lahoti. </p><p style="text-align: justify;">The Court held that "We are clearly of the opinion that the impugned provision is neither arbitrary nor unreasonable nor discriminatory. The disqualification contained in Section 175(1)(q) of Haryana Act No.11 of 1994 seeks to achieve a laudable purpose - socio-economic welfare and health care of the masses and is consistent with the national population policy. It is not violative of Article 14 of the Constitution."</p><p style="text-align: justify;">It observed that "Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a Statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right --a right originating in Constitution and given shape by statute. But even so it cannot be equated with a fundamental right. There is nothing wrong in the same Statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office."</p><p style="text-align: justify;">The Court drew on the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency (1952) Jagan Nath v. Jaswant Singh (1954) SCR 892 and Jyoti Basu v. Debi Ghosal (1982 wherein the Supreme Court held that "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to<br />statutory limitation."</p><p style="text-align: justify;">The Court observed that "In our view, disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest." </p><p style="text-align: justify;">The judgement concluded that "The challenge to the constitutional validity of Section 175(1)(q) and 177(1) fails on all the counts. Both the provisions are held, intra vires the Constitution. The provisions are salutary and in public interest." Once upon a time even eugenics and forceful sterilisation of human beings were deemed in public interest. </p><p style="text-align: justify;">Supreme Court's bench of Justices Suryakant, Dipankar Dattaand K.V. Viswanathan missed the opportunity of rectifying the judgement in Javed v State of Haryana. The Court's insensitive approach towards reproductive rights has been criticized in a <a href="https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1032&context=nlsir">paper</a> published in <i>National Law School of India Review</i>. Unlike Indian Supreme Court, the US Supreme Court has held that "The right to procreation is a fundamental right, so a state cannot
require the sterilization of criminals convicted of certain crimes." Subsequent to this order, <span style="font-weight: 400;">the Virginia </span>sterilization law <span style="font-weight: 400;">was repealed in 1974</span>. In 2002, Virginia became the first State to issue a <a href="https://encyclopediavirginia.org/primary-documents/house-joint-resolution-no-299-february-7-2002/">formal statement of regret </a>for its past support of eugenics and involuntary sterilization. In 2015, the General Assembly approved a financial compensation program for living survivors of eugenic sterilization that allowed them to claim up to $25,000. Notably, The <span class="replacedlink"><em>Washington Post</em> <a href="https://www.washingtonpost.com/opinions/virginia-adds-insult-to-the-injury-of-eugenics/2015/11/27/d7c0866c-8fc1-11e5-acff-673ae92ddd2b_story.html">criticized</a></span> Virginia’s
compensation plan for the “insulting” amount offered to victims, noting
that North Carolina offered victims $50,000 in its editorial published on November 28, 2015. </p><p style="text-align: justify;">A day will come when the <span style="font-weight: 400;">Haryana, Rajasthan laws and Aadhaar Act too will either get repealed or overturned by the Supreme Court and a statement of regret will be issued and compensations will be paid to the victims of these laws. </span><br /></p><p><br /><br /></p><p><br /></p><div style="left: -99999px; position: absolute;">On the 30th of July
2003, the Supreme Court of India delivered its judgment in the case of
Javed v. State of Haryana.1 This judgment is seen by many as being a
formal endorsement of the National Population Policy by the Apex Court
and has been followed in the recent case of Zile Singh v. State of
Haryana.2 In Javed the constitutionality of Sections 175 and 1773 of the
Haryana Panchayati Raj Act, 1994 (hereinafter, ‘the Act’) was upheld by
the Court. The combined effect of these Sections is to disqualify
persons having more than two children from becoming Sarpanch or a Panch
of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad
or continue as such. <br /><br /> Read more at India's trusted legal database: <a href="https://www.aironline.in">https://www.aironline.in</a></div><p></p></div>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0tag:blogger.com,1999:blog-7993771111626478689.post-27214042331159304322024-02-29T17:31:00.000-08:002024-02-29T17:31:03.205-08:00Supreme Court finds directions of Armed Forces Tribunal de-hors its judgement, orders accommodation of woman naval officer in Permanent Commission <p style="text-align: justify;">On February 26, 2024, Supreme Court's bench of .Chief Justice of India Dr Dhananjaya Y. Chandrachud and Justice Hima Kohli delivered the judgement in Cdr Seema Chaudhary v. Union of India (Review Petition (Civil) No 1036 of 20230 in Civil Appeal No 2216 of 2022 exercising its inherent jurisdiction. The <a href="https://www.sci.gov.in/wp-admin/admin-ajax.php?action=get_judgements_pdf&diary_no=417092022&type=j&order_date=2024-02-26">judgement</a> was authored by Dr. Chandrachud. It found the directions of Armed Forces Tribunal (AFT) was de-hors its earlier judgement. It ordered accommodation of Commander Seema Chaudhary, a woman naval officer in Permanent Commission. <br /></p><p style="text-align: justify;">The petitioner was commissioned in the Indian Navy as a Short Service Commissioned Officer (SSCO) in the Judge Advocate Generals’ (JAG) Branch of the Indian Navy on 6 August 2007. She was promoted on 6 August 2009 as a Lieutenant and, thereafter, on 6 August 2012 as a Lieutenant Commander. During the course of her service, she was granted an extension in November 2016 for a period of two years and, thereafter, for an equivalent duration in August 2018. On 5 August 2020, the petitioner was informed that she would stand released from service on 5 August 2021. The petitioner was an officer who was recruited before the Policy Letter of 26 September 2008 was issued. The Policy Letter stipulated that while women SSCOs would be considered for grant of Permanent Commission (PC) in stipulated branches (JAG, Education and Naval Architecture), the letter would have prospective effect. It was as a result of the application of the Policy Letter dated 26 September 2008 that the petitioner was initially not considered to be eligible for the grant of Permanent Commission. In the Court's directions dated 17 March 2020 in <a href="https://webapi.sci.gov.in/supremecourt/2015/35837/35837_2015_3_1502_21539_Judgement_17-Mar-2020.pdf">Union of India v. Lieutenant Commander Annie Nagaraja</a> (2020) contained in paragraph 109.1 and 109.2, the Court noted that the statutory bar on the enrolment of women in the Indian Navy was lifted in terms of the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the Navy Act. Moreover, this Court held that the policy decision of the Union Government dated 25 February 1999 would govern the conditions of service of SSCOs including women officers in regard to the grant of Permanent Commission in terms of Regulation 203 Chapter IX Part III of the 1963 Regulations.</p><p style="text-align: justify;">The Court had specifically directed that the Policy Letter dated 26 September 2008, making it prospective and restricting it to specified cadres, would stand quashed and set aside. This Court directed that all SSCOs in the Education, Law and Logistic Cadres who were “presently in service”, shall be considered for the grant of PC. This entitlement arose from the Policy Letter dated 25 February 1999 read with Regulation 203 of Chapter IX of the Naval Regulations 1963. It is not in dispute that the case of the petitioner for being considered for the grant of Permanent Commission squarely arose in terms of the directions contained in paragraph 109.5 of the judgment. The petitioner was considered for the grant of Permanent Commission (PC) after the judgment of this Court, but has been denied on the ground that there were no vacancies. </p><p style="text-align: justify;">The petitioner had earlier moved to the Court under Article 32 of the Constitution, but was relegated to the Armed Forces Tribunal (AFT) by an order dated 24 August 2021. The AFT had issued certain directions in its judgment dated 3 January 2022.These directions were challenged before the Court in Civil Appeal No 2216 of 2022, which was disposed of by the Court by its order dated 20 October 2022. To meet the ends of justice would made the Court to recall the order which was passed by it Court on 20 October 2022 in Civil Appeal No 2216 of 2022 pertaining to the petitioner on February 26, 2024. The Court observed that "Any directions de-hors the judgment of the Court could not obviously be issued."<br /></p><p style="text-align: justify;">The Court's order reads: "We accordingly order and direct that in the peculiar facts and circumstances of this case, the case of the petitioner for the grant of PC shall be considered afresh by reconvening a Selection Board. The Selection Board shall consider the case of the petitioner on a stand alone basis since it is common ground that she was the only serving JAG Branch officer of the 2007 batch whose case for the grant of PC was required to be considered. The consideration by the Selection Board shall take place uninfluenced by any previous consideration of her case for PC and uninfluenced by any observations contained in the order of the AFT." <br /></p><p style="text-align: justify;">The order clarifies that in the event that pursuant to the directions of the AFT, if a proportional increase in the vacancies is required to be created to accommodate the petitioner, this shall be carried out without creating any precedent for the future. We have issued this direction under Article 142 of the Constitution so as to ensure that while no other officer is displaced, a long standing injustice to the petitioner is duly rectified. Any Annual Confidential Report which has not been communicated to the petitioner shall not be considered for the purpose of the grant of Permanent Commission. The exercise of considering the petitioner afresh for Permanent Commission shall be carried out on or before 15 April 2024.</p>mediavigilhttp://www.blogger.com/profile/17801809794795753601noreply@blogger.com0