National Company Law Appellate Tribunal (NCLAT) Members Rakesh Kumar, Alok Srivastava facing action under Contempt of Courts Act

A contempt petition was filed in the Supreme Court on October 3, 2023. It was registered on October 10, 2023. On October 13, 2023, the matter came up before a 3-Judge Bench of 50th Chief Justice Dr Dhananjaya Y. Chandrachud, Justices J.B. Pardiwala and Manoj Misra. On October 18, 2023, the Bench passed an order saying, "We are prima facie of the view that Shri Rakesh Kumar, Member (Judicial) and Dr Alok Srivastava, Member (Technical) of the NCLAT are liable to be proceeded against in the exercise of the contempt jurisdiction of this Court. We accordingly issue a notice to show cause to Mr Rakesh Kumar, Member (Judicial) and Dr Alok Srivastava, Member (Technical) of the NCLAT to show cause as to why they should not be committed under the Contempt of Courts Act 1971 for having willfully defied the directions of this Court. They shall remain personally present before this Court on 30 October 2023 at 10.30 am, by which date, they shall submit their replies to the notice." The matter is listed for further hearing on 30 October 2023. It has set aside the judgment of the NCLAT dated 13 October 2023 in exercise of the jurisdiction under Article 142 of the Constitution. It order reads: "We consequently direct that the appeal shall be heard afresh by a Bench presided over by the Chairperson of NCLAT."

The October 18 order records the chain of events in the Court. On 13 October 2023, a contempt petition was moved before this Court on the ground that despite the order of this Court, the declaration of the result of the Annual General Meeting (the company is Finolex Cables Limited) was being deferred till a judgment was rendered by National Company Law Appellate Tribunal so as to defeat the order of this Court. Accordingly on 13 October 2023, this Court issued a direction in the following terms: “5 The scruitinizer shall, in compliance with the order of this Court proceed to declare the result of the Annual General Meeting which was held on 29 September 2023 forthwith. 6 The NCLAT shall proceed to declare its judgment in the pending appeal after it is duly apprised of the fact that the result of the Annual General Meeting has been declared.”

It underlines that the above direction makes it abundantly clear that (i) the scrutinizer was under an obligation to declare the result of the AGM which was held on 29 September 2023 forthwith; and (ii) NCLAT was directed to proceed to the declaration of its judgment after it was duly apprised of the fact that the result of the AGM has been declared.  In the afternoon session on 13 October 2023, this Court was apprised, in the course of an urgent mentioning, that despite the fact that the order of this Court was uploaded at 1.55 pm and the counsel appearing on behalf of the appellant produced the order before the NCLAT at 2 pm with a request that the judgment should not be delivered until the report of the scrutinizer is made available, the Bench of the NCLAT proceeded to deliver the judgment. 

In this backdrop, the Court observed that:
“4 The Court has been apprised of the fact that the Bench of the NCLAT consisting of Mr Rakesh Kumar and Dr Alok Srivastava proceeded to deliver the order. If what is stated is correct, this will clearly constitute the defiance of the order of this Court by the NCLAT.”
5 The Court also noted that the report of the scrutinizer was uploaded at 2.40 pm on 13 October 2023. This was after the order of the NCLAT was pronounced.
6 In this backdrop, this Court directed that an enquiry shall be conducted by the Chairperson of the NCLAT after due verification of the facts from the Judges who constituted the Bench of the Appellate Tribunal on the following aspects:
“(i) That the order of this Court dated 13 October 2023 passed in the morning session was drawn to the attention of the two Judges;
(ii) If that is so, the circumstances in which the Judges proceeded to pronounce the judgment despite the clear mandate of the order of this Court which was passed in the morning session.”

Pursuant to the order of this Court, Justice Ashok Bhushan, the learned Chairperson of the NCLAT has upon due verification from the Judges submitted a report to this Court. The report alludes to two separate statements which have been made before the Chairperson. 

The statement by Mr Rakesh Kumar, Member (Judicial) is recorded in paragraph 3 of the report in the following terms:
“Justice Rakesh Kumar, Member (Judicial) has given a response vide his letter dated 16.10.2023 which was received by me during lunch hours of 16.10.2023. In the response, the Member (Judicial) has stated “I may inform that on Friday in the Supplementary Cause List dated 13.10.2023 at 2 PM Company Appeal (AT) No 64/2020 (Deepak Chhabaria and Another) was listed under the caption “For Judgment” for its pronouncement. The said supplementary cause list was uploaded and published on one day earlier i.e. Thursday, 12.10.2023. My Lord is aware that normal procedure which is being followed in Bench of this Tribunal is that mentioning is entertained after the pronouncement of Judgment(s)/Order(s). I am not holding a constitutional post and as such I am required to follow the procedure. Accordingly as per procedure established here Judgment was pronounced on Friday i.e.13.10.2023.”

The statement by Dr Alok Srivastava, Member (Technical) to the Chairperson is in the following terms:
“On 13.10.2023, when the Presiding Judge and I entered the Court Room No II in the post-lunch session, it was jam-packed with lawyers and there was unusually high noise in the court room. A total 26 cases in the Supplementary Cause List and 18 cases in the Daily Cause List were listed under the categories.“ For Judgment/For Admission (Fresh Cases)/For Admission (After Notice)/For Orders/for Hearing” which had to be taken up in the post-lunch session. The practice adopted in NCLAT is to have “mentionings” after pronouncement of judgment(s) listed in the cause list. As the proceedings for the post-lunch session commenced, and the “For Judgment” case CA(AT) No.64 of 2020 was called out (as is the practice to take up “For Judgment” cases in the beginning), some lawyers started to intervene on which the Presiding Judge commented that whatever you want to file, please bring it on record. Thereafter, the pronouncement of the said judgment was completed. It may be pointed out that no lawyer conveyed the judgment orally to me during the lunch hour when I was available in my office chamber, nor copy of the said order was provided to the Court Master. If this would have been done, the unfortunate situation may not have arisen. I respectfully submit that I hold the Hon’ble Supreme Court in highest regard and esteem and there has been no intention to disobey the order of the Hon’ble Supreme Court. I deeply regret that such a situation arose in the matter and offer sincere apology for the same.”

The Member (Technical) has adverted to the events which transpired before the NCLAT in the appeal on 13 October 2023. Paragraph 5 of the report reads as follows:
“I have taken the response given by the Judicial Member as well as the Technical Member. Company Appeal (AT) No.64 of 2020 was listed for pronouncement in Court No.II before the Bench constituted of Judicial Member and Technical Member. After the Court assembled, Learned Counsel for the parties who were present in the Court sought to intervene to make a request to the Bench, however, the Bench proceeded to pronounce the judgment not permitting the mentioning by the Learned Counsels. Copy of the order dated 13.10.2023 was not given either to the Court Officer or to the Bench. The Bench did not accept the request made on behalf of the Counsel and proceeded to pronounce the judgment. The judgment was pronounced in ignorance of the order of the Hon’ble Supreme Court dated 13.10.2023.”
10 The report of the Chairperson has also adverted to an order dated 16 October 2023 passed by the Bench of the NCLAT subsequently, in the following terms:
“16.10.2023: In aforesaid appeal on 13.10.2023, Judgment was pronounced. In the evening, the Registry brought to the notice an e-mail dated 13.10.2023 issued at 05.35 PM addressed to Registrar NCLAT enclosing therewith an order dated 13.10.2023, passed by Hon’ble Supreme Court in Contempt Petition (C) No.1195/2023 in C.A. No.6108/2023. After the order was produced we perused the same and we noticed that Hon’ble Supreme Court in its order in paragraph 1 sub-paragraph 6 had directed that Judgment in pending appeal shall be delivered by the NCLAT after it is duly apprised of the fact that the result of Annual General Meeting has been declared. In view of the order of Hon’ble Supreme Court it is imperative for us to pass an order for Suspending the Judgment of this court dated 13.10.2023 till this appellate Tribunal is duly apprised of the fact that the result of the Annual General Meeting has been declared or subject to order/direction passed by the Hon’ble Supreme Court.”

There are two affidavits before the Court at the present stage:

(i) A “limited affidavit” which has been filed on behalf of the first respondent; and
(ii) An affidavit in rejoinder on behalf of the petitioner.

The Court records that it heard Mukul Rohatgi, Dr Abhishek Manu Singhvi, Ranjeet Kumar, senior counsel on behalf of the petitioner and Shyam Divan and Ramji Srinivasan, senior counsel on behalf of the contesting respondents. Darius Khambata, senior counsel has appeared on behalf of the scrutinizer.

Mukul Rohatgi, senior counsel appearing on behalf of the petitioner reiterates, as was submitted before this Court when it passed its order dated 13 October 2023 in the second session that Ankur Saigal, counsel appearing on behalf of the petitioner had produced the order of this Court
before the NCLAT at 2 pm with a request that the judgment should not be delivered until the report of the scrutinizer is made available. This was specifically recorded in paragraph 3 of the order dated 13 October 2023. 

Ramji Srinivasan, senior counsel appearing on behalf of the appellant before the NCLAT has fairly stated before this Court that the order of this Court which was passed on 13 October 2023 was duly communicated to the contesting parties. Moreover, Mr Ramji Srinivasan also stated that at about 2.15 pm when the Bench of the NCLAT assembled, he personally sought to tender a copy of the order passed by this Court on 13 October 2023 in the morning session to the Bench of the NCLAT and apprised the Bench of the fact that this Court had specifically directed that the judgment of the NCLAT shall be delivered only after the Court was apprised of the results of the AGM. However, as things stand, the Bench of the NCLAT proceeded to declare the judgment. Ramji Srinivasan further states that he apprised the Bench that the representative of the petitioner herein had already voted against the resolution at the AGM.

Apart from the statements which have been made by the senior counsel before this Court, the affidavit which has been filed by the first respondent contains the following averments:
“On 13.10.2023, the Contempt Petition was preliminary heard by this Hon’ble Court around 12.20 pm. On 13.10.2023, passed its first order on that date, which became available at around
1.55 pm (“First Order”). This Hon’ble Court directed Respondent No.2 to declare the result of the AGM which was held on 29.09.2023 forthwith. This Hon’ble Court directed that the Learned NCLAT shall proceed to declare its judgment in the pending appeal after it is duly apprised of the fact that the result of the AGM has been declared. The directions as dictated in open court by this Hon’ble Court in the First Order were communicated to Respondent No.1 through his Advocates at around 12.30 pm. Respondent No.1 immediately called the Company Secretary of FCL, to convey the directions to Respondent No.2.”

The affidavit further states that on 13 October 2023, the report of the scrutinizer was prepared and was sought to be uploaded on the website of the Stock Exchanges in compliance of the order of this Court, but as the official servers of BSE Limited and National Stock Exchange of India Limited took time to respond, the report was uploaded at 2.41 pm and 2.44 pm respectively. The first respondent has disclosed what transpired before the NCLAT after the order of this Court dated 13 October in the following terms:
“At around 02.15 pm, when the NCLAT Appeal was called out ‘for judgment’, the Ld. Senior Counsel representing me informed the Learned NCLAT about the First Order and the directions contained therein. It was also informed to NCLAT that petitioner had voted against resolution No.4. It was also informed that the Consolidated Scruitinzer’s Report was being uploaded. The Learned NCLAT proceeded to pronounce the  operative part of the Judgment dated 13.10.2023 (“NCLAT Judgment”), which occurred at around 2:15 pm. The NCLAT Judgment was only made available on the official website of the Learned NCLAT, at 4.30 pm and it was only after that time that it was even made public.” (emphasis supplied)

The Court observes: We will first deal with the report which has been submitted before this Court
by the Chairperson of the NCLAT. The Presiding Judge, Mr Rakesh Kumar, Member (Judicial) states that the appeal was listed for pronouncement of judgment in the supplementary cause list which was uploaded on 12 October 2023. He states that the normal procedure which is followed in the tribunal is that mentioning is entertained after the pronouncement of judgments/orders and since he is “not holding a constitutional post” as such he is “required to follow the procedure”. The Member (Judicial) has therefore stated that “as per the procedure established here” the judgment was pronounced on 13 October 2023. 

The Member (Technical) on the other hand states that when the proceedings were called out in the post-lunch session in the case which was listed for judgment, “some lawyers started to intervene on which the Presiding Judge commented that whatever you want to file, please bring it on record”, after which, the pronouncement of the judgment was made. The Member (Technical) has tendered an unconditional apology to this Court. These facts are conspicuously absent in the statement of the Member (Judicial). 

Neither the statement of the Member (Judicial) nor the statement which has been tendered by the Member (Technical) refer to the fact that the order dated 13 October 2023 passed by this Court in the morning session was communicated to the Bench of the NCLAT together with the directions which were contained therein. In paragraph 3 of the order dated 13 October 2023 passed in the afternoon session, the statement of senior counsel appearing on behalf of the petitioner that the Bench of the NCLAT was apprised of the order of this Court in the afternoon session was recorded. This is also the clear case of the first respondent on affidavit since he has stated that around 2.15 pm when the NCLAT appeal was called out for judgment, the senior counsel representing him informed the Bench of the NCLAT of the order which was passed by this Court earlier and the directions which were contained therein. Neither the statement of the Member (Judicial) nor the statement of the Member (Technical) reveals this to the Chairperson of the NCLAT. In fact, the statement of the Member (Judicial) would seem to indicate that no mentioning is permitted at all before the declaration of judgment as a consequence of which the judgment was delivered without hearing any counsel on the order passed by this Court. Likewise, the statement of the Member (Technical) indicates that while some lawyers had attempted to intervene, the Presiding Officer had not permitted such an intervention and had proceeded to pass the judgment. The matter does not rest there.

On 16 October 2023, the Bench of the NCLAT passed an order recording that the Registry of the Tribunal had brought to its notice an email dated 13 October 2023 issued at 5.35 pm enclosing a copy of the order dated 13 October 2023 passed by this Court. The NCLAT has stated that after the order was produced, it had perused it and noticed that this Court had issued directions to the effect that judgment in the pending appeal shall be delivered by NCLAT after it is duly apprised of the fact that the result of the AGM is being declared. The NCLAT has proceeded to pass an order for suspending the judgment which it pronounced on 13 October 2023.

The Court observed: We are constrained to observe that the order dated 16 October 2023 purports to create an impression that the Bench of the NCLAT was apprised of the order passed by this Court for the first time when the email was received at 5.35 pm on 13 October 2023. This prima facie is a falsehood since it has emerged before this Court, both on the statements of the counsel as well as on affidavit that the Bench of the NCLAT was duly apprised of the order passed by this Court on 13 October 2023 in the morning session when the appeal was taken up at around 2.15 pm for pronouncement of judgment. We are, therefore, prima facie, of the view that the Members of the NCLAT have (i) failed to disclose facts to the Chairperson of the NCLAT who was under a duty to carry out an enquiry in pursuance of the judicial order passed by this Court; and (ii) incorrectly sought to create a record in the order dated 16 October 2023 that the order of this Court was drawn to the notice of the Bench only at 5.35 pm on 13 October 2023.

It observed: We will deal with the consequential steps which should be taken by this
Court and the action which has to be adopted in pursuance of what ha
transpired in these proceedings. The manner in which the NCLAT has proceeded to deliver judgment in defiance of the directions of the Court is unbecoming of a judicial tribunal. NCLAT is subject to the jurisdiction of this Court. It was duty bound to comply with the order of this Court. It was apprised of the fact that this Court had passed an order in the morning session on 13 October 2023 to the effect that it shall proceed to declare judgment after being apprised of the results of the AGM. The statements made by the Member (Judicial) before the Chairperson of NCLAT seem to indicate that he did not permit mentioning in accordance with the practice of his Bench to the effect that mentioning is taken up after judgments are delivered. The Member (Technical) indicates that while some lawyers had sought to intervene, the Presiding Judge had not heard them. Both these statements are belied by the fact that it is common ground between the parties, who are seriously contesting a dispute before NCLAT, that the Bench was dully apprised of the order of this Court when it assembled at around 2.15 pm before the judgment was pronounced. Moreover, the passing of the further order on 16 October 2023 compounds the situation. If indeed the judgment had been declared after the NCLAT was duly apprised of the result of the AGM, there was no occasion for it to suspend the operation of its judgment. The Members forming part of the Bench have not purported to say so. In this view of the matter, insofar as the lis is concerned, we are of the view that it is necessary for this Court to ensure that the dignity of the Court is maintained. A party cannot be allowed by recourse to devious means to obviate compliance with a solemn order passed by this Court. 

The Court observed: "We clarify that we have not entered any finding on the merits of the rival contentions of the parties in the pending appeal. This Court has been constrained to pass this order in extraordinary circumstances which we have referred to above."

In the light of Court's directions, now Justice (retd.) Ashok Bhushan, the Chairperson of the National Company Law Appellate Tribunal National Company Law Tribunal (NCLAT) headed Bench will have to hear the appeal afresh. Justice Bhushan retired as judge of the Supreme Court of India on July 4, 2021 and November 8, 2021, he was appointed as the Chairperson of the NCLAT within four months of his retirement as judge.

Prior to his appointment as Member (Judicial), NCLAT on May 17, 2022, Rakesh Kumar was judge of Andhra Pradesh High Court till December 31, 2020. He was transferred to Andhra Pradesh High Court from Patna High Court on November 8, 2019 amidst a huge controversy.

After an 11-Judge Bench of the Patna High Court suspended the operation of an order passed by Justice Rakesh Kumar highlighting corruption in the judicial system, a full Bench quashed the same. Justice Kumar had ordered a CBI probe and an enquiry by the Patna district judge into how a former IAS officer whom he had denied anticipatory bail in a corruption case was granted regular bail by a trial court. A full bench of the Patna High Court, headed by Chief Justice A.P. Sahi, set aside Justice Kumar's order, terming it as an instance of judicial and administrative overreach and a complete nullity.  The bench declared the order "to be coram non judice". However, the High court's full bench restored judicial work to Justice Kumar that he had been stripped of the day he passed his order questioning the grant of regular bail to the former IAS officer by the trial court a day after Justice Kumar and Chief Justice AP Shahi reportedly met 46th Chief Justice of India. Justice Kumar had passed an order on August 28, 2019 order, taking suo motu cognisance of the bail granted by a lower court to the retired IAS officer in a corruption case. He took up and disposed of an anticipatory bail plea filed by former IAS officer KP Ramaiah in connection with the multi-crore Bihar Mahadalit Vikas Mission Fund Scam. By an earlier order dated March 23, 2018, Ramaiah’s plea was already dismissed by the High Court.  During the proceeding, Justice Kumar took on record a news report published in Dainik Jagran, a Hindi newspaper whereby, on the date that Ramaiah surrendered before the trial court, the regular Special Judge (Vigilance) went on leave. Thereafter, Ramaiah surrendered and was granted bail by the judge on the same date. Taking note of the turn of the events, Justice Kumar had opined that the way Ramaiah was granted bail required a deeper probe. Justice Kumar ordered an inquiry to be conducted by the District Judge, Patna to check and verify the news report. He also ordered an inquiry as to whether on the date of granting bail, the regular vigilance court was on leave due to a genuine cause or went on leave in a calculated way.  Additionally, the District Judge was also asked to examine the record of cases disposed of by the in-charge judge in the last six months. Setting aside Justice Kumar's order the High Court's full bench headed by Chief Justice Sahi said, "A wrong order requires setting aside if it has travelled beyond the objective boundaries and has far-reaching consequences in setting a trend which no law recognizes.  The passing of such an order has the inherent danger of creating uncertainty and a feeling that all things can be set right on exercise of authority by a judge even though he may not have legal power to do so." Subsequently. Supreme Court Collegium recommended transfer of Patna High Court Chief Justice Sahi to the Madras High Court, and it recommended the transfer of Justice Kumar to the Andhra Pradesh High Court.  

As to Dr. Alok Srivastava, Member (Technical), NCLAT, he was Union Law Secretary and Secretary, Department of Justice before joining of NCLAT. As an IAS officer, he was to retire in June 2020 but he took voluntary retirement and joined as a Member, NCLAT on February 14, 2020.

Earlier, upon hearing the matter related to the order by NCLAT members, the Supreme Court had passed the following order on October 13, 2023:

"In the course of the morning session today, the following order was passed by this Court:
“1 The order passed by this Court on 20 September 2023 sets aside the order of the NCLAT to the extent that it directed the restoration of the status quo ante at a stage when the arguments were concluded and the matter was reserved for judgment. However, this Court observed that all actions which may be taken would abide by the final result of the proceedings before NCLAT.
2 We are prima facie of the view that the mandate of the order cannot be defeated by deferring the declaration of the result till a judgment is rendered by NCLAT.
3 We accordingly issue notice returnable on 30 October 2023.
4 Subject to such further directions as may be issued by this Court, personal presence of the contemnor(s) is presently dispensed with.
5 The scrutinizer shall, in compliance with the order of this Court proceed to declare the result of the Annual General Meeting which was held on 29 September 2023 forthwith.
6 The NCLAT shall proceed to declare its judgment in the pending appeal after it is duly apprised of the fact that the result of the Annual General Meeting has been declared.”

2. The above order of this Court was uploaded at 1.55 pm this afternoon. 

3. Mr Neeraj Kishan Kaul and Dr Abhishek Manu Singhvi, senior counsel and Mr Shikhil Suri, counsel joined in stating that counsel, Mr Ankur Saigal (who is personally present before this Court) produced the order of this Court before the National Company Law Appellate Tribunal (NCLAT) at 2 pm with a
request that the judgment should not be delivered until report of the scrutinizer is made available. 

4. The Court has been apprised of the fact that the Bench of the NCLAT consisting of Mr Rakesh Kumar and Dr Alok Srivastava proceeded to deliver the order. If what is stated is correct, this will clearly constitute the defiance of the order of this Court by the NCLAT.

5. At this stage we are not commenting on the merits of the submissions which have been made.

6. The Court is apprised that the scrutinizer report was uploaded at 2.40 pm.

7. We direct that an enquiry shall be conducted on the above allegations by the Chairperson of the NCLAT. A report shall be submitted before this Court by 5 pm on 16 October 2023 after specifically verifying the facts from the Judges who constituted the Bench of the NCLAT.

8. The Chairperson of the NCLAT shall specifically verify:
(i) That the order of this Court dated 13 October 2023 passed in the morning session was drawn to the attention of the two Judges;
(ii) If that is so, the circumstances in which the Judges proceeded to pronounce the judgment despite the clear mandate of the order of this Court which was passed in the morning session. 

9. We are passing this order in extraordinary circumstances, upon an urgent mentioning being made in that regard."

Prior to this on September 26, 2023, the 3- judge bench of 50th Chief Justice, Justices J.B. Pardiwala and Manoj Misra passed an order in Orbit Electricals Private Limited Vs. Deepak Kishan Chhabria (Civil Appeals 6108 of 2023 and 6176 of 2023) allowing the appeals. The order is as under: 

"The National Company Law Tribunal1 dismissed the application filed by the first respondent for the grant of interim relief by an order dated 31 December 2019. The first respondent is in appeal before the National Company Law Appellate Tribunal. Admittedly, no interim relief operated in favour of the first respondent during the pendency of the appeal.

2 The appeal has been heard and orders were reserved by the NCLAT on 21 September 2023. However, while reserving orders, the NCLAT has directed the parties “to maintain status quo as was available prior to EOGM dated 03.05.2019” till the judgement is delivered. No reasons have been indicated by the NCLAT even prima facie for issuing the interim order, particularly in the context of the fact that there was no interim relief operating since the dismissal of the application for interim relief on 31 December 2019. It is admitted that no relief was obtained by the first respondent in the proceedings before the Bombay High Court, as well.

3 In the circumstances, we vacate the interim direction as noted above. The Annual General Meeting (AGM) of the company, Finolex Cables Limited is to take place on 29 September 2023. Any action which is taken on proposed resolution No 4 pertaining to the appointment of the Executive Chairperson shall be subject to the outcome of the appeal which is pending before the NCLAT.

4 Subject to the aforesaid modifications, the appeals are allowed and the impugned order is set aside to the aforesaid extent."

Justices Madhuresh Prasad and Sudhir Singh to be transferred to High Courts of Calcutta, Punjab and Haryana

The Supreme Court's Collegium recommended transfer of Justice Madhuresh Prasad from Patna High Court to Calcutta High Court. On 3 August 2023, the Collegium had proposed the transfer of Justice Prasad for better administration of justice. In terms of the Memorandum of Procedure, the Collegium consulted Judges of the Supreme Court who, being conversant with the affairs of the High Court of Judicature at Patna, are in a position to offer views on the proposed transfer. It also consulted the Chief Justices of the High Courts of Patna and Calcutta. 

By a letter dated 8 August 2023, Justice Prasad has conveyed his consent to the proposal for his transfer to the Calcutta High Court. He has, however, requested that while taking a final decision in the matter the Collegium may take into consideration the fact that final Board Examination of his younger son is due in February 2024. The Collegium considered the request but did not find any merit in the request. On 10 August 2023, the Collegium reiterated its recommendation dated 3 August 2023 to transfer him to the Calcutta High Court. Justice Prasad was a member of Patna High Court's four member Artificial Intelligence (AI) Committee, a Statutory Committee headed by Chief Justice constituted on 9 October 2023.  He was member of Court's e-Committee in matter of passing resolutions on all matters related with E-committee, a Statutory Committee,  a member of Court's Selection and Appointment Committee for the Sub-ordinate and Higher Judiciary, a Statutory Committee and a member of Court's Committee to scrutinize the service record
of Judicial Officers on their attaining the age of 50 years and 55 years as on 30.9.2018 for exercise of powers under Rule 74(b)(ii) of the Bihar Service Code. He was a member of Court's Litigation and Vetting Committee, Library Committee for High Court and Sub-Ordinate Court, a Statutory Committee and Committee to supervise and to formulate any suggestions relating to policy matters in the matter of preparation of the Budget of the High Court and the Sub-ordinate Judiciary.

The Collegium also recommended the transfer of Justice Sudhir Singh of Patna High Court to the Punjab and Haryana High Court for better administration of justice on 3 August 2023. The Collegium considered his representation dated 8 August 2023 wherein he requested that before taking a final decision regarding his transfer, the facts submitted by him in his letter may be considered. On 10 August 2023, the Collegium reiterated its recommendation for his transfer. He was a member of Court's Standing Committee (Statutory Committee, Infrastructural Development Committee to consider the infrastructural matters related with the High Court, residence of Judges and Judges Guest House, Committee to work out modalities for setting up of effective investigation wing under the direct control of High Court and to consider the matter regarding framing up of guidelines with regard to genuineness/correctness of allegation petition by the High Court against the Sub-ordinate Judiciary, Arrears Committee for District Courts, Medical Advisory Committee and Committee for sensitization of Family Court matters. 

Patna High Court Circular in compliance of Supreme Court's judgment in Md. Asfak Alam V. Jharkhand

The Registrar General, Patna High Court has issued a Circular Order dated September 19, 2023 in compliance of the direction issued by the Supreme Court in its judgment dated 31 July, 2023 passed in Md. Asfak Alam V. The State of Jharkhand (2023) by the bench of Justices S. Ravindra Bhat and Justice Aravind Kumar.

All the courts under the territorial jurisdiction of the Court shall be required to follow the law laid down in case of Arnesh Kumar V. State of Bihar (2014) by the Supreme Court's bench of Justices Chandramauli Kr. Prasad and Pinaki Chandra Ghose on 2 July, 2014.

 The following directions are contained in the said decision:
11.1 "All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr. P.C .;
11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41 (1)(b)(ii) ;
11.3 The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the Police Officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.6 Notice of appearance in terms of Section 41-A Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High court having territorial jurisdiction.
11.8 Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the cased in hand, but also such cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years, whether with or without fine."

The copy of the circular has been forwarded to the District and Sessions Judge , Araria; Aurangabad;
Banka; Begusarai; Bhagalpur; Bhojpur (Ara) ; Buxar; Darbhanga; East Champaran (Motihari ); Gaya; Gopalganj; Jamui; Jehanabad; Katihar; Kaimur (Bhabhua); Khagaria; Kishanganj; Lakhisarai; Madhepura; Madhubani; Munger; Muzaffarpur; Nalanda (Biharsharif); Nawada; Patna; Purnea; Rohtas (Sasaram); Saharsa; Samastipur; Saran (Chapra); Sheohar; Sheikhpura; Sitamarhi ; Siwan; Supaul ; Vaishali (Hajipur) and West Champaran (Bettiah) for information and necessary action.  

A copy of the circular has been forwarded to the Secretary General , Supreme court of India , New Delhi, Principal Secretary to Government of Bihar, Home Department, Patna, Principal Secretary to Government. f Bihar, Law Department, Patna, Director General of Police, Bihar, Patna, I.G. (Prison) and Director, Correctional Services, Bihar, Patna, Director, Public Prosecution, Bihar, Patna, Director, Bihar Judicial Academy, Patna, Advocate General , Bihar, Patna, Member-Secretary, BSLSA, Patna, Secretary, Bar Association, Patna, Secretary, Advocate Association, Patna and Secretary, Lawyers' Association, Patna. The Chairman, Bar Council of Bihar, Patna has to forward this letter to all the Bar Associations of the State for information and necessary action.

सामुदायिक स्वास्थ्य पदाधिकारी की मनगढंत शिकायत आधारित फर्जी एफआईआर के खिलाफ जनप्रतिनिधियों व ग्रामीण जनता का ज्ञापन

कायमनगर, कोइलवर, भोजपुर क्षेत्र के जनप्रतिनिधियों व ग्रामीण जनता ने आरक्षी अधीक्षक, भोजपुर को 14 अक्टूबर को  ज्ञापन सौंप कर सुमन कुमारी, सामुदायिक स्वास्थ्य पदाधिकारी, कायमनगर, गीधा भोजपुर द्वारा दायर मनगढंत शिकायत आधारित फर्जी एफआईआर (प्राथमिकी संख्या 561/23, तिथि 16/09/2023) को हटाने की मांग की हैं. उनके अनुसार प्राथमिकी गलत है और केवल रंजिश के तहत नाम देकर फंसाने का कार्य किया गया है. इस फर्जी

एफआईआर का तथ्यगत तिथिवार ब्यौरा निम्नलिखित है:-
1. 14/06/2023: धर्मात्मा शर्मा सहित 37 ग्रामीण लोगों ने माननीय मुख्यमत्री. बिहार, स्वास्थ्य  मंत्री, बिहार, जिलाधिकारी, भोजपुर, सिविल सर्जन, भोजपुर और चिकित्सा पदाधिकारी, कोइलवर. भोजपुर व गीधा वो. पी., कोइलवर, भोजपुर  को ग्राम पंचायत कायमनगर के  स्वास्थ्य  उप केंद्र के बदहाली के सम्बन्ध में औपचारिक शिकायत दर्ज करवाई गयी.

2. 07/07/2023: धर्मात्मा शर्मा ने माननीय मुख्यमत्री. बिहार, स्वास्थ्य  मंत्री, बिहार, जिलाधिकारी, भोजपुर, सिविल सर्जन, भोजपुर और चिकित्सा पदाधिकारी, कोइलवर. भोजपुर को ग्राम पंचायत कायमनगर के स्वास्थय उप केंद्र के बदहाली के सम्बन्ध में औपचारिक शिकायत दर्ज करवाई गयी.

3. 16/08/2023: धर्मात्मा शर्मा सहित 7 ग्रामीणों ने जिला समहर्ता, भोजपुर को कोइलवर प्रखंड के अंतर्गत ग्राम पंचायत कायमनगर में तिरंगा नहीं फहराए जाने के सम्बन्ध में में औपचारिक शिकायत दर्ज करवाई गयी.

4. 17/08/2023:  धर्मात्मा शर्मा सहित 7 ग्रामीणों ने जिला समहर्ता, भोजपुर को कोइलवर प्रखंड के अंतर्गत ग्राम पंचायत कायमनगर में तिरंगा नहीं फहराए जाने के सम्बन्ध में में औपचारिक शिकायत रजिस्टर्ड पोस्ट द्वारा दर्ज करवाई गयी.

5. 18/08/2023: धर्मात्मा शर्मा सहित 7 ग्रामीणों ने जिला समहर्ता, भोजपुर को कोइलवर प्रखंड के अंतर्गत ग्राम पंचायत कायमनगर में तिरंगा नहीं फहराए जाने के सम्बन्ध में में औपचारिक शिकायत को  हस्तांतरित कर पावती प्राप्त की गयी.

6. 19/08/2023:दैनिक भास्कर अखबार में  "झंडा नहीं फहराने पर डी एम को आवेदन" शीर्षक से खबर प्रकाशित हुआ.   

7.05/09/2023: सुमन कुमारी ने अपनी मनगढंत शिकायत श्री धर्मात्मा शर्मा और अन्य  ग्रामीणों  के शिकायत के बाद में काउंटर ब्लास्ट (जवाबी कार्रवाई) के रूप में दर्ज की गई है.

8. 16/09/2023: सुमन कुमारी की मनगढंत शिकायत के 11 दिन बाद एफआईआर (प्राथमिकी संख्या 561/23, तिथि 16/09/2023) दर्ज की गई है.  

उपरोक्त सत्यापित तथ्यों से साफ़ है कि एफआईआर (प्राथमिकी संख्या 561/23, तिथि 16/09/2023) यह काउंटर ब्लास्ट (जवाबी कार्रवाई) का एक स्पष्ट मामला है.  इन तथ्यों के आलोक में जनप्रतिनिधियों व ग्रामीण जनता ने आग्रह किया है कि इस एफआईआर को निरस्त कर सुमन कुमारी पर उचित क़ानूनी कार्यवाई की जाए. जनहित में दायर किये गए शिकायत का निवारण करें और धर्मात्मा शर्मा जैसे सामाजिक रूप से सजग ग्रामीणों को अपने स्तर पर निष्पक्ष जांच कर मुक्त करें.   

कायमनगर निवासी सुनील कुमार सिंह का कहना है कि पंचायत उपस्वास्थ्य केंद्र अक्सर बंद  रहता हैं. स्वास्थ्य सेवा उपलब्ध कराने की मांग पर महिला स्वास्थ्यकर्मी केस में फंसाने की धमकी देती हैं और प्राथमिकी दर्ज करा देती हैं. इसलिए अब  प्राथमिक उपचार के लिए लोग आरा का रुख करते हैं.

 

Justices G. Anupama Chakravarthy and Nani Tagia to take charge as Judges of Patna High Court

In two separate notifications of Department of Justice (Appointments Division), Union Ministry of Law and Justice dated October 18, 2023 states that in exercise of the power conferred by clause (1) of Article 222 of the Constitution of India, the President, after consultation with the Chief Justice of India has transferred Justice Gunnu Anupama Chakravarthy, Judge of Telangana High Court and  Justice Nani Tagia Judge of Gauhati High Court as Judges of Patna High Court. It has directed them to assume charge of her office in the Patna High Court. These notification are signed by Rajinder Kashyap, Special Secretary to the Government of India. 

On 3 August 2023, the Supreme Court Collegium had proposed the transfer of Justice G Anupama Chakravarthy, Judge to the Patna High Court for better administration of justice. In terms of the Memorandum of Procedure, the Collegium consulted one of the Judges of the Supreme Court who, being conversant with the affairs of the High Court for the State of Telangana, is in a position to offer views on the proposed transfer. It also consulted the Chief Justices of the High Court for the State of Telangana and the Patna High Court. By a letter dated 5 August 2023, Justice G. Anupama Chakravarthy has conveyed her willingness to be transferred to any of the High Courts. She had requested to transfer her to
any High Court near to her parent High  Court. The Collegium considered the request made by her but did not find any merit in the request. Therefore, it reiterated its recommendation dated 3 August 2023 to transfer her to the Patna High Court. 

Justice G. Anupama Chakravarthydid her 5 years law course from N.B.M Law college, Visakhapatnam. She started practicing in the then High court of Andhra Pradesh, after her enrollment in the year 1994. She worked in the office of Senior Advocate Sri T. Niranjan Reddy. She has dealt with cases relating to Civil, Criminal, Writ jurisdictions in the High Court and also attended Civil, Criminal courts apart from Cooperative and other Tribunals. She was appointed as Assistant Government Pleader in the year 2006 and worked as such till 2008. She did her post graduation in law (L.L.M). She was selected as District Judge by direct recruitment and joined service as Additional District Judge on November 2, 2008. She worked as Prl. District Judge, Kareem Nagar from January, 2019 to September, 2020. She worked as Member Secretary, Telangana State Legal Services Authority at Hyderabad till August, 2021. She was Registrar General of Telangana High Court for a brief period, later on worked as Chairperson of Cooperative Tribunal, Hyderabad and as the Chairperson of Telangana State VAT Tribunal, Hyderabad. She also delivered guest lectures in Judicial Academy, Secunderabad and in NALSAR University of Law, Hyderabad. She was elevated and sworn in as a Judge of High Court for the State of Telangana on March 24, 2022.

Justice Nani Tagia did schooling from Govt. Higher Secondary School, Ziro, Lower Subansiri District, Arunachal Pradesh. B.A. from Govt. College, Itanagar (Arunachal University). LL.B. from Campus Law Centre, Delhi University. He was designated as Senior Advocate by the Gauhati High Court on August 4, 2014. He was elevated as Additional Judge of the Gauhati High Court on November 19, 2018. He became permanent judge November 10, 2020.

Supreme Court Collegium recommends Rudra Prakash Mishra, and Ramesh Chand Malviya as Judges in the Patna High Court

The Supreme Court Collegium has recommended the names of Rudra Prakash Mishra, and Ramesh Chand Malviya for appointment as Judges of the Patna High Court. It has issued a resolution dated 17 October 2023 regarding the appointment of these Judicial Officers as Judges in the High Court of Judicature at Patna. 

On 8 May 2023, the Chief Justice of the High Court of Judicature at Patna in consultation with his two senior-most colleagues recommended the elevation of the above judicial officers as Judges of the High Court of Judicature at Patna. The Chief Minister and the Governor of the State of Bihar have concurred with the recommendation.

In order to ascertain the fitness and suitability of the above persons for elevation to the High Court, we have consulted Judges of the Supreme Court who are conversant with the affairs of the High Court of Judicature at Patna. For the purpose of assessing the merit and suitability of these candidates for elevation to the High Court, we have scrutinized and evaluated the material placed on record including the observations made by the Department of Justice in the file as well as the complaints received against the candidates.

With regard to Rudra Prakash Mishra, the Supreme Court Collegium says, "We have considered the opinion of our consultee-colleagues on the suitability of the candidate. One of our consultee-colleagues has opined that the candidate is the seniormost in the seniority of the cadre concerned and can be said to be most deserving as he meets all the criteria for elevation. The inputs provided by the Department of Justice in the file indicate that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. Bearing in mind all the relevant facts and circumstances, the Collegium is of the considered view that Shri Rudra Prakash Mishra is suitable for appointment as a Judge of the High Court."

With regard to Ramesh Chand Malviya, it says, "We have considered the opinion of our consultee-colleagues on the suitability of the candidate. One of our consultee-colleagues has opined that considering the relevant factors, especially the period for which he would be in office, his appointment as a Judge of the Patna High Court can be favourably considered. The inputs provided by the Department of Justice in the file indicate that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. His service record shows that he has mostly been rated as a very-good officer. An observation made in the file that his professional competence is average should not come in the way of his recommendation inasmuch as it is for the judiciary to assess judicial performance of a judicial officer. 

Bearing in mind all the relevant facts and circumstances, the Collegium is of the considered view that both are suitable for appointment as a Judge of the High Court.

Nine parties which supported Bihar caste survey, opposed NPR

The Supreme Court is going to hear the appeal against Bihar caste survey on October 6. The appellants requested the bench led by Justice Sanjiv Khanna not to delete the matter in the aftermath of the publication of the survey.  The appeal was filed in Supreme Court against the verdict upholding Bihar caste survey which did consider it to be in violation of the Supreme Court nine-judge bench’s verdict in the 2017 Justice (Retd.) K.S! Puttaswamy v. Union of India privacy/Aadhaar/NPR case. 

On August 1, 2003, Patna high court had upheld the caste survey being carried out by the Nitish Kumar government in Bihar. A bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy had dismissed all the five petitions filed against it. 

Amidst vociferous demand of Congress MP, Rahul Gandhi for nation-wide caste census, Nitish Kumar, Chief Minister, Bihar announced, "Today, on the auspicious occasion of Gandhi Jayanti, the data of caste based survey conducted in Bihar has been published." He said, "the proposal for caste based enumeration was passed unanimously in the Legislature. It was decided with the consent of all the 9 parties of Bihar Assembly that the state government will conduct caste based survey from its own resources and its approval was given from the Council of Ministers on 02-06-2022. On this basis, the state government has conducted caste based survey from its own resources. Caste based survey not only revealed the castes but also gave information about the economic condition of everyone. On this basis, further action will be taken for the development and upliftment of all sections." He added, "soon a meeting of the same 9 parties of Bihar Assembly will be called regarding the caste based survey conducted in Bihar and they will be informed about the results of the caste based survey." 

The survey counted the 214 castes on Bihar government list. Out of these, 22 were counted in Scheduled Castes, 32 in Scheduled Tribes, 30 in Backward Classes, 113 in Extremely Backward Classes and 7 in Upper Castes. 

It is generally held that the nation-wide headcount of all castes was undertaken in 1931.

The fact is that House Register for non-synchrnous national Census of 1871 had 17 questions. One of them pertained to "Caste or Class". The 1881 synchronous national Census Schedule had 13 questions. One of them was about "Caste, if Hindu, sect, if of other religion". The 1891 Census Schedule had 14 questions. One of them was "Caste or race-Main caste". The 1901 Census Schedule had 16 questions including "Caste of Hindus & Jains, Tribe, or race of others". The 1911 Census Schedule had same set of questions. The 1921 Census Schedule too similar number of questions. It also had "Caste, Tribe or Race" question. The 1931 Census Schedule had 18 questions including "Race, Tribe or Caste".  The 1941 Census Individual Slip had 22 questions including "Race, Tribe or Caste". The 1951 Census Individual Slip had 14+13 questions. The 13 questions were optional. It did not have Caste question. It had a "Special Groups" question.

Responding to the omission of the caste question, Dr. B. R. Ambedkar wrote, " I am sorry, I cannot illustrate these points by reference to facts and figures. The census which is the only source of information on these points fails to help me. The last census omits altogether the caste tables which had been the feature of the Indian census ever since its birth. The Home Minister of the Government of India who is responsible for this omission was of the opinion that if a word does not exist in a dictionary it can be proved that the fact for which the word stands does not exist. One can only pity the petty intelligence of the author" in 1955. During the Census in question, the Union Home Minister was C. Rajagopalachari. Notably, Dr. Ambedkar was the Union Law Minister from 15 August, 1945 till 11 October, 1951 for 4 years, 57 days. He was from a political party named Scheduled Castes Federation. 

The 1961 Census Individual Slip had 13 questions. It included SC/ST question. The 1971 Census Individual Slip had 17 questions including SC/ST question. The 1981 Census Individual Slip (Universal) had 16 questions including SC/ST question. The 1991 Census Individual Slip had 23 questions including SC/ST question. The 2001 Census Household Schedule had 23 questions including SC/ST question. The 2011 Census Household Schedule had 29 questions including SC/ST question.

Bihar's total population is over 13.07 crore. Out of which the Extremely Backward Classes (36 per cent) were the largest social segment followed by the Other Backward Classes at 27.13 per cent.

The Bihar Caste survey reveals that OBCs and EBCs constitute a 63 per cent of the state's total population. The data was released by Vivek Singh, the Development Commissioner. 

The unreserved castes, the so-called "upper castes" comprise 15.52 per cent of the total population. The survey reveals that the state's population is overwhelmingly Hindu, with the majority community comprising 81.99 per cent of the total population, followed by Muslims (17.70 per cent). The total forward caste Muslims: is 4.8 per cent and BC+EBC (Pasmanda) Muslims is 12.6 cent. 

The Christians, Sikhs, Jains and those following other religions and the non-believers have a miniscule presence, together making up for less than one per cent of the total population.

The state cabinet gave its gave consent for the caste survey on June 2, 2022. It allocated an amount of Rs 500 crore for the exercise. The survey was stayed for a while by the Patna High Court which was hearing petitions challenging the survey. The deadline of February 2023 could not be met. The survey had commenced on January 7, 2023. 

Former Congress president Rahul Gandhi said the caste census of Bihar reveals that 84 per cent of people in the state are OBCs, SCs and STs. He said, "Out of 90 secretaries of the central government, only 3 are OBC, who handle only 5 per cent of India's budget. Therefore, it is important to know the caste statistics of India.... "

Former Union Rural Development Minister, Jairam Ramesh welcomed the Bihar initiative and recalled similar earlier surveys in other states like Karnataka by Congress governments. Indian National Congress reiterated its demand that the Union government conduct a national Caste Census at the earliest.  He said, "The UPA-2 government had, in fact, completed this Census but its results were not published by the Modi government. Such a Census has become essential for providing a firmer foundation for social empowerment programmes and for deepening social justice."

Significantly, the next national census was due in 2021 but it has not been conducted as yet. It seems Aadhaar/National Population Register have replaced the census done on an interval of 10 years with unending census which paves the way for unlimited indiscriminate surveillance and an unlimited government at the behest of non-state actors and anonymous donors. Notably, the parties that support the Bihar Caste survey also supported unanimous resolution against the NPR which has genocidal implications akin to the holocaust in Nazi Germany. 

Meanwhile, NPR and Aadhaar database is being converged according to "approved strategy".