High Court takes note of "a slip of pen or a mistake" by Trial Court's judge in a murder case, sets aside error ridden judgement of conviction and sentencing order

In Santosh Yadav vs. The State of Bihar (2024), Patna High Court's Division Bench of Justices Ashutosh Kumar and Jitendra Kumar concluded: "we set aside the judgment of conviction and the order of sentence against the appellants and acquit them of the charges, giving them benefit of doubt. The appellants are in custody. They are directed to be released from jail forthwith, if not wanted or detained in any other case." 

In the case question, one Abhishek Kumar was said to have been murdered at the hands of Santosh Yadav and the Raju Kumar, the appellants and one Dharmendra Yadav on July 2, 2017.The Trial Court examined ten witnesses on behalf of the prosecution and four on behalf of the defence, convicted and sentenced the appellants subsequent to investigation for offences under Sections 302, 386 and 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959 and submission of the charge sheet against the appellants.

Section 27 of the Arms Act deals with the Punishment for using arms. Its Section 1 (1) states that whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment 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. Section 1(2) states that whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. Section 1 (3) states that whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with imprisonment for life, or death and shall also be liable to fine.

Going by the FIR, there was only eye-witness to the occurrence. His statement at the Trial reflects that an attempt has been made to improve upon his initial version. Both he and the deceased were stopped by the appellants and the deceased was shot at by Dharmendra Yadav. He stated before the Trial Court that Dharmendra also threatened the only eye witness that if any attempt is made to save the life of the deceased, he too would be killed. Hearing the sound of firing, the parents and sisters of the only eye witness also arrived. Seeing them come to the P.O., the appellants ran away. With the help of one of the villagers who offered to give his motorcycle, his brother who was still struggling for life was taken to hospital where during the course of treatment he died.  This assertion of the parents and sisters of the only eye witness having come to the P.O. on hearing the sound of firing is an improvement from his initial version in the fardbeyan. His deposition before the Trial Court becomes suspect. It does not appear to be probable that a brother would be allowed to go unscathed even when he had been a witness to the cold-blooded murder of another brother. There was no supervening circumstance for the appellants to have spared the only eye witness, for him to report the matter to the police. If co-convict/Dharmendra had threatened teh only eye witness  and the deceased of dire consequences in case they did not pay up Rs. 50,000/- as ransom money or protection money, the matter ought to have been reported. There is nothing on record to indicate any reason for which the enmity could have been avenged by killing one of the brothers. When confronted with specific question, the eye witness admitted that except for his own family members, no independent person has been brought to the witness-stand to support the prosecution case. The bench also noted that the Police Officer, who scribed the fardbeyan viz., Sandeep Kumar Jha was neither examined nor is there any explanation on record for his non-examination. According to the eye witness the deceased was taken to hospital by a person of the locality, who acted as a samaritan. The Court observed that it was all the more necessary for him to be examined for unraveling the truth. For the reason that the deceased, despite receiving such injury in his neck was still struggling for life and was taken to hospital where treatment was afforded to him. This story does not appear to be correct or at least this version has not been proved at all. The post-mortem report as also the deposition of Dr. Rajiv Ranjan (P.W. 4), who conducted the post-mortem on the deceased concluded that there was one minor/simple injury on the forehead of the deceased just above the eye-brow. The cause of death obviously was held to be hemorrhage and shock because of the injuries. 

The Court reached its conclusion because "It is one of the most improperly contested cases, leaving many loopholes and crevices in the prosecution version." 

The Division Bench observed: "The three appellants have been convicted under Sections 302/24 of the IPC, but very curiously and wrongly have been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- for the offence under Section 302/34 of the Indian Penal Code by the learned Additional District & Sessions Judge-V, Bhagalpur in Sessions Trial No. 973 of 2017/Trial No. 213 of 2022 corresponding to Nathnagar (Lalmatia) P.S. Case No. 306 of 2017 vide judgment of conviction and order of sentence dated 23.01.2023/27.01.2023. Precisely for this reason, while admitting these two appeals, notices were issued to the appellants for enhancement of the sentence."

The Trial Court judge forgot to read about the quantum of punishment under Section 302 of the IPC. Section 302 reads: "Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine." The award of 10 years of punishment is contrary to law. The High Court took a lenient view of the Trial judge's blunder and set it right without seeking any explanation from the judge in question although the trial court chose to ignore the law and the verdict of the Supreme Court. In The State of Madhya Pradesh vs Nandu @ Nandua, the bench of Justices M.R. Shah and Krishna Murari has endorsed the view that "once an accused is held to be guilty for the offence punishable under Section 302 IPC, the minimum sentence, which is imposable would be the imprisonment for life and, therefore, any punishment/sentence less than the imprisonment for life shall be contrary to Section 302 of the IPC." Therefore the Trial Court had "committed a very serious error in reducing the sentence". 

In its judgment, the Division Bench observed: "It is really surprising as to how after convicting the appellants, they have been sentenced to undergo rigorous imprisonment for 10 years only. It could be a slip of pen or a mistake. On this score alone, we could have set aside the judgment and order of conviction and sentence and remitted the matter to the Trial Court to write out a fresh sentence. However, that procedure would have taken long and therefore after issuance of notice to the appellants for enhancement of the sentence in case they are found guilty under Section 302 of the Indian Penal Code, directions were issued to the Registry for placing the appeals for final hearing after preparation of the paper book" for final hearing. The judgement was authored by Justice Ashutosh Kumar.   

Initially, the appellant's case was represented by Advocate Manoj Kumar Jha before a a Single Judge Bench. The bench had also detected the blunder of the Trial Court judge. Rajendra Narain, Senior Advocate and Advocate Jha represented the appellant before the Division Bench. 

 

Indian Constitution empowers States to sub-classify Scheduled Castes (SCs) for granting reservations: Supreme Court's 7-judge Constitution Bench

On September 24, 2024, the Supreme Court's 7-judge Constitution Bench of Chief Justice Dr. D.Y. Chandrachud, Justices B.R. Gavai, Vikram Nath, Bela M. Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Sharma dismissed a batch of 33 review petitions filed against its judgment dated August 1, 2024 in The State of Punjab vs Davinder Singh (2024). The judgement had held that States are empowered to make sub-classifications within the Scheduled Castes (SCs) for granting reservations under the Constitution of India.  Upon perusing the papers, it dismissed the review petitions. The dismissal order reads: "Applications for listing the review petitions in open Court are rejected....Having perused the review petitions, there is no error apparent on the face of the record. No case for review under Order XLVII Rule 1 of the Supreme Court Rules 2013 has been established. The review petitions are, therefore, dismissed."

The decision in The State of Punjab vs Davinder Singh (2024) has been deemed one of the 28 landmark judgements of the Supreme Court delivered in 2024. The Court dealt with the subject of States' power to sub-classify Scheduled Castes for providing reservation in its 565 page long judgement of August 1, 2024. The 7-judge bench adjudicated on the questions like: (i) Whether the sub-classification of SCs for providing reservation is allowed under the Constitution of India. (ii) Whether the States have the power under Articles 15 and 16 of the Constitution to sub-classify SCs. It concluded that it was permissible for States to sub-classify SCs when providing reservations.

The judgement refers to the reports of 21 Committees and Commissions set up by different States including the report of Bihar's Mungeri Lal Commission (1976), identified 128 communities as backward and 94 of them as most backward. It recommended 20% reservation in Government services and 24% in professional institutions. It also refers to the report of Bihar's Mahadalit Commission (2007) identified the castes within the scheduled castes that lagged behind. The Commission recommended inclusion of 18 castes as extremely weaker castes from amongst the list of scheduled castes. It refers to Court's decisions in Budhan Choudhry v. State of Bihar (1955) 1 SCR 1045, Bengal Immunity Company Ltd v. State of Bihar, (1955) SCC OnLine SC 2, Bharat Coking Coal Ltd. vs. State of Bihar and Others (1990) and Ashoka Kumar Thakur vs. State of Bihar (1995) among other decisions. It also refers to The Bihar Reservation of Vacancies in Post and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995. In Bihar, Scheduled Castes include Chamar, Halalkhor, Mochi, Chaupal, Hari, Musahar, Dhobi, Kanjar, Nat, Dusadh, Kurariar, Pasi, Dom, Lalbegi, Bauri, Bhumij, Rajwar, Bhogta, Ghasi, Turi, Bhuiya and Pan.

Article 341(1) of the Constitution of India grants the President the power to notify the castes, races or tribes which shall be deemed to be SCs in a State or a Union Territory. Article 341(2) states that Parliament can include or exclude any caste, race, or tribe from the list of SCs in the President’s notification. Various laws and schemes provide reservations in public employment to individuals from SCs. 

Section 4(5) of the Punjab Act  provided that  fifty percent of the vacancies of the SC reservation shall be offered on first preference to Balmikis and Mazhabi Sikhs amongst the SCs. On March 29, 2010, the High Court of Punjab declared Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act 2006 unconstitutional. It relied on Supreme Court's decision in EV Chinnaiah v. State of Andhra Pradesh (2004 INSC 644) wherein a 5-judge Constitution Bench of the Supreme Court held that sub-classification amongst SCs by states is unconstitutional because: (i) SCs constitute a homogeneous class; (ii) sub-classifying them would amount to ‘tinkering’ with the Presidential list under Article 341 of the Constitution, which only Parliament can do; and (iii) the rationale of the Nine-Judge Bench in Indra Sawhney v. Union of India (1996 INSC 1273), which permitted sub-classification of the Other Backward Classes (“OBCs”), does not apply to SCs.

On August 20, 2014, a 3-judge Bench of the Supreme Court adjudicating the validity of the Punjab Act referred the correctness of decision in EV Chinnaiah case for consideration by a larger Bench. On August 27, 2020, in the State of Punjab v. Davinder Singh (2020 INSC 512), a 5-judge Constitution Bench held that the judgment in E.V. Chinnaiah case requires reconsideration by a larger Bench of 7-judges. A 7-judges Bench was constituted which heard several appeals which challenged similar sub-classifications made in reservation policies of the States of Haryana and Tamil Nadu along with The State of Punjab vs Davinder Singh (2024).

The 7-judge Bench, by a 6:1 majority, held that it was permissible for states to sub-classify SCs when providing reservations. Chief Justice Chandrachud authored a plurality opinion for himself and Justice Misra. Justice Gavai, Justice Mittal, Justice Nath and Justice Sharma each authored separate concurring opinions. Justice Bela Trivedi wrote a dissenting judgment which found sub-classification to be impermissible under the Constitution.

The majority held that the judgment of the 9-Judge Bench in Indra Sawhney case did not create any bar on sub-classification of SCs because sub-classification of SCs was not an issue in that case. It ruled that Indra Sawhney case in fact utilised the principle of sub-classification in the context of OBCs to ensure meaningful and substantive equality was achieved where the various constituents within a caste group were not comparable.

In her dissenting opinion, Justice Trivedi found that the Court in Indra Sawhney case specifically excluded SCs from the scope of its judgment, and thus the decision could not be interpreted as permitting sub-classification.    

The majority traced the observations in E.V. Chinnaiah case that SCs are a homogenous class to an earlier decision in State of Kerala v. N. M. Thomas (1975 INSC 224) The majority observed that the decision in N.M. Thomas case merely observed that SCs once notified by the President cumulatively constituted a distinct “class” (vis-a-vis the general category individuals). However, the decision in N.M. Thomas case did not say that SCs are a homogenous class which can not be further sub-classified.  

The majority observed that Article 341 states that once a caste is notified as an SC by the President, such a caste shall be “deemed” to be an SC. The inclusion of a caste within the SC category is only to demarcate them from other castes which are not included in the category. This inclusion does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified. The inclusion does not mean the existence or non-existence of internal differences among the SCs. It only means that each of the groups that are included in the list will receive the benefits that the Constitution provides to the SCs as a class.

The majority observed that Article 341(2) grants Parliament the power to include or exclude groups from the President’s list. This is the power that has been reserved for Parliament and denied to the States. A State Legislature cannot add or remove groups from the President’s List of SCs. However, sub-classification within the SCs for reservation does not include or exclude any caste or group from the President’s List of SCs under Article 341. Sub-classification does not lead to exclusion of any caste which is already in the President’s List. Therefore, as long as a State that does not include communities not in the President’s list of SCs or exclude communities that the President has designated as SCs, the State does not violate Article 341(2) when sub-classifying.

The majority held that historical evidence confirms that inequality exists within the SCs. Therefore, there is an intelligible way to differentiate between various castes within the SCs. The majority held that  if  the SCs are not similarly situated then states can not be prevented under Articles 15, 16 and 341 from applying the principle of sub-classification amongst the SCs. 

Justice Trivedi’s dissenting opinion ruled that although various castes had experienced differing levels of historical discrimination, once they were included in the Presidential List under Article 341, they became a homogeneous group. As a result, any form of sub-classification within this group was not permissible. She also concluded that the states lacked the legislative authority to create such sub-classifications, as neither the State List nor the Concurrent List of the Seventh Schedule, which lays out the State’s lawmaking powers granted them the power to do so.

Justice Bela Trivedi in her dissenting opinion stated that the SC/ST groups are already categorized as a 'backward class of citizens’ by the President’s notification. Consequently, the concept of excluding the creamy layer cannot be applied to them.

Justice Trivedi in her dissenting opinion ruled that the 3-judge Bench’s decision to refer E.V. Chinnaiah case to a larger Bench was inappropriate and not in consonance with the doctrines of precedent and judicial discipline She also held that the referral lacked sufficient justification for doubting the reasoning in E.V. Chinnaiah case.

The majority found that the purpose of the reservation clause in the Article 16(4) of the  Constitution is to remedy the inadequate representation in public services of certain “classes” which have been inadequately represented because of their backwardness. The question is not whether certain sections of society are a numerical minority in the state administration, but whether groups are inadequately represented because of their backwardness.  Further, meaningful representation would not be fulfilled by SCs occupying numerous lower grade posts, but must be assessed across all posts, including senior posts.

The majority held that the States can identify inter-se backwardness amongst SCs through empirical data based on inadequacy of effective representation. However, it must be proved that inadequacy of effective representation of a caste is because of its social backwardness. The State must prove that the group/caste carved out from the larger group of SCs is more disadvantaged and inadequately represented. The decision of the state for sub-classification would be subject to judicial review.

The majority cautioned the States that they can not adopt a policy of reservation which would allocate seats separately for each caste. It reasoned that this is because the social backwardness suffered by each caste is not so distinct to give reserved seats to each caste separately. It ruled that two castes will have to be grouped together if their social backwardness is comparable.

A majority of the Court held that certain castes have been reaping benefits of reservation more than others. Therefore, States must evolve a policy to exclude the creamy layer of the SC/ST groups from the benefit of reservation. It also held that the creamy layer principle also applies to SCs. However, the criteria should be different from that which is used for the OBC reservation. 

 

Bihar Govt changed rules of the game after game had been played and results of game were awaited, it is unacceptable, impermissible: Supreme Court

In Shashi Bhushan Prasad Singh vs. The State of Bihar and Others, the Division Bench of Justices Bela Trivedi and Satish Chandra Sharma passed the final order on October 4, 2024. The Court observed: "the State action of scrapping the entire selection process is not permissible. In view of the peculiar circumstances of this case, particularly the prolonged pendency leading to huge number of vacant posts that hinder the Government’s functioning, this Court finds it appropriate for the State/BTSC to proceed with the Fresh Select List submitted in compliance with the order dated 19.04.2022 in CWJC No. 7312/2021 which has attained finality, as also taking into consideration as far as possible, the interest of the candidates who were found successful." 

Senior Counsels for the Appellants, Rajeev Dhavan, Ranjit Kumar and Meenakshi Arora contended that the writ petitioners, having knowingly participated in the selection process under the advertisement were bound by the doctrine of acquiescence and therefore, could not have challenged the eligibility criteria post-facto. They relied on Court's decision in Punjab National Bank vs. Anit Kumar Das (2021) 12 SCC 80 and The Chairman SBI & Anr. vs. M.J. James (2022) 2 SCC 301. They submitted that the cancellation of the entire selection process after its completion and preparation of the Final Select List, is unjustified and amounts to changing the rules of the game after the declaration of results, which is impermissible. The appellants, who emerged successful after the due process of selection which was carried out as per the Advertisement, have a vested right to be appointed and are instead being made to suffer though no fault of their own. It was also contended that the decision taken by the State Government and approved by the High Court amounts to arbitrary action as it fails to specify the concern/anomaly with Rule 9(1)(iii) which necessitated the cancellation of the entire process. The Supreme Court agreed with their submissions.

It all began with the issuance of Advertisement No. 01/2019 dated March 8, 2019 by the Bihar Technical Service Commission (BTSC) inviting applications for 6,379 vacancies to the post of Junior Engineer across various state departments.  

In this case relating to selection and appointment to the post of Junior Engineer, wherein advertisement was issued on March 8, 2019, Patna High Court's Division Bench of Justices P. B. Bajanthri and Arun Kumar Jha noticed certain errors in the Rules governing the post of Junior Engineer. The State Government decided to cancel the process of recruitment to the post of Junior Engineer with reference to advertisement and proposed to issue a fresh or amendment of Rules while rectifying certain errors which have crept in the existing Rules. The Court inferred that the prayer of 144 petitioners does not survive for consideration because of the proposed amendment. Its final order dated February 16, 2023 reads: "State is permitted to carry out necessary amendment and proceed afresh to advertise for the post of Junior Engineer." The High Court's judgement was authored by Justice Bajanthri. 

The writ petitioners were the unsuccessful candidates in the Recruitment Process conducted pursuant to the Advertisement for the post of Junior Engineer (Civil), had challenged the vires of Rule 9(1)(ii) of the Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment (Amendment) Rules 2017, published vide notification dated November 7, 2017, prescribing technical qualification eligibility for selection/appointment to the technical post in the State of Bihar. Notably, the Rule 9(1)(iii) of the Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment Rules, 2015 was amended in 2017. 

The Supreme Court observed that this amendment was "prima facie contrary to the decision of this Court" in Bharathidasan University & Anr. vs. AICTE & Ors. 2001 (8) SCC 676.   

Subsequently, the successful candidates in the said Recruitment Process approached the Supreme Court. The judgement of the Division Bench of the Court records that prior to the filing of CWJC No. 3411/2022 in which Justice Bajanthri authored the order, the High Court was already hearing several analogous writs challenging different provisions of the Rules as applicable to the selection process under the Advertisement. Accordingly, vide order dated May 2, 2019 passed in CWJC No. 9887/2019, the BTSC was permitted to continue the selection process, with the results to be kept in a sealed cover, pending the outcome of the proceedings. This order was later modified vide order dated 06.12.2019 in CWJC No. 21651/2018 whereby the High Court allowed the selection process to be completed but directed that all orders of appointments must state that appointments are subject to the outcome of the writ petitions and therefore, the selected candidates cannot claim any equity. Accordingly, on 02.04.2022, the BTSC published its selection list for the posts advertised under the Advertisement and the selected candidates were also allotted to specific departments. 

The Supreme Court's judgement records: "During the present proceedings, vide order dated 10.09.2024, this Court sought information regarding the Final Select List from the State Government and the same was produced before this Court in sealed cover." It also records that "despite the preparation of the Final Select List which signals the conclusion of the appointment process, the State Government seeks to scrap the entire process and undertake a fresh appointment process under the New Rules. In the considered opinion of this Court, this amounts to effectively changing the rules of the game after the game was played which is impermissible and deprives the candidates of their legitimate right of consideration under the previous Rules."

The Supreme Court observes: "The High Court in the impugned order has abruptly and without assigning reasons and without adjudicating any issues involved in the writ petitions, disposed of the same, recording the statement made by the learned counsel for the State, and permitted the State to amend Rules in question. Since, the entire recruitment process was concluded as per the extant Rules till the selection list was declared on 02.04.2022, which has not been specifically set aside by the High Court, and since the AICTE has also continued its stand that its approval is not necessary for the private institutions, and since the order dated 19.04.2022 passed in CWJC No. 7312/2021 has attained finality, in our opinion, the interest of justice would be met if the State/Commission is directed to prepare a fresh select list of meritorious candidates in respect of the Advertisement dated 08.03.2019, keeping in view the above facts and keeping in view that no appointments to the post of Junior Engineer (Civil) have been made since last more than ten years. Hence, it is required to be directed that a fresh selection list for the vacancies advertised in the Advertisement dated 08.03.2019 be prepared of the meritorious candidates, considering the above observations and in compliance with the order dated 19.04.2022 passed by the High Court in CWJC No. 7312/2021 as expedient as possible and preferably within three months of this order." 

The Division of the Supreme Court relied on the three-judge bench decision of the Court in K. Manjusree vs. State of Andhra Pradesh & Anr. (2008) 3 SCC 512 wherein the Court, relying on previous decisions, explicitly held that "introducing new requirements into the selection process after the entire selection process was completed amounted to changing the rules of the game after the game was played."

It also relied on Court's decision in Maharashtra SRTC v. Rajendra Bhimrao Mandve [(2001) 10 SCC 51 : 2002 SCC (L&S) 720], wherein the Court observed that “the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced”. 

In the Bihar case, the position is much more serious because "not only the rules of the game were changed, but they were changed after the game had been played and the results of the game were being awaited. That is unacceptable and impermissible.”

In its 19 page long judgement, the Court directed that "the Fresh Select List must be appropriately revised in the following manner:

(i) The Fresh Select List be prepared in view of order dated 19.04.2022 passed by the High Court in CWJC No. 7312/2021.  

(ii) The Fresh Select List shall also include as far as possible those meritorious candidates who were otherwise eligible but were declared ineligible solely on account of the 2017 amendment to the Rules i.e., on account of their institute not being recognised by the AICTE, and all similarly placed successful candidates.

(iii) The BTSC is directed to prepare the Revised Select List within 3 months of this Order and the State Government is directed to act upon the Revised Select List submitted by the Commission within a period of 30 days thereafter." The judgement was authored by Justice Sharma.

Supreme Court yet to pronounce verdict on constitutionality of CBI, and CBI's challenge against Madras High Court's verdict on non-compliance with CBI Manual

“When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”
-Thomas Jefferson, the principal author of the Declaration of Independence (1776) and the third President of the United States (1801–1809) quoted by the Division Bench of Gauhati High Court

The Supreme Court's bench of Justices Abhay S Oka and Justice Augustine George Masih heard a quashing petition related to a CBI led corruption case quashed by the Madras High Court's Dr. Justice T. Mathivanana in the State through the Inspector of Police CBI vs. S.Murali Mohan on October 1, 2024. Although two days have passed since the hearing but no order has not been uploaded on the Supreme Court's website as of 4.46 PM on October 3, 2024. A careful reading of Justice Mathivanana's judgement shows that its reasoning is unambiguous and impeccable. CBI has failed to comply with the procedure laid down in the CBI Manual.    

Notably, Supreme Court is yet to decide the constitutionality of CBI, which claims to be exercising functions and powers of police under the Delhi Special Police Establishment (DSPE) Act, 1946. In a reasoned judgement Gauhati High Court's Division Bench has concluded:" we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946. 180. We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted. We further set aside and quash the impugned charge-sheet, submitted by the CBI, against the appellant and, consequently, the trial, which rests on the impugned charge-sheet, shall stand set aside and quashed" on November 6, 2011. 

Almost eleven years have passed since the "un-reasoned order of stay" by the Supreme Court on this "reasoned judgment" from the Gauhati High Court which declared its formation to be "unconstitutional". Hearing the matter at his residence on a Saturday (November 9, 2013), Justice P Sathasivam, the 40th Chief Justice of India (2013 to 2014). Chief Justice had passed an "un-reasoned order" to stay the "reasoned judgement" of Gauhati High Court without hearing both the parties. Notices were also issued to all parties involved in the case. The order reads: "Issue notice returnable on 6th December, 2013....In the meantime, there shall be stay of operation of the final judgment and impugned order dated 06.11.2013 passed by the Gauhati High Court in Writ Appeal No. 119 of 2008 in Writ Petition (Civil) No. 6877 of 2005." The stay was reiterated by an order dated December 6, 2013 by a 3-Judge bench of the Chief Justice and Ranjana Prakash Desai and Ranjan Gogoi (who did not participate).  

40th Chief Justice of India Sathasivam retired without deciding the constitutionality of the CBI. After retirement, Sathasivam was appointed the 21st Governor of Kerala from September 5, 2014 for five years. 

In February 2019, Justice I.A. Ansari, former Chief Justice of Patna High Court and the author of the Gauhati High Court's verdict observed: “The CBI was never constituted under any statute, but under an executive order of the Union Home Ministry in the year 1963, and that too, with no backing from the Constitution.” He added, “the very constitutionality of the CBI is questionable, and this question has to be answered by the Supreme Court”. So far the case has been listed for hearing only once on June 26, 2019 before the vacation bench of Justices Sanjiv Khanna and B.R. Gavai. The order reads:"List after vacation." Several vacations have passed but the case regarding the unconstitutionality of the CBI is yet to be decided through a reasoned order.

Notably, 50th Chief Justice of India is all set to retire on November 10, 2024 possibly without deciding the constitutionality of CBI.

Meanwhile, the Supreme Court's bench heard CBI's challenge to an order dated May 15, 2017 passed by Dr. Justice T. Mathivanana, a Single Judge of the High Court of Judicature at Madras on October 1, 2024. The case made out by the petitioner is that the Judge pronounced a one line order in the Court on May 15, 2017. The petitioner applied for grant of a certified copy of the order on the same day. The petitioner submitted that as per the oral information from the Registry of the Madras High Court, the Judge had not issued a detailed order. It was pointed out in the Special Leave Petition that the Judge demitted the office on May 26, 2017. The case made out in the Special Leave Petition is that a certified copy of the impugned judgment was furnished to the petitioner on July 26, 2017. The case made out in the Special Leave Petition is that the detailed reasoned order of the Judge was not available till the date on which he demitted the office.

The Court's order records that another contention has been raised on the basis of a letter dated May 11, 2018 addressed by the Special Public Prosecutor of CBI, Chennai to the Joint Director of CBI, Chennai Zone, Chennai. The said letter records that as per the directions  of the Chief Justice of the Madras High Court, 9 cases, which were heard by the said Judge, were ordered to be heard afresh. Though the letter does not mention the case number of the present case, the submission of the senior counsel appearing for the petitioner is that the present case is also included in the list of 9 cases. The senior counsel appearing for the respondents invited Court's attention to a query made by the respondents under the Right to Information Act, 2005 on December 17, 2018 seeking information about the date of the detailed order in Criminal O.P. No.2245/2017 which is the case subject-matter of this Special Leave Petition. The reply furnished by the Registrar (Administration)/PIO records that the correct date of the order passed in the said case is May 15, 2017.

The dispute raised by the petitioner is not about the date mentioned on the reasoned judgment. The contention of the petitioner is that on May 15, 2017, only a single line order was pronounced by the Judge and till the date on which the Judge demitted the office, the reasoned judgment was not available.

After hearing these submissions, the Court passed an order. It reads: "We, therefore, direct the Registrar General of the High Court of Judicature at Madras at Chennai to furnish following information: (a) What is the date on which the detailed judgment/order dated 15th May, 2017 was received by the Registry from the Office/Chamber of the learned Single Judge; (b) When the detailed judgment/order was uploaded on the website of the High Court; and (c) Whether there was any administrative direction issued by the Hon’ble Chief Justice of the Madras High Court at Chennai for de novo hearing of 09 cases heard by the learned Single Judge and, if such a direction was issued, whether the case subject-matter of this Special Leave Petition has been included in the list of 09 cases." 

It also directed that the Registrar (Judicial) of the Supreme Court to forward a copy of its order to the Registrar General of the High Court of Judicature at Madras at Chennai. The Registrar General was requested to submit a report to this Court by the end of this month. Only for the purposes of considering the report of the Registrar General, the Special Leave Petition was listed under the caption of “Orders/Directions” on the top of the cause list on October 1, 2024. The case was filed on August 11, 2018. It was verified on October 22, 2018 and registered on October 31, 2018. 

Prior to this in S.Murali Mohan and S.Srikala vs. State by The Inspector of Police CBI/ACB/Chennai before the Madras High Court, the petitioners had invoked the provisions of Section 482 of the Code of Criminal Procedure to quash the criminal proceedings of the case which is registered against them on the file of the SP/Inspector of Police, CBI, ACB, Chennai. S.Murali Mohan, the first petitioner is an IRS Officer belonging to 1999 batch in the Income Tax Department and as Additional Commissioner of Income Tax, Range CR-3 Chennai. S.Srikala, the second petitioner is his wife. It is alleged that during the check period i.e., from 01.01.2002 to 30.08.2014, Mohan amassed assets and pecuniary resources to the tune of Rs.3,28,00,029/- in his name as well as in the name of his wife and also in the name of other family members, which is disproportionate to his known and lawful source of income, for which he has not satisfactorily accounted. According to the FIR, the assets in their names prima facie discloses the commission of offences punishable under Sections 120-B IPC r/w.Section 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act,
1988. 

In its 74 page long judgement dated May 15, 2017,  Madras High Court observed: "This Court would like to place it on record that this is a vexation litigation which amounts to abuse of process of Court....This Court, on perusal of the entire allegations made against the petitioners in the FIR is of considered opinion that all the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners. Finally, the criminal proceedings initiated by the respondent is manifestly attended with malafide with an
ulterior motive for wreaking vengeance on the petitioners with a view to spite them due to private and personal grudge." The judgement was authored by Dr. Justice T. Mathivanan. 

The judgement records that the source of information regarding corruption by the petitioners was received on December 20, 2016 at 11.00 AM. "The case was registered on the very same date and within half an hour of its registration i.e. at 11.30 AM, the FIR was dispatched to the learned Principal Special Judge for CBI Cases, Chennai. It is thus made clear that the procedure enunciated in the CBI Manual has not been followed." Chapters 8 and 9 of the CBI Manual are relevant in this regard. It also noted that "Admittedly no preliminary enquiry was conducted in this case to ascertain the genuineness of the source information."

Although the case in question from the pre July 1, 2024 era, it is noteworthy that Section 173 (i) and (ii) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has made preliminary enquiry mandatory. It states: "on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,—(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or (ii) proceed with investigation when there exists a prima facie case." The spirit of this provision is already there in the CBI Manual which does not seem to have been adhered to.

Justice Mathivanan relied on Supreme Court's decision in the State of Haryana and Ors. Vs. Bhajan Lal and Ors. [1992 Supp. (1) SCC 335], to infer that "the allegations made in the FIR, even their taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the petitioners." He concluded: "Keeping in view of the above fact, this Court is of considered view that the criminal proceedings in FIR bearing No. RC MA1 2016 A 0045, on the file of the SP/Inspector of Police, CBI, ACB, Chennai, is deserved to be quashed by exercising inherent jurisdiction of this Court conferred under Section 482 Cr.P.C. In the result, the criminal original petition is allowed and the FIR bearing No. RC MA1 2016 A 0045 on the file of the SP/Inspector of Police, CBI, ACB, Chennai is quashed. The assets seized including the freezed Bank accounts of the petitioners shall be released forthwith by the respondent." The High Court also observed: "This Court has gone through the records and is of the considered opinion that the second petitioner had recognisable independent income and she had been regularly complying with all the statutory requirements."

Isn't there a logical compulsion to decide the constitutionality of CBI before deciding whether or CBI's challenge to a judgement of Madras High Court? Why should the latter get priority over the former?

High Court endorses decision of Additional Sessions Judge-III, Siwan in a murder case

On October 1, 2024, Patna High Court's Division Bench of Justices Ashutosh  Kumar and Jitendra Kumar approved the decision of the Additional Sessions Judge-III, Siwan in a murder case of February 2017. The Trial Court had found three accused, namely, Deeplal Rai, Anil Rai and Krishna Rai guilty for the offence punishable under Sections 341/34 and 302/34 of the Indian Penal Code (IPC). They were sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- each under Section 302 of the IPC and simple imprisonment for one month under Section 341 of the IPC. Both the sentences have been directed to run concurrently. The Trial Court had also recommended Siwan District Legal Services Authority to pay compensation to the victims of the crime, namely, Kunti Devi, Pratima Kumari and Sita Kumari as per Bihar Victim Compensation Scheme, 2014 under Code of Criminal Procedure (Cr.PC). There were four accused in the case but the case of Shiv Kumar, one of the accused was separated for conducting inquiry regarding his juvenility.

In Diplal Rai  vs. The State of Bihar, the High Court observed that the Trial Court was right in directing Siwan District Legal Services Authority to pay compensation to the victim of the crime becuase the commission of murder has been well proved by the evidence on record. The deceased, Dularchand Rai was done to death by injury caused by knife and he is survived by his widow Kanti Devi and his two daughters, Pratima Kumari and Sita Kumari. There is no dispute that the widow/informant Kanti Devi and two daughters Pratima Kumari and Sita Kumari are victims in terms of Section 2 (wa) of the Code of Criminal Procedure (Cr. PC), as per which the victim includes legal heirs of the deceased. The judgement was authored by Justice Jitendra Kumar.

Section 2 (wa)  reads: "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir. This definition was inserted by the Code of Criminal Procedure (Amendment) Act, 2008.

The High Court observed: "The widow has lost not only her husband but even her dependency on him. The two daughters have also lost their father losing not only love and affection of their father but even their dependency upon him. Hence, the widow and her two daughters deserve succor from the State, who has failed to protect the fundamental right of the deceased to live. Accordingly, all the victims are entitled to get compensation as per Bihar Victim Compensation Scheme, 2014 as made under Section 357A Cr.PC." 

Section 357 A reads: "Victim compensation scheme.-- (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit." 

The High Court referred to some principles of appreciation of evidence before concluding its judgment. It is settled principle of law that the evidence of any relative or family members cannot be discarded only on account of his or her relationship with the deceased. The evidence of such witnesses has to be weighed on the touchstone of truth and at most the court is required to take care and caution while appreciating their evidence. In this regard, one may refer to the following judicial precedents:
(i) Abhishek Sharma Vs. State (NCT of Delhi), 2023 SCC OnLine SC 1358;
(ii) Yogesh Singh Vs Mahabeer Singh & Ors; (2017) 11 SCC 195;
(iii) Mano Dutt and another Vs. State of UP;(2012) 4 SCC 79;
(iv) Daulatram Vs. State of Chhattisgarh, 2009 (1) JIJ 1;
(v) State Vs. Saravanan, (AIR 2009 SC 152);
(vi) State of U.P. v. Kishanpal, (2008) 16 SCC 73;
(vii) Namdeo Vs. State of Maharashtra,(2007) 14 SCC 150;
(viii) State of A.P. Vs. S. Rayappa,. (2006) 4 SCC 512;
(ix) Pulicherla Nagaraju Vs. State of A.P., (2006) 11 SCC 444;
(x) Harbans Kaur Vs. State of Haryana; (2005) 9 SCC 195;
(xi) Hari Obula Reddy and Ors. Vs. State of AP, (1981) 3 SCC 675
(xii) Piara Singh and Ors. Vs. State of Punjab, (1977) 4 SCC 452 

It is also settled principle of law that prosecution case cannot be thrown out or doubted on the sole ground that the independent witnesses have not been examined because as per experience, civilized people are generally insensitive when a crime is committed in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. The Court is therefore required to appreciate the evidence of even related witnesses on its own merit, instead of doubting the prosecution case for want of independent witnesses. (Refer to Appabhai and another Vs. State of Gujarat, 1988 Supp SCC 241).

This is also settled principle of law that minor discrepancies, contradictions, improvements, embellishments or omissions on trivial matters not going to the root of the prosecution case should not be given undue importance. But if they relate to material particulars of the prosecution case, the testimony of such witnesses is liable to be discarded. In this regard, one may refer to the following judicial precedents:
(i) C. Muniappan & others Vs. State of T.N.,(2010) 9 SCC 567;
(ii) State of U.P. Vs. Krishan Master, (AIR 2010 SC 3071);
(iii) Appabhai & Anr. Vs. State of Gujrat, AIR 1988 SC 696;
(iv)Shivaji S. Bobade & Anr Vs. State Of Maharashtra, (1973 AIR 2622);
(v) Sanjay Kumar Vs. State of Bihar, 2019 SCC OnLine Pat 1077;
(vi) State of Madhya Pradesh Vs. Dal Singh, (2013) 14 SCC 159;
(vii) Smt. Shamim Vs. State (GNCT of Delhi), 2018 (4) PLJR 160;
(viii) S. Govidaarju Vs. State of Karnataka, 2013 (10) SCALE 454
(ix) Narotam Singh vs. State Of Punjab And Anr. (AIR 1978 SC 1542)
(x) Leela Ram Vs. State of Haryana, (1999) 9 SCC 525;
(xi) Subal Ghorai and Ors. Vs. State of WB, (2013) 4 SCC 607;
(xii) Yogesh Singh Vs. Mahabeer Singh & Ors., (2017) 11 SCC 195. 

In its 27 page long verdict, the High Court ordered that if Siwan District Legal Services Authority has not paid the compensation to the victims, "it is directed to pay the compensation to the victims without losing further time within two months from the receipt of this order. Office is directed to send a copy of this order to Siwan District Legal Services Authority also."

Supreme Court all set to end persisting caste based discrimination in the prisons

A writ petition was filed by Sukanya Shantha on December 7, 2023 in the Supreme Court regarding caste discrimination in the prisons across the country. It was registered on December 12, 2023 and verified on December 23, 2023. The matter was listed for hearing for occasions and after final hearing, it was reserved for judgement on July 10, 2024.

In its first order dated January 3, 2024, the Court's order  took note of an article written by the petitioner, titled “From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System” was published on December 10, 2020. The article has highlighted caste based discrimination which continues to persist in the prisons in the country with respect to: (i) The division of manual labour; (ii) Segregation of barracks; and (iii) Provisions which discriminate against prisoners belonging to denotified tribes and “habitual offenders” in the State Prison Manuals.

As per the Houselisting and Housing Census, 2011, there were 7.94 lakh latrines in the country from which night soil was removed by humans. But the data of  persons still engaged in manual scavenging is not available.  The 2021 Census has not been conducted as yet. The next Census is likely to include Caste in its enumeration as was done till 1931.

Notably, manual scavenging was outlawed in India three decades ago. The Protection of Civil Rights Act, 1955 was enacted to abolish the practice of untouchability and social disabilities arising out of it against members of the Scheduled Castes. It was amended in 1977. Under the revised Act, the practice of untouchability was made both cognizable and non-compoundable offence and stricter punishment was provided for the offenders.

The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 prohibited employment of manual scavengers as well as construction or continuance of dry latrines and for the regulation of construction and maintenance of water sealed latrines and matters connected therewith. The State Assemblies of Orissa, Punjab, Assam, Haryana, Bihar and Gujarat have also adopted the Act. The Act provides for a penalty of imprisonment up to one year with or without fine which may extend to Rs.2000/- or both in case of failure or contravention of the Act. Further, in case of repeated contraventions, fine to the extent of Rs.100/- per day for the entire period of contravention is also provided. 

The "Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012" was introduced in Lok Sabha on September 3, 2012. It was referred to the Parliamentary Standing Committee on Social Justice and Empowerment. The Standing Committee presented its report in the Lok Sabha and tabled it in the Rajya Sabha on March 4, 2013. One of its controversial recommendations was that 'Aadhaar' should be linked to the rehabilitation schemes unmindful of the fact that the its constitutionality was pending before the Supreme Court. 

The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 came into force December 6, 2013. This law was aimed at the prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families, and for matters connected therewith or incidental thereto. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 were notified on December 12, 2013. The law was amended to recognise the use of men for cleaning of sewers and septic tanks as “manual scavenging”.

According to Section 2 (g) of the Act,  "manual scavenger" means a person engaged or employed, at thecommencement of this Act or at any time thereafter, by an individual or a local authorityor an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwisehandling in any manner, human excreta in an insanitary latrine or in an open drain or pitinto which the human excreta from the insanitary latrines is disposed of, or on arailway track or in such other spaces or premises.

Prior to the enactment of the Act, National Advisory Council had adopted a resolution dated October 23, 2010 on the issue of Manual Scavenging, had urged the Central Government to ensure that the practice of manual scavenging is fully abolished in coordination with all the Union Government Departments, including the Railways, and concerned States/local Governments. The resolution stated that this would require:-
a) New survey in every State and UT, with wide public involvement, of remaining dry latrines and manual scavengers;
b) Demolition of all dry latrines;
c) Psycho-social and livelihood rehabilitation in modern marketable skills of all manual scavengers and their families, and formulation of 100% Centrally Sponsored Scheme by the Ministry of Social Justice and Empowerment to support the rehabilitation initiative;
d) Special programme for education, including higher education and computer education, of all children of manual scavengers; and
e) To amend the law to ensure sharper definition of manual scavenging, and accountability of public officials who employ, or fail to prevent, manual scavenging. 

The situation in the prisons had escaped the attention of the legislators.  

The petitioner's senior counsel, Dr. S. Muralidhar submitted that despite the amendments which were made to the State Prison Manuals in accordance with the Model Prison Manuals formulated by the Union Home Ministry, caste discrimination is reinforced across prisons in the States. The petitioner has accordingly sought directions for repeal of the offending provisions in State Prison Manuals. The Court had requested  Tushar Mehta, Solicitor General to assist the Court in view of the importance of the issue which has been raised. 

The Court permitted Dr. Muralidhar to file a compilation of documents containing, inter alia, the Model Prison Rules and Prison Manuals of the States. The compilation shall also contain a brief note of written submissions and include a tabulated chart indicating the specific areas of discrimination State-wise. Advocates Prasanna S., Disha Wadekar, Swati Arya, Deeksha Dwivedi, Pallak Bhagat, Maitreya Subramaniam and M.A. Karthik represented the petitioner besides the senior counsel.  

The second order dated April 1, 2024 recorded that Aishwarya Bhati, Additional Solicitor General stated that "the Model Prison Manual shall be placed on the record."

The fourth order dated July 10, 2024 recorded that it heard Dr. Muralidhar and Ms. Wadekar. It heard Anuj Saxena, counsel for the intervenor. It also heard Ms. Bhati, Tapesh Kumar Singh, senior counsel for the State of Jharkhand, Pradeep Misra, counsel for the State of Uttar Pradesh, Himanshu Chakravarty, counsel for the State of West Bengal, Dr. Ravindra Chingale, counsel for the State of Maharashtra, Shubasish Mohanty, counsel for the State of Orissa, D. L. Chidananda, counsel for the State of Karnataka, Mahfooz Ahsan Nazki, counsel for the State of Andhra Pradesh and Sabarish Subramanian, counsel for the State of Tamil Nadu. These are the States which appeared before the Court.

Justice Rudra Prakash Mishra to get his salary, Justice Shailendra Singh withdraws his petition

In Justice Rudra Prakash Mishra vs. Union of India & Ors on September 30, 2024, the Supreme Court's 3-judge bench of 50th Chief Justice of India and Justices J.B. Pardiwala, and Manoj Misra have passed an order directed Government of India to release the salary of Justice Rudra Prakash Mishra of Patna High Court which was withheld due to the inability to open his General Provident Fund (GPF) account. Its order reads: "We accordingly direct that the salary which has been withheld shall be released to him by the Government of India inclusive of arrears from the date he is entitled. A temporary GPF Account be opened in the name of Justice Rudra Prakash Mishra. These directions shall abide by the further directions that may be issued or by the final result of the Petition, as the case may be. 9 List the Petitions on 3 October 2024." It observed: "At this stage, prima facie, it appears to the Court that an interim order would be required since no Judge can be expected to work without payment of the salary."

Justice Mishra was appointed as a Judge of the Patna High Court on November 4, 2023. His grievance presently is that his salary as a Judge of the High Court has not been released to him from the date of his appointment. While the Judge was governed by the New Pension Scheme as a Member of the District Judiciary, once he stands appointed as a Judge of the High Court, he would be governed at par with all other Judges of the High Court by the same terms and conditions of service.  

On January 12, 2024, the Court had issued notice to the Union of India, the State of Bihar and the Registrar General of the Patna High Court. The petition of Justice Mishra, a sitting judge of the Patna High Court throws light on his efforts to obtain the opening of a GPF account and the release of his salary. His counsel pressed for interim relief during the hearing. Justice Mishra was elevated to the High Court in November 2023 from the higher judicial services. He has submitted that despite completing all required documentation, he has not been allotted a GPF account. The case is related to Section 20 of the High Court Judges (Salaries and Conditions of service) Act, 1954. It states that every judge is entitled to subscribe to the General Provident Fund (Central Services). The Act further specifies that judges who held pensionable civil posts before their appointment shall continue to subscribe to the Provident Fund they were enrolled in before assuming the judicial position. The denial of GPF benefits resulted in Justice Mishra not getting his salary since his elevation. The Court had tagged it with other petitions.

Notably, one of the tagged petitions filed by Justice Shailendra Singh has been withdrawn. The Court's order of September 30, 2024 reads: "Counsel appearing on behalf of the petitioner seeks permission of the Court to withdraw the Writ Petition. The Writ Petition is dismissed as withdrawn." Prior to this on February 24, 2023, the 3-judge bench made an order in Justice Shailendra Singh & Ors. vs. Union of India & Ors which reads: "Having due regard to the fact that the petition impinges upon the conditions of service of Judges of the High Court, who have been recruited from the district judiciary, Mr K M Nataraj, Additional Solicitor General fairly states that he would have the matter duly looked into at the appropriate level of the Government of India so that this Court can be informed on the next date of hearing of the decision which has been taken to remedy the grievance".

Supreme Court's Judgment in Adani Group investigation case is among its "Landmark Judgments"

Supreme Court's judgment in Adani Group investigation case is one of the 28 landmark cases of 2024. On January 3, 2024, Supreme Court's bench of Chief Justice (Dr.) Dhananjaya Y. Chandrachud and Justices Jamshed B. Pardiwala, Justice Manoj Misra passed a 46 page long judgement in  Vishal Tiwari vs Union of India. It adjudicated on the questions like: what is the scope of judicial review over the regulatory functions of the Securities and Exchange Board of India (SEBI) and whether the Supreme Court should transfer the investigation into the Adani Group from SEBI to a Special Investigation Team (SIT).

This case was heard in the context of the publication of a report of Hindenburg Research, a American investment research firm on Adani Group. The report entitled Adani Group: How The World’s 3rd Richest Man Is Pulling The Largest Con In Corporate History was published on January 24, 2023. The Court's "Landmark Judgment Summaries" launched on September 27, 2024 refers to it in the backdrop of the celebration of its 75th year. The case was filed on February 6, 2023.  It was registered on February 8, 2023 and verified on February 9, 2023. It was admitted on March 2, 2023. The respondents were Union of India, Ministry of Home Affairs, Reserve Bank of India and SEBI. It was listed for hearing on 10 occasions.

Hindenburg Research revealed the findings of our 2-year investigation, presenting evidence that the INR 17.8 trillion (U.S. $218 billion) Indian conglomerate Adani Group has engaged in a brazen stock manipulation and accounting fraud scheme over the course of decades. The January 2023 repprt stayed that Gautam Adani, Founder and Chairman of the Adani Group, has amassed a net worth of roughly $120 billion, adding over $100 billion in the past 3 years largely through stock price appreciation in the group’s 7 key listed companies, which have spiked an average of 819% in that period. Its research drew attention towards the financials of Adani Group at face value. Its 7 key listed companies have 85% downside purely on a fundamental basis owing to sky-high valuations. The report pointed out that the key listed Adani companies have taken substantial debt, including pledging shares of their inflated stock for loans, putting the entire group on precarious financial footing. 5 of 7 key listed companies have reported ‘current ratios’ below 1, indicating near-term liquidity pressure.

The report threw light on Adani Group’s very top ranks and how 8 of 22 key leaders in it are Adani family members. The Group's “a family business” places control of the group’s financials and key decisions in the hands of a few. 

The report compiled details about four government fraud investigations which alleged money laundering, theft of taxpayer funds and corruption, totaling an estimated U.S. $17 billion. Adani family members allegedly cooperated to create offshore shell entities in tax-haven jurisdictions like Mauritius, the UAE, and Caribbean Islands, generating forged import/export documentation in an apparent effort to generate fake or illegitimate turnover and to siphon money from the listed companies. Gautam Adani’s younger brother, Rajesh Adani, was accused by the Directorate of Revenue Intelligence (DRI) of playing a central role in a diamond trading import/export scheme around 2004-2005. The alleged scheme involved the use of offshore shell entities to generate artificial turnover. Rajesh was arrested at least twice over separate allegations of forgery and tax fraud. He was subsequently promoted to serve as Managing Director of Adani Group. Adani’s brother-in-law, Samir Vora, was accused by the DRI of being a ringleader of the same diamond trading scam and of repeatedly making false statements to regulators. He was subsequently promoted to Executive Director of the Adani Australia division. His s elder brother, Vinod Adani was referred to as “an elusive figure” who has been at the center of the government’s investigations into Adani for his alleged role in managing a network of offshore entities used to facilitate fraud.

The research report catalogued the entire Mauritius corporate registry and uncovered that Vinod Adani  manages 38 offshore shell entities on his own or through close associates. It dentified entities that are also surreptitiously controlled by Vinod Adani in Cyprus, the UAE, Singapore, and several Caribbean Islands.  

The report noted that several of the Vinod Adani-associated entities do not show signs of operations, including no reported employees, no independent addresses or phone numbers and no meaningful online presence. Despite this, they have collectively moved billions of dollars into Indian Adani publicly listed and private entities, often without required disclosure of the related party nature of the deals. The report claimed that it has uncovered efforts designed to mask the nature of some of the shell entities. For example, 13 websites were created for Vinod Adani-associated entities. Notably, several were formed on the same days, featuring only stock photos, naming no actual employees and listing the same set of nonsensical services, such as “consumption abroad” and “commercial presence”. The Vinod-Adani shells seem to serve several functions, including (1) stock parking / stock manipulation (2) and laundering money through Adani’s private companies onto the listed companies’ balance sheets in order to maintain the appearance of financial health and solvency. Publicly listed companies in India are subject to rules that require all promoter holdings (known as insider holdings in the U.S.) to be disclosed. Rules also require that listed companies have at least 25% of the float held by non-promoters in order to mitigate manipulation and insider trading. It pointed out that 4 of Adani’s listed companies are on the brink of the delisting threshold due to high promoter ownership.

The research indicated that offshore shells and funds tied to the Adani Group comprise many of the largest “public” (i.e., non-promoter) holders of Adani stock, an issue that would subject the Adani companies to delisting, were Indian securities regulator SEBI’s rules enforced. Many of the supposed “public” funds exhibit flagrant irregularities such as being (1) Mauritius or offshore-based entities, often shells (2) with beneficial ownership concealed via nominee directors (3) and with little to no diversification, holding portfolios almost exclusively consisting of shares in Adani listed companies. Hindenberg claimed that the Adani Group has been able to operate a large, flagrant fraud in broad daylight largely because investors, journalists, citizens and even politicians have been afraid to speak. It posed 88 questions in the conclusion of its report.

Its report accused the Adani Group of companies of violating SEBI regulations, manipulating stock prices, and failing to disclose critical financial information. This report led to a significant decline in the share price of Adani Group of companies and consequently an erosion of investor wealth. Several petitions were filed before the Supreme Court concerning the need to protect investors from market shocks and investigate the Adani Group. The Court in its order dated 2 March 2023, directed SEBI to investigate the allegations of potential regulatory violations by the Adani Group. An expert committee was also established to assess the situation and recommend measures to enhance investor protection. The petitioners sought to cancel certain amendments made to SEBI (Foreign Portfolio Investments) Regulations, 2014 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (SEBI Regulations) and requested the formation of a SIT to oversee the investigation. On May 6, 2023 the expert committee submitted its report and SEBI filed a status report on August 25, 2023. As on date of the judgment, SEBI had completed twenty two out of the twenty four investigations.

In its judgement, the Supreme Court has held that the power of the Courts to interfere with the regulatory functions of SEBI is limited. The Court did not find any valid grounds to cancel the amendments made to SEBI Regulations. The Court held that there was no apparent failure in regulation by SEBI and hence there was no need to transfer the investigation to an SIT. The Court directed the Union Government and SEBI to consider the suggestions made by the expert committee to strengthen the regulatory framework. The judgment of the court was authored by Chief Justice Dr. Chandrachud.

The Supreme Court observed that the Court cannot act as an appellate authority to assess the correctness of policies formulated by statutory regulators like SEBI. Judicial review is limited to assessing whether a policy violates fundamental rights, constitutional provisions, statutory laws, or is manifestly arbitrary. The Court further held that in technical areas, particularly economic and financial matters, courts should defer to the expertise of regulators who have considered expert opinions in formulating their policies. It upheld SEBI’s regulations, stating that the agency had properly explained the evolution and rationale behind its regulatory framework and that the procedures followed were not illegal or arbitrary.  It found no evidence of regulatory failure by SEBI in its investigation into the Adani Group. The Court observed that its authority under Article 32 and Article 142 of the Constitution to transfer investigations should be used sparingly and only in extraordinary circumstances. The Court cannot intervene unless the investigating authority shows clear, willful, and deliberate inaction in conducting the investigation.

 

The attempt to access Supreme Court's website for one of its Landmark Judgements showed "Warning:Potential Security Risk Ahead". The Court's verdict on SEBI's probe into Adani Group relied on Justice Sapre led Expert Committee which included Nandan Nilekani and K.V. Kamath

The petitioner had challenged SEBI's investigation into the Adani Group and sought constitution of Special Investigation Team (SIT) to probe it conduct.  

In its first order dated February 10, 2023, the Court observed: "We have indicated to the Solicitor General, the concerns of the Court over the loss of investor wealth in the securities’ market over the past several
weeks and the portents for the future. There is a need to review existing regulatory mechanisms in the financial sector to ensure that they are duly strengthened. These regulatory mechanisms must be robust enough to protect Indian investors against volatility of the kind which has been witnessed in the recent past. An assessment has to be made of the regulatory framework, relevant causal factors and the mechanisms necessary for the stable operation and development of the securities market. We have suggested to the Solicitor General that he may seek instructions on whether the Government of India would facilitate the constitution of an expert committee for an overall assessment of the situation, and if so, to place its suggestions on the constitution and remit of the committee on the next date. Meantime the Solicitor General shall place on the record a brief note on factual and legal aspects so as to further the deliberations during the course of the next hearing. The Solicitor General has submitted that the Securities and Exchange Board of India has been closely monitoring the situation and continues to do so."

In its second order dated February 13, 2023, the Court's order noted: "Mr Tushar Mehta, Solicitor General, states that in pursuance of the previous order of this Court, the Union Government would file its submission note and circulate a soft copy to the Court Master by 15 February 2023. A copy of the Note has been handed over to the petitioners who appear in person."

In its third order, the Court's order indicated that arguments have been heard and the order was reserved. 

In its fourth order dated March 2, 2023, the Court issued certain directions. It reads: "In terms of the reportable order, the following directions are issued: “14. In order to protect Indian investors against volatility of the kind which has been witnessed in the recent past, we are of the view that it is appropriate to constitute an Expert Committee for the assessment of the extant regulatory framework and for making recommendations to strengthen it. We hereby constitute a committee consisting of the following members: a. Mr. O P Bhatt; b. Justice J P Devadhar (retired) c. Mr. KV Kamath; d. Mr. Nandan Nilekani; and e. Mr. Somashekhar Sundaresan. The Expert Committee shall be headed by Justice Abhay Manohar Sapre, a former judge of the Supreme Court of India. 15. The remit of the Committee shall be as follows:
a. To provide an overall assessment of the situation including the relevant causal factors which have led to the volatility in the securities market in the recent past;
b. To suggest measures to strengthen investor awareness;
c. To investigate whether there has been regulatory failure in dealing with the alleged contravention of laws pertaining to the securities market in relation to the Adani Group or other companies; and
d. To suggest measures to (i) strengthen the statutory and/or regulatory framework; and (ii) secure compliance with the existing framework for the protection of investors.
16. The Chairperson of the Securities and Exchange Board of India is requested to ensure that all requisite information is provided to the Committee. All agencies of the Union Government including agencies connected with financial regulation, fiscal agencies and law enforcement agencies shall co-operate with the Committee. The Committee is at liberty to seek recourse to external experts in its work.
17. The honorarium payable to the members of the Committee shall be fixed by the Chairperson and shall be borne by the Union Government. The Secretary, Ministry of Finance shall nominate a senior officer who will act as a nodal officer to provide logistical assistance to the Committee. All the expenses incurred in connection with the work of the Committee shall be defrayed by the Union Government.
18. The Committee is requested to furnish its report in sealed cover to this Court within two months.”

The order of the Court dated May 17, 2023 Justice Sapre headed Expert Committee submitted its report. The order reads: "The Expert Committee is requested to continue to assist the Court. The Committee may hold further deliberations in the meantime. The Committee would be requested to take up any further aspects or suggestions as may be formulated by the Court, following the course of deliberations when the
proceedings are next listed for hearing."

The July 11, 2023 order reads:"The Solicitor General informs the Court that SEBI has filed a response on issues pertaining to its functioning, together with an IA, to the report which was submitted by the Expert Committee. The response by SEBI be circulated to the Court and all counsel. Mr Prashant Bhushan, counsel, states that in Writ Petition (Civil) No 201 of 2023, response has been submitted to the report of the Expert Committee."

The November 24, 2023 order stated that arguments have been concluded and judgment was reserved.

The January 3, 2024 judgement reads:In terms of the signed reportable judgment, the petitions are disposed of with the following conclusion:
“67. In a nutshell, the conclusions reached in this judgement are summarized below:
i. The power of this Court to enter the regulatory domain of SEBI in framing delegated legislation is limited. The court must refrain from substituting its own wisdom over the regulatory policies of SEBI. The scope of judicial review when examining a policy framed by a specialized regulator is to scrutinise whether it violates fundamental rights, any provision of the Constitution, any statutory provision or is
manifestly arbitrary;
ii. No valid grounds have been raised for this Court to direct SEBI to revoke its amendments to the FPI Regulations and the LODR Regulations which were made in exercise of its delegated legislative power. The procedure followed in arriving at the current shape of the regulations does not suffer from irregularity or illegality. The FPI Regulations and LODR Regulations have been tightened by the amendments in question;
iii. SEBI has completed twenty-two out of the twenty-four investigations into the allegations levelled against the Adani group. Noting the assurance given by the Solicitor General on behalf of SEBI we direct SEBI to complete the two pending investigations expeditiously preferably within three months;
iv. This Court has not interfered with the outcome of the investigations by SEBI. SEBI should take its investigations to their logical conclusion in accordance with law;
v. The facts of this case do not warrant a transfer of investigation from SEBI. In an appropriate case, this Court does have the power to transfer an investigation being carried out by the authorized agency to an SIT or CBI. Such a power is exercised in extraordinary circumstances when the competent authority portrays a glaring, willful and deliberate inaction in carrying out the investigation. The threshold for the transfer of investigation has not been demonstrated to exist;
vi. The reliance placed by the petitioner on the OCCPR report to suggest that SEBI was lackadaisical in conducting the investigation is rejected. A report by a third-party organization without any attempt to verify the authenticity of its allegations cannot be regarded as conclusive proof. Further, the petitioner’s reliance on the letter by the DRI is misconceived as the issue has already been settled by concurrent findings of DRI’s Additional Director General, the CESTAT and this Court;
vii. The allegations of conflict of interest against members of the Expert Committee are unsubstantiated and are rejected;
viii. The Union Government and SEBI shall constructively consider the suggestions of the Expert Committee in its report detailed in Part F of the judgment. These may be treated as a non-exhaustive list of recommendations and the Government of India and SEBI will peruse the report of the Expert Committee and take any further actions as are necessary to strengthen the regulatory framework, protect investors and ensure the orderly functioning of the securities market; and
ix. SEBI and the investigative agencies of the Union Government shall probe into whether the loss suffered by Indian investors due to the conduct of Hindenburg Research and any other entities in taking short positions involved any infraction of the law and if so, suitable action shall be taken." 

FPI Regulations refers to SEBI (Foreign Portfolio Investments) Regulations, 2014 and LODR Regulations refers to SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. OCCRP refers to Organized Crime and Corruption Reporting Project (OCCRP). DRI refers to Directorate of Revenue Intelligence. CESTAT refers to Commissioner of Customs before the Customs, Excise and Service Tax Tribunal.

The Court disposed of the pending applications, including applications for intervention/impleadment.

Supreme Court reverses Trial Court's 1992 verdict, High Court's 2015 verdict in a abduction and murder case of 1985

Neelam breathed her last in Simaltalla, Sikandra, Munger, Bihar on August 30, 1985 after her reported abduction by seven persons from the house which occurred on that day. The dead body of Neelam was not even discovered until the following morning. According to the post mortem report the death happened at 5 PM. But according to the informant the incident of abduction took place around 10:00 PM. Although, the post mortem report indicated that the death of the deceased was unnatural and the commission of murder can-not be ruled out. But no direct evidence on record proved the commission of murder by the accused persons. The link of causation between the accused persons and the alleged offence was found conspicuously missing.

An FIR was lodged against seven accused persons, namely –Krishna Nandan Singh, Ram Nandan Singh, Raj Nandan Singh, Shyam Nandan Singh, Bhagwan Singh, Vijoy Singh/Sharma and Tanik Singh. After investigation a chargesheet was filed. The Trial Court delivered the judgement in June 1992. The High Court delivered the judgement in March 2015 and the Supreme Court in September 2024. 

Supreme Court's Division Bench of Justices Bela M. Trivedi and Satish Chandra Sharma set aside the judgement of the Patna High Court's Division Bench comprising Justices Dharnidhar Jha and Amaresh Kumar Lal in a case arising out of 1985 case from Munger's Sikandra Thana on September 25, 2024. The High Court's 38 page long judgement was delivered on March 26, 2015.  It was authored by Justice Jha. 

In its 26 page long judgement, the Court concluded: "the findings of conviction arrived at by the Trial Court and the High Court are not sustainable. Moreover, the High Court erred in reversing the acquittal of A-6 and A-7. Accordingly, the impugned judgment as well as the judgment rendered by the Trial Court (to the extent of conviction of A-1 to A-5) are set aside, and all seven accused persons (appellants) are hereby acquitted of all the charges levelled upon them. The appellants are directed to be released forthwith, if lying in custody."

The Supreme Court has recorded that the prosecution did not examine the three natural witnesses of the incident namely, Doman Tenti, Daso Mistry and Kumud Ranjan Singh. "There is no explanation for non-examination of the natural eye witnesses." It has raised doubt about the conduct of Ramanand Singh (P.W.18) the informant who was the brother-in-law of Neelam, the deceased. Neelam was married to Ashok Kumar Singh who happened to be the brother of Ramanand Singh. He did not try to prevent the accused persons from entering the premises or from abducting the deceased or from taking away the deceased on their shoulders in front of his eyes. The Court has detected inconsistency in the testimonies of three Prosecution Witnesses who has submitted that while coming from Lakhisarai to Sikandra Chowk, Ghogsha came first, followed by Lohanda and Simaltalla. In such circumstances, their presence at Sikandra Chowk at 10:00 PM must be explained to the satisfaction of the Court. For, if they were going to their village, there was no occasion for them to come to Simaltalla as it did not fall on their way. But no such explanation is forthcoming from the material on record. It found it strange that the High Court too had detected it with regard to the testimony one of the Prosecution Witnesses but it failed to extend its finding to the other two Prosecution Witnesses who were similarly placed. It has inferred that "the so-called eye witnesses of the incident were actually accessories after the fact and not accessories to the fact." It renders the entire version of the prosecution as improbable and unreliable.

The Trial Court and High Court did not doubt the fact that Neelam was residing in her father’s house at Simaltalla but Supreme Court has reservations regarding its veracity. It noted that the investigating officer had inspected the house and no direct material, except some make-up articles, could be gathered so as to indicate that Neelam was actually residing there. The Court has recorded that Chando Devi, the sister of Ram Chabila Singh one of the tenants in the house was also residing in the same portion of the house but the High Court did take note of this fact but explained it away by observing that since Chando Devi was a widow, the make-up articles could not have belonged to her as there was no need for her to put on make-up being a widow. The judgement reads: "Mere presence of certain make-up articles cannot be a conclusive proof of the fact that the deceased was residing in the said house, especially when another woman was admittedly residing there. Furthermore, if Neelam was indeed residing there, her other belongings such as clothes etc. ought to have been found in the house and even if not so, the other residents of the same house could have come forward to depose in support of the said fact." Notably, the prosecution has not spotted any room in the entire house wherein the informant was residing. His own presence at the place of occurrence is doubtful.

The Court observed: "In our opinion, the observation of the High Court is not only legally untenable but also highly objectionable. A sweeping observation of this nature is not commensurate with the sensitivity and neutrality expected from a court of law, specifically when the same is not made out from any evidence on record."

The Court disapproved of the approach of the High Court in reversing the acquittal of Vijay Singh @ Vijay Kumar Sharma (Accused No. 6) and Tanik Singh @ Awadh Kishore Prasad (Accused No.7) "was not in line with the settled law pertaining to reversal of acquittals." It observed: "The Trial Court had acquitted the said two accused persons on the basis of a thorough appreciation of evidence and the High Court merely observed that their acquittal was based on the improbable statement of PW5 and since the evidence of PW5 stood excluded from the record, there was no reason left for the acquittal of A-6 and A-7. Pertinently, the High Court did not arrive at any finding of illegality or perversity in the opinion of the Trial Court on that count. Furthermore, it did not arrive at any positive finding of involvement of the said two accused persons within the sphere of common intention with the remaining accused persons. Equally, the exclusion of the evidence of PW5, without explaining as to how the evidence of PW2 and PW4 was not liable to be excluded in the same manner, was in-correct and erroneous." This is with reference to the three eye witnesses whose testimony appear unreliable. 

The Court noted that the High Court was well within its powers to appreciate the evidence on record in its exercise of appellate powers but "in order to reverse a finding of acquittal, a higher threshold is required." It underles that "For, the presumption of innocence operating in favour of an accused through-out the trial gets concretized with a finding of acquittal by the Trial Court. Thus, such a finding could not be reversed merely because the possibility of an alternate view was alive. Rather, the view taken by the Trial Court must be held to be completely unsustainable and not a probable view. The High Court, in the impugned judgment, took a cursory view of the matter and reversed the acquittal of A-6 and A-7 without arriving at any finding of illegality or perversity or impossibility of the Trial Court’s view or non-appreciation of evidence by the Trial Court."

The Court relied on the exposition of law in Sanjeev v. State of Himachal Pradesh (2022)., wherein the Supreme Court has summarized the position in this regard. It is well settled that while dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal. 

Justice Bela Trivedi led bench noted that "the case of the prosecution is full of glaring doubts as regards the offence of abduction", and "the offence of murder is entirely dependent on circumstantial evidence....The circumstantial evidence emanating from the facts sur-rounding the offence of abduction, such as the testimonies of eye witnesses, has failed to meet the test of proof and cannot be termed as proved in the eyes of law. Therefore, the foundation of circumstantial evidence having fallen down, no inference could be drawn from it to infer the commission of the offence under Section 302 IPC by the accused persons. It is trite law that in a case based on circumstantial evidence, the chain of evidence must be complete and must give out an inescapable conclusion of guilt. In the pre-sent case, the prosecution case is far from meeting that standard."

With regard to motive, the Court observed: "motive has a bearing only when the evidence on record is sufficient to prove the ingredients of the offences under consideration."

The Court observed: "Without the proof of foundational facts, the case of the prosecution cannot succeed on the presence of motive alone....The accused persons and the eyewitnesses belong to the same family and the presence of a property related dispute is evident. In a hypothetical sense, both the sides could benefit from implicating the other. In such circumstances, placing reliance upon motive alone could be a double-edged sword."

These seven accused persons were put on trial by the Sessions Judge who were charged under Sections 323, 302, 364, 449, 450, 380/34 and 120B of the IPC. The accused Vijoy Singh @ Vijoy Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh were charged under Sections 342/34 of the IPC. The judgment of the Sessions Judge had acquitted the two accused, namely, Vijoy Singh Sharma and Tanik Singh of all the charges. The five other accused persons were convicted of committing offences under Sections 364/34 and 302/34 of the IPC. They were also acquitted of charges under Sections 449, 450, 380, 323 and 120B of the IPC. The five appellants, who had been convicted under Sections 364/34 and 302/34 of the IPC were heard on sentence and each of them was directed to suffer rigorous imprisonment for life under each of the two counts, the sentences being directed to run concurrently.

The High Court set aside the judgment of acquittal delivered by 12th Additional Sessions Judge, Munger on June 5, 1992 in respect of respondents Vijay Singh @ Vijay Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh by allowing the Government Appeal. It held the two guilty of committing offences under Sections 364/34 and 302/34 of the Indian Penal Code (IPC) and had directed each of them to suffer rigorous imprisonment on each of the two counts each for life. 

In his judgement, the High Court noted that the respondents had submitted that they had not committed the offences under Sections 364 and 302 of the IPC. He observed: the charges had been framed under Sections 364/34 and 302/34 of the Indian Penal Code. Section 34 of the Indian Penal Code does not define any substantive sentence rather it lays down a rule of evidence that if from material evidence, it is shown that the accused persons had acted in furtherance of their common intention, then even if the main act had been committed by any of them all of them was equally liable for the offence as if the same had been committed by him. In order to bringing the case of an accused into the purview of Section 34 of the Indian Penal Code, the Court has to find out as to whether there was any pre-meeting of mind or in other words had there been any consultations between the accused persons which could fall in the class of conspiracy hatched up by them to commit some unlawful act or an act which may not be unlawful if the means of committing it was unlawful. There could not be direct evidence in such matters and in most of the cases, the Court has to depend upon the facts and circumstances of the case so as to find out as to whether there had been pre-concert between the accused persons before they had embarked upon achieving their goal.

The High Court's judgement records that the respondents Vijay Singh @ Vijay Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh had been shown from the evidence, to have put the informant under wrongful confinement when they had taken him into the corner of the house near a well. The purpose of this act of the two respondents was only to eliminate any chances of resistance coming into the further acts of the other accused persons of capturing Neelam from inside the house and taking her away. The other accused persons entered inside the house and dragged Neelam out and lifted her to take her away and subsequently her dead body was found in a paddy field. Thus, the sharing of the common intention by contributing into the commission of the offence in their own way by the two respondents of the Governmental Appeal is clearly established. 

The High Court's judgement had "set aside the judgment of acquittal in respect of respondents Vijay Singh @ Vijay Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh by allowing the Government Appeal." The Court held "the two guilty of committing offences under Sections 364/34 and 302/34 of the Indian Penal Code and direct each of them to suffer rigorous imprisonment on each of the two counts each for life. In the result, the Government Appeal is allowed. The connected two criminal appeals appear of no merit and they are dismissed."

These five appellants had preferred the two criminal appeals against their conviction and sentence imposed upon them. The State of Bihar had preferred a separate appeal for challenging the acquittal of Vijoy Singh @ Vijoy Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh. These appeals arose out of the same judgment. The High Court had heard them together and had disposed of by a common judgment.