Sunday, March 31, 2024

Order of Additional Sessions Judge-1st -cum- Special Judge, SC/ST (POA) Act, Buxar set aside

Justice Arun Kumar Jha of Patna High Court sets aside the order of Additional Sessions Judge-1st -cum- Special Judge, SC/ST (POA) Act, Buxar upon hearing an appeal under Section 14(A)(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the refusal of prayer for bail by order dated September 16, 2022 passed by the Additional Sessions Judge-1st -cum- Special Judge, SC/ST (POA) Act, Buxar in connection with Dumraon P.S. Case No. 146 of 2022. The case pertained to offences under Sections 394 and 302 of the Indian Penal Code, Section 27 of the Arms Act and Sections 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act. The judgement was delivered in Din Bandhu Singh v. State of Bihar

As per the prosecution case, a loot was committed on a petrol pump and the unknown miscreants looted Rs.5,14,000/-from the said petrol pump and the Manager was shot at, who, succumbed to his injury. The name of the appellant transpired during investigation as one of the accused persons also involved in the alleged occurrence.

The appellant's counsel submitted that the appellant is innocent and has been falsely implicated in this case on the basis of confessional statement of co-accused Umesh Singh. Otherwise, nothing material has come up against the appellant and the charge sheet has been submitted. The appellant is in custody since 17.08.2022 and he has got clean antecedent. He submitted that co-accused persons have been granted bail vide Criminal Appeal (SJ) No. 2910 of 2022 and Criminal Appeal (SJ) 3757 of 2022 by a common judgement dated 15.12.2022. The case of the appellant is similar to that of them. This submission was opposed wherein it was submitted that the appellant was named by co-accused persons for his involvement regarding providing vehicle to the miscreants, who committed the offence at the petrol pump and he also received Rs. 5,000/- of the allotted amount. 

Taking note of the fact that the name of the appellant came up only in the confessional statement of co-accused and no recovery has been shown from the appellant and also considering the grant of bail to the co-accused persons and submission of charge sheet, the Court issued a direction granting bail to the appellant on furnishing bail bond of Rs.20,000/- (twenty thousand) with two sureties of the like amount each to the satisfaction of Additional Sessions Judge-1st -cum- Special Judge, SC/ST (POA) Act and Children Court, Buxar in connection with Dumraon P.S. Case No. 146 of 2022. It laid down the following conditions mentioned in Section 437(3) of the Code of Criminal Procedure:

(i) One of the bailors will be a close relative of the appellant, preferably one of the parents.

(ii) The appellant will remain present on each and every date fixed by the court below. 

(iii) In case of absence on three consecutive dates or in violation of the terms of the bail, the bail bond of the appellant will be liable to be cancelled by the court concerned.

Cognizance order of Judicial Magistrate, 1st Class, Chapra quashed and set aside

Patna High Court's Justice Chandra Shekhar Jha quashed and set aside the cognizance order of Judicial Magistrate, 1st Class, Chapra in Rajiv Kumar Sinha v State of Bihar on March 27, 2024. The Court drew on the decision of Supreme Court in the case of State of Haryana v. Bhajan Lal (1992). 

The paragraph no. 102 of the Supreme Court's decision reads:  “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first informant report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent persons can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

The High Court factored in the guiding note of Guideline Nos. 1, 5 and 7 of Bhajan Lal case to quash and set aside the order of taking cognizance dated June 10, 2015 of the Judicial Magistrate, 1st Class, Chapra with all its consequential proceedings. in connection with Tr. No. 980/2015 arising out of complaint case No. 709/2015. 

The petition was filed for quashing of cognizance order dated June 10, 2015 whereby the Magistrate had taken cognizance for offences under Sections 323, 504 and 406 of the Indian Penal Code against petitioner. The complaint case was lodged by one Lal Jharia Devi. She made the following allegations:-

(i) It is alleged that the complainant and her husband, namely, Sona Lal Bhagat purchased a policy bearing No. 537138740 through the LIC agent, namely, Kameshwar Ram and thereafter, her husband gave Rs. 10,000/- per year to the LIC agent for deposit in his policy. Later on, they gave Rs. 23,060/- to Kameshwar Ram for deposit in the LIC but it was not deposited with the LIC. When the complainant and her husband went to demand her money back, the LIC agent, Kameshwar Ram refused to return the amount and snatched her belongings. When the complainant went along with some villagers at the residence of the agent, he refused to repay the amount.

(ii) It is further alleged that when the complainant intimated the Branch Manager (petitioner) about the conduct of the agent, he did not extend any cooperation rather told that the policy has lapsed.

The petitioner's counsel had submitted that the entire occurrence of abuse and assault as alleged were taken place between O.P. No. 2 and main co-accused namely, Kameshwar Ram, against whom the thrust of allegations are available, who was the agent of LIC with whom the husband of O.P. No. 2 deposited Rs.23,060/- to deposit it further with Policy No. 537138740 of LIC. It was submitted that from the face of complaint, it can be gathered easily that no prima facie case as alleged can be gathered against petitioner for the reasons that no allegation of abuse and assault is available against petitioner. It was submitted that maximum incriminating narrations what available against this petitioner is to reply O.P. No. 2 during course of conversation that no such amount as claimed was ever deposited with this branch of LIC. Itwas also submitted that there is no concept of vicarious liability in criminal proceedings, where implication of petitioner appears only for his vicarious liability being manager of the Marhawra Branch of LIC. It was further submitted that amount in issue was also alleged to be deposited with co-accused, Kameshwar Ram and as such present proceeding against petitioner is liable to be quashed.

Convict's death sentence converted to conviction under Section 304 Part -A, released: Justice Ashutosh Kumar

In Dilip Tanti v. State of Bihar, Patna High Court's division bench of Justices Ashutosh Kumar and Khatim Reza observed that "37. The appellant is stated to be in jail for more than ten years. The sentence of the appellant under Section 304 Part -A is reduced to the period of custody which he has already undergone. For his conviction under Section 324 IPC, we are of the considered view that the ends of justice would be met if that is also reduced to the period of custody which the appellant has already undergone. 38. While saying so, we have also taken note of the fact that the appellant was a person of young age at the time of occurrence and at the time of recording of his statement under Section 313 Cr.P.C., he was only 25 years of age and there is also no report about his bad conduct in jail all this while. 39. The appeal is thus partially allowed with the modification in the conviction and sentence of the appellant as afore-noted. 40. Since the appellant has already served for more than ten years in jail, he is directed to be released forthwith unless his detention is required in any other case. 41. Let a copy of this judgment be communicated to the Superintendent of concerned jail for record and compliance. 42. Let the records of this appeal be returned to the concerned Trial Court forthwith." The judgement in the criminal appeal was delivered on March 27, 2024. The case arose out of PS. Case No.-25 of 2014 in Simri Bahkhtiyarpur, Saharsa. 

Prior to this Dilip Tanti, the appellant was convicted for the offence under Sections 302 and 324 of the Indian Penal Code by judgment dated November 8, 2019 passed by the Presiding Officer, Fast Track Court, Saharsa in Sessions Trial No. 2320 of 2014.

Section 324 deals with "Voluntarily causing hurt by dangerous weapons or means". It reads: "Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

The appellant was alleged to have killed Shambhu Tanti and Rasman Devi, the brother and the mother of the informant respectively and also injured Wakil Tanti and Neelam Tanti. By order dated November 16, 2019, he was sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 5,000/- for the offence under Section 302 IPC and imprisonment for a term of one year for the offence under Section 324 IPC. Both the sentences was to run concurrently.

According to the First Information Report lodged by the mother of the appellant had died 15 days ago. On January 26, 2014, the date of the occurrence, the grandmother of one Manoj Tanti, a co-villager had also died. The appellant is said to have committed the offence when the persons participating in the cortege were coming back from the burning ghat after the cremation of the dead body. The cause of occurrence as stated in the F.I.R. is that there was some monetary dispute with respect to expenses incurred in the shradh ceremony of the mother of the appellant. The appellant was made to drink toddy in the house of one Suresh Tanti. He was exhorted by his other associates. Suresh Tanti is said to have handed him over one sickle used for tapping toddy to him and instigated him to kill the entire family of Ashok Tanti (PW6). On such exhortation, mindlessly, the appellant is said to have killed Shambhu Tanti, the younger brother of PW6 and his mother/Rasman. The anger had not abated by them. Wakil Tanti, another brother of PW6 tried to stop the appellant but was unsuccessful. He was also hurt in the occurrence. When Neelam Devi, wife of Wakil Tanti came to the rescue of her husband, she also was assaulted but she has received only simple injuries on her person. 

On the basis of the fardbeyan statement of Ashok Tanti  (PW6), a case was instituted on January 26, 2014 for investigation of the offence under Sections 147, 148, 149, 341, 323, 324, 307, 302, 504 and 120(B) of the Indian Penal Code. The police after investigation submitted chargesheet only against the appellant, who was put on trial. The Trial Court examined ten witnesses on behalf of the prosecution but none on behalf of the defense, convicted and sentenced the appellant. 

The High Court examined the records because the I.O. was not examined. Umesh Prasad (PW10) is the person who had submitted only the charge-sheet. Dr. Nand Kumar Sada (PW1) had conducted the postmortem on the bodies of ShambhuTanti and Rasman Devi. He opined that the death was because of shock and hemorrhage caused by the injuries suffered by them, which apparently was inflicted by sharp cutting weapon. The postmortem report and the evidence of PW1 confirmed that the two deaths were homicidal in nature. Notably, PW3 did not support the prosecution's case and was declared hostile. 

The appellant's counsel submitted that the motive for murder does not become clear from the deposition of PW6 who did not come out with any clear version regarding the actual dispute which goaded the appellant to kill his family members. The Court noted that it remains doubtful whether PW6 had seen the occurrence himself. Except for PW6, nobody has spoken about the appellant having been instigated by his co-villagers for killing the family members of PW6. The Court found that whatever may have happened the rage was not against the family members of PW6 but against PW6 in particular. The story of the dispute regarding expenses incurred in the shradh of the mother of the appellant was not confirmed by any one of the witnesses. The trigger point of the occurrence was not examined by the Investigator, who was not examined.

The Court has recorded that the sequence of events as narrated by the witnesses did not make it very clear that all these attacks were absolutely contemporaneous and executed one after the other. There would certainly have been some time lag, especially when many persons had assembled at the place of occurrence. It is the story of PW6 which was taken as sacrosanct evidence against the appellant of his having killed the deceased and injured Neelam Devi and her husband/ Wakil Tanti. 

he Court noted that the absence of the Investigator at the Trial caused great prejudice to the case of the appellant. If the appellant had acted under the influence of liquor and on exhortation of his associates, those persons were also responsible for the occurrence were not made accused in this case and only the appellant has been put on trial.

The Court concluded that the appellant did not harbour any enmity against the family of PW6 or the deceased and the injured persons; (2) the anger was only for a dispute with respect to expenses of money and its accounting ; (3) it remains unknown whether the family of PW6 had lent money or the appellant had expected PW6 to participate and help him financially in performing the shradh ceremony; (4) the target, if PW6 is to be believed, was PW6 himself and not his other brothers; (5) there was no premeditation or conspiracy for the reason that no evidence could be collected except for the bald statement of PW6 that a conspiracy was hatched where the appellant was provided with weapon of assault and was also deliberately befuddled by administering intoxicant to him.

The Court observed the fact that the appellant cannot take the advantage of exception of section 85 of the IPC because he knew that he was administered toddy/intoxicant and it was not against his will because he had volunteered to accept it for a drink.

The Court probed the question as to whether the appellant had the intention of causing the deaths of two persons and injuries to the injured as the core issue. It noted that there were no repetition of blows. There was no enmity existing from before. Appellant came from the same stock of family. PW6 and his other family members had also participated in the funeral and shradh of the mother of the appellant.

The Court inferred that the attack on Shambhu Tanti and Rasman Devi, who are dead is established. Although the appellant harboured the intention of causing the death of the two persons but he did have the intention to cause injuries to the deceased, which was likely to cause death. This makes him liable for the offences under Section 304 Part -A of the IPC. He also attacked Neelam Devi and Wakil Tanti with the intention to cause such bodily injuries to them which might have resulted in death.

304A deals with "Causing death by negligence". It reads: "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." This provision was inserted in 1870.

In the light of the facts on record, the Court converted the conviction of the appellant to one under Section 304 Part -A of the IPC. It maintained the conviction under Section 324 of IPC. The judgement was authored by Justice Ashutosh Kumar.

Thursday, March 28, 2024

Judgements by one year old Chief Justice of Patna High Court, the judge who upheld Bihar Caste Survey

Justice K. Vinod Chandran (61) joined as the Chief Justice of Patna High Court on March 29, 2023. Prior to that he was a judge of High Court of Kerala since November 2011. He will retire as judge on April 24, 2025. Between April 3, 2023 and March 27, 2024, he presided over the benches which have delivered 2408 judgements. In his first judgement in Narendra Mandal v. State of Bihar, he dismissed the public interest petition saying, "We are of the firm opinion that there is no public interest involved and the above writ petition is devoid of merit and the same is liable to be dismissed; which we do." 

In his last judgement so far in Shashi Sinha v. Union of India, he observed, "The writ petition stands dismissed with the above reservation." The reservation is with regard to the submission of the petitioner that the issue of denial of honorarium between March, 2011 to May, 2022 and from January, 2023 to October 2023 has survived the verdict of a Full Bench of the High Court in L.P.A. No. 748 of 2022 in the matter of the challenge against second proviso of Section 23 of the Right to Children to Free and Compulsory Education Act, 2009. The petitioner has moved the appellate authority which has allowed the claim. Justice Chandran concluded, "In such circumstances, it is for the petitioner to seek execution of the order passed by the appellate authority. For the period beyond that considered by the appellate authority, the petitioner would be entitled to make a representation before the competent authority, who shall consider the same and dispose of the matter within three months from the date of presentation." 

In Youth For Equality v. State of Bihar, the 101-page long judgement authored by Justice Chandran reads: "we find the action of theState to be perfectly valid, initiated with due competence, with the legitimate aim of providing ‘Development with Justice’; as proclaimed in the address to both Houses and the actual survey to have neither exercised nor contemplated any coercion todivulge the details and having passed the test of proportionality,thus not having violated the rights of privacy of the individual especially since it is in furtherance of a ‘compelling public interest’ which in effect is the ‘legitimate State interest’. We dismiss the writ petitions, leaving the parties to suffer their respective costs." 

Besides Youth For Equality, the other petitioners were Dr. Bhurelal, Prof. Makkhan Lal, Prof. Kapil Kumar, Prof. Sangit Kumar Ragi, and Ahna Kumari. Notably, the judgement refers to Aadhaar Number on 16 occasions in the context of related judgements of the Constitution Bench of Supreme Court

The petioners' counsel relied on Justice (Retd) K.S. Puttaswamy II (Aadhaar) v. Union of India (2018) to point out that these three aspects are very sensitive personal information which defines the identity, autonomy, dignity and privacy of every individual. Supreme Court in Justice K.S.Puttaswamy I v. Union of India (2017) had specifically dealt with these aspects and held it to be sacrosanct; the infringement of which would also fall foul of the constitutional guarantees to preserve fundamental rights and never to be impinged; other than by way of reasonable restrictions, conforming to strict standards of scrutiny. The State by the above survey conducted amongst the residents of Bihar is imposing a caste status on every citizen, whether he desires it or chooses to distance himself/herself from it.

The judgement reproduces excerpts from Supreme Court's decision in Aadhaar case which succinctly stated the following features:
“108. It stands established, with conclusive determination of the nine-Judge Bench judgment of this Court in K.S.Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] that right to privacy is a fundamental right. The majority judgment authored by Dr D.Y. Chandrachud, J. (on behalf of three other Judges) and five concurring judgments of other five Judges have declared, in no uncertain terms and most authoritatively, right to privacy to be a fundamental right. This judgment also discusses in detail the scope and ambit of right to privacy. The relevant passages in this behalf have been reproduced above while taking note of the submissions of the learned counsel for the petitioners as well as respondents. One interesting phenomenon that is discerned from the respective submissions on either side is that both sides have placed strong reliance on different passages from this very judgment to support their respective stances.
109. A close reading of the judgment in K.S. Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] brings about the following features:
109.1. Privacy has always been a natural right : The correct position in this behalf has been established by a number of judgments starting from Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148: 1975 SCC (Cri) 468] Various opinions conclude that:

109.1.1. Privacy is a concomitant of the right of the individual to exercise control over his or her personality. 

109.1.2. Privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III.

109.1.3. The fundamental right to privacy would cover at least three aspects — (i) intrusion with an individual's physical body, (ii) informational privacy, and (iii) privacy of choice.

109.1.4. One aspect of privacy is the right to control the dissemination of personal information. And that every individual should have a right to be able to control exercise over his/her own life and image as portrayed in the world and to control commercial use of his/her identity.”

After factoring in these aspects, Justice Chandran observed, "We have to notice that there are concerns raised by the petitioners insofar as the head of the family being asked to disclose the details of others, the caste of the mother not being recorded in any context and there being no option to refuse to declare the caste status; though the same is available insofar the religion is concerned. We have to emphasize the contention raised by the State that a mathematical precision is not warranted in identification of backward status or occupational classes or groups and caste is the best denominator available as of now; which is recognized also in Indra Sawhney, a Constitution Bench. It cannot, but be observed that caste is a matter of descent while religion is a matter of belief. India has many instances of persons belonging to the same caste practicing different religions and despite the religions other than the Hindu religion, not practicing caste system as such; those converted groups, in the other communities also are conferred with backward status and enabled privileges and benefits by the State. The details sought for in the survey are not individual centric and is not aimed at targeting an individual, which in the context of the details collected from the head of the family; is virtually impossible, as the law exists today."

His judgement reads: "As we discern, the disclosures are voluntary and it has a definite aim of bringing forth development schemes for the identified backward classes/groups. The caste status sought to be collated is not intended at taxing, branding, labeling or ostracizing individuals or groups; but it is to identify the economic, educational and other social aspects of different communities/classes/groups, which require further action by the State for its upliftment."

As to security concerms, the judgement records that "The counter affidavit of the State goes on to demonstrate that the Caste Based Survey has a full proor mechanism and there are no chances of any kind of leakage of the data. The survey operation has taken into account the following measures:
a. Provision and arrangement has been made to ensure the confidentiality and security of the data.
b. Enumerators and supervisors have been instructed and trained not to share or show the data with any unrelated individual/third party.
c. Provision has also been made in the software so that no one can take the screenshot of the mobile app.
d. Device binding has been done so that each enumerator or supervisor can work with only one mobile during the whole process.
e. Data cannot be downloaded from the mobile device.
f. Data of any person cannot be downloaded from the system. It is encrypted data and can be read only on the data base made for it.
g. Data are being stored in servers of the State Data Census of the Government of Bihar and not on any other server or on the cloud so therefore, no unauthorized person except, the Data Based Administrator can access the data.
h. The Role Based Access Control (RBAC) System is working with OTP verification to ensure the entry of only authorized users.
i. Encrypted password storage and secure coding practices are in use of security of the data." 

The judgement reproduced the letter produced as from the Officer on Special Duty to the Secretary of the General Administration Department, on the "Subject:-With regard to making available facilities of Web Portal Hosting, SMS and E-Mail at the State Center under Bihar Caste Based Census – 2022. Ref. – Your letter no. 272/23 dated 12.01.2023 and letter no. 2016/2023 dated 26.04.2023 of Beltron."

It reads: "Sir, In the light of your letter on the aforesaid subject under reference regarding declaration of secured I.T Infrastructure to those basic infrastructure under the I.T. Act where the data of caste based census have been stored at the data center of Beltron and the relevant storage, it has been declared vide letter no. 2016/2023 dated 26.04.2023 of Beltron that application and data hosting related with caste based census for State Data Center is a secured I.T. Infrastructure in accordance with the provisions of Information Technology Act 2000 (as amended) and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011.” 

Justice Chandran concluded, "The security aspect argued by the petitioners are hence taken care of and that does not invalidate the survey."  It emerges from the judgement that the petioner's failed to persuade the Justice Chandran led bench. The bench comprised of the Chief Justice and Justice Partha Sarthy. This bench upheld the caste survey being undertaken by the Bihar government on August 1, 2023 on several petitions challenging the caste-based survey. Prior to this on May 4, 2023, the High Court had stayed the caste survey.

In December 2023, his bench ruled in favor of a Cooperative Society registered under the Bihar Goods and Services Tax Act, 2017 (BGST Act), stating that the Solid Waste Management Activity undertaken by the petitioner is exempt from BGST. The court quashed assessment orders and demand notices against the Cooperative Society.

His bench dismissed a lawyer's plea seeking upper age limit relaxation in the examination of 2023. The lawyer had sought a direction authorities to fix the cutoff date for determination of age limit at January 1, 2022 in place of January 1, 2023 in view of the fact that no advertisement was published in the recruitment year 2022 so that those who were eligible to participate in the recruitment year 2022 can participate in the recruitment year 2023. The Court noted that the Petitioner failed to establish any arbitrariness or infringement of his fundamental or legal rights. “Delay in issuance of advertisement by itself will not create any right or legitimate expectation in favour of a person so as to seek relaxation in the upper age limit as prescribed for a preliminary examination.”
Notably, his bench granted relief to temporary employees who have served more than 15 years are eligible for pension benefit. 

In Ravi Shankar v. State of Bihar, his bench observed that a son cannot claim a right to residence in a building exclusively owned by his father by virtue of their relationship alone. It held that, "since there is no injunction against the exclusive possession of the 8th respondent, the 1st appellant cannot claim any right of residence in the building as a co-owner, just as the father, a senior citizen, cannot seek eviction from the separate residence of the son in a building owned by him, under the Senior Citizens Act. The son also cannot claim a right to residence in a building exclusively owned by the father, by virtue of their relationship alone." It recorded that, "The parents and the son and his family are residing in different places, the former at a rented accommodation and the latter in the rest house occupying three rooms; though there is an allegation of harassment and nuisance. The fact that the parents and the son and his family are not living in one building would not enable a prayer for eviction. The rest house, which is a separate building is where the son resides with his family." It observed that there was no ground to enable an eviction by the Tribunal constituted under the Act. In that context, it was said that, "there could be no eviction ordered under the Senior Citizens Act since the claim is not under Section 23(1). The claim of the 8th respondent before the Tribunal under the Senior Citizens Act, if at all coming under Section 23(2) of the Act, there can only be an enforcement of the right of maintenance from the property. An occupation whether it is permissive or an encroachment would have the trappings of a transfer, which would dis-entitle the owner of the property from the maintenance by way of rental income generated from the occupied rooms in the rest house. We make it clear that the appellants, as of now, do not have any right to claim the income from the other rooms in the rest house, nor can they obstruct or cause harassment to the other occupants of the rooms."

In Chief Justice bench imposed a Cost of Rs.10,000/- on a man while dismissing a Public Interest Litigation (PIL) filed by him challenging the appointment of the Private Respondent who was allowed to work in a police station by the SHO of the said police station without any appointment order.

In Manoj Kumar v. University of Bihar, Raj Bhawan, his bench rejected a PIL filed by a teacher seeking exemption from attending LLB classes due to his employment in a school on January 5, 2024. A teacher seeking exemption from LLB classes on the ground of his employment in a school. Dismissing the PIL, it held held it as misconceived and a clear abuse of the jurisdiction invoked under Article 226 of the Constitution, as a PIL.Petitioner was a science teacher at Jawahar Navodaya Vidyalaya, Garhwa, Jharkhand. He sought an order to take admission to a college in Bihar for LLB course. The petitioner had  appeared in person.

The Chief Justice bench dismissed a Public Interest Litigation (PIL) alleging non-compliance of the provisions of the Rights of Children to Free and Compulsory Education Act, 2009 by schools in Bihar. It observed that the petitioner approached the court by making vague and sweeping allegations.
In Sudama Kumar v. State of Bihar, the Chief Justice bench dismissed the PIL alleging that the Bodhgaya Temple Management Committee is carrying out an illegal construction within the 100 meters radius of the World Heritage Site declared by the UNESCO. The petitioner had alleged that the construction is made in complete violation of the provisions of the Bihar Building Bye-Laws, 2014 and the Bihar Municipal Act, 2007 and the construction is without the sanction from the Bodhgaya Nagar Parishad. Justice Chandran bench dismissed a Public Interest Litigation (PIL) filed seeking direction to the respondents to handover possession of land to the grantees/surviving heirs as also to cancel the certificate of those grantees who are selling their land. The PIL filed by one Md. Abul Khair had prayed for handover of possession of land to grantees or their surviving legal heirs as certificates of settlement of land under Bihar Bhoodan Yagna Act, 1954, has been issued to them. The Court recorded that the petitioner wants action against private individuals without impleading them party respondents. The case is a fit to be dismissed solely on the ground of non-joinder of necessary parties. It concluded, “From the aforesaid facts, it is clear that a private interest litigation has been given the color of the public interest litigation. Though, this Court wanted to impose exemplary cost while dismissing the writ petition, we are refraining from doing so”.
In Sunil Kumar vs. State of Bihar, the Chief Justice bench dismissed a petition challenging the Bihar government's decision to appoint shooters for shooting vermin.The PIL was filed challenging the state government's plan to form a committee to choose shooters to shoot vermin throughout Bihar. The bench observed, "it is the duty of the state to look into the balancing considerations so as to mitigate human-animal conflict and decide on the measures to be taken which also has to be in accordance with the Act of 1972", referring to the Wild Life (Protection) Act, 1972. The State submitted that while the 1972 Act imposes a general prohibition on hunting, particularly of species threatened with extinction, the legislators were also mindful of human-animal conflicts in areas where human habitation is predominate.It was also argued that in the state of Bihar, nilgai (ghorparas) and wild boar are two animals that constantly interfere with agricultural landscapes, negatively impacting human farming activities and lives. The State claimed that the two animals have been included in Schedule III of the Act of 1972, and the Central Government declared them to be vermin under Schedule V of the Act. The petitioner submitted that rather than shooting the animals, the state should take some measures to relocate them.The bench while dealing with the PIL observed that the Chief Wildlife Warden of Bihar had issued an order under Section 5(2) of the 1972 Act delegating his powers under Section 11(1)(b) to Mukhiyas as authorised officers who could obtain the services of any expert shooter authorised by the Forest Department or from a panel prepared by the Forest Department or any other expert shooter. The judgemeyt reads: “The court noted that the Arms Rules of 2016 already contain specific provisions for a separate licencing procedure for the destruction of wild animals.” It further said that the methods used to frighten away the animals were ineffective. It observed, "Action under Section 11(b) of the Act was justified after finding that such relocation measures are ineffective in protecting agricultural operations in dense human habitations." It ruled, "We are unequivocal of the opinion that there is no room for interference under the extraordinary jurisdiction exercised by this court in the present case of public interest." 

Pursuant to its interpretation to Section 23(1) of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017, the bench of Chief Justice K. Vinod Chandran, Justices Ashutosh Kumar and Rajiv Roy pronounced its 35 page long judgement in Bibi Sakina Khatoon and nine others v. Union of India and 19 others. The opening paragraph of the judgement reads: "Unqualified and untrained teachers are the bane of any system of education, in which, the students; often celebrated as the citizens of tomorrow, wallow in ignorance and get mired in misinformation, thus, stultifying the development and growth of a Nation State. Quite realizing the importance of a robust educational system; for maintaining and upgrading the teaching standards, with a vision to strengthen the social fabric of democracy and further the Directive Principles of State Policy, the crucial role of elementary education was emphasized by the Union Parliament in enacting the Right of Children to Free And Compulsory Education Act, 2009". The Act mandates free and compulsory education to all children up to the age of 14 years.
The Chief Justice led Bench prevented unjust enrichment by Indian Oil Corporation Limited. It endorsed arguments by P. K. Shahi, the Advocate General of Bihar against unjust enrichment. It held that delay of 12 years after mistaken payment by Public Sector Undetakings (PSU) is inexcusable, PSU suffers loss of Rs.1,17,06,169. The bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar concluded, "We find absolutely no reason to entertain the writ petition and dismiss the same leaving the parties to suffer their respective costs" in Indian Oil Corporation Limited, Barauni Refinery v. State of Bihar (2024).

Notably, the Chief Justice bench set aside the amendment to Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019. Drawing on the principle of ejusdem generis and the principle of a delegate being prevented from further delegation, the bench of Chief Justice Chandran and Justice Harish Kumar has set aside the  amendment to Rule-38(3) of the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules in Abhay Kumar v. Union of India. The Court also set aside delegation of power to exempt given to the State by Clause-13 of Appendix-IX under Environment Impact Assessment Notification, 2006. The judgement was authored by Chief Justice Chandran. It emerges from the judgement that Bihar State Pollution Control Board (BSPCB) failed to persuade the Court to allow it to absolve the brick-kilns from getting environmental clearance. BSPCB's stance makes it a pollution abetter, and not a pollution controller. He emphasized that "the State has not been conferred with any such power of exemption by the statute; neither the MMDR Act nor the Environment Protection Act. In that circumstance the power delegated to the Union Government cannot further be delegated to the State Government on the principle of 'deligatus non protest delegare'." The petitioner was aggrieved with a notification, by which quarrying for the purpose of brick-kiln was deemed to be a non-mining activity for the purpose of environmental clearance and also required that such clearance would be imperative only if the depth of quarry is not more than one and a half meters from the adjoining ground level.

Chief Justice bench sets aside arbitrary promotion elligibility rule of the Bihar Subordinate Prohibition Service Rules, 2017. In its order dated March 4, 2024, the bench of Chief Justice Chandran and Justice Harish Kumar set aside Rule 11(4) of the Bihar Subordinate Prohibition Service Rules, 2017, which extinguished completely, the avenue of promotion to the post of Sub-Inspector; to non-graduate Assistant Sub-Inspectors. Before the introduction of these Rules of 2017, the Assistant Sub-Inspectors were considered for promotion on the basis of their suitability and seniority without any specification of minimum educational qualification. The Rules of 2017 abruptly changed the criteria and introduced graduation for promotions. The Bihar Subordinate Prohibition Service (Recruitment and Service Conditions) (Amendment) Rules, 2018 rechristened the Rules of 2017 as The Bihar Subordinate Prohibition Service Rules. It further amended sub-rule (4) of Rule 4 making provision for 50% of total sanctioned strength of Sub-Inspectors to be filled by direct recruitment and remaining 50% to be filled up by promotions from amongst Assistant Sub-Inspectors on seniority cum eligibility.  Dhananjay Kumar, the petitioners' counsel contended that even now the Sub-Inspectors who are not graduates are promoted to the post of Inspectors. The Assistant Sub-Inspectors and the Sub-Inspectors more or less are engaged in the same duties. When the prescription of a minimum eligibility of graduation is not there for promotion from Sub-Inspectors to Inspectors, it is arbitrary to totally obliterate avenues of promotion for the Assistant Sub-Inspectors who have spent a long period in the police service.
In pursuance of public interest, Rohit Kumar, the petitioner, a practicing advocate had sought an audit as well as physical verification of the arms and ammunition as well as records of arsenal and armoury kept with the Bihar Police, including the Bihar Military Police, which are situated at District Headquarters (Police Line) and the Headquarters of Bihar Military Police. Chief Justice Chandran asked the State to ensure compliance with Police Manual to deal with missing arms and cartridges. The petitioner had filed CWJC No.11642 of 2021 in the Patna High Court. The petitioner had prayed for setting up of a Special Team by the Patna High Court to investigate cases registered under Samsatipur and Siwan Mufassil Police Stations in relation to missing of huge cache of ammunition. The petitioner relied on the report of the Accountant General (Audit) about missing of arms and cartridges from the arsenal of Darbhanga Police Line in February 2019. He had alleged that the police officials themselves are responsible for missing of arms and ammunition, which find their way to the hands of extremists/miscreants/criminals. The Superintendent of Police(E), CID, Bihar, Patna has filed a counter affidavit. It is stated that in pursuance to the order of the Court dated August 2, 2021, details of the progress of the investigation in the referred crimes were called for. 

The bench of Chief Justice Chandran and Justice Rajiv Roy delivered a judgement on February 29, 2024 after hearing the writ petition which challenged the constitutional validity Srimati Radhika Sinha Institute and Sachidanand Sinha Library  (Requisition And Management) Act, 2015 on January 8, 2024. Justice Chandran concluded that the law is constitutionally valid.The petition was filed May15, 2015 by Anurag Krishna Sinha against the State of Bihar. The petition was heard on some fifteen occasions. The judgment was reserved on January 8, 2024.. The judgement was authored by the Chief Justice. This dismissal reversed the interim order dated May 22, 2015 by the bench of the then Chief Justice L. Narasimha Reddy and Justice Sudhir Singh which had suspended the operation of the Act as an interim measure. 

The bench of Chief Justice and Justice Harish Kumar dismissed appeal against action taken under Enemy Property Act, 1986 in Re: LPA No. 919 of 2015 which was filed against the judgment dated September 24, 2014 rejecting the prayer for quashing order dated June 18, 2010 passed under Sections 5 and 24 of the Enemy Property Act, in so far as it relates to the original first petitioner, father of the appellants, claiming title over a property. The Court found "absolutely no reason to interfere with the judgment of the learned Single Judge."

Chief Justice held that the petitioner cannot be deprived of the benefit, due to non- constitution of the Appellate Tribunal under Bihar Goods and Services Tax Act, 2017 in Civil Writ Jurisdiction Case No. 2181 of 2023 (Amit Kumar Singh v. Union of India). The petitioner was desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax (BGST) Act, 2017. But  due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the BGST Act. As a consequence,  the petitioner was also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the BGST Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112. The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office. Department of Commercial Taxes, Government is primarily responsible for Tax administration under B.G.S.T Act. So far this law has been amended twice in 2021 and 2023. 


Tuesday, March 26, 2024

Question about validity of death penalty was raised in the 7th Lok Sabha

On August 22, 1984, P. Venkatasubbaiah, Union Minister of State the Ministry of Home Affairs informed the 7th Lok Sabha that the power of the President under article 72 of the Constitution to commute a sentence of death is absolute and unfettered and a decision is taken by the President on the merits of each prisoner’s case. During the three year period ending with August 14, 1984 the President was pleased to commute the death sentences of five condemned prisoners. He was replying to a question from Lakshman Mallick who had asked about the the number of death sentences commuted by the President during the last three years; and the guidelines for commuting the death sentences. 

Lakshman Mallick had asked about the the number of death sentences, during the last three years, state-wise and years-wise, confirmed after the appeal rejected by the Supreme Court. The minister informed that as of August 14, 1982, 1983 and 1984, there were a 3, 31 and 8 prisoners respectively, who were executed or the awaiting execution after rejection of their Mercy Petition. The minister provided State-wise and year-wise, who were executed or are awaiting execution after their mercy petitions were rejected by the President during the same Period after rejection of their appeals by the Supreme Court.

Out of the 3 who faced execution in 1982, one was from Maharashtra and 2 were from Delhi. Out of the 31 prisoners who faced execution in 1983, 2 were from Bihar, 1 from Gujarat, 2 from Haryana, 1 from Karnataka, 2 from Madhya Pradesh, 6 from Maharashtra, 5 from Punjab, 1 from Rajasthan, 6 from Tamil Nadu, 3 from Uttar Pradesh and 2 from Delhi. Out of the 8 prisoners who faced execution in 1984, 1 was from Jammu and Kashmir, 1 from Maharashtra, 4 from Punjab, 1 from Tamil Nadu and 1 from Uttar Pradesh.   

He had also asked whether Government have received any comments from the public or expert lawyers regarding its abolition. The minister replied, "No comments from the public or expert lawyers were received after the Supreme Court in Bachan Singh and others Vs. State of Punjab (AIR 1980 Supreme Court 898) had uphold the validity of the death penalty".

Notably, in Deena v. Union of India (1983), the Supreme Court directed the constitution of a committee of experts to re-examine whether hanging as a method of execution in capital punishment is in line with constitutional standards, 40 years after this method was upheld.    

Patna High Court acquitted three persons who faced death sentence in 2023

According to the National Crime Records Bureau (NCRB), 561 prisoners were living under a sentence of death at the end of 2023, which is the highest population on death row in a single calendar year in nearly two decades. 

As of December 31 2023, 120 death sentences were imposed by trial courts across the country, according to the eighth edition of the Death Penalty in India: Annual Statistics Report. Its previous seven editions are available at [2022] [2021] [2020] [2019] [2018] [2017] [2016]. These reports are prepared by the team members of Project 39A of National Law University, Delhi (NLUD). 

In 2023, Patna High Court acquitted three persons who were given death penalty by the trial courts. 

1. In the State of Bihar v. Amar Kumar, High Court's bench of Justices Ashutosh Kumar and Alok Kumar Pandey acquitted a person who was charged with murder involving sexual offences, on December 18, 2023.

2. In the State of Bihar v. Deva Nand Singh, High Court's bench of Justices Chakradhari Sharan Singh and G Anupama acquitted a prisoner of murder simpliciter on November 30, 2023.

3. In the State of Bihar v. Shahid, Justices Chakradhari Sharan Singh and Nawneet Kumar bench of the Patna High Court acquitted a person of murder involving sexual offences on August 29, 2023.

In Jai Kishor Sah v. State of Bihar, Patna High Court's bench of Justices Chkradhari Sharan and Rajesh Kumar Verma commuted the death sentence of the prisoner in a case of murder involving sexual offences on June 26, 2023. The sentence was reduced to fixed term imprisonment of 25 years without remission.  

The three new criminal laws, namely, Bharatiya Nyaya (Second) Sanhita (the Indian Penal Code), Bharatiya Nagarik Suraksha (Second) Sanhita (the Criminal Procedure Code) and Bharatiya Sakshya Act, 2023 (the Indian Evidence Act) are all set to come into force from July 2024.

Notably, the Bharatiya Nyaya (Second) Sanhita (new IPC) has increased the number of offences punishable by death from 12 to 18. 

The procedures and time limit for filing mercy petitions by death row prisoners are provided in the Bharatiya Nagarik Suraksha (Second) Sanhita (new CrPC). It codifies the procedure for filing of mercy petitions by death row prisoners. It introduces time limits for the filing of these petitions. 

80, 000 cases pending in Supreme Court, 196947 cases in Patna High Court, 5150733 cases in Bihar's District, Subordinate Courts

According to National Judicial Data Grid, out of 79787 cases including 2240 writ petitions and 972 contempt petitions pending in Supreme Court, 62793 are civil cases and 16994 are criminal cases. Notably, 

Union Ministry of Law and Justice informed Parliament on December 15, 2023 that 4735 cases are 10 to 20 years old and 14840 cases are 5-10 years old in the Supreme Court. 

In the High Courts, there are 6181977 pending cases, according the National Judicial Data Grid. Out of which 4426938 are civil cases and 1755039 are criminal cases.

There are 32,25,690 cases which are 10 to 20 years old and 68,94,578 cases are 5-10 years old, as per minister's reply. He also informed the parliament that in the district courts of India, there are 32,25,690 cases which are 10 to 20 years old and 68,94,578 cases are 5-10 years old. The National Judicial Data Grid reveals that there are a total of 44190110 cases in District and Taluka Courts of India. Out of which 3637842 cases were filed by women.   

A total of 196947 cases are pending in Patna High Court. Out of which 108091 are civil cases and 88856 are criminal cases. There are 5150733 pending cases in  Bihar's District and Subordinateas of December 12, 2023.

In Patna High Court, a total of 3058 cases are over 30 years old, 5607 are 20 to 30 years old, 26386 are 10 to 20 years old, 48997 are 5 to 10 years old, 27437 are 3 to 5 years old, 32168 are 1 to 3 years old and 53294 are 0 to 1 years old. A total of 16914 cases were filed by women. Out which 11781 were civil cases and 5133 criminal cases. 

Notably, there are 2 reference cases, 40 suits and 167 applications which are pending in the High Court. 

Out of a total of 3058 cases which are over 30 years old, there are 14 criminal cases.    

National Testing Agency (NTA) makes Holi of CUET UG candidates colourless, Citizens Forum for Civil Liberties (CFCL) condemns NTA's contempt of Supreme Court

Sunday, March 24, 2024

Patna High Court sets aside judgment by Special Judge, Vigilance-II, Patna in Koshi Hydal Power Station, Birpur, Saharsa case

In Vishwanath Gangul v. State of Bihar, Justice Sunil Kumar Panwar, Patna High Court found force in the submissions made on behalf of the appellants. He inferred that the submissions of the Vigilance is devoid of any merits. By its judgement, the High Court set aside the judgment of conviction and order of sentence dated February 7, 2012 passed by Special Judge, Vigilance-II, Patna in connection with Special Case No. 7 of 1998, arising out of Vigilance P.S. Case No. 7/1998. It acquitted all the appellants of all the charges. They were discharged from the liabilities of their bail bonds.

The appeals were filed against the judgment of conviction and order of Special Judge, Vigilance-II, Patna, whereby and whereunder the accused appellants and others were found guilty and convicted and convicts Kapildeo Narain Prasad Sinha, Vishwanath Ganguli, Shashinath Jha, Deep Narain Mandal and Anil Kumar Rai were sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 120(B) of the Indian Penal Code (IPC), rigorous imprisonment for one year for the offence punishable under Section 420 of the IPC, rigorous imprisonment for one year for the offence punishable under Section 467 I.P.C, rigorous imprisonment for one year for the offence punishable under Section 468 I.P.C, rigorous imprisonment for one year for the offence under Section 471 of the I.P.C. The convicts Kapildeo Narain Prasad Sinha, Vishwanath Ganguli, Shashinath Jha and Deep Narain Mandal were sentenced to undergo rigorous imprisonment for a period of one year under Section 13(10(d) of the Prevention of Corruption Act, 1988. The convict Anil Kumar Rai was sentenced to undergo rigorous imprisonment for six months under Section 12 of the Prevention of Corruption Act. All the sentences were directed to run concurrently.

The case of the prosecution was that an inquiry was conducted by the Crime Investigation Department and it was found that the estimate was prepared in the year 1986 for capital maintenance of Unit No. II of Koshi Hydal Power Station, Birpur, Saharsa under the supervision of Larson & Turbo Company, Calcutta. This estimate was prepared by the engineers of Larson & Turbo after physical verification of Unit No-II at Birpur. This estimate was prepared for Rs. 5,75,795/-, but the file relating to the said estimate could not return from Head Office, Bihar State Electricity Board (BSEB), Vidyut Bhawan, Patna to Birpur and then in November, 1988, on the same basis, another estimate was prepared for Rs. 6,36,852/-. There was difference of time of one year and eleven months in between the first and second estimate and during that period there was price rise and due to which the amount of second estimate was raised. The estimates were prepared by the local Executive Engineer, Assistant Engineer and Junior Engineer. 

The second estimate was sent to Chief Engineer, Hydal and Investigation S.B. Ram for its acceptance, who sent it to the then Project Manager, Jal Vidyut Pratishtan, Sikidri K.P. Sinha and Executive Engineer (Civil) Ranchi V.N. Ganguli. These two persons arbitrarily enhanced the estimate to Rs. 8,93,330/- without obtaining price list of the articles. In enhancement of the estimate cost, the role was played by S.P. Ram, K.P. Sinha, V.N. Ganguli and D.N. Mandal, the then Executive Engineers, Koshi Hydal Power Station. It was also alleged that Phulanand Jha, the then Electrical Execution Engineer (now dead) was also one of the associates in enhancement of rate of estimate. D.N. Mandal was camping in Ranchi from Birpur only for this work. The second estimate of Rs. 6,36,852/- was also prepared by him and again a third estimate of Rs. 8,93,330/- was prepared in connivance of D.N. Mandal and other officials. In the file relating to the estimate which was sent to Chief Engineer Ranchi for its acceptance, it was specifically provided that the basis of estimate is Larson & Turbo but the accused persons did not obtain any rate of articles from Larson & Turbo and arbitrarily they enhanced the estimates. 

It was alleged that the materials required for capital maintenance of the second unit was purchased from the market without giving any advertisement or without obtaining any quotation, and as such, the accused persons arbitrarily enhanced the amount of third estimate. The accused persons even did not contact the Larson & Turbo company at the time of preparation of estimate. After that the work was got done by M/s Gaurav Constructions, Birpur on the basis of third estimate and its payment was made by Chief Engineer, Hydal and Investigation, Ranchi. M/s Gaurav Constructions & Company is not authorized for the work, rather it works as middleman and in fact the work was got done by technically expert firm in Ranchi.

On the basis of this report, Vigilance P.S. Case No. 7 of 1998 was registered under Sections 120(B), 420, 468, 467, 471 of the IPC, Section 5(2) r/w 5(1)(d) of the P.C Act, 1947, corresponding to Section 13(2) r/w 13(1)(d) of the P.C. Act, 1988. After completion of the investigation, charge sheet was submitted against altogether six accused persons above named under the aforesaid sections and thereafter cognizance was taken and the accused persons were put on trial. 

The counsel of the Vigilance has submitted that three estimates were prepared for capital maintenance of Unit No-II of Koshi Hydal Power Station, Birpur. The difference of amount in first and second estimates was due to time gape of one year and eleven months and price rise during that period. The first and second estimates are not under allegation in this case because it were prepared under the assistance of Larson @ Tubro company. However, the third estimate was prepared by the accused persons in connivance with each other without consultation of Larson @ Tubro Company, whereas it was specifically provided that estimate was to be prepared with the assistance of Larson @ Tubro and price fixed by it. 

Notably, Sant Kumar Sharma, the Investigating Officer (IO) has also stated in his evidence in para-5 that during the course of investigation, he came to know that the estimate was to be prepared with the assistance of Larson @ Tubro and the work was to be done by it, but in spite of that the accused persons did not follow the mandate without assigning any reason in this regard and arbitrarily prepared the third estimate enhancing the cost. 

The counsel for the Vigilance had submitted that the work was to be done by Larson @ Tubro company, but in spite of that the accused persons did not prefer to get the work done by Larson @ Tubro without assigning any reason in this regard and they arbitrarily got the work done by Gaurav Construction company. From the materials available on record, it is apparent that the accused persons prepared third estimate enhancing the amount of second estimate arbitrarily without any valid reason in connivance with each others and for their own benefit which caused loss of Rs, 2,56,478/- to the BSEB. The appellant's counsel submitted that prosecution was required to prove with cogent evidence of material but the entire case is based upon surmises and conjecture. The Court found appellant's submission to be convincing. 


Patna High Court grants liberty for filing Civil Review petition to recall High Court's order in a food adulteration case

Patna High Court's bench of Justices P. B. Bajanthri and Alok Kumar Pandey disposed of Md. Islam v. State of Bihar (2024) Miscellaneous Jurisdiction Case (MJC) No.1538 of 2022 as not maintainable but granted liberty to file Civil Review Petition for recall of High Court's order by Chief Justice Sanjay Karol and Justice S. Kumar bench in a food adulteration case. The was filed on August 18, 2022 and registered on August 22, 2022. The case arose out of Civil Writ Jurisdiction Case/3332/2022 which was filed on February 22, 2022, registered on February 25, 2022 and disposed on April 25, 2022. 

The petitioner had prayed for issuance of appropriate writ/direction/order for release of the Tata LPT 2515 Model Truck bearing Registration No. NL01D3907 Chasis No. 426031GTZ128632 and ENGINE No. 60G62495487, which was seized in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur for the offences punishable under sections 272 and 273 of the Indian Penal Code (IPC), pending in the Court of A.D.J. -2nd cum Special Judge (Excise Act) Muzaffarpur, which was sent to the Collector cum District magistrate, Sitamarhi for its confiscation. 

The section 272 of the IPC deals with “Adulteration of food or drink intended for sale". It states that "whoever adulterates any article of food or drink, so as to make such article noxious as food or drink intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 

The section 273 of the IPC deals with "Sale of noxious food or drink". It reads: "whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”.

The bare perusal of the Food Safety & Standards Act, 2006 demonstrates that all laws prevailing in the country related to to food, their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto was expressly and impliedly repealed. It is crystal clear that sections 272 and 273 of the IPC are repealed provisions of the IPC. Therefore, seizure for the offences punishable under sections 272 and 273 of the IPC in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur is legally questionable.   

The section 89 of the Food Safety & Standards Act, 2006 gives it an overriding effect over all other food related laws. It reads: "Section— 89 “Overriding effect of this Act over all other food related laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” Notably, the Parliament in its wisdom has used the word ‘all food related laws ‘to avoid ambiguity and to declare that the Special Statute would prevail when it is in conflict with any other laws relating to food. In such circumstance, although the legislature did not amend Sections 272 and 273 of the IPC, by virtue of the overriding effect of the Food Safety & Standards Act, 2006, these provisions of IPC can be considered as impliedly repealed. The use the word ‘over all other related laws’ is not superfluous. The use of the term ‘over all other related laws’ describes the intent of the Parliament to avoid conflict of laws by consolidating of food related laws into a single law having jurisdiction over the whole of India. 

It is also noteworthy that Section 97 (2) of the Food Safety and Standards Act provides that- “if there is any other law for the time being in force in any State, corresponding to this Act, the same shall upon the commencement of this Act, stand repealed and in such case, the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply as if such provisions of the State law had been repealed”.  It is eminently apparent that the action of the police under sections 272 and 273 of IPC in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur is unwarranted. The police not being Food Safety Officer under Food Safety and Standards Act, 2006 are not empowered to investigate into the offences mentioned specially in the 2006 law.

The State had submitted before the High Court that during the pendency of this writ petition, final order of confiscation has been passed by the Confiscating Authority on November 30, 2021, for which notices were issued to the owner of the vehicle in question. The petitioner's counsel disputed this submission saying, "no notices were issued to the petitioner of the initiation of confiscation proceedings and same has been passed without any notice to him". But the writ petition was disposed of with liberty to the petitioner to avail the statutory remedy under the Excise Act against the order passed by the Confiscating Authority. Justice S. Kumar had authored the judgement in CWJC No. 3332 of 2022.

The judgement in Miscellaneous Jurisdiction Case No.1538 of 2022 was authored by Justice Bajanthri. It reads:"the present M.J.C. is filed for modification of order dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022. Petitioner in his writ petition has prayed for certain relief relating to release of the subject matter of seized vehicle with reference to order of the learned Additional District Judge-II-cum-Special Judge (Excise Act), Muzaffarpur. It is stated in the relief column “which has been sent to the learned Collector cum District Magistrate, Sitamarhi for its confiscation.” Such typographical error has been crept in petitioner’s writ petition. As long as petitioner’s writ petition is not rectified, it is not appropriate to rectify the order of the Co-ordinate Bench dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022." The judgement reserved liberty to the petitioner "to file Civil Review petition to recall the order dated April 25, 2022 passed in CWJC No. 3332 of 2022."