Tuesday, July 30, 2024

Bar Councils cannot collect enrollment fee in excess of law: Supreme Court

In Gaurav Kumar Vs. Union of India, Supreme Court has concluded in 68 page long verdict that the the State Bar Councils (SBCs) cannot charge “enrolment fees” beyond the express legal stipulation under Section 24(1)(f) as it currently stands. Section 24(1)(f) of Advocates Act, 1961 specifically lays down the fiscal pre-conditions subject to which an advocate can be enrolled on State rolls. 

The SBCs and the Bar Council of India (BCI)  cannot demand payment of fees other than the stipulated enrolment fee and stamp duty, if any, as a pre-condition to enrolment. The decision of the SBCs to charge fees and charges at the time of enrolment in excess of the legal stipulation under Section 24(1)(f) violates Article 14 and Article 19(1)(g) of the Constitution. This decision will have prospective effect. The SBCs are not required to refund the excess enrolment fees collected before the date of this judgment.

The enrolment fee cannot exceed Rs.750 for advocates belonging to the general category and Rs.125 for advocates belonging to SC/ST categories. The Courthas held that SBCs cannot charge any amount over the above-specified amounts under the head of "miscellaneous fee", "stamp duty" or other charges. The SBCs and the BCI cannot charge any amount to admit advocates to the roll above the amount specified under Section 24(1)(f) of the Advocates Act.

The Advocates Act of 1961 under S. 24(1)(f) provides that the enrollment fee payable to the State Bar Council as Rs. 600/- and Rs 150/- towards the Bar Council of India for advocates belonging to the general category. For advocates belonging to SC/ST categories, the amounts are Rs.100 and Rs.25 respectively. 

 

 

 

Thursday, July 18, 2024

Supreme Court's bench sets aside the judgement of Patna High Court's chief justice headed division bench

Supreme Court's bench of Justices Vikram Nath and Prashant Kumar Mishra set aside the judgement of Chief Justice Rajendra Menon and Justice Sudhir Singh Patna High Court's division bench dated April 3, 2017 on July 15, 2024. Its judgement reversed the High Court's judgement dismissing five cases challenging a Notification dated July 1, 2015, whereby the State Government had passed a resolution based upon consideration of recommendations by the State Backward  Commission which had recommended that in the list of Extremely Backward Classes published under the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991, the caste “Tanti-Tantwa” recorded at Serial No.33 be deleted and the said “Tanti-Tantwa” be merged in the Scheduled Castes list with the caste 'Pan/Sawasi' mentioned at Serial No.20 so that they could get benefit of the Scheduled Castes. Supreme Court has quashed the Resolution/Notification dated July 1, 2015. It is noteworthy that the Union of India fully supported the appellants.

The Court has recorded that the challenge to the Resolution/Notification was mainly on the ground that the State Government had no competence/authority/power to add a caste or sub-caste to any entry in the Scheduled Castes list notified under the Presidential Order under Article 341 of the Constitution of India. Once the list under the Presidential Order is published, thereafter, any amendment, addition, deletion or modification to the said list can be made only by law enacted by Parliament and not otherwise. Before the High Court, the respondent-State of Bihar as also other private respondents took up a plea that the impugned Notification dated 01.07.2015 does not meddle with the Presidential Order and the list published thereunder but, in fact, it was only that “Tanti-Tantwa” were one and the same as 'Pan/Sawasi' except that they had the special title within the caste of 'Pan/Sawasi' and were being referred to as “Tanti-Tantwa” in the State of Bihar and, therefore, it was not a case of alteration of the list but only of clarification. It was also submitted by the respondents before the High Court that the State Government was bound by the recommendations made by the State Backward Commission and had, therefore, rightly deleted “Tanti-Tantwa” from the list of Extremely Backward Classes and merged with the Entry-20 of 'Pan/Sawasi' in the list of Scheduled Castes published in 1976. The High Court accepted the submissions of the respondents.

The Supreme Court examined questions like: what the Constitution of India provides regarding preparation of list for Scheduled Castes for different States. How a list declared under the Presidential Order can be altered, modified or amended. What does the Constitution provide regarding the Backward Classes for every State. The entries in the Presidential Order of 1950 and the subsequent Amendments made by the Parliament in the list published under the Presidential Order of 1950.

Article 341 confers power on the President of India to specify the castes, races or tribes or parts of or groups within castes, races or tribes which, for the purpose of the Constitution, be deemed to be Scheduled Castes in relation to that State or Union Territory. Further, sub-Clause 2 of Article 341 provides that the Parliament may, by law, include or exclude from the list of Scheduled Castes specified in a Notification issued under Clause-1 any caste, race or tribe or part of or group within any caste, race or tribe. It further creates a prohibition that, save as aforesaid, a Notification issued under Clause-1 shall not be varied by any subsequent Notification. Article 341 of the Constitution reads as follows:“Article 341. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

From a plain reading of the above Article and in particular sub-Clause 2, two things are clear – first, the list specified under the Notification under Clause-1 can be amended, altered only by law made by Parliament and, second, it prohibits that but for a law made by Parliament a notification issued under sub-Clause-1 cannot be varied by any subsequent notification. That is to say that neither the Central Government, nor the President can make any amendments or changes in the notification issued under Clause-1 specifying the castes in relation to the States or Union territory, as the case may be.

A plain reading of the Article 341 is that, it does not deal with merely castes, races or tribes but also parts of or groups within castes, races or tribes, therefore, if any change is to be made with respect to inclusion or exclusion not only of any caste, race or tribe but also of a part of or group within any of the caste, race or tribe the same has to be done by law made by the Parliament. 

The Constitution (Scheduled Castes) Order, 1950 was first notified on 10th August, 1950 and published in the Gazette of India, Extraordinary on 11th August, 1950. With respect to the State of Bihar, the following list was mentioned in the Schedule as “Part II-Bihar”:
“1. Throughout the State:
1. Bauri
2. Bantar
3. Bhogta
4. Chamar
5. Chaupal
6. Dhobi
7. Dom
8. Dusadh, including Dhari or Dharhi
9. Ghasi
10. Halalkhor
11. Hari, including Mehtar
12. Kanjar
13. Kurariar
14. Lalbegi
15. Mochi

16. Musahar
17. Nat
18. Pan
19. Pasi
20. Rajwar
21. Turi”

'Pan Caste' was specified as a Scheduled Caste throughout the State of Bihar under the above notification mentioned at Serial No.18. 

The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, which was enacted by the Parliament being Act No.63 of 1956, with respect to the State of Bihar and the Entry of the caste with which these appeals relate to, at Serial No.18 'Pan' as originally mentioned in the order of 1950, was replaced by 'Pan or Sawasi'. 

In the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967 enacted by the Parliament in the 20th year of the Republic of India, the list with respect to the State of Bihar mentioned in Part-III of the Schedule at Serial No.20, the following Entry of the Castes was made as 'Pan; Sawasi, Tanti-Tantwa'. This bill never came to be enacted as an Act of Parliament and accordingly must have lapsed. The next Amendment then came was the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 was enacted by the Parliament in the 27th year of the Republic of India, according to which, Entry-20 in Part-III of the Schedule with respect to the State of Bihar, the entry remained the same as that in the 1956 Amendment i.e. 'Pan, Sawasi'.

By the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002 enacted by the Parliament in the 53rd year of the Republic of India, Entry 20 for the State of Bihar was substituted by 'Pan, Sawasi, Panr'. 

Article 338-B of the Constitution provides that the State Government may establish Commission for Backward Classes.

The legislature of the State of Bihar enacted the Bihar State Commission for Backward Classes Act, 1993 (State Act No.12 of 1993) for establishing a State Commission for Backward Classes and to provide for matters connected therewith or incidental thereto. Section 9 of the said Act defines the functions of the Commission; Section 10 defines the powers of the Commission and Section 11 provides that the State Government shall do a periodic revision of lists of Backward Classes every ten years and in doing so would consult the Commission. 

The legislature of the State of Bihar also enacted the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (Act No.3 of 1992) and under the said Act it declared the lists of Extremely Backward Classes wherein at Serial No.33, “Tanti-Tantwa” was shown as one of the castes falling in the Extremely Backward Classes.

The Ministry of Social Justice and Empowerment, Union of India filed an application making that the Government of Bihar vide letter dated 05.08.2011 had recommended inclusion of “Tanti-Tantwa” in the list of Scheduled Castes as a synonym of 'Pan, Sawasi, Panr'. The said proposal of the State was examined as per settled modalities in consultation with the Registrar General of India (RGI), who did not support the said proposal vide its comments dated 24.01.2013. The observations of the RGI were conveyed to the State Government on 31.01.2013 to review/further justify the recommendations in the light of the comments made by the RGI. 

The response of the State Government in the matter was awaited. Thus, till date “Tanti-Tantwa” caste has not been included in the list of Schedule Castes of the State of Bihar and, as such, its members are not entitled to Scheduled Castes' status. It mentioned that the Department had received references from the Union Public Service Commission as also the Department of Personnel and Training, Government of India to show that Members of “Tanti-Tantwa” community, who were otherwise appearing at Serial No.48 of the Central List of Other Backward Classes were being issued Scheduled Castes Certificates in the name of 'Pan, Sawasi, Panr' in view of the State Government's Resolution dated July 1, 2015.

The Ministry had written more than half a dozen letters right from 2015, 2016, 2018, 2019 and 2020 requesting the Government of Bihar to issue necessary instructions to the Authorities empowered to not to issue Scheduled Castes Certificates to members of “Tanti-Tantwa” in the name of 'Pan, Sawasi, Panr'. In paragraph-11, it is stated that the Government of Bihar informed the Central Ministry that as the Resolution dated 01.07.2015 was challenged before the Patna High Court and the High Court had upheld its legality vide judgment dated 03.04.2017, as such, issuance of Scheduled Castes Certificates to the members of “Tanti Tantwa” and extension of benefits of Scheduled Castes to them was legally permissible.

On behalf of the appellants,  Indira Jai Singh referred to the Constitutional provisions contained in Articles 366(24) and 341 to submit that the impugned Notification/Resolution dated 01.07.2015 cannot stand. Any amendment or change in the specified lists of Scheduled Castes notified under Article 341 can only by a law enacted by the Parliament. "The State has no role to play in tinkering with the lists notified under Article 341."

The judgement reads: "We have no hesitation in holding that the Resolution dated 01.07.2015 was patently illegal, erroneous as the State Government had no competence/ authority/power to tinker with the lists of Scheduled Castes published under Article 341 of the Constitution. The submission of the respondent- State that Resolution dated 01.07.2015 was only clarificatory is not worth considering for a moment and deserves outright rejection. Whether or not it was synonymous or integral part of the Entry-20 of the lists of Schedule Castes, it could not have been added without any law being made by the Parliament. The State knew very well that it had no authority and had accordingly forwarded its request to the Union of India in the year 2011. The said request was not accepted and returned for further comments/justification/review. Ignoring the same, the State proceeded to issue the Circular dated 01.07.2015. The State may be justified in deleting “Tanti-Tantwa” from the Extremely Backward Classes list on the recommendation of the State Backward Commission, but beyond that to merge “Tanti-Tantwa” with 'Pan, Sawasi, Panr' under Entry 20 of the list of Scheduled Castes was nothing short of mala fide exercise for whatever good, bad or indifferent reasons, the State may have thought at that moment. Whether synonymous or not, any inclusion or exclusion of any caste, race or tribe or part of or group within the castes, races or tribes has to be, by law made by the Parliament, and not by any other mode or manner."

The Supreme Court observed: The Provisions of Article 341 sub-Clause 1 and sub-Clause 2 are very clear and discrete. There is no ambiguity or vagueness otherwise requiring any interpretation other than what is mentioned therein. The State of Bihar has tried to read something in order to suit its own ends for whatever reason, we are not commenting on the same.The High Court fell in serious error in upholding the said Notification on a completely wrong premise without referring to Article 341 of the Constitution."

The judgement authored by Justice Vikram Nath directed that such posts of the Scheduled Castes Quota which had been filled up by members of “Tanti-Tantwa” community availing benefit on the basis of Resolution dated 01.07.2015 may be returned to the Scheduled Castes category and such candidates of “Tanti-Tantwa” community be accommodated by the State in their original category of Extremely Backward Classes by taking appropriate measures.


Patna High Court upheld the order of Chairman, Bihar Legislative Council disqualifying Ram Bali Singh as MLC

Dr. Ram Bali Singh Chandravanshi was disqualified from Bihar Legislative Council (BLC). The disqualification became effective from February 6, 2024. He filed a writ petition against the disqualification in the Patna High Court on February 16, 2024. It was registered on February 22, 2024. The case was filed against the BLC when Devesh Chandra Thakur was the Chairman, BLC. In his order dated February 28, 2024, Justice Sandeep Kumar recorded: "It is the contention of the petitioner that the petitioner was heard on preliminary objection but the impugned order was passed considering the merits of the case and without providing any opportunity of hearing to the petitioner." On May 6, 2024, the case came for hearing before Justice Mohit Kumar Shah. He directed that notice be issued to Dr. Sunil Kumar Singh, the Respondent No.3 who was the Chief Whip (Ruling Party, Rashtriya Janata Dal), "both by ordinary process as well as by speed post for which requisites, etc. must be filed within two weeks from today, failing which the present petition shall stand rejected as against the Respondent No.3 without further reference to the Bench." 

Notably, on July 1, 2024, the constitution of Benches in accordance with Rule 1 and Rule 2 of Chapter II of the Rules of High Court at Patna Election was announced. It states "Petitions under the Representation of People Act would be tried, heard and decided by the Hon’ble Judges, who has been entrusted with such petitions." Justice Nani Tagia has been allotted election matters. Prior to him Justice Harish Kumar dealt with these matters since November 22, 2023.

Later, Dr. Sunil Kumar Singh, was named as the new Opposition Party Chief Whip in the Bihar Legislative Council through a notification issued by Akhilesh Kumar Jha, Secretary of the Bihar Legislative Assembly, dated February 15, 2024. This development happened after Janata Dal (United) severed ties with Rashtriya Janta Dal (RJD) on January 28, 2024. JDU had formed the government in Bihar in alliance with the RJD, Congress and other Left parties in 2022 and was part of the Opposition's INDIA bloc.

Subsequently, the case of Dr. Ram Bali Singh Chandravanshi was listed for hearing on June 27, 2024. The order recorded that the counsel for the petitioner sought a day’s time for filing an interlocutory application, challenging the notification dated June 25, 2024 issued by the Election Commission of India. The order of Justice Shah reads: "In case the said interlocutory application is filed by tomorrow, the registry is directed to number the same and place it on record of the case tomorrow itself." The petitioner filed I.A. No. 2 of 2024 with specific reference to the notification issued by the Election Commission. 

When the matter came up for hearing on July 1, 2024 before Justice Mohit Kumar Shah bench, the counsel for the petitioner sought pressed I.A. No. 2 of 2024, whereby and whereunder a prayer has been made to stay the Notification dated 25.06.2024, issued by the Election Commission of India, notifying the bye-election to be held for the purposes of filling the vacancy, which has arisen in the Legislative Council of the State of Bihar on account of disqualification of the petitioner. The counsel for the respondents pointed out that the present writ petition is required to be heard by the Division Bench of this Court, in light of the directions issued by the Supreme Court in a judgment rendered in the case of Election Commission of India vs. Bajrang Bahadur Singh & Ors., reported in (2015) 12 SCC 570, paragraph no. 67. The order of Justice Shah reproduced the relevant text as under:-“67. Such proceedings must be heard by a Bench of at least two Judges and be disposed of within a period of eight weeks from the date of initiation without fail. The Chief Justice of the High Court concerned will make an appropriate arrangement in this regard. If the above mentioned time-frame is strictly followed, the Commission would still be left with another eight weeks of time to comply with the obligations emanating from Section 151-A of the RP Act.”

The High Court's order concluded: "In view of the aforesaid, let the matter be placed before the Hon’ble the Chief Justice for issuance of appropriate directions." The division bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy heard counsel for the parties on July 3, 2024. 

The division bench delivered the judgement on July 4, 2024. The writ petition had challenged the disqualification of Dr. Ram Bali Singh, a Member of the Bihar Legislative Council. It came up before the Division Bench based on a judgment of the Supreme Court in Election Commission of India vs. Bajrang Bahadur Singh; (2015) 12 SCC 570. Noticing that there is no limitation prescribed for filing a writ petition against disqualification, the Supreme Court had prescribed eight weeks as the limitation period, till a period is prescribed by the Legislature, for the purpose of filing a writ petition and a further eight weeks within which the High Court was also obliged to consider and dispose of the writ petition. The said period was prescribed since, after the disqualification order has been passed, the Election Commission was obliged to carry out a fresh election within a period of six months.

The judgment noted that the disqualification was on February 6, 2024 and the writ petition was filed on February 22.02.2024. The eight weeks time had expired on April 22, 2024. The writ petition ought to have been placed before a Division Bench which the Registry failed to do. It also recorded that the Counsel for the petitioner did not apprise the Single Judge about the requirement as stipulated in the cited decision. In fact, the same was brought to the notice of the Single Judge only on July 1, 2024, when the Single Judge directed the matter to be placed before the Chief Justice. A motion was made before the division bench of the High Court on July 2, 2024 and the matter was posted on July 3, 2024 for hearing.

The disqualification by BLC was made on the complaint made by Dr. Sunil Kumar Singh, the 3rd respondent. The 3rd respondent was served with notice, but no one appeared during the hearing. The The bench was apprised of the fact that as of there was an election scheduled and there was only one nomination filed. The election was scheduled on July 12, 2024 and the last date of withdrawal of nomination was on July 5, 2024. The bench noted that if the solitary nomination was not withdrawn, the result would have to be declared; when the time for withdrawing of nomination expires. It heard the matter in such circumstances.

The petitioner had challenged the order passed by Devesh Chandra Thakur, the Chairman, BLC. Meanwhile, Thakur has resigned after his election as MP.

S.B.K Mangalam, counsel appearing for the petitioner alleged that the Chairman, BLC violated principles of natural justice. The petitioner was issued with a notice and the petitioner had approached this Court alleging that the complaint did not satisfy the requirements under Order VI Rule 15 of the Code of Civil Procedure, since no affidavit accompanied the complaint filed by Dr Sunil Kumar Singh. The High Court had directed that the objection be raised before the Chairman and the Counsel for the Legislative Council had also assured that it would be considered. It was on the specific undertaking of the Counsel appearing for the Chairman that it would be considered, the petitioner was relegated to the Chairman. A preliminary objection was filed pointing out the procedural irregularity, which according to the Counsel required the Chairman to dismiss the complaint. However, no order was  issued on the preliminary objection and final orders were passed without affording an opportunity of hearing, to refute the allegations raised. The order of disqualification recorded the arguments and without finding any of the ingredients for disqualification and without dealing with the allegations, it ordered disqualification. It is evident from the order that there was complete absence of application of mind. 

The counsel for the petition relied on Shri Baru Ram v. Smt. Prasanni and Other; AIR 1959 SC 93 to contend that when a procedure has been prescribed by statute, it should be done in that manner and not otherwise. He also relied on Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Others; (2010) 13 SCC 216 to contend that if there is complete non-application of mind definitely there could be interference of orders passed by Statutory Authorities/Courts/Tribunals. The counsel also pointed out that the show-cause notice was issued by RJD, the political party to the petitioner for making some remarks against the leader of the party. But no further proceedings were taken to oust him from the party. In such circumstances, the Chairman, BLC ought to have factored in the restraint exercised by RJD, the political party which did not take any action against the petitioner for the remarks made; which is also the subject matter of the complaint made.

Ashhar Mustafa, counsel appearing for the BLC submitted that the petitioner had been given sufficient opportunity to put forth his contentions on merits with respect to the specific allegations; which he failed to do. The petitioner had been resorting to delaying tactics so as to continue to be a MLC. The complaint by RJD was filed on November 2, 2023 and notice was served on November 21, 2023. On December 1, 2023, the petitioner had sought additional time of 15 days, which was granted. On December 12, 2023, the petitioner approached the High Court with a writ petition pointing out a procedural irregularity. The writ petition was disposed off granting liberty to raise all the grounds before the Chairman of the BLC including the procedural irregularity under Rule 6. Chairman could not have first ruled on the preliminary objection and then given a further opportunity for refuting the factual allegations. 

The counsel for the BLC, the respondent relied on Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar Legislative Council and Others; (2004) 8 SCC 747 and Ravi S. Naik v. Union of India; 1994 Supp (2) SCC 641 to contend that Rules 6 and 7 are only directory in nature and not mandatory, especially since, as held by the Supreme Court it cannot lead to curtailing the content and scope of substantive provisions, in the Xth Schedule of the Constitution of India. The Xth Schedule does not provide for a verification in the manner laid down in the Code of Civil Procedure and merely because of such an irregularity, the jurisdiction of the Chairman or the Speaker of the House cannot be curtailed.

The division bench also heard Siddhartha Prasad, counsel appearing for the Election Commission, who pointed out that the Election Commission, in accordance with its obligations has ensured that an election is conducted within 6 months.

The bench noted that Bihar Legislative Council (Disqualification on the Ground of Defection) Rules, 1994 by sub-rule (6) of Rule 6 provides for verification, as per the Code of Civil Procedure, 1908, which does not require an affidavit. The counsel for the petitioner had urged that there was no affidavit accompanying the complaint, as is required under Order VI Rule 15 (4) of the Code of Civil Procedure, 1973.

The bench cited the relevant portion of the Supreme Court's decision in Mahachandra Prasad Singh case which has stated so in paragraph 16. It reads: Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said rule and sub-rule (6) of the same rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is “Procedure”. Sub-rule (1) of this rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These Rules have been framed by the Chairman in exercise of power conferred by Paragraph 8 of the Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by Paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rules being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under Paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision viz. the TenthSchedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which the Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under Paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires.

The bench also cited the decision in Ravi S. Naik from paragraph 18. It reads:- It was also submitted that the petitions were also not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Shri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case [1992 Supp (2) SCC 651]. Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case [1992 Supp (2) SCC 651] is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case.

The bench observed that the requirement in Rule 6 is merely procedural. "We have to find that the procedural irregularity raised as a preliminary objection before the Chairman of the Legislative Council is not sustainable."

It also observed that the Chairman specifically observed in the order that the factual statements made in the complaint were not refuted by the petitioner and the contention raised was only regarding the maintainability of the petition on the allegation of procedural irregularity. Both sides were heard by the Chairman, BLC on January 9, 2024, when the complainant was represented by an Advocate and the petitioner was present in person. The Advocate appearing for the complainant specifically stated that the hearing should be done on the merits of the case. A request was given by the petitioner seeking time, so that an Advocate could appear for him, which was objected to by the complainant on the ground of unnecessary delay being occasioned. However, the Chairman granted the petitioner time for appearance through an Advocate and the matter was posted on January 16, 2024. The order specifically records that the petitioner was informed that this would be the final opportunity for him to put forth his arguments and submit whatever documents or the evidence he had to give. Hence, there was a clear understanding, as is evident from the order, that the matter would be heard on merits and the question of procedural irregularity would also be considered, which was also directed by a Single Judge of this Court. The Chairman, in his order, specifically referred to the Supreme Court's decisions in Ravi S. Naik and Mahachandra Prasad Singh to hold that the procedural irregularity does not vitiate the complaint. Following the dictum that the procedure prescribed under Rules 6(6) and 7 to be directory and not mandatory, we fully agree with the said finding and further observe that the requirement of an affidavit was absent in Order VI Rule 15 as available in the C.P.C of 1908 which is specifically referred to and incorporated in the Rules of 1994.

The High Court's judgement observed: "We cannot, but notice that there is absolutely no contention raised against the allegations before the Chairman nor any ground raised against the decision of disqualification." It reiterated the finding in Ravi S. Naik stating ‘Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by the Court in Kihoto Hollohan case [1992 Supp (2) SCC 651] is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity”. 

The High Court's judgement records that "The allegations were made against the Leader in the Legislative Assembly, of the political party, to which the petitioner also belonged. There were also allegations of the petitioner having made public statements against the declared policies of the State Government, passed by the Legislature; when the party on whose platform the petitioner had been elected, was a part of the Government. We would not refer to the allegations as such since there is no contention raised against those nor are they even denied. However, we find that the decision taken by the Chairman regarding the scurrilous remarks publicly made against the leader of the party in the Legislative Assembly and statements made, again publicly, against the declared policy of the Government in which the political party was associated were considered in the light of the decisions in Ravi S. Naik (supra) and Kihoto Hollohan vs. Zachillhu & Ors.; 1992 Supp (2) SCC 651. It was held that though every citizen has a fundamental right to free speech and expression; when he is a Member of the legislative body in the capacity of a Member of a political party, he should comply with the discipline, constitution and rules of the party. It was found that the petitioner by his conduct has voluntarily abandoned his political party and hence he is liable to disqualification based on the Rules of 1994.

It recalled that the oft-repeated dictum in Baru Ram that whenever the statute requires a particular act to be done in a particular manner and also lays down the consequence of failure to comply with the said requirement; it would always lead to that specific consequence, on failure to comply and not otherwise, is not applicable in view of the binding precedents that the stipulation in the Rules of 1994 is only directory and not mandatory. 

The judgement authored by the chief justice concluded: "We find absolutely no reason to interfere with the impugned order. We dismiss the writ petition leaving the parties to suffer their respective costs."

Notably, in view of the Supreme Court decision in M/s N. G. Projects Vs. M/s Vinod Kumar Jain Civil Appeal No. 1846/2022), the Trade & Commerce (Works Contract– Tender and Blacklisting) matters are also posted before a Bench of two judges.



Friday, July 12, 2024

Patna High Court sets aside Trial Court's judgement of 2019 in a 1994 rape case from Muzaffarpur

In Haribabu Vs. State of Bihar, the division bench of Justices Vipul M. Pancholi and Ramesh Chand Malviya, concluded that "the prosecution has failed to prove the case against the appellant/accused beyond reasonable doubt, despite which the Trial Court has recorded the impugned judgment of conviction and order of sentence. As such, the same are required to be quashed and set aside." 

It all began on October 4, 1994, the victim was sleeping on a mat spread on the ground in a hut facing north when Hari Babu, son of Bujhu Lal, came with a pistol in his hand and put it on her neck and asked her to keep quiet, otherwise she would be killed. Thereafter, he gagged her mouth with his hand and after removing her saree and saya, forcefully inserted his penis into her private part. She kept moving her hands and legs. Meanwhile, semen got discharged from his penis, which fell on her private part, thigh and the cloth. After this, she raised alarm and on her alarm, her mother Surji Devi asked as to what happened. She started making a noise that Hari Babu is running away after abusing her. Many people of the village like Anat Paswan, Janak Paswan, Yogendra Paswan, Dukha Paswan etc. also saw him running away after the incident. After filing of the F.I.R., the investigating agency carried out the investigation and, during the course of investigation, the Investigating Officer recorded the statement of the witnesses and collected the relevant documents and thereafter filed the charge-sheet against the accused. As the case was exclusively triable by the Special Court (SC/ST) Act, the case was committed to the Court of Special Judge (SC/ST) Act where it was registered as Trial No. 206 of 2015.

Yogesh Chandra Verma, the appellant's the senior counsel submitted that the case of the prosecution rests on the deposition given by the victim, P.W.1. However, there are major contradictions in the deposition given by her and other witnesses and, therefore, the version given by the victim is not required to be believed. It is also contended that P.W.3, who is the mother of the victim, has stated in her examination-in-chief that she has seen the accused fleeing away from the house in the light of the earthen lamp. She has further deposed that the victim did not inform her anything. Thereafter, on the next day, she went to the police station along with her daughter. There is a delay of two 24 hours in lodging the F.I.R. wherein the present appellant has been falsely implicated. It is submitted that though the victim had identified the accused appellant and other family members and more than 40 persons had gathered immediately at the place after the occurrence and had seen the accused fleeing away from the place of incident. It is apparent that the respondent, the victim was not represented by her own counsel. The version of Manjha Devi, the victim, P.W.1 was submitted by Sadanand Paswan, the Spl. P.P.

The Court observed that "when a conviction can be based on the sole testimony of the prosecutrix, the Courts also have to be extremely careful while examining this sole testimony. If the evidence of the victim inspires confidence, it must be relied upon without seeking corroboration of the aforesaid statement in material particulars. It can further be said that if the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix."

It further noted that "if the deposition given by the prosecutrix is carefully examined, we are of the view that the version given by the victim raises doubt and does not inspire confidence. We have already discussed that even medical evidence does not support the version given by the victim. There is a delay of 24 hours in lodging the F.I.R., for which no explanation was given by the prosecution. Thus, we are of the view that simply relying upon the deposition given by the prosecutrix, in the facts and circumstances of the present case, the appellant cannot be convicted or awarded sentence."

Notably, the incident took place in the year 1994. As per the provision prevalent at the relevant point of time with regard to Section-376 of I.P.C., the minimum sentence prescribed for the said offence was 7 years. In the present case, the Trial Court, relying upon the said provision, sentenced the appellant imprisonment for 7 years. However, Section- 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989 provides that where the punishment prescribed for the offence under I.P.C. is 10 years or more years then life imprisonment can be awarded. The Court observed that "In the present case, sentence provided in I.P.C. under Section-376 at the relevant point of time was 7 years and, therefore also, the Trial Court has committed grave error while imposing sentence of life imprisonment under Section- 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989."

The judgement reads: "the impugned judgment of conviction dated 06.02.2019 and order of dated 13.02.2019 passed by learned 11th A.D.J.-cum-Spl. Judge (SC/ST) Act, Muzaffarpur in connection with Trial No.206/2015, G.R. No.1096/1994, arising out of Sahebganj P.S. Case No. 91 of 1994 dated 05.10.1994 are quashed and set aside and the appellant is acquitted of the charges levelled against him by the learned Trial Court. Since the appellant, namely, Haribabu @Hari Babu Prasad is in jail, he is directed to be released from jail custody forthwith, if his presence is not required in any other case." It was authored by Justice Vipul M. Pancholi. 

At para 16 of the judgement, the caste of Manjha Devi, the victim, P.W.1 is recorded. It reads: "She is a Dusadh by case which is called Harijan", unmindful of Supreme Court's instructions.

In its order dated January 10, 2024, Supreme Court has passed an order in Shama Sharma Vs. Kishan Kumar (Transfer Petition (C) No.1957 of 2023) observing that the caste of the parties need not be mentioned in the memo of parties. Its direction reads as as under:
“10. Before parting with this matter, we have noted with surprise that the caste of both the parties has been mentioned in the memo of parties, besides their other details. Learned counsel for the petitioner submits that if the memo of parties as filed before the courts below is changed in any manner, the Registry raises an objection and in the present case as the caste of both the parties was mentioned before the court below, he had no option but to mention their caste in the Transfer Petition.
11. We see no reason for mentioning the caste/religion of any litigant either before this Court or the courts below. Such a practice is to be shunned and must be ceased forthwith. It is therefore deemed appropriate to pass a general order directing that henceforth the caste or religion of parties shall not be mentioned in the memo of parties of a petition/proceeding filed before this Court, irrespective of whether any such details have been furnished before the courts below. A direction is also issued to all the High Courts to ensure that the caste/religion of a litigant does not appear in the memo of parties in any petition/suit/proceeding filed before the High Court or the Subordinate Courts under their respective jurisdictions.
12. The above directions shall be brought to the notice of the members of the Bar as well as the Registry for immediate compliance. A copy of this order shall be placed before the Registrar concerned for perusal and for circulation to the Registrar Generals of all the High Courts for strict compliance.” Supreme Court of India has issued a circular dated February 7, 2024 (F.No. 3/Judl./2024) in this regard. 

Supreme Court grants interim bail to a murder accused, against Patna High Court's grant of conditional bail

Supreme Court's bench of Justices Abhay S Oka and Augustine George Masih granted interim bail on July 12, 2024 after hearing an appeal against a Patna High Court's order dated April 19, 2024 granting conditional bail in Jitendra Paswan Vs State of Bihar (2024). The order of Justice Dr. Anshuman of the High Court stated that the murder accused be released on bail after six months. The appeal against the High Court's order was filed on June 26, 2024 and registered on July 5, 2024. It was verified on July 6, 2024. 

The High Court's order reads: "let the petitioner Jitendra Paswan in Criminal Miscellaneous No. 7478 of 2024 be released on bail, but after six month from today, on furnishing bail bonds of Rs.30,000/- (Rupees Thirty thousand) with two sureties of the like amount each to the satisfaction of ACJM-XIV, Gopalganj in connection with Vijaipur P.S. Case No. 265 of 2021, subject to the conditions as laid down under Section 437(3) of the Code of Criminal Procedure with other following conditions:
(i) One of the bailors should be the family member of the petitioners who shall provide an official document to show his bona fide;
(ii) the petitioners shall appear on each and every date before the Trial Court and failure to do so for two consecutive dates without plausible reason will entail cancellation of his bail bonds by the Trial Court itself;
(iii) the petitioners shall appear before the concerned police station every month for one year to mark attendance;
(iv) the petitioners shall in no way try to induce or promise or threaten the witnesses or tamper with the evidence, failing which the State shall be at liberty to take steps for cancellation of the bail bonds; and
(v) the petitioners shall desist from committing any criminal offence again, failing which the State shall be at liberty to take steps for cancellation of the bail bonds." 

The High Court has recorded the submission of the Jitendra Paswan wherein he has submitted that he is innocent and has committed no offence. As per the FIR, he is only an order giver and there is no specific allegation against him. Moreover, the accusation has been levelled in the background of the land dispute. The petitioner is in custody since 26.09.2023 and is accused in 11 more criminal cases, but in all the cases, he has been granted bail

While granting the interim bail, the Supreme Court observed: "This is extremely strange. Some courts are granting bail for 6 months or 1 year and this is new trend now. It is like that I am granting you bail but I will release you after 6 months.". The next date of hearing is September 2, the State is supposed to file its reply before that.


Wednesday, July 10, 2024

NGT constitutes 4-member Committee for inspection of 2620 hectares wide Kabartal Wetland, Begusarai

On July 8, 2024, Eastern Zone Bench, National Green Tribunal (NGT) constituted a 4-member Committee comprising of the Senior Scientist, Bihar State Pollution Control Board (BSPCB),  Senior Officer, Bihar State Wetland Authority, Divisional Forest Officer, Begusarai, and District Magistrate, Begusarai, or his representative not below the rank of Additional District Magistrate.  The Committee has been tasked to inspect the site of Kabartal Wetland about 21 Km from the Begusarai town. This Wetland is claimed to be the largest Oxbow Lake in India and in Asia and is the first Ramsar Site of Bihar. 

This Ramsar Site spans 2620 hectares of open water and marshes intersperses with plantation and as per the 2019 post monsoon report nearly 82% of the site was a marsh (of which 25% cultivated) and 16% is open water and the rest is plantation or borrow land.

Subhas Datta, the Applicant has sought a direction for taking steps for proper upkeep and preservation of Oxbow Wetland named as ‘Kabartal’ in Bihar as well as the green cover of the Bird Sanctuary and the Water Catchment Zone for Begusarai District of Bihar. 

The site was notified as Bird Sanctuary by the Government of Bihar vide Notification dated June 20, 1989. The Wetland is stated to contain a cluster of 16-17 water bodies in total and is a catchment area for rainwater but the same has been encroached over a period of time and its area has been allowed to be reduced. The Committee has been asked to submit its report within four weeks on affidavit.

The District Magistrate, Begusarai has been made the Nodal Office for all logistic purposes and for filing the Report of the Committee on affidavit. The order has impleaded the District Magistrate, Begusarai, and the Divisional Forest Officer, Begusarai in the present Original Application. The matter is listed for hearing on July 21, 2024. The order was passed by B. Amit Sthalekar, Judicial Member, NGT  and Dr. Arun Kumar Verma, Expert Member, NGT.

Monday, July 1, 2024

19 Chapters and 358 Sections of Bharatiya Nyaya Sanhita (BNS) replaces 23 chapters and 511 Sections of Indian Penal Code

In his note of dissent to the parliamentary report on Bharatiya Nyaya Sanhita (BNS), the new criminal law, N. R. Elango, Member of the Parliamentary Committee on Home Affairs wrote:"I find no new clause that imbibe Indian thought process and the Indian soul. This bill is also not having any citizen centric approach. I am of the view that there is no provision introduced, no new definition of the offences is given except adding or deleting some words in the existing provisions, adding new offences, which are already punishable under special enactments, enhancing the punishment of few offences without any rationale."

It is noteworthy that 20 new offences have been added and 19 provisions in the repealed IPC have been dropped. The punishment of imprisonment has been increased for 33 offences, and fines have been increased for 83 offences. A mandatory minimum punishment has been introduced for 23 offences. 

In general, like IPC, BNS deals with offences against the body. It has retained the provisions of the IPC on murder, abetment of suicide, assault and causing grievous hurt. It has added new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.

Like IPC, it deals with sexual offences against women. It has retained the provisions of the IPC on rape, voyeurism, stalking and insulting the modesty of a woman. It has increased the threshold for the victim to be classified as a major, in the case of gang rape, from 16 to 18 years of age.

Like IPC, it deals with offences against property. It has retained the provisions of the IPC on theft, robbery, burglary and cheating. It has added new offences such as cybercrime and financial fraud. The fact is that it was already incorporated in the IPC through amendment. 

Like IPC, it deals with the offences against the state. The BNS creates an impression about removal of sedition as an offence. The fact is that it was been brought in as a new offence for acts endangering India's sovereignty, unity and integrity. 

Like IPC, it deals with offences against the public.

The BNS has 19 Chapters and 358 Sections. 174 Sections of IPC have been changed, 8 new Sections added and 22 Sections repealed.

Chapter 1 has Sections 1 to 3 which deal with the Preliminary including definitions (2) and General explanations (3).
Chapter 2  has Sections 4 to 13 which deal with Punishments.
Chapter 3  has Sections 14 to 44 which deal with General Exceptions (14-33) and the Right to Private Defence (34 to 44).
Chapter 4
has Sections 45 to 62 which deal with Abetment, Criminal Conspiracy and Attempt.

Chapter 5 has Sections 63 to 99 which deal with Offences against Women and Children including Sexual Offences (63 to 79), Criminal Force and Assault against Women (74 to 79), Offences relating to Marriage (80 to 92) and Causing of Miscarriage and including offences against child (93-99) like Exposure and abandonment of child under twelve years, of age, by parent or person having care of it Concealment of birth by secret disposal of dead body, Hiring, employing or engaging a child to commit an offence, Procuration of child, Kidnapping or abducting child under ten years of age with intent to steal from its person, Selling child for purposes of prostitution, Buying child for purposes of prostitution.

Chapter 6 has Sections 100 to 146 which deal with Offences Affecting the Human Body including Offences Affecting Life (100 to 113), Hurt (114 to 127), Criminal Force and Assault (128 to 136), Kidnapping, Abduction, Slavery and Forced Labour (137 to 146).

Chapter 7 has Sections 147 to 158 which deal with Offences Against the State.
Chapter 8 has Sections 159 to 168 which deal with Offences Relating to the Army, Navy and Air Force
Chapter 9 has Sections 169 to 177 which deal with Offences Relating to Elections
Chapter 10 has Sections 178 to 188 which deal with Offences Relating to Coins, Bank Notes, Currency Notes and Government Stamps
Chapter 11 has Sections 189 to 197 which deal with Offences Against the Public Tranquility
Chapter 12 has Sections 198 to 205 which deal with Offences by Or Relating to Public Servants
Chapter 13
has Sections 206 to 226 which deal with Contempt of Lawful Authority of Public Servants
Chapter 14 has Sections 227 to 269 which deal with False Evidence and Offences against Public Justice.
Chapter 15  has Sections 270 to 297 which deal with Offences affecting the Public Health, Safety, Convince, Decency and Morals
Chapter 16  has Sections 298 to 302 which deal with Offences Relating to Religion
Chapter 17 has Sections 303 to 334  which deal with Offences against Property including Theft (303), Extortion (304), Theft in a dwelling house, or means of transportation or place of worship (305), Theft by clerk or servant of property in possession of master(306), Theft after preparation made for causing death, hurt or restraint in order to committing of theft (307), Extortion (308), Robbery and Dacoity (309 to 313), Criminal Misappropriation of Property (314 and 315), Criminal Breach of Trust (316), Receiving of Stolen Property (317), Cheating (318 and 319), Fraudulent Deeds and Dispositions of Property (320 to 323), Mischief (324 to 328) and Criminal Trespass (329 to 334).
Chapter 18 has Sections 335 to 350 which deal with Offences Relating to Documents and to Property Marks.
Chapter 19 has Sections 351 to 358 which deal with Criminal Intimidation, Insult, Annoyance, Defamation, etc including Intimidation, Insult and Annoyance (349 to 353), Breach of peace (352) Public Mischief (353) Defamation (356), breach of contract to attend on and supply wants of the helpless person (357) and Repeal and Savings (358).

Section 358 states that IPC is repealed but savings pending proceedings shall continue under the repealed law. IPC has 23 chapters and 511 sections. The 119 page long IPC came into operation on January 1, 1862.

Chapter I of IPC has Sections 1 to 5 which provide Introduction including definitions
Chapter II has Sections 6 to 52 which deal with  General Explanations
Chapter III has Sections 53 to 75 which deal with Punishments
Chapter IV has Sections 76 to 106 which deal with General Exceptions and of the Right of Private Defence (Sections 96 to 106)
Chapter V has Sections 107 to 120  which deal with Abetment
Chapter VA has Sections 120A to 120B which deal with Criminal Conspiracy
Chapter VI  has Sections 121 to 130 which deal with Offences against the State
Chapter VII has Sections 131 to 140  which deal with Offences relating to the Army, Navy and Air Force
Chapter VIII  has Sections 141 to 160 which deal with Offences against the Public Tranquillity
Chapter IX has Sections 161 to 171 which deal with Offences by or relating to Public Servants
Chapter IXA has Sections 171A to 171 which deal with Offences Relating to Elections
Chapter X has Sections 172 to 190 which deal with Contempts of Lawful Authority of Public Servants
Chapter XI has Sections 191 to 229 which deal with False Evidence and Offences against Public Justice
Chapter XII has Sections 230 to 263 which deal with Offences relating to coin and Government Stamps
Chapter XIII has Sections 264 to 267 which deal with Offences relating to Weight and Measures
Chapter XIV has Sections 268 to 294 which deal with Offences affecting the Public Health, Safety, Convenience, Decency and Morals.
Chapter XV has Sections 295 to 298 which deal with Offences relating to Religion
Chapter XVI has Sections 299 to 377 which deal with Offences affecting the Human Body including Offences Affecting Life including murder, culpable homicide (Sections 299 to 311), Causing of Miscarriage, of Injuries to Unborn Children, of the Exposure of Infants, and of the Concealment of Births (Sections 312 to 318), Hurt (Sections 319 to 338), Wrongful Restraint and Wrongful Confinement (Sections 339 to 348), Criminal Force and Assault (Sections 349 to 358), Kidnapping, Abduction, Slavery and Forced Labour (Sections 359 to 374) and Sexual Offences including rape and Sodomy (Sections 375 to 377)
Chapter XVII has Sections 378 to 462 which deal with Offences Against Property including Theft (Sections 378 to 382), Extortion (Sections 383 to 389), Robbery and Dacoity (Sections 390 to 402),  Criminal Misappropriation of Property (Sections 403 to 404), Criminal Breach of Trust (Sections 405 to 409), Receiving of Stolen Property (Sections 410 to 414), Cheating (Section 415 to 420), Fraudulent Deeds and Disposition of Property (Sections 421 to 424), Mischief (Sections 425 to 440) and Criminal Trespass (Sections 441 to 462)
Chapter XVIII has Section 463 to 489 -E which deal with Offences relating to Documents and Property Marks including Offences relating to Documents (Section 463 to 477-A), Offences relating to Property and Other Marks (Sections 478 to 489) and Offences relating to Currency Notes and Bank Notes (Sections 489A to 489E)
Chapter XIX has Sections 490 to 492 which deal with Criminal Breach of Contracts of Service
Chapter XX has Sections 493 to 498 which deal with Offences related to marriage
Chapter XXA has Sections 498A which deal with Cruelty by Husband or Relatives of Husband
Chapter XXI has Sections 499 to 502 which deal with Defamation
Chapter XXII has Sections 503 to 510 which deal with Criminal intimidation, Insult and Annoyance

Chapter XXIII  has Section 511 which deals with Attempts to Commit Offences 

A joint reading of the provisions of BNS and IPC reveals that both the laws are still in operation. The former is operational with regard to offences committed prior to July 1, 2024 and the latter with regard to offences committed after July 1, 2024. 

It is also evident that four Sections 499, 500, 501 and 502 for "defamation" under IPC have been clubbed under Section 356 of BNS. 

The the nine Sections 141, 142, 143, 144, 145, 150, 151, 157 and 158 of IPC for "Unlawful Assembly" under IPC have been clubbed under Section 189 of BNS. 

The six Sections 233, 234, 235, 256, 257 and 489 D of IPC that dealt with "making or selling instruments or materials for forging or counterfeiting coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 181 of BNS.  

The six Sections 242, 243, 252, 253, 259 and 489C of IPC that dealt with "possession forged  counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 180 of BNS. 

The nine Sections 239, 240, 241, 250, 251, 254, 258, 260 and 489B of IPC that dealt with "using as genuine, forged  counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 179 of BNS. 

The nine Sections 230, 231, 232, 246, 247, 248, 249, 255 and 489A of IPC that dealt with "counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 178 of BNS. 

Notably, 124-A of IPC which dealt with "sedition" has been deleted but Section 152 of the BNS deals with and "act endangering sovereignty, unity and integrity of India". There are decisions of the Supreme Court in Kedarnath Singh vs. State of Bihar (1962) to S.G Vombatkare vs. Union of India (2022) on the constitutionality of the Section 124-A of the IPC. In 2022, the Court directed the governments to restrain from filing any FIR under Section 124-A of the IPC. On September 12, 2023, it has referred the matter to a Constitution Bench of the Court.

With reference to the provision in the BNS on "Sedition law", it is noteworthy that the parliamentary committee's report acknowledges the fact that the Sedition law has just been paraphrased and retained. The 22nd Law Commission had suggested that sedition should be well defined. The Union government has decided to do the opposite of that. The provision in the new bill gives it such a broad definition that it can encompass any act in the name of endangering the unity and integrity of India. It leaves a lot of room for discretion which is the opposite of what was advised by the law commission. It talks about Acts endangering sovereignty, unity and integrity of India. Sedition gets a sinister backfoot entry in the proposed legal regime. This broad definition could potentially infringe on individuals' rights to free expression and peaceful dissent. The broad and vaguely worded sedition provisions can create a chilling effect on free speech and peaceful protest. Individuals may self-censor their opinions and criticisms, fearing legal consequences, which can undermine democratic values and civil liberties. The potential for misuse and abuse under the redefined sedition law has increased. Such broad and discretionary provisions can be employed to stifle legitimate dissent and criticism, limiting freedom of expression and potentially infringing on individuals' rights.

The three Sections 364, 364A and 365 of IPC which dealt with "Kidnapping for murder, ransom, etc." have been clubbed under one Section 140 under BNS. 

The eight Sections 340, 342, 343, 344, 345, 346, 347 and 348 of IPC which dealt with "wrongful confinement" have been clubbed under one Section 127 under BNS. 

Certain offences defined under BNS are already defined and punishable under Unlawful Activities Prevention Act, 1967. UAPA, 1967 is a Special Enactment, it is having a special procedure with regard to investigation, bail etc. The incorporation of same provisions in the BNS will cause lot of confusion in the matter of registration of a case, investigation, inquiry and trial of a particular offence. The offenders who fall under both the enactments will attempt to escape the rigor of UAPA, 1967. There is an overlapping between UAPA and BNS and such overlapping will cause confusions. How a Police officer, though he is a senior officer can decide under which enactment a person is to be prosecuted. This is to be decided by the Court.

The provision in the BNS on the "Commutation of a sentence" is problematic. It gives the executive the powers to commute an offender’s sentence punishment for any other punishment. Allowing the executive to commute sentences can blur the separation of powers in a government. It gives the executive branch, which is responsible for enforcing the law, a role in altering or mitigating the legal punishments determined by the judiciary. This could potentially lead to an imbalance of power and an infringement on the judiciary's independence. Executive decisions might be swayed by electoral or popularity concerns rather than solely focusing on justice and the merits of individual cases. Commutations can be seen as undermining the authority and decisions of the judiciary. It may give the impression that the executive branch can override or second-guess the judiciary's determinations, eroding trust in the legal system.

With regard to the provision in the BNS on the "Solitary Confinement", it is noteworthy that solitary confinement is inhumane. There is research which shows that solitary confinement is not an effective tool for deterrence or rehabilitation. It does not reduce recidivism or promote positive behaviour change; instead, it can increase aggression and antisocial behaviour. It has been shown to have serious detrimental effects on individuals' mental and physical well-being, and it raises ethical and human rights concerns. The characterization of solitary confinement as a brutal type of incarceration by the Supreme Court of India in the case of Kishore Singh Ravinder Dev v. State of Rajasthan highlights the court's recognition of the severe and adverse effects of solitary confinement on individuals.

With regard to the provision in the BNS on the "Promise to Marry", it must be noted that relationships and decisions about marriage are deeply personal matters that should be left to the individuals involved, subject to only some basic safeguards that may be consensually instituted by the society Criminalizing a Promise to Marry can be seen as an undue intrusion into individuals' Right to Privacy and autonomy. Determining whether a promise to marry has been made can be subjective and challenging to prove. Intentions can change over time, and proving that a promise was genuinely made with the intention to marry can be difficult. Defining what constitutes a legally binding Promise to Marry can be vague and open to interpretation. This lack of clarity can lead to inconsistencies in enforcement and judgments. Criminalizing a Promise to Marry can be viewed as an unwarranted intrusion into the fundamental Right to Privacy and personal autonomy, which are cherished principles in a democratic society. In this context, a more nuanced and rights-based approach to addressing matters related to promises to marry would be both pragmatic and respectful of individual freedoms and choices.

With regard to the provision in the BNS on "Kidnapping and begging", fails to exclude the exception of lawful guardian of such child. Even guardians who wrongfully push children into begging should be rigorously punished. Excluding the exception of lawful guardians in a clause punishing those who wrongfully push children into begging is essential to safeguard the rights and well-being of vulnerable children. It sends a strong message that all individuals, regardless of their legal relationship with the child, will be held accountable for such harmful actions, acting as a powerful deterrent against child exploitation. This approach prioritizes the child's best interests, prevents potential legal loopholes, and aligns with international human rights standards, fostering a child-centered and protective legal framework that leaves no room for evading responsibility in cases of child exploitation.

The current definition of "imprisonment for life" within the BNS is not explicitly clear. It appears to be using the term "imprisonment for the remainder of a person's natural life." However, in the IPC, Section 53, the term "imprisonment for life" is used without specifying whether it means "imprisonment for the remainder of a person's natural life" or if it is equivalent to a "whole life sentence." There needs to be clarity about whether the convicts are expected to remain in prison for the entirety of their natural life or are eligible for release. The proposed definition of "imprisonment for life" in the BNS is not explicitly clear, and it differs from how "imprisonment for life" is generally understood in the context of the IPC. To avoid confusion and ensure legal clarity, the definition in the BNS be aligned with the understanding that "imprisonment for life" means a "whole life sentence" unless otherwise specified. This would help in harmonizing the definitions and interpretations across different legal contexts in India. 

With regard to "Offences Relating to Elections", it has been noted in the report that "One of the general patterns in contemporary India’s criminal law is that offences that are particularly difficult to regulate and especially elaborate in their organisation internally while having a large-scale impact on society are addressed by ‘special statutes’. These special statutes while being harsh in punishment are rigorous in the procedural safeguards, they offer the accused. The emphasis being that there are checks and balances present in the quest of the state to prosecute and the efforts of the accused to defend herself. Any detraction from the procedural protections that general criminal law offers, will have checks in place in these special statutes. Offences related to elections should be on Representation of People Act. Similarly with UAPA, the special legislation should remain and amended if need be. But it should not be subsumed in the IPC."

With regard to clause on "Defamation", there is no limitation on filing cases for defamation. Imposing a time limitation on defamation claims helps protect the fundamental principle of free speech. Without such limitations, individuals or organizations could potentially bring defamation claims many years after an alleged defamatory statement was made. This could have a chilling effect on free expression and public discourse, as people may become reluctant to express their opinions or engage in critical discussions for fear of facing legal action at any time in the future.

A new Section 69 in the BNS deals with "sexual intercourse by employing deceitful means". It penalizes sexual intercourse by employing deceitful means (false promise of employment or promotion, inducement or marrying after suppressing identity) or by making promise to marry without intention of fulfilling the same.

A sentence of community service has been introduced for six offences. This is reserved for minor offences, non-violent crimes, and first-time offenders. These are:

  1. Non-appearance in response to a proclamation under Section 84 BNSS (Section 209 BNS).
  2. Public servant unlawfully engaging in trade (Section 202 BNS).
  3. Attempt to commit suicide to compel or restrain exercise of lawful power (Section 226 BNS).
  4. Petty theft (involving property worth less than INR 5,000) by first-time offenders upon returning the stolen property (Proviso to Section 303 BNS).
  5. Misconduct in public by a drunken person (Section 355 BNS).
  6. Defamation (Section 356 BNS).

Notably, under section 18(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 a juvenile may be directed to undertake Community Service as a penalty.

Community service has been defined as ‘Court ordered work that benefits the community, and which is not entitled to any remuneration’ (Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita). In State through PS Lodha Colony, New Delhi v. Sanjeev Nanda (BMW Hit and Run case), Supreme Court directed community service under Article 142 of the Constitution of India as a reformative measure along with payment of compensation instead of enhancing the sentence. 

BNS misses the opportunity to the menace of ‘hate speeches’. It has not been defined in any law including the new law. Section 196 of the BNS deals with the offence of  promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. It includes electronic communication in its ambit but does not define it. It ignores Law Commission’s 267th Report on Hate Speech and the decision of the Supreme Court in Pravasi Bhalai Sangathan vs. Union of India (2014).

BNS fails to include Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms. It was enacted in 2005 by Parliament but it was not notified. 

Section 104(2) of the BNS violates Article 20(3) of the Indian Constitution which says “no person accused of an offence shall be compelled to be a witness against himself”.

The new criminal laws enhances the time for which a person can be kept in police custody, there exists no protective measures to provide safety to the accused persons under police custody which is bound to adversely affect the safety of detainees.

There are several provisions in these laws which consolidate powers introduced by the colonial powers. For instance, Section 113 (terrorist acts) of the BNS unmindful of the fact that the Unlawful Activities (Prevention) Act (UAPA), 1967 already deals with it. It is intriguing as to why create a general law provision when UAPA, a special law already exists in this regard.

The BNS retains the marital rape exception. It retains the value laden phrase ‘outraging the modesty of women’ instead of replacing it with the gender-neutral term ‘sexual assault’. It provides inadequate protection to victims of non-consensual intimate imagery. It does not include any provision for offences involving rape of males or of transgender individuals. The provision for offence for acts endangering ‘sovereignty or unity and integrity of India’, is ambiguous, with the potential to curtail freedom of speech or to stifle dissent.

The judgement of the Supreme Court in Mithu Vs. State of Punjab underlined that there is no intelligible differentia in sentencing a person only with death sentence under section 303 of IPC. The BNS attempts an alternate sentence to the death, namely imprisonment for life which means imprisonment for the remainder of the person’s life. This falls foul of the Court's judgement. 

The National Judicial Data Grid reveals that 34,180,141 criminal cases at the district and taluka courts are pending in India. 1,755,946 criminal cases are pending in the high courts. At the Supreme Court 18,049 (less than one year old) cases are pending. The new criminal laws will result 30 percent increase in criminal litigation. It is all set to create two parallel sets of laws since the criminal justice system is a combination of both substantive and procedural laws.