Difference between ancestral property and inherited property

"The interest of a legal heir in inherited property is not established at birth, as with ancestral property. Rather, it is formally conferred through a testamentary will or agreement”, Justice Purushaindra Kumar Kaurav of Delhi High Court held in Shri Birbal Saini vs. Smt.Satyawati (2024). Notably, a legal heir can even be disqualified as a successor. The property owner holds absolute authority over designating their successor and setting the conditions for such succession.

The Court observed:"the Courts below have rightly relied on the decision of the Supreme Court in the case of Commissioner of Wealth Tax, Kanpur, etc. vs Chander Sen (1986) to hold that held that the suit property is not ancestral. Therefore, the sale of the suit property by the father in favour of his daughter, the respondent/plaintiff, was legally permissible and binding by law." 

It cited relevant extract from the decision of Commissioner of Wealth Tax, Kanpur which reads:-"Under s. 8 of the Hindu Succession Act, 1956, the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family. Section 8 lays down the scheme of succession to the property of a Hindu dying intestate. The Schedule classified the heirs on whom such property should devolve. Those specified in class I took simultaneously to the exclusion of all other heirs. A son's son was not mentioned as an heir under class I of the Schedule, and, therefore, he could not get any right in the property of his grandfather under the provision. The right of a son'sson in his grandfather's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect". So construed, s. 8 of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1356, did not constitute HUF property consisting of his own branch including his sons. The Preamble to the Act states that it was an Act to amend and codify the law relating to intestate succession among Hindus. Therefore, it is not possible when the Schedule indicates heirs 9 in class I and only includes son and does not include son's son but does include son of a predeceased-son, to say that when son inherits the property in the situation contemplated by s. 8, he takes it as Karta of his own undivided family." 

The cited judgement further reads: "2.4 The Act makes it clear by s. 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today that the property which devolved on a Hindu under s.X of the Act would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis sons and female heirs with respect to whom no such concept could be applied or contemplated. 2.5 Under the Hindu law, the property of a male Hindu devolved on his death on his sons and the grandsons as the grandsons also have an interest in the property. However, by reason of s. 8 of the Act, the son's son gets excluded and the son alone inherits the properly to the exclusion of his son. As the effect of s. 8 was directly derogatory of the law established according to Hindu law, the statutory provisions must prevail in view of the unequivocal intention in the statute itself, expressed in s. 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu Law. 2.6 The intention to depart from the pre-existing Hindu law was again made clear by s. 19 of the Hindu Succession Act which stated that if two or more heirs succeed together to the property of an intestate, they should take the property as tenants-in-common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father's property took a joint tenants and not tenants-in-common. The Act, however, has chosen to provide expressly that they should take as tenants-in-common. Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under s. 8 constituted the absolute properties and his sons have no right by birth in such  properties."

After citing the above judgement, Delhi High Court observed that the primary controversy appears to be about the ancestral nature of the suit property. It explained the difference between characteristics of an ancestral property and inherited property. "By definition, an ancestral property is a coparcenary property, where "coparceners" are legal heirs with an inherent interest in the property from birth. Such properties remain undivided within joint families, with legal heirs enjoying their shares. The Supreme Court in the case of Matkul v. Mst. Manbhari and Others (1958) elucidates upon the concept of ancestral property in the following terms:-

“6. So far as the statement of the customary law itself is concerned, Rattigan's Digest which is regarded as an authority on the subject, does not support the appellant's case. In para 59 of the Digest of Civil Law for the Punjab chiefly based on the cutomary law it is stated that ancestral immovable property is ordinarily inalienable (especially amongst Jats, residing in the Central Districts of the Punjab) except for necessity or with the consent of male descendants or, in the case of a sonless proprietor, of his male collaterals. Provided that the proprietor can alienate ancestral immovable property at pleasure if there is at the date of such alienation neither a male descendant nor a male collateral in existence. Following this statement of the law the learned author proceeds to explain the meaning of ancestral property in these words:“Ancestral property means, as regards sons, property inherited from a direct male lenial ancestor, and as regards collaterals property inherited from a common ancestor”. Thus, so far as the customary law in Punjab can be gathered, the statement of Rattigan is clearly against the appellant.”

In  Rohit Chauhan v. Surinder Singh & Ors (2013) the Supreme Court emphasized that coparcenary properties are typically ancestral and should remain undivided. A coparcener is defined as an heir inheriting common ancestral property alongside others. Only coparceners can claim ownership interests in ancestral property. Non coparceners have no ownership rights. If a coparcener is the sole surviving heir, they inherit the entire property. In cases with multiple coparceners, each heir receives a proportional share based on the number of coparceners.

18. Conversely, a property obtained through inheritance, whether by way of a will or upon the demise of the property owner, is classified as inherited property. The inheritor holds exclusive ownership over the said property, and is entitled to freely transfer, sell, or dispose of it at their discretion. There are no claims based on birthright, with ownership being governed by the legal owner's directives, will, or the applicable succession laws. The interest of a legal heir in inherited property is not established at birth, as with ancestral property. Rather, it is formally conferred through a testamentary will or agreement. A legal heir can even be disqualified as a successor. The property owner holds absolute authority over designating their successor and setting the conditions for such succession.

19. It is, thus, clear from the factual background of the case at hand that the suit property could not have been held to be an ancestral property, as the same was received by the erstwhile owner, Sh. Bharat Singh, by way of a family settlement, wherein, the two brothers divided two equally measuring plots between themselves. Hence, the property could not have been said to be delved on the father by virtue of him being a coparcener in that property. The Courts below have rightly laid down the distinct position of the suit property from that of an ancestral property. Therefore, the Court does not find any error in the decisions of the Courts below and refrains from interfering with the same.

20. Section 100 of the CPC confers a limited jurisdiction on the High Court to deal only with any legal error apparent on the face of the record. The Supreme Court has clearly elucidated upon the essentials of a substantial question of law in the case of Chandrabhan (Deceased) Through Lrs vs Saraswati (2022). 

The Court held that:-“31. The proper test for determining whether a question of law raised in the case is substantial would be, whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this Court. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the question raised is palpably absurd, the question would not be a substantial question of law.

32. To be "substantial‟, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first, a foundation for it laid in the pleadings and the 

question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See: Santosh Hazari v. Purushottam Tiwari)”.

As there arose no substantial question of law to be adjudicated, the appeal was dismissed on December 24, 2024.

Court's "Registry cannot defy the order and refuse to list the cases on the ground that there was non-compliance with procedural aspects": Supreme Court

"Something is rotten in the state of Denmark." 

-Act I, Scene 4, Hamlet  (1599-1601) by William Shakespeare

In Saddam  MK & Other vs. Union of India, on December 20, 2024, Supreme Court's bench of Justices Abhay S. Oka and Augustine George Masih observed that the registry cannot refuse to list those cases solely due to the litigant's failure to comply with procedural requirements when specific cases are assigned to be heard by a particular bench of the Court by way of judicial orders. 

It observed:"We do not find any Rule in the Supreme Court Rules, 2013 which provides that on the ground of the failure to comply with requirements of Rule 2 of Order XV, a case cannot be listed before the Court even if there is a direction of the Court to list it. There may be cases of extreme urgency. In such cases, the Registry cannot rely upon Rule 2 of Order XV and refuse to list the case. "

The order reads: "When there is an order of the Court directing listing of the cases specifically assigned to that Bench, the Registry cannot defy the order and refuse to list the cases on the ground that there was non-compliance with procedural aspects.  The Registry is relying upon Rule 2 of Order XV of the Supreme Court Rules, 2013 which enjoins petitioner to serve notice of the caveat along with copy of the petition to the Caveator.  In this case, six petitions were not listed notwithstanding the directions of this Court to list the same on the ground that the Advocate for the petitioner had not produced on record the proof of a service of copies of the petitioners as caveators."

The Court said: "We may at this stage refer to Section 148A of the Code of Civil Procedure, 1908.  If a caveator files a caveat, he gets right of hearing when the court considers the prayer for interim relief.In appeal or in Special Leave Petition, a caveator does not have right to be heard on the issue of grant of leave or admission of the appeal. He has a right of hearing on the prayer for interim relief. Moreover, apart from the obligation under sub-Section (5) of Section 148A of the petitioner/appellant, under sub-section 3 of Section 148A even this court is under an obligation to issue a notice of the application for interim relief to the caveator once it is noticed that there is a caveat filed."

In in its penultimate paragraph, the order reads: Therefore, when there is a direction of the Court to list SLPs/appeals notwithstanding non-compliance with Rule 2 of Chapter XV of the Rules, Registry can always list the case before the Court with an office report highlighting the failure of the petitioner/appellant to comply with requirements of Rule 2 of Order XV of the Rules.  We hope that the incident of defiance with the order of this Court is not repeated.  However, no action is called for against erring court officials."

In its order, Supreme Court directed "Registrar (Judicial) to take a note of this order" and "list all the matters on 17th January, 2025." The case arose out of ing out of final judgment and order dated June 25, 2024 in CRLA No. 1441/2023 passed by the High Court of Kerala at Ernakulam. The case was registered in the Supreme Court on  July 15, 2024.

On September 13, 2024, Aishwarya Bhati, Additional Solicitor General had appeared on behalf of Union of India to state that she will appear in those cases where service of notice is not complete. On October 18, 2024, she pointed out that the National Investigation Agency (NIA) has filed 17 Special Leave Petitions for challenging the impugned order(s) to the extent to which the bail was granted to 17 accused. The Court's order of October 18 stated: "It will be appropriate if the present Special Leave Petitions are heard along with aforesaid 17 Special Leave Petitions. After seeking necessary directions from Hon’ble the Chief Justice of India, all the cases shall be listed on 8th November, 2024."

The order of November 8, 2024 reads:Perused the order dated 18th October, 2024. The order incorporates the numbers of 17 Special Leave Petitions filed by the National Investigation Agency for challenging a part of the same impugned order by which bail was granted.  Therefore, we had issued a direction for placing all the 17 cases before Hon'ble the Chief Justice of India so that all the cases can be assigned to the same Bench. We have perused the administrative order of 5th November, 2024 which says that out of 17 cases which are mentioned in our last order, cases at serial Nos.9 and 15 have not been assigned to this Bench.  The Registry to clarify. List on 18th November, 2024."

The order of November 18 reads: "These matters along with 17 Special Leave Petitions mentioned in the oned in the note presented to Hon'ble the Chief Justice of India on 5th November, 2024 shall be listed on 29th November, 2024. All matters will be considered together on 29th November, 2024."

The order of November 29 reads: "Notwithstanding the repeated directions issued by the Court" six Petitions filed by Union of India have not been listed. It states:" Registry owes an explanation to the Court for not listing the aforesaid Petitions in spite of earlier orders. We direct that the above-mentioned six Petitions shall be listed on 16th December, 2024.  The explanation of the Registry will be considered on 16th December, 2024. A copy of this order be forwarded to the Registrar (Judicial)." 

This isn't the first instance. 

In January 2024, the Supreme Court had criticised the Registry for it's failure to comply with the order directing listing of the Civil Appeal along with the connected matters on  December 7, 2023 on the regular list.

"Though we are not inclined to initiate any action, what is worrying is that some members of the staff have bye-passed the judicial order directing listing of the Civil Appeal along with the connected matters on 7th December 2023 on the regular list. We wonder how judicial order could have been violated like this", a division bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan had observed.

The Court noted that although the staff member had relied upon a Circular dated February 14, 2023, it ignored that the lead matter in this group is a Civil Appeal which ought to have been listed,  in terms of the Circular in question.

The Court chose not to initiate action while stating that the Registrar (Judicial Listing) has submitted that the dealing assistant and all staff members have been warned. 

In May 2024, the Supreme Court Bench comprising Justices JK Maheshwari and Sanjayh Karol had sought an explanation from its Registrar (Judicial) against the listing of the case without following the proper procedure.The Special Leave Petition (Criminal) was filed and it was listed before the court without an exemption from the surrender application.

Notably, 49th Chief Justice U.U.Lalit had also sought an explanation from the Supreme Court Registry for not listing a matter.  Two days after that Justice Ajay Rastogi told the court master, 'once this court passes a date for listing, the registry has no business changing it'. He observed after being informed by the counsel for one of the parties that the matter had not been listed despite repeated efforts and even after receiving the approval of the Bench in the form of an order. He underlined: "This time, I am telling you very clearly. Next time this is brought to my notice that despite an order of the court, a matter has not been listed, I will take strict action. I will not permit any Registrar to have this discretion. Do not call upon the court to pass such orders," justice Rastogi warned, "But you call upon me, I have no difficulty in passing necessary orders." He observed: "The Registrar is not above our order. They are behaving as if they are running the court."

Prior to this on November 1,2022, a division bench of chief justice Lalit and justice Bela M Trivedi had asked the registry to file an explanation for not listing a matter for over a year and a half, despite it being ready to be listed.  

The bench issued the notice after it came to know about a matter listed, which was ready for listing one and a half years ago. The bench asked the registry to submit its explanations along with reasons for such a long delay in listing the matter. 

Judges from the court have been warning the registry on the listing of matters, despite passing instructions. In August 2024 year, a bench of Justice Dr  D.Y.Chandrachud and Justice A.S.Bopanna had expressed displeasure after being appraised that the registry deleted a matter that was listed from the board. 

The court had said, "Why does the registry delete matters? We read cases and come and they are deleted. Are we the judges or the registry? Tell them if they delete it, they can at least inform us."

Justice M.R.Shah too made similar remarks in August 2024 saying, "Registry cannot delete matters... there are excessive matters, especially considering that judges bunch the cases and list them."

In June 2022, in an abnormal development, the Supreme Court registry had defied a Court's order directing listing of a petition for hearing of a matter.

The non-listing of the petition, despite written orders, left the bench of Justices Surya Kant and J B Pardiwala surprised. The judges were heard sharing their disappointment: "How can the Registrar (Judicial) say the matter won't be listed, after we've directed?" 

It is the norm that after a bench orders, even orally, for listing of a petition on a specific day, the Registry complies with it.

The reason behind the Court's surprise was the non-listing of a Union government's petition which was mentioned by Tushar Mehta, Solicitor General (SG) for urgent listing. Mehta had questioned the Tripura High Court's jurisdiction to entertain a PIL challenging the Z+ security cover given to Mukesh Ambani. 

The SG had submitted that the High Court had without territorial or subject jurisdiction  directed the Union home ministry to provide documents substantiating the grant of highest security cover to Ambani and his family.

The bench of Justices Kant and Pardiwala in its order on had said, "Upon being orally mentioned by Tushar Mehta, law officer of India appearing for the petitioner Union of India, seeking urgent listing of the matter, the Registry is directed to list these matters tomorrow, i.e., June, 28, 2022." But, the matter wasn't listed. Later, registry  listed the Union government's special leave petition against the High Court's order on for hearing.

Isn't the conduct of Supreme Court's Registry, an ideal public institution worthy of emulation by other public institutions? 

Rightful claims of regularization for workers engaged in long-term essential roles cannot be denied: Supreme Court

On December 20, 2024, Supreme Court observed:"It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long-term obligations owed to employees. These practices manifest in several ways:

Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

Arbitrary Termination:Employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.

Using Outsourcing as a Shield:Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.

Denial of Basic Rights and Benefits:Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances."

In Jaggo & Ors. vs. Union of India & Ors, Supreme Court's bench of Justices Vikram Nath and Justice Prasanna B. Varale has taken note of the misapplication of its earlier ruling in Secretary, State of Karnataka vs. Uma Devi (2006). 

The Court observed that while the judgment in Uma Devi case "sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between “illegal” and “irregular” appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades."

Mrs. Jaggo and three others, the appellants served the Central Water Commission (CWC) for extended periods ranging from over a decade to nearly two decades. Initially engaged on part-time and ad-hoc terms, their roles included sweeping, dusting, gardening, and other maintenance tasks essential to the day-today functioning of the CWC.

Following the dismissal of their application for regularization by the Central Administrative Tribunal (CAT), their services were abruptly terminated in 2018. 

The bench of Justices V. Kameswar Rao, Anoop Kumar Mendiratta of Delhi High Court upheld CAT's decision, citing their contractual nature of engagement. It relied on the decision in Uma Devi case. The High Court, after examining the Tribunal’s decision and the submissions advanced, concluded that the petitioners before it were part-time workers who had not been appointed against sanctioned posts, nor had they performed a sufficient duration of full-time service to satisfy the criteria for regularization. It relied on the principle laid down in Secretary, State of Karnataka vs. Uma Devi holding that the petitioners could not claim a vested right to be absorbed or regularized without fulfilling the requisite conditions. The High Court further observed that the petitioners did not possess the minimum educational qualifications ordinarily required for regular appointments, and additionally noted that the employer had subsequently outsourced the relevant housekeeping and maintenance activities. Concluding that there was no legal basis to grant the reliefs sought, the High Court dismissed the writ petition. Aggrieved by this rejection, the workers who are the appellants approached the Supreme Court. 

Supreme Court observed: “The appellants’ work was not sporadic or incidental but integral and continuous for over a decade. To label such engagement as ‘temporary’ while simultaneously outsourcing the same duties reveals an inherent contradiction in the respondents’ stance."

Significantly, the Court observed: "Labels such as ‘temporary’ or ‘contractual’ cannot override the substantive nature of the work performed over decades.” It added: “The essence of employment lies not in its initial terms but in the reality of continuous service and indispensable duties.”

The Court relied on a decision of a US Court in Vizcaino v. Microsoft Corporation (1996) which serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and the corresponding rights and benefits. It highlights the judiciary's role in rectifying such misclassifications and ensuring that workers receive fair treatment.

The 29 page long judgement was authored by Justice Vikram Nath. The Court set aside the decisions of the High Court and the Tribunal. Its direction reads: The appellants shall be taken back on duty forthwith and their services regularised forthwith.However,the appellants shall not be entitled to any pecuniary benefits/back wages for the period they have not worked for but would be entitled to continuity of services for the said period and the same would be counted for their post-retiral benefits."

In the penultimate paragraph, the Court's judgement states: "in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation,promote job security,and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."

Dr. Gopal Krishna

Supreme Court seeks fresh hearing by a new bench of Delhi High Court on interpretation of Section 52A in NDPS case

In Narcotics Control Bureau vs. Kashif (2024), Supreme Court's bench of Justices Bela M. Trivedi and Satish Chandra Sharma has requested the Chief Justice of Delhi High Court "to place the Bail application of the Respondent before the Bench other than the Bench which has passed the impugned order, for deciding it afresh." The judgement was delivered on December 20, 2024.

The Court was hearing the appeal which arose out of the order dated May 18, 2023 passed by Justice Jasmeet Singh of the High Court of Delhi in a bail application granting bail to the respondent. The bail application was allowed by the High Court solely on the ground of belated compliance of Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. Justice Trivedi led bench felt that the High Court misinterpreted this provision, and without recording the findings as mandated in Section 37 of the NDPS Act. The Court felt that High Court's order involved seminal issue on the interpretation of Section 52A of the Act is likely to have wide repercussions. 

The Court noted that the provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.

Supreme Court's judgement observed that the High Court's order is based on the inferences and surmises, in utter disregard of the statutory provision of the Act and in utter disregard of the mandate contained in Section 37 of the Act, and granting bail to the accused merely on the ground that the compliance of Section 52A was not done within reasonable time, is highly erroneous and deserves to be quashed and set aside. It concluded: "Since, the High Court has not considered the application of the respondent on merits and has also not considered the mandatory requirement under Section 37(1)(b) of the Act, we deem it appropriate to remand the case to the High Court for deciding the bail application of the respondent afresh on merits and in accordance with law. Since, we are remanding the matter for fresh consideration on merits, we are extending the period of bail granted to the respondent for four  weeks, with a request to the High Court to decide the application afresh as expeditiously as possible, and preferably within four weeks. In case the same is not disposed of within four weeks it shall be open for the High Court to pass appropriate orders with regard to extension/ non-extension of the said period."

Section 52A:“Disposal of seized narcotic drugs and psychotropic substances.—(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—(a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

The NDPS Act came into force on October 14, 1985, Section 52A was inserted by the Act 2 of 1989, which came into force with effect from May 29, 1989. For the purpose of proper interpretation of Section 52A, it would be beneficial to peep into its historical background, and the position with regard to the search, seizure, drawing of sample, etc. prevailing prior to the insertion of Section 52A. Prior to insertion of Section 52A in the Act, the Central Government in exercise of the powers under Section 4(3) of the NDPS Act vide notification dated March 17, 1986, had constituted the Narcotics Control Bureau (NCB) conferring upon it the powers and functions of Central Government for taking measures in respect of matters contained in Section 4(2) of the Act. It was noticed by the NCB that different Investigating Officers of various enforcement agencies were adopting different procedures in drawing samples from seized narcotic drugs and psychotropic substances, etc. Therefore, with a view to bring uniformity of approach in such matters and to provide for a secured system of handling of drug samples, the NCB had issued the Standing Instructions No. 1 of 88 vide the Notification dated 15.03.1988. The said Notification of the Standing Instructions no. 1 of 88 pertained to the procedure to be followed for drawing samples from the seized narcotic drugs and psychotropic substances, numbering of samples drawn, sealing, mode of packing, dispatch of samples to the concerned laboratory for test etc. The relevant clauses of the said Standing Instructions No. 1 of 88 pertaining to the place and time of drawal of sample, disposal of Remnant sample/duplicate sample and the drug, read as under:
“1.5. Place and time of drawal of sample: Samples from the Narcotic Drugs and Psychotropic Substances
seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the Panchanama drawn on the spot.
1.21. Custody of duplicate sample Duplicate sample of all seized narcotic drugs and psychotropic substances must be preserved and kept safely in the custody of the Investigating officer alongwith the case property. Normally duplicate sample may not be used but in case of loss of original sample in transit or otherwise or on account of trial court passing an order for a second test, the duplicate sample will be utilized.
1.22. Disposal of Test Memo
As soon as the test result in original or duplicate or both test memos are received, the same will be filled in the Court, trying the case, alongwith, chargesheet/complaint by the Investigating officer. He will keep an attested copy of the same in his case file.
1.23. Disposal of Remnant sample/duplicate sample and the drug-At present, the remnant sample/duplicate sample and seized narcotic drugs and psychotropic substances can be disposed of after the proceedings of prosecution is over or by obtaining an order from such court under Section 110 of the Customs Act, 1962 and/or 451 of Cr.P.C. While obtaining the order of the court under the aforesaid section it is necessary that specific order in respect of the remnant sample/ duplicate sample is also obtained. After such order has been obtained, the drug or substance along with the samples including remnants shall be disposed of in the13 manner prescribed. Please acknowledge the receipt of the standing order."

Recognizing the importance of dispatch, transit, receipt, safe custody, storage, proper accounting and disposal destruction of the seized/confiscated drugs and the need for evolving a uniform procedure, the NCB issued the Standing Order No. 2 of 88 vide the Notification dated April 11, 1988. The NCB vide the said Standing Order formulated the procedure to be followed by all the Central and State drug law enforcement agencies for seizure, sampling, storage etc. It was mentioned in clause 3.1 thereof that “all drugs should be properly classified, carefully weighed and sampled on the spot of seizure.” The clause 3.2 thereof stated that “the procedures set out in Standing Order No.1 of 88 should be scrupulously followed”. The clause 5.2 directed the respective enforcement agencies to constitute a three-member Committee, making it responsible to advise the respective investigating officers on the steps to be initiated for expeditious disposal of the seized drugs.

High Court directs Election Commission of India to supply entire videography, CCTV footage, copy of form 17C Part I, Part II of all legislative seats

Punjab and Haryana High Court has directed the officials of the Election Commission of India to supply to me the entire videography, CCTV footage and copy of form 17C Part I and Part II of all 90 seats of the Haryana Legislative Assembly Elections of 2024. In Mehmood Pracha vs. Election Commission of India and others 2024), the petitioner contended that as per the provisions of the Conduct of Election Rules, 1961 under  the Representation of the People Act, 1951, the only distinction cast between a candidate and any other person is that while the documents have to be supplied free of cost to a Candidate who contested the election, the documents are to be supplied to any other person subject to payment of the fee as may be so prescribed.

Notably, Rule 93 of the Conduct of Election Rules deals with the production and inspection of election papers. Rule 93(2) reads:"Subject to such conditions and to the payment of such fee as the Election Commission may direct,—(a) all other papers relating to the election shall be open to public inspection; and (b) copies thereof shall on application be furnished." This provision was added in December 23, 1971.

Rule 93(1) of the Conduct of Election Rules reads: "While in the custody of the district election officer or, as the case may be, the returning officer—(a) the packets of unused ballot papers with counterfoils attached thereto; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the counterfoils of used ballot papers; (cc) the printed paper slips sealed under the provisions of rule 57C; (d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub-section (1) or sub-section (2) of section 152; and 3 (dd) the packets containing registers of voters in form 17-A; (e) the packets of the declarations by electors and the attestation of their signatures, shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court." The provision regarding Form 17-A was inserted on March 24, 1992 which became effective from July 17, 1992. 

Form 17C read with Rules 49S and 56C (2) deals with account of votes records. This Form was inserted in the Rules on August 14, 2013. Rule 49S reads: "Account of votes recorded.—(1) The presiding officer shall at the close of the poll prepare an account of votes recorded in Form 17C and enclose it in a separate cover with the words ‘Account of Votes Recorded’ superscribed thereon. (2) The presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in Form 17C after obtaining a receipt from the said polling agent therefor and shall attest it as a true copy."

Rule 56C deals with counting of votes. Rule 56C (2) reads: As the votes polled by each candidate are displayed on the control unit, the returning officer shall have,—(a) the number of such votes recorded separately in respect of each candidate in Part II on Form 17C:Provided that the test vote recorded, if any, for a candidate, as per item 5 in Part I of Form 17C, shall be subtracted from the number of votes recorded for such candidate as displayed on the control unit; (b) Part II of Form 17C completed in other respects and signed by the counting supervisor and also by the candidates or their election agents or their counting agents present; and (c) corresponding entries made in a result sheet in Form 20 and the particulars so entered in the result sheet announced."

The High Court's order reads: "Taking into the consideration the provisions of the Conduct of Election Rules, 1961, the respondents are directed to supply the copy of the requisite documents, other than the documents qua which a restriction has been imposed under the Conduct of Election Rules, 1961, within a period of 06 weeks of submission of such an application and deposit of the requisite charges by the petitioner." The case was registered on December 5, 2024. The judgement was authored by Justice Vinod S. Bhardwaj.

Supreme Court to examine permissibility of piecemeal compromises in criminal cases

In Puneet Kumar @ Punit Kumar vs. State of Haryana and Others (2024), Supreme Court's bench of Justice Hrishikesh Roy and Justice S.V.N. Bhatti  issued notice on a plea challenging a decision of Punjab & Haryana High Court wherein it has been contended that courts cannot accept piecemeal compromises in criminal cases. 

Notably, High Courts have taken contrary positions in this regard. The issue to be considered is whether on the basis of the compromise reached between the informant and the petitioner (one of the accused),  the quashing of the FIR on the petition filed under Section 482 Cr.P.C. should have been ordered by the Court. In this case, the petitioner was not named in the FIR and was roped in on the basis of the statement by a co-accused. 

The Court observed: "On the legal aspect, the counsel draws the attention of the Court to the chart at “Page-D” to point out that different High Courts had taken contrary positions on the issue as to whether on the face of compromise with one or few of the accused in the case, the case can be part quashed by the Court".  The Court issued the notice on December 18, 2024.

The High Court in question has held that piecemeal settlement between the complainant or victim and some of the accused would be in conflict with the mandate of Section 223 (what persons may be charged jointly) of CrPC. This Section had now been numbered as Section 246 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

In Rakesh Das v. State of Haryana and Another, the High Court's division bench of Justices Sureshwar Thakur and Sudeepti Sharma has passed their judgement on November 12, 2024. It ruled that the courts cannot accept piecemeal compromises to save some of the accused in criminal cases. It observed that if such piecemeal compromises are allowed public prosecutors would be unable to prove the joint criminal liability in the case. If relief is granted in piecemeal manner it will have ramifications on the trial of other accused persons. 

The interim order dated December 18, 2024 reads:"In the meantime, the trial may continue but not qua the petitioner." 

Supreme Court elaborates on scope of exercise of power under Section 227, Cr.P.C, sets aside High Court's judgement in NDPS case

The appellant was accused of commission of offence under Section 27(a) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. After the investigation, a final report was filed against all the accused including the the appellant herein (accused No.13) was charge sheeted only for offence under Section 27(b) of the NDPS Act. The order dated September 14, 2022 passed by Madras High Court filed against the order dated July 26, 2022 passed by the Additional District Judge (ADJ)-Special Court under Essential Commodities Act Cases, Coimbatore under Section 227 of the Code of Criminal Procedure (Cr.P.C.), 1973 to discharge him. As per the order dated July 26, 2022, the application for discharge filed by the appellant was dismissed. The Revision Petition filed against it was also dismissed.

While hearing the appeal, the Supreme Court's bench of Justices C.T. Ravikumar and  Rajesh Bindal dwelt on the scope of exercise of power under Section 227, Cr.P.C. It drew on the Court's decision  in P. Vijayan v. State of Kerala & Anr.(2010). The Court held:Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:
“227. Discharge. — If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

The Court observed: "At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 

The Court also drew on Court's decision in Sajjan Kumar v. Central Bureau of Investigation (2010) to consider the scope of Section 227, Cr.P.C. 

The Court observed: "The position of law enunciated in the said decisions would reveal that while calling upon to exercise the power under Section 227, Cr.P.C., the judge concerned has to consider only the record of the case and the documents produced along with the same. If on such consideration the court forms an opinion that there is no sufficient ground to proceed against the accused concerned, he shall be discharged after recording the reasons therefor. It is also evident from the precedence on the aforesaid question that while exercising the said power, the Court could sift the materials produced along with the final report only for the purpose of considering the question whether there is ground to proceed against the accused concerned."

The Court's judgement concluded that the appeal is allowed and the order passed by the Madras High Court filed against the order passed by the ADJ are quashed and set aside. As a necessary sequel, the appellant who is accused in pending on the files of Additional District Judge-Special Court under Essential Commodities Act Cases, Coimbatore is discharged from the said case, by allowing the prayer of appellant for discharge.

Prohibition of Child Marriage Act (PCMA), 2006 prevails over personal laws: Supreme Court

In Society for Enlightenment and Voluntary Action vs. Union of India and Others (2024), Supreme Court has passed the following directions:-"1. Empowering Magistrates to Take Suo Moto Action and Issue Preventive Injunctions
1.1.All Magistrates vested with authority under Section 13 of the Prohibition of Child Marriage Act, 2006, are directed to take proactive measures, including issuing suo motu injunctions to prevent the solemnization of child marriages; and
1.2.Magistrates are encouraged to particularly focus on "auspicious days" known for mass weddings, when the occurrence of child marriages is notably high. Upon receiving credible information or even upon suspicion, Magistrates should use their judicial powers to halt such marriages and ensure child protection."

The judgment was delivered on October 18, 2024 by a 3-judge bench of 50th chief justice of India, Justices J. B. Pardiwala and Manoj Misra. The 141-page long judgement was authored by Dr Dhananjaya Y. Chandrachud.  

Notably, the Prohibition of Child Marriage (Amending) Bill 2021 was introduced in Parliament on December 21, 2021. The Bill was referred for examination to the Department Related Standing Committee on Education, Women, Children, Youth and Sports. The Bill sought to amend the Prohibition of Child Marriage Act (PCMA), 2006 to expressly state the overriding effect of the statute over various personal laws. The issue, therefore, is pending consideration before Parliament. 

In such a backdrop, it is quite significant that Union of India in its submission before the Supreme Court has stated after the judgment was reserved in the case that "this Court may direct that the PCMA prevails over personal law." The note of the Union states as follows: “9. As a way forward, Ministry of Women & Child Development has following inputs to provide for kind consideration of the Hon’ble Court –i. There are conflicting pronouncements by various High Courts about the precedence of the Prohibition of Child Marriage Act (PCMA), 2006 over the personal laws. Hence, Hon’ble Court may consider issuing directions pronouncing that the PCMA will prevail over the personal laws governing marriage.…” 

The Court observed: "we note that while the PCMA seeks to prohibit child marriages, it does not stipulate on betrothals. Marriages fixed in the minority of a child also have the effect of violating their rights to free choice, autonomy, agency and childhood. It takes away from them their choice of partner and life paths before they mature and form the ability to assert their agency. International law such as CEDAW stipulates against betrothals of minors. Parliament may consider outlawing child betrothals which may be used to evade penalty under the PCMA. While a betrothed child may be protected as a child in need of care and protection under the JJ Act, the practice also requires targeted remedies for its elimination." JJ Act refers to the Juvenile Justice (Care and Protection of Children) Act, 2015. CEDAW refers to Convention on the Elimination of All Forms of Discrimination against Women which was adopted in 1979 and came into force in 1981. India ratified CEDAW on July 9, 1993.

The concluding paragraph of the judgement reads:"A copy of this Judgment will be transmitted to the Secretaries of all concerned Ministries, the Government of India which includes the Ministry of Home Affairs, Ministry of Women and Child Development, Ministry of Panchayati Raj, Ministry of Education, Ministry of Information and Broadcasting, Ministry of Rural Development, statutory authorities, institutions, and organizations under the control of the respective ministries. The Ministry of Women and Child Development is directed to circulate this judgment to the Chief Secretaries/Administrators of all the States and Union Territories, as well as NALSA, and NCPCR for strict compliance with the directions. This shall be done within a period of four weeks from the date of delivery of this judgment."

In compliance with the judgement, Patna High Court's Registrar General has issued a Circular No.7 of 2024 for necessary observance of the aforementioned directions which should be strictly followed. A copy of the circular has been forwarded to the Secretary, Government of India, Ministry of Law and Justice, Department of Justice, Jaisalmer House, 26 Mansingh Road, New Delhi, Director, Bihar Judicial Academy, Patna and Member Secretary, Bihar State Legal Services Authority, Patna. The circular states that All the Principal District and Sessions Judges of Bihar are supposed  to circulate this circular order amongst all the Judicial Officers working in their respective Judgeships for its strict compliance.

 

Supreme Court grants decree of divorce under Article 142(1) of Constitution

In it's 73 page long judgement, in Rinku Baheti vs. Sandesh Sharda, Supreme Court's bench of Justices B.V. Nagarathna and Pankaj Mithal observed:"The provisions in the criminal law are for the protection and empowerment of women but sometimes are used by certain women more for purposes that they are never meant for. In recent times, the invocation of Sections 498A, 376, 377, 506 of the IPC as a combined package in most of the complaints related to matrimonial disputes is a practice which has been condemned by this Court on several occasions." 

The Court allowed the application filed by the respondent-husband under Article 142(1) of the Constitution of India is allowed and the marriage between the petitioner and the respondent is dissolved on the ground of irretrievable breakdown of marriage. Consequently, the criminal cases and the consequential proceedings pending against respondent-husband for offences punishable under Sections 354,376, 377, 420,498A,503, 506, 509 of the IPC and Sections 66 and 67 of the IT Act, 2000, filed by the petitioner are quashed.The criminal case and the proceedings for offences punishable under Sections 360, 427, 452, 454, and 457 of the IPC also stand quashed. 

It added: "In certain cases, the wife and her family tend to use a criminal complaint with all the above serious offences as a platform for negotiation and as a mechanism and a tool to get the husband and his family to comply with their demands, which are mostly monetary in nature." 

It underlined that "The women need to be careful about the fact that these strict provisions of law in their hands are beneficial legislations for their welfare and not means to chastise, threaten, domineer or extort from their husbands."

The judgement was delivered on December 19,2024. Prior to this on December 10, 2024, the Court had taken note of the tendency to implicate all the members of the husband's family when domestic disputes arise out of matrimonial discord by misusing provisions like Section 498-A IPC in Dara Lakshmi Narayana vs. State of Telangana. In May, 2024, the Court observed in Dolly Rani vs. Manish Kumar Chanchal that at Hindu Marriage is a sacred institution, not a social event for "song and dance" and "wining and dining".  The Court recalled it's earlier decisions in Achin Gupta vs. State of Haryana (2024) , Preeti Gupta vs. State of Jharkhand, (2010), Naveen Kohli vs. Neelu Kohli, (2006), Shakti vs. Anita (2023), Kiran Jyot Maini vs. Anish Pramod Patel, (2024), Vinny Paramvir Parmar vs. Paramvir Parmar (2011). 

The Court directed the respondent to pay the petitioner a sum of ₹ 12 crores only which shall be paid within one month. The litigation cost for the petitioner was ₹3 lakhs is to be paid along with the payment of permanent alimony. The petitioner was directed to vacate from the premises belonging to respondent’s father at Pune and Bhopal,within two months from the date of receipt of the amount of permanent alimony. The judgement was authored by Justice Nagarathna. 

Supreme Court stays Patna High Court's order denying pre-arrest bail in a rape case

In Gopal Mahto vs. The of Bihar and Others (2024), Justice Prabhat Kumar Singh of Patna High Court heard the case of the petitioner who apprehended arrest in a case registered for the offence punishable under sections 386, 376, and 511 of the IPC. The other respondent is Kavita Devi. The prosecution case was that on the point of knife the petitioner committed rape with the victim. In this case from Balapar, Rosera, Samastipur, the trial court disbelieved the petitioner who claimed that he was falsely implicated in the rape case due to a land dispute and the claim of clean antecedent. The trial court took cognizance only under Section 354 of the IPC. The Court's order has recorded that "No independent witnesses have supported the prosecution case." Justice Singh's order reads: "Considering the nature of accusation and gravity of offence, prayer for pre-arrest bail of the petitioner is rejected." 

A SLP was filed in the Supreme Court on August 16, 2024. On September 4, 2024, Court's bench of Justices Dipankar Datta and Sanjay Karol passed an order. It reads: "Till the next date of hearing, the petitioner shall not be arrested in connection with C.R. No. 517/2022 pending on the file of the Additional Chief Judicial Magistrate, Rosera, Bihar." On December18, 2024, the Court's order stated that "Interim order, passed earlier, shall continue till the next date of hearing." The next date of hearing is on January 7, 2025.

Modifying Patna High Court's conditional bail, Supreme Court says, "bail conditions could not be such, which would tantamount to execution of the maintenance order"

In Basu Das vs. The State of Bihar and Others (2024), Justice Anjani Kumar Sharan of Patna High Court dealt with a case wherein the petitioner apprehended his arrest for the offences punishable under Sections 498A and 34 of the Indian Penal Code (IPC). Section 498A was incorporated in the IPC in the year 1983 to provide for adequate punishment for any cruelty inflicted on a married woman by the husband and his relatives. The punishment is imprisonment for three years and fine. The offence is cognizable as well as non-bailable. Section 34 states that “When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”. The other respondent is Suhagi Devi. 

The petitioner, who is husband of complainant, was accused of having assaulted her and also ousted her from the matrimonial home in association of his family members over the dowry demand. The petitioner's counsel submitted that the petitioner is an innocent person and has committed no offence. The petitioner relied upon the judgment of the High Court in the case of Md. Naimul Haque Ansari @ Naimul Haque Ansari & Ors. Vs. The State of Bihar, reported in 2006 (3) PLJR 182.

On January 15, 2024, Justice Sharan's order reads: "In that view of the matter, let the above named petitioner, be released on bail....subject to the condition as laid down under Section 438 (2) of the Cr.P.C." The order reads: "Petitioner is ready to pay Rs.3000.00 (Rupees Three Thousand) per month to the complainant in the second week of every month. If the petitioner fails to pay the aforesaid amount on two consecutive months, informant/complainant shall be at liberty to move before the learned Court below for cancelling the bail bond of the petitioner. It goes without saying that the aforesaid payment shall be subject to any order being passed in matrimonial maintenance case or any other collateral proceedings." He directed that the complainant "to furnish the bank account details of the complainant in the learned Court below. If she fails to furnish the same, the aforesaid amount will be deposited in the learned Court below which will be released in favour of the complainant after she furnishes her bank account details. If so advised, either of the parties will be at liberty to make an application before the learned Court below for referring the matter to the District Mediation Center for the purpose of reconciliation or one time settlement." 

The Supreme Court heard the appeal which arose out of Justice Sharan's judgment and order whereby, he had granted anticipatory bail to the appellant, in connection with the case filed before the Chief Judicial Magistrate, District-Katihar, Bihar for the offence punishable under Section-498A read with Section-34 of the IPC, had imposed a condition. The complainant's counsel submitted that the appellant is not making any payment towards her maintenance though the concerned Court has passed the order for maintaining her, and though the respondent no.2, the complainant filed the execution proceedings in that regard. 

The Court observed: "However, in our opinion, while granting anticipatory bail to the appellant, such punitive condition of making payment for maintaining the respondent no.2-complainant, could not have been passed by the High Court. It is needless to say that the bail conditions could not be such, which would tantamount to execution of the maintenance order." The Supreme Court's order reads:"In that view of the matter, without expressing any opinion on the merits of the case,we are inclined to accept the present appeal and grant anticipatory bail to the present appellant." The Supreme Court's bench of Justices Bela M. Trivedi and Satish Chandra Sharma passed the order on December 17, 2024.

High Court's division bench sets aside decision of single judge bench in Saran Angadwadi case

In Raj Kumari Devi vs.The State of Bihar & Others (2024), Patna High Court's division bench of Chief Justice K. Vinod Chandran and Justice Nani Tagia concluded:"we set aside the judgment of the learned Single Judge and direct the appellant to be appointed. We notice that the successful candidate was impleaded as the 6th respondent who was issued notice on 12.09.2024, which was received on 30.09.2024. The said candidate has not appeared before us, despite service of notice." Besides the State of Bihar through the Secretary, Social Welfare Department, the other respondents were:Director, Social Welfare Department, District Magistrate, Saran at Chhapra, District Programme Officer, Saran at Chapra.Child Development Project Officer, Sonepur, Saran and Suman Devi. 

The Court added:"In the above circumstances, the appellant shall be granted appointment as Anganwari Sevika. We make it clear that the appointment of the appellant shall only be from the date of joining and she shall not be entitled to any back wages or honorarium; whichever is applicable, for the earlier period.What has been paid to the 6th respondent shall remain with the 6th respondent." The Court was persuaded to reach its decision by Dr. Shiv Shankar Prasad Yadav, the appellant's counsel. He drew on a judgment of the High Court in Pushplata Kumari vs. The State of Bihar and Others (2022). The L.P.A. was filed against the order of single judge in CWJC case of 2019 in October 2022.

The appellant/petitioner had challenged denial of appointment on the ground of Clause 4.9 of the Anganwadi Sevika/Sahayika Guidelines for selection, 2011 which stipulated that if a candidate’s relative is employed with the State Government, then she shall not be considered for such appointment.

The petitioner had submitted that an amendment had enhanced the limit of income of the employed family member to Rs. 15,000/- per month from Rs. 6,000/- in the year 2015. It was the submission of the petitioner that her brother-in-law who was was a Panchayat Teacher was earning only about Rs. 6,300/- per month; lesser than the minimum income of Rs. 15,000/-. The petitioner was aggrieved with the order of the District Programme Officer which was affirmed by the District Magistrate in an appeal. The appellate order found that the Aam Sabha which was considering the selection was held on October 24, 2014 prior to the amendment made on August 7, 2015.

The single judge bench of the High Court had agreed with the Appellate Authority and found that the petitioner was not qualified for appointment, since her brother-in-law was engaged as a teacher earning more than Rs. 6,000/-, as per the unamended provision which was applicable at the time of selection. The petitioner was not eligible for consideration, was his finding. 

The appellant's counsel drew the attention of the division bench of the High Court towards the decision of the Supreme Court dated January 8, 2024 in Anjum Ara vs. The State of Bihar and Others. The judgment reads: "Clause 4.9 of the 2011 Guidelines imposed a restriction on such persons whose family member or members have secured appointment with the State Government or any organization of the State. The said Clause 4.9 of the 2011 Guidelines came to be challenged before the High Court by way of CWJC No. 13210 of 2014. The High Court,vide judgment and order dated 27th September, 2022, after elaborate discussion, struck down the said Clause 4.9 of the 2011 Guidelines. The only ground on which the appellant has been non-suited was that the appellant had not challenged the said Clause 4.9 of the 2011 Guidelines before the High Court. We find that the reasoning as adopted by the learned Division Bench is totally unsustainable. When the said Clause 4.9 of the 2011 Guidelines was struck down by the High Court vide judgment dated 27th September 2022, it ceased to exist. As such, it was not necessary for the appellant to challenge the validity of the same inasmuch as the same was already held to be invalid by the very same High Court. In that view of the matter, we find that the judgments and orders passed by the learned Single Judge as well as the Division Bench are not sustainable in law." This decision of Supreme Court's division bench of Justices B. R. Gavai and Sandeep Mehta set aside the Patna High Court's decision November 28, 2022 by Justices P. B. Bajanthri , Purnendu Singh and single judge bench of Justice Madhuresh Prasad. Notably, Justice Prasad has been transferred to Calcutta High Court. 

The High Court's division bench drew on Supreme Court's decision to observe: "Hence, the disqualification is no more operative, as Clause 4.9 of 2011 Guidelines has been struck down by the High Court. It cannot also have any application before the judgment, which struck it down since the High Court does not have the power to prospectively overrule and the striking down of a clause applies from the inception of the guidelines. "

Minority Rights are fundamental rights

The issue of minority rights is linked to the theory of democracy and substantive equality. 

-Article 27 of the Universal Declaration of Human Rights gives every individual a right to community — that is the right to enjoy their own culture and to participate in cultural forums, associations etc.

- Articles 25 to 30 were enacted in the Constitution of India to recognize minority rights. The term ‘minority’ has been used in four places in the Constitution. 

-Conservation of language, script or culture  comes under Article 29. 

-Under Article 30 both religious and linguistic minorities are allowed to establish and administer institutions of their choice so that such a space is created in these institutions.

-Supreme Court has held that minorities are to be defined at the level of the State. Since Hindus are a religious minority in Punjab, Kashmir and in the northeastern States, they too are entitled to minority rights. There are hundreds of Hindu minority institutions in India.

-Article 29(1) lays down that ‘any section of the citizens residing in the territory of India or any part thereof having a distinct language script or culture of its own shall have the right to conserve the same’. This provision signifies two vital dimensions. It concedes that different groups do have different cultures and that all people may not have just one culture. Since these linguistic and religious cultures are valuable for their members, they need to be given explicit rights to conserve their own culture especially since such minority cultures can face disadvantages in a majoritarian society. The right to culture is an individualistic right, that is, individuals have been given the right to preserve their distinctive culture.

UN Minorities Declaration

On 18 December 1992, the UN General Assembly adopted, without a vote, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The 1992 Declaration is the only UN law instrument which is entirely devoted to minority rights and its key provisions have notably influenced subsequent legal developments. 

-The promotion and protection of the rights of minorities require particular attention to be paid to issues such as the recognition of minorities’ existence; efforts to guarantee their rights to non-discrimination and equality; the promotion of multicultural and intercultural education, nationally and locally; the promotion of their participation in all aspects of public life; the inclusion of their concerns in development and poverty-reduction processes; disparities in social indicators such as employment, health and housing; the situation of women and the special concerns of children belonging to minorities. 

Minorities around the world are also often the victims of armed conflicts and internal strife. The situation of refugees and internally displaced persons from minority backgrounds, in particular women and children, is of special concern. Persons belonging to national or ethnic, religious and linguistic minorities are also often victims of multiple discrimination and they may lack access to, among other things, adequate housing, land and property, and even a nationality. 

-The major concerns are: survival and existence, promotion and protection of the identity of minorities, equality and non-discrimination, and effective and meaningful participation.

-A 9-judge Constitution Bench in St. Xavier’s College Society vs. State of Gujarat (1974) too had observed that “the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality.” In Keshavananda Bharati (1973) case, rights under Article 30 were held to be part of the basic structure which even Parliament cannot change through a constitutional amendment. 

-Article 30 guarantees that all religious and linguistic minorities shall have the right to establish and administer educational institutions of ‘their choice’. 

-In the re Kerala Education Bill (1957), the Supreme Court said that the dominant word in Article 30 is ‘choice’ and minorities can expand their choice as much as they want. The court also said that the term ‘educational institution’ includes universities. The courts have also been consistent in extending protection under Article 30 to pre-Constitution institutions in cases like S.K. Patro (1969), St. Stephens (1992) and Azeez Basha (1967). 

-In Aligarh Muslim University (2024) case, the majority has held that even an institution of national importance can claim minority character.

-Article 350 A provides for instruction in the primary stages of education in the mother tongue, and Article 350 B for the appointment of a special officer for linguistic minorities. Their religion based personal laws have also been constitutionally protected, for example, the customary law of Nagas. There is no religious qualification attached to the holding of high constitutional positions. There is also a National Commission for Minorities and a National Commission For Minority Educational Institutions to deal with the problems of minorities.

-The 11-judge Constitution Bench in the TMA Pai Foundation (2002) case had dealt with the question of the minority institutions. 

Article 30(2) states that the State cannot discriminate against a minority institution while granting aid. 

In the re Kerala Education Bill (1957) case, Chief Justice S.R. Das held that the State cannot impose such ‘onerous’ conditions either in granting aid or in giving affiliation to minority institutions that require surrendering the minority character of their institutions.

Supreme Court has consistently maintained that minorities have no right to maladminister their institutions, and that the government can come up with reasonable regulations to insist on proper safeguards against maladministration, to maintain fair standards of teaching, and to ensure “excellence of the institutions.” 

In St. Xaviers (1974), the court explicitly observed that “under the guise of exclusive right of management, minorities cannot decline to follow the general pattern. In fact, they may be compelled to keep in step with others.”

The 7-judge Constitution Bench in Aligarh Muslim University (2024) case has described Article 30 of the Indian Constitution as a "facet of equality and non-discrimination."

Supreme Court sets aside Patna HIgh Court's Justice Arun Kumar Jha's order recalling his own bail order

Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanath set aside Patna HIgh Court's Justice Arun Kumar Jha's order whereby he had recalled his earlier order granting bail in a case from Basantpur, Siwan. The judgement of the apex court was authored by Justice Gavai. The Court observed: "We find that since there was not even an allegation by the Investigating Agency that the appellant has violated any of the conditions which were imposed while granting bail or that he was misusing the liberty granted to him, it was not correct on the part of the learned Single Judge to recall its earlier order granting bail."

The High Court had passed an order on December 8, 2022 in 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 the 1st Additional Session Judge-cum-Special Judge, Siwan in connection with a case registered for the alleged offences under Sections 302 and 34 of the Indian Penal Code and Sections 3(2) (v) (s) of the Scheduled Castes and Scheduled Tribes Act. (Prevention of Atrocities) Act, 1989. Mendar Singh, the appellant and other co-accused persons were named as those who committed the murder of her husband in the background of some earlier dispute. The appellant's counsel had submitted that the appellant is innocent and has been falsely implicated in this case. After investigation police submitted a closure report showing the acquisition (accusation) to be untrue. He submitted that on the date of occurrence the appellant was not even present at the place of occurrence, the appellant was attending the tilak ceremony of his sister at a place which was 25 K.M. away from the place of occurrence. The appellant used to live in Delhi for his livelihood and he had come to attend the wedding ceremony of his sister and has been falsely implicated in this case. The appellant has got clean antecedent. 

In his order dated December 8, 2022, Justice Jha had observed:"Having regard to the facts and circumstances and submission made on behalf of the parties and further considering the fact that the allegation against the appellant is on suspicion of the informant and there is possibility of false implication and further considering the submission of charge sheet against him and his clean antecedent, the appellant above named is directed to be released on bail". The bail was granted subject to the conditions mentioned in Section 437(3) of the Code of Criminal Procedure and also the conditions. These conditions are:
(i) One of the bailors will be a close relative of the appellant.
(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.
(iv) The bail bond of the appellant will be accepted subject to verification of the claim that he is having no criminal antecedent.

In his subsequent order dated February 15, 2023, Justice Jha recorded:"The present petition has been filed for modification of the judgment dated 08.12.2022 passed in Criminal Appeal (SJ) No. 2445 of 2022 on the ground that at the time of hearing of the Criminal Appeal (SJ) No. 2445 of 2022 criminal antecedent of the appellant could not be brought on record due to some mis-communication. However, a condition was put by this Court while granting bail to the appellant that the bail bond of the appellant was to be accepted only after verification of the claim that he was having no criminal antecedent. The learned counsel for the petitioner prays for waiver of the aforesaid condition." The waiver was sough for the condition that "The bail bond of the appellant will be accepted subject to verification of the claim that he is having no criminal antecedent."

The order reads:"Having considered the submission, I do not think the reason of mis-communication or inadvertent mistake by the deponent/pairvikar regarding criminal antecedent of the appellant are believable. It appears to be a case of active concealment to get a bail order in favour of the appellant. The appellant was duty bound to mention his criminal antecedent which he failed to bring to the notice of this Court. It amounts to playing fraud with the Court. For the aforesaid reason, I do not find any merit in the modification petition and hence, the same is dismissed. The learned Registrar General is directed to enquire into the matter and after due enquiry fix the responsibility of the person, who committed fraud upon this Court and submit the report within six months."

The order dated August 25, 2023 states that an enquiry report dated August 2, 2023 was been submitted by the Registrar General in a sealed cover, which was opened in presence of the parties in open Court. The enquiry report concluded:"it is apparent that Sri Rajeev Kumar, Deponent in Cr. Appeal (SJ) No. 2445/2022, despite having the knowledge of all Criminal Antecedents of his brother-in-law (Sala), Appellant Mendar Singh @Vijay Singh, did not bring this fact deliberately to the knowledge of the Hon'ble Court. As such, it prima facie appears to be a case of suppression of fact by Rajeev Kumar, Deponent in Cr. Appeal (SJ) No. 2445/2022, in order to get Bail for his brother- in-law Mendar Singh @ Vijay Singh (Appellant) anyhow from this Hon'ble which is punishable under Indian Penal Code." 

The order records that the "Registrar General failed to take notice that everything was done by the deponent for the benefit of the appellant and from events which started with filing of Cr. Appeal (SJ) No.2445 of 2022 lead to inescapable conclusion about the complicity of the appellant along with others. It was the appeal of the appellant Medan Singh @ Vijay Singh and any submission made in the appeal and modification petition would be treated as his submission and not only of ‘Pairvikar’. It appears from the report of learned Registrar General, the conduct of learned counsel, Mr. Ashok Kumar, is certainly reproachable. The manner in which he conducted himself leaves much to desire. The learned counsel is first and foremost an officer of this Court and such type of behaviour and the manner of conduct of his business is at least not expected from him. Still, the learned counsel for the appellant, Mr. Ashok Kumar could be given the benefit of doubt that, perhaps, he was not having the information about the criminal antecedent of the appellant."

The order also records:"Registrar General has failed to observe anything regarding functioning and conduct of the Advocate Oath Commissioner, namely, Mrs. Supriya Rani...She has tendered unqualified apology for the mistake and has given full assurance that such type of conduct would not be repeated in future." It observed:"Such type of conduct has been frowned upon by a Coordinate Bench in the matter of Mukesh Kumar and anr. Vs. The State of Bihar (Cr. Misc.No.61989 of 2022) and the Coordinate Bench has issued certain directions to the Oath Commissioner regarding their conduct of business. However, the apology of the learned Oath Commissioner is accepted and she is warned to remain careful in future. It is expected that the learned Oath Commissioner would adhere to the directions issued by the Coordinate Bench."

Notably, during course of enquiry by the Registrar General, the appellant Mendar Singh has filed the instant Cr. Appeal (SJ) No.2307 of 2023 on May 11, 2023 for grant of bail to the appellant.

In his order dated August 25, 2023, Justice Jha concluded:"Since this Court has found a clear case of concealment of criminal antecedents of the appellant by the deponent which was being done for the benefit of the appellant, a cost of Rs.1,00,000/- (One lac) is imposed upon the deponent, namely, Rajeev Kumar and the appellant, Mendar Singh @Vijay Singh for swearing false affidavit and trying to mislead the Court by suppressing facts. The aforesaid cost shall be paid by the deponent in the coffer of Patna High Court Legal Services Committee within a period of eight weeks from the date of uploading of this order. If not paid, the Registry is directed to recover the same by taking appropriate action against the deponent and the appellant in accordance with law."

The order records that "Yogesh Chandra Verma, learned senior counsel submits that the lawyer engaged in this case has no occasion to verify the fact regarding criminal antecedent of the appellant and he has been duped by giving wrong instruction. He has also pointed out about prevailing practice in this Court with regard to filing of the petitions and swearing of the affidavits till the date it has been made mandatory that the affidavits are to be sworn personally by the person before the Oath Commissioner. However, he prays for withdrawal of the present appeal." The final sentence of the order reads: "this appeal is dismissed as withdrawn."

The appeal in the Supreme Court had challenged the judgment and order of Justice Jha dated August 25, 2023, whereby the High Court has recalled its earlier order dated December 8, 2022, vide which the appeal filed by the appellant herein under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was allowed.

Patna High Court imposes ₹25,000 on the State for illegal seizure of vehicle in a Excise case from Gopalganj

The petitioner's counsel submitted that in the seizure memo, there is no recovery of liquor. In the absence of such recovery of liquor, initiation of proceedings for Excise offence and the seizure of the vehicle for the offences under the Excise Act is not warranted. 

The counsel for the respondents, namely, the State of Bihar, through Secretary Excise and Prohibition Department Gov. of Bihar, Patna, the Excise Commissioner, Bihar, Patna, the District Magistrate, Gopalganj, the Superintendent of Police, Gopalganj,the Superintendent of Excise, Gopalganj and the SHO, Gopalganj Police Station, Gopalganj did not dispute the submission of the petitioner's counsel who sought release the seized vehicle which was seized by the State officials under Section 47/52 of the Bihar Prohibition and Excise Amendment Act, 2018 and Section 317(5) of Bhartiya Nyaya Sanhita. 

In Niyati Ghosh Mandal vs. The State of Bihar, Patna High Court's division bench of Justices P.B. Bajanthri and S.B. Pd. Singh has "directed to release the subject matter of vehicle forthwith to the respective owner of the vehicle after due production of documents of the vehicle. For seizure of vehicle without reasons and registration of Excise offence and compelling the petitioner to approach this Court in filing writ petition." The Court observed: "the petitioner is entitled to litigation cost and it is quantified at Rs. 25,000/-. Cost shall be paid to the petitioner within a period of eight weeks from the date of receipt of this order." Justice Bajanthri authored the judgement dated December 13, 2024.

The Court concluded:"he concerned authority/disciplinary authority is permitted to initiate departmental inquiry against such of those erring officials, who are involved in illegal seizure of the vehicle. Such inquiry shall be initiated and completed and recovery of cost shall be taken care of in the disciplinary proceedings so as to not to burden the State exchequer.Disciplinary proceedings shall be completed within a period of 06 months from the date of receipt of this order.".