Justice Partha Sarthy disposed writ application against Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019

In Guleshwar Yadav vs. The State of Bihar through the Principal Secretary, Bihar Land Reforms, Bihar & Ors. (2025), Patna High Court's Division Bench of Chief Justice Vipul M. Pancholi and Justice Partha Sarthy passed a 4-page long judgment dated August 4, 2025 disposed the writ application. This judgement was authored by Justice Partha Sarthy.  

The petitioner had filed the application for the following relief(s):
(i) For issuance of writ in the nature of certiorari for quash the abatement order dated May 28, 2019 and the Respondents authority to declaring ultra virus Bihar Act 6, 2019 by which amendment has been brought in Section 16 sub section 3 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 Amendment Act, 2019.
(ii) For direction to the Respondent Deputy Collector Land Reforms, Jamui to proceed with the proceeding of 4 of 2017-18 and considering the same not affected by amendment of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Amendment Act, 2019.

The case of the petitioner was that a registered sale deed bearing no.187 dated January 8, 2018 was executed with respect to the land in question by Meera Devi, Saroj Mandal and Niranjan Mandal, the respondent nos.7 to 9 respectively in favour of Pramila Devi @ Sabiya Devi, the respondent no.10. The petitioner being a boundary raiyat of the land in question filed an application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 for a direction to the respondent no.10 to transfer the land in his favour. The case was registered as Ceiling Case No.4 of 2018 in the Court of the Deputy Collector Land Reforms, Jamui. During pendency of the this application, the Government of Bihar came out with the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019 whereby section 16(3) of the Act was repealed. As a result, by order dated May 28, 2019, the D.C.L.R., Jamui was closed the Ceiling Case no.4 of 2018 as having abated. As a consequence, the petitioner filed the application in the High Court for quashing the order of D.C.L.R., to declare the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019 as ultra vires and to direct the D.C.L.R., Jamui to proceed with the Ceiling Case no.4 of 2017-18. 

The petitioner's case was that the validity of the Amendment Act, 2019 along with that of the Amendment Act, 2016 came for consideration and a Division Bench of this Court in the case of Sudhakar Jha & Ors. vs. The State of Bihar & Ors. [2023 (6) BLJ 397] which upheld the same vide its judgment dated October 13, 2023. The question of validity of the Amendment Act, 2019 was raised in the application having already been upheld in the case of Sudhakar Jha & Ors., nothing remains to be adjudicated and the instant application be also decided in similar terms. 

Justice Parta Sarthy observed: "7. As already directed in the order dated 28.5.2019, it shall be open to the petitioner/pre-emptor to withdraw the amount deposited by him in terms of section 16 of the Act in accordance with law." 

As part of the same Division Bench, Justice Sarthy had passed a similar judgement dated August 21, 2024 in Narendra Kumar @ Sanjeev Kr. Sinha vs. he State of Bihar through the Principal Secretary, Dept. of Revenue, Government of Bihar & Ors. (2024). He also observed: "in view of the judgment of the Hon’ble Supreme Court in Punyadeo Sharma & Ors. vs. Kamla Devi & Ors. [2022 (1) BLJ 434 (SC)] it held that all cases or proceedings which may be pending before any authority or Court including the High Court stood abated and the amount deposited shall be refunded in the manner as provided under section 16(4) of the Act."

Narendra Kumar @ Sanjeev Kr. Sinha, the petitioner had filed the writ application for the following reliefs :-“1. A. A writ in the nature of MANDAMUS or other appropriate writ/s, order/s, Respondents for the following:-i. To hold the provisions of the the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land (Amendment) Act, 2019 repealing sub-section 3 of Section 16 of the Act and adding now Sub-section 4(i)(ii) to be ultra-vires of the Constitution and in alternative to hold the amendment to be prospective in application and the same not to affect concluded orders/proceeding.
ii. To direct the private Respondents to execute Sale Deeds with respect to land bearing Khata No. 179 Plot No. 1221 admeasuring 28 decimal situated at village Mohamadpur gram panchayat Block Asthama P.S.-Asthama, District- Nalanda as covered by the Sale Deeds executed in favour of the Respondent No. 7 and 8 admeasuring 14 decimals situated at village Sherpur, falling within Mohammadpur Gram Panchayat at Asthama Block.
iii. To direct the Respondents to resort to the provisions of compulsory registration by concerned officials who are competent to execute the Sale Deed.
iv. To hold the Petitioner to be entitled to execution of the sale deed.

B. A writ in the nature of CERTIORARI or any other appropriate writ/s, order/s, direction quashing the following:-i. The order dated November 5, 2018 passed by the Land Reforms Deputy Collector, Biharsharif in Land Celling Case No. 02/1983-84 rejecting the application filed by the Petitioner for execution of the Sale Deed.
ii. The order dated September 3, 2019 issued by the Additional Collector, Nalanda in Land Ceiling Appeal Case No. 04/2018 rejecting the appeal, filed by the Petitioner and terminating entire proceeding in view of the repeal of the provision contained in Section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Lard) Act, 1961.

In this case also Justice Sarthy recalled that the constitutional validity of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019, besides other amendments, repealing section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 was the subject matter of challenge in the case of Sudhakar Jha & Ors. vs. The State of Bihar & Ors. [2024 (3) PLJR 403 (DB)] wherein a Division Bench of the High Court dismissed the challenge to its constitutional validity. He concluded:"...this case arising out of an application under section 16(3) of the Act stands abated. It shall be open to the petitioner to withdraw the amount deposited by him in terms of section 16 of the Act in accordance with law. 4. The application stands disposed of as having abated."

Bihar Bar Council Journal removes names of members of Bihar State Bar Council due to pending dispute before Central Election Tribunal

In Ratan Kumar Singh vs. The Chairman, Bihar State Election Commission & Ors. (2024), the 44th Chief Justice of Patna High Court, K. Vinod Chandran and Justice Partha Sarthy dismissed the petition with liberty to explore the alternative remedy. The 4-page long judgement dated September 4, 2024 observed:"There is an alternate remedy provided in the Rules itself which the petitioner would be entitled to pursue, if he so desires. We find no reason to interfere with the Rules, specifically the amendments brought in or the elections; which have been concluded and results declared. The intervenor application is also filed, which, in the circumstance of the main matter being rejected does not survive." Ratan Kumar Singh, the petitioner, a practicing Advocate had filed the writ petition challenging the amendment made in 2023 to the Bar Council of Bihar Election Rules, 1968. He had also challenged the elections conducted in the year 2023 to the State Bar Council. The petitioner had submitted that the State of Bihar has more Advocates than that listed in the voters list.

The petitioner had also challenged the substitution of Rule 49 which provided that, no election shall be conducted unless the process of verification of certificates of all the Advocates is complete as per the Certificate and Place Of Practice (Verification) Rules, 2015) of the Bar Council of India. It now provides for holding of elections even when the process of verification is not likely to be completed within the tenure of the elected members of the Council, with the permission and approval of the Bar Council of India. It was argued that this prescription goes against Rule 32 of the Verification Rules of 2015. 

Notably, ahead of the elections of the Bihar State Bar Council, 9-page long notification regarding Bar Council of India Rules (for qualification/Disqualification and produce for election and code of conduct for the elections of S.B.C/B.C.I.) 2023 Rules and Amendments was published in The Gazette of India on June 26, 2023. It reads:"In order to improve the standard of the Bar Councils and to ensure the elections only of practicing Advocates as Member of Bar Councils, who have no bad antecedents and to stop the inclusion/election and/or continuation of Advocates having criminal antecedents or misconduct, the Council has resolved to make the following Rules and Code of conducts. The Rules are being framed under Section 7(1)(b), (d), (g), (e) read with Section 49(1)(a), (ah), (i) of the Advocates Act, 1961. The Hon’ble Members also raised the issue of laying down the qualifications and disqualifications for being a voter in the State Bar Council and for becoming and/or remaining a Member of State Bar Council and Bar Council of India. Accordingly, the office has framed and proposed the Rules for such qualifications and disqualifications and also certain Code of Conduct has been provided for the candidates contesting the elections of State Bar Council and Bar Council of India." 

The Court observed:" 4. We notice that Rule 32 only provides for the Bar Council of India to form Adhoc Committees due to the delay in the process of identification of non-practicing Advocates under these Rules or in case of delay in the preparation of the electoral role for the election to the State Bar Councils. It does not necessarily follow that if verification is not completed, then mandatorily there should be an Adhoc Committee formed. The State Election Rules provides for the elections to be held with the permission of the Bar Council of India, even when the verification is not complete."  

It may be recalled that like Ratan Kumar Singh's case, during the tenure of Braj Kishor Prasad 9th Chairman of the Bihar State Bar Council (April 10980-April 1989), in Young Lawyers' Association vs. Bihar State Bar Council & Ors. (1988), Patna High Court  was apprised by the petitioner that the majority of the advocates who have been enrolled by the State Bar Council and whose names, appear on the State Roll have not been included in the electoral roll prepared for the election to be held. This happened because the advocates, who were practising in the different district courts and Sub-Divisional Courts, had no information that before their names are entered in the electoral roll they had to furnish the details in the prescribed forms in terms of Rule 4 of the Bar Council of India Rules. In exercise of the powers under Sections 3(4); 15(2)(a) and 49(1)(a) and (ab) of the Act, in Part III Chapter I of the Rules, specific rules have been framed in respect of preparation of electoral roll, prescribing qualification and disqualification of advocates whose names have to be entered in such electoral roll. In view of Rule 1 every advocate, whose name is on the Electoral Roll of the State Bar Council shall be entitled to vote at an election. Rule 2 prescribes that the name of an advocate appearing in the State Roll shall not be on the Electoral Roll. Justice Nagendra Prasad Singh observed:"In view of the fact that this is the first election, which is being held, in accordance with amended rules, it can be presumed that the advocates practising in different district courts and sub-divisional courts did not have knowledge of the procedure regarding furnishing their particulars for being enrolled as voters...." Notably, Braj Kishor Prasad was also 10th and 12th Chairman of the Bihar State Bar Council during April 1989-April 1994 and April 1999-August 2000 respectively.

Prior to the tenure of Ramakant Sharma, the 20th Chairman, Bihar State Bar Council, Lalit Kishor was the Chairman during July 2017-May 2021. Before Kishor, Ram Balak Mahto was the Chairman during September 2015-July 2017. Mahto was preceded by Akhauri Mangla Charan Shrivastava, the 17th Chairman during November 2012-September 2015. The current chairman was a member of the Council at since the tenure of Baleshwar Prasad Sharma, the 16th Chairman during May 2010-November 2012. Prashant Kumar Shahi, the current Advocate General of Bihar since January 2023 was the 15th Chairman during March 2008-May 2010. He was Advocate General during during 2005-2010 as well.He is ex-officio member of the Bihar State Bar Council. Manan Kumar Mishra, the current 31st Chairman, Bar Council of India (BCI) is the representative of BCI in the Bihar State Bar Council. Mishra was 29th Chirman of BCI as well.   

Notably, ahead of the Bihar State Bar Council elections in December 2023, The Gazette of India published a 2-page long notification dated June 23, 2023 on June 26, 2023 under the subject "The house in order to improve the Standard of Legal Profession further feels the need to repeal Rule 32 and new Rule 32 of Bar Council of India Certificate and Place of Practice". The new Rule 32 reads: "Rule 32. In case the term of elected members of any state Bar Council is likely to expire/expires due to delay in the process of identification of non-practicing advocates or verification of their certificates or delay in the preparation in the electoral roll for the election to the state Bar Councils due to the aforementioned reasons, the Bar Council of India may allow the elected members/and the office-bearers of the State Bar Council(s) to continue to function beyond their extended tenure under Section 8 of the Advocates’ Act, 1961 in order to complete the process of verification and in order to ensure that no non-practicing Advocate becomes a voter or a member of any state Bar Council. The State Bar Council(s) shall be required to complete the process of verification within a period of 18 months from the date of extension of their tenure by the Bar Council of India and shall complete the process of election within a period of 6 months therefrom. In case, of failure to complete the process of verification and the election within the said extended period as prescribed under this Rule, the Bar Council of India may dissolve the State Bar Council and shall proceed to constitute the Special Committee as provided under Section 8A of the Advocates Act, 1961." It also stipulates that "In case of any doubt or dispute as to the meaning, interpretation, execution of these Rules arises, the Bar Council of India shall be the final authority to settle such issues and its decision thereon shall be final."

Ratan Kumar Singh, the petitioner had filed in the High Court on February 16, 2024. It was registered on March 14, 2024. Arun Kumar, Prem Kumar Paswan, Ram Sandesh Roy, Alka Pandey, Pawan Kumar Singh, Farooque Ahmad Khan and Ram Jiban Pd. Singh were the counsels for the petitioner. The five other respondents were Chairman, Bar Council of India, Bihar State Bar Council, through its Chairman, Returning Officer, the Bihar State Bar Council Election- 2023, Chief Observer, Bihar State Bar Council Election- 2023 and all the Members of Bihar State Bar Council. 

The dispute regarding December 2023 election of the Bihar State Bar Council is pending before the Election Tribunal, one of the 15 committees of BCI. It is noteworthy that doctrine of ejusdem generis is relevant in this regard. The expression ejusdem generis-”of the same kind or nature”-signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class are genus as preceding them. If a list or string or family of genus-describing terms are followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. It implies that the Election Tribunal, is essentially a committee of the BCI. 

In a significant development, given the fact that at present, Bihar State Bar Council does not have duly elected members, it has removed the page mentioning the names of members of the Bar Council from 2025 issue of the Bihar Bar Council Journal, although the same was mentioned in the 2024 issues. (Photo:Journals of Bihar Bar Council) Significantly, ahead of the Bihar State Bar Council election, three Central Election Tribunals/Committees were constituted on June 25, 2023 which published as the 18-page long notification dated October 9, 2023. The notification on the subject of "Regulations Governing the procedure for Election Petitions and applications Before the Central Election Tribunal/Committees of the Bar Council of India for resolution of issues relating to Election Disputes and other related matters of elections of the State Bar Councils and the Elections of Member Representatives to the Bar Council of India from the State Bar Councils" was published in The Gazette of India. The BCI claimed that it constituted these three Central Election Committees/Tribunals for looking into and ensuring free and fair elections of different State Bar Councils in the light of directions/observations of Supreme Court in the year 2017. Every Tribunal as per Rules in this regard is headed by a former Chief Justice of High Court who is the Chairman and two other former Judges of High Courts as per the prescribed Rules. Past experience has shown that at many places many Advocates, who fill up the verification forms, still go missing from the list of voters, while several names are included without any verification forms. This apart, thousands of names/father names/enrolment numbers are wrongly mentioned in voter lists. Sometimes very ugly scenes are created at polling booths, at the time of election, and/or during the counting of votes. Even there are complaints of large-scale adoption of corrupt practices, distribution of money etc. for votes, and the use of posters/hoardings against the norms and Rules of Bar Council of India, which makes the candidature of a candidate liable to be cancelled/rejected. The BCI constituted these Committee(s) to adjudicate and decide such issues/disputes and also to decide/resolve all the objections, issues relating to elections right from any objection relating to electoral roll, acceptance/rejection of nomination, matters/complaints relating to adoption of corrupt practices or use of unfair means in the elections and/or to decide any sort of dispute/matter relating to election of Members of State Bar Council or BCI as the case may be. The day to day affairs of the State Bar Councils are to be looked after by the State Bar Councils only, but the orders or directions of these Tribunals/Committees will be binding on the State Bar Councils, Returning Officers and/or the Observers with regard to the process of election. The Tribunal has been empowered to address and dispose off interim matters, complaints, or other applications expeditiously in a summary manner, and it may do so without requiring a formal hearing with the involved parties, on the basis of documentary evidence before it. Besides this, the Tribunal is empowered to take cognizance of some matters suo motto and is vested with the ability to proactively initiate proceedings in certain instances, and may issue directives or orders as necessary to uphold the principles of fairness and transparency throughout the election and counting processes. 

The notification provides details about the composition of the Tribunals. Tribunal No. 1 comprises of Justice L. Narasimha Reddy, Former Chief Justice, Patna High Court,  Justice Arun Tandon, former Judge, High Court of Allahabad and local former Judge to be nominated by the State Bar Council. Tribunal No. 2 comprises of Justice S. Mukherjee, Former Chief Justice, High Court of Karnataka,  Justice Shivaji Pandey, former Judge, Patna High Court and  local former Judge to be nominated by the State Bar Council. Tribunal No. 3 comprises of Justice Rajendra Menon, Former Chief Justice, High Court of Delhi, Justice M. Sathyanarayanan, former Judge, Madras High Court and local former Judge to be nominated by the State Bar Council.   

The notification states that "An appeal may be filed within 60 days of the Tribunal's order being communicated to the party as provided under Section-38 of the Advocates Act, 1961." It provides a note which reads: "On earlier occasions, the petitions were filed against the order passed by the Central Election Tribunal (s) of B.C.I. only before the Hon’ble Supreme Court." It implies that High Court need not entertain appeal against Tribunal's order. It also states that "Where no specific provision is made in the procedure/rules the direction of the Tribunal may be sought".

Also read: Make Audit Report of Bihar Bar Council, Bihar State Advocate Welfare Trust Committee online: Ram Jiban Prasad Singh, Candidate, Bihar State Bar Council 

What time Bar Council takes to constitute a committee is not within the domain of Patna High Court 

In Kaushal Kishore vs. The Bihar State Bar Council Patna through its Chairman & Ors. (2024), Justice Rajiv Roy of the High Court had heard the application seeking issuance of appropriate writ, order or direction to the Chairman, Bar Council of India and Chairman, Bihar State Bar Council to dispose of an Election Appeal no. 02/2023 which was pending before the Election Tribunal, Bihar State Bar Council, Patna within a shortest period. The matter related to the election of Office Bearers of the District Bar Association Patna Civil Court in which the petitioner was a candidate for the post of President but he was defeated. Subsequently, under Section 19(x) of the Uniform Rules for Bar/Advocates/Lawyers Association of Bihar, a petition was preferred before the Bihar State Bar Council on August 28, 2023 which led to Election Appeal No. 02 of 2023. The counsel for the petitioner had submitted that rule 19 (12) stipulates that the said election petition has to be disposed of in two months. The case was filed in the High Court on July 15, 2024 and registered on July 31, 2024.  

In his 4-page long order dated August 1, 2024, Justice Roy recorded: "6. The Bihar Bar Council is represented and it has been contended by learned counsel that due to election process was continuing in the Bihar State Bar Council, the matter could not be taken up. The committee came to be constituted in the month of February, 2024 only and the Election Tribunal of the Bihar State Bar Council has yet to be constituted." But the order does not mention the name of the counsel of Bihar Bar Council. 

The Court's order reads: "It is unfortunate that after stipulating a particular period for the disposal all the election petition, the Bar Council is sitting over the matter. Admittedly, even going by their assertion, the fresh committee has come into existence in the month of February, 2024 and we are today in the month of August, 2024." 

Justice Roy added:"In that background, what time the Bar Council takes to constitute a committee is not within the domain of the Patna High Court but can only advise/request that since number of such cases may be pending, the same should be constituted as early as possible and the present election petition no. 02/2023 must be taken to its logical conclusion. Though two months have been stipulated rules itself, the court expects that the final order will be passed by 31 st of December, 2024."  

 

Supreme Court to hear criminal appeal 35 years after Trial Court verdict, 13 years post High Court's verdict in a dowry death case from Muzaffarpur

In Chinta Devi vs. The State of Bihar (2025), which awaits final hearing, the Supreme Court's Division Bench of Justices J.B. Pardiwala and R. Mahadevan ordered on January 31, 2025 to list it after six weeks now that original records of the Patna High Court and Trial Court have been received by the Court. The criminal appeal was filed in the Supreme Court on July 23, 2013 and it was registered on May 13, 2014. The appeal arose from the judgement and order of Justices Aditya Kumar Trivedi and Mihir Kumar Jha of the High Court's Division Bench dated August 14, 2012. 

On October 4, 2013, the Supreme Court's Division Bench of Justices A. K. Patnai and J.S Khehar condoned the delay in their order and recorded that Nagendra Rai, senior counsel appearing for the petitioner submitted that at least the quantum of sentence should be reduced as the petitioner has been convicted for life under Section 304-B. The order reads: "Issue notice limited to the question of sentence under Section 304-B, IPC."

304B  of IPC deals with dowry death. It reads:(1) Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
21. Section 304B of the I.P.C. as quoted above has to be necessarily understood in the context of the amended provision of the Evidence Act as incorporated under Section 113B, which reads as follows:-
"113-B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death." 

On September 5, 2014, the Division Bench of Justices Fakkir Mohamed Ibrahim Kalifulla and Shiv Kirti Singh passed an order which reads:"We are not inclined to grant bail to the appellant at this stage. Application for bail is rejected. However, liberty is granted to the appellant to renew her bail application after six months." It rejected the bail application on May 13, 2015 as well. But on July 22, 2016, the Division Bench of Justices Pinaki Chandra Ghose and Amitava Roy heard the senior counsel for the appellant and the counsel for the respondent-State of Bihar and passed an order which reads:"For the reasons stated in the application for bail and having regard to the fact that the appellant is of 75 years of age and detained in jail custody for more than 6 years and 8 months, she is directed to be released on bail, subject to the satisfaction of the trial Court." The appellant in question is Chinta Devi, the mother-in-law who was convicted for causing the death of her dauther-in-law Indu Devi on May 22, 1987.

In its 32-page long judgement in Chinta Devi and Kukum Kumari vs. The State of Bihar Criminal Appeal (DB) No.309 of 1990, the High Court's Division Bench set aside the conviction and sentence of the appellants under Section 302/34 of the Indian Penal Code but affirmed the conviction and sentence for offences under Section 304B/34 and Section 498A/34 of the IPC and Section 4 of the Dowry Prohibition Act as awarded by the trial court in the impugned judgment, subject to the observations and direction made in the case of appellant Kumkum Kumari. The appeal was heard along with Dilip Kumar Sharma vs. The State of Bihar Criminal Appeal (DB) No. 312 of 1990. In the High Court, the appellants, the residents of Purshottampur, Maniyari, Muzaffarpur were represented by Shailendra Kumar Jha, Amicus Curiae and the respondent was represented by Sashi Bala Verma, APP. The latter had submitted that Indu Devi, the deceased was burnt to death by causing fire after tying her hands and feet. The alibi of the husband, appellant Dilip Kumar Sharma showing himself to be present for his treatment at Jamshedpur, was fit to be rejected. The issue relating to the appellant Kumkum Kumari being either juvenile or minor should have been gone into and enquired into had there been a prayer made by the appellant in the trial court but in absence thereof, now this matter cannot be examined much less reopened by the High Court in view of the prima facie material on record. The judgement was authored by Justice Mihir Kumar Jha. 

Both these appeals arose out of the common judgment dated June 12, 1990 in a Sessions Trial whereunder, the 4th Additional Sessions Judge, Muzaffarpur had convicted the three appellants for offence under Section 302/34 of the IPC as well as for offence under Section 304B/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. They ere sentenced to under rigorous imprisonment for life for both offences under Section 302/34 as well as Section 304B/34 of the Indian Penal Code and additionally they have also been convicted for rigorous imprisonment for two years and a fine of Rs. 2,000/- each for the offence under Section 498A/34 of the IPC and in default of fine to undergo rigorous imprisonment for six months. They were further sentenced to undergo one year rigorous imprisonment for offence under Section 4 of the Dowry Prohibition Act as well as a fine of Rs. 1,000/- each and in default thereof to undergo rigorous imprisonment of three months.

The High Court observed: "Law also stands well settled that in order to prove the charge of Section 304B of the I.P.C., the following essential ingredients have to be proven:-
(i) the death of a woman should be caused by burns or bodily injury or otherwise than under normal
circumstances,
(ii) such a death should have occurred within seven years of her marriage,
(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband,
(iv) such cruelty or harassment should be for, or in connection with, demand for dowry and'
(v) such cruelty or harassment is shown to have been meted out to the women soon before her death."
It relied on the Supreme Court's decision Kunhiabdulla & Anr. vs. State of Kerala reported in 2004(4)SCC 23 wherein ingredients to prove the charge of Section 304B of the I.P.C. have been enumerated. The High Court analyzed the evidence on record in the light of these requirements of Section 304B of the I.P.C., to infer that "there is no dearth of material to establish the death of the deceased had taken place on account of injuries caused by burn and the fact that her such burn injuries were clubbed with a mark of tying of her hands and feet by rope would automatically lead to an conclusion that her death was caused in otherwise than under normal circumstances. There is also no dispute that the marriage of the deceased with the appellant Dilip Kumar Sharma had taken place in the year 1984 and the occurrence in question had taken place on 22.5.1987 and thus, within seven years of the marriage. The third and fourth requirement of the deceased being subjected to cruelty or harassment by her husband or relatives of the husband is also fully satisfied in this case, inasmuch as, there are four witnesses on the point of demand of dowry and cruelty being inflicted on the decease".

The High Court concluded: The appellants who are on bail, their bail bonds are cancelled and appellant Chinta Devi and appellant Dilip Kumar Sharma are directed to surrender before the court below for serving out the rest of their sentence. The appellant Kumkum Kumari must appear before the trial court for establishing her claim of being a child/juvenile on the date of occurrence.  

Kumkum Kumari, the appellant had raised the specific plea that on the date of occurrence i.e. on May 22, 1987, she was a minor. She had adduced the evidence of Dr. Preeti Bala, the D.W.5 who had examined her as per the direction of the court on February 19, 1988 and had ascertained her age around eighteen years on the date of such examination. But the Trial Court assessed the age of Kumkum Kumari on January 30, 1989 as twenty years despite the claim of the appellant Kumkum Kumari that on January 30, 1989 when her statement was being recorded under Section 313 Cr.P.C., was only 15 years of age, and reject Kumkum Kumari 's claim of being a minor on the ground that the evidence of Dr. Preeti Bala, the D.W.5 was based upon certain radiological reports and records which were not proved by the defence in accordance with Evidence Act. 

The High Court observed: "This Court would find such reasons given by the trial court to be only unacceptable, inasmuch as, whenever such question of age relating to minority/juvenility would arise, there has to be necessarily an enquiry by the court itself but from the records it is evident that no such enquiry was conducted by the trial court. At the relevant point of time in the year 1989, when such an issue had arisen in the case of the appellant Kumkum Kumari, the provision of Children Act had to be followed in letter and spirit which also envisages an enquiry for ascertaining and fixing the age. Section 8 of the Bihar Children Act, 1982 which was then in vogue had prescribed for holding an enquiry for recording opinion as with regard to age for declaration of children. Similarly, provision of Section 20 of the 1982 Act also prescribes enquiry by Children's Court regarding delinquent children and Section 24 had laid down no joint trial of a child and a person of not being a child could be held. Thus the mandate of law of an enquiry by the court concerned having been not undergone by the trial court, this Court would find the sentence of Kumkum Kumari to be bad."

The Court further observed: "In this connection, we, while exercising out appellate power keeping in mind the provision of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, would hold that there has to be a fresh enquiry as with regard to the determination of the claim of the appellant Kumkum Kumari of her being a child in terms of the Bihar Children Act, 1982 read with her being a juvenile in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000. Such age of the appellant Kumkum Kumari must be determined children/juvenile in terms of Bihar Children Act, 1982 and the Juvenile Justice (Care and Protection of Children Act, 2000, her sentence would be determined afresh in keeping with the provision of the Bihar Children Act, 1982. If however, she is not found to be a child on the date of occurrence or her juvenile in terms of the 2000 Act on the date of occurrence, her sentence, as recorded by the trial court in the impugned judgment shall remain undisturbed."

Rajeshwar Prasad Singh (P.W.6) father of Indu Devi set out the prosecution case stated that his daughter Indu Devi was married to the appellant Dilip Kumar Sharma in the year 1984. The informant also stated that his daughter had remained in her Sasural for a period of one year whereafter she had returned to her 'maika' i.e. the house of the informant. He has alleged that the appellant Kumkum Kumari sister of his son-in-law and Chinta Devi mother of his son-in-law had always been taunting and demanding dowry in the form of television, tape recorder, scooter and cash etc. In the year 1986, his daughter had returned back to her Sasural when his son-in-law the appellant Dilip Kumar Sharma after Ruksadi (second marriage) had taken the deceased Indu Devi to his house. The informant alleged that even after the second marriage of his daughter, the demand of dowry by the appellant was continued and when the same was not fulfilled, all the three appellants had kept on threatening his daughter (deceased) that if the goods demanded in dowry were not given, she (Indu Devi) would be done to death whereafter the appellant Dilip Kumar Sharma would solemnize another marriage. The informant had also specifically alleged that some four to five days prior to his recording of Fardbeyan, his daughter was assaulted and on coming to know of this assault on her, when he had gone to the house of the appellant and had requested them to send his daughter back with him to his house (informant's house) as she was his daughter. But his such request was turned down by the appellants who had stated that unless all the goods of dowry such as television, tape recorder, scooter and cash were given to them, the girl (Indu Devi) would not be allowed to go back to her house. 

The informant stated that on May 22, 1987 while he was when in village Khabra, in the house of his brother-in-law Ram Japu Ojha, he came to know that his daughter had been done to death after being burnt by her husband appellant Dilip Kumar Sharma, her sister-in-law, Kumkum Kumari and her mother-in-law Chinta Devi and on receipt of such information, he had rushed to the place of his son-in-law appellant Dilip Kumar Sharma and there he could come to know from the neighbours that at about 1.30 PM on the same day i.e. May 22, 1987, his daughter Indu Devi was burnt to death after sprinkling kerosene oil over her body and when the villagers had gone to save her (Indu Devi), they were also prevented from doing so. 

The informant had categorically alleged that the death of Indu Devi, the daughter of the informant had taken place on account of concerted overt acts on the part of the three appellants. On the basis of the Fardbeyan of the informant, the father of the victim girl Indu Devi, Maniyari P.S. Case No. 27 of 1987 was recorded for offence under Section 302/34 and 498A of IPC and Section 4 of the Dowry Prohibition Act. The police after investigation had submitted the charge-sheet whereafter the case being triable by court of sessions was committed by an order dated November 17, 1987. The trial court, framed charges for offence under Section 302/34 of IPC, Section 304/34 of the IPC and Section 4 of the Dowry Prohibition Act, had conducted the trial which, ended with the impugned judgment of conviction and sentence of all the appellants.

Supreme Court is likely to hear the appeal of Chinta Devi, the convict who is out on bail since July 2016 in March 2025. The current fate of Dilip Kumar Sharma, the husband and Kumkum Kumari, the sister-in-law who were also complicit in the death of Indu Devi for dowry is not known. 

Supreme Court exploring mediated settlement in case of Vedacharya Sankat Mochan Tripathi and his wife Sukanya Pandey after Patna High Court rejected anticipatory bail application

In a case arising out of impugned judgment and order dated September 30, 2024 by Justice Satyvrat Verma of Patna High Court in Sankat Mochan Tripathi vs. The State of Bihar & Anr (2025), Supreme Court's 3-Judge Bench comprising of Justices Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih ordered: "the petitioner shall not be arrested in connection with Complaint Case No.1031/2023 pending before the Chief Judicial Magistrate, Kaimur at Bhabhua, Bihar subject to condition that the petitioner shall cooperate with the investigation....Prima facie, this may be an appropriate case where the petitioner and the second respondent should try to resolve the dispute between them through a mediated settlement." The second respondent is Sukanya Pandey @Beauty. The order was passed on October 24, 2024. 

The order of March 3, 2025 reads:"We are of the view that the petitioner should come out with a better offer than what he is proposing. To enable the petitioner to come out with a reasonable offer, list the Petition on 24th March, 2025. In the meanwhile, the interim relief granted earlier by this Court to continue." On December 6, 2024, the Court's order recorded: "The petitioner and the second respondent are residing separately from the year 2021. Therefore, we refer the dispute between the parties to the Supreme Court Mediation Centre. Accordingly, we direct the parties to remain present before the Coordinator, Supreme Court Mediation Centre on 19th December, 12024 at 2.30 p.m. The first meeting with the coordinator shall be virtual. The learned Mediator appointed by the Supreme Court Mediation Centre is requested to conduct the proceedings, as far as possible, through the medium of video conference. In the event, the learned Mediator desires personal presence of the parties, the petitioner shall pay the requisite amount to the respondent no.2 towards travelling charges and stay in Delhi, as may be suggested by the learned Mediator. Mediation Report to be submitted within two months. List the matter immediately after receipt of the report." On February 14, 2025, the Court had directed the petitioner and Sukanya Pandey, the second respondent to remain present through video conference on March 3, 2025.

The High Court had not extended "the privilege of anticipatory bail application of the petitioner. It had rejected the anticipatory bail application of the petitioner." Apprehending his arrest in a Complaint Case registered for the offence punishable under Sections 498A, 323, 420, 406 of the Indian Penal Code and Sections ¾ of the Dowry Prohibition Act, 1961, Sankat Mochan Tripathi, the petitioner had approached the Court. The petitioner had submitted that petitioner husband has been falsely implicated in the instant case by Sukanya Pandey @Beauty. The petitioner was married to the complainant on May 7, 2021. She has alleged that after marriage the accused persons including the petitioner were demanding a bullet motorcycle and a golden chain. When the demand was not met, she was ousted from her matrimonial home after assaulting her. The petitioner is a Vedacharya, recognized by Banaras Bidwat Parishad. It was submitted it does not appear probable that a person of that stature would indulge in such an act.

The petitioner has filed a divorce case which is pending adjudication. The counsel of the wife had submitted that petitioner right was never interested in keeping his wife with honour and dignity from the very outset. It was further submitted that till the time divorce application is decided in favour of the petitioner, Suknaya Pandey will  remain his legally wedded wife who is suffering in absence of any financial support from the petitioner. She ousted and is completely dependent on her parents and the petitioner till date has not paid anything towards her maintenance.

 

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 quashes Patna High Court's decision and FIR, stops criminal proceedings against HDFC Bank

In HDFC Bank vs. The State of Bihar, Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan quashed and set aside the judgment and order dated June 8, 2022 passed by Justice Partha Sarthy, the Single Bench of Patna High Court. The Supreme Court's judgement dated October 22, 2024 reads: "We are of the considered view that the continuation of the criminal proceedings against the appellant-bank would cause undue hardship to the appellant-bank." Besides the State of Bihar, there were four respondents namely, DGP, Patna, SP, Patna, the Officer In Charge and Priyanka Sharma, Deputy Director of Income Tax (INV). 

The Court also quashed and set aside the First Information Report being Case No. 549 of 2021 registered at Gandhi Maidan Police Station, Patna on November 22, 2021, against certain officials of the appellant-bank working at its Exhibition Road Branch, Patna for the offences punishable under Sections 34, 37, 120B, 201, 206, 217, 406, 409, 420 and 462 of the Indian Penal Code (IPC), 1860. Notably, a written complaint to the SHO, Gandhi Maidan Police Station seeking to register an FIR against Sunita Khemka and the concerned bank officials on the ground that the order dated October 5, 2021 had been violated owing to the unlawful operation of the locker of Sunita Khemka. 

On October 5, 2021, an order under Section 132(3) of the  Income Tax (IT) Act, 1961 was served upon the Branch Manager of the appellant-bank at its Exhibition Road Branch, Patna by the concerned Authorized Officer, thereby directing the said branch of the appellant-bank to stop the operation of any bank lockers, bank accounts and fixed deposits standing in the names of Sunil Khemka (HUF), Sunita Khemka and Shivani Khemka, among several other individuals and entities, with immediate effect. It was further clarified that contravention of the order would render the Branch Manager liable under Section 275A of the IT Act and the same would result in penal action. In compliance of the aforesaid order, the appellant-bank stopped the operation of the bank accounts, bank lockers and fixed deposits of the individuals/entities mentioned in the order. Further, on 7th October,2021, the appellant-bank blocked the bank accounts of the income-tax assesses named in the order and also sealed the bank locker bearing No. 462 belonging to Smt. Sunita Khemka.

Later, on November 1, 2021, Priyanka Sharma, Deputy Director of Income Tax (INV), the respondent No. 5 had issued an order to the Branch Manager of the appellant-bank directing the appellant-bank to revoke the restraint put on the bank accounts of Sunita Khemka and three other persons, in view of the restraining order dated October 5, 2021 passed under Section 132(3) of the IT Act. Accordingly, the said persons, including Sunita Khemka, were to be allowed to operate their bank accounts. The said order was received by the concerned Branch Manager of the appellant-bank on November 8, 2021 at 4:00 p.m. However, on November 2, 2021 at 11:24 a.m., an email was sent to the Branch Manager which contained the same order. Thereafter, on November 9, 2021, the concerned branch of the appellant-bank allowed Sunita Khemka to operate her bank locker bearing No. 462 and proper entries recording the operation of the locker were made in the bank’s records. After that on November 20, 2021, Respondent No. 5 conducted a search and seizure operation at the aforementioned bank locker in the concerned branch of the appellant-bank wherein it was found that Sunita Khemka had operated her bank locker with the assistance of the concerned officers of the appellant-bank. This was validated by the entry made in the bank’s records and the CCTV footage of the bank. 

As a result, the concerned officials of the aforementioned branch of the appellant-bank were found to have breached the restraining order dated October 5, 2021. On November 20, 2021, Respondent No. 5 issued summons under Section 131(1A) of the IT Act to Abha Sinha-Branch Manager, Abhishek Kumar-Branch Operation Manager and Deepak Kumar-Teller Authoriser being the concerned officials of the appellant-bank. These officials attended the office of Respondent No. 5 and their statements were recorded wherein Abha Sinha and Abhishek Kumar stated that there had been an inadvertent error on the part of the bank officials and they had misinterpreted the order dated November 1, 2021. Since the said order pertained to the bank accounts of the concerned individuals including Sunita Khemka, the bank officials had misread the order to understand /assume that the revocation of the restraint extended to the bank lockers as well. Having misunderstood the order, the bank officials under a bona fide assumption that bank locker had been released as well, allowed Sunita Khemka to operate the same. The statement of Sunita Khemka was also recorded wherein she stated that her accountant Surendra Prasad, after speaking with Deepak Kumar, had informed her that the restraint on the aforementioned bank locker had been revoked and she could operate the said locker. This was specifically denied by Deepak Kumar in his statement. Dissatisfied with the said explanations, Respondent No. 5 submitted a written complaint to the SHO, Gandhi Maidan Police Station seeking to register an FIR against Sunita Khemka and the concerned bank officials on the ground that the order dated October 5, 2021 had been violated owing to the unlawful operation of the aforementioned locker. 

On the basis of the complaint, an FIR was registered against Sunita Khemka and the staff of the appellant-bank on November 22, 2021 for the offences punishable under Sections 34, 37, 120B, 201, 207, 217, 406, 409, 420 and 462 of the IPC. HDFC bank preferred a Criminal Writ Jurisdiction Case to invoke the inherent power of the High Court under Section 482 of the Code of Criminal Procedure, 1973 for the quashing of the FIR. The High Court had dismissed the writ petition finding it to be devoid of merit.

The Supreme Court's judgement reads:"In the present case, the FIR does not show that the appellant-bank had induced anyone since inception. For bringing out the offence under the ambit of Section 420 IPC, the FIR must disclose the following ingredients: (a) That the appellant-bank had induced anyone since inception; (b) That the said inducement was fraudulent or dishonest; and (c) That mens rea existed at the time of such inducement."

It observed: "The appellant-bank is a juristic person and as such, a question of mens rea does not arise. However, even reading the FIR and the complaint at their face value, there is nothing to show that the appellant-bank or its staff members had dishonestly induced someone deceived to deliver any property to any person, and that the mens rea existed at the time of such inducement. As such, the ingredients to attract the offence under Section 420 IPC would not be available."

With regard to the provisions of Section 409 of IPC, the following ingredients will have to be made out:
(a) That there has been any entrustment with the property, or with any dominion over property on a person in the capacity of a public servant or banker, etc.; (b) That the said person commits criminal breach of trust in respect of that property.

For bringing out the case under criminal breach of trust, it will have to be pointed out that a person, with whom entrustment of a property is made, has dishonestly misappropriated it, or converted it to his own use, or dishonestly used it, or disposed of that property.

The Court noted that "In the present case, there is not even an allegation of entrustment of the property which the appellant-bank has misappropriated or converted for its own use to the detriment of the respondent No.5. As such, the provisions of Section 406 and 409 IPC would also not be applicable." It also noted that "since there was no entrustment of any property with the appellant-bank, the ingredients of Section 462 IPC are also not applicable."

The Court observed that "since the offences under Section 206, 217 and 201 of the IPC requires mens rea, the ingredients of the said Sections also would not be available against the appellant-bank. The FIR/complaint also does not show that the appellant-bank and its officers acted with any common intention or intentionally cooperated in the commission of any alleged offences. As such, the provisions of section 34, 37 and 120B of the IPC would also not be applicable."

The Court relied on the observations made in the case of State of Haryana and others v. Bhajan Lal and others (1992). It observed: “In the backdrop of the interpretation of the various relevant provisions of the
Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

In Bhajan Lal's case, the Supreme Court said: "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 

Notably, High Court too had referred to the decision in the Bhajan Lal case. Drawing on Court's decision in Pratibha Rani v. Suraj Kumar [(1985)2 SCC 370], the High Court had noted that while exercising its power to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. It had also relied on the decision in the case of State of Kerala v O.C. Kuttan [(1999)2 SCC 251], wherein the Supreme Court held that the power of quashing the criminal proceedings was to be exercised very sparingly and the Court was not to embark upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It recalled the judgment in Superintendent of Police, CBI v. Tapan Kumar Singh [(2003) 6 SCC 175] wherein the Supreme Court has held that the first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. What was significant was that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. It also took note of in M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others (judgment dated 13.4.2021 in Criminal Appeal no. 330 of 2021) wherein the Supreme Court held that it cannot thwart an investigation into a cognizable offences which is the statutory right and duty of the police under the Code of Criminal Procedure. The Court also cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint and quashing of a complaint/FIR should be an exception which is exercised sparingly with circumspection.

In the HDFC case, unlike the High Court, the Supreme Court observed: "We find that the present case would squarely fall within categories (2) and (3) of the law laid down by this Court in the case of Bhajan Lal and others (supra)." It stopped continuation of the criminal proceedings against the appellant-bank.

High Court, District Judge, Sessions Judge, District Magistrate, Revenue-officers empowered to publish lists of touts: Advocates (Amendment) Act, 2023

The Advocates (Amendment) Act, 2023 has inserted a new Section 45A in the Advocates Act, 1961 to empower every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer, not being below the rank of a Collector of a district to frame and publish lists of persons who habitually to act as touts. The list may be amended from time to time. No person's name shall be included in any such list until he shall have had an opportunity of showing cause against such inclusion. A copy of every such list shall be kept hung up in every Court to which the same relates. The Court or Judge may, by general or special ordet, exclude from the precincts of the Court any person whose name is included in any such list. Any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both. 

Section 45 A (7) (d) (i) and (ii) defines "tout". It means a person—who procures, in consideration of any remuneration moving from any legal practitioner, the employment of the legal practitioner in any legal business; or who proposes to any legal practitioner or to any person interested in any legal business to procure. in consideration of any remuneration moving from either of them, the employment of the legal practitioner in such business or who for the purposes of such procurement frequents the precincts of Civil or Criminal Courts or of revenue-offices, or railway stations. landing stages. lodging places or other places of public resort. 

The Advocates (Amendment) Act, 2023 has repealed certain provisions of ‘The Legal Practitioners Act, 1879 by incorporating provisions of Section 36 of the Legal Practitioners Act of 1879 in the Advocates Act.

The repealing of the Legal Practitioners Act, 1879 from the statutes book, will be a contribution to achieve the goal of repealing the obsolete laws specifically that pertain to British era. It will also be a step towards ease of doing business and ease of living for citizens. It would also help in regulating the legal profession by a single Act i.e., the Advocates Act, 1961.  Notably, the Legal Practitioners Act, 1879 has been repealed and the Advocates (Amendment) Act, 2023 has been passed by the Parliament and the assent of the Hon’ble President of India was received on December 8, 2023.

The Union Law Ministry has notified the amendment. The notification states that the Union government has announced September 30, 2024 as the date on which the provisions of the Advocates (Amendment) Act, 2023 will come into force. 

High Court reiterates constitutional validity of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019

The constitutional validity of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 2019, besides other amendments, repealing section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 was challenged in the case of Sudhakar Jha & Ors. vs. The State of Bihar & Ors. [2024 (3) PLJR 403 (DB)]. A Division Bench of Patna Court comprising Chief Justice K. Vinod Chandran and Justice Partha Sarthy had dismissed the challenge to its constitutional validity. The judgement was delivered October 13, 2023. it was authored by Justice Sarthy. Notably, in this 174 page long judgement 127 pages are names of parties and advocates.  The petitioners has also challenged the orders passed by different authorities including the Additional Collector, the Commissioner of the Division and the Bihar Land Tribunal, all of which arise out of applications for pre-emption filed under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The petitioners had claimed that the amendments are against the fundamental rights guaranteed by Part III of the Constitution and the principles of natural justice. It is . It is ultra vires Article 14 of the Constitution. 

The petitioners had claimed that Section 16(3) of the Act has been repealed in an arbitrary manner without assigning any cogent reasons and the amendment is arbitrary, unconstitutional, unreasonable and ultra vires the parent Act. It should not be made applicable with retrospective affect. The amendment effected has not only been done in excess of the power granted under the Constitution; assent of the President; without which it is otiose, has not been taken before its promulgation. The amendment affected was beyond the  competence of the State legislature and on account of repeal of section 45B of the Act, the statutory remedy of appeal/revision as was earlier available has been taken away without providing for any forum for adjudication of the disputes. They prayed that the amendments be declared ultra vires the Constitution and the same be set aside.

The High Court relied on the judgment of the Supreme Court in Punyadeo Sharma & Ors. vs. Kamla Devi & Ors. [2022 (1) BLJ 434 (SC)] to hold that all cases or proceedings which may be pending before any authority or Court including the High Court stood abated and the amount deposited shall be refunded in the manner as provided under section 16(4) of the Act. 

The Supreme Court in the case of Punyadeo Sharma has held as follows :-
“4. The question examined by the Division Bench of the High Court was whether an application for pre-emption was filed within three months of the registration as required by Section 16(3) of the Act or was it required to be filed within three months of the day of execution of the sale deed i.e. 9.2.1990. However, the said question does not survive for consideration in view of the subsequent development whereby the right of pre-emption itself has been taken away by the Bihar Act No. 6 of 2019 when the Act was amended. The Amending Act reads thus:
………………………………
7. We have heard the learned counsel for the parties and find that the right of pre-emption, after the Amending Act, abates as Sub-section 4(i) is specifically dealing with all pending proceedings before whatsoever forum. Therefore, the right of pre-emption will stand abated on and after 25.2.2019 including the proceedings which were pending before any forum.
………………………………
12. …Any other Court is wide enough to include the Constitutional Courts i.e. the High Court and the Supreme Court. ……………….Thus, keeping in view the object of the Statute, purpose to be achieved and the express language of the Amending Act, all proceedings of pre-emption under the Act pending before any authority under the Act or before any Court shall stand abated.

13. Consequently, the present appeals are allowed. The entire pre-emption proceedings stand abated. It shall be open to the respondents to withdraw 10% of the amount deposited by them in terms of Section 16 of the Act in accordance with law.” 

In Narendra Kumar @ Sanjeev Kr. Sinha vs. The State of Bihar (2024), the High Court's Division Bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy has held that the case arising out of an application under section 16(3) of the Act stands abated. It shall be open to the petitioner to withdraw the amount deposited by him in terms of section 16 of the Act in accordance with law. The judgement was delivered August 21, 2024. Justice Sarthy authored the judgement. Y.C. Verma, Senior Advocate represented the petitioner. There were seven respondents besides the State of Bihar. They are: Member Board of Revenue, Patna, the Collector, Nalanda, Biharsharif, the Additional Collector, Nalanda, Biharsharif, the Land Reforms Deputy Collector, Nalanda, Biharsharif, the Sub Divisional Officer, Nalanda, Biharsharif, Ramashraya Prasad, Sherpur, Mahamadpur, Asthawan, Nalanda and Krishnaballabh Singh.

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. 

 

 

 

Patna High Court refused to issue interim orders on prayers of Kumari Anita, Munger Lok Sabha candidate

In Kumari Anita Vs. Election Commission of India, Justice Rajeev Ranjan Prasad of Patna High Court passed an order on June 3, 2024 adjourning the hearing for twelve weeks. This writ application was filed praying for issuance of an appropriate writ, order or direction in the nature of mandamus or any other writ, order or direction under article 226 of Constitution of India inter alia declaring: the Election Commission of India to conduct re-polling in the booths No. 33 to 60, 200, 201, 202, 205, 207, 208, 209, 210, 211, 212, 213, 219, 221, 222, 223, 224, 225, 226, 227, 228, 229, 232, 233, 234, 235, 236 Mokama Vidhan Sabha Constituency, Booth No. 236, 237, 238, 265, 266, 349, 392, Lakhisarai Assembly Constituency and Booth No. 157 and 179 Suryagarha assembly constituency. It also prayed for issuance of an appropriate writ directing the Respondent No. 1 to remove the D.M./D.E.O., Avaneesh Kumar Singh (District Election Officer) Munger parliament constituency (28) Bihar from all administrative responsibilities, for issuance of an appropriate writ directing the Respondent authorities to supply copies of the 17-C forms in terms of the Rule 93 of Conduct of Election Rules, 1961 and sought direction for Election Commission of India to ensure the free and fair election and counting is conducted in the Munger Parliament constituency (28) Bihar.

The petitioner's counsel submitted that as far as the prayer for removal of the District Magistrate/District Election Officer Avaneesh Kumar Singh is concerned, there is no personal allegation against him and that is why he is not made a party respondent by name in the writ application. He further submitted that the petitioner has lost her confidence in the District Election Officer, Munger because despite there being multiple complaints made by the petitioner with regard to the several occurrences which took place on different polling booths wherein a class of voters were not allowed to cast their vote, the District Election Officer did not take any action rather he reported to the Chief Election Officer, Bihar that the entire election was conducted peacefully. For this reason, the petitioner has drawn an inference that serious manipulations had occurred with the complicity of the local administration and despite widespread instances of booth capturing and rigging at various locations, no effective actions were taken. The petitioner suspected collusion between the administration and JDU candidate.

The Court observed that the statements made in the writ application are not very specific. There is no allegation of bias, personal malice against the District Election Officer. "Allegation of collusion between the administration and the JDU Candidate would be a disputed question of fact and this Court, at this stage, in absence of any clinching and irresistible material on the record would not take a view so as to direct respondent ro. 1 to remove the District  Election Officer of Munger Parliamentary Constituency from all administrative responsibilities. The prayer for removal of the District Magistrate/District Election Officer, Munger Parliamentary Constituency is, thus, refused."

The petitioner's counsel submitted that Rule 93 of the Conduct of Election Rules, 1961 is an open ended provision and a candidate has an independent right to get a copy of Form 17-C by depositing appropriate fee in terms of Rule 93 of the Rules of 1961. He also submitted that the agents of the petitioner at different polling booths of Munger Parliamentary Constituency have not been made available Form 17-C at the end of the election hour. He took the Court through Rule 49-S of the Rules of 1961 to submit that sub-rule (1) and sub-rule (2) of Rule 49-S are mandatory in nature and the Presiding Officer would be obliged to furnish to every polling agent at the close of the poll a true copy of the entries made in Form 17-C after obtaining a receipt from the said polling agent therefor and shall attest it as a true copy. It has been submitted that at some of the polling booths, Form 17-C were made available but in large number of the polling booths, the said Form 17-C were not handed over to the polling agents of the petitioner.  

The Court has recorded that the petitioner's counsel realized that he has not laid the foundation of facts in the writ application to demonstrate that at any point of time, either the polling agents of the concerned booth or the candidate had made any complaint to the District Election Officer regarding non-supply of Form 17-C at the end of the polling hour. He admitted at the Bar that there is no categorical statement in this regard and there is not even a statement to the effect that in which booth or at how many booths of the Munger Parliamentary Constituency the Form 17-C were not made available." 

He submitted that his main contention is based on an interpretation of Rule 93 of the Rules of 1961 because he is invoking his independent right to obtain Form 17-C which is available to him under Rule 93 of the Rules of 1961. At the fag end of his submissions that he submitted that he would be contented if the Court directs the District Election Officer to make available a copy of Form 17-C in accordance with Rule 93 of the Rules of 1961. 

It was submitted that the petitioner's claim with regard to non-supply of Form 17-C to the polling agents has no basis to stand. The polling came to an end on 13.05.2024 at 6:00 pm, neither on the said date nor thereafter till 26.05.2024 any complaint was made either by any polling agent or by the candidate saying Form 17-C was not made available to them. It was pointed out that on 27.05.2024, the petitioner, who is the candidate herself, submitted an application which is Annexure P-11 to the writ application in which she requested for making available copies of Form 17-C of all booths in terms of Rule 93 of the Rules of 1961. In this application submitted to the District Election Officer, Munger (Annexure P-11) she has not even whispered that Form 17-C were not made available to her polling agents. 

The Court was taken through Article 329(b) of the Constitution of India and it has been argued on the strength of the judgment of the Hon’ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi and Ors. reported in (1978) 1 SCC 405 that Article 329(b) that there is a blanket ban of litigative challenges to the electoral steps being taken by the Election Commission and its officers. The submission is that in such circumstance the writ application is not entertainable when the counting of votes would be going to take place only tomorrow from 8:00 am.

It was further submitted that so far as the applicability of Rule 93 of the Rules of 1961 is concerned, that issue is not required to be gone into at this stage. It is submitted that Rule 93 does not envisage a situation like the present one where the EVM machine and all the relevant documents including Form 17-C are kept in the strong room which is under seal and is likely to be opened tomorrow only at the time of counting. At this stage, the District Magistrate, Munger who is the District Election Officer of the Parliamentary Constituency, Munger has also sought permission to mention that in fact when the strong room would be opened tomorrow and the counting will start, at that very time Form 17-C (Part 1 information) would be available and the representative of the candidate would be in a position to look into the same.

It is recorded in the order that when the petitioner's counsel understood the submissions made by the District Election Officer, Munger, he expressed his satisfaction and submitted that in such circumstance, for the present, this Court may not go into the issue of applicability of Rule 93 of the Rules of 1961 and it may be left open for academic discussions later on. In that view of the matter, no interim order is required to be passed by this Court as regards prayer no. (iii).

The Court concluded that so far as prayer no. (iii) is concerned, this has remained only significant for academic discussions and this Court may consider this issue at an appropriate time after the parties shall exchange their respective affidavits. It found that in view of what has finally transpired, no order is  required to be passed with regard to prayer no. (iv) and there is no gainsaying that the importance of free and fair election has always been taken as a backbone of the democracy and for the present, there is nothing on the record to take a view that the authorities concerned shall not conduct the election in free and fair manner.

Notably, at the outset, when this Court was moved as Civil Application and Motion Bench during vacation for notifying the matter, after hearing for a while about the subject matter of the writ application, Justice Prasad  informed the petitioner's counsel that his village falls within the Munger Lok Sabha Constituency, therefore, he would not like to hear the matter as it may be construed otherwise but Mr. Aljo K Joseph, the counsel for the petitioner insisted saying that the matter involves only question of law and there would be no conflict of interest, therefore, in view of the urgency, the matter be heard by this Court. In view of this submissions, the Court took up the matter for consideration for interim relief, if any, as it was also submitted that if it is not heard, it will become infructuous.

The counsel for the State as well as the Election Commission of India prayed that the matter be adjourned for twelve weeks to enable them to file their respective counter-affidavits on the issue of Rule 93 of the Rules of 1961.