Supreme Court reiterates "bail is rule and jail is exception", sets aside Delhi High Court's order on Manish Sisodia's bail application

Hearing Manish Sisodia Vs. Directorate of Enforcement, the appeal challenging the judgment and order of May 21, 2024 passed by the Delhi High Court rejecting the grant of bail, the Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan observed: "The present case travelled two rounds before the trial court, the High Court and this Court. This is now the third round before this Court wherein the appellant is seeking bail in connection with the aforesaid two cases."  The application was filed for seeking bail in connection with a Enforcement Directorate (ED) case registered against the appellant by the ED and First Information Report (FIR) registered against the appellant by the Central Bureau of Investigation (CBI). The judgement was delivered on August 9, 2024. It was authored by Justice Gavai.  Dr. Abhishek Manu Singhvi, Senior Counsel appeared for the appellant and S. V. Raju, Additional Solicitor General (ASG) appeared on behalf of the respondents.

The Supreme Court's 38 page long judgement reads: "The impugned judgment and order dated 21st May 2024 passed by the High Court of Delhi in Bail Application Nos. 1557 and 1559 of 2024 is quashed and set aside; The appellant is directed to be released on bail in connection with ED Case No. HIU-II/14/2022 registered against the appellant by the ED and FIR No. RC0032022A0053 of 2022 registered against the appellant by the CBI...." Reacting to grant of bail by the Court, Sisodia said,"Lawyer is like God for any person in jail, Abhishek Manu Singhvi is also God for me".  

The judgement records Court's opinion in its first order. It reads: "Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years." 

It relied on Court's own decision in Vijay Madanlal Choudhary and Others v. Union of India and Others (2022) to infer that "Section 436A Cr.P.C. should not be construed as a mandate that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period."

It observed: "In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post." It recalled the adage: "procedure is a hand maiden and not a mistress of justice." 

The Court drew on its decision in the case of Prabir Purkayastha v. State (NCT of Delhi) (2024). It reads :
“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala3:—“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution
Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”” Justice Gavai was part of the bench which decided the release of Prabir Purkayastha, the editor of NewsClick. 

Justice Gavai led bench observed: " the question that arises is as to whether the trial court and the High Court have correctly considered the observations made by this Court with regard to right to speedy trial and prolonged period of incarceration. The courts below have rejected the claim of the appellant applying the triple test as contemplated under Section 45 of the PMLA. In our view, this is in ignorance of the observations made by this Court in paragraph 28 of the first order wherein this Court specifically observed that right to bail in cases of delay coupled with incarceration for a long period should be read into Section
439 Cr.P.C. and Section 45 of the PMLA."

He observed: we find that the finding of the learned trial judge that it is the appellant who is responsible
for delaying the trial is not supported by the record. The learned Single Judge of the High Court endorses the finding of the trial court on the ground that the accused persons have taken three months’ time from 19th October 2023 to 19th January 2024 for inspection of “un-relied upon documents” despite repeated directions from the learned trial court to conclude the same expeditiously. It is to be noted that there are around 69,000 pages of documents involved in both the CBI and the ED matters. Taking into consideration the huge magnitude of the documents involved, it cannot be stated that the accused is not entitled to take a reasonable time for inspection of the said documents. In order to avail the right to fair trial, the accused cannot be denied the right to have inspection of the documents including the “un-relied upon documents”. 

His decision noted that the contentions raised by the Additional Solicitor General was self-contradictory and the failure of both the High Court and the trial court. He observed: "We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor."

The Court factored in the Court's decision on a bail application in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another (2024) wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. The Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh (1978), Shri Gurbaksh Singh Sibbia and Others v. State of Punjab (1980), Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar (1980), Union of India v. K.A. Najeeb (2021) and Satender Kumar Antil v. Central Bureau of Investigation and Another (2022). 

After the survey of its own decisions, the Court observed:“If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”

The Court observed: "The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”." 

Justice Gavai observed: "In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial."

It all began with on the basis of a letter dated July 20, 2022 by Vinai Kumar Saxena, the Lieutenant Governor of Delhi alleging irregularities in the framing and implementation of Delhi’s Excise Policy for the year 2021-22, the Director, Ministry of Home Affairs had directed an enquiry into the matter vide Office Memorandum dated July 22, 2022. On February 26 2023, the appellant came to be arrested by the CBI. Subsequently, the appellant was arrested by the ED on March 9, 2023. After investigation, CBI filed charge-sheet on April 25, 2023 for the offences punishable under Sections 7, 7A, 8 and 12 of the Prevention of Corruption (PC) Act, 1988 read with Sections 420, 201 and 120B of the Indian Penal Code (IPC), 1860. Upon completion of investigation, the ED filed a complaint under Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA) on May 4, 2023.

 

No ray of hope for recovery of kidnapped child, case disposed of: Justice Bibek Chaudhuri, Patna High Court

Patna High Court's bench of Justice Bibek Chaudhuri observed, "In view of such affidavit having been filed by the head of the Special Investigating Team, the Special Investigating Team is directed to file its final report regarding their failure to recover the kidnapped boy in the jurisdictional court of the learned Magistrate" in Awadhesh Kumar v. State of Bihar. The case arose out of PS. Case No.-685 of 2014 Thana- Nagar District- Vaishali.

The petitioner had prayed for issuance of a writ in the nature of mandamus against the respondents and other consequential relief, directing them to transfer the matter pertaining to Town P.S. Case No. 685 of 2014 for investigation to the Central Bureau of Investigation (C.B.I.) and recovery of 11 years old son of the petitioner namely Vinayak Kumar, who has been kidnapped by some unknown persons on 10th August, 2014. A Special Investigating Team was constituted under the leadership of S.D.P.O., Mahnar, Hajipur for the recovery of the victim boy, The Special Investigating Team conducted investigation and submitted charge-sheet against some accused persons, who initially demanded ransom for release of the child. This case is pending before the competent court. The present writ petition was kept alive directing the respondents time and again to take appropriate steps for recovery of the kidnapped boy.

On February 12, 2024, the High Court had passed an order directing the Special Investigating Team to intimate the Court as to whether there is any chance for recovery of the boy. The S.D.P.O., Mahnar, Hajipur, being the head of the Special Investigating Team filed an affidavit stating, inter alia, that the investigation had proceeded with all possible direction, but the kidnapped boy could not be recovered. The incident happened about nine and half years ago. Therefore, after the expiry of such long period, there is no ray of hope that the child would be recovered. Vasant Vikas, Advocate appeared for the petitioner and  Nashrul Hoda Khan and Irshad were Standing Counsels for the State.The writ petition was disposed of on March 6, 2024.

Dissenting judgement of Justices S. C. Agarwal and A.S Anand in Narasimha Rao case upheld by 7-judge bench, no immunity for lawmakers indulging in graft

A 7-judge Constitution Bench of Supreme Court comprising the Chief Justice, Dr. D. Y. Chandrachud, Justices A.S. Bopanna, M.M. Sundresh, Pamidighantam Sri Narasimha, J.B. Pardiwala, Sanjay Kumar and Manoj Mishra unanimously pronounced a judgment in a 135 page long judgement in Sita Soren v Union of India on March 4, 2024. The case was heard and judgement was reserved on October 5, 2023. The case was filed on March 26, 2014 and registered on March 28, 2014 as a SLP. It was admitted on December 4, 2018. The Criminal Appeal No. 451 of 2019 was registered on March 7, 2019. Sita Soren is a third time MLA from Jharkhand. It has been alleged that she took bribe to ensure voting for a candidate during a Rajya Sabha election. The fact has emerged that she did not vote for the candidate from whom she is said to have taken bribe for voting.  

The 7-judge bench has answered the question of law raised by the Judgement of the High Court. It implies that Sita Soren will face the charge sheet filed by the CBI against her on the charge that she had taken bribe to cast vote in Raya Sabha polls. She is daughter-in-law of JMM chief Shibu Soren and wife of late Durga Soren. She was in jail for seven months. She is now out on bail. She is an MLA from Jama, Dumka, in Jharkhand.

It was a regular criminal appeal arising out of a judgment of the Jharkhand High Court, declining to quash prosecution against Sita Soren, the appellant, who is being prosecuted, under relevant provisions of the Prevention of Corruption Act and the Indian Penal Code, for the alleged offense, of taking a bribe to vote in a Rajya Sabha election, Sita Soren, the appellant was at the relevant time a sitting MLA of Jharkhand. She's alleged to have taken a bribe, from an independent candidate, to vote for him rather than for her party candidate. But in the event, the vote was actually for her party candidate, because that comes out in the open voting, then there were complaints that election was countermanded. There was a fresh election and again, she voted for her party candidate, etc. But she was sought to be prosecuted on this allegation. Originally, the Writ Petition (Criminal) was filed on June 18, 2013 and registered on June 21, 2013 in Jharkhand High Court. The single judge bench of Justice R.R.Prasad had heard and passed the order appeal on February 17,  2014. The High Court had examined as to whether Article 194 (2) of the Constitution of India confers any immunity on the MLAs for being prosecuted in a criminal Court of an offence involving offer or acceptance of bribe. 

It all began in the context of the notification by the Election Commission of India fill up two vacant seats of Rajya Sabha from Jharkhand by March 31, 2012. March 30, 2012 was fixed for the poll. Praveen Kumar Singh, Pradeep Kumar Balmuchu, Sanjeev Kumar, Ansuman Mishra, Pawan Kumar Dhoot and Raj Kumar Agarwal filed their nominations. It emerged that none of the major political parties, which fielded its candidate in the election, had decisive majority to to get their candidate elected. Jharkhand Mukti Morcha (JMM) had fielded its candidate Sanjeev Kumar. But 10 MLAs of JMM including Sita Soren, the petitioner proposed to nominate R.K.Agarwal, an independent candidate.

In such a backdrop, Babu Lal Marandi and Dr. Ajay Kumar, lodged a complaint on March 27, 2012, before the Chief Election Commissioner of India, alleging that the process of election being influenced by the money power and horse trading. Responding to the complaint, the Election Commission of India alerted concerned departments including the Income Tax Department on March 27, 2012 itself to check the menace of Horse Trading and use of money power. In the late night of March 29, 2012, The Chief Commissioner of Income Tax, Ranchi received information to the effect that huge money is being taken from Jamshedpur to Ranchi for distribution among some of the MLAs participating in the Rajya Sabha election. On receiving such information, Income Tax authority, with the help of the local police, put a picket on Jamshedpur-Ranchi Highway. During that course, an Innova car was intercepted from which unaccounted cash of Rs. 2.15 crores were recovered. One Sudhanshu Tripathy, the custodian of the cash, explained that the cash of Rs. 2.15 crores had been handed over to him by Sumitra Sah, son-in-law of R.K.Agarwal to be handed over to Arun Kumar Khandelwal, an employee of Jay Shree Motors Ltd, Ranchi, belonging to R.K.Agarwal. Upon seizure of cash, the then Deputy Director, Income Tax, Ranchi, lodged a written complaint to Officer-Incharge of Namkum Police Station, Ranchi, which was registered as Namkum P.S. Case No. 58 of 2012 on 30/03/2012, under Section 171(F) and 188 of the Indian Penal Code.

While adjudicating in a Public Interest Litigation (PIL), Supreme Court, found it to be a grave case of involvement of money power to influence the process of the election of the Council of the States, directed the CBI to take up the investigation relating to the criminality of the persons involved. In compliance with the order, Principal Secretary, Election Commission of India, asked the Secretary, Union Mnistry of Personnel, Public Grievance & Pension to entrust the case relating to the Election of Rajya Sabha to CBI. The CBI took up the investigation of Namkum P.S. Case No. 58/2012 and re- registered the case as RC 2(S)/ 2012-AHD-R, for investigation. The CBI found that out of 80 elected MLAs, 79 MLAs, participated in the election, whereas one MLA of CPI (M), did not participate. During investigation, it was found that the petitioner by calling R.K.Agarwal on cell phone, asked him to pay Rs. 50 lakhs as an advance for proposing his nomination. Lateron, Air bag was handed over at the residence of Nalin Soren, where most of the MLAs of JMM were present. This Air bag was dropped by Sita Soren  at the residence of one Rajendra Mandal. 

It was found that in the evening of March 29, 2012, Rs. 1 corer was given by Raj Kumar Agarwal at hotel Radison Blue, Ranchi. The said air bag containing money was brought to the residence of the petitioner and on the following day, it was taken in the vehicle of IOCL to Jamshedpur. The Election Commission did countermand the election and, therefore, Agarwal was seen coming to the residence of this petitioner at several occasions for getting back a sum of Rs. 1.50 crores, but Sita Soren did not oblige him. After the investigation, a charge sheet was filed against number of accused persons, including Sita Soren on the charge that the petitioner did receive illegal gratification of Rs. 50 lakhs from R.K.Agarwal for proposing his nomination and also Rs. 1 crore for voting in his favour but the petitioner never voted in favour of Agarwal. 

On submission of the charge sheet, the Court took cognizance of the offences punishable under Sections 120B and 171 (E) of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against Sita Soren the petitioner and others vide order dated June 7, 2013. It was this Court's order taking cognizance of the offences was challenged in the High Court.

Justice Prasad held that "I am of the view that the act of the petitioner of receiving money pursuant to the conspiracy and the agreement with R.K.Agarwal, will have no nexus with the vote on account of the fact that she did not cast vote in favour of the said R.K.Agarwal and, thereby, she will have no immunity as guaranteed under Sub-clause (2) of Article 194 of the Constitution of India. Accordingly, I do not find any illegality with the order taking cognizance and, thereby, it never warrants to be quashed."

The 7-judge Constitution Bench disagreed with the judgement of a 5-judge Constitution Bench in P.V. Narasimha Rao v. State (1998) and overruled the judgment of the majority. In a 3:2 majority judgment, a 5-judge Bench consisting of Justices S.C. Agrawal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha and S. Rajendra Babu in the P V Narasimha Rao case held that legislators enjoy immunity from criminal prosecution for bribery in matters connected to their speech and votes in Parliament and Legislative Assemblies as per Article 105(2). In the majority verdict, Justice S P Bharucha had held: “… no member (of Parliament) is answerable in a court of law or any similar tribunal for what he has said in Parliament." The dissenting order by Justices S.C. Agrawal and Dr. A.S. Anand stood against extension of immunity for having received bribe for the purpose of giving a vote in the House for the acts preceding the making of such speech or giving vote by the legislators. 

By an order dated September 20,2023, a five-judge bench of the Court had recorded prima facie reasons doubting the correctness of the decision in P.V. Narasimha Rao and referred the matter to a larger bench of seven judges.   

Prior to that on September 23, 2014, a bench of two judges of the Court, observed that it was of the view that since the issue arising for consideration is “substantial and of general public importance”, it must be placed before a larger bench of three judges of this court. On March 7, 2019, a bench of three judges which heard the appeal observed that the precise question was dealt with in a judgment of a 5-judge bench in P.V. Narasimha Rao case. This bench was of the view that “having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of public importance”, the matter must be referred to a larger bench.

The 7-judge bench appreciated the dissenting order of Justice S.C. Agarwal and Justice Dr. A.S. Anand in P.V. Narasimha Rao case. Justice Agarwal had noted a serious anomaly if the construction in support of the immunity under Article 105(2) for a bribe taker were to be accepted: a member would enjoy immunity from prosecution for such a charge if the member accepts the bribe for speaking or giving their vote in Parliament in a particular manner and in fact speaks or gives a vote in Parliament in that manner. On the other hand, no immunity would attach, and the member of the legislature would be liable to be prosecuted on a charge of bribery if they accept the bribe for not speaking or for not giving their vote on a matter under consideration before the House but they act to the contrary. Justice Agarwal observed that the anomaly would be avoided if the words “in respect of” in Article 105(2) are construed to mean ‘arising out of’. In other words, in such a case, the immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part for the cause of action for the proceedings giving rise to the law; and The judgment of Justice Agarwal has specifically dwelt on the question as to when the offence of bribery would be complete. The judgment notes that the offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of the bribe would be treated to have committed the offence even when he fails to perform the bargain underlying the tender and acceptance of the bribe. This aspect bearing on the constituent elements of the offence of a bribe finds elaboration in the judgment of Justice Agarwal but is not dealt with in the judgment of the majority in the P.V. Narasimha Rao case.

The 7-judge bench observes, "The judgment of the majority in P.V. Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered."

This Constitution Bench judgement reads:"An individual member of the legislature cannot assert a claim of privilege to seek immunity under Articles 105 and 194 from prosecution on a charge of bribery in connection with a vote or speech in the legislature. Such a claim to immunity fails to fulfil the twofold test that the claim is tethered to the collective functioning of the House and that it is necessary to the discharge of the essential duties of a legislator. Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery."

It concludes that "Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee; Corruption and bribery by members of the legislatures erode probity in public life."

In the penultimate paragraph, the bench observed that "The interpretation which has been placed on the issue in question in the judgment of the majority in PV Narasimha Rao (supra) results in a paradoxical outcome where a legislator is conferred with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but eventually decides to vote independently will be prosecuted. Such an interpretation is contrary to the text and purpose of Articles 105 and 194.

Notably, the 7-judge Constitution Bench which upholds the dissenting judgement of Justices Agarwal and Anand in Narashimha Rao case refers to the dissenting order in Court's verdict of 5-judge Constitution Bench in Justice (Retd.) K.S. Puttaswamy v. Union of India (2018). The latter had referred to the dissenting jugement of Justice H. R. Khanna as part of 5-judge bench in the case of ADM Jabalpur v. S. S. Shukla (1976) to uphold it. During the course of the hearing it was cited in Sita Soren case as well. 

 

In the Puttaswamy case the majority judgement observed, "The Rajya Sabha or the Council of States performs an integral function in the working of our democracy and the role played by the Rajya Sabha constitutes a part of the basic structure of the Constitution." It has been reiterated by the 7-judge bench. It recorded that "It was emphasised that the creation and composition of the Rajya Sabha (Upper House) is an indicator of, and is essential to, constitutional federalism....Therefore, Rajya Sabha could not have been by-passed while passing the legislation in question and doing away with this process and also right of the President to return the Bill has rendered the statute unconstitutional." In his dissenting judgement, Dr. Chandrachud observed, "The Aadhaar legislation was passed as a money bill in the Lok Sabha. Whether it was permissible, in constitutional terms, to by-pass the Rajya Sabha, is the question. The role of the Rajya Sabha in a bicameral legislative structure, the limits of executive power when it affects fundamental rights and the duty of the state to abide by interim orders of this Court are matters which will fall for analysis in the case."

It emerges that dissenting judgements are like pole stars which pave the path for comprehensive justice.   

Patna High Court Chief Justice led Bench imposes costs on Bihar State

Chief Justice of Patna High Court Justice K. Vinod Chandran and Justice Harish Kumar heard the appeals of Kamini Kumari (Darbhanga), Sauda Khatun (Araria), Smt. Tara Singh (Saharsa), Smt. Meera Pathak (Munger), Smt. Rita Rani (Munger), Smt. Vimla Kumari (Munger) and Bansuri Acharya (Patna/North 24 Pargana) against the State of Bihar and others. 

Their appeals arise from the common judgment of a Single Judge in analogous writ petitions. After hearing the parties, the judgment was reserved on February 13, 2024.The judgement was delivered on February 27, 2024.

The petitioners were teachers appointed in the early 1980s whose appointments were subject of an inquiry, conducted by the CBI, on directions of the High Court in a Public Interest Litigation (PIL). A report was submitted by the CBI and no action was taken. A PIL was filed again which led to further action against the teachers who were alleged to have been appointed illegally; in the CBI report. The various punishments imposed were set aside, in some of the cases, finding the departmental inquiry initiated against each of them to be improper. By reason of the liberty left by the Court to proceed afresh, the Department proceeded de novo against the said teachers. Many of them had retired, against whom, after inquiry, punishment was imposed withdrawing their pension in toto. Those who were in employment at the time of the de novo inquiry were terminated from service. Both these categories of persons along with others who were issued with show-cause notices approached this Court with a number of writ petitions, all of which were rejected by the judgment impugned in the appeal.

After elaborate hearing and rigorous examination of the records and relevant laws, rules and notifications, the Court records that "the appointments made in the year 1981, 1988 and 1989 were subjected to a CBI inquiry, the report of which was filed in the year 2004. Apparently no FIR was lodged and the reports submitted remained with the State Government, without any further action. It was long after, in the year 2016 that a Public Interest Litigation motivated the State Government into taking action. The order in the PIL only directed the State Government to take proceedings in accordance with law. We have found that the State Government had flouted all principles of fairness in disciplinary inquiry and also violated the specific rules of procedure as brought out under Article 309 of the Constitution of India."

The Court observed: "We cannot but deprecate the manner in which the inquiry proceedings were initiated by the State Government. True there was a CBI inquiry initiated in the PIL, in the course of which the petitioners were not at all examined or given an opportunity to put up their defence. The report of the CBI was filed in the year 2004 when all the petitioners were in service. Even then if a disciplinary proceeding had been taken, it would have been grossly delayed since the appointments were made in 1980’s."

The order reads: "Less said the better about the manner in which the inquiry was conducted. The memo of charges only contained the extract of the CBI report pointing out the alleged irregularity, as against the appointment of the individual petitioners. There was none examined at the inquiry nor documents marked. The extract of the CBI report could have been marked and proved only by the person who prepared the report or another officer of the CBI, who could depose on the basis of the records. This procedure was not followed and the inquiry officer did not independently consider the irregularity in appointment alleged."

The order states: "We have also noticed that the irregularity of roster clearance having not been obtained and the reservation rules not being followed were not treated as a ground to find irregularity in the appointments, in many individual cases. Insofar as the contention of over age is concerned, the petitioner
who was accused with that, has demonstrated that it is otherwise."

The order concludes: "On the reasoning above, we reverse the judgment of the learned Single Judge by allowing the appeals and allow the writ petitions setting aside the impugned orders.The orders set aside are those in which the punishments have been imposed, produced in the writ petition or by way of interlocutory application. These produced in the appeals, passed while they were pending also are set aside. The petitioners/appellants would be deemed to have retired from service and their pension would be restored with immediate effect. The petitioners shall be paid pension from March-2024 and the arrears for the period when they were denied of such pension, by reason of the impugned orders in the writ petition, shall be paid within a period of four months from today. The State shall be mulcted with further liability of interest at the rate of 5 per cent i.e from the date of stoppage of pension, if the arrears are not paid within four months. If interest is attracted by reason only of the delay caused in disbursing the arrears, then the State would be entirely at liberty to proceed against those officers who are responsible for the delay and recover the interest portion from them." 

The Court expressed its anguish about "the manner in which the inquiry proceedings were initiated and proceeded arbitrarily, flouting all procedural requirements. There were even instances of the disciplinary authority finding the individual liable to be continued, after which, again without notice subsequent inquiry report was obtained and punishment imposed. The State, being a welfare state has an obligation to its employees. The persons appointed were appointed decades back and continued in the employment of the State. Even if the CBI found some irregularities, it was for the State to meticulously examine whether such irregularities existed and if it did, whether it was expedient to take action against the petitioners, especially considering the passage of time and the fact that the State had extracted work from such persons in the intervening years. There is also no complaint raised against the appellants who were teachers, teaching in various schools. There is not even one instance pointed out when their services were found to be unsatisfactory. None of them are accused of any misconduct, four years prior to their retirement, or at any time before, in their total service. The State having acted in such an arbitrary manner; put the petitioners, who retired from service, to unnecessary agony, despair and prejudice by denying the entire pension for long years; which is held to be a matter of right and not a bounty paid by the State. On the above reasoning, we are of the opinion that the State should be imposed with costs which is quantified at Rs. 5,000/- in each of the appeals, which shall be paid along with the arrears." The appeal was allowed. The judgement was authored by Justice Vinod Chandran.

Fate of a Habeas Corpus petition, after disposal of the case by High Court, CBI finds Rajnath Sharma, the "absconding person" was killed, burnt in police custody

Who are the two persons from Bihar who were killed by U.P. police? Bihar Police informed Patna High Court in Criminal Writ Jurisdiction Case No.535 of 2022 that these two were from among those 256 persons who had absconded from their custody.

A Habeas Corpus petition -CR.WJC No.535 of 2022 was filed on April 28, 2022. It was registered on May 11, 2022. It was filed by Dhanraj Kumar Rai with an assertion that his brother Raj Nath Sharma was arrested by Kateya Police under the district of Gopalganj on June 7, 2021 from his house in connection with Kateya PS case no.189 of 2021, registered for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code but was not produced before the concerned Magistrate soon after his arrest and was traceless. A counter affidavit was filed pursuant to direction issued by Patna High Court from which it would transpire that according to the State of Bihar, after said Raj Nath Sharma was brought to the Kateya police station after his arrest, he managed to escape on the pretext of going for attending the nature’s call. In relation to his escape from the police station, Kateya P.S. Case No. 190 of 2021 was registered on June 7, 2021. 

Taking into account a lackadaisical approach of the State respondents in not taking prompt action in the matter of disappearance of Raj Nath Sharma and the role of the police officials of the State police, the High Court by an order dated February 6, 2023, while disposing of the writ petition, directed for investigation by the Central Bureau of Investigation (CBI) into Kateya P.S. Case No. 189 of 2021 and Kateya P.S. Case no. 190 of 2021. The Court took serious view of the manner in which, according to the police, Raj Nath Sharma had escaped from the police custody and no action was being taken for locating him, directed State respondents to file an affidavit giving the details of all such persons, who, according to them, had escaped from custody of the police in the State of Bihar and were still traceless. In compliance of the said order, a supplementary counter affidavit came to be filed, sworn by the DIG, Administration (Police Headquarter), displaying alarming state of affairs. 

By the order dated December 14, 2022, the Patna High Court had directed the State of Bihar to file an affidavit, providing the details of all such persons, who had escaped from the custody of police in the State of Bihar and were still traceless. 

In compliance of the said part of the order, a supplementary counter affidavit was filed on January 3, 2023 sworn by the DIG Administration, PHQ. The said affidavit displays another alarming state of affairs. According to said affidavit, there are 256 accused persons, who have escaped from the police custody from various places in the State of Bihar and are still traceless. 

A district wise break-up of number of persons who have escaped from police custody and are still traceless shows that 68 persons escaped from Patna, 8 from Bhojpur, 3 from Buxar, 4 from Rohtas, 14 from Gaya 14,  2 from Aurangabad, 3 from Nawada, 1 from Arwal, 50 from Muzaffarpur, 7 from Sitamarhi, 1 from Vaishali, 13 from Bettiah, 11 from Motihari, 6 from Saran, 6 from Siwan, 8 from Gopalganj, 4 from Darbhanga, 2 from Madhubani, 2 from Samastipur, from 2 Saharsa, 3 from Madhepura, 8 from Supaul, 1 from Katihar, 11 from Araria, 2 from Bhagalpur, 2 from Nawgachiya, 2 from Banka,  2 from Begusarai, 1 from Khagaria, 6 from Jamui, 1 from Rail Jamalpur, 2 from Police Adhishak,  Railway, Patna.

Out of 256 persons who have escaped from the police custody and are traceless, 118 are from two districts, namely, Patna and Muzaffarpur. 

In this backdrop, Patna High Court's bench of Justices Chakradhari Sharan Singh and Rajesh Kumar Verma passed an order in Dhanraj Kumar Rai v. Home Secretary, State of Bihar on 6 February, 2023 saying, "Since, we are of the view that the investigation so far done in two cases by the State Police, namely, Kateya P.S. Case No. 189/2021 and Kateya P.S. Case No. 190/2021, does not instil confidence as their inaction is manifest and not free from doubts, we consider it desirable in the interest of justice to direct the State to transfer the Investigation of Kateya P.S. Case No. Patna High Court CR. WJC No.535 of 2022(31) dt.06-02-2023 189/2021 and Kateya P.S. Case No. 190/2021 to the Central Bureau of Investigation. Accordingly, let the entire documents of the aforesaid two cases be handed over to the Superintendent of Police, CBI, Patna, by 13.02.2023." Notably, the then SP Anand Kumar formed the SIT under the leadership of Hathua’s SDPO Naresh Kumar to search for Rajnath Sharma but could not get any clue as whether Rajnath Sharma was dead or alive.

The order reads:"Before, we part with this judgment, we express our anxiety as regards the alarming number of cases in which, the persons, who have, according to the Police, escaped from the police custody and are still traceless. The Court would expect the State respondents to inform this Court as to what action(s) do they intend to undertake in respect of those cases in which the persons, who have escaped from police custody and are traceless. For the said purpose, list this case on 13.03.2022 under the heading 'To The Mentioned' for the State to file an affidavit giving the details of proposed action." The concluding paragraph of the orders read: "This application is disposed of with the aforesaid direction and observation."  The case was heard on 37 occasions by the Division Bench. 

This order was authored Justice Chakradhari Sharan Singh. He was the Acting Chief Justice, Patna High Court on February 6, 2023. He has been Additional Judge, Patna High Court with effect from April 5, 2012. He has authored 1246 reported judgments, of which 562 were delivered during last 5 years. The Supreme Court's Collegium of Dr. Dhananjaya Y Chandrachud, Chief Justice of India, Justices Sanjay Kishan Kaul and Sanjiv Khanna recommended his name for the appointment as the Chief Justice of the High Court of Orissa November 2, 2023.

Prior to his appointment as Chief Justice of Orissa High Court , he authored the the final order dated July 5, 2023 in Dhanraj Kumar Rai v. Home Secretary, State of Bihar. The final order observes that "two affidavits have been filed, one on 18.05.2023 and the other on 23.06.2023. In the supplementary counter affidavit filed on 18.05.2023, it has been stated that efforts are being taken to arrest the accused persons who had escaped from police custody and as per the report submitted by the Superintendent of Police (STF, Bihar), 38 persons out of 256 have been either arrested by the Bihar police after 26.01.2023 to 11.05.2023 or surrendered before the police. In the supplementary counter affidavit filed on 23.06.2023, latest status of the persons apprehended till 29.05.2023 has been given. It has been stated that from the period 11.05.2023 to 15.06.2023, 28 persons have been arrested by the police, one person has surrendered, 8 persons have been released on bail and 2 persons were killed in encounter(s) with the U.P. police." 

The concluding sentence of the order states "We do not propose to pass any further order in the present matter which has already been disposed of. We, however, expect that the State police shall continue with the action initiated pursuant to this Court’s observations in the order dated 06.02.2023." 

The petitioner's counsel was Chandra Shekhar Singh, CBI's counsels were Nivedita Nirvikar, Senior Advocate and Lalan Kumar and Prabhu Narayan Sharma, AC to Advocate General represented the State of Bihar. CBI registered the FIR on March 2, 2023.  The CBI's case was pursued by the CBI team under the leadership of Inspector Mukesh Pandey. On February 7, 2024, it has been reported that CBI has disclosed that Rajnath Sharma was killed in police custody. He died because of physical assault by the police. The police had burnt his body to hide the mystery about the death of the accused. Notably, on being elevated as the Chief Justice of the High Court of Orissa, Justice Chakradhari Sharan Singh took oath on February 7, 2024.