BiharWatch-Journal of Justice, Jurisprudence and Law

BiharWatch-Journal of Justice, Jurisprudence and Law is an initiative of Jurists Association (JA), East India Research Council (EIRC), Centre for Economic Philosophy, History and Justice (CEPHJ) and MediaVigil. It publishes research on diverse notions of justice and the performance of just and unjust formal and informal anthropocentric institutions and their design crisis with reference to the first principle. Editor:mediavigil@yahoo.co.in

Thursday, December 7, 2023

Guidelines to be followed in Handling Explicit Materials: Justice K.Babu, Kerala High Court

Responding to the absence of rules to guide Law Enforcement agencies, experts, Courts, etc, on how to handle sensitive electronic records containing sexually explicit materials, Kerala High Court has framed Guidelines To Be Followed In The Matter Of Handling Sexually Explicit Materials.

Given the pressing need to issue the guidelines to be followed by various agencies and institutions that may handle such electronic records containing sexually explicit materials, the guidelines framed in the decision states that the Law Enforcement agencies, Courts and examining authorities are directed to comply with the following measures in the matter of handling sexually explicit materials till a law is enacted on the subject:

Measures to be adopted by Law Enforcement Agencies

66. If any officer of a law enforcement agency happens to seize or recover any electronic record related to a crime and realizes or has reason to believe that it must be taken into custody, he shall seize it with the utmost caution, preventing any chance of destruction to the electronic records and their contents. This process should be conducted maintaining the highest level of secrecy and privacy regarding the contents. The process shall be documented separately in a mahazer.

66.1. The electronic record shall be separately packed and sealed in damage-proof packets. Each packet should be labelled with a unique label that clearly states 'Sexually Explicit Materials' (abbreviated as SEM) in luminous red ink.

66.2. The law enforcement agency should maintain a register of electronic records containing Sexually Explicit Materials that have been seized and are in their custody. This register should include details such as the date, time, place of recovery, the source from whom it was recovered, the officer responsible for the recovery, and the officers involved in packing and sealing the material. All entries in the register should include the names and official designations of the officers involved and must be signed by them.

66.3. The sealed packet containing sexually explicit material shall be securely stored in lockers. The time and date of placing the packet in the locker shall be recorded in the aforementioned register, along with the acknowledgment of the person responsible for the locker’s custody. It should only be removed from the locker for transmission to the relevant Court. When it is taken out of the locker for transmission to the Court, this action should also be recorded in the register, including the time, date, and details of the officer who removed the sealed packet from the locker. Furthermore, the details of the officer entrusted with the sealed packet for delivery to the concerned Court, and information regarding which Court it was transmitted to, must be documented in the same register. If it is discovered that any person has accessed the electronic record after it has been sealed and before it is entrusted to the Court, the individuals responsible should be held accountable.

Measures to be taken by the Courts in handling electronic records containing Sexually Explicit Materials

66. Every Court should maintain a register of electronic records containing sexually explicit materials received by the Court. This register should include the time and date of receipt, details of the crime, a description of the packet, and information about the person who presented the sealed packet to the Court. Additionally, there should be a declaration from the transmitting officer confirming that the packet was transmitted without any destruction or tampering.

67.1. The sealed packets shall be presented to the Chief Ministerial Officer of the Court. The Chief Ministerial Officer is responsible for examining the sealed packet and ensuring that it is properly sealed and has not been damaged or tampered with.

67.2. The officer who receives the sealed packet shall provide proper acknowledgment to the officer who entrusted the sealed packet, provided that the sealed packet is received in proper condition. If the packet is not in proper condition or is suspected of tampering or misuse, it must be reported to the Judicial Officer. The Judicial Officer shall summon the officer responsible for transmitting the packet to the Court, and a proceeding shall be drawn up concerning signs of tampering of the packet with acknowledgment from the officer concerned. The details of such proceedings shall be recorded in the aforementioned register. If a scientific investigation is required to determine the misuse of the electronic record during its transmission, the Court shall order such an investigation.

67.3. Upon receiving the sealed packet in proper condition, which contains the electronic record containing sexually explicit material, it shall be presented before the Judicial Officer without delay. In the presence of the Judicial Officer, the packet shall be securely placed in a locker or chest, and the keys shall be Kept either by the Judicial Officer or the Chief Ministerial Officer.

67.4. The time, date and details such as which officer placed the packet in the locker/chest, etc., shall be recorded in the aforementioned register.

67.5. If the Court receives any request for the examination of the electronic record by any authority, the packet shall be removed from the locker/chest in the presence of the Judicial Officer. Details regarding the time, date, and the officers who handled the material shall be noted in the said register.

67.6. The sealed packet containing the electronic record shall be further packaged within the Court without causing any damage to the sealed packet. An outer label shall be affixed, noting ‘Sexually Explicit Material (SEM)’ in luminous red ink.

67.7. The details of transmission for examination, including the date, time, destination authority, the officer through whom it was transmitted, etc., shall be recorded in the aforementioned register.

67.8. When the examining authority returns the electronic record after examination, it shall be sent to the Court in a sealed packet, following the same procedure detailed above. The date and time of receipt shall once again be entered in the register. The sealed packet, along with any additional electronic records created by the examining authorities containing sexually explicit materials, shall be deposited in the locker/chest in the presence of the Judicial Officer in a similar manner.

67.9. No copies of such sexually explicit electronic records, including newly created electronic records as a result of scientific examination, shall be provided to any person, including the accused, in the said case.

The Court may allow the accused or their lawyer to view them under the conditions mentioned hereafter:

(a) Permission to view the electronic record in camera shall be granted by the Court only based on an order passed by the Court upon a petition for the same filed either by the prosecution or the accused. The Court shall aim to minimize instances of playing the electronic records, and all applications filed may be considered together, with a single opportunity made available for viewing by all petitioners together. The Court shall not entertain further applications except in exceptional situations, for which the Court must record reasons before granting such permission. In cases with multiple lawyers for any accused, only one among them shall be allowed to view the electronic record.

(b) The electronic record shall only be accessed by experts from the examining authority, and these experts shall take sufficient precautions to maintain the authenticity of the electronic records, including their hash value, despite viewing. If duplications of such electronic records are created during scientific examination, and the contents are identical, only the duplicated copy, such as a pen drive or CD, need be allowed to be viewed.

(c) The Court shall take sufficient precautions to ensure that no equipment or secret devices are used by any person present while playing the electronic record, as ordered, which could enable the copying, destruction, or mutilation of the contents of the electronic record.

(d) The Court shall record detailed proceedings regarding the viewing/playing of the electronic record, including the participants’ details, date, time, details of experts present, and the measures adopted to preserve the authenticity of the electronic document.

(e) The date, time, and details of the proceedings shall also be entered in the aforementioned register.

(f) Upon the finality of the case, including any appeals, the Court shall send the electronic record to the examining authority for permanent destruction. The Court shall obtain a detailed destruction report from the examining authority or a similarly notified authority. This report shall be retained by the Court as a permanent record, with the report's details entered into the aforementioned register. The transmission for destruction, along with the necessary order for such destruction, in respect to the electronic document shall follow the same procedure as detailed above for its examination.

(g) The Judicial Officer shall not permit any Court officer to remove electronic records containing sexually explicit materials from the chest without a special order, and the details of this order shall be recorded in the special register mentioned above. The electronic record shall only be removed from the chest for trial, hearings, or any other trial-related matter upon a special written request from the prosecution or defense, or for any purpose deemed necessary by the Court based on a written order. Once the electronic record is removed from the chest, the Judicial Officer shall take suitable measures to ensure that any Court staff does not misuse it while the packet is unsealed.

Measures to be adopted by the Examining Authorities

68. The Examining Authority shall maintain a register of electronic records containing sexually explicit materials to record such electronic record's receipt, return, or destruction.

68.1. The Examining Authority shall receive the sealed packets only after confirming that the sealed packet is received without tampering with its seals. The packets marked Sexually Explicit Material, shall be stored in lockers/chests after making proper entries in the aforementioned register. If there is any evidence of tampering with the seals or suspicion thereof, it shall be promptly reported to the Court for further instructions.

68.2. As and when the sealed packet containing Sexually Explicit Material is received, it shall be recorded in the register, providing details such as the time, date, the expert who conducted the investigation, and the examination period etc,.

68.3. The expert shall take sufficient precautions to ensure that no other person has accessed the electronic record while in his/her custody. If assistance from any other person is sought during the examination, the details of such persons shall also be entered in the aforementioned register.

68.4. If any additional electronic documents containing Sexually Explicit Material are created during the examination or analysis, the details of the same shall also be entered in the aforementioned register. These newly created electronic records shall be returned to the Court in separate sealed packets, each clearly labelled in luminous red ink to indicate that it contains Sexually Explicit Material. No such electronic records shall be sent along with the reports; reports and electronic records shall be sent to the Court in separate sealed packets.

68.5. If the examining authority takes any copies of the electronic records or mirror images, the details of the same may also be entered in the aforementioned register. The examining authority shall securely store these copies in safe lockers for future examination purposes, and they shall be forwarded to the Court as detailed above, if ordered by the Court.

68.6. If any sexually explicit electronic record or any part or extractions from it are forwarded to any other division of the examining authority for examination, the internal transmission to such division shall be recorded in the aforementioned register. The same procedures shall be followed in such internal transmission to preserve the authenticity and secrecy of such electronic records.

68.7. If any electronic record containing Sexually Explicit Material is received for destruction, it may be destroyed without providing any opportunity for copying or extraction. The procedure and proceedings regarding the destruction shall be reported to the Court. 68.8. The head of the department of the examining authority shall pay special attention to ensure that its officers follow the aforementioned directions without any lapses. 69. Before parting with this judgment, I would wish to request the Central and State Governments to formulate necessary rules for the safe handling of electronic records containing sexually explicit materials.

68. The Examining Authority shall maintain a register of electronic records containing sexually explicit materials to record such electronic record's receipt, return, or destruction.

Wednesday, November 29, 2023

Supreme Court reverses acquittal order of Justice Dharnidhar Jha, Patna High Court in double murder accused Prabhunath Singh case

On September 1, 2023, the Supreme Court's bench of Justices S K. Kaul, Abhay S. Oka and Vikram Nath pronounced its 8 page long sentencing order in Harendra Rai v. State of Bihar after delivering its 143 page long judgement on August 18, 2023 in the case of an offence committed in the year 1995, almost 28 years old. The Court did not deem it appropriate to award death sentence to Prabhunath Singh, a political leader and a sitting Member of Parliament at the time of offence. He is a four time MP. The Court awarded imprisonment for life to him under Section 302 of Indian Penal Code (IPC) along with fine of Rs.20 lakh. He has been awarded 7 years rigorous imprisonment under Section 307 IPC along with fine of Rs.5 lacs. Both the sentences are to run concurrently.

Justice Vikram Nath pronounced the judgment for the Bench comprising of Justices Kaul, Oka and Nath. Disposing off the Appeal, the sentencing order states that the acquittal of Prabhunath Singh recorded by the Trial Court and the High Court was reversed vide judgment dated August 18, 2023 and he was convicted under Section 302 and 307 of the Indian Penal Code, 1860. The Criminal Revision Petition was initiated by the High Court exercising its suo motu power in the light of the minutes recorded by the Inspecting Judge of Patna Judgeship on May 4, .2009 and resolution of the Standing Committee dated July 14, 2009.

By doing so it has established the incorrectness of the 19 page long judgment and order dated February 2, 2011 passed by Justice Dharnidhar Jha, the single judge of the Patna High Court in Criminal Revision Petition No. 1345 of 2009, whereby the said Revision Petition was dismissed confirming the judgment of the Additional Sessions Judge, Fast Track Court III, Patna dated October 24, 2008 passed in Sessions Trial Nos. 469 of 2007 and 470 of 2007, acquitting Respondent Nos. 2 to 8 of all the charges. Justice Jha was seized with the judgment dated October 24, 2008 passed by the Presiding Officer, Fast Track Court III, Patna in S.T. Nos. 469 and 470 both of 2007 arising out of Panapur P.S. Case no. 62 of 1995 by which the learned trial judge acquitted the respondent nos. 1 to 7 of the charges under sections 147, 148, 302, 307/149 and 302/149 IPC and section 27 Arms Act because "the prosecution has totally failed to bring the charges home against them." Concluding his judgement and order, Justice Jha had said, "the revision petition is merit-less and the same is hereby dismissed as I could not find out any element of perversity afflicting the judgment. The view which was taken by the learned trial judge was the most probable view." The Patna fast track court had acquitted Prabhunath Singh and six others for lack of evidence in double murder case of 1995. By now it is amply clear that Supreme Court does not approve of his view and the view taken by the Additional Sessions Judge, Fast Track Court III, Patna.

The prosecution version, as recorded in the FIR in the statement of Rajendra Rai, narrated that the informant along with eight-nine other persons of his village was returning after casting their vote in the election on 25.03.1995 at around 9AM; when they reached south east of his residence, five persons came in a car armed with rifles and guns and stopped the car; Prabhunath Singh, who was the contesting candidate for Bihar People’s Party (BPP), while sitting in the car enquired as to whom all of them had cast their votes; the informant answered that they had cast their votes in favour of Janta Dal Party having symbol of Chakrachap; on hearing this, the car moved towards south and stopped at a little distance.

Prabhunath Singh opened fire from his rifle pointing towards the informant and others and thereafter the car sped away. As a result of the firing, three persons got injured. On the basis of the FIR, investigation was taken up. Inspection was made of the spot of occurrence. Three used cartridges were recovered from the place of occurrence, they were sealed and a recovery memo was prepared. The Investigating Officer recorded the statement of the witnesses. The injured were provided medical treatment, the doctor prepared the injury report and after two of the injured expired, the post-mortem reports of the two deceased persons were also prepared. Daroga Rai died soon after the incident and his post-mortem was conducted on March 26, 1995. Rajendra Rai died after about five months on 21.08.1995 and his post-mortem was conducted on August 22, 1995.

As Prabhunath Singh was avoiding the arrest, nor was he surrendering as he was the member of the ruling party. The District Magistrate, considering the amount of influence being yielded by the accused, found that it was not feasible to conduct the cases in District Saran at Chapra and hence recommended the transfer of all the six cases to Hazaribagh. In all these cases Prabhunath Singh was an accused. The transfer was approved by the High Court. However, later in the year 2000, upon re-organization of the State of Bihar, as Hazaribagh fell in the State of Jharkhand, the present trial was transferred to District Bhagalpur in Bihar. After 11 years that charges could be framed by the Trial Court on March 26, 2006 against all the accused for offences under various Sections of IPC. On October 24, 2008, the Trial Court acquitted all the accused in both the Sessions Trials bearing no. 469 of 2007 and 470 of 2007. There was no challenge to the judgment of acquittal by the State.

In its judgement, the Court takes note of the blunder committed by Prabhunath Singh in getting the court witness, Lalmuni Devi, mother of deceased Rajendra Rai abducted ten days before the date fixed for recording her statement. This led to filing of a Habeas Corpus Petition Cr.WJC No. 717 of 2006, Harendra Rai Versus State of Bihar before the High Court. A report submitted by the Inspecting Judge as a result of an unruly incident which occurred in the Trial Court on the date Lalmuni Devi-deposed before the Trial Court and another report of the Inspecting Judge commenting upon the judgment of acquittal by the Trial Court. The Supreme Court records: "the trial proceeded but again in a most shabby manner, not even complying with the directions of the High Court. The Special Public Prosecutor for the State, instead of getting the witnesses examined before the Court, filed affidavits on their behalf reiterating their earlier statements."

The Division Bench of Patna High Court which included Justice S.P. Singh had three materials before it namely affidavit of Lalmuni Devi, her statement recorded by the Magistrate on November 20, 2006, the reports of Dr. D,N. Gautam, Additional Director General of Police dated November 30, 2006, December 16, 2006 and January 22, 2007 and the enquiry report by Justice C.K. Prasad, the Inspecting Judge, Bhagalpur dated February 21, 2007. It had rejected the submissions of teh Advocate General and Vindhya Kesari Kumar, senior counsel appearing for Prabhunath Singh as being without any substance or merit.

It emerged that Lalmuni Devi had been abducted along with her husband by Dina Nath Singh (brother of Prabhunath Singh) and Chotelal, MLA from Parsa. She was asked by the abductors to change her statement and if she would not do the same, then Prabhunath Singh would kill her other son (Harendra Rai) as well. She also described how she was taken to Court room where the incident took place in which the men of Prabhunath Singh assaulted her son, daughter-in-law and son-in-law who wanted to take her with them. The Judge was sitting in Court and in his presence her family members were assaulted but the Judge said nothing. She was also threatened that she would also be killed. She was again taken by Prabhunath Singh and his men from the Court on November 3, 2006. She also stated that she had not given any statement on November 3, 2006 and only her thumb impressions were taken as she was frightened and afraid that she might lose her other son, daughter-in-law and son-in-law who were being continuously assaulted. It was after three-four days that she reached her home. She also narrated in her statement in the enquiry report about the working of Prabhunath Singh and that he was again preparing to get her abducted. Dr. D.N. Gautam, the Additional Director General of Police, had condemned the report of D.I.G., Saran range, Chapra in his report. He had concluded the report by observing that the investigation of the two cases was quite casual and the supervision and control of the investigation was also pitiable. He had also recorded the statements of Lalmuni Devi and Rama Rai which was again reproduced in the order and the same is not being repeated as it is more or less the same as recorded above. Dr. Gautam in his report also commented that the sequence of events started only after the application under Section 311 CrPC was allowed and Lalmuni Devi was called as a court witness on November 3, 2006.

It may be recalled that when CRLMP. No. 5711, the Special Leave to Appeal (Criminal) was filed in the Supreme Court in 2012 arising from the judgement and order of Patna High Court dated December 2, 2011 in CRRP No.1345/2009 (Harendra Rai v. State of Bihar, upon hearing the bench of Justices H. L. Dattu and C. K. Prasad passed an order saying, "List before a Bench of which Hon’ble Mr. Justice C.K.Prasad, is not a Member".

Notably, Justice C.K. Prasad was the Inspecting Judge of the judgeship who called for reports and ordered an enquiry in the matter of "newspaper report about the fracas created in the Court of 7th Additional Sessions Judge, Bhagalpur while the court proceedings were going on" in the case pertaining to Prabhunath Singh. After a thorough and painstaking enquiry, Justice Prasad gave a report on February 21, 2007 noting the circumstances in which the trial arising from Masrakh (Panapur) P.S. Case No.62 of 1996, that should normally have taken place at Chapra, was first transferred to Hazaribagh and when as a result of the bifurcation of the State Hazaribagh fell in Jharkhand, it was brought to Bhagalpur. After taking into account the reports submitted by the District and Session Judge, the 7th Additional Sessions Judge, the Public Prosecutor, statements of witnesses and the report of Dr. D.N. Gautam to whom he entrusted the enquiry. In his report Justice Prasad found and held that “I do not have the slightest hesitation in endorsing the reports of the District and Sessions Judge, Bhagalpur as also the Additional Director General of Police that the witness Lalmuni Devi was not produced under proper security. She was frightened and under heavy stress prior to her examination. She was intimidated inside the Court room prior to her examination. She was not normal and the Court atmosphere was highly tensed and abnormal. The materials on record led him to conclude that evidence of Lalmuni Devi cannot be said to have been voluntarily made. I am of the considered opinion that had the Presiding Officer of the Court exercised little discretion, this untoward incident ought not have taken place. The Presiding Officer of the Court having found that the witness was not looking normal and, in fact, looking frightened and having not been produced under proper security, he ought to have taken these facts seriously and prevented deflecting the Court of Justice. The direction of this Court to record evidence cannot be construed to mean that the Court was obliged to record her statement despite the fact that she was produced without proper security. I am of the opinion that the Presiding Officer of the Court had also failed miserably in the matter."

The said Habeas Corpus Petition was decided by the Division Bench of the Patna High Court on March 13, 2007. The charges could be framed only on May 26, 2006 by the Presiding Officer of Fast Track Court II, Bhagalpur. By order passed by the High Court in Cr.W.J.C. No. 717 of 2007, the trial was again transferred from Bhagalpur to Patna with five directions which are contained in paragraph 2 of the impugned judgment. After the judgement, the actual proceedings started on June 13, 2008 before the Trial Court at Patna. The trial was re-heard and the witnesses who had been examined by the Additional Sessions Judge, Bhagalpur were also recalled or reproduced for their evidence.

Notably, the Trial Court did not find it necessary to summon the Investigating Officer. Ten witnesses were examined by the prosecution in support of the charges but the I.O. of the case or the officer who had recorded the fardbeyan of one of the deceased Rajendra Rai, was not examined. Rajendra Rai (informant) who had died in Patna Medical College Hospital (PMCH) and the doctor who had held postmortem examination, i.e., Dr. B.D. Prasad, a doctor of PMCH was not examined.

Lalmuni Devi's second statement was recorded on September 29, 2008. After the incident on 25.03.1995 at about 9 A.M., the three injured were taken to the State Hospital Camp, Panapur. The Fard Bayan was registered on the oral statement given by one of the injured (later deceased) Rajendra Rai as recorded by Sub-Inspector N.N. Thakur at 10.30 AM. The said Fard Bayan was signed by the injured Rajendra Rai, two witnesses Narendra Singh, Sanjiv Kumar Singh and by the officer in-charge, Panapur Police Station, Camp Panapur. The Fard Bayan also bears the endorsement of Sub-Inspector N.N. Thakur forwarding it to the Police Station In-charge Masrakh under Sections 147, 148, 149, 307 IPC and Section 27 of the Arms Act for registering the report. Contents of the Fard Bayan have already been reproduced in the earlier part of this judgment. On its basis, FIR was registered at P.S. Panapur as Case No. 62 of 1995 on March 26, 1995. The FIR contains endorsement of various authorities and Courts of its perusal. It also bears the endorsement that Section 302 IPC was added on March 30, 1995.

The Supreme Court refers to Latin Maxim “qui facit per alium facit per se” means "he who acts through another, acts himself" to conclude that the abduction was the work of Prabunath Singh.

The conclusions recorded in the judgement is based on analysis of the evidence in the light of the legal position which is as follows:
a) Fard Bayan of Rajendra Rai, which was later converted into an FIR, is admissible in evidence and is to be read as a dying declaration or his last statement.
b) The tainted investigation shows the high-handedness of the accused-Prabhunath Singh, who was a powerful person, being a sitting M.P. of the Ruling Party.
c) The prosecution had established, even through the hostile witnesses, that the date, time, and place of incidence as given in the Fard Bayan of Rajendra Rai were fully established. The only issue was with regard to the identity of the assailants.
d) The post-mortem reports, show that the death of Rajendra Rai and Daroga Rai was homicidal in nature. The medico legal reports supported the prosecution’s story to the extent that the injuries were caused by a fire arm, which proved fatal for two out of the three injured.
e) Adverse inference against the accused is drawn in view of their subsequent conduct.
f) Judicial notice is taken of the judgment in the Habeas Corpus petition dated July 13, 2007 regarding the conduct of the accused, the investigating agency, the Public Prosecutor and the Presiding Officer conducting the trial.
g) The two administrative reports of the respective judges, who were constitutional functionaries, also have to be given due credence and cannot be ignored outright regarding the conduct of the accused, public prosecutor and the Presiding Officer conducting the Trial.
h) The statement of Lalmuni Devi is found to be reliable, and the Courts below wrongly discarded it on the ground that it was hearsay and tutored.
i) The dying declaration and the statement of Lalmuni Devi fully establish that it was Prabhunath Singh, who had caused the injuries from his firearm weapon, which proved to be fatal for two out of the three injured and also caused injury to the third surviving injured, namely Lalmuni Devi.
j) Prabhunath Singh is thus liable to be convicted under Sections 302 and 307 IPC for committing culpable homicide amounting to murder and attempt to murder.
k) The rest of the accused, although named in the chargesheet after due investigation, since their names were not reflected either in the Fard Bayan of the deceased Rajendra Rai (dying declaration) or in the statement of CW-1, therefore, their acquittal is not disturbed.

The judgement concluded that the accused-respondent no.2 is convicted under Sections 302 and 307 IPC for the murders of Daroga Rai and Rajendra Rai and also for attempt to murder of injured Devi. The Secretary, Department of Home, State of Bihar and the Director General of Police, Bihar were directed to ensure that Prabhunath Singh was taken into custody and produced before the Court for hearing on the question of sentence in view of Section 235 of Criminal Procedure Code on September 1, 2023. On Auguts 25, 2023, Prabhunath Singh was permitted by the Court to appear virtually through video conferencing for hearing on question of sentence, instead of the physical appearance. His prayer to permit him to appear virtually was allowed considering his health conditions and the fact that he was already undergoing life sentence in another murder case. His Crl.M.P.No.169246 of 2023 was allowed for him present virtually from jail.

The sentencing order dated September 1, 2023 observes that Section 357 of the Code of Criminal Procedure, 19732 provides that whenever fine is imposed as a sentence, the Court may while passing the judgment, order the whole or in part of the fine recovered to be applied as per clauses (a) to (d) of sub-section (1) thereof. Clause (a) provides for defraying the expenses incurred in the prosecution. We are not inclined to grant any such expenses to the State considering the fact that the State in fact did not prosecute the case fairly, rather throughout assisted the accused. Clause (b) and (d) also will have no application, however, under clause (c) considering the conduct of accused no.2, further the mental, physical, and financial damages suffered by the victim’s family, the two deceased and the injured, we direct that the fine awarded to be paid as damages in the following manner:
a) We award damages of Rs.10 lacs each to the legal heirs of two deceased Rajendra Rai and Daroga Rai. The Trial Court will get a preliminary enquiry conducted with regard to the legal heirs of the two deceased and the amount will be disbursed to the legal heirs as per the law of Succession.
b) Similarly, the amount of fine awarded under section 307 IPC of Rs.5 lacs would be disbursed in the same manner by the Trial Court to the victim if she is alive and if not, to her legal heirs.

It also directed that "Considering the conduct of the State as noticed in the judgment dated August 18, 2023 and also the amount of trauma and harassment faced by the victim’s family, we are of the view that in addition to the damages awarded under section 357 CrPC further compensation be awarded under section 357-A CrPC. The State of Bihar will compensate the legal heirs of the two deceased and the injured if alive otherwise her legal heirs in the like amount of the fine Criminal Appeal No. 1726 of 2015 awarded above i.e. Rs.10 lacs each to the legal heirs of the deceased Rajendra Rai and Daroga Rai and Rs.5 lacs to the injured Smt. Devi or her legal heirs, as the case may be. The amount so deposited will be disbursed in the same manner as provided above for disbursement of the damages under section 357 CrPC."

It further directed that the amount of fine and compensation is to be deposited with the Trial Court within two months from today failing which the same shall be got recovered as arrears of land revenue by the Trial Court.

The compliance report is to be submitted to the Supreme Court by the Trial Court within four months. The Registry is required to circulate the compliance report within the time allowed and the matter is going to be listed with office report for directions.

Wednesday, November 8, 2023

Supreme Court censures conduct of NCLAT's Judicial Member Rakesh Kumar, accepts the apology of Alok Srivastava, NCLAT Technical Member

On October 30, 2023, Supreme Court's Bench headed by the Chief Justice of India censured the conduct of Rakesh Kumar, Judicial Member, National Company Law Appellate Tribunal (NCLAT) and accepted the unconditional apology of Alok Srivastava, Technical Member, NCLAT in the case under Contempt of Courts Act.

The Court's order reads: "We have, therefore, no manner of doubt that the Bench of the NCLAT has acted
in willful defiance of the order despite the fact that its attention was drawn to the order of this Court.The Member (Technical) has tendered an unconditional apology stating that control over the procedure of the Court, particularly on matters which are mentioned rests with the Member (Judicial) who has training and experience in judicial matters. Bearing in mind the unconditional apology which has been tendered before this Court we do not wish to take this matter to a further stage having held that there was a breach of the order of this Court. We are of the considered view that the matter should be allowed to rest there by accepting the apology of the Member (Technical)."

The order states, "As regards the Member (Judicial) we have already noted in the previous order of this Court that what has been stated is contrary to the record. We find that this has been compounded by what has been stated in the affidavit filed tendered before this Court in pursuance of the previous order. Paragraph 10 of the affidavit of the Member (Judicial) takes note of the fact that when some counsel tried to mention the matter, neither any order of the Supreme Court was filed with the Registry or with the Court Master nor was any order handed over to the Bench by the parties before assembling of the Bench. The affidavit further states that following the practice of the NCLAT, the deponent did not entertain any attempt at mentioning by the counsel and that the order of this Court dated 13 October 2023 was not on the record before the Bench presided by the deponent on 13 October 2023. What the affidavit does not state is that a conscious effort was made by the Bench to prevent the order of this Court being placed on the record despite the fact that the court was apprised of the passing of the order by this Court in the morning session. We censure the conduct of the Member (Judicial). We would rest the matter at that level."

The order further states, "As regards, the Scrutiniser (Mr VM Birajdar), it is evident that in the order of this Court dated 26 September 2023, there was a clear direction that the interim order passed by the NCLAT on 21 September 2023 would stand vacated. There was a further direction that any action that would be taken in pursuance of the result of the AGM would be subject to the pending appeal. The Scrutiniser was duty bound to implement the order of this Court. Instead, what emerges from the record was that after the order dated 26 September 2023, the AGM took place on 29 September, 2023. The Court is apprised of the fact that a limited window was made available on 29 September 2023 for those who wished to vote to do so. At 5.55 PM on 29 September 2023, an email was addressed by the Scrutiniser to the Company Secretary of Finolex Cables Limited seeking a legal opinion about the manner in which the votes which were cast at the AGM would have to be treated. By then, voting had concluded on 28 September 2023. The Scrutiniser states that a legal opinion was obtained by the company on the basis of which he took steps to withhold the result of the AGM. The beneficiary of this action was Mr Deepak Kishan Chhabria, who was then acting as Chairman-cum-Managing Director."

The order concludes: "We have no manner of doubt that the Scrutiniser has acted in concert with Deepak Kishan Chhabria to delay the declaration of the result of the AGM, effectively in breach of the directions that were issued by this Court on 26 September 2023. We are of the view that such action by commercial interests must be dealt with firmly so as to serve a clear reminder that the process of this Court cannot be allowed to be misused for partisan purposes in commercial disputes involving warring factions. We accordingly order and direct that Mr Deepak Kishan Chhabria shall pay a sum quantified at Rs One crore to the Prime Minister’s Relief Fund within a period of four weeks from the date of the order. Mr V.M. Birajdar shall pay a sum quantified at Rs Ten lakhs to the Prime Minister’s Relief Fund within a period of four weeks."

Prior to concluding, the order states that "we record the statement of Mr P.S. Patwalia, senior counsel appearing on behalf of the Member (Judicial) that the Member (Judicial) has tendered his resignation from office by a letter addressed to the Chairperson of the NCLAT and to the Secretary, Ministry of Corporate Affairs today. The Scrutiniser has tendered an unconditional apology through Mr Khambata. Mr. Deepak Kishan Chhabria has also tendered an unconditional apology through Mr Shyam Divan, senior counsel. Since the proceedings are being closed, we reiterate the directions which were issued in the earlier order of this Court setting aside the judgment which was delivered by the Bench of the NCLAT on 13 October 2023. The proceedings in the appeal shall now be listed before a Bench presided over by the Chairperson of the NCLAT for hearing and final disposal of the appeal."