Lessons from "Judges Against Justice: On Judges When the Rule of Law is Under Attack"

The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

- Basic Principles on the Independence of the Judiciary, adopted on September 6, 1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan, Italy

 A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

 -The Bangalore Principles of Judicial Conduct, 2002 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at The Hague, November 25-26, 2002

Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

A Judge should practice a degree of aloofness consistent with the dignity of his office

- From RESTATEMENT OF VALUES OF JUDICIAL LIFE (As adopted by Full Court Meeting of the
Supreme Court of India on May 7, 1997)

In order to combat despotism, Montesquieu's The Spirit of the Laws argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others.This book is the key reason why all democratic constitutions provide for separation of powers between legislature, judiciary and executive. 

Unlike India, the Union of States, United States of America (USA) has a Senate Judiciary Committee which was established in December 1816. It is a Committee of 21 Senators. This Committee has a Subcommittee on Separation of Powers besides six other Subcommittees on Constitutional amendments; Oversight of the Civil Rights Division of the Department of Justice; Enforcement and protection of constitutional rights; Statutory guarantees of civil rights and civil liberties; Separation of powers; Federal-State relations; and Interstate compacts. Prior to that a select committee of eight US Senators was appointed one day after the US Senate first convened in 1789 to draft what would became the Judiciary Act of 1789. The select committee was tasked with drafting what would become the Judiciary Act of 1789. The fact remains delegates to the Constitutional Convention of 1787 had not provide d for congressional committees when they drafted the Constitution of the USA.

Once upon a time there was one Sir Edward Chamier, Patna High Court's 1st Chief Justice who kept the judiciary separate from the executive. He refused to invite Viceroy Lord Hardinge and Bihar Lt. Governor Sir Edward Gait. Notably, he involved only judges in the Court's opening ceremony on March 1, 1916.

While reading Judges Against Justice: On Judges When the Rule of Law is Under Attack (2015), a book by Hans Petter Graver of Faculty of Law, University of Oslo, Norway, one was reminded of Looking Back: the autobiography of Mehr Chand Mahajan, former Chief Justice of India (1963). 

The latter recalled how the first Chief Justice of Patna High Court had refused to allow the Lieutenant Governor of Bihar to perform the opening ceremony of the  Patna High Court on March 1, 1916 unlike what happened at the Lahore High Court at its inauguration on April 1, 1919. Sir Michael O'Dwyer, the then Governor of the Punjab presided at the ceremony and administered the oath of office to Sir Henry Rattigan, the first Chief Justice the Lahore High Court. He wrote: "It is a sad commentary on the Punjab Bench and the Bar where the Lieutenant Governor not only presided at the function, but used it to proclaim the 'higher' status of the executive in the Punjab." At the tea party in the evening in the  spacious lawns of the Lahore High Court, he happened to be sitting at the same table with Sir Michael O’Dwyer. During the talk he said that he was strong enough to put a stop to any agitation that might take place in the Punjab. 

This observation of Rattigan assumes significance in the backdrop of agitation against The Anarchical and Revolutionary Crimes Act of 1919 (Rowlatt Act), a repressive legislation enacted during the tenure of Viceroy Lord Chelmsford. It was aimed at curbing seditious activities, through independent tribunals against whose decision lay no appeal, and before whom the accused had no right to be legally represented. It gave the Colonial Government the right to arrest and detain any suspected person without a warrant. The provisions of the Rowlatt Act were a continuation of many provisions of the Defence of India Act of 1915. He recalled that Mahatma Gandhi had proclaimed a plan for a countrywide protest against their passage. As he was boarding the train which was bringing him to Lahore he was arrested. The news of his arrest stunned the Punjab and a hartal was immediately organised in most of the big cities in the Punjab. The atrocities during the Martial Law-regime that followed in the Punjab showed that judiciary acted as an extended arm of the executive. It paved the way for the massacre at Jalianwala Bagh on the April 13, 1919 and a regime of terror never before witnessed since the days of the first war India's independence in 1857. Justice Mahajan recalled Lala Har Kishan Lai was defended by Sir Hassan Imam, a great lawyer from Patna although the trial of the leading personalities of Lahore who were put behind the bars by a Tribunal was a farce. The Tribunal was presided over by Justice Lesli-Jones. Notably, Sir Henry Rattigan, then the Chief Justice of the Punjab Chief Court and Justices Shadi Lai, Chevis, Lesli-Jones, Broadway,  and Le-Rossignal were the prominent judges. 

Notably, a meeting presided over by Mazharul Haque at the Qila Maidan, Patna decided the program for April 6, 1919. A 24-hour fast was to be observed, and all other work was to be suspended for the day. Sir Syed Hasan Imam led the peaceful procession as part of the ‘Satyagraha Day’. In December 1919, the colonial government abandoned the Rowlatt Act. A proclamation issued by the the King issued granted a royal amnesty to those who had been jailed or detained for political crimes and commuted the sentences of those who had less than a year to serve. It is evident that judiciary did not have the autonomy to act against the unjust measures of the government. It acted as if it was an extended arm of the executive.

Sir John Douglas Young, a retired Judge of the Allahabad High Court wrote: "The separation of the Executive from the Judiciary has been for years, and continues to be, one of the crying needs of India. No government, British, Indian or Congress, wishes to part with the power over the lives and fortunes of those they govern, given them by control of the magistracy. Various reasons are given for not transferring the magistracy to the high court- all of them without substance. The principal objection is said to be on the ground of expense. There is now foundation for this objection. Some magistrates already do little or not judicial work; they can remain under Government. The residue, taking all the judicial work, can be transferred to the high Court with power to Government to call upon their services in an emergency."

He added: "Before Congress Government took over power in most of the provinces under the new constitution of 1935, no individual or body was louder in their cries for the separation of the Executive from the Judiciary than Congress. They alleged, possibly with some justification, that members of their party had suffered from the ability of government under the existing system to imprison their opponents. I had talked to many of my friends in Congress of this subject, and found them unanimous that this ancient abouse should cease. "Only let Congress govern this country" I was told "and you will wee how this iniquitous arrangement will at once come to an end". On this ground I welcomed the advent of Congress as rulers in 1937. I was doomed to disappointment: not one of the Congress Provincial Governments could bear to part with power. The subordinate judiciary, in criminal matters, remained bound to the Executive." Allahabad High Court has published the views of Sir John Douglas Young. Justice Satish Chandra, former Chief Justice of the High Court, Allahabad and Calcutta cited these views in his essay.

Graver's book explores the situations under which judges have to function in the face of systematic erosion of the ideals of the rule of law. It grapples with questions like: What happen when states become oppressive and the judiciary contributes to the oppression. How can one evaluate the actions of judges who contribute to oppression from a legal point of view. How can one understand their participation in oppression from a moral point of view. In the face of the emerging trend of tribunalisation and executivisation of the judiciary in India since the 1980s, the lessons of the book assumes huge significance.

 

Temporary employees with characteristics of regular government servants cannot be denied pension: Supreme Court

In Rajkaran Singh Vs. Union of India, Supreme Court's bench of Justices Hima Kohli and Sandeep Mehta set aside the judgement of the Delhi High Court's Division Bench of Justices Vipin Sanghi and Deepa Sharma whereby it had dismissed the appellants' writ petition and had upheld the judgement of the Central Administrative Tribunal (CAT), Principal Bench, New Delhi. The Tribunal had rejected the appellants’ claim for benefits of the replacement scales of the Revised Pay Rules, 2008 in accordance with the 6th Pay Commission Report, with effect from January 1, 2006. The High Court's judgement was authored by Justice Sanghi. Prior to that the case was heard by Tribunal's bench of V. Ajay Kumar, the Judicial Member and Dr. B.K. Sinha, the Administrative Member. Its judgement was authored by Dr. Sinha. 

Applying the principles laid down by the Supreme Court in several cases to the case at hand, the Supreme Court found "compelling evidence on record which establishes that the appellants meet the characteristics of regular government servants. Admittedly, the appellants were appointed on a regular pay scale. This factor strongly indicates a formalised employee-employer relationship akin to permanent government employees." Its judgement reads: "The mere classification of employees as 'temporary' or 'permanent' is not merely a matter of nomenclature but carries significant legal implications, particularly in terms of service benefits and protections." The judgement was authored by Justice Mehta.

It found that "In the present case, the totality of circumstances indicates that despite their formal classification as temporary employees, the appellants' employment bears substantial hallmarks of regular government service. The denial of pensionary benefits solely on the basis of their temporary status, without due consideration of these factors, appears to be an oversimplification of their employment relationship with the government. This approach runs the risk of creating a class of employees who, despite serving the government for decades in a manner indistinguishable from regular employees, are deprived of the benefits and protections typically accorded to government servants." It concluded: "we are of the opinion that the denial of pensionary benefits to the appellants is not tenable or justifiable in the eyes of law as the same is arbitrary and violates the fundamental rights as guaranteed by Articles 14 and 16 of the Constitution of India. It is indeed relevant to note that the appellants’ batch seems to be the last in their genre of SSD Fund temporary employees and thus, manifestly, the direction to extend the benefits of the 630 the RP Rules to the appellants shall not form a precedent so as to have a detrimental effect on the financial health of the SSD Fund." 

The Court observed: "we are of the view that the impugned judgment rendered by the High Court does not stand to scrutiny and the same is unsustainable in the eyes of law and is set aside. The respondents are directed to extend the benefits of the 6th Central Pay Commission including the pensionary benefits under the Revised Pay Scale Rules, 2008 to the appellants herein in the same terms as are being afforded to their peers in the Accounts Section of SFF HQ Estt. No. 22."

Upon attaining the age of superannuation i.e., 60 years, the six appellants claimed pensionary benefits under the 6th Central Pay Commission. Rajkaran Singh, appellant No. 1 filed a representation to the Union of India through the Special Secretary, Cabinet Secretariat, New Delhi, the respondent No. 1 seeking pensionary benefits under the 6th Central Pay Commission on July 28, 2011. The pensionary benefit was rejected on October 15, 2012, on the ground that he was not a government employee and had not been appointed by following any Recruitment Rules. Therefore, the Central Civil Services (Pension) Rules, 1972 would not apply to him. Similar representations of the other appellants were also rejected based on the same reasoning. All the appellants were appointed to manage the Compulsory Saving Scheme Deposits (SSD) Fund of the Special Frontier Force (SFF) in various positions. 

Notably, the SFF was raised by the Intelligence Bureau in the immediate aftermath of the 1962 China-India war. An unavailable thesis by Kalsang Ringchen entitled "Special Frontier Force---Unveiling the Secrets" (2011) throws some light on SFF. 

Supreme Court's Division bench relied on the legal framework established by the Court in various landmark decisions in Ajay Hasia and Others Vs. Khaled Mujib Sehravardi and Others (1981) 1 SCC 722 and Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and Others (2002) 5 SCC 111. In Ajay Hasia and Pradeep Kumar Biswas cases, the Court dealt with determining whether a corporation could be considered an instrumentality of the state, the principles laid down therein provide valuable guidance in assessing the nature of employee-employer relationships.  

In Ajay Hasia case, the Court observed: “7. If a corporation is found to be a mere agency or surrogate
of the Government, “in fact owned by the Government, in truth controlled by the Government and in effect an incarnation of the Government”, the court, must not allow the enforcement of fundamental rights to be frustrated by taking the view that it is not the Government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the Government, it must be held to be an “authority” within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental rights as the Government. "

It drew on the Court's decision  in R.D. Shetty v. International Airport Authority of India (1979) 3 SCC 489 wherein the Court examined the question as to when a corporation can be regarded as an “authority” within the meaning of Article 12. The Court addressed itself to the question as to how to determine whether a corporation is acting as an instrumentality or agency of the Government and dealing with that question. It observed: “A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by Government not only in its policy-making but also in carrying out the functions entrusted to it by the law establishing it or by the charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of Directors or committees of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition there should be a certain amount of direct control exercised by Government and, if so, what should be the nature of such control? Should the functions which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of Directors appointed by Government though this consideration also may not be determinative, because even where the Directors are appointed by Government, they may be completely free from Governmental control in the discharge of their functions. What then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government? It is not possible to formulate an all-inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.” 

The Court proceeded to indicate the different tests, apart from ownership of the entire share capital. It observed: "There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller: The Constitutional Law of the ‘Security State’ [5 10 Stanford Law Review 620, 644]…. It may be noted that besides the so-called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram [(1975) 1 SCC 421] where the learned Judge said that ‘institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed Government agencies. Activities which are too fundamental to the society are by definition too important not to be considered Government functions'.”

The relevant tests gathered from the decision in the International Airport Authority case as follows:
“(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p.507, para 14)
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character. (SCC p. 508, para 15)
(3) It may also be a relevant factor … whether the corporation enjoys monopoly status which is State conferred or State protected. (SCC p. 508, para 15)
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15)
(5) If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16)
(6) ‘Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference’ of the corporation being an instrumentality or agency of Government.” (SCC p. 510, para 18)

The Court has established several tests to determine whether an entity can be considered an instrumentality or agency of the Government, and thus an "authority" under Article 12 of the Constitution of India in Ajay Hasia case. These tests include but are not limited to:
1. Extent of financial support from the government;
2. Deep and pervasive control of the government;
3. Functions performed are of public importance and closely related to governmental functions;
4. Entity enjoys monopoly status conferred or protected by the State;
5. The government department has been transferred to the entity.

In Pradeep Kumar Bishwas case, the Court has held that the tests laid down in Ajay Hasia case are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered in positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned.

In Vinod Kumar case, the Court observed: "the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time."

The Division Bench of the Supreme Court fully associated itself with this principle. It found that it was
wholly applicable in the present case.

Improper to discriminate among homogenous group of students: Supreme Court

Supreme Court's bench of Justices B.R. Gavai and KV. Viswanathan set aside the judgment of the Rajasthan High Court's Division Bench by which, the Division Bench dismissed the appeal of the appellant confirming the order of the Single Judge dated November 27, 2018. Justices Gavai and Viswanathan bench found that the Division Bench has erred in applying the Court's decision in Dinesh Chandra Damor vs. State of Rajasthan instead of applying the reasoning in the judgment in the State of Rajasthan vs. Ankul Singhal  and Rakesh Gaur vs. The State of Rajasthan delivered by the High Court to the facts of this case. 

In the case of Ankul Singhal, it was held that it will be improper to discriminate inter se among a homogenous group of students admitted for the academic session 2009-10. As was pointed out therein, it could not be that those students admitted in the first round of counselling would be eligible, even with less than 50% marks in graduation, while the others admitted in the subsequent rounds of counselling would not be. The Court observed: "It was on this reasoning that Rakesh Gaur (supra) was given relief. Rakesh Gaur (supra) was a case identically situated with the case of the appellant. What is sauce for the goose should be sauce for the gander too." 

In its concluding paragraph, the Supreme Court's judgement reads: "We direct the respondent-authorities to treat the appointment given to the appellant, pursuant to the interim order of the Division Bench dated 23.10.2021, as a regular appointment and after reinstating the appellant grant consequential benefits. We direct that except for the period the appellant actually worked, he shall not be entitled to any back wages. However, fitment of pay shall be granted." The judgement was delivered on September 10, 2024. It was authored by Justice Viswanathan.

High Court upholds judgment of acquittal by Additional Sessions Judge, Sitamarhi in POCSO case

On September 3, 2024, Patna High Court's Division Bench of Justices Jitendra Kumar and Ashutosh Kumar upheld the judgment of acquittal dated March 7, 2019 delivered by Additional Sessions Judge-Ist- cum-Special Judge (POCSO Act), Sitamarhi in Soni Kumar Vs. The State of Bihar. The Trial Court judge latter had acquitted Sanjiv Kumar Singh, the respondent No. 2 of charges framed under Sections 376 and 506 of the Indian Penal Code and Sections 4 and 12 of the POCSO Act. The Trial Court found that prosecution has failed to prove its case against the respondent no.2 beyond all reasonable doubts. The Trial Court found that the case of the prosecution is not supported by the medical evidence and there are material contradictions in the statements of the prosecution witnesses, entitling the accused to the benefit of doubts.

The Court endorsed the view that in case of appeal against acquittal, the principles required to be applied by the Appellate Court are somewhat different from those which are applied in case of appeal against conviction. In case of acquittal, Appellate Court is required to interfere only when the view taken by Trial Court is not reasonable one as per the evidence on record. Even if two views are possible and learned Trial Court has taken one view, the Appellate Court is not required to supplant the view of the Trial Court by another view. When the view taken by Trial Court is based on proper appreciation of law and facts, it does not require interference by the Appellate Court.

The Court relied on Supreme Court's decision in Harbans Singh v. State of Punjab, 1961 SCC OnLine SC 40, wherein it has been held that a court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.

It drew on Supreme Court's decision in Chandrappa Vs. State of Karnataka, (2007) 4 SCC 415. It has been held that an appellate court, must bear in mind that in case of acquittal, the presumption of his innocence is reinforced, reaffirmed and strengthened by the trial court and if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court.

It recalled Supreme Court's decision in Murugesan Vs. State, (2012) 10 SCC 383, wherein it has been held that so long as the view taken by the Trial Court is not impossible to be arrived at and reasons therefore, relatable to the evidence and materials on record, are disclosed any further scrutiny in exercise of the power under Section 378 Cr.PC was not called for. 

In H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581, Supreme Court has summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

In Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, Supreme Court has observed: “39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”

The High Court observed that it is pertinent to note that despite statutory provisions of Sections 29 and 30 of the POCSO Act, the prosecution is not absolved of its burden to prove that the alleged victim is a child i.e. below 18 years of age and he/she has been subjected to sexual assault by the accused and such foundational facts have to be proved by the prosecution beyond reasonable doubts and once the presumption is raised against the accused, the accused can rebut such presumption either by cross-examination of the prosecution witnesses or by leading evidence in his/her defence, on the touchstone of preponderance of probability. The presumptions are bats in law. They fly in a twilight, but vanish in the light of facts.

The Court examined question as to whether the prosecution has proved that the alleged victim was child i.e. below 18 years of age on the date of occurrence in terms of Section 2(1)(d) of the POCSO Act. It is one of the foundational facts to be proved by the prosecution, as it is a prerequisite for application of the POCSO Act against the Appellant. 

As per the statutory provision of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 and the binding judicial precedents, the age of the victim is determined on the basis of birth certificate of the school or matriculation or equivalent certificate, if available. In other words, if the victim is a student of school, the aforesaid certificates have precedence over other mode of proof regarding the age. In the absence of such certificate, birth certificate given by Municipal Authorities or Panchayat is required to be considered for determination of the age of the victim. In the absence of the aforesaid certificates, the age of the victim is required to be determined by ossification test or any other latest medical test. Any other proof is impliedly excluded from consideration for age determination of the victim. Here the following judicial precedents may be referred to; (i) Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263; (ii) P. Yuvaprakash Vs. State, 2023 SCC OnLine SC 846. 

The Court observed: "There is also contradiction regarding arrest of the Accused/Respondent No.2. As per the victim and her father, the accused was apprehended with the help of co-villagers and taken to the police station whereas this witness (IO) has deposed that on information he visited the place of occurrence and arrested the Accused. There is also contradiction in regard to lodging of the FIR. As per the father of the victim, the written statement was given to the police by the victim at the police station, whereas this witness (I.O.) has deposed that the written statement was given to him at the place of occurrence. We also find that the written report was written by the victim herself. But find that the signature of the informant and the content of the written report are in different handwriting showing that the written report was written by someone other than the informant and the informant had only put her signature on that."

The Court observed: As per the medical evidence, there was no external injury found on the person of the victim which could have been caused due to dragging of the victim by the accused/respondent no. 2 while taking her into the room, nor is any medical finding in support of the allegation of rape. Neither any injury nor any spermatozoa was found in the private part of the victim. Moreover, there are material contradictions in the statements of the prosecution witnesses. As per the victim, there was a door in the room where occurrence had taken place, whereas as per the I.O., there was no door in the room. There are also contradictory statements regarding how father entered into the room where occurrence had taken place. As per the testimony of the father of the victim, he first broke the door open and entered into the room, whereas as per the victim, father had entered into her room silently without making any noise. Even the testimony of the I.O. is full of contradictions regarding lodging of FIR and arrest of the accused."

The Court concluded: "In view of the aforesaid facts and circumstances together with the evidence adduced by the defence, there are reasonable doubts created in the prosecution case against the accused/respondent no. 2 and hence, learned Trial Court has acquitted the accused/respondent no. 2 giving him benefit of doubts. Hence, there is no scope for this Court to interfere in the impugned judgment supplanting the view of learned Trial Court by other view. The view taken by learned Trial Court is reasonable and possible one based on proper appreciation of law and evidence on record. The appeal is, therefore, liable to be dismissed." The judgement was authored by Justice Jitendra Kumar.

Patna High Court's Division Bench sets aside judgement of High Court's Single Judge Bench on law of limitation on delay

On law of limitation on delay, Patna High Court's Division Bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy allowed the appeal by the State of Bihar against the judgment of Justice Purnendu Singh dated November 2, 2023 passed in Dr. Sarju Prasad @ Sarjoo Prasad Vs. The State of Bihar. It set aside the judgement of the Single Judge Bench which condoned the delay. Besides the State of Bihar, the other appellants were: the Principal Secretary, Department of Health, Bihar, the Principal Secretary, Department of Finance, Bihar, the Director-in-Chief, Department of Health, Bihar and the Controlling Officer-cum-H.O.D., Bihar College of Physiotherapy and Occupational Therapy. Besides Dr Sarju Prasad, the Accountant General, Bihar was also a respondent. The careful reading of both the judgements show that both rely on relevant Supreme Court's decisions. If Dr. Sarju Prasad appeals against the decision, there is sufficient possibility of a favorable decision of the Supreme Court. 

The Division Bench relied on the decisions of the  Supreme Court in the cases of C. Jacob vs Director of Geology and Mining & Another; (2008) 10 SCC 115, State of Jammu & Kashmir vs R.K Zalpuri & Others; AIR 2016 SC 3006 and Surjeet Singh Sahni vs State of Uttar Pradesh & Others; (2022) 15 SCC 536. 

Notably, the Single Judge Bench had also relied on Supreme Court's decision in C. Jacob v. Director of Geology and Mining & Anr. reported in (2008) 10 SCC 115 on the maintainability of the writ petition on the ground of delay and laches. In the present writ petition, the original cause of action arose in the year 2002 when the petitioner had superannuated from the service and question raised by the respondent/s that a belated writ petition on account of delay and laches should be dismissed in limine. In this regard, it is relevant to refer the law laid down by the Apex Court. It has been held that the issue has been kept alive being continuing one the law of limitation on delay and laches will not apply. Besides the State of Bihar, the other respondents were: the Principal Secretary, Department of Health, Bihar, the Principal Secretary, Department of Finance, Bihar, the Director-in-Chief, Department of Health, Bihar, the Controlling Officer-cum-H.O.D., Bihar College of Physiotherapy and Occupational Therapy and the Accountant General, Bihar.

It quoted Justice A.L. Smith, who had observed that ““If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem. It seems to me that there was a connection in the present case between the series of acts before and after the action was brought they were repeated in succession and became a continuing cause of action. They were an assertion of the same claim-namely, a claim to continue to board sewage into the stream-continuation of the same alleged right. In my opinion, there was a continuing cause of action within the meaning of the rule.” It inferred that "a continuing cause of action would be a recurring cause of action, or to put it differently the phrases, continuing cause of action and recurring cause of action would be synonym. The petitioner is aggrieved by the approach of the competent authority before whom he had prayed for re-fixation of his pension by giving the benefit of ACP/MACP and had also repeated before the competent authority in this regard have been able able to make out a case that writ petition does not suffer from any delay and laches as the act of the respondent/s in not giving the benefit of ACP/MACP has seriously prejudiced the fixation of petitioner’s pension, who has been getting less amount of pension every month and, therefore, the cause of action is recurring or continuing one." 

The penultimate paragraph of the judgement of the Single Judge Bench reads:"The Additional Chief Secretary must ensure to direct the concerned sanctioning authority to fix the pay scale of the petitioner and grant difference of salary on account of pay revision and financial upgradation as a result of ACP/MACP and accordingly direct to sanction the pension by revising it on the basis of the prescribed pay scale of Professor and Head of the Department from the date of appointment of the petitioner in accordance with law within a period of six weeks from the date of passing of this order."

The Division Bench relied the Supreme Court's judgment in the case of Surjeet Singh Sahni. It reads:-“8. As observed by this Court in a catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within a reasonable time. If it is found that the writ petitioner is guilty of delay and laches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and laches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.”

The penultimate paragraph of the judgement of the Division Bench reads:"the cause of action for the petitioner having arisen for the first time in the year 1972 when as per his case he was not granted the benefit of Teaching Cadre and atleast before his retirement in the year 2002, the delay and laches on the part of the writ petitioner of at least 17 years cannot be explained with the rejection of his representation. The Court is of the opinion that the writ application ought to have been dismissed on the ground of delay and laches alone and the learned Single Judge has erred in not taking into consideration the submissions made on this count on behalf of the appellant State of Bihar. The Court finds merit in the appeal." It was authored by Justice Partha Sarthy.

Several decisions of the Supreme Court has underlined that mere filing of representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within a reasonable time. The Single Judge Bench has recorded in its judgement that the original cause of action arose in the year 2002 when the petitioner had superannuated from the service. It has also recorded that the respondent/s had raised the question regarding a belated writ petition. They had sought its dismissal in limine on account of delay and laches. Drawing on the law laid down by the Supreme Court in case of C. Jacob v. Director of Geology and Mining & Anr. reported in (2008) 10 SCC 115, it concluded that the issue has been kept alive being continuing one the law of limitation on delay and laches will not apply.

Anticipatory bail application of accused in judicial custody in different offence is maintainable under Cr.P.C.

Supreme Court's bench of Chief Justice Dr. Dhananjaya Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra has "decided the issue of maintainability of an anticipatory bail application filed at the instance of an accused who is already in judicial custody in a different offence and have reached the conclusion that such an application is maintainable under the scheme of the CrPC" on  September 9, 2024 in Dhanraj Aswani Vs. Amar S. Mulchandani. It has directed the Court's Registry to "forward one copy each of this judgment to all the High Courts across the country" after examining the views of different High Courts on the issue in question. The judgement was authored by Justice Pardiwala. 

The Court observed: "Under Section 438 of the CrPC, the pre-condition for a person to apply for pre-arrest bail is a “reason to believe that he may be arrested on an accusation of having committed a non-bailable offence”. Therefore, the only pre-condition for exercising the said right is the apprehension of the accused that he is likely to be arrested. In view of the discussion in the preceding paragraphs, custody in one case does not have the effect of taking away the apprehension of arrest in a different case."

The Court analyzed the question as to "whether a person, while in custody for a particular offence, can have a 'reason to believe' that he may be arrested in relation to some other non-bailable offence?" 

The Court recalled Court's decision in Gurbaksh Singh Sibbia v. State of Punjab, [1980] 3 SCR 383, (1980) 2 SCC 565 by a Constitution Bench. It has been held that "An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the CrPC, as the case may be." It observed that "There is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. The only restriction on the power of the court to grant anticipatory bail under Section 438 of the CrPC is the one prescribed under sub-section (4) of Section 438 of the CrPC, and in other statutes like the Act, 1989, etc."

The Court also observed that "While a person already in custody in connection with a particular offence apprehends arrest in a different offence, then, the subsequent offence is a separate offence for all practical purposes. This would necessarily imply that all rights conferred by the statute on the accused as well as the investigating agency in relation to the subsequent offence are independently protected."

It has held that "The investigating agency, if it deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused whilst he is in custody in connection with a previous offence so long as no order granting anticipatory bail has been passed in relation to the subsequent offence. However, if an order granting anticipatory bail in relation to the subsequent offence is obtained by the accused, it shall no longer be open to the investigating agency to seek remand of the accused in relation to the subsequent offence. Similarly, if an order of police remand is passed before the accused is able to obtain anticipatory bail, it would thereafter not be open to the accused to seek anticipatory bail and the only option available to him would be to seek regular bail."

The Court underlined the importance of the rights conferred under the procedural laws as noted by a Constitution Bench of this Court in A.R. Antulay v. R. S. Nayak reported in (1988) 2 SCC 602. It was observed therein that no man can be denied of his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law, and not in derogation of it. The Court held that a denial of equal protection of laws, by being singled out for a special procedure not provided under the law, caused denial of rights under Article 14 of the Constitution of India. A few relevant observations are: “41. In the aforesaid view of the matter and the principle reiterated, it is manifest that the appellant has not been ordered to be tried by a procedure mandated by law, but by a procedure which was violative of Article 21 of the Constitution. That is violative of Articles 14 and 19 of the Constitution also, as is evident from the observations of the Seven Judges Bench judgment in Anwar Ali Sarkar case [(1952) 1 SCC 1: AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510 where the Court found that even for a criminal who was alleged to have committed an offence, a special trial would be per se illegal because it will deprive the accused of his substantial and valuable privileges of defence which, others similarly charged, were able to claim. 

The Court had stated : "We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. This Court, in its anxiety to facilitate the parties to have a speedy trial gave directions on 16-2-1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16-2-1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. […]”

It  drew on the decision of  a Constitution Bench of the Court in the State of West Bengal v. Anwar Ali Sarkar reported in (1952) 1 SCC 1, wherein it was held that procedural law confers very valuable rights on a person, and their protection must be as much the object of a Court’s solicitude as those conferred under the substantive law. Few pertinent observations are: “27. The argument that changes in procedural law are not material and cannot be said to deny equality before the law or the equal protection of the laws so long as the substantive law remains unchanged or that only the fundamental rights referred to in Articles 20 to 22 should be safeguarded is, on the face of it, unsound. The right to equality postulated by Article 14 is as much a fundamental right as any other fundamental right dealt with in Part III of the Constitution. Procedural law may and does confer very valuable rights on a person, and their protection must be as much the object of a court's solicitude as those conferred under substantive law.” 

The Court endorsed the view that the right of an accused to protect his personal liberty within the contours of Article 21 of the Constitution of India with the aid of the provision of anticipatory bail as enshrined under Section 438 of the CrPC cannot be defeated or thwarted without a valid procedure established by law. Such procedure should also pass the test of fairness, reasonableness and manifest non-arbitrariness on the anvil of Article 14 of the Constitution of India.

Delhi High Court seized with ANI's case against Wikimedia Foundation's Wikipedia

Asian News International (ANI), an Indian news agency offers syndicated multimedia news feed to news bureaus in India and elsewhere. It was established by Prem Prakash in 1971, it was the first agency in India to syndicate video news. It is considered the biggest television news agency in India. The ANI page on the Wikipedia of Wikimedia Foundation Inc. states:"ANI has been accused of having served as a propaganda tool for the incumbent central government, distributing materials from a vast network of fake news websites, and misreporting events on multiple occasions. In July 2024, ANI filed a lawsuit against Wikipedia in the Delhi High Court, claiming that the news agency was defamed in a description on the website." Prem Prakash was given Lifetime Achievement Award in the award ceremony graced by Gajendra Shekhawat, the Union Minister in July 2023.

In ANI Media Pvt. Ltd vs. Wikimedia Foundation Inc., Justice Navin Chawla of the Delhi High Court issued summons to Wikipedia on July 9, 2024 in the suit filed by the ANI. ANI has alleged that Wikipedia, the online encyclopaedia has allowed defamatory edits to ANI's page on its online platform. The Court's order reads: " Let the plaint be registered as a suit. Issue summons to the Defendants, to be served through all permissible modes, including through electronic mode and dasti as well, returnable on 20th August, 2024. The summons to the Defendants shall indicate that the Written Statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the Written Statement(s), the Defendants shall also file the affidavit(s) of admission/denial of the documents of the Plaintiff, without which the Written Statement(s) shall not be taken on record." 

On August 20, 2024, the Court's order recorded that application was filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 for amending the plaint. The Court issued the notice. The order reads: "defendant no.1 is directed to disclose the subscriber details of defendant nos.2 to 4 to the plaintiff, through its counsel, within a period of two weeks from today. On receipt of the said information, the plaintiff shall take steps for ensuring service of summons and notice on the application on the said defendants. Written statement be filed by defendant no.1 within the prescribed period." 

On September 5, 2024, the Court reportedly issued a contempt of court notice to Wikimedia Foundation Inc. ANI has submitted that the platform has failed to comply with orders to disclose information on subscribers who made allegedly defamatory edits on ANI's Wikipedia page. In his oral observation,  Justice Chawla said: "I will impose contempt...It is not a question of Defendant No 1 [Wikimedia Foundation Inc] not being an entity in India. We will close your business transactions here. We will ask the government to block Wikipedia...Earlier also you people have taken this argument. If you don’t like India, please don’t work in India." The High Court ordered an authorised representative of Wikimedia Foundation Inc to be personally present in Court on October 25, 2024 when the matter will be heard next.

ANI sued Wikimedia Foundation Inc. for defamation. The news agency has claimed that Wikipedia allowed defamatory edits on its page which referred to ANI as a "propaganda tool" for the present government. Responding to the lawsuit, the Wikimedia Foundation said: "As a technology host, the Wikimedia Foundation generally does not add, edit or determine content published on Wikipedia. Wikipedia’s content is determined by its global community of volunteer editors (Wikimedia Community) who compile and share information on notable subjects."