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Case: Writ Petition No. 11383 of 2023, Petitioner: Syed Hamidul Bari, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11360 of 2023, Petitioner: Mohd. Naushad, Respondent: State of Uttar Pradesh through Additional Chief Secretary/Principal Secretary, Housing and Urban Planning Department, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11362 of 2023, Petitioner: Mohammad Abrar, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11368 of 2023, Petitioner: Mohammad Saif Khan, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11372 of 2023, Petitioner: Nameera Khan, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11375 of 2023, Petitioner: Vishnu Swaroop Chaurasya, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Uttar Pradesh, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11379 of 2023, Petitioner: Mohd. Shafi, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11380 of 2023, Petitioner: Deepak Chaurasia, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11382 of 2023, Petitioner: Shoeb Ahmad, Respondent: State of Uttar Pradesh through Additional Chief Secretary/Principal Secretary, Housing and Urban Planning Department, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11383 of 2023, Petitioner: Syed Hamidul Bari, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11391 of 2023, Petitioner: Anwar Ali, Respondent: State of Uttar Pradesh through its Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and others. Counsel for Petitioner: Kazim Ibrahim, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11468 of 2023, Petitioner: Muhammad Shoaib Ali, Respondent: State of Uttar Pradesh through Additional Chief Secretary/Principal Secretary, Lucknow, and three others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11500 of 2023, Petitioner: Naseeruddin, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and others. Counsel for Petitioner: Kazim Ibrahim, Aishvarya Mathur, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11503 of 2023, Petitioner: Mohd. Haneef, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Aishvarya Mathur. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11505 of 2023, Petitioner: Mohd. Faheem, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11465 of 2023, Petitioner: Atiq Ur Rahman, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Uttar Pradesh, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11470 of 2023, Petitioner: Hameed Khan, Respondent: State of Uttar Pradesh through Additional Chief Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh. Counsel for Respondent: G. A., Ratnesh Chandra., Case: Writ Petition No. 11472 of 2023, Petitioner: Islamuddin Qureshi, Respondent: State of Uttar Pradesh through Additional Chief Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Aishvarya Mathur. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11477 of 2023, Petitioner: Arshad Warsi, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11479 of 2023, Petitioner: Syed Salma Bano, Respondent: State of Uttar Pradesh through Additional Chief Secretary, Housing and Urban Planning Department, Uttar Pradesh, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11480 of 2023, Petitioner: Mohd. Irshad Ali, Respondent: State of Uttar Pradesh through Additional Chief Secretary/Principal Secretary, Housing and Urban Planning Department, Lucknow, and others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11481 of 2023, Petitioner: Mohd. Abubakar, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11482 of 2023, Petitioner: Adil Ishtiaq, Respondent: State of Uttar Pradesh through Additional Chief/Principal Secretary, Housing and Urban Planning Department, Lucknow, and others. Counsel for Petitioner: Kazim Ibrahim, Aishvarya Mathur, Amrit Khare. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11548 of 2023, Petitioner: Javed Ahmad Siddiqui and 20 others, Respondent: State of Uttar Pradesh through Principal/Additional Chief Secretary, Housing and Urban Planning Department, Lucknow, and three others. Counsel for Petitioner: Amrendra Nath Tripathi, Shakeel Ahmad Jamal. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11484 of 2023, Petitioner: Sabiha Kausar, Respondent: State of Uttar Pradesh through Additional Chief Secretary/Principal Secretary, Housing and Urban Planning Department, and others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Case: Writ Petition No. 11492 of 2023, Petitioner: Mohammad Adil, Respondent: State of Uttar Pradesh through Additional Chief Secretary, Housing and Urban Planning Department, Lucknow, and four others. Counsel for Petitioner: Kazim Ibrahim, Akshay Kumar Singh. Counsel for Respondent: Chief Standing Counsel, Ratnesh Chandra., Honourable Pankaj Bhatia, J. Since all the writ petitions arise out of common cause of action, as such, present common order is being passed., Heard Sri J. N. Mathur, Senior Advocate assisted by Sri Kazim Ibrahim, Sri Amrit Khare, Sri Amrendra Nath Tripathi, Sri Akshay Kumar Singh, Sri Aishvarya Mathur the counsel for the petitioners and Sri Ratnesh Chandra with Sri Sankalp Mishra the counsel for the Lucknow Development Authority as well as Sri Shailendra Kumar Singh, Chief Standing Counsel assisted by Sri Pankaj Srivastava, learned Additional Chief Standing Counsel for the State., The present petition has been filed aggrieved by an order dated 15 December 2023 whereby the appeals preferred by the petitioners under section 27(2) of the Uttar Pradesh Urban Planning and Development Act, 1973 (herein referred to as the '1973 Act') have been dismissed., It is essential to note that the appeal was preferred against an order of demolition dated 13 October 2023 passed in exercise of the powers under section 27(1) of the '1973 Act'., The facts, in brief, are that the petitioners claim to be in possession of property known as Akbar Nagar – I & II situated on different Khasra numbers. The petitioners claim that they have been peacefully enjoying the property for more than forty to fifty years without any interference whatsoever. In Petition No. 11383 of 2023, it is claimed by the petitioner that he has set up a furniture shop and also built a house on the property in question., The petitioners were served with a show cause notice on 26 August 2023 whereby, in exercise of the power under section 27(1) of the Act, the petitioner was called upon to show cause as to how he has constructed the building situated at Plot No. 749 Akbar Nagar‑I, Faizabad Road, Lucknow over an area spanning 2000 square feet. The constructions were shown on the ground floor as well as on the first floor. It was alleged that commercial activity was being carried out over the property and the property was described as lying in 'Doob Kshetra'., The petitioner claims to have filed a reply which ultimately led to the passing of an order dated 13 October 2023 whereby the demolition order was passed. While passing the said order, which is on record as Annexure No. 2, the letter given by the Zonal Officer on 29 September 2023 was also mentioned, which is in the following effect: In the light of the said letter and after recording its evaluation, an order was passed holding that the occupation was illegal and on a green belt area, which was liable to be demolished., Aggrieved against the said order, the petitioner preferred an appeal in terms of the mandate of section 27(2) of the '1973 Act'. As the respondents were threatening to pass an order of eviction during the pendency of the appeal, some of the petitioners approached this Court by filing petitions being Writ‑C No. 1021 of 2023 wherein this Court disposed of all the writ petitions vide order dated 8 December 2023 by issuing a mandamus to the appellate authority to hear and decide the stay and delay condonation applications and further directions were issued for providing a copy of the said order dated 15 December 2023. It was also provided that no coercive action shall be taken against the petitioners till 20 December 2023 mainly on the ground that the petitioners would get reasonable opportunity to avail their remedies against any order that may be passed against such petitioners., It is argued that a copy of the order was actually served on the petitioners on 16 December 2023 and instead of deciding the stay application, the appellate authority proceeded to dismiss the appeal itself. The said order is under challenge in the present writ petition., As the demolition exercise is being carried out, a mention was made by Senior Advocate Sri J. N. Mathur and upon his mention, the petitions with regard to the demolitions were summoned and the present order is being passed in the presence of the counsel for the Lucknow Development Authority and after hearing as well as the learned Chief Standing Counsel., The submission of the counsel for the petitioners is that the appellate authority has passed the order based upon materials which were neither supplied nor were ever provided to the petitioners and the petitioners were never permitted to confront the said documents; as such, the order on its face is in violation of the principles of natural justice. It is further argued that the petitioners were in occupation of the premises prior to 1973, the date on which the Act was enacted, and therefore the proceedings could not have been initiated under the Act. In the alternative, it is argued that in any case, the proceedings could not have been initiated under section 27, as even in terms of the allegations levelled in the show cause notice, the remedy could have been availed by the respondents by taking recourse to section 26‑A of the '1973 Act'., In short, apart from the submission that the occupation was prior to enactment of the Act and the recourse could not be taken under a section of the Act, the stress is on the authorities not following procedural aspects and passing the order based upon documents which were never supplied. It is lastly argued that on account of large‑scale demolition being carried out in the city of Lucknow, it would affect the livelihood of the persons who are residing and carrying out their petty occupations and professions for more than forty to fifty years, which action of the State is basically in violation of the rights enshrined under Article 21 of the Constitution of India., Reliance is placed upon the judgment of the Supreme Court in Olga Tellis and others v. Bombay Municipal Corporation and others (1985) 3 SCC 545 and Centre for Environment and Food Security v. Union of India (2011) 5 SCC 676 wherein the scope of Article 21 of the Constitution of India was explained and it was held that right to livelihood is an integral part of the right to life. In the light of the said, it is argued that an interim order be passed staying the demolition while the matter is being heard by this Court., The counsel for the respondents, Sri Ratnesh Chandra, as well as the learned Chief Standing Counsel, argues that even as per the pleadings, the occupation of the petitioners is over a span of forty to fifty years and thus, the occupation of the petitioner is prima facie after the enactment of the 1973 Act, and therefore the authorities rightly took recourse to proceedings under section 27 of the Act. It is further argued that the petitioners have not demonstrated any title over the property in question and irrespective of the nature of the land, once the petitioners have not established any title, they could not have resisted demolition. He further argues that in discharge of the constitutional obligations falling from the mandate of the directives of principle of State policy, the Lucknow Development Authority has issued a plan for re‑establishment of the residents of the colony known as Akbar Nagar – I & II and a civil camp is being organized since 19 December 2023 in which 70 to 70 people have also registered., As regards the submission of learned counsel for the petitioners that the order suffers from the vice of non‑following procedural due process and not providing the documents, it is submitted that in view of reference of an order passed by the National Green Tribunal, the same is not a document but a judgment. It is further argued that there were no pleadings or evidence before the authority which passed the demolition order or even before the appellate authority at the instance of the petitioners with regard to their possession prior to enactment of the 1973 Act, thus, the same cannot be pleaded at this stage. It is further argued that occupation of the petitioners over the premises is actually an occupation over a river belt and thus, they cannot claim any right of adverse possession over land which is declared a river belt by the Central Government., In the light of the averments as recorded above, this Court is required to pass an order with regard to steps being taken for demolition., In view of the rival contentions raised and recorded hereinabove, what emerges is that the various persons including the petitioners are in occupation of the land without having any title in their favour; with the passage of time, the said persons have continued in possession and, in fact, government roads were carved out and other municipal services are being provided; in some cases, even municipal taxes are being paid. It also appears that a school is being run in the vicinity i.e. the entire area known as Akbar Nagar I & II. This fact has not been denied by either of the parties and also emerges from the orders impugned., The issue with regard to the occupation being prior to the 1973 Act or thereafter is an issue which, although arises, can be decided subsequently. It also emerges that the order has been passed dismissing the appeals on 16 December 2023 and the execution is being carried out within five days of the passing of the orders on appeal filed by the petitioners. It is also an admitted fact that the Lucknow Development Authority has initiated the process of relocating the various persons in terms of their scheme as recorded hereinabove and, in fact, a camp has been set up wherein around 70 to 80 people have enrolled and registered themselves for being relocated at other places, in terms of the scheme., At this stage, it is no doubt true that the petitioners have not been able to demonstrate any prima facie title in their favour, but have successfully established their possession, even if the said possession is an illegal possession., At this stage, it is not clear as to what is the tearing hurry in which huge occupations by the relatively poor class of persons are being proposed to be demolished forthwith without even waiting for the scheme of relocating the adversely affected persons being implemented in letter and spirit and also exposing the poorest of the poor to the ensuing harsh winters., As prima facie, the rights flowing from Article 21 of the Constitution of India, which includes the right to earn livelihood, are prima facie affected and it is the bounden duty of the State and its instrumentalities to ensure that Article 21 of the Constitution of India is not violated to give effect to the other obligations of the State which includes the obligation to resettle and which is also being discharged by the Lucknow Development Authority. I deem it appropriate to issue the following directions: (i) The demolitions being carried out in Akbar Nagar‑I & II pursuant to the orders of demolition and after the dismissal of appeals are stayed forthwith, till the next date of listing. No demolition shall be carried out in the entire area. (ii) The Lucknow Development Authority shall give reasonable time of four weeks to the inhabitants to apply in terms of the scheme and the inhabitants would be at liberty to apply in terms of the scheme within the reasonable time. (iii) The Lucknow Development Authority shall thereafter take steps for resettlement of the persons who have applied in terms of the scheme forthwith and obtain vacant physical possession of the present premises in their occupation., List this matter now on 22 January 2024 for further directions and decision on the issues as raised., In the meanwhile, learned Standing Counsel and learned counsel for the Lucknow Development Authority may file their response to the pleadings., In view of the urgency and the fact that large‑scale demolitions are being carried out, which prima facie also disclose the potential of disturbance of law and order and public order, it is directed that learned Standing Counsel and Sri Ratnesh Chandra, learned counsel for Lucknow Development Authority shall communicate this order to the Vice Chairman and the Chairman of the Lucknow Development Authority and Secretary, Housing and Urban Planning Department, Uttar Pradesh for it being complied., Office is directed to provide a copy of this order to the parties today itself on payment of usual charges.
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Versus Appearance: and Date : 22/09/2023, The present case is an eye opener. The convict Chandanji Gato Chhanaji Thakor has filed the present application seeking regular bail through jail. Such application was filed by him on 05.08.2023, which is forwarded to the Registry of this Court vide communication dated 11.08.2023 written by the Deputy Superintendent of Ahmedabad Central Jail., When the matter was listed yesterday, learned advocate Mr Soni appearing for the applicant has invited the attention of this Court to the order dated 29.09.2020 passed in Criminal Miscellaneous Application (for suspension of sentence) No. 1 of 2020 in the captioned appeal and has submitted that this Court, after passing a comprehensive order, had already released the applicant on regular bail by suspending his sentence under the provision of Section 389 of the Code of Criminal Procedure, 1973., The matter was ordered to be listed today and the learned applicant was directed to take necessary instructions as to why the applicant was still incarcerated in jail despite the order dated 29.09.2020 passed by the Coordinate Bench of the Gujarat High Court. The Registry of the Gujarat High Court was also directed to give the details with regard to communication of the order dated 29.09.2020 releasing the applicant on regular bail., Today, Ms Shweta Shrimali, Superintendent of Ahmedabad Central Jail, is present before this Court. The communication dated 22.09.2023 written by her is ordered to be taken on record along with the statement of the applicant., The jail records are also produced before this Court. As per the report dated 22.09.2023 of the Superintendent of Jail, after the order was passed by the Coordinate Bench releasing the applicant on regular bail on 29.09.2020 on furnishing personal bond of Rs 20,000 and two sureties, the Registry sent an email on 03.12.2020 to the Sessions Court, Mehsana and Ahmedabad Central Jail; however, due to the COVID-19 pandemic, the said email was not noticed by the jail authority and the order passed by this Court was not implemented. It is further reported that no communication was received by learned advocate Mr Soni, who was representing the applicant, and it is only when the present application was listed that the jail authority came to know about the order passed by the Coordinate Bench. The Registry has also produced the email dated 03.12.2020 with the attachment of the order passed by the Coordinate Bench., Learned applicant, upon instructions of Ms Shweta Shrimali, Superintendent of Ahmedabad Central Jail, has submitted that the attachment of the order passed by this Court releasing the applicant on bail could not be opened. It is submitted that due to these circumstances, the applicant was not released on regular bail., The aforesaid facts reveal that due to the remissness on the part of the jail authorities, the applicant, though released by this Court on regular bail vide order dated 29.09.2020 passed in Criminal Miscellaneous Application No. 1 of 2020 in the captioned appeal, remained incarcerated in the jail. During his incarceration period, his jail remarks show that he was released on temporary bail and furlough on a few occasions also. The applicant, though released and could have enjoyed his freedom, was forced to remain in jail only because no attention was paid by the jail authorities to contact the Registry or Sessions Court with regard to the order passed by this Court. Thus, there is a serious lapse on the part of the jail authorities., It is informed that after completing necessary formalities, the applicant was released yesterday. At this stage, it would be apposite to refer to the order passed by the Supreme Court of India on 31.03.2023 in SLP (Criminal) No. 4 of 2021 and SLP (Criminal) No. 529 of 2021 in the case of Re Policy Strategy for Grant of Bail Vs. State. Some of the directions issued by the Supreme Court with regard to under‑trial prisoners and convicts who are incarcerated in jail and granted bail are as follows., We call upon the Government of India to discuss this issue with the National Legal Services Authority so that necessary directions, if any, can be passed. The learned Additional Solicitor General will obtain instructions in that behalf by the next date. With a view to ameliorate the problems, a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications: (1) The court which grants bail to an under‑trial prisoner or convict would be required to send a soft copy of the bail order by email to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e‑prisons software or any other software which is being used by the Prison Department. (2) If the accused is not released within a period of seven days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, District Legal Services Authority who may depute para‑legal volunteers or jail‑visiting advocates to interact with the prisoner and assist the prisoner in all ways possible for his release. (3) The National Informatics Centre would make attempts to create necessary fields in the e‑prison software so that the date of grant of bail and date of release are entered by the Prison Department and, in case the prisoner is not released within seven days, then an automatic email can be sent to the Secretary. (4) The Secretary, District Legal Services Authority, with a view to find out the economic condition of the accused, may take help of the Probation Officers or the para‑legal volunteers to prepare a report on the socio‑economic conditions of the inmate which may be placed before the concerned court with a request to relax the conditions of bail or surety. (5) In cases where the under‑trial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties. (6) If the bail bonds are not furnished within one month from the date of grant of bail, the concerned court may suo motu take up the case and consider whether the conditions of bail require modification or relaxation. (7) One of the reasons which delays the release of the accused or convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety., Paragraph two of the aforesaid directions suggests that the Supreme Court has directed that if the accused is not released within a period of seven days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, District Legal Services Authority, who may depute para‑legal volunteers or jail‑visiting advocates to interact with the prisoner and assist the prisoner in all ways possible for his release. The Secretary, District Legal Services Authority, with a view to find out the economic condition of the accused, may take help of the Probation Officers or the para‑legal volunteers to prepare a report on the socio‑economic conditions of the inmate which may be placed before the concerned court with a request to relax the conditions of bail or surety. It is further directed that in cases where the under‑trial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties. It is further directed that if the bail bonds are not furnished within one month from the date of grant of bail, the concerned court may suo motu take up the case and consider whether the conditions of bail require modification or relaxation, and one of the reasons which delays the release of the accused or convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety., It appears that the Supreme Court is still examining the matter; however, the aforesaid directions are issued only for the welfare of the prisoners or convicts who have obtained bail but are not released., In the present case, the Registry of the Gujarat High Court had categorically informed the jail authorities about the order passed by this Court releasing the applicant on regular bail. It is not the case that such email was not received by the jail authorities. It is the case of the jail authorities that necessary action could not be taken in view of the COVID-19 pandemic and, though they have received the email, they were unable to open the attachment. It is also noticed that though the email was sent to the District Sessions Court, Mehsana, no efforts were made by the court to see that the order, which is passed by the Division Bench of this Court releasing the convict on bail, is appropriately implemented and no follow‑up was taken until yesterday. The order was passed on 29.09.2020 and the convict was released on 21.09.2023., Considering the plight of the applicant, who has remained in jail despite the order of this Court due to the negligence on the part of the jail authorities, though he was already released yesterday, we are inclined to grant compensation for his illegal incarceration in the jail for almost three years. The applicant is about 27 years old and, as per the jail remarks, has already undergone more than five years of incarceration. Hence, in the interest of justice and in order to see that the applicant is appropriately compensated for the negligence of the jail authorities, we are directing the State to grant him compensation of Rs 1,00,000 (Rupees One Lakh). The same shall be paid within a period of 14 days. The Registry is directed to communicate this order to the District Sessions Court, Mehsana also., It appears that the District Legal Services Authority, which is assigned such duty to identify the cases, has also failed to point out the order to the jail authorities. Looking to the seriousness of the issue, we deem it proper to direct all District Legal Services Authorities to undertake the necessary exercise and collect the data of the under‑trial prisoners and convicts, in whose favour orders are passed releasing them on bail but they are not released. The District Legal Services Authority shall collect the reasons for their not having been released either for want of surety or non‑execution of the jail bonds or for any other reason., In order to see that the aforesaid directions are complied with, including payment of compensation to the applicant, the matter is ordered to be listed on 18.10.2023.
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Non-Reportable Criminal Appeal No. of 2024 (Special Leave Petition (Criminal) No. 10499 of 2023) State of Jharkhand (Appellant) versus Sandeep Kumar (Respondent). Leave granted. By order dated 06 July 2022 passed in Application for Bail No. 3483 of 2022, the High Court of Jharkhand at Ranchi granted pre‑arrest bail to the respondent in relation to Dhanwar Police Station Case No. 296 of 2021, registered for offences under Sections 419, 466, 221, 205, 109 and 120‑B/34 of the Indian Penal Code. Aggrieved thereby, the State of Jharkhand filed the present appeal., The respondent was the Officer‑in‑Charge of Dhanwar Police Station at the relevant time and was the Investigating Officer in Dhanwar Police Station Case No. 276 of 2021 registered against one Ranjeet Kumar Saw, son of Lakhan Saw, under Sections 420, 475, 201, 109 and 34 of the Indian Penal Code along with Sections 65 and 68 of the Copyright Act, 1957. The case was registered upon the complaint made by Sanjay Kumar Sharma on behalf of United Spirits Limited. The allegation against the respondent was that he made interpolations in the FIR in Dhanwar Police Station Case No. 276 of 2021, changing the name of the father of the accused from Lakhan Saw to Balgovind Saw and consequently arresting Ranjeet Kumar Saw, son of Balgovind Saw, thereby shielding Ranjeet Kumar Saw, son of Lakhan Saw., In the first instance, the anticipatory bail petition filed by the respondent was rejected by the learned Additional Sessions Judge‑V, Giridih, vide order dated 05 April 2022. The learned Judge noted that CCTV footage of Dhanwar Police Station revealed that Ranjeet Kumar Saw, son of Lakhan Saw, entered the police station and had several meetings with the respondent and that at about 10 pm Ranjeet Kumar Saw, son of Balgovind Saw, entered the police station and was placed in custody at about 11.22 pm. The Judge observed that the interpolations in the FIR were clearly visible to the naked eye and that there were sufficient materials indicating the involvement of the respondent in the alleged offence, and therefore dismissed the bail petition., The respondent then approached the High Court of Jharkhand at Ranchi by way of Application for Bail No. 3483 of 2022 praying for anticipatory bail. The impugned order dated 06 July 2022 recorded no reasons for granting relief. The operative portion of the order reads: ‘Considering the submissions of the learned counsels and the facts as discussed above, the anticipatory bail application is allowed. Hence, in the event of his arrest or surrender within a period of four weeks from the date of this order, the petitioner shall be released on bail on furnishing a bail bond of Rs 25,000 (Rupees Twenty‑Five Thousand) with two sureties of the like amount each to the satisfaction of the learned Court below, subject to the conditions laid down under Section 438(2) of the Criminal Procedure Code. The petitioner will cooperate in the investigation and will appear on notice under Section 41A of the Criminal Procedure Code and comply with the condition laid down under Section 438(2) of the Criminal Procedure Code.’ In Ram Govind Upadhyay versus Sudarshan Singh and others, this Court noted that, though grant of bail is discretionary, it must be exercised in a judicious manner and not as a matter of course. An order of bail bereft of any cogent reason could not be sustained., Despite this settled legal position, the High Court did not record the factors that ordinarily weigh with a court while dealing with a bail petition, such as the nature and seriousness of the offence, the character of the evidence, the circumstances peculiar to the accused, the possibility of the accused not being secured at trial, the risk of tampering with witnesses, and the larger public interest. The respondent, a senior police officer holding the responsible position of Officer‑in‑Charge and Investigating Officer, was alleged to have made a wrongful arrest by altering the FIR. The statement of the informant, Sanjay Kumar Sharma, recorded under Section 161 of the Criminal Procedure Code, indicated that on 29 November 2021 Ranjeet Kumar Saw, son of Lakhan Saw, was apprehended with a Bolero vehicle bearing registration number JH10BY‑4931, that the arrest memo and seizure memos were signed in the presence of the respondent, and that subsequently the respondent changed the father’s name and released the accused, sending a different person, Ranjeet Kumar Saw, son of Balgovind Saw, to jail. The informant discovered the substitution from a newspaper photograph and reported it to the Police Inspector and the Deputy Commissioner of Police., In view of the serious allegations against a senior police officer, the High Court ought not to have taken a liberal view. Even though the offences alleged against the respondent do not attract imprisonment exceeding seven years and are bailable, the respondent’s role as Investigating Officer imposes a fiduciary duty to conduct an impartial investigation. The presumption applicable to a layperson does not carry the same weight for a police officer alleged to have abused his office. Accordingly, the High Court erred in granting anticipatory bail. The appeal is allowed, setting aside the order dated 06 July 2022. If the respondent is arrested in connection with Dhanwar Police Station Case No. 296 of 2021 and applies for regular bail, the application shall be considered on its own merits at that stage, in accordance with law.
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Appellant: Umesh Sharma, son of Late Omprakash Sharma, aged about 37 years, residing at Respondent. For the appellant: Shri Barun Kumar Chakrabarty, Advocate. The matter was heard before Honourable Justice Goutam Bhaduri and Honourable Justice Sanjay S. Agrawal of the High Court., The present appeal is against the judgment and decree dated 30/10/2021 (ANNEXURE A/1) passed by the learned Family Court of Raigarh, District Raigarh, Chhattisgarh in Civil Suit No.31-A/2020 whereby the application filed by the wife seeking divorce on the ground of cruelty was dismissed. Being aggrieved by such judgment and decree, the instant appeal is by the wife/appellant., The respondent was ex‑parte before the Family Court. Even before this High Court, despite service of notice, the respondent/husband has not made any representation. Shrimati Payal Sharma, wife of Umesh Sharma, aged about 33 years, resident of Kelo., The parties were married on 02/02/2006 and from the marriage one son and one daughter were born, who at the time of filing of the petition were stated to be 10 years and 13 years of age. The wife contended that the dispute arose because of the husband's excessive consumption of liquor, particularly whisky, which resulted in severe intoxication and consequently the husband used to beat the wife and sell the entire household goods. The brother of the appellant/wife used to cater to the daily needs of the family including payment of school fees of the children. It was also stated that the husband was not contributing to the family, and because of his habit of liquor consumption, the condition of the entire family deteriorated, and when the husband was advised to work, he responded by beating the wife. On 26/05/2016 she was assaulted and abused while intoxicated by the husband, and she was forced to live with her two children at her parental home., Initially an application seeking divorce was filed on similar grounds and during such proceedings the husband promised that he would abandon the drinking habit, mend his behaviour and would not torture the wife. On the basis of this promise the earlier divorce proceedings were withdrawn by the wife. After the withdrawal, the husband's behaviour again aggravated, leading to torture; after consuming liquor he abused and assaulted the wife and children. When the wife demanded payment of the children's educational fees, the husband refused and assaulted her. The incident was reported to the police and after a preliminary enquiry the parties arrived at a settlement, after which the wife stayed at her parental home until the husband reformed, which did not happen, and consequently the application for divorce was filed for the second time., The husband did not appear in person but sent a written statement denying the plaint allegations. He claimed that because of the wife's behaviour he was compelled to stay apart and that the wife threatened him, alleging mental cruelty on his part. He stated that he wanted to restore the marriage but the wife's behaviour thwarted his efforts. The husband also alleged that he was assaulted by the wife, reported the matter to the police, and contended that the cruelty was committed by the wife, therefore she is not entitled to a decree of divorce., The record shows that the husband did not appear to adduce evidence. The appellant/wife examined herself as PW‑1 and her brother Abhinav Sharma as PW‑2., In order to examine cruelty, the principles laid down by the Supreme Court in Samar Ghosh v. Jaya Ghosh would be a relevant guideline wherein the Court indicated certain illustrative instances at paragraph 101 whereby the inference of mental cruelty can be drawn. Paragraph 101 reads as follows: 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. (I) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill‑conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty., The wife's statement shows that many allegations of cruelty arose because of the husband's excessive drinking habits. It is alleged that after consuming liquor in an intoxicated state, the husband abused and assaulted the wife, sold household goods, and never paid the school fees of the children. On demand for fees and other necessary household goods, the husband abused and assaulted the wife, resulting in deterioration of the family's condition., The record shows that a report was made by the wife to the police, filed as Exhibit P/1, wherein she stated that the husband refused to pay the school fees of the children and, when demanded, threatened her. The police found it to be a non‑cognizable offence and did not take cognizance. The husband's conduct demonstrates a disregard for his duty to provide for the education of the children. The record also shows that the wife earlier filed a suit on the ground of cruelty with similar allegations, but that application seeking divorce was withdrawn. Copies are filed as Exhibits P/2, P/3, P/4, etc., There was no cross‑examination of the aforesaid facts. In the absence of cross‑examination, the averments made by the wife would be deemed to be accepted. Even otherwise, if the children are born out of wedlock, the respondent being the father cannot shirk his responsibilities, especially when the wife is non‑working. It is natural that the wife depends upon the husband for household needs and the upbringing of the children. If the husband, instead of discharging his obligation, indulges in excessive drinking, which deteriorates the family condition, it would naturally lead to mental cruelty to the wife and the entire family including the children., Having not done so, the husband/respondent can be safely stated to have caused mental cruelty to the wife. The conduct of the wife shows that she tried to save the marriage; otherwise, the earlier application seeking divorce on the similar ground of excessive drinking would not have been withdrawn on the husband's promise to mend his behaviour., In consequence of the aforesaid facts, we are of the view that the judgment and decree passed by the learned Family Court cannot be allowed to sustain. Accordingly, in view of the law laid down by the Supreme Court, we hold that the wife was able to prove mental cruelty by the husband and is entitled to a decree of divorce. Therefore, the order of the learned Family Court requires inference and the appellant/wife is entitled to a decree of divorce on the ground of mental cruelty. Accordingly, we order that the marriage dated 02/02/2006 solemnized between the parties shall be dissolved by a decree of divorce., Now coming to the grant of alimony to the appellant‑wife. The concept of maintenance grant is to ensure that the wife and the children are not left in a state of destitution after the divorce. The Supreme Court has consistently held that to ameliorate the financial position of a woman who has left her matrimonial home, grant of maintenance is a means to secure the woman's sustenance, along with that of the children, if any. The statutory provision entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and he cannot escape from his moral and familial responsibilities even after divorce. No affidavits are placed on record by the parties to show details of property or income except oral submission for maintenance. In the instant case, since no alimony has been fixed by the learned Family Court and the record shows that the wife is not working and has no source of income, and taking into consideration that two children were born out of wedlock, to avoid multiplicity of proceedings we hold that the wife is entitled to receive Rs 15,000 per month from the appellant towards maintenance, which would be deducted at source from the appellant's salary, if any, or otherwise the amount would be treated as a charge over the property held by the husband., In the result, we allow the appeal and set aside the judgment and decree of the court below. Consequently the marriage dated 02/02/2006 is dissolved. There shall be no order as to costs. A decree be drawn to the above extent.
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This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (the Code for short) praying to quash the First Information Report registered as Case Report Number I-110 of 2016 with GIDC Vatva Police Station, Ahmedabad city for the offences punishable under Section 498A, Section 323 and Section 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act., The brief facts leading to filing of this application are such that the son of the applicants married the respondent No. 2 on 28 February 2000 and thereafter, after some time, the applicants started demanding dowry and began to harass the complainant increasingly. It is stated that due to an illicit relationship of her husband with another lady, the situation worsened and the parties began living separately from the in‑laws, i.e., the present applicants. When the respondent No. 2 (complainant) opposed her husband about the illicit relationship, he started beating her. Consequently, the impugned First Information Report was filed against her husband, the in‑laws (the present applicants) and the lady with whom the husband allegedly had an illicit relationship. This First Information Report is the subject of the present application for quashment., At the outset, it is to be mentioned that Applicant No. 1 – accused No. 2, who is the father‑in‑law of the complainant, has expired and the application is therefore abated with respect to Applicant No. 1. The present application is to be considered for Applicant No. 2, who is accused No. 3 and the mother‑in‑law of the respondent No. 2 (complainant)., Learned counsel for the applicant submitted that there is no serious allegation in the entire First Information Report that remotely connects the present applicant with the offence. The allegations are substantially against accused No. 1 and accused No. 4. The present applicant has been wrongly dragged into litigation by making some general allegation against her. Considering that the applicant was 80 years old at the time of filing this application and is a lady accused, continuing with such criminal proceedings would cause great harassment to her, especially after the death of her husband (accused No. 2). Moreover, the charge‑sheet does not contain any material that directly connects the present applicant with the commission of the alleged offence. Accordingly, she prays that the High Court allow this application and quash the impugned First Information Report as an abuse of the process of law., Learned counsel for the respondent No. 2 (complainant) strongly opposed the prayers made in the present application, stating that the complaint was filed in 2003 and that in 2004 the applicant preferred an application for quashment which was dismissed by this High Court. On perusal of that order, the High Court on 24 June 2004 passed an order in Criminal Miscellaneous Application No. 1486 of 2004 dismissing the application for want of prosecution, without deciding it on merits. The counsel further drew attention to an affidavit‑in‑reply filed by the complainant, asserting that serious offences are made out against the present applicant by a separate First Information Report filed under Section 465, Section 460, Section 471 and Section 114 of the Indian Penal Code before the CID Crime Ahmedabad, thereby showing direct involvement of the present applicant. The counsel also submitted that the trial has already commenced and therefore the High Court should not exercise powers under Section 482 of the Code. The learned Additional Public Prosecutor echoed this opposition, emphasizing that the trial is underway and that a prima facie specific allegation is made in the First Information Report, which is supported by the charge‑sheet., Having considered the rival submissions and perused the material on record, it transpires from the bare reading of the First Information Report that the main allegations pertain to offences under Section 498A, Section 323 and Section 114 of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act. These allegations are prima facie not made out against the present applicant; they are general in nature and are primarily directed against accused Nos. 1 and 4. The present applicant appears to have been wrongly dragged into the First Information Report merely because she is the mother‑in‑law of the complainant. The applicant was 80 years old at the time of filing this application in 2017 and is now about 86 years old. Considering her advanced age and the fact that only general allegations have been levelled against her, continuing these proceedings would amount to an abuse of the process of law and would serve no fruitful purpose., In the case of Bhajanlal & Ors. (supra), the Honourable Supreme Court settled the guidelines for exercising powers under Section 482 of the Code of Criminal Procedure. The relevant paragraph reads: In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae. (1) Where the allegations made in the First Information Report or the complaint, even if taken at their face value, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other accompanying materials do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the First Information Report or complaint and the evidence collected in support of the same do not disclose the commission of any offence and do not make out a case against the accused. (4) Where the allegations in the First Information Report do not constitute a cognizable offence but only a non‑cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 156(2) of the Code. (5) Where the allegations made in the First Information Report or complaint are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any provision of the Code or the concerned Act to the institution and continuance of the proceedings, or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide intent or is maliciously instituted with an ulterior motive for vengeance or to spite the accused due to a private and personal grudge., It is also relevant to refer to the judgment of the Honourable Supreme Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, particularly paragraphs 23 and 24, which read: 23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 of the Code of Criminal Procedure. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 of the Code of Criminal Procedure can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of the court; and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 of the Code of Criminal Procedure, though wide, have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in the absence of specific provisions in the statute., In view of the settled position of law and after considering the facts alleged in the First Information Report and the circumstances of the present case, it transpires that continuation of further proceedings pursuant to the said First Information Report will cause greater hardship to the applicant and no fruitful purpose would be served if such proceedings are allowed to continue. The High Court must ensure that criminal prosecution is not used as an instrument of harassment, for seeking private vendetta, or with an ulterior motive to pressurise the accused or to settle a score., At this stage, it is necessary to note that the current scenario in society is that provisions of Section 498A are being rampantly misused by complainants, and in such cases all family members are roped into the complaint solely with a view to harass them. The Honourable Supreme Court has taken cognizance of such incidents in a number of judgments., Resultantly, this application is allowed. The First Information Report registered as Case Report Number I-110 of 2016 with GIDC Vatva Police Station, Ahmedabad city and all consequential proceedings arising therefrom are hereby quashed and set aside with respect to Applicant No. 2. The rule is made absolute. Direct service is permitted. It is open for the prosecution to proceed with the trial against the remaining accused.
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Bail matter No. 12228/2021 Gaurav Khanna v. State FIR No. 116/2021 PS Lodhi Colony (Crime Branch) under Section 3 of Epidemic Diseases Act, 1897, Section 3/7 of Essential Commodities Act, 1955, Sections 188/420/120B IPC. Video conference hearing conducted today via Cisco Webex. Bail application of the accused Gaurav Khanna, son of Devi Ram Khanna, is taken up through video conference on 12 May 2021. Present: Learned Assistant Public Prosecutor for State, Sanjay Kumar Mishra; Learned Senior Advocate for the accused, Trideep Pais, along with Samudra Sarangi, Srishti Khare and Sanya Kumar, Learned Counsel for Accused., By this order, I shall dispose of the regular bail application moved on behalf of accused Gaurav Khanna under Section 437 of the Code of Criminal Procedure. Reply to the bail application was filed by the Investigating Officer on 10 May 2021 along with an advance copy to Learned Counsel for Accused. Arguments on the bail application were thereafter heard on behalf of both parties on 11 May 2021 and the matter was adjourned for orders to 12 May 2021., Learned Senior Counsel for the accused submits that the accused has been falsely implicated in the present case under the charges for alleged commission of offences under Sections 3/7 of the Essential Commodities Act, 1955, Section 3 of the Epidemic Diseases Act, 1897 and Sections 420/188/120B/34 IPC. He submits that although none of the offences alleged by the prosecution is made out against the accused based on averments made in the FIR, even if, for the sake of argument, the offence under Section 188 IPC and Section 3 of the Epidemic Diseases Act is assumed to be made out, the same are bailable., He further submits that the only allegation against the accused is that of black marketing and hoarding of certain medical equipment such as oxygen concentrators, N‑95 masks and thermal scanners in connivance and conspiracy with other accused persons. The accused is merely a paid employee, i.e., Chief Executive Officer at Matrix Cellular (International) Services Ltd. (M/s Matrix), which is engaged in the lawful business of import and sale of the aforesaid equipment to make the same available to needy persons during the COVID‑19 situation., In support of his submissions regarding the company being a lawful importer and seller, Learned Counsel for the accused has relied upon a number of invoices reflecting purchase and sale of the equipment by the company. He submits that the accused is not a beneficiary of the alleged exorbitant profit margins on sale of the devices. It is further contended that there is no order issued by the Government for regulation of sale, purchase or price of the commodities in terms of Section 3 of the Essential Commodities Act; hence there is no question of commission of any offence under Section 7 of the Act by M/s Matrix or by the accused with the help of Section 120B IPC., Even assuming, for the sake of argument, that the provisions of the Drug Price Control Order, 2013 are applicable to the equipment by virtue of S.O. 1232(E) dated 31 March 2020 of the National Pharmaceutical Pricing Authority read with F No. 20(8)/09/2019/Div. III/NPPA dated 29 June 2020, there is no price capping fixed by the Government on the price of these equipment. The company, being the lawful importer, falls within the definition of manufacturer under the Drug Price Control Order, 2013 and is free to fix its own maximum retail price., The worst case against M/s Matrix can be a violation of the order dated 29 June 2020 regarding non‑supply of information regarding the MRP within ten days. However, that order can only be said to fall under Section 3(2)(h) and (i) of the Essential Commodities Act read with Section 20 of the Drug Price Control Order, 2013 and is punishable with imprisonment which may extend up to one year as per Section 7(1)(a)(i) of the Essential Commodities Act. The offence thus, according to him, shall be cognizable and bailable in view of Part II of the First Schedule appended to the Code of Criminal Procedure, 1973 read with Section 10A of the Essential Commodities Act (as amended)., Regarding the offence under Section 420 IPC, Learned Counsel submits that there is no reference in the FIR to any complaint from any customer regarding dishonest and fraudulent inducement by the accused to deliver any property or to do any act likely to cause wrongful loss to such person or wrongful gain to the accused. He submits that Section 420 was added in the FIR dated 5 May 2021 to make out a non‑bailable offence against the accused so as to enable the police to arrest him., He further submits that the Investigating Officer is trying to improve his case by taking clues from submissions made by counsel for the accused before different courts and forums, and is chasing the customers of M/s Matrix to obtain false complaints against the company to ruin its business and goodwill. It is apparent from the fact that a statement regarding overcharging by one Navneet Kalra was recorded by the Investigating Officer much after registration of the FIR and arrest of the accused, i.e., on 9 May 2021., According to him, the said allegations are against the co‑accused Navneet Kalra, who has nothing to do with M/s Matrix and the present accused, except that he purchased a few concentrators from the company in the name of his firm Dayal Opticals. He further submits that the accused was not arrested on the spot; he was arrested in the evening of 7 May 2021 when he went to the police station to join the investigation as per directions of the Investigating Officer., He submits that the fact that the accused visited the police station despite knowing that three other employees of M/s Matrix had already been arrested is sufficient to allay the apprehension of the Investigating Officer and the State that the accused will not cooperate in investigation if granted bail at this stage., It is further submitted that the arrest of the accused is also in violation of the guidelines of the Supreme Court of India in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, which have been reiterated by the Supreme Court in its order dated 7 May 2021 passed in Re‑Contagion of Covid‑19 virus in Prisons Suo Motu WP(C) No. 1 of 2020., Learned Counsel for the accused prays for grant of regular bail, submitting that (a) the accused has clean antecedents and deep roots in society, (b) there is no chance of his fleeing from justice, and (c) no custodial interrogation is required considering that all documents required by the Investigating Officer have already been provided by M/s Matrix and the case is solely based on documentary evidence., He further submits that the accused is ready to furnish sound surety to the satisfaction of this Court and shall abide by all conditions that may be imposed at the time of grant of bail, including but not limited to joining investigation as and when directed by the Investigating Officer or the Court, not tampering with evidence and not influencing witnesses., The bail application of the accused has been strongly opposed by the State through the Learned Assistant Public Prosecutor, Additional Public Prosecutor and the Investigating Officer. They contend that investigation is still at a very nascent stage and the whole conspiracy regarding hoarding and black marketing of essential medical devices along with the co‑accused needs to be unearthed., They submit that the accused had a prominent role in the company M/s Matrix as its CEO and was looking after operations including rate fixing of seized devices. They further submit that documents submitted by the accused are yet to be verified, and considering the accused’s links with influential persons, the possibility of tampering with evidence and influencing witnesses cannot be ruled out., Additional Public Prosecutor for the State submits that upon verification of the documents submitted by the accused to the Investigating Officer, the Officer may require further police remand of the accused, an option available only during the first fifteen days of his arrest. If bail is granted at this stage, the Officer will not be able to seek police remand for further investigation., He further submits that the medical equipment were purportedly imported by M/s Matrix from China and hence may be of poor quality, as apparent from social media posts by some customers. Two concentrators have been sent by the Investigating Officer to a government‑approved testing laboratory and the report may corroborate the prosecution case that the accused, in pursuance of a conspiracy, cheated the public by selling poor‑quality equipment at exorbitant prices with profit margins of Rs 35,000‑45,000., Since the accused has failed to comply with the order dated 29 June 2020, he has committed an offence under Section 3(2)(c) and (d) of the Essential Commodities Act, which is punishable with imprisonment up to seven years and is therefore non‑bailable., In rebuttal, Learned Counsel for the accused submits that the terms ‘black‑marketing’ and ‘sale at exorbitant prices’ are loosely worded and the prosecution case is based on conjectures and surmises. He points out that similar oxygen concentrators are being offered on IndiaMART and other e‑commerce platforms at prices ranging from Rs 1,00,000 to Rs 1,25,000, and therefore a price of Rs 45,000‑69,999 cannot be said to be exorbitant., He further submits that the Government has not capped the price of the concentrators or other equipment; hence the accused cannot be booked under Section 3/7 of the Essential Commodities Act, particularly when there is no evidence that the company sold the concentrators above the maximum retail price mentioned on the label. In a few cases, a payment of up to Rs 1,500 was received over and above the MRP towards delivery charges., He also submits that the concentrators were imported not only from China but also from Europe, and if any customer is not satisfied with the performance, the company undertakes to take back the device and refund the price., I have heard the submissions made on behalf of the parties and have carefully perused the material available on record, including the additional documents such as the copy of the writ petition preferred by M/s Matrix before the Delhi High Court along with its annexures, and the case diary up to 10 May 2021 submitted by the Investigating Officer through email in the form of two PDF files, a photograph of the cartons containing some of the oxygen concentrators seized by the Officer displaying the MRP label, and screenshots of the booking slips and invoices handed over by customers to the guard of M/s Matrix at the time of delivery., Although the Delhi High Court should not delve too deeply into the merits of the case at the time of adjudicating a bail application, particularly when investigation is still at an initial stage, pertinent questions have been raised regarding the applicability of the Essential Commodities Act, 1955 (as amended) and other provisions of law to the facts. Even if the worst‑case scenario is assumed against the accused as per the allegations, the Court deems it appropriate to deal with the issues at the stage of bail adjudication. However, it is clarified that the observations made herein shall not have a bearing on the merits of the case and are not meant to interfere with the ongoing investigation but only to effectively adjudicate the present bail application., A bare perusal of the FIR shows that it has been registered for the offence under Section 3 of the Epidemic Diseases Act, 1897, Section 3 read with Section 7 of the Essential Commodities Act, 1955, and Sections 188, 420, 120B of the Indian Penal Code. The relevant facts as per the FIR are that on 5 May 2021, the Station House Officer of PS Lodhi Colony, along with his driver, was on patrolling duty for implementation of the lockdown. At about 6:30 pm, he reached Central Park, Main Market, Lodhi Colony and saw two to three vehicles in front of Nege & Ju Restaurant. Finding the restaurant open despite lockdown, he entered for checking and found several cartons containing 32 oxygen concentrators of different descriptions, five professional thermal imagers and around 1,000 KN‑95 masks., Four accused namely Gaurav Suri, Hitesh Kumar, Vikrant and Satish Sethi were found present inside the restaurant and could not produce any documents regarding the equipment. They confirmed that the equipment was not required for medical needs of their near relatives and that they were merely hoarding the devices with an intent to black market them at exorbitant prices., The Station House Officer also found another person, Ayush Agarwal, on the spot who informed that he had purchased an oxygen concentrator through the X‑Factor App for approximately Rs 70,000 and had visited the restaurant to take delivery. He was discharged without recording his statement due to lack of time., Upon further enquiry, accused Gaurav Suri claimed himself to be the business head of M/s Matrix and the remaining three accused to be employees of the company. He also disclosed the name of Navneet Kalra as the restaurant owner, whose consent, according to him, was obtained for using the restaurant for black marketing., Based on the enquiry, the Station House Officer concluded that prima facie offences under Section 3 of the Epidemic Diseases Act, Section 3 read with Section 7 of the Essential Commodities Act, and Sections 188, 420, 120B of the IPC were made out. Accordingly, the FIR was registered, the equipment seized, and all four accused arrested on the spot. Subsequently, at the instance of the accused, a total of 524 oxygen concentrators were recovered by the Investigating Officer from different locations., Even if all averments in the FIR are presumed true, no prima facie case under Section 420 IPC is made out against the accused from the contents of the FIR., In his reply to the bail application, the Investigating Officer submitted that there is a statement of one aggrieved person who first quoted the price of an oxygen concentrator as Rs 49,999 and the next day forced him to pay Rs 55,000 due to urgent requirement. Two persons bought concentrators from co‑accused Navneet Kalra, found the performance below advertised level, and demanded refund or replacement, which was refused., The statement was received by the Investigating Officer through email on 9 May 2021. No other complaint or social media post is mentioned in the case diary up to 10 May 2021. In my considered opinion, at best a case of breach of contract is made out and no prima facie case for cheating under Section 420 IPC is established, especially as the allegations are specifically against co‑accused Navneet Kalra and not against the present accused., The Court refrains from reproducing the statement of the customer in its order, in view of the submission of the Additional Public Prosecutor that although the Court may peruse the case diary to satisfy itself about the existence of a prima facie case, the diary should not be shared with the accused and detailed reproduction should be avoided, as per the pronouncement of the Supreme Court in Director, CBI & Ors. v. Niyamvedi (1995) 3 SCC 601., It is significant to note that the Investigating Officer has alleged a criminal conspiracy between all the accused including co‑accused Navneet Kalra, but there is nothing on record to suggest that the co‑accused had any concern with M/s Matrix except that Dayal Opticals, allegedly owned by Navneet Kalra, purchased around 250 oxygen concentrators from M/s Matrix and he was separately selling them through private WhatsApp groups, Facebook and Twitter, with delivery from two restaurants, Town Hall Restaurant and Khan Chacha Restaurant, which are allegedly run by a hospitality company in which Navneet Kalra has a substantial stake., Counsel for accused Hitesh clarified that even in the restaurant Nege & Ju, co‑accused Navneet Kalra has a substantial stake and, since the restaurant was closed due to lockdown, he acceded to the request of the CEO of M/s Matrix to provide a place for delivery of concentrators sold through the X‑Factor App. The co‑accused Hitesh, manager of Town Hall Restaurant, visited Nege & Ju for delivery of food to M/s Matrix employees, which can be verified from utensils found in his seized car., Without going into the merits, this Court has observed that even from the statement of the alleged aggrieved, no prima facie case under Section 420 IPC is made out, and the alleged social media posts and the Investigating Officer’s plea regarding two more persons being dissatisfied with the concentrators do not appear in any case diary produced before the Court. At this stage, there is no prima facie case against the present accused for the offence under Section 120B read with Section 420 IPC., The Investigating Officer submits that more victims may come forward and investigation is ongoing. The Officer is free to continue investigation without being influenced by these observations, which record the Court’s opinion at this stage based on material collected., It is expected that the Investigating Officer shall carry out the investigation efficiently, without fear or favour, and may add more charges as evidence emerges, taking all steps as per law, including arrest, seeking remand, search and seizure, while keeping in mind the guidelines laid down by the Supreme Court of India and the Delhi High Court., It cannot be appreciated that an FIR is registered first incorporating non‑bailable offences such as Section 420 IPC and the accused are arrested without even a prima facie case under Section 420 IPC, and thereafter efforts are made to collect evidence to support the charge., Now coming to the issue of applicability of provisions of Section 3/7 of the Essential Commodities Act to the facts of the present case, the Delhi High Court in its order dated 2 May 2021 in WP 4984/2021 directed the State to ensure that none of the equipment or medicines used in the treatment of COVID‑19 are sold above the maximum retail price, and any person indulging in hoarding or selling above MRP shall be booked and a contempt action may be initiated., The Investigating Officer has looked into relevant notifications on whether oxygen concentrators are essential commodities. He relied upon S.O. No. 648(E) dated 11 February 2020 in terms of Section 3(b)(iv) of the Drugs and Cosmetics Act, 1940 read with S.O. No. 1232(E) dated 31 March 2020 of the National Pharmaceutical Pricing Authority and order No. F.52/DC.HOO/2020/199 dated 7 May 2021 of the Drugs Control Department of the Government of NCT of Delhi to contend that by virtue of the notifications all medical devices including oxygen concentrators have been notified as drugs within the meaning of Section 3(b)(iv) of the D&C Act and DPCO, 2013, and therefore violation invites action under Section 3/7 of the Essential Commodities Act., Regarding N‑95 masks, the Investigating Officer relied upon S.O. No. 1087(E) dated 13 March 2020 of the Department of Consumer Affairs, Government of India and F.12(37)/2020/DP/NPPA/Div. II dated 13 March 2020 of the NPPA to claim that a prima facie case under Section 3/7 of the Essential Commodities Act is made out against the accused., Counsel for the accused submits that the provisions of Section 3/7 of the Essential Commodities Act are not applicable for want of a notification regulating the price of oxygen concentrators. Even if the Act is attracted, at best a case under Section 3(2)(h) and (i) of the Act can be said to be made out, which is punishable with imprisonment up to one year and hence is bailable., Section 2A of the Essential Commodities Act defines an essential commodity as a commodity specified in the schedule appended to the Act, which can be amended by the Central Government. A bare perusal of the schedule shows that drugs are listed at serial number 1, meaning all drugs are declared essential commodities. As per the explanation, drugs shall have the same meaning as assigned in Section 3(b) of the Drugs and Cosmetics Act. Under Section 3(b)(iv) of the D&C Act, medical devices notified by the appropriate Government shall also fall within the definition of drugs.
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SO 648(E) dated 11.02.2020 of Ministry of Health and Family Welfare, all medical devices have been notified as drugs within the meaning of Section 3(b)(iv) of the Drugs and Cosmetics Act and hence the same shall automatically fall within the purview of the Essential Commodities Act. Section 3 of the Essential Commodities Act empowers the Central Government to issue an order regulating or prohibiting the production, supply and distribution of the Essential Commodities including the trade and commerce therein so as to maintain or increase supplies of any essential commodities or for securing their equal distribution and availability at fair prices., Section 3(2) of the Essential Commodities Act specifies some of the matters which such an order may cover without prejudice to the generality of the powers conferred under Section 3(1) of the Act. As far as drugs are concerned, the Central Government has promulgated an order within the meaning of Section 3(1) of the Essential Commodities Act viz. Drug Price Control Order, 2013 (DPCO) which deals with the several subjects under Section 3(2)(a) to (j) of the Essential Commodities Act., By virtue of notification No. SO 1232(E) dated 31.03.2020 of the National Pharmaceutical Pricing Authority, all medical devices are notified to be governed by the DPCO. However, no notification for capping the maximum retail price of oxygen concentrators has been issued by the National Pharmaceutical Pricing Authority, to whom the powers of the Central Government under paragraph 3 of the DPCO read with Section 3 of the Essential Commodities Act have been delegated by virtue of notification No. 1249(E) dated 06.04.2020 of the Ministry of Chemicals and Fertilisers., Since the oxygen concentrator has not been incorporated in the schedule appended to the DPCO, the relevant paragraph of the DPCO applicable to oxygen concentrators is paragraph 20, which talks about monitoring of maximum retail price of all drugs, meaning that there is a restriction upon the manufacturer (which includes importer as per paragraph 2(n) of DPCO, 2013) not to increase the maximum retail price by more than 10 per cent in a period of twelve months. For that purpose a notification vide Office Memorandum No. F.20(8)/09/2019/Div. III/NPPA dated 29.06.2020 has been issued by the National Pharmaceutical Pricing Authority requiring the manufacturers/importers of oxygen concentrators to provide requisite information about maximum retail price within ten days in pursuance to paragraph 29 of the DPCO, a direction allegedly not complied with by the accused., Paragraph 29 of DPCO, 2013 covers the subject matter in terms of Section 3(2)(h) and (i) of the Essential Commodities Act and hence, in terms of Section 7(1)(a)(i) of the Essential Commodities Act, the said violation shall be punishable with imprisonment which may extend up to one year and shall be bailable., I do not find any force in the submission of the learned Additional Public Prosecutor for the State regarding the said violation being governed by Section 3(2)(c) and (d) of the Essential Commodities Act and hence punishable with imprisonment up to seven years in the absence of any notification for capping the price of oxygen concentrators and other devices, which was done by the Central Government in case of N‑95 masks and sanitizers up to 30.06.2020 vide notification SO No. 1087(E) dated 13.03.2020 of the Department of Consumer Affairs, Government of India and N(12)(37)/2020/DP/NPPA/Div. II dated 13.03.2020 of the National Pharmaceutical Pricing Authority. The same was allowed to lapse and not renewed after 30.06.2020., An order by the Drugs and Control Department of the Government of NCT of Delhi dated 07.05.2021 does not say anything more than what is stated in paragraph 26 of the DPCO, that no person shall sell the medical devices at a price more than the maximum retail price. Moreover, the said order cannot have a retrospective effect so as to hold the accused guilty of an offence allegedly committed prior to 05.05.2021., There is no material collected by the Investigating Officer till date that the accused were found selling the concentrators at a price more than the maximum retail price, which as per label, admittedly affixed on all the boxes containing concentrators, is Rs 69,999. Upon enquiry, the Investigating Officer pointed out some screenshots reflecting the payment of Rs 700 to Rs 1,500 over and above the maximum retail price only in case of three customers, which, as per the accused and as per some of the invoices relied upon by him, were on account of delivery charges. Thus, as on date, there is nothing to suggest violation of paragraph 26 of the DPCO by the accused bringing the case under Section 3(2)(c) of the Essential Commodities Act., As far as applicability of paragraph 3(2)(d) of the Essential Commodities Act is concerned, the word ‘otherwise’ therein should be construed ejusdem generis with the preceding words ‘regulation by licences and permits’. As per Government Specification Report 102(E) dated 11.02.2020, the non‑scheduled medical devices are still under the voluntary registration/licence regime and it is not mandatory for the accused to obtain a licence or registration for manufacturing, import or sale of the oxygen concentrators at least as on date., For want of any capping on the maximum retail price, manufacturers/importers are free to fix any maximum retail price for the said devices subject, of course, to the cap of not more than 10 per cent increase in maximum retail price every year in terms of paragraph 20 of the DPCO., Despite repeated directions by the Honorable High Court of Delhi, the government is not coming forward to cap the price of essential medical devices. Nor has any regulation been made by the government for sale of the same by the importers to the government for its equitable distribution to needy persons for reasons best known to the government., Mere booking of the manufacturers/importers under the criminal law without a regulatory regime in place and without any evidence will be counter‑productive and shall create a further scarcity of already scarce medical devices as it will discourage the manufacturers and importers from pushing their resources so as to make the essential medical devices available to the needy citizens., The observations of this Delhi High Court should not be construed that this court has any sympathy with the black marketers and hoarders of the essential medicines or medical devices; however, the vacuum in the law needs to be filled up by the legislature or, for that matter, by the executive by issuing appropriate regulations in pursuance to the powers delegated by the legislation to the executive., The Court is also unable to comprehend why the provisions of the Prevention of Black Marketing and Maintenance of Supplies of the Essential Commodities Act, 1980 are not being invoked by the State if the State wants to stop black‑marketing. It may be noted that the gravamen of the case of prosecution is the alleged black marketing and hoarding of concentrators by the accused, however, the aforesaid terms are not defined in any of the Acts under consideration before this Court., The only relevant provisions which seem to regulate black‑marketing and hoarding (as per the meaning of the terms in common parlance) in case of non‑scheduled drugs (which presently includes medical devices) in the DPCO appear to be paragraphs 20, 25, 26 and 28. Out of these, paragraphs 20, 25 and 26 seem to take care of the black‑marketing of the non‑scheduled drugs such as oxygen concentrators and masks, and paragraph 28 seems to have taken care of hoarding. However, as has been observed hereinabove, no evidence seems to have been collected by the Investigating Officer regarding the said violations till date., Paragraph 28 of the DPCO indicates that M/s Matrix had been selling the concentrators through the X Factor App, which is reported to be available on the Play Store and Mac since the year 2016., In view of the foregoing discussions, in my considered opinion, the accused is entitled to bail at this stage, more so when, as per the Investigating Officer, all the documents required from the accused at this stage have been supplied to the Investigating Officer, are being verified, and the accused has clean antecedents., The apprehension of the State that the accused may try to influence the witnesses and tamper with the evidence can be allayed by imposing suitable conditions upon the accused. Similarly, by directing the accused to join the investigation, the plea of the State regarding investigation being at an initial stage and chances of the accused hampering the investigation can be taken care of., Merely because the Investigating Officer can apply for police custody remand of the accused during the first fifteen days cannot be the ground to deny bail to the accused., It is also significant to note that the accused was not arrested from the spot; he was arrested in the police station on 07.05.2021 when he went to join the investigation as per directions of the Investigating Officer., Thus, the accused is hereby admitted to bail on furnishing of personal bond and surety bond in sum of Rs 50,000 each to the satisfaction of the learned Metropolitan Magistrate (Special Executive), with the condition that the accused shall not directly or indirectly try to influence the witnesses, shall not in any manner tamper with the evidence, and shall join the investigation as and when directed by the Investigating Officer., Bail bonds not furnished. Bail application of the accused is thus disposed of. A copy of this order be sent to the learned counsel for the applicant, the Investigating Officer as well as the learned appellant for the State through e‑mail forthwith. A copy of the order be also sent to the Superintendent Jail concerned through e‑mail and jail diary. The same be also uploaded on the CIS server as well as the District Court website.
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Date of Decision: 31 January 2024. Through: Mister Rajeshekhar Rao, Senior Advocate with Mister Aditya Verma, Miss Tanya Varma, Miss Devyani Nath and Mister Prithvi Gulati, Advocates, versus Through: Mister Jayant Mehta, Senior Advocate with Mister Gaurav Miglani, Mister Tarun Gandhi, Mister Sharabh Srivastava, Miss Nanki Aneja and Miss Gaurvi Arora, Advocates. The appellant has filed the present intra‑court appeal impugning a judgment dated 14 December 2023 (hereafter the impugned judgment) passed by the learned Single Judge of the Delhi High Court dismissing the appellant’s application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (hereafter the Code of Civil Procedure) being Interim Application No. 25074/2023 in CS (COMM) 884/2023 captioned Freebit AS v. Exotic Mile Private Limited., The appellant, a corporation incorporated under the laws of Norway, had filed the aforesaid suit alleging infringement of its registered patent, which is the subject matter of Patent Application No. IN276748 (hereafter referred to as the suit patent or IN 748) titled “Improved Earpiece”. IN 748 was granted to the appellant with effect from 30 May 2008., The appellant claims that it is a world‑leading supplier of comfortable and secure solutions for in‑ear products and has emerged as a pioneer in the field of ergonomically C‑shaped earphone interface. The appellant asserts that it developed and innovated the C‑shaped interface to cater to the wave of earphones intended to be worn for an extended period of time., The appellant alleges that the respondent, who is engaged in marketing several technology products including earphones, smart watches, over‑the‑ear headphones and speakers under the brand name Boult, is infringing the appellant’s IN 748. The appellant claims that the respondent’s website reveals that most of the products offered by it infringe the appellant’s patent., The learned Single Judge of the Delhi High Court rejected the appellant’s application essentially on two grounds. First, the learned Single Judge found that the appellant had not approached the court with clean hands and had furnished incorrect information regarding the corresponding international applications in respect of the suit patent and their status in various jurisdictions. The learned Single Judge reasoned that since the appellant had suppressed as well as misrepresented material facts, it was disentitled to any equitable relief., Second, the learned Single Judge held that, prima facie, there was a credible challenge to the validity of IN 748. The Delhi High Court noted that there were at least two decisions rendered by courts in different jurisdictions: the decision of the United States Federal Court of Appeal in Freebit AS v. Boss Corporation dated 8 October 2009 bearing No. 18‑2365 and the decision of the United Kingdom Patent Court in Boss Corporation v. Freebit AS, 2018 (England and Wales High Court 889 (Pat)) where the validity of the suit patent was successfully assailed. The learned Single Judge held that the respondent, on the basis of the aforesaid decisions, was able to, prima facie, demonstrate that the suit patent may be vulnerable to revocation., There is no cavil that, in terms of the High Court of Delhi Rules Governing Patent Suits, 2022 (hereafter Patent Suit Rules), it was necessary for the appellant to include a brief summary of international corresponding applications/patents; the challenge to the suit patents and the outcome thereof; and the details of international courts or tribunals holding or rejecting the validity of the suit patent or a patent which is substantially in respect of the same invention, amongst other particulars. The relevant extract of Rule 3 of the Patent Suit Rules is set out below: Content of Pleadings – The plaint in an infringement action shall, to the extent possible, include the following aspects: (iv) Brief summary of international corresponding applications/patents and grant thereof including details of worldwide protection for the invention; (v) Brief prosecution history of the suit patents; (vi) Details of any challenge to the suit patents and outcome thereof; (vii) Details of orders, if any, passed by any Indian or international court or tribunal, upholding or rejecting the validity of the suit patent or a patent which is for the same or substantially the same invention., The learned Single Judge also referred to Order XI Rule 1 of the Code of Civil Procedure as amended by the Commercial Courts Act, 2015, which expressly required the plaintiff to disclose all relevant documents including those which are adverse to the plaintiff’s case along with its plaint., There is, thus, no dispute that the appellant was required to disclose, along with its plaint, information regarding its applications in respect of the suit patent or a patent for substantially the same invention in India as well as in other jurisdictions. The appellant was required to disclose the proceedings in respect of challenge to the grant of patent in India and in other jurisdictions as well as the outcome of such a challenge., In its suit for permanent injunction, the appellant disclosed the status of its corresponding foreign applications in respect of the invention covered under the suit patent as follows: ARIPO – Application No. AP/P/2009/005049, pending; OAPI – Application No. 1200900400, pending; Australia – Application No. 2008 257820, published; China – Application No. 200880018303.9, pending; Japan – Application No. 2010‑510247, pending; Indonesia – Application No. W00200903305, pending; South Korea – Application No. 2009‑7024923, granted; Israel – Application No. 202192, pending; Canada – Application No. 2,689,100, pending; Egypt – PCT1731/2009, pending; Eurasia – Application No. 2009148293, pending; New Zealand – Application No. PCT/NO08/00190, pending; Philippines – Application No. PCT/NO08/00190, pending; United States – Application No. 12/600795, granted., The plaintiff has licensed the said patent to Boat Lifestyle in India and to other third parties in the United States, Japan, Australia and South Korea, among others, for the purpose of incorporating IN 748 in their respective earphones. Accordingly, in India, the products under the suit patent have been available since 2021. The plaintiff has earned royalties of approximately US $50,000 per quarter in India for IN 748. The suit patent is being enforced in India for the first time., It is submitted that the European patent 2177045 corresponding to IN 748 was revoked by the European Patent Office by order dated 27 April 2018., During the course of proceedings before the learned Single Judge, the learned counsel for the respondent produced a statement which clearly reflected that the information disclosed by the appellant was not correct., In its plaint, the appellant stated that it had licensed the said patent to third parties in the United States, Japan, Australia and South Korea, amongst others, for incorporating the suit patent in their respective earphones. However, the learned Single Judge found that the appellant’s patent application filed in Japan (bearing Application No. 2010‑510247), which was reflected as pending in the plaint, had been refused in trial and appeal. The learned Single Judge also noted that the appellant had disclosed the status of the said application filed in Japan in Form 3 dated 26 March 2016 filed in the Indian Patent Office as granted, and that the same also raised issues regarding the accuracy of the information provided by the appellant to the Indian Patent Office., On a pointed query from the Delhi High Court, Mister Rajeshekhar Rao, Senior Counsel appearing for the appellant fairly stated that none of the facts noted by the learned Single Judge were erroneous. He readily conceded that the information provided in the plaint was erroneous to the extent noted by the learned Single Judge. He, however, submitted that the conclusion drawn by the learned Single Judge that there was active misrepresentation or that information was suppressed to secure interim orders was ill‑founded. He submitted that the person responsible for providing the information had incorrectly collated the status of various applications filed by the appellant in various jurisdictions and therefore the status disclosed in the plaint was incorrect. However, there was no mala fide intention on the part of the appellant., Mister Rao pointed out that the plaint had also disclosed that the appellant’s application for European Patent (European Patent 2177045) corresponding to IN 748 was revoked by the European Patent Office by an order dated 27 April 2018. He submitted that this disclosure clearly established that the appellant had no intention to withhold information regarding revocation of its patent in other jurisdictions. He submitted that the appellant had no reservations to disclosing relevant facts that were adverse to the case set up by the appellant. He submitted that the fact that the correct status of the appellant’s application for patent in Japan had not been disclosed was clearly on account of a bona‑fide error., Mister Mehta, Senior Counsel appearing for the respondent, countered the said contention. He handed over a tabular statement setting out the correct status of various applications in support of his contention that the discrepancies in the information provided in the plaint were not on account of any inadvertent error but by mischievous design. The table showed, for example, that the Japanese application No. 2010‑510247 was granted in Form 3 but pending in the plaint because the patent was actually invalidated; the New Zealand application No. 581187 was granted but shown as pending because the patent had lapsed; the European application No. 08766905.7 was granted but not disclosed because the patent was revoked; and similar intentional discrepancies for other jurisdictions., It is relevant to note that, although Mister Rao contested the contention that the incorrect information was intentionally placed in the plaint, he did not dispute the status of various applications as reflected in the tabular statement handed over by Mister Mehta., It is material to note that the appellant had disclosed the status of one of its applications filed in the United States as granted, but had not disclosed that the patent had been invalidated. The status of three other United States applications corresponding to the suit patent were not disclosed in the plaint. One of these applications (Application No. 14/109,565) was invalidated; the other two applications filed in the United States Patent Office were abandoned. The appellant had disclosed the status of its corresponding application filed in Japan (Application No. 2010‑510247) as pending; however, that patent had been invalidated. It is also material to note that the appellant had not disclosed the status of its other Japanese application (Application No. 2012‑106827) filed for grant of a patent corresponding to the suit patent. The status of that application was disclosed by the appellant in Form 3 dated 26 March 2016 as pending, but the application was refused., There are several other discrepancies in the information provided by the appellant in its plaint. The appellant’s applications for corresponding patents had been refused by the respective patent offices in Brazil, Egypt, China and Japan; withdrawn or deemed withdrawn in Hong Kong and Eurasia; revoked or invalidated in Europe, the United Kingdom and the United States; and lapsed in various countries. These discrepancies are relevant for considering the appellant’s application for interim relief., Undeniably, the errors pointed out above are significant and adverse to the appellant’s case. Given the vast extent of incorrect presentation, the fact that the appellant correctly disclosed that its application for European Patent was revoked does not mitigate the overall misrepresentation on the part of the appellant. Revocation of the patent in one jurisdiction while persisting in a large number of jurisdictions would suggest that the revocation is an isolated aberration. However, revocation and refusal to grant the same in several jurisdictions would suggest that there is a serious challenge to the validity of the patent., In view of the above, the conclusion of the learned Single Judge of the Delhi High Court that the appellant had suppressed and misrepresented material facts cannot be faulted. There is no cavil that interim relief under Order XXXVII Rule 1 and 2 of the Code of Civil Procedure is discretionary relief and suppression or misrepresentation of facts by a party disentitles it to such relief., The learned Single Judge referred to an earlier decision of this Court in Satish Khosla v. M/s Eli Lilly Ranbaxy, 1997 SCC OnLine Delhi 935. In that case the Court rejected the suit on account of the failure to disclose earlier proceedings. The learned Single Judge also referred to various authorities where courts declined relief on account of misrepresentation by the party seeking relief. There is no cavil that where a party seeking interim relief has withheld necessary information and misrepresented material facts, it is disentitled to equitable relief. We are, thus, unable to accept that the learned Single Judge disregarded any settled principles of law in rejecting the appellant’s application for interim relief., It is also material to note that, unlike the Trade Marks Act, 1999, where grant of a trademark leads to a presumption of its validity, grant of a patent does not lead to any statutory presumption as to its validity. Thus, if a defendant raises a credible challenge to the validity of the patent, the same is relevant for deciding whether any interim orders restraining the defendant from using the patent in question are warranted., In the present case, the Delhi High Court noted that patents corresponding to the suit patent had been invalidated in various countries. In Japan, the patent had been refused after a trial. As noted above, there is no dispute that the appellant’s applications for grant of patents corresponding to the suit patent had been rejected in various countries. The patent has been invalidated in some of the countries as noticed above., The respondent entered appearance to contest the grant of interim relief and relied upon the decisions rendered in other jurisdictions refusing and/or invalidating the patent corresponding to the suit patent. In the given circumstances, the Delhi High Court concluded that the defendants did have a credible challenge to the validity of the suit patent., The triple test. Apart from the prima facie case, the learned Single Judge also found that the balance of convenience was in favour of the appellant. According to the appellant, it had licensed the suit patent to an enterprise in India and to third parties in the United States, Japan and Australia for incorporating the same in their respective earphones. The appellant had also sought damages quantified at two crore rupees on account of alleged infringement of its suit patent. If the appellant succeeds in its action, it can be compensated in terms of money. However, if the patent is found invalid, a grant of injunction restraining the respondent from using the same would unfairly prejudice the respondent by interdicting its current business. In the given circumstances, the learned Single Judge, after applying the triple test – existence of prima facie case, balance of convenience, and irreparable injury – rejected the appellant’s application for interim relief., In Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727, the Supreme Court held that appeals against the exercise of discretion by the Single Judge will not interfere with the discretion of the court of first instance except where the discretion has been exercised arbitrarily, capriciously, perversely, or where the court ignored settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The appellate court will not reassess the material and seek a different conclusion if the one reached by the lower court was reasonably possible on the material., In the present case, we are unable to accept that the learned Single Judge’s exercise of discretion in declining the interim relief is arbitrary or in ignorance of settled principles of law. Thus, no interference in the impugned judgment is warranted. The appeal is unmerited and, accordingly, dismissed. All pending applications are also disposed of.
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S. Manikumar, Chief Justice, challenges the act of a speech allegedly defying the Constitution of India by respondent No.4, an MLA representing Chengannur Constituency, Alappuzha district, and a Minister then, in a political meeting. Writ Petition (Civil) No. 24222 of 2022 is filed seeking issuance of a writ of quo warranto or any other appropriate writ, order or direction declaring that the fourth respondent is not entitled to hold the office of the third respondent – Member of Kerala Legislative Assembly. According to the petitioner, the act of respondent No.4 is a clear violation of Articles 173(a) and 188 of the Constitution of India, and a crime has also been registered against him as Crime No. 600/22 by the Keezhvaipur Police Station, Pathanamthitta district., Writ Petition (Civil) No. 24233 of 2022 is filed being aggrieved by the inaction of the respondents in taking stringent action against the former Culture, Cinema and Fisheries Minister and sitting MLA of Chengannur Constituency – respondent No.1, for issuance of a writ of quo warranto commanding the first respondent to forthwith resign or to restrain from the post of MLA. He has also sought a direction to the seventh respondent, the Home Minister, Ministry of Home Affairs, New Delhi, represented by the Assistant Solicitor General of India for the Kerala High Court, to make necessary reports regarding the constitutional crisis occurring in the State and take proper action under Article 356 of the Constitution of India., Apart from that, the petitioner in Writ Petition (Civil) No. 24233 of 2022 has also sought a mandamus directing respondents Nos. 5, 6, 8 and 9 to constitute a Special Team to register appropriate cases against the first respondent, expedite the investigation, and file a report before the competent court within one month., For convenience of discussion, the facts in Writ Petition (Civil) No. 24233 of 2022 are as follows. The petitioner claims that he is the President of Bahujan Dravida Party (BDP), which according to the petitioner is a national political movement for the weaker sections of the country, working with the proper registration number issued by the Election Commission of India. No documents are produced by the petitioner to ensure that the political party is a registered one with the Election Commission of India., The grievance highlighted by the petitioner is that respondents 2 to 10 – State Secretary, Communist Party of India (Marxist), Kerala State Committee, Thiruvananthapuram; Chief Minister of Kerala; Additional Chief Secretary, Department of Home Affairs; Director General of Police and State Police Chief; the Home Minister, Ministry of Home Affairs, represented by the Assistant Solicitor General of India for the Kerala High Court; Director General, National Investigation Agency, New Delhi; Superintendent of Police, Alappuzha District; and the Editor, Janam TV, Thiruvananthapuram – have failed to take appropriate action against the former Minister for Culture, Fisheries and Youth Affairs and sitting MLA of Chengannur Municipality, Mr. Saji Cherian, respondent No.1, a CPI(M) leader, for the derogatory remarks or deliberate attack against the Constitution in his speech made on 3 July 2022., According to the petitioners, the speech was live telecast through Facebook, a social media platform handled by the Area Committee of Pathanamthitta district, in which the minister clearly expressed disloyalty to the Constitution of India and thereby violated the oath administered to him as a Member of Legislative Assembly that he will abide by the Constitution of India., The petitioners contend that the problem arising from the speech does not end with the minister's resignation, but the first respondent should resign from the post of Member of Legislative Assembly since he has violated the oath while taking the pledge of faith over the Constitution to become an MLA., With the above background facts, the contention advanced is that the first respondent MLA had not corrected his statements even after his resignation as the Minister. He is still occupying the constitutional post of MLA, declaring his disloyalty to the Constitution, which would adversely affect the utmost faith in the Constitution, become a regular habit of disrespecting it, and pose a significant threat to national integrity., Refuting the allegations, a statement dated 1 August 2022 has been filed on behalf of the State, contending as follows: Articles 191 and 192 of the Constitution of India constitute a composite machinery for the purpose of disqualifying a Member of the Legislature. Article 191 prescribes qualification and Article 192 provides the procedure for deciding disputes in respect of those qualifications., The definition of the word \disqualified\ clearly states that a person can be disqualified from being a Member under the provisions of the said Chapter and on no other ground. Apart from the grounds mentioned under Articles 191(1)(a) to 191(1)(d), the other grounds for disqualification from membership of the Legislature have been provided by Parliament under Sections 8, 8A, 9, 9A, 10 and 10A of the Representation of the People Act, 1951. Section 8 deals with disqualification on conviction for certain offences; Section 8A provides for disqualification on ground of corrupt practices; Section 9 provides for disqualification for dismissal for corruption or disloyalty; Section 9A deals with the situation where there is a subsisting contract between the person and the appropriate Government; Section 10 lays down disqualification for office under a Government company; and Section 10A deals with disqualification for failure to lodge account of election expenses. Apart from these disqualifications, there are no other disqualifications and, as is noticeable, there can be no other ground. Thus, the prescription as regards disqualification is complete in view of the language employed in Section 7(b) read with Sections 8 to 10A of the Representation of the People Act, 1951. The Constitution, in Article 191, and Parliament, by way of Chapter III of the Representation of the People Act, 1951, have very clearly enumerated the grounds for disqualification from membership of the Legislature and the same leaves no room for any new ground to be added or introduced., As to whether violation of oath of office can be a ground for disqualification of a Member of the Legislature, the learned Advocate General submitted that apart from the disqualifications mentioned in the Constitution under Article 191 and Chapter III of the Act, breach of oath of office is not a qualification specified in the Constitution or under any law made by Parliament. He contended that there is no express provision in the Constitution which attaches specifically any disqualification to a legislator who commits breach of oath., It is further contended that the Constitution has defined the disqualifications of a Member of the Assembly and that Parliament has, by law made by it, added grounds for disqualification. He also pointed out that it is not within the power of any authority to change or further add an additional disqualification to the Constitutionally prescribed and legislatively mandated grounds for disqualification. To accept any breach of oath of office as a ground of disqualification from membership of the Legislature would amount to adding to the grounds of disqualification provided under the Constitution and bylaw made by Parliament., Regarding maintainability of a writ petition for issuance of a writ of quo warranto on the ground of violation of oath of office, the learned Advocate General has contended that it is settled law that a writ of quo warranto cannot be issued on allegations of violation of oath. It is also settled law that the question of breach of oath of office is outside judicial review under Article 226 of the Constitution of India. In support of the same, the learned Advocate General has relied on several decisions of the Supreme Court of India as well as various High Courts. He further contended that satisfaction of the President, on receipt of a report from the Governor of a State or otherwise, that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution of India, must necessarily precede invocation of the measure contemplated under Article 356. He contended that the satisfaction regarding existence of a situation in the State must be that of the President of India. Kerala High Court, under Article 226 of the Constitution of India, cannot encroach upon the constitutional functions of the President of India. Moreover, the facts highlighted by the writ petitioner cannot give rise to even a faint inference that a situation has arisen in which the Government of a State cannot be carried on in accordance with the constitutional provisions., Regarding the submissions of the petitioners touching upon Articles 173(a) and 188 of the Constitution of India, the learned Advocate General contended that Article 173(a), inter alia, mandates that a person wanting to be chosen to fill a seat in the legislature of a State must make and subscribe before an authorized person an oath or affirmation according to the form set out in the Third Schedule of the Constitution. Form VII A provides for the form of oath or affirmation to be made by a candidate for election to the legislature of a State. Article 188, inter alia, mandates that every member of the Legislative Assembly, before taking a seat, must take an oath or affirmation according to the form set out in the Third Schedule. Form VII B provides for the form of oath or affirmation to be made by a Member of the Legislature of a State. Violation of the mandate of Article 188 entails the penalty contemplated under Article 193 and nothing more. At any rate, the petitioners do not have a case that the incumbent Member of Kerala Legislative Assembly from Chengannur had not subscribed to or affirmed the oaths under Forms VII A and VII B of the Third Schedule to the Constitution., Regarding the submissions of the petitioners touching upon Section 9(1) of the Representation of the People Act, 1951, the learned Advocate General submitted that Section 9 contemplates disqualification for dismissal for corruption or disloyalty. The disqualification shall be for a period of five years from the date of such dismissal. The incumbent Member of Kerala Legislative Assembly from Chengannur has not been dismissed for corruption or disloyalty to the State. In such circumstances, it cannot be said that he is liable to be disqualified under Section 9(1) of the Act, 1951. Any contrary interpretation of Section 9, as sought for in Writ Petition (Civil) No. 24233 of 2022, will go against the law laid down by the Constitutional Bench of the Supreme Court of India in Public Interest Foundation and Others v. Union of India (2019) 3 SCC 224., Regarding the prayer for issuance of a writ in the nature of mandamus directing the constitution of a Special Team to register an appropriate case against the incumbent Member of the Kerala Legislative Assembly from Chengannur and to expedite the investigation monitored by this Court, with a report to be filed before the competent court within one month, the learned Advocate General contended that, as is discernible from Exhibit P2 in Writ Petition (Civil) No. 24222 of 2022, a case has been registered under the Prevention of Insults to National Honour Act, 1971. The same is not a scheduled offence under the National Investigation Agency Act, 2008, for the Director General of the National Investigation Agency, the eighth respondent, to investigate. Further, the petitioner has not made out any grounds warranting constitution of a Special Investigation Team or a Court‑monitored probe. For the foregoing reasons, the learned Advocate General prayed for dismissal of the writ petitions., The Court heard counsel for the petitioners, the Advocate General, the State Attorney, the Special Government Pleader, the standing counsel for the State Election Commission, the Deputy Solicitor General of India, and the Central Government Counsel for the respective respondents and perused the material on record., From Exhibit‑P1 complaint, it is gathered that the petitioners have filed a complaint before the Superintendent of Police, Alappuzha, seeking to take criminal action against the first respondent MLA. In Writ Petition (Civil) No. 24233 of 2022, the petitioner seeks issuance of a writ of quo warranto or other appropriate writ, order commanding the first respondent to immediately resign from the post of MLA; to issue a writ of mandamus directing the Home Minister, Ministry of Home Affairs, New Delhi, the seventh respondent, to make necessary reports regarding the constitutional crisis occurred in the State and take appropriate action and other consequential reliefs as stated above., The sole question to be considered is whether the petitioners are entitled to any relief sought for invoking the powers conferred under Article 226 of the Constitution of India., Learned counsel for the petitioners have advanced arguments on the basis of the pleadings discussed above. The Advocate General and other counsel representing the State officials submitted that the writ petitions are not maintainable in law for the reasons assigned above., The issue with respect to disqualification for membership is dealt under Article 191 of the Constitution of India, which reads: “Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. Explanation: For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.”, Clause (1) of Article 191 adumbrates the disqualification of a person for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State. The provisions are specific and clear, without leaving any doubt that the disqualification can only be those recited therein. Reading of Article 191 makes it clear that unless and until the disqualification prescribed therein is available, a member who has already been elected as a Member of Legislative Assembly is not liable to be proceeded against on the ground of disqualification., Yet another disqualification is prescribed under clause (2) of Article 191 for being a member of the Legislative Assembly of a State Government, if he is disqualified under the Tenth Schedule, dealing with disqualification on the grounds of defection. There is no case of any defection in the instant case., Article 192 of the Constitution of India deals with decisions on the question of the disqualification of members. Clause (1) specifies that if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred to the Governor and his decision shall be final. Clause (2) specifies the manner in which the Governor has to deal with any such reference., On a close reading of Articles 191 and 192, we have no doubt that there is a clear procedure prescribed to deal with any circumstance under the said constitutional mandates, if there are any. Hence, there is no scope for considering the subject issue under Article 226 of the Constitution of India, especially in a case where writ petitions were filed after making a complaint to the Superintendent of Police, Election Commission of India, Election Commission of Kerala, etc., However, material on record discloses that the petitioner in Writ Petition (Civil) No. 24222 of 2022 made a representation to the Governor of Kerala dated 7 July 2022, and the writ petition was filed before this Court on 25 July 2022, even without seeking any relief against it, and without making the statutory authority a party., The Representation of the People Act, 1951, which provides for the conduct of elections of the Houses of Parliament and of the Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections, is prescribed., Section 7(b) of Chapter III, which deals with disqualifications for membership of Parliament and State Legislatures, defines the word \disqualified\ to mean disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State, under the provisions of the said Chapter, and on no other ground., Section 8 of the Act deals with disqualification on conviction for certain offences. It reads: A person convicted of an offence punishable under section 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.) or section 171E (bribery) or section 171F (undue influence or personation at an election) or sections of the Indian Penal Code relating to rape, section 498A (cruelty towards a woman), section 505 (making statements creating enmity), the Protection of Civil Rights Act, 1955, the Customs Act, 1962, the Unlawful Activities (Prevention) Act, 1967, the Foreign Exchange Regulation Act, 1973, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Terrorist and Disruptive Activities (Prevention) Act, 1987, the Religious Institutions (Prevention of Misuse) Act, 1988, the Prevention of Insults to National Honour Act, 1971, the Commission of Sati (Prevention) Act, 1987, the Prevention of Corruption Act, 1988, the Prevention of Terrorism Act, 2002, etc., shall be disqualified where the convicted person is sentenced to (i) only fine, for a period of six years from the date of such conviction; or (ii) imprisonment, and shall continue to be disqualified for a further period of six years since his release. A person convicted for the contravention of any law providing for the prevention of hoarding or profiteering, adulteration of food or drugs, or provisions of the Dowry Prohibition Act, 1961, shall be disqualified from the date of conviction and shall continue to be disqualified for a further six years since his release. A person convicted of any offence and sentenced to imprisonment for not less than two years (other than offences referred to in sub‑section (1) or (2)) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further six years since his release. Notwithstanding anything in sub‑section (1) to (3), a disqualification shall not take effect until three months have elapsed from that date or, if an appeal is filed, until that appeal is disposed of., Section 8A deals with disqualification on the ground of corrupt practices. The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, within three months from the date such order takes effect, by the authority specified by the Central Government, to the President for determination of whether such person shall be disqualified and for what period, provided that the period of disqualification shall not exceed six years., Section 9 deals with disqualification for dismissal for corruption or disloyalty. It reads: A person who having held an office under the Government of India or a State and has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. A certificate issued by the Election Commission to that effect shall be conclusive proof, provided that no certificate shall be issued unless an opportunity of being heard has been given to the person., Section 9A deals with disqualification for government contracts. A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods or execution of works. If the contract has been fully performed, it shall be deemed not to subsist., Section 10 deals with disqualification for office under a Government company. A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a cooperative society) in which the appropriate Government holds not less than twenty‑five percent share., Section 10A deals with disqualification for failure to lodge account of election expenses. If the Election Commission is satisfied that a person has failed to lodge an account of election expenses within the time and manner required and has no good reason, the Commission shall declare him disqualified for a period of three years., Having gone through Sections 8, 8A, 9, 9A, 10 and 10A, we could not locate any law under the said provisions to attribute disqualification against the MLA by invoking the powers conferred under Article 226 of the Constitution; the provisions being transparent with respect to the disqualifications., It is true that under Article 188 of the Constitution of India, every member of the Legislative Assembly before taking his seat must make and subscribe before the Governor, or some other person appointed by him, an oath or affirmation in the form set out in the Third Schedule., Whether the first respondent has violated the oath of office is a matter that could be identified only by a fact‑finding body, taking into account the attendant circumstances. Article 173 of the Constitution of India deals with the qualifications of a person to become a member of a Legislative Assembly, which has nothing to do with the case projected by the petitioners.
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Therefore, we are of the view that, if at all the allegations have any intrinsic relationship with the disqualifications deliberated above, there is a straightforward remedy specified under the Constitution of India., It is not for the High Court to go to the contentions, decipher the truth of it, and grant the reliefs sought by the petitioners under Article 226 of the Constitution of India; much less, the relief of a writ of quo warranto., Moreover, the issue of violation of oath is a matter to be taken under Article 193 of the Constitution of India, which again is a factual circumstance., Considering the facts and circumstances, the provisions of the Constitution and the laws, and the provisions of the Representation of People Act, 1951, discussed above, we do not think that the petitioners have made a case for interference under Article 226 of the Constitution. Needless to say, the writ petitions fail; accordingly, they are dismissed.
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IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 3080/2020 Petitioner Through: Court on its own motion versus Government of NCT of Delhi & Others Respondents Through: Mr. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority; Mr. Sandeep Goel, Director General (Prisons); Mr. Rahul Mehra, Standing Counsel (Criminal) with Mr. Chaitanya Gosain and Mr. Amanpreet Singh, Advocates. CORAM: Honourable Justice Siddharth Mridul, Honourable Justice Talwant Singh. ORDER dated 03 March 2021., The matter was heard by video conferencing on account of the COVID-19 pandemic., Mr. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority, in compliance with the directions passed by the High Court of Delhi vide order dated 18 February 2021, placed on record the minutes of the meeting of the High Powered Committee convened on 17 February 2021., The High Court of Delhi has perused the minutes, particularly the observations and recommendations made under Item No. 4: Taking stock of the current situation inside the jail and in Delhi for deliberations on extension of interim bail., The members of the High Powered Committee, while making observations and recommendations under Item No. 4, took stock of the COVID-19 situation inside the jail premises and reviewed the Delhi State Health Bulletin on COVID-19 of the last three weeks to assess the current situation in Delhi NCR., It was observed that the date‑wise tabulated chart of positivity rate based on tests conducted and positive cases reported between 26 January 2021 and 17 February 2021 reflected a declining trend in COVID‑19 cases in Delhi NCR. As on 17 February 2021 there was only one active case of a prison inmate and no active case among prison staff of Delhi jails., Relevant portion of the minutes dated 17 February 2021 reads as follows: Having gone through the improved situation with respect to COVID‑19 in Delhi NCR region as compared to the previous year, the members reminded themselves of the object for which the committee was formed by the Honourable Supreme Court of India in Suo Motu Petition (Civil) No. 1/2020 In Re: Contagion of COVID‑19, i.e., to determine the class or category of prisoners who can be released on interim bail or parole depending not only upon the severity of the offence but also on the nature of the offence and any other relevant factor. The committee was constituted by the Honourable Supreme Court owing to unprecedented circumstances created by the pandemic, resulting in lockdown and restricted functioning of the courts, and for decongesting the jails so that the principle of social distancing could be followed and the spread of COVID‑19 prevented inside the prisons. The members also recalled the subsequent order dated 13 April 2020 of the Honourable Supreme Court, which clarified that it had not directed the states to compulsorily release prisoners. On the basis of the Supreme Court’s directions, the members noted that the benefits of interim bail granted in such circumstances could not be to the detriment of social order. They opined that this arrangement was temporary and was never meant to supplement the recognized principles of grant or refusal of bail. Further, these measures were taken when, owing to lockdown and prevailing circumstances, the courts were functioning in a restricted manner. The situation has now changed considerably; therefore, this temporary measure cannot be extended indefinitely. Keeping in mind Order No. 40‑3/2020‑DM‑I(A) dated 30 September 2020 passed by the Government of India regarding Unlock‑5 effective from 15 October 2020, and considering the Office Order No. 35/RG/DHC/2021 dated 14 January 2021 of the Honourable High Court of Delhi whereby all courts, including the High Court of Delhi and subordinate courts, have resumed functioning in physical mode or video‑conferencing mode, the committee decided not to further relax the criteria for recommending grant or extension of interim bail to the under‑trial prisoners. The committee also noted that if the COVID‑19 situation in Delhi remains the same or shows a declining trend, no further extension of interim bail shall be made. All such under‑trial prisoners were duly notified to move their respective courts seeking regular bail through private counsel or a panel lawyer of the Delhi State Legal Services Authority, as the case may be. Consequently, the members are of unanimous opinion that, in view of the present COVID‑19 situation in Delhi and the negligible number of COVID‑19 positive inmates compared with the total prison population, there are no grounds for recommending further extension of interim bail. It is resolved accordingly., Moreover, the Honourable Supreme Court of India, in SLP (C) Nos. 13021/2020 titled National Forum on Prison Reforms versus Government of NCT of Delhi and Others (arising out of the final judgment and order dated 20 October 2020 in WPC No. 3037/2020 passed by a full bench of the High Court of Delhi), in its order dated 1 March 2021 observed: In view of the improving situation, we direct the 2,318 prisoners who were granted interim bail by the trial courts and 356 prisoners who were granted interim bail by the High Court to surrender within 15 days from today., The High Court of Delhi, vide its order dated 18 February 2021, while awaiting the minutes of the meeting dated 17 February 2021 of the High Powered Committee, extended the interim bail granted to 3,499 under‑trial prisoners under various criteria laid down by the committee for a period of 15 days from the date their respective interim bails were expiring., Mr. Sandeep Goel, Director General (Prisons), informed the High Court of Delhi that the interim bails granted to the 3,499 under‑trial prisoners shall expire with effect from 7 March 2021., Accordingly, in view of (a) the observations and recommendations made by the High Powered Committee; (b) the improved COVID‑19 situation in Delhi NCR; (c) the resolution of the committee dated 17 February 2021 not to recommend further extension of interim bail to the 3,499 under‑trial prisoners; (d) the notice given by the committee on 18 January 2021 and 17 February 2021 to all under‑trial prisoners to approach their concerned courts for regular bail; and (e) the directions of the Honourable Supreme Court dated 1 March 2021, this court is not inclined to further extend the period of interim bail of the 3,499 under‑trial prisoners., It is directed that all the 3,499 under‑trial prisoners who have not obtained regular bail from their concerned courts shall surrender before the Jail Superintendent(s) upon expiry of their interim bail commencing from 7 March 2021., As the under‑trial prisoners were admitted to interim bail on different dates, the expiry of their interim bail will occur on different dates; therefore, there is no requirement to fix a specific surrender date for all of them., All under‑trial prisoners may invoke the jurisdiction of the concerned court for grant of regular bail. The concerned courts, on filing of applications by such prisoners, may consider the same on merits in accordance with law., The Director General (Prisons) shall ensure that this order is conveyed to all the 3,499 under‑trial prisoners by telephone as well as through all other available modes. Mr. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority, shall coordinate with the Director General (Prisons) in this regard., A copy of this order shall be provided to the Director General (Prisons), Mr. Rahul Mehra, Standing Counsel (Criminal), and Mr. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority, electronically for compliance and shall also be uploaded on the website of the High Court of Delhi forthwith., No further directions are required in this suo motu petition. Hence, the petition stands disposed of., Honourable Justice Siddharth Mridul, Honourable Justice Talwant Singh. Dated 3 March 2021.
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Rambhau, son of Awadut Gawai, age 42 years, occupation labour; Rajkumar, son of Rambhau Gawai, age 20 years, occupation education; Rajesh, son of Rambhau Gawai, age 18 years, occupation education; all residing at Tembursonda, Taluka Chikhaldara. Shivlal, son of Shalikram Belsare (deceased), legal heirs of Respondent No.1: (a) Ratu Shivlal Belsare, adult; (b) Shalikram Bhaya Belsare, adult; (c) Jiji Shalikram Belsare, adult; all residing at Bhandri, Post Kohana, Taluka Chikhaldara, District Amravati. The Oriental Insurance Company Ltd., through its Branch Manager, Saubhagy, 1st Floor, Badnera Road, Rajapeth, Amravati 444 601, is Respondent No.2. Shri P. R. Agrawal, Advocate for the appellants; Shri K. B. Zinjarde, Advocate for the legal representatives of Respondent No.1; Shri S. K. Pardhy, Advocate for Respondent No.2., Reserved on 12 February 2020 and pronounced on 17 September 2020. The rejection of a claim petition preferred by the appellants under Section 166 of the Motor Vehicles Act, concerning the death of the wife of appellant No.1 and mother of appellants Nos.2 and 3 in an accident, by the Motor Accident Claims Tribunal, Achalpur, in Motor Accident Claim Petition No.12 of 2005 dated 3 February 2007, is questioned in the present appeal., On 31 March 2005, the deceased Baby was traveling in a jeep bearing number MP 04 G 439 owned by Respondent No.1. The driver was driving at high speed and in a negligent manner, resulting in a violent collision with a tree. The deceased Baby sustained severe injuries and succumbed to them., The husband of the deceased Baby and her two sons filed a claim petition under Section 166 of the Motor Vehicles Act, claiming Rs 5,00,000 as compensation., The owner of the jeep did not appear nor file a written statement before the Tribunal, although he was served. Respondent No.2, the insurance company, resisted the claim by filing a written statement on the grounds that the driver did not hold a valid motor driving licence at the date of the accident and that the jeep, insured for private use, was used for commercial purpose in breach of the insurance policy conditions., Appellant No.1 examined himself and was cross‑examined by the insurance company. The appellants filed certified copies of the First Information Report, Spot Panchanama, Inquest Panchanama, copy of the driver’s licence and post‑mortem report in support of their claim., The evidence of appellant No.1 was not seriously challenged by the insurance company. However, the Tribunal rejected the claim petition on three grounds: (a) the claimants suppressed the actual age of the deceased Baby, rendering the claim false; (b) the husband, being an earning member, cannot claim compensation for the death of his wife; (c) the claimants Nos.2 and 3, being major sons of the deceased Baby, are not entitled to claim any compensation., The learned Tribunal’s judgment dated 3 February 2007 is assailed in the present appeal. Shri Agrawal, learned counsel for the appellants; Shri K. B. Zinjarde, learned counsel for the legal representatives of Respondent No.1; and Shri S. K. Pardhy, learned counsel for the insurance company, were heard., Shri Agrawal submitted that the claimants are from a tribal area. In the absence of any birth record of the deceased, an approximate age of 38 years was mentioned in the claim petition. However, the Inquest Panchanama produced by the claimants records the age as 45 years. He argued that if the claimants intended to suppress the correct age, they would not have filed the Inquest Panchanama, and that the Tribunal failed to consider this while rejecting the claim on the ground of falsity., He further submitted that the rejection of the claim on the ground that the husband and major sons are not entitled to compensation under the Motor Vehicles Act is contrary to settled law, and that the impugned judgment suffers from non‑consideration of the facts, circumstances, and legal provisions of the case., Shri Zinjarde, learned counsel for the legal heirs of the owner of the offending jeep, submitted that the legal heirs have not inherited the property of the original owner, and therefore no order directing them to pay compensation may be passed., Shri Pardhy, learned counsel for the insurance company, vehemently opposed the appeal, arguing that the claim is based on falsity as held by the Tribunal. He further submitted that the offending vehicle was a private vehicle not permitted for commercial use, and that the vehicle was used for commercial purpose as the deceased Baby was a passenger after paying fare, constituting a breach of policy. He also argued that the driver did not hold a valid licence and prayed that the Court maintain the Tribunal’s judgment and dismiss the appeal., Having considered the rival contentions, the record, proceedings, relevant statutory provisions and case law, I examine the correctness and legality of the Tribunal’s first ground for rejection, namely suppression of the real age of the deceased Baby., It is not in dispute that the claimants reside in Tembursonda village, Taluka Chikhaldara, part of Melghat, a tribal area classified among the backward areas of the Vidarbha region., To state a correct age, a birth date must be documented by birth registration. Since the Registration of Births and Deaths Act 1969 made birth registration compulsory, the registration rate remains low, with about 80 % of births unregistered. Consequently, persons born in remote areas such as the deceased Baby often lack birth certificates., In the absence of school records in remote tribal areas, it is difficult to ascertain the correct age of individuals. Consequently, a practice of mentioning an approximate age is common when age needs to be stated., In view of the above facts, I do not find any ill intention on the part of the claimants in mentioning the age as 38 years. Had they intended to suppress the correct age, they would not have filed the Inquest Panchanama, which records the age as 45 years., In the judgment of the Hon’ble Supreme Court of India in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, 2009 (6) SCC 12, a multiplier of 15 is applicable for ages 36 to 40 years, and a multiplier of 14 for ages 41 to 45 years., If the age is taken as 38 years, the multiplier of 15 applies; if the age is taken as 45 years, the multiplier of 14 applies. The difference is a single multiplier. Accordingly, I do not find that the claimants intentionally mentioned the age of 38 years to obtain a higher benefit, and the Tribunal’s rejection on the ground of falsity is erroneous., The claim for compensation on the basis of the deceased’s household work was also not considered and was rejected by the Tribunal., When we consider a family, the role of a woman as a housewife (homemaker) is challenging and important, yet least appreciated. According to the dictionary, a housewife is a woman who does not have a job outside the home and who spends her time in cleaning, cooking, and looking after her family., Emotionally, she holds the family together, serving as a pillar of support for her husband, a guiding light for her children, and a caretaker for the elderly. She works round‑the‑clock without a single day off, yet her work goes unacknowledged and is not considered a job., The Hon’ble Supreme Court of India considered the importance of the role of a housewife in Arun Kumar Agrawal and another v. National Insurance Company Limited and others, 2010 (9) SCC 218, observing that the pecuniary value of a wife’s services can be assessed under heads such as loss to the family of the wife’s housekeeping services, loss suffered by the children of the personal attention of their mother, and loss of the wife’s personal care and attention to the husband., Indian courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in monetary terms. The gratuitous services rendered by a wife with love and affection to her children and husband cannot be equated with services rendered by others., While exact quantification is impossible, a pecuniary estimate must be made for compensation to dependents. The term ‘services’ should be given a broad meaning, taking into account loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife., In A. Rajam v. M. Manikya Reddy, 1989 ACJ 542 (Andhra Pradesh High Court), Justice M. Jagannadha Rao advocated a wider meaning of ‘services’ in compensation cases, stating that the loss to the husband and children consequent upon the death of the housewife must be computed by estimating the loss of services that would have been rendered freely in the future, and that any substitute is unlikely to be as economical as the housewife., Jayati Ghosh, in ‘Uncovering Women’s Work’, cites National Sample Survey data showing that 57 % of rural women and 19 % of urban women were engaged in free collection of fuel wood, around 15 % in food processing activities, and 60 % in rural areas (24 % urban) in maintaining kitchen gardens, livestock and poultry, all of which are economic activities typically recognized in developed societies., An alternative to assigning monetary values is to measure the time taken to produce these services and compare it with time taken to produce commercially viable goods and services. The services rendered by women in the household sustain labour supply to the economy and maintain the social fabric., Household work performed by women throughout India is estimated at US $612.8 billion per year. Failure to recognize this work contributes to women’s high rate of poverty and associated physical, social and psychological problems. Courts and tribunals should factor these considerations when assessing compensation for housewives who are victims of road accidents., The Hon’ble Supreme Court of India, in New India Assurance Company Ltd. v. Kamla and others, 2001 ACJ 843, observed that for deceased housewives, in the absence of income data, compensation is determined on the basis of services rendered. Multipliers are applied to an estimated annual value of services, which the Court considered to be grossly low at Rs 12,000 per annum for some and Rs 10,000 for others. The Court suggested a more realistic estimate of Rs 3,000 per month (Rs 36,000 per annum) for housewives aged 34 to 59, and Rs 20,000 per annum for those aged 62 to 72, with appropriate multipliers and a conventional amount of Rs 50,000., Applying the above principles, the loss of dependency for the deceased Baby, aged 45 years, is calculated using a multiplier of 14 as per Sarla Verma. With a monthly contribution of Rs 4,000 (derived from labour earnings of Rs 2,000 per day and household work), the annual loss amounts to Rs 48,000. Multiplying by 14 yields a loss of dependency of Rs 6,72,000, to which other heads of compensation are added., The insurance company contended that because the vehicle was used for commercial purpose and the driver did not hold a valid licence, there was a breach of policy condition and it was not liable to pay compensation. In S. Iyyapan v. United India Insurance Company Ltd., 2013 (6) Mh. L.J. 1, the Court held that under Sections 146, 147 and 149 of the Motor Vehicles Act, the insurer’s liability to pay compensation is not defeated by such breaches; the insurer may recover the amount from the owner of the offending vehicle., In Dnyaneshwar @ Umesh Dhanraj Agale (deceased) through LRs Dhanraj Gangaram Agale and another v. Raju, 2020 (1) Mah. Law Journal 377, the Court held that it is the vicarious liability of the vehicle owner to pay compensation even if the accident resulted from rash and negligent driving. The insurer’s statutory duty to pay compensation remains, and it may recover the amount from the owner., Consequently, the contention that the insurance company is not liable because of policy breach is rejected. There is no dispute that the vehicle was insured with the respondent insurance company and that the accident occurred due to rash and negligent driving. Therefore, the insurer must pay the compensation, and may recover the amount from the vehicle owner., In view of the above observations, the claimants are entitled to the following compensation: Income from labour work Rs 3,000 per month; household work Rs 3,000 per month; after deduction of one‑third for personal expenses, net monthly contribution Rs 4,000, amounting to Rs 48,000 per annum; applying multiplier 14 gives Rs 6,72,000; loss of love and affection Rs 40,000 multiplied by 3 equals Rs 1,20,000; funeral expenses and estate Rs 30,000. The total compensation amounts to Rs 8,22,000, with interest at 6 % per annum from the date of application until realisation., The Respondent Insurance Company shall pay the amount of compensation granted herein within three months from the date of this order.
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It is made clear that Respondent Insurance Company is at liberty to recover the amount from the legal heirs of the owner of the vehicle on the ground of breach of condition of insurance policy, if so advised., The amount of compensation shall be paid to the appellants on payment of court fee on the amount granted in excess of the amount claimed by the appellants., The appeal is allowed in aforesaid terms. No order as to costs.
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Leave granted. Heard the learned senior counsel appearing for the appellant and the learned Additional Solicitor General appearing for the first respondent Directorate of Enforcement. The present appellant has been arrested on 10th March 2023 in connection with the offence punishable under Section 3 of the Prevention of Money Laundering Act, 2002 (for short, the PMLA). After the submissions are heard, the learned Additional Solicitor General has fairly left it to the Supreme Court of India to decide the prayer for grant of bail to the appellant. Even otherwise, we find that the appellant is entitled to be enlarged on bail in accordance with Section 45(1)(ii) of the PMLA on appropriate terms and conditions, till the disposal of the complaint case filed by the first respondent Directorate of Enforcement under the PMLA. In view of the fair stand taken by the learned Additional Solicitor General, we are not recording detailed reasons. For that purpose, we direct that the appellant shall be produced before the Special Court within a period of one week from today. The Special Court shall enlarge the appellant on bail on appropriate terms and conditions, till the trial of the complaint case concludes. The Appeal is, accordingly, allowed., Petition for Special Leave to Appeal (Criminal) No. 16236/2023 (Arising out of impugned final judgment and order dated 06-12-2023 in Bench No. 3233/2023 passed by the High Court of Judicature at Bombay). Date: 12-02-2024. This matter was called on for hearing today. For Petitioners: Mr. Kapil Sibal, Senior Advocate; Mr. Devadatt Kamat, Senior Advocate; Mr. Rohit Sharma, Advocate; Mr. Sunny Jain, Advocate; Mr. Rajesh Inamdar, Advocate; Mr. Nikhil Purohit, Advocate; Mr. Jatin Lalwani, Advocate; Mr. Shardul Singh, Advocate; Ms. Prerna Gandhi, Advocate; Mr. Anish Sahapurkar, Advocate; Ms. Aparajita Jamwal, Advocate; Mr. Abhik Chimney, Advocate; Mr. Revanta Solanki, Advocate; Mr. Kumar Dushyant Singh, Advocate on Record. For Respondents: Mr. Suryaprakash V Raju, Additional Solicitor General; Mr. Mukesh Kumar Maroria, Advocate on Record; Mr. Annam Venkatesh, Advocate; Mr. Zoheb Hussain, Advocate; Mr. Rajat Nair, Advocate; Ms. Yugandhara Pawar Jha, Advocate; Mr. Siddharth Dharmadhikari, Advocate; Mr. Aaditya Aniruddha Pande, Advocate on Record; Mr. Bharat Bagla, Advocate; Mr. Sourav Singh, Advocate; Mr. Aditya Krishna, Advocate; Ms. Preet S. Phanse, Advocate., Upon hearing the counsel, the Supreme Court of India made the following: Leave granted. The Appeal is allowed in terms of the signed order. The operative portion of the order reads thus: For that purpose, we direct that the appellant shall be produced before the Special Court within a period of one week from today. The Special Court shall enlarge the appellant on bail on appropriate terms and conditions, till the trial of the complaint case concludes. The Appeal is, accordingly, allowed. Pending applications stand disposed of accordingly.
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R.T. No.2 of 2022 & Criminal Appeal Nos. 427 and 392 of 2023. State Representative by the Inspector of Police, W21, All Women Police Station, Guindy, Chennai 600032 (Crime No.3 of 2020) – Petitioner/complainant versus the father of the victim child (Accused No.1) and the mother of the victim child (Accused No.2). The identities of the accused are not disclosed under Section 33(7) of the Protection of Children from Sexual Offences Act. Criminal Appeal No.427 of 2023 concerns the father; Criminal Appeal No.392 of 2023 concerns the mother., The referred trial under Section 366 of the Criminal Procedure Code was ordered on 29 April 2022 in Special Court No.52 of 2021, the file of the learned Sessions Judge, Special Court for exclusive trial of cases under the Protection of Children from Sexual Offences Act, Chennai. Criminal Appeal No.427 of 2023 and Criminal Appeal No.392 of 2023 were filed under Section 374(2) of the Criminal Procedure Code seeking to set aside the judgment of conviction and sentence dated 29 April 2022., The prosecution case states that the accused, the father (A1) and mother (A2) of the victim (PW2), perpetrated penetrative sexual assault on the minor daughter from the age of seven until she attained puberty at twelve. The father repeatedly forced the child to sleep naked, removed her clothes, squeezed her breasts, placed his mouth on her breasts, inserted cloth clips into her vagina, penetrated his hands, and inserted small bottles and pipes. After the victim turned twelve, the father also performed penile penetration of the victim’s mouth and continued assaults on several occasions. The victim became pregnant once; the father attempted to cause miscarriage by striking her abdomen and later gave her tablets to induce miscarriage. The victim disclosed the abuse to her mother, who did not take action., The victim first confided in a classmate, who advised her to inform her teacher (PW3). On 3 February 2020, the victim approached PW3, refusing to return home because her father had beaten her. PW3 questioned the victim, who then disclosed the sexual abuses by her father and the mother’s inaction due to threats from the father., PW3 reported the complaint to the school Headmistress, who informed the Chief Educational Officer, Chennai. The Officer advised the Headmistress to approach the Child Helpline. A member of the Child Helpline Group (PW1) received a call from PW3 at about 4:00 pm on 3 February 2020, visited the school, and obtained the victim’s statement. PW1 then took the victim to the police station and lodged a complaint (Exhibit P1). The police registered FIR No.3 of 2020 against A1 and A2 for offences under Sections 354, 354B, 376AB, 376(3), 506(i) of the Indian Penal Code and Section 5(j)(ii)(l)(m)(n) read with Section 6 of the Protection of Children from Sexual Offences Act for A1, and Sections 376AB, 376(3) read with Section 114 of the Indian Penal Code and Section 17 read with Section 6 of the Protection of Children from Sexual Offences Act for A2., Following the FIR, the victim was placed in a home in Tambaram and later transferred to the Child Welfare Committee, Chengalpattu, which moved her to a home at Adyar. Investigation officer PW7 examined the victim on 3 February 2020, visited the place of occurrence with two persons, prepared an observation memorandum (Exhibit P5) and a rough sketch (Exhibit P11), and arrested both accused outside Phoenix Mall, Velachery. PW7 recorded the accused’s confession and sent the victim to Kasturba Gandhi Maternity Hospital for medical examination., On 28 February 2020, PW7 requisitioned a medical examination of A1, who was sent on 20 March 2020 to Royapettah Government Hospital. Investigation officer PW8 continued the investigation, requesting the court to record the victim’s statement under Section 164 of the Criminal Procedure Code. On 8 July 2020, the victim’s Section 164 statement was recorded before the learned IX Metropolitan Magistrate, Saidapet (Exhibit P4). PW8 collected the victim’s birth certificate, examined other witnesses, and filed the final report against both accused for offences under Sections 354, 354B, 376AB, 376(3), 506(i) read with Section 114 of the Indian Penal Code and Section 5(j)(ii)(l)(m)(n) read with Section 6 of the Protection of Children from Sexual Offences Act. The case was taken on file as Special Court No.52 of 2021., The trial court, complying with Section 207 of the Criminal Procedure Code, framed five charges: (a) under Section 6 of the Protection of Children from Sexual Offences Act against A1 for penetrative sexual assault; (b) under Section 506(i) of the Indian Penal Code against A1 for criminal intimidation; (c) under Section 75 of the Juvenile Justice (Care and Protection of Children) Act against both accused for assault and cruelty causing miscarriage; (d) under Section 6 read with Section 17 of the Protection of Children from Sexual Offences Act against A2 for abetting A1; and (e) under Section 21(1) of the Protection of Children from Sexual Offences Act against A2 for failure to report the offence., The accused pleaded not guilty. The prosecution examined witnesses PW1 to PW8 and marked thirteen documents (Exhibits P1 to P13). No oral or documentary evidence was presented by the defence. The trial court, after evaluating the evidence, convicted A1 under Section 6 of the Protection of Children from Sexual Offences Act, sentencing him to death pending confirmation by the Madras High Court, and also sentenced him to imprisonment for three years under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, a fine of Rs 10,000, and six months imprisonment under Section 21(1) of the Protection of Children from Sexual Offences Act. A2 was convicted under Section 75 of the Juvenile Justice (Care and Protection of Children) Act and sentenced to three years imprisonment., Since it was a referred trial, the Madras High Court issued notice to the accused, who had not filed appeals. The court appointed Mr. A. Ashwin Kumar as counsel on record for A1 with senior counsel Mr. R. Rajarathinam, and Mr. S. Ashok Kumar as counsel on record for A2 with senior counsel Mr. Abudukumar Rajarathinam. The accused subsequently filed Criminal Appeal No.427 of 2023 (A1) and Criminal Appeal No.392 of 2023 (A2)., The learned Public Prosecutor, Mr. Hasan Mohammed Jinnah, submitted that the victim’s evidence was cogent, clear, and inspired confidence, corroborated by the teacher (PW3) and the Child Helpline member (PW1). He relied on the Medico‑Legal Examination Report (Exhibit P7) and the Accident Register (Exhibit P6) to support the victim’s version. He cited the judgment in Ganesan v. State (2020) 10 SCC 573, stating that conviction can rest on the sole evidence of a victim when it inspires confidence, and referenced Supreme Court observations in Ramnaresh and others v. State of Chhattisgarh (2012) 4 SCC 257 on the principles governing the award of death sentence., The learned senior counsel for A1, Mr. R. Rajarathinam, argued that the accused did not receive effective representation, as vital questions were not put to witnesses and material contradictions were not elicited. He emphasized that legal aid counsel must not be a mere formality and that the trial judge failed to ensure procedural safeguards, including proper video‑conferencing of witness testimony as required by Rule 51 of the Criminal Rules of Practice, and compliance with Sections 24(2), 26(1), 26(4), and 27(1) of the Protection of Children from Sexual Offences Act, and Section 164A of the Criminal Procedure Code for medical examination. He also highlighted the non‑examination of several material witnesses identified by the victim., The learned senior counsel for A2, Mr. Abudukumar Rajarathinam, reiterated that the accused were not effectively represented and pointed out contradictions between the victim’s Section 164 statement and her deposition. He contended that the trial court erred by not appointing a separate counsel for A2, whose defence differed from that of A1, and relied on the judgment in Mohd. Hussain alias Julfikar Ali v. State (2012) 2 SCC 584 to support his submission.
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The learned senior counsel further submitted that the evidence of the victim even if accepted to be true would at best suggest that A2 had silently suffered the abuses committed by A1 on the victim child, but was not guilty of any acts which would bring them within the definition of abetment. The learned senior counsel pointed out the evidence of the victim to show how A2, though had initially protested, did not take any steps to give a complaint because of her helplessness. She in any case has been convicted for the offence of non‑reporting the commission of a Protection of Children from Sexual Offences offence under Section 21(1) of the Protection of Children from Sexual Offences Act and has suffered a sentence of six months. The learned senior counsel further submitted that A2 cannot be said to have consented to the commission of the offence by A1 if it is shown that it was under fear and referred to Section 90 of the Indian Penal Code. Thus, he submitted that the appellant (A2) is entitled to acquittal., Discussion: We have carefully considered the evidence on record and the rival submissions. As stated by the learned Public Prosecutor, it is a trite position of law that if the evidence of a sole witness or the victim of a sexual offence inspires confidence, the Court need not look for corroboration. We have broadly summed up the evidence of Witness 2 in the earlier portion of our judgment., Witness 2 has stated about the various acts committed by her father between the ages of 7 and 12; that after she attained 12 years, A1 had committed penetrative sexual assault on several occasions. She also deposed that she became pregnant once when she was studying in 10th standard and her father had pressed and kicked her stomach to ensure miscarriage and that when he failed in those attempts, he along with his wife A2 went to the medical shop and bought a tablet which she took. Witness 2's version is that she complained of all the acts of A1 to A2, her mother and A2 had expressed her helplessness though, she did not approve of the conduct of A1., Witness 2 informed her friend and then her teacher, Witness 3, about the occurrences which are normal and natural conduct. Witness 3 is Witness 2's teacher in the school and on hearing the victim's version, she had informed the Headmistress of the school, who in turn called the Child Helpline. Witness 3's version that the child informed her about the various sexual abuses committed by her father corroborates the version of Witness 2. Further, Witness 1's statement that she went to the school on the phone call made by the Headmistress of the school to the Child Helpline and enquired the girl child also corroborates the version of Witness 2. Therefore, Witness 1 and Witness 3 corroborate Witness 2's version of her confiding about the abuses suffered by her to her friend first and thereafter to Witness 3., In the Medico‑Legal Examination Report (Exhibit P7) issued by Witness 5 the doctor has said that there is evidence of penetrative sexual intercourse. However, we notice regrettably that a two‑finger test had been conducted in the instant case, though the Hon'ble Supreme Court and this High Court in several cases have repeatedly held that such a test is neither acceptable nor desirable to ascertain whether the victim was subjected to sexual intercourse. We take this opportunity to remind the doctors that if they conduct any test in contravention of the directions of the Hon'ble Supreme Court in the State of Jharkhand v. Shailender Kumar @ Pandav Rai, reported in (2022) 14 SCC 289, they shall be guilty of misconduct as held by the Hon'ble Supreme Court. However, in the instant case, we are of the considered opinion that Witness 2's evidence is cogent and convincing and can be the sole basis to determine the guilt or otherwise of the accused and the absence of any corroboration would hardly make any difference. Therefore, even if the expert opinion of the doctor is ignored, there is nothing to doubt Witness 2's version., Witness 2 has been consistent in her stand throughout. She would also state that after the registration of the case, she went to her parents' house and that A1 had sought pardon and also requested Witness 2 to withdraw the complaint. However, it is seen that Witness 2 stuck to her version throughout and though it is pointed out that some contradictions were not elicited by the defence counsel during the trial, this High Court is of the view that Witness 2's evidence inspires confidence and there is absolutely no material evidence to doubt her version., Though the learned senior counsels appearing for both accused pointed out violations of statutory provisions, this High Court is of the view that the violations that we have already elaborated earlier are meant to ensure that the victim is provided with a child‑friendly atmosphere while recording the statement during the investigation and while recording her evidence in the trial. These provisions also are to ensure that the accused gets a fair trial. It is needless to say that procedure is a handmaid of justice. If in a given case, it is found that the procedural lapses have not impacted or caused any dent in the prosecution case or while appreciating the evidence of the victim, then those procedural lapses would not vitiate the trial. We are not for a moment suggesting that these procedures need not be followed. The procedures prescribed are with a purpose and the prosecution and the person concerned are bound to follow them scrupulously. But in the instant case, we are of the view that those procedural lapses cannot be said to have caused any prejudice to the accused or had rendered the evidence of Witness 2 doubtful., As stated earlier, since Witness 2's evidence inspires confidence, non‑examination of witnesses, who according to the prosecution were also aware of the abuses, such as Witness 2's cousin brother (Kalaipriyan), to whom A1 is said to have asked for advice when Witness 2 became pregnant and the Reverend Father of Pope John's Garden, who helped Witness 2 to pursue her studies, in our view, would not make any difference. We may also add here that the witnesses have not been effectively cross‑examined. However, that by itself in our view cannot lead to an inference that the accused did not get a fair opportunity in the trial. Merely because the counsel has not put certain questions to the witnesses, the trial would not be vitiated. However, we remind the trial Courts about the observations made by the Hon'ble Supreme Court in Mohd. Hussain's case, to ensure that the accused had defended effectively. The relevant observations read as follows: In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets a free and fair, just and reasonable trial of charge in a criminal case., The Court, in the case of Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated: This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being a public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a blind eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny., We are aware of the scope of enquiry in a referred trial. If further enquiry or additional evidence has to be taken to ascertain the guilt or innocence of the convicted person, we may conduct such enquiry or take such additional evidence under Section 367 of the Criminal Procedure Code. However, having regard to the fact that the victim was a minor child and had suffered offences under the Protection of Children from Sexual Offences Act, and bearing in mind the provisions of Section 33(5) of the Protection of Children from Sexual Offences Act, which provides that the victim shall not be called to the Court repeatedly, we refrain ourselves from conducting further enquiry or taking additional evidence though there are certain minor contradictions between the statement of the victim under Section 164 of the Criminal Procedure Code and her deposition before the trial Court, which have not been brought out during cross‑examination. We are convinced that the victim/Witness 2 has spoken the truth and there is no reason to disbelieve her. We are convinced that A1 had committed the offence of aggravated penetrative sexual assault punishable under Section 6 which falls under Sections 5(j)(ii), 5(l) and 5(n) of the Protection of Children from Sexual Offences Act., Therefore, we are of the view that the prosecution has established that Witness 2 had suffered the offences committed by A1 and we are therefore inclined to hold that A1 is guilty of the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2019. Considering the nature of the cruelty committed by A1 on the victim, we also hold that A1 is guilty of an offence under Section 75 of the Juvenile Justice Act, 2018. As regards the second charge against A1 for the offence under Section 506(i) of the Indian Penal Code, the learned trial Judge has found him not guilty. We confirm the said finding as there is no evidence that A1 has committed any offence of criminal intimidation on the victim., Role of A2: The victim's version as regards the role played by A2 and her knowledge of the abuses committed by A1 is also natural and in consonance with normal human conduct. Witness 2 in her evidence had stated that A2 was aware of the acts committed by A1. The reference made by Witness 2 in her deposition as regards the role played by A2 is extracted hereunder for a better understanding of her evidence as regards the involvement of A2., After the victim had reported the incident to Witness 3, which culminated in the filing of the complaint, as stated earlier, the victim was in a Children’s Home and A2 is said to have met Witness 2 in the Home and insisted that she had to withdraw the complaint filed by her. The relevant portion of that evidence is extracted hereunder., The above extracts of the evidence and the narration of facts stated earlier would show that A2 was also aware of the abuses committed by A1. The evidence of Witness 2 cannot be doubted on this aspect also and there is no reason to do so. However, the question is as to whether A2 had committed the offence for which she was charged in the instant case., A2 was charged and convicted for the offence under Section 6 read with Section 17 of the Protection of Children from Sexual Offences Act. The evidence of Witness 2 has to be appreciated to see if the allegation against A2 would amount to abetment of the offences under the Protection of Children from Sexual Offences Act. “Abetment” is defined under Section 107 of the Indian Penal Code, which is incorporated in Section 16 of the Protection of Children from Sexual Offences Act. However, Explanation III has been added to the definition of abetment in Section 16 which is not there in Section 107 of the Indian Penal Code. Section 16 of the Protection of Children from Sexual Offences Act reads as follows: “Abetment of an offence.- A person abets an offence, who (i) First, instigates any person to do that offence; (ii) Secondly, engages with one or more other persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; (iii) Thirdly, intentionally aids, by any act or illegal omission, the doing of that offence.” Explanation I – A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence. Explanation II – Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Explanation III – Whoever employs, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act.”, From the definition of ‘abetment’, we can see that there are three ways of abetment, i.e., firstly it is by instigating any person to do that offence. The evidence of Witness 2 does not suggest in any manner that A2 instigated A1 to commit the offence under the Protection of Children from Sexual Offences Act. On the contrary, the evidence only suggests that A2 protested and fought with A1, though she did not take any steps to lodge a complaint. As to what would amount to instigation has been explained by the Hon'ble Supreme Court in Ramesh Kumar v. State of Chhattisgarh, reported in (2001) 9 SCC 618. The Hon'ble Supreme Court had stated that ‘instigation’ is a goad, urge forward, provoke, incite or encourage to do an act. However, in the instant case, the evidence does not disclose that the conduct of A2 would amount to instigation. Secondly, abetment can be by engaging with one or more persons in any conspiracy for the doing of that offence. The evidence does not disclose that A2 had engaged in a conspiracy with A1 for the commission of the offences under the Protection of Children from Sexual Offences Act. Thirdly, it is by intentional aiding of any act or illegal omission by doing of that offence. Explanation III to Section 16 of the Protection of Children from Sexual Offences Act stipulates the list of activities that would amount to aiding an act. Even assuming that the conduct of A2 would amount to aiding the act of her husband A1 by illegal omission, to attract clause ‘thirdly’ of Section 16, the aiding must be intentional., It is trite that intention is one of the culpable mental states prescribed under the Indian Penal Code. Amongst the culpable mental states, ‘intention’ is the gravest. Knowledge is another culpable mental state. The knowledge of certain consequences that would follow a particular act is distinct from the intention to cause it. The prosecution at best had established that A2 knew about A1’s sexual abuse of their child. Clause ‘thirdly’ of Section 16 of the Protection of Children from Sexual Offences Act and Section 107 of the Indian Penal Code employ the word ‘intentionally’ and not ‘knowingly’. Intention presupposes knowledge and a desire to have the intended result. Mere knowledge of the wrongful act is insufficient to invoke clause ‘thirdly’ of Section 16. In addition to the knowledge, the desire to do the act is necessary. In the instant case, to hold that A2 intended to do the act, it must be proved that she desired and was willing to have the intended result without any justification or excuse. In this regard, it would be useful to refer to the observations of the Hon'ble Supreme Court in Shri Ram v. State of Uttar Pradesh, reported in AIR 1975 Supreme Court 175, which reads as follows: “The question which then arises for consideration, a question to which the Sessions Court and the High Court have not paid enough attention, is whether the only inference which arises from the fact that Violet gave the particular shout is that by so doing, she intended to facilitate the murder of Kunwar Singh. Section 107 of the Penal Code which defines abetment provides to the extent material that a person abets the doing of a thing who ‘Intentionally aids, by any act or illegal omission, the doing of that thing.’ Explanation 2 to the section says that ‘Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.’ Thus, in order to constitute abetment, the abettor must be shown to have ‘intentionally’ aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107.”, Witness 2's evidence vis‑à‑vis the role played by A2 does not suggest that she had any intention to aid A1 in committing the sexual offences. The prosecution evidence discloses that A2 had protested at every stage and A1 had abused and beaten A2, besides intimidating her of dire consequences. Therefore, A2's knowledge of the illegal acts and her omission to prevent it or complain about it would not amount to intentional aiding., Under the General Law, there is a presumption that the person accused intended the probable consequences of his act. That apart, Section 30 of the Protection of Children from Sexual Offences Act also states that in any prosecution for an offence which requires a culpable mental state, the Court shall presume the existence of such culpable mental state. The evidence adduced by the prosecution in the instant case clearly points out that A2 had not intentionally aided A1. Therefore, the general law presumption and the statutory presumption have been rebutted in this case., The only portion of Witness 2's evidence where there is reference to both A1 and A2 is purchasing a tablet for causing miscarriage. This is an improvement from the earliest version given by Witness 2 to the doctor. We find from the statement made by the victim to Doctor Witness 5, which is recorded in the Accident Register (Exhibit P6) that the victim had told the doctor that her father bought the medicine for causing miscarriage and there is no reference to A2. Therefore, we find that A2's involvement in administering tablets for miscarriage cannot be believed. We are unable to believe this portion of Witness 2's evidence, though we accept the other portions of her testimony. It is trite that the maxim falsus in uno, falsus in omnibus (false in one respect, false in all) is not applicable in our country., The other averments made by Witness 2 against A2 is that after the complaint was lodged, A2 requested Witness 2 to withdraw the complaint. Such an act would at best amount to non‑reporting a grave Protection of Children from Sexual Offences offence and cannot be said to be an act of abetment., The learned senior counsel for A2 submitted that the general exception incorporated under Section 90 of the Indian Penal Code would apply to A2. It is nobody's case that A2 gave consent to A1 to commit the acts. That apart, A2 is nobody to give consent to such an offence on the minor child. Only if there is a consent, the question of invoking the general exception under Section 90 would arise. Therefore, the applicability of Section 90 does not arise. In any case, we have held that in the instant case, abetment is not made out for the reasons stated earlier., Therefore, we are of the view that charge No. 4 as against A2 under Section 6 read with Section 17 of the Protection of Children from Sexual Offences Act has not been established. However, we are of the view that A2 is guilty of the offence under Section 21(1) of the Protection of Children from Sexual Offences Act, 2019 because she had not reported the commission of an offence and it is trite, ignorance of the law, is not an excuse. Further, we also find that the evidence suggests that A2 had exposed the child to mental and physical suffering, due to the act of A1, which is an offence under Section 75 of the Juvenile Justice Act, 2018 and therefore, we hold her guilty for the said offence., Sentence: Accused No.1: Now coming to the sentence to be imposed on the accused, we find that A1 has been convicted for an offence under Section 6 of the Protection of Children from Sexual Offences Act, 2019 and awarded the death penalty. We are convinced that this case does not fall within the category of ‘rarest of rare cases’. The trial Court however was carried away by the act of the father who had committed grave sexual offences against his daughter. There is no doubt that the act committed by A2 is gruesome. However, it would not fall within any of the parameters laid down by the Hon'ble Supreme Court in Bachan Singh's case and Machhi Singh's case, which had been reiterated by the Hon'ble Supreme Court in other cases., The Hon'ble Supreme Court had considered the principles relating to imposition of death penalty in Ram Naresh and others v. State of Chhattisgarh, reported in (2012) 4 SCC 257. One of the aggravating circumstances mentioned in the said decision is that where the victim is a child and the father is the perpetrator of the crime against her. The trial Court it appears was carried away by the said fact. However, it is also settled law that merely because a crime is heinous per se may not be a sufficient reason for the imposition of the death penalty without considering the mitigating factors and other circumstances., (a) The sentence of death can be imposed only in the rarest of rare cases. In other words, it can be imposed only in exceptional cases. Therefore, the imposition of the sentence of life imprisonment is the rule. Considering the nature of evidence led in by the prosecution and the conduct of A1 after the occurrence, we are of the view that it is not a case which would fall under the ‘rarest of rare’ category. There is nothing on record to show that A1 is a menace to society and there is no possibility of reformation at all. We find from the evidence of Witness 2 herself that A1 had sought pardon and had behaved properly after the complaint was lodged and when she lived in the parents' house for a short while. Hence, we modify the sentence of death penalty imposed on A1 into one of life imprisonment with a fine of Rs.25,000/- in default to undergo rigorous imprisonment for three months for the offence under Section 6 of the Protection of Children from Sexual Offences Act., (b) However, the sentence of imprisonment for three years imposed against A1 for the offence under Section 75 of the Juvenile Justice Act, by the trial Court is confirmed for the reasons stated therein., Accused No.2: (a) For the reasons stated above, A2 is acquitted of the charge under Section 6 read with Section 17 of the Protection of Children from Sexual Offences Act.
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However, she is convicted for the offence under Section 21(l) of the Protection of Children from Sexual Offences Act and, as regards the sentence of imprisonment for the said offence, we confirm the sentence of six months imposed by the trial court. As regards the sentence for the offence under Section 75 of the Juvenile Justice Act, considering the offence, the nature of the allegation against A2, the circumstances in which she was living and the fact that she was in a helpless situation as has been brought out in the evidence, we are inclined to reduce the sentence imposed by the trial court to the period of sentence already undergone., Therefore, we direct A2, appellant in Criminal Appeal Number 392 of 2023, to be set at liberty forthwith, unless her detention is required in connection with any other case. In the result, the reference made by the learned Public Prosecutor is answered accordingly and the criminal appeals are disposed of on the terms set out in paragraphs thirty‑two and thirty‑three, supra., We would like to record our appreciation to Mr. Hasan Mohammed Jinnah, the State Public Prosecutor, and to the learned counsels on record, Mr. A. Ashwinkumar and Mr. S. Ashok Kumar, and the learned senior counsels, Mr. R. Rajarathinam and Mr. Abudukumar Rajarathinam, who appeared pro bono, for their valuable assistance rendered in this case. The Sessions Judge, Special Court for Exclusive Trial of Cases under the Protection of Children from Sexual Offences Act, Chennai.
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