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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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O.P. (Kat). No.267 of 2021 dated 29 September 2023. Shri Durga Das applied for appointment as a police constable in the India Reserve Battalion Commando Wing. He succeeded in all qualifying tests except for establishing his antecedent character. The Kerala Administrative Tribunal appointed him as a constable, but the State filed the present petition challenging the Tribunal's order., Durga Das was involved in a criminal case based on a complaint lodged by his estranged wife while a matrimonial dispute was pending. The allegation was that he, in uniform of a student, trespassed into the classroom of Peruman Engineering College and inflicted injuries on the left leg and shoulder of his wife with a surgical blade, and intimidated her classmates with fear of death. He was proceeded against for offences punishable under Sections 419, 452, 307 and 506 (ii) of the Indian Penal Code. During the trial none of the witnesses supported the prosecution case, and he was acquitted under Section 235(1) of the Criminal Procedure Code., The rules related to appointment mandate that the Government must be satisfied with the character and antecedents of a candidate (see Rule 10(b)(iii) of the Kerala State and Subordinate Service Rules). Section 86 of Chapter VII of the Kerala Police Act, 2011 deals with the disqualifications for appointment as a police officer. It reads: 86. Disqualifications for appointment as a police officer. (1) No person shall be eligible for appointment as a Police Officer or shall have the right to continue in employment as a Police Officer if that person (a) is not a citizen of India; (b) has been convicted by a court of law for an offence involving proclivity for violence or moral turpitude; (c) is found mentally, physically or behaviourally unfit for carrying out the duties of police; (d) is a member of a political party and is not prepared to terminate his membership even after recruitment; (e) is an office bearer of any social, religious, cultural or scientific organisation and is not prepared to give up or terminate such position even after instructions from the Government, State Police Chief or the District Police Chief; or (f) is or has been a member of any banned organisation. (2) A person against whom a criminal case for an offence involving proclivity for violence or moral turpitude is pending before a court of law shall be entitled to appear for recruitment, to get selected and to undergo training, but shall be entitled to permanent appointment only after being acquitted. (3) A Police Officer, at any time after appointment, who is found belonging to any of the categories under (a) to (f) of sub‑section (1), may be suspended and, after giving a reasonable opportunity to prove otherwise, may be dismissed, removed or compulsorily retired., Before the Tribunal, the State defended its action on the ground that, merely because the witnesses had turned hostile, it was not safe to hold that the character and antecedents would qualify the candidate for such service. The Tribunal noted that there was nothing adverse regarding the character and antecedents of Durga Das except the criminal case, and there was no other independent material to hold him unsuitable for appointment as a constable. The impugned order was therefore set aside and the Tribunal ordered his appointment as a Police Constable., The learned Additional Advocate General, Shri Asok M. Cherian, argued that the scope of judicial review was limited and that the subjective element of satisfaction as to character and integrity cannot be substituted by a different view of the Tribunal. He submitted that the Tribunal went beyond its jurisdiction and interfered with the autonomy of the employer/Government. The following authorities were relied upon: (i) Anil Kumar A. v. State of Kerala and Others, 2012 (2) Kerala High Court 257, where the Kerala High Court opined that suitability for the police force must be considered by the Department notwithstanding an acquittal and the Department may terminate a person if his character and antecedents are found to be bad; (ii) Deputy Inspector General of Police and Another v. S. Samuthiram, (2013) 7 Supreme Court Cases 685, where the Supreme Court of India observed that mere acquittal by a criminal court has no impact on disciplinary proceedings initiated by the Department; (iii) Commissioner of Police, New Delhi and Another v. Mehar Singh, (2013) 1 Supreme Court Cases 598, para. 24, holding that the standard of proof in a criminal case is beyond reasonable doubt, whereas in departmental proceedings it is pre‑ponderance of probabilities, and that an acquittal based on hostile witnesses is not an honourable acquittal; (iv) R.P. Kapur v. Union of India, AIR 1964 Supreme Court 787, where the Supreme Court held that departmental proceedings can continue even when the accused is acquitted if the acquittal is not honourable; (v) State (Union Territory of Chandigarh) v. Pradeep Kumar, (2018) 1 Supreme Court Cases 797, para. 11, emphasizing that entry into the police service requires good character, integrity and clean antecedents., Further authorities cited include: State of Madhya Pradesh v. Parvez Khan, (2015) 2 Supreme Court Cases 591; State of Rajasthan and others v. Love Kush Meena, AIR 2021 Supreme Court 1610, discussing the importance of character and integrity for recruitment to posts such as Subedar, Platoon Commandant and Inspector of Police; and State v. Raj Kumar, (2021) 8 Supreme Court Cases 347, paras. 28, 31 and 32, where the Supreme Court held that courts cannot second‑guess the suitability of a candidate for public office absent evidence of mala fides or illegality, and that the selection committee’s discretion is not subject to appellate review by tribunals or courts., The Supreme Court of India in Union of India and Others v. Methu Meda, (2022) 1 Supreme Court Cases 1, para. 10, examined the expression ‘honourable acquittal’ and noted that such terms are not found in the Code of Criminal Procedure or the Indian Penal Code but are judicially created. In State of Assam v. Raghava Rajgopalachari, 1967 Supreme Court Cases OnLine SC 1, the Court referred to the judgment of Robert Stuart Wauchope v. Emperor, 1933 Supreme Court Cases OnLine Cal 369, to explain that ‘honourably acquitted’ is a term used in extra‑judicial tribunals and that an acquittal on the basis of benefit of doubt is not equivalent to a clean, honourable acquittal., Counsel Shri Kaleeswaram Raj, appearing for the respondent Shri Durga Das, relied on Joginder Singh v. Union Territory of Chandigarh, (2015) 2 Supreme Court Cases 377, paras. 24‑28, holding that an acquittal in a criminal case qualifies a candidate for appointment as a Police Constable when other requisites are satisfied; and on Jagtar Singh v. Central Bureau of Investigation, 1993 Supp (3) Supreme Court Cases 49, para. 4, stating that there was no material to show that the appellant’s antecedents and character were unfit for appointment. The counsel argued that the respondents’ conclusion was based on surmises arising from a single incident in 1983 and that the appellant had been unjustifiably denied the post to which he was selected by the Union Public Service Commission., In Pramod Singh Kirar v. State of Madhya Pradesh, (2023) 1 Supreme Court Cases 423, paras. 10‑11, the Supreme Court observed that the matrimonial dispute leading to the criminal case was settled, the complainant turned hostile, and the appellant was acquitted; therefore, the appellant should not be denied appointment on the basis of the earlier charge under Section 498‑A of the Indian Penal Code., The Kerala Subordinate Service Rules are the general provisions governing members of the State Subordinate Services, while the Kerala Police Act is a special statute relating to the police force in the State. Under Section 86(2) of the Kerala Police Act, there is no bar for a person against whom a criminal case involving proclivity for violence or moral turpitude is pending to obtain temporary appointment; permanent appointment is permissible only after the person is acquitted.
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Thus, the provisions of the Kerala Police Act do not bar Durga Das from claiming selection and permanent appointment in the light of his acquittal. However, that does not mean that on such acquittal the candidate will have a free walk to the post. The question then falls on whether the character and antecedent requirements of 2023/KER/59528 Office of the Police (Kat) No.267 of 2021 are required to be adverted for appointment in public service, even after the acquittal. We must say yes if law desires so, if such appointment requires character verification. The criminal case or such other proceedings are all relevant factors for objective enquiry, not the factor itself., It is to be noted that the Kerala Service and Subordinate Regulations is a general provision and still would govern the candidates aspiring to be members of the State and subordinate services. The allegations in the criminal case can be considered independently to assess the character and integrity of a person. The acquittal in a criminal case will not automatically entitle him to qualify for public service. This is the perplexing question in this matter which requires clarification on the law. In an enquiry related to character and integrity, what matters for the Government is the point to be considered by us. The Government, objectively, is enquiring into character and antecedents to find whether such a person can be appointed in any post in such service., In that process, the criminal case records, including civil cases, may be relevant if they reflect the character and antecedents of the person. The scope of enquiry in such a situation is to find out whether the allegations and materials would qualify him to occupy the office in the service or not. It is not the final outcome of such a case that is decisive but the relevant findings in such cases are material. We have fashioned through judicial language the phrase ‘honourable acquittal’ to denote that the findings in that are material or relevant in an assessment of the character and antecedents. In a criminal case, there may be findings reflecting character but may be short of a criminal offence for want of elements constituting the offence. Still, that may be valid or relevant in assessing the character of the person concerned though the ultimate outcome might have resulted in acquittal., In that process of enquiry, what concerns the Government is whether the findings disclosed in the criminal investigation or any other dispute have a ramification on the character of the persons concerned. The Government, being an employer, is not looking at the final outcome. No doubt, if the final outcome results in conviction, the character can be assessed without much labour. But in a case where the person concerned is acquitted for want of evidence, the Government has to conduct an enquiry as to whether the materials as such (not the allegations alone) reflect upon the character and antecedents of the person. If the materials, including allegations, do not disclose anything tainted as to the character of the persons concerned, based on the mere allegations in the prosecution case, the Government cannot hold that the character would disqualify him in the service., In such a situation, the Government will have to conduct an independent enquiry to assess the character and antecedents of the person concerned with reference to the incident which was the subject matter of the criminal case. The Government cannot merely restate the allegations in the prosecution and hold that the character is bad to make him unsuitable for the post. Thus, we make it clear that in criminal cases where the prosecution cases end up in acquittal, if the Government cannot form an opinion based on the prosecution allegations and other materials including the finding entered by the criminal court as to the character of the person, the Government is bound to conduct a separate enquiry as to the character and antecedents of the person. Mere registration of the criminal case will not enable the Government to disqualify such a person from becoming a member of service., Now, coming back to the findings in the impugned order, the impugned order was based on a report of the Additional Director of Police (Intelligence) dated 10 November 2020. The impugned order proceeded as though the candidate was convicted, which appears to have been a mistake. The report clearly indicates that the attempt to enquire about the character with reference to the incident which was the subject matter of the crime was not fruitfully completed as the investigation officer was not alive. It was also stated that the de facto complainant and all key witnesses turned hostile in the prosecution. Except the allegation of the prosecution, absolutely no materials were available to hold against the candidate Durga Das. It is not safe to assess the character based on the prosecution allegations alone. In such circumstances, the conclusion arrived at by the Government to hold against the candidature of Durga Das is erroneous and unsustainable., The Kerala High Court in such circumstances is not overturning the decision but only interfering with the process leading to the decision. The Government could not have concluded that the character is bad to disqualify him from becoming a member of the service without any materials, merely based on prosecution allegations. Thus, we concur with the findings of the Tribunal and dismiss the original petition., Exhibit P4, Exhibit R1(a): True copy of the order dated 09 October 2020 OA(EKM) No.744/2018. Exhibit R1(b): True copy of the order dated 18 December 2020 in OA(EKM) No.744/2018.
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Leave was granted. The challenge in these appeals is to the orders dated 20 July 2023 and 26 July 2023 passed by a Division Bench of the Punjab and Haryana High Court dismissing Criminal Writ Petition No. 14536 of 2023 filed by Pankaj Bansal and Criminal Writ Petition No. 14539 of 2023 filed by his father, Basant Bansal. By the order dated 20 July 2023, the Division Bench opined that, as the constitutional validity of Section 19 of the Prevention of Money Laundering Act, 2002 (the Act) had been upheld by the Supreme Court of India, the challenge to the same by the writ petitioners could not be considered because a review petition was pending before the Supreme Court of India. Consequently, the prayer of the writ petitioners was rejected. By the later order dated 26 July 2023, the Division Bench rejected the prayer of the writ petitioners to quash or set aside their arrest orders, arrest memos and the consequential proceedings arising therefrom, including the orders dated 15 June 2023, 20 June 2023 and 26 June 2023 passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, whereby they were remanded to the custody of the Enforcement Directorate and thereafter to judicial custody. The Division Bench further held that, keeping in view the gravity of the allegations against them, their prayer to be released from custody did not deserve acceptance and rejected the same. In consequence, the Division Bench dismissed both the writ petitions., The genesis of these appeals is traceable to FIR No. 0006 dated 17 April 2023 registered by the Anti-Corruption Bureau, Panchkula, Haryana, under Sections 7, 8, 11 and 13 of the Prevention of Corruption Act, 1988, read with Section 120B of the Indian Penal Code for the offences of corruption, bribery and criminal conspiracy. The accused named in this FIR are: Sudhir Parmar (the then Special Judge, Central Bureau of Investigation and Enforcement Directorate, Panchkula); Ajay Parmar (nephew of Sudhir Parmar and Deputy Manager (Legal) in M3M Group); Roop Bansal (Promoter of M3M Group); and other unknown persons., Prior to this FIR, between 2018 and 2020, thirteen FIRs were registered by allottee owners of two residential projects of the IREO Group, alleging illegalities on the part of its management. On the strength of these FIRs, the Enforcement Directorate recorded Enforcement Case Information Report No. GNZO/10/2021 dated 15 June 2021 (the first ECIR) in connection with money‑laundering offences allegedly committed by the IREO Group and Lalit Goyal, its Vice‑Chairman and Managing Director. Neither the M3M Group nor the appellants were named as accused in the FIRs or in the first ECIR, and no allegations were levelled against them. On 14 January 2022, the Enforcement Directorate filed Prosecution Complaint No. 01/2022, titled Assistant Director, Directorate of Enforcement vs. Lalit Goyal and others, against seven named accused, under Section 200 of the Criminal Procedure Code read with Sections 44 and 45 of the Act. The M3M Group and the appellants did not figure amongst those named accused. The number of FIRs had increased from thirteen to thirty as per this complaint. The case, numbered COMA/01/2022, titled Directorate of Enforcement vs. Lalit Goyal and others, was pending before the Court of Sudhir Parmar, Special Judge. At that stage, the Anti-Corruption Bureau, Panchkula, received information that Sudhir Parmar was showing favouritism to Lalit Goyal, the owner of IREO Group, and also to Roop Bansal and his brother Basant Bansal, the owners of M3M Group. This led to the registration of FIR No. 0006 dated 17 April 2023., On 12 May 2023, the Enforcement Directorate issued summons to M3M India Private Limited, calling upon it to provide information and documents pertaining to transactions with certain companies. Thereafter, on 1 June 2023, the Enforcement Directorate raided the properties of M3M Group and effected seizures of assets and bank accounts. Roop Bansal was arrested by the Enforcement Directorate on 8 June 2023 in connection with the first ECIR., Apprehending that action would be taken against them also in the context of the first ECIR, Pankaj Bansal and Basant Bansal secured interim protection from the Delhi High Court in Bail Application Nos. 2030 and 2031 of 2023. By separate orders dated 9 June 2023, the Delhi High Court noted that the appellants had not been named in the first ECIR and that the Enforcement Directorate had not yet been able to implicate them in any of the scheduled offences under the Act. The High Court further noted that Pankaj Bansal had not even been summoned by the Enforcement Directorate in that case. Accordingly, the High Court granted them interim protection by way of anticipatory bail, subject to conditions, till the next date of hearing, i.e., 5 July 2023. Special Leave Petition Nos. 7384 and 7396 of 2023 were filed by the Enforcement Directorate assailing the orders dated 9 June 2023 before the Supreme Court of India and are pending., On the basis of FIR No. 0006 dated 17 April 2023, the Enforcement Directorate recorded another Enforcement Case Information Report, viz., ECIR/GNZO/17/2023, on 13 June 2023 (the second ECIR) against Sudhir Parmar, Ajay Parmar, Roop Bansal and other persons named in the FIR. Summons were issued by the Enforcement Directorate to Pankaj Bansal and Basant Bansal on 13 June 2023 at 06:15 pm in relation to the first ECIR, requiring them to appear before the Enforcement Directorate on 14 June 2023 at 11:00 am. While both appellants were at the Enforcement Directorate office at Rajokri, New Delhi, in compliance with these summons, Pankaj Bansal was served with fresh summons at 04:52 pm on 14 June 2023, requiring him to be present before another Investigating Officer at 05:00 pm on the same day in connection with the second ECIR. There is lack of clarity as to when summons in relation to the second ECIR were served on Basant Bansal. According to the Enforcement Directorate, he was served the summons on 13 June 2023 and refused to receive it; however, it is an admitted fact that Basant Bansal was also present at the Enforcement Directorate’s office at Rajokri on 14 June 2023 at 11:00 am. While he was there, Basant Bansal was arrested at 06:00 pm on 14 June 2023 and Pankaj Bansal was arrested at 10:30 pm on the same day. These arrests, made in connection with the second ECIR, were exercised under Section 19(1) of the Act. The arrested persons were taken to Panchkula, Haryana, and produced before the learned Vacation Judge/Additional Sessions Judge, Panchkula, who initially passed an order dated 15 June 2023 holding that custodial interrogation was required and granted their custody to the Enforcement Directorate for five days with a direction to produce them before the Court on 20 June 2023. By later orders dated 20 June 2023 and 26 June 2023, their remand to the custody of the Enforcement Directorate was extended by five more days and thereafter they were sent to judicial custody., Assailing the first remand order dated 15 June 2023, Pankaj Bansal and Basant Bansal approached the Delhi High Court, vide Writ Petition (Criminal) Nos. 1770 and 1771 of 2023. By order dated 16 June 2023, the Delhi High Court opined that the appropriate remedy for them would be to approach the Punjab and Haryana High Court and challenge the remand order. Holding so, the Delhi High Court dismissed their miscellaneous applications but ordered notice in the writ petitions. Aggrieved by the Delhi High Court’s order, the appellants filed Special Leave Petition (Criminal) Nos. 7443 and 7444 of 2023 before the Supreme Court of India. The Special Leave Petitions were disposed of as withdrawn on 4 July 2023, reserving liberty to approach the Punjab and Haryana High Court against the remand orders. The Supreme Court further held that the writ petitions before the Delhi High Court were rendered infructuous. Thereafter, the appellants filed the subject writ petitions before the Punjab and Haryana High Court, which were dismissed by the impugned orders of the Division Bench., Although Basant Bansal is not shown as an accused along with his brother Roop Bansal in FIR No. 0006, his name is mentioned in the body of the FIR as one of the owners of M3M Group to whom favouritism was shown by Sudhir Parmar, Special Judge. The name of Pankaj Bansal does not appear in the FIR. The appellants contend that their arrest under Section 19 of the Act was a wanton abuse of power and an abuse of process by the Enforcement Directorate, apart from being blatantly illegal and unconstitutional. They assert that the Enforcement Directorate acted in violation of the safeguards provided in Section 19 of the Act. In this milieu, they pray that this Honorable Court may issue appropriate writs, orders and directions to: (a) read down and/or read into Section 19(1) of the Prevention of Money Laundering Act in consonance with the principles enunciated by the Supreme Court of India in Vijay Madanlal Choudhary v. Union of India (2022) SCC OnLine SC 929 and hold that (i) the expression “material in possession” must be confined to legally admissible evidence of sterling quality and unimpeachable character on the basis of which reasons to believe could be recorded in writing that the arrestee is guilty of an offence under Section 4 of the Act; (ii) the word “guilt” must meet a higher yardstick than mere suspicion and the learned Court at the stage of remand is required to apply its judicial mind to the grounds and necessity for arrest, as held in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and Satender Kumar Antil v. Central Bureau of Investigation (2022) SCC OnLine SC 825; and (iii) the expression “communicate” must entail physical communication and furnishing the grounds of arrest to the arrestee in accordance with Rules 2(1)(g) and 2(1)(h) of the Prevention of Money Laundering Act Rules, 2005 (Arrest Rules)., It is clear that the appellants did not assail the constitutional validity of Section 19 of the Act but sought its reading down or reading into. They further assert that the remand orders were passed in a patently routine and mechanical manner by the learned Vacation Judge/Additional Sessions Judge, Panchkula, without satisfying the mandate of Section 19 of the Act, particularly the threshold requirements. Consequently, they pray for a direction to quash the remand orders as well as the underlying arrest orders and arrest memos., The Division Bench of the Punjab and Haryana High Court failed to note this distinction and disallowed their prayer under the mistaken impression that they were challenging the constitutional validity of the provision. The finer connotations and nuances of the language used in Section 19 of the Act, which remain open to interpretation, were therefore not considered, although the High Court could have undertaken that exercise., Saket Singh, Indian Revenue Service, Deputy Director, Directorate of Enforcement, Gurugram Zonal Office, Rajokri, New Delhi, deposed to the replies filed by the Enforcement Directorate before the Supreme Court of India. He acknowledged that the second ECIR was recorded on 13 June 2023 based on FIR No. 0006 dated 17 April 2023. He stated that the name of Pankaj Bansal and the owners of M3M Group specifically found mention in the FIR; however, perusal of the FIR reflects that Pankaj Bansal’s name is not mentioned. Reference to the owners of M3M Group was in the context of Roop Bansal and his brother Basant Bansal, not in a generic sense. He further stated that although M3M Group, Pankaj Bansal and Basant Bansal were not named in the connected FIRs of the first ECIR, investigation had shown that the promoters of M3M Group were also involved in money laundering. According to him, Basant Bansal refused to accept the summons issued on 13 June 2023 in relation to the second ECIR and did not give any information. Manual summons dated 14 June 2023 were issued to Pankaj Bansal for his personal appearance and for recording his statement before the Enforcement Directorate’s Investigating Officer on the same day. He alleged that Pankaj Bansal accepted the summons but remained evasive in providing relevant information. He justified the issuance of summons on an immediate basis, claiming that it was necessary as the promoters/key persons of M3M Group, including the appellants, had been deliberately avoiding investigation in the first ECIR and were not complying with previously issued summons on multiple occasions. He alleged that Pankaj Bansal failed to comply with summons dated 4 June 2023, 6 June 2023 and 7 June 2023; this statement is factually incorrect as those summonses were issued to Basant Bansal and not to Pankaj Bansal., Saket Singh further stated that when Pankaj Bansal came to the Enforcement Directorate’s office on 14 June 2023, the Investigating Officer of the second ECIR served a summons upon him and, having evidence that Pankaj Bansal was guilty of money laundering, arrested him after following the due procedure prescribed under the Act and the rules framed thereunder. He asserted that the arrests were made in accordance with Section 19 of the Act and that information regarding the arrests of the appellants was communicated to Mrs. Abha Bansal and Ms. Payal Kanodia over the telephone immediately after their arrests. He stated that the written grounds of arrest were first read out to Basant Bansal, who refused to sign; subsequently, the written grounds were read in Hindi to Basant Bansal in the presence of witnesses, who signed as a token of correctness. He reiterated that issuance of summons on an immediate basis was a necessity because both appellants had been deliberately avoiding investigation in the other case as well and were not complying with previously issued summons on multiple occasions. This reiteration is incorrect as the first summons issued to Pankaj Bansal was on 13 June 2023 at 06:15 pm requiring him to appear at 11:00 am on 14 June 2023 in connection with the first ECIR, which he complied with, and again, while he was in the Enforcement Directorate’s office at New Delhi, he was served with the summons in connection with the second ECIR at 04:52 pm requiring him to be present at 05:00 pm, which he also complied with. According to Saket Singh, during the investigation both appellants were found to be actively involved in money laundering and deliberately attempted to withhold information crucial to establish their roles. He alleged that they adopted a non‑cooperative attitude and that they had bribed the Enforcement Directorate Judge to obtain benefit in the proceedings, showing capability to influence witnesses and authorities. He further alleged that they were capable of tampering with evidence and hence Pankaj Bansal was arrested on 14 June 2023 around 10:30 pm on the basis of incriminating evidence. The written grounds of arrest were read to Pankaj Bansal in the presence of witnesses, who then signed., Although much was argued by both sides on the merits of the alleged money‑laundering offence, the Court is not concerned with that issue at this point. The only issue for consideration presently is whether the arrest of the appellants under Section 19 of the Act was valid and lawful and whether the impugned remand orders passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, meet the required standards. The mere passing of a remand order would not be sufficient to validate the arrests if such arrests are not in conformity with the requirements of Section 19 of the Act. Judgments cited by the Enforcement Directorate that held the legality of the arrest to be immaterial once a competent Court passes a remand order dealt primarily with writs of habeas corpus sought after a remand order, and that ratio does not apply here. The understanding of the Enforcement Directorate and its misplaced reliance upon that case law raises the question of whether there was proper compliance with Section 19(1) of the Act and whether the learned Vacation Judge correctly considered that issue while passing the remand orders. Therefore, as the very validity of the remand orders is under challenge, the lawfulness of the arrests may also be open for consideration., In Vijay Madanlal Choudhary (supra), a three‑Judge Bench of the Supreme Court of India observed that Section 65 of the Act predicates that the provisions of the Criminal Procedure Code, 1973 shall apply insofar as they are not inconsistent with the provisions of the Act in respect of arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings thereunder. It was noted that Section 19 of the Act prescribes the manner in which the arrest of a person involved in money laundering can be effected. Such power is vested in high‑ranking officials and Section 19 provides in‑built safeguards, such as recording reasons for the belief regarding involvement of the person in the offence, recording those reasons in writing, and informing the person of the grounds of arrest. The authorized officer must forward a copy of the order, along with the material in his possession, to the Adjudicating Authority to ensure fairness, objectivity and accountability. The Bench also noted that the authorized officer is obligated to produce the arrested person before the Special Court or Judicial Magistrate or Metropolitan Magistrate within 24 hours, complying with Section 167 of the Criminal Procedure Code. There is nothing in Section 19 that is contrary to the requirement of production under Section 167, and being an express statutory requirement under Section 19(3), it must be complied with by the authorized officer. The Bench concluded that the safeguards provided in the Act and the pre‑conditions to be fulfilled before effecting arrest are equally stringent and of higher standard when compared to the Customs Act, 1962, ensuring that authorized officers do not act arbitrarily. On this basis, the Bench upheld the validity of Section 19 of the Act. The Bench further held that once the person is informed of the grounds of arrest, that satisfies the mandate of Article 22(1) of the Constitution and that it is not necessary to supply a copy of the ECIR to the person in every case; it is sufficient if the Enforcement Directorate discloses the grounds of arrest at the time of arrest. When the arrested person is produced before the Court, the Court may examine the relevant records presented by the authorized representative of the Enforcement Directorate to answer the issue of need for continued detention. It was these stringent safeguards that prompted the Court to uphold the twin conditions contained in Section 45 of the Act, making it difficult to secure bail., The Court again considered the provisions of the Act in V. Senthil Balaji v. The State represented by Deputy Director and others, and more particularly Section 19 thereof. It was noted that the authorized officer may arrest a person once he finds a reason to believe that the person is guilty of an offence punishable under the Act, but he must record the reasons and inform the arrestee of the grounds of arrest. The Court observed that the Magistrate, while exercising the power under Section 167 of the Criminal Procedure Code, must ensure that the investigation is completed within 24 hours as a matter of rule, and therefore the investigating agency must satisfy the Magistrate with adequate material on the need for custody. The Court reiterated that Section 19 of the Act, supplemented by Section 167, provides adequate safeguards to an arrested person, and the Magistrate has a distinct role to play when a remand is made to an authority under the Act. The Magistrate is under a duty to see that Section 19 is duly complied with, and any failure would entitle the arrestee to be released. Section 167 is meant to give effect to Section 19, and the Magistrate must be satisfied of compliance by perusing the order passed under Section 19(1). In conclusion, any non‑compliance with the mandate of Section 19 would benefit the arrested person and the Court would have power to initiate action under Section 62 of the Act. In the present case, the grounds of arrest were furnished in writing to the arrested person by the authorized officer., In terms of Section 19(3) of the Act and the law laid down in the above decisions, Section 167 of the Criminal Procedure Code must necessarily be complied with once an arrest is made under Section 19 of the Act. The Court, while exercising its power under Section 167 to remand a person arrested by the Enforcement Directorate under Section 19(1), has a duty to verify that the conditions in Section 19 are duly satisfied and that the arrest is valid and lawful. If the Court fails to discharge this duty, the order of remand must fail and cannot validate an unlawful arrest made under Section 19., In Madhu Limaye and others, a three‑Judge Bench of the Supreme Court observed that the State must establish that, at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters, and if the arrest violated Article 22(1) of the Constitution, the remand order would not cure the constitutional infirmities., Viewed in this context, the remand order dated 15 June 2023 passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, reflects a total failure to discharge his duty. The learned Judge did not record a finding that he had perused the grounds of arrest to ascertain whether the Enforcement Directorate had recorded reasons to believe that the appellants were guilty of an offence under the Act and whether there was proper compliance with the mandate of Section 19. He merely stated that, keeping in view the seriousness of the offences and the stage of investigation, he was convinced that custodial interrogation was required and remanded them to the custody of the Enforcement Directorate, adding that all necessary mandates of law had been complied with, without recording his own satisfaction to that effect., It is therefore necessary to examine how the appellants were arrested and verify whether it was in keeping with the safeguards in Section 19 of the Act. The first ECIR was registered by the Enforcement Directorate on 15 June 2021 and Roop Bansal was arrested in connection therewith on 8 June 2023. Neither of the appellants was shown as an accused therein. The Enforcement Directorate claims that investigation in relation to the first ECIR is still ongoing. After the arrest of Roop Bansal, both appellants secured interim protection by way of anticipatory bail on 9 June 2023, albeit till the next day of hearing, i.e., 5 July 2023, from the Delhi High Court. However, both appellants were summoned on 14 June 2023 for interrogation in connection with the first ECIR, in which they had interim protection. Summons in that regard were served upon them on 13 June 2023 at 06:15 pm. Significantly, the second ECIR was recorded on 13 June 2023 in connection with FIR No. 0006 dated 17 April 2023. Neither of the appellants was shown as an accused; only Roop Bansal was named. In compliance with the summons received vis‑à‑vis the first ECIR, both appellants presented themselves at the Enforcement Directorate’s office at Rajokri, New Delhi, at 11:00 am on 14 June 2023.
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While they were there, Pankaj Bansal was served with summons at 04:52 pm, requiring him to appear before another Investigating Officer at 05:00 pm in relation to the second Enforcement Case Information Report. As already noted, there is ambiguity as to when Basant Bansal was served with such summons. It is the case of the Enforcement Directorate that he refused to receive the summons in relation to the second Enforcement Case Information Report and he was arrested at 06:00 pm on 14-06-2023. Pankaj Bansal received the summons and appeared but as he did not divulge relevant information, the Investigating Officer arrested him at 10:30 pm on 14-06-2023. This chronology of events speaks volumes and reflects rather poorly, if not negatively, on the Enforcement Directorate's style of functioning., Being a premier investigating agency, charged with the onerous responsibility of curbing the debilitating economic offence of money laundering in our country, every action of the Enforcement Directorate in the course of such exercise is expected to be transparent, above board and conforming to pristine standards of fair play in action. The Enforcement Directorate, mantled with far‑reaching powers under the stringent Prevention of Money Laundering Act, 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness. In the case on hand, the facts demonstrate that the Enforcement Directorate failed to discharge its functions and exercise its powers as per these parameters., In this regard, we may note that, though the appellants did not allege colourable exercise of power or malafide intent or malice on the part of the Enforcement Directorate officials, they did assert in categorical terms that their arrests were a wanton abuse of power, authority and process by the Enforcement Directorate, which would tantamount to the same thing., The question, then, is what is malafide in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power, sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions, is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not illegitimate. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Supreme Court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: I repeat … that all power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice‑laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, malafide or fraud on power vitiates the acquisition or other official act., A few years later, in Collector (District Magistrate), Allahabad and another vs. Raja Ram Jaiswal, the Supreme Court held as under: Where power is conferred to achieve a purpose, it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. In this context, good faith means for legitimate reasons. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated., Again, in Ravi Yashwant Bhoir vs. Collector, it was held thus: Malafide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law., The way in which the Enforcement Directorate recorded the second Enforcement Case Information Report immediately after the appellants secured anticipatory bail in relation to the first Enforcement Case Information Report, though the foundational First Information Report dated back to 17-04-2023, and then went about summoning them on one pretext and arresting them on another, within a short span of 24 hours, manifests complete and utter lack of bonafides. Significantly, when the appellants were before the Delhi High Court seeking anticipatory bail in connection with the first Enforcement Case Information Report, the Enforcement Directorate did not even bring it to the notice of the Delhi High Court that there was another First Information Report in relation to which there was an ongoing investigation, wherein the appellants stood implicated. The second Enforcement Case Information Report was recorded four days after the grant of bail and it is not possible that the Enforcement Directorate would have been unaware of the existence of First Information Report No. 0006 dated 17-04-2023 at that time., Surprisingly, in its Written Submissions, the Enforcement Directorate stated that it started its inquiries in respect of this First Information Report in May 2023, but the replies filed by the Enforcement Directorate do not state so. It is in this background that this suppression before the Delhi High Court demonstrates complete lack of probity on the part of the Enforcement Directorate. Its prompt retaliatory move, upon grant of interim protection to the appellants, by recording the second Enforcement Case Information Report and acting upon it, all within the span of a day, so as to arrest the appellants, speaks for itself and requires no further elaboration., Further, when the second Enforcement Case Information Report was recorded on 13-06-2023 after preliminary investigations, as stated in the Enforcement Directorate's replies, it is not clear as to when the Enforcement Directorate's Investigating Officer had the time to properly inquire into the matter so as to form a clear opinion about the appellants' involvement in an offence under the Prevention of Money Laundering Act, 2002, warranting their arrest within 24 hours. This is a sine qua non in terms of Section 19(1) of the Prevention of Money Laundering Act, 2002. Authorities must act within the four corners of the statute, as pointed out by the Supreme Court in Devinder Singh v. State of Punjab, and a statutory authority is bound by the procedure laid down in the statute and must act within the four corners thereof., We may also note that the failure of the appellants to respond to the questions put to them by the Enforcement Directorate would not be sufficient in itself for the Investigating Officer to opine that they were liable to be arrested under Section 19, as that provision specifically requires him to find reason to believe that they were guilty of an offence under the Prevention of Money Laundering Act, 2002. Mere non‑cooperation of a witness in response to the summons issued under Section 50 of the Prevention of Money Laundering Act, 2002 would not be enough to render him or her liable to be arrested under Section 19. As per its replies, the Enforcement Directorate claims that Pankaj Bansal was evasive in providing relevant information. It was however not brought out why Pankaj Bansal's replies were categorized as evasive and that record is not placed before us for verification. In any event, it is not open to the Enforcement Directorate to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an evasive reply. In Santosh S/o Dwarkadas Fafat vs. State of Maharashtra, the Supreme Court noted that custodial interrogation is not for the purpose of confession as the right against self‑incrimination is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not co‑operating with the investigation. Similarly, the absence of either or both of the appellants during the search operations, when their presence was not insisted upon, cannot be held against them., The more important issue presently is how the Enforcement Directorate is required to inform the arrested person of the grounds for his or her arrest. Prayer (iii) in the writ petitions filed by the appellants pertained to this. Section 19 does not specify in clear terms how the arrested person is to be informed of the grounds of arrest and this aspect has not been dealt with or delineated in Vijay Madanlal Choudhary. Similarly, in V. Senthil Balaji, the Supreme Court merely noted that the information of the grounds of arrest should be served on the arrestee, but did not elaborate on that issue. Pertinent to note, the grounds of arrest were furnished in writing to the arrested person in that case. No consistent and uniform practice seems to be followed by the Enforcement Directorate in this regard, as written copies of the grounds of arrest are furnished to arrested persons in certain parts of the country but in other areas that practice is not followed and the grounds of arrest are either read out to them or allowed to be read by them., In this context, reliance is placed by the Enforcement Directorate upon the decision of a Division Bench of the Delhi High Court in Moin Akhtar Qureshi vs. Union of India and others, wherein it was observed that Section 19 of the Prevention of Money Laundering Act, 2002 uses the expression 'informed of the grounds of such arrest' and does not use the expression 'communicate the grounds of such arrest', and therefore the obligation cast upon the authorized officer under Section 19(1) is only to inform the arrestee of the grounds of arrest and the provision does not oblige the authority to serve the grounds for such arrest on the arrestee. Reliance is also placed by the Enforcement Directorate on the judgment of a Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal vs. Union of India and others, which held that the grounds of arrest are to be informed to the person arrested and that would mean that they should be communicated at the earliest but there is no statutory requirement of the grounds of arrest being communicated in writing., No doubt, in Vijay Madanlal Choudhary, the Supreme Court held that non‑supply of the Enforcement Case Information Report in a given case cannot be found fault with, as the Enforcement Case Information Report may contain details of the material in the Enforcement Directorate's possession and revealing the same may have a deleterious impact on the final outcome of the investigation or inquiry. Having held so, the Supreme Court affirmed that so long as the person is informed of the grounds of his or her arrest, that would be sufficient compliance with the mandate of Article 22(1) of the Constitution., In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. Section 45 of the Prevention of Money Laundering Act, 2002 enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions are that, firstly, the Court must be satisfied, after giving an opportunity to the public prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorized officer arrested him or her under Section 19 and the basis for the officer's reason to believe that he or she is guilty of an offence punishable under the Prevention of Money Laundering Act, 2002. Only if the arrested person has knowledge of these facts can he or she be in a position to plead and prove before the Special Court that there are grounds to believe that he or she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 of the Prevention of Money Laundering Act, 2002, is meant to serve this higher purpose and must be given due importance., We may also note that the language of Section 19 of the Prevention of Money Laundering Act, 2002 puts it beyond doubt that the authorized officer has to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the Act. Section 19(2) requires the authorized officer to forward a copy of the arrest order along with the material in his possession, referred to in Section 19(1), to the Adjudicating Authority in a sealed envelope. Though it is not necessary for the arrested person to be supplied with all the material that is forwarded to the Adjudicating Authority under Section 19(2), he or she has a constitutional and statutory right to be informed of the grounds of arrest, which are compulsorily recorded in writing by the authorized officer in keeping with the mandate of Section 19(1). It seems that the mode of informing this to the persons arrested is left to the option of the Enforcement Directorate's authorized officers in different parts of the country, i.e., either to furnish such grounds of arrest in writing or to allow such grounds to be read by the arrested person or be read over and explained to such person., That apart, Rule 6 of the Prevention of Money Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005, titled Forms of records, provides that the arresting officer while exercising powers under Section 19(1) shall sign the Arrest Order in Form III appended to those Rules. Form III, being the prescribed format of the Arrest Order, reads as under: Whereas, I, Director/Deputy Director/Assistant Director/Officer authorized in this behalf by the Central Government, have reason to believe that [name of the person arrested], resident of [address], has been guilty of an offence punishable under the provisions of the Prevention of Money‑Laundering Act, 2002; Now, therefore, in exercise of the powers conferred on me under sub‑section (1) of section 19 of the Prevention of Money‑Laundering Act, 2002, I hereby arrest the said [name of the person arrested] at [time] on [date] and he has been informed of the grounds for such arrest. Dated at [place] on this day of [date]. Arresting Officer Signature with Seal., That being so, there is no valid reason why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. Firstly, if such grounds are orally read out to the arrested person and the fact is disputed, it may boil down to the word of the arrested person against the word of the authorized officer as to whether due compliance has occurred. In the present case, that is the situation insofar as Basant Bansal is concerned. Though the Enforcement Directorate claims that witnesses were present and certified that the grounds of arrest were read out and explained to him in Hindi, that is irrelevant as he did not sign the document. Non‑compliance in this regard would entail release of the arrested person straightaway, as held in V. Senthil Balaji. Such a precarious situation is easily avoided by furnishing the written grounds of arrest, as recorded by the authorized officer in terms of Section 19(1), to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorized officer., The second reason why this would be the proper course to adopt is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he or she is being arrested but also to enable the person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail, if he or she so chooses. In V. Senthil Balaji, the grounds of arrest run into as many as six pages. The grounds of arrest recorded in the present case in relation to Pankaj Bansal and Basant Bansal have not been produced before this Court, but it was contended that they were produced at the time of remand. However, as already noted, this did not serve the intended purpose. If the grounds were equally voluminous, it would be virtually impossible for either appellant to remember all that they had read or heard for future recall to avail legal remedies. Moreover, a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read to him or her. The very purpose of this constitutional and statutory protection would be rendered nugatory by permitting the authorities to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim compliance with Article 22(1) and Section 19(1)., We may also note that the grounds of arrest recorded by the authorized officer in terms of Section 19(1) would be personal to the person who is arrested and there should ordinarily be no risk of sensitive material being divulged, compromising the sanctity and integrity of the investigation. In the event any such sensitive material finds mention, it would be open to the officer to redact such portions and furnish the edited copy to the arrested person, so as to safeguard the sanctity of the investigation., On the above analysis, to give true meaning and purpose to the constitutional and statutory mandate of Section 19(1) of the Prevention of Money Laundering Act, 2002 of informing the arrested person of the grounds of arrest, we hold that henceforth a copy of such written grounds of arrest must be furnished to the arrested person as a matter of course and without exception. The decisions of the Delhi High Court in Moin Akhtar Qureshi and the Bombay High Court in Chhagan Chandrakant Bhujbal, which hold to the contrary, do not lay down the correct law. In the case on hand, the admitted position is that the Enforcement Directorate's Investigating Officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is also disputed by the appellants. This form of communication is not adequate to fulfil compliance with the mandate of Article 22(1) of the Constitution and Section 19(1) of the Prevention of Money Laundering Act, 2002, and therefore their arrest was not in keeping with the provisions of Section 19(1). Further, the clandestine conduct of the Enforcement Directorate in proceeding against the appellants by recording the second Enforcement Case Information Report immediately after they secured interim protection in relation to the first Enforcement Case Information Report does not commend acceptance as it reeks of arbitrary exercise of power. In effect, the arrest of the appellants and, consequently, their remand to the custody of the Enforcement Directorate and thereafter to judicial custody cannot be sustained., The appeals are accordingly allowed, setting aside the impugned orders passed by the Division Bench of the Punjab & Haryana High Court as well as the impugned arrest orders and arrest memos along with the orders of remand passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, and all orders consequential thereto. The appellants shall be released forthwith unless their incarceration is validly required in connection with any other case. In the circumstances, we make no order as to costs. October 3, 2023; New Delhi. Criminal Appeal Nos. 3051‑3052/2023. Date: 03-10-2023. These appeals were called on for pronouncement of judgment today.
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Dr. Anand Teltumbde, Senior Professor and Chair of Big Data Analytics at Goa Institute of Management, aged 72 years, residing at Goa Institute of Management, Sanquelim, Goa 403505, is presently detained at Taloja Central Prison. He is the appellant. The respondents are the National Investigation Agency, through its Superintendent, having its office at Cumballa Hill, Peddar Road, Mumbai 400026, and the State of Maharashtra. Mr. Mihir Desai, Senior Advocate, appears on behalf of the appellant, assisted by Ms. Devyani Kulkarni. Mr. Sandesh Patil, Special Public Prosecutor, appears for the National Investigation Agency, assisted by Mr. Chintan Shah, Mr. Shrikant Sonakawade and Mr. Prithviraj Gole. Ms. J.S. Lohakare appears for the State of Maharashtra. Mr. Pradip Bhale, Deputy Superintendent of Police, National Investigation Agency, is present. The appeal is reserved for 11 November 2022., By this appeal, filed under Section 21(4) of the National Investigation Agency Act, 2008, the appellant challenges the order dated 12 July 2021 passed by the Special Judge, Greater Bombay (hereinafter referred to as the Special Court, Greater Bombay) in Special Case No. 414 of 2020 together with Special Case No. 871 of 2020, which rejected the appellant's application for bail., The appellant is arraigned as accused No. 10 in FIR No. RC01/2020/NIA/MUM registered by the National Investigation Agency under Sections 120-B, 115, 121, 121-A, 124-A, 153, 201, 505(1)(b) and 34 of the Indian Penal Code, 1860 and under Sections 13, 16, 17, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967., On 31 December 2017, the Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called Elgaar Parishad at Shaniwarwada, Pune (hereinafter Elgaar Parishad Programme). More than 200 social organisations celebrated the 200th anniversary of the historic battle of Bhima Koregaon on 1 January 2018. The programme was held from 2:30 p.m. to 10:00 p.m. On 1 January 2018, mobs bearing saffron flags attacked persons travelling to and returning from Shaniwarwada, resulting in large‑scale violence and the death of one youth., A zero FIR was registered on 2 January 2018 at Pimpri Chinchwad Police Station, Pune by an eye‑witness, Ms. Anita Salve, under various provisions of the Indian Penal Code, the Arms Act, 1959, the Maharashtra Police Act, 1951 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, alleging the involvement of Sambhaji Bhide, Milind Ekbote and their followers in the attack and violence. A statewide bandh was subsequently called by several Dalit, OBC, Maratha and Muslim organisations against the attacks across Maharashtra., On 8 January 2018, the first informant, Mr. Tushar Damgude, registered FIR No. 4 of 2018 under Sections 153-A, 505(1)(b), 117 read with 34 of the Indian Penal Code, stating that the Elgaar Parishad Programme organised at Shaniwarwada on 31 December 2017 was attended by him at around 2:00 p.m. He alleged that the speakers gave provocative speeches that disrupted communal harmony and that the banned terrorist organisation Communist Party of India (Maoist) (CPI(M)) had an organisational role in arranging the programme. According to the complainant, members of Kabir Kala Manch (KKM) performed provocative street plays, made incendiary speeches and spread false history, leading to incidents of violence, arson, stone‑pelting and the death of an innocent person on 1 January 2018 near Bhima Koregaon., The houses of Rona Wilson (Accused No. 2), Surendra Gadling (Accused No. 3), Sudhir Dhawale (Accused No. 1), Harshali Potdar, Sagar Gorkhe (Accused No. 13), Deepak Dhengale, Ramesh Gaichor (Accused No. 14) and Jyoti Jagtap (Accused No. 15) were searched by the police. Articles and incriminating material seized during the search were sent to the Forensic Science Laboratory, Pune. Analysis of the seized electronic and digital articles confirmed that accused Surendra Gadling, Rona Wilson, Shoma Sen (Accused No. 4), Mahesh Raut (Accused No. 5), the late Milind Teltumbde (WA‑1), Prakash (WA‑2), Manglu (WA‑3) and Deepu (WA‑4) were involved in the crime. During the investigation, the investigating officer invoked Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act., Accused Surendra Gadling, Rona Wilson, Shoma Sen, Mahesh Raut and Sudhir Dhawale were arrested on 6 June 2018. Residences of Shoma Sen and Mahesh Raut were searched and digital devices and other articles were seized, revealing the involvement of additional accused: Varavara Rao (Accused No. 6), Arun Ferreira (Accused No. 8), Sudha Bharadwaj (Accused No. 9), Vernon Gonsalves (Accused No. 7), Stan Swamy (Accused No. 16), Gautam Navlakha (Accused No. 11) and the appellant (Accused No. 10). Their names were added as accused on 23 August 2018., Searches were conducted on 28 August 2018 at the residences and workplaces of Varavara Rao, Sudha Bharadwaj, Arun Ferreira, Gautam Navlakha, Stan Swamy and Vernon Gonsalves. The police arrested Varavara Rao, Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira and Vernon Gonsalves and placed them under house arrest. On 15 November 2018, the Pune Police filed a chargesheet under Sections 153-A, 505(1)(b), 117, 120-B, 121, 121-A, 124-A and 34 of the Indian Penal Code and Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act against Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut, Rona Wilson and five absconding accused persons. Subsequently, on 21 February 2019, a supplementary chargesheet was filed against Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj and one absconding accused, Ganapathy (WA‑6)., The appellant filed Writ Petition No. 4596 of 2018 on 17 September 2018 in the High Court of Bombay seeking quashing of FIR No. 4 of 2018. On 21 December 2018, the High Court dismissed the writ petition but extended protection of three weeks to approach the Supreme Court of India. The Supreme Court dismissed SLP (Criminal) No. 59 of 2019 filed by the appellant on 14 January 2019, extending his protection from arrest for four weeks to enable him to apply for regular pre‑arrest bail before the trial court. The appellant filed an anticipatory bail application before the Special Court, Pune, which was dismissed on 1 December 2019. He then approached the High Court of Bombay and filed Anticipatory Bail No. 314 of 2019, receiving intermittent protection from arrest. On 21 February 2019 a further supplementary chargesheet was filed against four additional accused (not the appellant). On 24 January 2020, the Under‑Secretary to the Government, Ministry of Home Affairs, New Delhi, directed the National Investigation Agency to take up the investigation of FIR No. 4/2018 of Vishrambaug Police Station. The NIA re‑registered FIR RC‑01/2020/NIA/MUM under Sections 153-A, 505(1)(b), 117, 34 of the Indian Penal Code and Sections 13, 16, 18, 18B, 20 and 39 of the Unlawful Activities (Prevention) Act on 24 January 2020. The appellant's anticipatory bail was dismissed by the High Court of Bombay on 14 February 2020; the appellant then approached the Supreme Court of India, which dismissed SLP (Criminal) No. 1916 of 2020 on 8 April 2020. The appellant surrendered on 14 April 2020 pursuant to the Supreme Court's order dated 8 April 2020. On 9 October 2020, the NIA filed a chargesheet against the appellant. The appellant filed a regular bail application under Section 439 of the Code of Criminal Procedure before the Special Court, NIA, Greater Bombay. By order dated 12 July 2021, the learned Special Judge rejected the bail application. The present appeal challenges that order., The National Investigation Agency filed an affidavit‑in‑reply dated 15 November 2021. The appellant tendered a compilation of 21 judgments on 25 March 2022 and a separate convenience compilation of 169 pages. The NIA submitted a convenience compilation of 341 pages (without index) and a compilation of four judgments. These documents have been taken on record; most of the material is common to both parties., The Court has heard Mr. Mihir Desai, Senior Advocate for the appellant, Mr. Sandesh Patil, Special Public Prosecutor for the NIA, and Ms. J.S. Lohakare, APP for the State of Maharashtra, and perused the entire record. The charge against the appellant is contained in paragraph No. 17 of the chargesheet. Paragraph 17.1 discloses that the appellant, along with other co‑accused, is a member of the Communist Party of India (Maoist) and is deeply involved in furthering its agenda. Paragraphs 17.2 to 17.7 refer to the CPI(M) and its organisational network in detail. Paragraph 17.8 lists ten organisations that function as frontal organisations of the CPI(M). Specific charges include: (i) attendance at a meeting organised by the Revolutionary Democratic Front (RDF) at Hyderabad in 2012 and espousing the cause of Dalit militancy under the flag of CPI(M); (ii) active participation in the Elgaar Parishad Programme while working at Goa Institute of Management; (iii) serving as General Secretary of the Committee for Protection of Democratic Rights (CPDR) and member of the Anuradha Ghandy Memorial Committee, both front organisations of the CPI(M); (iv) being one of the convenors of the Elgaar Parishad Programme and present at the venue; (v) attending international conferences in Canada, Pakistan, the United States and France, during which he allegedly exchanged literature on CPI(M) ideology with international communist organisations and acted as a conduit for his brother Milind Teltumbde, a wanted accused; (vi) taking efforts to secure the release of a CPI(M) cadre named Murugan and of G.N. Saibaba; (vii) having his role appreciated by the Central Committee of CPI(M) in connection with the Elgaar Parishad Programme; (viii) delivering a speech in a programme organised in memory of Comrade Naveen Babu; (ix) allegedly guiding Milind Teltumbde in expanding the Naxal movement in urban areas; and (x) visiting universities and institutions in India and abroad to deliver speeches related to the left movement., The appellant is a highly educated academician, author and social scientist who has received many accolades for his work. He holds a Bachelor of Engineering in Mechanical Engineering from VNIT, Nagpur; an MBA from the Indian Institute of Management, Ahmedabad; a Doctorate in Management from the University of Mumbai in Cybernetic Modelling for Public Systems; and an honorary Doctorate of Literature conferred by Karnataka State University, Mysore. He served as Executive Director of Bharat Petroleum and Managing Director and CEO of Petronet India Limited until 2010, after which he joined the Indian Institute of Technology, Kharagpur as Professor of Management until 2016. He has authored 26 books, contributed extensively to leading newspapers, magazines and journals such as Economic and Political Weekly, Mainstream, Frontier and Seminar, and has participated in numerous fact‑finding missions on issues including tsunami rehabilitation, caste atrocities and communal violence. At the time of his arrest he was a Senior Professor at the Goa Institute of Management. He suffers from chronic bronchial asthma, cervical spondylitis, supraspinatus tendinitis and prostatomegaly and was under regular medication for hypertension and depression. The medical records forming part of the second supplementary chargesheet are not in dispute., The appellant received a phone call from Justice P.B. Sawant (Retd) through his secretary; Justice Kolse‑Patil (Retd) subsequently spoke to him and invited him to attend a conference celebrating the 200th anniversary of the Bhima Koregaon battle. The appellant, busy with a newly started programme at the Goa Institute of Management, excused himself but later agreed to be part of the convenor committee. In November‑December 2017 he received a copy of the programme pamphlet via WhatsApp, disagreed with its agenda and wrote a critical article for The Wire titled \The Myth of Bhima Koregaon Reinforces the Identities It Seeks to Transcend\, which attracted condemnation from Dalit groups. This instance, according to counsel, demonstrates the appellant's intellectual independence from the Elgaar Parishad Programme., The appellant visited Pune on 30 December 2017 and 31 December 2017 to attend the marriage of the son of his close friend, Mr. Joshi. He travelled from Goa with his wife and two drivers, reaching Pune at 7:30 p.m. on 30 December and staying at Shreyas Hotel. On 31 December they attended the wedding reception, checked out at 10:00 a.m., and briefly visited Shaniwarwada (approximately three kilometres from the hotel) between 10:00 a.m. and 12:30 p.m. before returning to Goa, arriving at 11:00 p.m. after changing all four tyres at Satara. Counsel submits that the appellant's presence in Pune on the date of the Elgaar Parishad Programme and his brief visit to Shaniwarwada indicate that he was one of the inviters (Nimantrak) overseeing the preparation of the venue and was connected with the programme., The appellant did not deliver any speech at the Elgaar Parishad Programme, which ran from 2:30 p.m. to approximately 10:30 p.m. The prosecution alleges that incriminating material such as books, articles, documents and lengthy quotations pertaining to CPI(M) were seized from accused No. 2, Rona Wilson, and that the appellant was instrumental in bringing this material on pen‑drive and database while attending international conferences, thereby acting as an active member of the banned terrorist organisation CPI(M). Counsel points out that the material cited by the prosecution is publicly available on several security and political websites and in published books, and that the NIA has failed to produce the specific material before either the trial court or this Court., Four letters recovered from the computer of accused No. 2, Rona Wilson, refer to the names ‘Anand’, ‘Comrade Anand’ and ‘brother Anand’, which the prosecution claims indicate that the appellant is an active member of CPI(M) and was in constant touch with his younger brother Milind Teltumbde (the wanted accused No. 1), supplying incriminating material for dissemination. Counsel submits that Milind Teltumbde was killed in an encounter with security forces some time last year and is no longer alive, and that the allegation of the appellant being a think‑tank for CPI(M) lacks material proof., Counsel further submits that the appellant’s membership in the Committee for Protection of Democratic Rights and attendance at international conferences since 2002 do not automatically make him an active member of CPI(M). The appellant has produced detailed records of his foreign visits, showing that they were either sponsored by his employers or funded from his own pocket. The allegation that CPI(M) sponsored his foreign visits is therefore preposterous and unsupported by any material evidence., The prosecution relies on statements of two key witnesses who claim that the appellant was in touch with Milind Teltumbde for strategising training and influencing CPI(M) ideology. Counsel argues that the appellant has not met Milind Teltumbde for the last thirty years since Milind went underground, and that the witnesses’ statements are purely hearsay and must be tested prima facie., The prosecution also relies on a chit of accounts for 2017 containing an entry reading ‘Anand T. (= ==R === 90 T from Surendra (through Milind)’. The NIA interprets this as evidence that the appellant received funds from the Central Committee of CPI(M) via Surendra Gadling and his brother Milind for furthering an anti‑national agenda., Counsel submits that no incriminating material has been recovered from the appellant, that his antecedents are spotless, and that there is no recovery of cash or any monetary receipt in his bank account. He maintains that the appellant did not play any active role in the Elgaar Parishad Programme, has no nexus with CPI(M), and that there is no prima facie evidence that his international visits were sponsored by CPI(M) or that he brought any illicit material from abroad., Counsel relied on the following judgments: Arup Bhuyan v. State of Assam; Indra Das v. State of Assam; Union of India v. K.A. Najeeb; Kamlesh & Anr. v. State of Rajasthan; Vikram Vinay Bhave v. State of Maharashtra; Dhan Singh v. Union of India; Thwaha Fasal v. Union of India; Sudesh Kedia v. Union of India; Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr.; State of Bihar v. Radha Krishna Singh & Ors.; H. Siddiqui v. A. Ramalingam; Ramji Dayawala & Sons (P) Ltd. v. Invest Import; Ashim v. National Investigation Agency; Konnath Muralidharan v. State of Maharashtra; Saidulu Narsimha Singapanga v. State of Maharashtra; Common Cause & Ors. v. Union of India & Ors.; Gautam Navlakha v. National Investigation Agency; Devendar Gupta & Ors. v. National Investigation Agency; M. Londhoni Devi v. National Investigation Agency; Union of India v. Shiv Shanker Kesari; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal., The Court considered the settled legal position on bail, focusing on the following parameters: (i) whether there is any prima facie or reasonable ground to believe that the accused committed the offence; (ii) nature and gravity of the charge; (iii) severity of punishment on conviction; (iv) danger of the accused absconding if released; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of witnesses being tampered with; (viii) danger of justice being thwarted by granting bail; (ix) special considerations for offences punishable under the Unlawful Activities (Prevention) Act, particularly Section 43‑D; (x) that the doctrine of guilt by association does not apply unless the accused resorts to or incites violence; and (xi) that mere inclusion as a co‑accused in a supplementary chargesheet does not create a presumption of involvement without cogent material on record., The Special Public Prosecutor for the NIA opposed the appellant’s bail, submitting that the appellant is an active senior member of CPI(M) working in urban areas, in contact with co‑accused such as Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahesh Raut, Shoma Sen, Varavara Rao, Gautam Navlakha, Sudha Bharadwaj, Arun Ferreira, Vernon Gonsalves, Stan Swamy, Hany Babu and Harshali Potdar, and has been actively involved in furthering the larger conspiracy on behalf of the terrorist organisation. He also alleged that the appellant was the General Secretary of CPDR and a member of the Anuradha Ghandy Memorial Committee, both frontal organisations of CPI(M); that the appellant was one of the convenors of the Elgaar Parishad Programme and was present at Shaniwarwada on 31 December 2017; that he took efforts for the release of CPI(M) cadre Murugan and G.N. Saibaba; that he appreciated the work of co‑accused Shoma Sen; that he organised fact‑finding missions on CPI(M)’s direction; that the Central Committee of CPI(M) appreciated his role after the Elgaar Parishad Programme; that CPI(M) allocated Rs 10,00,000 to the appellant for international campaigns; that a letter recovered from Rona Wilson’s computer shows Milind Teltumbde directing Rona Wilson to exploit the death of a youth on 1 January 2018 and mentions the appellant as ‘brother Anand’; that CPI(M) used the Elgaar Parishad Programme to further its agenda through frontal organisations such as Kabir Kala Manch; that Milind Teltumbde was inspired by the appellant; and that during his international visits the appellant brought literature, videos and tactical material related to Maoist ideology, weapons, and planning of attacks, which were used for training CPI(M) cadres.
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National Investigation Agency and Anand Teltumbde Vs. State of Maharashtra submitted that the role of the Appellant in the present crime has to be considered on a higher footing as he is the think tank and a senior and active member of the Communist Party of India (Marxist) than the role played by Hany Babu (Accused No.12) or Jyoti Jagtap (Accused No.15) who have been denied bail by this Court in the same case. He submitted that the Appellant's role needs to be distinguished critically and therefore the present appeal be dismissed., It is to be noted that the Unlawful Activities (Prevention) Act was brought into existence to meet extraordinary situations and in particular to deal with orchestrated crimes through organisations aimed at destabilisation or causing damage to the country. The Act enables the Government to impose prohibition on the organisations after following the prescribed procedure. Once an organisation is prohibited under the Act, any person associated with it becomes amenable for trial for the offences punishable under the various provisions of the Act, apart from other penal enactments. The provisions of the Act also get attracted if an individual, though not associated with any prohibited organisation, indulges in disruptive and terrorist activities in association with other individuals., Having regard to the gravity of the offences that become triable under the provisions of the Act, Parliament introduced Section 43-D of the Unlawful Activities (Prevention) Act, making it somewhat difficult for a person accused of such offence to get bail. We have referred to the provisions of Section 43-D(5) and (6) in the present case., From a perusal of the said provisions, especially the proviso to sub‑section (5) of Section 43-D, it becomes clear that the Court dealing with the case shall not grant bail to any person if, on a perusal of the case diary or the charge‑sheet, it is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This is an extraordinary phenomenon and a deviation from the ordinary criminal law. Naturally, therefore the approach to such a case is required to be cautious and careful. By its very nature, the exercise to be undertaken by a Court in relation to this provision is therefore somewhat typical and delicate., The expression of opinion in this behalf must be in such a way that it does not have any bearing upon the trial. The purpose for which Parliament employed the expression ‘reasonable grounds for believing’ and ‘prima facie true’ must be clearly borne in mind on the basis of the material placed before the Court. However, the formation of opinion must be for the limited purpose of considering the application for bail only., In this context, we may usefully refer to the guidelines laid down by the Division Bench of the Andhra Pradesh High Court in the decision of Devendra Gupta & Ors. which would provide adequate guidance for the Court to form an opinion in respect of accusation in such cases, as to whether the accusation is prima facie true. The Court has set down the following parameters: Whether the accused is associated with any organisation prohibited through an order passed under the provisions of the Act; Whether the accused was convicted of offences involving such crimes or terrorist activities, or though acquitted on technical grounds was held to be associated with terrorist activities; Whether any explosive material of the category used in the commission of the crime was recovered from, or at the instance of, the accused; Whether any eye witness or a mechanical device such as a CCTV camera indicated the involvement or presence of the accused at or around the scene of occurrence; and Whether the accused was arrested soon after the occurrence on the basis of information or clues available with the enforcement or investigating agencies., It is seen that if the material available with the prosecution, be it in the form of case diary or charge‑sheet, reveals existence of any of the factors referred to above, the Court can form an opinion that there exist reasonable grounds to show that the accusation is prima facie true. In the absence of such factors, formation of opinion may be to the detriment of the Appellant and would make a serious dent into the realm of his personal liberty. In a way, it can be said that the exercise akin to this one is provided for under preventive detention law. What becomes common to both situations is that the persons are deprived of liberty without trial. It is well known that when a preventive detention is ordered, the authority is placed under obligation to scrutinise the adequacy of the material apart from compliance with procedural requirements., In view of the above settled legal position, we will have to prima facie refer to the material placed before us with caution., Before we advert to the material, it will be apposite to refer to three Supreme Court of India decisions which are relied upon by both sides specifically in respect of the power of this Court to decide such an application., Both parties have referred to the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali in support of their respective submissions while considering the prayer for bail in relation to offences under the Unlawful Activities (Prevention) Act and special enactments. It is submitted that the Court is required to record its opinion that there are reasonable grounds for believing that the allegations and accusations against such person are prima facie true and such recording of satisfaction would mean that the material and evidence recovered, seized and collated by the investigating agency in reference to the accusation against the accused in the FIR must prevail until contradicted or disproved by other evidence and that such material on its face shows complicity of the accused in the commission of the stated offence. Our attention has been drawn to paragraphs 23 and 24 of the decision which is the settled law and it is urged to record a finding on the basis of broad probabilities regarding involvement of the Appellant in the crime which, according to the Appellant, is far from remote. Paragraph 24 reads thus: A priori, the exercise to be undertaken by the Court at this stage of giving reasons for grant or non‑grant of bail is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise., In the case of Dhan Singh decided by a coordinate bench of the Supreme Court of India, the interpretation of the words prima facie coupled with the word true and the exercise which the Court needs to undertake in this context on the basis of material on record, as also interpretation of the words reasonable ground as appearing in Section 43-D(5) of the Unlawful Activities (Prevention) Act is explained and highlighted. Paragraph 17 reads: When the word ‘prima facie’ is coupled with the word ‘true’, it implies that the Court has to undertake an exercise of cross‑checking the truthfulness of the allegations made in the complaint on the basis of the materials on record. If the Court finds, on such analysis, that the accusations are inherently improbable or wholly unbelievable, it may be difficult to say that a case which is ‘prima facie true’ has been made out. In doing this exercise, the Court has no liberty to come to a conclusion which may virtually amount to an acquittal of the accused. Mere formation of opinion by the Court on the basis of the material placed before it is sufficient., In the matter of Jayanta Kumar Ghosh the Hon’ble Division Bench of the Gauhati High Court interpreted provisions of Section 41D(5) of the National Investigation Agency Act and exhaustively dealt with the meaning of the words ‘prima facie’, ‘true’, and ‘reasonable ground’. Paragraph 69 states that prima facie is a Latin word meaning ‘at first sight or glance or on its face’ and in common law it is referred to as ‘the first piece of evidence of fact’, i.e., considered true unless revoked or contradicted. Paragraph 74 explains that ‘true’ would mean a proposition that the accusation brought against the accused person, on the face of the materials collected during investigation, is not false. Paragraph 78 states that the expression ‘reasonable ground’ means something more than prima facie ground, which contemplates a substantially probable case for believing that the accused is guilty of the offence(s) alleged. Under Section 437 of the Code of Criminal Procedure an accused is not to be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty., Paragraph 82 observes that while the Special Court constituted under the National Investigation Agency Act does not suffer from the limitations which the TADA courts had, the Special Court, not being a Court of Sessions or of the High Court, cannot exercise the powers of the Court of Sessions or High Court under Section 439 of the Code of Criminal Procedure. Hence, while dealing with the scheduled offences covered by the proviso to sub‑section (5) of Section 43‑D, the Special Court would suffer not only from the limitations imposed by clauses (i) and (ii) of sub‑section (1) of Section 437, but also by the proviso to sub‑section (5) of Section 43‑D of the Unlawful Activities (Prevention) Act, 1967, wherever the provisions contained in the proviso to Section 43‑D(5) would be applicable., In the matter of Bharat Mohan Rateshwar and Ashringdaw Warisa @ Partha Warisa, while reiterating the similar position of the law, it is reiterated that in a case investigated by the agency, if the Special Court forms an opinion that there are reasonable grounds for believing that the accused has committed an offence punishable with death or imprisonment for life, the Special Court would have no jurisdiction to grant bail., The next decision is of the Supreme Court of India in the case of Thwaha Fasal. Paragraph 23 reads: Therefore, while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused for commission of the offences alleged under Chapters IV and VI. The grounds for believing that the accusation is prima facie true must be reasonable grounds. However, the Court while examining the issue of prima facie case as required by sub‑section (5) of Section 43‑D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge‑sheet is already filed, the Court has to examine the material forming part of the charge‑sheet for deciding the issue whether there are reasonable grounds for believing that the accusation is prima facie true. While doing so, the Court has to take the material in the charge‑sheet as it is., As seen, the Supreme Court in the case of Watali has held that at this stage, as is the Appellant’s case, it is not the duty of the Court to weigh the evidence meticulously but to arrive at a finding based on broad probabilities. Therefore we have carefully perused the material available on record relied upon by the National Investigation Agency against the Appellant in the context of the provisions of Section 43‑D(5) of the Unlawful Activities (Prevention) Act., The material relied by the National Investigation Agency against the Appellant for his alleged role in the present crime is as follows: First document – a letter at page 1 of the NIA compilation addressed by one Prakash to Comrade Anand. The letter states that the Central Committee is pleased with the progress that Comrade Anand has made on the Dalit campaign and calls upon him to explore more opportunities to propagate the issue on the international front. It states that the Central Committee has agreed to allocate additional funds of ten lakh rupees yearly to organise international seminars and lectures on Dalit issues and that funds have been sent for the upcoming Human Rights convention in Paris. The letter is recovered by the NIA from the seized computer of Rona Wilson. According to the NIA, the contents of this letter prima facie prove that the Appellant, addressed as ‘dear Comrade Anand’, is an active member of the Communist Party of India (Marxist); the reference ‘CC’ is to the Central Committee of the Party and the Appellant has been congratulated and called upon to organise international seminars for which funds have been sanctioned by the Party., The NIA contends that the Director of Goa Institute of Management where the Appellant is employed issued a letter dated 10 August 2020 annexing details of all his travel itinerary and expenses reimbursed by the Institute. The NIA argues that the Appellant’s visit to Paris and Budapest on 9 April 2018 was on leave and expenses were not incurred by the Institute, hence the expenses were borne by the Party. The seized letter at page 1 of the compilation and the letter dated 10 August 2020 reveal that the Appellant travelled extensively from 11 July 2016 to 5 March 2020 while on leave and at his own expense on at least 64 occasions. Between 24 August 2016 and 31 March 2020 the Appellant travelled for official work of the Institute with all travel expenses paid by the Institute on at least 26 occasions. When travelling at his own expense outside Goa he delivered addresses, lectures and speeches as a resource person at institutions such as the London School of Economics, Harvard University, MIT, University of Michigan, Paris, Budapest and Indian institutes including IIT Madras, IIT Hyderabad and IIM Ahmedabad. The letter at page 1 is not recovered from the custody of the Appellant., The NIA submission that the contents of the first document prima facie invoke provisions of Section 15 of the Unlawful Activities (Prevention) Act is not acceptable. The Appellant is a man of intellectual prominence in the field of Dalit ideology and movement and merely being the elder brother of the wanted accused Milind Teltumbde who went underground thirty years ago to espouse the cause of the Party cannot be a sole ground to indict the Appellant and link him to the activities of the Party. On reading the letter as it is, we cannot presume that the Appellant is an active member of the Party without any other material to corroborate such a theory., Second document – a letter dated 8 June 2017 at page 2 of the NIA compilation addressed by Comrade M to Comrade Surendra. Paragraph 2 refers to ‘Comrade Anand’. The relevant portion reads: ‘Secondly, we want to put special focus on the upcoming AGM meet in October. This year being the 50th anniversary of the Naxalbari movement, at least a day‑long programme should be organised on this theme. Comrade Anand has made a few good suggestions for this programme. The party leadership concurs with it and believes that participation of students in the CPDR must be intensified.’ The NIA contends that the reference to ‘Comrade Anand’ is to the Appellant and that the letter, typed on the Party’s letterhead, indicates active involvement of the Appellant in Party work. The Appellant vehemently denies that the reference is to him and we cannot prima facie presume active involvement., Third document – a letter dated 23 December 2017 at page 4 of the NIA compilation addressed by one R to Comrade Prakash. The letter refers to ‘Anand’ and the NIA argues that ‘Anand’ is the Appellant. The relevant portion reads: ‘In the last few days disturbing reports of encounters have emerged from Gadchiroli. I spoke with Surendra and Arun to constitute a FF team to gauge the truth about this incident. If possible try to confirm to your side or send authorized reports/books about these issues. From our side, we are currently in planning stages to finalize the members from Mumbai/Delhi. Shoma will speak to our friend in Nagpur who may join the team. Anand has agreed to coordinate the whole thing. Another prominent issue that we have been trying to raise across the country is political murders of journalists.’ The Respondent submits that the contents are serious and that the Appellant has taken responsibility for the fact‑finding team in Gadchiroli. The Appellant has been in Goa since 2016 and previously employed with IIT Kharagpur and vehemently denies that the reference to ‘Anand’ is to him. The NIA argues that the sentence ‘Anand has agreed to coordinate the whole thing’ falls within Section 15 of the Unlawful Activities (Prevention) Act, but we find no other material to show a nexus., Fourth document – a letter dated 2 January 2018 at page 5 of the NIA compilation addressed by Comrade M to Comrade Rona. The letter, dated the day after the Bhima Koregaon incident, exhorts party cadres to organise protests across BJP‑ruled states and states that ‘Comrade Shoma and Comrade Surendra are authorized to provide funds for future programmes and the Bhima Koregaon event has been very effective and the unfortunate death of the youth must be exploited to prepare future agitations and propaganda material.’ It also calls upon to explore the possibility of a new fact‑finding team to further highlight the incident and notes that friends in the Congress have assured assistance for release of senior political prisoners including Comrade Kobad and Comrade Sai. The name ‘Anand’ appears in the letter: ‘please speak with brother Anand, inform him to send reports through Comrade Manoj.’ The NIA argues that this reference proves the Appellant’s involvement in Party activities. The Appellant’s brother Milind Teltumbde, the wanted accused, is the author of the letter. The letter also mentions seventeen persons, including brother Anand, with some phone numbers. Not all of these persons have been indicted in the present crime. Assuming that ‘brother Anand’ refers to the Appellant, the prosecution must show a nexus between the Appellant and the present crime, which is lacking., Fifth document – an account statement at page 7 of the compilation. The document reads: Accounts2k17 Surendra == R === 2.5 L from Milind Shoma & Sudhir = R and D == 1 L from Surendra Amit B == R == 1.5 for CPDR Canvasing Anand T. === R === 90 T from Surendra (Though Milind) Myself == R === 1.8 L From Com Manoj Arun == R ==== 2 L from Com. Darsu. The NIA alleges that ‘Anand T.’ is the Appellant and that he received Rs 90,000 from Surendra Gadling (Accused No.3) through Milind. The NIA refers to a sentence from the earlier letter dated 2 January 2018 stating that Comrade Shoma and Comrade Surendra are authorized to provide funds for future programmes to corroborate the alleged receipt. The Appellant argues that the account statement pertains to the year 2016‑2017, that the heading indicates ‘Party fund received in last year from C.C.’ and that the document is unsigned and recovered from the laptop of a co‑accused. Assuming ‘Anand T.’ is the Appellant, further corroboration is required and we cannot at this prima facie stage presume receipt of Rs 90,000., In regard to the documents in paragraphs 19.1 to 19.5, there is another reason why we cannot prima facie presume and accept the case of the National Investigation Agency. A seized document at page 149 of the Appellant’s compilation is the list of Central Committee members of the Communist Party of India (Marxist) group along with their details and photographs for the year 2017. The Appellant is not a member of this Central Committee. However, at serial number 4 a person named Katkam Sudarshan @ Anand @ Mahesh @ Bhaskar appears as a Central Committee and Polit Bureau member. Hence, reference to the name ‘Anand’ can also be to this member, and prima facie such a probability cannot be ruled out unless material shows otherwise., Paragraph 27 of the Watali judgment reads: For that, the totality of the material gathered by the investigating agency and presented along with the report and including the case diary is required to be reckoned and not by analysing individual pieces of evidence or circumstance. In any case, the question of discarding the document at this stage on the ground of being inadmissible in evidence is not permissible. The issue of admissibility of the document or evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is., Paragraph 24 of the judgment, reproduced earlier, states that at this stage the Court is merely expected to record a finding on the basis of broad probabilities regarding involvement of the accused in the commission of the stated offence or otherwise. Paragraph 27 states that no document can be discarded as being inadmissible and that it would be a matter for trial. Both sides have vehemently pressed their respective submissions on the aforesaid two paragraphs. The National Investigation Agency has submitted that the documents be seen as they stand, whereas the Appellant has submitted that the documents need to be seen qua their contents. As stated, the aforesaid documents are the fulcrum of the NIA’s case. The NIA has submitted that prima facie reading of these documents reveal that the Appellant is an active member of the Party and has been involved in activities to further its ideology to overthrow the state. However, looking at the contents of the documents the aforesaid submission of the NIA would fall in the realm of presumption which may need further corroboration.
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NIA has referred to three statements of witnesses recorded in support of its case. The statement dated 23 December 2018 is at page 56 of its compilation. This statement is given by Kumar Sai, Ashok, Ram Mohammed Singh Toppu, Pahadsingh, resident of District Raj Nandgaon, Chhattisgarh. He has worked in the Communist Party of India (Marxist) as Division Committee Secretary and has referred to the role of various co-accused including that of the Appellant. He has stated that the Appellant has been instrumental in aligning the Dalit movement with the Communist Party of India (Marxist). Apart from this statement there is no other reference to the Appellant. We have perused this statement carefully. Assuming for the sake of argument that the Appellant is associated with the Communist Party of India (Marxist), it would attract the provisions of Sections 38 and 39 and not Section 15 of the Unlawful Activities (Prevention) Act. This witness does not say that he has seen the Appellant at any point of time with any Communist Party of India (Marxist) member., The second statement is at page 140 of the compilation of the National Investigation Agency. It is by KW3 under Section 164 of the Code of Criminal Procedure on 17 August 2020. He has deposed that in 2018 he accompanied Milind Teltumbde to Bhopal and heard him say that he was supposed to meet his elder brother, i.e., the Appellant, and from his mannerisms he gathered that, in the first instance, he was unable to meet the Appellant but on the second instance he gathered that he had met the Appellant. He has deposed that on both occasions Milind Teltumbde left him alone at an acquaintance’s place and went alone with his sister Nandini Borkar to meet the Appellant. Prima facie, after a bare reading of this statement, it clearly reveals that this witness has not specifically seen the Appellant having a meeting with his brother Milind. Further, he states that he only gathered this information from Milind Teltumbde’s mannerisms and that he was not a witness to any meetings of the Appellant or had seen him. Hence, prima facie this statement of the witness regarding the Appellant falls within the realm of hearsay evidence., The next statement referred to and relied upon by the National Investigation Agency is at page 156 of the compilation of KW‑4 recorded on 25 August 2020 under Section 164 of the Code of Criminal Procedure. In this statement KW‑4 has stated that Anand Teltumbde has inspired Milind Teltumbde to join the Communist Party of India (Marxist). That Milind Teltumbde used to visit various cities from January to June every year—Nagpur, Pune, Chandrapur, Bhopal, Indore, Katni, Amarkantak, Mandala, Dindori, Shahdol etc.—to meet the Appellant for taking his guidance in advancing the Communist Party of India (Marxist)’s movement in jungle and urban areas. That the Appellant used to attend International Conferences and under the guise of academic visits he visited the Philippines, Peru, Turkey and other countries and brought Maoist literature and videos to be shown to Communist Party of India (Marxist) members during their training. This is the reference to the Appellant in the statement. The Appellant has vehemently denied having visited the Philippines, Peru and Turkey and has stated that his passport can be verified for that matter. The National Investigation Agency has not raised any grievance on this submission. In fact, during the course of submissions, we asked the National Investigation Agency to show us the material brought by the Appellant from abroad in the pen‑drive and memory card, i.e., the literature material and videos relating to Maoist ideology, tactics and weapons used by them, attacks and planning of sudden attacks made by them and expansion and recruitment of members. Mr. Patil, on taking instructions, submitted that such material is not part of the chargesheet against the Appellant nor do they have any such material with them. He submitted that according to the National Investigation Agency such material was given by the Appellant to his brother Milind Teltumbde for onward dissemination to Communist Party of India (Marxist) cadres and the National Investigation Agency has not laid its hand on the same until now., There is one more aspect which needs to be highlighted at this prima facie stage. Assuming at the highest that the National Investigation Agency’s case is accepted, then also prima facie analysis of the above material on record by the National Investigation Agency indicates that the Appellant is a member of the banned Communist Party of India (Marxist) and at most the provisions of Sections 13, 38 and 39 of the Unlawful Activities (Prevention) Act are therefore attracted. It is seen that the maximum punishment prescribed under the aforesaid provisions is imprisonment for a term which may extend to five years (Section 13) and for a term not extending ten years or with fine or both. However, in juxtaposition with the aforesaid provisions, punishment for conspiracy under Section 18 refers to a punishment which may extend to imprisonment for life and is also liable to fine. It is therefore important to refer to Section 18 to understand the nuance of conspiracy as contemplated by the Unlawful Activities (Prevention) Act. Section 18 of the Unlawful Activities (Prevention) Act reads thus: “Punishment for conspiracy, etc. Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.”, Section 15 defines ‘terrorist act’. Section 15 reads thus: “Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances of a hazardous nature or by any other means of whatever nature to cause or likely to cause (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or intergovernmental organisation or any other person to do or abstain from doing any act; or (d) commits a terrorist act.”, Section 20 of the Unlawful Activities (Prevention) Act pertains to punishment for being a member of a terrorist gang or organisation and is relevant: “Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in a terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.” Section 20 cannot be interpreted to mean that merely being a member of a terrorist gang would entail such punishment. What is important is the terrorist act, and the Court must see material before it to show that such a person has been involved in or has indulged in a terrorist act. Terrorist act is very widely defined under Section 15. In the present case, seizure of the incriminating material as alluded to hereinabove does not in any manner prima facie lead to an inference that the Appellant has committed or indulged in a terrorist act as contemplated under Section 15 of the Unlawful Activities (Prevention) Act., Punishment for committing a terrorist act is prescribed under Section 16, which is punishable with death or imprisonment for life in the event of death of any person due to such act or up to imprisonment for life in any other case. In the present case the offence and crime related to the Bhima Koregaon incident resulted in the death of one person. On reading the draft charges and the chargesheet regarding the Appellant, we prima facie find that the National Investigation Agency has not investigated or made any investigation in respect of this aspect. However, it is their case that the banned terrorist organisation Communist Party of India (Marxist) used the Elgar Parishad Programme as a platform to further its larger conspiracy and the Appellant, being an active member of the Communist Party of India (Marxist) and being associated with its activities, has participated in the larger conspiracy of the Communist Party of India (Marxist) and therefore does not deserve to be enlarged on bail. On prima facie reading of the above documents and statements referred to and relied upon by the National Investigation Agency regarding the Appellant, we are afraid to state that we do not agree with the contention of the National Investigation Agency. On prima facie appreciating the material on record as well as the statements of three key witnesses against the Appellant, we do not think that provisions of Sections 16 and 18 can be invoked at this stage against the Appellant for want of better proof and evidence. On reading the chargesheet and the material placed before us, prima facie it cannot be inferred that the Appellant has involved himself in a terrorist act., The National Investigation Agency submitted that the yardstick and parameters made applicable in the case of Hany Babu (second supra) and Jyoti Jagtap (third supra) while rejecting bail for these co‑accused be applied in the case of the Appellant. Mr. Patil has taken us through both aforesaid judgments at length. He emphasized paragraphs 49, 52, 53 and 54 of the judgment in the case of Hany Babu and contended that the role of the Appellant cannot be viewed differently than the role of Hany Babu. In fact he contended that since the Appellant is a person with intellectual ideology, his case stands on a much higher footing than Hany Babu’s case and therefore he cannot be enlarged on bail. We respectfully disagree with this proposition in view of the fact that what weighed with the Court in the indictment of Hany Babu and rejection of his bail application is the material produced in paragraphs 21 and 22 of the said judgment. On reading Hany Babu’s judgment, it is seen that sixty‑four documents were seized from the custody of Hany Babu which explained his links with the Communist Party of India (Marxist), his precise role and network. Further, fourteen documents were seized from other co‑accused which also referred to his role. Such is not the case herein. As alluded to above, there are five documents (letters) and three key witness statements which have been pressed against the Appellant by the National Investigation Agency. We have prima facie analysed the said material and recorded our prima facie findings on the basis of broad probabilities. Mr. Patil also submitted that in view of the findings returned by this Court, i.e., by this Bench, in the case of Jyoti Jagtap (third supra) it is imperative that the role of the Appellant be also viewed in the same manner as being an active member of the Communist Party of India (Marxist). We are once again afraid to state that the considerations which weighed with us while delivering the judgment in the case of Jyoti Jagtap (third supra) were entirely different. For the sake of brevity, we do not wish to repeat and reiterate those considerations. Our judgment speaks for itself. We do not agree with the submissions of the National Investigation Agency that the Appellant’s case is identical to the case of Jyoti Jagtap (third supra) and the present appeal deserves to be dismissed., This position of law is reiterated by the Supreme Court of India in the case of Arup Bhuyan (fifth supra) and in an unreported order of the learned Single Judge of this Court in Criminal Bail Application No. 488 of 2018 passed on 25 February 2019 (eighteenth supra) and another unreported order passed in Criminal Bail Application No. 3456 of 2019 passed on 5 May 2021 by another learned Single Judge of this Court (nineteenth supra)., In view of the above discussion and findings, we are of the prima facie opinion that on the basis of material placed before us by the National Investigation Agency which has been looked into by us, it cannot be concluded that the Appellant has indulged in a terrorist act. The material placed on record prima facie does not inspire confidence to bring the Appellant’s act as alleged for the punishment prescribed under Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act as they read., In view of the above discussion and findings and considering the fact that the Appellant has no criminal antecedents and having been behind bars for more than two and a half years, in our opinion, a case for grant of bail has been made out., Hence, the following order: (i) The impugned order dated 12 July 2021 passed by the Special Judge, Greater Bombay, below Exh. 377 in Special Case No. 414 of 2020 along with Special Case No. 871 of 2020 is quashed and set aside; (ii) The Appellant be released on bail in Special Case No. 414 along with Special Case No. 871 of 2020 arising out of RC‑01/2020/NIA/MUM under Sections 120B, 115, 121, 121A, 124A, 153, 201, 505(1)(B) read with 34 of the Indian Penal Code and Sections 13, 16, 17, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act on his executing personal bond of Rs 1,00,000 with one or more solvent local sureties in the like amount; (iii) The Appellant shall not tamper with the evidence of prosecution nor influence the prosecution witnesses; (iv) Before his actual release from jail the Appellant shall furnish his contact numbers, both mobile and landline, and permanent residential address to the Investigating Officer and the learned Special Court before which the case of the Appellant is pending; (v) The Appellant shall attend the concerned police station where he resides, initially for a period of one year, once in a fortnight i.e., on every 1st and 16th of each calendar month and thereafter on every first Monday of the month between 10:00 a.m. to 12:00 noon till conclusion of trial; (vi) The Appellant shall not leave the jurisdiction of the State of Goa and if he desires to travel within India he shall seek prior leave and permission of the Trial Court; (vii) The Appellant shall deposit his passport held by him before his actual release from jail, with the designated Special Court., Criminal Appeal is accordingly allowed in the aforesaid terms., At this stage, Mr. Desai, learned senior advocate appearing for the Appellant submitted that, though in the cause title of the present petition, the address of the Appellant has been mentioned as residing at Goa Institute of Management, Sanquelim, Goa 403 505, due to the elapse of time, the contract of the Appellant with the said institute has come to an end and as of today, the residential address of the Appellant is at 129, Rajgruha, Hindu Colony, Khareghat Road, Dadar, Mumbai‑400 014., In view thereof, the condition stipulated in paragraph 27(vi) above is modified and the Appellant is directed not to leave the jurisdiction of this Court without prior permission from the Special Designated Court/Trial Court, if he desires to travel within India., The Appellant is permitted to furnish cash bail for a period of eight weeks from today and during the said period, the Appellant shall comply with the condition of furnishing solvent local sureties as stipulated in paragraph 27(ii)., After pronouncement of the present judgment, Mr. Patil, learned Special Public Prosecutor appearing for the National Investigation Agency requested this Court for a stay of its operation and implementation to enable the National Investigation Agency to challenge it before the Honorable Supreme Court of India. Though opposed by the learned senior advocate for the Appellant, considering the fact that the Appellant is in jail for more than two and a half years, the effect of the present judgment and order granting bail to the Appellant will remain stayed for a period of one week from today.
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CBI Case No. 251/2019 (Old CC Nos. 15/17). RC No. 219-2015-(E)-0008. Branch: Central Bureau of Investigation, Enforcement Officer I Branch, New Delhi. In the matter of: Through: Shri R.S. Cheema, Senior Advocate/Special Public Prosecutor (through Vice‑Chairman) with Shri A.P. Singh, Shri Sanjay Kumar, Deputy Legal Advisors, Shri N.P. Srivastava, Shri V.K. Pathak, Senior Public Prosecutors with Ms. Tarannum Cheema and Shri Akshay Nagrajan, Advocates for Central Bureau of Investigation along with Head Investigating Officer M.R. Atrey. Versus AES Chhattisgarh Energy Private Limited (A‑1) through its Director, at Unit No. 1117, 11th Floor, Tower‑B, Vatika Towers, Sector‑54, Gurgaon. Sanjeev Kumar Aggarwal (A‑2) through Shri Vikas Pahwa, Senior Advocate with Shri Tanvir Ahmed Mir, Shri Rajeev Goyal, Shri Bishwajit Dubey, Shri Gaurav Gupta, Ms. Surabhi Khattar, Shri Ashutosh Singh, Ms. Dakshita Chopra, Mr. Prabhav Ralli, Ms. Nancy Shamim, Mr. Saud Khan and Mr. Shaurea Tyagi, Advocates., The only bone of contention in this case is whether AES Chhattisgarh Energy Private Ltd through its Director Sanjeev Kumar Aggarwal had procured allocation of Sayang coal block in the State of Chhattisgarh from the Screening Committee, Ministry of Coal by misrepresenting in its application dated 10 January 2007 that it is a 100 % subsidiary of AES Corporation, USA., The accused persons have taken the defence that AES Corporation, USA was controlling the composition of the Board of Directors of AES Chhattisgarh Energy Private Ltd as on 10 January 2007, which makes AES Chhattisgarh Energy Private Ltd a subsidiary of AES Corporation, USA under Section 4(1)(a) of the Companies Act, 1956. The other defence is that, according to Section 4(6) of the Companies Act, 1956, since under the laws of the United States AES Chhattisgarh Energy Private Ltd is a subsidiary of AES Corporation, USA, it will be treated as a subsidiary of AES Corporation, USA for the purposes of the Companies Act, irrespective of whether the requirements of Section 4 are fulfilled., Section 4 of the Indian Companies Act, 1956 defines the meaning of \holding company\ and \subsidiary\. (1) For the purposes of this Act, a company shall, subject to the provisions of sub‑section (3), be deemed to be a subsidiary of another if, but only if, (a) that other controls the composition of its Board of Directors; or (b) that other (i) where the first‑mentioned company is an existing company in respect of which the holders of preference shares issued before the commencement of this Act have the same voting rights in all respects as the holders of equity shares, exercises or controls more than half of the total voting power of such company; (ii) where the first‑mentioned company is any other company, holds more than half in nominal value of its equity share capital; or (c) the first‑mentioned company is a subsidiary of any company which is that other’s subsidiary. Illustration: Company B is a subsidiary of Company A, and Company C is a subsidiary of Company B. Company C is a subsidiary of Company A by virtue of clause (c) above. (2) For the purposes of sub‑section (1), the composition of a company’s Board of Directors shall be deemed to be controlled by another company if, but only if, that other company by the exercise of some power exercisable by it at its discretion without the consent or concurrence of any other person, can appoint or remove the holders of all or a majority of the directorships; ... (3) In determining whether one company is a subsidiary of another, (a) any shares held or power exercisable by that other company in a fiduciary capacity shall be treated as not held or exercisable by it; (b) subject to the provisions of clauses (c) and (d), any shares held or power exercisable by any person as a nominee for that other company ... shall be treated as held or exercisable by that other company; (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first‑mentioned company ... shall be disregarded; (d) any shares held or power exercisable by, or by a nominee for, that other or its subsidiary ... shall be treated as not held, or exercisable by that other, if the ordinary business of that other or its subsidiary includes the lending of money and the shares are held or the power is exercisable as security only for a transaction entered into in the ordinary course of that business. (4) For the purposes of this Act, a company shall be deemed to be the holding company of another if, but only if, that other is its subsidiary. (5) In this section, the expression \company\ includes any body corporate, and the expression \equity share capital\ has the same meaning as in sub‑section (2) of Section 85. (6) In the case of a body corporate incorporated outside India, a subsidiary or holding company of the body corporate under the law of such country shall be deemed to be a subsidiary or holding company of the body corporate within the meaning and for the purposes of this Act, whether the requirements of this section are fulfilled or not. (7) A private company, being a subsidiary of a body corporate incorporated outside India, which, if incorporated in India, would be a public company within the meaning of this Act, shall be deemed for the purposes of this Act to be a subsidiary of a public company if the entire share capital in that private company is not held by that body corporate alone or together with one or more other bodies corporate incorporated outside India., Therefore, two points for determination arise: (a) Whether as on 10 January 2007 the composition of the Board of Directors of AES Chhattisgarh Energy Private Ltd was under the control of AES Corporation, USA; (b) Whether as on 10 January 2007 AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation, USA according to the laws of the United States., Brief facts: On 06 November 2006, the Ministry of Coal invited applications from companies registered under the Indian Companies Act, 1956 for allocation of 38 coal blocks for captive mining. Applicants were required to submit (i) a certified copy of their Memorandum and Articles of Association and (ii) audited annual accounts/reports of the last three years. According to the Ministry’s guidelines, inter‑se‑priority for allocation among competing applicants was to be decided, among other things, on the basis of (i) net worth of the applicant company (or, in the case of a new special purpose vehicle/joint venture, the net worth of the principals) and (ii) track record and financial strength of the company., AES Chhattisgarh Energy Private Ltd, by a letter dated 10 January 2007, submitted its application for allocation of Sayang coal block in Chhattisgarh along with other coal blocks for a proposed 1000 MW power project at Raigarh District. The covering letter stated that AES Chhattisgarh Energy Private Ltd was a 100 % subsidiary of AES Corporation, USA. An additional note in the application described AES Chhattisgarh Energy and Power Limited as a subsidiary of AES Corporation and a special‑purpose vehicle constituted to implement the project, drawing its financial and technical strength from AES Corporation., The meetings of the 35th Screening Committee were held during June‑September 2007. Presentations by applicant companies were scheduled from 20‑23 June 2007. During presentations, companies were required to submit feedback forms reflecting any progress towards establishment of the end‑use project. Sanjeev Kumar Aggarwal, director of AES Chhattisgarh Energy Private Ltd, made a presentation on 21 June 2007 before the 35th Screening Committee and submitted a feedback form signed by him as authorised signatory., In the feedback form, Mr. Aggarwal reiterated that AES Chhattisgarh Energy Private Ltd was a 100 % subsidiary of AES Corporation, USA and stated that the net worth of the company as on 31 December 2006 was Rs 12,448 crores. He also noted that AES Corporation, USA follows the calendar year for accounting, hence the net worth was presented as of 31 December 2006., The applications of the applicant companies were assessed by the Central Electricity Authority (CEA) on the basis of pre‑qualification criteria that required a net worth of Rs 0.50 crore per megawatt of maximum capacity, with project capacity between 500 MW and 1000 MW. For further shortlisting, CEA adopted criteria of (a) identification of site and status of land acquisition and (b) allocation of water., The Ministry of Power, by its letter dated 30 July 2007, recommended to the Ministry of Coal the allocation of Sayang coal block in favour of AES Chhattisgarh Energy Private Ltd. The 35th Screening Committee meeting held on 13 September 2007 recommended allocation of the Sayang coal block to AES Chhattisgarh Energy Private Ltd. Subsequently, approval of the Prime Minister, who was then Minister for Coal, was obtained and on 06 November 2007 the Ministry of Coal issued an allocation letter along with a milestones chart regarding the allocation of Sayang coal block to AES Chhattisgarh Energy Private Ltd., The chargesheet alleges that AES Chhattisgarh Energy Private Ltd was not a subsidiary of AES Corporation, USA on the date of the application, on the date of the presentations before the 35th Screening Committee, nor on the date of allocation of Sayang coal block (06 November 2007). Consequently, the company was not legally entitled to claim subsidiary status under the Indian Companies Act, 1956 and could not have used the financial figures of AES Corporation, USA in its application or presentations. The claim of Sanjeev Kumar Aggarwal in this regard is alleged to be wrong and misleading., Charges framed against the accused: That AES Chhattisgarh Energy Private Ltd and Sanjeev Kumar Aggarwal, during the years 2006‑2008, entered into a criminal conspiracy to procure allocation of Sayang coal block by making false claims that the company was a subsidiary of AES Corporation, USA and by using the financial figures of AES Corporation, USA with respect to net worth, track record and financial strength. Knowing these claims to be false, they obtained a recommendation from the 35th Screening Committee and subsequently an allocation from the Ministry of Coal, thereby committing the offence of criminal conspiracy punishable under Section 120B read with Section 420 of the Indian Penal Code. The same acts constitute cheating under Section 420 of the Indian Penal Code., Prosecution evidence: The prosecution examined eighteen witnesses. Deputy Superintendent of Police Kumar, Central Bureau of Investigation, deposed about enquiry proceedings conducted in PE 219‑2012‑E‑0002‑EO‑I. Witnesses included Shri Sampath Narayanan, Under Secretary, Ministry of Power; Shri Ved Prakash Sharma, Section Officer, CA‑I Section, Ministry of Coal; Shri Ram Avtar Asiwal, Senior Manager, Bank of Baroda, Delhi, who proved specimen signatures of Sanjeev Aggarwal; Shri V.S. Rana, Under Secretary, Ministry of Coal (August 2005‑December 2013), who explained the allocation procedure; Mr. Deepak Roy, Chartered Accountant and former partner in Deloitte Haskins & Sells, who produced audit reports and balance sheets of AES India Pvt. Ltd. and AES Chhattisgarh Energy Pvt. Ltd.; Dr. Raj Singh, Regional Director, Northern Region, Ministry of Corporate Affairs (2014‑2016), who testified that under the Indian Companies Act, 1956 AES Chhattisgarh Energy Pvt. Ltd. was not a subsidiary of AES Corporation, USA; Shri Rajneesh Kumar Singh, Assistant Registrar of Companies, NCT of Delhi and Haryana (2014‑2015), who provided documents relating to the companies; Shri Manjit Singh Puri and Shri Rohtash Dahiya, who testified about Central Electricity Authority proceedings; Shri Nesar Ahmad, Company Secretary, who described professional services rendered to AES Chhattisgarh Energy Pvt. Ltd.; Shri Aditya Jain, Director (Engineering and Construction), AES India Private Ltd (May 2007‑30 November 2008), who attended the Screening Committee meeting; Shri Debasish Das, Special Secretary, Government of Chhattisgarh, Department of Energy (2006‑2008), who produced letters recommending allocation of the coal block; Shri Sanjay Chadha, Director, Investment Promotion Cell, Ministry of Power, who described Ministry of Power decisions; Shri Bhola Nath Shukla, Director (Technical), CMPDIL, who discussed correspondence with the Central Bureau of Investigation; Shri Manoj Kumar, Deputy Superintendent of Police, Central Bureau of Investigation; and Shri Vidhi Kumar Birdi, Superintendent of Police, EO‑I Branch, who supervised the investigation., Statement of the accused under Section 313 of the Criminal Procedure Code and written statements under Section 315(5) of the Criminal Procedure Code were recorded. The accused examined five defence witnesses: (DW‑1) Shri Allena Srinivasa Rao, who worked in various capacities in AES Corporation from 1999 to 2016; (DW‑2) Shri Sharad Pungalia, who served as Assistant General Manager (Business Development) at AES India until October 2010; (DW‑3) Mr. Robert David Mill, who was part of the Independent Review Team of AES Corporation, USA, providing independent review of new investment opportunities and tracking projects; (DW‑4) Shri S. Balasubramanian, former Chairman of the Company Law Board, who acted as an expert on corporate law; (DW‑5) Professor Jonathan Macey, Sam Harris Professor of Corporate Law, Corporate Finance and Securities Law at Yale Law School and Professor at the Yale School of Management, who testified on the applicability of United States corporate law under Section 4(6) of the Indian Companies Act, 1956., Arguments were addressed by Shri A.P. Singh, Learned Deputy Legal Advisor for the Central Bureau of Investigation, and Shri Vikas Pahwa, Learned Senior Advocate, together with Shri Tanvir Ahmad Mir, Learned Counsel for the accused. The Central Bureau of Investigation submitted that the FIR was recorded on 06 May 2015, the chargesheet filed on 09 January 2017, cognizance taken on 31 May 2017 and charges framed on 06 January 2020 under Section 420 read with Section 120B of the Indian Penal Code., The learned Deputy Legal Advisor of the Central Bureau of Investigation read from paragraphs 16.35 and 16.36 of the chargesheet to argue that Sanjeev Kumar Aggarwal intentionally and deceitfully concealed material facts and misrepresented to the Ministry of Coal and the 35th Screening Committee by using the financial figures of AES Corporation, USA, thereby obtaining allocation of the Sayang coal block without any legal support for the claim of subsidiary status. The order on charge dated 06 January 2020 was challenged by the accused before the Hon'ble Supreme Court by filing Special Leave Petition Criminal No. 1919‑1920/2020, but the petition was dismissed as withdrawn on 06 March 2020, with the Supreme Court recording that all differences remain open., It was further submitted that during admission/denial of documents under Section 294 of the Criminal Procedure Code, the accused admitted most documents but did not admit Document D‑56, the record of the Registrar of Companies submitted by AES Chhattisgarh Energy Private Ltd, which unequivocally indicated that the company is not a subsidiary of any other company. In their statement under Section 313 of the Criminal Procedure Code, particularly in response to question No. 383, the accused described the prosecution witnesses as interested witnesses, an assertion the prosecution rejected as evasive., The prosecution also submitted that, pursuant to the advertisement issued by the Ministry of Coal inviting applications for allocation of coal blocks, the accused persons submitted an application for allocation of a coal block. It was noted that AES Chhattisgarh Energy Private Ltd was not engaged in power production at the time of filing the application, having been incorporated on 16 November 2006, and therefore was not eligible to apply for allocation of a coal block., In the covering letter dated 10 January 2007, the accused company claimed to be a 100 % subsidiary of AES Corporation, USA. However, the minutes of the Board of Directors of AES Chhattisgarh Energy Private Ltd dated 10 January 2007, which authorised Sanjeev Aggarwal to submit the application for allocation of the coal block, were silent about any association of the company with AES Corporation, USA or AES India Private Limited., The second reason for alleging that AES Chhattisgarh Energy Private Ltd was not a subsidiary of AES Corporation, USA is that, as on 31 December 2006, the company did not appear in the list of subsidiary companies of AES Corporation, USA. The name of AES Chhattisgarh Energy Private Ltd appeared in the list only on 31 December 2007, subsequent to the transfer of shares by Sanjeev Kumar Aggarwal and Soumendra Chandra Rout to AES OPGC Holding and AES India Holding (Mauritius), which were already subsidiaries of AES Corporation, USA.
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The documents Ex. P‑1 (Colly)/P‑25/PW‑1 (Colly), D‑5, Page 110 @ 116, PDF 446 show that there is no mention of AES Corporation, USA or AES OPGC Holdings or AES India Holdings (Mauritius) or AES India Pvt. Limited as the holding company of AES Chhattisgarh Energy Pvt. Ltd. The Articles of Association of AES Chhattisgarh Energy Private Ltd, exhibited as Ex. P‑1 (Colly)/P‑25/PW‑1 (Colly), D‑5, Page 117 @ 120, PDF 454, list only two directors, namely Sanjeev Aggarwal and Soumendra Chandra Rout. The description of subscribers in Ex. P‑1 (Colly)/Ex. P‑25/PW‑1, D‑5, Page 124, PDF 461 also records only these two persons. From the Memorandum of Association and Articles of Association it is not evident that the control of the company was with any other company, and nothing shows that AES Corporation, USA is the holding company and AES Chhattisgarh Energy Private Ltd is its subsidiary., It was submitted that, as per Annexure II Project Status Note, PDF 335, which was enclosed by Accused No. 1 with its application for allocation of a coal block, AES India had signed a Memorandum of Understanding with the Government of Chhattisgarh and the Chhattisgarh State Electricity Board dated 03 March 2006 for setting up an integrated coal mine and a 1000 to 1200 MW thermal power project in the State of Chhattisgarh., Annexure III – Details of permits and clearances applied, PDF 337, states that the Cabinet Committee on Economic Affairs on 02 November 2006 accorded approval to AES for bringing in foreign investment for setting up a 1000‑1200 MW Greenfield Power Project with an integrated captive coal mine in Chhattisgarh, and that the special purpose vehicle named AES Chhattisgarh Energy Private Ltd was incorporated on 16 November 2006., Annexure IV – Other relevant information, PDF 338, mentions that AES is one of the world’s largest global power companies with 2005 revenues of more than US $11 billion., Annexure V – Experience with reference to end‑use project, PDF 339, states that AES Chhattisgarh Energy Private Ltd is a special purpose vehicle incorporated under the Companies Act 1956 and is a subsidiary of AES Corporation, USA for carrying out the proposed end‑use project in Chhattisgarh., Annexure VI – Experience with reference to mining, PDF 349, provides details of AES’s experience in coal mining at Maikuben Coal Mine in Chhattisgarh. The Annual Report of AES Corporation for the year 2003 is reproduced at Page 125‑382, PDF 462., At Page 387, PDF 981, the accused company enclosed a letter dated 03 July 2006 written by the Special Secretary (Energy), Government of Chhattisgarh to the Director, Business Development, AES India Pvt. Ltd., conveying that the Government of Chhattisgarh raised no objection to the feasibility report for the 1200 MW coal‑based thermal power project. The letter advised the company to submit applications to the State Investment Promotion Board for land, water, coal linkage, captive coal blocks and to obtain clearances from the Chhattisgarh Environmental Conservation Board and other authorities., At Page 388, PDF 982, the accused company enclosed a letter dated 03 January 2007 from the Water Resource Department addressed to AES India Pvt. Ltd. The company also enclosed a letter dated 10 January 2007, PDF 984, from Infrastructure Development Finance Company Limited addressed to AES India Pvt. Ltd., conveying its in‑principle confirmation to consider providing debt for the proposed power project subject to allocation of captive coal mines., The learned Deputy Legal Advisor referred to Ex. P‑84/PW‑8, D‑56, Page 120, PDF 7563, which is Form 23AC pursuant to Section 220 of the Companies Act 1956 filed with the Registrar of Companies for AES Chhattisgarh Energy Pvt. Ltd. for the year ending 31 March 2007. Paragraph 3(a) of the form states that the company is not a subsidiary company under Section 4 of the Companies Act. This information was provided by Soumendra Chandra Rout on 22 September 2007 under his digital signature., During cross‑examination of witness Sharad Pungalia on 19 August 2023, he denied that Form 23AC was ever shared by M/s Nesar and Associates either prior to or after filing with Accused No. 1., Exhibit P‑35 (Colly), D‑67, Page 43, PDF 9316 contains the minutes of the meeting of AES Chhattisgarh Energy Pvt. Ltd. held on 21 September 2007, recording that the Balance Sheet as at 31 March 2007 was approved by directors Sanjeev Aggarwal and Soumendra Chandra Rout. The minutes dated 22 September 2007, Ex. P‑35 (Colly), D‑67, Page 47, PDF 9320, resolve that Shri Sanjeev Kumar Aggarwal and Shri Soumendra Chandra Rout were authorised to digitally sign Forms 23 AC and any other relevant forms for the financial year 2007 to be filed with the Registrar of Companies, NCT of Delhi and Haryana, New Delhi., The background section of the Balance Sheet (Page 134, PDF 7577) states: “AES Chhattisgarh Energy Private Limited (the Company) was incorporated in India on 16 November 2006 to carry on, promote, collaborate in and assist in India and elsewhere the business of development of power projects. The company is a closely held company with 5,000 shares each being held by Mr Sanjeev Aggarwal and Mr Soumendra Chandra Rout.” The background makes no reference to any relationship between AES Chhattisgarh Energy Private Limited and AES India or AES Corporation, USA., The Balance Sheet of AES India for the year ending 31 March 2007 (Ex. P‑85/PW‑9, D‑55, Page 264, PDF 7380) clearly mentions that AES (India) Private Limited is a closely held company with 1,122,440 shares held by AES Corporation, USA and 100 shares held by AES India LLC, USA., The Balance Sheet of AES Chhattisgarh Energy Private Ltd for the year ending 31 March 2007 (Ex. P‑80/PW‑7, D‑56, Page 130, PDF 7573) shows secured loans and unsecured loans as Nil, indicating that no funds of Rs 1,00,000 were provided by AES India for share subscription., Additional attachments to Form 23AC for the year ending 31 March 2008 (Ex. P‑81/PW‑7, D‑56, Page 141, PDF 7584) describe a change in ownership: shares were transferred to a Mauritius shareholder holding 99.99 % of the equity, and an allotment of 59,04,890 equity shares of Rs 10 each was made during the financial year 2008., Form 23AC submitted by AES Chhattisgarh Energy Private Ltd for the year ending 31 March 2008 (Ex. P‑81/PW‑7, D‑56, Page 145, PDF 7588) answers the question “Whether the Company is a subsidiary company as defined under Section 4?” in the affirmative, indicating that the company became a subsidiary on 15 November 2007 when its shares were transferred to AES India Holdings (Mauritius) (99.99 %) and AES OPGC Holdings (0.01 %)., Form 23AC of AES India Private Ltd for the year ending 31 March 2007 (Ex. P‑81/PW‑9, D‑55, Page 240, PDF 7355) answers the same question in the negative, confirming that AES India Private Ltd was not a subsidiary of any other company, including AES Corporation, USA., Share certificates (Ex. P‑13, D‑43, Page 2‑3, PDF 6746) show the transfer of shares from Soumendra Chandra Rout and Sanjeev Kumar Aggarwal in favour of AES OPGC Holding and AES India Holdings (Mauritius) respectively on 15 November 2007. The transaction involved a consideration of Rs 50,000 each, indicating that the directors received payment for the transfer., The minutes of the Board meeting of AES Chhattisgarh Energy Private Ltd held on 15 November 2007 (Ex. P‑35, colly, D‑67, Page 48, PDF 9321) record the approval of the transfer of 10,000 equity shares at a par value of Rs 10 each to AES OPGC Holdings, Mauritius (5,000 shares) and AES India Holdings (Mauritius) (5,000 shares) for cash at par., Section 187C of the Companies Act 1956 requires a person who holds shares on behalf of another to make a declaration of the beneficial interest within thirty days of the change. In this case, no such declaration was made by Sanjeev Kumar Aggarwal, Soumendra Chandra Rout, or AES Corporation, USA, nor was any declaration filed by AES Chhattisgarh Energy Private Ltd with the Registrar of Companies., Form 10‑K (Annual Report) of AES Corporation filed on 23 May 2007 for the period ending 31 December 2006 (Exhibit P‑27, D‑59, PDF 7844) does not list AES Chhattisgarh Energy Private Ltd among its subsidiaries. However, the Form 10‑K filed on 17 March 2008 for the period ending 31 December 2007 (Exhibit P‑28, D‑60, Page 450, PDF 8643) includes AES Chhattisgarh Energy Private Ltd as a subsidiary of AES Corporation, USA., The prosecution submits that AES Chhattisgarh Energy Private Ltd became a subsidiary of AES Corporation only after the share transfer on 15 November 2007, whereas the coal block allocation was issued on 06 November 2007, i.e., before the subsidiary relationship was established., The Feedback Form submitted by AES Chhattisgarh Energy Private Ltd to the Screening Committee on 21 June 2007 stated that the company was a wholly‑owned subsidiary of AES Corporation, USA. This contradicts the fact that the subsidiary status arose only on 15 November 2007, three weeks after the allocation letter dated 06 November 2007 was issued., The attendance sheet of the representatives who appeared before the Screening Committee on 21 June 2007 (Exhibit P‑3/PW‑1, D‑11, Page 67, PDF 1396) lists six persons – Sh. Venu Nambiar, VP; Sanjeev Aggarwal, Director (BD); Sharad; and R.B. Mathur – all of whom identified their office/organisation as AES Chhattisgarh and none as AES Corporation, USA., The final Screening Committee meeting on 13 September 2007 resulted in the decision to allocate the Sayang coal block to AES Chhattisgarh Energy Private Ltd. The allocation letter dated 06 November 2007 (Exhibit P‑5, colly, D‑14, Page 85‑89, PDF 2240) was issued accordingly., If AES India Limited had provided the initial corpus of Rs 1 lakh for subscribing to the shares of AES Chhattisgarh Energy Private Ltd, this would have been reflected in the balance sheets of both companies. However, the Form 23AC of AES India Private Ltd shows secured loans of 0.00 and unsecured loans of 456.69 thousand rupees, and the balance sheet of AES Chhattisgarh Energy Private Ltd shows secured and unsecured loans as Nil, indicating no such funding., The minutes of the first Board meeting of AES Chhattisgarh Energy Private Ltd held on 21 November 2006 (Ex. P‑20, D‑50, PDF 7000) record that preliminary expenses of Rs 41,877 incurred for incorporation were borne by M/s AES India Private Ltd and were to be credited to that company. No mention is made of an additional Rs 1 lakh being provided by AES India Private Ltd., The Hon'ble Supreme Court of India, in Iridium India Telecom Ltd. v. Motorola Incorporated (2011) 1 SCC 74, held that deception must be fraudulent or dishonest and must induce the victim to deliver property or consent to its retention. The Court emphasized that non‑disclosure of material facts constitutes mis‑representation leading to deception and, consequently, cheating under Section 415 of the Indian Penal Code., Reliance is placed on the judgment in Rajesh Yadav v. State of U.P. (2022) Criminal Law Journal 2986, which states that the non‑examination of the investigating officer does not result in acquittal when other incriminating evidence is available on record., Testimony of PW‑7 Deepak Roy, Chartered Accountant, Deloitte Haskins & Sells; PW‑8 Shri Raj Singh, Regional Director, Ministry of Corporate Affairs; and PW‑12 Shri Nesar Ahmad, Company Secretary, confirms that before 15 November 2007 AES Chhattisgarh Energy Private Ltd was not a subsidiary of AES Corporation, USA., The CBI arguments can be summarised as follows: (i) AES Chhattisgarh Energy Private Ltd was incorporated on 16 November 2006 with only two subscribers, Sanjeev Aggarwal and Soumendra Chandra Rout, each holding 5,000 shares; the Board comprised only these two directors, indicating no control by any other holding company. (ii) The minutes of the first Board meeting on 21 November 2006 do not show that the company was incorporated as a special purpose vehicle by AES India Private Ltd or AES Corporation, USA; they only record preliminary expenses of Rs 41,877 incurred by AES India Private Ltd. (iii) The balance sheet as at 31 March 2007 shows secured and unsecured loans as Nil, ruling out any Rs 1 lakh loan from AES India Private Ltd. Similarly, the balance sheet of AES India Private Ltd for the same period shows no loans granted to any party under Section 301 of the Companies Act 1956. Consequently, the balance sheets of both companies do not reflect any Rs 1 lakh funding from AES India Pvt. Ltd. to the directors for share subscription.
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In the Minutes of Meeting of AES Chhattisgarh Energy Private Ltd held on 22.09.2007, it was resolved that Sanjeev Aggarwal and Soumendra Chandra Rout were authorised to digitally sign the Form 23 AC or any other relevant form for the financial year 2007 to be filed with the Registrar of Companies, National Capital Territory of Delhi and Haryana, New Delhi, PDF 9320. Pursuant to such authorisation, Form 23 AC was filed with the Registrar of Companies on 22.09.2007 under digital signatures of Soumendra Chandra Rout and the company had provided the information in paragraph 3 (a) that it is not a subsidiary company under Section 4 of the Companies Act. Had AES Chhattisgarh Energy Private Ltd been a subsidiary of AES India Private Ltd or AES Corporation, United States of America, the response would have been Yes and not No., AES Chhattisgarh Energy Private Ltd cannot claim itself to be the subsidiary of AES Corporation, United States of America being the subsidiary of AES India Private Ltd because AES India Private Ltd itself mentioned in its Form 23 AC that it is not a subsidiary company under Section 4 of the Companies Act, PDF 7355., Whereas AES India Private Ltd in its balance sheet for the year ending on 31.03.2007 mentioned under the heading BACKGROUND that it is a closely held company with 1,122,440 shares held by AES Corporation, United States of America and 100 shares held by AES LLC United States of America, PDF 7380, the balance sheet of AES Chhattisgarh Energy Private Ltd, while dealing with the BACKGROUND of the company did not mention its relationship with either AES India Private Ltd or AES Corporation, United States of America, PDF 7573. It also rules out any subsidiary holding company relationship between AES Chhattisgarh Energy Private Ltd and AES India Private Ltd or AES Corporation, United States of America., When presentations were made before the screening committee meeting on 21.06.2007, the representatives did not mention the name of AES India Private Ltd or AES Corporation, United States of America as their Office/Organisation, PDF 1396., During the Minutes of Meeting of Board of Directors of AES Chhattisgarh Energy Private Ltd held on 15.11.2007, it is duly recorded that the resident shareholders of AES Chhattisgarh Energy Private Ltd i.e., Soumendra Chandra Rout and Sanjeev Aggarwal, the subscribers to the Memorandum of Association are transferring their shares by way of sale in favour of AES OPGC Holdings, Mauritius and AES India Holdings (Mauritius) for cash at par value of Rs. 10 each share, PDF 9321. In case AES Chhattisgarh Energy Private Ltd was a subsidiary of AES India Private Ltd or AES Corporation, United States of America, it would not have transferred its shares by way of a sale., Pursuant to the resolution noted above, the shares of Soumendra Chandra Rout and Sanjeev Aggarwal were transferred in favour of AES OPGC Holding and AES India Holdings (Mauritius) on 15.11.2007, PDF 6746., After the shares of Soumendra Chandra Rout and Sanjeev Aggarwal were transferred in favour of AES OPGC Holdings and AES India Holdings (Mauritius) on 15.11.2007, in the balance sheet of AES Chhattisgarh Energy Private Ltd for the period ending on 31.03.2008, the company mentioned for the first time in its Form 23 AC that it is a subsidiary company, PDF 7588. It shows that neither on the date of application for allocation of a coal block i.e., 10.01.2007 nor on the date of presentations made before the screening committee meeting i.e., 21.06.2007 nor on the date of allocation of Sayang coal block i.e., 06.11.2007, AES Chhattisgarh Energy Private Ltd was a subsidiary of AES India Private Ltd or AES Corporation, United States of America., In the Form 10-K (Annual Report) of AES Corporation, United States of America filed on 23.05.2007 for the period ending 31.12.2006, AES Chhattisgarh Energy Private Ltd was not mentioned as one of the subsidiary companies of AES Corporation, United States of America, PDF 8149. However, in Form 10-K (Annual Report) of AES Corporation, United States of America filed on 17.03.2008 for the period ending 31.12.2007, AES Chhattisgarh Energy Private Ltd was shown as one of the subsidiary companies of AES Corporation, United States of America, because on 15.11.2007 all the shares of Soumendra Chandra Rout and Sanjeev Aggarwal were transferred in favour of AES OPGC (Mauritius) and AES OPGC Holdings (Mauritius), PDF 8643. It shows that AES Chhattisgarh Energy Private Ltd had become a subsidiary of AES Corporation, United States of America only after 15.11.2007 and not before that., Lastly, since neither Soumendra Chandra Rout nor Sanjeev Aggarwal, nor AES Corporation, United States of America, nor AES Chhattisgarh Energy Private Ltd complied with provisions of Section 187 C of the Companies Act, 1956, the same is indicative of the fact that AES Chhattisgarh Energy Private Ltd was not a subsidiary of AES India Private Ltd or AES Corporation, United States of America., It was argued on behalf of the accused persons that Preliminary Enquiry was initiated in this case on 13.04.2012 and Column No. 9 of the chargesheet mentions that the complaint/informant PE-219 2012 (E) 0002 was converted into the regular case on 06.05.2015. It was submitted that during this period of three years nothing was enquired from the accused persons about the allegations which were the subject matter of the enquiry. It was submitted that PW-1 and PW-2 who had conducted the Preliminary Enquiry never called the accused persons during enquiry. Reliance was placed on Chapter 7 of the CBI (Crime) Manual 2020 dealing with Preliminary Enquiries. It was submitted that during investigation, the Investigating Officer was given all the exculpatory information available with the accused persons but the same was ignored and chargesheet was filed on 09.01.2017. It was submitted that the Investigating Officer had a tunneled view and did not examine the version of the accused. It was submitted that if the Investigating Officer had appropriately considered the material provided to him by the accused persons, he would not have filed the chargesheet in this case., It was submitted that in this case there is no aggrieved party as neither the Screening Committee nor the Ministry of Coal filed any complaint against the accused persons accusing them of having cheated the Screening Committee or the Ministry of Coal by misrepresentations about the holding‑subsidiary company relationship between AES Corporation, United States of America/AES India Private Ltd and AES Chhattisgarh Energy Private Ltd., It was submitted that Section 2 (wa) of the Code of Criminal Procedure defines victim as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir. It was submitted that in this case there was no victim. It was submitted that the case was initiated on the complaint of the Central Vigilance Commission who is not the aggrieved party being the person who was allegedly cheated by the accused persons., It was submitted that the chargesheet is only the opinion of the Investigating Officer and now after conclusion of trial, it is vividly clear from the material on record that the accused persons had not made any misrepresentations before the Screening Committee that AES Chhattisgarh Energy Private Ltd was a 100 % subsidiary of AES Corporation, United States of America., It is submitted that Guideline No. 2 of the Ministry of Coal makes it clear that in the case of a new Special Purpose (SP) or Joint Venture (JV) applicant company, the net worth would be the net worth of their principals., It was submitted that as per paragraph 16.15 of the chargesheet, the Ministry of Power had mentioned that the authenticity of data/comments submitted by applicant companies need to be separately verified but the allegations in the FIR were that the officials of the Ministry of Coal did not verify the claims of the company. It was submitted that in paragraph 16.21 of the chargesheet, it is mentioned that the financial strength of the applicant companies was verified by calling officers from Coal India Ltd. It was submitted that once the financial strength of applicant companies was verified by the Screening Committee, there was no justification for chargesheeting the accused persons., It was submitted that the entire case revolves around different provisions of Section 4 of the Companies Act, 1956 but the chargesheet does not even mention the said section which shows that the Investigating Officer wanted to avoid dealing with provisions of Section 4 (1) (a) and Section 4 (6) of the Companies Act, 1956 according to which a company can be a subsidiary of another company if the other company has control over the composition of its Board of Directors or in the case of a holding company incorporated in a country outside India under the law of such country has a holding‑subsidiary relationship with a company, the said company would be a subsidiary of the company incorporated outside India irrespective of whether the requirements of Section 4 of the Companies Act, 1956 are fulfilled., It was submitted that AES Group was targeted deliberately which compelled the said company to leave all its business in India including the plant earlier set up in the State of Odisha., Reliance is placed on Jamuna Chaudhary v. State of Bihar, (1974) 3 SCC 774 where it is held that the duty of the Investigating Officers is not merely to bolster a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. Reliance is also placed on Babu Bhai and Anr. v. State of Gujarat, Criminal Appeal No. 1599/2010 dated 26.08.2010 where the aforesaid views of the Hon'ble Supreme Court on the role of the Investigating Officer in the judgment in the case of Jamuna Chaudhary were reaffirmed and reiterated., It was submitted that although the accused were not successful in challenging the order on charge before the Hon'ble Supreme Court, the Hon'ble Supreme Court had made it clear that all the questions are left open and now the accused are re‑agitating their submissions for their innocence., Coming to the merits of the case, it was argued that the use of semicolon in Section 4 (2) of the Companies Act, 1956 shows that it divides the section in two parts and the earlier part of the said sub‑section ends at the semicolon and the subsequent part after the semicolon makes a fresh beginning and is to be read separately. Reliance is placed on Commissioner, Customs Central Excise and Service Tax, Patna v. Shapoorji Pallonji and Co Private Ltd and Others, 2023 SCC Online 1330 to submit that the contents of a provision of law after introduction of a semicolon make them an independent category. Reliance is also placed on Vincent Mathew v. Life Insurance Corporation of India, 2016 SCC Online Ker 20451 where it is held that a semicolon is a punctuation mark indicating a greater degree of separation than a comma and it is being used to separate parts of a sentence. It was submitted that Section 4 (2) of the Companies Act, 1956 is to be read in two parts. The first part provides that the composition of a company's Board of Directors shall be deemed to be controlled by another company, if the other company by the exercise of some power exercisable by it at its discretion, without the consent or concurrence of any other person, can appoint or remove the holders of all or a majority of the directorships. It was submitted that the second part of Section 4 (2) provides three conditions which are to be satisfied before concluding that the company has power to appoint a director in a company. It was submitted that these three conditions are not applicable for exercising power to remove the holders of all or a majority of the directorships in a company., For showing control of AES Corporation, United States of America over AES Chhattisgarh Energy Private Ltd, reliance is placed on email dated 17.07.2005, Exhibit D-5/DW-1 (Colly) sent by Accused No. 2 Sanjeev Aggarwal to Ms. Maureen Lim, who was Regional CFO Asia Transpower, Singapore (Subsidiary of AES Corporation, United States of America). In this email, it was mentioned that as per advice received from tax experts, it would be a better way to incorporate a special purpose vehicle under the Indian Companies Act for applying for a coal linkage. It was mentioned that two individuals will be the shareholders of this company. Regarding expenses for incorporating this company, it was mentioned that AES India will continue to incur expenses and after receiving investment approval from the AES Board, the funding from AES Corporation will flow into the SPV and the SPV will pay back to AES India and clear the books. It was mentioned that the expenses to be incurred would be around INR 150,000. It was also mentioned that in case for some reason the board approval is not granted for this project, the company can be used for some other project. This email was followed by various emails from Ms. Maureen Lim to Sanjeev Aggarwal, who responded to her queries over various issues raised by her for incorporating SPV. These emails are relied on to submit that from the very beginning, Sanjeev Aggarwal was taking the approval of AES Corporation, United States of America and even before incurring expenses of Rs. 150,000 for incorporating SPV, approval was taken from AES Corporation, United States of America., Reliance is also made on Exhibit P-51/DW-3, which is a one‑page note providing description of the Chhattisgarh project, a summary of investment from AES, project rationale and capital requirements. As on 16.07.2005, when the same was placed before the Development Council of AES Corporation, United States of America the status was Assess. At that time, A. Srinivas Rao was shown as the Project Leader and Sanjeev Aggarwal was shown as Project Staff. Both of them were full‑time employees and considering the current low activity phase of the project, the current resource allocation was 0.2 for A. Srinivas Rao and 0.5 for Sanjeev Aggarwal., On 04.08.2005, Sanjeev Aggarwal, Director‑Business Development, AES India Private Ltd addressed a letter to the Principal Secretary (Industries and Mines), Government of Chhattisgarh, proposing signing a Memorandum of Understanding with the State Government, Exhibit 58 (Colly), D‑92, Page 116‑117, PDF 10017‑10029. Along with this letter, a Common Application Form was also given where, as far as the name of investor/company is concerned, it was mentioned that the investment in the project will be carried out through a Special Purpose Vehicle (SPV) in which AES India Private Ltd (through its shareholders, subsidiaries and associates) would hold majority of the equity. It was also made clear that the exact name of the SPV will be decided at a later stage. As far as directors in the SPV are concerned, it was mentioned that A. Srinivas Rao and Sanjeev Aggarwal were proposed as directors on the Board. The declaration in support of the application was furnished under the signatures of Sanjeev Aggarwal, Director‑Business Development, AES India Private Ltd., The accused have relied on email dated 22.02.2006 from Sanjeev Aggarwal to Jamie R. Gebbia of AES Corporation, United States of America seeking her help in expediting the approval for setting up of an SPV. The confirmation for incorporating the SPV was conveyed to Sanjeev Aggarwal by Jamie R. Gebbia on the same date, 22.02.2006, Exhibit 119. The accused have submitted that a Memorandum of Understanding was executed between Government of Chhattisgarh, Chhattisgarh State Electricity Board and AES India Private Ltd on 03.03.2006 for setting up of 1000 MW to 1200 MW Thermal Power Project, Exhibit P‑37 (colly), D‑69, Page 36‑43, PDF 9367‑9374. Prior thereto, Allena Srinivasa Rao was authorized to sign the same and Sanjeev Kumar Aggarwal was made director in AES India Private Ltd vide Board Resolution dated 02.03.2006, Exhibit P‑37 (colly)., On 20.03.2006, AES OPGC Holdings Mauritius (a wholly owned subsidiary of AES Corporation, United States of America), referring to Press Note 1 (2005 series) applied for approval of the Foreign Investment Promotion Board for making investments to the tune of USD 370 million for setting up the Project through a subsidiary wholly owned by AES OPGC Holdings Mauritius or any other group/affiliate entity of AES Corporation, United States of America in terms of the MoU signed with Government of Chhattisgarh, D‑45, Page 1‑7, PDF 6777‑6783, Exhibit P‑15 (colly). In the application, complete background of AES Corporation, United States of America along with copy of MoU was furnished. The approvals sought were: (a) Waiver of applicability of Press Note 1 read with Press Note 3; (b) Permit AES OPGC Holdings Mauritius or any other group affiliate entity of AES Corporation, United States of America to set up a wholly owned subsidiary in India to undertake a greenfield coal‑based power generation plant in the state of Chhattisgarh and to undertake coal mining for captive consumption., The accused have submitted that pending approval from the Foreign Investment Promotion Board, AES India authorized Sanjeev Kumar Aggarwal and Soumendra Rout to incorporate the SPV and also granted permission to use AES as a part of the name of the SPV. Sanjeev Kumar Aggarwal was Director Business Development and also whole‑time director of AES India and Soumendra Rout was Chief Financial Officer of AES India, D‑69, Page 2, PDF 9333, Exhibit P‑37 (colly). The resolution dated 30.05.2006 is reproduced as follows: RESOLVED THAT Mr Sanjeev Aggarwal and/or Mr Soumendra Chandra Rout be and are hereby authorised to incorporate a company within the meaning of the Companies Act, 1956 in the name and style of M/s. AES Chhattisgarh Power and Mining Company Private Ltd or such other name with the word AES as may be approved by the Registrar of Companies, National Capital Territory of Delhi and Haryana, New Delhi and that the Company has no objection to the use of the words AES by Mr Sanjeev Aggarwal and Mr Soumendra Chandra Rout. Soumendra Chandra Rout be and are hereby authorised jointly and/or severally to use the words AES in the corporate name of the proposed company under incorporation and is hereby authorised to issue a no objection certificate, if required, to the Registrar of Companies to that effect, and to do all such acts, deeds and things as may be required or considered necessary or incidental thereto., The Board of AES India Holding Mauritius (AES India Mauritius) in its meeting noted the appointment of Allena Srinivas Rao and Sanjeev Kumar Aggarwal as additional directors effective from 11 May 2006. In paragraph 20 of the minutes, it is mentioned that a company in the name of AES Chhattisgarh Energy Private Limited was being incorporated and that its shares would be held by Sanjeev Aggarwal and Soumendra Rout. It was further recorded that the shares held by Sanjeev Aggarwal and Soumendra Rout would be transferred to the company and AES OPGC Holdings Mauritius after obtaining Foreign Investment Promotion Board approval, D‑47, Page 1‑8, PDF 6810‑6817, Exhibit P‑17 (colly). Paragraph 20 of the resolution dated 06.07.2006 noted: IT WAS NOTED that the Company was set up with the objective to act as an investment holding vehicle for companies in India and the Asia Pacific region. It was noted that the Company intended to set up a new company in India, subject to obtaining regulatory approval from the Government of India, with an investment of approximately INR 50,000,000,000 and which would be owned 99 % by the Company and 1 % by AES OPGC Holding, a sister company. IT WAS FURTHER NOTED that the activities of the proposed Indian company would include: establishing a greenfield coal‑fired power generation plant in the Indian State of Chhattisgarh; undertaking coal mining for captive consumption; and undertaking such other activities as may be required for the above objectives. Upon a proposal from the Chairman, Messrs. Aggarwal and Allena advised the Board on the following: the Indian Company under the name of AES Chhattisgarh Energy Private Limited was in the process of being incorporated and its shares would be held by Messrs. Sanjeev Aggarwal and Soumendra Rout; approval for the project Feasibility Study Report was being sought from the Government of Chhattisgarh in the name of one of the subsidiaries of AES Corporation, United States of America; a copy of the Feasibility Study Report and approval obtained would be provided to the Investment Monitoring Mechanism; pursuant to the Feasibility Study Report, the Foreign Investment Promotion Board approval required for this investment was being finalized; upon incorporation of AES Chhattisgarh, approval received from the Government of Chhattisgarh and the Foreign Investment Promotion Board would be transferred to AES Chhattisgarh; the shares held by Messrs. Aggarwal and Soumendra Rout would be transferred to the Company and AES OPGC Holding once all the applications have been cleared; financial forecasts, expected cash flows and expected returns from this investment would be provided in due course; upon query from Mr Aggarwal, the Chairman advised the Board that any additional investments, including Joint Ventures, may be routed through the Company, with prior approval from the Board of Directors., Reliance is placed by the accused on Section 254 of the Companies Act, 1956 which provides: 254. Subscribers of memorandum deemed to be directors—In default of and subject to any regulations in the articles of a company, subscribers of the memorandum, who are individuals, shall be deemed to be the directors of the company, until the directors are duly appointed in accordance with Section 255., It is submitted by the accused that by being the subscribers of the memorandum they were deemed to be the directors of the company., The accused have submitted that on 15.09.2006 the Board of AES India Private Ltd accorded its approval for formation of a new company as the SPV for setting up of a 1000 MW coal‑based thermal power project as per the MoU signed with Government of Chhattisgarh and the State Electricity Board. It also authorized Sanjeev Kumar Aggarwal and Soumendra Chandra Rout to carry out all necessary acts/steps for the formation of the SPV, Exhibit P‑58 (colly) D‑92, Page 2, PDF 9902. The resolution is as follows: Item No. 8 Formation of SPV for execution of MoU signed by the company with Government of Chhattisgarh. The chairman informed the board that the company has signed an MoU with the Government of Chhattisgarh and Chhattisgarh State Electricity Board for setting up of 1000 to 1200 MW coal‑based thermal power project. The copy of the signed MoU was laid before the board for identification. Since the project is to be set up in conformity with various constitutional and statutory provisions and policy of the Government of India and Government of Chhattisgarh, the chairman further informed the board that for execution of the MoU, one SPV has to be set up. The board considered the matter and passed the following resolutions unanimously: RESOLVED that the consent of the Board be and is hereby accorded for the formation of a new company which would be for a special purpose (execution of MoU, hereinafter referred to as Special Purpose Vehicle). RESOLVED FURTHER that Mr Sanjeev Aggarwal and Soumendra Chandra Rout be and is hereby authorised to carry out all necessary action steps required for the formation of the Special Purpose Vehicle., The accused have submitted that the first meeting of the Board of Directors of AES Chhattisgarh Energy Private Ltd was held on 21.11.2006, which recorded that AES India incurred all incorporation expenses of AES Chhattisgarh amounting to Rs. 41,877. It further records that Allena Srinivasa Rao (an employee and Director, AES India) and Sanjeev Kumar Aggarwal would be the jointly authorized signatories for bank account operations of AES Chhattisgarh, Exhibit P‑20 (colly), D‑50, Page 1‑3, PDF 7000‑7004., The accused have submitted that AES India had paid the incorporation money of Rs. 1 lakh on behalf of Sanjeev Aggarwal and Soumendra Chandra Rout to AES Chhattisgarh by way of cheque No. 721458 dated 23 November 2006, Exhibit P‑65, D‑102, Page 44., The accused have submitted that on 19.12.2006 Foreign Investment Promotion Board approval was accorded in favour of AES OPGC and/or any other group affiliate entity of AES Corporation, United States of America to set up a wholly‑owned subsidiary in India to undertake a greenfield coal‑based power generation plant in Chhattisgarh and to undertake coal mining for captive consumption, Exhibit P‑46, D‑78, page 30‑33, PDF 9656‑129. The accused have referred to another one‑pager of 05.01.2007 mentioning the details of the MoU and the equity required from AES. It was submitted that the status of the project had progressed from Assess to Pursue and Sanjeev Aggarwal was now shown as the Project Leader because A. Srinivas Rao had resigned from AES by then., The accused have submitted that Sanjeev Aggarwal, vide letter dated 08.01.2007, had acknowledged the receipt of approval of the Government of India for Foreign Direct Investment in the proposed 1200 MW thermal power project with integrated captive coal mine in Chhattisgarh, Exhibit P‑63, D‑97, page 13, PDF 10308., The accused have referred to Section 309 (6) of the Companies Act which provides that no director of a company who is in receipt of any commission from the company and who is either in full‑time employment of the company or a managing director shall be entitled to receive any commission or other remuneration from any subsidiary of such company., To show that Sanjeev Aggarwal being in full‑time employment of AES India Private Ltd could not have taken any salary from AES Chhattisgarh Energy Private Ltd the accused have referred to the Balance Sheet of AES Chhattisgarh Energy Private Ltd as at 31.03.2007, Exhibit P‑19, D‑49, Page 1‑7, PDF 6846‑6852 where it is mentioned with regard to Managerial Remuneration that the directors have voluntarily waived their right to receive commission and remuneration during the year ended March 31, 2007., Reference was also made upon audited balance sheet of AES India where it was recorded that AES Corporation is the holding company of AES India and AES Chhattisgarh Energy Private Ltd is a fellow subsidiary of AES India in terms of Accounting Standard‑18 to submit that AES India and AES Chhattisgarh Energy Private Ltd both were subsidiaries of AES Corporation, Exhibit P‑25 (colly), D‑55, Page 251‑274, PDF 7366‑7390., Reliance is also placed on evidence of PW 7 Deepak Roy who also stated during his cross‑examination that AES India Private Ltd and AES Chhattisgarh Energy Private Ltd were subsidiaries of the same holding company i.e., AES Corporation, United States of America., Reliance is also placed on D‑56, PDF 7444 which is a record of the Ministry of Corporate Affairs, Government of India, Register of Directors, Managing Directors, Managers and Secretaries etc. pertaining to AES Chhattisgarh Energy Private Ltd. As per this record, Sanjeev Aggarwal was appointed as a Director in this company on 16.11.2006 and ceased to be a director on 15.04.2010. For AES India Private Ltd, the records show that Sanjeev Aggarwal became a director on 11.03.2006 and ceased to be a director on 15.04.2010, Exhibit P‑85, D‑55, PDF 7114., Reference is also made to Section 283 (l) of the Companies Act, 1956, which provides that the office of a director shall become vacant if, having been appointed a director, by virtue of his holding any office or other employment in the company, he ceases to hold such office or other employment in the company., Reliance is placed on evidence of DW 1 A. Allena Srinivas Rao dated 25.07.2023 where he stated that the relationship of the SPV AES Chhattisgarh Energy Private Ltd with AES Corporation was as a subsidiary of AES Corporation and all its actions, including providing resources like employees and budgets, were decided by AES Corporation. He stated that, as per his understanding, the induction of directors, shareholders and the day‑to‑day affairs and submissions of the application for allocation of the coal block were all done at the directions and advice of AES Corporation., In response to the query of the Hon'ble Court whether all the material was provided by the accused persons to the investigating officer during investigation to show that AES Chhattisgarh Energy Private Ltd was a 100 % subsidiary of AES Corporation, United States of America as on 10.01.2007 and 21.06.2007 in terms of the Companies Act, 1956, the attention of the Hon'ble Court was drawn to Exhibit P‑30, D‑62, Page 22, PDF 8690 where the accused had informed the investigating officer by letter dated 28.03.2016 as follows: 8. Supporting documents establishing M/s AES Chhattisgarh Energy Private Ltd as a 100 % subsidiary of AES Corporation, United States of America as on 10.01.2007 and 21.06.2007 in terms of the Companies Act, 1956. Section 4 (1) of the Indian Companies Act 1956, amongst others suggests that a company (AES Chhattisgarh Energy Private Ltd) would be a subsidiary of another holding company (AES Corporation) if the holding company controls the composition of the board of directors of the subsidiary.
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In this regard, it has already been stated in our previous representations before your good self, that ACE was incorporated under the guidance of AES Corporation and the process of formation had started in 2005, i.e., much prior to date of coal block application of Jan 10, 2007. The same is evident from the fact that on August 4, 2005, AES showed its interest in setting up a power project in the State of Chhattisgarh by way of proposing a Memorandum of Understanding to be entered upon with the State of Chhattisgarh citing credentials of AES Corp. It was also stated in the application that AES proposes investment in the project through a Special Purpose Vehicle in which AES through its parent, subsidiaries, affiliates and/or associates would hold a majority of the equity, and the exact corporate structure of the investing company will be worked out in due course. Further, at and prior to the date of coal block application, several representations both at state and central level were made, clearly indicating the intent of AES Corporation to implement the proposed project, by way of a Special Purpose Vehicle, held through its shareholders, subsidiaries and/or associates, who would hold a majority of the equity. The Special Purpose Vehicle shall depend on the technical and financial expertise of its parent company to implement the project. A review of the coal block application dated Jan 10, 2007 in isolation would clearly establish the relationship between ACE and AES Corporation, as there is mention of AES Corporation financials just below the tab of net worth, and later in note 1 it is clearly stated that AES Corporation or its affiliates/subsidiary will subscribe to ACE equity. In addition, the following facts would also suggest that AES Chhattisgarh Energy Private Ltd on the said dates was subsidiary of AES Corporation: (a) The promoters of ACE, Sanjeev Aggarwal and Soumendra Rout became promoters, and subsequently directors of ACE, by virtue of being employees of AES India. They ceased to remain directors of ACE when they resigned as employees of AES India in the year 2010. Throughout the employment they were under control and superintendence of AES Corporation, through its subsidiaries, and could not act in their independent capacity. (b) AES India incurred pre‑incorporation expense on behalf of ACE, which implies that the promoters did not act independently and were under superintendence and control of AES India, which was at the relevant date and also at present a wholly owned subsidiary of AES Corporation. (c) On July 6, 2006, AES India Holding (Mauritius) by its Board Resolution ratified the process of incorporation of ACE by Sanjeev Aggarwal and Soumendra Rout, and its eventual transfer to AES India Holding Mauritius and AES OPGC Holdings. (d) AES India, vide its application of August 4, 2005, for a Memorandum of Understanding with Government of Chhattisgarh and follow‑up letter dated November 22, 2005, provided credentials of AES Corp/Project Details stating that AES India proposes investment in the project through a Special Purpose Vehicle in which AES India through its parent, subsidiaries, affiliates and/or associates would hold majority of the equity. AES India is a wholly owned subsidiary of AES Corp. The exact corporate structure of the investing company will be worked out in due course., To show that AES India Holding (Mauritius) was a subsidiary of AES Corporation, reference was made to Form 10‑K Annual Report submitted by the AES Corporation with the United States Securities and Exchange Commission for the fiscal year ended December 31, 2006, Exhibit P‑27, D‑59, Pages 1 to 325, PDF 78448175. At PDF 8149 is the list of subsidiaries of the AES Corporation and at PDF 8156 AES Mount Vernom B.V. is mentioned as one of the subsidiaries of AES Corporation USA. Further, reference is made to the first minutes of the Directors of AES India Holdings (Mauritius) dated 06.07.2006, Ex. P‑17, D‑47, Page 1‑8, PDF 6810‑6817, where in paragraphs 16, 17 and 18 it was noted that Conqueror Limited was holding one share which was transferred on 06.07.2006 in favour of AES Mount Vernom B.V. and that is how AES India Holdings (Mauritius) became subsidiary of AES Corporation USA., It is also explained on behalf of the accused persons why the name of AES Chhattisgarh Energy Private Ltd was not mentioned in the list of subsidiaries of AES Corporation USA in the Annual Report Form 10‑K for the year ending 31.12.2006. The explanation given is that at the end of the list, Exhibit P‑27, D‑59, Pages 319, PDF 8166 a note is appended which mentions that this list omits certain subsidiaries which, considered in the aggregate as a single subsidiary, would not constitute a significant subsidiary., However, in the Form 10‑K Annual Report for the period ending 31.12.2007, Ex. P‑28, D‑60, PDF 8643 the name of AES Chhattisgarh Energy Private Limited is mentioned as one of the subsidiaries of AES Corporation USA. It is submitted that this is for the reason because the status of this company in the eyes of AES Corporation as on 16.07.2005 was Assess in the one‑pager Ex. D51/DW‑3 which had changed to Pursue by 05.01.2007, Ex. D11DW‑1. Reliance is also placed on Exhibit D‑56/DW‑5, which is the report of Professor Jonathan Macey. In this report, in paragraphs 9 and 10, it is mentioned as follows: 9. The Corporation was not listed by AES as one of its subsidiaries on its SEC Form 10‑K as of December 31, 2006, but it was listed among AES’s subsidiaries as of December 31, 2007. Form 10‑K, sometimes referred to as an annual report, provides a comprehensive overview of the company’s financial condition and includes audited financial statements. Among other things, the Form 10‑K describes the company’s business operations, summarises the share price performance and financial results, provides information about corporate officers and directors, and the beneficial stock ownership interests of such officers and directors. In their 10‑Q filings, companies are required to provide an Exhibit, known as Exhibit 21, which lists the name and jurisdiction of incorporation of each significant subsidiary. Consistent with standard corporate practice, AES permitted from its Exhibit 21.1 disclosures, subsidiaries that would not constitute significant subsidiaries. 10. The process of determining whether a subsidiary is a Significant Subsidiary is governed by the Code of Federal Regulations and requires the application of three tests, an investment test, an assets test, and an income test. The investment test measures the amount of money that the parent company has invested in or advanced to the subsidiary as compared to the parent company’s total assets. The asset test measures the size of the subsidiary’s assets compared to the total assets of the parent company. The income test compares the parent company’s equity in a subsidiary’s income from its continuing operations to the income of the registrant for the most recently completed fiscal year., Reference is also made to question No. 35 put to DW‑5 Professor Jonathan Macey on 11.10.2023. The question was: Is it correct that every holding company has to mention its subsidiaries on SEC Form 10‑K at the end of every year, i.e., 31st December of each year? The response of the witness was: Companies are only required to list the names of their significant subsidiaries at the end of their fiscal year. The fiscal year for different companies may end differently. For AES Corporation USA it was ending on 31st December every year. Reference is made to cross‑examination of DW‑5 Professor Jonathan Macey on 11.10.2023, when in response to the question Please see D‑59, Exhibit P‑27 (Colly), PDF 7844, which is Form 10‑K (Annual Report) submitted by AES Corporation for the period ending on 31.12.2006. In this Form the list of subsidiaries does not mention AES CEPL as one of the subsidiaries of AES Corporation USA. The witness answered that at the footnote of the Form 10‑K it is mentioned that this list omits certain subsidiaries, which considered in the aggregate as a single subsidiary would not constitute a significant subsidiary and that in 2006 AES Corporation USA had only contributed about 1,500 US Dollars to the subsidiary while in the subsequent year a substantially greater amount of more than 1 million US Dollars was transferred to the subsidiary company and, as noted in paragraph 10 of the report, the amount of investment by the parent is a relevant part of the determination of whether a subsidiary is a significant subsidiary., Reference is also made to the cross‑examination of DW‑1 A. Srinivas Rao who stated on 26.07.2023 in response to the question Please see D‑59, Exhibit P‑27, Page 302, where in the list of subsidiaries of AES Corporation the name of AES Chhattisgarh Energy Private Ltd is not mentioned for the period ending 31.12.2006 and this name appears in D‑60, Page 448, Exhibit P‑28 for the period ending 31.12.2007. The witness suggested that as on 31.12.2006, according to AES Corporation, AES Chhattisgarh Energy Private Ltd was not its subsidiary and it became a subsidiary in the next year, as evident from Exhibit P‑28. The witness answered that at D‑59, Page 319, there is a footnote stating that this list omits certain subsidiaries which, considered in the aggregate as a single subsidiary, would not constitute a significant subsidiary. Reliance is also placed on evidence of DW‑3 Robert David Mill recorded on 28.08.2023, who stated that the project had advanced to Status Pursue in Q‑1 (January to March) 2006. The submission of the accused is that since the status of the project had advanced from Assess to Pursue, therefore AES Chhattisgarh Energy Private Ltd had become a substantial subsidiary of AES Corporation USA and was so named in the annual report for the year ending 31.12.2007., The accused have sought to explain the circumstances in which Form 23 AC of AES Chhattisgarh Energy Private Ltd for the year ending on 31.03.2007, Ex. P‑84, D‑56, Page 120‑125, PDF 7563‑7568, came to state that it is not a subsidiary of any other company under Section 4 of the Companies Act, 1956., First of all, it is submitted that this form was submitted under digital signatures of Soumendra Chandra Rout and not Sanjeev Aggarwal, PDF 7568. Reference is made to an email dated 20.12.2006 written by Soumendra Chandra Rout to Sanjeev Aggarwal as well as Raja Gopal inquiring how to correct the records of the Registrar of Companies in the name of AES Chhattisgarh Energy Private Ltd, Ex. D‑21/DW‑2. Reference is made to Ex. D‑22/DW‑2, which is an email dated 20.12.2006, as per which Raja Gopal of Ernst and Young, the auditors of the company, had given the details of the Company Secretary Nesar Ahmad to Sharad Pungalia. Attention of the Hon'ble Supreme Court was drawn to Exhibit P‑23/DW‑2, which is a letter dated 19.01.2007 written by Nesar Ahmad, Company Secretary to AES Chhattisgarh Energy Private Ltd on the topic of Retainership Arrangement. The scope of work agreed to be done by the Company Secretary was defined as follows: Scope of Work: We shall advise on all matters pertaining to formalities, procedures, maintenance of records required under the Companies Act, 1956 and related laws as mutually decided from time to time. The main objective is to ensure that expert guidance is available at all times. The scope of work, inter alia, includes inspection/verification of the company’s records/documents maintained under the Companies Act, 1956 or related laws from the effective date of agreement; maintaining records/registers and filing of returns with the statutory authorities on a regular basis; pre‑certification of e‑forms and filing thereof on a regular basis, including certification of any documents pertaining to the company such as Memorandum of Association, Articles of Association, Certificate of Incorporation; advising on company law on a regular basis; advising on the Foreign Exchange Management Act on a regular basis; advising on all kinds of permissions, approvals, registrations that may be required under company laws; obtaining Director Identification Numbers for all the Directors and compliance with DIN 1, 2, 3, etc.; obtaining Digital Signatures for Directors/Company Secretary; certification as and when required under the Companies Act, 1956., To show that Nesar Ahmad had filed Form 23 AC for the year ending 31.03.2007 in which it was mentioned that AES Chhattisgarh Energy Private Ltd is not a subsidiary of any holding company without instructions of directors or any responsible person of AES Chhattisgarh Energy Private Ltd, reliance is placed on evidence of DW‑2 Sharad Pungalia. In paragraphs 39 to 42 of the evidence of DW‑2 recorded on 08.08.2023, the witness stated: After we entered into the engagement with Mr Nesar Ahmad, I dealt with Mr Ahmad and his office with reference to miscellaneous secretarial compliance and other matters like transfer of shares etc. After we signed the engagement, the first important activity was the transfer of shares. I went to Mr Nesar’s office and had an approximately two‑hour discussion, briefing them about the company, and asked him to send a proposal along with complete steps to undertake such transfer. Subsequently, Nesar and Associates have been carrying out various secretarial filings such as preparation of minutes, filing of Form 18, Form 32, Form 23 AC etc. on behalf of the company. Since the digital signatures were in custody of Mr Nesar Ahmad’s office, all these filings, including any pre‑certifications, were done by their office. For these purposes, if any specific document or information was required, their office communicated with me via email and our team provided the necessary documents. After filing of these forms and documents with the respective authorities, their office sent a copy via email to us for our records. This Form 23 AC of AES CEPL for the year ending 31.03.2007, Serial No. 5 (a), is digitally signed by Soumendra Chandra Rout. Along with this form, the annual report of 2006‑07 of AES CEPL was uploaded on the website of the Registrar of Companies. Neither this form nor the annual report was sent to me by Nesar and Associates before or after the upload on 22.09.2007. As per the terms of engagement, digital signatures of the Director of AES CEPL were to be obtained by Nesar and Associates and were in their custody, which they used to file other forms and documents including this Form 23 AC. Nesar and Associates was introduced to me by Ernst & Young. After the introduction, I met them individually in their office and had detailed discussions about their engagement with the company. Post the engagement, interaction with Nesar and Associates occurred between me and my colleagues from the Finance Department. I do not recollect Mr Sanjeev Aggarwal having met Nesar Ahmad and his office at any stage of our discussion., Attention of the Hon'ble Supreme Court was also drawn to the cross‑examination of DW‑2 Sharad Pungalia recorded on 19.08.2023 where the response of the witness to Questions No. 1, 2, 3 was as follows: 1. Regarding Form 23 AC submitted by AES Chhattisgarh Energy Private Ltd on 22.09.2007 with the Registrar of Companies, Clause 3(a) asks whether the company is a subsidiary as defined under Section 4 and the response given is NO. When asked how this statement could be reconciled with the statement under Section 161 of the Criminal Procedure Code recorded on 11.09.2015 that AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation USA as on 10.01.2007, the witness explained that Nesar and Associates were engaged to carry out various secretarial compliances and services and that the form was filed by them; the witness was not aware why the form stated that the company was not a subsidiary. 2. The witness confirmed that Nesar and Associates carried out various secretarial compliances such as filing of forms, preparation of minutes, certifications, obtaining Digital Signatures, filing of minutes, etc., as a Company Secretary firm for AES CEPL. 3. The witness stated that Form 23 AC Ex. P‑84/PW‑8 (Colly), D‑56 was shared by Nesar and Associates; he was marked in all communications pertaining to the secretarial/compliances and other tasks done by them on behalf of AES CEPL. He could not recall whether the form was shared with them prior to filing, but believed that it was shared., The submission of the accused is that it should have been brought on record by the prosecution during evidence of Nesar Ahmad that he had sent Form 23 AC to AES Chhattisgarh Energy Private Ltd after it was uploaded on the website of the Registrar of Companies., Attention of the Hon'ble Supreme Court was drawn to the cross‑examination where the witness stated that at that time, Form 1, Form 1‑A, Form 18, Form 32, Memorandum and Articles of Association were required for incorporation of a company. All these documents on behalf of AES Chhattisgarh Energy Private Ltd were submitted in the office of the Registrar of Companies by his firm. He told the investigating officer that his office had facilitated the incorporation of AES Chhattisgarh Energy Private Limited. The witness further admitted during cross‑examination that Form 23 AC is filed to submit the balance sheet with the Registrar of Companies and that filing of Form 23 AC was facilitated by his office. The submissions of the accused are that Nesar Ahmad, in order to cover his mistake where he mentioned in Form 23 AC that AES Chhattisgarh Energy Private Ltd was not a subsidiary company of any other holding company, made false statements during his cross‑examination. It is pointed out that on 24.09.2022 during his examination in chief, page 1 of 8, he stated that he had helped in the incorporation of AES Chhattisgarh Energy Private Ltd whereas the company was incorporated on 16.11.2006 and Nesar Ahmad was approached for the first time on 20.12.2006. It is submitted that Nesar Ahmad, in paragraph 2, confined his job responsibilities only to providing secretarial support such as filing of forms with the Registrar of Companies, whereas the Retainership Agreement Exhibit P‑23/DW‑2 shows he had exhaustive responsibilities with regard to various compliances and requirements on behalf of AES Chhattisgarh Energy Private Ltd. Nesar Ahmad also stated that he had met Sanjeev Aggarwal once or twice whereas Sharad Pungalia has stated that he and other persons of the finance department of AES Chhattisgarh Energy Private Ltd used to interact with Nesar Ahmad and Sanjeev Aggarwal had never met Nesar Ahmad. It is further submitted that Nesar Ahmad denied any connection between AES India Private Ltd and AES Chhattisgarh Energy Private Ltd but Form 32, D‑56, Page 7, PDF 7450 of AES Chhattisgarh Energy Private Ltd mentioned that Sanjeev Aggarwal was one of the directors of AES India Private Ltd. It was further pointed out that during his cross‑examination, Nesar Ahmad stated that he does not recollect whether his professional charges for incorporation of AES Chhattisgarh Energy Private Ltd were paid by AES India Private Ltd. He also stated that he does not know who paid for the preliminary expenses for the incorporation of AES Chhattisgarh Energy Private Ltd whereas the first minutes of the board of directors meeting of the said company on 21.11.2006, Ex. P‑20 (colly), D‑50, Page 1‑3, PDF 7000‑7004 recorded that the expenses were borne by AES India Private Ltd and these minutes were known to Nesar Ahmad. He also denied knowing any person named Amit Kaushal who had certified the particulars in Form 32 but at the end of his evidence dated 24.09.2022, he admitted that Form 32, D‑56, Page 14 was submitted with the Registrar of Companies by his office., To show that it was a mistake in Form 23 AC to say that AES Chhattisgarh Energy Private Ltd was not a subsidiary, reference was made to Form 23 AC of AES India Private Ltd where it is also mentioned that the said company was not a subsidiary, whereas it is absolutely clear on record that the company was a subsidiary of AES Corporation India, P‑25 (Colly) D‑55, Page 240., With regard to PW 8 Raj Singh, it was submitted at page 3 of 7 of his evidence dated 03.08.2022 that if control over the Board of Directors of the company was with another company it should have been mentioned in the Articles of Association of the subsidiary company. When asked on what basis this statement was made, the witness could not point out any provision of law. The witness was not willing to see the internal documents of the companies involved and stated that only on examination of internal records could it be stated whether the Board of Directors of AES Chhattisgarh Energy Private Ltd were controlled by some other company., With regard to the offence of cheating under Section 420 of the Indian Penal Code, it was argued that the company had made complete disclosure in the application given to the Ministry of Coal and there was no fraudulent misrepresentation. It was submitted that the coal block was deallocated even before the decision of the Hon'ble Supreme Court in the case of Manohar Lal Sharma. Rather, it was submitted that the victim was AES Chhattisgarh Energy Private Ltd because the Sayang coal block was in a reserved area and should not have been advertised in the first instance by the Ministry of Coal. The applicant companies, including AES Chhattisgarh Energy Private Ltd, were persuaded to believe, without any rider that the allocation would be subject to environmental clearance, that the Sayang coal block was available for captive mining. It was submitted that the advertisement of the Ministry of Coal permitted applicant companies which were Special Purpose Vehicles or Joint Ventures to take benefit of the net worth of their principals., Reliance is also placed on the judgement of the Hon'ble Supreme Court in the case of New Horizon, paragraph 26, 1995 (1) SCC 478 to submit that the accused No. 1 company, being a subsidiary of AES Corporation USA, could rely on the financial net‑worth of its holding company., The accused have relied on the following case law in support of their arguments: 1. Jamuna Chaudhary v. State of Bihar, (1974) 3 SCC; 2. Babubhai v. State of Gujarat, (2010) 12 SCC 254; 3. Tulsi Ram v. State of U.P., AIR 1963 SC 666; 4. Ellerman & Bucknall Steamship Co. Ltd. v. Sha Misrimal Bherajee, AIR 1966 SC 189; 5. ARCI v. Nimra Cerglass Technics (P) Ltd., (2016) 1; 6. Mobarik Ali v. State of Bombay, AIR 1957 SC 857; 7. Hira Lal Hari Lal Bhagwati v. C.B.I, AIR 2003 SC; 8. Indermohan Goswami v. State of Uttaranchal and Ors; 9. Topandas v. State of Bombay, 1955 SCC OnLine SC 33; 10. Manoj Kumar Soni v. State of MP, 2023 SCC OnLine; 11. CBI v. Suresh Kumar Sharma & Anr., CC No.; 12. Iridium India Telecom Ltd. v. Motorola Incorporated and Ors., AIR 2011 SC 2068; 13. Hriday Ranjan Verma v. State of Bihar and Anr., AIR; 14. Vir Prakash Sharma v. Anil Kumar Aggarwal, 2007 CriLJ 373; 15. K. Shanmugasundara Nadar v. V. Sadasivam, (1969) 1 Mad LJ 610; 16. Commissioner of Income Tax v. Hindustan Bulk Carriers, AIR 2003 SC 394; 17. New Horizons Limited and Anr. v. Union of India and Ors., (1995) 1 SCC 478; 18. Prakash Industries v. Directorate of Enforcement, 2022 SCC Online; 19. Mukarrab etc. v. State of U.P., MANU/SC/1150/2015; 20. Khurshid Ahmed v. State of Jammu and Kashmir; 21. Ramanand @ Nandlal Bharti v. State of U.P., AIR; 22. Ashish Batham v. State of Madhya Pradesh, AIR 2002; 23. M. Cheluviah v. Smt. Amruthamma, 2004 CriLJ 4564; 24. Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43; 25. Motilal Chakrawarty v. the King, AIR 1949 Cal 586; 26. CBI v. JLD Yavatmal Energy Ltd. and Ors.; 27. State of UP & Ors v. Renusagar Power & Ors.; 28. Govindraju v. State; 29. Lalita Jalan v. Bombay Gas Co. Ltd.; 30. CCE v. Shapoorji Pallonji & Co. (P) Ltd., 2023 SCC OnLine SC 1330; 31. Vincen Mathew v. Life Insurance Corp, 2016 SCC OnLine Ker; 32. Abdul Razak Pane Mangalore v. State of Karnataka, 2020 SCC OnLine Kar; 33. V. Anantha Raju v. TM Narasimhan, 2021 SCC OnLine SC; 34. Roop Kumar v. Mohan Thedani; 35. Bai Hira Devi & Ors v. Official Assignee of Bombay., It is submitted that Exhibit P‑38, D‑70, PDF 9397 is the notice under Section 91 of the Criminal Procedure Code directing Aditya Trivedi, Director, AES Chhattisgarh Energy Pvt. Ltd. to produce confirmation of remittance in the accounts of Soumendra Chandra Rout and Sanjeev Aggarwal for transfer of shares from resident to non‑resident entities. Exhibit P‑39/Exhibit P‑36/PW‑75, D‑71 is the Production Cum Seizure Memo dated 10.12.2015, which, besides other documents, includes bank statements of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout confirming foreign remittances. Certificate of Foreign Inward Remittance dated 21.08.2007 of Barclays Bank PLC, PDF 9406, confirms remittance of Rs. 51,500/- in the account of Sanjeev Aggarwal. PDF 9415 shows the deposit of Rs. 51,500/- in the bank account of Sanjeev Kumar Aggarwal on 30.07.2007. A similar transaction is shown for Soumendra Chandra Rout. The prosecution submits that the fact that both Directors received a sum of Rs. 51,500/- each from AES India Holdings (Mauritius) in their personal accounts shows that there was no relationship of holding company and subsidiary company between AES Corporation USA and AES Chhattisgarh Energy Pvt. Ltd.
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Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were the beneficial owners of the shares of AES Chhattisgarh Energy Private Ltd because they signed the subscription clause of the Memorandum and Articles of Association in their individual capacity, without any reference to AES Corporation, USA or AES India Private Ltd. The fact that AES Chhattisgarh Energy Private Ltd had to pass a board resolution for transfer of shares in favour of AES India Holdings (Mauritius) and AES OPGC Holdings shows that Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were the beneficial owners of the shares., Reliance is placed on Section 307 of the Companies Act, 1956 which provides that every company shall keep a register showing, as respects each director of the company, the number, description and amount of any shares or debentures held by him or in his interest, whether on payment or not. In this case, AES Chhattisgarh Energy Private Ltd was not maintaining any such register, which shows that Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were not holding the shares in trust for AES Corporation, USA., It was argued that the CBI Crime Manual is not a statute and has not been enacted by the legislature; it is a set of administrative orders issued for internal guidance of the Central Bureau of Investigation officers., To the argument of the accused that there is no victim, reliance is placed on Kanumukkala Krishna Murthy (supra). In that case, the Hon'ble Supreme Court of India held that there are cases in which servants or agents of an authority have been deceived while the loss has been suffered by the authority concerned, and the person deceiving the servants or agents is deemed to have deceived the authority., Reliance is also placed on the definition of ‘person’ under Section 11 of the Indian Penal Code, according to which ‘person’ includes any company or association or body of persons, whether incorporated or not., To show that misrepresentations of the accused persons had cheated the screening committee, reliance is placed on minutes of the 35th meeting of the screening committee held on 13.09.2007, where the committee assessed applications based on techno‑economic feasibility, preparedness, past track record, financial and technical capabilities, and recommendations of the State Governments and the Ministry of Power, and decided to recommend allocation of coal blocks., To show that the investigating officer gave the accused persons an opportunity to produce supporting documents to establish that M/s AES Chhattisgarh Energy Private Ltd was a 100 % subsidiary of AES Corporation, USA as on 10.01.2007 and 21.06.2007, reliance is placed on Exhibit P‑29, D‑61, which is a notice under Section 91 of the Criminal Procedure Code to Shri Aditya Trivedi, director of AES Chhattisgarh Energy Private Ltd, calling upon him to produce such documents. The documents and emails produced by the defence witnesses were never produced before the investigating officer, and therefore the accused cannot blame the officer for not investigating the case fairly., So far as the challenge to the evidence of Nesar Ahmad is concerned, it was submitted that the accused had not suggested during his cross‑examination that he had never met Sanjeev Kumar Aggarwal., To rebut the argument that AES Corporation, USA did not name AES Chhattisgarh Energy Private Ltd as one of its subsidiaries because it was an insignificant subsidiary, it is submitted that the application (PDF 328, column 25) mentioned an investment of Rs 1.5 crores and the feedback form (PDF 3479, column 10) mentioned an investment of Rs 3 crores. With such an investment the subsidiary cannot be called insignificant., The summary of rebuttal arguments is: (i) the receipt of Rs 51,500 each by Sanjeev Kumar Aggarwal and Soumendra Chandra Rout as sale consideration shows that AES Corporation, USA was not the holding company; (ii) the company was not maintaining a register under Section 307 of the Companies Act, 1956; (iii) the CBI manual is not a statute; (iv) under Section 11 of the Indian Penal Code the government can be the victim of cheating; (v) the investigating officer called upon the accused to produce material to show 100 % subsidiary status, but the material was never given to the officer; and (vi) AES Corporation, USA invested Rs 1.5 crores in AES Chhattisgarh Energy Private Ltd but did not show it as a significant subsidiary in its annual return for the year ending 31.03.2007., So far as the credit of Rs 51,500 in the account of Sanjeev Kumar Aggarwal is concerned, attention of the Supreme Court of India was drawn to Exhibit P‑40, D‑72, which is the statement of account of Sanjeev Kumar Aggarwal. The account was credited with Rs 3,04,454 as salary, and the next credit of salary was Rs 2,49,454, which takes into account the credit of Rs 51,500 in his account., Reference is made to sub‑section 8 of Section 307 of the Companies Act, 1956, which provides that if a default is made in complying with subsection (1) or (2), or if any inspection is refused, the company and every defaulting officer shall be punishable with a fine which may extend to fifty thousand rupees and a further fine of two hundred rupees for each day the default continues., It is therefore submitted that if AES Chhattisgarh Energy Private Ltd had not maintained the register of directors’ shareholding as required under Section 307 of the Companies Act, 1956, prosecution could have been initiated under Section 628 of the Companies Act, 1956., So far as the mention in the application that an investment of Rs 1.5 crores was made, reference is made to the balance sheet of AES India Private Ltd for the year ending 31.03.2008, which shows that in previous financial years a sum of Rs 1,08,63,104 was advanced to AES Chhattisgarh Energy Private Ltd, a fellow subsidiary company. It was submitted that, compared with an investment of US $300 million, the Rs 1.5 crores investment was insignificant for AES Corporation, USA. Regarding the investment of Rs 3 crores, it was submitted that the annual report ending 31.12.2007 of AES Corporation, USA showed AES Chhattisgarh Energy Private Ltd as one of its subsidiary companies, and that investment was only one of three factors for determining whether the subsidiary was insignificant or significant., After the arguments were over, a request was made by the accused persons for permission to file written arguments. The permission was given and the accused also filed their written arguments, a copy of which was provided to the prosecution., The first point for determination in this case is: whether as on 10.01.2007 the composition of the Board of Directors of AES Chhattisgarh Energy Private Ltd was under the control of AES Corporation, USA., Before discussing the material on record for deciding the points for determination, it is noted that the threshold which the accused is required to meet is that of pre‑ponderance of probability. In Ramanand @ Nandlal Bharti vs. State of U.P., 2022 AIR SC 5273, the Hon'ble Supreme Court of India held that it is sufficient if the accused person succeeds in proving a pre‑ponderance of probability in favour of his case; it is not necessary to prove the case beyond a reasonable doubt. The expression ‘pre‑ponderance of probability’ is defined in American Jurisprudence, 2nd Edition, Vol. 30, Article 1164, as the greater weight of credible evidence., Therefore, the points for determination in this case will be decided on the principle that the prosecution has to prove its case beyond all reasonable doubts and the accused has to show his defence by pre‑ponderance of probability., It is evident from Exhibit P‑15, D‑45, which is the application given by AES OPGC Holding to the Foreign Investment Promotion Board, that AES was in business in India since 1998 in the form of foreign collaboration with Orrisa Power Generation Corporation Ltd (OPGCL) and was holding 49 % equity in OPGCL through its group companies AES (India) Private Limited and AES Mauritius, both subsidiaries of AES Corporation, USA. The shareholding pattern of OPGCL was: 1) AES Mauritius 32.75 %; 2) AES India 16.25 %; 3) Government of Orissa 51 %., OPGCL was engaged in power generation having a 2 × 210 MW plant, the 100 % power generated from which was sold to GRIDCO, a government‑owned company, at prices fixed under a 30‑year agreement valid till 2026. Therefore, before venturing into the Chhattisgarh power project, AES Corporation, USA was not new to India., During 2005, Sanjeev Kumar Aggarwal, accused No. 2, was an employee of AES India Private Ltd. On 04.08.2005, he signed an application given by AES India Private Ltd to the Government of Chhattisgarh for clearances for execution of a memorandum of understanding, as Director‑Business Development of AES India Private Ltd. He became a director of AES India Private Ltd later on 02.03.2006, as evident from the minutes of the Board of Directors meeting held on that date., The first document showing interest by AES Corporation, USA in the Chhattisgarh power project is a one‑pager (Exhibit D‑51/DW‑3) mentioning the project description, summary of investment from AES, project rationale and capital requirements, and stating that the probability of success of the project was low., The one‑pager is explained by Robert David Mill, Chartered Accountant working for AES Corporation since 1997. He was a member of the Independent Review Group in AES Corporation, USA in 2005, which provides independent review of new investment opportunities and is responsible for the Development Council. The Development Council comprises senior leadership of AES Corporation, including CEO Paul Hanrahan, CFO Victoria Harker, CLO Brian Miller, senior leaders of development teams from three business units across 45 countries, and functional heads of specialist groups in Arlington. The Council meets monthly to quarterly to review and decide on the pipeline of development projects., Robert David Mill also deposed that the Chhattisgarh Project was reviewed by the Development Council at each meeting from June 2005 onwards. At each meeting the project was unanimously supported, achieved progress on key milestones, received additional financial and human resources, and there was an expectation that AES would commence land acquisition., The one‑pager (Exhibit D‑51/DW‑3) in 2005 recorded that the Chhattisgarh Thermal project would cost US $450 million, with AES equity of US $150 million and debt of US $300 million. It mentioned that at that stage the plan was to obtain confirmation of coal availability from state‑owned mining companies and to procure a captive mine. The project status was noted as ‘Assess’. Srinivas Rao was named as Project Leader and Sanjeev Aggarwal as Project Staff with resource allocations of 0.2 and 0.5 respectively., This one‑pager shows that all facts for the Chhattisgarh power project were placed before the Development Council of AES Corporation, USA for its decision and that Sanjeev Aggarwal was merely shown as project staff who had to devote 50 % of his time to the project. All decisions were to be taken by the Development Council of AES Corporation, USA and Sanjeev Aggarwal had to follow directions of his employer, AES Corporation, USA, either directly or through its subsidiary AES (India) Pvt. Ltd., On 17.07.2005, Sanjeev Aggarwal of AES India sent an email to Maureen Lim, Chief Finance Officer of AES Transpower, Singapore (Exhibit D‑5/DW‑1), stating that there were plans to develop new projects in India, including Chhattisgarh thermal and wind power, and that for tax purposes it was advisable that new investments through Mauritius be made into a new company. He mentioned that auditors EY advised incorporating a special purpose vehicle (SPV) for applying for a coal linkage, that two individuals would be shareholders, and that incorporation expenses would be around INR 150,000 (≈US $35 K). The email was followed by several further emails seeking clarification, showing that Sanjeev Aggarwal could not take any decision as an individual but, as an employee of AES India Private Ltd, had to obtain orders from AES Corporation, USA before proceeding., In the application given by Sanjeev Aggarwal, Director (Business Development) of AES India to the Government of Chhattisgarh under Section 4(2) of the Chhattisgarh Audyogik Nivesh Protsahan Niyam, 2004 on 04.08.2005, it was mentioned that AES India proposed signing a memorandum of understanding with the State government, that the investment would be carried out through a Special Purpose Vehicle (SPV) in which AES (India) Private Limited would hold the majority of equity, and that the SPV was yet to be incorporated. The declaration was signed by Sanjeev Aggarwal. The letter made clear that the project would be carried out through a subsidiary of AES (India) Private Ltd, which is a subsidiary of AES Corporation, USA, and that the proposed directors of the SPV would be A. Srinivas Rao and Sanjeev Aggarwal, indicating that the directorship was under the control of AES India Private Ltd., Finally, on 22.02.2006, Sanjeev Aggarwal was given the go‑ahead by AES Corporation, USA to proceed immediately with the incorporation of the SPV (Exhibit P‑6/DW‑1). This shows that for incorporation of the SPV and for incurring expenses of Rs 1,50,000, Sanjeev Aggarwal acted as an employee of AES Corporation, USA and took prior permission from the parent company., The overarching presence of AES Corporation, USA in the Chhattisgarh power project is also evident from the fact that Paul Hanrahan, CEO of AES Corporation, USA, was present on 03.03.2006 at the signing of the memorandum of understanding with the Chhattisgarh government (Exhibit D‑6/DW‑1). The presence of the CEO of a Fortune 500 company demonstrates that the entire project was of AES Corporation, USA., A day before the signing of the memorandum of understanding between AES India and the State government of Chhattisgarh, Sanjeev Aggarwal, who was then an employee of AES India, was made a director in AES India (Exhibit P‑12, D‑42)., As permission of the Foreign Investment Promotion Board is required for foreign direct investment, an application was given to the Board by AES OPGC Holding, Mauritius to set up a wholly owned subsidiary in India to undertake a greenfield coal‑based power generation plant in Chhattisgarh and to undertake coal mining for captive consumption (Exhibit P‑15, D‑45). AES Corporation, USA sought permission for direct investment of up to US $370 million, revealing that it was AES Corporation, USA that intended to enter the power project in Chhattisgarh through AES India Private Ltd or its subsidiaries., The Board of Directors of AES India, in the meeting held on 30.05.2006 (Exhibit P‑37, D‑69), authorised Sanjeev Aggarwal and Soumendra Chandra Rout to incorporate a company in the name of M/s AES Chhattisgarh Power and Mining Co Private Ltd or any other name with the word AES, as approved by the Registrar of Companies, NCT of Delhi and Haryana. This shows that the two individuals had the authority of AES India to incorporate AES Chhattisgarh Energy Private Ltd, and that the control over the board of directors of the SPV rested with the employer company., AES India Holding Mauritius had to invest INR 50,000,000,000 in the new company and would own 99 % of its shares, with 1 % held by AES OPGC Holding, a sister company. The board meeting on 06.07.2006 noted that the proposed Indian company, AES Chhattisgarh Energy Private Ltd, would establish a greenfield coal‑fired power generation plant and that its shares would be held by Sanjeev Aggarwal and Soumendra Chandra Rout (Exhibit P‑17, D‑47). It was also noted that these shares would be transferred to AES India Holding Mauritius and AES OPGC Holding once all applications were cleared, indicating that the shareholding was controlled by the employer company and that the board of directors of AES Chhattisgarh Energy Private Ltd was controlled by AES Corporation, USA., During the minutes of the board of directors of AES (India) Private Ltd held on 07.07.2006 (Exhibit P‑37, D‑69), Sanjeev Aggarwal was appointed as authorised representative of the company to deal with various government departments and authorities for the upcoming thermal power project in Chhattisgarh and to obtain required permits and clearances. These minutes show that Sanjeev Aggarwal was acting on behalf of AES India Private Ltd and had no independent volition in the project., The board resolution passed by the board of directors of AES India Private Ltd on 15.09.2006, at item No. 8, resolved to accord consent to Sanjeev Aggarwal and Soumendra Chandra Rout for the formation of a new company for the special purpose of executing the memorandum of understanding with the State of Chhattisgarh. The two individuals were also authorised to carry out all necessary actions for the formation of the Special Purpose Vehicle (Exhibit P‑58, D‑92). This demonstrates that the SPV and its board of directors were under the control of AES India Private Ltd., Since Sanjeev Aggarwal and Soumendra Chandra Rout were not the driving force behind the incorporation of AES Chhattisgarh Energy Private Ltd and incorporated the company on the directions of AES India Private Ltd, the initial expenses for its incorporation, i.e., Rs 41,877, were incurred by AES India Private Ltd (Exhibit P‑20, D‑50). The accused persons claim that AES India paid Rs 1 lakh for incorporation (Exhibit P‑65, D‑102), but the fact that both individuals received Rs 51,500 each in their bank accounts when their shares were transferred to two Mauritius‑based companies leads the prosecution to argue that the initial payment cannot be considered. The salary credit analysis shows that the credit of Rs 51,500 cannot be said to be a deduction from salary, as the salary amounts differed on the relevant dates. Nevertheless, there is material on record to show that, independent of this transaction, AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation, USA.
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Queries were being raised to Sanjeev Aggarwal on behalf of AES Corporation, United States, to explain how chances of getting a coal mine allocation is being increased, Exhibit D-10/DW-1. In case allocation of coal mine was concerning AES Chhattisgarh Energy Private Ltd, only without anything to do with AES Corporation, United States, nobody would have asked Sanjeev Aggarwal, how the chances of the company getting the coal mine allocation are going to be increased by him. It is important to note that few days before Sanjeev Aggarwal applied for allocation of a coal block to the Ministry of Coal on 10.01.2007, the status of Chhattisgarh thermal project had changed from Assess to Pursue in the one‑pager that was put up before the Development Council of AES Corporation, United States on 05.01.2007, Exhibit D-11/DW-1. Now, Sanjeev Aggarwal was shown as Project Leader. Since the project was in low activity phase, Sanjeev Aggarwal had to devote 0.6 resource allocation on this project. This one‑pager as on 05.01.2007 under consideration of Development Council of AES Corporation, United States before application was given for allocation of coal block by Sanjeev Aggarwal is an important document showing keen involvement and control of AES Corporation, United States over the project, the same is reproduced in its entirety as under., After Foreign Investment Promotion Board approval was received in favour of AES OPGC and/or any other group affiliate entity of AES Corporation, United States to set up a wholly‑owned subsidiary in India to undertake a greenfield coal‑based power generation plant, Exhibit P-46 (Colly), D-78, Page 3033, PDF 9656‑9658, Soumendra Chandra Rout requested for transfer of shareholding in his name and shareholding of Sanjeev Aggarwal in AES Chhattisgarh Energy Private Ltd in favour of the two Mauritius companies, Exhibit D-24/DW-2. In case AES Chhattisgarh Energy Private Ltd was an independent entity and was not subsidiary of AES Corporation, United States, then it would have got no effect of Foreign Investment Promotion Board clearance in favour of AES Corporation, United States and would have felt no need to transfer its shareholding in favour of AES India Holdings Private Ltd and AES OPGC Holding, Mauritius. This request to transfer shareholding by these two individuals in AES Chhattisgarh Energy Private Ltd shows that both of them, the directors of the said company, were working under the control of AES Corporation, United States. Otherwise, why they would have desired to transfer their shareholdings after AES Corporation, United States got Foreign Investment Promotion Board approval. This request for transfer of shareholding was pursuant to the plans as per which on approval of Foreign Investment Promotion Board, huge foreign investment had to be made by the two Mauritius companies, subsidiaries of AES Corporation, United States. The request for transfer of shareholdings is evidence of control of AES Corporation, United States over board of directors of AES Chhattisgarh Energy Private Ltd., Within ten days of expressing their request for transfer of their shareholding in AES Chhattisgarh Energy Private Ltd, both Soumendra Chandra Rout and Sanjeev Aggarwal gave consent letters on 12.0.2007 for transfer of their shares in favour of the two Mauritius‑based companies, Exhibit P-43, D-75, Page 46, PDF 9497 (Soumendra Chandra Rout) and Exhibit P-43, D-75, Page 65, PDF 9516 (Sanjeev Aggarwal). This request was given within one month of applying for allocation of coal block to Ministry of Coal by Sanjeev Aggarwal and much before allocation of coal block by Ministry of Coal. The consent to transfer shares was at par and not at any premium., The next day, on 13.02.2007, AES Chhattisgarh Energy Private Ltd informed the Principal Secretary, Energy Department, Government of Chhattisgarh, Raipur that AES India Private Ltd has incorporated a special purpose vehicle in the name of AES Chhattisgarh Energy Private Ltd for development of the proposed project requesting that all future correspondences/communication be facilitated in the name of the said SPV, Exhibit P-58 (Colly), D-92, Page 2, PDF 9901. Why a company which is having a memorandum of understanding with State of Chhattisgarh for setting up a power plant of 1000 to 1200 MW capacity will write to the State government that it will not carry forward the memorandum of understanding, but the MOU will be carried forward by another company and why such a company will say that the other company is its SPV if they were not having holding company‑subsidiary company relationship between them?, The directors’ report of AES India for the year ending on 31.03.2007 mentions that a MOU with the Chhattisgarh government has been signed to set up 1000‑1200 MW plant and a SPV, AES Chhattisgarh Energy Private Ltd, has been set up for executing the said MOU, Exhibit P-25 (Colly), D-55, Page 246‑250, PDF 73617366. At this stage, the coal block was yet to be allocated in favour of AES Chhattisgarh Energy Private Ltd. It cannot be anybody’s case that in anticipation of allocation of a coal block in favour of AES Chhattisgarh Energy Private Ltd (which took place in November 2007), AES India Private Ltd falsely mentioned in its directors’ report that SPV by the name of AES Chhattisgarh Energy Private Ltd has been incorporated for executing MOU signed between State of Chhattisgarh and AES India Private Ltd. Rather, the directors’ report correctly mentioned AES Chhattisgarh Energy Private Ltd as SPV of AES India Private Ltd to carry out the MOU referred above. At the time of submitting audited balance sheet for the year ending on 31.03.2007 with the office of Registrar of Companies, AES India had also mentioned that AES Corporation, United States is the holding company of AES India and AES Chhattisgarh Energy Private Ltd is a fellow subsidiary of AES India, Exhibit P-25, D-55, Page 251‑274, PDF 7366‑7390. This will make both AES India as well as AES Chhattisgarh Energy Private Ltd subsidiaries of AES Corporation, United States. To make things further clear, it was mentioned in the directors’ report of AES Chhattisgarh Energy Private Ltd that AES India has signed a MOU with Chhattisgarh government to set up 1000‑1200 MW plant and AES Chhattisgarh Energy Private Ltd will be implementing this project as an affiliate of AES India Private Ltd, D56, Page 126, PDF 7569. Therefore, contemporaneously and unequivocally, it was mentioned in the directors’ reports of both the companies and audited balance sheet of AES India Private Ltd that the MOU that was executed between AES India Private Ltd and State of Chhattisgarh will be implemented by SPV/affiliate AES Chhattisgarh Energy Private Ltd. It is nobody’s case that AES Chhattisgarh Energy Private Ltd and AES India Private Limited had conspired together to falsely mention in their respective directors’ reports that former is SPV/affiliate of latter. In the spirit of section 309 (6) of the Companies Act, 1956, Sanjeev Kumar Aggarwal was not receiving any commission or remuneration from AES Chhattisgarh Energy Private Ltd because he was a director in AES India and was receiving salary from the said company, Exhibit P-19, D-49, Page 1‑7, PDF 68466852. In the balance sheet of AES Chhattisgarh Energy Private Ltd for the year ending on 31.03.2007, under the heading Managerial Remuneration, it was mentioned that the Directors have voluntarily waived their right to receive commission and remuneration during the year ended March 31, 2007. As was decided in the first meeting of the directors of AES India Holdings (Mauritius) held on 06.07.2006, D47, Page 1‑8, PDF 6810‑6817, Ex. P-17 (colly) that after receiving all the clearances, the shares of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout will be transferred in favour of the two Mauritius‑based companies, it was decided in the meeting of the board of directors of AES OPGC Holding held on 13.04.2007 that now approval of Government of India, Ministry of Finance has been received so the shares of these two individuals shall be acquired by AES OPGC Holding and AES India Holdings (Mauritius), Ex. P-43, D-75, Page 51‑52, PDF 9502‑9503. Similar minutes were also recorded by the board of directors of AES India Holdings (Mauritius) in its meeting held on 13.04.2007, Exhibit P-43 (Colly), D-75, Page 71‑72, PDF 9522‑9523. Pursuant to the minutes of the board of directors, both the companies gave their consent letters for transfer of 5000 equity shares of AES Chhattisgarh Energy Private Ltd from Sanjeev Kumar Aggarwal and Soumendra Chandra Rout on 20.04.2007, Exhibit P-43 (Colly), D-75, Page 66 and Page 47, PDF 9517 and PDF 9498. Since Sanjeev Kumar Aggarwal was only acting as employee of AES India Private Ltd, he, vide email dated 06.06.2007, had shown his concern to Soumendra Chandra Rout for the delay in the process of transfer of shares of AES Chhattisgarh Energy Private Ltd from him and Soumendra Chandra Rout to AES India Holdings (Mauritius) and AES OPGC Holding, Exhibit P-43/DW-2., On 21.06.2007, presentations were made before the screening committee by the applicant companies. For making presentations on behalf of AES Chhattisgarh Energy Private Ltd, Venu Nambiar who was in charge of AES USA’s Asia and Middle East operations as well as an officer/Vice President of AES Corporation, United States had also attended the screening committee meeting. Why the Vice President of AES Corporation, United States would have taken the pains to appear before the screening committee in case AES Corporation, United States had to gain nothing by allocation of coal block in favour of AES Chhattisgarh Energy Private Ltd. Much before transfer of shares of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout in AES Chhattisgarh Energy Private Ltd in favour of AES India Holdings (Mauritius) and AES OPGC Holding, AES India Holding (Mauritius) had remitted USD 290,000 INR equivalent 11,776,900 towards equity contribution on 28.06.2007, Exhibit P-43 (Colly), D-75, Page 6, PDF 9457. The transferor company transferred this amount before the shares of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were transferred in its favour because it had full control over both these individuals being employees of AES India Private Ltd. In case they were not under control of AES India Private Ltd, no prudent person would have transferred this amount in the company unless they had control over board of directors of the transferee company. Whereas the screening committee recommended allocation of a coal block in favour of AES Chhattisgarh Energy Private Ltd on 13.09.2007, Exhibit P-5/PW-1, D-13, Page 1‑8, PDF 1809‑1816, letter from Ministry of Coal to AES Chhattisgarh Energy Private Ltd conveying allocation of Sayang coal block with the approval of Prime Minister was issued on 06.11.2007, Exhibit P 27/PW-1, D-7, Page 13, PDF 1009, but the shares of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were transferred in the favour of AES India Holdings Mauritius and AES OPGC Holdings Mauritius on 15.11.2007 as completion of formalities took time, whereas the process to transfer the shares was initiated as back as 20.04.2007. It is already observed that even before the shares of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were transferred in favour of the two Mauritius‑based companies, an investment of Rs.1,17,76,900 was already made in AES Chhattisgarh Energy Private Ltd, which shows that the transfer of shares in favour of the two Mauritius‑based companies on 15.11.2007 was left to be only in the nature of a formality to be completed because the process for transfer was initiated much in advance., On examination of the material on record, Supreme Court of India is of the view that AES Corporation, United States through its subsidiary AES India Private Ltd was controlling the composition of board of directors of AES Chhattisgarh Energy Private Ltd. Sanjeev Kumar Aggarwal and Soumendra Chandra Rout could not have been appointed as directors of AES Chhattisgarh Energy Private Ltd without the authority of AES Corporation, United States/AES India Private Ltd. The directorship of AES Chhattisgarh Energy Private Ltd was held by Sanjeev Kumar Aggarwal and Soumendra Chandra Rout who were nominated by AES India Private Ltd, a subsidiary of AES Corporation, United States., Discussion of this point for determination will be complete only after discussing arguments of Central Bureau of Investigation also. Since admission is the best proof against a party, the most emphatic piece of evidence relied on by prosecution against the accused persons to submit that AES Chhattisgarh Energy Private Ltd is not subsidiary of AES Corporation, United States is that in Form 23AC of AES Chhattisgarh Energy Private Ltd for the year ending on 31.03.2007, Ex. P-84/PW-8, D-56, Page 120, PDF 7563, the company had itself informed the Registrar of Companies that it is not a subsidiary company of any other holding company. The submission on behalf of prosecution is that there can be no better proof than own admission by accused No. 1 company that it is not a subsidiary of any other holding company., However, the admissions can also be explained., The directors’ report attached with the audited balance sheet and filed with Form 23AC of AES Chhattisgarh Energy Private Ltd, PDF 7569, shows that the said company is affiliate of AES India Private Ltd and will be implementing the project in terms of Memorandum of Understanding with Government of Chhattisgarh signed by AES India Private Ltd., While examining the documents submitted by Accused No. 1 company with Registrar of Companies, this directors’ report cannot be ignored. Whereas in Form 23AC submitted on behalf of Accused No. 1 company, it mentioned that it is not a subsidiary of any other holding company, but in the directors’ report, it was made clear that accused No. 1 company is affiliate of AES India Private Ltd and will be implementing the project in terms of memorandum of understanding with Government of Chhattisgarh. It shows that while submitting the documents by accused No. 1 company with Registrar of Companies, it was made known and clear that AES Chhattisgarh Energy Private Ltd is the affiliate and therefore subsidiary of AES India Private Ltd and it will be implementing the memorandum of understanding with Government of Chhattisgarh signed by AES India Private Ltd., It is obvious that it was a blatant mistake on the part of AES Chhattisgarh Energy Private Ltd to mention in its Form 23AC that it is not a subsidiary of any holding company whereas it was subsidiary of AES Corporation, United States. This mistake was committed not only while submitting Form 23AC of Accused No. 1 company but was also committed while submitting Form 23AC for AES India Private Ltd for the year ending on 31.03.2007 as well. In Form 23AC of AES India Private Ltd also, it was mentioned that the said company is not a subsidiary of any other company. However, it is amply clear from the records that AES India Private Ltd was a subsidiary of AES Corporation, United States, but still in Form 23AC of AES India Private Ltd, it was mentioned that it is not a subsidiary of any other company. The way mistake was made while furnishing Form 23AC of AES India Private Ltd same mistake was made while furnishing Form 23AC of AES Chhattisgarh Energy Private Ltd., There is a dispute as to who is answerable for furnishing Form 23AC where inadvertent mistake was made in mentioning that AES Chhattisgarh Energy Private Ltd is not a subsidiary of any other company. According to prosecution, since this Form 23AC is digitally signed by Soumendra Chandra Rout, the argument is that the same was filed by the company through its Director. The argument of the accused is that the company Secretary Nesar Ahmad was having the digital signatures of Soumendra Chandra Rout and he had submitted this Form with the Registrar of Companies without any intimation to the company or any of its directors. In the opinion of Supreme Court of India, since this Form 23AC is digitally signed by Soumendra Chandra Rout there is a presumption that the same was filed with the specific authority of Soumendra Chandra Rout. The presumption was rebuttable. The argument of the accused persons is that the digital signatures were available with their Company Secretary Nesar Ahmad and he had filed this form, without any information to the company. However, when Nesar Ahmad was in witness box, he was not given a suggestion that the digital signatures of Soumendra Chandra Rout were in his possession and he used them for filing Form 23AC without information of the company or without information of the directors Soumendra Chandra Rout. Therefore, Supreme Court of India is of the opinion that information in Form 23AC that AES Chhattisgarh Energy Private Ltd is not a subsidiary company was under the authority of Soumendra Chandra Rout. However, nothing turns out on that because this is merely a mistake and the material on record has shown that AES Chhattisgarh Energy Private Ltd was a subsidiary company of AES India Private Ltd and through that the subsidiary company of AES Corporation, United States. Even if the arguments of the accused persons are accepted that Form 23AC was submitted by the office of Nesar Ahmad, still they cannot be absolved of their responsibility in furnishing this wrong Form 23AC because the directors had the knowledge that they have to submit Form 23AC with the office of Registrar of Companies. Being the directors and shareholders of the company, they should have checked with the office of Nesar Ahmad, the documents that were submitted with the office of Registrar of Companies on behalf of AES Chhattisgarh Energy Private Ltd. However, Supreme Court of India has found from the evidence, documentary and oral, brought on record by the accused persons during their defence evidence that it can be satisfactorily concluded that AES Chhattisgarh Energy Private Ltd that was a subsidiary of AES Corporation, United States because the composition of board of directors of AES Chhattisgarh Energy Private Ltd was under the control of AES Corporation, United States., Another emphatic argument on behalf of prosecution is that since the provisions of section 187C of the Companies Act, 1956 were neither complied with by Sanjeev Kumar Aggarwal/Soumendra Chandra Rout nor by AES Corporation, United States nor by AES Chhattisgarh Energy Private Ltd shows that AES Corporation, United States was not the beneficial owner of shares held in the name of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout., In the opinion of Supreme Court of India, the non‑compliance of Section 187C of the Companies Act, 1956 by all the three concerned parties referred above can be dealt with in two ways. One, the mere presence of this provision in the statute shows that there would be many instances where a person not holding beneficial interest in shares may not have made a declaration to the company specifying the name and other particulars of the person who was holding the beneficial interest in the shares of the company. There would be many instances where a person holding beneficial interest in shares may not have made a declaration to the company specifying the nature of his interest, particulars of the person in whose name the shares stand registered in the books of the company. There would be many instances where a company may have failed to make a declaration in its register of members and may have failed to file a return in the prescribed form with the registrar with regard to such declaration. That is why the legislature deemed it appropriate to incorporate Section 187C in the Companies Act, 1956. It shows that the mere fact that the provisions of Section 187C of the Companies Act, 1956 were not complied with, does not mean nobody could be holding beneficial interest in shares of a company for some other person. The purpose of this provision is to ensure the compliance by reporting by concerned parties to the Registrar of Companies who is the beneficial owner of shares of a company. This provision does not say that in case the same is not complied with the beneficial owner will lose the benefit of ownership of those shares and the person who was holding the shares for the benefit of some other person will become the owner of those shares. It does not result the transaction into a void transaction., The second view can be that Section 187C would be relevant and applicable in the prosecutions for violation of Section 187C of the Companies Act, 1956 and not in prosecution under Section 420 of the Indian Penal Code of the accused as in the case in hand., Another strongly relied upon evidence by the prosecution is Form 10‑K (Annual Report) of AES Corporation, United States for the year ending on 31.12.2006. In this Annual Report, the holding company i.e., AES Corporation, United States itself did not name AES Chhattisgarh Energy Private Ltd as one of its subsidiaries. It was only in the Form 10‑K for the year ending on 31.12.2007 that AES Chhattisgarh Energy Private Ltd was named as one of the subsidiaries of AES Corporation, United States. According to prosecution, it shows that on 10.01.2007, when application was given by Sanjeev Kumar Aggarwal for allocation of coal block in favour of AES Chhattisgarh Energy Private Ltd, the said company was not a subsidiary of AES Corporation, United States. The holding‑subsidiary relationship between these two companies came into existence only on 15.11.2007 when the shares of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were transferred in favour of the two Mauritius‑based companies. The argument is further supplemented with the allegation that as per the application of AES Chhattisgarh Energy Private Ltd, Rs. 1.5 Crores were already invested in the said company and in the feedback form, it is mentioned that the investment is Rs. 3 crores. The case of prosecution is that despite such huge investment, AES Corporation, United States had chosen not to claim AES Chhattisgarh Energy Private Ltd as one of its subsidiary companies., The two explanations of the accused in this regard are that the Annual Report itself mentions that the list of subsidiaries omits certain subsidiaries which are not significant subsidiaries. It is the submission of the accused that AES Chhattisgarh Energy Private Ltd was not a significant subsidiary for AES Corporation, United States till the ending of financial year on 31.12.2006 and that is why it was not mentioned as one of its subsidiaries. The accused have relied on definition of significant subsidiary provided in the Code of Federal Regulations, Part 270 (k) which is as follows: (k) Significant subsidiary. The term significant subsidiary means a subsidiary including its subsidiaries, which meets any of the following conditions, using amounts determined under United States Generally Accepted Accounting Principles and, if applicable, Section 2 (a)(41) of the Act: (1) Investment test: The value of the registrant’s and its other subsidiaries’ investments in and advances to the tested subsidiary exceed 10 % of the value of the total investments of the registrant and its subsidiaries consolidated as of the end of the most recently completed fiscal year; or (2) Income test: The absolute value of the sum of combined investment income from dividends, interest and other income, the net unrealised gains and losses on investments and the net change in unrealised gains and losses on investments from the tested subsidiary for the most recently completed fiscal year exceeds: (i) 80 % of the absolute value of the change in the net assets resulting from operations of the registrant and its subsidiaries consolidated for the most recently completed fiscal year; or (ii) 10 % of the absolute value of the change in net assets resulting from operations of the registrant and its subsidiaries consolidated for the most recently completed fiscal year and the investment test (k)(1) condition exceeds 5 %. However, if the absolute value of the change in net assets resulting from operations of the registrant and its subsidiaries consolidated is at least 10 % lower than the average of the absolute values of such amounts for each of its last five fiscal years, then the registrant may compute both conditions of the income test using the average of the absolute values of such amounts for the registrant and its subsidiaries consolidated for each of its last five fiscal years., It is therefore submitted that the investment of Rs. 1.5 Crores was not meeting the investment test referred above and therefore AES Chhattisgarh Energy Private Ltd was not named as a subsidiary of AES Corporation, United States in the annual report for the year ending on 31.12.2006. As against proposed investment of US $300 million, investment of Rs. 1.5 Crores was insignificant investment for AES Corporation, United States., The reasons given by the accused persons for not including the name of AES Chhattisgarh Energy Private Ltd as one of the subsidiary companies of AES Corporation United States in the annual report ending as on 31.12.2007 are acceptable., There is another equally serious incriminating evidence against the accused persons. In the Additional Attachments to Form 23AC, PDF 7584, pertaining to Balance Sheet of AES Chhattisgarh Energy Private Ltd as at 31.03.2008, it is recorded that there is change in ownership of the company. These minutes are signed by Sanjeev Kumar Aggarwal as Managing Director and Soumendra Chandra Rout as director of AES Chhattisgarh Energy Private Ltd on 25.08.2008. If the beneficial owner of the shares of AES Chhattisgarh Energy Private Ltd was AES Corporation, United States and not Sanjeev Kumar Aggarwal and Soumendra Chandra Rout, it should not have been mentioned that there is a change in the ownership. However, considering the evidence dating from the year 2005 onwards which is noted in earlier paragraphs in detail and applying the test of preponderance of probability, Supreme Court of India is of the opinion that there was gross negligence in the way financial documents of the company AES Chhattisgarh Energy Private Ltd were prepared and submitted before Registrar of Companies. The glaring example of careless manner with which these documents were furnished with the Registrar of Companies is Form 23AC of AES India Private Ltd for the year ending on 31.03.2007 where it was mentioned that the said company is not a subsidiary of any other company. This is in spite of the fact that 1,122,440 shares of the said company were held by AES Corporation, United States and 100 shares were held by AES India, LLC United States. Sanjeev Kumar Aggarwal has blamed Nesar Ahmad for mentioning in Form 23AC that AES Chhattisgarh Energy Private Ltd was not a subsidiary of any other company. How can he explain signing of the Directors’ Report for the year ending on 31.03.2008 where under his signatures (and not under his digital signatures), he mentioned that during the year there had been a change in the ownership of the company. Although these financial documents are prepared with the assistance of Company Secretary and Chartered Accountants, the signatory to these documents should have shown some attention before signing these documents. On the one hand, AES Chhattisgarh Energy Private Ltd had its own financial documents denying that it is a subsidiary company of any other company and denying that it has any holding company and on the other hand when the prosecution during investigation sought the information to justify that AES Chhattisgarh Energy Private Ltd was a 100 % subsidiary of AES Corporation, United States documents were provided half‑heartedly. The approach of the accused was of utter complacency. Shri AP Singh, learned DLA for Central Bureau of Investigation has rightly pointed out that when they were given an opportunity during investigation, the accused did not share with Central Bureau of Investigation the emails and the supporting documents that were exchanged through those emails. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. These emails which are brought on record now during defence evidence have shown that Sanjeev Kumar Aggarwal was following persons in senior positions in AES Corporation, United States for seeking their permission to incorporate SPV for carrying out MOU between AES India Private Ltd and State of Chhattisgarh. He was seeking their permission to spend a sum of Rs.1,50,000 for incorporating the said company. He initiated steps for incorporating the company only receiving green signal from AES Corporation, United States. Important documents like One‑Pagers that were deliberated upon by the Development Council of AES Corporation, United States since 2005 were never shared with Central Bureau of Investigation. It was never explained during investigation to the Central Bureau of Investigation the procedure that was being followed by the Development Council of AES Corporation, United States and the stages a project undergoes during discussions in the Development Council i.e., idea, assess, pursue and execute. The examination of all the material available on record, including the material brought on record by the accused during defence evidence, now, any prudent person would be of the opinion that the composition of Board of Directors of AES Chhattisgarh Energy Private Ltd was under the control of AES Corporation, United States, through its subsidiary, AES India Private Ltd. However, it is also right that but for the defence evidence now brought on record and considering the self‑damaging documents of AES Chhattisgarh Energy Private Ltd submitted with the Registrar of Companies any prudent person would have come to a conclusion that AES Chhattisgarh Energy Private Ltd was not a subsidiary of AES Corporation, United States. Be that as it may. The accused have suffered this trial for their own mistakes in furnishing incorrect information with the Registrar of Companies. However, during the trial, fortunately they have produced all the evidence available with them to show that AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation, United States. They have shown that Sanjeev Kumar Aggarwal and Soumendra Chandra Rout could not have been appointed directors of AES Chhattisgarh Energy Private Ltd, without the exercise of power in their favour by AES Corporation United States through its subsidiary, AES India Private Ltd.
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They have shown that they were nominated as directors of AES Chhattisgarh Energy Private Ltd as they were authorised by AES India Private Ltd to incorporate the company in question and they were also directed that Sanjeev Kumar Aggarwal and Soumendra Chandra Rout shall own all the shareholding of the said company till Foreign Investment Promotion Board clearance. Thereafter, they transferred their shareholding, as per earlier decisions, in favour of two Mauritius based companies., Having answered this point for determination in favour of the accused persons, the discussion on the second point of determination, whether AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation, United States according to laws of United States, is only of academic value now. However, the same is equally important and shall be decided in the following paragraphs in this judgment., The second point for determination in this case is whether as on 10.01.2007 AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation, United States according to the laws of United States., The accused persons have relied on the definition of subsidiary given in section 220 (2) of the Delaware General Corporation Law in support of their arguments. The definition is: Subsidiary means any entity directly or indirectly owned, in whole or in part, by the Corporation of which the stockholder is a stockholder and over the affairs of which the Corporation directly or indirectly exercises control and includes, without limitation, corporations, partnerships, limited partnerships, limited liability partnerships, limited liability companies, statutory trusts and/or joint ventures., For control reliance is placed on Section 203(c)(4) of the Delaware General Corporation Law which defines control as follows: Control, including the terms controlling, controlled by and under common control with, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract or otherwise. A person who is the owner of 20 per cent or more of the outstanding voting stock of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary; Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this section, as an agent, bank, broker, nominee, custodian or a trustee for one or more owners who do not individually or as a group have control of such entity., The accused have also relied on Code of Federal Regulations, Section 270, which defines subsidiary as an affiliated person who is controlled by the specific person, directly or indirectly, through one or more intermediaries., Reliance is also placed on the definition of parent in section 270.8(b)-2(h) which states: A parent of a specified person is an affiliated person who controls the specified person directly or indirectly through one or more intermediaries., Reliance is also placed on the definition of affiliate given in Section 230.501, which is defined as: An affiliate of, or person affiliated with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified., The submissions of the accused are that Sanjeev Kumar Aggarwal was an employee of AES India, a wholly owned subsidiary of AES United States. He was appointed a Director of AES Chhattisgarh Energy Private Ltd on November 16, 2006, at the time of its incorporation at the behest of AES India. AES Chhattisgarh Energy Private Ltd was formed and operated for the sole purpose of furthering the interests of AES United States. Any and all economic gains generated by the company were for the benefit of AES United States. The registered shareholders, Sanjeev Kumar Aggarwal and Soumendra Chandra Rout did not stand to benefit personally in any way from their positions as registered owners of the company's stock. Their status as registered owners of shares was a result of their positions as employees of AES. Any and all actions taken by them on behalf of AES Chhattisgarh Energy Private Ltd were for the benefit of its ultimate shareholder, AES Corporation United States. The incorporation expenses for AES Chhattisgarh Energy Private Ltd were paid by AES India. The transfer of shares of AES Chhattisgarh Energy Private Ltd registered in the name of Sanjeev Kumar Aggarwal and Soumendra Chandra Rout to AES India Mauritius and AES OPGC Holdings (Mauritius) (two wholly owned subsidiaries of AES Corporation) was done at the behest of AES Corporation United States, and for its benefit. AES Chhattisgarh Energy Private Ltd was formed by AES and operated by agents of AES. These agents were subject to the control of AES, and acted under its direction at all times. The agents were drawing salary from AES India Private Limited. Since AES Chhattisgarh Energy Private Ltd was controlled by AES India and AES United States, it was a subsidiary of both of these companies., It is the submission of the accused persons that all the shares of AES Chhattisgarh Energy Private Ltd were beneficially owned by AES Corporation United States, and therefore, AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation United States. The accused have relied on Delaware General Corporation Law, Section 203(c)(9), which defines the term owner when used with respect to any stock as a person or corporation who beneficially owns such stock, directly or indirectly. Reliance is also placed on section 262(a) of the Delaware General Corporation Law which defines a beneficial owner as a person or corporation who is the beneficial owner of shares of stock held either in voting trust or by a nominee on behalf of such person. It is the submission of the accused that Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were nominees on behalf of AES. They were holding the shares of AES Chhattisgarh Energy Private Ltd for the benefit of AES Corporation United States, which was the beneficial owner of the shares. It is their submission that Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were merely the record holder and AES Corporation United States was the actual owner of the shares., Reliance is also placed on United States Securities and Exchange Commission Securities Act Rule 13d‑3(a) which defines a beneficial owner as any person or corporation who directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has all shares: (1) voting power (including the power to vote, or to direct the voting of, such security) and/or, (2) investment power (including the power to dispose, or to direct the disposition of, such security)., The accused have submitted that during 16 November 2006 to 15 November 2007, Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were the registered owners of the shares of AES Chhattisgarh Energy Private Ltd. This registered ownership was directly for the benefit of AES group of companies. Therefore, AES Corporation United States was the beneficial owner of the shares of AES Chhattisgarh Energy Private Ltd during the period when Sanjeev Kumar Aggarwal and Soumendra Chandra Rout were the registered owners of those shares and AES Corporation United States was the true ultimate owner of the shares., Reliance is also placed on Section 220 of the Delaware General Corporation Law which defines shareholder as being either a holder of record of stock in a stock corporation, or a person who is the beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person. It is the submission of the accused that according to this provision of Delaware General Corporation Law, AES Corporation United States owned 100 per cent of the shares of AES Chhattisgarh Energy Private Ltd by virtue of its beneficial ownership of such shares. The submission of the accused is that AES Corporation United States was the beneficial owner of the shares, AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation United States from 16 November 2006 to 15 November 2007, despite the fact that AES Corporation United States was not the registered owner during that period. As the beneficial owner, AES Corporation United States was the true owner of the AES Chhattisgarh Energy Private Ltd shares and AES Corporation United States and AES India Private Ltd were the parent companies of AES Chhattisgarh Energy Private Ltd. The accused have submitted that AES Chhattisgarh Energy Private Ltd was a subsidiary of AES Corporation United States because it was directly controlled by it and it was indirectly owned by AES Corporation United States., The accused have relied on evidence of Professor Jonathan Macey, DW‑5, who has stated that under United States corporate practice the name of beneficial owner is never mentioned in the registry of shares in the initial incorporation documents and there was no requirement under Delaware law or United States law that the name of beneficial owner be mentioned in any filing or disclosure. He stated that there is a significant difference in the laws in United States and India in as much as unlike section 187C of the Companies Act, 1956, in United States, no such declaration is required to be filed in the company or any such return with the Registrar of Companies. At the relevant time, it was perfectly legal for the beneficial owner to remain anonymous under United States law., The accused have mainly relied on Delaware General Corporation Law, Code of Federal Regulations and the evidence of Professor Jonathan Macey, DW‑5 as an expert on corporate law applicable., This evidence was led by the accused persons because if they are able to show that in United States, AES Corporation United States and AES Chhattisgarh Energy Private Ltd were having the relationship of holding‑subsidiary companies, they would be treated in the same relationship in India also whether they are holding‑subsidiary companies as per Companies Act, 1956 or not., Supreme Court of India finds provisions of Section 4(6) of the Companies Act, 1956 are clearly made out in favour of the accused persons. The reason for the same is that whereas in India there is a requirement in the form of section 187C of the Companies Act, 1956 to report to the registrar of companies who is the beneficial owner of the companies but in United States, the beneficial owner can maintain his anonymity and can hold the shares through record holder of shares. There is no provision for informing any authority who is the real or beneficial owner of the shares. Supreme Court of India has noted in detail while deciding the first point for determination in this case, the evidence which shows that the composition of the Board of Directors of AES Chhattisgarh Energy Private Ltd was under the control of AES Corporation United States, through its subsidiary company AES India Private Ltd. That discussion is not required to be repeated again. So far as Section 4(6) of the Companies Act, 1956 is concerned, Supreme Court of India is of the opinion that the accused have shown that AES Chhattisgarh Energy Private Ltd was being controlled by AES Corporation United States and AES Corporation United States was the beneficial owner of the shares of AES Chhattisgarh Energy Private Ltd as they were held by Sanjeev Kumar Aggarwal and Soumendra Chandra Rout who were record owners of the shares for the benefit of AES Corporation United States. Therefore, according to laws of United States, AES Corporation United States was the holding company and AES Chhattisgarh Energy Private Ltd was its subsidiary company and they would have the same relationship in India also in view of Section 4(6) of the Companies Act, 1956., Therefore, the second point for determination is also answered in favour of the accused persons holding that AES Corporation United States was a holding company of AES Chhattisgarh Energy Private Ltd according to laws of United States and by virtue of Section 4(6) of the Companies Act, 1956 AES Chhattisgarh Energy Private Ltd will be treated as the subsidiary company of AES Corporation., Answer to the charge framed against the accused persons: Since Supreme Court of India has held that AES Chhattisgarh Energy Private Ltd was the hundred percent subsidiary of AES Corporation United States the charges framed against the accused persons are not proved. It is not proved that the accused had cheated Ministry of Coal for allocation of Sayang Coal Block in favour of AES Chhattisgarh Energy Private Ltd. There was no misrepresentation when AES Chhattisgarh Energy Private Ltd mentioned in its application that it was 100 per cent subsidiary of AES Corporation United States. Both the accused are therefore acquitted of all the charges framed against them, that is, under section 420 of the Indian Penal Code and under section 120B of the Indian Penal Code read with section 420 of the Indian Penal Code., Conclusion: The accused are acquitted. Announced in open Supreme Court of India.
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Through: Mr. Maninder Singh, Senior Advocate with Mr. Dinhar Takiar, Ms. Simran Chaudhary and Mr. Harsh Vashisht and Ms. Isha Khanna, Advocates. Versus Through: Mr. Mukesh Kumar, Additional Public Prosecutor for the State with Inspector Virendra Pakhare. The petitioner files the present petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR No. 475/2018 dated 24-08-2018 registered under Sections 201, 204, 465, 466, 471, 506, 202, 217, 279, 280, 120B of the Indian Penal Code, 1860 and Section 11 of the Aircraft Act, 1934 at the Police Station IGI Airport, and the chargesheet in Criminal Case No. 6564/2020 under Sections 465, 466, 468, 471 IPC and Section 11 of the Aircraft Act pending before the Additional Chief Metropolitan Magistrate, Patiala House Courts, Delhi., As per the FIR, the petitioner, a pilot with Air India, was to operate a flight from Delhi to Bangalore on 19-01-2017, before which he missed the mandatory pre-flight breath analyzer test. Upon reaching Bangalore, the petitioner was telephonically informed that he could take the breath analyzer test, which he missed in Delhi, in Bangalore as well. The petitioner, without undergoing the breath analyzer test in Bangalore, again operated a flight from Bangalore to Delhi., Upon reaching Delhi, instead of reporting for the post-flight breath analyzer test, the petitioner went to the Pre-flight Medical Examination Room and made a false entry in the Pre-flight Medical Examination Register for the flight he operated from New Delhi to Bangalore. The complainant lodged a complaint with the Director General of Civil Aviation, who by order dated 15-02-2017 suspended the petitioner’s Air Transport Pilot Licence for a period of three months with effect from 07-02-2017., During the investigation by the Director General of Civil Aviation, Dr. Nitin Seth, the on-duty doctor in the Pre-flight Medical Examination Room, stated that the petitioner had manipulated the record in the register after operating the flight to New Delhi. The petitioner, upon learning that Dr. Seth had deposed against him, made threats and intimidated him to withdraw his statement. A complaint of the threats was made to the Director General of Civil Aviation, but no action was taken., Aggrieved by the order dated 15-02-2017, wherein the Director General of Civil Aviation did not take cognizance of the threat complaint, the Indian Commercial Pilot Association, being the complainant, preferred a writ petition before the Delhi High Court vide WP (Civil) No. 3231/2017 titled Indian Commercial Pilots Association versus Director General of Civil Aviation, seeking a writ of mandamus directing the Director General of Civil Aviation and Air India to take action against the petitioner., Learned senior counsel for the petitioner submits that the Disciplinary Authority of Air India filed a chargesheet dated 13-02-2019 against the petitioner, alleging acts of forgery and misconduct, and the petitioner filed a reply dated 01-05-2019. The Chairman of Air India, by order dated 10-02-2020, found the allegations of forgery unsubstantiated and closed the disciplinary case. The learned senior counsel relies on Ashoo Surendranath Tewari versus The Deputy Superintendent of Police, EOW, CBI & Another (2020) 9 SCC 636, Johnson Jacob versus State 2022 SCC Online Delhi 1864 and Keshav versus State of Maharashtra 2022 SCC Online Bombay 1314., The learned senior counsel further submits that even otherwise the charge of forgery is not well-founded because the petitioner entered his name, staff number, time of reporting, etc., leaving only the fields of Breath Analyzer reading, time and signature of the medical officer blank, as he had not undergone the test. Entering his personal details cannot be said to constitute a false document; therefore, no offence of forgery is made out. Reliance is placed on Mohammed Ibrahim and Others versus State of Bihar and Another (2009) 8 SCC., The learned Additional Public Prosecutor for the State opposing the petition submits that, disregarding due procedure of law with intent to benefit, a forged entry was made. He further submits that the petitioner had ample opportunity to undergo the Breath Analyzer test on return from Bangalore, but flouting the express regulations, he did not follow the procedure., The present case is one where, admittedly, under similar facts the petitioner has already been exonerated by the Chairman of Air India by order dated 10-02-2020, categorically recording that the allegations of forgery were unsubstantiated and the disciplinary case was closed. The Court notes that the petitioner has already been punished twice by the Director General of Civil Aviation and that the demotion from Director (Operations) to Executive Director has also been imposed, which constitutes a substantial penalty. In the opinion of this Court, once Air India itself has closed the disciplinary proceedings after examining the relevant records and finding no merit, there is little remaining for the FIR to proceed against the petitioner involving similar offences., It is well settled that there is no bar to disciplinary proceedings and criminal prosecution continuing together, and the outcome of the disciplinary proceedings does not affect the pendency or outcome of the criminal prosecution. However, where exoneration is on merits and the allegation has been conclusively found unsustainable, there is no reason or purpose for the criminal prosecution on the same set of facts. The Supreme Court in Ashoo Surendranath Tewari (supra) held that (i) adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) a decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) the two proceedings are independent; (iv) the finding in adjudication is not binding on criminal prosecution; (v) adjudication by the Enforcement Directorate is not prosecution by a competent court; (vi) if exoneration in adjudication is on technical grounds, prosecution may continue; and (vii) if exoneration is on merits, criminal prosecution on the same facts cannot continue, the underlying principle being the higher standard of proof in criminal cases., The ratio from the above decisions can be summarised as: the yardstick is whether the allegation in both proceedings is identical and whether the exoneration in adjudication is on merits. If on merit there is no contravention of the provisions of the Act, the trial would be an abuse of the process of the court., The coordinate Bench of this Court in Johnson Jacob versus State 2022 SCC Online Delhi 1864 has also followed Ashoo Surendranath Tewari (supra)., In view of the foregoing, the continuance of the FIR under the present circumstances would cause the petitioner to undergo the ordeal twice for the same offence. The petitioner cannot be subjected to double jeopardy for the same offence once he has been given a clean chit on merits in the disciplinary proceedings., On examination of the factual matrix, this Court finds that the offence of forgery, as alleged by the respondent, is not made out against the petitioner because the essential element of creating a false document with intent to cause damage or injury is absent. The petitioner merely filled in his personal particulars, leaving no scope for causing any damage or injury. Reliance is placed on State of Haryana versus Bhajan Lal 1991 SCC (Criminal) where the Supreme Court outlined categories of cases where the power under Section 482 of the Code of Criminal Procedure may be exercised to prevent abuse of process or to secure the ends of justice., Given the totality of the facts and circumstances, this Court is of the opinion that the allegations against the petitioner are wholly insufficient to make out a case, let alone to keep the FIR alive. Moreover, in view of the prevailing facts and the legal position discussed, the continuation of the criminal proceedings emanating from the FIR would result in unwarranted injustice., Although the power to quash an FIR under Section 482 of the Code of Criminal Procedure is to be used sparingly, in situations like the present where there is hardly any ground leading to conviction, the Court is well within its right to quash the FIR. Accordingly, FIR No. 475/2018 dated 24-08-2018 registered under Sections 201, 204, 465, 466, 471, 506, 202, 217, 279, 280, 120B IPC and Section 11 Aircraft Act at Police Station IGI Airport, and the chargesheet in Criminal Case No. 6564/2020 under Sections 465, 466, 468, 471 IPC and Section 11 Aircraft Act pending before the Additional Chief Metropolitan Magistrate, Patiala House Courts, Delhi, and all other proceedings emanating therefrom are quashed., The petition along with the pending application is disposed of.
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Dated this the 24th day of November, 2023. The petitioners seek directions to exclude their property from the category of Park and Open space as stipulated in the Structural Plan/Master Plan for Kottayam. They also seek a direction to accept their applications for building permits and to grant permissions to construct buildings without reference to the Master Plan., The petitioners are the owners of an extent of 137.86 ares and another 176.52 ares of land in Block No. 18 of Muttambalam Village, Kottayam. They allege that although the total area of 314.38 ares is earmarked as Park and Open Space in the Master Plan for Kottayam, which was sanctioned on 14 May 2020, the Municipality ought to have acquired the land for establishing the said park. Despite the lapse of two years from the date the Master Plan came into operation, the Municipality failed to take any steps to acquire the property. In such a situation, the petitioners issued purchase notices under section 67(1) of the Kerala Town and Country Planning Act, 2016. Though the notices were served on the respondents on 02 December 2022, there has been no response and therefore the statutory scheme contemplated under the said provision will apply. The petitioners also allege that their applications for building permits will have to be considered without regard to the Master Plan., The respondents contend that the property was included in the Master Plan and is earmarked for Park and Open Space and that no construction can be permitted. They state that if the petitioners have to carry out constructions, they must obtain approval from the Chief Town Planner or the District Town Planner and that in the instant case, no such approval has been obtained. The Municipality alleges that the notice produced in the writ petition is not a purchase notice prescribed under the Act. It was pointed out that, in the absence of a purchase notice issued in the prescribed form, as contemplated under the statute, the Municipality has no obligation to consider such a notice. It was also submitted that the application for building permit submitted by the petitioners was dismissed on 11 August 2022 and that the same has not been challenged., The Kerala High Court heard Sri V V Asokan, learned Senior Counsel duly instructed by Sri Anand Geo on behalf of the petitioners, as well as Sri C S Manilal, the learned Standing Counsel for the Municipality, apart from Smt K Amminikutty, the learned Senior Government Pleader., It is admitted that the petitioners' properties have been earmarked as Park and Open Space as per the Master Plan. The scheme envisaged under the Master Plan can be implemented only by acquiring those properties. Thus, the petitioners' properties are designated for compulsory acquisition under the Master Plan. Concededly, the Master Plan was notified by the Government on 14 May 2020. Therefore, steps for acquisition of the property ought to have been taken within two years from the date of coming into operation of the Master Plan. No such steps have been initiated., In the decision in P B Pradeep Kumar and Others v. Maradu Municipality and Others (2022 (3) Kerala High Court 253), a Division Bench of this Court, after elaborately considering various decisions, held that whenever a property is earmarked for acquisition for any purpose in any structural plan or Detailed Town Planning Scheme, the property has to be seen as a property designated for compulsory acquisition. Reading together the provisions of section 67 and section 50, necessary action will have to be taken if the Government or the Municipal Corporation is not intending to acquire the property on receipt of notice under section 67 of the Kerala Town and Country Planning Act, 2016. If such an interpretation is not provided to section 67, then the owner of a property designated in any Master Plan or Town Planning Scheme will not be in a position to develop the property to his advantage. The Kerala High Court observed that a notice was issued under section 67 of the Act by the appellants, which was forwarded by the Secretary of the Maradu Municipality to the State Government. However, the State Government declined acquisition on the ground that section 67 would not come into play, thus coercing the Government to acquire the property. Therefore, on an analysis of the legal and factual circumstances, it is clear that the modalities contained under section 67 of the Act are completed and therefore, the Secretary of the Municipality is liable to consider the building permit application submitted by the appellants in accordance with the provisions of the Kerala Municipality Act, 1994 and the Kerala Municipality Building Rules, 2019, which are in force now., In the instant case, on noticing that steps have not been initiated for acquiring the property set apart as a park and open space, the petitioners issued a notice purporting to be under section 67(1) of the Act. Though the statutory provision requires that the purchase notice be issued in the manner as may be prescribed, a format for notice has not been prescribed., Two rules have been framed, known as the Kerala Town and Country Planning Detailed Town Planning Scheme Formulation Rules, 2021, which translates to the Kerala Town and Country Planning (Formulation of Master Plan and Grant of Permission) Rules, 2021. However, no form has been prescribed for purchase notice in both the above Rules., In fact, the Rules are framed only in Malayalam language and not in English. The drafters of the Rules have lost sight of the various requirements of the statute and even the Constitution of India. Failure of the rule‑making authority to prescribe a form as mandated by the Rules cannot deprive the right of an owner under the Act, especially when there is substantial compliance of the requirements of the statute. The substantive nature of section 67 of the Act cannot be controlled by the procedural requirement of issuing a notice in the prescribed manner, especially when the Rules do not prescribe a form for notice. If the form of notice as contemplated by the statute has not been prescribed by the Rules, the parties are at liberty to issue a notice conveying the intent and purpose of a notice contemplated under the statute. The absence of a prescribed form cannot deprive the constitutional and statutory right of an owner of a property to use his land. Failure of the rule‑making authority to perform its obligations under the statute cannot be a burden on the owner of a property., In this context, it is apposite to point out that the Legislature and the rule‑making authority are bound to issue an English translation, simultaneous with the introduction and passing of the law and the Rules. The requirement of an English text is a constitutional obligation and cannot be avoided. In the decision in Thanga Dorai v. Chancellor, Kerala University (1995 (2) Kerala Law Times 663), it was held that as per Article 348(3) of the Constitution of India, the translation in English language shall be deemed to be the authoritative text of the Bill, Act or Ordinance etc. So whenever a Bill is introduced in the Legislature, or an Act is passed by the Legislature or an Ordinance is promulgated by the Governor or any order, rule, regulation or bye‑law is issued in exercise of the powers to make subordinate legislation, the English translation of the legislation should be published simultaneously. The Kerala High Court noted that, of late, such English translations are not forthcoming immediately after the passing of the Act, the promulgation of the Ordinance, or the issue of order, rule, regulation, bye‑law etc., which is against the constitutional provision contained in Article 348(3) of the Constitution. The Government and the Legislature cannot ignore the said constitutional mandate., Again, in Murali Purushothaman v. State of Kerala (2002 (1) Kerala Law Times 698), a Division Bench of this Court also noticed that Article 348(1)(b) of the Constitution requires that the authoritative texts of all Bills and all Acts passed by the Legislature and of all Ordinances promulgated by the Governor of a State, including all orders, rules, regulations and bye‑laws issued under this Constitution or under any law made by the Legislature of a State, be in the English language. Article 348(3) of the Constitution permits usage of any local language other than English for use in the Legislature of the State but requires that a translation of the same in the English language be published under the authority of the Governor of the State in the Official Gazette of that State, which shall be deemed to be the authoritative text thereof in the English language, as required by the said Article., The need for publishing statutes and rules in English language need not be reiterated. When a State like Kerala opens its invitation for people from all over the world to invest, it would be incongruous if the laws are incomprehensible to them. The importance of English as an international language of communication and comprehension within and outside the country cannot be ignored. Parochial considerations have to be kept aside while contemplating growth and development of the State. Enacting laws in English as mandated by the Constitution in a diverse country like India will not have any bearing on the growth of the regional language. On the other hand, it can enhance the growth potential of the State as an investment destination with better awareness about its laws. Therefore, the Kerala High Court reminds the State Government to abide by the constitutional obligation to prepare the texts of all statutes, rules and other enactments in English, lest this Court be compelled to issue appropriate directions in that regard. In the instant case, the Court restrains from issuing such directions since a relief of such a nature has not been sought., Be that as it may, as the form contemplated under section 67 of the Act has not been prescribed, and since the petitioners have already issued purchase notices (Ext.P1 and Ext.P2), those notices are to be deemed as notices issued as per section 67 of the Act. Since the properties of the petitioners have not been acquired consequent to the purchase notices, their applications for building permit are bound to be considered without reference to the Master Plan., Hence, there will be a direction to the second respondent to process the applications for building permit submitted by the petitioners, as expeditiously as possible, within the time limit prescribed under law, without reference to the Master Plan of Kottayam. The writ petition is allowed as above.
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This petition comes on for orders this day. The petitioners have filed the present petition seeking compensation for the demolition of their houses illegally by respondent Numbers 1 and 2., Petitioner Number 1 purchased the house bearing Number 467, Economically Weaker Section (EWS) situated at Sandapani Nagar, Ujjain, and another house bearing Number 556 situated at EWS, Sandapani Nagar, Ujjain, by registered sale deeds dated 03-04-2019 and 16-07-2020 respectively. Likewise, petitioner Number 2 purchased the house bearing Number 526 situated at EWS, Sandapani Nagar, Ujjain. The husband of petitioner Number 1 also purchased house Number 466, EWS, Sandapani Nagar, Ujjain by registered sale deed dated 19-09-2016 from Sanjay Singh Thakur, attorney holder of Smt. Rahisa Bi. Petitioner Number 2 purchased house Number 527, EWS, Sandapani Nagar, Ujjain by registered sale deed dated 09-03-2021, also purchased house Number 525, EWS, Sandapani Nagar, Ujjain by registered sale deed dated 30-03-2022 and house Number 503, EWS, Sandapani Nagar, Ujjain by registered sale deed dated 21-07-2022., According to the petitioners, petitioner Number 2 was served two notices before the demolition of houses Numbers 525, 526 and 527, giving one day time to submit a reply. On 12-12-2022 petitioner Number 2 approached the Civil Court of Madhya Pradesh by filing an application under Section 94 of the Civil Procedure Code, 1908, in which status quo was granted on 12-12-2022. According to petitioner Number 1, on 13-12-2022 without giving any notice respondents Numbers 1 and 2 demolished houses Numbers 466 and 467. The petitioners, by way of this petition, are claiming compensation, disciplinary action, and injunction against demolition of the remaining portion of the houses., By order dated 10-01-2023, the High Court of Madhya Pradesh granted interim protection to the petitioners. Thereafter, the Municipal Corporation filed a reply describing the powers of demolition under Sections 293 and 294 of the Madhya Pradesh Municipal Corporation Act, 1956 (for brevity, the Act of 1956) and protection from payment of compensation under Section 306 of the Act of 1956., According to the respondent, houses Numbers 466 and 467, EWS, Sandapani Nagar, Ujjain were raised in violation of the provisions of the Municipal Corporation Act. Shri Tiwari, learned counsel, submitted that no building permission was obtained by the petitioners before constructing the houses in question; therefore, the demolition was rightly carried out. It was further submitted that notice dated 12-10-2022 was served by way of affixture and no reply was filed for two months, therefore a notice under Sections 307 and 406 of the Act of 1956 was issued. It was also submitted that the names of petitioner Number 1 are not recorded as owners of houses Numbers 467 and 477. Houses Numbers 525, 526 and 527 were also raised contrary to building permission and encroached on the MOS area. A notice under Section 307 of the Act of 1956 was served. After the order dated 12-12-2022, on 17-01-2023 the Civil Judge dismissed the application filed under Section 94 of the Civil Procedure Code for want of filing plaint and court fees., By order dated 25-01-2024, the High Court of Madhya Pradesh directed the Commissioner, Municipal Corporation to examine the record and submit an explanation before this Court. Today, an affidavit is filed by the Commissioner, who recently joined on 31-12-2023 as Commissioner of Municipal Corporation, Ujjain, stating that for House Number 466 situated at EWS, Sandapani Nagar, Ujjain there is no record of building permission and the name of Rahisa Bi is recorded as the owner., On 11-10-2022 a spot inspection was carried out and information was received that the house was purchased by Parvez Khan from Rahisa Bi. A panchnama was drawn and a note sheet was initiated by the Building Inspector. Notice dated 12-10-2022 was issued under Section 307 of the Act of 1956 in the name of Parvez Khan; on refusal to accept the notice, a second notice dated 12-12-2022 and a third notice dated 13-12-2022 were issued., The subject construction was partially demolished on 13-12-2022 and the panchnama was drawn. Likewise, house Number 467 situated at EWS, Sandapani Nagar, Ujjain is also not recorded in the names of the petitioners in the revenue record. The name of one Uma, wife of Ajay, is recorded as the owner to whom the notice was issued. On 11-10-2022 a spot inspection was done and a note sheet was initiated by the Building Officer. Notice under Section 307 of the Act of 1956 was issued; on refusal to accept the notice by Uma, wife of Ajay, second and third notices were issued on 12-12-2022 and 13-12-2022, after which the construction was partially demolished on 13-12-2022., The Commission, Municipal Corporation Ujjain produced the note sheet prepared for the demolition of houses Numbers 466 and 467, as per mauka panchnama dated 11-10-2022. Parvez Khan disclosed that he is an owner of the house which he purchased in 2016, whereas a registered sale deed on record shows the petitioner as the owner. No document was submitted to the Municipal Corporation to effect mutation of his name. It appears that the mauka panchnama is a concocted document prepared without a spot inspection. Therefore, the demolition of house Number 466 by serving a notice to a fictitious person Parvez Khan is a highly illegal and arbitrary action for which disciplinary action is liable to be taken against the concerned officers and employees., All information about ownership of the property is available in the office of the Sub-Registrar as well as in the Municipal Corporation. The Commissioner has avoided giving an explanation about the details of deposit of property tax on the ground that the server is down. The Municipal Corporation has a physical record of payment of property tax, which could have verified who deposited the tax for this house. Despite that, there is no mutation in the name of the petitioners; the name of Rahisa Bi is recorded as the owner even though she was not served any notice before demolition., Similarly, house Number 467 is reported by local public as belonging to Uma Jatav, whereas petitioner Number 2 purchased this house. In this case also, the panchnama was prepared in a casual manner and notice was issued in the name of Uma, for which there is no acknowledgment. Only the notice was affixed to the house and demolition was started in an arbitrary manner., As observed repeatedly by this Court, it has become fashionable for local administration and local bodies to demolish any house by drawing up proceedings without complying with the principles of natural justice and publishing the action in the newspaper. In this case, a criminal case was registered against a family member of the petitioners and demolition activities were carried out. It is not the case of the respondent that in the entire area under the Municipal Corporation, Ujjain, these are the only two houses constructed without permission to be demolished. Admittedly, the petitioners purchased the constructed houses, not the open land; if there was no permission, there is a provision for compounding, for which specific rules have been framed by the State Government. Instead of demolition, they should have been called upon to regularize their construction., It is correct that no person has a right to construct a house without building permission, and if building permission is obtained, construction is not permissible in the MOS area. In either case, demolition should be the last recourse, after giving a proper opportunity to the owner to regularize the construction. No affidavit has been filed by the Commissioner in respect of the demolition of houses Numbers 225, 226 and 227., In view of the above, this writ petition is allowed. Compensation of Rs. 11 lakh be paid to the petitioners for the illegal demolition of their houses without opportunity of hearing and notice within four weeks. The Commissioner, Municipal Corporation is directed to initiate disciplinary action against the officers who prepared the forged spot panchnama. The petitioners are also directed to get their construction legalized by applying for building permission or compounding before the Commissioner, and the same shall be considered in accordance with law without prejudice to the observations made hereinabove against the Municipal Corporation. The petitioners shall be at liberty to approach the Civil Court of Madhya Pradesh to claim actual compensation for their losses.
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Baba Gangnath Marg, Munirka, New Delhi. File No.: [missing]. In the matter of Saurav Das, Complainant. Central Public Information Officer, National e-Governance Division, Ministry of Electronics and Information Technology, Department of Electronics and Information Technology, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi. Central Public Information Officer, Ministry of Electronics and Information Technology, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi. Respondent. RTI application filed on [date missing]. CPIO replied on [date missing]. First appeal filed on [date missing]. First Appellate Authority order not on record. Complaint dated [date missing]. Date of hearing [date missing]. Date of decision [date missing]. The following were present: Complainant present via video conference. Respondent Shri S.K. Tyagi, Deputy Director; Shri D.K. Sagar, Deputy Director, Electronics; and Shri R.A. Dhawan, Senior General Manager (Administration)., The complainant has sought the following information: Provide the certified true copy of the entire file related to the creation of the Aarogya Setu app, including (a) origin of proposal, (b) approval details, (c) companies, (d) people, government departments involved, (e) file notings related to the app, (f) comments on files by various officers, (g) copies of communications between private persons involved in making or developing the app and government departments concerned, (h) copies of requests for collaboration with people from industry who have helped in making this app, (i) all communications received from all contributors or advisers of this app who have helped make this app, and the responses to be also provided, (j) internal notes, memos, file notings, correspondences while making this app and finalising it, (k) minutes of the meetings held while creating this app, (l) notings or documents related to any meetings between the Government and private contributors to this app, (m) details of meetings or inputs received from any other government agency on this app. Provide the details of the law or legislation under which the app was created and is being handled, and whether the Government of India has any proposal to bring in a separate law for this app and its handling, and other related information., Grounds for Complaint: The National e-Governance Division and Ministry of Electronics and Information Technology did not provide any information., The complainant requested to hold a hearing on an urgent basis due to the immense public interest in the matter and the need for immediate public scrutiny. He pointed out that any failure by the public authorities to perform their duties as outlined in the Protocol, 2020 and its failure to inform the usage of people's personal and user data will have a severe and irreversible detrimental effect on people's right to privacy and therefore their fundamental right to life and liberty. He also submitted that the Aarogya Setu app will be rendered useless once the pandemic is over. In such a situation, if the normal time period of waiting is followed, it would take almost two years for the first hearing to come up before this Commission. He further submitted that this would lead to the matter becoming infructuous and of no use. Therefore, there is an urgent need to act and hear this matter urgently and on a priority basis., The Commission, accepting the matter as related to the right to privacy, which is an essence of the right to life and liberty, deemed it fit to provide an opportunity of early hearing to the complainant and accordingly the hearing was fixed on a priority basis., The complainant stated that there was no reply given by the Central Public Information Officer, National e-Governance Division, Ministry of Electronics and Information Technology. He further submitted that he filed this application seeking information about the process of creation of the Aarogya Setu app and other information relating to its creation. He clarified that the present RTI also contains a few points which were also asked to the National Informatics Centre via RTI with registration number 01/08/2020; the referred RTI was adjudicated by the Commission in case number [missing] on 22 October 2020. The complainant further submitted that the information was not provided by the National Informatics Centre in that case since it stated that it does not hold the information relating to the app's creation, which is surprising since it is the app's developer. Now the Ministry of Electronics and Information Technology has also not provided any information relating to the app's creation and other matters., He strongly pleaded that, in effect, no one has any information on how this app was created, the files relating to its creation, who has given inputs for the app's creation, what audit measures exist to check for misuse of the personal data of millions of Indians, whether any anonymisation protocols for user data have been developed and about who this data is being shared with. This is despite the fact that any omissions and commissions by these public authorities and any failure to perform their duties as outlined and mandated under the Protocol, 2020, could essentially lead to security compromise of millions of Indians' personal and user data. This would be a grave breach of the fundamental right to privacy on a massive scale and threaten people's constitutionally guaranteed right to life and liberty., He further argued that there seems to be a pattern among these public authorities to wilfully withhold information from any applicant asking for this information, as no public authority has any details about any of the questions as asked, which to him seems outrightly false, mala fide and done with an effort to frustrate and harass the applicant to give up., He further requested that a senior level officer of the Ministry of Electronics and Information Technology be recognised as the deemed Central Public Information Officer by this Commission in this matter and be directed to furnish all the information in detail to the complainant after collecting them from all relevant authorities., He further submitted that, due to many credible media reports questioning the Aarogya Setu app and its making and handling, it is of utmost importance to bring transparency in the making and current handling of this app, which collects vast amounts of user and personal data of individuals. If the right to privacy is breached due to inept handling of people's personal and user data, it will be a breach of one's right to life and liberty. The information as asked for would fall under the category of threat to life and liberty of millions of Indians and if the urgent hearing is not provided, the matter will become infructuous and it is the mandate of the Commission to prioritise matters pertaining to one’s, but in this case, millions of Indians' liberty on priority. This will be in larger public interest involved in the matter., He also pressed for action against the Central Public Information Officer, National e-Governance Division, Ministry of Electronics and Information Technology under Section 20(1) and Section 20(2) of the Right to Information Act for wilfully and repeatedly refusing to act in conformity with the RTI Act despite sending repeated reminders requesting them to furnish the information. He further requested to convert this complaint to a second appeal as the matter could not have waited if the first appeal route was followed and the complainant had no faith in approaching the First Appellate Authority of the public authorities., Shri D.K. Sagar, Deputy Director and Central Public Information Officer, Department of Electronics submitted that a timely reply was given to the applicant on 7 August 2020 informing him that the RTI application had been transferred to the National e-Governance Division. Shri R.A. Dhawan, Senior General Manager (Human Resources & Administration) and Central Public Information Officer, National e-Governance Division submitted a copy of the reply dated 2 October 2020 in which he stated that the information sought in the RTI does not relate to the National e-Governance Division. Accordingly, the National e-Governance Division does not have any information on the above. He could not explain why it took almost two months to provide a reply and that too informing that the information sought is not related to the National e-Governance Division., Shri S.K. Tyagi, Deputy Director and Central Public Information Officer, Ministry of Electronics and Information Technology was also present during the hearing and was asked from where the information relating to the creation of the Aarogya Setu app can be accessed. He could not give a plausible explanation except that the creation of the same involves inputs from NITI Aayog. He further could not explain how it is possible that the app was created and the Ministry of Electronics and Information Technology has no clue about its origin., The Commission took note of the fact that on the same day two more complaints were also decided and the Central Public Information Officer, National Informatics Centre was present in those cases but also transferred those RTIs to different public authorities to obtain information of similar nature. Apparently, the Central Public Information Officers of the Ministry of Electronics and Information Technology and all concerned Central Public Information Officers present during the hearing have provided a very evasive kind of reply as well as submissions and have not even attempted to trace the holder of the information in this case., Moreover, the applicant has rightly pointed out that the app is being used by masses at large and can have wide‑reaching effects and breach of privacy cannot be ruled out completely. This Commission would not get into the right to privacy aspects as the technical details of the app and the regulatory mechanism have not yet been examined by any competent court of law., Observation: After hearing the averments of all the concerned parties and also the Central Public Information Officer, National Informatics Centre who was present in this case on the basis of oral direction by the Commission, the denial of information by all the concerned authorities cannot be accepted at all. It is relevant to mention here that Section 6(3) of the Right to Information Act cannot be used by public authorities to push off the matter., Taking note of the decision in case number 685079 of the same complainant decided on 22 October 2020, the present complaint cannot be converted into an appeal. However, the complainant's plea that the Central Public Information Officer, National e-Governance Division, Ministry of Electronics and Information Technology should be penalised under Section 20(1) and Section 20(2) of the Right to Information Act for wilfully and repeatedly refusing to act in conformity with the RTI Act despite sending repeated reminders requesting them to furnish the information seems correct in the absence of a reasoned and justifiable reply from the Central Public Information Officers concerned., The reply dated 7 August 2020 given by the Department of Electronics and Information Technology was perused and read as follows: The online RTI request has been transferred to the Public Information Officer, National e-Governance Division under Section 6(3) of the Right to Information Act. Hence, the said online RTI request is disposed off from the portal., Shri R.A. Dhawan's submission that the information sought is not related to the National e-Governance Division and Shri S.K. Tyagi's and Shri D.K. Sagar's submissions that the RTI application was transferred to the National e-Governance Division show that ultimately the steps taken till today failed to locate the source from where information can be accessed., The Commission observes that it is a current issue and it is not possible that there was no file movement while creating this app; a citizen cannot go round in circles to find out the custodian. The submissions that the entire file related to creation of the app is not with the National Informatics Centre is understandable, but if the same submissions are accepted from the Ministry of Electronics and Information Technology, National e-Governance Division and National Informatics Centre in toto, then it becomes more relevant to now find out how an app was created and there is no information with any of the relevant public authorities., The Commission observed that none of the Central Public Information Officers provided any information. Therefore, the Commission directs the Central Public Information Officer, National Informatics Centre to explain in writing how the website https://aarogyasetu.gov.in/ was created with the domain name .gov.in, if they do not have any information about it. Moreover, the registry is directed to send an email to the email id [email protected] as mentioned in the website, directing them to send the concerned authority to be present before the Commission on the next date of hearing., Furthermore, as per the website https://aarogyasetu.gov.in/ it is mentioned that the content is owned, updated and maintained by MyGov, Ministry of Electronics and Information Technology. Therefore, Shri S.K. Tyagi is directed to explain in writing who is the concerned Central Public Information Officer to explain regarding MyGov, Ministry of Electronics and Information Technology maintaining the app., The Central Public Information Officer, National Informatics Centre also should explain that when the website mentions that the Aarogya Setu platform is designed, developed and hosted by the National Informatics Centre, Ministry of Electronics and Information Technology, Government of India, then how is it that they do not have any information about the creation of the app. None of the Central Public Information Officers were able to explain anything regarding who created the app, where the files are, and the same is extremely preposterous., It is relevant to quote the Honorable Supreme Court decision in Namit Sharma v. Union of India 2012 (8) SCC 593 in which it was held that the purpose and object for the enactment of the Right to Information Act was to make the government more transparent and accountable to the public and to ensure access to information to every citizen from the public authorities. Further, the Honorable Supreme Court in ICAI v. Shaunak H. Satya & Others No. 2040/2011 held that the right to information regarding the functioning of public authorities is a fundamental right as envisaged under Article 19 of the Constitution of India. It was pointed out that the very preamble of the Right to Information Act, 2005, substantiates the fact that the Act does not create any new right but only provides machinery to effectuate the fundamental right to information. Furthermore, the Information Commissions are the implementing agencies. The right to access information has only exemptions provided in Section 8 of the Right to Information Act. The Government of the people means the information should be open to the public for an informed citizenry., Keeping in view the above ratio, the Commission took cognizance of the present complaint under Section 18(f) of the Right to Information Act and, as per the mandate under that provision, is of the view that it is necessary to identify the source or custodian of information in respect of the complainant's request for obtaining access to records under this Act. The addressees cannot simply wash their hands off by stating that the information is not available with them. Some effort should have been put in to find out the custodian(s) of the information sought by the concerned public authorities when apparently they are the relevant parties., Interim Decision: In view of the above observations, the Commission is constrained to issue a show‑cause notice to the concerned Central Public Information Officers Shri S.K. Tyagi, Deputy Director and Central Public Information Officer; Shri D.K. Sagar, Deputy Director Electronics; Shri R.A. Dhawan, Senior General Manager (Human Resources & Administration) and Central Public Information Officer, National e-Governance Division; Shri Swarup Dutta, Scientist F and Central Public Information Officer, National Informatics Centre to explain why penalty under Section 20 of the Right to Information Act should not be imposed on them for prima facie obstruction of information and providing an evasive reply. They shall also submit written submissions detailing their role in creation of the website https://aarogyasetu.gov.in/ with the domain name .gov.in. The Central Public Information Officer, National e-Governance Division shall also explain the delay of about two months in replying to the RTI application. The Commission directs the above‑mentioned Central Public Information Officers to appear before the bench on 24 November 2020 at 1:15 pm to show cause as to why action should not be initiated against them under Section 20 of the Right to Information Act. The Central Public Information Officers are also directed to send a copy of all supporting documents upon which they rely during the hearing. The said documents be sent to the Commission at least five days prior to the hearing via linkpaper. If any other persons are responsible for the said omission, the Central Public Information Officer shall serve a copy of this order on such persons to direct their presence before the bench as well. The Registry shall endorse a copy of this interim order to the Secretary, Ministry of Electronics and Information Technology, CEO MyGov and Director General, National Informatics Centre for information and necessary action. The case is adjourned accordingly., Vanaja N. Sarna, Information Commissioner. Authenticated true copy. A.K. Assija, Deputy Registrar. Date: [missing]. Copy to: Office of CEO, MyGov, 3rd Floor, Room No. [missing], Ministry of Electronics and Information Technology, Government of India, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi; The Secretary, Ministry of Electronics and Information Technology, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi; Director General, National Informatics Centre, 1st Floor, A Block, CGO Complex, Lodhi Road, New Delhi.
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Junned Ahmed Mujib Khan, Age 44 years, Occupation Service as Teacher, Resident of Alamgir Colony, Parbhani, Taluka and District Parbhani, Petitioner. Versus The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai; The Police Inspector, Chawani Police Station, Aurangabad, District Aurangabad; The Commissioner of Police, Aurangabad City, Aurangabad; Furkhan son of Sannulla Khan, Age 28 years, Occupation Nil, Resident of Near Hamida Majid, Vasant Nagar, Pusad, Taluka Pusad, District Yewatmal; Sultana wife of Sannulla Khan, Age 55 years, Occupation Business, Resident of Near Hamida Majid, Vasant Nagar, Pusad, Taluka Pusad, District Yewatmal; Sannulla Khan Kalandar Khan, Age 60 years, Occupation Business, Resident of Near Hamida Majid, Vasant Nagar, Pusad, Taluka Pusad, District Yewatmal. Respondents., Advocate for Petitioner: Mr. Patil Indrale Anand V. Additional Public Prosecutor for Respondent(s) – State: Mr. G. O. Wattamwar. Advocate for Victim and Respondent Nos. 5 and 6: Mr. Ravindra B. Narwade Patil. The Maharashtra High Court heard the matter and made the rule returnable forthwith., By way of the present writ petition, the petitioner is seeking issuance of the writ of Habeas Corpus against the respondents directing them to produce his minor daughter namely Khaleda Subiya Junned Ahmed Khan and to hand over her custody to him., According to the petitioner, his minor daughter was kidnapped from Aurangabad on 22 October 2019. Consequently, his brother‑in‑law lodged a report with Chawani Police Station, Aurangabad pursuant to which FIR bearing No. 339 of 2019 was registered against unknown persons for the offence punishable under Section 363 of the Indian Penal Code. After a few days, the petitioner's wife informed the police that Furkan son of Sannulla Khan was responsible for the incident and had kidnapped their minor daughter in collusion with his parents and other accused persons. The police recorded the statements of the petitioner and his wife but, despite recording the statements, did not take steps to locate the daughter. The petitioner approached the police for inquiry several times and each time was told that necessary steps were being taken and that he would be informed when his daughter was found. According to the petitioner, the police authorities, for reasons best known to them, are not proceeding with the investigation in its true spirit and consequently the minor daughter could not be traced. Thus, the petitioner is constrained to approach the Maharashtra High Court for seeking the writ of Habeas Corpus against the respondents., By order dated 12 March 2021, the Maharashtra High Court directed Respondent Nos. 2 and 3 – the police authorities – to search for and produce the minor daughter of the petitioner, namely Khaleda, before the Court. The Court monitored the progress in orders dated 30 March 2021, 8 April 2021, 22 April 2021 and 29 April 2021. On 6 May 2021 the learned Prosecutor informed the Court that a team was sent to Hyderabad to trace the ATM centre from which amounts were withdrawn by the probable kidnapper from the accounts of his father Sannulla Khan Kalandar Khan; the ATM centre was traced to Banjara Hills, Hyderabad. The matter was listed on 10 June 2021., On 10 June 2021 the missing girl Khaleda was produced before the Maharashtra High Court. She was accompanied by her mother‑in‑law Sultana and father‑in‑law Sannulla Khan, and she was brought along with her child. The Court (Coram: Justice Ravindra V. Ghuge and Justice B. U. Debadwar, Judges) interacted with the missing girl in open court and carefully perused the statement recorded by the police. It was revealed that the child was born to the missing girl on 13 September 2020, when she was nine months short of becoming an adult. According to the missing girl, she got married on 3 June 2021., The learned counsel for the petitioner, Mr. A. V. Indrale Patil, submitted that in the peculiar facts of the present case it would be just and proper to invoke the parens patriae doctrine. He noted that on 22 October 2019 the daughter of the petitioner, namely Khaleda, was missing and was a minor at that time. The Court had recorded in the order dated 10 June 2021 that the child was born on 13 September 2020, when the girl was nine months short of adulthood. It is also pertinent that the missing girl got married on 3 June 2021. Although the missing girl is now a major, she is a vulnerable adult. Accordingly, the Maharashtra High Court, under Article 226 of the Constitution of India, can exercise the parens patriae doctrine. The counsel further observed that although the missing girl had initially stated the date of marriage as 10 November 2019, the Nikah was performed on 3 June 2021. Thus, the constitutional courts may also act as parens patriae to meet the ends of justice., We have also heard the learned Additional Public Prosecutor for the State. In the case Shafin Jahan v. Asokan K. M. and others reported in (2018) 16 Supreme Court Cases 368, the Hon’ble Supreme Court, referring to the ratio laid down in various cases, thoroughly discussed the purpose of the writ of Habeas Corpus. In paragraph 18 the Court observed that the writ is a great constitutional privilege and provides an expeditious and effective remedy against illegal detention, which affects the liberty and freedom of the person in confinement. In paragraph 27 the Court stated that the pivotal purpose of the writ is to ensure that no one is deprived of liberty without sanction of law and that the State must protect this right., The Hon’ble Supreme Court, in paragraphs 31, 39 and 45, explained the doctrine of parens patriae. Paragraph 31 stated that parens patriae, meaning ‘parent of the nation’, refers to the power of the State to intervene against an abusive or negligent parent, legal guardian or informal caretaker and to act as the parent of any child or individual who is in need of protection. Paragraph 39 observed that constitutional courts in this country exercise parens patriae jurisdiction in matters of child custody, treating the welfare of the child as the paramount concern, and that the doctrine may be invoked only in exceptional situations, such as when a mentally ill person is produced before the Court in a writ of Habeas Corpus or when a girl who is not a major elopes and expresses fear of life in the custody of her parents. Paragraph 45 reiterated that the doctrine cannot be invoked in every case; it is limited to exceptional cases where the parties are mentally incompetent or have not attained majority and have no parent or legal guardian or are subject to an abusive or negligent guardian., It is thus clear that the Court can invoke the parens patriae principle only in exceptional situations, for example when a person is mentally ill and produced before the Court in a writ of Habeas Corpus, or when a girl who is not a major elopes, is produced at the behest of a writ filed by her parents, and she expresses fear of life in the custody of her parents. In such cases the Court may send her to an appropriate shelter home until she becomes a major. The Supreme Court has emphasized that the exercise of the parens patriae power is not without limitation and cannot be invoked in every case., In the order dated 10 June 2021 of the Maharashtra High Court (Coram: Justice Ravindra V. Ghuge and Justice B. U. Debadwar, Judges), it was recorded that the missing girl and her mother‑in‑law Sultana Begum were present in the Court and her father‑in‑law, along with the child, was waiting outside the Court premises. The Court perused the statement of the missing girl and interacted with her in open court. She firmly stated that she does not desire to reside with her parents and would continue to reside with her husband. The child is about nine months old and the couple are taking care of the child. Her mother‑in‑law Sultana Begum and father‑in‑law Sannulla Khan are also residing with her at Bhainsa., We have also carefully gone through the report submitted by Mr. A. P. Dhole, Assistant Police Inspector, and the statement of the missing girl. Khaleda stated that Sultana wife of Sannulla Khan had proposed the marriage of her son Furkan Khan with Khaleda, but the petitioner (her father) did not like the proposal. Nevertheless, Khaleda and Furkan had met and fallen in love, and she expressed her desire to marry Furkan, which the petitioner refused. She attempted to convince her father, uncle Sarfaraj Khan, mother Saniya and other elderly family members, but they not only refused but also began beating her. The family, including the petitioner, insisted that she forget the proposal, and her parents sent her to the house of her maternal uncle in Aurangabad, who also opposed the marriage and beat her. Khaleda stated that she was not willing to marry anyone except Furkan Khan. Consequently, on 22 October 2019 she voluntarily left her uncle’s house and went to Nagpur by railway, informing her father by phone and also calling Furkan Khan to inform him of her arrival. Furkan Khan came to Nagpur on 23 October 2019. Since then she stayed with Furkan at various places in Nagpur, later moved to Bhainsa, Nirmal District, Telangana, and resided in a rented room. On 13 September 2020 she gave birth to a male child named Azlan Zain. On 3 June 2021 she married Furkan Khan according to Islamic rites at Bhainsa. The police authorities produced the Nikahnama and the birth certificate issued by Bhainsa Municipality, which state the mother’s name as Khaleda Sobiya and the father’s name as Furkan Khan, with date of birth 13 September 2020., We have also interacted with the missing girl Khaleda in open court. She remained present with her small child, accompanied by her mother‑in‑law Sultana and father‑in‑law Sannulla. Khaleda repeated the same story. She stated that she attained puberty at the age of 13 years and has education up to the 11th standard in the Science faculty. The in‑laws stated that Khaleda is their daughter‑in‑law and the child Azlan Zain is their grandson. They explained that they reside together at Pusad and that their son Furkan Khan is working in Telangana., As recorded in the order dated 10 June 2021, the learned counsel for the petitioner submitted that the parents of the missing girl desired to see her and speak to her. The police authorities confirmed that the parents were present in the Court premises, and they were called into the Court Hall where they interacted with their daughter in open court. The petitioner‑father placed his hand on the head of the missing girl and gave his blessings; the mother also interacted with her daughter. When asked if he had anything to say, the father said he had nothing further to add and that he was now satisfied. The learned counsel for the petitioner later requested a few minutes to interact with the parents outside the court hall. After some time, the counsel informed the Court that the petitioner was no longer interested in prosecuting the present petition., In the aforesaid case Shafin Jahan (supra) the Hon’ble Supreme Court observed that superior courts can exercise parens patriae jurisdiction in cases of persons who are incapable of asserting a free will such as minors or persons of unsound mind, but the exercise of that jurisdiction should not extend to determining the suitability of partners for a marital tie, which rests exclusively with the individuals themselves. The Court emphasized that the Constitution accepts plurality and diversity of culture, and that intimacies of marriage, including the choice of whom to marry, lie outside State control. In the case Soni Gerry v. Gerry Douglas reported in (2018) 2 SCC 197, paragraph 10, the Court observed that attaining the age of majority gives an individual the right to make his or her own choice, and the courts cannot assume the role of parens patriae as long as the choice remains., In the instant case, when the missing girl Khaleda was brought before the Maharashtra High Court, she was found to be a major and had informed the Court that she had performed Nikah with Furkan Khan on 3 June 2021. Under Muslim law, marriage or Nikah is a contract. The law recognises the right of adults to marry by their own free will and the conditions for a valid Muslim marriage are: (i) both parties must profess Islam; (ii) both should be of the age of puberty; (iii) there must be an offer and acceptance and two witnesses; (iv) dower (mahr); and (v) absence of a prohibited degree of relationship. The Court is not inclined to comment on the validity of the marriage, but it may be dissolved at the behest of the parties by a competent court of law., The petitioner‑father was not ready to accept the marriage proposal of Furkan Khan. He acted in good faith to protect his daughter's interest, but this cannot be at the cost of curtailing the fundamental rights of the daughter, who voluntarily married Furkan Khan of her own free will. There is nothing to suggest that Khaleda suffers from any mental incapacity or vulnerability. Consequently, in the facts of the present case, the writ of Habeas Corpus is absolutely unnecessary and the doctrine of parens patriae is inapplicable. The Maharashtra High Court therefore orders that the girl Khaleda Subiya Junned Ahmed Khan is at liberty to pursue her further activities and to live her life in accordance with law, and discharges the rule of Habeas Corpus and dismisses this writ petition.
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Criminal Appeal No. 1597 of 2022 (In Jail) was filed by the appellant Alam alias Mohammad Alam. The counsel for the appellant was Shri Amarjeet Singh Rakhra, Advocate. The counsel for the respondents was Shri Umesh Chandra Verma, Additional Government Advocate., The appeal is filed under Section 21 of the National Investigation Agency Act, 2008. The appellant challenges the order dated 30 May 2022 passed by the learned Additional District and Sessions Judge, Court No. 3, Special Judge, National Investigation Agency Special Court, Lucknow, whereby the bail application of the appellant was rejected. The bail application of Sidhique Kappan had been heard and rejected by a learned Single Judge of this Court on 2 August 2022 because the case was then pending before the Additional District and Sessions Judge, Court No. 1, Mathura. On the prosecution’s application, the case was transferred to the National Investigation Agency Special Court, Lucknow, by order dated 13 December 2021. The appeal is heard by a Division Bench of the Allahabad High Court., The appellant is presently in jail having been arrested on 5 October 2020 in Crime No. 0199/2020, Police Station Manth, District Mathura. A chargesheet was filed on 2 April 2021 under Sections 153-A, 295-A, 124-A, 120-B of the Indian Penal Code, Sections 65 and 72 of the Information Technology (Amendment) Act, 2008 and Sections 17 and 18 of the Unlawful Activities (Prevention) Act, 1967. The Special Court rejected the bail application observing that the appellant was named in the First Information Report and that a chargesheet had been filed against him, therefore he could not be said to be completely innocent. The court also noted that the bail application of the co‑accused had already been rejected., Counsel for the appellant submitted that the First Information Report shows that the appellant had no role in the alleged offence and was merely ferrying passengers in his taxi. No allegation links the appellant with any terrorist organization, donation, funding or association with the Popular Front of India or the Campus Front of India. No incriminating material was recovered from his possession, and a thorough investigation of his mobile data records and social media footprints revealed no involvement in suspicious or anti‑national activities. The investigating agency found no receipt of financial aid from any suspected organization and no suspicious transactions in the appellant’s bank account. The appellant is not engaged in any unlawful activity as defined under Section 2(o) of the Unlawful Activities (Prevention) Act nor is he part of any unlawful association under Section 2(p) of the same Act. The offences mentioned in the chargesheet are not made out against the appellant even if the prosecution’s story is taken at face value. Sections 17 and 18 of the Unlawful Activities (Prevention) Act, which relate to raising funds for terrorist activities and conspiracy to commit terrorist acts, are not attracted to the facts. A perusal of the First Information Report, the chargesheet and the material collected by the investigating agency shows that no terrorist act as defined under Section 15 of the Unlawful Activities (Prevention) Act is made out. The Special Court failed to appreciate that the allegations in the First Information Report and the case diary are prima facie false. Under Section 43‑D(5) of the Unlawful Activities (Prevention) Act, the court must be satisfied that there are reasonable grounds to believe the accusation is prima facie true; the Special Court did not satisfy this requirement and rejected bail merely because a chargesheet had been filed and the co‑accused’s bail was denied. There was no occasion or motive for the appellant to commit the offence, yet he has been languishing in jail for approximately two years without a prima facie case. The trial has not yet commenced. The presence of statutory restrictions does not oust the constitutional courts’ power to grant bail on grounds of violation of Part III of the Constitution of India. Approximately fifty‑five prosecution witnesses are listed in the chargesheet, and the appellant remains in custody for almost two years without trial. No criminal antecedents have been found against the appellant. The appellant relies on the Supreme Court of India decision in S. G. Vombatkere v. Union of India (Writ Petition (C) No. 682/2021) which placed the rigour of Section 124‑A of the Indian Penal Code in abeyance, and on the High Court of Delhi decision in Asif Iqbal Tanha v. State of NCT of Delhi. The appellant therefore seeks release on bail., The respondent, through Shri Umesh Chandra Verma, Additional Government Advocate, argued that the Special Court validly rejected the bail application. A chargesheet had been filed after sufficient evidence was collected, including the recovery of one mobile phone from the appellant and pamphlets from the co‑accused. Evidence of money received from terror funding to purchase the car used by the appellant was found. The appellant and co‑accused were arrested on 5 October 2020 under Section 151 of the Code of Criminal Procedure for disturbing the peace in Hathras, as recorded in General Diary No. 41 of Manth Police Station. Examination of six phones, one laptop and seventeen printed papers recovered from the accused led to the registration of the First Information Report on 7 October 2020. Investigation of Crime No. 136/2020 at Police Station Chandapa on 14 September 2020 revealed that the appellant and his associates were members of an organization intending to disturb law and order in Hathras. The appellant’s taxi, registered with OLA, was not booked through OLA on the day of the incident but was used to transport the co‑accused to the village of Boolgarhi, Hathras. The taxi was purchased on 25 September 2020 for Rs 2,25,000 in cash, allegedly received from the Popular Front of India or Campus Front of India, and the appellant could not explain the source of the money. The appellant admitted that the booking was direct and not through OLA, citing the COVID‑19 lockdown period. The appellant’s relative, Danish, has a criminal history linked to riots during the CAA protests, but the appellant denied any association with terrorist activities. The learned Special Court rejected bail on the basis of sufficient evidence, and the appeal should be dismissed. The respondent relied on the Supreme Court of India decision in National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 and the Delhi High Court decision in Ramjhan Gani Palani v. National Investigation Agency (2022) 2070., The Allahabad High Court considered the material on record. It noted that the only evidence against the appellant at this stage is the payment of Rs 2,25,000 to Mr Anees for the purchase of the vehicle a few days before the incident, and the appellant’s familial relation to Danish, who has criminal antecedents. The appellant explained that the money was borrowed from his cousin Mehboob Ali, who filed an affidavit supporting this claim. The Court observed that the appellant admitted the direct booking of the OLA‑registered taxi and provided a plausible explanation that during the COVID‑19 period direct bookings yielded higher earnings. No incriminating articles were recovered from the appellant’s mobile phone. The Court referred to the Supreme Court of India decision in National Investigation Agency v. Zahoor Ahmad Shah Watali, which enumerates the factors to be considered for bail, and found that the prosecution’s evidence is limited to the purchase money and alleged association with Danish. The Court also cited the Delhi High Court decision in Asif Iqbal Tanha v. State of NCT of Delhi, which held that if there are no reasonable grounds to believe the accusations are prima facie true, Section 43‑D(5) of the Unlawful Activities (Prevention) Act does not apply. Further, the Supreme Court of India in Sudeesh Kedia v. Union of India (2021) 4 SCC 704 emphasized that the court must examine the entire material to determine whether a prima facie case is made out. The Court observed that the chargesheet lists fifty‑five witnesses and the trial has not commenced, resulting in prolonged detention of the appellant since 5 October 2020. The Court found no material indicating that the appellant would tamper with witnesses, abscond, or pose a threat to society. The Court distinguished the present case from the respondent’s reliance on Zahoor Ahmad Shah Watali, where numerous incriminating articles were recovered, and from Ramjhan Gani Palani, which involved a large narcotics seizure. Accordingly, the Court concluded that there is no reasonable ground to believe the accusations against the appellant are prima facie true., The appeal is allowed. The impugned order dated 30 May 2022 passed by the Special Judge, National Investigation Agency/Anti‑Terrorism Squad, Lucknow in Bail Application No. 4344/2022 arising out of Crime No. 0199/2020, Police Station Manth, District Mathura is set aside. The appellant Alam alias Mohammad Alam is granted regular bail until the conclusion of the trial, subject to such conditions as the Court may deem appropriate.
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The appellant shall furnish a personal bond in the sum of Rupees 50,000 (Rupees Fifty Thousand only) with two local sureties of the like amount, to the satisfaction of the learned District Court. The appellant shall furnish to the investigating officer/Station House Officer a cellphone number on which the appellant may be contacted at any time and shall ensure that the number is kept active and switched on at all times. The appellant shall ordinarily reside at his place of residence and shall inform the investigating officer if he changes his usual place of residence. If the appellant has a passport, he shall surrender the same to the learned District Court and shall not travel out of the country without prior permission of the learned District Court. The appellant shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of the case. The appellant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial. Here, it is made clear that observations made in this order shall not affect the trial in any manner.
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Maya Sanjay Khandare, aged 38 years, occupation Household, resident Chikhli gate, Murtizapur, District Akola; Rupesh Shrikrushna Kale, aged about 28 years, occupation Labourer, resident Chikhli gate, Murtizapur, Taluka Murtizapur, District Akola – versus State of Maharashtra, through Police Station Officer, Murtizapur, Taluka Murtizapur, District Akola. Non‑applicant Shri Siddhant Ghatte, Advocate for applicants. Shri S. Y. Deopujari, Public Prosecutor for non‑applicant/State. Shri Anil S. Mardikar, Senior Advocate with Ms Akshaya Kshirsagar, Shri P. R. Agrawal, Shri S. V. Sirpurkar, Shri Sahil Dewani, Shri S. P. Bhandarkar, Ms Nidhi Dayani, Shri Yash Venkatraman and Shri Vivek Bharadwaj, Advocates also addressed the High Court. The arguments were heard on 16 December 2020 and the judgment was pronounced on 5 January 2021. Judgment (per A. S. Chandurkar, J.): The contentious issue as regards the scope of power exercisable under Section 482 of the Code of Criminal Procedure, 1973 (the Code) when a prayer is made for quashing criminal proceedings or conviction at the instance of a convict after his conviction for a non‑compoundable offence on account of settlement between the convict and the victim or complainant falls for determination before this larger bench., At the outset we refer to the decisions that have led to the present reference. In Criminal Application No. 0382 of 2018 (Udhav Kisanrao Ghodse v. State of Maharashtra) the accused were tried for offences punishable under Section 323 of the Indian Penal Code. In addition the first accused was convicted for offences punishable under Sections 447 and 354 of the Indian Penal Code. The order of conviction was challenged before the Sessions Court by preferring an appeal. During the pendency of the appeal, the accused and the informant arrived at a compromise and approached this High Court under Section 482 of the Code, especially because the offence under Section 354 of the Indian Penal Code was non‑compoundable. The Division Bench at Aurangabad, after referring to the Full Bench decision in Abasaheb Yadav Honmane v. State of Maharashtra (2008) and the decision in Gian Singh v. State of Punjab (2002), held that since the parties had decided to maintain good and cordial relations, inherent powers under Section 482 of the Code were required to be invoked. Accordingly the informant was permitted to compound all the offences, including the one under Section 354 of the Indian Penal Code, and the judgment of conviction recorded by the learned Magistrate was set aside., In Criminal Application No. 750/2019 (Ajmatkhan son of Rahematkhan v. State of Maharashtra) the accused had been convicted by the learned Magistrate for offences punishable under Sections 354 and 452 of the Indian Penal Code. The appeal preferred by the convicts was dismissed by the Sessions Court. Thereafter the convicts and the informant approached this High Court under Section 482 of the Code and, relying upon the decision in Udhav K. Ghodse, sought quashing of the entire proceedings. The Division Bench at Nagpur, by its order dated 6 August 2019, permitted the informant to compound the offences punishable under Sections 354 and 452 of the Indian Penal Code. The judgment of conviction passed by the learned Magistrate as well as the judgment of the Sessions Court in appeal were set aside and the convicts were acquitted of all the offences., In Criminal Application No. 1028/2019 (Shivaji Haribhau Jawanjal v. State of Maharashtra) an accused who was prosecuted for offences punishable under Sections 323, 354, 452 and 506 of the Indian Penal Code was convicted by the learned Magistrate. The conviction was upheld by the Sessions Court on appeal. A revision application challenging the order of conviction was pending before a Single Judge of this High Court. The convict and the complainant then jointly approached this High Court under Section 482 of the Code on the ground that they had arrived at a settlement and, with a view to maintain cordial relations, sought invocation of the Court's jurisdiction. The Division Bench at Nagpur, by its judgment dated 12 February 2020, after referring to the judgment in Kiran Tulshiram Ingale v. Anupama P. Gaikwad (2006), held that the power under Section 482 of the Code for quashing proceedings could be exercised even after conviction of an accused. Considering the reformative aspect and the complainant's desire to pardon the accused, the inherent powers under Section 482 of the Code were invoked to secure the ends of justice, and the application was allowed by quashing the order of conviction., In Criminal Application No. 709/2020 (Maya Sanjay Khandare and others v. State of Maharashtra) a report was lodged against the accused under Sections 354‑A, 354‑D and 506 of the Indian Penal Code together with Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused were convicted by the Sessions Court on 29 November 2019. The convict preferred an appeal in this High Court which was pending. On 17 August 2020 an affidavit was sworn by the convict stating that, since the informant and the convict were residing in the same locality and an apology had been tendered through the convict's mother, jurisdiction under Section 482 of the Code should be invoked for quashing and setting aside the first information report as well as the judgment of conviction passed by the Sessions Court. On behalf of the applicants reliance was placed on the decisions in Udhav Ghodse, Ajmatkhan and Shivaji Haribhau Jawanjal. The Division Bench, after referring to the Supreme Court decisions in Gian Singh, Narinder Singh v. State of Punjab (2014) and Parbatbhai Aahir v. State of Gujarat (2017), held that exercise of power under Section 482 of the Code for quashing and setting aside an order of conviction should be rare and only in exceptional circumstances for offences not against society. The Bench could not agree that, after a conviction, an application for settlement could be entertained and the conviction quashed as in the earlier cases. Consequently two questions were framed for reference to a larger Bench., On behalf of the applicants, Shri Siddhant Ghatte, learned counsel, submitted that there is no embargo on the exercise of jurisdiction under Section 482 of the Code to entertain an application for quashing criminal proceedings or conviction when an appeal challenging the order of conviction is pending, as the appeal does not give finality to the conviction. He argued that if, after conviction, the convict and the informant find it fit to settle their disputes and the offences involved are not serious, the power may be invoked to put an end to the entire dispute. He relied on the Division Bench decision in Kiran T. Ingale, which held that the order of conviction does not attain finality until the proceedings are finally decided, and on Padam Singh v. State of Uttar Pradesh (2000). He also referred to the Full Bench decision in Abasaheb Yadav Honmane, stating that inherent powers under Section 482 of the Code are of wide magnitude and can be exercised for quashing criminal proceedings of any kind, whether compoundable or non‑compoundable, even at the appellate stage. He invoked the reformative theory noted in Shivaji Haribhau Jawanjal, contending that if the accused has realized his guilt and is ready to reform, settlement should be encouraged. He warned that refusal to quash proceedings after conviction despite settlement would perpetuate the stigma of conviction on record, citing Retti Deenabhandu v. State of Andhra Pradesh (1977). He further relied on observations in Narinder Singh, Arvind Barsaul (2008), Monica Kumar (2008) and R.S. Arora v. State of NCT Delhi (1995). He concluded that, except for serious offences and crimes against society, there is no limitation to exercising the power to quash proceedings even after conviction., Shri Anil S. Mardikar, learned Senior Advocate, submitted that the law laid down by the earlier Full Bench in Abasaheb Yadav Honmane is clear: the inherent power under Section 482 of the Code for quashing criminal proceedings is of wide magnitude and is not limited to the pre‑conviction stage. He argued that there is no reason to restrict the exercise of powers under Section 482 only to cases where an order of conviction has not been passed. If the requirements of Section 482 are satisfied – namely, the need to give effect to any order under the Code, to prevent abuse of process, or to secure the ends of justice – the proceedings may be quashed notwithstanding that a conviction has already been recorded. He emphasized that the power under Section 482 is not controlled by Section 320 of the Code and can be exercised at any stage of the criminal proceedings, from the lodging of the first information report to the point where the order of conviction attains finality. He noted that the only exception to this power is the limitation laid down by the Supreme Court in Gian Singh and Narinder Singh. He also cited Mallikarjun Kodagali (Dead) through LRs v. State of Karnataka (2019) and the Division Bench decision in Kiran T. Ingale to demonstrate consistent judicial practice of quashing proceedings under Section 482 even after conviction, especially when parties have settled., Shri Sahil Dewani, learned counsel, submitted that there is no embargo on the exercise of jurisdiction under Section 482 of the Code even after conviction, notwithstanding the availability of an appellate remedy. He argued that such power may be exercised to meet the ends of justice where the parties have settled their disputes, except in serious offences against society. Referring to the decision in Bitan Sengupta v. State of West Bengal (2018), he contended that if settlement is brought to the Court's notice in an appeal challenging conviction, the settlement should be accepted and relief granted. He further submitted that the existence of an alternate remedy by way of appeal or revision cannot be a ground to refuse a Section 482 application. He relied on Vijay v. State of Maharashtra (2017), Prabhu Chawla v. State of Rajasthan (2016), Punjab State Warehousing Corporation Faridkot v. Durgaji Traders (2011), State of M.P. v. Dhruv Gurjar (2019), Shiji @ Pappu v. Radhika (2011), Saloni Rupam Bhartiya v. Rupan Pralhad Bhartiya (2015) and State of Rajasthan v. Shambhu Kewat (2014)., Shri P. R. Agrawal, learned counsel, highlighted that after the Supreme Court answered the reference in Gian Singh, the proceedings in Criminal Appeal No. 2052/2013 were decided by the Supreme Court on 6 December 2013, setting aside the High Court order refusing to quash proceedings under Section 482 and remanding the matter for fresh adjudication. He noted that in that case the parties had entered into a compromise after the accused was convicted under Sections 420 and 120‑B of the Indian Penal Code. He referred to the Punjab and Haryana High Court decision in Sube Singh v. State of Haryana (2014), which held that the power under Section 482 is wide enough to quash proceedings in relation to a non‑compoundable offence notwithstanding the bar under Section 320 and may be exercised at any stage. He also cited Dharambir v. State of Haryana (2005) and Kulwinder Singh v. State of Punjab (2007). He mentioned the Law Commission’s 237th report on compounding of offences, emphasizing the need to encourage victim participation in settlements, and referred to the decision in Prabhu Chawla on the availability of alternate remedies not being a hurdle to exercising Section 482., Shri S. Y. Deopujari, learned Public Prosecutor for the State of Maharashtra, submitted that after conviction for a non‑compoundable offence, even if the parties arrive at a settlement, the order of conviction should not be set aside. At most, the sentence may be suitably modified. He argued that exercising Section 482 in such circumstances would ignore the impact of settlement on society and the victim, frustrate the trial process, and undermine the deterrent theory essential for a law‑abiding society. He warned that allowing post‑conviction settlement to lead to acquittal could encourage accused persons to seek settlements after conviction and could result in pressure on victims. He maintained that while appellate or revisional jurisdiction may permit modification of sentence, the scope of Section 482 is limited after a conviction for a non‑compoundable offence. He also contended that the decision in B. S. Joshi v. State of Haryana (2003) relates only to matrimonial and minor private disputes and should not be extended to criminal matters., Shri S. P. Bhandarkar, learned counsel, submitted that jurisdiction under Section 482 of the Code should be exercised only to give effect to any order passed under the Code, to prevent abuse of process, or to secure the ends of justice. He argued that these powers are in addition to those available under the Code and are procedural in nature; therefore, substantive relief under other provisions of the Code should be preferred where available. He equated Section 482 with Section 151 of the Code of Civil Procedure, 1908, and referred to decisions in K. K. Velusamy v. N. Palanisamy (2011) and State of U.P. v. Roshan Singh (2008). He emphasized that compromise after conviction should not be lightly accepted, noting considerations such as timing of compromise, chances taken by the accused during trial, and the possibility of buying out the victim. He discussed the theories of reformation versus deterrence, and cited provisions of Sections 265‑A and 265‑B of the Code. He further relied on decisions in State of Madhya Pradesh v. Laxmi Narayan (2019), Ishwar Singh v. State of Madhya Pradesh (2008), Arun Shankar Shukla v. State of Uttar Pradesh (1999) and Central Bureau of Investigation v. A. Ravinshankar Prasad (2009) to substantiate his contentions., Shri Yash Venkatraman, learned counsel, argued that the decisions in Gian Singh and Narinder Singh deal with pre‑conviction settlements and do not apply to post‑conviction quashing of proceedings. He referred to Manohar Singh v. State of Madhya Pradesh (2014), where the conviction under Section 498‑A of the Indian Penal Code was not quashed but the sentence was reduced in view of settlement. He highlighted Section 75 of the Indian Penal Code, which imposes enhanced punishment for a subsequent offence after a prior conviction, and warned that setting aside a conviction after settlement would frustrate this provision. He further noted that compromise after conviction could at most result in reduction of sentence, not acquittal, and cited Sections 354‑C and 354‑D of the Indian Penal Code., Ms Nidhi Dayani, learned counsel, submitted that compromise may be considered after conviction when the Court is exercising appellate or revisional jurisdiction to examine the order of conviction. Referring to the Full Bench decision in Abasaheb Yadav Honmane, she argued that while exercising power under Section 482, the High Court should not substitute the trial Court’s decision. She also cited Sections 374 and 375 of the Code, contending that when a remedy for challenging an order of conviction is provided, jurisdiction under Section 482 should not be exercised., Shri Vivek Bharadwaj, learned counsel, referred to the judgment in Gian Singh to emphasize that it deals with pre‑conviction cases and its analogy cannot be extended to post‑conviction situations. He similarly noted that Narinder Singh dealt with the exercise of power under Section 482 prior to conviction. He warned that entertaining proceedings under Section 482 despite the availability of an appellate remedy would transgress the appellate jurisdiction conferred on the Court., Having heard the illuminative submissions made by the learned counsel on the questions framed, we consider Question (A): In a prosecution which has culminated in a conviction, whether the power under Section 482 of the Criminal Procedure Code ought to be exercised for quashing the prosecution or conviction altogether, instead of maintaining it and considering modification of the sentence, upon a settlement between the convict and the victim or complainant?, While answering Question (A), it is necessary first to examine the nature and scope of the powers conferred under Section 482 of the Code. Section 482 recognises the inherent power of the High Court to make such orders as are necessary to give effect to any order under the Code, to prevent the abuse of process of any Court, or otherwise to secure the ends of justice. Nothing in the Code shall be deemed to limit or affect the aforesaid powers of the High Court. The scope, width and amplitude of Section 482 have been considered in various decisions of the Supreme Court and recent precedents.
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In State of Punjab Vs. Davinder Pal Singh Bhullar and ors. (2011) 14 Supreme Court Cases 770 it was held that the expressions abuse of the process of law and ends of justice are aspects that have to be dealt with in accordance with law which includes procedural law and not otherwise. In Surya Baksh Singh Vs. State of Uttar Pradesh (2014) 14 Supreme Court Cases 222, it was held that the expression ends of justice would mean not only the rights of a convict but also the rights of victims of the crime and the law‑abiding section of the society. Similarity was found in the powers conferred under Section 482 of the Code with the provisions of Section 151 of the Code of Civil Procedure, 1908. It is also settled that availability of an alternate remedy by itself cannot be a reason to refuse to exercise jurisdiction under Section 482 of the Code. This position has been clarified in Prabhu Chawla and Vijay and anr. (supra). The limitation on the Court while seeking to exercise inherent powers is one of self‑restraint and nothing more., The Hon'ble Supreme Court in a catena of cases has used the expression rarest of rare case while describing the scope of exercise of power under Section 482 of the Code. Reference in that regard can be made to the decisions in Pratibha Vs. Rameshwari Devi and ors. (2007) 12 Supreme Court Cases 369, Sunita Jain Vs. Pawan Kumar Jain and ors. (2008) 2 Supreme Court Cases 705 and Som Mittal Vs. Government of Karnataka (2008) 3 Supreme Court Cases 574. By requiring jurisdiction to be exercised in the rarest of rare case the approach to be adopted by the High Court under Section 482 of the Code has been indicated., In this context, we may refer to the judgment of the Division Bench of this Court in Istiyak Khan Iqbal Khan Vs. State of Maharashtra, 2014 ALL MR (Cri) 3045 that was referred to by the learned counsel for the applicants. The applicant therein along with twelve others were prosecuted for the offence punishable under Section 3(1)(ii) and Section 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (for short, the Act of 1999). Eight accused thereafter underwent trial. After the charges were framed the applicant pleaded guilty. At the conclusion of the trial the other seven accused came to be acquitted by the trial Court after holding that the prosecution had failed to bring on record sufficient evidence to establish that the provisions of the Act of 1999 had been attracted. In short the sole applicant came to be convicted under provisions of the Act of 1999. The applicant invoked extraordinary jurisdiction of this Court under Section 482 of the Code praying that his conviction be set aside in the light of the fact that he alone had been convicted under the Act of 1999., Shri B.R. Gavai, J (as His Lordship then was) speaking for the Bench considered the question as to whether the conviction of the applicant based on the plea of guilt would be sustainable especially when the prosecution had failed to bring evidence on record to establish commission of offence under the Act of 1999. It was held that as the prosecution had failed to establish existence of an organised crime syndicate, a single person could not be said to have committed offence under the Act of 1999. In this backdrop, the High Court proceeded to consider whether the said case was an appropriate case for invoking jurisdiction under Section 482 of the Code. It was held that when all the other accused had been acquitted on the ground that the prosecution had failed to prove the case under the provisions of the Act of 1999, the sole applicant could not be convicted on the mistaken plea of guilt. Describing the case to be a rarest of rare case, the High Court proceeded to exercise powers under Section 482 of the Code for setting aside conviction of the applicant. It was also noted that the applicant had undergone sentence of more than five years and exercise of jurisdiction was necessary otherwise to secure the ends of justice., The facts of this case clearly highlight the use of the expression rarest of rare case wherein the order of conviction was set aside in exercise of power under Section 482 of the Code inasmuch as a jurisdictional question of conviction of sole accused for an offence involving organised crime had arisen., Parameters laid down in Gian Singh and Narinder Singh by the Hon'ble Supreme Court: In Gian Singh (supra) the question as regards permissibility of indirectly permitting compounding of non‑compoundable offences was referred to a larger Bench of the Hon'ble Supreme Court especially in the light of the decisions in B.S. Joshi (supra), Manoj Sharma vs State (2008) 16 Supreme Court Cases 1 and Nikhil Merchant vs Central Bureau of Investigation (2008) 9 Supreme Court Cases 677., Paragraph 61 of the judgment in Gian Singh (supra) observed as under: In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominately civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding., It is to be noted that in the aforesaid paragraph the Hon'ble Supreme Court has observed that the High Court may quash criminal proceedings if in its view because of the compromise between the offender and the victim the possibility of conviction would be remote and bleak. Continuation of the criminal case would cause great oppression and prejudice as well as extreme injustice. It can be seen that the High Court principally considered the question with regard to situations arising prior to conviction., The decision in Gian Singh (supra) and its ratio was subsequently considered in Gopakumar B. Nair Vs. Central Bureau of Investigation and anr. (2014) 5 Supreme Court Cases 800 by the Bench of three learned Judges. It was observed that what was referred to the larger Bench while deciding Gian Singh (supra) was the question whether quashing of a non‑compoundable offence on the basis of compromise/settlement of the dispute between the parties would be permissible and would not amount to overreaching the provisions of Section 320 of the Code. The merits of the decision in Nikhil Merchant (supra) had not been referred to. It was thereafter explained that what followed from the decision in Gian Singh (supra) was that though quashing a non‑compoundable offence under Section 482 of the Code following a settlement between the parties would not amount to circumvention of the provisions of Section 320 of the Code, the exercise of power under Section 482 of the Code would always depend on the facts of each case. This was held to be the correct ratio of the decision in Gian Singh (supra)., In Narinder Singh (supra), proceedings under Section 482 of the Code were filed seeking quashing of the first information report that was registered under Sections 307, 323, 324 read with Section 34 of the Penal Code in view of compromise between the accused and the complainant. The compromise was not accepted by the High Court and that order was put to challenge before the Hon'ble Supreme Court. Reference was made to the decision of the larger Bench in Gian Singh (supra) and it was observed that mere settlement between the parties should not be a ground to quash the proceedings by the High Court as settlement of a heinous crime cannot have the imprimatur of the Court in the light of the fact that offence under Section 307 of the Penal Code was alleged to have been committed. It was a crime against the society and it was thus the duty of the State to punish the offender. Even in case of settlement between the offender and the victim, their will would not prevail as in such cases the matter was in public domain. The High Court also referred to the timing of the settlement which would play a crucial role in the matter. The High Court noted in paragraph 28 as under: We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 IPC has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet. In paragraph 29.7 it was observed that in cases where the conviction was already recorded by the trial Court and the matter was at the appellate stage, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who had been convicted by the trial Court. The High Court thereafter proceeded to lay down guidelines for the exercise of power under Section 482 of the Code. While doing so the High Court also referred to the requirement of examining the possibility of conviction being remote and bleak. In the aforesaid decision the High Court considered the prayer for quashing of the first information report in the light of compromise between the parties when the matter was before the trial Court. However with regard to the matters where conviction was already recorded after which the parties arrived at a settlement, it has been observed in clear terms that such compromise by itself would not be sufficient to acquit the accused who had been convicted by the trial Court., The decision in Narinder Singh (supra) was considered by another bench of three learned Judges in State of Madhya Pradesh Vs. Laxminarayan and others (2019) 5 Supreme Court Cases 688 on a reference made to it in the light of conflict in the decisions in State of Rajasthan vs. Shambhu Kewat (2014) 4 Supreme Court Cases 149 and Narinder Singh (supra). Therein the High Court in exercise of powers under Section 482 of the Code had quashed the first information report registered under Sections 307 and 34 of the Penal Code solely on the basis of compromise between the complainant and the accused. After referring to the decisions in Gian Singh and Narinder Singh (supra) it was held that offences under Section 307 of the Penal Code and under the Arms Act, 1959 would fall in the category of heinous and serious offences which were required to be treated as crime against the society and not against an individual alone. Criminal proceedings for such offences that had a serious impact on the society could not be quashed in exercise of powers under Section 482 of the Code on the ground that the parties had resolved their entire dispute amongst themselves. It further observed that mere mention of Section 307 of the Penal Code in the first information report or in the charge as framed should not be the basis for the High Court to rest its decision. It would be open for the High Court to examine whether incorporation of Section 307 of the Penal Code was only for the sake of it or the prosecution had collected sufficient evidence in that regard. Such exercise however would be permissible only after the evidence was collected after investigation and the charge‑sheet was filed/charge was framed and/or during the trial. Such exercise would not be permissible when the matter was still under investigation. It was held that the ultimate conclusions in paras 29.6 and 29.7 of the decision in Narinder Singh (supra) had to be read harmoniously as a whole. With regard to non‑compoundable offences which were private in nature and did not have a serious impact on society it was observed in paragraph 15.5 as under: While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non‑compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offencer, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc., These observations clearly indicate that even while exercising power of quashing criminal proceedings in respect of non‑compoundable offences which are private in nature and do not have serious impact on society the High Court is expected to consider the antecedents of the accused, his conduct as to whether he was absconding and reason for the same and how he managed with the complainant to enter into a compromise. These observations are an indicator of the parameters that would have to be applied even with regard to quashing of non‑compoundable offences which are private in nature and do not have a serious impact on society., Section 320 of the Code. Section 320 (1) of the Code specifies offences that may be compounded by the persons mentioned in the third column of the table appended thereto. Section 320 (2) specifies offences that may be compounded with the permission of the Court before which any prosecution for such offence is pending. As per Section 320 (5) when the accused has been committed for trial or has been convicted and an appeal is pending, the offence cannot be compounded without the leave of the concerned Court. Under Section 320 (6) the High Court or the Court of Sessions in exercise of revisional power can allow any person to compound any offence which he is competent to do so under Section 320. Section 320 (9) clearly stipulates that no offence shall be compounded except as provided by the said Section. By now it is well settled that the power of compounding an offence has to be exercised strictly in the manner provided by Section 320 of the Code. It is only those offences stipulated by Section 320 (1) and (2) of the Code that could be permitted to be compounded. The power to compound under Section 320 is different from the aspect of quashing of proceedings as held in Shambhu Kewat (supra). Similarly, a non‑compoundable offence cannot be permitted to be compounded by taking recourse to Section 320 of the Code as held in Ram Lal and ors. Vs. State of Jammu and Kashmir (1999) 2 Supreme Court Cases 213 and Ishwar Singh Vs. State of Madhya Pradesh (2008) 15 Supreme Court Cases 667. In B.S. Joshi (supra) it has been held that the provisions of Section 320 of the Code do not act as a bar in the exercise of power under Section 482 of the Code. The history of compounding has been referred to in JIK Industries Limited and others Vs. Amarlal V. Jumani and anr. (2012) 3 Supreme Court Cases 255 and it has been held that the provisions contained in Section 320 of the Code and its various sub sections was in the nature of a code in itself relating to compounding of an offence. It was observed that in common law compounding was considered a misdemeanor. When the Criminal Procedure Code, 1861 was enacted it was silent about compounding of offences. It was introduced in the Code of 1872 in the form of Section 188. In the subsequent Code of 1898 Section 345 specified offences which were compoundable. It is only after repeal of that Code and enactment of the present Code of 1973, that Section 320 was introduced containing comprehensive provisions for compounding., Whether compromise by itself is sufficient to set aside conviction in a non‑compoundable offence: On conviction of an accused by the trial Court the remedy available to challenge the order of conviction has been provided in Chapter XXIX of the Code and especially by Section 374 therein. The powers of the appellate Court are prescribed by Section 386 of the Code while revisional powers are indicated by Section 401 of the Code in Chapter XXX. Once an order of conviction is recorded by the trial Court on the basis of material presented by the prosecution/complainant, it is for the appellate Court to either reverse such finding or alter it or in a given case even enhance the sentence. As held in Jeetu Vs. State of Chhattisgarh (2013) 11 Supreme Court Cases 489 it is the duty of the appellate Court to arrive at its own independent conclusion after examining the material on record. This exercise has however to be conducted after considering the material on record. There is no power conferred by the Code either on the appellate Court/revisional Court to acquit an accused convicted for a commission of a non‑compoundable offence only on the ground that compromise has been entered into between the convict and the informant/complainant., There are overwhelming precedents to the effect that if any compromise is entered into between the convict and the victim/complainant post‑conviction for a non‑compoundable offence, such compromise by itself cannot be a reason to set aside the order of conviction. The order of conviction would have to be tested by the appellate Court/revisional Court on merits and if the Court finds it necessary to maintain the conviction, the compromise entered into would be only a factor to be considered while imposing appropriate sentence. In other words while maintaining the conviction for a non‑compoundable offence the fact that after such conviction the parties have entered into a compromise would be a mitigating factor to be taken into consideration while awarding appropriate sentence. One of the earliest decisions in which the effect of compromise after conviction for a non‑compoundable offence was considered was in Ram Pujan and ors. Vs. State of U.P. AIR 1973 Supreme Court 2418. There the accused were convicted by the Sessions Court under Section 326 read with Sections 149 and 323 of the Penal Code. The High Court acquitted some of the accused and conviction of the others was altered to that under Section 326 read with Section 34 and Section 323 of the Penal Code. The Hon'ble Supreme Court noticed that when the appeal was pending before the High Court an application for compromise on behalf of the injured prosecution witnesses was filed. It was stated that the parties had amicably settled their dispute and they wanted to live in peace. The settlement was got verified from the trial Court but the High Court did not grant permission to compound the offence under Section 326 of the Penal Code as it was non‑compoundable. However the sentence for the said offence was reduced from four years to two years. It was observed by the Hon'ble Supreme Court that the major offence for which the appellants had been convicted was non‑compoundable. However the fact of compromise could be taken into account in determining the quantum of sentence. Accordingly, while maintaining the order of conviction, the sentence was reduced to the period already undergone by the appellants. The course followed in this decision rendered by three learned Judges has thereafter been followed notably also by another bench of three learned Judges in Surendra Nath Mohanty and another Vs. State of Orissa (1999) 5 Supreme Court Cases 238. These decisions indicate that the effect of compromise after conviction for a non‑compoundable offence has to be taken into consideration only for the purpose of reducing the sentence and not for setting aside the conviction on that count., The course consistently followed by the Hon'ble Supreme Court while considering the challenge to the order of conviction and the effect of settlement thereafter is to maintain the conviction as recorded but to reduce the sentence imposed for commission of such non‑compoundable offence. Reference can be usefully made to some amongst numerous decisions wherein such course was followed: Salim and others Vs. State of M.P. 1995 Supp (4) Supreme Court Cases 631; Murugesan and others Vs. Ganpathy Velar (2001) 10 Supreme Court Cases 504; Ramchandra Singh and Ors Vs. State of Bihar and ors.; Badrilal Vs. State of M.P. (2005) 7 Supreme Court Cases 55; Jetha Ram and ors. Vs. State of Rajasthan (2006) 9 Supreme Court Cases 255; Sanjit Datta Vs. State of Tripura and anr. (2006) 13 Supreme Court Cases 294; Badal Deb and anr. Vs. State of Assam (2006) 10 Supreme Court Cases 540; Ishwar Singh Vs. State of Madhya Pradesh (2008) 15 Supreme Court Cases 667; Puttaswamy Vs. State of Karnataka and ors. (2009) 1 Supreme Court Cases 711; Amar Nath Shukla Vs. State of Uttaranchal (2009) 9 Supreme Court Cases 390; K.K. Sreedharan and ors. Vs. State of Kerala and anr.; Rajendra Harakchand Bhandari and ors. Vs. State of Maharashtra & ors. AIR 2011 Supreme Court 1821; Gulab Das and ors. Vs. State of M.P. AIR 2012 Supreme Court 888; Mukesh Kumar and ors. Vs. State of Rajasthan (2013) 11 Supreme Court Cases 511; Manohar Singh Vs. State of Madhya Pradesh (2014) 13 Supreme Court Cases 75; Shankar and ors. Vs. The State Maharashtra and ors. The legal position is thus clear that compromise post‑conviction for a non‑compoundable offence ipso facto cannot result in acquittal of the convict and compromise is one amongst various aspects to be considered while imposing appropriate sentence when the conviction is liable to be maintained on examining the merits of the case., The observations of the Hon'ble Supreme Court in Hasi Mohan Barman vs. State of Assam and anr. (2008) 1 Supreme Court Cases 184 are also relevant for the purposes of considering the effect of compromise post‑conviction. The accused therein were convicted for the offence punishable under Section 313 of the Penal Code read with Section 34 thereof. That conviction was maintained by the High Court but by reducing the sentence imposed by the Sessions Court. During pendency of the proceedings, the complainant married accused no.1 and she thereafter filed an affidavit stating that in view of such compromise she wanted to withdraw the criminal case pending against her husband and the other accused. The Hon'ble Supreme Court which was seized of the appeal directed the learned Sessions Judge to verify the contents of the affidavit sworn by the complainant. On such verification it was reported that the contents thereof were correct. While considering the effect of such compromise during the pendency of the appeal it was observed by the Hon'ble Supreme Court that the consent given by the wife/complainant or the affidavit filed by her could not be utilized for the purpose of recording a finding of acquittal in favour of the accused. The conviction of the appellant was maintained but taking note of the aforesaid settlement the sentence was reduced to the period already undergone., Reference can also be made to the decision in C. Muniappan Vs. State of Tamil Nadu (2009) 13 Supreme Court Cases 790 where the accused were tried and convicted under Section 302 of the Penal Code. During the pendency of the appeal a compromise entered into between the family of the victim and the accused was sought to be relied upon. The Hon'ble Supreme Court observed that if the parties had settled their disputes they could live in peace but that by itself cannot be a ground to pass a judgment of acquittal., In yet another recent decision in State of Madhya Pradesh Vs. Dhruv Gurjar and anr. (2019) 5 Supreme Court Cases 570, the first information report was registered under Sections 307, 294 and 34 of the Penal Code. When investigation was pending the accused filed an application under Section 482 of the Code seeking quashing of the criminal proceedings on the ground that the parties had arrived at a compromise. The High Court proceeded to quash the criminal proceedings in view of such settlement which order was challenged before the Hon'ble Supreme Court. It was held that while quashing the proceedings the High Court failed to consider the fact that the offences alleged were non‑compoundable as well as serious. They also had social impact. After referring to the decisions in Gian Singh, Narinder Singh and Parbatbhai Aahir (supra), it was held that it was not in every case where the complainant had entered into the compromise with the accused that the prosecution would not end in conviction. Such observation would be presumptive and in a given case the prosecution would be able to prove the guilt by leading cogent evidence and examining other witnesses especially when the dispute was not a commercial transaction and/or of civil nature and/or was not a private wrong. A distinction was again made between offences not against the society not having social impact and family/matrimonial disputes. The order passed by the High Court accordingly was set aside., Reference however would have to be made to the decision in Bitan Sengupta and anr. (supra) wherein the accused was convicted under Section 498-A of the Penal Code. An appeal filed before the Sessions Court came to be dismissed. However, during the pendency of the appeal, the parties arrived at a compromise and on that basis mutual divorce under Section 28 of the Special Marriage Act, 1954 came to be granted. The order of the Sessions Court was challenged by filing revision application before the High Court but the same was however dismissed. Before the Hon'ble Supreme Court, it was pointed out that the parties had settled the matter and that grievances were not surviving. In these circumstances and by following the spirit of the law laid down in B.S. Joshi (supra), it was observed that the High Court ought to have accepted the settlement and compounded the offences. The appeal was accordingly allowed and the order of conviction was set aside. As noted above, the conviction was under Section 498-A of the Penal Code and it was a matrimonial dispute between the parties., Basing an acquittal solely on the ground that the complainant/victim and the accused have settled the dispute post‑conviction would also result in infraction of Section 386 of the Code.
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In the case Amar Singh v. Balwinder and others, the Supreme Court of India referred to the scope of powers of the appellate Court especially under Section 386 of the Code of Criminal Procedure. It held that it was mandatory for the appellate Court to peruse the record, which necessarily includes the statements of witnesses and, where relevant, the testimony of eye witnesses. Perusal of the record is therefore mandatory, especially when the judgment of conviction has to be reversed by the appellate Court. Moreover, the convicted accused has an opportunity to have the stigma of conviction erased in the appeal. The law of the land is clear that a compromise entered into after conviction of the accused for a non‑compoundable offence cannot by itself result in acquittal. Such compromise can be taken into consideration while imposing an appropriate sentence on the accused. Thus, an appeal challenging conviction for a non‑compoundable offence cannot be allowed solely because the parties have compromised amongst themselves, and the order of conviction cannot be set aside on that ground. The same result cannot be obtained in proceedings under Section 482 of the Code of Criminal Procedure on similar grounds. It is well settled that what cannot be achieved directly cannot be permitted to be achieved indirectly. The exercise of discretionary power under Section 482 of the Code of Criminal Procedure cannot be used to attain a result that is impermissible in a statutory appeal or revision., The expression ‘criminal proceedings’ has been used by the Supreme Court of India in Gian Singh and Narinder Singh (supra). There was debate as to whether the expression should be restricted to proceedings before the trial Court prior to conviction or should extend to the entire proceedings until they attain finality. It is not necessary to labour on this aspect, especially in light of the judgment of the Constitution Bench of the Supreme Court of India in Narayan Row and others v. Ishwarlal Bhagwandas and others, AIR 1965 Supreme Court of India 1818. While examining the expression ‘civil proceedings’ within the meaning of Article 133(1)(c) of the Constitution of India, it was observed that ‘civil proceedings’ cover all proceedings in which a party asserts the existence of a civil right conferred by civil law or by statute and claims relief for breach thereof, whereas a criminal proceeding is ordinarily one which, if carried to its conclusion, may result in imposition of sentences such as death, imprisonment, fine or confiscation of property. It is thus clear that the expression ‘criminal proceedings’ is not limited to proceedings before the trial Court but includes the entire proceedings till their final culmination., It is necessary to refer to the decision of the Division Bench in Kiran T. Ingale (supra) especially because, while answering the reference made to the Division Bench, it was held that even in cases arising after conviction inherent powers could be exercised and criminal proceedings could be quashed. The facts leading to the reference were that the petitioner and the first respondent were husband and wife. In proceedings initiated under Section 498‑A of the Indian Penal Code the petitioner was convicted. During the appeal the dispute between the parties was settled and they obtained divorce by mutual consent. The first respondent agreed not to press for the petitioner’s conviction. The appellate Court maintained the order of conviction and gave benefit of the provisions of the Probation of Offenders Act, 1958 to the petitioner. The petitioner preferred a revision application challenging the order of conviction., The learned Single Judge observed that the decision of the Supreme Court of India in B.S. Joshi (supra) was not an authority to hold that an offence under Section 498‑A of the Indian Penal Code was a compoundable offence and referred the matter to the Division Bench. The Division Bench, while answering whether the High Court could quash the criminal proceedings in exercise of inherent powers in a case that had ended with an order of conviction after trial, held that conviction by the trial Court is not the end of the matter and the appeal therefrom is a continuation of the proceedings. Even if a revision application is filed and the conviction is maintained, altered or reduced, the High Court in revision has the power to pass an effective order in accordance with the judgment of the Supreme Court of India in B.S. Joshi (supra). When an appeal or revision application is filed against an order of conviction, the same does not attain finality and all issues remain open before the High Court., The Division Bench held that even in cases arising after conviction inherent powers could be exercised and criminal proceedings could be quashed. It further held that the decision in B.S. Joshi (supra) gave power to the High Court to permit compounding of matrimonial offences and the High Court also had the power to quash criminal proceedings or the first information report or complaint. The reference was answered in those terms., It is to be noted that the reference in Kiran T. Ingale (supra) principally arose pursuant to a challenge to the order of conviction under Section 498‑A of the Indian Penal Code and the effect of settlement thereafter. Relying upon the decision in B.S. Joshi (supra), wherein it was held that when matrimonial disputes which had increased considerably were resolved by either of the parties and thereafter a joint prayer was made for quashing the criminal proceedings filed under Sections 498‑A and 406 of the Indian Penal Code, the Division Bench held that such prayer could not be declined on the ground that the offences in question were non‑compoundable. The issue considered by the Division Bench was the exercise of inherent powers for quashing criminal proceedings that had resulted in conviction. In matrimonial cases where a settlement is entered into between the parties post‑conviction, the High Court, in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, can pass appropriate orders, including an order for quashing the criminal proceedings that have resulted in conviction of a party. The ratio of the decision in Kiran T. Ingale (supra) is that inherent powers under Section 482 of the Code can be exercised for quashing criminal proceedings at any stage, especially those arising out of matrimonial disputes. It is not the ratio of the decision that, even on conviction for a non‑compoundable offence of a serious nature, criminal proceedings can be quashed solely because the accused and the informant/complainant have settled their dispute, which could by itself result in an order of acquittal., In Abasaheb Yadav Honmane (supra) the Full Bench of this Court considered the scope of inherent powers under Section 482 of the Code of Criminal Procedure so as to permit the compounding of offences other than those punishable under Section 498‑A of the Indian Penal Code, particularly offences punishable under Sections 306, 307, 328, 376, 406 and 495 of the Indian Penal Code. The law laid down by the Supreme Court of India in B.S. Joshi (supra) was explained by the Full Bench together with another question regarding whether the power under Section 482 is restricted to the trial stage or is available even at the appellate stage. The Full Bench observed that the power to compound offences (granted by Section 320 of the Code of Criminal Procedure) and the power to quash criminal proceedings under Section 482 are distinct. While the power to compound offences is a statutory power, the power to quash a first information report or criminal proceedings under Section 482 finds its source in judge‑made law. The powers under Section 482 are not limited or affected by the provisions of Section 320, and offences that are not compoundable under Section 320 cannot be compounded in exercise of powers under Section 482. The Full Bench emphasized that the wide magnitude of the powers under Section 482 must be exercised sparingly and with caution, and any order in its inherent jurisdiction ought to be confined to one of the three categories stated in Section 482. It clarified that the judgment of the Supreme Court of India in B.S. Joshi (supra) did not give any power to the High Court to compound non‑compoundable offences even if they relate to matrimonial offences. The power to compound can be exercised at the trial stage or even at the appellate stage, subject to the conditions stipulated by Section 320 being satisfied. Thus, non‑compoundable offences cannot be compounded in exercise of inherent power under Section 482., We may now refer to some decisions of this Court wherein the prayer for quashing of criminal proceedings was considered in view of settlement of the dispute between the parties post‑conviction. In Ashwini @ Rani Youraj Akurde v. State of Maharashtra and another, 2016 (5) Maharashtra Law Journal (Criminal) 398, the applicant was convicted under Section 307 of the Indian Penal Code. During the pendency of the appeal before the Sessions Court, the applicant and the non‑applicant No. 2, her husband, amicably resolved their matrimonial dispute. The applicant approached the High Court under Section 482 seeking quashing of the criminal proceedings on the basis of the settlement. Relying on Gian Singh and Narinder Singh (supra), the bench observed that in Gian Singh the Supreme Court of India was dealing with criminal proceedings pending before the trial Court in which there was no conviction. The Court also referred to paragraph 28 of the decision in Narinder Singh. Considering the bleak possibility of conviction, the Court refused to exercise power under Section 482 to quash the proceedings, observing that the appellate Court would be required to consider the correctness of the finding of guilt recorded by the trial Court. Hence, despite settlement of disputes between the accused‑wife and the informant‑husband, the Court refused to quash the criminal proceedings under Section 482 in view of the conviction under Section 307., In Vasim Jafar Qureshi and others v. State of Maharashtra and another, 2014 All India Law Reports (Criminal) 1426, two cross‑cases resulted in conviction under Section 307 of the Indian Penal Code. The orders of conviction were challenged in separate appeals that were pending. Both parties then filed applications under Section 482 contending that, in view of settlement of their dispute, the offences be permitted to be compounded. The Court held that inherent powers could not be exercised to quash the prosecution merely because the parties had chosen to settle their dispute. The settlement was found to be motivated and entered into only for the benefit of each party. The Court was justified in refusing to quash the proceedings under Section 482 because the conviction was under Section 307 and the appeals challenging the same were pending., Similarly, in Sarjerao Shamrao Dhas v. State of Maharashtra, 2003 (2) Maharashtra Law Journal 235, the applicant was convicted under Section 307 read with Section 34 of the Indian Penal Code. Despite subsequent compromise and a prayer to quash the proceedings, the learned Single Judge refused to exercise jurisdiction under Section 482 to set aside the conviction. Instead, the conviction was maintained and the sentence was reduced to that which had already been undergone by the applicant., Shri P. R. Agrawal, learned Advocate, placed on record decisions of the Punjab and Haryana High Court dealing with the effect of compromise and the exercise of power under Section 482 to quash a first information report. In Dharambir (supra) the Full Bench considered whether the High Court could quash a first information report under Section 482 in view of compromise between the parties. Two learned Judges held that there was no provision conferring such power on the High Court to quash prosecution or permit compounding of offences that were not declared compoundable by the legislature, except for matrimonial disputes under the decision in B.S. Joshi (supra). The third Judge held that the power to quash a first information report in non‑compoundable offences could not be limited to matrimonial disputes alone and that no hard and fast category could be prescribed. In Kulwinder Singh and others (supra) a larger Bench of five Judges re‑examined the issue and held that the majority view in Dharambir was not correct; the minority view that there could never be a rigid category was correct, and the only principle was that embodied in Section 482 itself – to prevent abuse of the process of any Court or to secure the ends of justice. In Sube Singh and another (supra) a Division Bench answered whether criminal proceedings could be quashed under Section 482 when the accused had been convicted by the trial Court and an appeal was pending before the Sessions Court. The Division Bench held that the magnitude of inherent jurisdiction exercisable by the High Court under Section 482 to prevent abuse of process or to secure the ends of justice was wide enough to include the power to quash proceedings even in non‑compoundable offences, provided there was no express bar and the invocation was justified by the facts and circumstances of the case., An apprehension was expressed by the prosecuting agency that accepting compromise after conviction for a non‑compoundable offence, which could result in acquittal of the convict, might be misused and give scope to mischief. This apprehension is not misplaced. The timing of such compromise is an important factor, as noted by the Supreme Court of India in Narinder Singh (supra). There is always a possibility that the accused may take a chance at trial and only after conviction attempt to settle the dispute with the informant/complainant. The Supreme Court of India, in paragraph 29.7 of Narinder Singh, observed that mere compromise between the parties should not be a ground to acquit an offender who has already been convicted by the trial Court. Post‑conviction compromise by itself is not sufficient to acquit the convict of the offence proved by the trial Court. The Court also noted, in Ramesh v. State of Haryana (2017) 1 Supreme Court of India 529, that the culture of compromise has become a common phenomenon, with witnesses turning hostile and accused pressurising complainants to change their testimonies. These observations, though made in the context of lack of a witness protection programme, cannot be ignored when the issue pertains to acquiring acquittal solely on the ground of post‑conviction compromise., We also find the reference to Section 75 of the Indian Penal Code, cited by Shri Yash Venkatraman, to be relevant. Section 75 prescribes enhanced punishment for certain offences under Chapter XII or Chapter XVII after a previous conviction. The intention is to impose enhanced punishment if an accused is found guilty of a subsequent offence. Accepting compromise and setting aside the judgment of conviction could, in a given case, render the operation of Section 75 impossible for a subsequent conviction of the same accused. If an earlier conviction is set aside on the ground of compromise, there would be no occasion to impose enhanced punishment under Section 75 for a later offence. The reference to the reformative theory advanced by some learned advocates is not very relevant while answering the question. The theory of deterrence/reformation is part of sentencing policy and comes into play when the Court imposes an appropriate sentence after finding the guilt of the accused. Similarly, reference to the 327th Report of the Law Commission and its recommendation to increase the number of compoundable offences is not very relevant. As long as the recommendations of the Law Commission are not enacted by the legislature, the Courts are guided solely by the provisions of Section 320 of the Code of Criminal Procedure as it stands. The reports have only recommendatory value; the Court is not empowered to amend Section 320., Shri A. S. Mardikar, learned Senior Advocate, sought to invoke the principle of stare decisis, urging that since this Court had been entertaining applications under Section 482 where a compromise was entered into between the victim/complainant and the accused even after conviction, the Court should be slow in holding against that practice. We have noted the consistent line of decisions of the Supreme Court of India, which hold in clear terms that settlement or compromise by itself cannot be a ground for setting aside conviction for a non‑compoundable offence. Even in offences of a private nature that do not have a serious impact on society, the Supreme Court of India has maintained the conviction but reduced the sentence. If jurisdiction was exercised under Section 482 in some cases contrary to the law of the land, such practice cannot be saved by applying stare decisis. Binding precedents on this Court cannot be ignored lest the law of the land is not followed. The submission therefore does not deserve acceptance., While answering Question (A) we may observe the settled legal position as follows: At the conclusion of the criminal trial, the Court, on finding the evidence on record sufficient to prove the guilt of the accused, proceeds to convict the accused. The remedy of challenging the order of conviction is available by way of an appeal. Any compromise entered into post‑conviction for a non‑compoundable offence cannot by itself result in acquittal of the accused. The Court has no power to compound any offence that is non‑compoundable and not permitted to be compounded under Section 320 of the Code of Criminal Procedure. The compromise is merely a mitigating factor that can be taken into account while hearing the appeal or revision and while imposing an appropriate sentence. It is not permissible to set aside the judgment of conviction at the appellate or revision stage solely because the parties have entered into a compromise. The appellate or revision Court may also refuse to accept the compromise. Consequently, the conviction cannot be set aside in an appeal or revision solely on the ground of compromise, and the same result cannot be obtained in a proceeding under Section 482. Ordinarily, the contention that the convict and the informant/complainant have entered into a compromise after the judgment of conviction can be raised only before the appellate or revision Court in proceedings challenging such conviction. It would be a sound exercise of discretion under Section 482, in accordance with the law of the land, to refuse to quash criminal proceedings post‑conviction for a non‑compoundable offence solely on the ground of compromise. The Court may permit the convicted party to bring the aspect of compromise before the appellate or revision Court. Only in the rarest of cases, where a jurisdictional issue goes to the root of the matter or in matrimonial disputes where the parties have agreed to settle their differences, may jurisdiction under Section 482 be exercised to quash the proceedings. Such exercise should be limited to the rarest of cases when necessary to prevent abuse of process or to secure the ends of justice. The ratio of Kiran T. Ingale is to be applied subject to these limitations. The expression ‘criminal proceedings’ covers the entire journey from initiation to final culmination., In the order of reference dated 29 October 2020 the Division Bench posed a question as to whether, in criminal cases involving offences such as Sections 307, 354‑A, 354‑B of the Indian Penal Code and similar offences that have an economic flavour but tend to affect a large section of society, the cases could be considered as having a predominantly civil flavour, especially when they are crimes against society and settlement between the accused and the victim is not relevant or material. The Division Bench found itself not in a position to agree with the proposition that, in cases that have led to conviction after a due trial, an application for settlement between the accused and the complainant/victim could be entertained and the conviction could be quashed. Question (B) therefore asks whether the broader principles set out in Gian Singh v. State of Punjab and another (2012) 10 Supreme Court of India 303, Narinder Singh v. State of Punjab (2014) 6 Supreme Court of India 466 and Parbatbhai Aahir and others v. State of Gujarat (2017) 9 Supreme Court of India 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanjal. It is a settled position of law that a reference to a larger Bench is on a question or principle of law. The larger Bench must consider the appropriate principle of law applicable and is not concerned with the actual outcome of the proceedings that led to the reference. Paragraphs 12 and 13 of the decision in Gopakumar B. Nair (supra) observe that a reference to a larger Bench is for reconsideration of the principle of law, not the merits of the decision, and that the decision rendered by any Bench is final inter parties, subject to review and curative powers. The principle of law on which the decision is based is open to reconsideration by a larger Bench in an appropriate case. From this perspective, the reference in Gian Singh must be understood as whether quashing of a non‑compoundable offence on the basis of a compromise or settlement between the parties would be permissible and would not amount to overreaching the provisions of Section 320 of the Code of Criminal Procedure.
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In fact, this is the question that was referred to the larger Bench in Gian Singh and not the merits of the decision in Nikhil Merchant. The decision in Gian Singh holding the decision rendered in Nikhil Merchant and other cases to be correct is only an approval of the principle of law enunciated in the said decisions i.e. that a non-compoundable offence can also be quashed under Section 482 of the Criminal Procedure Code on the ground of a settlement between the offender and the victim. It is not an affirmation, for there can be none, that the facts in Nikhil Merchant justified or called for the due application of the aforesaid principle of law. Also, neither Nikhil Merchant nor Gian Singh can be understood to mean that in a case where charges are framed for commission of non-compoundable offences or for criminal conspiracy to commit offences under the Prevention of Corruption Act, if the disputes between the parties are settled by payment of the amounts due, the criminal proceedings should invariably be quashed. What really follows from the decision in Gian Singh is that though quashing a non-compoundable offence under Section 482 of the Criminal Procedure Code, following a settlement between the parties, would not amount to circumvention of the provisions of Section 320 of the Criminal Procedure Code, the exercise of the power under Section 482 will always depend on the facts of each case. Furthermore, in the exercise of such power, the note of caution sounded in Gian Singh (para 61) must be kept in mind. This, in our view, is the correct ratio of the decision in Gian Singh. It is thus clear that the larger Bench is necessarily concerned only with the principle of law or question of law referred to it for decision and it is not required to go into the actual merits of the decision. It is one thing to say that there is disagreement with the principle of law on the basis of which an earlier decision was rendered and it is another thing to seek to examine if such principle of law has been correctly applied in the given case. Whether the principle of law or provision of law has been correctly applied in deciding a particular case or not would be the province of an appellate forum. Thus while taking note of the disagreement as expressed by the Division Bench in Maya while referring the questions framed to a larger Bench, we do not find it necessary to individually examine the decisions rendered in Uddhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanjal (supra) to determine whether the principles or parameters as set out in Gian Singh, Narinder Singh, Parbatbhai Aahir (supra) have been correctly applied or not., It is however seen that in Uddhav Kisanrao Ghodse (supra) the Court proceeded to permit the parties to compound offences punishable under Section 354 of the Indian Penal Code. In Ajmatkhan Rahematkhan (supra) the parties were permitted to compound offences under Sections 354 and 452 of the Indian Penal Code. Such permission to compound non-compoundable offences would be against the law laid down by the Full Bench in Abasaheb Yadav Honmane (supra) which has re‑affirmed the legal position in that regard. It may be noted that one of the issues decided by the Division Bench in Shivaji Haribhau Jawanjal (supra) was with regard to exercise of powers under Section 482 of the Criminal Procedure Code for quashing criminal proceedings post‑conviction of the accused. We find no difficulty in recognizing such power as held in Kiran T. Ingale (supra), subject to the limitations as expressed while answering Question (A). However, it is found in Shivaji Haribhau Jawanjal (supra) that the judgment of conviction passed by the learned Magistrate under Sections 354, 452, 323 and 506 of the Indian Penal Code and confirmed in appeal by the Sessions Court has been set aside while accepting the compromise. In Criminal Application No. 430/2019 (Sandip Ramdas Ravekar Vs. State of Maharashtra) decided on 28.07.2020 to which one of us (A. S. Chandurkar, J.) was a party, the decision in Shivaji Haribhau Jawanjal (supra) was followed and the conviction of the accused under Sections 354, 452 read with Section 323 of the Indian Penal Code was set aside in view of settlement of disputes between the parties., Since we have held that compromise by itself is not sufficient to set aside the order of conviction for a non-compoundable offence, setting aside the order of conviction as directed is contrary to the decision in Surendra Nath Mohanty and another (supra). Question (B) stands answered accordingly. Before concluding we wish to place on record our sincere appreciation for the efforts taken by all the learned counsel while assisting the Court in answering the reference. The Criminal Application be placed before the Division Bench for its adjudication on merits. Andurkar.
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This judgment will dispose of common questions of law, which arise in various proceedings preferred under Article 32 of the Constitution of India, as well as transferred cases under Article 139A; those causes were transferred to the file of the Supreme Court of India, from various High Courts, as they involved interpretation of common questions of law in relation to provisions of the Insolvency and Bankruptcy Code, 2016 (hereafter the Code)., The common question which arises in all these cases concerns the vires and validity of a notification dated 15.11.2019 issued by the Central Government (Statutory Order 4126 (E) issued by the Ministry of Corporate Affairs). Other reliefs claimed concern the validity of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 issued on 15.11.2019 and the regulations challenged by the Insolvency and Bankruptcy Board of India on 20.11.2019. During the course of submissions, learned counsel for the parties stated that the challenge would be confined to the impugned notification., All writ petitioners before the High Courts, arrayed as respondents in the transferred cases before the Supreme Court of India, as well as the petitioners under Article 32 claim to be aggrieved by the impugned notification. At some stage these petitioners had furnished personal guarantees to banks and financial institutions which led to release of advances to various companies with which they were associated as directors, promoters, chairmen or managing directors. The personal guarantees were invoked, and proceedings are pending against the companies and the advances for which the guarantees were furnished. In many cases recovery proceedings and later insolvency proceedings were initiated. The insolvency proceedings are at different stages; some resolution plans are at the stage of finalisation, some have not yet been approved by the adjudicating authority and some approvals granted are subject to attack before the appellate tribunal., All the writ petitioners challenged the impugned notification as having been issued in excess of the authority conferred upon the Union of India (through the Ministry of Corporate Affairs). The petitioners contend that the power conferred upon the Union under Section 1(3) of the Insolvency and Bankruptcy Code, 2016 could not have been resorted to in the manner as to extend the provisions of the Code only as far as they relate to personal guarantors of corporate debtors. The impugned notification brought into force Section 2(e), Section 78 (except with regard to fresh start process), Sections 79, 94‑187 (both inclusive), Section 239(2)(g), (h) & (i), Section 239(2)(m) to (zc), Section 239(2)(zn) to (zs) and Section 249., After publication of the impugned notification, many petitioners were served with demand notices proposing to initiate insolvency proceedings under the Code. These demand notices were based on various counts, including that recovery proceedings were initiated after invocation of the guarantees. The main argument advanced in all these proceedings on behalf of the writ petitioners is that the impugned notification is an exercise of excessive delegation. It is contended that the Central Government has no legislative authority to impose conditions on the enforcement of the Code. It is further contended, as a corollary, that the enforcement of Sections 78, 79, 94‑187 etc. in terms of the impugned notification only in relation to personal guarantors is ultra vires the powers granted to the Central Government., Section 1(3) of the Code reads as follows: \It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Code and any reference in any such provision to the commencement of this Code shall be construed as a reference to the commencement of that provision.\, The petitioners argue that the power delegated under Section 1(3) is only to fix the date or dates on which different provisions of the Code can be brought into effect and does not permit the Central Government to notify parts of provisions of the Code, or to limit the application of the provisions to certain categories of persons. The impugned notification, however, notified various provisions of the Code only insofar as they relate to personal guarantors to corporate debtors and is therefore ultra vires the proviso to Section 1(3) of the Code., It is argued that the provisions of the Code brought into effect by the impugned notification are not severable, as they deal with individuals and partnership firms and do not specifically or separately govern insolvency proceedings against personal guarantors to corporate debtors. From a plain reading of the provisions, it is not possible to carve out a limited application only in relation to personal guarantors. The Central Government's move to enforce Sections 78, 79, 94‑187 etc. only in relation to personal guarantors is an exercise of legislative power wholly impermissible in law and amounts to an unconstitutional usurpation of legislative power by the executive. The petitioners also contend that the impugned notification, to the extent it brings into force Section 2(e) of the Code with effect from 01.12.2019, is hit by non‑application of mind because Section 2(e) as amended by Act 8 of 2018 came into force retrospectively from 23.11.2017, as noted by the Supreme Court of India in State Bank of India v. V. Ramakrishnan., The petitioners also attack the impugned notification on the ground that it suffers from non‑application of mind because the Central Government failed to bring into effect Section 243 of the Code, which would have repealed the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920. Prior to the issuance of the impugned notification, insolvency proceedings against an individual could be initiated only under those two Acts. After enactment of the Code, insolvency proceedings against personal guarantors to corporate debtors would lie before the adjudicating authority under Section 60 of the Code, although they would be governed by the two Acts. With the enforcement of the impugned provisions, rules and regulations, insolvency proceedings can now be initiated against personal guarantors to corporate debtors under Part III of the Code as well as under the two Acts, creating two self‑contradictory legal regimes., The petitioners urge that the impugned notification is ultra vires the Code because Part III of the Code governs \Insolvency Resolution and Bankruptcy for Individuals and Partnership Firms\. Section 2(g) defines an individual as \individuals, other than persons referred to in clause (e)\ and clause (e) relates to personal guarantors to corporate debtors. A joint reading of Section 2(e) with Section 2(g) and Part III shows that personal guarantors to corporate debtors are excluded from the definition of individuals and therefore Part III does not apply to them. The petitioners also rely on Section 95, which permits a creditor to invoke the insolvency resolution process against an individual only in relation to a partnership debt., Part III of the Code contains no provision permitting initiation of the insolvency resolution process against personal guarantors to corporate debtors. The impugned notification, which provides otherwise, is therefore ultra vires, arbitrary and discriminatory. There is no intelligible differentia or rational basis on which personal guarantors have been singled out, particularly when the provisions of the Code do not separately apply to this sub‑category of individuals. Moreover, Part III provides a single procedure for the insolvency resolution of a personal guarantor irrespective of whether the creditor is a financial creditor or an operational creditor, which is in contrast to Part II that distinguishes between the two classes of creditors., The petitioners rely on Swiss Ribbons (P) Ltd. v. Union of India, where the Supreme Court upheld the difference in procedure for operational creditors and financial creditors on the basis that there are fundamental differences in the nature of loan agreements with financial creditors and contracts with operational creditors for supplying goods and services., The petitioners argue that clubbing financial creditors and operational creditors in relation to the procedure for insolvency resolution of personal guarantors amounts to treating unequals equally and collapses the classification carefully created by Parliament in Part II of the Code. They also contend that the application of Sections 96 and 101 of the Code by the impugned notification results in the illogical consequence of staying insolvency proceedings against the corporate debtor when insolvency proceedings are initiated against the personal guarantor, while Sections 99 and 100 show that the resolution professional and the adjudicating authority need not consider whether the underlying corporate debt is discharged., It is argued that the liability of a guarantor is co‑extensive with that of the principal debtor (Section 128 of the Indian Contract Act, 1872). Upon conclusion of insolvency proceedings against a principal debtor, all claims against the guarantor are extinguished except to the extent admitted in the resolution plan (Section 31 of the Code). The impugned notification allows creditors to claim in the insolvency process of the guarantor without accounting for the amount realised in the corporate debtor's insolvency, which is untenable., The impugned notification has clothed the Committee of Creditors and Resolution Professionals with powers beyond the enacted statute. It defines the term \guarantor\ as a personal guarantor to a corporate debtor whose guarantee has been invoked and remains unpaid, a term not defined in the Code. Although Section 239(1) empowers the Insolvency Board to make rules to carry out the provisions of the Code, those rules cannot define a term that is not defined in the Code, as this would result in class legislation for personal guarantors. Hence the notification is ultra vires the Code., Mr. Harish Salve, learned senior counsel for the petitioners, urged that Section 1(3) of the Code authorises the Central Government only to bring provisions of the Code into force on a date by notification in the Official Gazette. This is conditional legislation; the legislature has made the law complete and the executive's only function is to bring it into operation at the time it decides. By issuing the impugned notification, the Central Government exceeded the power conferred upon it and effectively modified the provisions of Part III, amounting to an unconstitutional delegation of power. He relied on the Delhi Laws Act, 1912; In re v. Part ‘C’ States (Laws) Act, 1950; State of Tamil Nadu v. K. Sabhanayagam; and Vasu Dev Singh & Ors. v. Union of India., Counsel further argued that Part III of the Code does not create any distinction between an individual and a personal guarantor to a corporate debtor. The impugned notification, in substance, modifies the text of the actual sections of Part III by adding the phrase \only in so far as they relate to personal guarantors to corporate debtors\, which is outside the scope of Section 1(3)., It was also argued that the impugned notification violates the principles of delegation, as the Central Government has effected a classification of individuals and sought to ensure that insolvency issues of personal guarantors are considered along with insolvency proceedings of corporate debtors. The power of classification is legislative, and the executive acting beyond its jurisdiction is an instance of the executive usurping legislative power. The argument relied on the Privy Council observation in R v Burah that laws cannot empower the executive to exercise power not granted under the parent Act., Counsel contended that the Central Government mistakenly assumed that the amendment of Section 2(e) automatically amended Section 1(3). Section 2 is merely descriptive, stating the entities to which the Code applies, and cannot be used to limit the application of provisions to a sub‑category of individuals. Conditional legislation permits the executive only to designate the time or place of operation, not to decide which parts of an enactment apply to which class of persons. The impugned notification therefore amends the statutory scheme in a manner that is ultra vires the Code., Mr. P.S. Narasimha, learned senior counsel, argued that conditional legislation is complete in itself and the only function delegated to the executive is to apply the law to a specific area or to determine the time and manner of its operation. He cited State of Bombay v. Narothamdas Jethabhai, Sardar Inder Singh v. State of Rajasthan, and Hamdard Dawakhana v. Union of India, emphasizing that the executive cannot perform tasks outside the power granted to it, such as choosing the subjects to which the law is to apply., Counsel referred to previous notifications that brought provisions of the Code into force on different dates, noting that none of them limited the provisions to a sub‑category of individuals. The impugned notification, however, applies only to personal guarantors to corporate debtors, an unprecedented exercise of conditional legislation power and therefore ultra vires the parent enactment., Even assuming that the Central Government had the power to issue the impugned notification, it would be ultra vires the objects and purpose of the Code. The Statement of Objects and Reasons of the Insolvency and Bankruptcy Code (Amendment) Bill, 2017 makes clear that the Code aims to ensure corporate revival, not merely creditor recovery., Learned counsel emphasized that the object of the Code is to ensure a company's revival and continuation by protecting it from liquidation and maximising its value. The Code is beneficial legislation that puts the corporate debtor back on its feet, not a mere recovery legislation for creditors. The Supreme Court in Swiss Ribbons Pvt. Ltd. and Babulal Vardharji Gurjar v. Veer Gurjar Aluminum Industries Pvt. Ltd. observed that the first phase of the Code was intended to extend provisions to personal guarantors of corporate debtors with a clear enabling provision in the Bill., Parliament amended the Code in 2018, defining personal guarantor as a species of individuals to whom the law applied, but the manner of its application continued to be the same for all individuals. Using conditional legislation power under Section 1(3) to bring into force certain provisions selectively for personal guarantors, and not for all individuals, is ultra vires and constitutes a naked classification exercised by the government., Part III of the Code relating to individuals and partnership firms has been notified and is operative. Section 2 is a descriptive component that merely declares the subjects to which the Code applies and cannot be used to bifurcate individuals and partnership firms into sub‑categories and apply Part III exclusively to personal guarantors. It is not an operative component that can confer selective power on the executive., Mr. Sudipto Sarkar, learned senior counsel, relied on Jatindra Nath Gupta v. Province of Bihar, stating that the power to extend an Act for a period with modifications, or to modify an Act without limitation, is a legislative power and cannot be exercised by the executive under conditional legislation., Counsel Mr. Rohit Sharma, Ms. Pruthi Gupta, Mr. Rishi Raj Sharma and Mr. Manish Paliwal argued that the procedure for initiation of insolvency resolution against personal guarantors to corporate debtors is the same as for other individuals, the only difference being that the forum is the National Company Law Tribunal. Separating the process and directing that the two proceedings be clubbed is a legislative exercise unsupported by any express provision of the Code. Moreover, if an application against a personal guarantor is admitted, a moratorium under Section 101 of the Code automatically applies, resulting in a stay of all pending proceedings or legal claims in respect of all debts.
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Since the debt of the personal guarantor is the same as the debt of the corporate debtor, all pending proceedings, including the corporate insolvency resolution plan initiated against a corporate debtor would be stayed on admission of an application for initiation of the resolution plan against a personal guarantor. This would in fact amount to treating unequals as equals by a sheer legislative fiat. In other words, argued counsel, the moratorium which would operate in respect of pending resolution plans of corporate debtors, upon the initiation of an application against personal guarantors puts them on the same level, which the statute itself does not permit., It is submitted that by virtue of Section 140 of the Indian Contract Act, a guarantor upon payment or performance of all that he is liable for, is invested with all rights which the creditor had enjoyed against the principal debtor. This provision enables the guarantor to exercise all rights, which the creditor had against the principal debtor, which would include the right to file a resolution plan against the corporate debtor after conclusion of the latter's resolution process. However, by virtue of Section 29A of the Insolvency and Bankruptcy Code, promoters of corporate debtors who in most cases are personal guarantors, are barred from filing a resolution plan in the corporate resolution process of the corporate debtor. This places them at a distinct disadvantage as compared with individuals who are not personal guarantors., In this regard, the inability of such personal guarantors to recover amounts from the corporate debtor in the insolvency process, as well as at a later stage, if necessary, to initiate insolvency process, has been affected by virtue of the impugned notification. It was submitted that the Supreme Court of India, in Committee of Creditors of Essar Steel India Ltd. v. Satish Kumar Gupta, ruled that “Section 31 (1) of the Insolvency and Bankruptcy Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate.” Counsel therefore argued that an approved resolution plan in respect of a corporate debtor amounts to extinction of all outstanding claims against that debtor; consequently, the liability of the guarantor, which is co‑extensive with that of the corporate debtor, would also be extinguished., It was further argued that the resolution plans, duly approved by the Committee of Creditors, would propose to extinguish and discharge the liability of the principal borrower to the financial creditor. Therefore, the petitioners’ liability as guarantors under the personal guarantee would stand completely discharged. Reliance is placed on the judgment of the Punjab and Haryana High Court in Kundanlal Dabriwala v. Haryana Financial Corporation, which ruled that “on a fair reading of the provisions of the Contract Act, I am inclined to hold that as the liability of the surety is co‑extensive with that of the principal debtor, if the latter’s liability is scaled down in an amended decree, or otherwise extinguished in whole or in part by statute, the liability of the surety also is pro tanto reduced or extinguished.”, Reliance was also placed on the judgment of the National Company Law Appellate Tribunal in Dr. Vishnu Kumar Agarwal v. Piramal Enterprises Ltd, where it was held that “for the same set of debts, claim cannot be filed by same financial creditor in two separate corporate insolvency resolution processes.”, Arguments of the Union and other Respondents. Arguing for the Union of India, the Attorney General Mr. K. K. Venugopal submitted that the Insolvency and Bankruptcy Code was amended in 2018. It substituted the pre‑amended definition in Section 2(e) by introducing three different classes of debtors, which are personal guarantors to corporate debtors (Section 2(e)), partnership firms and proprietorship firms (Section 2(f)) and individuals (Section 2(g)). The purpose of splitting the provision and defining three separate categories of debtors was to cover three separate sets of entities. Parliament wanted to deal with personal guarantors under Section 2(e) differently from partnership firms and proprietorship firms under Section 2(f), and individuals other than persons referred to in Section 2(e) under Section 2(g)., This was because Section 60 of the Insolvency and Bankruptcy Code, which deals with the adjudicating authority for corporate debtors, was partially amended in 2018. The amendment to Section 60(2) added that it applied to insolvency proceedings or liquidation/bankruptcy of a corporate guarantor or personal guarantor as the case may be, to a corporate debtor. The result of the amendment is that when a corporate debtor faces insolvency proceedings, insolvency of its corporate guarantor too can be triggered. Likewise, a personal guarantor to a corporate debtor, facing insolvency, can be subjected to insolvency proceedings. All this is to be resolved and decided by the National Company Law Tribunal. In other words, the amendment by Section 60(2) also achieved a unified adjudication through the same forum for resolution of issues and disputes concerning corporate resolution processes, as well as bankruptcy and insolvency processes in relation to personal guarantors to corporate debtors., It was argued that Parliament felt compelled to separate personal guarantors from other individuals such as partnership firms, proprietorships and individuals. It was felt that if this separation, achieved through the amendment of 2018, were not realized, the insolvency resolution process of corporate debtors would have to be dealt with separately and independently of its promoters, managing directors, and directors who had furnished their personal guarantees to secure debts of corporate debtors. If insolvency resolution proceedings against corporate debtors were continued without this amendment, and without the unification of the adjudicatory body, on the default of the corporate debtor to a debt owed to a financial creditor, the entire machinery of the Code relating to the corporate debtor would work itself out, to the exclusion of personal guarantors. This presented a peculiar problem, in that the resolution applicant, wishing to bid for takeover of the corporate debtor and operate it as a running concern would be faced with a huge liability, and the personal guarantor in most cases would be one of the individuals primarily responsible for the insolvency of the company, but would be out of the resolution process and have to be separately proceeded with., What therefore has been effectuated by creating an independent provision, by separating personal guarantors of corporate debtors and by the same amendment, placing the personal guarantor’s debt before one tribunal/forum namely the National Company Law Tribunal, is that such a forum would apply the procedure in Part III, in regard to personal guarantors for providing repayment of the entire debt for which the guarantee is furnished in the first place. If that debt is not repaid in Part III, the personal guarantor would not stand discharged, but would himself be forced into bankruptcy proceedings., It was submitted that though the procedure to be adopted by the National Company Law Tribunal and rules of insolvency (in relation to personal guarantors, under Part III of the Code) might be different from that relating to corporate debtors, unifying both processes under one forum enables the adjudicating body to have a clear vision of the extent of debt of the corporate debtor, its available assets and resources, as also the assets and resources of the personal guarantor. This would not have been viable, had the insolvency resolution process of the personal guarantor continued under Part III, before another body. The amendment and the impugned notification would ensure a more optimal resolution process, as resolution applicants wishing to take over the management of corporate debtors would ultimately find the process of taking over more attractive; besides, there will be more competition in regard to the bids proposed, and the total debt servicing of the corporate debtor might be lowered if the personal guarantor’s assets are also taken into account to mitigate the corporate debtor’s liabilities., The personal guarantor in such cases, who provides assets which have been charged against the amount advanced to his company would most probably not permit himself to be driven to bankruptcy, and would therefore be more likely to arrange for payment of monies due from him to obtain a discharge by payment of the amount outstanding to the bank or other financial creditor. In some cases, the creditor bank may be even prepared to take a haircut or forego the interest amounts so as to enable an equitable settlement of the corporate debt, as well as that of the personal guarantor. This would result in maximizing the value of assets and promoting entrepreneurship, which is one of the main purposes of the Code., The learned Attorney General submitted that the expression “provision” has been defined in Black’s Law Dictionary (10th edition, page 1420) as “a clause in a statute, contract or other legal instrument”. He also relied upon the judgment in Chettian Veettil Amman v. Taluk Land Board to the effect that: “A provision is therefore a distinct rule or principle of law in a statute which governs the situation covered by it. So an incomplete idea, even though stated in the form of a section of a statute, cannot be said to be a provision for, by its incompleteness, it cannot really be said to provide a whole rule or principle for observance by those concerned. A provision of law cannot therefore be said to exist if it is incomplete, for then it provides nothing.” He therefore urged that Section 2(e) being complete and distinct is a provision within the meaning of Section 1(3), and the Central Government acted intra vires to bring it into force, as well as certain provisions in Part III of the Code., It was argued that the executive has the power to bring into force any one provision of a statute at different times for different purposes, and that the government can exercise this power to commence a provision for one purpose on one day and for the remaining purposes on a later date. He relied upon the following extract from Bennion on Statutory Interpretation: A Code (6th Edition, page 257): “Where power is given to bring an Act into force by order, it is usual to provide flexibility by enabling different provisions to be brought into force at different times. Furthermore any one provision may be brought into force at different times for different purposes. Advantages. This method of commencement gives all the advantages of extreme flexibility. Before a new Act is brought into operation, any necessary regulations or other instruments which need to be made under it can be drafted.”, The learned Attorney General relied upon two Constitution bench decisions of the Supreme Court of India, which throw light on the power exercised by the Central Government under provisions which permit notification of provisions bringing into force legislation in phases. The judgments cited were Basant Kumar Sarkar v. Eagle Rolling Mills Ltd. and Bishwambhar Singh v. State of Orissa. He emphasized that often, when new legislation is introduced, the impact it might have on the subject matter needs to be studied and it would be to the benefit of all that a stage‑by‑stage or region‑by‑region implementation is adopted. Furthermore the discretion exercised by the executive government is not unfettered., The Attorney General urged that what follows from the above decisions is that Section 1(3) of the Insolvency and Bankruptcy Code has to be interpreted to give flexibility to the Central Government to implement provisions of the Code to meet the objectives of the enactment. He highlighted that the Central Government has in fact been enforcing the provisions of the Code in a phased manner and brought to the Supreme Court of India’s notice that the provisions were notified on ten different dates. It was submitted that the Code brought about a radical change in the existing laws applicable to debtor companies in that a single default by the corporate debtor above a threshold limit prescribed in the Code triggers an insolvency resolution process enabling a creditor to demand repayment. Heavy emphasis is placed by the Code on attempting resolution of the corporate debtor to maximize the value of the company and ensure that it continues as a going concern in the interests of the economy. It was keeping in mind these objectives that the impugned notification was issued appointing 1 December 2019 as the date on which certain provisions of the Insolvency and Bankruptcy Code were to come into force, only so far as they relate to personal guarantors to corporate debtors. The submission that the impugned notification creates a classification was refuted. He stated that it only brought into force sections in Part III of the Code and Section 2(e) of the Code, from 1 December 2019. From that date, proceedings could be filed against personal guarantors to corporate debtors under the Code. The proceedings would be initiated before the National Company Law Tribunal, which would also be seized of resolution proceedings against the corporate debtors., The Attorney General submitted that the Amendment Act brought about a classification after detailed deliberations and in the light of the report of the Working Group on Individual Insolvency, Regarding Strategy and Approach for implementation of Provisions of the Code to Deal with Insolvency of Guarantors to Corporate debtors, and Individuals having business. In this report of 2017, the working group recognized the dynamics and the interwoven connection between the corporate debtor and guarantor, who has extended his personal guarantee., The Attorney General also relied upon the report of the Bankruptcy Law Reforms Committee tasked with introducing a comprehensive framework for insolvency in bankruptcy. That committee recognized that personal guarantors were a category of entities to whom individual insolvency proceedings applied, and acknowledged the link between them and corporate debtors and found that under a common Code, there could be synchronous resolution. In this regard, paragraphs 3.4.3 and 6.1 of the report of the committee, dated November 2015, were relied upon. He pointed out that the synchronous resolution envisaged by the BLRC is found in the Insolvency and Bankruptcy Code in Section 5(22) and Section 60 (which fall in Part II of the Code), and Section 23. The said extracts are as follows: “3.4.3 Design of the proposed Code: A unified Code. The Committee recommends that there be a single Code to resolve insolvency for all companies, limited liability partnerships, partnership firms and individuals. In order to ensure legal clarity, the Committee recommends that provisions in all existing law that deals with insolvency of registered entities be removed and replaced by this Code. This has two distinct advantages in improving the insolvency and bankruptcy framework in India. The first is that all the provisions in one Code will allow for higher legal clarity when there arises any question of insolvency or bankruptcy. The second is that a common insolvency and bankruptcy framework for individual and enterprise will enable more coherent policies when the two interact. For example, it is common practice that Indian banks stake a personal guarantee from the firm’s promoter when they enter into a loan with the firm. At present, there are a separate set of provisions that guide recovery on the loan to the firm and on the personal guarantee to the promoter. Under a common Code, the resolution can be synchronous, less costly and help more efficient recovery.” “6.1 The applicability of the Code. The Committee considers the following categories of entities to whom the individual insolvency and bankruptcy provisions shall apply: Sole proprietorships where the legal personality of the proprietorship is not different from the individual who owns it. Personal guarantors. Consumer finance borrowers.”, It was argued that the term ‘personal guarantor’ is defined in Part II of the Code which provides for insolvency resolution and liquidation for corporate persons; Section 5(22) of the Insolvency and Bankruptcy Code defines “personal guarantor” to mean “an individual who is the surety in a contract of guarantee to a corporate debtor”. Secondly, by reason of Section 60(1), the Adjudicating Authority, in relation to insolvency resolution and liquidation for corporate persons (including corporate debtors and their personal guarantors), shall be the National Company Law Tribunal. Section 60(2) mandates that where a corporate insolvency resolution process or liquidation proceeding of a corporate debtor is pending before the National Company Law Tribunal, an application relating to the insolvency resolution or bankruptcy of a personal guarantor of such corporate debtor shall be filed before the National Company Law Tribunal. Section 60(4) vests the National Company Law Tribunal with all powers of the Debt Recovery Tribunal as contemplated under Part III of the Code for the purpose of Section 60(2). Thirdly, under Section 179, the Debt Recovery Tribunal is the Adjudicating Authority for insolvency resolution for all other categories of individuals and partnership firms. Section 179 itself is subject to Section 60. It was argued that common oversight of insolvency processes of the corporate debtor, its corporate guarantor, and personal guarantors, through one forum, under the Code, (which, by reason of Section 238, overrides all other laws), was the objective of the amendment of 2018 and the impugned notification., The learned Attorney General also pointed out to Section 30, which enacts that an adjudicatory authority approved resolution plan binds all stakeholders. However, at the same time, in the event a resolution plan permits creditors to continue proceedings against the personal guarantor, then such personal guarantors would continue to be liable to discharge the debts owed to the creditor by the corporate debtor, which would be limited of course to the extent of debt that did not get repaid under the resolution plan. The Attorney General also relied on Embassy Property Developments (P) Ltd. v. State of Karnataka where the Supreme Court of India had examined and dealt with the interplay between Sections 5(22), 60 and 179 of the Code., Mr. Tushar Mehta, Solicitor General of India, supported the submissions of the Attorney General. He too stressed that different provisions were brought into force on different dates. He highlighted that Section 1(3) of the Code confers wide powers enabling the Central Government to operationalize the Code in a subject‑wise and (not necessarily in a contiguous manner) particular sections, provisions or parts. He urged that the petitioners’ interpretation of the statute is unduly narrow and would result in disrupting the Code. It was argued that Section 2 of the Code is not a definition clause but rather acts as a lever to provide a mechanism for a phased and limited interpretation of the Code. He underlined, therefore, that Section 2 represents Parliamentary classification as regards classes of debtors who fall under the Code. The Solicitor General pointed out that before the 2018 amendment, Section 2(e) was generic and that the amendment classified three distinct types of entities. The personal guarantors to corporate debtors are no doubt individuals like others, but are in fact at the centre of insolvency of a corporate debtor. He submitted that a predominant reason for the insolvency of corporate debtors invariably is the role played by its directors, etc., who are personal guarantors and are or were, mostly at the helm of affairs of the corporate debtor itself., The Solicitor General submitted that Part II of the Code applied to all categories of corporate entities who are debtors. By virtue of Section 3(8), the corporate debtor is a corporate or juristic entity that owes a debt to any person. Likewise, the corporate guarantor under Section 3(7) is a corporate person who has stood guarantee to a corporate debtor. Before the impugned notification, proceedings in Part II were confined to corporate debtors and only another class, i.e., corporate guarantors. Personal guarantors and corporate guarantors formed part of the same class inasmuch as they were guarantors since they had furnished guarantees to corporate debtors to secure their loans. Yet, personal guarantors being individuals were not included in Part III, for functional and operational purposes. The Solicitor General submitted that Part II outlines the mechanism involved in regard to insolvency resolution functionally and operationally designed for corporate bodies. This takes into its sweep a resolution professional, committee of creditors as third parties taking over the debtor and taking crucial decisions for insolvency resolution. This statutory mechanism could not be applied to individuals as there is no question of take over of individuals. Individuals, who stand guarantee to corporate debtors and whose liability is co‑terminus with such corporate debtors were therefore, outside the field of the Code. This resulted in an anomaly inasmuch as one set of guarantors to corporate debtors, i.e., individuals or personal guarantors were outside the purview of the Code whereas other set of guarantors, i.e., corporate guarantors were subjected to the provisions of the Code and could also be proceeded against in Part II. As a result, a conscious decision was taken to enforce Part III and operationalize the mechanism suitably for a class of individuals, i.e., personal guarantors. This decision was implemented through the impugned notification., Apart from reiterating the submission of the Attorney General with regard to the flexibility in respect of notifying parts of the Code on different dates, having regard to the difference in subject matter and those governed by it, the learned Solicitor General also relied upon the decision reported as J. Mitra and Co. Pvt. Ltd. v. Assistant Controller of Patents. He relied upon the report of the Working Group of Individual Insolvency (Regarding Strategy and Approach for Implementation of the Provisions of the Insolvency and Bankruptcy Code, 2016) to deal with insolvency of guarantors to corporate debtors and individuals having business, which had highlighted that in the absence of notification of provisions of the Code dealing with insolvency and bankruptcy of personal guarantors to corporate debtors, creditors are unable to effectuate the provisions of the Code and access remedies available under the Code. He submitted that the Supreme Court of India has repeatedly held in several decisions that there is no compulsion that all provisions of law or an Act of Parliament or any other legislation should be brought into force at the same time. The legislature in its wisdom may clothe the executive with discretion to bring into force different parts of a statute on different dates, or in respect of different subject matters, or in different areas. Reliance was placed upon Lalit Narayan Mishra Institute of Economic Development v. State of Bihar & Ors. and Javed & Ors v. State of Haryana & Ors. It was submitted that the Central Government, therefore, acted within its rights to confine the enforcement of the provisions of the Code to a class of individuals, i.e., to personal guarantors, without altering the identity and structure of the Code. It was submitted that this is permissible as it is within the larger power of enforcement of the statute, which encompasses the discretion to enforce the law in respect of a definite category, provided that such an act of enforcement would not alter the character of the Code. It was therefore, submitted that the enforcement of parts through the impugned notification only in respect of personal guarantors in no way alters the identity or character of the Code., The Solicitor General further submitted that the liability of a guarantor is co‑extensive, joint and several with that of the principal borrower unless the contrary is provided by the contract. A discharge which a principal borrower may secure by operation of law (for instance on account of winding up or the process under the Code) does not however absolve the surety from its liability. Section 128 of the Indian Contract Act, 1872 provides that the liability of a principal debtor and a surety is co‑extensive, unless provided to the contrary in the contract. The word co‑extensive is an objective for the word ‘extent’ and it can relate only to the quantum of the principal debt. The Solicitor General relied on certain decisions in this regard. It is stated that the creditor also has the liberty to proceed against the principal borrower and all sureties simultaneously; in this regard, he cited Bank of Bihar Ltd. v. Dr. Damodar Prasad & Anr. It is submitted that no court or co‑surety can limit such a right. For this proposition, reliance was placed on State Bank of India v. Index Port Registered and Industrial Investment Bank of India v. Biswanath Jhunjhunwala. Counsel also submitted that a surety cannot alter or defer such a right of the creditor. Hence, until the debt is paid off to the creditor in entirety, the guarantor is not absolved of its joint and several liability to make payment of the amounts outstanding in favour of the creditor., The Solicitor General submitted that neither the guarantor’s obligations are absolved nor discharged in terms of Sections 133 to 136 of the Indian Contract Act, 1872, on account of release/discharge/composition or variance of contract which a principal borrower may secure by way of operation of law for instance as under the Code. The rights of a creditor against a guarantor continue even in the event of bankruptcy or liquidation, stressed the Solicitor General, and relied on Maharashtra State Electricity Board Bombay v. Official Liquidator, High Court, Ernakulam & Anr., where the Supreme Court of India considered the interplay of Sections 128 and 134 of the Contract Act in the facts of the case. In that case, a company whose advances were secured by a guarantee went into liquidation. The court held that the fact the principal debtor went into liquidation had no effect on the liability of the guarantor, because the discharge secured of the principal borrower was by “operation of law” and involuntary in nature. This was followed in Punjab National Bank v. State of Uttar Pradesh. This Court held that: “In our opinion, the principle of the aforesaid decision of this Court is equally applicable in the present case. The right of the appellant to recover money from respondents who stood guarantors arises out of the terms of the deeds of guarantee which are not in any way superseded or brought to naught merely because the appellant may not be able to recover money from the principal‑borrower. It may here be added that even as a result of the Nationalisation Act the liability of the principal‑borrower does not come to an end. It is only the mode of recovery which is referred to in the said Act.”, To a similar end, the judgment of the Calcutta High Court in Gouri Shankar Jain v. Punjab National Bank & Anr. was relied on. It was held that none of the obligations of the surety under Sections 133 to 139, 141 and 145 of the Contract Act are discharged on account of admission of a Section 7 application. As such, a discharge is on account of a statute and involuntary in nature. It was also argued that similarly, in terms of Section 31 of the Code, a resolution plan approved by the Adjudicating Authority is binding on all stakeholders including the guarantors, and hence, the release/discharge/composition or variance of contract with the principal borrower in terms of a resolution plan is “statutorily” presumed to be consented by the guarantors in question. Therefore, by way of approval of a resolution plan, any release/discharge secured by the principal borrower or entering into a composition with the principal borrower (reference to Section 135 of the Contract Act) cannot discharge the guarantor in any manner whatsoever. The judgment of the Supreme Court of India in State Bank of India v. V. Ramakrishnan & Ors. too was relied on, where the court recognized that a guarantor cannot seek a discharge of its liability on account of approval of a resolution plan, and the terms of such a plan can provide for the continuation of the debt of the guarantors., It was submitted that the continuation of a financial creditor’s claim against a guarantor would not lead to double recovery of a claim as the financial creditor would be able to recover only the balance debt which remains outstanding and unrecovered from the principal borrower. There are enough safeguards against double recovery as provided under (a) the settled principle of contract law that simultaneous remedy against the co‑obligors does not permit the creditor to recover more than the total debt owed to it, and (b) the provisions of the Code itself. The Solicitor General relied on the acknowledged practice, known as the principle of “double dip” or the notion of dual nature of recovery by a creditor for the same debt from two entities – be it principal borrower and guarantor or co‑guarantors or co‑debtors. When a primary obligor and a guarantor are liable on a single claim, the creditor can assert a claim for the full amount owed against each debtor until the creditor is paid in full (that is it can double dip). This means that in case a portion of debt is recovered from one of the entities, either principal borrower or guarantor, the other would be liable for the unsatisfied amount of the claim, the principal borrower being joint and several with the surety. This principle is opposed to the principle prohibiting “double proof”.
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This right of double dip of a creditor was spoken of in the recent judgment of the Supreme Court of India, Pegasus Aviation Finance Company Limited v. Kingfisher Airlines Limited, where the decree holders initiated simultaneous execution proceedings against both the principal debtor and the guarantor on the basis of the same decree, and the Executing Court suo moto raised the issue of maintainability to hold that both the execution petitions are not simultaneously maintainable. The High Court of Karnataka disagreed and held that the decree holders cannot be directed to amend their claims in each of the execution petitions to only half the decretal amount. Reliance was also placed on the judgment of the United Kingdom Supreme Court in In Re Kaupthing Singer and Friedlander Ltd. (in administration)., Mr Rakesh Dwivedi, learned senior counsel appearing for the State Bank of India, urged that the substance of the petitioners' argument is that Section 1(3) does not empower the Central Government to enforce the provisions of Part III of the Insolvency and Bankruptcy Code selectively to personal guarantors of corporate debtors only. The petitioners highlight that Part III applies to individuals and partnership firms in a composite manner, and the impugned notification dated 15 November 2019 splits that unity by enforcing the provisions of Part III only upon personal guarantors of corporate debtors. It is urged that the submission that Section 1(3) does not confer the power of modification on the Central Government is presented by characterising Section 1(3) as conditional legislation., Mr Dwivedi stated that nothing much depends on the characterisation of Section 1(3) as conditional or delegated legislation. Even conditional legislation involves a delegation of legislative power to the authority concerned. Under Section 1(3), the Central Government is only a delegate of Parliament. In some cases, such provisions or provisions of broadly similar nature have been described by this Court as conditional legislation, but equally in some cases such a power has been described as delegated legislation by different judges. Reliance was placed on the Delhi Laws Act, 1912, In re Part C States (Laws) Act, 1950 and Lachmi Narain v. Union of India., It was urged that provisions of diverse nature have been characterised as conditional legislation by this Court. The cases relied upon by the petitioners related to a challenge to the validity of legislative provisions on the ground of excessive delegation of legislative power. In In re Delhi Laws, the Central Government was expressly empowered to enforce certain laws with modifications and restrictions. The power of modification was held to be limited to such modifications as did not affect the identity, structure or essential purpose of the law. This was a departure from the judgment of the Federal Court in Jatindra Nath Gupta. However, in the case of Lachmi Narain, the notification issued by the Government was challenged, and this Court held that the real question was whether the delegate acts within the general scope of the affirmative words which give the power, and without violating any express conditions or restrictions by which that power is limited., While Jatindra Nath involved extension of the life of a temporary Act, in the Delhi Laws case the power under consideration was to extend the laws of Part C States to Part A States. Later, in Raghubar Swarup v. State of Uttar Pradesh, the State Government was conferred power by Section 2 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951, to extend the Act to other areas in the State. It involved selection of geographical area for applying the law. Similarly, in Tulsipur Sugar Company, the power was conferred to extend the Uttar Pradesh Town Areas Act, 1914, to a notified area. Learned senior counsel argued that in Sardar Inder Singh, the power conferred on the executive to extend the life of a temporary Act, even when no outer limit is prescribed, was upheld. In Bangalore Woollen, Cotton and Silk Mills v. Bangalore, the power conferred on the Municipal Corporation to levy octroi on \other articles not specified in the Schedule\ was upheld as being more in the nature of conditional legislation., Reliance was also placed on ITC Bhadrachalam v. Mandal Revenue Officer, where the power to exempt any class of non‑agricultural land was upheld, stating that the power to bring an Act into force as well as the power to grant exemption are both treated as belonging to the category of conditional legislation. Learned counsel therefore urged that the line of demarcation between conditional and delegated legislation at times gets blurred., While judging the validity of the legislations, this Court has examined the sufficiency of the guidance afforded by the legislative policy indicated in the relevant statute. Reliance was placed on Edward Mills v. State of Ajmer. All these establish that diverse provisions apart from those which empower the executive to enforce the Act have been characterised as conditional legislation and their validity and scope have been determined in the light of the text, context and purpose of the Act., Learned counsel stated that a schematic, structural and purposive construction of Section 1(3) of the Insolvency and Bankruptcy Code needs to be adopted to determine the scope of the power conferred on the Central Government. The petitioners apply the rule of literal construction and seek to construe Section 1(3) in isolation, without reference to the context, scheme or purpose of the Code. It is submitted that the ambit of Section 1(3) should not be determined by merely applying the doctrine of literal construction. All provisions of the Code, including the enforcement provision, should be construed in the context of the entire enactment and the approach should be schematic, structural and purposive. Furthermore, Section 1(3) should not be construed in isolation. It is well settled that a statute has to be read as a whole. The scope of the power under Section 1(3) cannot be expounded without taking note of the scheme of the Code and the other related provisions. Counsel relied on the observations of this Court in State of West Bengal v. Union of India, stating that in considering the true meaning of words or expression used by the legislature the Court must have regard to the aim, object and scope of the statute to be read in its entirety., Legislative intent, it is urged, cannot be gathered by a bare mechanical interpretation of words or mere literal reading. The words are to be read and understood in the context of the scheme of the Act and the purpose or object with which the power is conferred. As Justice Iyer observed in Chairman, Board of Mining Examination v. Ramji, to be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of the deha and the dehi of the provision. This has been followed in Directorate of Enforcement v. Dipak Mahajan. Recently, this Court has moved on to accept purposive interpretation of the statute as the correct approach to ascertain legislative intent. If the given words can reasonably bear a construction which effectuates the purpose or object then that construction is to be preferred. In this regard, the decisions in Arcelor Mittal v. Satish Kumar Gupta and Swiss Ribbons were relied on., Mr Dwivedi stated that the impugned notification does not modify any provisions of the Code. By enforcing certain provisions of the Code by its seven clauses only in so far as they relate to personal guarantors to corporate debtors, the notification does not modify any legislative provision. It merely carries out the Parliamentary intention as expressed by the scheme, structure and purpose of the Code. Sections 1(3), 2, 3(23), 5(5)(a) and (22), 14(3), 31(1) and in particular Sections 60 and 179 are indicative of the fact that the scheme and structure of the Code involves a parliamentary hybridisation of the provisions of Part III, in so far as personal guarantors of corporate debtors are concerned., The object of this hybridisation is to empower the National Company Law Tribunal to deal with the insolvency resolution and bankruptcy process of the corporate debtor along with the corporate guarantor and personal guarantor of the corporate debtor. Parliament is conscious of the fact that personal guarantors to corporate debtors are generally promoters or close relatives of corporate debtors, and in many cases the corporate indebtedness was due to acts of misfeasance and siphoning of funds done by personal guarantors. Apart from this, personal guarantors to corporate debtors have a contractually agreed debt alignment with such debtors. They are co‑extensively as well as jointly and severally responsible for the same debt. As Parliament created a legislative hybridisation, Part III of the Code had to be enforced by the Central Government under Section 1(3) with Parliamentary categorisation through Section 2. The unifying of the forum for insolvency resolution/bankruptcy of the corporate debtor along with its personal guarantor is a Parliamentary dispensation and determination. Therefore, Section 1(3) empowers the Central Government to appoint different dates for different provisions., Learned senior counsel highlighted Sections 60(1) to (4) and urged that Parliament had merged the provisions of Part III with the process undertaken against the corporate debtors under Part II. The process of Part II and the provisions of Part III were legislatively fused for the purpose of proceedings against personal guarantors along with the corporate debtors. He argued that Section 179, the corresponding provision in Part III, begins by deploying the phrase \subject to the provisions of Section 60\. Section 60(4) incorporates the provisions of Part III in relation to proceedings before the National Company Law Tribunal against personal guarantors. Counsel cited Western Coalfield Ltd. v. Special Area Development Authority, Baleshwar Dayal v. Bank of India and Nagpur Improvement Trust v. Vasantrao. It was submitted that other individuals and partnership firms do not figure in this Parliamentary hybridisation. Sections 2(e) and 2(g) when read together would indicate that personal guarantors are also individuals. Act 8 of 2018 has brought about a trifurcation of the categories which were comprehended in Section 2(e) as it stood before the amendment. Section 179 also indicates that personal guarantors are individuals and Part III is applicable to them. By operation of the provisions in Chapter III of Part III personal guarantors get the benefit of interim moratorium under Section 96 and moratorium under Section 101. Personal guarantors do not get moratorium under Section 14. In this regard, reliance is placed on V. Ramakrishnan. It is contended that the hybridisation achieved by the impugned notification does not create any anomaly or problem in enforcement., It was lastly contended that Section 78 is declaratory and states that Part III applies to individuals and partnership firms. It is made applicable to the various categories of individuals and partnership firms. Both Sections 2 and 78 carry the marginal caption of \application\. Section 2 commences with \the provisions of this Code shall apply\ to the six categories and Section 78 also declares that Part III shall apply to the mentioned categories. Section 2 embraces the whole Code including Section 78 and other provisions enforced by the impugned notification, which clearly appoints the date of enforcement for Section 2(e) and other provisions, and Chapter III of Part III. There is no vivisection or dissection involved in the impugned notification., Mr K.V. Vishwanathan, learned senior counsel appearing for some respondents, argued that an overall reading of the provisions of the Code would show that personal guarantors to corporate debtors are a distinct class of individuals by virtue of Section 2(e) and Section 60; the classification is not achieved through the impugned notification, but by the amending Act of 2018, by Parliament. It is emphasized that the amendment ensured that the same forum, the National Company Law Tribunal, deals with insolvency processes of corporate debtors and also deals with similar issues relating to personal guarantors. The statute permits Part III application by the National Company Law Tribunal in relation to personal guarantors. All that the impugned notification did was to operationalise these existing provisions of the Code. Learned senior counsel cited Brij Sundar Kapoor v. First Additional Judge to refute the petitioners' argument that the power under Section 1(3) is a one‑time power. He also relied on Section 14 of the General Clauses Act, 1897, which states that any power conferred by any Act or Regulation can be exercised from time to time., Mr Vishwanathan cited Raghubir Sarup v. State of Uttar Pradesh and urged that the legislature acts within its rights in enacting a law and leaving it to the executive to apply it to different geographical areas at different times, depending upon various considerations. He also relied on Khargram Panchayat Samiti v. State of West Bengal and argued that the power to bring into force different provisions, or different parts of a statute, on different dates, having regard to the subject matter, is part of the incidental power conferred by Parliament under Section 1(3) of the Code., Mr Ritin Rai, learned senior counsel appearing for some respondents, urged that there is an inter‑connectedness between corporate debtors and personal guarantors, which was recognised by the 2018 amendment, evidenced by its Statement of Objects and Reasons. He stated that the power under Section 1(3) of the Code has been properly exercised. Mr Rai submitted that, like the impugned notification, another notification was issued on 1 May 2018 bringing into effect provisions of the Code in relation to a distinct class, financial service providers. This was achieved by bringing into force Sections 227 to 229 of the Code. It was submitted that the discretion conferred on the executive to experiment and bring into force legislation in phases is part of the general pattern of legislative practice and recognises that it is not always wise or possible to enforce provisions of a new law together, at all places, in respect of all that it seeks to cover., The provisions of the Code and the impugned notification are set out below. Section 14 provides that powers conferred may be exercised from time to time where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred, then unless a different intention appears that power may be exercised from time to time as occasion requires. This section also applies to all Central Acts and Regulations made on or after the fourteenth day of January 1887., The Code was published in the Official Gazette on 28 May 2016 after its passage in Parliament. It has been hailed as a major economic measure aimed at aligning insolvency laws with international standards. Earlier statutes such as the Recovery of Debts due to Banks or Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 dealt with certain facets of corporate insolvency but did not achieve the desired outcomes. The aim of the Code is to promote entrepreneurship and availability of credit, ensure the balanced interests of all stakeholders, and promote time‑bound resolution of insolvency in case of corporate persons, partnership firms and individuals., The short title, extent and commencement of the Code are as follows: (1) This Code may be called the Insolvency and Bankruptcy Code; (2) It extends to the whole of India, provided that Part III shall not extend to the State of Jammu and Kashmir; (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, provided that different dates may be appointed for different provisions of the Code and any reference in any such provision to the commencement of the Code shall be construed as a reference to the commencement of that provision., The provisions of the Code shall apply to (a) any company incorporated under the Companies Act, 2013 or any previous company law; (b) any other company governed by any special Act for the time being in force, except insofar as the said provisions are inconsistent with the special Act; (c) any Limited Liability Partnership incorporated under the Limited Liability Partnership Act, 2008; (d) such other body incorporated under any law for the time being in force, as the Central Government may, by notification, specify; (e) personal guarantors to corporate debtors; (f) partnership firms and proprietorship firms; and (g) individuals other than persons referred to in clause (e)., In this Code, unless the context otherwise requires, \corporate person\ means a company as defined in clause (20) of section 2 of the Companies Act, 2013, a limited liability partnership as defined in clause (n) of sub‑section (1) of section 2 of the Limited Liability Partnership Act, 2008, or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider. \Corporate debtor\ means a corporate person who owes a debt to any person. \Creditor\ means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree‑holder. \Debt\ means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. \Person\ includes (a) an individual; (b) a Hindu Undivided Family; (c) a company; (d) a trust; (e) a partnership; (f) a limited liability partnership; and (g) any other entity established under a statute, and includes a person resident outside India., This Part shall apply to matters relating to the insolvency and liquidation of corporate debtors where the minimum amount of default is one crore rupees, provided that the Central Government may, by notification, specify a higher minimum amount which shall not exceed one crore rupees., Definitions in this Part include: \Adjudicating Authority\ means the National Company Law Tribunal constituted under section 408 of the Companies Act, 2013; \Corporate applicant\ means (a) the corporate debtor; (b) a member or partner of the corporate debtor authorised to make an application for the corporate insolvency resolution process under the constitutional document of the corporate debtor; (c) an individual who is in charge of managing the operations and resources of the corporate debtor; or (d) a person who has control and supervision over the financial affairs of the corporate debtor. \Corporate guarantor\ means a corporate person who is the surety in a contract of guarantee to a corporate debtor. \Personal guarantor\ means an individual who is the surety in a contract of guarantee to a corporate debtor., Section 13 provides that the Adjudicating Authority shall (a) declare a moratorium for the purposes referred to under Section 14, (b) cause a public announcement of the initiation of the corporate insolvency resolution process and call for the submission of claims under Section 15, and (c) appoint an interim resolution professional as laid down in Section 16. Section 14 provides that on the insolvency commencement date, the Adjudicating Authority shall declare a moratorium prohibiting (a) the institution or continuation of suits or proceedings against the corporate debtor including execution of a judgment, decree, order, etc.; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property; and (d) recovery of any property by an owner or lessor where such property is occupied by, or in the possession of, the corporate debtor., The highlight of the Code is the institutional framework it envisages. This framework consists of the Insolvency and Bankruptcy Board of India, insolvency professionals, information utilities and adjudicatory mechanisms – the National Company Law Tribunal and the National Company Law Appellate Tribunal. These institutions are aimed at promoting corporate governance and enabling a time‑bound and formal resolution of insolvency., The insolvency resolution process under Section 6 can be initiated by a financial creditor under Section 7 or an operational creditor under Section 8 against the corporate debtor in the National Company Law Tribunal. Voluntary insolvency proceedings may also be initiated by the defaulting company, its employees or shareholders under Section 10. Once the resolution process begins, a moratorium is ordered by the National Company Law Tribunal for the entire period, during which no judicial proceedings can be initiated, nor can enforcement of securities, sale or transfer of assets or termination of essential contracts against the debtor occur. The next step is the appointment of an Interim Resolution Professional under Section 16. The resolution professional works under the broad guidelines of the Committee of Creditors (CoC) as per Section 21. The CoC includes all financial creditors of the corporate debtor, except related parties and operational creditors. Section 22 provides that the CoC has to appoint the resolution professional, who may also be the interim resolution professional. A vote of 75 % of the voting share shall determine the decision of the CoC to opt for either revival or liquidation (Section 30). The decision of the CoC is binding on debtors and all other creditors. Different types of revival plans include fresh finance, sale of assets, haircuts, change of management etc. The CoC should approve the resolution plan forwarded by the creditor, after which the resolution professional forwards the plan to the adjudicating authority for final approval. The adjudicating authority may consider objections to the resolution plan by any interested party., Section 78(3) of the Code states that the adjudicating authority for the purpose of Part III, which deals with insolvency resolution and bankruptcy of individuals and partnership firms, shall be the Debt Recovery Tribunal established under the Recovery of Debts due to Banks or Financial Institutions Act. The adjudicating authority for corporate insolvency, i.e., companies, LLPs and limited liability entities, is the National Company Law Tribunal. Appeals from the National Company Law Tribunal lie to the National Company Law Appellate Tribunal, while appeals from the Debt Recovery Tribunal lie to the Debt Recovery Appellate Tribunal. This Court hears appeals from both the National Company Law Appellate Tribunal and the Debt Recovery Appellate Tribunal., The impugned notification issued in the Gazette of India Extraordinary by the Ministry of Corporate Affairs reads as follows: New Delhi, 15 November 2019, S.O. 4126(E). In exercise of the powers conferred by sub‑section (3) of section 1 of the Insolvency and Bankruptcy Code, 2016, the Central Government hereby appoints 1 December 2019 as the date on which the following provisions of the Code shall come into force only in so far as they relate to personal guarantors to corporate debtors: (1) clause (e) of section 2; (2) section 78 (except with regard to fresh start process) and section 79; (3) sections 94 to 187 inclusive; (4) clause (g) to clause (i) of sub‑section (2) of section 239; (5) clause (m) to clause (zc) of sub‑section (2) of section 239; (6) clause (zn) to clause (zs) of sub‑section (2) of section 240; and (7) section 249., The principal ground of attack in all these proceedings has been that the executive government could not have selectively brought into force the Code and applied some of its provisions to one sub‑category of individuals, i.e., personal guarantors to corporate creditors. All the petitioners argued that the impugned notification, in seeking to achieve that end, is ultra vires. This argument is premised on the nature and content of Section 1(3), which the petitioners characterise as conditional legislation. Unlike delegated legislation, they say, conditional legislation is a limited power which can be exercised once, in respect of the subject matter or class of subject matters. As long as different dates are designated for bringing into force the enactment, or in relation to different areas, the executive acts within its powers. However, when it selectively does so and segregates the subject matter of coverage of the enactment, it indulges in impermissible legislation., In Burah, the question arose in the context of a law made by the Indian Legislature removing the district of Garo Hills from the jurisdiction of the civil and criminal courts and vesting the administration of civil and criminal justice within the same district in officers appointed by the Lieutenant‑Governor of Bengal. Section 9 empowered the Lieutenant‑Governor, from time to time by notification in the Calcutta Gazette, to extend, mutatis mutandis, all or any of the provisions contained in the Act to the Jaintia, Naga and Khasi Hills and to fix the date of application thereof. The High Court of Calcutta upheld the contention that Section 9 was ultra vires the powers of the Indian Legislature as it was a delegate of the Imperial Parliament and further delegation was not permissible. The Privy Council overturned that verdict, holding that legislation which does not directly fix the period for its own commencement but leaves that to be done by an external authority may be called incomplete; likewise, legislation that does not itself immediately determine the whole area to which it is to be applied but leaves this to be done by the same external authority. It was observed that the Governor‑General in Council could not, by any enactment, create in India a new legislative power not created or authorised by the Councils Act.
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The next case cited was Jatindra Nath Gupta where the validity of Section 1(3) of the Bihar Maintenance of Public Order Act, 1948 was challenged on the ground that it empowered the Provincial Government to extend the life of the Act for one year with such modification as it could deem fit. The Federal Court of India held that the power of extension with modification is not a valid delegation of legislative power because it is an essential legislative function which cannot be delegated. The court observed, inter alia, that: The proviso contains the power to extend the Act for a period of one year with modifications, if any. It is one power and not two severable powers. The fact that no modifications were made in the Act when the power was exercised cannot help in determining the true nature of the power. The power to extend the operation of the Act beyond the period mentioned in the Act prima facie is a legislative power. It is for the Legislature to state how long a particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify an Act of a Legislature, without any limitation on the extent of the power of modification, is undoubtedly a legislative power. It is not a power confined to apply the Act subject to any restriction, limitation or proviso only. It seems to me therefore that the power contained in the proviso is legislative., In re Delhi Laws Act, 1912, a reference made under Article 143 of the Constitution saw a plurality of judicial opinion by the seven‑judge bench of the Supreme Court of India. Three provisions were referred for the opinion of the Court. Having regard to the majority view, it was held that essential legislative functions could not be delegated, and that the power to repeal an enactment, extended by the Central Government to a Part C state, could not be delegated. The majority’s conclusion was that the power of repeal is legislative. Chief Justice Kania observed as follows: It is common ground that no law creating such bodies has been passed by the Parliament so far. Article 246 deals with the distribution of legislative powers between the Centre and the States but Part C States are outside its operation. Therefore on any subject affecting Part C States, Parliament is the sole and exclusive legislature until it passes an Act creating a legislature or a council in terms of Article 240. Proceeding on the footing that a power of legislation does not carry with it the power of delegation, the question is whether Section 2 of the Part C States (Laws) Act is valid. By that section the Parliament has given power to the Central Government by notification to extend to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification. The section, although framed on the lines of the Delhi Laws Act and the Ajmer‑Merwara Act, is restricted in its scope as the executive Government is empowered to extend only an Act which is in force in any of the Part A States. Judge Mahajan held that the section does not declare any law but gives the Central Government power to declare what the law shall be. The choice to select any enactment in force in any province at the date of such notification clearly shows that the legislature declared no principles or policies as regards the law to be made on any subject., Mahajan illustrated the mischief of such law‑making with reference to the Bombay Agricultural Debtors’ Relief Act, 1947, which had been extended to Ajmer‑Merwara and modified by amending the definition of the word debtor. Under the original Act a debtor was a person whose annual income from sources other than agricultural and manual labour did not exceed thirty‑three percent of his total annual income or did not exceed Rupees five hundred, whichever was greater. In the modified statute debtor meant an agriculturist who owes a debt, and agriculturist meant a person who earns his livelihood by agriculture and whose income from such source exceeds sixty‑six percent of his total income. The outside limit of Rupees five hundred was removed. The exercise of this power amounted to making a new law by a body which was not contemplated by the Constitution and was not authorized to enact any laws. The Court questioned whether the Indian Legislature under the 1935 Act could empower the executive to extend to Delhi laws that might be made by a legislature in Timbuctoo or Soviet Russia with modifications. The answer was in the negative because the policy of those laws could never be determined by the law‑making body entrusted with making laws for Delhi., The Court further observed that express power to repeal or amend laws already applicable in Part C States had been conferred on the Central Government. Power to repeal or amend laws is a power which can only be exercised by an authority that has the power to enact laws; it is co‑extensive with the legislative power itself. B.K. Mukherjea, Judge, held that the powers conferred by Section 2 upon the Central Government are far in excess of those conferred by the other two legislative provisions. While it is intelligible that, in the absence of a proper legislative machinery in a particular area, Parliament might empower an executive authority to introduce laws validly passed by a competent legislature in other parts of the country, such power must be limited to local adjustments of a minor character and only where no existing law on the subject is in force in that territory. If any such law exists and the power is given to repeal or abrogate it, either wholly or in part, and substitute laws from other provinces, this would amount to an unwarrantable delegation of legislative powers. To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself., The Supreme Court of India concluded that the provisions contained in Questions 1 and 2 were not ultra vires the legislatures which passed the Act containing those provisions. Regarding the provision in Question 3, the first part was held to be intra vires, but the second portion, which provided that a provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) applicable to that Part C State, was held to be ultra vires the Indian Parliament which passed the Act., In Narottamdas Jethabhai the Court considered three issues, one of which concerned empowering the executive to designate a court to exercise jurisdiction up to Rupees twenty‑five thousand, i.e., Section 4 of the Bombay City Civil Courts Act. The contention before the High Court was that once the legislature had conferred jurisdiction up to a pecuniary limit of Rupees ten thousand to the City Civil Court, delegating the power to increase that jurisdiction was ultra vires. The argument was repelled by a majority of judges, including Judges Mahajan, Fazal Ali and B.K. Mukherjea. Judge Fazal Ali observed that the section itself shows that the Provincial Legislature, having exercised its judgment and determined that the New Court should be invested with jurisdiction to try suits of a value not exceeding Rupees twenty‑five thousand, left it to the Provincial Government to determine when the Court should be invested with this larger jurisdiction. The power was therefore not a delegation of legislative authority but a conditional legislation prescribing how effect is to be given to what the Legislature had already decided., Judge Mahajan observed that the fixation of the maximum limit of the court’s pecuniary jurisdiction was the result of legislative will. The policy of the legislature, as set out in Sections 3 and 4 of the Act, was that initially the pecuniary jurisdiction would be limited to Rupees ten thousand and that, if circumstances made it desirable, the Provincial Government could extend it to Rupees twenty‑five thousand, subject to the exceptions contained in Section 3. The vital matters of policy had been determined by the legislature; the actual execution of that policy was left to the Provincial Government. Accordingly, the Court upheld the exercise of executive discretion because there was a proper legislative framework and guidance for conferring jurisdiction upon the City Civil Court beyond the limit enacted by Section 3., In Sardar Inder Singh the validity of an ordinance that had been extended by two notifications was examined. Section 4 of the original ordinance, enacted in 1949, provided that, while the ordinance was in force, no tenant shall be liable to ejectment or dispossession from any part of his holding on any ground whatsoever. The ordinance was originally for two years and was extended twice, each time for two years, by notifications dated 14 June 1951 and 20 June 1953. The Legislative Assembly of Rajasthan came into existence on 29 March 1952; until then the Rajpramukh possessed legislative authority. On 15 October 1955 the Rajasthan Tenancy Act No. III of 1955 came into force, governing landlord‑tenant relations. The Supreme Court of India, after considering the decisions in Burah, In re Delhi Laws Act and Jatindra Nath Gupta, held that the preamble to the ordinance clearly recited the facts necessitating its enactment and Section 3 fixed its duration as two years, while also conferring a power on the Rajpramukh to extend its life if the situation required. When such extension is decided by the Rajpramukh and notified, the law that operates is the law enacted by the legislative authority and is clearly conditional, not delegated legislation, and therefore valid. The Court rejected the contention that the notification dated 20 June 1953 was invalid because the Rajpramukh’s legislative authority ceased after the Constitution came into force. The Court explained that the notification was not an independent piece of legislation but an exercise of a power conferred by the ordinance itself, and its validity is co‑extensive with that of the ordinance., In Hamdard Dawakhana the Court examined the validity of Section 3(d) of the Drug and Magic Remedies (Objectionable Advertisement) Act, 1954. Section 16(1) of that Act conferred power on the Government to frame rules, and Section 16(2)(a) allowed the Government to specify any disease or condition to which the provisions of Section 3 shall apply, while Section 16(2)(b) prescribed the manner in which advertisement of articles referred to in clause (c) of sub‑section (1) of Section 14 may be sent confidentially. The Central Government argued that Section 3(d), which empowered it to notify any other disease or condition in the rules, was an instance of conditional legislation. The Court distinguished conditional legislation from delegated legislation, stating that conditional legislation involves the delegate determining when a legislative rule becomes effective, whereas delegated legislation involves the delegate completing the legislation by supplying details within limits prescribed by the statute. The Court held that the provision in Section 3(d) was an impermissible delegation because it lacked legislative guidance as to the criteria, standards or principles on which a particular disease or condition should be specified. Consequently, the Schedule in the rules had to be struck down., In Sabanayagam the Court considered the vires of a notification issued under Section 36 of the Payment of Bonus Act, which exempted a statutory board from its coverage. The Court interpreted the notification as operating from the date of its issue, thereby applying the Payment of Bonus Act to previous accounting years. The Court identified three broad categories of conditional legislation. The first category arises when the Legislature has completed its enactment but leaves to the delegate the decision of when and where the Act will become applicable, based on the delegate’s subjective satisfaction. The second category involves the delegate deciding whether, and under what circumstances, a completed Act should be partially withdrawn from operation in a given area or class of persons. In such cases the delegate’s satisfaction may be purely subjective and need not be based on objective factual assessment. The Court explained that where the delegate merely fills in details of legislation for the future, the function is legislative; however, where the delegate determines the applicability of a completed Act based on conditions prescribed in the statute, the exercise is not legislative and principles of natural justice may not be attracted., In Vasu Dev Singh the Court decided on the validity of a notification issued by the Administrator of Chandigarh on 7 November 2002, directing that the provisions of the East Punjab Urban Rent Restriction Act, 1949, as extended to Chandigarh by the East Punjab Urban Rent Restriction Act (Extension to Chandigarh) Act, 1974, would not apply to buildings and rented lands whose monthly rent exceeded Rupees one thousand five hundred. The Administrator justified the notification as an instance of conditional legislation since Section 3 enabled him to exempt provisions of the Act to classes of buildings. The Court disagreed with the contention that the exemption was a conditional legislative power and held that the distinction between conditional legislation and delegated legislation is clear and unambiguous.
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In a conditional legislation the delegatee has to apply the law to an area or to determine the time and manner of carrying it into effect, or at such time as it decides, or to understand the rule of legislation; it would be a conditional legislation. The legislature in such a case makes the law, which is complete in all respects but is not brought into operation immediately. The enforcement of the law depends upon the fulfilment of a condition, and what is delegated to the executive is the authority to determine, by exercising its own judgment, whether such conditions have been fulfilled and whether the time has come for the legislation to be brought into force. Thus the taking effect of a legislation is made dependent upon the determination of such fact or condition by the executive organ of the Government. Delegated legislation, however, involves delegation of rule‑making power of legislation and authorises an executive authority to bring into force an area by reason thereof. The discretion conferred on the executive by way of delegated legislation is much wider, but such power to make rules or regulations must be exercised within the four corners of the Act., Delegated legislation is a device fashioned by the legislature to be exercised in the manner laid down in the legislation itself. By reason of Section 3 of the Act, the Administrator has been empowered to issue a notification whereby an exemption is granted for application of the Act. The Central Government may direct that all or any of the provisions of this Act shall not apply to any particular building, rented land, or any class of buildings or rented lands., After considering a large number of decisions, including those where the Supreme Court of India had upheld exemptions issued by different states based on rent, the Supreme Court of India concluded that there was insufficient justification for the impugned exemption notification and that it was ultra vires the power conferred upon the Administrator. Moreover, the notification was not issued for a limited period and therefore has a permanent effect. The submission of Mister Nariman that, having regard to the provisions of the General Clauses Act, the notification can be modified, amended at any time and withdrawn, cannot be accepted for more than one reason. Firstly, the respondent proceeded on the basis that the notification was issued to give effect to the National Policy, that is, amendments must be carried out until a new Rent Act is enacted. Whether the Act would be enacted is a matter of surmise and conjecture and is a legislative policy matter not within the domain of the Administrator. Secondly, the Administrator, following the National Policy, proceeded on the basis that the provisions of the Act must ultimately be repealed. When steps are taken to repeal the Act, either wholly or in part, the intention becomes clear that the same is not meant to be given a temporary effect. When repealed provisions are sought to be brought back to the statute‑book, it has to be done by fresh legislation. What can be done in future by another authority cannot be a ground for upholding an executive act., A close reading of the decisions cited on behalf of the petitioners reveals that the power to extend laws has been upheld. As B. K. Mukherjea observed in In re Delhi Laws Act, 1912, it is an intelligible policy that so long as a proper legislative machinery is not set up in a particular area, Parliament might empower an executive authority to introduce laws validly passed by a competent legislature and in force in other parts of the country to such area, with each modification and restriction as the authority thinks proper, the modifications being limited to local adjustments or changes of a minor character. Lord Selborne, in Burah, held such power to be unexceptionable, stating that legislation conditional on the use of particular powers or on the executive of a limited discretion entrusted by the Legislature to persons in whom it places confidence is not uncommon and may be highly convenient. In Jitendra Nath Gupta, the Federal Court held objectionable the conferment of power to extend provisions of an enactment beyond its expressed duration, stating that it is for the Legislature to state how long a particular legislation will be in operation and that cannot be left to the discretion of another body. The power to modify an Act of a Legislature without any limitation on the extent of the power of modification is undeniably a legislative power., The plurality of judgments, as well as opinions rendered in In re Delhi Laws Act, makes that decision a somewhat complex reading. Yet, the final per curiam opinion of the Supreme Court of India was that the power to extend, modify or repeal enactments of Part C States, in respect of matters which Parliament had not directly enacted, amounted to excessive legislation. Additionally, an exception was taken to the power to repeal, being delegated, as it was an essential legislative power. In Sardar Inder Singh, the extension of rent restriction ordinances was in question; the Supreme Court of India did not apply the rule in Jatindra Nath Gupta and ultimately held that the Rajpramukh, in his character as the authority on whom power was conferred under Section 3 of the Ordinance, issued the impugned notification, and not as the legislative authority of the State. In Hamdard Dawakhana, the argument that Section 3 was conditional legislation was negatived and it was held to be an instance of excessive delegation, where Parliament did not indicate any guidance for inclusion of particular instances in the schedule, leaving it to the executive government to decide the issue in an arbitrary manner. Vasu Dev Singh was a case where the Supreme Court of India held that the power to exclude from application of the enactment, based on the quantum of rent, was premised on the Administrator’s opinion that the legislation would be repealed having regard to a National Policy. Moreover, the notification excluded the application of the Act in relation to premises based on rent and had a permanent character, making it an instance of impermissible legislation by the executive., It is evident that the Supreme Court of India ruled in Jitendra Nath Gupta, In re Delhi Laws Act and Vasu Dev Singh that the exercise of extending an enactment beyond the time of its designated application by the legislature; the power of extension, modification and repeal of laws made by other legislative bodies; and the limiting of the application of an enactment based on a quantification (an amount of rent) were legislative exercises, beyond the powers conferred. They fall strictly within the category of general legislative authority, a new legislative power not created or authorized by the parent legislation, as held in Burah. In Hamdard Dawakhana, the power to include new drugs was held to be un‑canalised, i.e., without any legislative guidance. The decision did not involve bringing into force provisions of an enactment, or exclusion, but inclusion within its fold without statutory guidance on new drugs. The case therefore involved delegated legislation., It would now be useful to analyse some decisions cited by the respondents. In Bishwambhar Singh, the power under Section 3(1) of the Orissa Estates Abolition (Amendment) Act, 1952 was involved. The provision enabled the State to declare that an estate, by virtue of notifications issued in that regard, vested in it, was free from all encumbrances. The Supreme Court of India negatived the challenge to that provision, observing that the long title of the Act and the two preambles clearly indicate that the object and purpose of the Act is to abolish all rights, title and interest in land of intermediaries by whatever name known. Whatever discretion has been vested in the State Government under Section 3 or Section 4 must be exercised in the light of this policy and therefore cannot be said to be an absolute or unfettered discretion, because sooner or later all estates must perforce be abolished. A certain amount of discretionary latitude had to be given to the State Government to avoid a colossal task of taking over all estates at one time, which would have broken down the administrative machinery, created staffing and financing difficulties, and therefore it was imperative to confer some discretion on the State Government., In Basant Kumar Sarkar, the power in question was Section 1(3) of the Employees’ State Insurance Act, which enabled the Government to extend the enactment to establishments. The Supreme Court of India rejected the argument that the power given to the Central Government to apply the provisions of the Act by notification confers absolute discretion not guided by any legislative provision and is therefore invalid. The Court held that Section 1(3) is not an illustration of delegated legislation at all; it is properly described as conditional legislation. The Act has prescribed a self‑contained code regarding the insurance of employees, and several remedial measures have been specifically dealt with. Section 3(1) of the Act authorises the Central Government to establish a Corporation for the administration of the scheme by a notification, leaving the timing and the factories to which it applies to the discretion of the Central Government, which is precisely what is usually done by conditional legislation. It would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees’ State Insurance Corporation should be established, and such beneficial measures often need to be introduced in stages and different phases., The next decision cited was Lachmi Narain. Here, the Central Government was empowered by Section 2 of the Part C States (Laws) Act, 1950 to extend through a notification any enactment in Part A States. A notification in 1951 extended the provisions of the Bengal Finance (Sales Tax) Act to the then Part C State of Delhi. In 1957, a notification under the same power modified the earlier notification, withdrawing certain benefits. A three‑judge bench of the Supreme Court of India considered whether the power to extend with or without modifications any enactment was conditional or delegated legislation. The Court observed that the distinction between the two categories makes no practical difference; in either case the person entrusted with the power must act within the limits circumscribed by the empowering provision and cannot violate any express conditions or restrictions. There is no magic in a name. Whether called conditional legislation, ancillary legislation, subsidiary legislation or administrative power, the fact remains that it involves a content, however small and restricted, of law‑making power itself. The Court held that the power to extend and carry into operation an enactment with necessary modifications and adaptations is, in truth, a power of delegated legislation. However, the Court also held that the power given by Section 2 exhausts itself on extension of the enactment; it cannot be exercised repeatedly or subsequently to such extension, and it can be exercised only once, simultaneously with the extension. The power cannot be used for any purpose other than extension, and only those restrictions and modifications necessary to bring the enactment into operation and to adapt it to the peculiar local conditions of the Union territory are permissible. Modifications that alter any essential feature or legislative policy of the enactment are not permissible., The chart below sets out the various dates on which the provisions of the Insolvency and Bankruptcy Code were brought into force. 1. 05 August 2016 – Statutory Order 2618(E) – Sections 188 to 194. 2. 19 August 2016 – Statutory Order 2746(E) – Clauses (1), (5), (22), (26), (28) and (37) of Section 3, Sections 221, 222, 225, 226, 230, 232 and 233, Sub‑section (1) and Clause (zd) of Sub‑section (2) of Section 239, Sub‑section (1) and Clause (zt) of Sub‑section (2) of Section 240, Sections 241 and 242. 3. 01 November 2016 – Statutory Order 3355(E) – Clause (2) to (4), Clause (6) to (21), Clause (23) to (25), Clause (27), Clause (29) to (36) of Section 3, Sections 196, 197 and 223, Clause (ze) to (zh), Clause (zl) to (zm) of Sub‑section (2) of Section 239, Clause (a) to (zm), Clause (zu) to (zzzc) of Sub‑section (2) of Section 240, Section 244, Sections 246 to 248, Sections 250 and 252. 4. 15 November 2016 – Statutory Order 3453(E) – Sections 199 to 207, Clause (c) and Clause (e) of Sub‑section (1) of Section 208, Sub‑section (2) of Section 208, Sections 217 to 220, Sections 251, 253, 254 and 255. 5. 01 December 2016 – Statutory Order 3594(E) – Clause (a) to (d) of Section 2 (except with regard to voluntary liquidation or bankruptcy), Sections 4 to 32, Sections 60 to 77, Section 198, Section 231, Sections 236 to 238, Clause (a) to (f) of Sub‑section (2) of Section 239. 6. 15 December 2016 – Statutory Order 3687(E) – Sections 33 to 54. 7. 01 April 2017 – Statutory Order 1005(E) – Section 59; Sections 209 to 215; Sub‑section (1) of Section 216; Section 234. 8. 01 April 2017 – Statutory Order 1570(E) – Clause (a) to (d) of Section 2 relating to voluntary liquidation or bankruptcy. 9. 14 June 2017 – Statutory Order 1910(E) – Sections 55 to 58. 10. 01 May 2018 – Statutory Order 1817(E) – Sections 227 to 229. 11. 01 December 2019 – Statutory Order 4126(E) – Section 2(e); Section 78 (except with regard to fresh start process) and Section 79; Sections 94 to 187; Section 239(2)(g) to (i); 239(2)(m) to (zc); Section 240(2)(zn) to (zs); and Section 249 only insofar as it relates to personal guarantors to corporate debtors., The above chart reveals that the provisions relating to the Insolvency and Bankruptcy Board of India were brought into force at the earliest point of time, i.e., 05 August 2016, to enable the setting up of the regulatory body so that it could commence its task of examining relevant issues and evolving standards to be embodied in rules and regulations. Thereafter, the notification dated 19 August 2016 brought into force Chapter VII of Part IV and some provisions of Part V relating to finance, audit and miscellaneous matters, which were ancillary to the working of the Board. Subsequent notifications brought into force sections dealing with the Board’s functions, its funds, and general provisions amending various other enactments. The fourth notification dated 15 November 2016 brought into force provisions relating to insolvency professional agencies and other provisions amending other enactments. The notification of 30 November 2016 operationalised the enactment for four distinct categories – companies incorporated under the Companies Act, companies governed by special Acts, limited liability partnerships and other bodies incorporated under any law specified by the Central Government. These provisions triggered the application of the Code to corporate debtors as well as limited liability partnerships and other companies. Notably, provisions regarding voluntary liquidation or bankruptcy were excluded by this notification and were later brought into force by the eighth notification dated 01 April 2017, effective from 15 May 2017. In the meantime, the notification dated 09 December 2016, effective from 15 December 2016, operationalised Sections 33 to 44 dealing with the liquidation process., It is evident that the method adopted by the Central Government to bring into force different provisions of the Act had a specific design: to fulfil the objectives underlying the Code, having regard to its priorities. The Central Government was concerned with triggering the insolvency mechanism for corporate persons at the earliest. Consequently, the first three notifications established the regulatory body, provisions relating to its functions and powers, and the operationalisation of provisions relating to insolvency professionals and agencies. The next phase brought into force the part of the Code dealing with corporate persons, i.e., Sections 2(a) to 2(d). Subsequent notifications brought into force consequential provisions as well as provisions giving overriding effect to the Code and amending other laws. All these steps show that the Central Government followed a stage‑by‑stage process, taking into account the similarities or dissimilarities of the subject matter covered by the Code., As discussed earlier, insolvency proceedings relating to individuals are regulated by Part III of the Code. Before the 2018 amendment, all individuals (personal guarantors to corporate debtors, partners of firms, partnership firms and other partners) fell under a single description in the unamended Section 2(e). The unamended Section 60 contemplated that the adjudicating authority for personal guarantors was the National Company Law Tribunal. However, because Section 2 grouped three categories of individuals together, it would have been difficult for the Central Government to selectively bring into force the provisions of Part III only for personal guarantors. The Central Government therefore heeded expert reports recommending that personal guarantors to corporate debtors should also be dealt with by the same adjudicator, necessitating amendments. The 2018 Amendment Act altered Section 2(e) and sub‑categorised the three categories of individuals into Sections 2(e), (f) and (g). Since the earlier notification of 30 November 2016 had brought the Code into force for entities covered under Sections 2(a) to 2(d), the 2018 amendment provided the statutory backing for the Central Government to apply the Code to personal guarantors, thereby achieving the objective of the amendment., The amendment of 2018 also altered Section 60(2). Although personal guarantor was not defined and fell within the broader rubric of individual, the adjudicating authority for insolvency and liquidation of corporate persons, including corporate debtors and personal guarantors, remained the National Company Law Tribunal even under the unamended Code. The unamended Section 60(2) read: ‘Without prejudice to sub‑section (1) and notwithstanding anything to the contrary contained in this Code, where a corporate insolvency resolution process or liquidation proceeding of a corporate debtor is pending before a National Company Law Tribunal, an application relating to the insolvency resolution or bankruptcy proceeding of a personal guarantor of the corporate debtor shall be filed before the National Company Law Tribunal.’ The amended Section 60(2) reads: ‘Without prejudice to sub‑section (1) and notwithstanding anything to the contrary contained in this Code, where a corporate insolvency resolution process or liquidation proceeding of a corporate debtor is pending before a National Company Law Tribunal, an application relating to the insolvency resolution or liquidation or bankruptcy of a corporate guarantor or personal guarantor, as the case may be, of such corporate debtor shall be filed before the National Company Law Tribunal.’ The amendment inserted the expression ‘or liquidation’ before ‘bankruptcy’ and added ‘corporate guarantor as the case may be’. The interpretation of this expression must be contextual. There is no question of liquidation of a personal guarantor, who is an individual., The principle behind the maxim ‘reddendo singular singulis’ applies. In Koteswar Vittal Kamath v. K. Rangappa Baliga & Co., the Court quoted Black’s Interpretation of Laws to explain that where a statute contains several antecedents and several consequences, each phrase must be read distributively, i.e., each expression is to be referred to its appropriate object. The Court held that the language of the proviso to Article 304(b) of the Constitution of India could not be interpreted to mean that both ‘introduced’ and ‘moved’ refer only to the Bill; rather, ‘introduced’ refers to the Bill and ‘moved’ refers to the amendment. Recently, in Rajendra K. Bhutta v. Maharashtra Housing and Area Development Authority, this principle was applied. Accordingly, when Section 60(2) alludes to insolvency resolution or bankruptcy, or liquidation of the three categories – corporate debtors, corporate guarantors and personal guarantors – the provisions apply distributively: insolvency resolution and liquidation processes apply to corporate debtors and their corporate guarantors, whereas insolvency resolution and bankruptcy processes apply to personal guarantors, who cannot be subjected to liquidation., The case law cited on behalf of the petitioners shows a consistent pattern. In many cases, including In re Delhi Laws Act and Jitendra Kumar Gupta, the Supreme Court of India held that the power to extend a law, existing or future, that has not been enacted by the competent legislature, the power of repeal, and the power to extend the life of a law, were instances of excessive delegation of legislative power.
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In Narottamdas Jethabhai (supra), the Supreme Court of India upheld the extension of pecuniary jurisdiction of city civil courts beyond the statutorily prescribed limit because there was a provision enabling it, and the executive confined the exercise of its power to extend the jurisdiction within the limits enacted. Hamdard Dawakhana was an instance of grant of uncanalized power (without legislative guidance) of inclusion in the schedule to the Act, acts falling within its application; it was clearly a case of excessive delegation. In Lachmi Narain (supra), the Supreme Court of India held that the power of modification cannot be used at any time, but has to be resorted to initially by the executive at the time a law is extended and applied., The observations in Bishwambhar Singh and Basant Kumar Sarkar (supra) reveal that the executive is tasked with implementing the Act in stages, as it would have been impossible for the legislature to decide in what areas and in respect of what subject matters (in that case, factories and establishments) the provisions can apply. Crucially, it was held that a scheme of this kind, though very beneficent, could not be introduced in the whole of the country all at once. Further, the Supreme Court of India held that such provisions may need careful experimentation and sometimes be adopted by stages and in different phases. The theme of gradual implementation of law or legal principles was also spoken about in Javed v. State of Haryana (supra), where the Supreme Court of India held that there is no constitutional imperative that a law or policy should be implemented all at once. A uniform policy may be devised by the Centre or by a State, but there is no constitutional requirement that any such policy must be implemented in one go. Policies are capable of being implemented in a phased manner, especially when they have far‑reaching implications and are dynamic in nature, as phased implementation receives gradual willing acceptance and invites lesser resistance., Similar observations were made in Pannalal Bansilal Pitti v. State of Andhra Pradesh (supra), where the Supreme Court of India held that imposition of a uniform law in some areas or subjects may be counter‑productive and contrary to public purpose. Sabanayagam (supra) also emphasized discretion to extend an enactment, having regard to the time, area of operation, and its applicability, noting that such power is limited and almost a ministerial function as an agent of the principal Legislature applying the Act to the area at an appropriate time., The close proximity or inter‑relatedness of personal guarantors with corporate debtors, as opposed to individuals and partners in firms, was noted by the Working Group report, which recognized that the dynamics and interwoven connection between the corporate debtor and a guarantor (who has extended his personal guarantee for the corporate debtor) and the partnership firms engaged in business activities may be on distinct footing in reality and would therefore require different treatment because of economic considerations. Assets of the guarantor would be relevant for the resolution process of the corporate debtor. Between the financial creditor and the corporate debtor, the guarantee usually contains a covenant that, as between the guarantor and the financial creditor, the guarantor is also a principal debtor, notwithstanding that he is guarantor to a corporate debtor., As noticed earlier, Section 60 of the Insolvency and Bankruptcy Code, under the original Code, designated the National Company Law Tribunal as the adjudicating authority in relation to two categories: corporate debtors and personal guarantors to corporate debtors. The 2018 amendment added another category: corporate guarantors to corporate debtors. The amendment, as reflected in Section 2(e), Section 5(22), Section 29A, and Section 60, shows that all matters likely to impact a corporate debtor’s insolvency process were sought to be clubbed together and brought before the same forum., Section 5(22), found in Part II (insolvency process provisions in respect of corporate debtors) as originally enacted, defined ‘personal guarantor’ to mean an individual who is the surety in a contract of guarantee to a corporate debtor. Two further provisions relevant for the purpose of this judgment are Sections 234 and 235 of the Code, which read as follows:\n\n234. (1) The Central Government may enter into an agreement with the Government of any country outside India for enforcing the provisions of this Code. (2) The Central Government may, by notification in the Official Gazette, direct that the application of provisions of this Code in relation to assets or property of a corporate debtor or debtor, including a personal guarantor of a corporate debtor, situated at any place in a country outside India with which reciprocal arrangements have been made, shall be subject to such conditions as may be specified.\n\n235. (1) Notwithstanding anything contained in this Code or any law for the time being in force, if, in the course of insolvency resolution process, liquidation or bankruptcy proceedings under this Code, the resolution professional, liquidator or bankruptcy trustee is of the opinion that assets of the corporate debtor or debtor, including a personal guarantor of a corporate debtor, are situated in a country outside India with which reciprocal arrangements have been made under section 234, he may make an application to the Adjudicating Authority that evidence or action relating to such assets is required in connection with such process or proceeding. (2) The Adjudicating Authority, on receipt of an application under sub‑section (1) and on being satisfied that evidence or action relating to assets under sub‑section (1) is required in connection with the insolvency resolution process or liquidation or bankruptcy proceeding, may issue a letter of request to a court or an authority of such country competent to deal with such request., These two provisions reveal that the scheme of the Code always contemplated that overseas assets of a corporate debtor or its personal guarantor could be dealt with in an identical manner during insolvency proceedings, including by issuing letters of request to courts or authorities in other countries for the purpose of dealing with such assets located within their jurisdiction., The impugned notification operationalises the Code as it relates to personal guarantors to corporate debtors: (1) Section 79 pertains to the definitional section for the purposes of insolvency resolution and bankruptcy for individuals before the Adjudicating Authority. (2) Sections 94 to 187 outline the entire structure regarding initiation of the resolution process for individuals before the Adjudicating Authority. The impugned notification authorises the Central Government and the Board to frame rules and regulations on how to allow pending actions against a personal guarantor to a corporate debtor before the Adjudicating Authority. The intent of the notification, facially, is to allow pending proceedings to be adjudicated in terms of the Code. Section 243, which provides for the repeal of the Presidency Towns Insolvency Act and the Provincial Insolvency Act, has not yet been notified. Section 60(2) prescribes that in the event of an ongoing resolution process or liquidation process against a corporate debtor, an application for resolution process or bankruptcy of the personal guarantor to the corporate debtor shall be filed with the concerned National Company Law Tribunal seized of the resolution process or liquidation. Therefore, the Adjudicating Authority for personal guarantors will be the National Company Law Tribunal if a parallel resolution process or liquidation process is pending in respect of a corporate debtor for whom the guarantee is given. The same logic prevails under Section 60(3) when any insolvency or bankruptcy proceeding pending against the personal guarantor in a court or tribunal and a resolution process or liquidation is initiated against the corporate debtor., For example, if A, an individual, is the subject of a resolution process before the Debt Recovery Tribunal and he has furnished a personal guarantee for a debt owed by company B, and a resolution process is initiated against B in a National Company Law Tribunal, the provision results in transferring the proceedings against A to the National Company Law Tribunal., The Supreme Court of India in V. Ramakrishnan (supra) observed why an application under Section 60(2) could not be allowed. At that stage, neither Part III of the Code nor Section 243 had been notified. This meant that proceedings against personal guarantors stood outside the National Company Law Tribunal and the Code. The non‑obstante provision under Section 238 gives the Code overriding effect over other prevailing enactments. This is perhaps the rationale for not notifying Section 243 as far as personal guarantors to corporate persons are concerned. Section 243(2) saves pending proceedings under the repealed Acts (Presidency Towns Insolvency Act and Provincial Insolvency Act) to be undertaken in accordance with those enactments. As of now, Section 243 has not been notified. In the event Section 243 is notified and those two Acts repealed, the present notification would not have the effect of covering pending proceedings against individuals such as personal guarantors in other forums, and would bring them under the provisions of the Code pertaining to insolvency and bankruptcy of personal guarantors. The impugned notification, as a consequence of the non‑obstante clause in Section 238, has the result that any proceeding initiated against personal guarantors would be under the Code., In the opinion of the Supreme Court of India, there was sufficient legislative guidance for the Central Government, before the 2018 amendment was made effective, to distinguish and classify personal guarantors separately from other individuals. This is evident from Sections 5(22), 60, 234, 235 and the unamended Section 60. In V. Ramakrishnan (supra) the Court noted the effect of various provisions of the Code and how they applied to personal guarantors:, We are afraid that such arguments have to be turned down on a careful reading of the sections relied upon. Section 60 of the Code, in sub‑section (1), refers to insolvency resolution and liquidation for both corporate debtors and personal guarantors, the adjudicating authority for which shall be the National Company Law Tribunal having territorial jurisdiction over the place where the registered office of the corporate person is located. This sub‑section is only important in that it locates the Tribunal which has territorial jurisdiction in insolvency resolution processes against corporate debtors. So far as personal guarantors are concerned, Part III has not been brought into force, and neither has Section 243, which repeals the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920. The net result is that personal guarantors will continue to be proceeded against under the aforesaid two Insolvency Acts and not under the Code. By a Press Release dated 28‑8‑2017, the Government of India, through the Ministry of Finance, cautioned that Section 243 of the Code, which provides for the repeal of the said enactments, has not been notified till date, and that the provisions relating to insolvency resolution and bankruptcy for individuals and partnerships contained in Part III of the Code are yet to be notified. Hence, stakeholders who intend to pursue their insolvency cases may approach the appropriate authority or court under the existing enactments, instead of approaching the Debt Recovery Tribunals. Sub‑section (2) of Section 60 speaks of an application relating to the bankruptcy of a personal guarantor of a corporate debtor and states that any such bankruptcy proceedings shall be filed only before the National Company Law Tribunal. The argument that bankruptcy would include Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest proceedings must be turned down as bankruptcy has reference only to the two Insolvency Acts referred to above. Thus, Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest proceedings against the guarantor can continue under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. Sub‑section (3) speaks of a bankruptcy proceeding of a personal guarantor of the corporate debtor pending in any court or tribunal, which shall stand transferred to the adjudicating authority dealing with the insolvency resolution process or liquidation proceedings of such corporate debtor. An Adjudicating Authority, defined under Section 5(1) of the Code, means the National Company Law Tribunal constituted under the Companies Act, 2013., The scheme of Sections 60(2) and (3) is clear: the moment there is a proceeding against the corporate debtor pending under the 2016 Code, any bankruptcy proceeding against the individual personal guarantor will, if already initiated before the proceeding against the corporate debtor, be transferred to the National Company Law Tribunal; if initiated after such proceedings have been commenced against the corporate debtor, it shall be filed only in the National Company Law Tribunal. However, the Tribunal is to decide such proceedings only in accordance with the Presidency Towns Insolvency Act, 1909 or the Provincial Insolvency Act, 1920, as the case may be. Sub‑section (4) states that the Tribunal shall be vested with all the powers of the Debt Recovery Tribunal, as contemplated under Part III of the Code, for the purposes of sub‑section (2). This provision does not take effect because the Debt Recovery Tribunal has not yet been empowered to hear bankruptcy proceedings against individuals under Section 179 of the Code, as that section has not been brought into force. Section 249, dealing with the consequential amendment of the Recovery of Debts Act to empower Debt Recovery Tribunals to try such proceedings, has also not been brought into force. Section 2(e), which was brought into force on 23‑11‑2017, when it refers to the application of the Code to a personal guarantor of a corporate debtor, applies only for the limited purpose contained in Sections 60(2) and (3). This is what is meant by strengthening the Corporate Insolvency Resolution Process in the Statement of Objects of the Amendment Act, 2018., The amendment, insofar as it inserted Section 2(e) and altered Section 60(2), was aimed at strengthening the corporate insolvency process. At the same time, since the Code was not made applicable to individuals (including personal guarantors), the Court had no occasion to consider the effect of exercising power under Section 1(3) of the Code, bringing into force such provisions in relation to personal guarantors., The argument that the insolvency processes, application of moratorium and other provisions are incongruous is, in the opinion of the Supreme Court of India, insubstantial. The insolvency process in relation to corporate persons (a compendious term covering all juristic entities described in Sections 2(a) to (d) of the Code) is entirely different from those relating to individuals; the former is covered by Part II and the latter by Part III. Section 179, which defines the Adjudicating Authority for individuals, is subject to Section 60. Section 60(2) is without prejudice to Section 60(1) and, notwithstanding anything to the contrary contained in the Code, gives overriding effect to Section 60(2) as far as it provides that the application relating to insolvency resolution, liquidation or bankruptcy of personal guarantors of corporate debtors shall be filed before the National Company Law Tribunal where proceedings relating to corporate debtors are pending. Furthermore, Section 60(3) provides for transfer of proceedings relating to personal guarantors to that National Company Law Tribunal which is dealing with the proceedings against corporate debtors. After providing for a common adjudicating forum, Section 60(4) vests the National Company Law Tribunal with all the powers of the Debt Recovery Tribunal as contemplated under Part III of the Code for the purpose of sub‑section (2). Parliament therefore merged the provisions of Part III with the process undertaken against corporate debtors under Part II for the purpose of Section 60(2), i.e., proceedings against personal guarantors along with corporate debtors. Section 179 is the corresponding provision in Part III and is “subject to the provisions of Section 60”. Section 60(4) clearly incorporates the provisions of Part III in relation to proceedings before the National Company Law Tribunal against personal guarantors., It is clear from the above analysis that parliamentary intent was to treat personal guarantors differently from other categories of individuals. The intimate connection between such individuals and corporate entities to whom they stood as guarantors, as well as the possibility of two separate processes being carried on in different forums with attendant uncertain outcomes, led to carving out personal guarantors as a separate species of individuals for whom the adjudicating authority was common with the corporate debtor. Section 179 of the Code provides:\n\n(1) Subject to the provisions of Section 60, the Adjudicating Authority in relation to insolvency matters of individuals and firms shall be the Debt Recovery Tribunal having territorial jurisdiction over the place where the individual debtor actually and voluntarily resides or carries on business or personally works for gain and can entertain an application under this Code regarding such person.\n\n(2) The Debt Recovery Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain or dispose of (a) any suit or proceeding by or against the individual debtor; (b) any claim made by or against the individual debtor; (c) any question of priorities or any other question, whether of law or fact, arising out of or in relation to insolvency and bankruptcy of the individual debtor or firm under this Code.\n\n(3) Notwithstanding anything contained in the Limitation Act, 1963 or any other law for the time being in force, in computing the period of limitation specified for any suit or application in the name and on behalf of a debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded., The impugned notification is not an instance of legislative exercise or an impermissible and selective application of provisions of the Code. There is no compulsion in the Code that it should, at the same time, be made applicable to all individuals (including personal guarantors) or not at all. Sections 2(e), 5(22), 60 and 179 indicate that personal guarantors, though forming part of the larger grouping of individuals, were to be dealt with differently, through the same adjudicatory process and by the same forum (though not insolvency provisions) as corporate debtors. The notifications under Section 1(3), issued before the impugned notification, disclose that the Code was brought into force in stages, with regard to the categories of persons to which its provisions were to be applied. The impugned notification similarly makes the provisions of the Code applicable in respect of personal guarantors to corporate debtors as another such category of persons to which the Code has been extended. It is held that the impugned notification was issued within the power granted by Parliament and in valid exercise of it. The exercise of power in issuing the impugned notification under Section 1(3) is therefore not ultra vires; the notification is valid., The other question urged before the Supreme Court of India was that the impugned notification, by applying the Code to personal guarantors only, takes away the protection afforded by law; reference was made to Sections 128, 133 and 140 of the Indian Contract Act. The petitioners submitted that once a resolution plan is accepted, the corporate debtor is discharged of liability. As a consequence, the guarantor whose liability is co‑extensive with the principal debtor, i.e., the corporate debtor, too is discharged of all liabilities. It was therefore urged that the impugned notification, which allows proceedings before the National Company Law Tribunal by applying provisions of Part III of the Code, deprives guarantors of their valuable substantive rights., Section 31 of the Code provides that if the Adjudicating Authority is satisfied that the resolution plan approved by the committee of creditors meets the required criteria, it shall by order approve the resolution plan, which shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. The relevant provisions of the Indian Contract Act are:\n\n128. Surety’s liability – The liability of the surety is co‑extensive with that of the principal debtor, unless otherwise provided by the contract.\n\n129. Continuing guarantee – A guarantee which extends to a series of transactions is called a continuing guarantee.\n\n130. Revocation of continuing guarantee – A continuing guarantee may at any time be revoked by the surety, as to future transactions, by notice to the creditor.\n\n131. Revocation of continuing guarantee by surety’s death – The death of the surety operates, in the absence of any contract to the contrary, as a revocation of a continuing guarantee as far as future transactions are concerned.\n\n133. Discharge of surety by variance in terms of contract – Any variance, made without the surety’s consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance.\n\n134. Discharge of surety by release or discharge of principal debtor – The surety is discharged by any contract between the creditor and the principal debtor by which the principal debtor is released, or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.\n\n140. Rights of surety on payment or performance – Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety upon payment or performance of all that he is liable for is invested with all the rights which the creditor had against the principal debtor.\n\n141. Surety’s right to benefit of creditor’s securities – A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and if the creditor loses, or, without the consent of the surety, parts with such security, the surety is discharged to the extent of the value of the security., All creditors and other classes of claimants, including financial and operational creditors, those entitled to statutory dues, workers, etc., who participate in the resolution process, are heard and are entitled to vent their grievances before the National Company Law Tribunal. After considering their submissions and objections, the resolution plan is accepted and approved, resulting in finality as to the claims of creditors and others from the company undergoing the insolvency process. The petitioners argue that this finality extinguishes their liabilities and rely on Sections 128, 133 and 140 of the Contract Act to contend that creditors cannot proceed against them separately., In Vijay Kumar Jain v. Standard Chartered Bank (Supreme Court of India, 2019 SCC OnLine SC 103), the Court observed that Section 31(1) of the Code makes it clear that members of the erstwhile Board of Directors who are often guarantors are vitally interested in a resolution plan, as such plan binds them. The plan may scale down the debt of the principal debtor, resulting in scaling down the debt of the guarantor as well, or it may not. The regulations also make it clear that these persons are vitally interested in resolution plans as they affect them., The rationale for allowing directors to participate in meetings of the Committee of Creditors is that the directors’ liability as personal guarantors persists against the creditors and an approved resolution plan can only lead to a revision of amount or exposure for the entire amount. Any recourse under Section 133 of the Contract Act to discharge the liability of the surety on account of variance in the contract, without his consent, stands negated by the Supreme Court of India in V. Ramakrishnan, where it was observed that the language of Section 31 makes it clear that the approved plan is binding on the guarantor, to avoid any attempt to escape liability under the provisions of the Contract Act., In Committee of Creditors of Essar Steel (I) Ltd. v. Satish Kumar Gupta (the Essar Steel case), the Supreme Court of India refused to interfere with proceedings initiated to enforce personal guarantees by financial creditors. It observed that following the judgment in V. Ramakrishnan, it is difficult to accept the argument that a part of the resolution plan stating that the claims of the guarantor on account of sub‑rogation shall be extinguished cannot be applied to guarantees furnished by erstwhile directors of the corporate debtor. The Court set aside a National Company Law Appellate Tribunal judgment that was contrary to Section 31(1) of the Code and to the Supreme Court’s judgment in V. Ramakrishnan., It is therefore clear that the sanction of a resolution plan and the finality imparted to it by Section 31 does not per se operate as a discharge of the guarantor’s liability. The nature and extent of the liability depend on the terms of the guarantee itself. In Maharashtra State Electricity Board (supra), the liability of the guarantor was considered where the liability of the principal debtor was discharged under insolvency law or company law. The Court held that in view of the unequivocal guarantee, the guarantor’s liability continues and the creditor can realise the same from the guarantor, as there is no discharge under Section 134 of the Contract Act. The Court observed that the bank, under the guarantee, must pay the Electricity Board any sum up to Rs 50,000 on demand, without needing to prove any default by the company in liquidation.
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The fact that the Company in liquidation that is the principal debtor has gone into liquidation also would not have any effect on the liability of the Bank that is the guarantor. Under Section 128 of the Indian Contract Act, the liability of the surety is coextensive with that of the principal debtor unless it is otherwise provided by the contract. A surety is no doubt discharged under Section 134 of the Indian Contract Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor. But a discharge which the principal debtor may secure by operation of law in bankruptcy or in liquidation proceedings in the case of a company does not absolve the surety of his liability (see Jagannath Ganeshram Agarwala v. Shivnarayan Bhagirath [AIR 1940 Bom 247]; see also In re Fitzgeorge Ex parte Robson [(1905) 1 KB 462]). This legal position was noticed and approved later in Industrial Finance Corporation of India Ltd. v. Cannanore Spinning and Weaving Mills Ltd. An earlier decision of three judges, Punjab National Bank v. State of Uttar Pradesh, pertains to the issues regarding a guarantor and the principal debtor., The appellant had, after Respondent 4's management was taken over by Uttar Pradesh State Textile Corporation Ltd. (Respondent 3) under the Industries (Development and Regulation) Act, advanced some money to the said Respondent 4. In respect of the advance so made, Respondents 1, 2 and 3 executed deeds of guarantee undertaking to pay the amount due to the bank as guarantors in the event of the principal borrower being unable to pay the same. Subsequently, Respondent 3 which had taken over the management of Respondent 4 became sick and proceedings were initiated under the Sick Textile Undertakings (Nationalisation) Act, 1974 (for short the Act). The appellant filed suit for recovery against the guarantors and the principal debtor of the amount claimed by it. The following preliminary issue was, on the pleadings of the parties, framed: Whether the claim of the plaintiff is not maintainable in view of the provisions of Act 57 of 1974 as alleged in paragraph 25 of the written statement of Defendant 2? The trial court as well as the High Court both came to the conclusion that in view of the provisions of Section 29 of the Act, the suit of the appellant was not maintainable. We have gone through the provisions of the said Act and in our opinion the decision of the courts below is not correct. Section 5 of the said Act provides for the owner to be liable for certain prior liabilities and Section 29 states that the said Act will have an overriding effect over all other enactments. This Act only deals with the liabilities of a company which is nationalized and there is no provision therein which in any way affects the liability of a guarantor who is bound by the deed of guarantee executed by it. The High Court has referred to a decision of the Supreme Court of India in Maharashtra SEB v. Official Liquidator, High Court, Ernakulam [(1982) 3 SCC 358 : AIR 1982 SC 1497] where the liability of the guarantor in a case where liability of the principal debtor was discharged under the insolvency law or the company law was considered. It was held in that case that in view of the unequivocal guarantee such liability of the guarantor continues and the creditor can realise the same from the guarantor in view of the language of Section 128 of the Contract Act as there is no discharge under Section 134 of that Act. In our opinion, the principle of the aforesaid decision of the Supreme Court of India is equally applicable in the present case. The right of the appellant to recover money from Respondents 1, 2 and 3 who stood guarantors arises out of the terms of the deed of guarantee which are not in any way superseded or brought to naught merely because the appellant may not be able to recover money from the principal borrower. It may here be added that even as a result of the Nationalisation Act the liability of the principal borrower does not come to an end. It is only the mode of recovery which is referred to in the said Act., In Kaupthing Singer and Friedlander Ltd. (supra) the United Kingdom Supreme Court reviewed a large number of previous authorities on the concept of double proof, that is recovery from guarantors in the context of insolvency proceedings. Supreme Court of India held that: \The function of the rule is not to prevent a double proof of the same debt against two separate estates (that is what insolvency practitioners call 'double dip'). The rule prevents a double proof of what is in substance the same debt being made against the same estate, leading to the payment of a double dividend out of one estate. It is for that reason sometimes called the rule against double dividend. In the simplest case of suretyship (where the surety has neither given nor been provided with security, and has an unlimited liability) there is a triangle of rights and liabilities between the principal debtor (PD), the surety (S) and the creditor (C). PD has the primary obligation to C and a secondary obligation to indemnify S if and so far as S discharges PD's liability, but if PD is insolvent S may not enforce that right in competition with C. S has an obligation to C to answer for PD's liability, and the secondary right of obtaining an indemnity from PD. C can (after due notice) proceed against either or both of PD and S. If both PD and S are in insolvent liquidation, C can prove against each for 100p in the pound but may not recover more than 100p in the pound in all.\, In view of the above discussion, it is held that approval of a resolution plan does not ipso facto discharge a personal guarantor of a corporate debtor of his or her liabilities under the contract of guarantee. As held by the Supreme Court of India, the release or discharge of a principal borrower from the debt owed by it to its creditor by an involuntary process, that is by operation of law, or due to liquidation or insolvency proceeding, does not absolve the surety or guarantor of his or her liability, which arises out of an independent contract. For the foregoing reasons, it is held that the impugned notification is legal and valid. It is also held that approval of a resolution plan relating to a corporate debtor does not operate so as to discharge the liabilities of personal guarantors to corporate debtors. The writ petitions, transferred cases and transfer petitions are accordingly dismissed in the above terms, without order on costs.
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V. Ramasubramanian, J. Challenging a summoning order issued by the Special Judge, Anti-Corruption, Central Bureau of Investigation Court No.1, Ghaziabad, on a complaint lodged by the respondent under Section 45 read with Section 44 of the Prevention of Money Laundering Act, 2002, the petitioner has filed the above writ petition under Article 32 of the Constitution of India., We have heard Ms. Vrinda Grover, learned counsel for the petitioner, and Mr. Tushar Mehta, learned Solicitor General of India for the respondent., It is the case of the petitioner that during the pandemic she initiated a crowdfunding campaign through an online platform named Ketto and ran three campaigns from April 2020 to September 2021. In connection with the same, the Mumbai Zonal Office of the Enforcement Directorate initiated an enquiry against the petitioner under the Foreign Exchange Management Act, 1999 through an office order dated 3 August 2021., Thereafter a complaint was lodged on 7 September 2021 by one Vikas Sankritayan, claiming to be the founder of Hindu IT Cell, in FIR No. 2049/2021 with Indirapuram Police Station, Ghaziabad for alleged offences under Sections 403, 406, 418 and 420 of the Indian Penal Code read with Section 66D of the Information Technology (Amendment) Act, 2008 and Section 4 of the Black Money Act., In the meantime the petitioner received an order under Section 37 of the Foreign Exchange Management Act read with Section 133(6) of the Income Tax Act, 1961 from the Mumbai Zonal Office of the Enforcement Directorate seeking certain documents, in addition to the documents previously submitted by the petitioner in response to the earlier office order dated 3 August 2021., After the petitioner submitted a detailed response to the Mumbai Zonal Office of the Enforcement Directorate, the Delhi Zone‑II Office of the Directorate of Enforcement registered a complaint in Enforcement Case Information Report No. DLZO‑II/58/2021 on 11 November 2021 in the Special Judge, Anti‑Corruption, Central Bureau of Investigation Court at Ghaziabad. The complaint stated that the FIR registered on 7 September 2021 at Indirapuram Police Station formed the basis for the Enforcement Directorate’s action., Subsequent to the registration of the complaint, the petitioner was summoned to the Delhi Zone‑II Office and her statement under Section 50 of the Prevention of Money Laundering Act was recorded on 15 December 2021., Thereafter a provisional order of attachment of the petitioner’s bank account in HDFC Bank, Koperkhairane Branch, Navi Mumbai, Maharashtra, was passed by the Directorate of Enforcement on 4 February 2022. Pursuant to the attachment order, the Adjudicating Authority issued a show‑cause notice dated 8 March 2022., While the matter stood thus, a Look‑out Circular was issued against the petitioner but was set aside by the Delhi High Court in a writ petition filed by the petitioner. In a second writ petition the Delhi High Court restrained the Directorate of Enforcement from taking further steps under Section 8 of the Prevention of Money Laundering Act on the ground that the statutory validity period of 180 days for the provisional attachment order expired on 4 August 2022., Thereafter the Special Judge, Anti‑Corruption, Central Bureau of Investigation Court No.1, Ghaziabad passed an order on 29 November 2022 taking cognizance of the complaint lodged by the respondent and summoning the petitioner for appearance on 13 December 2022. Upon learning of the summoning order the petitioner filed the present writ petition. The petitioner claims that no summons have yet been received and annexed a screenshot of the e‑court website reflecting the case details, although a printout of the summoning order is filed with the petition., At the outset Ms. Vrinda Grover, learned counsel for the petitioner, clarified that the challenge to the impugned summoning order is limited to the question of territorial jurisdiction alone and that no other ground is being raised., The learned counsel contends that under Section 44(1) of the Prevention of Money Laundering Act, an offence punishable under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed, notwithstanding anything contained in the Code of Criminal Procedure, 1973. Apart from the non‑obstante clause, Section 71 of the Act gives overriding effect to the Prevention of Money Laundering Act. Accordingly, the counsel argues that only the Special Court in Maharashtra could have taken cognizance of the complaint., Heavy reliance is placed on the opinion of this Court in paragraphs 353 to 358 of the decision in Vijay Madanlal Choudhary & Ors. v. Union of India. The decision held that the trial of the offence of money laundering should proceed before the Special Court constituted for the area in which the offence of money laundering has been committed and that, where the scheduled offence is triable by a Special Court under a special enactment elsewhere, both trials must proceed independently, but in the area where the money‑laundering offence was committed. The judgment further explained that the 2013 amendment clarifies that trials concerning money‑laundering offences must be before the Special Court for the area of commission, and that the Special Court’s jurisdiction prevails over any other law by virtue of Section 71 of the 2002 Act., On the facts, the petitioner submits that no part of the alleged money‑laundering offence was committed within the jurisdiction of the Special Court, Ghaziabad, and that the petitioner’s bank account where the alleged proceeds of crime were deposited is located in Navi Mumbai, Maharashtra. The provisional attachment proceedings were initiated in New Delhi. Consequently, the petitioner contends that lodging the complaint at Ghaziabad was an abuse of process and that the complaint should have been returned to the respondent under Section 201 of the Code of Criminal Procedure, with the order taking cognizance being vitiated by non‑application of mind., In response, Mr. Tushar Mehta, learned Solicitor General, argued that under the scheme of the Act the complaint of money laundering must follow the complaint in respect of the scheduled offence. Since the scheduled offence was registered on 7 September 2021 at Indirapuram Police Station, the respondent was required to lodge the Enforcement Case Information Report on 11 November 2021 in the same court’s jurisdiction. He further submitted that the petitioner allegedly received money through an online crowdfunding platform and that several victims within the territorial jurisdiction of the Special Judge, Ghaziabad, had contributed money, thereby establishing a cause of action within that jurisdiction., From the rival contentions, two questions arise for consideration: (i) whether the trial of the offence of money laundering should follow the trial of the scheduled (predicate) offence or vice versa; and (ii) whether the Special Judge, Anti‑Corruption, Central Bureau of Investigation Court No.1, Ghaziabad can be said to have exercised extra‑territorial jurisdiction when the alleged offence was not committed within its territorial jurisdiction., To answer the first question it is necessary to note a few provisions of the Prevention of Money Laundering Act., The term ‘money laundering’ is defined in Section 2(1)(p) of the Act to have the same meaning as assigned to it in Section 3. Section 3 makes a person guilty of the offence of money laundering if he directly or indirectly attempts to indulge; knowingly assists; knowingly is a party; or is actually involved in any process or activity connected to proceeds of crime, including its concealment, possession, acquisition or use. The explanation under Section 3 clarifies that involvement in any of the following activities—concealment, possession, acquisition, use, projecting as untainted property, or claiming as untainted property—constitutes the offence of money laundering., Thus Section 3 comprises two essential limbs: (i) involvement in any process or activity; and (ii) connection of such process or activity to the proceeds of crime. ‘Proceeds of crime’ is defined in Section 2(1)(u) as any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence, or the equivalent value of such property held within the country or abroad., The Prevention of Money Laundering Act provides a two‑pronged approach: Chapter III and Chapter VI prescribe the procedure for dealing with the proceeds of crime through attachment, adjudication and appellate remedy before the Special Tribunal, while Chapter VII deals with the prosecution of money‑launderers by Special Courts., Section 43(1) of the Act provides for the constitution of Special Courts by the Central Government in consultation with the Chief Justice of the High Court. Sub‑section (2) empowers a Special Court constituted under Section 43(1) to try an offence other than the offence punishable under Section 4 of the Act, with which the accused may be charged at the same trial under the Code of Criminal Procedure, 1973. In other words, a Special Court is primarily constituted for trial of an offence punishable under Section 4, but may also try any other offence with which the accused is charged in the same trial., Section 44 deals with the territorial jurisdiction of the Special Court constituted under Section 43(1). Sub‑section (1) contemplates two contingencies: (i) where both the scheduled offence and the money‑laundering offence are committed within the territorial jurisdiction of the same Special Court; and (ii) where the court that has taken cognizance of the scheduled offence is different from the Special Court that has taken cognizance of the money‑laundering complaint. The provision sets out that an offence punishable under Section 4 and any scheduled offence connected to it shall be triable by the Special Court for the area in which the offence has been committed, and that where the courts differ, the case relating to the scheduled offence must be committed to the Special Court on application by the authorised authority., Section 44(1)(a) lays down the fundamental rule that an offence punishable under Section 4 of the Prevention of Money Laundering Act and any scheduled offence connected to it shall be triable by the Special Court constituted for the area in which the offence has been committed. The term ‘offence’ in the three occurrences within this clause refers to the money‑laundering offence, while ‘scheduled offence’ refers to the predicate offence. Consequently, the Special Court constituted under Section 43(1) is empowered to try even the scheduled offence connected to the money‑laundering offence., Section 44(1)(c) addresses the situation where the court that has taken cognizance of the scheduled offence is different from the Special Court that has taken cognizance of the money‑laundering offence. In such a case, the authority authorised to file a complaint under the Act must apply to the court that has taken cognizance of the scheduled offence, which shall then commit the case to the Special Court for trial., Therefore, it is clear that the trial of the scheduled offence should take place in the Special Court that has taken cognizance of the money‑laundering offence. In other words, the trial of the scheduled offence, as far as territorial jurisdiction is concerned, should follow the trial of the money‑laundering offence and not vice versa., Since the Act contemplates that both the scheduled offence and the money‑laundering offence be tried before the Special Court constituted under Section 43(1), a doubt may arise as to whether all offences are to be tried together. This doubt is removed by Explanation (i) to Section 44(1), which clarifies that the trial of both sets of offences by the same Court shall not be construed as a joint trial., A careful analysis of clauses (a) and (c) of Section 44(1) shows that they confer primacy upon the Special Court constituted under Section 43(1). The two rules are: (i) the offence punishable under the Prevention of Money Laundering Act and any scheduled offence connected to it shall be triable by the Special Court for the area where the money‑laundering offence was committed; and (ii) if cognizance of the scheduled offence is taken by a different Court, that Court shall commit the case to the Special Court that has taken cognizance of the money‑laundering offence., Because the Special Court constituted under Section 43(1) is given primacy, Section 44(1) begins with the words ‘notwithstanding anything contained in the Code of Criminal Procedure’. Although the Prevention of Money Laundering Act contains a non‑obstante clause in relation to the Code of Criminal Procedure in Sections 44(1) and 45(1), Sections 46(1) and 65 of the Act specifically declare that the provisions of the Code of Criminal Procedure, 1973 apply to proceedings before a Special Court, except to the extent they are expressly excluded., Having noted the relevant provisions of the Prevention of Money Laundering Act, we now turn to the provisions of the Code of Criminal Procedure that deal with territorial jurisdiction. As pointed out by this Court in Kaushik Chatterjee v. State of Haryana & Ors., the question of territorial jurisdiction in criminal cases revolves around the place of commission of the offence, the place where the consequence of the act ensues, the place where the accused was found, the place where the victim was found, the place where the property involved was found, or the place where the property is required to be returned or accounted for., The Court further observed that while the jurisdiction of a civil court is limited by territorial and pecuniary limits, the jurisdiction of a criminal court is determined by the offence and/or the offender., Paragraphs 19 to 21 of the Kaushik Chatterjee decision summarise the principles laid down in Sections 177 to 184 of the Code of Criminal Procedure, 1973: (a) every offence should ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed (Section 177); (b) where there is uncertainty about the place of commission, any court having jurisdiction over any of the local areas may inquire into or try the offence; (c) where an offence is committed partly in one area and partly in another, any court having jurisdiction over any of those areas may try the offence; (d) for a continuing offence committed in multiple areas, any such court may try it; (e) where an offence consists of several acts done in different local areas, any such court may try it (Section 178); (f) where an offence is by reason of an act and its consequence, the court within whose local jurisdiction either the act was done or the consequence ensued may try it (Section 179); (g) where an act is an offence by reason of its relation to another offence, the court within whose local jurisdiction either act was done may try it (Section 180); and further specific rules for offences such as dacoity, kidnapping, theft, cheating, etc., as enumerated in Sections 181 and 182., These principles cover almost all contingencies that may arise, except for the specific situation of money‑laundering, which is why Section 44(1) of the Prevention of Money Laundering Act begins with a non‑obstante clause. A combined reading of Section 44 of the Act and Sections 177 to 184 of the Code of Criminal Procedure provides a complete framework for determining jurisdiction., Once this combined scheme is understood, it becomes clear that, in view of clauses (a) and (c) of Section 44(1), the Special Court constituted under the Prevention of Money Laundering Act would have jurisdiction to try even the scheduled offence. Even if the scheduled offence is taken cognizance of by another Court, that Court must, on application by the concerned authority, commit the case to the Special Court that has taken cognizance of the money‑laundering offence. This resolves the first question posed before us., Turning to the second question, clause (a) of Section 44(1) leaves no doubt that the offence of money laundering is triable only by the Special Court constituted for the area in which the money‑laundering offence has been committed. To determine the area, we refer to the definition in Section 3 of the Prevention of Money Laundering Act, which lists the processes or activities constituting the offence: concealment, possession, acquisition, use, projecting as untainted property, or claiming as untainted property., As previously pointed out, involvement of a person in any one or more of these processes or activities connected with the proceeds of crime constitutes the offence of money laundering.
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In other words, a person may acquire proceeds of crime in one place, keep the same in his possession in another place, conceal the same in a third place, and use the same in a fourth place. The area in which each one of these places is located will be the area in which the offence of money laundering has been committed. To put it differently, the area in which the place of acquisition of the proceeds of crime is located or the place of keeping it in possession is located or the place in which it is concealed is located or the place in which it is used is located will be the area in which the offence has been committed., In addition, the definition of the words proceeds of crime focuses on deriving or obtaining a property as a result of criminal activity relating to a scheduled offence. Therefore, the area in which the property is derived or obtained or even held or concealed will be the area in which the offence of money laundering is committed., Having seen the legal landscape on the question of jurisdiction, let us now come back to the facts of the case on hand. It is the case of the petitioner that what was attached by the Enforcement Directorate under Section 5 of the Prevention of Money Laundering Act, 2002 as proceeds of crime was the bank account of the petitioner in Navi Mumbai, Maharashtra and that therefore the offence of money laundering, even according to the respondent, has been committed in Maharashtra., But the said contention overlooks the six different types of processes or activities mentioned in Explanation (i) under Section 3 of the Prevention of Money Laundering Act, 2002, as connected with proceeds of crime, namely, concealment, possession, acquisition, or use, etc., Even according to the petitioner, she ran three campaigns from April 2020 to September 2021 on an online crowdfunding platform named Ketto. From the pleadings on record, we are not able to make out the number of persons who provided funds and the places where the donors were located., The bank account of the petitioner in Housing Development Finance Corporation (HDFC) Bank, Koperkhairane Branch, Navi Mumbai, Maharashtra, is the ultimate destination to which all funds reached. Therefore, Navi Mumbai, Maharashtra is the place where the proceeds of crime were taken into possession (if they were actually proceeds of crime). Hence, Navi Mumbai, Maharashtra is a place where only one of the six different processes or activities listed in Section 3 has been carried out. The other activity, namely acquisition of the proceeds of crime (if they really are), has taken place in the virtual mode with people from different parts of the country or world transferring money online. If acquisition had taken place in the real physical world, the difficulty with respect to the question of jurisdiction would have been lesser. Since acquisition has taken place in the virtual world, the places from where online transfers of money took place are known only to the petitioner or perhaps their bankers., Therefore, the question of territorial jurisdiction in this case requires an enquiry into a question of fact as to the place where the alleged proceeds of crime were concealed, possessed, acquired, or used. This question of fact will actually depend upon the evidence that unfolds before the trial court. It will be useful in this regard to extract Paragraph 38 of the decision in Kaushik Chatterjee which reads as follows: 38. But be that as it may, the upshot of the above discussion is: 38.1. That the issue of jurisdiction of a court to try an offence or offender as well as the issue of territorial jurisdiction, depend upon facts established through evidence. 38.2. That if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in Sections 177 to 184 of the Code. 38.3. That these questions may have to be raised before the trial court trying the offence and such court is bound to consider the same., Therefore, we are of the view that the issue of territorial jurisdiction cannot be decided in a writ petition, especially when there is a serious factual dispute about the place or places of commission of the offence. Hence, this question should be raised by the petitioner before the Special Court, since an answer to the same would depend upon evidence as to the places where any one or more of the processes or activities mentioned in Section 3 were carried out. Therefore, giving liberty to the petitioner to raise the issue of territorial jurisdiction before the trial court, this writ petition is dismissed. There will be no order as to costs. (V. Ramasubramanian)
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Date of decision: 13.06.2022. Gulam Deen and another Petitioners versus State of Punjab and others Respondents. Present: Mister Sanjeev Kumar, Advocate, for the petitioners. This is a criminal writ petition under Article 226 and Article 227 of the Constitution of India for issuing a writ in the nature of mandamus directing respondent Nos. 2 to 4 to protect the life and liberty of the petitioners at the hands of private respondent Nos. 5 to 7., In the present case, both petitioners are Muslims. They fell in love some time ago and decided to perform marriage. The date of birth of petitioner No. 1 is 14.05.2001 and that of petitioner No. 2 is 01.01.2006 as per their Aadhaar Cards, which have been annexed with the petition as Annexures P-1 and P-2, respectively. Both petitioners solemnized their marriage on 08.06.2022 according to Muslim rites and ceremonies. Learned counsel for the petitioners contends that this is the first marriage of both petitioners., He has relied upon the decisions of the Punjab and Haryana High Court in Kammu versus State of Haryana and Others [2010(4) RCR (Civil) 716]; Yunus Khan versus State of Haryana and Others [2014(3) RCR (Criminal) 518]; and Mohd. Samim versus State of Haryana and Others [2019(1) 1 of 4 RCR (Criminal) 685] to argue that under Muslim law puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of fifteen years. It is further contended that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry any person of his or her choice and the guardian has no right to interfere., Learned counsel for the petitioners contends that the life and liberty of the petitioners is in grave danger at the hands of respondent Nos. 5 to 7. It is further contended that the petitioners have also moved a representation dated 09.06.2022 (Annexure P-4) to the Senior Superintendent of Police, Pathankot (respondent No. 2). However, no action has been taken thereon. Learned counsel for the petitioners submits that he limits his prayer in the present petition and would be satisfied at this stage if directions are issued for deciding the said representation (Annexure P-4) in a time-bound manner in accordance with law., Notice of motion. On the asking of the Punjab and Haryana High Court, Mister Bhupender Beniwal, Additional Advocate General, Punjab accepts notice on behalf of respondent Nos. 1 to 4. The Punjab and Haryana High Court has taken note of the judgments cited on behalf of the petitioners and also the fact that the girl in the instant case, that is petitioner No. 2, is aged more than sixteen years., In the case of Yunus Khan (supra) it has been noted that the marriage of a Muslim girl is governed by the personal law of the Muslims. Article 195 from the book *Principles of Mohammedan Law* by Sir Dinshah Fardunji Mulla has also been reproduced in the said decision, which reads as follows: 'Capacity for marriage – (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. (3) A marriage of a Mahomedan who is of sound mind and has attained puberty is void if it is brought about without his consent. Explanation – Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.' The law, as laid down in various judgments cited above, is clear that the marriage of a Muslim girl is governed by Muslim Personal Law. As per Article 195, petitioner No. 2, being over sixteen years of age, was competent to enter into a contract of marriage with a person of her choice. Petitioner No. 1 is stated to be more than twenty-one years of age. Thus, both petitioners are of marriageable age as envisaged by Muslim Personal Law., In any event, the issue in hand is not with regard to the validity of the marriage but to address the apprehension raised by the petitioners of danger to their life and liberty at the hands of the private respondents and to provide them protection as envisaged under Article 21 of the Constitution of India. Article 21 provides for protection of life and personal liberty and further lays down that no person shall be deprived of his or her life and personal liberty except as per the procedure established by law. The Punjab and Haryana High Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights envisaged in the Constitution of India., In view of the above discussion and without expressing any opinion with regard to the veracity of the contents of the petition and the submissions made by learned counsel for the petitioners, the present petition is disposed of with a direction to the Senior Superintendent of Police, Pathankot (respondent No. 2) to decide the representation of the petitioners dated 09.06.2022 (Annexure P-4) and take necessary action as per law. It is, however, made clear that this order shall have no effect on any other civil or criminal proceedings, if any, instituted or pending against either of the parties.
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Date of decision: 24th January 2022. Through Mr. Kumar Piyush Pushkar, Advocate versus Through Mr. Chirag Khurana, Advocate for Mr. Ashish Aggarwal, Additional Solicitor General for the State. Mr. Madhusudan Bhayana, Advocate for the Complainant/Respondent No.2., This petition has been filed under Article 226 and Article 227 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure seeking the quashing of FIR No. 89/2021 dated 07 February 2021 registered at Police Station Jahangir Puri under Sections 354A and 506 of the Indian Penal Code., The facts, in brief, leading up to this petition are as follows: It is stated that in December 2016 the petitioner, who is an Assistant Professor at the University of Delhi, went to his hometown with his family, and during this time the cemented water tank that had been constructed for his flat on the rooftop was demolished by Mrs. Meena Kumar, Respondent No.2. Respondent No.2 subsequently constructed a room and toilet, and in the process broke the pipe that would be used to supply water from the water tank to the petitioner’s flat. When the petitioner returned, he was shocked to see that there was no water and, although he objected to the illegality of the constructions, Respondent No.2 and her family assured him that they would reconstruct it. They failed to do so and the petitioner installed a plastic water tank with his own money. The petitioner’s wife suffers from multiple ailments and the illegal construction is posing a serious threat to her life as it blocks ventilation. She made several requests and wrote multiple letters to the Delhi Development Authority (DDA) authorities regarding the illegal construction, and also gave multiple representations to the police authorities, but neither the DDA nor the police acted upon these complaints. The laxity of the authorities is alleged to be due to Respondent No.2’s daughter‑in‑law being a constable with the Delhi Police. As a consequence of the complaints, Respondent No.2 and her son Jatin abused and threatened the petitioner’s wife and the entire family. The petitioner’s wife lodged a criminal complaint dated 19 January 2017 at Police Station Jahangir Puri against Respondent No.2, Jatin and the daughter‑in‑law, but no FIR was registered despite the disclosure of a cognizable offence. Jatin again molested the petitioner’s wife, after which she called the police; however, due to police pressure the petitioner’s wife was forced to compromise with Jatin, who submitted an apology letter dated 27 July 2018. An RTI filed on 12 January 2017 by the petitioner’s wife to enquire about the action taken by the DDA revealed that the DDA claimed to have information about the illegal constructions. Accordingly, the petitioner’s wife filed a civil suit, Suit No. 826/2017 dated 23 October 2020, seeking demolition of the illegal construction with Respondent No.2 made a party to that suit as Respondent No.8. On 26 October 2020 the petitioner was attacked by one Mohan Singh, who allegedly conspired with Respondent No.2, who had apparently assured him that no action would be taken by the police because of her daughter‑in‑law’s employment with Delhi Police. The petitioner filed a complaint at Police Station Jahangir Puri and the police registered a non‑cognizable report dated 28 October 2020 under Sections 323 and 506 IPC, but no FIR was registered. On 21 November 2020, infuriated by the filing of the civil suit, Jatin started abusing the petitioner’s wife and threatened her with dire consequences, and the petitioner’s wife submitted a written complaint dated 21 November 2020 at Police Station Jahangir Puri; again no FIR was registered. In response to the written complaint, the police called the petitioner and pressurized him and his wife to compromise. On their refusal, Respondent No.2, in collusion with the police, lodged the impugned FIR on 07 February 2021. Without giving a copy of the FIR to the petitioner, the police took him to the police station and asked him to pay Rs 5,00,000 as a bribe to settle the matter. The petitioner and his wife were released around 12:00 AM only after the intervention of his lawyer. The petitioner has been asked to join investigations at odd hours on several occasions., Mr. Kumar Piyush Pushkar, learned counsel appearing for the petitioner, submitted that the instant FIR deserves to be quashed as it has been lodged with mala fide intent and is an attempt to coerce and arm‑twist the petitioner into withdrawing the complaint lodged by the petitioner’s wife against Respondent No.2’s son Jatin, who is a habitual offender. He stated that more than twenty complaints have been filed by the petitioner’s wife against Respondent No.2 and her family members, and that these are pending before various authorities. He further submitted that the impugned FIR contains nothing but bald allegations and has been registered in connivance with the police because the daughter‑in‑law of Respondent No.2 is a part of Delhi Police., Mr. Pushkar argued that the instant FIR is an abuse of the process of law and was filed only after the petitioner’s wife had filed the civil suit and then a written complaint against Respondent No.2’s son. He contended that the ambiguous general allegations against the petitioner have been made without mentioning the date and time of the offence and are therefore indicative of how the same are manufactured and concocted. He submitted that no evidence or proof has been forwarded by Respondent No.2 to substantiate her allegations and, therefore, it can be presumed that they are false, frivolous, malicious and vexatious in nature., The learned Additional Solicitor General for the State, Mr. Ashish Aggarwal, submitted that the petitioner and his wife are habitual complainants and that both have filed several complaints regarding the illegal construction in their neighbourhood. He stated that letters had indeed been sent to the Municipal Corporation of Delhi for taking necessary action and that the request had also been sent to the Sub‑Divisional Magistrate for further action. He claimed that appropriate action has been taken as per law on each complaint filed by the petitioner and his wife., The learned Additional Solicitor General brought to the notice of the High Court that on 27 February 2021 the petitioner had been dismissed from his Resident Welfare Association secretary post for abusing his position and that these complaints were solely filed against the residents as the petitioner was angry about his removal. He argued that the son of Respondent No.2, Jatin, does not live in that neighbourhood and only visits his parents occasionally. He further stated that on 26 October 2020 a Kalandra under Sections 106 and 150 of the Code of Criminal Procedure had been prepared against the petitioner, his wife, and their neighbour., Mr. Madhusudan Bhayana, learned counsel for Respondent No.2/Complainant, argued that the petitioner is an extortionist and that the allegations made in his petition are false and baseless. He placed on record that in Parbatbhai Aahir & Ors. v. State of Gujarat & Anr., (Criminal Appeal No. 1723 of 2017), the Supreme Court laid down broad principles in relation to Section 482 of the Code of Criminal Procedure and stated that the inherent powers of the Court could not be invoked to quash criminal proceedings involving serious and heinous crimes which are not private in nature and have a serious impact upon society. He further stated that sexual harassment cases cannot be quashed under Articles 226 or 227 of the Constitution of India and must be decided through the process of trial., Heard Mr. Kumar Piyush Pushkar, learned counsel for the petitioner; Mr. Ashish Aggarwal, learned Additional Solicitor General for the State; and Mr. Madhusudan Bhayana, learned counsel for Respondent No.2/Complainant, and perused the material on record., The Supreme Court has time and again laid down the parameters that must be adhered to by a High Court while exercising its inherent power under Section 482 of the Code of Criminal Procedure to quash an FIR. In this context, it is pertinent to reproduce Section 482: “Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”, In State of Haryana and Ors. v. Bhajan Lal and Ors., 1992 Supp (1) SCC 335, the Supreme Court provided a precise, clearly defined set of inflexible guidelines laying down instances where such inherent power could be exercised for quashment of an FIR. The relevant portion of that judgment is reproduced as follows: (1) Where the allegations made in the FIR or 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 and accompanying materials do not disclose a cognizable offence justifying 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). (3) Where the uncontroverted allegations and the evidence collected do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations constitute only a non‑cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2). (5) Where the allegations 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 a specific provision provides 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 spite due to a private and personal grudge. The Court cautioned that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection, and that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or complaint., Therefore, quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case be done before trial to find out whether the case would end in conviction or acquittal. A perusal of the material on record in the present case reveals that the contents of the FIR are sketchy and void of any specifics regarding the offences alleged. While an FIR is not required to disclose all facts, a bare reading of impugned FIR No. 89/2021 prima facie indicates bald allegations and contradictory statements. The Status Report also does not reveal anything about the offences referred to in the FIR. It states that the petitioner and his wife are habitual complainants and have filed multiple complaints against the construction in the neighbourhood, indicating that the instant FIR was maliciously instituted with an ulterior motive for vengeance and to spite the petitioner and his wife due to a private and personal grudge. The impugned FIR appears to be a counter‑blast solely registered to arm‑twist the petitioner and his wife into withdrawing the complaints against Respondent No.2 and her family., This Court expresses its anguish at how provisions such as Sections 354A and 506 IPC are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual. This merely trivialises the offence of sexual harassment and casts doubt on the veracity of allegations filed by genuine victims, thereby setting back the cause of women empowerment., The High Court, therefore, deems it fit to exercise its inherent power to quash FIR No. 89/2021 dated 07 February 2021 registered at Police Station Jahangir Puri under Sections 354A and 506 IPC to prevent the abuse of the process of any Court and to secure the ends of justice., With the above observations, the petition is allowed. All pending applications, if any, are disposed of.
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Reportable Criminal Appeal No. 1278 of 2021 Hariram Bhambhi (Appellant) versus Satyanarayan and another (Respondents). Justice Dhananjaya Y Chandrachud. Leave granted., On 9 June 2018 the appellant lodged a report at Police Station Kishangarh, District Ajmer, on the basis of which First Information Report No. 116/2018 for offences punishable under Sections 302 and 201 of the Indian Penal Code was registered. The appellant stated that on 8 June 2018 his younger brother Ram Niwas had gone out for labour work. The appellant’s mother informed him that evening that Ram Niwas was going to meet his brother‑in‑law Kishan Lal and would not return that day. On 9 June 2018 Ram Niwas’s spouse told the appellant that Kishan Lal had taken Ram Niwas in a vehicle at about 3.00 o’clock. Local residents informed the appellant that the dead body of Ram Niwas was thrown out of a vehicle at a place near Police Station Kishangarh. Because the deceased belonged to a Scheduled Caste, offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were added. The first respondent was arrested. On 6 September 2018 a final report under Section 173 of the Code of Criminal Procedure was submitted by the investigating officer against Kishan Lal and three other accused, naming the first respondent as accused A‑4., Aggrieved by the rejection of his bail application by the Sessions Court, the first respondent moved the Rajasthan High Court seeking enlargement of bail. The complainant was represented by counsel, and notice was given to him under sub‑sections (3) and (5) of Section 15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The appeal was withdrawn on 8 August 2019. On 25 September 2019 the first respondent filed a second bail application before the Special Judge, Scheduled Castes and Scheduled Tribes (Atrocities Prevention Cases) Ajmer. The Special Judge rejected the application, noting that statements of five witnesses – PW‑1 Suresh, PW‑2 Smt. Aaram Devi, PW‑3 Hari Ram, PW‑4 Ram Shankar and PW‑5 Gokul Singh – had been recorded but certain crucial witnesses were yet to be examined. The second bail application was consequently rejected, and the first respondent filed an appeal before the Rajasthan High Court. No notice was issued to the appellant under the provisions of Section 15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act., On 7 November 2019 the Rajasthan High Court heard arguments in the appellate proceedings. Counsel for the first respondent submitted that PW‑2, the wife of the deceased, had stated that the deceased had accompanied his brother‑in‑law Kishan Lal, who had taken an insurance policy in the name of the deceased, and that Kishan Lal had committed the murder with the help of his friends to obtain the proceeds of the insurance policy. After recording this submission, the High Court enlarged bail for the first respondent by order dated 7 November 2019. The order read: (i) The present criminal appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been filed in connection with FIR No. 116/2018 registered at Police Station Kishangarh, District Ajmer for offences under Sections 302 and 201 of the Indian Penal Code and Section 3(2)(v) of the Act. (ii) Counsel for the appellant submits that the appellant has been falsely implicated and that the wife of the deceased, Smt. Aaram Devi, in her trial statement, indicated that the deceased went with her brother‑in‑law Kishan Lal, who had taken an insurance policy in the name of her husband and purchased a trailer financed in his name, and that Kishan Lal committed the murder with the help of his friends. No allegation was levelled against the appellant, who has been in custody since 11 June 2018. (iii) The learned public prosecutor opposed the appeal. (iv) In view of the facts and circumstances, it would be just and expedient to release the appellant on bail. (v) The order dated 25 September 2019 passed by the Special Judge is quashed and set aside. The appellant Satyanarayan, son of Shri Sohandas, shall be released on bail upon furnishing a personal bond of Rs 50,000 (Rupees Fifty Thousand only) and two sureties of Rs 25,000 each, subject to his appearing before the trial court and any court to which the matter is transferred on all subsequent dates of hearing., The appellant subsequently moved the Rajasthan High Court under Section 439(2) of the Code of Criminal Procedure for cancellation of bail. Another Single Judge of the High Court, by order dated 29 January 2021, rejected the bail applications of three co‑accused – Kalu Ram, Kishan Lal and Chaman Lal. The application for cancellation of bail was premised on the ground that no notice had been issued to the appellant under sub‑section (3) of Section 15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, thereby denying an opportunity to be heard under sub‑section (5). The Single Judge, however, held that since the appellant was being heard in the application for cancelling bail, the requirements of sub‑sections (3) and (5) of Section 15A were complied with. The High Court observed that the court had heard counsel for the complainant‑petitioner again on merits, and therefore the requirement of issuing notice to the complainant‑petitioner (victim) under Section 15A(3)(5) was satisfied. Consequently, the bail cancellation application was dismissed., The learned counsel for the appellant submitted that (i) the High Court had fundamentally infringed the provisions of Section 15A by not issuing notice to the appellant, who as a complainant was entitled to be heard in any proceeding under the Act, including bail; (ii) the appellant had been represented by counsel in the appeal against the first bail application and the appeal was dismissed on 8 August 2019; (iii) the failure to issue notice under sub‑sections (3) and (5) of Section 15A before the grant of bail cannot be cured subsequently by noting that the appellant was heard in the cancellation‑bail proceeding; (iv) the High Court’s order of 7 November 2019 merely recorded the statement of counsel that the spouse of the deceased alleged that the deceased went with her brother who had obtained an insurance policy in the deceased’s name and that Kishan Lal committed the murder with the help of his friends; (v) the final report submitted on 6 September 2018 prima facie shows the complicity of the first respondent in the murder, with CCTV footage indicating participation of the first respondent and two co‑accused; and (vi) in addition to statements of the spouse, mother and an independent witness under Section 161 of the Code of Criminal Procedure, call‑data records of the accused for the period 1 June 2018 to 11 June 2018 show close contact among the accused and indicate their location at the time of the murder., The counsel for the first respondent argued that (i) the bail order relied on the spouse’s statement that Ram Niwas was murdered by his brother‑in‑law Kishan Lal with the help of friends to obtain insurance proceeds, making Kishan Lal the principal accused; (ii) if the court concludes that the appellant should have been heard before granting bail, the matter may be remanded to the High Court; and (iii) since his release on 7 November 2019 the first respondent has not committed any act detrimental to his liberty., A counter‑affidavit filed on behalf of the State of Rajasthan by the Additional Superintendent of Police, Rural District, Ajmer, stated that during investigation it was revealed that Kishan Lal helped the deceased board a vehicle from Vijay Nagar to Bander Sinderi, and local residents later saw the body of Ram Niwas being thrown out of the vehicle in front of Gokul Singh Dhaba in the Kishangarh area. Witness statements were recorded under Section 161 of the Code of Criminal Procedure. The investigation added offences under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act because the accused belongs to the Swarn community while the deceased belonged to a Scheduled Caste. The affidavit further noted that the knife with which the deceased was killed was recovered at the behest of the accused, including the first respondent. Analysis of call‑data records indicated continuous conversations on 9 June 2018 between the accused near Bandanwada at about 1.00 p.m., and subsequently all accused were located at the same place. The affidavit also mentioned that the first respondent is a habitual offender, previously convicted under Sections 498A and 406 of the Indian Penal Code in Case No. 75/2008 in the Court of ACJ M‑01, Kekari District Court, and sentenced to one year imprisonment., The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was enacted by Parliament to achieve the constitutional rights of Scheduled Castes and Scheduled Tribes. The Statement of Objects and Reasons accompanying the Bill in 1989 observed that despite various measures, Scheduled Castes and Scheduled Tribes remain vulnerable, denied civil rights, and subjected to offences, indignities, humiliations and harassment, including murder, rape and forced labour. Existing laws such as the Protection of Civil Rights Act, 1955 and the Indian Penal Code were found inadequate, necessitating special legislation to deter crimes committed by non‑Scheduled Castes and non‑Scheduled Tribes. The Bill also sought to define ‘atrocity’, introduce stringent punishments, and impose duties on the State and Union territories to protect victims and provide relief and rehabilitation., Section 15A, introduced by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (effective 26 January 2016), falls under Chapter IV‑A titled ‘Rights of Victims and Witnesses’. Sub‑section (1) obliges the State to make arrangements for the protection of victims, their dependents and witnesses against intimidation, coercion, inducement, violence or threats of violence. Sub‑section (2) requires that a victim be treated with fairness, respect and dignity, taking into account special needs arising from age, gender, education or poverty. Sub‑section (3) gives a victim or his dependent the right to reasonable, accurate and timely notice of any court proceeding, including bail, and mandates that the Special Public Prosecutor or the State Government inform the victim of such proceedings. Sub‑section (4) allows a victim or dependent to apply to the Special Court to summon parties, produce documents or examine persons. Sub‑section (5) entitles a victim or dependent to be heard at any proceeding under the Act concerning bail, discharge, release, parole, conviction, sentencing or related matters., Judicial pronouncements have held that the notice and hearing requirements of Section 15A are mandatory, not merely directory. The Madhya Pradesh High Court in Sunita Gandharva v. State of MP observed that the amendment was introduced to make the law victim‑oriented and that the right to be heard at bail applications is essential. The Gujarat High Court in Hemal Ashwin Jain v. Union of India emphasized that failure to serve notice to the victim or dependent under Section 15A(3) renders an order null and void, and that the provision is mandatory. The Rajasthan High Court has echoed this view, holding that sub‑sections (3) and (5) of Section 15A are mandatory in nature., In the present case, the right to notice and to be heard was violated. When the appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was heard by the High Court against the denial of bail by the Special Judge, the appellant was present through counsel. No notice was given to the appellant under Section 15A before the High Court granted bail on 7 November 2019. When the appellant later moved the High Court for cancellation of bail, the Single Judge held that compliance with natural justice at that later stage cured the earlier deficiency. This approach disregards the statutory mandate that notice and hearing must be observed at every stage of the proceeding., The Court has reiterated that grant of bail under Section 439 of the Code of Criminal Procedure involves judicial discretion that must be exercised with recorded reasons, ensuring accountability and transparency. In Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, the Court stressed that recording reasons is not a formality but a safeguard, and that the court must discuss the facts, nature of allegations, gravity of offences and the role of the accused before granting bail., The High Court’s order granting bail to the first respondent on 7 November 2019 recorded only the submission of counsel that PW‑2, the spouse of the deceased, had stated that the deceased went with her brother Kishan Lal, who had obtained an insurance policy in the deceased’s name and that Kishan Lal committed the murder with the help of his friends. The order contained no independent reasoning or analysis of evidence beyond noting the public prosecutor’s opposition, thereby failing to meet the requirement of reasoned judicial decision.
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The High Court held that it was just and expedient to release the first respondent on bail keeping in view the facts and circumstances of the case. Such orders cannot pass muster. The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus in the facts and circumstances formula. Brief reasons which indicate the basis for granting bail are essential, for it is the reasons adduced by the court which indicate the basis of the order., Before the High Court granted bail by its order dated 7 November 2019, the final report had been submitted on 6 September 2018. The final report under Section 173 of the Criminal Procedure Code contains a detailed analysis of the call data records of the accused who were in continuous contact with each other, as well as of their location in close proximity to the date and time of the incident. The bail order does not make any mention of factors that are relevant for the grant of bail, which are the seriousness and gravity of the offence and the role attributed to the first respondent in the commission of the crime. In this backdrop, the order of the High Court in granting bail cannot pass muster., Aggrieved by the order, the appellant had filed an application seeking its recall. The Single Judge of the High Court by the impugned order dated 8 June 2021 simply reiterated that the bail was granted on the basis of the statement of the wife of the deceased, Petitioner Witness 2, once again failing to show any engagement with the considerations that govern the grant of bail., The appeal is accordingly allowed and the impugned order of the Single Judge of the High Court of Punjab and Haryana dated 8 June 2021 in Special Bench Criminal Bail Cancellation Application No. 21/2020 is set aside. The order granting bail to the first respondent dated 7 November 2019 shall stand set aside. The first respondent shall surrender into custody on or before 7 November 2021., The observations made during the course of this judgment are only for the purpose of considering the grant of bail to the first respondent and shall not have a bearing on the merits of the case as such.
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There is a delay of 216 days in filing this Special Leave Petition (Criminal) against the judgment and order dated 5 October 2017 passed by the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 205/2014. Although the explanation offered for condonation of delay is vague and bereft of material facts, we deem it appropriate to condone the delay and proceed to hear the matter on merits., The respondents had objected to hearing the matter on merits owing to the unexplained delay in filing the petition and raised a serious objection to the joining of Ms. Teesta Setalvad as petitioner No. 2. Firstly, the protest petition on which the impugned order was passed was filed only by the appellant Zakia Ahsan Jafri, wife of the deceased Mr. Ehsan Jafri, and the High Court had previously ruled that she had no locus standi to join the cause of the appellant, a view that remains final as it has not been reversed by the Supreme Court of India in Special Leave Petition (Criminal) No. 1088/2008. Secondly, the antecedents of Ms. Teesta Setalvad need to be considered, and she has been alleged to be vindictively persecuting this case for ulterior designs by exploiting the emotions of appellant Zakia Ahsan Jafri, the real victim. Ms. Setalvad describes herself as a bonafide crusader of human rights, but we have leaned in favour of examining the merits of the challenge at the instance of the appellant Zakia Ahsan Jafri., In view of the subject matter, the Supreme Court of India has previously invoked its role as parens patriae by issuing sui generis directions, including constituting a Special Investigation Team (SIT) to investigate the matter and present an appropriate report before the Metropolitan Magistrate taking cognizance of Crime Report No. 67/2002 dealing with the Gulberg Society, Meghani Nagar case. Accordingly, we have granted leave to appeal and decided to examine the matter on merits at the instance of the appellant Zakia Ahsan Jafri., This matter emanates from the sui generis directions given by the Supreme Court of India on 27 April 2009 in Special Leave Petition (Criminal) No. 1088/2008, while considering a challenge to the decision of the High Court dated 2 November 2007, which had rejected the prayer of the appellant Zakia Ahsan Jafri for a direction to the concerned authority to register an FIR on the basis of her complaint dated 8 June 2006 to the Director General of Police, Gujarat. The Supreme Court, by order dated 27 April 2009, directed the SIT appointed on 26 March 2008 to look into the complaint and submit its report within three months. The SIT submitted successive reports, taking into account observations of the Amicus Curiae appointed by the Supreme Court. Treating the further report as analogous to a report under Section 173(8) of the Code of Criminal Procedure, 1973, the Supreme Court permitted the SIT to place it before the Magistrate taking cognizance of Crime Report No. 67/2002 concerning the Gulberg Society trial, with further direction to the Magistrate to proceed in accordance with law, including giving the appellant an opportunity to be heard in the event of a final report recommending closure of her complaint., The appellant Zakia Ahsan Jafri, after being served with the final SIT report dated 8 February 2012 along with relevant materials, filed a protest petition on 15 April 2013. The Metropolitan Magistrate rejected the protest petition by order dated 26 December 2013 and accepted the final SIT report. This decision was taken to the High Court by way of Criminal Revision Application No. 205/2014, which was disposed of on 5 October 2017, giving rise to the present appeal., The abhorrent Godhra incident occurred on the morning of 27 February 2002, when karsevaks travelling in the Sabarmati Express train returning from Ayodhya were allegedly attacked and coaches set on fire at Godhra Railway Station at around 7.45 a.m., resulting in 58 persons being charred to death and a 59th victim succumbing to burn injuries on 3 April 2002. The aftermath saw unrest and violence across Gujarat, during which a violent mob attacked the inhabitants of Gulberg Society, Meghani Nagar, killing 69 persons, including the husband of appellant Zakia Ahsan Jafri, who had unsuccessfully attempted to dissuade the mob. A crime was registered at Meghani Nagar Police Station as Crime Report No. 67/2002. Multiple charge sheets were filed and the case was committed to the Sessions Court., The National Human Rights Commission filed a writ petition before the Supreme Court of India as Writ Petition (Criminal) No. 109/2003, and the Court appointed Mr. Harish N. Salve, learned senior counsel, as Amicus Curiae by order dated 9 October 2003. By order dated 21 November 2003, the Supreme Court stayed the trial of nine major criminal cases, including the one arising from Crime Report No. 67/2002 concerning the Gulberg Society., An affidavit filed by the Chief Secretary to the Government of Gujarat on 7 October 2003 disclosed that the State had moved to the High Court for amending a criminal appeal against the judgment of the Sessions Court acquitting the accused, and the High Court permitted the amendment. In view of the circumstances, the Court deemed it necessary to appoint an Amicus Curiae. Shri Harish N. Salve, Senior Advocate, accepted the appointment, and Mr. Bhargava V. Desai, Advocate-on-Record, was also appointed as Amicus Curiae to assist him. The matter was listed as TP (Criminal) Nos. 194‑202/2003, WP (Criminal) No. D17953/2003, SLP (Criminal) No. 3770/2003, SLP (Criminal) No. 7951/2002 and WP (Criminal) Nos. 11‑15/2003 on 17 October 2003. A counter‑affidavit filed on behalf of respondents Nos. 2 to 22 in SLP (Criminal) No. 3770/2003 was taken on record, and a complete set of paper books was to be given to the learned Amicus Curiae within 48 hours by the State of Gujarat., The Supreme Court directed the composition of the Special Investigation Team as follows: (1) Shri R. K. Raghavan, retired Director of the Central Bureau of Investigation; (2) Shri C. B. Satpathy, retired Director General, Uttar Pradesh Police College, Moradabad; (3) Ms. Geeta Johri; (4) Shri Shivanand Jha; (5) Shri Ashish Bhatia. The notification was to be issued by the State Government within ten days. Shri Raghavan would serve as Chairman, Ms. Johri as Convener, and the other members as IG‑rank officers. The SIT was instructed to record statements of any person wishing to give their version of the alleged incidents, to make necessary inquiries, and to provide infrastructure and resources for effective functioning. The SIT was to submit its report to the Supreme Court of India in a sealed cover after three months, after which further action would be taken by the Court., The SIT was tasked with inquiries and investigations in the following cases: (i) Crime Reports Nos. 1‑6/2002 titled Mohd. Rafudan Ansari & Ors.; (ii) Crime Report No. 09/2002 titled State v. Junia Farooq Hassan & Ors. pending in the Juvenile Court; (iii) Crime Report Nos. 275/2002 arising from FIR No. 46/2002 dated 28 February 2002 of Bijapur Police Station, Mehsana; (iv) Crime Report Nos. 67/2002 at Meghani Nagar Police Station; (v) Sessions Case No. 152/2002 titled State v. Kailash Lalchand Dhobhi & Ors.; (vi) Criminal Case No. 1720/2002 titled State v. Shankarji Hakaji Mali pending before the Metropolitan Magistrate Court, Ahmedabad; (vii) Criminal Case No. 296/2003 titled State v. Sandeep pending before the Metropolitan Magistrate Court, Ahmedabad; (viii) Criminal Case No. 524/2002 titled State v. Vishal Badrilal Nayee & Ors. pending in the Juvenile Court, Ahmedabad; (ix) Crime Report No. 982/2002 titled State v. Naresh Chahra pending in the Metropolitan Magistrate Court, Ahmedabad; (x) Crime Report No. 1662/2002 titled State v. Padmendra Singh; and (xi) Crime Reports Nos. 23/2002 and 27/2002 (Ode Massacre). Leave was granted to petitioners to amend petitions to include these Session trials, and the trials were stayed., The Supreme Court gave the following directions: (i) Supplementary charge‑sheets shall be filed in each case where the SIT has identified further material or additional accused; (ii) Trials shall be resumed on a day‑to‑day basis, considering that the incidents date back to January 2002 and the trials are delayed by seven years, with particular emphasis on early completion of sensitive communal disturbance cases; (iii) Six Fast Track Courts shall be designated by the High Court of Gujarat to conduct trials in the districts of Ahmedabad (Naroda Patia, Naroda Gam), Ahmedabad (Gulbarg), Mehsana (two cases), Sabarkantha (British Nationals case), Anand, and the Godhra train case (Sabarmati Jail, Ahmedabad); (iv) Senior judicial officers shall be appointed to these Fast Track Courts, with the Chief Justice of the High Court of Gujarat selecting the officers; (v) Experienced lawyers shall be appointed as Public Prosecutors in consultation with the Chairman of the SIT, with the Chairman empowered to seek replacement if performance is deficient; (vi) SIT officers may be nominated to assist the Public Prosecutor as a communication link; (vii) The Chairman of the SIT shall submit quarterly progress reports to the Supreme Court of India; (viii) The stay on the conduct of the trials is vacated to enable the trials to continue., The SIT published a public notice on 28 April 2008 inviting persons to share information and record statements before it. Subsequently, the Special Leave Petition filed by the appellant (SLP (Criminal) No. 1088/2008) was heard on 27 April 2009, where the Supreme Court directed that the complaint dated 8 June 2006 be examined by the SIT, which was to give its report within three months and the matter was to be listed after three months along with Writ Petition (Criminal) No. 109/2003 and connected cases. By judgment dated 1 May 2009, the Supreme Court vacated the stay of the trials, directed prosecution in Special Courts, and ordered the SIT to submit progress reports. The Court emphasized the protection of witnesses, directing that any witness seeking protection may apply to the SIT, which shall pass necessary orders. The Court also requested the Chief Justice of the Gujarat High Court to designate courts in each district for the trials, allowing multiple courts where necessary, and directed the State of Gujarat to file a status report on the constitution of such courts within three months.
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In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, SIT can request the Public Prosecutor to seek cancellation of the bails already granted., For ensuring a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the Supreme Court of India, the following steps shall be taken: Ensuring safe passage for the witnesses to and from the court precincts; Providing security to the witnesses in their place of residence wherever considered necessary; Relocation of witnesses to another State wherever such a step is necessary., As far as the first and the second is concerned, SIT shall be the nodal agency to decide which witnesses require protection and the kind of witness protection that is to be made available to such witness., In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities., In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses., All the aforesaid directions are to be considered by SIT by looking into the threat perception, if any., SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. SIT would also discharge such functions as have been cast upon them by the present order., If there are any matters on which directions are considered necessary (including by way of change of Public Prosecutors or witness protection), the Chairman of SIT may (either directly or through the amicus curiae) move the Supreme Court of India for appropriate directions., It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Supreme Court of India shall have to deal with such situations sternly and pass necessary orders. SIT shall also look into this area., Periodic three monthly reports shall be submitted by SIT to the Supreme Court of India in sealed covers., It is thus noticed that the Supreme Court of India permitted trial of concerned nine cases including the Gulberg Society case being CR No. 67/2002 to proceed. This judgment is also indicative of the high trust reposed by the Supreme Court of India in the SIT including about directing the State authorities to abide by the instructions given by the SIT., As directed by the Supreme Court of India vide order dated 27 April 2009, the SIT examined the complaint and also recorded statements of the concerned persons. Mr A K Malhotra, former DIG, CBI and a member of the SIT recorded statements of total 187 witnesses and Mr Himanshu Shukla, DCP, Crime Branch and I O, SIT examined 145 witnesses, in connection with the complaint of appellant Zakia Ahsan Jafri, dated 8 June 2006. A total of approximately 275 persons were questioned by them in compliance with the direction given by the Supreme Court of India. Two new members came to be inducted in the SIT on 15 May 2009. When the investigation into the stated complaint was ongoing, the SIT submitted the last supplementary chargesheet in the Gulberg Society case being CR No. 67/2002, on 12 August 2009, which fact was placed on record before the Supreme Court of India., SLP (Criminal) No. 1088/2008 then came up for hearing on 19 January 2010 along with other cases. The Supreme Court of India was duly informed that the SIT had submitted an interim report and asked for five months further time to complete the investigation in respect of the complaint of appellant Zakia Ahsan Jafri, dated 8 June 2006. The Supreme Court of India granted time till 30 April 2010. The order dated 19 January 2010 reads thus: In regard to the investigations in SLP (Criminal) No. 1088 of 2008, an interim report has been submitted by the Special Investigating Team (SIT). In the said report it has been reported that having regard to the gravity, complexity and vast spread of the allegations across Gujarat State, a very large number of suspects and witnesses have to be examined. It is also reported that a large number of vital documents are still awaited from the Government of Gujarat. The Committee has prayed for grant of five months further time for completion of the enquiry and submission of its final report in the matter. The Committee has also sought direction to the Government of Gujarat to hand over all the vital documents requisitioned by it from them. Having perused the correspondence between the SIT and the State Government, filed as annexures with the report, we direct the Government of Gujarat to hand over all the documents which have been requisitioned by the SIT without any further delay. The SIT would try to complete the enquiry in the matter expeditiously and submit its report by 30 April 2010. The report shall be kept in sealed covers., On 6 May 2010, Gulberg Society case being CR No. 67/2002 was put on hold because of the resignation of the Special Public Prosecutor appearing in that case. The Supreme Court of India took notice of I A No. 19816/2009 and passed the following order on 6 May 2010: Having perused the comments submitted by the learned Amicus Curiae on the allegations in the application (I A No. 19816 of 2009), and discussed the matter with him and the Chairman SIT at some length, we feel that it would be appropriate and expedient to direct Mr A K Malhotra, DIG (Retd) CBI to examine all police records in the possession of the SIT and submit a report about the veracity of the explanation given by the SIT on each of the points raised in the said application. The report shall be submitted within eight weeks. We further direct that though it seems unlikely that the trials would conclude shortly, but if in any one of the cases the trial is concluded before the next date, the concerned Trial Court shall not pronounce the final judgment till further orders by the Supreme Court of India. List the application along with other listed applications for directions on 6 August 2010. A report has been submitted by the Chairman SIT, on the letter of Shri Nigam R Shukla, the Special Public Prosecutor, in Naroda Police Station case (CR No 98 of 2002). We request the learned Amicus Curiae to assist the Chairman SIT in finding out suitable replacements for Shri R K Shah and N R Nigam, Special Public Prosecutors. As soon as the names are finalised by the Chairman SIT and communicated to the State Government, appropriate orders in that behalf shall be issued by the authorities concerned and in both the cases, which were being handled by them, shall resume subject to the orders, if any, by the Gujarat High Court in transfer petition arising from CR No. 67 of 2001. The progress report in Writ Petition (Criminal) No. 109 of 2003 filed by the SIT is taken on record. The same be kept in sealed covers. In other words, this Supreme Court of India once again passed an interim order in respect of trial in Gulberg Society case being CR No. 67/2002, directing the trial Court to proceed but not to pronounce the final verdict., On 12 May 2010, the SIT submitted a report prepared by Mr A K Malhotra asking for time for further investigation to enquire into the role of Mr Gordhan Zadafia, the then Minister of State (Home), Mr M K Tandon, the then Joint Commissioner of Police, Sector II, Ahmedabad City and P B Gondia, the then DCP, Zone IV, Ahmedabad City., The Supreme Court of India on 26 October 2010 permitted Mr Prashant Bhushan, learned Amicus Curiae to withdraw from the case and instead nominated Mr Rohinton Fali Nariman, learned senior counsel in his place to assist the Court. In addition, the Court directed handing over of the reports of Mr A K Malhotra to the Amicus Curiae, after taking it on record. This Supreme Court of India also lifted the stay on the pronouncement of the judgment except in Gulberg Society case being CR No. 67/2002. Relevant portion of the order dated 26 October 2010 reads thus: SLP (Criminal) No. 1088/2008 At the outset, Mr Prashant Bhushan has expressed unwillingness to continue as the Amicus Curiae and requested that he may be relieved from the case. We accede to the request and appoint Mr Rohinton Fali Nariman as an Amicus Curiae to assist the Court in this case. Mr Bhushan states that he will return the papers of the case received from the office in a sealed cover. On receipt of the record, the office shall forward the same to Mr Nariman. Report dated 20 October 2010 on further investigation against Shri M K Tandan etc. has been filed by the Chairman and one of the Members of the Special Investigation Team. According to the report, the investigation is likely to be concluded within a fortnight. The report is taken on record. Let the final report be filed before the next date. List on 2 December 2010 at 3.00 p.m. for consideration of the reports. Crl M P No. 22117 and 22115 of 2010 in SLP (Criminal) No. In view of the fact that Mr Prashant Bhushan has been discharged from the case as Amicus Curiae, both these applications are rendered infructuous and are disposed of accordingly. Crl M P No. 19816 of 2009 In WP (Criminal) Nos. 37-52/2002 In view of the subsequent developments, no further orders are called for in this application and the same is dismissed accordingly. Crl M P Nos. 22161-22162 of 2010 In WP (Criminal) Nos. 37-52 of Adjourned sine die. Crl M P No. 22325/2010 In WP (Criminal) Nos. 37-52 of 2002 At this stage, no orders are called for in the application. The application stands disposed of accordingly. Crl M P Nos. 22326-22327/2010 in WP (Criminal) No. 109/2003 In the light of the report of Mr A K Malhotra dated 13 August 2010 and the submissions of learned Amicus Curiae, we lift the restraint order passed on 6 May 2010, in all the cases, except in Cr No. 67 of 2002 (Meghani Nagar Gulbery Society case), in which case the trial may proceed but the final judgment shall not be pronounced. The trial Courts are now free to pronounce the final judgments. The applications are disposed of accordingly. WP (Criminal) No. 109/2003. A report dated 20 October 2010 has been filed by the Chairman, SIT, indicating the progress in trials in all the cases. The Chairman has stated that the trials are being closely monitored by him and other members of his team. According to the report, the trials in all the cases, on the whole, are proceeding quite satisfactorily. Let a copy of the report be supplied to the learned Amicus Curiae. The report will be taken up for consideration on 2 December 2010 at 3.00 p.m. We direct that in future the office shall list only those applications in which specific orders for listing are made. All the disposed of applications shall be detached from the record and shall not be shown in the cause list. The office shall also prepare a complete list of all the pending applications and place before the Supreme Court of India for appropriate orders on the next date. The aforesaid two reports filed by the SIT shall be kept in sealed covers., SLP (Criminal) No. 7046/2010 In the first instance, issue notice to respondent No 1. Ms Hemantika Wahi waives service of notice on behalf of the said respondent and seeks time to file reply affidavit. Let the needful be done within two weeks with advance copy to the learned counsel for the petitioners and to learned Amicus Curiae. Rejoinder affidavit, if necessary, shall be filed by the next date. Copies of the petition shall also be supplied to Mr Harish N Salve, the learned Amicus Curiae and the Chairman, SIT for their comments. List on 2 December 2010 at 3.00 p.m., The further report filed in this case mentioned that most of the allegations were not borne out from the statements and materials collated during investigation. However, it was recommended that further investigation under Section 173(8) of the Code of Criminal Procedure in respect of Mr Gordhan Zadafia, Mr M K Tandon and Mr P B Gondia may be necessary. Notably, the further investigation was conducted by Mr Himanshu Shukla, DCP, Crime Branch and I O, SIT and report was submitted by him to the Supreme Court of India on 17 November 2010., As noticed earlier, on one hand, the trial concerning Gulberg Society case being CR No. 67/2002 involving the gruesome killing of the husband of the appellant and others by a violent mob was allowed to proceed by the Supreme Court of India even when the SIT was enquiring into the complaint of appellant Zakia Ahsan Jafri, dated 8 June 2006; and in that process, the deposition of Mr Ashish Khaitan, senior journalist (who had conducted the Tehelka Sting Operation) was recorded by the trial Court on 2 August 2010, of Mr Rahul Sharma on 15 September 2010 and of appellant Zakia Ahsan Jafri on 22 October 2010., Further investigation report came to be submitted before the Supreme Court of India by Mr Himanshu Shukla on 17 November 2010. On 23 November 2010, Mr Rohinton Fali Nariman, learned Amicus Curiae requested the Court to allow him to withdraw from the case. That request was acceded to by the Court and in his place, Mr Raju Ramchandran was appointed as Amicus Curiae to be assisted by Mr Gaurav Agrawal, learned counsel. The Court also directed handing over to both the newly appointed Amicus Curiae the reports of SIT. The Amicus Curiae in turn examined the SIT reports concerning the complaint of appellant dated 8 June 2006 and placed their observations on record in the form of a note made over to the SIT. This Supreme Court of India then vide order dated 20 January 2011 directed thus: Mr Harish N Salve, the learned amicus curiae, has placed before us a note, pointing out that the Presiding Since Mr Rohinton Fali Nariman, Senior Advocate has expressed his inability to assist the Court in this case, we request Mr Raju Ramachandran, Senior Advocate and Mr Gaurav Agarwal, Advocate, to assist the Court in this case as Amicus Curiae. All the papers received back from Mr Prashant Bhushan, learned counsel, in sealed cover shall be forwarded to Mr Gaurav Agarwal., Judge conducting trial in Naroda Police Station I CR No 100/2002, has since been transferred by the Gujarat High Court in routine transfers of the Judicial Officers in the State. Learned amicus suggests that since the trial in the said case is at an advanced stage, the Officer may not be shifted. We feel that it will be proper and expedient if this request is made by the Chairman, Special Investigation Team before the Chief Justice of Gujarat High Court on the administrative side. We are confident that having regard to the fact situation, the learned Chief Justice will pass appropriate orders on the request of the Chairman., A Progress Report, dated 18 January 2011, regarding nine under trial cases has been filed by the Chairman, SIT. It appears from the said report that except for two Naroda cases, trial in other cases is nearing completion. In the said report, it is also pointed out that Presiding officer looking after the trial of Gulberg Society case (Shri B U Joshi) and Naroda Patiya case (Ms Jyotsnaben Yagnik) have been transferred out of Ahmedabad on 30 December 2010. The report is taken on record and shall be kept in a sealed cover., Special Leave Petition (Criminal) No. 7046 of 2010 Ms Kamini Jaiswal, learned counsel appearing for the petitioners prays that orders on the petition may be deferred for some time as she has not yet received complete instructions in the matter. Call on 3 March 2011 at 3.00 p.m. An additional affidavit has been filed by Ms Teesta Setalvad, one of the petitioners, explaining the circumstances under which copies of two letters addressed by her to Shri R K Raghavan, Chairman, SIT, were endorsed to the Office of High Commissioner for Human Rights (OHCHR), Geneva. Ms Kamini Jaiswal states on instructions from Ms Teesta Setalvad, who is present in Court, that in future no such letters shall be sent to the said organization. In light of the statement, we close the issue at that. Delay condoned. No ground is made out for grant of permission to file the Special Leave Petition. The Special Leave Petition is dismissed accordingly. Delay condoned. Issue notice returnable on 3 March 2011., A note has been submitted by Mr Raju Ramachandran, learned amicus curiae, for our perusal. A copy of the said note has also been supplied to the Chairman, SIT, who is present in Court today. List the matter on 3 March 2011 at 3.00 p.m., It is noticed from this order that certain issues were raised in connection with two letters addressed by Ms Teesta Setalvad to Dr R K Raghavan, Chairman, SIT, which were also endorsed to the Office of High Commissioner for Human Rights Council (OHCHR), Geneva. Ms Teesta Setalvad was called upon to explain the same. In response to which she had to give assurance to the Supreme Court of India that in future she will not repeat the act of forwarding letters written by her to SIT to the said organisation (OHCHR) and on such assurance, the issue stood closed., The matters were then listed on 15 March 2011, when Mr Raju Ramachandran, learned Amicus Curiae submitted a note, which had already been supplied to the Chairman, SIT. The Court directed the Chairman, SIT to look into the observations made by the Amicus Curiae against each of the findings made by the SIT. The order reads thus: SLP (Criminal) No. 1088/2008 A copy of the note submitted by the learned amicus curiae has already been supplied to the Chairman, Special Investigation Team. Let the Chairman, SIT, look into the observations made by the learned amicus curiae against each of the findings given by the SIT on the allegations made in the complaint and submit his report thereon. If considered necessary, it will be open to the SIT to carry out further investigations in light of the observations made in the said note. The report shall be submitted by 25 April 2011. List the case on 27 April 2011 at 3.00 p.m. The note submitted by the learned amicus curiae shall be kept in a sealed cover., What is significant to notice is order dated 5 May 2011 passed by the Supreme Court of India. The same reads thus: SLP (Criminal) No. 1088/2018 Pursuant to our order dated 15 March 2011, the Chairman, Special Investigation Team has filed report on the further investigations carried out by his team along with his remarks thereon. Statements of witnesses as also the documents have been placed on record in separate volumes. Let a copy of all these documents along with the report of the Chairman be supplied to Mr Raju Ramachandran, the learned Amicus Curiae. The learned Amicus Curiae shall examine the report, analyse and have his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments thereon. It will be open to the learned Amicus Curiae to interact with any of the witnesses, who have been examined by the SIT, including the police officers, as he may deem fit. If the learned Amicus Curiae forms an opinion that on the basis of the material on record, any offence is made out against any person, he shall mention the same in his report. List on 28 July 2011 at 3.00 p.m., CRL M P Nos. 21849/2009 and 21850/2009 in SLP (Criminal) No. At the request of learned counsel for the applicants, adjourned to 28 July 2011 at 3.00 p.m. for preliminary hearing. Learned counsel for the respondents submit that they do not propose to file any counter affidavit to the petition. List the matter for final disposal on 28 July 2011 at 3.00 p.m. All the reports shall be kept in a sealed cover., In terms of this order, Mr Raju Ramachandran, learned Amicus Curiae was granted liberty to examine the SIT report, analyse the same and give his own independent assessment of the statement of witnesses recorded by the SIT and submit his comments thereon. For doing that, he was also permitted to interact with any of the witnesses, who had been examined by the SIT including the police officials, as he may deem fit. In this two-month period, the Amicus Curiae had interacted with all concerned, as he desired including with Ms Teesta Setalvad. This direction was in the nature of permitting the Amicus Curiae to do appraisal of the actions of the investigator (SIT) appointed by the Supreme Court of India. This was an extra effort not only expected from the Amicus Curiae, but also for reassuring the Court that each allegation in the complaint dated 8 June 2006 is dealt with appropriately in the report submitted by the SIT. The learned Amicus Curiae, after analysing the entire material including the reports, then submitted his report on 25 July 2011., After the report was submitted by Amicus Curiae on 25 July 2011, the SIT submitted its further report after investigation including to deal with the observations of the Amicus Curiae on every aspect noted in his report. This further report of the SIT was placed before the Supreme Court of India on 12 September 2011. This Court being satisfied with the fact that investigation had been completed by the SIT under its supervision, following the decision in Bhagwan Singh vs Commissioner of Police & Anr., as well as, Vineet Narain v. Union of India & Anr., Union of India & Anr. v. Sushil Kumar Modi & Anr., M C Mehta (Taj Corridor Scam) v. Union of India & Anr., and Narmada Bai v. State of Gujarat & Anr., proceeded to pass the following order on 12 September 2011: The learned amicus curiae has now submitted his final report dated 25 July 2011. In light of the above conspectus and the report of the learned amicus curiae, the question for determination is the future course of action in the matter. We are of the opinion that bearing in mind the scheme of Chapter XII of the Code, once the investigation has been conducted and completed by SIT, in terms of the orders passed by this Court from time to time, there is no course available in law, save and except to forward the final report under Section 173(2) of the Code to the court empowered to take cognizance of the offence alleged. As observed by a three‑Judge Bench of this Court in M C Mehta (Taj Corridor Scam) v. Union of India, (2007) 1 SCC 110, in cases monitored by this Court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge‑sheet in the competent court, according to the ordinary procedure prescribed by law. Accordingly, we direct the Chairman, SIT to forward a final report, along with the entire material collected by SIT, to the court which had taken cognizance of Crime Report No. 67 of 2002, as required under Section 173(2) of the Code. Before submission of its report, it will be open to SIT to obtain from the amicus curiae copies of his reports submitted to this Court. The said court will deal with the matter in accordance with law relating to the trial of the accused, named in the report/charge‑sheet, including matters falling within the ambit and scope of Section 173(8) of the Code., However, at this juncture, we deem it necessary to emphasize that if for any stated reason SIT opines in its report, to be submitted in terms of this order, that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint dated 8 June 2006, before taking a final decision on such closure report, the Supreme Court of India shall issue notice to the complainant and make available to her copies of the statements of the witnesses, other related documents and the investigation report strictly in accordance with law as enunciated by this Court in Bhagwan Singh v. Commissioner of Police, (1985) 2 SCC 537. For the sake of ready reference, we note that in the said decision, it has been held that in a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) of the Code decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report., Having so directed, the next question is whether this Court should continue to monitor the case any further. The legal position on the point is made clear by this Court in Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661, wherein, relying on the decision in Vineet Narain v. Union of India, (1996) 2 SCC 199, a Bench of three learned Judges observed that once a charge‑sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge‑sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure., In M C Mehta v. Union of India, (2008) 1 SCC 407, a question arose as to whether after the submission of the final report by CBI in the Court of Special Judge, pursuant to this Court's directions, this Court should examine the legality and validity of CBI's action in seeking a sanction under Section 197 of the Code for the prosecution of some of the persons named in the final report. Dismissing the application moved by the learned amicus curiae seeking directions in this behalf, a three‑Judge Bench, of which one of us (D K Jain, J.) was a member, observed that the jurisdiction of the court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions. The constitutional scheme of this country envisages dispute resolution mechanism by an independent and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise takes away the discretionary jurisdiction of any court of law. Once a final report has been filed in terms of sub‑section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If he errs while passing a judicial order, the same may be a subject‑matter of appeal or judicial review., Recently, similar views have been echoed by this Court in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79. In that case, dealing with the question of further monitoring in a case upon submission of a report by CBI to this Court, on the conclusion of the investigation, referring to the earlier decisions in Vineet Narain, (1996) 2 SCC 199, Sushil Kumar Modi, (1998) 8 SCC 661 and M C Mehta (Taj Corridor Scam), (2007) 1 SCC 110, speaking for the Bench, one of us, P Sathasivam, J. observed as under:
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The above decisions make it clear that though the Supreme Court of India is competent to entrust the investigation to any independent agency, once the investigating agency completes its function of investigating into the offences, it is the court in which the charge‑sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure. Thus, generally, the Supreme Court of India may not require further monitoring of the case/investigation. However, we make it clear that if any of the parties including the Central Bureau of Investigation require any further direction, they are free to approach the Supreme Court of India by way of an application., Deferentially concurring with the dictum of the Supreme Court of India in the aforenoted decisions, we are of the opinion that in the instant case we have reached a stage where the process of monitoring of the case must come to an end. It would neither be desirable nor advisable to retain further seisin over this case. We dispose of this appeal accordingly. (emphasis supplied) As per the direction given by the Supreme Court of India, the Special Investigation Team presented its final report on 8.2.2012 before the concerned Metropolitan Magistrate, who had taken cognizance of Gulberg Society case being Crime Report No. 67/2002., It appears that the appellant corresponded with the Special Investigation Team, as well as the Magistrate for supplying certain documents. The Magistrate vide order dated 10.4.2012 directed supply of partial documents and on 16.5.2012 he rejected the request for granting the rest of the documents including enquiry report, further investigation report and statements enclosed therewith. This led to filing of Special Leave Petition (Criminal) No. 8989/2012. This petition was finally allowed on 7.2.2013 being converted into Criminal Appeal No. 273/2013. The order reads thus: Heard all the parties concerned including Mr. Raju Ramachandran, learned Amicus Curiae. Leave granted. The complainant is the appellant. She filed an application before the Metropolitan Magistrate claiming supply of all the documents filed along with the closure report dated 07.10.2012 by the Special Investigation Team., Before considering the claim of the appellant, it is relevant to refer to the earlier order of the Supreme Court of India dated 12th September 2011 made in Criminal Appeal No. 1765 of 2011. After going into various aspects, the Supreme Court of India issued the following directions to the Special Investigation Team: Accordingly, we direct the Chairman, Special Investigation Team to forward a final report, along with the entire material collected by the Special Investigation Team, to the court which had taken cognizance of Crime Report No. 67 of 2002, as required under Section 173(2) of the Code of Criminal Procedure. Before submission of its report, it will be open to the Special Investigation Team to obtain from the Amicus Curiae copies of his reports submitted to the Supreme Court of India. The said court will deal with the matter in accordance with law relating to the trial of the accused, named in the report/charge‑sheet, including matters falling within the ambit and scope of Section 173(8) of the Code of Criminal Procedure., However, at this juncture, we deem it necessary to emphasise that if for any stated reason the Special Investigation Team opines in its report, to be submitted in terms of this order, that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint dated 8 June 2006, before taking a final decision on such closure report, the Supreme Court of India shall issue notice to the complainant and make available to her copies of the (1) statements of the witnesses, (2) related documents and (3) investigation report strictly in accordance with law as enunciated by the Supreme Court of India in Bhagwant Singh v. Commissioner of Police & Anr. [(1985) 2 SCC 537]., For the sake of ready reference, we may note that in the said decision, it has been held that in a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) of the Code of Criminal Procedure decides not to take cognizance of the offence and to drop the proceedings or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report., Pursuant to the above direction, the Special Investigation Team submitted a final report to the court concerned. Before the said court, the appellant/complainant made an application for supply of all the materials filed before the said court. According to the appellant, pursuant to the directions of the Magistrate though she was supplied certain materials, still the Special Investigation Team has not provided all the required documents. Not satisfied with the order of the learned Magistrate, the appellant has filed this appeal. We have heard learned counsel appearing for the appellant, State as well as the learned Amicus Curiae. On going into the earlier direction of the Supreme Court of India as well as the impugned order passed by the Magistrate, we issue the following directions. The appellant is entitled to have copies of the report dated May 12, 2010 in two volumes, excluding the Chairman’s comments forwarded to the Supreme Court of India. The appellant is also entitled to have copies of reports dated November 17, 2010 and April 24, 2011 filed under Section 173(8) of the Criminal Procedure Code., Since the statements recorded contain signature, it is clarified that if the signed statements are supplied, the same shall be treated as statements made under Section 161 of the Code of Criminal Procedure. It is further clarified that the statements recorded in the inquiry shall only be used in the proceedings relating to the complaint dated June 8, 2006 filed by the appellant and shall not be used for any other purpose or in connection with any other case. We also clarify that the present order is confined to the facts and circumstances of the complaint dated 8 June 2006 and shall not be treated as a precedent in any other case. The appellant is granted eight weeks time for filing the protest petition from the date she receives the required copies as mentioned above. In view of the above conclusion and direction, the impugned orders of the learned Magistrate dated 16.07.2012 and 27.11.2012 are set aside to the extent mentioned above. The appeal is disposed of in the above terms., This order, besides issuing directions, as prayed regarding furnishing of documents, also clarified the position that the statements recorded by the Special Investigation Team pursuant to the investigation undertaken after 27.4.2009 in respect of the allegations in the complaint dated 8 June 2006, be treated as statements of witnesses under Section 161 of the Code of Criminal Procedure, which, however, cannot be used for any other purpose including the trial of Gulberg Society case being Crime Report No. 67/2002., Only after getting all the material accompanying the report, appellant Zakia Ahsan Jafri proceeded to file a protest petition on 15.4.2013 before the Metropolitan Magistrate. The Magistrate, after considering the protest petition and the final report of the Special Investigation Team dated 8.2.2012, by a speaking order dated 26.12.2013, rejected the protest petition filed by the appellant and accepted the final (closure) report filed by the Special Investigation Team and passed consequential order., Against this decision, the appellant carried the matter before the High Court by way of the stated criminal revision application, which came to be disposed of vide impugned judgment and order dated 5.10.2017, with liberty to the appellant to agitate the issue of further investigation upon availability of new material/information. Against the said decision, the present appeal from special leave has been filed., To complete the narration of relevant facts, we may also advert to the order passed by the Supreme Court of India on 13.4.2017 in W.P.(Crl.) No. 109/2003, commending the efforts of the Special Investigation Team as well, while relieving the Chairman of the Special Investigation Team from his responsibility. The said order reads thus: While placing on record our appreciation for the services rendered to the Supreme Court of India by the learned Amicus Curiae, we are immensely satisfied with the manner in which the proceedings had been conducted in all the trials, resulting in the conclusion of all but one trial. Learned Amicus Curiae has made a request on behalf of Shri R.K. Raghavan, the Chairman of the Special Investigation Team, seeking to withdraw from the Special Investigation Team hereinafter, on account of his ill health. We appreciate the request made, and release him from his responsibility as the Chairman of the Special Investigation Team. A similar request has been made for the release of Shri K. Venkatesham. The instant request is based on the fact that Shri K. Venkatesham has since been appointed as Commissioner of Police, Nagpur, and therefore his onerous responsibility leaves him limited time to deal with other issues. For the reasons brought to our notice, we hereby relieve Shri K. Venkatesham from the duties vested in him as a member of the Special Investigation Team. In the above view of the matter, we would request the remaining member of the Special Investigation Team, namely, Shri A.K. Malhotra, to continue to discharge the responsibility entrusted to the Special Investigation Team. Shri A.K. Malhotra shall furnish quarterly reports to the Supreme Court of India., Post for hearing in the last week of July 2017. The thrust of the argument was broadly two‑pronged. The first being the Special Investigation Team has jumped to the conclusion that no offence is made out against the persons named in the complaint/protest petition despite material and statements collated by it during investigation indicating to the contrary. Additionally, the failure of the Special Investigation Team to investigate into crucial allegations/material referred to in the protest petition. The second is about the failure of the Metropolitan Magistrate in exercising the powers vested in him including to take cognizance of the offence and in not directing further investigation by the Special Investigation Team in respect of certain matters. Even the High Court has committed the same fatal error. Reliance is placed on Vishnu Kumar Tiwari v. State of Uttar Pradesh & Anr. (2019) 8 SCC 27, to buttress these points. As held in Abhinandan Jha & Ors. v. Dinesh Mishra, there is no obligation on the Magistrate to accept the final report. It is open to the Magistrate to take cognizance if he is so satisfied by invoking powers under Section 190(1)(c) of the Code of Criminal Procedure including to direct further investigation., The appellant in the protest petition had articulated broad grounds on which the final Special Investigation Team report was being opposed. The same read thus: The petitioner submits that the Closure Report needs to be rejected and the Protest Petition allowed on the following grounds, which are in addition to the reasons and grounds set out elsewhere in this Petition: a) The documents and annexures as submitted by the Special Investigation Team along with the closure report make out a clear case for taking cognizance against all the accused; b) Without prejudice to the above, the Special Investigation Team while investigating has not examined all the necessary witnesses or called for all the necessary documents as set out in the Petition. In view of this the investigation is defective and incomplete. Further investigation therefore needs to be ordered to arrive at the whole truth; c) Without prejudice to the above, the Special Investigation Team’s analysis of the statements of witnesses and other documents is hopelessly biased, inaccurate, and suffers from total non‑application of mind; d) The Special Investigation Team has taken great pains to disbelieve and discredit any witnesses who have spoken against Accused No.1 or for that matter against any accused. Besides, the witnesses who were favouring the accused were not confronted with relevant documents and statements; e) The Special Investigation Team was required to ascertain whether there is any substance to proceed against the accused persons and once it comes to the conclusion that such substance exists it should have proceeded to file a Charge Sheet. Such substance exists against all the accused. There are witnesses and documents to cast reasonable doubt against the conduct of all the accused and pointing towards their culpability. For instance, the statements of senior officers like R.B. Sreekumar, Rahul Sharma, Sanjiv Bhatt as well as the Tehelka tapes (validated by the Sessions Court) are enough to file a charge sheet/take cognizance. Instead of doing this, the Special Investigation Team has acted like a super court dissecting every bit of evidence, turning and twisting it, ignoring relevant material and accepting uncorroborated irrelevant material to somehow whitewash this entire exercise. Worse, the Special Investigation Team has deliberately and manifestly ignored the huge voluminous evidence that is available on record. The Special Investigation Team has acted beyond its jurisdiction as an Investigating Agency. In fact this Hon’ble Court ought to disregard the Special Investigation Team Report altogether and look at the gathered evidence independently to arrive at the conclusion that cognizance ought to be taken., Apart from anything it needs to be verified whether the Closure Report is based on a collective application of mind by the Special Investigation Team as a whole or not. Large number of documents/statements are in Gujarati. Admittedly they have not been translated. Majority of the Special Investigation Team members cannot read Gujarati. In order to decide the weight to be attributed to each of the statements/document it was necessary that the Special Investigation Team, as a collective, applied its mind to these documents. In the absence of any translations it is not clear as to how the Special Investigation Team has come to the conclusions it has arrived at., The petitioner submits that against each of the accused there is sufficient material to take cognizance of offences of conspiracy and abetment, subversion of public justice, destruction and suppression of evidence, rioting, theft, robbery, murder, attempt to commit murder, etc. Besides, against many of the accused Charge Sheets should have also been filed for hate speech., The Special Investigation Team should have considered that once a public servant is held to be negligent in performing his duties, and if any criminal offence has taken place, he ought to be automatically charged with abetment. This is so because the definition of abetment includes acts as well as omissions. The Special Investigation Team has come to the conclusion that Accused Nos. 33 then Joint Commissioner of Police M.K. Tandon and then DCP Zone IV P.B. Gandia were negligent in their duties: Having arrived at this conclusion, the Special Investigation Team had no option but to charge them with the criminal offence of abetment at least as the negligence did result in offences being committed or not being prevented., The Special Investigation Team should have held that the statements and the documents which have been gathered make out a clear case of conspiracy against all including Accused No. 1., The petitioner submits that as has been held by various courts a conspiracy is usually hatched in secrecy and very rarely there is direct evidence of this. The offence can only be proved largely from inference drawn from acts or illegal omissions committed by the conspirators. Even at the time of trial, there need not be proof of express agreement. The agreement can be proved by necessary implication. Besides, it is not necessary that all the conspirators participate in all the offences resulting from the conspiracy though they would be liable for each one of them., In the present case direct evidence exists in terms of Sanjiv Bhatt’s testimony about at least one part of the conspiracy being hatched at the meeting held on 27.2.2002. Once this evidence is available it is for the trial court to decide what weight to attribute to it. It is not for the Investigating Agency to dissect this evidence with a view to discredit the same., In any event, without prejudice to whether Mr. Modi made the statement attributed to him in the meeting on 27.2.2002 the fact that the meeting took place is not disputed. One has to therefore look at the subsequent and prior events to decide as to what could have transpired at this meeting. It is obvious that the event reflects a conspiracy was hatched at this meeting to allow the people to vent their anger (justified or otherwise, instigated or otherwise, organized or otherwise) and not to intervene when offences are committed. In addition the forces were encouraged to abet this ire and to assist the people in venting it and at times to participate in it. Anyone who tried to maintain law and order was penalized. The conspiracy was very clear and played out over the next few days., The petitioner further submits that the offences of conspiracy and abetment along with the responsibilities of public servants have, independently or together, introduced the concept of command responsibility under our criminal law. Therefore any public servant shall be criminally responsible for crimes committed by forces or officers under his or her effective authority and control, as a result of his failure to exercise control (preventive or punitive) over these crimes. This would include the Chief Minister, Home Minister, other Ministers, police and bureaucratic top brass. This is more so since in the present case they knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes. It is further because the said public servants failed to take all necessary and reasonable steps to prevent or repress their commission or to submit the matter to the competent authority for investigation or prosecution., The Chief Minister/Home Minister was directly in charge of law and order in the State. Under his aegis crimes were committed. No steps were taken to curb these crimes. For example, preventive arrests were essential once the Bandh call was made. These are required to prevent commission of offence. No such arrests were made making the Home Minister downwardly responsible for crimes having been committed for failure to carry out preventive arrests. Besides, if instructions were given to make preventive arrests and they were not carried out then failure to take steps against the officers for not having done preventive arrests itself will amount to failure to discharge duties as a public servant and abetment., The Special Investigation Team has misdirected itself in looking at the allegations and events in a piecemeal manner rather than a holistic manner. What was needed to be done was to look at events prior to 27.2.2002, on 27.2.2002 and subsequent to 27.2.2002 to see if a common thread emerges. If this was done an obvious and apparent link between all these events and conduct of the accused comes out which would be sufficient to charge them with conspiracy and abetment, apart from other offences., We further submit that offences under Section 153A and Section 153B have been made out against accused who were charged with the same in our complaint and the Special Investigation Team ought to have filed Charge Sheets in respect of the same., Besides the aforesaid points, in the course of arguments and in the written submissions, it has been urged as follows: (1) It is urged that Article 21 of the Constitution not only guarantees protection of law to all, but it also includes a corresponding obligation on the State to fairly investigate the criminal cases and prosecute the persons involved in commission of such crime as per the law. The provisions in the form of the Code of Criminal Procedure is the procedure established by law within the meaning of Article 21. In the present case, the Special Investigation Team failed to investigate into crucial matters in the spirit of the mandate of Section 156 of the Code and it is also a failure of the Magistrate in exercise of powers to the fullest extent predicated in Section 173 read with Section 190, in particular, sub‑Section (1)(b) of the Code. Even the High Court fell foul of the same error while dealing with the revision application of the appellant. (2) The complaint dated 8 June 2006 was only a piece of information. The stand taken by the Special Investigation Team that allegations beyond the complaint cannot be looked at is legally untenable. If such a plea is countenanced, it would result in equating with, or limiting the enquiry as in the case of scrutiny of a plaint in a civil suit, wherein the plaintiff is bound by the averments/contents of the complaint. The order passed by the Supreme Court of India directing the Special Investigation Team to look into the complaint, in no way constricted the jurisdiction of the Magistrate to direct scrutiny of allegations which come to the fore consequent to filing of the protest petition. (3) The fact that appellant Zakia Ahsan Jafri was relegated by the Supreme Court of India to file a protest petition if the situation so warranted was not to curtail the powers of the Magistrate including to direct further investigation. In fact, the order of the Supreme Court of India indicates that it was open to the Magistrate to exercise all powers vested in him for dealing with the issues that may arise upon presentation of the final Special Investigation Team report and protest petition by appellant Zakia Ahsan Jafri. (4) It is significant to note that the complaint dated 8 June 2006 referred to matters not limited to events unfolding in and around the Gulberg Society crime, but also about the series of activities and actions pointing towards the instructions being issued from the highest authority bordering on conspiracy and abetment. The order of the Supreme Court of India dated 7.2.2013 reinforces the stand taken by the appellant that the Magistrate had ample power to issue directions to the Special Investigation Team for further investigation into the relevant matters referred to in the protest petition. Reliance was placed on Abhinandan Jha and Popular Muthiah v. State represented by Inspector of Police. (5) It is urged that it was the duty of the Magistrate to issue process and only after recording the evidence of the concerned witnesses, a conclusion could be reached about the truthfulness of the version and the piece of evidence in support of the accusation. Reliance was placed on State of Gujarat v. Afroz Mohammed Hasanfatta. (6) According to the appellant, the following issues have not been dealt with by the Magistrate and the Gujarat High Court: (i) Provocative behaviour was followed up by mass mobilisations and hate speech on 27.2.2002 as part of the wider conspiracy. As early as 12:30 p.m. on 27.2.2002, a State Intelligence Bureau officer communicated to the headquarters that there were reports that some dead bodies of Godhra victims would be brought to Kalupur Station in Ahmedabad and incidents would occur in Ahmedabad city and preventive action had to be taken. Home Department at Gandhinagar received more than eight messages intimating about the Godhra incident, the VHP call for a bandh and about violence taking place in Valsad and other places. (ii) Detailed documentary evidence from the Special Investigation Team investigation papers pieced together meticulously in the protest petition reveals that State Intelligence Bureau messages had noted systematic and violent mobilisations all over the State on 27.2.2002 within minutes of the Godhra tragedy. Despite these warnings, neither the Home Department nor the law‑and‑order machinery made preventive arrests or protected innocent lives. Kar Sevaks with saffron scarves continued shouting anti‑Muslim slogans after the incident; more VHP workers gathered at the spot and even after curfew had been declared at 10 a.m. Even after deployment of SRP and Railway police reinforcements, attempts to burn Muslim shops were taking place at Godhra. Since the investigation of the Godhra incident was by the Railway Police, it was their responsibility to deal with dead bodies. (iii) By about 1.00 p.m. in the afternoon violent and murderous attacks at Vadodara and Anand had taken place and by the evening the same had spread far and wide across the State. (iv) VHP Press Release carried exaggerated accounts of the Godhra incident. By the evening and late night of 27.2.2002, State Intelligence Bureau messages from Godhra to Bhavnagar, Mehsana to Viramgam (far‑flung districts of Gujarat) recorded aggressive mobilisation and provocative speeches being made exhorting the mob/citizens to attack Muslims. (v) An analysis of phone call records officially procured by former IPS officer Mr. Rahul Sharma and presented to the Nanavati‑Shah Commission had been made and evidence of elected representatives talking to some of the offenders/accused etc. was presented to the Special Investigation Team. The following aspects were not substantively investigated: (1) The mobile phone records show that Mr. Bhatt, named in the Zakia Jafri complaint dated 8 June 2006, was in touch with doctors from outside the Godhra city, after which post‑mortems of the Godhra victims were carried out in the open in the Railway Yard. (2) The mobile phone records also had illustrative details of the phone call records of then Additional Commissioner of Police – Mr. Shivanand Jha. That has not been investigated. (3) Similarly, the mobile phone call records of Mr. Dinesh Togadia etc. of the VHP and
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It is further urged that in the interests of justice, as the detailed protest petition alongwith exhaustive documentary evidence was presented, the Magistrate ought to have taken it as a complaint and directed further investigation in respect of issues raised therein. In the protest petition, the complainant has dealt with whole series of events and supporting documents and not a single or stray document from the investigation record, and relying on the totality of the circumstances, the allegation regarding larger criminal conspiracy has been set forth. It is her case that the incident of violence across the State of Gujarat after Godhra incident on 27.2.2002, was encouraged and condoned and overtly supported by the State Government owing to their actions and omissions on the part of the State constituting criminal conspiracy. The actors in the said criminal conspiracy were broadly in four groups: political establishment, bureaucrats, police officers and private organisations and individuals., It has been further asserted that the Magistrate and the Supreme Court of India have failed to deal with the following aspects in the context of issues raised in the protest petition: The first component is about conspiracy in regard to the prelude and build‑up before the Godhra incident on 27.2.2002. The protest petition mentions that the establishment allowed generation of deepened feeling of hatred towards a particular community, as can be discerned from the State Intelligence Bureau record and messages from at least 12.2.2002 onwards and also transcript of the Tehelka Sting Operation. The second component concerns the inaction of the named offender, political, police and bureaucrat functionaries after being intimated about the Godhra incident, hate speeches and mob mobilisations across the State on 27.2.2002. The third component concerns the inaction or non‑response of all the authorities including police, fire brigade and other functionaries, by not promptly deploying the Army, imposing curfew and taking preventive measures and making prompt arrests of the culprits after the outbreak of mass violence across the State post 27.2.2002., The ingredients of the conspiracy had been outlined in the complaint dated 8.6.2006 and restated with further details and evidence in the protest petition in the shape of the actual official messages indicative of systemic build‑up of communal tension before 27.2.2002. The transcript of the Tehelka Sting Operation reinforces the facts stated in the said messages. Notably, the tapes of the sting operation have been authenticated by the Central Bureau of Investigation consequent to direction given by the National Human Rights Commission and in fact, used by the Special Investigation Team in the cases investigated by them pursuant to the direction of this Supreme Court of India. These crucial aspects are suggestive of larger criminal conspiracy. However, the same had been conveniently glossed over by the Special Investigation Team., To buttress the usefulness of the Tehelka Sting Operation, the appellant relies on the transcripts of Mr. Anil Patel, VHP Vibhag Pramukh, Sabarkantha; Mr. Deepak Shah, member of Bharatiya Janata Party, Vadodara Unit; Mr. Haresh Bhatt, VHP and Bajrang Dal member; Mr. Rajendra Vyas, President, VHP, Ahmedabad City; Mr. Ramesh Dave, Kalupur Zila Mantri, VHP; and Babu Bajrangi, a Bajrang Dal activist, to urge that these were in the nature of extra‑judicial confessions and the persons should have been proceeded against for appropriate offence in the context of their utterances and disclosures. These transcripts were so revealing that no person with ordinary prudence would disagree with the stand of the appellant that they are replete with strong suspicion, warranting penal action. The Magistrate, however, disregarded this sting operation by relying on the dictum of this Supreme Court of India in Piara Singh and Others versus State of Punjab. Whereas the issue regarding admissibility of extra‑judicial confession is a triable issue and cannot be answered at this stage., As a matter of fact, Mr. Ashish Khaitan, the author and maker of the sting operation, had been examined as prosecution witness by the Special Investigation Team including in the Gulberg Society case being Crime Reference No. 67/2002. Even for this reason, it was not open to the Special Investigation Team or the Courts to disregard the said material at this stage. By disregarding such tangible and clinching material, the Special Investigation Team had attempted to protect the named offenders., It is further urged that the Special Investigation Team has not even chosen to appeal against acquittals in the Gulberg Society case being Crime Reference No. 67/2002 for reasons best known to them. In substance, there was clear evidence regarding conspiracy and corroborated by the sting operation and the affidavit of Mr. R. B. Sreekumar, an Indian Police Service officer who was then Additional Director General of Police (Intelligence), which have been conveniently discarded by the Special Investigation Team and by the Courts., The requisition of the National Human Rights Commission order by the Special Investigation Team (directing the Central Bureau of Investigation to authenticate the Tehelka Sting Operation and the CBI’s detailed report on the same) was followed by a submission of the entire complete authenticated transcripts of the Tehelka Sting Operation by the appellant to the Special Investigation Team investigating her original complaint dated 8.6.2006 vide letter dated 24.3.2010. In that communication, the appellant also mentioned in detail various aspects of the matter that need to be thoroughly investigated by the Special Investigation Team, given the evidence in these extra‑judicial confessions of a wider conspiracy and abetment to widespread targeted crimes. The detailed letter by the appellant to the Special Investigation Team indicating the issues that need to be investigated is a testimony of the fact that the investigating agency is being urged since 2010 to investigate the Sting Operation thoroughly. The complete transcripts, total 490 pages, had been provided to the Special Investigation Team by the appellant., In the detailed authentication document of the Central Bureau of Investigation, the CBI officer authenticates the Sting Operation after forensic voice‑tests were performed on those on whom the Sting Operation was conducted. The authentication report states: 13. On the basis of the above said enquiry, following conclusions can be drawn: i. The recordings in the ‘Sting Operation’ are found to be authentic as per Forensic Science Laboratory Report. ii. Most of the concerned persons appearing in the Sting Operation have admitted that they were contacted and that they have talked on the subject of Gujarat riots, which has been recorded during the sting operations. 14. The original statements and the laboratory report are enclosed herewith. The P.E. is being closed. 15. Special Investigation Team, formed by the Supreme Court of India to further investigate certain Gujarat riot cases, vide their letter dated 03.02.2009 and reminder dated 28.04.2009 have asked for equipment and recordings collected by the CBI. This is for information of the National Human Rights Commission and comments/instructions, if any. 16. This is for the information of the National Human Rights Commission and necessary action at their end please against High Court order., Meanwhile, the Special Investigation Team appointed by this Supreme Court of India, whose mandate of investigation was extended to also investigate the wider conspiracy into the violence that rocked the State of Gujarat in 2002, recorded the statement of Mr. Ashish Khaitan on 27.8.2009, the reporter who carried out the Sting Operation., In a parallel development that further gives authenticity and legitimacy to the Sting Operation, Mr. Ashish Khaitan deposed as prosecution witness (PW‑322) in the Naroda Patiya case on 19.12.2011. On 29.8.2012, in its judgement convicting 31 persons of the widespread massacre at Naroda Patiya, the Special Sessions Judge made strong observations accepting the Sting Operation as corroborative evidence. On the basis of this validation, two persons were convicted in this case., Notably, the Special Investigation Team appointed by this Supreme Court of India who investigated the Zakia Jafri complaint dated 8.6.2006 was also the prosecuting agency in the trials transferred to the Special Investigation Team for further investigation including the Naroda Patiya and Naroda Gaam trial. It is, therefore, inexplicable and clear evidence of the compromised nature of the Special Investigation Team investigation despite being the agency entrusted with a sensitive task by this Supreme Court of India, which failed to thoroughly investigate the leads and implications laid out in the conversations and extra‑judicial confessions revealed in the Tehelka Sting Operation., It has been urged that relevant facts noticeable from the transcript of the Sting Operation regarding manufacture of arms and bombs, bringing in the same from neighbouring States and other aspects of wider conspiracy elucidated therein, have been completely ignored by the Special Investigation Team and also by the Courts. The transcripts also reveal the involvement of senior officers of the Supreme Court of India, advocates and public prosecutors, whose names are mentioned in the State Intelligence Bureau messages in the build‑up and communal mobilisations and reportedly involved in the intimidation and browbeating of senior serving officer (Mr. R. B. Sreekumar) prior to his deposition before the Nanavati‑Shah Commission. It was, therefore, essential that the Magistrate should have directed further investigation into these aspects., The original complaint submitted by the appellant Zakia Ahsan Jafri relies on a slew of 23,000 pages of official record and non‑official documents and records indicative of inaction or failure of public servants and elected representatives bordering on a carefully woven conspiracy., There was a message indicating stockpiling of arms and also mob‑gathering with impunity from the early morning of 28.2.2002 when the dead bodies were brought to Sola Civil Hospital, Ahmedabad and the outbreak of violence. However, no police force was deputed. After the violence, there was no response from the fire brigade despite 45 distress calls being made by hapless citizens who were attacked by an armed mob intending to kill and burn them. No arrests were made of the aggressors, much less preventive arrests., The loss of life in such mass violence was mainly of persons belonging to the minority community. The unruly mob was emboldened because of the bandh call supported by the State. Women and children were also not spared during such violence and the police remained a silent spectator., After the outbreak of violence post‑Godhra, State Intelligence Bureau reports submitted by Mr. R. B. Sreekumar dated 24.2.2002, 15.6.2002, 20.8.2002 and 28.8.2002 to the Home Department were deliberately ignored. These reports had suggested strong corrective measures for restoration of normalcy., Even the report submitted by Mr. E. Radhakrishnan, an Indian Police Service officer (the then Deputy Inspector General) to the Director General of Police, as late as August 2002, recommending remedial measures, was not acted upon despite the spread of communal violence reported from 993 villages and 151 towns covering 284 police stations (out of 464 police stations) spread over 154 Assembly constituencies out of 182 Assembly constituencies., The statements made by Mr. Maniram, Additional Director General of Police (Law and Order), Mr. P. C. Pande, the then Commissioner of Police, Ahmedabad, Mr. K. Chakravarthi, Director General of Police, Gujarat and Mr. Ashok Narayan, Additional Chief Secretary (Home), reveal the deliberate inaction and failure of the high officials and elected representatives. To aggravate the situation, there was intentional delay in deployment of the Army and declaring curfew at the earliest opportunity., The Special Investigation Team has also not enquired into the matters highlighted in the National Human Rights Commission report nor made any attempt to record any statement of officials or the Chairperson of the Commission. The National Human Rights Commission report refers to several aspects including the experience of a sitting judge of the Gujarat High Court owing to the violent mob entering his premises. The statement of the judge had not been recorded by the Special Investigation Team., The Supreme Court of India has also failed to deal with the material regarding provocative behaviour followed by mass mobilisations and hate speeches post 27.2.2002 as part of the wider conspiracy. The State Intelligence Bureau officer had communicated to the headquarters as early as 12:30 pm on that day that there were reports that some dead bodies of Godhra victims would be brought to Kalupur Railway Station, Ahmedabad, which may result in causing communal disturbance all across. Despite such warning, neither the Home Department nor the law‑and‑order machinery took preventive measures to protect innocent lives, even after growing violence and murderous attacks at Vadodara and Anand happening by the evening and spreading across the State. On the other hand, no action had been taken against VHP office bearers for issuing press releases exaggerating the accounts of the Godhra incident., It was urged that the final closure report was erroneously tendered by the Special Investigation Team before the Metropolitan Magistrate and not in the sessions trial concerning the Gulberg Society case., The Special Investigation Team also failed to thoroughly investigate the messages of the State Intelligence Bureau, which formed part of the affidavit of Mr. R. B. Sreekumar, and were made available to the Special Investigation Team. The contents of these messages support the allegation of build‑up of a conspiracy even prior to 27.2.2002, in respect of which no corrective steps had been taken by the administration and persons in authority., There was enough material with the Special Investigation Team regarding the factum of hasty post‑mortems carried out on the dead bodies in an open railway yard under directions from the highest authority, so as to ignite emotions giving impetus to build up and cause communal disturbances and widespread violence. Not only that, the charred bodies of dead persons were caused to be paraded and allowed to be taken by a private person (VHP office bearer) in open vehicles from Godhra to Ahmedabad without observing essential protocols. Relying on Rule 223 in the Gujarat Police Manual, it was urged that despite the prohibition, photographs of mutilated bodies were taken and no enquiry in that regard has been made. None of the statements recorded by the Special Investigation Team explain why such photographs were allowed., There is contradiction in two different reports submitted by the Special Investigation Team before this Supreme Court of India and they support the allegation of preparation for organising widespread violence after the Godhra event., The authorities produced the relevant contemporaneous official record after lapse of almost nine years, although it was very much available with the Government even earlier when it was required to produce before the concerned forum. That was not done on the specious plea of non‑availability of such a record., No investigation has been done regarding the factum of intentional delay in imposing curfew and bringing in the Army including for its immediate deployment by providing logistical assistance to control the overwhelming situation across the State of Gujarat, in particular immediately after the carnage in the morning of 27.2.2002 at Godhra., The Special Investigation Team has not properly dealt with the role of Mr. M. K. Tandon and his acts of commission and omission warranting penal action., There was enough material to suggest that the police administration was under complete control of political heavyweights and ministers under instructions from the top (Chief Minister). That was evident from the presence of the ministers in the police control room and issuing directions to the local police., According to the appellant, the facts emerging from the materials referred to in the protest petition are so telling that no other inference except that the named persons had committed offence can be drawn, particularly regarding larger conspiracy. In that, no preventive measures were taken either before the episode of Godhra on 27.2.2002, or even thereafter, despite the seriousness and sensitivity of the situation. No preventive arrests were made and if at all done in two cases, it was against persons belonging to the minority community. Further, when the violence erupted across the State, no effort to douse the emotions of the violent mob was seen to be taken by the persons in authority, both by political dispensation and bureaucracy and police. The persons indulging in the gruesome activity were not arrested, much less stopped from doing so. Moreover, when it came to investigation, a summary report came to be filed in most of the cases, which was a clear reflection on the failure of police administration investigating such horrendous crime. Intriguingly, the persons who were arrested by the local police were released on bail or interim bail obviously because of the intentional lackadaisical approach of the public prosecutors. Not only that, the investigating machinery opted to accept the version of the offender as gospel truth and doubted the statements of the victims of crime. The malice not only pervaded in the local police, but also in the manner of investigation by the Court appointed Special Investigation Team. No investigation whatsoever has been done regarding pre‑Godhra incident conspiracy, carrying funeral procession on the basis of instructions to officials and handing over dead bodies for that purpose to private persons (Hasmukh Patel, Secretary of the Eastern Wing of VHP, Ahmedabad and Jaideep Patel, Gujarat Secretary of VHP, Naroda Gaam, Ahmedabad) including issuing instructions from the top (Chief Minister) to all the officials to give free hand to the mob. Even post‑Godhra incident, conspiracy before the unfolding of the violence across the State on 28.2.2002 has not been taken note of nor any FIR registered in that behalf, much less any investigation done by local police or, for that matter, the Court appointed Special Investigation Team., The Special Investigation Team, as well as the Courts, have dealt with statements of the concerned persons recorded by the Special Investigation Team as gospel truth and have arrived at conclusions on that basis. This, amongst others, is a manifest error committed in dealing with the issues on hand. The Magistrate while dealing with the protest petition and the final report ought to have applied the scale of strong suspicion emanating from the materials collected by the Special Investigation Team. And that was enough to proceed against the perpetrators. From the undisputed documents, even a layman would be able to decipher that a case of strong suspicion about the involvement of the named persons in the commission of offence has been clearly made out. Reliance is placed on State of Bihar versus Ramesh Singh and State (Delhi Administration) versus I. K. Nangia and Another to urge that if suspicion can be deduced from the record, that would be enough for the Magistrate to take cognizance. It is further urged that even if it is not a case of strong suspicion, the Magistrate was obliged to direct the Special Investigation Team to do further investigation on relevant aspects and allegations including matters outside the complaint but specifically noted in the protest petition. It was the bounden duty of the Magistrate to so direct, and also the primary responsibility of the Special Investigation Team to investigate every piece of information which had come to the fore by way of complaint or the protest petition., It is submitted that the larger conspiracy material was not investigated in the Gulberg Society case being Crime Reference No. 67/2002 and for that reason, it was essential to investigate every aspect regarding larger conspiracy., It is submitted that the stand taken by the Special Investigation Team on the basis of material collated during investigation, in no way indicated that mass violence had triggered till 1.00 p.m. on 28.2.2002. This stand is in conflict with the fact of sending requisition to call for the Army at about 2.30 p.m. on 28.2.2002. This is a clear reflection on the approach of the Special Investigation Team to obfuscate the enquiry., The approach of the Special Investigation Team to record the statements of persons named as offenders and to accept explanations given by them to form its opinion thereby exculpating those persons is ex‑facie fallacious. For, the explanation offered by the offenders would be a matter of their defence in the trial. The material indicating their complicity cannot be disregarded and veracity thereof could be tested only during the trial. Notably, not even a single statement of a victim has been recorded by the Special Investigation Team., As a matter of fact, neither the local police nor the Special Investigation Team has undertaken the task as is exposited by the expression investigation, as defined in Section 2(h) of the Code of Criminal Procedure. The expression investigation also means finding out the footprint of the statement or allegation, which is to undertake a meaningful investigation in respect of every singular aspect. The Special Investigation Team has not maintained the purity in investigation and failed to investigate crucial aspects warranting further investigation., The officers who collaborated in the conspiracy were eventually rehabilitated to high positions and those who did not do so were persecuted by the concerned administration., There was glaring evidence regarding the fact that even fire brigade facility was consciously denied to persons belonging to the minority community. The frantic phone calls made by them were not even attended to, despite the emergent situation faced by them. The Special Investigation Team made no effort to enquire into this factual allegation and did not call for explanation of concerned officials of the fire brigade., There was no adequate police bandh laid in anticipation nor stern measures taken when the actual violence took place on 28.2.2002 across the State. This was not a mere case of laxity or failure of the police administration, but a concerted effort under instructions from the top, when in fact, the public duty was to protect the life and property of everyone. The situation was aggravated because of the State support to the bandh call given by the agitators. The Special Investigation Team made no attempt to investigate these allegations forthcoming from the record before it. There was material to indicate that the official record had been destroyed under suspicious circumstances., Reliance has been placed on Firozuddin Basheeruddin and Others versus State of Kerala, Nirmal Singh Kahlon versus State of Punjab and Others, R. Venkatkrishnan versus Central Bureau of Investigation and State (NCT Delhi) versus Shiv Charan Bansal and Others., The Special Investigation Team has not enquired into the false propaganda for inciting violence and the publication in that behalf, despite the Special Investigation Team having received said documents., Reliance is placed on State of Karnataka and Another versus Dr. Praveen Bhai Thogadia and Amish Devgan versus Union of India and Others to contend that incitement to violence is a punishable offence., The Special Investigation Team has not enquired into the evidence regarding hate speech. Regarding hate materials, the material on record was glaring. That included false reporting by regional media outlets like Sandesh on 28.2.2002, claiming 10‑15 Hindu women being dragged away from the railway compartment at Godhra by a fanatic mob. The Gujarat police had denied any such incident having taken place. However, no action has been taken against the publisher or the reporter. The same newspaper had reported on 1.3.2002 on the front page with prominent heading that dead bodies of the kidnapped young women from Sabarmati Express had been recovered with their breasts chopped off and that Gujarat was aflame because of Muslim fundamentalists. These canards have been tolerated by the concerned administration unabated, thereby fuelling the emotions and hatred between the two communities. This was despite the reporting by the State Intelligence Bureau headed by Mr. R. B. Sreekumar recommending prosecution for provocative lines by the VHP in publication and anonymous pamphlets. Even the then Additional Chief Secretary (Home) Mr. Ashok Narayan had admitted in his statement to the Special Investigation Team that this matter had been brought to the notice of the State Government, but no action was ever taken. Similarly, the then Commissioner of Police, Vadodara Mr. D. D. Tuteja had recommended action against Sandesh newspaper in 2002, so also, Mr. Rahul Sharma, an Indian Police Service officer and the then Superintendent of Police, Bhavnagar sought permission to register a criminal case against Sandesh newspaper. Even the State Intelligence Bureau through Mr. P. B. Upadhyaya, the then Deputy Commissioner of Police (Intelligence) had sought sanction for prosecution of Sandesh newspaper, as recommended by Mr. Rahul Sharma. There is also material to indicate that the Central Crime Tracking (CCT) had highlighted the pretentious writing and propaganda disseminated by VHP and also widely reported in The Express on 24th March, allegedly circulated by the Bajrang Dal President Hastimal, who is said to have been arrested. The theme of such publication was: ‘Don’t purchase anything from Muslim shops, don’t travel in their vehicles or visit their garages; don’t watch films which feature Muslim stars. In this way, we can break their financial backbone.’ According to the appellant, the Special Investigation Team has chosen to turn a complete blind eye to this official documentary material and other material on record, despite the fact that publication of such material constitutes an offence in law, warranting investigation and appropriate action. This coupled with the sting operation clearly establishes the existence of a larger conspiracy., The Supreme Court of India has failed to analyse the opinion of the Special Investigation Team founded on the undisputed material indicative of prelude and build‑up before 27.2.2002 in the form of hate speeches and mobilisation all over Gujarat on 27.2.2002, the inaction of political, police and bureaucrat functionaries despite the serious episode of Godhra in the morning of 27.2.2002 and also their inaction after the outbreak of violence on 28.2.2002, not taking preventive measures, deploying adequate police force, no prompt arrests, no curfew declared and delay in calling the Army. The conspiracy was at different levels and at different timelines having causal connection with the violence across the State on and from 28.2.2002, in particular., According to the appellant, hate speeches all across were part and parcel of incitement to targeted violence and a systemic conspiracy. The authorities allowed hate speeches unchecked and unprosecuted to promote hatred amongst the two communities. Moreover, in furtherance of a pre‑hatched conspiracy, a large body of armed and aggressive groups of people took to the street for taking revenge owing to the tragic killings at Godhra. The hate speeches were in the form of statements of prominent political leaders before and after 27.2.2002, regional (vernacular) media/press published in Gujarat and pamphlets with incendiary content by right‑wing organisations across the State. No preventive action nor any arrest or prosecution was deliberately effected, despite such concerted effort. The Courts have not adverted to this grievance of the appellant at all. The Special Investigation Team investigated the issue of hate speech as an independent head concerning the speeches of the former Chief Minister of Gujarat and has glossed over a plethora of hate writings and speeches of prominent personalities, especially those belonging to the VHP. The Special Investigation Team has failed to reckon the issues noted in the protest petition concerning hate speeches and writings and more particularly, the failure of the State Government to take prompt action in that regard., It is urged that the Special Investigation Team has not named any person referred to in the complaint dated 8.6.2006 and the protest petition except Babu Bajrangi, who has been prosecuted in the Naroda Patiya (Ahmedabad City) carnage case. None of the other persons have been named in any of the hate speech cases investigated by the Special Investigation Team. The Special Investigation Team could not have accepted the version of the persons disregarding overwhelming material indicative of their complicity. In such a case, it would be a triable issue., The appellant in fact relies on the Special Investigation Team record in support of the prayer for further investigation, at least in respect of the following matters: Failure of administration, touching upon collaboration and conspiracy; the State administration indulged in destroying critical record; handing over bodies to Hasmukh Patel and Jaideep Patel; post‑mortems carried out in open at railway yard; parading of bodies, funeral procession and mob attacks; delayed imposition of curfew and calling Army; bandh call officially supported; partisan public prosecutor; National Human Rights Commission case and related cases related to Gujarat carnage; subversion of the criminal justice system that included manipulation of investigation from the start (doctoring of FIRs, ensuring powerful offenders were not named, the narrative was manipulated and twisted to show the victim minority community as aggressor and perpetrator); ensuring easy bail for those among the perpetrators who were arrested; and appointing public prosecutors who had a dual identity i.e., were proactive members of organisations like the Vishwa Hindu Parishad, Bajrang Dal and Rashtriya Swayamsevak Sangh., The Special Investigation Team, for reasons best known to it, followed irregular procedure of taking initials of the persons whose statements were being recorded despite a bar under Section 162 of the Code of Criminal Procedure. The Special Investigation Team made no attempt to seize the mobile and obtain call records of the relevant party. Moreover, no public notice was issued by the Special Investigation Team after the complaint dated 8.6.2006 was made over to it by this Supreme Court of India in terms of order dated 27.4.2009. If such public notice was to be taken, as was done after taking over investigation of nine cases pursuant to order dated 26.3.2008, many of the family members of the victims or the victims themselves would have come forward and handed over more material to the Special Investigation Team concerning the allegation of larger conspiracy., The Special Investigation Team chose to rely on extracts in the report of the State appointed Commission (Nanavati‑Shah Commission), despite the clear legal mandate that the same cannot be used as evidence in civil and criminal action, as expounded in Shri Ram Krishna Dalmia versus Shri Justice S. R. Tendulkar and Others and Kehar Singh and Others versus State (Delhi Administration).
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At the same time, relying on the decision of the Full Bench of the High Court of Judicature at Madras in Abdul Sathar vs. The Principal Secretary to Government, it is urged that the State Government is expected to act upon the recommendations made by the National Human Rights Commission unless, for non‑acceptance, it provides reasons. The National Human Rights Commission in its report in the present case made certain recommendations. Further, there was tangible material in the form of the Ninth Report of the Committee on Empowerment of Women, and a report of a constitutional authority, such as the Election Commission of India, confirming the allegations made in the protest petition, which have not been investigated at all., Reliance is placed on Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors., Zahira Habibulla Sheikh & Anr. vs. State of Gujarat & Ors., and Dayal Singh & Ors. vs. State of Uttaranchal., Further, the Special Investigation Team has not enquired into the evidence in the form of the statement of Mr. Dileep Trivedi, Public Prosecutor, regarding instructions issued for providing an advocate to accused belonging to a particular community, indicative of bias in favour of that community and being party to the conspiracy., The Standard Operating Procedure given in the Gujarat Police Manual, such as Rules 45, 46 and 53 therein, has not been followed in its letter and spirit., The statement of Mrs. Jayanti S. Ravi, District Magistrate, Godhra is not consistent with the official record, creating suspicion about the correctness of the statement., The Special Investigation Team had failed to seize the mobile phones of Mr. Hasmukh Patel and Mr. Jaideep Patel, which could have unveiled the truth about their involvement. Mr. Jaideep Patel is the same person who had made a revelation to the press on the same day., The telephonic call records produced by Mr. Rahul Sharma have also not been investigated. The statement of Rahul Sharma dated 2 July 2009 to the Special Investigation Team was clinching to establish the plea regarding call records, which the SIT discarded on the specious ground that the same was produced for the first time in 2008., The Additional Commissioner of Police, Crime Branch, Ahmedabad, A. K. Surolia, has stated in his statement before the Special Investigation Team that he instructed Additional Commissioner of Police, S. S. Chudasama, to extract the relevant call details from the cellular service providers M/s. AT&T and M/s. Cellforce. This has not been investigated by the Special Investigation Team., The call records given to Mr. P. C. Pande, the then Commissioner of Police, Ahmedabad, have also not been analysed. The call records would show that Mr. Haresh Bhatt was in constant touch with doctors from outside Godhra after post‑mortems of the Godhra victims were carried out in open in the railway yard., The call records also indicated that Mr. Shivananand Jha, the then Additional Commissioner of Police, Sector 1, Ahmedabad City, was part of the larger conspiracy, as clear from his 68 phone calls made on 27 February 2002 and 192 calls on 28 February 2002, including calls to then Power Minister of Gujarat, Mr. Kaushik Jamnadas Patel, and elected representative Dr. Maya Kodnani, who has been named as accused in another case and convicted by the trial Court., The call records also pertain to Mr. Dinesh Togadia and Dr. Praveen Togadia, officers of Vishva Hindu Parishad. All these call records have remained uninvestigated., No explanation is forthcoming from the Special Investigation Team as to why call records were not procured between 2008 and 2010. This is significant as the Special Investigation Team was directed to look into the complaint dated 8 June 2006 vide order dated 27 April 2009 and the Special Investigation Team had submitted its final report to this Supreme Court of India in September 2011., The Special Investigation Team had made no effort to enquire into the fact that following the Godhra incident the massacre followed in Deepda Darwaza, which case was also assigned to the Special Investigation Team by this Supreme Court of India. Even that incident was part of a larger conspiracy, which has remained to be dealt with in the concerned trial., The Special Investigation Team could have also taken notice of the Private Citizens' Commission headed by former Supreme Court Judges regarding human rights violation and the contents of the said report indicative of high officials of the State being party to conspiracy in commission of crime., It is urged that the need to direct further investigation can be substantiated on the basis of undisputed facts emerging from the materials and statements collated by the Special Investigation Team., In cases of allegation regarding larger conspiracy, there could be no direct evidence. That is a matter to be investigated and inferred on the basis of the material pointing out towards such circumstances. Reliance is placed on Nazir Khan & Ors. vs. State of Delhi. There is no investigation whatsoever regarding existence of conspiracy despite the same being revealed from the Tehelka tape itself. Reliance is also placed on Firozuddin Basheeruddin and Nirmal Singh Kahlon to contend that even the second FIR is permissible if the evidence regarding conspiracy surfaces after registration of the first FIR. Further, acceptance of the final report submitted by the investigating officer is no impediment for enquiring into fresh material brought to the notice of the investigating officer or the Supreme Court of India, if warrants taking cognizance., The Special Investigation Team has not offered any remark regarding the statement of Mr. Bharat Bhatt, Special Public Prosecutor and Mr. Deepak Shah, who were questioned by the Special Investigation Team for reasons best known to it., It is urged that appellant Zakia Ahsan Jafri had appeared as prosecution witness (PW‑337) in Gulberg Society case being Criminal Reference No. 67/2002 and not as a complainant. Whereas, in the present action, appellant Zakia Ahsan Jafri was prosecuting the matter as complainant., The appellant has also explained how the error was committed in mentioning the name of Mr. Rahul Sharma and Satish Verma as offender numbers 45 and 63 respectively, though they were cited as witnesses in support of the allegations made in the complaint and protest petition. That was also explained to the Special Investigation Team at the earliest opportunity., It is urged that undue reference was made about the adverse observations recorded against Ms. Teesta Setalvad by the Supreme Court of India. That was wholly inappropriate. For, the stated adverse remarks came to be expunged by this Supreme Court of India in Teesta Setalvad & Anr. vs. State of Gujarat & Ors. Reliance was placed on some proceedings for similar purpose against Mr. R. B. Sreekumar. Those proceedings are still pending and will be of no avail to the Special Investigation Team. One of the reasons weighed with the Special Investigation Team to discard the statement of Mr. R. B. Sreekumar was therefore untenable on the face of it because the correspondence pertains to a period much before Mr. R. B. Sreekumar had raised issues regarding violation of his service conditions with the department., The Special Investigation Team had filed material along with the final report consisting of (i) documentary evidence officially received, (ii) documentary evidence otherwise collected by the Special Investigation Team, (iii) video‑audio recordings of a sting operation authenticated at the instance of the National Human Rights Commission by the Central Bureau of Investigation and relied upon by the Special Investigation Team in various prosecutions, (iv) extra‑judicial confessions evidenced by the sting operation and (v) witness statements in respect of individuals in relation to the events that took place prior to 27 February 2002 until order of this Supreme Court of India dated 12 September 2011. The Metropolitan Magistrate was obliged to examine the voluminous documentary and other evidence to ascertain whether some matters raise strong suspicion of offences having been committed, being sufficient reason to issue direction to the Special Investigation Team to further investigate the same, even if it was not a case of taking cognizance straightaway. Reliance is placed on Afroz Mohammed Hasanfatta and S. K. Sinha., The appellant was relying on undisputed documents available in the Special Investigation Team record, which alone were sufficient to issue summons for alleged offences, as it clearly indicated the complicity of the persons named in the complaint/protest petition and in any case raised strong suspicion about the commission of such offence. The reports of Mr. R. B. Sreekumar to the Government between April and August 2022 constitute official documentary evidence, which the Special Investigation Team has disregarded. That being the substantive evidence, was required to be reckoned by the Special Investigation Team., The Courts cannot adopt the approach of forgive and forget, but it is the solemn duty of this Supreme Court of India to ensure that all guilty are brought to book and prosecuted in accordance with law., It is submitted that it would be a different matter if the Supreme Court of India feels that the material on record did not raise any suspicion., In the backdrop of the stand taken before us in respect of allegation numbers (i) and (iv) articulated in the final report dated 8 February 2012, at the time of conclusion of the hearing, we requested the learned senior counsel for the appellant to submit a written statement in that regard, which he submitted after the case was adjourned for pronouncement of verdict, in the following words: The petitioner has made her submissions based on undisputed evidence in the form of Tehelka tapes and official communications of public functionaries. The petitioner has not sought to allege any wrongdoing, criminal or otherwise, with reference to facts that are disputed. The petitioner contends that a larger conspiracy involving individuals whose undisputed extra‑judicial confessions are on tape, read along with inactions of officials demonstrated by undisputed documents, should have been investigated by the Special Investigation Team, which could have established a larger conspiracy. The submission is that the Special Investigation Team did not investigate the larger conspiracy, but limited itself to matters in dispute relating to a meeting of 27 February 2002. Regarding that meeting, the Special Investigation Team has come to a certain conclusion which is part of the closure report. Since the petitioner has not made any submissions on disputed facts, the petitioner did not contend before this Supreme Court of India that a larger conspiracy emanated from the meeting of 27 February 2002. In fact, during the course of submissions, no reference was made by the petitioner to this meeting at all. The undisputed evidence on record points to a larger conspiracy which appears to have involved bureaucrats, politicians, public prosecutors, Vishva Hindu Parishad, Rashtriya Swayamsevak Sangh, Bajrang Dal and members of the State political establishment. It is this conspiracy that is not investigated by the Special Investigation Team. The extent of the conspiracy, the identity and number of individuals involved, the preparatory acts committed and the time, place and manner in which the meeting of minds for purposes of such conspiracy took place can only fully emerge on investigation and is not something that the petitioner can be called upon to provide answers to., (a) The thrust of the argument of the respondent – Special Investigation Team, is that after directions given by this Supreme Court of India vide order dated 27 April 2009 to look into the written complaint of the appellant, it immediately moved into action and did everything that it could do to investigate every singular allegation noted in the complaint. The Special Investigation Team could cull out thirty broad allegations in the complaint made over to it for investigation. In addition to those thirty allegations, the Special Investigation Team also investigated two additional allegations including the comments/observations of the Amicus Curiae in reference to the final report presented to this Supreme Court of India, and recorded its opinion in that regard in the final report submitted to the Magistrate. The Special Investigation Team left no stone unturned and thoroughly investigated all aspects of the matter, as also exhaustively analysed every piece of information and material collected by it during the investigation, including by recording statements of 66 witnesses during preliminary enquiry between 19 June 2009 and 18 December 2009, 120 witnesses during preliminary enquiry between 12 January 2010 and 23 December 2010, 76 witnesses during further investigation between 14 August 2010 and 10 November 2010 and 145 witnesses during further investigation 23 November 2010 till 13 January 2012 recording statements of 375 persons and questioning 275 persons in terms of the direction given by this Supreme Court of India., (b) The final report besides dealing with each of these thirty‑two allegations exhaustively, has also separately dealt with the case against each of the sixty‑three persons named as offenders in the complaint dated 8 June 2006. As aforesaid, the final report submitted to the Magistrate also reproduces the observations of the Amicus Curiae and deals with every aspect thereof to form its opinion that no offence is made out, much less having been committed by the offenders named in the complaint. It is urged that the investigating agency is entitled to form its opinion dependent on the legally admissible evidence and material collated during investigation. Further, the Special Investigation Team had to investigate within the remit given to it by this Supreme Court of India. In that, vide order dated 27 April 2009, this Supreme Court of India directed the Special Investigation Team appointed by it to only look into the complaint dated 8 June 2006 of appellant Zakia Ahsan Jafri. No direction was given to the Special Investigation Team to register it as FIR. Notably, this Supreme Court of India consciously adopted such a course despite the main prayer of appellant Zakia Ahsan Jafri to register her complaint as FIR and to get the same investigated through an independent agency., Not only that, upon submission of the final report by the Special Investigation Team, the appeal filed by the appellant (Special Leave Petition (Criminal) No. 1088/2008) was disposed of and the Special Investigation Team was directed to submit an appropriate report before the Magistrate taking cognizance in the Gulberg Society case being Criminal Reference No. 67/2002. This is despite the fact that the trial of the said case had progressed before the Sessions Court after filing of the last supplementary chargesheet on 12 August 2009. The trial of the said case thus continued under the directions of this Supreme Court of India including dated 6 May 2010. In that sense, this Supreme Court of India adopted a sui generis procedure which was not in strict consonance with the procedure predicated under the Code of Criminal Procedure. Resultantly, the Special Investigation Team was bound to strictly follow the directions of this Supreme Court of India in every aspect without exception. And that, the Special Investigation Team had fairly discharged its role to the satisfaction of this Supreme Court of India, as noticed from the orders dated 1 May 2009, 12 September 2011 and as recently as, 18 ..., In the writ petition filed before the High Court, relief claimed was not for assigning investigation of complaint dated 8 June 2006 to the Special Investigation Team (appointed by this Supreme Court of India in connection with nine major cases which included Gulberg Society case being Criminal Reference No. 67/2002), but to an independent investigation agency. That prayer stood rejected by the High Court and even by this Supreme Court of India consequent to direction issued on 27 April 2009 in the special leave petition filed by the appellant, directing the Special Investigation Team to only have a look at the complaint., It is urged that this Supreme Court of India even vide order dated 12 September 2011 did not direct registration of the complaint dated 8 June 2006 as FIR. It only called upon the Special Investigation Team to take necessary follow‑up steps. The complaint dated 8 June 2006, in one sense, was regarded by the Special Investigation Team as further information in relation to the Gulberg Society case being Criminal Reference No. 67/2002, investigation and trial whereof was allowed to proceed by this Supreme Court of India at the same time., The remit of the Special Investigation Team, in terms of the directions issued by this Supreme Court of India from time to time, was only to examine whether the material referred to in the complaint discloses commission of any offence of larger conspiracy at the highest level and involvement of any person other than the accused persons named in Criminal Reference No. 67/2002 concerning Gulberg Society. That being the remit of the Special Investigation Team, it could not have investigated any other aspect without an express direction of this Supreme Court of India. This is also for the reason that the allegation of conspiracy at the local level had already been investigated in all other cases registered at the relevant time, around 2000 in number, including the nine major cases assigned to the Supreme Court appointed Special Investigation Team. The allegations which are made in the complaint are based essentially on the record/affidavits of the officials of the State, filed before the Nanavati‑Shah Commission., Additionally, the direction given by this Supreme Court of India on 12 September 2011 in the special leave petition filed by the appellant would not only bind the Special Investigation Team and the Magistrate dealing with the final report, but also the appellant herein. No liberty was sought or had been given by this Supreme Court of India to the appellant to make fresh allegations beyond the allegations noted in the complaint dated 8 June 2006 and already investigated by the Special Investigation Team in terms of order dated 12 August 2009. As a matter of fact, appellant Zakia Ahsan Jafri being the complainant could have availed of the remedy under Section 190 of the Code of Criminal Procedure by presenting a complaint before the competent Magistrate, as observed by the High Court vide order dated 2 November 2007. She did not avail of that remedy. Instead, the appellant approached this Supreme Court of India by way of Special Leave Petition (Criminal) No. 1088/2008 and submitted to and acquiesced of the directions issued by this Supreme Court of India from time to time., Significantly, in proceedings before this Supreme Court of India, Ms. Teesta Setalvad had assisted the Amicus Curiae appointed by this Supreme Court of India and presumably also for articulating the observations in the note submitted by him to this Supreme Court of India and to which the Special Investigation Team had duly responded and dealt with in the final report presented before the Metropolitan Magistrate, in terms of this Supreme Court of India's order dated 12 September 2011. Even the Magistrate was bound by the remit applicable to the Special Investigation Team in view of the sui generis procedure adopted by this Supreme Court of India in treating the report of the Special Investigation Team as further report under Section 173(8) of the Code (in the Gulberg Society case being Criminal Reference No. 67/2002) to be presented before the Magistrate along with the statements recorded by the Special Investigation Team, treating them as statements under Section 161 of the Code in terms of order dated 7 February 2013., It is urged that the appellant has repeatedly changed the goalpost with a view to create confusion. Amongst others, the manner in which her complaint dated 8 June 2006 ought to proceed, despite the crystal‑clear order of this Supreme Court of India. Further, for the first time, it is now urged that the same complaint ought to be treated as a private complaint and proceeded with by the Magistrate under Section 190 of the Code., It is urged that the argument of the appellant to treat the protest petition as a private complaint is one of desperation and in any case untenable in light of the express direction given by this Supreme Court of India to the Special Investigation Team to submit its report to the Magistrate taking cognizance of Criminal Reference No. 67/2002 being the Gulberg Society case – as further report under Section 173(8) of the Code. If the report was to disclose commission of such offence of larger conspiracy or abetment, the Court could have proceeded against the concerned persons and tried in sessions trial arising from Criminal Reference No. 67/2002 by framing requisite charges in that regard. Therefore, the complaint could neither be registered as FIR nor could be treated as a private complaint in the wake of sui generis direction given by this Supreme Court of India vide order dated 12 September 2011 in the special leave petition preferred by the appellant. Reliance has been placed on Vishnu Kumar Tiwari., It is urged that when the Special Investigation Team called upon appellant Zakia Ahsan Jafri to give her statement in connection with the complaint, she declined to do so and it has been so recorded in the opening part of the final report as well. She wanted the Special Investigation Team to treat her complaint as FIR and register the same. Accepting this request would have been contrary to the spirit of the direction given by this Supreme Court of India (vide order dated 27 April 2009) to the Special Investigation Team, to only look into the complaint and to take further steps in that regard. Until the special leave petition filed by appellant Zakia Ahsan Jafri was disposed by this Supreme Court of India on 12 September 2011, no request was made to this Supreme Court of India to clarify the position or for issuing directions to register her complaint as FIR/complaint., Although in the rejoinder argument, the learned counsel for the appellant had stated that he had never argued for treating the complaint/protest petition of appellant Zakia Ahsan Jafri as complaint under Section 190 of the Code, it is noticed that a clear stand has been taken in paragraph 5 of the written note being Convenience Compilation (Volume I) filed by the appellant in this regard. Further, in the protest petition, fresh allegations have been made, which in any case cannot be linked to the allegation of larger conspiracy required to be investigated by the Special Investigation Team in terms of successive orders passed by this Supreme Court of India. The attempt of the complainant was obviously to make wild and preposterous allegations and keep the pot boiling in the name of taking action against new offenders referred to in the protest petition while not pursuing allegation numbers (i) and (iv) which had been thoroughly investigated by the Special Investigation Team and found to be devoid of substance. A deceptive stand is taken that the appellant would like to pursue the matter only on the basis of undisputed material/documents – having realised that the basis on which allegation numbers (i) and (iv) came to be made, was a figment of imagination of the persons attributing certain utterances to the then Chief Minister to make it sensational news. Significantly, the Special Investigation Team was entrusted with investigation of other crimes, which it completed to the satisfaction of this Supreme Court of India. In those cases, not even a tittle of remark has been made by the trial Court to trace it to the allegation of larger conspiracy. However, the appellant has highlighted unconnected matters (Deepda Darwaza case and Sardarpura case) in the guise of protest petition filed in Gulberg Society case., Whereas, it had been understood by all concerned that the Special Investigation Team was expected to investigate the allegation regarding larger conspiracy to cause and precipitate mass violence across the State and not the criminal conspiracy at the local level resulting in violence at Gulberg Society, in respect of which Criminal Reference No. 67/2002 had already been registered. In that, as regards the conspiracy to commit offence mentioned in Criminal Reference No. 67/2002, that had already been investigated and chargesheet filed, including supplementary chargesheets from time to time. It is not in dispute that even the trial Court, which dealt with the said crime, had formulated the very first point for its determination on the basis of charges framed against the accused named in the said trial being Criminal Reference No. 67/2002 – regarding pre‑planned conspiracy to form an unlawful assembly and thereafter perpetrate the carnage at Gulberg Society on 28 February 2002, which resulted in death of 69 persons and attempts to murder, causing grave and serious injuries to residents of Gulberg Society and also causing damage and destruction of vehicles and property thereat., Similarly, the allegation regarding events of mass violence spread across the State being State‑sponsored crime had been made even in Bilkis Bano case and Best Bakery case and other cases including eight other cases investigated by the Special Investigation Team. Those allegations have been dealt with in the concerned cases. In other words, the complaint dated 8 June 2006 submitted by appellant Zakia Ahsan Jafri was to be looked into by the Special Investigation Team in respect of allegation regarding larger conspiracy at the highest level alone and not the conspiracy at the local (lower) level., The appellant is now heavily relying on the following: (i) Tehelka tapes which surfaced in 2007; (iii) The SIB messages; (iv) The call for Gujarat Bandh; (v) The hate material; (vi) The handing over of dead bodies; (vii) Post mortem at the Railway station in open yard; (viii) Presence of Ministers in the Control Room and DGP office; (ix) Response of the fire brigade; (x) PCR messages by Mr. Pande; (xi) Delay in curfew; (xii) Delay in requisition of Army; and (xiii) Partisan/prosecutors. However, each of these issues were considered at great length by this Supreme Court of India between 2008 and 2011 whilst monitoring the investigation done by the Special Investigation Team and culminating in the final report. The findings of the Special Investigation Team had also to pass through the strict scrutiny of the Amicus Curiae assisting this Supreme Court of India, who was authorised to even interact with the witnesses examined/questioned by the Special Investigation Team. It would be, therefore, a travesty of justice and doubting the wisdom of this Supreme Court of India which had supervised/monitored the investigation completed by the Special Investigation Team on all aspects and, being satisfied, permitted the Special Investigation Team to present the final report before the Magistrate. The entirety of the material was presented before this Supreme Court of India by the Special Investigation Team from time to time. The final report in question presented before the Magistrate, therefore, forecloses the enquiry concerning the allegations in the complaint., According to the Special Investigation Team, considering its remit, the Magistrate was also required to examine the final report on that basis and to satisfy himself about the plausibility of the conclusions drawn by the Special Investigation Team on the materials collected by it. The Magistrate entered upon such exercise and applied his mind to the totality of the circumstances, including by taking note of the issues raised in the protest petition, and accepted the final report being convinced that no case was made out for issuance of process against the named offenders or any other person., As regards larger conspiracy, the allegation is mainly founded on the affidavits/materials filed by the officials and others before the Nanavati‑Shah Commission appointed by the State of Gujarat under the 1952 Act. The Commission, however, has dealt with every aspect of the affidavits filed by the concerned officials before it, including the material which also forms part of the complaint submitted by appellant Zakia Ahsan Jafri. The opinion of the Commission in that regard is no different than the conclusions reached by the Special Investigation Team. Notably, the Commission submitted its report after the Special Investigation Team had already filed its final report before the Magistrate., Indeed, the opinion of the Special Investigation Team must conform to the material dealt with by it in its report. In the present case, the final report of the Special Investigation Team is exhaustive and deals with every singular aspect necessary to answer the allegations made in the complaint – which is on the basis of analysis by the Special Investigation Team by reckoning the material collected during the investigation. The analysis of the entire material by the Special Investigation Team is not only allegation‑wise, but offender‑wise including witness‑wise and objection/noting‑wise of the Amicus Curiae in response to the previous further report of the Special Investigation Team submitted before this Supreme Court of India., The Special Investigation Team has thoroughly analysed the allegations against each offender in the subject final report on the basis of material collected by it, as can be discerned from pages 363‑364, 367, 370‑385, 388‑392 and 395‑397.
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Only after such thorough analysis, the Special Investigation Team (SIT) had opined that no offence has been made out nor the stated offender can be said to be involved in the commission of offence of larger conspiracy. The complaint highlights the pattern of continual concerted lackadaisical approach of high officials of the State Government, who were allegedly acting under dictation from the highest authority of the elected political dispensation. The theory of larger conspiracy is put forth mainly on the basis of alleged utterances of the then Chief Minister in the meeting held soon after the ghastly incident of train burning in Godhra on 27 February 2002 and the subsequent official meeting on 28 February 2002 including before the press. The case made out in the complaint dated 8 June 2006 is that the high officials followed the directions given by the then Chief Minister and issued instructions to their subordinates to justify pre‑orchestrated mass carnage that enjoyed the political sanction of the constitutionally elected Government in Gujarat. Hence, it was nothing short of state‑sponsored violence against a particular community., The remit of the Special Investigation Team was, therefore, to investigate the allegations in the complaint, which it had done meticulously, as can be discerned from the final report submitted by it running into about 231 closely typed pages (in the paper book of the Supreme Court of India, mentioned as pages 1 to 270 on the cover page of the report filed), analysing every piece of material or evidence collated by it allegation‑wise, offender‑wise, as well as the observations of the Amicus Curiae on the final report presented by the SIT before the Supreme Court of India. The final report is the compendium of the previous reports submitted before the Supreme Court of India and the clarification of the SIT in respect of observations of the Amicus Curiae, point‑wise. The permission given by the Supreme Court of India in terms of order dated 12 September 2011 is a seal of approval of the Supreme Court of India about its satisfaction regarding the completion of fair investigation done by the SIT in respect of allegations contained in the complaint dated 8 June 2006. If there was even a little doubt, the Supreme Court of India, as in the past, would have certainly directed the SIT to do further investigation in respect of left‑out matters., As noted earlier, Ms. Teesta Setalvad had interacted with the Amicus Curiae before he submitted his observations by way of a note to the Supreme Court of India and made them over to the SIT. As all concerned had acted upon and accepted the sui generis procedure followed by the Supreme Court of India in dealing with the complaint dated 8 June 2006, including regarding its investigation and directing presentation of an appropriate report before the Metropolitan Magistrate taking cognizance of Crime Reference No. 67/2002 concerning the Gulberg Society in terms of order dated 12 September 2011, neither the SIT nor the Metropolitan Magistrate could travel beyond the said remit., For the same reason, it would not be open to the complainant, informant or appellant to make fresh allegations, much less allegations not connected with the larger conspiracy at the highest level, already investigated by the SIT under the supervision of the Supreme Court of India., In any case, the emphasis placed by the appellant on matters referred to in the protest petition concerns unconnected events and does not have direct or causal bearing on the allegation of larger conspiracy, particularly involving the political dispensation, as well as the high officials, bureaucrats and police functionaries allegedly acting under the dictation of the then Chief Minister. Notably, no submission has been advanced on the meeting held on 27 February 2002 under the chairmanship of the then Chief Minister or about the testimony of Mr. Sanjiv Bhatt, Indian Police Service, the then Superintendent of Police (Security), who falsely claims to have attended the official meeting., As regards allegations regarding ministers found sitting in the Police Control Room and giving instructions to the officials, the SIT has thoroughly examined the allegation and, after due enquiry, was of the opinion that the ministers, even though they visited the Control Room, were there to ascertain the developments and not to give instructions, as is the routine practice. No material has come on record to indicate that the ministers had given specific direction to the subordinate officials, which may be regarded as a case of larger conspiracy. Absent such evidence, the mere fact that the ministers had visited the Police Control Room would not take the matter any further, much less charge the offenders named in the complaint with any offence., As regards the allegation that the State did not stop the statewide Bandh call, it does not follow that the officials and elected Government had entered into a larger conspiracy culminating with the events that unfolded on 27 February 2002 onwards. In the first place, the materials collated during investigation do not corroborate this fact. In any case, the inaction or, for that matter, tacit support of the elected Government of the State to the statewide Bandh, by itself absent any other incriminating circumstance or material, cannot be the basis to initiate prosecution against the high officials of the State on the charge of criminal conspiracy and for violence happening across the State., As regards the allegation regarding late deployment of the Army, the same was found to be devoid of substance by the SIT. The material collected during investigation revealed that the then Chief Minister, on the basis of inputs and sensing a serious problem across the State, had telephonically interacted with the then Home Minister of the Government of India at 1.00 p.m. for deployment of the Army and a formal written request was sent on fax to the Union Ministry at 2.30 p.m. on 28 February 2002. The arrival of the Army took some time due to unavoidable circumstances and, after providing logistical assistance, the Army was deployed immediately on the following day. These measures taken by the State Government are indicative of prompt steps taken to avoid any further untoward situation and destroy the theory of larger conspiracy by the State at the highest level or State‑supported violence., It was urged by the respondents that material on record taken into account by the SIT has been noted even by the Nanavati‑Shah Commission and the trial Court in the Gulberg Society case (Crime Reference No. 67/2002), indicative of the measures taken by the State in anticipation of the riots, but the civil administration was overrun across the State. Further, apprehending the fallout after the Godhra train burning episode and the general unrest, the Army was requisitioned on 28 February 2002 itself even before the violence had actually taken serious proportion across the State. The Army arrived the same midnight, as they were posted at the borders due to security reasons after the attack on the Parliament on 13 December 2001 (which had happened only two months earlier). After arrival and providing logistical support at the local level, the Army was deployed in sensitive areas across the State. The contemporaneous record therefore indicates that the theory of larger conspiracy propounded in the complaint is imaginative and falsified., As regards the partisan investigation in the concerned criminal cases, it was of no avail, as no evidence was forthcoming to connect it with the allegation of larger conspiracy. The SIT examined everyone involved, including the then Chief Minister and the last minister, and found that there was no material to connect them with the allegation of larger conspiracy. It is submitted that the allegation concerning the conduct of grassroots level officers had nothing to do with the allegations regarding larger conspiracy at the highest level. Even allegations based on the affidavit of Mr. R. B. Sreekumar had nothing to do with the allegations of larger conspiracy and, in particular, the directions issued from the highest authority, the then Chief Minister., Furnishing of alleged misleading reports by the State Home Department to the Central Election Commission for conduct of early elections also has no connection with the theory of larger conspiracy being the cause of eruption of violence across the State. It is pointed out that appellant Zakia Ahsan Jafri, in her evidence recorded on 22 October 2010, accepted that Mr. R. B. Sreekumar was at the relevant time working with an NGO and Ms. Teesta Setalvad was associated with that organisation. Interestingly, he was none other than the convener of the Private Citizens Commission headed by former Supreme Court judges and was in a position to influence appellant Zakia Ahsan Jafri. It is submitted that Ms. Teesta Setalvad, for reasons best known to her and out of vengeance, was interested in continuing her tirade and persecution on the basis of unsubstantiated allegations in the complaint in the name of a quest for justice, with the real purpose to keep the pot boiling and sensationalise and politicise the crime. The version of Mr. R. B. Sreekumar in the later affidavits commenting about the functioning of the administration must be viewed in the context of his denial of career opportunities., Indisputably, Mr. R. B. Sreekumar, a former Indian Police Service officer, was posted as Additional Director General of Police, Armed Unit, Gujarat, at the time of the riots, and had filed nine affidavits before the Nanavati‑Shah Commission. He did not derive any of its contents from personal knowledge or information that he might have received as occupant of the stated office. Further, he did not make any allegation against the State Government in his initial two affidavits filed before the Commission, but started making allegations from the third affidavit dated 9 April 2005, presumably because he was deprived of service benefits having been superseded by his junior Mr. K. R. Kaushik. Later, he got involved as an accused in the FIR filed by the Central Bureau of Investigation in the ISRO spying case, which had been registered under directions of the Supreme Court of India in S. Nambi Narayanan vs. Siby Mathews & Ors., Appellant Zakia Ahsan Jafri, in her cross‑examination in the Gulberg Society case (Crime Reference No. 67/2002) as PW‑337, conceded that she knew Ms. Teesta Setalvad for some time and also that she had met Mr. R. B. Sreekumar after the incident. She stated that Mr. R. B. Sreekumar had come to Gulberg Society on 28 February 2002 and, after a period of four years, she had met him again. She also stated that Mr. R. B. Sreekumar was presently working with Ms. Teesta Setalvad. She admitted in her cross‑examination that she had given a statement on 22 August 2003 before the Nanavati‑Shah Commission and, after giving that statement, she had no occasion to read a copy of that statement. This was suggestive of the fact that she was tutored by Ms. Teesta Setalvad, but she never disclosed that, which fact she had to admit in the cross‑examination. She also admitted that Mr. R. B. Sreekumar was disappointed with the Government. At the same time, she was unable to recall the enquiry made by the SIT in connection with the affidavit filed by her before the Commission and that she had throughout followed the instructions of Ms. Teesta Setalvad., In the final supplementary report filed by the SIT in the Gulberg Society case (Crime Reference No. 67/2002), it has been clearly noted that nineteen witnesses insisted on taking on record their prepared signed statements, which according to them were prepared by Ms. Teesta Setalvad and Advocate Mr. M. M. Tirmizi, and did not show willingness to give their own statement. The statements so presented were stereotyped, computer‑generated statements given to them by Ms. Teesta Setalvad and Advocate Mr. M. M. Tirmizi, and they had merely signed such prepared statements., The final report extensively discusses the allegations culled from separate affidavits filed by Mr. R. B. Sreekumar before the Nanavati‑Shah Commission after recording the statements of concerned persons and collecting relevant documents, as can be discerned from pages 264‑266, 271‑283, 285‑287, 297‑298, 302‑312, 326 and 329., The other allegations founded on the version of Mr. Rahul Sharma were also enquired into and the SIT examined the relevant call records to conclude that they were baseless. The allegations were broadly regarding laxity and failure in maintaining law and order during the relevant time., The SIT recorded statements of all the relevant persons who were involved in the Tehelka Sting Operation. The call details of Babu Bajrangi, who was one amongst them, clearly establish that he was in Ahmedabad from 11:15 hours on 27 February 2002 and, therefore, could not have been in Godhra at the time of the Godhra train incident. Similarly, the call details of Haresh Bhat were analysed, which revealed that he was present in Ahmedabad till 09:30 hours on 27 February 2002. His location was again shown in Ahmedabad at 18:40:21 hours, which supports his claim that he had gone to his village during the interregnum period when connectivity was not there. Again on 28 February 2002, his location remained at the tower of a mobile service provider in Paldi, Ahmedabad till 12:00:04 hours on that day. This supported his claim that he had visited his village for a week. In any case, Haresh Bhat had not been named in the FIR register pertaining to riot cases in Gujarat or in the complaint filed by appellant Zakia Ahsan Jafri., As regards the argument founded on the Tehelka Sting Operation about the build‑up of arms and ammunition in Gujarat even before the Godhra train incident, the contents of the transcript are not corroborated by the material available with the SIT. The trial Court in Sessions Case No. 152/2002 arising from Meghaninagar Police Station FIR No. 67/2002 (Gulberg Society case) regarding use of firearms in the incident had observed in paragraph 722 that there is no evidence or recovery of a bullet fired from a private weapon by any member of the mob. The only material recovered from the scene of offence were empty cartridge shells and bullet casings, ballistically established to have been fired from a licensed weapon owned by the late Mr. Ehsan Jafri. In other words, there is no corroborative material regarding commission of any offence by the offenders named in the complaint, much less any larger conspiracy., The Tehelka Sting Operation in a way relates to the allegation regarding criminal conspiracy at the local level. The contents thereof have nothing to do with the allegation of larger conspiracy enquired into by the SIT as directed by the Supreme Court of India. The local‑level conspiracy had been investigated in the respective cases, including the nine cases investigated by the SIT under the supervision of the Supreme Court of India. In the concerned cases, all persons involved, including those recorded in the sting operation, have been proceeded against in the respective case. As had been pointed out, the SIT nevertheless recorded statements of thirteen persons out of eighteen involved in the operation Kalank by Tehelka. The statements of those persons in law could be used against the maker of the statement as extra‑judicial confession, but not against others and not without corroborative evidence. The SIT had not only recorded the statement of Babu Bajrangi, but also Prakash S. Rathod (a worker at a petrol pump) and Haresh Bhat. Their presence at the places referred to by them was falsified by the call detail records. Their version was analysed by the SIT and found to be unuseful in the context of the allegation of larger conspiracy being enquired by it under directions of the Supreme Court of India. Until the disposal of the matter by the Supreme Court of India on 12 September 2011, the issues now raised were never pointed out even by the Amicus Curiae., The learned counsel would also urge that an incorrect statement was made on behalf of the appellant that the SIT had not recorded the statement of any victim. This submission is falsified by the record of the SIT, which includes the statements of concerned victims (minority community), the list of which has been mentioned in paragraph 35 of the Final Note Part III with the heading 'Clarification as to Conspiracy in the Gulberg Case'., Similarly, an incorrect allegation was made against the SIT about the records produced by Mr. P. C. Pande. Those records were produced by Mr. Pande on his own and not as per directions given by the Supreme Court of India. Furthermore, the record was a scanned copy of the PCR messages done by him and in his custody. The original records, which were allegedly scanned by him, were destroyed in 2008 itself as per the rules in the Gujarat Police Manual. As such, the SIT cannot be blamed for non‑recovery of the original PCR message record., It was also suggested that the SIT had failed to record further statements or re‑examine the witnesses. It is urged that those persons who came to give their statements to the SIT had their statements recorded by the SIT without exception. If any witness wanted to give a further statement, they could have done so on their own if they desired to share further information, but no such request was received by the SIT. If the SIT wanted to re‑examine any witness, it could have done so unhesitatingly. In substance, the allegation about the inaction of the SIT or partisan attitude during the investigation is, to say the least, preposterous., It is urged that the SIB messages exchanged between the concerned officials themselves indicate that the State Government and the police were proactive in dealing with the crisis that was evolving after the Godhra episode. Additionally, on 28 February 2002, the State called for Army assistance by sending a formal request in that behalf and, on arrival of the Army after giving logistical assistance, it was deployed across the sensitive areas in the State. This also indicates that proactive measures were being taken by the State, but they were overrun by the expanse of spontaneous mass violence. The SIT noted that the State Intelligence Bureau, responsible for collecting intelligence regarding the law‑and‑order situation in the State, was at the relevant time headed by Mr. G. C. Raiger, the then Additional Director General of Police – Intelligence. The authorities supervising the functions of this department have been named as being part of a pre‑planned larger conspiracy. However, on analysing the messages, it is noticed that the intelligence agencies of the State were collecting the relevant intelligence and disseminating the same to the concerned authorities. Thus, the allegation of a pre‑planned larger conspiracy and involvement of the named high officials remained unsubstantiated and did not even warrant suspicion about their involvement., It is urged that, left to the appellant, she had gone to the extent of suggesting that the two train bogies were set on fire as part of a pre‑planned conspiracy hatched by the highest authority. This is only a figment of imagination, preposterous and in disregard of the hard facts discernible from the material collected by the SIT, including the investigation concerning the Godhra incident, which clearly spells out the manner in which that incident occurred. The trial of that case has established the involvement of accused who have been convicted for being responsible for the said incident, and the appeal therefrom is pending in the Supreme Court of India., It is urged that, assuming it is a case of intelligence failure and, in a given situation, inaction of the concerned authority responsible to take corrective measures, such failure cannot take the colour of being involved in criminal conspiracy as such. For being involved in the crime of criminal conspiracy, there ought to be positive material indicative of a deliberate act of commission and omission and a meeting of minds of the concerned persons, which was completely absent and not forthcoming during the investigation conducted by the SIT to enquire into the allegations of larger criminal conspiracy. The SIT investigated the role of every person named as offender in the complaint under consideration and analysed the same in the final report offender‑wise as well., The SIT recorded statements of various officials of the State Intelligence Bureau, such as Mr. P. B. Upadhyay, the then DCI (Communal), Mr. O. P. Mathur, the then IGP (Administration & Security), SIB, Mr. G. C. Raiger, the then Additional Director General (Intelligence), as also Mr. Ashok Narayan, ACS (Home), which have been taken into account for forming opinion, as noted in the final report. Despite the efforts of the officials, there are situations which are unpredictable, being sporadic, sudden, spontaneous and dynamic in nature. Even with the best anticipation and arrangements in place, the administration can be overwhelmed by the proportion of violence across the State. In such eventuality, it would be a case of collapse of State administration, but cannot meet the muster of the concerned officials being part of a larger conspiracy. The officials are expected to respond to the evolving situation while adhering to norms, but may end up in situations beyond their control at various places across the State owing to mass violence., The SIT also closely examined the allegation of conspiracy in making kerosene bombs and concluded that there was no evidence worthy of proceeding against the named offenders, much less on the allegation of larger conspiracy for want of evidence regarding a meeting of minds., In reference to the argument that the trials against the named accused were being compromised by the public prosecutor, Mr. Arvind Pandya, the SIT rebutted that the public prosecutor referred to by the appellant was not appointed by the State in any criminal case investigated by the SIT, but had appeared before the Nanavati‑Shah Commission. Further, he had resigned in 2008 before the SIT took over the investigation of the complaint dated 8 June 2006. He could not have, in any way, influenced the trial in any of the specified cases. Out of nine cases, trial in eight cases had been completed under the gaze of the SIT and, in none of the cases, any adverse opinion has been recorded by the concerned court. Thus, the plea in support of the allegation of larger conspiracy is tenuous., As regards allegation No. XV, it is submitted that the public prosecutor appointed by the State Government before the Nanavati‑Shah Commission had not been named in the complaint, but now, during the arguments, his role in compromising the trials is being highlighted. This cannot be entertained., Significantly, the contents of the complaint dated 8 June 2006, besides relying on the materials and affidavits filed before the Nanavati‑Shah Commission, also note that there are some matters which could not have been considered by the Nanavati‑Shah Commission and reference is made to such matters. Even that aspect has been duly investigated and the opinion formed by the SIT was that the same are unconnected with the allegations of larger conspiracy., Noticeably, the final report dated 8 February 2012 was presented by the SIT before the Metropolitan Magistrate pursuant to the direction given by the Supreme Court of India on 12 September 2011, even before the Nanavati‑Shah Commission had submitted its report, which was tabled in the Assembly on 18 February 2012. Furthermore, the allegation regarding larger conspiracy of State‑sponsored violence noted in the complaint was required to be investigated only in the last case investigated by the SIT, i.e., the Gulberg Society case (Crime Reference No. 67/2002). Not even a remote reference was made to such allegation in the other eight cases investigated by the SIT. Similarly, no allegation about unfair investigation has been made against the SIT in any of those cases, including before the Supreme Court of India, except in the present case., It is urged that, since the appellant has now chosen not to pursue allegation Nos. (i) and (iv), the entire basis of the complaint dated 8 June 2006 has become irrelevant and redundant. The stated allegations were essentially about the larger conspiracy involving the highest political authority, bureaucracy and actions or inactions of the high officials unfolding under dictation of the then Chief Minister. The remaining allegations would then be unconnected with the larger conspiracy and, therefore, need not be taken forward against the then Chief Minister and high officials of the State Government. In any case, every allegation has been duly enquired into and investigated by the SIT before forming its opinion that no case had been made out against the offenders named in the stated complaint., The appellant, however, has now changed the goalpost by placing emphasis on transcripts of the Tehelka tape on the argument that the genuineness of the tape had not been doubted and, therefore, to contend that the contents of the tape inspire confidence to proceed against the persons named in the complaint. Even though the Tehelka tape did not form part of the complaint dated 8 June 2006, which was filed almost four years after the events of February 2002 as the Tehelka tape surfaced only on 27 October 2007, the SIT enquired into the same in the context of the persons named in the complaint as offenders. In law, it could be used as an extra‑judicial confession only against the maker of the statement and not against other persons referred to in such a statement. In that light, the Tehelka tapes, heavily relied upon by the appellant, were of no avail. Notably, the tapes have been relied upon in three other cases investigated by the SIT and also in the Gulberg Society case (Crime Reference No. 67/2002), but the trial Court has adversely commented on the said tape in R. K. Anand vs. Registrar, Delhi High Court, (2009) 8 SCC 106 and Rajat Prasad vs. Central Bureau of Investigation, (2014) 6 SCC 495. That decision is now the subject matter of appeal before the High Court of Gujarat and the Supreme Court of India in those cases., Further, even if the material in the Tehelka sting operation is to be accepted as genuine, it does not follow that the contents of such tape would have probative value. Upon investigation, if it were found that the tape and its contents have probative value, only then could it be used, and that too against the maker of the statement alone and not against any other person., It was pointed out that Mr. Ashish Khaitan was examined as PW‑313 in the trial of the Gulberg Society case (Crime Reference No. 67/2002) and his version has been duly dealt with in the judgment of the trial Court, which did not accept the contents thereof., It is urged that the complainant has been continuously introducing new arguments and allegations at different stages of the proceedings. This is depicted in the chart given in paragraph 45 of the Final Note Part III of respondent No. 2, which reads as follows:\n\n1. Allegation of criminal negligence of the Ahmedabad Fire Brigade under police complaint Mr. Pande: Accused No. 1 was brought into Gujarat politics to vehemently push the aggressive supremacist Hindutva ideology. He entered Gujarat politics with a pre‑determined mindset of aggressive Hindutva and anti‑Muslim prejudice. Issues related to the constitution of the team and the porosity with power accused in the Gujarat government. Read from the memoir of Lt. Gen. Zameeruddin Shah, who led the army operation in Gujarat during the riots. His statements were never recorded by the SIT. The book stated that the soldiers were stranded at the airfield when the riots started.\n\n2. Allegation of post‑mortem of the dead bodies at Godhra Railway Station: Instead of going directly to the airport, the accused deliberately took a detour and passed through Meghaninagar and Naroda areas. The petitioner witnessed police officers in the barracks on leave while Ahmedabad burned. The SIT collaborated with accused persons and rewarded them handsomely. The role of the SIT should be investigated.\n\n3. Tehelka Sting Operation: It also addressed another meeting of political workers at Godhra on 27 February 2002 where the accused assured aggressive RSS‑VHP cadres that the police would not interfere in their thirst for revenge. Special public prosecutor and assistant prosecutors RK Shah and Naina Shah had resigned their positions from the Gulberg case stating that they were being misled by the SIT and also that the behaviour of the judge was questionable. Mobile phones of the accused persons were not seized by the SIT.\n\n4. Suspicion on the cause while returning to Gandhinagar: Between May and July 2004, the High Court of Gujarat registered FIRs on the manner of fire in coach S‑6 of the Sabarmati Express on 27 February 2002. Again, the accused took a diversion towards Naroda and Meghaninagar which were out of the way. The accused visited these areas in order to give effect to the conspiracy. The court ordered protection for 570 witness survivors and human rights defender Ms. Teesta Setalvad following direct threats from powerful accused. Complaints of police officials and the version of victims were not recorded as FIRs.
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New accused persons proposed in the Protest Petition covering almost all the administration of Government of Gujarat at the time of riots and their successors. The Motor Cavalcade carrying 54 dead bodies covered distance of 153 kms from Godhra to Sola Civil Hospital in six hours. It can be inferred that the cavalcade was stopping on the way and instigating violence, preventing the imposition of curfew. Argument of the petitioner at previous stages was that the larger conspiracy was hatched by named accused persons, and manifested mainly through meeting in the evening of 27 February 2002. Differing from this argument it is argued at this stage that materials available on the record prima facie showed that there was a conspiracy but who all were involved would be known only if there is an investigation on all the aspects., The Amicus Curiae, Mr. Raju Ramachandran, has recommended the prosecution of A‑1 Mr. Modi under Sections 166, 153A and 153B of the Indian Penal Code. The Special Investigation Team did not investigate whether the Army was given adequate powers under sections 129 and 130 of the Criminal Procedure Code. A pretense of verbally calling in the Army on the late evening of 28 February 2002 was made but the Army was not actually deployed., Destruction of records/wireless. The Special Investigation Team did not record the logs/vehicle log books of the Government of Gujarat, nor did it seek statements of Justices Verma or Justice Anand, the National Human Rights Commission, or try to collect evidence from them. The Amicus Curiae remained in the dark about documents (PCR messages) that point to conspiracy., Sandesh Newspaper as Collaborator in the Conspiracy. A letter addressed by retired Justice Divecha to the National Human Rights Commission exposed the complete targeted violence against members of the Muslim minority in Ahmedabad., Deepda Darwaza Conspiracy., SIB messages on Prelude and Build up to the violence. Provocative behaviour of Kar Sevaks and preparation of violence after Godhra., Fresh allegation regarding criminal negligence of fire brigade in Ahmedabad under Mr. P.C. Pande overlooks the fact that fire brigade comes within the Ahmedabad Municipal Corporation and not the State police. Mr. P.C. Pande was Commissioner of Police of Ahmedabad city and had nothing to do with the functioning of fire brigade. The complaint vaguely alleges that the fire brigade did not reach on time; however, many disturbed areas had roads blocked by obstacles., Similarly, the allegation regarding post‑mortem of dead bodies at Godhra Railway station being part of larger conspiracy is founded on conjecture. The Godhra incident was fully investigated and tried; no such case was put forth. The matter had travelled to the High Court of Gujarat and is now pending in this Court. Issues regarding necessity to do post‑mortem of the dead bodies in the railway yard and the manner of doing it have been examined in those proceedings., In the name of protest petition, the appellant intends to enlarge the scope of enquiry to include fresh matters such as the manner in which the fire occurred in the two coaches of Sabarmati Express on 27 February 2002, an aspect that has been thoroughly investigated. The appellant has insinuated that the fire was ignited by persons inside the train or by others from the same community as part of a larger conspiracy involving the political dispensation at the highest level. The appellant seeks to bring in all other cases (Sardarpura case, Deepda Darwaza case, Ode case, Naroda Patiya case, Naroda Gaam case, Best Bakery case, Bilkis Bano case etc.) which have already been thoroughly investigated and tried by the concerned courts, including charge of criminal conspiracy. That cannot be countenanced., It is urged that the appellant is ill‑advised to rely heavily upon information in a book written by a former Major General, who never gave his statement before the Special Investigation Team despite the public notice issued on 28 April 2008 after the SIT was appointed by this Court to investigate nine major cases. The book was written only in 2018; the veracity of its contents is uncertain., It is urged that the Special Investigation Team has done everything to the best of its ability and, as a team, investigated all nine major cases assigned to it by the Supreme Court of India. Despite commendation by this Court about the humongous task undertaken by the SIT, the appellant impudently questioned the integrity of the SIT appointed by this Court; the work was completed under the strict vigil of this Court, including the Amicus Curiae who took assistance of all stakeholders and also Ms. Teesta Setalvad. The Amicus Curiae, in one sense, was discharging the role of investigating the work of Supreme Court appointed investigators (the SIT) investigating the investigators., The Special Investigation Team, after taking over investigation of nine major cases assigned to it by this Court, filed supplementary charge‑sheets in all those cases and pursued the cases until the stage of trial, and continues to report progress to this Court periodically., As regards the investigation of the complaint dated 8 June 2006, it has been done by more than one investigating officer during relevant periods as per the exigency and direction of this Court, but the findings and observations of the SIT in every report have been consistent. Significantly, the members of the SIT have continued to function under the directions of this Court even after their superannuation, because this Court was satisfied with their performance., At one stage, a similar attempt was made by the appellant, resulting in this Court staying the trial of Gulberg Society case (Case Register No. 67 of 2002), which was eventually lifted on 1 May 2009 for the reasons noted in the order. The Supreme Court also noted the misadventure of Ms. Teesta Setalvad in forwarding her letters written to the Chairperson of the Supreme Court appointed Special Investigation Team to the Office of the United Nations High Commissioner for Human Rights, Geneva, and upon her undertaking not to do so in future, the matter stood closed., It is a matter of record that this Court reposed complete trust in the SIT not only by entrusting responsibility of investigation of the stated crime, but also to ensure that the trial of all those cases proceeded in a fair manner, by giving authority to the SIT to recommend names of able and apolitical lawyers to be appointed as public prosecutors, including providing protection to witnesses when required., With the untiring efforts of the Supreme Court appointed SIT, trials of eight other cases ended in substantial number of convictions including imposition of capital punishment. Such a track record, closely monitored by this Court and commended on more than one occasion, does not justify the appellant’s questioning of the integrity of the SIT. Such a plea cannot be countenanced and is in the nature of questioning the authority and wisdom of this Court in expressing satisfaction about the performance of the SIT, as reflected in orders dated 1 May 2009 and 13 April 2017., The stated complaint was submitted by appellant Zakia Ahsan Jafri and, as no follow‑up steps were taken by the concerned authorities, a writ petition was filed by her for direction to the competent authority to register the same as a First Information Report to be investigated by an independent agency (not the Supreme Court appointed SIT). Ms. Teesta Setalvad joined as petitioner No. 2 for the first time in these proceedings before the High Court of Gujarat. The High Court, by judgment dated 2 November 2007 in Criminal Application No. 421 of 2007, opined that Ms. Teesta Setalvad had no locus to maintain such application and decided the writ petition at the instance of appellant Zakia Ahsan Jafri, permitting her to file an appropriate private complaint before the Magistrate under Section 190 of the Code of Criminal Procedure. That opinion of the High Court has not been reversed by this Court while disposing of Special Leave Petition (Criminal) No. 1088 of 2008 on 12 September 2011., Even though the appellant had been pursuing Special Leave Petition (Criminal) No. 1088 of 2008 before this Court for direction to register the complaint as a First Information Report, this Court permitted the trial of Case Register No. 67 of 2002 concerning Gulberg Society to proceed, in which appellant Zakia Ahsan Jafri was examined as witness‑337 on 22 October 2010. She did not raise any matter in her evidence regarding larger conspiracy referred to in her complaint dated 8 June 2006. The material on record suggests that she is being driven by Ms. Teesta Setalvad to pursue her complaint. The complaint, however, is vague and bereft of allegations of criminality. At best, the allegations founded on material/affidavits filed before the Nanavati‑Shah Commission were indicative of dereliction of duty of concerned officials. The complaint is based essentially on statements of Mr. R.B. Sreekumar, Mr. Rahul Sharma and Mr. Sanjiv Bhatt, which may support allegations of inaction or dereliction of duty by high officials. These claims have been contradicted by the concerned persons on the basis of contemporaneous record., Mr. R.B. Sreekumar referred to a register that was his personal diary and not an official record, as investigated and found by the SIT. Being his personal diary, it could not be used against the offenders named in the complaint; its contents were of no avail. He filed an affidavit before the Nanavati‑Shah Commission in 2009 for the first time. In earlier affidavits, no reference was made to the diary/register. Moreover, Mr. R.B. Sreekumar was posted in the Law & Order Division only in April 2002, after the events of February and March 2002, and thus had no personal knowledge of any instructions allegedly given to high officials., Similar is the case of Mr. Rahul Sharma, another star witness of the complainant. He referred to the call records in question for the first time only in 2008. Before that, he had filed more than one affidavit before the Nanavati‑Shah Commission making no reference to the call records. The SIT holds that after a lapse of one year, no details regarding call records are preserved by the service provider, and seizure of a mobile phone after seven years would serve no purpose. The authentication of the call details supplied by Mr. Rahul Sharma and the call details available with the SIT were duly considered. Mr. Rahul Sharma claims to have been authorized to assist the supervisory officer in investigation of the post‑Godhra riot case, which was being investigated by the Crime Branch, Ahmedabad city, by the then Commissioner of Police, Ahmedabad City. He was neither an investigating officer nor a direct supervisory officer in the Naroda Police Station (Case Register No. 193 of 2002). He obtained compact discs containing call details from two mobile service providers (Cellforce and AT&T) but failed to hand over the case property to the investigating officer or register it, nor inform the Court of jurisdiction about the seizure. He produced the compact disc for the first time only on 31 May 2008. The original compact discs were never produced, and the data were copied by Mr. Rahul Sharma on his personal computer in zipped format, compromising integrity. The SIT attempted to authenticate the data by sending it to the Forensic Science Laboratory, Ahmedabad, which reported that MD5 hash values of the files were the same, but the call data records could not be found on the computer storage media. The SIT also recorded statements of various witnesses under Section 161 of the Code for tracing the original compact discs, but they could not be located. The SIT noted that call details of the Gandhinagar tower, where most Government of Gujarat functionaries were placed, were not available because they had not been requisitioned by Mr. Rahul Sharma. The SIT concluded that the material was doctored and fabricated and of no avail to proceed against the named offenders for the offence of larger conspiracy in connection with Case Register No. 67 of 2002 concerning Gulberg Society., It is urged that the appellant heavily relies on the statements of Mr. Rahul Sharma, despite the fact that in the complaint dated 8 June 2006 he was named as offender No. 45 and accusations against him were specifically mentioned, while also showing him as witness No. 5. However, the copy of the complaint filed before this Court reveals that the relevant paragraph making accusations against Mr. Rahul Sharma has been deleted along with his name as offender No. 45. This is a serious matter., The case of Mr. Sanjiv Bhatt is worse. He has been convicted for murder and for planting narcotics in the room of a lawyer in another State. He claimed that he was present at the meeting convened on 27 February 2002, but all officers who were present denied his claim., Relying on the observations made in Sanjiv Rajendra Bhatt vs. Union of India & Ors. (2016) 1 SCC 1, it was urged that they indicate the character and conduct of Mr. Sanjiv Bhatt, who falsely claimed to have been present during the meeting of high officials on 27 February 2002, where the then Chief Minister allegedly made objectionable utterances., The appellant wants this Court to disregard the version of all other high officials and to proceed against the named offenders only on the basis of the three persons proclaiming themselves as truthful. As a matter of fact, all three persons have been adversely commented upon by the Nanavati‑Shah Commission and by the SIT in its final report, including damning observations by this Court against Mr. Sanjiv Bhatt., Moreover, the appellant has repeatedly argued that the Special Investigation Team did not record the statement of Mr. Anil Patel, which is contrary to the record. At the same time, the appellant relied on statements of Mr. Anil Patel, who has not been named as an offender in the complaint dated 8 June 2006. There are three persons with that name: Mr. Anil Tribhovandas Patel, the then Minister of Gujarat; Mr. Anil Shankerbhai Patel, a VHP worker; and Dr. Anil Patel, a general practitioner in Ahmedabad., As stated earlier, the grievance that crucial witness Mr. Anil Patel was not examined by the SIT is incorrect. The SIT recorded statements of Mr. Anil Shankerbhai Patel, the VHP worker, as well as Dr. Anil Patel and Mr. Anil Tribhovandas Patel, the then Minister. The SIT also recorded statements of 13 other persons out of a total of 18 involved in the sting operation, which were relevant for the enquiry., Regarding the allegation that dead bodies were paraded, the SIT fully inquired and was of the opinion that no such event occurred. The complaint alleged that dead bodies were handed over to private persons, namely Hasmukh Patel and Jaideep Patel. During investigation, a letter by the Tehsildar handing over bodies mentioned Jaideep Patel, but this was not on instructions of any superior authority. The Tehsildar was proceeded against departmentally for this. Contemporary records show that dead bodies were carried in closed vehicles under police escort, with Mr. Jaideep Patel merely travelling. The handover to hospital officials was done by police, and bodies were identified and handed to relatives or cremated after DNA testing. No material indicates that bodies were taken in open vehicles or paraded., Out of 58 dead bodies, four belonging to Dahod, Vadodara, Panchmahal and Anand districts were handed over to legal representatives after identification at Godhra. The remaining 54 bodies were sent under police escort to Ahmedabad, where 35 were identified and handed to relatives on 28 February 2002. The remaining 19 were cremated on 1 March 2002; of these, 12 were later identified by DNA test and 7 remained unidentified. The decision to take bodies to Ahmedabad was a conscious and unanimous decision of local authorities, not on instructions from the Chief Minister., The appellant initially argued that dead bodies were purposely paraded, but later modified the grievance to state that parading occurred after hospital handover to relatives until cremation., The complaint dated 8 June 2006 neither mentions hate speeches as an outcome of a larger conspiracy nor alleges that parading of dead bodies was part of a larger conspiracy., It has been argued by the appellant that the SIT did not investigate hate speeches. The learned counsel for the SIT submits that thousands of cases were reopened by this Court, summary reports filed, and in some cases charges regarding hate speeches have been examined., It is urged that allegations regarding build‑up or laxity, post‑mortem done in open in the railway yard, failure to provide adequate bandobast or arranging fire brigade on time, are not supported by credible material, and do not raise strong suspicion to proceed against the named offenders for larger conspiracy. The appellant contended that the train was set on fire at Godhra by the passengers themselves or by persons belonging to their own community who were engaged in preparatory arrangements., The appellant presented rambling facts to create confusion, leaving out core issues needed to form an objective opinion on whether the offence of larger conspiracy at the highest level had been committed. The appellant avoided arguing on allegation (i) and (iv) concerning larger conspiracy involving the then Chief Minister and other high officials, and instead focused on other allegations, creating a subterfuge to keep the charge of larger conspiracy open., The appellant audaciously asserts in the protest petition that she can keep adding new materials and allegations, which the Court is bound to examine to do complete justice, thereby politicising the crime. This is not a genuine protest petition., Indisputably, a large number of criminal cases were registered after the mass violence across the State. Around 2000 cases were registered, of which nine major cases were assigned to the Special Investigation Team by this Court in a writ petition filed by the National Human Rights Commission. In none of the cases, including the nine, did any evidence of alleged larger conspiracy emerge during investigation or trial. Only the complaint under consideration alleges larger conspiracy at the highest level of Government, which remains unsubstantiated., The appellant seeks to continue unfounded allegations against the former Chief Minister, politicians, high officials and bureaucrats without raising those allegations during the investigation of Case Register No. 67 of 2002 concerning Gulberg Society. No one, including Mr. R.B. Sreekumar, Mr. Rahul Sharma and Mr. Sanjiv Bhatt, came forward with specific information about such crime., Appellant Zakia Ahsan Jafri, examined as witness in Gulberg Society case (Case Register No. 67 of 2002) as witness‑337, was not an eye‑witness but was present in the house when events unfolded. She gave statements on affidavit to the Nanavati‑Shah Commission and before the Court under instructions of Ms. Teesta Setalvad and Mr. R.B. Sreekumar. Given the limited remit given to the SIT by this Court, directing further investigation of any other matter at this distance of time would be a travesty of justice, abuse of process and ought not to be countenanced., The whole attempt of the appellant appears to be to persuade this Court to direct the SIT to reinvestigate the crime of criminal conspiracy, which has already been tried by the Court of competent jurisdiction, where the accused have already been acquitted. Any such attempt would infringe their right guaranteed under Section 300 of the Code of Criminal Procedure and Article 22 of the Constitution., If the appellant had been so keen, she should have availed the opportunity granted by the High Court on 2 November 2007 by filing a private complaint rather than pursuing allegations of larger conspiracy or any other crime not enquired and tried in connection with Gulberg Society case (Case Register No. 67 of 2002). Having failed to do so and being party to the orders passed by this Court on the special leave petitions filed by them against the High Court order, it is not open to argue against such directions. It is now too late for them to contend that the complaint dated 8 June 2006 be proceeded as a private complaint or be registered as a First Information Report, much less to permit her to raise fresh allegations in 2013 by way of protest petition., It is the submission of the Special Investigation Team that it has done much more than looking into the complaint, albeit under the supervision of this Court, by examining and questioning several persons and presenting periodical reports to this Court, including the final report before the Metropolitan Magistrate, unlike any other normal criminal case.
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At the end of the investigation done by the Special Investigation Team, it has been noticed that the allegation regarding larger conspiracy mentioned in the complaint dated 8.6.2006 was based on material which was either found to be fabricated or unuseful, leaving aside any ray of suspicion to proceed against the named offenders., Involvement of Babu Bajrangi unravelled from Tehelka Tape transcript does not have any impact on the allegation regarding larger conspiracy, which alone needs to be dealt with in these proceedings. As a matter of fact, Babu Bajrangi had been named as accused in Gulberg Society case being Case Register Number 67/2002 and the evidence against him has been dealt with appropriately in that case, resulting in his conviction. His version in the tape, at best, would be in the nature of extra‑judicial confession to be used against him and not against any other person., Allegation of larger conspiracy at the highest level can be proceeded further only if there is substantive evidence to establish the same or could be so inferred on the basis of such substantive evidence. The substantive evidence of Mr. Sanjiv Bhatt, who allegedly claimed to be present in the meeting of 27.2.2002, stands rebutted and falsified by all the other persons who were actually and physically present in the stated meeting, who in one voice mentioned that he was not present in the meeting., As a matter of fact, the Special Investigation Team in the final report submitted allegation‑wise and offender‑wise concluded that no offence has been made out, as alleged against any of the named offenders., The Special Investigation Team had also considered the findings and recommendations of the National Human Rights Commission while analysing the entire material collated by it during investigation. The same has been extensively discussed in the final report from pages 312‑320. Needless to underscore that the findings and recommendations of the National Human Rights Commission by themselves cannot be the basis to fasten criminal liability on the erring officials or administrators. For that, hard evidence indicating the acts of commission or omission constituting some offence is required either in the form of oral or documentary evidence. There must be substantive material which will pass the muster of admissible evidence before the Supreme Court of India to fasten criminal liability. This is reinforced from the purport of Section 15 of the Protection of Human Rights Act, 1993 or Section 6 of the 1952 Act, as well., Similarly, some opinion formed or observation made in the enquiry report of any private forum or commission also cannot have any bearing on the criminal action to be instituted or pursued against any erring official or administrator. Notably, in the present case, the complainant has relied upon the affidavits of officials filed before the Nanavati‑Shah Commission referring to revelation of relevant fact by certain persons who themselves had no personal knowledge and their claim regarding presence in the official meeting is falsified on the basis of overwhelming evidence to the contrary. Merely because one person claims the existence of a particular fact does not give rise to a triable issue unless that version is corroborated by contemporaneous evidence or material and more so when there is substantive evidence to indicate falsity of his claim. The private Commission founded its observations on the basis of disclosure made by some unidentified minister. When in fact the overwhelming evidence indicated that no cabinet minister was present in the review meeting, which was attended only by high officials presided over by the Chief Minister. Similarly, the presence of Mr. Sanjiv Bhatt stands falsified by the consistent statements given by high officials who were present in the meeting. All this has been thoroughly analysed by the Special Investigation Team and recorded in the final report. In light of such overwhelming material, it was not even a case of slightest suspicion against the highest functionary of the State for having made any utterances attributed to him by these persons. Those utterances being the fulcrum of the allegation regarding State‑sponsored violence, all other incidental allegations and, more particularly, those unconnected with the theory of larger conspiracy by the highest office, must fall to the ground being unsubstantiated. To buttress this argument, reliance has been placed on contents of the final report from pages 245‑260., It is argued that the police report or chargesheet ought to contain a crystallised case about the involvement of named offenders having committed the offence under consideration and mere perception of suspicion is of no avail. That is the mandate underlying Section 169 read with Section 173(2)(i)(d) of the Code of Criminal Procedure. Such a case cannot be made out on the basis of personal diary entries as observed in Central Bureau of Investigation v. V.C. Shukla & Ors., (1998) 3 SCC 410., In other words, even if the material collated during the investigation discloses suspicion, that may not be sufficient for the investigating officer to opine that the offence has been made out, much less that it has been committed by the offender/accused warranting his prosecution. It is a different matter that the Magistrate for issuing process, taking cognizance or framing charge against such person can do so merely on the basis of strong suspicion. The scale of satisfaction to be reached by the investigating officer for being convinced that an offence has been committed and the concerned person is involved in the commission of that offence is qualitatively different from mere suspicion. For that, the investigating officer must be certain, at least prima facie in his mind, that the material or statement on which he proposes to rely to prosecute any person would pass the muster of legally admissible evidence during the trial. Indeed, such a view is a tentative view to be taken by the investigating officer before presenting the chargesheet for prosecuting a named person for having committed a cognizable offence on the basis of the entirety of the material in his possession. In other words, the job of an investigating agency does not and cannot end in merely establishing a prima facie case of strong suspicion. The investigating officer is obliged to unearth the entire truth and not merely leave the job at the stage of strong suspicion. In doing so, the investigating officer does not merely rely upon the version of the complainant but must examine the matter from all angles, test the authenticity of the possibilities emerging therefrom and then form his opinion as to what he believes to be the true course of events. Consequently, the investigating agency does not act as a mere post office but is obliged in law to examine the veracity, quality and believability of any material unearthed during the investigation and then to form an opinion in its mind on the totality of the circumstances discernible from the entirety of the materials on hand, recording that in a police report under Section 173 of the Code to be presented before the Magistrate. By the nature of its duties, the investigating agency must adopt one version of the events that it believes to have occurred whilst submitting the report under Section 173 of the Code. Presenting a report to send the accused for trial on the basis of suspicious circumstances would therefore be a case of abdication of statutory duty of the investigating agency and may not serve the cause of justice., It is submitted that there is hardly any argument presented by the appellant regarding shortcomings in the material referred to in the final report or about the improper understanding of the Special Investigation Team. Given the material and its analysis in the final report, the conclusion reached by the Special Investigation Team is unassailable, namely, that no case had been made out to proceed against the persons named in the complaint as offenders for the offence of larger conspiracy or, for that matter, any other crime., In substance, it is urged that no fault can be found with the satisfaction recorded by the Special Investigation Team in the final report that no case for proceeding against the named offender has been made out, much less that any of them indulged in a larger criminal conspiracy. Even the Magistrate had applied its mind to the totality of the material produced by the Special Investigation Team along with the final report, including the issues raised in the protest petition, whilst rejecting the same and accepting the final report of the Special Investigation Team. To buttress the argument that the investigation is the exclusive prerogative of the Special Investigation Team, including to form an opinion one way or the other on the basis of the material collated by it, and that it does not affect the powers of the Magistrate to direct further investigation, reliance is placed on the decisions of the Supreme Court of India in State of Bihar & Anr. v. JAC Saldanha & Ors., M.C. Abraham & Anr. v. State of Maharashtra & Ors., and Shariff Ahmed & Ors. v. State (NCT of Delhi)., The learned Solicitor General of India appearing for the State of Gujarat broadly adopted the arguments advanced on behalf of the Special Investigation Team. He contended that the allegation regarding larger conspiracy is being pursued by Ms. Teesta Setalvad only out of vengeance, so as to defame the entire State of Gujarat. The entire case in the complaint was mainly resting upon the official records and affidavits of officials of the State of Gujarat filed before the Nanavati‑Shah Commission, to advance the allegation of State‑sponsored crime and of targeting minorities in the State. Appellant Zakia Ahsan Jafri was used as a tool to further the said design, falling prey to the influence exerted by Ms. Teesta Setalvad and lending her name as complainant in the complaint dated 8.6.2006, being the widow of the deceased Mr. Ehsan Jafri, Member of Parliament. The final report contains material suggestive of Ms. Teesta Setalvad having conjured facts and evidence, including fabrication of documents by persons who were prospective witnesses of the complainant. It is not only a case of fabrication of documents but also of influencing and tutoring the witnesses and making them depose on pre‑typed affidavits, as noted in the judgment of the Gujarat High Court dated 11.7.2011 in Criminal Miscellaneous Application No. 1692/2011. That fact emerged in the admission given by appellant Zakia Ahsan Jafri during her cross‑examination in the Gulberg Society case being Case Register Number 67/2002. The learned Solicitor General submitted that the Special Investigation Team should have taken steps to prosecute Ms. Teesta Setalvad for damning the elected representatives, bureaucracy and police administration of the whole State of Gujarat for ulterior purposes. Even in the case of the husband of Ms. Teesta Setalvad, the Gujarat High Court had strongly deprecated his conduct (B.H. Somani, Registrar v. State of Gujarat & Anr.)., The learned Solicitor General also referred to the judgment of the Gujarat High Court dated 12.2.2015 dealing with applications for anticipatory bail filed by Teesta Atul Setalvad and her husband Firozkhan Sayeedkhan Pathan in connection with Case Register Number 1/2014 for offences punishable under Sections 420, 406, 468, 120‑B of the Indian Penal Code and Section 72A of the Information Technology Act, 2000. The High Court observed that donation money collected by them in the name of Sabrang Trust, on the representation that it would be spent on poor and needy persons affected by the mass violence, had been misused and misappropriated for personal pleasure and comfort, and therefore rejected the anticipatory bail application, finding custodial interrogation necessary. Relying on these adverse observations, it is urged that the present proceedings were not genuine and the appellant has been set up, being unaware of the real position. Reliance was also placed on the decision of the Supreme Court of India in Testa Setalvad, dealing with the powers of a police officer to seize certain property in the course of investigation and the observations made by this Court against Ms. Testa (Teesta) Setalvad and her husband for rejecting the appeal challenging the authority of the police officer to effect seizure., In substance, it is argued on behalf of the State of Gujarat that the complaint dated 8.6.2006 had to be proceeded with only because of the indulgence shown by the Supreme Court of India on 27.4.2009 by issuing direction to the Special Investigation Team to look into it and do the needful, after which subsequent steps were taken by the Special Investigation Team, strictly under the supervision of the Supreme Court of India, including close monitoring by the Amicus Curiae appointed by the Supreme Court. It is therefore not open to the appellant to question the wisdom of the Supreme Court of India in accepting the investigation made by the Special Investigation Team as completed, nor to question the direction to the Special Investigation Team to present its report before the Magistrate taking cognizance in Gulberg Society case being Case Register Number 67/2002, treating the report as one under Section 173 of the Code. The Supreme Court not only selected the major nine cases required to be investigated under Court monitoring by the Special Investigation Team appointed by this Court, but also selected Special Investigation Team members who enjoyed high reputation and wide experience. Moreover, the Supreme Court empowered the Special Investigation Team to not only fairly investigate but also to ensure that the trial in connection with those cases is not compromised, recommending names of advocates as public prosecutors and submitting periodic reports to the Court. The Supreme Court also ensured a fair trial by requesting the Chief Justice of the concerned High Court to personally identify judges to preside as Special Court for conducting the trial of those selected cases. Such is the gamut of directions and sui generis procedure adopted by the Supreme Court in relation to the complaint dated 8.6.2006, whilst allowing the trial in Gulberg Society case being Case Register Number 67/2002 to proceed parallelly. Indubitably, the investigation could be done by the Special Investigation Team only as per the remit given to it, and on the same logic even the Courts ought to deal with the matter on the same scale., He invited our attention to the Nanavati‑Shah Commission report and the conclusion recorded therein, including the prompt measures taken by the State Government immediately after the incident and thereafter to restore normalcy. The State Government had to deal with a situation that was unparalleled and the entire State administration was overrun by unprecedented mass violence., In the end, he submits that even though the issues raised by the appellant are unfounded and unsubstantiated, the matter is being pursued with full vigour at the behest of Ms. Teesta Setalvad, whose sole intention is to keep the matter alive, as rightly contended by the learned counsel for the Special Investigation Team. The learned Solicitor General argues that there is no need to re‑examine the opinion of the Special Investigation Team after thorough investigation and proper analysis of the entire material collated by it; nor is the final order of the Magistrate to accept the final report submitted by the Special Investigation Team and to reject the protest petition, or that of the Gujarat High Court, in need of further scrutiny by the Supreme Court of India under Article 136 of the Constitution of India. He has therefore prayed for dismissal of this appeal., We have heard Mr. Kapil Sibal, learned senior counsel for the appellant, Mr. Mukul Rohatgi, learned senior counsel for the Special Investigation Team and Mr. Tushar Mehta, learned Solicitor General for the State of Gujarat., It is cardinal that upon receipt of the complaint dated 8.6.2006, the concerned police officer, if he has reason to suspect the commission of an offence referred to therein, ought to proceed with investigation consequent to registration of an FIR under Section 154, since it discloses commission of a cognizable offence. As that did not happen, the appellant had to approach the Gujarat High Court for direction to register the complaint as an FIR. Had the FIR been registered by the station officer on his own, he would have been obliged to proceed further as expounded in H.N. Rishbud. In that decision, the Court noted: when information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground). Where the information relates to a non‑cognizable offence, he shall not investigate it without the order of a competent Magistrate. Thus, according to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence, except when the Magistrate takes cognizance otherwise than on a police report, in which case he may order investigation under Section 202 of the Code. Therefore, when the Legislature made the offences in the Act cognizable, prior investigation by the appropriate police officer was contemplated as the normal preliminary to trial., To ascertain the scope and reason for requiring such investigation to be conducted by an officer of high rank (except when otherwise permitted by a Magistrate), it is useful to consider what investigation under the Code comprises. Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If the officer in charge has reason to suspect the commission of an offence, he or a subordinate deputed by him must proceed to the spot to investigate the facts and circumstances of the case and, if necessary, take measures for the discovery and arrest of the offender. Investigation primarily consists in the ascertainment of the facts and circumstances of the case and includes all proceedings under the Code for the collection of evidence conducted by a police officer. The investigating officer may require the attendance of any person acquainted with the circumstances of the case and may examine such person orally, either himself or a duly authorised deputy. Statements may be reduced to writing under Section 162. Under Section 155 the officer may make a search in any place for seizure of anything necessary for the investigation, which must be conducted by the officer in person, unless a subordinate is deputed in writing. The officer also has the power to arrest persons suspected of the offence under Section 54. The officer must maintain a diary of the investigation day‑to‑day and, if the investigation cannot be completed within 24 hours and the accused is in custody, a copy of the diary entries must be sent to the concerned Magistrate. When a subordinate conducts the investigation, he must report the result to the officer in charge. If, upon completion, the officer in charge finds no sufficient evidence or reasonable ground, he may release the accused on bond; if sufficient evidence exists, he must take steps under Section 170 and submit a report to the Magistrate under Section 173 of the Code., Thus, under the Code investigation consists generally of: (1) proceeding to the spot; (2) ascertainment of the facts and circumstances; (3) discovery and arrest of the suspected offender; (4) collection of evidence, which may include (a) examination of persons (including the accused) and reduction of statements to writing, and (b) search of places or seizure of things necessary for the investigation; and (5) formation of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for trial, followed by filing a charge‑sheet under Section 173. While a police officer may deputise subordinates for some steps, the responsibility for each step rests with the officer in charge, as provided in Section 168. The final step—forming the opinion on whether there is a case to place the accused on trial—must be undertaken by the officer in charge; there is no provision permitting delegation of this function, only supervision under Section 551., The Supreme Court in Dayal Singh noted that the investigating officer is obliged to act in accordance with the Police Manual and established canons of practice, being diligent, truthful and fair in his or her approach and investigation. An investigating officer is completely responsible and answerable for the manner and methodology adopted in completing the investigation. Upon completion, the investigating officer must submit a report setting out prescribed details to the Magistrate empowered to take cognizance of the offence, without unnecessary delay. The report reflects the conclusion reached on the basis of materials collected during investigation. The officer's duty is to collate every relevant piece of information or material that he believes represents the actual course of events and true facts, examining the materials from all angles. If sufficient evidence or reasonable ground exists that an offence has been committed and the person responsible identified, the investigating officer must record his opinion as required by Section 173(2)(i)(d) of the Code. In other words, if the officer intends to send the accused for trial, he must form a firm opinion not only about the commission of the offence but also about the involvement of the person in the commission of the crime., Such opinion is the culmination of the analysis of the materials collected during the investigation—that there is strong suspicion against the accused, which will lead the concerned Court to presume that the accused has committed the alleged offence, and not merely a case of suspicion. For a case of strong suspicion, there must exist sufficient material to corroborate the facts and circumstances, of such weight that it would facilitate the Court to take cognizance of the crime and presume that the accused has committed an offence, as required to frame a charge under Section 228(1) or 246(1) of the Code, as the case may be. The Court must analyze the report filed by the investigating officer and all appended materials and then form an independent prima facie opinion as to whether there is ground for presuming that the accused has committed the offence as alleged. The Magistrate may give due weight to the investigating officer's opinion. If the final report reflects such an opinion, there is nothing wrong in the officer applying the same standard to the materials collected during investigation and articulating it in the report submitted under Section 173 of the Code. Relevant decisions include Afroz Mohammad Hasanfta, Ramesh Singh and I.K. Nangia., After considering the rival submissions, the foremost issue is the remit of the Special Investigation Team to investigate the matter further and, correspondingly, that of the Magistrate, in the peculiar facts of the present case. The appellant filed a complaint dated 8.6.2006, by which time the FIR relating to the incident of 28.2.2002 in Gulberg Society—including the attack on the appellant's husband and others—had already been registered and was proceeding under the Code. Simultaneously, proceedings before the Supreme Court of India, including those by the National Human Rights Commission, examined grievances regarding improper investigation of several cases registered across Gujarat during the mass violence, including four crimes related to the Gulberg Society episode. The appellant pursued her complaint addressed to the Director General of Police, Gujarat. Receiving no response, she was advised to file an application before the Gujarat High Court for direction to register the complaint as an FIR. The Gujarat High Court dismissed the petition on 2.11.2007, directing the appellant to file a private complaint and invoke Section 190 read with Section 200 of the Code. This decision was challenged by filing SLP(C) No. 1088/2008, which was heard by the Supreme Court of India along with other petitions, including that of the National Human Rights Commission., The common order passed by the Supreme Court of India on 26.3.2008 left no doubt that the four crimes registered in respect of Gulberg Society were to be investigated further by the Special Investigation Team constituted by the Supreme Court. Regarding the complaint submitted by the appellant dated 8.6.2006, a specific order was passed by the Supreme Court on 27.4.2009, directing the Special Investigation Team to look into the matter, take steps as required by law, and submit a report to the Supreme Court within three months. The SLP filed by the appellant and Ms. Teesta Setalvad was disposed of on 12.9.2011, after which the Special Investigation Team continued its investigation into the complaint and submitted appropriate reports to the Supreme Court of India.
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The Supreme Court of India was throughout conscious of the fact that the four crimes registered pertaining to the Gulberg Society, including the gruesome killing of the husband of the appellant and others, were already being investigated by the Special Investigation Team (SIT) and proceeded for trial consequent to filing of the charge sheet and supplementary charge sheet by the SIT. By an express order, the Supreme Court had permitted those trials to continue. In those trials, the allegations of criminal conspiracy and the commission of crime pursuant to such conspiracy had already been put in issue. The limited aspect of the complaint dated 8 June 2006 that remained to be dealt with was the allegation of a larger criminal conspiracy at the highest level resulting in mass violence across the State during the relevant period., The steps taken by the SIT during the pendency of proceedings before the Supreme Court and even after the disposal of the Special Leave Petition filed by the appellant on 12 September 2011 were under the clear directions and aegis of the Supreme Court. The directions issued by the Supreme Court are ascribable to the plenary powers exercised under Article 142 of the Constitution. The Supreme Court consciously allowed the four crimes registered concerning the Gulberg Society, which unfolded on 28 February 2002, to proceed for trial, including the charge of criminal conspiracy for commission of such offence, and at the same time showed indulgence to the appellant by directing the SIT to look into the complaint dated 8 June 2006 in respect of matters which were not overlapping with the trials pertaining to the Gulberg Society case and other cases investigated by the SIT., The Supreme Court directed, vide order dated 7 February 2013, that the statements recorded by the SIT in connection with the investigation of the appellant's complaint be treated as statements under Section 161 of the Code of Criminal Procedure and to form part of the report submitted by the SIT to the Court. The SIT also treated Crime Report No. 67 of 2002 concerning the Gulberg Society as a police report under Section 173(2) of the Code. This presupposes that the further investigation by the SIT was on the assumption that the complaint dated 8 June 2006 may contain new information or material other than already enquiring into Crime Report No. 67 of 2002, as permissible under Section 173(8) of the Code., The SIT identified broadly thirty allegations in the complaint dated 8 June 2006. They include: (i) instruction by Shri Narendra Damodardas Modi, Chief Minister, to the Director General of Police, the Chief Secretary and other senior officials to allow venting of Hindu anger on minority Muslims after the Godhra incident; (ii) the Chief Minister's decision to bring the dead bodies of those killed in the Godhra train fire to Ahmedabad for a parade; (iii) numerous illegal verbal instructions given by the Chief Minister to officials; (iv) a report by a private panel of former judges stating that the Chief Minister announced an ISI conspiracy on 27 February 2002 and decided to take the bodies of burnt Kar Sevaks in a ceremonial procession, thereby using the Godhra killings to justify pre‑orchestrated mass carnage; (v) placement of Cabinet Ministers I. K. Jadeja and Ashok Bhatt in the Director General of Police office and Ahmedabad City Police Control Room respectively; (vi) transfer of field officers during the riots despite objections of the Director General of Police; (vii) undue benefits granted to senior officials while their conduct was under scrutiny of the Nanavati Commission; (viii) failure to act on reports sent by R. B. Sreekumar about anti‑minority stance of the administration; (ix) indictment by the Supreme Court of injustice to minority victims in the Bilkis Bano and Best Bakery cases; (x) partisan investigations betraying prejudice against riot victims; (xi) the Chief Minister did not visit riot‑affected areas in the initial days; (xii) a press statement by the Chief Minister that the reaction against the Muslim community was the operation of Newton's law of action; (xiii) no direction was given by the Chief Minister to Hindu organisations against the observance of Bandh on 28 February 2002; (xiv) undue delay in requisition and deployment of the army; (xv) appointment of pro‑VHP advocates as public prosecutors in riot cases; (xvi) failure to transfer officers at the grass‑root level as recommended by the State Intelligence Bureau; (xvii) failure to act against print media making communal incitement; (xviii) misleading reports by the State Home Department to the Election Commission about normalcy in the State; (xix) intimidation of officials deposing before the Nanavati Commission by the State Home Secretary; (xx) failure to file affidavits relating to the second terms of reference to the Nanavati Commission; (xxi) no action against senior police officers for dereliction of duty; (xxii) no departmental action against the then Superintendent of Police, Dahod District, despite CBI recommendation; (xxiii) the CD regarding telephone calls by BJP leaders and police officers during the riots was not probed; (xxiv) lack of conducive rehabilitation for riot victims; (xxv) police inaction facilitating riots; (xxvi) no minutes of meetings held by the Chief Minister and senior bureaucrats were maintained; (xxvii) no action against senior officials who filed incomplete affidavits to the Nanavati Commission; (xxviii) slack review of post‑riot cases ordered by the Supreme Court in 2004; (xxix) nepotism in postings, transfers and promotions; (xxx) statistical evidence that victims of riots and police firings were predominantly Muslim, establishing collaboration between rioters, the administration and the ruling party., The SIT analyzed the materials collated during the investigation allegation‑wise, offender‑wise and witness‑wise, and recorded its opinion in a final report of 270 pages filed as Annexure P‑17. The report noted that further investigation under Section 173(8) of the Code of Criminal Procedure was suggested in respect of Shri Gordhan Zadafia, Shri M. K. Tandon, Joint Commissioner of Police and Shri P. B. Gondia, Deputy Commissioner of Police, Zone‑IV, Ahmedabad City. Subsequent investigations were carried out by Shri Himanshu Shukla, Deputy Commissioner of Crime Branch, Ahmedabad City, under the supervision of Shri Y. C. Modi, Additional Director General and Member of the SIT, and Shri A. K. Malhotra, Member of the SIT. These reports were submitted to the Supreme Court of India on 13 May 2010, 17 November 2010, 25 April 2011 and 25 July 2011. The Supreme Court directed the Chairman of the SIT to forward a final report along with all material collected by the SIT to the Court that had taken cognisance of FIR No. 67 of 2002 of Mehsana Police Station, as required under Section 173(2) of the Code of Criminal Procedure., The learned Amicus Curiae broadly agreed with the recommendations made by the SIT in the final report but opined that, at the prima facie stage, offences under Sections 153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the Indian Penal Code were made out against Shri Narendra Modi regarding the statement made by him in the meeting on 27 February 2002. The SIT, however, held that the offences under the aforesaid sections were not made out against the Chief Minister., The appellant filed a protest petition before the Magistrate on 15 April 2013, raising diverse grounds. In dealing with the protest petition, the Magistrate was obliged to examine the challenge only in the context of the scope for investigation of allegations referred to in the complaint dated 8 June 2006 and the other materials collected by the SIT concerning the larger criminal conspiracy at the highest level resulting in mass violence across the State. The Supreme Court clarified in its order dated 7 February 2013 that the statements recorded in the enquiry undertaken by the SIT pursuant to the directions of the Supreme Court shall only be used in the proceedings relating to the complaint dated 8 June 2006 and shall not be used for any other purpose or in connection with any other case. This clarification also applied to the criminal case concerning Crime Report No. 67 of 2002 pertaining to the Gulberg Society incident, whose trial was at an advanced stage and was disposed of on 26 December 2013., The core basis of the appellant's complaint is the alleged utterances made by the then Chief Minister in an official meeting on 27 February 2002, directing senior officials to allow venting of Hindu anger on the minority community. The complaint also relied on the report of the Concerned Citizens Tribunal, a private panel of former judges, and the testimony of the late Shri Haren Pandya and Mr. Sanjiv Bhatt, who claimed to have attended the meeting. The SIT examined the relevant materials, recorded statements of all officials who were present at the meeting, and collected documentary evidence. The officials unanimously stated that Mr. Sanjiv Bhatt was not present in the meeting, and the SIT concluded that the claim of his presence was false and a figment of imagination. The SIT also found that Mr. R. B. Sreekumar had no personal knowledge of the meeting and was a disgruntled officer., Consequently, the SIT recorded the opinion that neither Mr. Sanjiv Bhatt nor the late Shri Haren Pandya was present in the meeting, and that the allegations of a larger conspiracy based on their testimonies were unfounded. The final report of the SIT, dated 8 February 2012, was taken exception to by the appellant, but the Supreme Court's directions and clarifications have remained unchallenged. The enquiry by the Magistrate is therefore confined to the limited aspect of allegations regarding a larger criminal conspiracy at the highest level as referred to in the complaint dated 8 June 2006, and no FIR was registered on the basis of that complaint.
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Secretary (Law and Order) Mr. R. B. Sreekumar, the then Additional Director General of Police, after analysing the records, opined that all the officials present at the meeting had said in one voice that Mr. Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), was not present. The Special Investigation Team (SIT) analysed Mr. Sanjiv Bhatt's claim of attendance by referring to official records, including the call records of his mobile phone number 9825049398, and concluded that he had set up a false plea of being present. The SIT adverted to the materials collected during investigation, clearly reflecting on the conduct of Mr. Sanjiv Bhatt, including his false claim of presence. The final report analysed these aspects in detail., The final report proceeds to advert to the interview given by Mr. R. B. Sreekumar to a news channel on 22 April 2011 and the details of the call records of Mr. Sanjiv Bhatt for the relevant period. In his interview to Star Hindi News at 12.35 hours on 22 April 2011, Shri R. B. Sreekumar, formerly Additional Director General of Police (Intelligence), stated that Shri Sanjiv Bhatt, Deputy Commissioner of Intelligence (Security), had never informed him about attending a meeting at the Chief Minister's residence on 27 February 2002. He further stated that when filing an affidavit before the Nanavati Shah Inquiry Commission, he had asked all officers of the State Intelligence Bureau to provide relevant information and documents in respect of the Godhra riots, but Shri Sanjiv Bhatt did not give him any information about the said meeting., According to Shri Sreekumar, Shri Sanjiv Bhatt was handling the security portfolio while the communal portfolio was being looked after by another officer. Shri Sreekumar also stated that it was a normal procedure that if a junior officer attended a meeting on behalf of a senior, he was required to submit a report to his superior and that Shri G. C. Raiger, the then Additional Director General (Intelligence), should be asked about it. Shri Raiger has denied having received any information or report from Shri Sanjiv Bhatt in this regard. The call detail records of the Government mobile phone number 9825049398 allotted to Shri Sanjiv Bhatt show that on 27 February 2002, he remained in Ahmedabad till about 11:20 hours and returned to Ahmedabad at 19:25 hours. He attended various calls till 20:40 hours and thereafter there is no record of any calls made or received by him. On 28 February 2002, he remained in Ahmedabad till 10:57 hours and then returned to Ahmedabad at 20:56 hours. The claim that he attended a meeting at the Chief Minister's residence on 28 February 2002 at 10:30 hours is therefore proved false and incorrect. The Chief Minister's residence is at Gandhinagar, more than 25 kilometres from Ahmedabad, and normally takes 30 to 45 minutes to reach., Shri Sanjiv Bhatt further claimed that he had seen the late Ashok Bhatt and Shri I. K. Jadeja, the then Ministers, in the Deputy Inspector General's office at about 11:00 hours on 28 February 2002. This is also belied by the call detail records, as the location of Shri Sanjiv Bhatt's mobile phone was at Prerna Tower, Vastrapur‑1, Ahmedabad, approximately 1.5 kilometres from his residence, and he could not have reached Police Bhavan, Gandhinagar before 11:30 hours. Both Shri K. Chakravarthi, the then Director General of Police, and Shri G. C. Raiger, the then Additional Director General (Intelligence), do not recollect having attended any meeting at the Chief Minister's residence at about 10:30 hours on 28 February 2002. Shri Ashok Narayan, the then Additional Chief Secretary (Home), stated that a meeting was held by the Chief Minister on the morning of 28 February 2002, attended by the acting Chief Secretary, the Director General of Police, the Additional Director General (Intelligence), and that the matter relating to the calling of the Army was discussed, but no decision was taken. He categorically denied that the late Ashok Bhatt and Shri I. K. Jadeja attended the meeting., Regarding the alleged utterance made by the Chief Minister in the meeting called on the night of 27 February 2002 at his residence, Shri R. B. Sreekumar, the then Additional Director General (Intelligence), claimed that Shri K. Chakravarthi, the then Director General of Police, informed him on 28 February 2002 that the Chief Minister had allegedly said, \KOMI HULLA DO MATE COMMUNAL RIOTS POLICE TAKES ACTION AGAINST HINDUS AND MUSLIMS ON ONE‑TO‑ONE BASIS. THIS WILL NOT DO NOW – ALLOW HINDUS TO GIVE VENT TO THEIR ANGER\. Shri Chakravarthi has denied that he held any such conversation with Shri Sreekumar. Even otherwise, Shri Sreekumar's version becomes hearsay and inadmissible in view of Shri Chakravarthi's denial., A complaint was received from Shri Dharmesh P. Shukla, an accused in CR No. 67/2002 of Meghaninagar Police Station (Gulberg Society case), who contended that there was no justification to record the statement of Shri Sanjiv Bhatt for the following reasons: (i) Shri Sanjiv Bhatt, Indian Police Service officer, is known to have a dubious character facing several serious criminal cases and creates situations whereby the Government is compelled to help him; (ii) he had not mentioned any such meeting contemporaneously and suddenly produced a new theory after nine years; (iii) his sudden insistence on recording his statement after an offence was registered appears to be at the behest of vested interests; (iv) it is widely known in Gujarat that he pressures everyone to obtain illegal favour. In view of the seriousness of these allegations, a communication was sent to the Government of Gujarat to make available details of all complaints, pending inquiries, prosecutions and departmental proceedings against Shri Sanjiv Bhatt., The Government of Gujarat replied that Shri Sanjiv Bhatt has faced a number of departmental inquiries and was granted three promotions – Junior Administrative Grade, Selection Grade and Deputy Inspector General Grade – on 21 September 2007, after the dropping of three departmental inquiries dated 6 August 2005, 3 September 2005 and 24 July 2006. He is eligible for the Inspector General of Police grade but has not been promoted because of the departmental inquiries and criminal cases pending against him. A chargesheet served upon him on 29 December 2010 for irregularities in police recruitment under his chairmanship as Superintendent of Police, Banaskantha, is still pending., While handling a law and order situation during his posting as Assistant Superintendent of Police, Jamnagar in 1990, Shri Sanjiv Bhatt committed atrocities on peaceful and innocent villagers belonging to a particular community at a place called Jam Jodhpur. In the beatings by police one person was killed. The victims included a pregnant woman, two assistant engineers of the irrigation department and one circle officer of the Revenue Department. Shri Bhatt applied provisions of the Terrorist and Disruptive Activities (Prevention) Act against the innocent persons and arrested 140 individuals under this Act. Due to public pressure, the Government ordered an inquiry conducted by a retired Judicial Officer, which found Shri Bhatt guilty of misuse of TADA, police atrocities and unnecessary imposition of a 70‑hour curfew leading to hardship and harassment. The criminal case of death due to police atrocities was investigated by the State Crime Investigation Department; the investigating officer sought prosecution sanction under section 197 of the Criminal Procedure Code, which was declined, leading to a closure report that was rejected by the Gujarat High Court on 20 December 1995. The case, under sections 302, 323, 506(1) and 114 of the Indian Penal Code, is now before the Fast Track Court, Khambhalia, for framing of charges. The Gujarat High Court awarded compensation of Rs. 1,50,000 to the victim who died due to police atrocities., Another criminal complaint was filed against Shri Sanjiv Bhatt while he was Superintendent of Police, Banaskantha District in 1996 by Shri Sumersingh Rajpurohit, an advocate practising at Pali, Rajasthan. FIR No. 403/96 dated 18 November 1996 was registered under sections 120B, 195, 196, 342, 347, 357, 365, 388, 458, 482 of the Indian Penal Code and sections 58(1) and 58(2) of the Narcotic Drugs and Psychotropic Substances Act. The investigation led to a chargesheet under sections 114, 120B, 323, 342, 348, 357, 365, 368, 388, 452, 201 and 482 of the Indian Penal Code and sections 9, 17, 18, 29, 58(1) and 58(2) read with section 37 of the NDPS Act in the Special Judge, NDPS Court, Jodhpur, Rajasthan. The complaint alleged that the advocate was a tenant in a property in Pali owned by a lady who was the sister of Shri R. R. Jain, a sitting judge of the Gujarat High Court. It was alleged that Shri Sanjiv Bhatt and his subordinate police officers planted 1.5 kg of narcotic drug in a hotel room in Palanpur, Gujarat, shown as occupied by the complainant, and abducted the advocate at midnight on Bhatt's instructions, taking him to Palanpur and pressurising him to vacate the property by threatening arrest under the NDPS Act. The advocate, after police torture, vacated the property, which was then handed over to the sister of Judge Jain. The accused were later released on 8 May 1996 by filing a report under section 169 of the Criminal Procedure Code, stating that the accused could not be identified in the test identification parade. Quashing petitions filed in Rajasthan and Gujarat High Courts were dismissed, and the matter is now pending before the Supreme Court of India., The Gujarat Vigilance Commission recommended twice, on 15 July 2002 and 19 October 2006, that Shri Sanjiv Bhatt should be placed under suspension for professional misconduct, but the Government of Gujarat did not act on the recommendation. The National Human Rights Commission, taking a very serious view of the false case under the NDPS Act, ordered the Government of Gujarat on 15 September 2010 to pay a sum of Rs. 1,00,000 as monetary relief to Shri Sumersingh Rajpurohit. In view of the aforesaid position, it can be inferred that Shri Sanjiv Bhatt is facing many service‑related problems and has an axe to grind against the Government of Gujarat; consequently, his evidence is ill‑motivated and cannot be relied upon., The Supreme Court of India, in Sanjiv Rajendra Bhatt v. Union of India & Ors. (2016) 1 SCC 1, noted adverse comments about Mr. Sanjiv Rajendra Bhatt's general conduct while deciding his writ petition for transfer of investigation of a major crime registered against him at Ahmedabad in 2011 (I‑CR No. 149/2011)., While dealing with the testimony of the late Mr. Haren Pandya before the Concerned Citizens Tribunal and of Mr. R. B. Sreekumar, the SIT opined that the meeting convened at the Chief Minister's residence was essentially a law and order review meeting held on 27 February 2002, and none of the Cabinet Ministers attended. Late Haren Pandya was not even a Cabinet Minister at that time; he was Minister of State for Revenue. Shri Gordhan Zadafia also did not attend, as he stayed back at Godhra. The call detail records of the mobile phone of Late Haren Pandya (Government mobile number 9825039852) for 27 February 2002 show that he remained in Ahmedabad City till 10:46:55, re‑appeared at 16:24:24, and stayed in Ahmedabad City till 22:52:07. This conclusively establishes that he did not attend the law and order review meeting at the Chief Minister's residence in Gandhinagar at about 22:30 hours on 27 February 2002. Consequently, his testimony before the Tribunal is unreliable and based on hearsay., It has been established that a law and order review meeting did take place at the Chief Minister's residence at about 22:30 hours on 27 February 2002. The meeting was attended by Smt. Swarna Kanta Verma, the then Acting Chief Secretary; Shri Ashok Narayan, the then Additional Chief Secretary (Home); Shri K. Chakravarthi, the then Director General of Police; Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City; Shri K. Nityanandam, the then Secretary, Home Department; Dr. P. K. Mishra, the then Principal Secretary to the Chief Minister; Shri Prakash Shah, the then Additional Secretary (Law & Order); and Shri Anil Mukim, Secretary to the Chief Minister. Shri G. C. Raiger, the then Additional Director General (Intelligence), was on leave and did not attend. Shri A. K. Sharma, the then Secretary to the Chief Minister, was on earned leave from 19 February to 5 March 2002. None of the senior officers who attended the meeting have confirmed the alleged utterances made by the Chief Minister. Shri R. B. Sreekumar's statement is hearsay and he had no personal knowledge as he did not attend the meeting. The participation of Shri Sanjiv Bhatt has not been confirmed by any participant or other source, and his sudden breaking of silence after nine years makes his deposition suspicious and motivated, rendering it unreliable., The SIT could not rely on the version of Mr. Haren Pandya, who was not present at the meeting when the alleged utterances were made by the Chief Minister. Such a claim by Mr. Pandya is found to be false. The SIT also examined the allegations of illegal instructions given by the Chief Minister during the 27 February 2002 meeting. It found that an emergency law and order review meeting was called by the Chief Minister at his residence at about 22:30 hours after his visit to Godhra. The meeting lasted for about half an hour and was attended by the officials listed above. The presence of Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), in the meeting is not established, and the Chief Minister has denied his presence. Shri R. B. Sreekumar's claim that Shri K. Chakravarthi told him about the Chief Minister's alleged statements is categorically denied by Shri Chakravarthi, making it hearsay. Shri Sreekumar's later representation dated 3 August 2009 named a different officer as having attended the meeting, further supporting that Shri Sanjiv Bhatt was not present. The deposition of the late Haren Pandya before the Concerned Citizens Tribunal, claiming attendance at the meeting, is contradicted by the call records and the denial of attendance by all senior officials. Consequently, the testimony of late Haren Pandya is highly unreliable.
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It was for the first time after a period of seven years and nine months that Shri Sanjiv Bhatt claimed to have attended the crucial meeting convened by the Chief Minister on 27.02.2002. Shri Sanjiv Bhatt has explained that the then Director General of Police Shri K. Chakravarthi had instructed him to attend the meeting with Intelligence Bureau's assessment of the situation. Shri K. Chakravarthi categorically denied having given any such instructions and further stated that Shri Sanjiv Bhatt was not present at the said meeting. Seven other officers who attended the meeting have also categorically stated that Shri Sanjiv Bhatt was not present in the said meeting. However, Smt. Swarnakanta Varma stated that she was unable to recollect whether Shri Sanjiv Bhatt was present or not. Besides that Shri Sanjiv Bhatt has pleaded ignorance about whether the alleged instructions of the Chief Minister were passed on by senior officers to subordinates and whether they were complied with. Shri Sanjiv Bhatt is a tainted witness and therefore cannot be relied upon keeping in view his background in the police department as he was involved in criminal cases of serious nature and departmental inquiries are also pending against him., The Chief Minister, when he visited Godhra on the evening of 27.02.2002, addressed the media at the Collectorate and asserted that the culprits would not be spared and the victims would be paid Rs.2 lakh each. The Chief Minister also appealed to the public through the media to maintain peace. On 28.02.2002, within less than 12 hours of the alleged meeting that took place on the night of 27.02.2002, the Chief Minister stated on the floor of the Assembly, where the Opposition was also present, that the State Government has taken this heinous, inhuman and organized violent act very seriously and is committed to give exemplary punishment to the culprits so that such incident never recurs anywhere. The Chief Minister repeated almost similar facts in his press conference held on the afternoon of 28.02.2002 at Circuit House, Annex, Ahmedabad. In his appeal made to the public through Doordarshan on 28.02.2002, the Chief Minister reiterated that Gujarat will never tolerate any such incident and that the guilty will be punished for their heinous crime. He also said that the culprits would be awarded such exemplary punishment so that no one would dare to involve himself in such an incident. This shows that on at least five occasions, fully documented during 27.02.2002 and 28.02.2002, the Chief Minister addressed Media, Assembly and General Public and everywhere the genesis and intention was the same, i.e., to punish the culprits responsible for the Godhra incident in an exemplary manner, so that such incidents did not recur., In the light of the foregoing discussion, the interpretations made on alleged illegal instructions given by the Chief Minister by Shri R.B. Sreekumar and Shri Sanjiv Bhatt appear to be without any basis. Even if such allegations are believed for the sake of argument, a mere statement of alleged words in the four walls of a room does not constitute any offence., Illegal Verbal Instructions: Regarding the allegation leveled by Shri R.B. Sreekumar that numerous illegal verbal instructions were given by the Chief Minister and that he had maintained a register in this regard, Shri O.P. Mathur, the then Inspector General of Police (Administration), stated that the register was totally blank on 18.04.2002 when he certified the number of pages in it and that Shri Sreekumar had not disclosed the purpose of maintaining such a register. According to Shri Mathur, the register did not contain the secret stamp nor any title as well as the circular stamp of the office of the Additional Director General, Central Investigation Department (Intelligence). Shri Mathur said that Shri Sreekumar recorded the first entry on 16.04.2002, the second and third entries on 17.04.2002, and the fourth entry on 18.04.2002, which shows that Shri Sreekumar had antedated these entries and subsequently affixed the stamps. Shri Q.P. Mathur challenged another entry recorded by Shri Sreekumar that call details of the mobile phone of the late Haren Pandya were handed over to Shri P.K. Mishra, the then Secretary to the Chief Minister, and denied having handed over any such call details to Dr. P.K. Mishra in his office. During enquiries, other senior officers, namely Shri P.K. Mishra, Shri G. Subba Rao, the then Chief Secretary, Shri Ashok Narayan, the then Additional Chief Secretary (Home) and Shri K. Chakravarthi, the then Director General of Police, challenged the contents of the said register on the ground that it had been unauthorisedly maintained by Shri Sreekumar, which he was not officially required to maintain. Moreover, he had not taken permission of the Home Department to maintain such a register nor had he put it up for perusal by any senior officer. It is therefore reasonable to say that Shri Sreekumar made the entries afterwards at his own will with some ulterior motive. According to them, this register saw light of day for the first time when Shri Sreekumar was denied promotion. Shri Narendra Modi, Chief Minister, disclaimed knowledge about such a personal diary/register maintained by Shri Sreekumar and stated that he came to know about it from media reports after a long time. According to Shri Modi this diary was not a Government record and as such he did not comment upon its authenticity. All the aforesaid facts and the conduct create serious doubts about the genuineness of the entries made by Shri Sreekumar in the said register and, therefore, it cannot be relied upon. The allegation that illegal verbal instructions were issued by Shri Narendra Modi is therefore not established., The Special Investigation Team, after analysing the entire materials, noticed that the allegations in the complaint filed by the appellant dated 08.06.2006 are mostly based on the contents of the nine affidavits filed by Mr. R.B. Sreekumar before the Nanavati‑Shah Commission. Those contents are not on the basis of his personal knowledge or information. He claims to have acquired information after he was posted as Additional Director General (Intelligence) in April 2002. Notably, he had not made any adverse comment against the Government in his initial two affidavits, but started doing so from his third affidavit dated 09.04.2005, presumably after being superseded by his junior K.R. Kaushik in February 2005 owing to a pending criminal case against him initiated by the Judicial Magistrate First Class, Bhuj. The allegations made by him have been duly enquired into by the Special Investigation Team and found to be false or not based on his personal knowledge nor could be corroborated despite best efforts of the Special Investigation Team., Further analysis regarding the allegation of intimidation of Mr. R.B. Sreekumar, Additional Director General of Police, is as follows: Intimidation of Shri Sreekumar, Additional Director General of Police. Regarding the allegation made by Shri R.B. Sreekumar that he was tried to be influenced to depose in favour of the Government before the Nanavati‑Shah Commission of Inquiry through Shri Dinesh Kapadia, Under Secretary, Shri Narendra Modi has termed the allegation as false and without any basis. Shri Sreekumar, retired Director General of Police, while the letter as Additional Director General (Intelligence) through Shri S.M. Pathak, the then Deputy Superintendent of Police, Gandhinagar, stated that they used to exchange some Sanskrit verses of mutual interest and visited each other in their offices., According to Shri Kapadia, during one of these meetings on 21.08.2004, in the chamber of Shri Sreekumar, he took out a copy of his affidavit filed before a Commission of Inquiry and showed it to him and remarked that he was a born rebel. Shri Kapadia said that after a glance at the affidavit he observed that no useful purpose would be served by telling all these things to the Commission, as all commissions are paper tigers. He also expressed his personal view that the Commission was not the proper forum to tell these things and said that Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City, had rightly deposed before the Commission and that Shri R.B. Sreekumar should also emulate him. Shri Kapadia expressed his personal views that Shri Sreekumar was biased in his assessment of the situation and that the same could further put him in uncalled for controversy. Shri Kapadia denied that he was sponsored by anyone to influence Shri R.B. Sreekumar and that these were his personal views expressed as a well‑wisher to Shri R.B. Sreekumar, whom he considered an honest and good officer. However, subsequently he came to know that Shri Sreekumar had clandestinely recorded his conversation and enclosed the transcript thereof along with his affidavit submitted to the Commission. Shri Kapadia also stated that on the day of his retirement, i.e., 28.02.2007, Shri Sreekumar called him to his chamber, offered him a cup of tea and also an unconditional apology for the whole episode. Shri Kapadia further stated that Shri R.B. Sreekumar regretted the whole incident and had been advised by his lawyer to do so as the same could have strengthened his case pending before the Central Administrative Tribunal. Shri Kapadia denied influencing Shri R.B. Sreekumar and further denied that he was holding any brief on behalf of the Government in this regard., Regarding the allegation made by Shri R.B. Sreekumar that Shri G.C. Murmu, Secretary (Law & Order), Home Department and Shri Arvind Pandya, Government Advocate to the Nanavati‑Shah Commission of Inquiry had tried to influence him not to depose against the Government prior to his appearance on 31.08.2004 before the Nanavati‑Shah Commission, it has come to light that the meeting was held at the request of Shri Sreekumar and the conversation was clandestinely recorded by him. Initially both Shri Murmu and Shri Pandya briefed Shri Sreekumar about the modalities for his examination and advised him about certain precautions to be taken at the time of his cross‑examination. The rest of the conversation is confusing and does not make sense as there are certain gaps which Shri R.B. Sreekumar has tried to fill in by his own views, based on assumptions and presumptions, and has interpreted the things to support his version that he was pressured, threatened, given illegal direction, intimidated to avoid revealing the truth that would harm Government interests and to conceal the facts from the Commission. Shri Sreekumar gave his own comments, observations and conclusions and also appreciated this conversation in his own manner, which showed that he is not an independent witness and that he wanted to influence the Inquiry officer to accept his inferences and conclusions. Surprisingly, Shri Sreekumar did not state these facts before the Nanavati‑Shah Commission when he appeared before it on 31‑08‑2004 for his cross‑examination even though alleged pressure was put on him to depose in a certain way in the Commission. Obviously, Shri R.B. Sreekumar had kept it secret to be utilised as and when the need arose. He did not disclose these facts even in his second affidavit filed on 06‑10‑2004 before the Commission. It was only after Shri R.B. Sreekumar was superseded in his promotion to the rank of Director General on 23‑02‑2005 that he filed his third affidavit on 09‑04‑2005 before the Nanavati‑Shah Commission of his own, and enclosed the transcript of the recordings of the conversations with Shri Dinesh Kapadia as well as Shri G.C. Murmu and Shri Arvind Pandya. All these facts show that Shri R.B. Sreekumar anticipated these events, recorded these conversations clandestinely and used the same at his convenience when he was superseded in promotion. This would prove that actions on the part of Shri Sreekumar were motivated with a view to let down the Government after his supersession in promotion. In all three affidavits filed on 06‑10‑2004, 09‑04‑2005 and 27‑10‑2005 before the Commission, Shri R.B. Sreekumar had made a request to be summoned before the Commission and remedial measures ordered as early as possible, but the Commission did not accede to his request. In view of this the allegation relating to the intimidation of Shri R.B. Sreekumar is not substantiated., In the context of the opinion of Mr. Raju Ramachandra, learned Amicus Curiae, after the submission of the report of the Special Investigation Team before the Supreme Court of India, the Special Investigation Team undertook further investigation and collected relevant materials, which have been referred to along with the previous materials in the final report presented before the concerned Court. As regards comments of the learned Amicus Curiae in reference to allegations (i) and (iv), the outcome of the further investigation has been discussed and analyzed from pages 401 to 434. It may be desirable to reproduce the relevant extract of the final report dealing with each observation noted by the learned Amicus Curiae, to understand and appreciate the extensive, objective and impartial analysis undertaken by the Special Investigation Team including the further investigation done after the order of the Supreme Court of India dated 15.03.2011. However, for the sake of convenience, we are appending the relevant extract thereof and have highlighted some pertinent portions, to this judgment to be regarded as part of this judgment. After going through the materials and the analysis undertaken by the Special Investigation Team, we unreservedly hold that no other view is possible., We find force in the argument of the respondent State that the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also of Mr. R.B. Sreekumar was only to sensationalize and politicize the matters in issue, although replete with falsehood. Persons not privy to the stated meeting, where utterances were allegedly made by the then Chief Minister, falsely claimed themselves to be eyewitnesses and after thorough investigation by the Special Investigation Team, it has become clear that their claim of being present in the meeting was itself false. On such false claim, the structure of a larger criminal conspiracy at the highest level has been erected. The same stands collapsed like a house of cards after thorough investigation., We hasten to add that it is only because of the ultra‑sensational revelation projected by Mr. Sanjiv Bhatt and Mr. Haren Pandya, who unabashedly claimed to be privy to the utterances made by the then Chief Minister in an official meeting, that the constitutional functionaries and the Supreme Court of India were required to move into action taking serious note of the same. After thorough investigation by the Special Investigation Team, the falsity of such claim has been fully exposed on the basis of credible indisputable materials collated by the Special Investigation Team., Besides exposing the falsity of the claims of these two persons, the Special Investigation Team has been able to collate materials indicative of the amount of hard work and planning of the concerned State functionaries in their attempt to control the spontaneous evolving situation of mass violence across the State of Gujarat, despite the handicap of administration including the inadequate State police force required to be replenished with central forces/Army, which were called without loss of time and the repeated appeals made by the then Chief Minister publicly to maintain peace., Realizing the difficulty in pursuing the stated allegations (i) and (iv), the appellant has now been advised not to pursue the same and in the written note filed after the conclusion of hearing, confirmed that statement. The learned counsel for the appellant did not contend before the Supreme Court of India that a larger conspiracy emanated from the meeting of 27.02.2002; and therefore made no reference to this meeting in this appeal during arguments. As aforesaid, we are of the considered opinion that the enquiry to be made in this case is essentially regarding the allegations of larger criminal conspiracy at the highest level. That itself has now, in a way, been abandoned by the appellant in this appeal. It must follow that no other aspect needs to be examined in this appeal as the finding of the Magistrate and of the High Court in that regard is being allowed to become final., It is in this context that the learned counsel for the Special Investigation Team urged that the appellant has been changing goalposts at every stage of the proceedings before different Courts. The allegation of larger criminal conspiracy at the highest level, spelt out in the complaint and protest petition, was in reference to the sensational revelation made by Mr. Sanjiv Bhatt and Mr. Haren Pandya, the falsity of which has been exposed by the Special Investigation Team. As a result, now the appellant is pursuing the same allegation by relying on so‑called undisputed extra‑judicial confessions recorded in Tehelka tapes on the specious plea that there can be no direct evidence regarding larger conspiracy. Hence, in this appeal, the entire focus of the appellant has been to highlight the so‑called undisputed extra‑judicial confessions recorded in Tehelka tapes to be read with the inaction of the officials demonstrable from the undisputed official documents to establish a larger conspiracy which, according to the appellant, has not been enquired into by the Special Investigation Team. The stated undisputed evidence, according to the appellant, points to a larger conspiracy involving bureaucrats, politicians, public prosecutors, Vishwa Hindu Parishad, Rashtriya Swayamsevak Sangh, Bajrang Dal and members of the State political establishment., This argument, we unhappily opine, is nothing short of a red herring. Emphasis has been placed on evidence such as State Intelligence Bureau messages. What has been conveniently glossed over is that, to make out a case of larger criminal conspiracy, it is essential to establish a link indicative of meeting of minds of the concerned persons for commission of the crimes committed during the relevant period across the State including the heart‑rending episode unfolded at Godhra on 27.02.2002, in which a large number of karsevaks were burnt alive in train bogies. No such link is forthcoming, much less has it been unraveled and established in any of the nine cases investigated by the same Special Investigation Team under the directions of this Court., Accepting the argument of the appellant would require us to question the wisdom of this Court and to hold that even the incident at Godhra unfolded on 27.02.2002 was also the outcome of an alleged larger criminal conspiracy. Such a view would be preposterous. The Godhra incident has been fully enquired into by the Special Investigation Team to the satisfaction of this Court and even the trial has ended in recording conviction against the concerned accused belonging to the minority community. The manner in which the Godhra incident unfolded has been analyzed by the High Court in confirmation appeals in the Godhra train case about the acts of planning and commission by a group of persons. It suffices to observe that forwarding of messages by the intelligence agencies, including inaction or lack of effective measures taken by the concerned officials, per se does not imply criminal conspiracy on the part of the State authorities. As stated earlier, absent tangible material suggesting a chain or any perceivable link with the unfolding of mass violence across the State, it is unfathomable how the Special Investigation Team could have still recommended sending the alleged offenders for trial, much less would obligate the concerned Court to take cognizance of such unfounded allegations. There is no material forthcoming to indicate that there was failure on the part of intelligence to collect information and it was a deliberate act on the part of the State Government authorities. Whereas the allegation is that intelligence inputs were collected and disseminated to concerned authorities, but not acted upon by the concerned officials in right earnest., It is needless to underscore that inaction of the duty holders to take those messages to their logical end cannot be regarded as an act of criminal conspiracy unless there is material to provide a link regarding the meeting of minds and deliberate act to effectuate a plan to spread mass violence across the State. The Special Investigation Team recorded a statement of Mr. Ashok Narayan, the then Additional Chief Secretary (Home), Gujarat, dated 12.12.2009, who stated as follows: The State of Gujarat has a long history of communal riots dating back to 1714. Thereafter riots erupted in the State on many occasions during the last three centuries. However, post‑independence, major riots took place in the State in 1969, 1985 and 1992‑93. Inputs regarding the communal situation in the State had been received from the State Intelligence Bureau as well as the Intelligence Bureau, Ministry of Home Affairs, Government of India. This information was sent to the concerned authorities to initiate appropriate preventive and remedial measures. Actionable information was analysed and communicated to the Director General of Police and other field formations for further necessary action. At the time when I took over as Additional Chief Secretary (Home), the communal atmosphere in Gujarat State was neither surcharged nor volatile prior to 27.02.2002. It may be mentioned here that the programme of Shilanyas for Ram Mandir at Ayodhya was announced a few months back to be done on 15 March 2002 and this announcement had aroused some passions across the country. In Gujarat State intelligence outputs were available to the government about the movement of the karsevaks from different places in Gujarat to Ayodhya. Keeping in view this information all SSP/CSP were alerted on 07.02.2002 about the movements of karsevaks. The Government had specific information that on 16.02.2002 Shri Prahladbhai J. Patel, President of Bajrang Dal, would leave for Ayodhya for Maha Yagna along with 150‑200 persons. Further on 22.02.2002 he would depart from Mehsana railway station at 15.40 hours by Delhi‑Ahmedabad Mail train for Ahmedabad and on 24.02.2002 they would leave Ahmedabad railway station by Sabarmati Express train 9165 Dn. at 20.25 hours for Ayodhya. Also there was information that they would return on 26.02.2002 from Ayodhya at night and would reach Ahmedabad on 28.02.2002 morning. The group was supposed to carry trishuls with them. Accordingly this message was passed on by the Superintendent of Police, Western Railway, Vadodara, Gujarat to the Inspector General, Communal Intelligence, Uttar Pradesh, Lucknow vide fax message dated 16.02.2002. However, no specific information had been received from the Inspector General, Communal Intelligence, Uttar Pradesh about the return journey of karsevaks or from anyone else. This version belies the claim of the appellant including the unfounded allegation of criminal conspiracy at the highest level for causing mass violence across the State. The materials gathered by the Special Investigation Team, on the other hand, would suggest that despite the corrective measures taken by the concerned officials in right earnest, the situation evolved in an unpredictable and sporadic manner and the expanse of the activities were such that the State administration was completely overrun., At the cost of repetition, it should be noted that the Special Investigation Team had not found any conspiracy linking the separate incidents of mass violence across the State during the investigation of nine separate crimes including the Godhra train incident, dealt with by the Special Investigation Team under the strict vigil and supervision of this Court and ably assisted by the learned Amicus Curiae playing the role of devil's advocate. The messages generated by the State Intelligence Bureau from time to time even before 27.02.2002 would show that the concerned officials were vigilant, but the situation as evolved post‑Godhra incident was unparalleled and had overrun the State administration., In any case, inaction or failure of some officials of one section of the State administration cannot be the basis to infer a pre‑planned criminal conspiracy by the authorities of the State Government or to term it as a State‑sponsored crime against the minority community. The Special Investigation Team noted that inaction and negligence of the erring officials has been taken note of at the appropriate level including by initiating departmental action against them. Such inaction or negligence cannot pass the muster of hatching a criminal conspiracy, for which the degree of participation in the planning of commission of an offence of this magnitude must come to the fore in some way. The Special Investigation Team was not there to enquire into the failures of the State administration, but the remit given to it by this Court was to enquire into the allegations of larger criminal conspiracy at the highest level., Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration. In the enquiry undertaken by the Special Investigation Team, it was found that the developments were in quick succession and had overrun the arrangements already in place or, for that matter, additional support by calling the Army on 28.02.2002 itself besides the curfew imposed in the most disturbed areas of the State. In light of such timely corrective measures taken by the State Government in right earnest and repeated public assurances given by the then Chief Minister that the guilty will be punished for their crimes and to maintain peace, it would be beyond comprehension of any person of ordinary prudence to suspect a meeting of minds of named offenders and hatching of conspiracy by the State at the highest level, as alleged, much less grave or strong suspicion as being the quintessence for sending the accused for trial for an offence of criminal conspiracy., The protagonists of quest for justice sitting in a comfortable environment in their air‑conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding after mass violence across the State. The linking of such failures is not enough to entertain a suspicion about hatching of criminal conspiracy at the highest level, which requires a concerted effort of all the persons concerned and, more importantly, clear evidence about meeting of the minds to accomplish such design, much less of causing and precipitating mass violence across the State., It is apposite to recall the observations in Reg v. Hodge (128 A), adverting to the address by Baron Alderson about the dexterity and ability of an ingenious mind to create theories, where he had said: 'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.' Be that as it may, overrun of State administration is not an unknown phenomenon. It has been witnessed all over the globe during the second wave of the pandemic, where the countries with even best of medical facilities crumbled and their management skills were overrun under pressure. Can it be said to be a case of hatching of criminal conspiracy? We need not multiply such instances of overrun. Breakdown of law and order situation for short duration, (Reg v. Hodge, 128 A (1838) 2 Lew 227, referred to in Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh) cannot partake the colour of breakdown of rule of law or constitutional crisis. To put it differently, misgovernance or failure to maintain law and order during a brief period may not be a case of failure of constitutional machinery in the context of the provisions embodied in Article 356 of the Constitution. There must be credible evidence regarding State‑sponsored breakdown of law and order, not spontaneous or isolated instances or events of failure of State administration to control the situation.
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Suffice it to observe that the breakdown of law-and-order situation in the State, including attributable to the alleged inaction of the State duty holders, owing to spontaneous mass violence cannot be a safe measure to infer as being a part of the criminal conspiracy at the highest level of political dispensation unless there is clear evidence to so conclude regarding meeting of the minds of all concerned and their concerted efforts to commit or promote commission of such crime. The allegation in the present case, if at all relevant, was founded on falsehood of the claim of Mr. Sanjeev Bhatt and Mr. Haren Pandya regarding the utterances of the then Chief Minister in a review meeting chaired by him, which stood completely exposed after the investigation by the Special Investigation Team. For the same reason, it would not be open to the concerned Supreme Court of India to take cognizance or to call upon the Special Investigation Team to do further investigation absent any tangible material. On the other hand, the opinion recorded by the Special Investigation Team while dealing with allegation No. (viii) 129 has dealt with the materials to conclude that it cannot be said that no action had been taken on letters sent by Mr. R.B. Sreekumar. Similarly, while dealing with the allegation No. (xiv) regarding undue delay in requisition and deployment of Army, the Special Investigation Team had opined that there was a genuine problem of deploying the Army despite sending of requisition on 28 February 2002 at 1300 hrs, which message was sent by fax to the Union Defence Secretary, Ministry of Defence at 1430 hrs, and the time taken in posting the Army after its arrival due to logistical reasons., Suffice it to observe that there is no title of material, much less tangible material to support the plea of the appellant that the Godhra incident unfolded on 27 February 2002 and the events which followed was a pre‑planned event owing to the criminal conspiracy hatched at the highest level in the State. It is well settled that conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. The offence of conspiracy is independent of other offences. It takes place when there is an agreement to do or cause to be done an illegal act, or an act which may not be illegal but by illegal means. The rationale of conspiracy is that the required objective manifestations of dispositions of criminality are provided by the act of agreement. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they will accomplish the unlawful object of the conspiracy. As noted earlier, inaction in the response or even in a given case of non‑responsive administration can be no basis to infer hatching of criminal conspiracy by the authorities of the State Government in absence of any clear evidence about the meeting of minds; and that failure to respond to the messages sent by the State Intelligence Bureau was a concerted and deliberate act of omission or commission on the part of the State and other functionaries, as alleged. The Special Investigation Team had recorded the statements of all concerned including the officials Firozuddin Basheeruddin, R. Venkatkrishnan, Shiv Charan Bansal, and Nazir Khan before forming the opinion, as noted in the final report, to discard the allegation under consideration. The Magistrate, as well as the Gujarat High Court, committed no error whatsoever in accepting the final report presented by the Special Investigation Team., Thus understood, the argument pressed into service about the existence of materials regarding build‑up of communal mobilizations and stockpiling of weapons, arms and ammunition even before the Godhra episode on 27 February 2002 being part of a larger criminal conspiracy is devoid of merit. This argument proceeded on an erroneous assumption that the Special Investigation Team had not investigated this crucial matter. The final report presented by the Special Investigation Team before the Supreme Court of India has dealt with the relevant aspects while considering allegation No. (viii) 132, as also, under the heading Failure to Act on Suggestions From State Intelligence, while considering the allegations against the then Chief Minister, in the following words: “Failure to act on suggestions from State Intelligence”. Shri Narendra Modi has stated that in order to bring peace and normalcy in the State, he made regular appeals through media to maintain peace and communal harmony. The Chief Minister claimed to have formed a Committee under the Chairmanship of the Governor of the State, Leader of Opposition and others to supervise the relief operation. He further stated that the relief camps were opened in the affected areas served by NGOs and local social leaders, that the funds were contributed by the Government as per policy and the relief operations were supervised by the Committee. According to Shri Modi, the necessary food, drinking water, medicines and cash were arranged in these camps and arrangements were also made for children’s education in these camps. According to Shri Modi, some Public Interest Litigation had been filed in this regard in the Gujarat High Court and the same should be looked into. As regards the Departmental Order dated 24‑04‑2002 sent by Shri R.B. Sreekumar, the then Additional Director General (Intelligence) to Shri Ashok Narayan, the then Additional Chief Secretary (Home), Shri Narendra Modi has stated that no such letter was put up to him. However, Shri Ashok Narayan, the then Additional Chief Secretary (Home), has stated that the letter contained general observations and concrete details were missing and therefore he discussed it with Shri R.B. Sreekumar and requested him to take action at his level as far as possible. Shri Ashok Narayan does not recollect having put up this letter to the Chief Minister. Shri K. Chakravarthi, the then Director General of Police, has stated that most of the points and issues raised by Shri R.B. Sreekumar had been effectively dealt with in March and April 2002. He also stated that he had taken adequate steps to restore the loss of faith of the minority community in the criminal justice system by instructing the concerned police officers to be fair, to ensure proper registration of FIRs, effect arrests of the accused persons and to proceed ahead with the investigation as per law. He further stated that teams of police officers were sent to the relief camps for direct contact with the affected persons and to proceed with the investigation in a fair manner, and that he gave instruction to senior officers to closely supervise these cases to avoid any allegations. According to Shri Chakravarthi, special instruction was given by him to all police officers to provide suitable protection to those who wanted to return to their original residence. Regarding the law and order situation, a review report sent by Shri R.B. Sreekumar to the Home Department on 15‑06‑2002 requesting the postponement of the Rath‑Yatra till an atmosphere of durable peace and goodwill was established between the majority and minority community; Shri Ashok Narayan has stated that he discussed the matter with the Chief Minister, who did not agree with the views of Shri Sreekumar to stop the Rath‑Yatra, as this was an event in vogue for many years. Shri Ashok Narayan also stated that the administration did not agree with the view of Shri Sreekumar and the Rath‑Yatra was taken out on 12‑07‑2002 under police bandobast and the event passed off peacefully. Further, according to Shri Chakravarthi, these were the personal views of Shri Sreekumar, which were duly considered by the Government. He also stated that the report sent by Shri Sreekumar was not well thought through and was not based on realities and therefore the Government did not agree with the view of Shri Sreekumar and that his apprehensions were without any basis. Coming to another report on the prevailing law and order situation sent vide letter dated 30‑08‑2002 with the approval of Shri Sreekumar, it may be mentioned that the gist of the presentation made before the Election Commission on 09‑08‑2002 was included in the same. In a nutshell, Shri Sreekumar projected in this letter that communal tension continued and the communal gap had widened between Hindus and Muslims and that any minor issue would reignite communal passions resulting in clashes as had been witnessed in Dhoraji, Rajkot on 17‑08‑2002. Shri Ashok Narayan has stated that he sent a Departmental Order dated 09‑09‑2002 to Shri Sreekumar that his assessment of law and order situation conveyed on 20‑08‑2002 was not in tune with the feedback received by him from other agencies. He further pointed out that some feeling of insecurity amongst the minority community was understandable in isolated pockets, but the same did not indicate the feelings of insecurity anymore. Shri Ashok Narayan disagreed with the views of Shri Sreekumar on the ground that no broad‑based inputs were relied upon by him before arriving at a conclusion. As regards the letter dated 28‑08‑2002, Shri Ashok Narayan, the then Additional Chief Secretary (Home), has stated that he did not recall the action taken by him on the said letter, but the suggestions made therein seemed logical and in normal course action must have been taken by the Home Department. Shri K. Chakravarthi has stated that as far as the police department was concerned, he had given directions based on his suggestions. However, the relevant files on the subject have not been made available by the Government of Gujarat. Keeping in view the versions of Shri Ashok Narayan, Shri K. Chakravarthi and Shri Narendra Modi about the Rath‑Yatra and also about the Departmental Order dated 09‑09‑2002 sent by Shri Ashok Narayan to Shri Sreekumar, it cannot be said that no action was taken on the views sent by the latter to the Government. In view of the position explained above the allegation is not established., Reverting to the allegation coined as Allegations Carried by Tehelka Magazine, the final report deals with the same as follows: Allegations carried by Tehelka magazine: When confronted with the interviews given by Shri Haresh Bhatt, the then MLA, Babu Bajrangi and Rajendra Vyas, President, Vishwa Hindu Parishad Ahmedabad City to Shri Ashish Khetan, Special Correspondent, Tehelka, Shri Narendra Modi has stated that the allegations leveled against him were false and incorrect. He further stated that this issue was raised in November 2007, after about six years of the incident and that too at the time of elections in December 2007. These issues were again raised in April 2008 when the Special Investigation Team was appointed by the Supreme Court of India. Shri Modi has also stated that this issue was again raised on 22‑02‑2010, when he was to appear before the Special Investigation Team for his examination. According to Shri Modi, the whole episode is motivated and stage‑managed and that he had no personal knowledge about the authenticity of the said CD. In this connection, it may be added that Shri Haresh Bhatt, formerly MLA and accused Babu Bajrangi in the Naroda Patiya case have admitted their voice as also the contents of the CD. Shri Haresh Bhatt has stated that one Shri Ashish had approached him saying that he wanted to write a thesis on Hindutva and wanted him to contribute some spicy material for the same, so that he could succeed in his mission. He further stated that Ashish visited him at his residence in Ahmedabad City as well as at Godhra at least seven to eight times in a month period and when the reference came to Gujarat riots, he gave an imaginary story as Ashish wanted some spicy material for his thesis. He has stated that the talks about a Central Bureau of Investigation inquiry, the fact that he owned a gun factory where diesel bombs and pipe bombs were made and distributed to Hindus, the fact about two truck loads of swords ordered from Punjab and subsequently distributed amongst Hindus, making of a rocket launcher in his gun factory by filling them with gunpowder and lighting a bomb to blast were absolutely false and baseless. He has also mentioned that his talk about Shri Narendra Modi having openly said that “we had three days to do, whatever we could do and that he would not give us time after that” were imaginary story and that Shri Modi never told these things to him. Shri Babu Bajrangi has stated that Shri Ashish Khetan had given him a script and he simply read out the same and that none of those facts were correct. After going through the facts stated by these persons during the sting operation, it appears that they were bragging and that most of the facts stated by them are innocent. Further, they were not questioned as to how and when Shri Narendra Modi gave them three days time. The facts about a gun factory owned by Shri Haresh Bhatt and changing the judge thrice by Shri Narendra Modi are unacceptable by any stretch of imagination inasmuch as no such gun factory could be unearthed by the police and Shri Modi was not competent to transfer judges, as the same is the prerogative of the Gujarat High Court. There are many factual inaccuracies in the statement of Babu Bajrangi inasmuch as he has stated that there were 700‑800 dead bodies in Naroda Patiya and that the Commissioner of Police had instructed the policemen to throw them at different places in Ahmedabad City, as it would be difficult to explain the same. This is absolutely incorrect inasmuch as only 84 dead bodies were found at Naroda Patiya and 11 persons were reportedly missing. In any case this evidence has already been adduced in the Court and the matter is sub‑judice and hence no further comments., It is indisputable that the Tehelka tape was the brainchild of Mr. Ashish Khaitan who was working with Tehelka. He had conducted an enquiry of similar nature in the past, where the workers of Vishwa Hindu Parishad had indulged in vandalism and manhandled some of the students and a professor over a painting wherein objectionable images of Hindu deities were displayed. Mr. Ashish Khaitan, in order to conduct a sting operation on this occasion, used a spy camera and also prepared an identity card in the assumed name of Piyush Agarwal of Delhi University. He visited Baroda and conducted a sting operation on Mr. Dhimant Bhatt, Chief Auditor of M.S. University, Baroda and office bearer of Vishwa Hindu Parishad. Thereafter, from May to September 2007, he recorded the audio‑visual conversations of eighteen individuals pertaining to post‑Godhra riots. The telecast of the sting operation was published on 27‑10‑2007 in television channels. After such publication, the National Human Rights Commission directed the Central Bureau of Investigation to submit a report vide order dated 5‑3‑2008. The Central Bureau of Investigation, in the course of enquiry, collected certain information and submitted a report to the National Human Rights Commission, opining regarding authenticity of the recordings in the sting operation and operation Kalank, delineating four points: (i) Video signals in the footage of the DVDs P‑V/D‑1 to P‑V/D‑15 match in respect of speech, utterances, laughter, stray ringing tones of mobile handsets, movements of body parts and body language of the persons appearing in the recorded events. (ii) No evidence of editing, alteration and tampering has been detected in the audio‑video recordings and their respective voice tracks recorded in the DVDs, exhibits P‑V/D‑1 to P‑V/D‑15. (iii) The camera exhibits P‑I/I and P‑II/I are in working order. (iv) The camera characteristics of the video clips, their signals, frame coordinates and number of frames per second of the video footage and the time lag of audio track recorded in the DVD exhibits P‑V/D‑I to P‑V/D‑15 are similar to the camera signals, frame coordinators, number of frames per second and the time lag of audio track recordings of cameras P‑I/I and P‑II/I and hence the DVDs could have been recorded with the camera exhibit P‑I/I and the camera exhibit P‑II/I. (v) A large number of video clips produced in the video CDs exhibits P‑V/C‑I to P‑V/C‑5 have been taken from the video footages of DVDs exhibits P‑V/D‑I to P‑V/D‑15 on the CDs. However, in some of the clips of CDs, the voice (audio signals) in the recording of DVDs have not been produced. From this report, the technical veracity of the tape can be accepted on the basis of the Central Forensic Science Laboratory report. However, as that would not be sufficient, the Special Investigation Team recorded the statements of thirteen persons who were available and had made revelations on the Tehelka tape. As aforesaid, only one of them has been named as offender No. 22 in the complaint filed by the appellant, namely, Babubhai alias Babu Bajrangi. The material from the sting operation has been submitted by the Special Investigation Team in three out of nine sets of cases assigned to the Special Investigation Team by the Supreme Court of India, namely, in Gulberg Society, Naroda Patiya and Naroda Gaam, where the persons making revelations have been named as accused in the concerned case. As regards the evidence from the stated sting operation produced by the Special Investigation Team in Criminal Revision No. 67/2002 concerning Gulberg Society, the trial Court in its judgment dated 26‑12‑2013 after analyzing the same, has held that a sting operation can at best be a good corroborative material against the accused who are stung by the operation, relying on the decision of this Court in R.K. Anand and Rajat Prasad. We do not wish to elaborate further on the view taken by the trial Court in the stated case, as it is pending challenge. Suffice it to mention that Mr. Babu Bajrangi has already been charge‑sheeted and tried in connection with the evidence concerning the sting operation in which he was stung. The Special Investigation Team had noted that call details of Mr. Babu Bajrangi reveal that he was in Ahmedabad from morning till 11:15 hrs on 27 February 2008 and could not have remained present at Godhra at the time of the incident., We find force in the argument of the respondents that although the sting operation was not part of the complaint filed by the appellant or the report of the learned Amicus Curiae, the same has been thoroughly investigated by the Special Investigation Team including by recording statements of thirteen persons who were stung. At the end of the investigation, the Special Investigation Team found that other persons whose statements were recorded were not accused in any case and also no corroborative evidence pertaining to any larger conspiracy was found in their statements. Absent such corroborative material, the evidence in the form of the sting operation can be of no avail, much less to take forward the allegation of a larger criminal conspiracy at the highest echelon of the administration. No evidence regarding meeting of minds could be culled out from the statements of the concerned persons, much less to link the offenders named in the complaint of the appellant., The emphasis placed on the purported extra‑judicial confession of eighteen persons as recorded in the Tehelka tape needs to be understood that an extra‑judicial confession can at best be used against the maker and not against others. Further, such statements need corroboration to be used against other accused. The Special Investigation Team nevertheless recorded statements of thirteen out of eighteen persons who had made revelations, as recorded in the Tehelka tape. Out of them, only Mr. Babu Bajrangi Patel, Member, Bajrang Dal has been named as an offender in the complaint submitted by the appellant. The Special Investigation Team in its final report considered the relevant aspects while dealing with offender No. 22, Shri Babu Bajrangi Patel, in the following words: “Shri Babu Bajrangi Patel, Member, Bajrang Dal. Shri Babu Bajrangi has stated that he joined Bajrang Dal in 1995, later got introduced to Shri Pravin Togadia, Shri Jaydeep Patel and Home Minister Shri Gordhan Zadafia and also came in contact with other Sangh Parivar activists. He has stated to have come to know about the Godhra carnage through TV news on 27‑02‑2002, in which one of the kar sevaks, namely, Shri Bhimjibhai K. Patel belonging to his community was also killed, whereas other kar sevaks from his village namely Shri Dharmendra Patel and others survived. He has further stated that his nephew Shri Bharat R. Patel had visited Godhra on 27‑02‑2002 by car on that day and returned to Ahmedabad in the night. He has taken the plea that mobile phone number 9825020333 was used by his nephew Shri Bharat Patel. He has further stated that he went to Sola Civil Hospital on 28‑02‑2002 at about 0700 hrs and the dead body of Bhimji K. Patel was identified by Shri Vashrambhai, uncle of Bhimji Patel, taken by them to their village, and they arrived at about 1330 hrs. The funeral of Late Bhimjibhai Patel was over at about 1530 hrs and thereafter, he has stated to have gone to Khedbrahma along with Shri Dharmendra Patel. He has further stated that he stayed at Khedbrahma on 28‑02‑2002, as the communal riots had erupted and no transport was available. According to Shri Babu Bajrangi, he returned to Naroda on 01‑03‑2002 late in the night and was informed by his family members that he had been named as an accused in Naroda Gam and Naroda Patiya carnage cases. Thereafter, he has stated to have left for his elder sister Laxmiben’s house on 02‑03‑2002, who stays in village Kevdia‑Kampa and stayed there for about three or four months. As per Shri Bajrangi, he was arrested by the Crime Branch, Ahmedabad City, on 28‑02‑2002, taken on remand for ten days and then sent to jail. Subsequently, he was released on bail on 19‑10‑2002. He has admitted that Shri Ashish Khetan met him as Piyush Agarwal and informed him that he was making a film on Hinduism and that he had to play a role in it and speak some dialogues. He has admitted his voice, and the conversation held with Shri Ashish Khetan, but has taken the plea that he had read the dialogues as per a written script given by Shri Ashish Khetan. However, he had stated that all these facts were incorrect and that he had spoken the same, as Shri Ashish Khetan asked him to do so. It may be mentioned here that Shri Babu Bajrangi has already been charge‑sheeted in the Naroda Patiya case (Naroda P.S.I. Criminal Revision No. 100/2002) as well as Naroda Gam case (Naroda P.S.I. Criminal Revision No. 98/2002) and is facing trial. In view of the fact that the matter is sub‑judice, no action is called for in the matter., The Special Investigation Team has not found any conspiracy linking separate and disparate acts of arson and looting or outrageous claims made in sting operations or individual utterances/publications of purported hate speech to any singular larger conspiracy or planned event. The materials gathered during the investigation, in no way link any meeting of the minds in any of the nine cases investigated by the Special Investigation Team or, for that matter, other incidents alleged in the complaint or the protest petition. The riots across the State had taken place spontaneously, immediately after the Godhra train carnage. In the investigation done by the Special Investigation Team in all nine sets of cases, no material was discovered pointing towards any meeting of minds or conspiracy in the higher echelons of the administration or the political establishment conspired with other persons to cause such riots or for having turned a blind eye when the riots had triggered and continued. There is no chain or any perceivable link or connection in these occurrences during the relevant period, which would be the quintessence had it been a case of larger conspiracy at the highest level. Indeed, the factum of conspiracy can be inferred, but absent any perceivable link, much less about the meeting of minds of all concerned, it is not open to assume conspiracy in the air., From this discussion, it is amply clear that the argument pressed into service on the premise of no investigation done by the Special Investigation Team on crucial matters is contrary to the materials on record and we find that the opinion recorded by the Special Investigation Team is after due consideration of all aspects and backed by tangible materials gathered during investigation by it., For the same reason, the argument regarding mass mobilizations and hate speech on 27 February 2002 regarding proactive and aggressive behaviour of persons returning from Ayodhya/kar sevaks after the Godhra attack is tenuous. During the course of arguments, much effort was made by the appellant to impress upon us that the Special Investigation Team had not even bothered to record the statement of Mr. Anil Patel, which the respondents have duly refuted by pointing out from the record that there are three persons with the same name Anil Patel and the Special Investigation Team had recorded statements of all of them (Mr. Anil Shankerbhai Patel – VHP worker; Anil Tribhovandas Patel – former Minister and named as one of the offenders in the complaint; and Anil M. Patel – BJP Doctor Cell) and also analyzed the same in the final report. The appellant had referred to the statements of Dr. Anil M. Patel, as if he was concerned with the sting rather than reading the statement of Mr. Anil Shankerbhai Patel. Similarly, an incorrect submission was made in reference to Mr. Arvind Pandya, Advocate, who was one of the persons stung in operation Kalank. The appellant contended that he was appointed as a public prosecutor in riot cases. In fact, Mr. Arvind H. Pandya was appointed as one of the defending Special Counsel for the State of Gujarat in June 2002 to defend the State Government before the Nanavati‑Shah Commission of Enquiry and he later resigned in October 2008. Be that as it may, much argument was made about the post‑mortem of dead bodies in the open railway yard and also parading them from Godhra to Ahmedabad. According to the appellant, the post‑mortem was done in the open yard as part of a larger criminal conspiracy to obliterate the real cause of death of kar sevaks at Godhra due to fire and then to transport the dead bodies to Ahmedabad so as to parade them amidst shouting of provocative slogans so as to arouse passions. This plea taken in the protest petition is of pure conjecture and surmise. In that, the deaths had been caused due to the violent act of a group of persons (who were later identified after investigation and faced trial ending in conviction) for setting the train (Coach S6 of Sabarmati Express) carrying kar sevaks on fire. The case concerning the Godhra train episode was also investigated by the Special Investigation Team under the supervision of this Court and that trial ended in conviction of thirty‑two persons and the confirmation appeals for capital punishment have also been disposed of by the Gujarat High Court. In those proceedings, the Courts have considered the issue concerning post‑mortem of dead bodies in the open railway yard. In other words, the issue raised by the appellant has already passed the muster of judicial scrutiny before the trial Court and the Gujarat High Court. Accepting the argument of the appellant on this score would need reinvestigation of the concluded case which must be eschewed and cannot be countenanced., The allegation No. (ii) regarding parading of dead bodies has been dealt with by the Special Investigation Team in the following words: “Chief Minister’s decision to bring the dead bodies of victims of the Godhra train fire incident to Ahmedabad and parade them in Ahmedabad City. Enquiries revealed that Smt. Jayanti Ravi, the then Collector and District Magistrate, Godhra, Panchmahals District received a telephone call at about 0800 hrs from Shri Raju Bhargava, the then Superintendent of Police, Panchmahals District that there had been an incident of stone pelting as also torching of a railway coach of the Sabarmati Express near Godhra Railway Station. Immediately, messages were conveyed to the concerned Municipal Authorities at Godhra, Lunawada and Kalol to send the fire tenders to the spot. According to Smt. Jayanti Ravi, she reached the spot near Godhra Railway Station at about 0845 hrs.
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By that time, a crowd had assembled at Godhra Railway Station and the immediate problem was to take care of the transit passengers who had been stranded there because of the fire and stone‑pelting incident. The injured passengers were given medical aid by the Civil Hospital, Godhra, whereas those who had received severe burn injuries were immediately admitted to the Civil Hospital, Godhra. Around 1200 hrs, the District Administrative officials stepped into the S6 coach of Sabarmati Express to assess the actual number of deaths in the incident. As the bodies in the coach were charred and in mutilated condition, it was virtually impossible to count the heads. In order to ensure that the stranded passengers were not put to any further inconvenience, the railway authorities detached the two affected/burnt bogies from the main train, parked them in the railway yard and joined the rest of the bogies together. Finally, the Sabarmati Express left Godhra around 1300 hrs for Ahmedabad, its destination. Shri Narendra Modi, Chief Minister, arrived at Godhra by helicopter sometime between 1600 hrs and 1700 hrs accompanied by Shri Anil Mukim, the then Secretary to the Chief Minister. He was received at the helipad by Smt. Jayanti Ravi and Shri Ashok Bhatt and he straightaway drove to the Godhra Railway Station. The Chief Minister inspected the spot and talked to some of the persons gathered there. Since a curfew had been imposed in Godhra town, the Chief Minister decided to go to the Collectorate and meet the people as well as the press. At that time Shri Gordhan Zadafia and Shri Prabhasinh Chauhan, the then Minister of Civil Aviation & Pilgrimage and a local MLA, had also come and they all went to the Collectorate. Smt. Jayanti Ravi has stated that in the meeting held at the Collectorate, one Shri Jaydeep Patel, a Vishwa Hindu Parishad activist, was also present. Smt. Jayanti Ravi has also stated that after holding discussions, a unanimous decision was taken that the dead bodies which had been identified should be handed over to their relatives at Godhra itself and those bodies whose legal heirs or guardians had not come could be sent to Sola Civil Hospital, Ahmedabad since they belonged to the Sabarmati Express heading towards Ahmedabad. Smt. Jayanti Ravi has categorically denied that the decision was taken against her wishes. The decision to send the bodies to Sola Civil Hospital was taken in view of the fact that it was situated on the outskirts of Ahmedabad City and thus away from the crowded area for security reasons., It has further come to light that out of 58 burnt and dead bodies, four bodies belonging to Dahod, Vadodara, Panchmahal and Anand districts were handed over to their legal heirs/guardians after identification at Godhra itself. The remaining 54 dead bodies were to be sent with police escort to Sola Civil Hospital, Ahmedabad. Shri Jaydeep Patel of Vishwa Hindu Parishad was to accompany them. Enquiries revealed that, as per the call detail records of mobile phone number 9825023887 of Shri Jaydeep Patel, he reached Godhra on 27‑02‑2002 around 1248 hrs and remained there till 2358 hrs. At Godhra, he made and received calls to and from Shri Gordhan Zadafia at mobile phone number 9825049145 between 2003 hrs and 2113 hrs. He also received calls from Shri R. J. Savani, the then Deputy Commissioner of Police, Zone‑V, Ahmedabad City, from mobile phone number 9825049198 between 1305 hrs and 2116 hrs. The aforesaid call detail records establish that Shri Jaydeep Patel remained at Godhra till about 2358 hrs on 27‑02‑2002. Enquiries further revealed that Shri M. L. Nalvaya, the then Mamlatdar and Executive Magistrate, issued a letter addressed to Dr. Jaydeep Patel of Vishwa Hindu Parishad, in which he mentioned that 54 dead bodies were being sent through five trucks as detailed below: Truck No. 12 (tempo) – one truck. Shri Hasmukh T. Patel of Vishwa Hindu Parishad had acknowledged the dead bodies. It may be mentioned that the handing over of the dead bodies to their legal heirs/guardians was the duty of the railway police, who had registered a case in connection with this incident. Shri M. L. Nalvaya has stated that these dead bodies were handed over officially to Shri Jaydeep Patel and Shri Hasmukh T. Patel of Vishwa Hindu Parishad as per the instruction given by Smt. Jayanti S. Ravi, District Magistrate, and Late B. M. Damor, Additional District Magistrate, Godhra. Shri M. L. Nalvaya filed an affidavit before the Nanavati Commission of Inquiry to this effect on 05‑09‑2009. However, Smt. Jayanti Ravi has stated that no such instructions were given to Shri Nalvaya to hand over the dead bodies to Shri Jaydeep Patel or Shri Hasmukh T. Patel of Vishwa Hindu Parishad and that Shri Jaydeep Patel was merely to accompany the dead bodies to Ahmedabad., Shri Raju Bhargava, the then Superintendent of Police, Godhra, has stated that since there was a curfew in the town, he arranged for four mini trucks, Tata 407, and one Tata‑608 tempo for the transportation of the aforesaid dead bodies. He also arranged for the police escort with a pilot gypsy. One Sub‑Inspector was sent in the gypsy with some other staff and two armed guards each were placed in the five vehicles. The convoy left Godhra around midnight on 27/28‑02‑2002 for Ahmedabad by road. On the way to Ahmedabad, the escorts from the concerned districts replaced each other. The five trucks carrying dead bodies reached Sola Civil Hospital, Ahmedabad between 0330 hrs and 0400 hrs on 28‑02‑2002. At Sola Civil Hospital, Dr. Pushpa Belani, Medical Superintendent, and Shri Prajapati, Deputy Collector, were present along with Shri K. Srinivas, Collector and several other administrative and police officers. Shri Jaydeep Patel handed over the letter to Shri Prajapati, the then Deputy Collector, and the police and administrative officials proceeded with the preparation of panchnama and other documentation. The relatives of the persons who had died in the Godhra carnage were also present in the hospital. Accordingly, thirty‑five persons were identified and their dead bodies handed over to their relatives by about 1300 hrs on 28‑02‑2002 by the police after obtaining receipts from them. It may be mentioned that twenty‑five dead bodies were claimed by residents of Ahmedabad, two by residents of Kadi, Mehsana, five by residents of Anand, two by residents of Khedbrahma, Sabarkantha and one from Rajkot. The photographs and DNA samples of the remaining nineteen dead bodies were taken by the hospital authorities. These nineteen unidentified dead bodies were cremated on 28‑02‑2002 at Gota cremation ground near Sola Civil Hospital by the District Administrative and Police officers with the help of the Sarpanch of Gota village, which is situated on the outskirts of Ahmedabad city. The cremation was completed by about 1830 hrs on 28‑02‑2002., On 28‑02‑2002, twelve charred dead bodies of the Godhra carnage were brought to Ramol, Ahmedabad City from Sola Civil Hospital. All these deceased persons belonged to the Ramol‑Khokhra area. Shri M. K. Tandon, Joint Commissioner of Police, Sector‑II, instructed Shri R. J. Savani, Deputy Commissioner of Police, Zone‑V, to ensure that the dead bodies were moved in vehicles and not by foot, as the same would have escalated the tension. Ten karsevaks belonged to Ramol and two karsevaks were from Khokhra. Shri R. J. Savani succeeded in persuading the relatives and well‑wishers of the deceased to take each body in a vehicle and the funeral procession was guarded by the police up to Hatkeshwar cremation ground, about four kilometres away from Ramol‑Khokhra. The funeral was over by about 1400 hrs and the crowd which had gathered on the highway dispersed thereafter. It may thus be seen that the journey from Godhra to Ahmedabad started around midnight, the dead bodies reached Sola Civil Hospital sometime between 0330 and 0400 hrs and there was no one on the highway at that point of time in the night to see them. Further, although a letter had been addressed by Shri M. L. Nalvaya in the name of Shri Jaydeep Patel of Vishwa Hindu Parishad and the dead bodies were acknowledged by Shri Hasmukh T. Patel of Vishwa Hindu Parishad, the dead bodies were escorted by the police up to Sola Civil Hospital, Ahmedabad situated on the outskirts of Ahmedabad City. At Sola Civil Hospital, Shri Jaydeep Patel handed over the letter to the hospital authorities and the local police as well as the hospital authorities took charge of the dead bodies. Subsequently, thirty‑five dead bodies were handed to the legal heirs/guardians of the deceased by the police after completing the formalities and documentation. The nineteen unidentified dead bodies were cremated quietly on the same evening by the local administration and police authorities at Gota cremation ground nearby with the help of the Sarpanch of Gota village after retaining their DNA samples. Subsequently, twelve dead bodies could be identified after conducting DNA tests, while the remaining seven remained unidentified., The above facts establish that although a letter had been addressed by the Mamlatdar, Godhra to Shri Jaydeep Patel of Vishwa Hindu Parishad, the dead bodies were escorted by the police from Godhra to Ahmedabad, where they were taken charge of by the hospital authorities, District Administrative and Police officers and handed over to the kith and kin of the deceased persons after taking proper receipt. The unidentified bodies were disposed of by the District Administrative and police officers. The fact that twenty‑five deceased persons belonged to Ahmedabad, two to Mehsana, one to Rajkot and two to Sabarkantha, places accessible via Ahmedabad and the same were claimed by their legal heirs/guardians at Ahmedabad justifies the decision to transport the dead bodies from Godhra to Ahmedabad. Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, has stated that there had been no parading of dead bodies as the trucks carrying the dead bodies under police escort reached Ahmedabad City between 0330 hrs and 0400 hrs on 28‑02‑2002, which means they had started from Godhra at least three hours earlier and as such there was no one to see them on the highway at dead of the night. Shri Pande has also stated that in Ahmedabad City, the dead bodies were kept in Sola Civil Hospital situated on the outskirts of the City and that most of the dead bodies were handed over to their relations after proper documentation by the morning of 28‑02‑2002. In view of the aforesaid discussions, the allegation that the Chief Minister's decision to bring the dead bodies of those killed in the Godhra carnage to Ahmedabad was with a view to parade them in the City is not established. Further, the allegation that the dead bodies were handed over to Shri Jaydeep Patel is also not established, inasmuch as he only accompanied the dead bodies from Godhra to Ahmedabad and the custody of the dead bodies remained with the police escort and thereafter with the Sola Civil Hospital authorities, administrative and police authorities. The allegation that the dead bodies were transported to Ahmedabad against the wishes of Smt. Jayanti Ravi is proved to be incorrect. Shri M. L. Nalvaya, Mamlatdar, had acted in an irresponsible manner by issuing a letter in the name of Shri Jaydeep Patel in token of having handed over the dead bodies, which are case property, and is being dealt with departmentally for this lapse., While dealing with the allegation against the then Chief Minister in this regard, the final report has analyzed the same in the following words: Despatch of dead bodies to Ahmedabad – the allegations as mentioned in the complaint dated 08‑06‑2006 of Smt. Jakia Nasim are vague and general in nature. Regarding the specific allegation of the decision to take the dead bodies of Godhra train victims to Ahmedabad, it has come in evidence that Shri Narendra Modi attended the Assembly on 27‑02‑2002, when Shri Gordhan Zadafia, the then Minister of State (Home), made a brief statement about the Godhra incident. The Chief Minister also informed the Assembly that a proposal for an ex‑gratia payment of Rs. 2 lakhs to each victim was under consideration of the Government. As it was a budget day, the Chief Minister attended the Assembly proceedings and left for Godhra thereafter. At the Godhra Collectorate, after holding discussions, a unanimous decision was taken that the dead bodies which had been identified should be handed over to their relatives at Godhra itself and those bodies whose legal heirs or guardians had not come could be sent to Sola Civil Hospital, Ahmedabad, since the deceased were scheduled to travel to Ahmedabad by Sabarmati Express. It has further come to light that the decision to send the bodies to Sola Civil Hospital was taken after taking into account that the hospital was situated on the outskirts of Ahmedabad City and thus away from the crowded area for security reasons. It has also come to light that out of 58 dead bodies, four bodies belonging to Dahod, Vadodara, Panchmahal and Anand districts were handed over to their legal heirs/guardians after identification at Godhra itself. The remaining 54 dead bodies were sent under police escort to Sola Civil Hospital, Ahmedabad and Shri Jaydeep Patel of Vishwa Hindu Parishad accompanied them. Smt. Jayanti Ravi, the then Collector, Godhra, has categorically denied that the decision was taken against her wishes. As regards the parading of dead bodies, it has come to light that Shri M. L. Nalvaya, Mamlatdar, Godhra had issued a letter dated 27.02.2002 addressed to Shri Jaydeep Patel, in which it was mentioned that 54 dead bodies as per the list enclosed were being sent to Ahmedabad through five trucks whose details were given in the said letter. It has further come to light that trucks and escorts were arranged by the Superintendent of Police, Godhra and the convoy carrying the dead bodies left Godhra around midnight, reached Sola Civil Hospital, Ahmedabad between 0330 hrs and 0400 hrs on 28.02.2002, and were taken charge from Shri Jaydeep Patel by the Deputy Collector in the presence of the Medical Superintendent, Police Inspector, Sola Police Station, Collector, Deputy Commissioner of Police Zone‑I and several other police and administrative officials. It has further come to light that around thirty‑five identified dead bodies were handed over to their relatives by about 1300 hrs on 28.02.2002. It has also transpired that twenty‑five dead bodies were that of persons belonging to Ahmedabad, two of Kadi‑Mehsana, five of Anand, two of Sabarkantha and one of Rajkot. The remaining nineteen dead bodies remained unidentified and were cremated together on 28.02.2002 by the Hospital, District Administrative and Police officials on the same evening after retaining their DNA samples in Gota cremation ground nearer to the hospital. The twelve dead bodies belonging to Ramol and Khokhra were taken in vehicles and cremated at Hatkeshwar cremation ground. The thrust of the opinion formed by the Special Investigation Team upon analyzing the relevant materials in connection with this allegation is that the decision to carry the dead bodies from Godhra to Ahmedabad for being handed over to their relatives was a unanimous decision taken at the Godhra Collectorate. This decision was taken as most of the passengers were to travel to Ahmedabad and their relatives had not reached or were unable to reach Godhra to collect their bodies. It was also decided that bodies would be carried to Sola Civil Hospital located on the outskirts of Ahmedabad City and thus away from the crowded area for security reasons. Most of the dead bodies (54 unclaimed at Godhra) were of persons who were ordinarily residing in and around Ahmedabad. After the bodies were carried to Ahmedabad hospital under police escort, thirty‑five bodies could be identified and were handed over to their relatives on 28‑02‑2002. The remaining nineteen bodies were cremated together by police and the civil administration on 01‑03‑2002. Out of these nineteen dead bodies, twelve could be identified later by DNA test. Thus, the entire exercise was within the control and supervision of the administration and there was no parading of dead bodies, as alleged. There was no undue haste in carrying the bodies including cremation thereof. The essential protocol was substantially followed in that respect. This opinion recorded by the Special Investigation Team in its final report is consistent with the circumstances and materials gathered during the investigation. It suffices to note that the allegation under consideration is unfounded and has been rightly discarded., The appellant had also placed emphasis on the allegations in the complaint about the Cabinet Ministers positioning themselves in the City Police Control Room and issuing instructions, to buttress their argument about State‑sponsored violence, as stated in the affidavit filed by Mr. R. B. Sreekumar. This allegation has been thoroughly enquired into by the Special Investigation Team and analysis of the materials can be discerned from pages 266 to 269 of the final report. The same reads thus: Cabinet Ministers I. K. Jadeja and Ashok Bhatt were positioned in the Director General of Police office and Ahmedabad City Control Room respectively by the Chief Minister. During the course of enquiries into this allegation Shri R. B. Sreekumar has stated that either on 1st or 2nd March 2002, Shri K. Chakravarthi criticised the Government about the positioning of Shri I. K. Jadeja in the Director General of Police's office after the Godhra incident and was feeling depressed, as the presence of the Minister in his chamber had adversely affected his supervision of the riot situation. He also stated that he personally saw Shri I. K. Jadeja, Cabinet Minister, using the official telephone of the Director General of Police in his chamber. Shri Ashok Narayan, the then Assistant Commissioner of Police (Home), has stated that on 28‑02‑2002, two high‑level meetings were called by the Chief Minister, one in the early morning and the other late in the evening, which were attended by him, the acting Chief Secretary, the Director General of Police and the Additional Director General (Intelligence). In the meeting held in the morning, the law and order situation was reviewed by the Chief Minister. According to Shri Ashok Narayan, he does not recall any instructions given by the Chief Minister to the Director General of Police and the Commissioner of Police, Ahmedabad that Shri Ashok Bhatt and Shri I. K. Jadeja would sit in the Ahmedabad City Police Control Room, Shahibaug and State Control Room, Gandhinagar respectively and assist/help the police in their operation. However, Shri K. Chakravarthi has stated that he was informed by Shri Ashok Narayan that it was decided by the Government that Shri I. K. Jadeja would sit in the Director General of Police's office on 28‑02‑2002 to get information about the law and order situation in the State, as the State Control Room was located in his office. Shri Ashok Narayan also informed him that Shri Ashok Bhatt would similarly sit in the Ahmedabad City Police Control Room situated in the office of the Commissioner of Police, Ahmedabad City. On this Shri K. Chakravarthi told him that it would be better if the Ministers got the information through the Control Room in the Home Department as he was bound to report all the information to the Home Department. Thereupon, Shri Ashok Narayan informed Shri Chakravarthi that no such facility was available in the Home Department and therefore the Ministers would visit their offices. Shri Chakravarthi has further stated that Shri I. K. Jadeja visited his office on 28‑02‑2002 and sat in his chamber for 15‑20 minutes. According to Shri Chakravarthi, he could not have much conversation with him, as he remained extremely busy with the telephone calls being received by him from the various police officers. Shri Chakravarthi thereafter asked someone to shift the Minister to an empty chamber in his office and this was done. Shri Chakravarthi was not aware as to what Shri Jadeja did in that room as he himself remained awfully busy with the telephone messages and follow‑up actions with the prevailing bandh situation in the State. Later, he came to know that Shri Jadeja had left his office. Enquiries conducted by Shri Chakravarthi with his Staff Officer and Officer of the State Control Room revealed that there was no interference from Shri Jadeja on the functioning of the State Control Room on that day. Shri Chakravarthi has also stated that to the best of his knowledge, Shri Jadeja did not visit his office subsequently. Regarding the positioning of Shri Ashok Bhatt in Ahmedabad City Control Room, Shahibaug, Shri Chakravarthi denied personal knowledge and stated that the Commissioner of Police, Ahmedabad City would be in a better position to clarify that matter., Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation (Security), has claimed that he attended a meeting at the Chief Minister's residence at 1030 hrs on 28‑02‑2002 along with the Director General of Police and the Additional Director General (Intelligence). After the meeting, he returned to his chamber on the second floor of Police Bhavan at about 1100 hrs and shortly thereafter went to meet the Director General of Police on the first floor of the same building. When he entered the Director General of Police's chamber he found that, as instructed after the conclusion of the Chief Minister's meeting, two Cabinet Ministers of Gujarat, namely Shri Ashok Bhatt and Shri I. K. Jadeja, had already arrived and were sitting on a sofa‑set in the Director General of Police's chamber. He further stated that Shri G. C. Raiger, the then Additional Director General (Intelligence), and Shri Maniram, the then Assistant Deputy Officer (Law & Order), were also present there. Shri Sanjiv Bhatt briefed the Director General of Police and after taking tea, he returned to his chamber. Shortly thereafter, Shri Sanjiv Bhatt went to the State Control Room on the first floor to collect some documents and saw Shri I. K. Jadeja and his supporting staff sitting in the chamber of Deputy Superintendent of Police, Control Room. Finding this a little odd, Shri Sanjiv Bhatt went to the Director General of Police and informed him that it would be improper to permit outsiders in the State Control Room and asked him whether the Minister and his supporting staff could be shifted from the State Control Room. The Director General of Police agreed with his decision and thereafter, Shri Sanjiv Bhatt again went to the Control Room and requested Shri I. K. Jadeja to accompany him as his presence in the Control Room would hamper the smooth functioning of the State Control Room during such a critical period, whereupon the latter got up and followed him. According to Shri Sanjiv Bhatt, he took Shri Jadeja, Minister, to an empty chamber of Shri P. C. Thakur, the then Inspector General of Police, and requested him to make himself comfortable and contact them for any assistance or requirement. Shri Chakravarthi was informed about it. Shri Sanjiv Bhatt has also stated that subsequently he learned that Shri Jadeja left the Police Bhavan sometime in the afternoon after having lunch. Shri Sanjiv Bhatt was not aware about the presence of Shri Jadeja in the Police Bhavan on the subsequent days, but he recollects that some of the supporting staff of Shri Jadeja were seeking certain information from the State Intelligence Bureau on that day and on subsequent two or three days. However, this version of Shri Sanjiv Bhatt is contradicted by the call detail records of his Government mobile phone number 9825049398, which shows that on 28‑02‑2002, he remained at Ahmedabad till 1057 hrs at his residence and as such he could not have attended a meeting at the Chief Minister's residence at 1030 hrs as claimed by him. Similarly, his claim of having seen Shri I. K. Jadeja, the then Minister, around 1100 hrs in the Director General of Police's office is also falsified by the call detail records of his mobile phone insofar as he could not have reached the Director General of Police's office, Gandhinagar before 1130 hrs from his residence in Memnagar, Ahmedabad., Shri I. K. Jadeja, the then Minister of Urban Housing, Roads & Building and Capital Projects, has stated that on 28‑02‑2002, Shri Gordhan Zadafia, the then Minister of State (Home), had requested him to remain present in the Director General of Police's office in Police Bhavan, Gandhinagar, to see that in case any information was received in the Control Room about any rioting incident or request for extra police force or any other issue of importance, then the same should be passed on to the Director General of Police, Home Minister etc. In view of this request, he remained present in the office of the Director General of Police for three to four hours for the next three to four days. However, he does not recollect what work was done by him, but in case some information was received about some incident from party workers or common people, the same was passed on to the Director General of Police for necessary action. He has denied having contacted or instructed any of the police officers over the telephone installed in the office of the Director General of Police to take action in a particular manner. He has categorically stated that he did not interfere with the work of the Director General of Police or disturb the police officers in the discharge of their official duties. He does not remember using the telephone installed in the Director General of Police's office. He has also stated that the Director General of Police had not shared any information with him and therefore, he left the Police Bhavan within a few minutes on subsequent occasions., Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, has stated that it was incorrect to say that Shri Ashok Bhatt, the then Health Minister, was stationed at Shahibaug Control Room on 28‑02‑2002 to guide the police force in controlling the law and order situation. He has further stated that Shri George Fernandes, the then Union Defence Minister, visited Ahmedabad on 01‑03‑2002 and came to the Commissioner’s office to find out whether the Army had been deployed in the State or not. Shri Fernandes reached the Commissioner’s office around 1000 or 1030 hrs and asked Shri Pande about the deployment of the Army, to which the latter said that they could check from the Control Room. Both of them went to the Control Room downstairs. According to Shri Pande, Shri Ashok Bhatt, who had been waiting for Shri Fernandes in the Circuit House, also came to the Commissioner’s office to meet Shri Fernandes and entered the Control Room. Shri Pande has also stated that Shri Fernandes and Shri Ashok Bhatt remained in the Control Room for about ten minutes and then left the Commissioner’s office. According to Shri Pande, during this visit to the Control Room, some of the press and media persons were also present and as such it was somehow made to appear that Shri Ashok Bhatt had come to monitor the Control Room. Finally, Shri Pande has stated that Shri Ashok Bhatt was never deputed to Shahibaug Police Control Room to guide or advise the police. According to Shri Ashok Narayan, he does not recall instructions given by the Chief Minister, which were conveyed by him either to the Director General of Police or the Commissioner of Police, Ahmedabad City, to the effect that Shri Ashok Bhatt and Shri I. K. Jadeja would sit in the Ahmedabad City Police Control Room, Shahibaug and State Control Room, Gandhinagar respectively and assist/help the police. Late Ashok Bhatt had earlier stated that he might have visited Ahmedabad City Control Room for about five to ten minutes on 28‑02‑2002. However, he has denied interfering with the police work, as being a senior minister he had to maintain his dignity and status. Again on 01‑03‑2002, he admitted to having visited the Shahibaug Control Room for about ten minutes to meet Shri George Fernandes, who had gone to the Commissioner’s office. The call detail records of Government mobile phone number 9825039877 of Late Ashok Bhatt show that he returned from Godhra to Ahmedabad on 28‑02‑2002 at about 05:16:51 hrs. Thereafter, the call details do not show his location till 15:50:43 hrs on 28‑02‑2002, when the location was traced to Koba Circle, Gandhinagar. During this period, it is presumed that he was at Gandhinagar. His location on 28‑02‑2002 at 16:16:37 hrs to 17:47:22 hrs was shown as Shahibaug Kedar Tower, Ahmedabad City, which would conclusively prove that during this period he attended the Chief Minister’s press conference at Circuit House Annex, Shahibaug, Ahmedabad City. Thereafter, again the location was seen at 17:59:22 hrs at Koba Circle, Gandhinagar, which shows that he was returning to Gandhinagar. It may thus be seen that these call details would conclusively establish that Late Ashok Bhatt did not visit Shahibaug Police Control Room on 28‑02‑2002. It would not be out of place to mention here that the matter was more than seven years old when Late Ashok Bhatt and others were questioned and as such the documentary evidence is to be relied upon instead of depending upon the memory of the different individuals, who have given different versions., Shri Nissar Mohammad Malik, the then Police Sub‑Inspector, who was on duty in the Police Control Room, Ahmedabad City from 28‑02‑2002 at 0800 hrs to 02‑03‑2002 at 0800 hrs, has stated that Shri George Fernandes, the then Union Defence Minister and Shri Harin Pathak, the then Minister of State for Defence, had come to the Police Control Room, Ahmedabad City at 1005 hrs on 01‑03‑2002 and left at 1025 hrs. He has confirmed that the wireless message in this regard is under his signature.
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He has denied knowledge about the visit of Late Ashok Bhatt, the then Health Minister to the Police Control Room either on 28‑02‑2002 or 01‑03‑2002. Shri V.R. Patel, the then Police Sub‑Inspector, has also denied the visit of Late Ashok Bhatt to the Ahmedabad City Police Control Room on those dates. Shri Parbatsinh A. Dholetar, the then Police Sub‑Inspector, Ahmedabad City Police Control Room, who was on duty on 28‑02‑2002 from 08:00 hrs to 12:00 hrs and 20:00 hrs to 24:00 hrs, has denied the visit of any Minister to the Police Control Room. Shri Maganbhai M. Limbachia, the then Police Inspector, who was on duty from 08:00 hrs to 20:00 hrs on 01‑03‑2002 in State Police Control Room, Police Bhavan, Gandhinagar, has denied the visit of any Minister in the Control Room., It may thus be seen that Shri K. Chakravarthi, the then Director General of Police, has categorically stated that Shri I.K. Jadeja did visit his office, but did not go to the State Control Room and was made to sit in an empty chamber. Shri I.K. Jadeja himself has confirmed that he was shifted to an empty chamber near the Director General’s chamber and that the Director General did not share any information with him. Shri K. Chakravarthi has confirmed that Shri Jadeja did not interfere with their work., Shri I.K. Jadeja has taken the plea that it is an established practice in Gujarat State that in case of any natural calamities or serious law and order situation the Ministers of the various departments extend their help in handling the crisis. No material is available to rebut his plea., Late Ashok Bhatt had admitted earlier that he might have visited Ahmedabad City Police Control Room on 28‑02‑2002 for a few minutes, but the call detail records of his official mobile phone show his location at Shahibaug Kedar Tower between 16:16:37 and 17:47:22 on 28‑02‑2002, when he attended the Chief Minister’s press conference. This conclusively proves that he did not visit the Police Control Room on that date. Moreover, the officials of Ahmedabad City Police Control Room have denied that Late Ashok Bhatt ever visited the said Control Room either on 28‑02‑2002 or 01‑03‑2002., In view of the aforesaid position, it is established that Shri I.K. Jadeja did visit the Director General’s office, but did not enter the State Control Room or interfere with the working of the police, and the Director General also did not share any information with him. It could not be established that Late Ashok Bhatt visited Ahmedabad City Police Control Room either on 28‑02‑2002 or 01‑03‑2002. As per his own admission, he might have visited the Control Room for a few minutes on those dates. Therefore, the allegation that the two Ministers were positioned in the State Control Room and Ahmedabad City Police Control Room by the Chief Minister is not fully established., Significantly, Shri I.K. Jadeja remained at State Police headquarters for two to three hours as per his own admission but did not interfere in the police functioning. Late Ashok Bhatt’s presence in the City Police headquarters on the relevant day, if any, was very negligible and cannot be termed of any material value. In the absence of documentary or oral evidence of any directions by those two Ministers to police officials, it cannot be said at this stage that they conspired in the perpetration of riots or took any action for controlling the riots., The final report noted: ‘Presence of two Ministers at police control room: It has been alleged that the Chief Minister took a decision to allow Shri Ashok Bhatt, the then Health Minister, and Shri I.K. Jadeja, the then Minister of Urban Development and Urban Housing, to sit in Ahmedabad City Police Control Room and State Control Room respectively.’ Shri K. Chakravarthi stated during further investigation that Shri Ashok Narayan, Additional Chief Secretary (Home), informed him that it was decided by the Government that Shri I.K. Jadeja would be in his office to secure some information about the law and order situation in the State, as the State Control Room is situated in the Director General’s office. Shri Ashok Narayan further informed him that Late Ashok Bhatt would sit in Ahmedabad City Police Control Room., Shri Chakravarthi had reservations in this matter and advised the Additional Chief Secretary (Home) that it would be better if the Ministers obtained the information from the Control Room in the Home Department. However, Shri Ashok Narayan informed him that no such facility was available in the Home Department, and therefore the two Ministers would come to the respective Control Rooms. According to Shri Chakravarthi, Shri I.K. Jadeja came to his office on the forenoon of 28‑02‑2002 and sat in his chamber for about 15‑20 minutes. Shri Chakravarthi could not attend to him as he was extremely busy with telephone calls from across the State. He asked someone to shift the Minister to an empty chamber in his office, which was done. He was not aware of what Shri Jadeja did while in the Director General’s office, as he was busy with his work on that day when rioting was taking place at many locations. Later, Shri Chakravarthi learned that Shri Jadeja had left his office. His enquiries with the staff of the State Control Room revealed that Shri Jadeja did not interfere with the functioning of the Control Room in any manner., Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City, stated that it was incorrect to say that Shri Ashok Bhatt, the then Health Minister, remained stationed at Shahibaug Control Room on 28‑02‑2002 to guide the police force in controlling the law and order situation. He specifically asserted that Shri Bhatt did not visit the Commissioner’s office Control Room on 28‑02‑2002. He further stated that Shri George Fernandes, the then Union Defence Minister, arrived at Ahmedabad on the night of 28‑02‑2002 and reached the Commissioner’s office on 01‑03‑2002 around 10:00 or 10:30 hrs and asked Shri Pande about the deployment of the Army, to which the latter said that he would check the same from the Control Room. Both of them went to the Control Room downstairs. According to Shri Pande, Shri Ashok Bhatt, who had been waiting for Shri Fernandes in the Circuit House, also came to the Commissioner’s office to meet Shri Fernandes and entered the Control Room. Shri Pande stated that Shri Fernandes and Shri Ashok Bhatt remained in the Control Room for about ten minutes and then left the Commissioner’s office. During this time, some press and media persons were also present, and it was made to appear that Shri Ashok Bhatt had come to monitor the Control Room. Finally, Shri Pande stated that Shri Ashok Bhatt was never deputed to Shahibaug Police Control Room to assist the police., According to Shri Ashok Narayan, he does not recall any instructions given by the Chief Minister, which were conveyed by him either to the Director General of Police or Ahmedabad City Police to the effect that Shri Ashok Bhatt and Shri I.K. Jadeja would sit in the Ahmedabad City Police Control Room, Shahibaug, and State Control Room, Gandhinagar respectively and assist the police., Shri I.K. Jadeja, the then Urban Development Minister, stated that it was an established norm in Gujarat State that in case of any natural calamities or serious law and order situation, the Ministers of various departments extend their help in handling the crisis. He recalled that on 28‑02‑2002 he had volunteered, if he could be of any help in the prevailing situation, and Shri Gordhan Zadafia, the then Minister of State (Home), told him to remain present in the Police Bhavan and to see that, in case any information was received in the State Control Room about any rioting incident and any request for extra police force, the same should be passed on to the Home Department. Consequently, he went to the Director General’s office around 11:00 hrs and stayed there for two to three hours. He interacted with the Director General and informed him that if and when his help was required he could be asked. He denied entering the State Police Control Room and stated that there was no question of any interference., However, Shri Gordhan Zadafia, the then Minister of State (Home), denied having given any suggestion to Shri I.K. Jadeja. Shri Jadeja further stated that he visited the Director General’s office on the next one or two days also, but stayed there for a few minutes only. He also stated that the Director General had not shared any information with him and therefore he left Police Bhavan in a few minutes on both occasions., Late Ashok Bhatt earlier stated that he might have visited Ahmedabad City Control Room for about five to ten minutes on 28‑02‑2002. However, he denied interfering with the police work, as, being a senior minister, he had to maintain his dignity and status. Again on 01‑03‑2002, he admitted to have visited the Shahibaug Control Room for about ten minutes to meet Shri George Fernandes, who had gone to the Commissioner’s office., The call detail records of mobile phone number 9825039877 of Late Ashok Bhatt show that he returned from Godhra to Ahmedabad on 28‑02‑2002 at about 05:16:51 hrs. Thereafter, the call details do not show his location till 15:50:43 hrs on 28‑02‑2002, when the location was traced to Koba Circle, Gandhinagar. During this period, it is presumed that he was at Gandhinagar. His location at 16:16:37 hrs to 17:47:22 hrs was shown as Shahibaug Kedar Tower, Ahmedabad, which would conclusively prove that during this period he attended the Chief Minister’s press conference at Circuit House Annex, Shahibaug, Ahmedabad. Thereafter, his location was seen at 17:59:22 hrs at Koba Circle, Gandhinagar, indicating that he was returning to Gandhinagar. These call details show that he did not visit Shahibaug Police Control Room on 28‑02‑2002., Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation (Security), stated that he attended a meeting at the Chief Minister’s residence on the morning of 28‑02‑2002 along with the Director General of Police and Additional Director General (Intelligence). After the meeting, he returned to his chamber on the second floor of Police Bhavan at about 11:00 hrs and shortly thereafter went to meet the Director General on the first floor of the same building. According to Shri Bhatt, when he entered the Director General’s chamber he found that, as instructed after the conclusion of the Chief Minister’s meeting, two Cabinet Ministers of Gujarat, namely Shri Ashok Bhatt and Shri I.K. Jadeja, had already arrived and were sitting on a sofa set in the Director General’s chamber. He further stated that Shri G.C. Raiger, the then Additional Director General (Intelligence), and Shri Maniram, the then Additional Director General (Law and Order), were also present there. Shri Sanjiv Bhatt briefed the Director General and, after taking tea, returned to his chamber., Shortly thereafter, Shri Sanjiv Bhatt went to the State Control Room on the first floor to collect some documents and saw Shri I.K. Jadeja and his supporting staff sitting in the chamber of Deputy Superintendent of Police, Control Room. Finding this a little odd, he went to the Director General and informed him that it would be improper to permit outsiders in the State Control Room and asked whether the Minister and his supporting staff could be shifted from the State Control Room. The Director General agreed. Shri Sanjiv Bhatt then went to the Control Room and requested Shri I.K. Jadeja to accompany him, as his presence in the Control Room would hamper the smooth functioning of the State Control Room during such a critical period. Shri Jadeja got up and followed him. Shri Sanjiv Bhatt took Shri Jadeja to the chamber of Shri P.C. Thakur, the then Inspector General of Police, which was vacant at that time, and requested him to make himself comfortable and contact them for any assistance or requirement. Shri Chakravarthi was informed about it., Shri Sanjiv Bhatt also stated that subsequently he learned that Shri Jadeja left the Police Bhavan sometime in the afternoon after having lunch. Shri Sanjiv Bhatt was not aware of the presence of Shri Jadeja in the Police Bhavan on the subsequent days., During further investigation, Shri Nissar Mohammad Malik, the then Police Sub‑Inspector, who was on duty at the Police Control Room, Ahmedabad City from 28‑02‑2002 at 08:00 hrs to 02‑03‑2002 at 08:00 hrs, stated that Shri George Fernandes, the then Union Defence Minister, and Shri Haren Pathak, the then Minister of State for Defence, came to the Ahmedabad City Police Control Room at 10:05 hrs on 01‑03‑2002 and left at 10:25 hrs. He confirmed the wireless message in this regard under his signature. He denied knowledge about the visit of Late Ashok Bhatt, the then Health Minister, to the Police Control Room either on 28‑02‑2002 or 01‑03‑2002., Shri V.R. Patel, the then Police Sub‑Inspector on duty in the Police Control Room, also denied the visit of Late Ashok Bhatt to the Ahmedabad City Police Control Room on those dates. Shri Parbatsinh A. Dholetar, the then Police Sub‑Inspector, Ahmedabad City Police Control Room, who was on duty on 28‑02‑2002 from 08:00 hrs to 12:00 hrs and 20:00 hrs to 24:00 hrs, denied the visit of any Minister to the Police Control Room. Shri Maganbhai M. Limbachia, the then Police Inspector, who was on duty from 08:00 hrs to 20:00 hrs on 01‑03‑2002 in State Police Control Room, Police Bhavan, Gandhinagar, denied the visit of any Minister in the Control Room., In view of the aforesaid position, it is established that Shri I.K. Jadeja visited the Director General’s office but did not go to the State Control Room and was made to sit in a vacant chamber. Shri I.K. Jadeja confirmed that he was shifted to a vacant chamber near the Director General’s chamber and that the Director General did not share any information with him. Shri K. Chakravarthi, the then Director General of Police, confirmed that Shri Jadeja did not interfere with their work. Shri I.K. Jadeja reiterated that it is an established practice in Gujarat State that in case of any natural calamities or serious law and order situation, the Ministers of the various departments extend their help in handling the crisis., Late Ashok Bhatt had admitted earlier that he might have visited Ahmedabad City Police Control Room on 28‑02‑2002 for a few minutes, but the call detail records of his official mobile phone show his location at Shahibaug Kedar Tower between 16:16:37 and 17:47:22 on 28‑02‑2002, when he attended the Chief Minister’s press conference, which conclusively proves that he did not visit the Police Control Room on that date. Moreover, the officials of Ahmedabad City Police Control Room have denied that Late Ashok Bhatt ever visited the said Control Room either on 28‑02‑2002 or 01‑03‑2002., It is therefore established that Shri I.K. Jadeja visited the Director General’s office but did not enter the State Police Control Room or interfere with the working of the police, and the Director General also did not share any information with him. It could not be established that Late Ashok Bhatt visited Ahmedabad City Police Control Room either on 28‑02‑2002 or 01‑03‑2002. As per his own admission, he might have visited the Control Room for a few minutes on those dates. Significantly, Shri I.K. Jadeja remained at State Police headquarters for two to three hours as per his own admission but did not interfere in the police functioning. Late Ashok Bhatt’s presence in the City Police headquarters on the relevant day, if any, was very negligible and cannot be termed of any material value., Shri Narendra Modi has totally denied that such a decision was taken by him. He has denied any personal knowledge about the visit of these two Ministers to the respective Control Rooms., It may thus be seen that both Ministers did visit the respective Control Rooms, but there is no evidence to prove that they interfered with the law and order situation. Nor is there any evidence to indicate that they visited the two Control Rooms at the direct instance of the Chief Minister. Since there is nothing to prove that these Ministers interfered or gave any direction in maintenance of law and order, no offence is made out. Further, in the absence of documentary or oral evidence of any directions by those two Ministers to police officials, it cannot be said at this stage that they conspired in the perpetration of riots or took any action for controlling the riots., The learned Amicus Curiae recorded observations regarding the allegation that Cabinet Ministers Jadeja and Shri Ashok Bhatt were positioned in the Director General’s office and Ahmedabad City Control Room on 28‑02‑2002. The Special Investigation Team (SIT) concluded that this was a controversial decision taken by the Government to place two ministers in the Director General’s office and Ahmedabad City Control Room. However, the SIT concluded that there is no evidence that the two ministers passed any instructions to the police to deal with riots in a particular manner., The SIT observed that the positioning of two Cabinet Ministers, who did not hold the home portfolio, in the Director General’s office and the State Police Control Room respectively reflects a direct instruction from the Chief Minister. Though Shri Jadeja says that he went to the Director General’s office on instructions of Shri Gordhan Zadafia, Minister of State (Home), this is highly unbelievable. It is obvious that the Chief Minister positioned these two Ministers in highly sensitive places which should not have been done. These two Ministers could have taken active steps to defuse the riots, but they did nothing, which speaks volumes about the decision to let the riots happen., The SIT noted that the allegation is only partially proved as per the SIT that these two Ministers immediately called the Chief Minister and told him about the situation at Gulberg and other places. The SIT merely relied upon the statements of police officers to conclude that these two Ministers did not give any instructions to the Police Department, but it appears highly unlikely that two Cabinet Ministers of the Government of Gujarat would not have given some kind of directions when the Chief Minister had directed them to remain present., It is obvious that the two Ministers were fully aware of the developing situation in Gulberg Society, Naroda Patiya etc. in Ahmedabad City. They were duty bound to convey the situation to the Chief Minister and were required to do everything possible to save loss of lives. If the stand of the Chief Minister that these two Ministers were positioned so as to effectively control the law and order situation is correct, then there would have been a far quicker action to control the riots in Gulberg Society and Naroda Patiya at least., No tangible action seems to have been taken by the police high‑ups in the Police Department, namely the Commissioner of Police, to control the riots at Gulberg Society. Gulberg Society is not very far away from the Office of the Commissioner of Police, Ahmedabad. These observations have been dealt with by the SIT at pages 434‑439 of the original copy of the final report forming part of the Convenience Compilation of respondent No. 2., It was then urged that the phone call records produced by Mr. Rahul Sharma before the SIT on 2 July 2009, being CDs containing tower details of Ahmedabad and Godhra, had not been reckoned in proper perspective. It was alleged that they would reveal a nexus between the BJP leaders and police officers during the riots. This aspect was not investigated by the SIT., The SIT analyzed the allegation and noted that the CDs collected by Mr. Rahul Sharma from M/s. Cellforce were copied by him on his personal computer at home and operated multiple times; he was unable to produce the original received from the original source (cell company). When the SIT sought to verify the mobile phones of suspected persons, the cell companies informed that the data was not retained or available due to the passage of time., The SIT reported that the CD regarding telephone calls by BJP leaders and police officers during the riots was not probed into by the Investigating Officers of the Naroda‑Patiya and Gulberg Society cases. The CD was produced by Rahul Sharma, Superintendent of Police, Central Bureau of Investigation, before the Nanavati Commission. Enquiries revealed that Shri Rahul Sharma was posted as Deputy Commissioner of Police, Control Room, Ahmedabad City on 08‑04‑2002. On 07‑05‑2002, he was instructed by the then Commissioner of Police, Ahmedabad City, Shri P.C. Pande, to report to the Crime Branch, Ahmedabad City and assist the then Additional Commissioner of Police, Crime Branch, Shri A.K. Surolia, in the investigation of serious riot‑related offences. Shri Rahul Sharma was also informed by Shri P.C. Pande that there would be no formal written order in this regard. Accordingly, Shri Sharma reported to Shri Surolia on the same afternoon., As a matter of prudence, he decided to collect scientific evidence in support of the investigation. Shri Rahul Sharma stated that he had information about the extensive use of mobile phones in the alleged riots throughout the State including Ahmedabad City. Accordingly, he drafted letters calling for data from two mobile phone service providers, Cellforce (now Vodafone) and AT&T (now Idea). The letters were issued under the signature of the then Assistant Commissioner of Police, Crime Branch, Shri S.S. Chudasama, who was also investigating the two serious cases of massacres at Naroda Patiya and Gulberg Society., According to Shri Rahul Sharma, the information requested was the telephone directory of the two mobile phone companies, call time, calling number, location of the mobile phone when they were calling or receiving calls, etc., for the period from 25‑02‑2002 to 04‑03‑2002 in respect of all mobile phones operating from Ahmedabad city area. He further stated that the idea behind the collection of this data was, among others, to establish the location of the alleged perpetrators of crime and their accomplices at the time of commission of the offence, and to prove the contact established between the different accused persons as well as erring policemen, bureaucrats and politicians., In response to the letter sent by Shri Chudasama, data was sent in the correct format by AT&T within a week on a CDR. Shri Rahul Sharma stated that he personally went to collect the said information from AT&T at their office in Suman Towers in Gandhinagar. The data provided by AT&T was in TEXT format and contained all the relevant information that had been asked for. Shri Rahul Sharma copied the data onto his computer kept at his home and the CD was returned to Shri Chudasama. This copying was required to be done if the data from the two mobile phone companies were to be analysed together., Shri Rahul Sharma further stated that the data from Cellforce was sent quite late and by that time Shri A.K. Surolia had been sent on deputation to the Border Security Force and Shri P.P. Pandey had taken over as the Joint Commissioner of Police, Crime Branch. According to Shri Rahul Sharma, the information from AT&T arrived while Shri Surolia was in charge of the Crime Branch, but the information from Cellforce did not arrive during his tenure. The information from Cellforce came during Shri Pandey’s tenure as the Joint Commissioner of Police, Crime Branch, Ahmedabad City, but the data was sent as an MS Access database. Since Shri Rahul Sharma had no knowledge of MS Access, he took the assistance of Police Sub‑Inspector Shri K.J. Chandana, who was in the computer section of Ahmedabad Police Commissionerate., Initially, the data sent was not as had been requested and the correct data could be obtained only after several attempts. On all these occasions, it was Shri Chandana who usually went to the office of Cellforce to get the correct data. As per Rahul Sharma, the final CDR containing the data was not received through Shri Chandana, but was forwarded to him by Shri P.P. Pandey through a DO letter written in Gujarati. In the DO letter, it was mentioned that the CDs had been prepared under his (Rahul Sharma’s) instructions and that he alone should analyse the data., Shri Rahul Sharma stated that Cellforce had also furnished data in respect of mobile phones operating from Godhra though the same had not been called for. After a few days of receiving this letter, he was transferred out and posted as the Commandant, State Reserve Police Force, Group XI, Vav, District Surat. He does not remember whether the CDs sent by Cellforce were two in number or one, but given the volume of data received, he believes there should have been two CDs. He has further stated that he had no knowledge of MS Access at that particular point of time, and therefore could not analyse or interpret the contents of the CDs. However, he admitted to have copied the contents of the CD(s) sent by Cellforce onto the hard disk of his personal computer kept at home., Shri Rahul Sharma stated that after he received his transfer orders in the first week of July 2002, he instructed Shri Chandana, Police Sub‑Inspector, to deliver the original CD(s) personally to Shri P.C. Pandey. Shri Chandana visited the Joint Commissioner’s office a couple of times but did not find Shri Pandey and therefore came back with the CD(s). During this period the CD(s) remained in the possession of Shri Chandana. Shri Rahul Sharma also stated that, probably on the second last day of his tenure as Deputy Commissioner, Control Room, he called a rider from the Control Room, took the CD(s) from Shri Chandana and directed the rider to hand over the CD(s) to Shri P.C. Pandey. The rider handed over the CD(s) to Shri Pandey and reported this fact to him. Shri Rahul Sharma is not in a position to identify the rider after so many years., He also stated that at that particular time his personal assistant was on leave on account of his son’s marriage and therefore he could not send the CD(s) through a formal letter. Shri Rahul Sharma reiterated that he never analysed the information contained in the CDs while posted as Deputy Commissioner, Control Room, and learnt basic MS Access only in 2004 after he joined the Central Bureau of Investigation on deputation. He stated that it was a practice in Gujarat Police to keep a copy of case diaries and other important documents of cases that had been investigated or supervised by an officer. Consistent with this practice, he wanted to keep a copy of the CD(s) data that had been copied onto his home computer’s hard disk. He also wanted to have the data on one CD for compactness. He consulted Shri Chandana in this regard, who advised him to zip the files so that they would be compressed. He did accordingly and the data from the CDs sent by AT&T and Cellforce was copied onto a single CD, which he retained. He burnt the information on the CD writer installed onto his computer himself.
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Shri Rahul Sharma has stated that he submitted copies of the same CDs containing the zipped data to the Nanavati‑Shah Commission of Inquiry (two copies) on 30‑10‑2004, at the time of his deposition/cross‑examination, and to the Banerjee Committee (one copy) on 22‑11‑2004 at the time of his examination. The original CD first prepared by him was handed over to the Special Investigation Team (SIT) constituted by the Hon'ble Supreme Court of India. Immediately after these CDs were handed over to the Nanavati‑Shah Commission of Inquiry and also to the Banerjee Committee, it was widely reported in the print as well as electronic media that Shri Rahul Sharma had produced copies of the CDs before the Commission as well as the Committee., Shri Tarun Barot, the then Police Inspector, Crime Branch, Ahmedabad City and now Assistant Commissioner of Police, Special Operations Group, Ahmedabad, has stated that he was entrusted with the investigation of Naroda Police Station case crno. I98/02 relating to the death of 11 Muslims killed in the 2002 riots and that he investigated this case from 19‑05‑2002 to 30‑05‑2002 and subsequently from 30‑11‑2002 to 10‑04‑2008. Shri Barot further stated that during the investigation he attempted to collect the call detail records of mobile phones of suspected/accused persons, but the cellular companies informed him that the data was not available. He did not approach Shri Rahul Sharma to obtain the call details because he did not know that Sharma possessed the call details of all numbers operating from Ahmedabad City during the riots period, and no one had told him about it. According to Shri Barot, he did not know whether Shri Rahul Sharma, Superintendent of Police, had handed over a copy of the CDs to the Nanavati‑Shah Commission of Inquiry or the Banerjee Committee appointed by the Railways to enquire into the Godhra incident. Shri Barot also stated that a news item had appeared in an English daily regarding the mobile phone details of Maya Kodnani and Jaydeep Patel and, on the basis of the said news item, both were summoned and interrogated about their location on 28‑02‑2002. Both Mayaben Kodnani and Jaydeep Patel informed that they were present at Sola Civil Hospital. Shri Kodnani confirmed that her mobile phone remained in her possession, whereas Patel claimed that his mobile was left in his car, which was taken away by his driver. Shri Barot further stated that efforts were made to obtain their call details from the mobile service providers, but the same were not provided and therefore the call details could not be obtained, analysed, or cross‑checked., Shri G.L. Singhal, Superintendent of Police, Anti‑Terrorism Squad, who remained the Investigating Officer of the Gulberg Society case and the Naroda Patiya case, has stated that he did not investigate the call detail records of mobile phones or landline details of the accused persons or any other person connected with these cases. He admitted that he became aware of the production of the CDs containing the call details of various calls made/received from mobile phones in Ahmedabad City by Shri Rahul Sharma before the Nanavati‑Shah Commission of Inquiry and the Banerjee Committee, but did not approach him to obtain copies of the CDs containing the CDRs. He further admitted that he did not approach the cellular service providers to obtain the call detail records of the cell phones operating from Ahmedabad City from 27‑02‑2002 onwards. He stated that he interrogated Dr. Mayaben Kodnani, MLA, and Jaydeep Patel, a VHP activist, in the Naroda Patiya case about their locations on 28‑02‑2002, but they denied their presence at the spot at the time of the incident. He could not confront them with their call details as the same were not available with him. This appears to be an intentional lapse on the part of Shri Tarun Barot and Shri G.L. Singhal, and the matter deserves to be dealt with by major penalty departmental proceedings, although no criminal offence is made out against them (emphasis supplied)., In other words, due to the lapse of time, the SIT was not in a position to verify the authenticity of the CDs regarding telephone calls produced by Mr. Rahul Sharma, and in any case the call history by itself would not have been sufficient to suspect commission of any offence, much less a larger criminal conspiracy, which was required to be investigated by the SIT. The opinion formed by the SIT on the basis of available materials collected during investigation was commended to the Magistrate as well as to the High Court of Gujarat. That view needs no departure., The SIT noted that the CDs submitted by Mr. Rahul Sharma were not original case property handed over to the investigating officer of Naroda Police Station, nor were they entered in the register of case property (Muddamal) or informed to the Court of jurisdiction about seizure of such property. Instead, the CDs were produced on 31‑05‑2008, seized by the investigating officer and taken as evidence. These two CDs were collected by the investigating officer from the records of the Nanavati‑Shah Commission of Inquiry. Mr. Rahul Sharma also submitted a third CD containing the same information, obtained from the Commission of Inquiry by Mr. Amresh Bhai N. Patel of Jansangharsh Manch, which was also produced before the investigating officer. In the absence of the original CDs, which were never produced by Mr. Rahul Sharma, it was not possible for the SIT to obtain a certificate of authenticity under Section 65B of the Indian Evidence Act, 1872. The SIT observed that the CDs had been copied by Mr. Rahul Sharma on his computer and the format changed to a zipped file. The MD5 hash value of the files in all three CDs was found to be the same. However, the files containing call detail records or fragments thereof could not be found on the computer storage media. Moreover, due to the lapse of time, seizing the mobile phone of the concerned user after seven years would not serve any fruitful purpose., Every information coming to the investigating agency must be regarded as relevant, but the agency is expected to make enquiries regarding the authenticity of such information and, after doing so, must collect corroborative evidence. In the absence of corroborative evidence, the matter remains merely a suspicion and does not meet the threshold of grave suspicion required for sending the suspect for trial. This is mandated by Section 173(2)(i)(d) of the Code of Criminal Procedure, which requires the investigating officer in his report to indicate whether any offence appears to have been committed and, if so, by whom. The opinion of the investigating officer formed on the basis of materials collected during the investigation must be given due weightage to facilitate the concerned court in taking cognizance of the crime and framing charge if there is ground for presuming that the accused has committed an offence triable under Chapter XIX of the Code., The appellant alleged police inaction that facilitated the riots as part of a conspiracy, giving specific instances. The SIT considered this as allegation No. (xxv) and, after analysing the materials gathered, opined that the circumstances highlighted by the appellant were not sufficient to infer that the named persons had hatched a larger conspiracy to cause mass violence across the State targeting the minority community. The instances cited relate essentially to acts of commission and omission at the ground level and are not indicative of any link to a larger criminal conspiracy. Erring officials identified for their acts at the ground/local level have been proceeded against departmentally. Not every act of commission or omission results in a criminal conspiracy unless the acts are deliberate and there is a meeting of minds of all concerned., Similarly, the allegation that victims of riots and police firings were predominantly from the Muslim community was dealt with as allegation No. (xxx). The incident on 28‑02‑2002 resulted in 17 persons being killed in police firing in Ahmedabad City, which included 11 Hindus and 6 Muslims, showing that there was no discrimination on the part of the police. Shri P.C. Pande, former Commissioner of Police, Ahmedabad City, stated that during the riots it is difficult for the police to identify an individual's community. He further stated that in the succeeding days retaliation started from the Muslim side as well, and wherever force was used by the police, casualties resulted on both sides. According to Shri Pande, it is incorrect to say that the administration and police were collaborating with the rioters to target persons from the minority community., The allegation regarding nepotism in postings, transfers, promotions, etc., facilitating the subversion of the criminal justice system has been rightly discarded as vague and without specific instances. That allegation is noted in paragraph 85 of the complaint dated 08‑06‑2006. The SIT was constituted by this Court to investigate allegations indicating commission of the offence of larger criminal conspiracy and involvement of concerned persons in executing such crime. The SIT was not there to generally enquire into administrative matters of the State, such as postings, transfers and promotions, unless specific input was set forth., The appellant alleged that officers at the grassroots level were not transferred as per State Intelligence Bureau recommendations until the arrival of Shri K.P.S. Gill as Advisor to the Chief Minister, as stated by Shri R.B. Sreekumar in his second affidavit dated 06‑10‑2004 submitted to the Nanavati‑Shah Commission. The SIT dealt with this allegation, noting that officers at the grassroots level were indeed not transferred as per the State Intelligence Bureau's recommendation until Shri Gill's arrival. Shri Sreekumar, after taking over as Additional Director General (Intelligence) on 09‑04‑2002, sent an analytical note on the current communal scenario in Ahmedabad City on 24‑04‑2002 to Shri Ashok Narayan, then Additional Chief Secretary (Home), with a copy to Shri K. Chakravarthi, then Director General of Police. In that report he stated that repeated strong media attacks on Ahmedabad police had a demoralising impact on the confidence and dedication of city police personnel, and that many senior police officers at the decision‑making level had ignored specific instructions from the official hierarchy in favour of direct verbal instructions from senior political leaders of the ruling party. He suggested remedial measures, including the replacement of present incumbents from executive posts at the cutting edge level in cities and districts where police either remained inactive during the riots or collaborated with rioters, and statutory punishment for those who played collaborative roles., The statements of Shri Rahul Sharma (then Superintendent of Police, Bhavnagar), Shri Vivek Srivastava (then Superintendent of Police, Kutch), Shri M.D. Antani (then Superintendent of Police, Bharuch), Shri S.C. Verma (then Deputy Inspector General, Border Range, Kutch‑Bhuj) and Shri R.B. Sreekumar (then Additional Director General (Intelligence)) before the SIT show that, although their transfers occurred immediately after certain events in their jurisdictions, they consider postings and transfers to be the prerogative of the Government and cannot be linked to those events. Shri Rahul Sharma stated that he was on leave on 27‑02‑2002, rushed to Bhavnagar after learning of the Godhra train carnage, and that police succeeded in controlling communal riots by the evening of 02‑03‑2002. He also mentioned a phone call from Shri Gordhan Zadafia on 16‑03‑2002 praising his work but noting an imbalance in deaths caused by police firing. Shri Vivek Srivastava recounted that a VHP‑called Gujarat bandh rally on 28‑02‑2002 in Bhuj proceeded without incident, and that a Muslim family was assaulted in Nakhatrana shortly after the Godhra incident, leading to a case under Section 307 IPC and the arrest of a Home‑Guard Commandant with BJP leanings. Shri M.D. Antani described police arrangements in Bharuch district, noting that only two Muslims died during the riots and three Muslims were killed in police firing on 19‑03‑2002. Shri S.C. Verma explained that a criminal case registered in Radhanpur Police Station after the Godhra carnage involved two Muslims reportedly killed by police firing, but evidence later pointed to private individuals, including MLA Shri Shankar Chaudhary, as responsible. He issued an order for the arrest of the MLA and later transferred to the Principal, State Reserve Police Training Centre, Junagadh, stating that the post was not unimportant and had been upgraded before his posting. Shri R.B. Sreekumar, in multiple affidavits, highlighted alleged pressure on officials to favour the ruling party, delayed curfew imposition on 28‑02‑2002, and his own victimisation, including supersession in promotion, exoneration of charges by the Central Administrative Tribunal, and eventual release of pension and promotion as ordered by the High Court of Gujarat., The testimony of Shri R.B. Sreekumar appears motivated, as he began collecting data and evidence during his posting as Additional Director General (Intelligence) and subsequently recorded conversations with senior officials to use as evidence against the Government. He kept these recordings secret until his supersession in promotion in February 2005 and made them public in his third affidavit filed before the Commission on 09‑04‑2005. Consequently, the credibility of his oral testimony is considerably reduced because it stands uncorroborated. On account of these factors, the allegation based on his testimony is not established.
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Shri Sreekumar stated that on 04-05-2002 Shri K. P. S. Gill, former Director General of Police of Punjab State, who had been deputed as an Advisor to the Chief Minister of Gujarat on law and order matters, convened a meeting of senior police officers at the Central Reserve Police Force group centre in Gandhinagar. Shri K. Chakravarthi, Shri P. C. Pande, Shri R. B. Sreekumar, Shri Maniram and Shri M. K. Tandon attended the meeting. As instructed by Shri Gill each officer gave his assessment of the current situation. Both the Director General of Police and the Commissioner of Police, Ahmedabad City, observed that the situation was normal due to effective police measures., Shri Maniram, who was responsible for maintaining law and order in the state, totally disagreed with the assessment given by the Director General of Police and the Commissioner of Police, Ahmedabad City. According to the statement made by Shri Maniram before the Special Investigation Team, he had informed Shri K. P. S. Gill that tension continued to prevail in Ahmedabad City amongst Hindus and Muslims and that the officers who failed to prevent the riots resulting in loss of life and property in their jurisdiction should be transferred immediately irrespective of their status, and that good officers should be posted in their place., Shri Maniram also mentioned to Shri Gill that wherever effective officers had been posted, the law and order situation was under control, for example in Saurashtra and South Gujarat. In this meeting Shri R. B. Sreekumar fully endorsed the views of Shri Maniram. Shri Sreekumar handed over a copy of his report sent by letter dated 24-04-2002 to Shri Gill and also prepared a separate note at the instance of Shri Gill., According to Shri Sreekumar, Shri K. P. S. Gill called him on 08-05-2002 and informed him that the suggestions and remedial measures indicated in his note were quite relevant and that soon most of the officers at the decision‑making levels in Ahmedabad City would be transferred and a new team of officers positioned., Shri K. Chakravarthi stated that during initial discussions with Shri K. P. S. Gill he, along with Shri Ashok Narayan, understood that the Chief Minister wanted to transfer the senior officers of Ahmedabad City and sought an alternate proposal. Shri Chakravarthi gave his suggestion to Shri Ashok Narayan, who prepared a note and submitted it to the Chief Minister for approval. Shri K. P. S. Gill later asked Shri Chakravarthi for his views on these transfers, to which Shri Chakravarthi replied that he had given the suggestions. He further stated that the note was approved by the Chief Minister and the transfers came into force at the end of the first week of May 2002. He added that the matter of shifting jurisdictional officers was already under consideration and was not taken up at the instance of either Shri Maniram or Shri R. B. Sreekumar., In view of this, the allegation of Shri Sreekumar that the transfers of the jurisdictional officers suggested by the State Intelligence Bureau on 24-04-2002 were not carried out until the arrival of Shri K. P. S. Gill, an Advisor to the Chief Minister, is without any basis. This analysis has been criticised on the ground that Mr. K. P. S. Gill has not been examined by the Special Investigation Team., The non‑examination of Mr. K. P. S. Gill by the Special Investigation Team can have no adverse impact on the otherwise well‑considered opinion arrived at by the Special Investigation Team in the final report on this aspect. Not translating the recommendation of the State Investigation Bureau (dated 24‑04‑2002) into a transfer order until the end of the first week of May 2002 does not provide any direct link regarding the allegation of a larger criminal conspiracy at the highest level for causing or precipitating the violence across the State from February 2002 onwards. Viewed thus, no fault can be found with the opinion of the Special Investigation Team that the transfers of the jurisdictional officers, as suggested by the State Investigation Bureau, were not carried out until the arrival of Mr. K. P. S. Gill, Advisor to the Chief Minister., The allegation that senior officers were awarded undue benefits for collaborating with the illegal plans of the Chief Minister/Bharatiya Janata Party during the 2002 riots and afterwards has been found to be far‑fetched and unfounded by the Special Investigation Team after analysing the relevant materials on record, including the statements of the concerned officials dealing with each officer named in paragraph 68 of the complaint. The Special Investigation Team noted that such an act would not constitute a link to a criminal conspiracy resulting in mass violence across the State., The allegation that pro‑Vishwa Hindu Parishad advocates were appointed as public prosecutors in riot cases has been thoroughly examined by the Special Investigation Team. Pro‑VHP advocates appointed as Public Prosecutors included Shri Chetan Shah (District Government Pleader), Shri V. P. Atre (Special Public Prosecutor in the Gulberg case), Shri Raghuvir Pandya (Special Public Prosecutor in the Best Bakery case), Shri Dilip Trivedi (Special Public Prosecutor in the Sardarpura case), Shri Rajendra Darji (Special Public Prosecutor in the Dipda Darvaja case) and Shri Piyush Gandhi (Public Prosecutor in Panchmahal District). The procedure for appointment of a Public Prosecutor involves a vacancy notified by the Collector and District Magistrate in the local newspaper, interviews by a Board comprising the Principal Sessions Judge and District Magistrate, and selection of a panel of three or four advocates forwarded to the Government, which then exercises discretion to appoint one advocate for a period of three years., Enquiries revealed that Shri Chetan K. Shah remained a member of Vishwa Hindu Parishad from 1990 to 1995 but is presently neither a member of the Bharatiya Janata Party nor any of the Sangh Parivar organisations. On 12-07-1986 seven or nine members of the Muslim Parivar were allegedly burnt alive in the Meghaninagar area during the 1986 riots. A case was registered in Shahibaug Police Station; Shri Chetan K. Shah was not a named accused in the FIR but was later arraigned during investigation and a charge sheet was filed against him. The case was registered as Terrorist Case No. 1/87 before the Hon'ble Special Court, Ahmedabad City, where he was charged under the Terrorist and Disruptive Activities (Prevention) Act and other rioting offences. He was not arrested, was granted anticipatory bail and subsequently regular bail, and was defended by Shri H. M. Dhruv and Shri J. M. Panchal. After trial he was acquitted of all charges. Shri Chetan K. Shah was appointed as Public Prosecutor on 17-06-2003 for a period of three years. Before his appointment he had defended some accused persons in the Gulberg Society case and, as Public Prosecutor of the City Sessions Court, supervised fifteen Additional Public Prosecutors who worked in different courts as per duties allotted by him., Shri V. P. Atre, an Additional Public Prosecutor, was appointed as Special Public Prosecutor to conduct case No. 67/2002 of Meghaninagar Police Station on 06-10-2003. This was a special assignment given directly by the Government of Gujarat and he was not junior or subordinate to Shri Chetan K. Shah. In the Gulberg Society case, none of the accused persons were released on bail after Shri V. P. Atre took over as Special Public Prosecutor; the accused were released on bail by the Gujarat High Court at different stages. Shri Chetan K. Shah did not appear as a Public Prosecutor in any of the riot cases pending in the City Sessions Court, Ahmedabad City, as he had already appeared in the Gulberg Society case from the defence side. He denied that his appointment as Public Prosecutor was because of his VHP background or any sympathy for the ruling party or Sangh Parivar., Shri Raghuvir N. Pandya started his practice in the District and Sessions Court, Vadodara in 1986 on civil and criminal matters. He was appointed as Additional Public Prosecutor in the District and Sessions Court in 1997 and served as in‑charge Public Prosecutor for Vadodara District during 2000‑2002. He became District Government Pleader in Vadodara in 2002 and served until 2008. He denied any direct connection with the Bharatiya Janata Party, Bajrang Dal, Rashtriya Swayamsevak Sangh or any Sangh Parivar organisations, but admitted contesting corporation elections from Ward No. 20, Majalpur as an independent candidate in 1995, winning and serving as Corporator for six years till 2001. He was appointed as a Notary by the Central Government in 2001. He stated that the Best Bakery incident was a serious and sensitive case in Vadodara, an aftermath of the Godhra incident, and that he conducted the prosecution as Chief Public Prosecutor of the District and Sessions Court in a sincere and diligent manner. He clarified that not all matters in the Fast Track Court were handled by Shri Gupta, Additional Public Prosecutor, and that workload was divided among different prosecutors including Shri Gupta. He opined that his appointment and notification in the Best Bakery case was not necessary as Chief Public Prosecutor., Shri Dilip R. Trivedi, Advocate from Mehsana, started his practice in Mehsana Courts in 1977. He was appointed as Government Advocate and Public Prosecutor in Mehsana in April 2000 and remained in that position until the end of 2007. He is a member of Rashtriya Swayamsevak Sangh since childhood, joined Vishwa Hindu Parishad as a worker in 1992, became General Secretary of VHP Gujarat State in 1999, and President of VHP Gujarat State in 2006. He stated that VHP is a social Hindu organisation with no political inclinations and has not been banned. After the Godhra carnage there were riots in Mehsana District, particularly in Sardarpura, Tal‑Vijapur and Dipda Darwaja, Visnagar. He dealt with bail applications of accused persons in these cases; seven bail applications were argued by him in the Sessions Court, Mehsana and were rejected. The same applicants approached the Gujarat High Court and subsequently the Supreme Court, but their bail applications were still rejected. Other accused persons arrested in the Sardarpura case were released on bail on various conditions. The complainant filed petitions in the Gujarat High Court (Cr. Misc. Appls. No. 3590/02, 3591/02 & 4026/02) against the bail orders, which were dismissed by the High Court. Shri Trivedi added that he argued bail applications in an honest and impartial manner based on the evidence available, and that the court’s decisions were purely at its discretion., Shri Rajendra Darji, Advocate, denied any connection with Vishwa Hindu Parishad, Bajrang Dal or any related organisations. He became Additional Public Prosecutor and Additional Government Pleader in Mehsana District in April 2000 and served until 2004. He was re‑appointed as Additional Government Pleader in 2005 and again in 2008, continuing in that role. He stated that the Dipada Darwaja case was charge‑sheeted in the first Fast Track Court of Shri P. R. Patel, subsequently transferred to the Court of Shri S. J. Seth and later to the Court of Shri I. B. Waghela. Initially Shri R. M. Jani was the Prosecutor, who examined eleven witnesses; later Shri Nirmal Bhai S. Shah, Government Advocate, examined sixteen witnesses. He dismissed the bail applications of seven accused persons and dealt with the case in an independent and impartial manner., Shri Piyush L. Gandhi, Advocate, has been a Rashtriya Swayamsevak Sangh activist since 1964, a worker of Akhil Bharatiya Vidyarthi Parishad between 1968 and 1972, District Pramukh of Janata Yuva Morcha between 1973 and 1980, Secretary of Panchmahal District VHP between 1982 and 1990, and Officiating Pramukh of Panchmahal District VHP between 1990 and 2006. He has been Administrator of schools associated with Vidya Bharati since 2006. He was appointed Director of Godhra City Cooperative Bank in 1996 and Treasurer of National Blind Samiti in 1994. He served as Government Advocate and Public Prosecutor of Panchmahal from 15‑01‑1996 to 01‑09‑2009. He stated that after the Godhra carnage in 2002, Shri J. G. Pathak and Shri B. J. Trivedi were appointed as Special Public Prosecutors to conduct the trial of riot cases, but this appointment was cancelled on 04‑12‑2003 and the cases were entrusted to him. Later, Shri Rajendra Trivedi, Shri A. R. Dave and Shri D. P. Pathak were also appointed as Special Public Prosecutors. He conducted the trial of the Shabana‑Suhana rape and murder case; the complainants filed Criminal Revision Applications No. 94/2004 and 142/2004 in the Gujarat High Court, where some allegations against him were dismissed on 12‑10‑2004. He concluded the trial, many accused were convicted and sentenced to life imprisonment, and appeals were filed against some acquittals. He observed that while political affiliation of advocates may influence the Government’s appointment of Public Prosecutors, no specific allegation of favour shown to any accused in granting bail or during trial has come to light., The Special Investigation Team concluded that the allegation of appointing public prosecutors during the trial of the concerned cases cannot be linked with a larger criminal conspiracy for causing or precipitating mass violence across the State. The appointment procedure—notification by the Collector and District Magistrate, interview by a Board of the Principal Sessions Judge and District Magistrate, and discretionary selection by the Government—was followed. No grievance was received by the Special Investigation Team from any quarter during the trial of the nine cases assigned to it by the Supreme Court of India, and therefore there was no reason to doubt that the SIT would have taken corrective measures and made appropriate recommendations as directed by the Court on 01‑05‑2009., The allegation (No. xvii) that the State Home Department gave misleading reports about normalcy to the State Election Commission has been discarded by the Special Investigation Team after analysing the relevant facts. The decision to conduct elections was taken by the Election Commission of India, which did not accept the statistics furnished by the State., The allegation regarding a secret meeting (No. xxxi) and the meeting held by Mr. Kalubhai Hirabhai Maliwad (No. xxxii) have been found by the Special Investigation Team to be figments of imagination, replete with inaccuracies and contradictions., The Special Investigation Team noted the recommendations of the National Human Rights Commission and the report of the private Concerned Citizens Tribunal, but stated that these narratives alone cannot form the sole basis to proceed against the offenders. The SIT formed its independent opinion after thorough investigation of all factual aspects, including those referred to by the NHRC and the private tribunal, before submitting its final report to the Gujarat High Court as directed by the Supreme Court of India., The appellant’s claim that the Special Investigation Team did not investigate the alleged willful failure of the fire brigade in Ahmedabad to respond to calls made by the minority community was unfounded. Fire services in Ahmedabad fall under the jurisdiction of the Ahmedabad Municipal Corporation, not the State Police or State Administration. The Commissioner of Police of Ahmedabad City had no authority over the fire brigade. Blockades created during the mass violence made movement of fire brigade vehicles difficult, and there is no tangible material indicating that the Commissioner instructed fire‑brigade officials. Hence, this argument does not establish a criminal conspiracy., The respondents contended that the appellant was attempting to perpetuate grievances and raise new allegations, including naming new offenders as part of a larger criminal conspiracy. The protest petition, running into 514 pages, indirectly questioned decisions of the Courts in other cases, including sub‑judice matters, apparently under dictation of someone. The contents of the petition are based on affidavits that have been found to contain falsehoods., After reviewing the analysis done by the Special Investigation Team, we accept the opinion that no case has been made out against the named offenders, nor is there any indication that they were parties to a larger criminal conspiracy to cause or precipitate mass violence across the State during the relevant period., It is therefore not open to hold that the investigation by the Special Investigation Team in the present case was deficient or infirm. Every allegation in the complaint (running into 67 pages) was culled by the Special Investigation Team and articulated as thirty‑two broad allegations, all of which were duly investigated from all angles before the report was submitted to the Supreme Court of India. The analysis and opinion of the Special Investigation Team, corroborated by the learned Amicus Curiae, have been accepted by both the Magistrate Court and the Gujarat High Court. No material exists to create even a suspicion, let alone strong suspicion, of a meeting of minds among bureaucrats, politicians, public prosecutors, VHP, RSS, Bajrang Dal or members of the State political establishment for hatching a larger criminal conspiracy., Our understanding is that the approach adopted by the Special Investigation Team was not to doubt the credibility of witnesses, which would be a matter for trial, but to assess the falsity of information or material that remained uncorroborated despite the best endeavours of the SIT. The SIT concluded that there was no case for proceeding against the named offenders as the offences under the relevant sections of law were not made out, and therefore urged the Magistrate Court to accept the final report. This does not imply that the SIT or the Courts doubted the occurrence of crimes during the relevant period; every registered crime, including the tragic killing of the appellant’s husband, has been investigated by the Court‑appointed SIT and the accused have faced trial before the jurisdictional Courts., Relying on the decision in Nirmal Singh Kahlon, it was argued that a second FIR could be filed in connection with the alleged offence and that the self‑imposed remit of the Special Investigation Team should not impede proceeding against the concerned persons on the basis of further information. This argument has been rejected.
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In that, for the view that we have taken hitherto that the Special Investigation Team, as well as the Courts including the appellant, is bound by the sui generis directions issued by the Supreme Court of India from time to time, the matter could be examined only in that context and not in reference to the approach to be adopted in general cases., Furthermore, the Special Investigation Team has observed that the so‑called additional information or material would not improve the case of the appellant, as taking the same as it is, there is no indication thereabout the perceivable link to show hatching of a criminal conspiracy at the highest level for causing and precipitating mass violence across the state against the minority community during the relevant period., The Special Investigation Team was entrusted with investigation of nine sets of crimes including the occurrences at the Gulberg Society. Status reports regarding the progress of investigation were submitted to the Supreme Court of India in all those cases and, after satisfaction of the Supreme Court of India about the completion of proper investigation done by the Special Investigation Team, reports under Section 173 of the Code of Criminal Procedure were filed in the concerned cases and the identified persons involved in the commission of crimes were also sent for trial., Moreover, the trials of the concerned cases progressed under continuous supervision of the Supreme Court of India, which have ended in conviction of the accused in the concerned cases, as indicated in the chart submitted along with Final Note Part‑1 filed on behalf of respondent No. 2, marked as Annexure‑2157A and deemed to be part of this judgment., Despite the humongous task undertaken by the members of the Special Investigation Team with sincerity, objectivity and dispassion, including to the satisfaction of the Supreme Court of India in all these cases, the argument of the appellant was bordering on undermining the integrity and sincerity of the members of the Special Investigation Team. It is needless to underscore that the Special Investigation Team was constituted by the Supreme Court of India from experienced senior officials with proven ability to investigate complex offences. Therefore, we find such submission as not only far‑fetched and an attempt to undo and undermine the work of the Special Investigation Team in having thoroughly investigated all nine sets of cases assigned to it by the Supreme Court of India, but also in the nature of questioning the wisdom of the Supreme Court of India. Hence, the 157A Annexure‑2 (at pages 450‑452 of this judgment) assail of the appellant needs to be stated to be rejected. While observing sobriety, we say no more., We do not wish to dilate on the other reported decisions, for the view we have taken and, more so, we have followed the settled legal principles in answering the matters in issue., We need to clarify that our analysis regarding the sting operation or the Tehelka Tape and its transcript is not a final determination regarding the evidentiary value thereof. We say so because the same will have to be dealt with in appropriate proceedings, in particular, other cognate criminal cases investigated by the Supreme Court‑appointed Special Investigation Team, including those pending before the High Court and the Supreme Court of India., While parting, we express our appreciation for the indefatigable work done by the team of Special Investigation Team officials in the challenging circumstances they had to face and yet we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the Special Investigation Team after a thorough investigation. Intriguingly, the present proceedings have been pursued for the last sixteen years (from submission of complaint dated 8 June 2006 running into 67 pages and then by filing protest petition dated 15 April 2013 running into 514 pages), including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the Special Investigation Team), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process need to be in the dock and proceeded with in accordance with law., To sum up, we are of the considered opinion that no fault can be found with the approach of the Special Investigation Team in submitting the final report dated 8 February 2012, which is backed by firm logic, an expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding a larger criminal conspiracy at the highest level for causing and precipitating mass violence across the state against the minority community during the relevant period. As aforementioned, the Special Investigation Team has gone by the logic of falsity of the information or material and has treated the same as remaining uncorroborated. In that, the materials collected during the investigation do not give rise to strong or grave suspicion regarding the hatching of a larger criminal conspiracy at the highest level for causing mass violence across the state against the minority community, nor do they indicate involvement of the named offenders and their meeting of minds at some level in that regard. The Special Investigation Team formed its opinion after considering all the materials collated during the investigation. The question of further investigation would have arisen only on the availability of new material or information in connection with the allegation of a larger conspiracy at the highest level, which is not forthcoming in this case. Hence, the final report, as submitted by the Special Investigation Team, ought to be accepted as it is, without doing anything more., The Magistrate, upon presentation of the final report, could have exercised different options as predicated in Abhinandan Jha, Bhagwant Singh, Popular Muthiah and Vishnu Kumar Tiwari. However, the Magistrate in the present case, after applying his mind independently to the final report dated 8 February 2012 and the materials appended thereto, chose to accept the same as it is, without issuing any other direction to the Special Investigation Team., After cogitating over the matter, we uphold the decision of the Magistrate in accepting the stated final report dated 8 February 2012 submitted by the Special Investigation Team, as it is, and rejecting the protest petition filed by the appellant. We do not countenance the submission of the appellant regarding infraction of the rule of law in the matter of investigation and the approach of the Magistrate and the High Court in dealing with the final report., Accordingly, we hold that this appeal is devoid of merits and, resultantly, deserves to be dismissed in the aforementioned terms. We order accordingly. Pending applications, if any, shall stand disposed of accordingly. (A.M. Khanwilkar) (Dinesh Maheshwari) (C.T. Ravikumar) New Delhi; 24 June 2022. Page: 398, Opinion of Shri Raju Ramchandran, Amicus Curiae: Shri Raju Ramchandran, Senior Advocate, assisted by Shri Gaurav Aggarwal, Advocate, had been appointed as Amicus Curiae by the Honourable Supreme Court of India to assist the Supreme Court of India in this matter. Shri Raju Ramchandran initially examined the inquiry report submitted by the Special Investigation Team to the Honourable Supreme Court of India and submitted his observations on the findings of the Special Investigation Team on 20 January 2011, to the Honourable Supreme Court of India, in three parts, i.e., Chart A, Chart B and Chart C., The aforesaid observations made by the Learned Amicus Curiae were considered by the Honourable Special Bench of the Supreme Court of India on 15 March 2011, when the following observations were made: A copy of the note submitted by the learned Amicus Curiae has already been supplied to the Chairman, Special Investigation Team. Let the Chairman, Special Investigation Team, look into the observations made by the learned Amicus Curiae against each of the findings given by the Special Investigation Team on the allegations made in the complaint and submit this report thereon. If considered necessary, it will be open to the Special Investigation Team to carry out further investigation in light of the observations made in the said note. The report shall be submitted by 25 April 2011. List the case on 27 April 2011 at 3:00 p.m., Pursuant to the aforesaid order, the Special Investigation Team conducted further investigation under Section 173(8) of the Criminal Procedure Code in the Gulberg Society case (Meghaninagar Police Station, Crime Reference No. 67/02) as suggested by the Learned Amicus Curiae in his observations submitted in the note dated 20 January 2011 to the Honourable Supreme Court of India. The recommendations made in Chart A by the Learned Amicus Curiae with respect to further investigation are discussed below: (1) None of the officers that attended the meeting on 27 February 2002, which is referred to in paragraph 3 of this judgment and made by Shri Narendra Modi at his residence instructing senior officers to allow Hindus to vent their anger, have confirmed the alleged statement made by Shri Narendra Modi; this is also supported by the late Haren Pandya. (2) The statement of Shri R. B. Sreekumar is hearsay. (3) Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), was not present in the meeting. (4) None of the Cabinet Ministers, including the late Haren Pandya, attended the meeting on 27 February 2002; testimony of the late Haren Pandya before the Citizens' Tribunal is unreliable. (5) No one present in the meeting on 27 February 2002 could speak against Shri Modi, especially the bureaucracy and police officials., The other circumstances would also have to be taken into account. There is nothing to show that the Chief Minister intervened on 28 February 2002, when the riots were taking place, to prevent the riots. The movements of Shri Narendra Modi and the instructions given by him on 28 February 2002 would have been decisive to prove that he had taken all steps for the protection of the minorities, but this evidence is not there. Neither the Chief Minister nor his personal officials have stated what he did on 28 February 2002. Neither the senior police officers nor bureaucrats have spoken about any decisive action by the..., It may not be correct to rule out the presence of Sanjiv Bhatt since Additional Deputy Commissioner (Intelligence) Shri G. C. Raiger was not available. There is no reason for him to make a false statement. He was willing to make a statement if he was protected from legal repercussions of disclosing what transpired in the meeting., It is difficult to believe that when the Chief Minister returned after the Godhra trip, no Minister was present at his residence. Hence, it may not be totally unbelievable. Shri Haren Pandya is unfortunately deceased, but the statements made by the late Haren Pandya to Justice P. B. Sawant (Retired) and Justice H. Suresh (Retired) can be used, even if his statement has not been formally reproduced in writing by the Citizens' Tribunal., It has also been brought out that an enquiry was made from the Chief Minister's office as to the identity of the Minister who had deposed before the Citizens' Tribunal and that the State Intelligence Bureau had verified the identity as that of Shri Haren Pandya. This also gives some corroboration to the fact that the Chief Minister's office was uncomfortable with the disclosure made by an unidentified Minister to the Citizens' Tribunal., The statement of Shri R. B. Sreekumar cannot be discarded as hearsay in the light of Section 6 of the Indian Evidence Act., Another aspect is the fact that Vishwa Hindu Parishad General Secretary Jaydeep Patel and Shri Narendra Modi were at Godhra on 27 February 2002. The statement of Jaydeep Patel that he did not meet Shri Narendra Modi at Godhra does not inspire confidence. This has to be examined as the Mamlatdar would not have handed over the dead bodies to a non‑government person, i.e., Jaydeep Patel, unless somebody very high instructed him to do so., The Cabinet Ministers Shri I. K. Jadeja and Shri Ashok Bhatt were positioned in the Director General of Police's office and Ahmedabad City Control Room on 28 February 2002. The Special Investigation Team concludes that this was a controversial decision taken by the Government to place two ministers in the DGP's office and Ahmedabad City Control Room. However, the Special Investigation Team concludes that there is no evidence that the two ministers passed on any instructions to the police to deal with the riots in a particular manner. Therefore, the allegation is only partially proved according to the Special Investigation Team., The positioning of two Cabinet Ministers, having nothing to do with the Home portfolio, in the Office of the Director General of Police and the State Police Control Room respectively is another circumstance which reflects that there was a direct instruction from the Chief Minister. Though Shri Jadeja says that he had gone to the DGP's office on instructions of Shri Gordhan Zadafia, Minister of State (Home), this is highly unbelievable. It is obvious that the Chief Minister positioned these two ministers in highly sensitive places, which should not have been done. In fact, these two ministers could have taken active steps to defuse the riots, but they did nothing, which speaks volumes about the decision to let the riots happen. It does not appear that these two ministers immediately called the Chief Minister and informed him about the situation at Gulberg and other places., The Special Investigation Team merely relied upon the statements of the police officers to conclude that these two ministers did not give any instructions to the police department, but it appears highly unlikely that two Cabinet Ministers of the Government of Gujarat would not have given some kind of directions when the Chief Minister had directed them to remain present., It is obvious that the two ministers were fully aware of the developing situation in Gulberg Society, Naroda Patiya, etc., in Ahmedabad City. They were duty bound to convey the situation to the Chief Minister and were required to do everything possible to save loss of lives. If the stance of the Chief Minister that these two ministers were positioned so as to effectively control the law and order situation is correct, then there would have been a far quicker action to control the riots in Gulberg Society and Naroda Patiya at least., No tangible action seems to have been taken by the senior police officials in the Police Department, namely the Commissioner of Police, to control the riots at Gulberg Society. Gulberg Society is not very far from the Office of the Commissioner of Police, Ahmedabad., The allegation is that Shri Narendra Modi did not visit the riot‑affected areas of Ahmedabad immediately, though he visited Godhra. The Special Investigation Team has come to the conclusion that the action of the Chief Minister appeared to be discriminatory., This is one of the circumstances which indicate that the Honourable Chief Minister had not taken enough steps to ensure that riots in Ahmedabad City were immediately controlled by his direct intervention., It is alleged that on 01 March 2002, Shri Narendra Modi said in a television interview that the reaction of the Hindus was due to the action by the Muslims, which seems to justify the riot. The Special Investigation Team has concluded that the reaction of the Chief Minister to the violence at Gulberg Society and Naroda Patiya was not serious. However, the Special Investigation Team concluded that this would not be sufficient to make out a case against Shri Modi., The observation of Shri Modi in a television interview on 01 March 2002 clearly indicates that there was an attempt to justify the violence against the minority community. This indicates a certain approach. The statement made by Shri Modi cannot be seen in isolation; it has to be seen in conjunction with other facts mentioned hereinabove, which provide sufficient justification for a detailed investigation in the matter., Observations made by the Learned Amicus Curiae: It would be impossible to get anyone present in the meeting on 27 February 2002 to speak against Shri Modi, especially the bureaucracy and police officials. It may not be correct to rule out the presence of Sanjiv Bhatt, Indian Police Service, Deputy Commissioner (Intelligence), since Additional Deputy Commissioner (Intelligence) Shri G. C. Raiger was not available. There is no reason for him to make a false statement. He was willing to make a statement if he was protected from legal repercussions of disclosing what transpired in the meeting., Result of further investigation: Further investigation in this regard revealed that the information about the burning of a railway coach of the Sabarmati Express near Godhra Railway Station was received by Shri Narendra Modi, Chief Minister, on 27 February 2002 at about 09:00 hours from Shri Ashok Narayan, the then Additional Chief Secretary (Home). On receipt of the information, Shri Narendra Modi held a meeting at around 10:30 hours with Shri Gordhan Zadafia, the then Minister of State (Home), Shri Ashok Narayan, the then Additional Chief Secretary (Home), Shri K. Chakravarthi, the then Director General of Police, Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, and other personal staff of the Chief Minister. Until then, no specific information was available about the number of casualties and the injured persons. In this meeting, Shri Narendra Modi emphasized that the culprits responsible for the incident should be apprehended and not allowed to escape. No minutes of the meeting were prepared. However, Shri Ashok Narayan prepared a note on the basis of information provided by the DGP for the Chief Minister and the Minister of State (Home) to make a statement in the Assembly, as the question relating to the Godhra incident was likely to be raised in the Assembly, which was in session. The Chief Minister gave directions that steps should be taken not to delay medical help to surviving passengers and also to impose a curfew to avoid any untoward incident, Godhra being a communally sensitive place. The Chief Minister also instructed that senior officers and, if required, additional forces must reach Godhra without any delay., Around 12:00 hours, the Chief Minister attended the Assembly session and a call‑attention motion relating to the Godhra incident tabled by Shri Punjabhai Vansh, MLA, came up for discussion at 13:00 hours, but the Honourable Member was not present in the House. Dr. Mayaben Kodnani, MLA from Naroda, spoke on the issue. Shri Gordhan Zadafia, the then Minister of State (Home), made a statement in the House based on the note prepared by Shri Ashok Narayan, the then Additional Chief Secretary (Home). During zero hour, Shri Narendra Modi made a statement that he had discussed the matter with the then Prime Minister Shri Atal Bihari Vajpayee and announced an ex‑gratia payment of Rs 2,00,000 each to the next of kin of those killed in the Godhra incident and also ordered a High‑Level Inquiry into the incident. All these facts were mentioned in the Assembly proceedings as well as in the press release issued by the Government of Gujarat on 27 February 2002., Shri Gordhan Zadafia, the then Minister of State (Home), left for Godhra by road around 14:00 hours and reached there at about 16:30 hours. Shri Ashok Bhatt, the then Health Minister, had already reached Godhra around 12:00 hours. It may be mentioned that 27 February 2002 was a budget day in the Assembly and, after the completion of the budget speech by Shri Nitinbhai Patel, the then Finance Minister, the Assembly proceedings were over at about 15:00 hours. Shri Narendra Modi left for Ahmedabad airport around 15:30 hours for his onward journey to Vadodara/Godhra. Shri Narendra Modi reached Ahmedabad airport at 16:00 hours and left for Vadodara by Government aircraft. The Chief Minister reached Vadodara at about 16:30 hours and then proceeded to Godhra by helicopter immediately, reaching there around 16:45 hours. He was accompanied by Shri Anil Mukim, the then Additional Private Secretary to the Chief Minister, and Shri Jagdish Thakker, Public Relations Officer to the Chief Minister., According to the press release issued by the Government of Gujarat on 27 February 2002, the Chief Minister visited the scene of occurrence at Godhra Railway Station and then went to the Civil Hospital and saw the injured admitted there. Thereafter, he went to the Collectorate and held a meeting with the ministers present there, namely Shri Ashok Bhatt, Shri Gordhan Zadafia, Shri Bhupendra Lakhawala, Shri Prabhatsinh Chauhan (all ministers in the State Government), Shri Bhupendrasingh Solanki, the then Member of Parliament, Lok Sabha, from Godhra, the Collector and District Magistrate, Godhra, police officers and railway officers. The Chief Minister also met the press briefly thereafter., As per media reports, Shri Narendra Modi said the Government would ensure the maintenance of peace in the state and would not lack in discharging its duty. He also said that the tragedy was unparalleled in the history of Gujarat and assured the people that the culprits would be punished. At no point did Shri Jaydeep Patel, VHP leader who was at Godhra on that day, meet him., The Chief Minister left Godhra by road around 19:45 hours (after sunset) and reached Vadodara airport at about 21:30 hours. Shri Narendra Modi left for Ahmedabad by Government aircraft at 21:30 hours and reached his official residence at Gandhinagar at about 22:30 hours. Investigation has further revealed that a law‑and‑order meeting was held by the Chief Minister at his residence around 23:00 hours, which was attended by Smt. Swarna Kanta Varma, the then acting Chief Secretary; Shri Ashok Narayan, the then Additional Chief Secretary (Home); Dr. P. K. Mishra, the then Principal Secretary to the Chief Minister; Shri Anil Mukim, the then Additional Private Secretary to the Chief Minister; Shri K. Chakravarthi, the then Director General of Police; Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City; Shri K. Nityanandam, the then Secretary (Home); and Shri Prakash S. Shah, the then Additional Secretary (Law & Order). Shri G. C. Raiger, the then Additional Director General (Intelligence), who was on casual leave and had returned to Ahmedabad on the evening of 27 February 2002, had not attended the meeting. However, Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), claimed to have attended the meeting at the instance of the Director General of Police., All the aforesaid officials have been re‑examined and their statements recorded under Section 161 of the Criminal Procedure Code. Their depositions in brief are given below: (i) According to Smt. Swarna Kanta Varma, the then acting Chief Secretary, she was present at the meeting but cannot recollect whether any minister or other police or government officials, besides the individuals indicated above, were present. On being shown the photograph of Shri Sanjiv Bhatt, she stated that she cannot recollect having met or seen him in this meeting or in any meeting during her tenure as Chief Secretary. Smt. Swarna Kanta Varma stated that the Chief Minister said in the meeting that the Godhra incident was very unfortunate and should be handled with a firm hand. However, she denied that there was any mention by the Chief Minister of balancing action against Hindus and Muslims, or that Muslims should be taught a lesson or Hindus be allowed to vent their anger., (ii) Shri Ashok Narayan, the then Additional Chief Secretary (Home), stated that Shri Sanjiv Bhatt, the then Deputy Commissioner (Security), did not attend the meeting on 27 February 2002. He further stated that no minister was present at the meeting. He also stated that the Director General of Police gave a sequence of events of the Godhra incident, possible repercussions, and the requirement of additional forces. He denied any utterances by the Chief Minister to the effect that the police approach of balancing action against Hindus and Muslims would not work any more, that Muslims should be taught a lesson, or that Hindus should be allowed to vent their feelings or anger. However, he stated that the Chief Minister did say that the people were outraged by the Godhra incident and therefore effective steps should be taken to control the communal riots., (iii) Shri P. K. Mishra, the then Principal Secretary to the Chief Minister, categorically denied the presence of Shri Sanjiv Bhatt, the then Deputy Commissioner (Intelligence), in the meeting of 27 February 2002. He further denied the presence of any politicians in the meeting. Regarding the observation allegedly made by the Chief Minister that for too long the Gujarat Police had been following the principle of balancing actions against Hindus and Muslims while dealing with communal riots, and that the situation warranted that Muslims be taught a lesson and Hindus be allowed to vent their anger, Shri Mishra stated that it was not true that the Chief Minister spoke in these terms. He further stated that in the meeting, officials of the Home Department and police officers apprised the Chief Minister about the actions already taken to prevent any untoward incident in view of the emerging situation and the bandh call. He also stated that the Chief Minister briefed the officials about his Godhra visit and impressed upon them to take all possible steps, including preventive arrests, to avoid any untoward incident., (iv) Shri K. Chakravarthi, the then Director General of Police, stated that Shri G. C. Raiger, the then Additional Director General (Intelligence), was on casual leave on 27 February 2002 and therefore did not attend the meeting. He does not recollect whether Shri Raiger contacted him by phone on the evening of 27 February 2002 and informed him about his arrival in Ahmedabad. However, he categorically stated that Shri Sanjiv Bhatt did not attend the meeting on the night of 27 February 2002 at the Chief Minister's residence and that no such instructions were given by the Chief Minister. Shri Chakravarthi added that if Shri G. C. Raiger had been available in Ahmedabad, he would have been instructed to attend the meeting through the State Control Room rather than asking Shri Sanjiv Bhatt to attend. According to Shri Chakravarthi, Shri O. P. Mathur, the then Inspector General of Police (Administration & Security), was also available and could have been called to the meeting instead of a junior officer of SP level, Shri Sanjiv Bhatt. Shri Chakravarthi further stated that, as per his recollection, none of the ministers or politicians attended the meeting on 27 February 2002. He also stated that he briefed the Chief Minister about the arrangements made by him in the wake of the bandh call given by the VHP on 28 February 2002 and about the additional requirement of forces. Shri Chakravarthi informed the Chief Minister about the appeal made by him to the general public on Door‑Darshan/All India Radio to maintain peace. As per Shri Chakravarthi, the Chief Minister said that the Godhra incident was very serious and bound to affect the public at large and therefore adequate arrangements should be made. Shri Chakravarthi stated that the Chief Minister also spoke about the Government decision to transport the dead bodies of Godhra victims to Ahmedabad City by road and to keep them in Sola Civil Hospital, which was then located on the outskirts of Ahmedabad City. According to Shri Chakravarthi, this decision was not opposed by anyone in the meeting, as a considerable number of victims belonged to Ahmedabad and nearby places. Regarding the allegation that the Chief Minister spoke in terms that for too long the Gujarat Police had been following the principle of balancing action against Hindus and Muslims and that Hindus should be allowed to vent their anger, Shri Chakravarthi denied any such utterances by the Chief Minister in the meeting. He also denied having spoken to Shri R. B. Sreekumar, the then Additional Director General (Arms Unit), in this regard., (v) Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, denied the presence of Shri Sanjiv Bhatt in the law‑and‑order meeting called by the Chief Minister on the night of 27 February 2002. He further stated that the meeting lasted for 15‑20 minutes and the discussions centred around maintenance of law and order in view of the bandh call for the next day, its likely repercussions, and availability of forces. Regarding the allegations against the Chief Minister about having said that for too long the Gujarat Police had been following the principle of balancing actions against Hindus and Muslims and that Hindus should be allowed to vent their anger, Shri Pande categorically stated that no such instructions to allow any freedom to any law‑breaker were given by the Chief Minister. He outrightly denied the presence of any minister or Shri Sanjiv Bhatt, the then Deputy Commissioner (Intelligence), in the meeting. Concerning the Government decision to transport the dead bodies of Godhra victims to Ahmedabad, Shri Pande stated that he does not recollect the exact talks that took place in the meeting, but the substance of the discussion was that the dead bodies were being brought to Ahmedabad City to facilitate the relatives of the deceased persons to identify and claim them., (vi) Shri Anil Mukim, Indian Administrative Service, the then Additional Private Secretary to the Chief Minister, stated that he attended the meeting for some time and then left after taking permission from Shri P. K. Mishra, IAS (Retired), the then Principal Secretary to the Chief Minister. He further stated that while he was present, general discussions were held regarding the Godhra incident and necessary preventive measures required under the circumstances were also discussed. He outrightly denied any utterances or instructions by the Chief Minister about Muslims being taught a lesson and Hindus being allowed to vent their anger in his presence. He denied the presence of Shri Sanjiv Bhatt, the then Deputy Commissioner (Intelligence), in the meeting and also denied the presence of any minister or politician in the meeting.
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Shri K. Nityanandam, the then Secretary (Home), stated that he attended the law and order meeting called by the Chief Minister at his residence on 27‑02‑2002 at about 2300 hours. He further stated that the deliberations in the meeting mainly revolved around the law and order situation after the Godhra train incident and efforts to handle future law and order problems in view of the bandh call on 28‑02‑2002. He denied the presence of any Minister or Shri Sanjiv Bhatt in the said meeting. He also denied any alleged observations made by the Chief Minister about Muslims being taught a lesson and the Hindus being allowed to vent their anger. According to Shri K. Nityanandam, he does not recollect Shri Sanjiv Bhatt being present in any law and order meetings called by the Chief Minister as Inspector General of Police and Additional Director General of Police rank officers were available in the State Intelligence Bureau to present the issues relating to intelligence., Shri Prakash S. Shah, the then Additional Secretary (Law and Order), confirmed that he attended the law and order meeting called by the Chief Minister at his residence on the night of 27‑02‑2002. He stated that the Chief Minister gave an account of the Godhra incident, while Shri Chakravarthi and Shri Pande briefed the Chief Minister about the possible repercussions of the Godhra incident, the arrangements and bandobast made by them, and the deployment of forces. According to Shri Shah, the Chief Minister instructed all officers that communal peace and harmony be maintained at all costs and that all possible steps be taken to control any possible communal flare‑up. He denied the presence of any Minister or Shri Sanjiv Bhatt in the said meeting. He further stated that the Chief Minister did not say anything about a police approach of balancing action against Hindus and Muslims or that Hindus should be allowed to vent their anger., Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), stated that he received intelligence inputs on 27‑02‑2002 regarding the dispatch of dead bodies from Godhra to Ahmedabad under police escort, the State‑supported bandh call, and the intention of Sangh Parivar activists to parade the dead bodies in the form of a funeral procession in communally sensitive areas of Ahmedabad City. He claimed to have attended a late‑night meeting on 27‑02‑2002 called by the Chief Minister at his residence, about which he was intimated by the State Intelligence Bureau Control Room and the State Police Control Room that Shri K. Chakravarthi, the then Director General of Police, wanted him to accompany the latter in the meeting., Shri Sanjiv Bhatt admitted in his signed statement that Shri G. C. Raiger, the then Additional Director General (Intelligence), was on casual leave until 28‑02‑2002 but had curtailed his leave and returned to Ahmedabad on the evening of 27‑02‑2002. This fact was confirmed by Shri G. C. Raiger, who stated that he called the Director General of Police and informed him of his availability from the evening of 27‑02‑2002. Moreover, Shri P. B. Upadhyay, the then Deputy Commissioner of Intelligence (Communal), also stated that he curtailed his casual leave on 27‑02‑2002 and was available in the office. He said that he accompanied Shri K. Chakravarthi in the latter’s car from the Director General of Police’s office to the Chief Minister’s residence and claimed that he attended the meeting, which was also attended by In‑charge Chief Secretary Smt. Swarna Kanta Varma, Additional Chief Secretary (Home) Shri Ashok Narayan, Shri Anil Mukim, the then Additional Private Secretary to the Chief Minister, Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, and Shri K. Nityanandam, the then Secretary (Home). He was unable to recollect whether Shri P. K. Mishra, the then Principal Secretary to the Chief Minister, was present. Shri Bhatt further stated that, to the best of his recollection, no politician or Minister was present in the meeting. He also stated that Shri G. C. Raiger did not attend the meeting because he was on casual leave and that he was not aware whether Shri Raiger had returned to Ahmedabad on the evening of 27‑02‑2002. He denied having contacted Shri Raiger on the evening of 27‑02‑2002 at his residence., Shri Sanjiv Bhatt claimed that he regularly attended intelligence‑related meetings called by the Chief Minister. According to him, the meeting was essentially a law and order review meeting and the main issues discussed revolved around the bandh call given by the Vishwa Hindu Parishad and the ruling Bharatiya Janata Party, as well as the decision to bring the dead bodies of Godhra victims to Ahmedabad. He stated that Shri P. C. Pande had strongly opposed the Government’s decision to transport the dead bodies, as it was likely to lead to serious communal riots, and that these views were supported by Shri K. Chakravarthi, the then Director General of Police. Shri Bhatt said that Shri Chakravarthi had conveyed to the Chief Minister that the available resources of Gujarat Police were overstretched to cope with the anticipated law and order situation and that he was unable to supplement the manpower resources of the Commissioner of Police, Ahmedabad City. He also stated that, as per his recollection, there was no meaningful contribution from Shri K. Nityanandam, the then Secretary (Home), Shri Ashok Narayan, the then Additional Chief Secretary (Home), and Smt. Swarna Kanta Varma, the then Acting Chief Secretary., Shri Bhatt further stated that the Director General of Police and the Commissioner of Police tried to impress upon the Chief Minister that the bandh call given by the Vishwa Hindu Parishad on 28‑02‑2002, which was supported by the ruling party, was not a good idea for the law and order situation of the State, but the Chief Minister was not convinced by their arguments and said that an incident like the burning of kar‑sevaks at Godhra could not be tolerated. According to Shri Bhatt, the Chief Minister expressed the view that Gujarat Police had been following the principle of balancing actions against Hindus and Muslims while dealing with communal riots, and that this time the situation warranted that Muslims be taught a lesson to ensure that such incidents do not recur, and that the emotions were running very high amongst Hindus and they should be allowed to vent their anger., Shri Bhatt said that no minutes of the meeting were prepared by him or the Director General of Police, and he had no knowledge of whether any minutes were kept by the Chief Minister’s office or the Home Department. He claimed to have made a mention of the meeting in his movement diary for February 2002. He also stated that he expressed his opinion against the decision of the Bharatiya Janata Party to support the bandh call and against the decision to bring the dead bodies of the victims from Godhra to Ahmedabad, arguing that the funeral procession in the respective areas would lead to major communal violence across the State., Shri Bhatt said that after the meeting he took leave from Shri K. Chakravarthi and returned to the State Intelligence Bureau office to send alert messages and instructions to the concerned police and intelligence units. He claimed to have issued several messages to police units and field units of the Intelligence Bureau regarding the developing situation, including the possibility of widespread communal violence during the Gujarat bandh, and reiterated to different Commissioner of Police and Senior Superintendent of Police to take all possible measures to prevent untoward incidents in their jurisdictions. He stated that he informed everyone about this but did not inform his own Head of Department, Shri G. C. Raiger, whom he had allegedly represented in the meeting. He denied contacting Shri G. C. Raiger by phone on the night of 27‑02‑2002 and said that he briefed Shri Raiger about the meeting when he attended the office on the morning of 28‑02‑2002, a claim denied by Shri Raiger. Call details of Shri Bhatt’s government mobile phone show that he was in Ahmedabad until 10:57 hours on 28‑02‑2002., Shri Bhatt claimed that the details of the discussions held during the meeting were not mentioned in any official correspondence or reports because he attended the meeting in the capacity of an intelligence officer. He said that reports began coming to the State Intelligence Bureau regarding preparations by Sangh Parivar cadres to enforce the bandh call on 28‑02‑2002, and that these reports should be available in the State Intelligence Bureau records. He also claimed to have attended a second meeting at the Chief Minister’s residence on 28‑02‑2002 at about 10:30 hours along with Shri G. C. Raiger, the then Additional Director General (Intelligence), in which the deployment of manpower during the Gujarat bandh was discussed. That meeting was also attended by Shri K. Chakravarthi, the then Director General of Police, Shri Anil Mukim, the then Additional Private Secretary to the Chief Minister, Late Ashok Bhatt, the then Health Minister, and Shri I. K. Jadeja, the then Urban Development Minister., Shri Bhatt stated that at the conclusion of the second meeting the Chief Minister instructed the Director General of Police that Late Ashok Bhatt and Shri I. K. Jadeja would assist the police in monitoring the situation and that all necessary assistance must be rendered to the Ministers. He said that the Chief Minister did not specifically instruct how the Ministers would assist the police. He added that the issue of requisitioning the Army was also discussed based on suggestions from the Director General of Police and the Additional Director General (Intelligence), but the Chief Minister seemed reluctant and preferred to wait and watch how the situation developed before rushing for Army deployment., Shri Bhatt said that after the second meeting he returned to Police Bhavan, went to his chamber on the second floor, and shortly thereafter went to the Director General of Police’s chamber around 11:00 hours to obtain his signature for requisitioning additional forces, finding Late Ashok Bhatt and Shri I. K. Jadeja seated in the chamber where everyone took tea. Later he visited the State Control Room on the first floor of Police Bhavan to collect some documents and saw Shri I. K. Jadeja and his staff occupying the chamber of Deputy Superintendent of Police, State Control Room. Finding this arrangement odd, he, with the permission of the Director General of Police, shifted Shri Jadeja and his staff to the chamber of Shri P. C. Thakur, the then Inspector General of Police, who was on leave. Later during the day he learned that Shri Jadeja had left Police Bhavan, but he did not interfere with the working of the State Police Control Room on 28‑02‑2002., Shri Bhatt claimed that he received information about a mob attack on Gulberg Society around 11:30 hours on 28‑02‑2002 and deputed Police Inspector Shri Bharwad of the Ahmedabad Regional Office to go to Gulberg Society to report on the developing situation and inform the State Intelligence Bureau. He said he conveyed these developments personally to the Director General of Police and the Additional Director General (Intelligence). Because Late Ahsan Jafri, former Member of Parliament, was residing in Gulberg Society, Shri Bhatt telephonically conveyed the details to the Chief Minister directly, though he could not recall whether the call was made on the Chief Minister’s landline or on the mobile phone of Shri O. P. Singh, Principal Assistant to the Chief Minister., Shri Bhatt stated that he attended another meeting at the Chief Minister’s residence on the afternoon of 28‑02‑2002 for assessment of the ongoing situation, which was attended by the Additional Chief Secretary (Home), Director General of Police, Additional Director General (Intelligence), and Secretary (Home). In that meeting the Chief Minister agreed to send a formal requisition to the Government of India for deployment of the Army. Shri Bhatt claimed that he briefed the Chief Minister about the developments at Gulberg Society and the threat to the life of Late Ahsan Jafri and other residents. He further claimed that the Chief Minister took him aside after the meeting and informed him that he had learned that Late Ahsan Jafri had opened fire on Hindus during earlier communal riots, and asked him to dig out all facts pertaining to those earlier instances. Shri Bhatt said he conveyed these facts to Shri G. C. Raiger, the then Additional Director General (Intelligence), but could not collect the information because he was busy with urgent matters related to the riots., Shri Bhatt denied having submitted any report to his department and asserted that he attended the meetings as a Staff Officer to the Director General of Police or Additional Director General (Intelligence), a post that did not exist. When questioned why he did not appear as a witness in response to a public notice issued by the Special Investigation Team on 11‑03‑2008, he claimed that disclosing the information would not have been appropriate unless he was under a legal obligation. He also stated that he did not file any affidavit or appear before any commission or other body enquiring into the 2002 communal riots because he was not asked by the Government of Gujarat, the Director General of Police, or the Additional Director General (Intelligence) to do so. He denied knowledge of whether the alleged instructions given by the Chief Minister were passed on to field units by any of the officers who attended the meeting on 27‑02‑2002., During the investigation, seven senior administrative and police officers—Shri Ashok Narayan, the then Additional Chief Secretary (Home); Shri P. K. Mishra, the then Principal Secretary to the Chief Minister; Shri K. Chakravarthi, the then Director General of Police; Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City; Shri Anil Mukim, the then Additional Private Secretary to the Chief Minister; Shri K. Nityanandam, the then Secretary (Home); and Shri Prakash S. Shah, the then Additional Secretary (Law and Order)—who had been examined in 2009‑10 categorically stated that Shri Sanjiv Bhatt was not present in the meeting held at the Chief Minister’s residence on the night of 27‑02‑2002. During the earlier inquiry, three participants—Shri Nityanandam, Shri Anil Mukim, and Smt. Swarna Kanta Varma—were not asked this question; three others—Shri Ashok Narayan, Shri P. C. Pande, and Shri P. K. Mishra—stated that they did not recollect. Shri P. S. Shah had not been examined. Shri K. Chakravarthi also stated at that stage that Shri Bhatt was not present in the meeting. All participants confirmed that no Minister or politician was present., Smt. Swarna Kanta Varma, then Acting Chief Secretary and ACS (Health and Family Department), was never posted in the Home Department and therefore did not know Shri Sanjiv Bhatt. When shown his photograph, she said she could not recollect ever meeting him in any meeting. According to her, the Chief Minister had stated in the meeting that the incident in Godhra was very unfortunate and should be dealt with a heavy hand, and she does not recollect any Cabinet Minister being present. All participants denied that the Chief Minister uttered any words about Gujarat Police balancing actions against Hindus and Muslims or that the situation warranted Muslims being taught a lesson and Hindus being allowed to vent their anger. There is unanimity among all participants that no Minister or politician was present in the meeting., Shri Bhatt contended that Shri P. C. Pande had strongly opposed the Government’s decision to transport the dead bodies to Ahmedabad, as it could lead to communal riots, and that his views were supported by Shri K. Chakravarthi. However, Shri P. C. Pande stated that the substance of the meeting was that the dead bodies were being brought to Ahmedabad to facilitate relatives in identifying and claiming them. Shri K. Chakravarthi stated that the decision to bring the dead bodies was not opposed by anyone on the ground that many victims belonged to Ahmedabad and nearby areas, which were easily approachable. This suggests that Shri Bhatt’s account of the deliberations is inaccurate., It was also contended by Shri Bhatt that both the Director General of Police and the Commissioner of Police tried to impress upon the Chief Minister that the bandh call given by the Vishwa Hindu Parishad on 28‑02‑2002, which was supported by the ruling party, was not advisable for the law and order situation, and that the Chief Minister was not convinced. Shri K. Chakravarthi stated that on the night of 27‑02‑2002 he did not know that the bandh call was supported by the ruling party, and Shri P. C. Pande said he learned about the party’s support only on 28‑02‑2002 through newspaper reports., All participants stated that the Chief Minister expressed apprehension that the Godhra incident was very serious and could affect the public at large, and therefore adequate bandobast was needed to avoid any untoward incident., Shri Bhatt claimed that he mentioned his attendance at the meeting on the night of 27‑02‑2002 in his movement diary. However, the State Intelligence Bureau reported that no such diary was submitted by Shri Bhatt. Shri G. C. Raiger stated that there was no system of submitting a monthly movement diary by Deputy Commissioners, and that Shri Bhatt never submitted any such diary. Shri Bhatt also claimed to have briefed Shri G. C. Raiger on 28‑02‑2002 at about 1000 hours about the alleged meeting and the illegal instructions given by the Chief Minister. This claim is false, as call detail records of his government mobile phone show that he was in Memnagar, Ahmedabad until 10:57:43 hours on 28‑02‑2002., Shri Bhatt asserted that he did not submit any report about the meeting because he attended it as a Staff Officer to the Director General of Police or Additional Director General (Intelligence). This contention is absurd because there was no post of Staff Officer to the Additional Director General (Intelligence), and Shri K. Chakravarthi denied that Shri Bhatt was posted as a Staff Officer to the Director General of Police, noting that the Staff Officer rank is that of Deputy Superintendent of Police, not Superintendent of Police., Shri Bhatt also claimed that he did not file an affidavit or appear as a witness before the Special Investigation Team in response to its public notice, as it would not have been appropriate for him to divulge information unless he was duty‑bound to do so. He appeared before the Investigating Officer on 25‑03‑2011, two days after recording his statement, along with Constable Shri K. D. Panth, and requested that his further statement be recorded. In his further statement he mentioned the names of two Assistant Intelligence Officers, Shri Shailesh Raval and Shri K. D. Panth, who used to accompany him to most meetings. He stated that after the recording of his statement on 21‑22‑03‑2011, he recollected that Shri K. D. Panth had followed him to the Chief Minister’s residence with files in his staff car from the Director General of Police’s office, while he himself had accompanied the Director General of Police in the latter’s staff car. He also stated that Shri K. D. Panth returned with him to Police Bhavan and remained in the office till late at night attending to urgent official work. Shri Bhatt disclosed that his driver was Shri Tarachand Yadav, presently attached to Shri V. K. Mall, Joint Director, Gujarat Police Academy, Karai, Gandhinagar, and that as Deputy Commissioner of Intelligence (Security) he used the government mobile phone number 9825049398., In summary, the evidence shows that Shri Sanjiv Bhatt’s claims of attending the law and order meetings on 27‑02‑2002 and 28‑02‑2002 are contradicted by the testimonies of senior officials and by documentary evidence such as staff car logs, call detail records, and the absence of any movement diary. The meetings were law and order reviews attended by various officials of the State Administration and were not secret; therefore, the Official Secrets Act does not apply. The Special Investigation Team and the Nanavati Commission, both constituted under the law, have the authority to require disclosure of relevant information, and Shri Bhatt’s refusal to provide such information lacks legal justification.
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Shri Sanjiv Bhatt has further contended that, in view of the fact that the late Ahesan Jafri, former Member of Parliament, was residing in Gulberg Society, he had telephonically conveyed the details directly to the Chief Minister either on the landline or on the mobile phone of Shri O. P. Singh, Personal Assistant to the Chief Minister. However, he has not been able to specify on which telephone he rang up the Chief Minister. Shri O. P. Singh has denied that he received any call from Shri Sanjiv Bhatt. The call details of the Gandhinagar tower are not available as they had not been requisitioned by Shri Rahul Sharma, the then Superintendent of Police, during investigation of the riot cases. Notably, there is no practice in Gujarat of Superintendent of Police level officers speaking directly to the Chief Minister over phone., Further, Shri G. C. Raiger, the then Additional Director General (Intelligence), who was in office on 28 February 2002, has stated that the allegation is totally false and that Shri Sanjiv Bhatt had never informed him about it. Shri C. J. Bharwad, the then Police Inspector, State Intelligence Bureau, Ahmedabad Region, has stated that on 28 February 2002, on the basis of information collected by him during the riots, he went to Gulberg Society, Mehsana Nagar, of his own accord and passed on the various information reports collected by him to the State Intelligence Bureau Control Room. He further stated that around 12:15 hours on 28 February 2002, he sent a message to the State Intelligence Bureau Control Room that, since Muslims reside in Gulberg Society in Mehsana Nagar area, a strict watch should be kept there. He contradicted the statement made by Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), and denied any telephonic discussions with him about the situation in Gulberg Society, as the subject concerned the Communal Desk of the Intelligence Bureau, which was being looked after by Shri P. B. Upadhyay, the then Deputy Commissioner of Intelligence (Communal). He further stated that he passed on a message at 14:50 hours on 28 February 2002 that a mob of 3,000 rioters had surrounded Gulberg Society. On the same day, he passed another message at 17:00 hours that a mob of 5,000 rioters had surrounded and set fire to Gulberg Society, in which several persons including the late Ahesan Jafri, former Member of Parliament, had been burnt alive and that police deployment was required., The version of Shri Bharwad belies the testimony of Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), who claimed that he had given directions to Shri Bharwad to go to Gulberg Society and give the latest updates and that Shri Bharwad was in constant touch with him. Investigation further revealed that the headquarters of the State Intelligence Bureau is located at Gandhinagar and is headed by an Additional Director General, assisted by an Inspector General of Police (Security), a Deputy Inspector General (Political & Communal) and three Deputy Commissioners of Intelligence and other officers and supporting staff. Besides the State Intelligence Bureau, there are intelligence units headed by Inspectors/Deputy Superintendents of Police working independently in the districts. The State Intelligence Bureau has been entrusted with the duties of collection of intelligence in respect of maintenance of law and order including communal intelligence in Gujarat State. In brief, the functions of the State Intelligence Bureau relate to collection and collation of information regarding political, industrial and other similar development in the State, verification of antecedents, protection and security of VIPs, watch over anti‑national activities, movement of foreigners and all other matters pertaining to internal security, collection of intelligence regarding all types of communal activities and to keep the Government informed of all these activities from time to time., In February 2002, Shri G. C. Raiger was posted as Additional Director General (Intelligence) and was assisted by Shri O. P. Mathur, Inspector General of Police (Security & Administration). In addition, there was another post of Inspector General of Police (Political & Communal), which was lying vacant due to the death of Shri S. Kumar in January 2002. There were three Superintendent of Police rank officers, of which Shri Sanjiv Bhatt was posted as Deputy Commissioner of Intelligence (Security), Shri P. B. Upadhyay as Deputy Commissioner of Intelligence (Political & Communal) and the third post, Deputy Commissioner of Intelligence (Administration), was vacant. It has further come to light that Shri G. C. Raiger was on casual leave from 26 February 2002 to 28 February 2002 and was away to Rajasthan, but returned on the evening of 27 February 2002. Shri P. B. Upadhyay, the then Deputy Commissioner of Intelligence (Communal), was on leave from 26 February 2002 onwards to arrange for the sacred thread ceremony of his grandson fixed for 1 March 2002. However, Shri O. P. Mathur, Inspector General of Police, called him up on the afternoon of 27 February 2002, informed him about the Godhra incident and instructed him to resume duties immediately. Accordingly, Shri Upadhyay resumed duties on the evening of 27 February 2002. In his absence, his work was being looked after by Shri Sanjiv Bhatt, who was the only other Superintendent of Police rank officer in the State Intelligence Bureau., Shri G. C. Raiger has stated that on his return to Ahmedabad on 27 February 2002, he learned about the Godhra incident and telephonically informed Director General of Police Shri K. Chakravarthi on the evening of 27 February 2002 that he would cut short his leave and come to Gandhinagar, if necessary, to which the DGP asked him to join on 28 February 2002. Shri Raiger denied having been informed by the DGP about the meeting called at the Chief Minister's residence on the night of 27 February 2002. Shri Raiger also denied having received any information about the meeting from either the State Intelligence Bureau Control Room, the State Control Room or even Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security). Shri O. P. Mathur has also denied that he received any such information about a meeting called at the Chief Minister's residence on the night of 27 February 2002. Shri P. B. Upadhyay, the then Deputy Commissioner of Intelligence (Communal), who had resumed duties on the evening of 27 February 2002 and was the officer concerned with the said meeting, also had no information about the meeting, thereby suggesting that no one from the intelligence was required to attend the meeting., Shri K. Chakravarthi, the then Director General of Police, has stated that he had gone to the studios of Door‑Darshan, Ahmedabad City on the night of 27 February 2002 for the telecast of an appeal to the general public to maintain communal harmony and peace, when he received a message from the State Control Room that the Chief Minister had called for a meeting at his residence in Gandhinagar around 22:30 hours. Shri Chakravarthi stated that he straight away went to the Chief Minister's residence in Gandhinagar and arrived a little earlier, waiting as the Chief Minister had not arrived from Godhra at that time. According to Shri Chakravarthi, Smt. Swarna Kanta Varma, the then Acting Chief Secretary, Shri Ashok Narayan, the then Additional Chief Secretary (Home), Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, and Shri K. Nityanandam, the then Secretary (Home), arrived subsequently. Shri Chakravarthi has categorically denied having given any instructions to Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), to attend the aforesaid meeting. He further stated that Shri Sanjiv Bhatt did not accompany him to the Chief Minister's residence in his car from the Director General's office, as the DGP did not visit the office at that time. He also stated that if Shri Raiger had been available in Ahmedabad, he would have given instructions to the State Control Room to call him. According to Shri Chakravarthi, otherwise, Shri O. P. Mathur, the then Inspector General of Police (Administration & Security), was available and could have been called to attend the meeting rather than asking Shri Sanjiv Bhatt, a junior officer of Superintendent of Police rank, to attend the meeting., Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), named two Assistant Investigating Officers, namely Shri K. D. Panth and Shri Shailesh Raval, who used to accompany him to such meetings along with the files. After Shri Sanjiv Bhatt's further statement was recorded at his own request on 25 March 2011, he insisted that Shri K. D. Panth, who was accompanying him and was waiting outside, should also be examined. He stressed that Shri Panth should be examined in his presence. However, Shri Bhatt was informed that Shri K. D. Panth would be called on a date convenient to the investigating officer and examined. Accordingly, Shri Panth was informed on 4 April 2011 to attend the Special Investigation Team office on 5 April 2011 for his examination. Shri K. D. Panth, in his examination, stated that he was on casual leave on 27 February 2002 and denied that he followed Shri Sanjiv Bhatt to the Chief Minister's residence on the night of 27 February 2002. He stated that Shri Sanjiv Bhatt had called him to his residence on the night of 24 March 2011 and informed him that he was going to make a statement before the SIT that Shri Panth had gone to attend a meeting at the Chief Minister's residence on the night of 27 February 2002, and that he had been called at the State Intelligence Bureau office and was to be ready with the files for the said meeting. Shri Sanjiv Bhatt further informed Shri Panth that he should accompany him to the SIT office on 25 March 2011 and make a statement on these lines. During his examination, Shri Panth further stated that he had contacted Shri Sanjiv Bhatt over his landline telephone number 27‑455117 from mobile number 8140657775 (belonging to a friend) after he was called for examination scheduled for 5 April 2011. Shri Sanjiv Bhatt called him at his residence on 4 April 2011 at 20:30 hours. At his residence, Shri Sanjiv Bhatt informed Shri Panth that he had made a statement to the SIT that he (Bhatt) had accompanied Director General of Police Shri K. Chakravarthi in his official car to the Chief Minister's office from the DGP's office on the night of 27 February 2002 and that Shri Panth had followed him in his staff car along with the files. Shri Sanjiv Bhatt asked Shri Panth to make a statement accordingly. Subsequently, Shri K. D. Panth lodged a complaint against Shri Sanjiv Bhatt with the local police, alleging that Shri Bhatt had influenced, detained, put severe pressure and compelled him to sign an affidavit containing false facts, in pursuance of which a case No. ICR No. 149/2011 was registered under sections 189, 193, 195, 341, 342 of the Indian Penal Code with Ghatlodia police station, Ahmedabad City, Gujarat State. Shri Sanjiv Bhatt has since been arrested in this case and the matter is under investigation. In view of this, no reliance can be placed upon the version of Shri Sanjiv Bhatt. This conduct of Shri Sanjiv Bhatt in arranging, prompting and controlling the witness to corroborate his statement is highly suspicious and undesirable., Shri Sanjiv Bhatt also contacted Shri Shailesh Raval on 28–29 March 2011 over mobile phone number 9825688223 of one Shri N. J. Chauhan, a clerk in the Chief Minister's Security, and informed him that he would be called by the SIT for his examination. Shri Sanjiv Bhatt asked Shri Raval that he had worked with him in the Security Branch for a long time and was aware that Shri Bhatt used to attend meetings, to which Shri Raval replied that he had accompanied him in Border Security Nodal Committee meetings, which dealt only with border security. Shri Raval also informed Shri Bhatt that he never worked in the Communal Branch and was not aware of anything about it. Shri Bhatt thereafter disconnected the phone. Shri Shailesh Raval, Police Inspector, later sent a written complaint to the Chairman of the SIT that he feared reprisal from Shri Sanjiv Bhatt as he had refused to support the false claims of Shri Bhatt. This is yet another attempt by Shri Sanjiv Bhatt to tutor a witness to depose in a particular manner so as to support his statement, which further makes his claim of having attended the meeting at the Chief Minister's residence on the night of 27 February 2002 false., Shri Tarachand B. Yadav, driver constable in SRP Group‑XII, who had been dismissed from service on the charge of obtaining employment in Gujarat Police on the basis of a false and forged certificate, has stated that he used to drive the staff car allotted to Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), during February–March 2002. However, he does not remember the registration number of the staff car. Shri Yadav could not give the name of the Personal Security Officer of Shri Sanjiv Bhatt. He recollects that Shri Sanjiv Bhatt went to the Chief Minister's residence in a three‑star car with either the Director General of Police or some Additional Director General of Police from Police Bhavan and that he followed him in his staff car, in which Shri K. D. Panth sat with some files. He also stated that Shri Sanjiv Bhatt returned after about 25 minutes and he took him to Police Bhavan, where he worked till midnight (00:30 hours) and then drove him back to his residence in Ahmedabad. Shri Yadav could not say whether Shri Sanjiv Bhatt accompanied the DGP or an Additional Director General rank officer. He denied knowledge as to whether Shri Sanjiv Bhatt went inside the Chief Minister's office to attend the meeting, as he was waiting outside. He further stated that on 28 February 2002, Shri Sanjiv Bhatt reached Police Bhavan at about 09:00 hours, worked in his office and did not go out to attend any meeting at the Chief Minister's house. On 28 February 2002, he stated that he started from Gandhinagar and dropped Shri Sanjiv Bhatt at his residence at about 19:00 hours. However, he could not recollect the details of the events of 1st, 2nd and 3rd March 2002 due to the passage of time. The version of Shri Yadav is contradicted by Shri K. D. Panth, who denied having followed Shri Sanjiv Bhatt in his staff car driven by Shri Yadav. Moreover, Shri Yadav is an unreliable witness due to his background; he has been dismissed from service for misconduct. He has admitted that he went to the residence of Shri Sanjiv Bhatt on 17 April 2011 afternoon for a briefing before making a statement to the SIT. The call details of his mobile phone clearly show that he was in touch with Shri Sanjiv Bhatt. Even when he was being interrogated in the SIT office, Shri Sanjiv Bhatt repeatedly contacted him over his mobile phone, to which he did not respond. In addition, the version of Shri Yadav about the movements of Shri Sanjiv Bhatt on 28 February 2002 is proved false, as the call detail records of Shri Bhatt’s official mobile phone show his location at Ahmedabad City till 10:57 hours. Shri Yadav further contradicts the version of Shri Sanjiv Bhatt, who claims to have attended a meeting on 28 February 2002 at 10:30 hours at the Chief Minister's residence. The overall impression is that Shri Sanjiv Bhatt introduced him as a false witness to corroborate his own false version about attending a meeting at the Chief Minister's residence on the night of 27 February 2002, whereas Shri Yadav does not recollect anything about the events of 27 February 2002 onwards. Moreover, he is a motivated witness who bears a grudge against the Government due to his dismissal. In view of this, no reliance can be placed upon his evidence., During further investigation, Police Sub‑Inspectors of the then Director General of Police Shri K. Chakravarthi were examined. PSI Dilip Jivaram Ahir and Head Constable Dharampal Jagaram Yadav stated that they had never seen Shri Sanjiv Bhatt sitting in the vehicle along with the DGP. Shri G. C. Raiger, the then Additional Director General (Intelligence), has stated that Shri Sanjiv Bhatt was never posted as Staff Officer to the Additional Director General (Intelligence), because there is no such post in the State Intelligence Bureau. Furthermore, Shri Sanjiv Bhatt could not have been a Staff Officer to the DGP, as the late V. S. Shinde, Deputy Superintendent of Police, was posted as Staff Officer to the DGP. Shri Raiger has further stated that Shri Sanjiv Bhatt used to accompany him in meetings called by the Chief Minister sometimes, but was normally made to wait outside with the relevant files and did not join the meetings. Shri Raiger was unable to recollect any meeting called by the Chief Minister which Shri Sanjiv Bhatt attended along with him. Shri Raiger has further stated that on 28 February 2002, he became aware of the meeting called by the Chief Minister at his residence on 27 February 2002, but Shri Sanjiv Bhatt did not inform him of having attended the meeting or its agenda or the matters discussed., Shri R. B. Sreekumar, formerly Additional Director General of Police (Intelligence), in his interview given to Star Hindi News Channel at 12:35 hours on 22 April 2011, stated that Shri Sanjiv Bhatt, Deputy Commissioner of Intelligence (Security), had never informed him about having attended a meeting at the Chief Minister's residence on 27 February 2002. He further stated that at the time of filing an affidavit before the Nanavati Shah Inquiry Commission, he had asked all officers of the State Intelligence Bureau to provide him with the relevant information and documents in respect of the Godhra riots, but Shri Sanjiv Bhatt did not give him any information about the said meeting. According to Shri Sreekumar, Shri Sanjiv Bhatt was handling the security portfolio and the communal portfolio was being looked after by another officer. Shri Sreekumar also stated in the interview that it was normal procedure that if a junior officer attended a meeting on behalf of a senior, he was required to submit a report to his superior and that Shri G. C. Raiger, the then Additional Director General of Police (Intelligence), should be asked about it. As already stated above, Shri Raiger has denied having received any information or report from Shri Sanjiv Bhatt in this regard., The call detail records of the Government mobile phone number 9825049398, allotted to Shri Sanjiv Bhatt, show that on 27 February 2002, Shri Sanjiv Bhatt remained at Ahmedabad till about 11:20 hours and returned to Ahmedabad at 19:25 hours. He attended to various calls till 20:40 hours and thereafter there is no record of any calls made or received by him. However, the call detail records do not indicate that he was traveling towards Gandhinagar at or at 20:40 hours. Further, on 28 February 2002, as per call details, the location of Shri Bhatt was noted at Ahmedabad till 10:57:43 hours and again at Ahmedabad at 20:56 hours. The claim of Shri Sanjiv Bhatt that he attended a meeting at the Chief Minister's residence on 28 February 2002 at 10:30 hours is therefore proved false and incorrect. The Chief Minister's residence is at Gandhinagar, more than 25 kilometres from his residence at Memnagar, Ahmedabad, and it normally takes 30 to 45 minutes to reach Gandhinagar., Shri Ashok Narayan, the then Additional Chief Secretary (Home), has stated that a meeting was held by the Chief Minister on the morning of 28 February 2002, which was attended by the Acting Chief Secretary, the Director General of Police and the Additional Director General (Intelligence) and the matter relating to the calling of the Army was also discussed, but no decision was taken and it was decided to watch the situation. He has categorically denied that the late Ashok Bhatt and Shri I. K. Jadeja, Ministers, had attended the said meeting. The claim of Shri Sanjiv Bhatt that he attended the meeting at 10:30 hours at the Chief Minister's residence is proved false from the location of his mobile phone, which was at Prerna Tower, Vastrapur‑1, Ahmedabad City at 10:57:43 hours. Moreover, his contention that the two Ministers were present in the said meeting is disproved by the statement of Shri Ashok Narayan, who has categorically stated that they were not present., As regards the alleged utterances made by the Chief Minister in the meeting called on the night of 27 February 2002 at his residence, it may be mentioned that Shri R. B. Sreekumar, the then Additional Director General (Intelligence), had claimed that Shri K. Chakravarthi, the then Director General of Police, had informed him on 28 February 2002 that the Chief Minister had said in the meeting that communal riots police take action against Hindus and Muslims on a one‑to‑one basis, which would not allow Hindus to give vent to their anger. Shri Chakravarthi denied that he held any such talks with Shri Sreekumar. Even otherwise, the version of Shri Sreekumar becomes hearsay. However, Shri Sanjiv Bhatt, who insists that he was in the meeting, alleged that the Chief Minister had said that for too long the Gujarat Police had been following the principle of balancing actions against Hindus and Muslims while dealing with communal riots in Gujarat. He claimed that this time the situation warranted that the Muslims be taught a lesson to ensure that such incidents do not recur. The Chief Minister, Shri Narendra Modi, expressed the view that emotions were running very high amongst Hindus and it was imperative that they be allowed to vent out their anger. Assuming for the time being that the Chief Minister did say so, there is a material difference between the two versions, as Shri Sanjiv Bhatt has tried to improve his version by adding that this time the situation warranted that the Muslims be taught a lesson. Since there is no independent corroboration of the version of either Shri R. B. Sreekumar or Shri Sanjiv Bhatt, no reliance can be placed on either of them. It is relevant to mention that the Learned Amicus Curiae has agreed with the findings of the Special Investigation Team that the aforesaid statement of Shri R. B. Sreekumar was not admissible in evidence., Shri Sanjiv Bhatt has not been able to give any satisfactory explanation that when he was in possession of a plethora of information and was an eyewitness to some of the important events, why did he not file an affidavit before the Nanavati Commission and also did not appear as a witness in response to the Government circular before any legal authority. He does not explain why he did not respond to a public notice issued by the SIT on 11 April 2008. However, on 21–22 March 2011, when he made a statement under section 161 of the Criminal Procedure Code before the SIT, it is not understood by whom and how the claimed secrecy was waived. His silence for a period of more than nine years without any proper explanation appears suspicious and gives an impression that he is trying to manipulate the matters to his personal advantage to settle his service matters., During the course of further investigation, a complaint was received from Shri Dharmesh P. Shukla, an accused in ICR No. 67/2002 of Mehsana Nagar Police Station (Gulberg Society Case), who is facing trial, in which he contended that there was no justification to record the statement of Shri Sanjiv Bhatt on account of the following reasons: (i) Shri Sanjiv Bhatt, Indian Police Service, is known to be a police officer of dubious character facing several criminal cases of serious nature and whenever he wants a favour from the Government, he creates a situation whereby the Government is compelled to help him; (ii) Shri Sanjiv Bhatt, who had not even whispered about any such meeting in the past contemporaneously, surprisingly came out with a new theory that he was a part of the meeting; (iii) this sudden stand taken by Shri Sanjiv Bhatt after nine years of silence and his insistence that his statement be recorded only after an offence is registered is at the behest of persons with vested interests; (iv) it is known to almost everyone in Gujarat that Shri Sanjiv Bhatt is famous for his pressure tactics to obtain illegal favours., Since the allegations leveled by the complainant were serious, a communication was sent to the Government to make available the details of all complaints, pending inquiries, prosecutions and departmental proceedings against Shri Sanjiv Bhatt. A detailed reply has been received from the Government of Gujarat, which shows that Shri Sanjiv Bhatt has faced a number of departmental inquiries and was granted three promotions to the rank of Junior Administrative Grade, Selection Grade and Deputy Inspector General Grade on the same day, 21 September 2007, after dropping three departmental inquiries pending against him by orders dated 6 August 2005, 3 September 2005 and 24 July 2006. Shri Sanjiv Bhatt, who is eligible for the Inspector General of Police grade, has not been promoted because of the departmental inquiries and criminal cases pending against him. A charge‑sheet served upon him on 29 December 2010, for irregularities in police recruitment under his chairmanship as Superintendent of Police, Banaskantha, is still pending., It has further come to light that while handling a law and order situation during his posting as Assistant Superintendent of Police, Jamnagar in 1990, Shri Sanjiv Bhatt committed police atrocities on peaceful and innocent villagers belonging to a particular community at a place called Jam Jodhpur. In the beatings by police, one person was killed. The victims included a pregnant woman, two assistant engineers of the Irrigation Department and one Circle Officer of the Revenue Department. Shri Bhatt applied provisions of the draconian Terrorist and Disruptive Activities (Prevention) Act against the innocent persons and arrested 140 individuals under this Act. Due to public pressure, the Government ordered an inquiry conducted by a retired judicial officer into the incident and Shri Bhatt was found guilty of (a) misuse of TADA, (b) police atrocities and (c) unnecessary imposition of curfew for 70 hours leading to hardship and harassment to the people. It has also come to light that the criminal case relating to the death of a person due to police atrocities in the incident was investigated by the State Crime Investigation Department against Shri Sanjiv Bhatt and others. On completion of investigation, the Investigation Officer sought prosecution sanction from the Government under section 197 of the Criminal Procedure Code, which was declined and therefore a closure report was filed in the competent court. However, the Court rejected the closure report on 20 December 1995 and took cognizance. The State Government filed a Criminal Revision Application in the Sessions Court, which was rejected. A case under sections 302, 323, 506(1), 114 of the Indian Penal Code has now been committed to the Sessions Court, Jamnagar and is presently pending with the Fast Track Court, Jamkhambhalia for framing of charges against Shri Sanjiv Bhatt and others. Significantly, the Gujarat High Court awarded compensation of Rs. 1,50,000 to the victim who had died due to police atrocities in the above case., Another criminal complaint was filed against Shri Sanjiv Bhatt while he was posted as Superintendent of Police, Banaskantha District in 1996 by Shri Sumersingh Rajpurohit, an advocate practising at Pali, Rajasthan, and a criminal case was registered against Shri Sanjiv Bhatt and others vide FIR No. 403/96 dated 18 November 1996 under sections 120B, 195, 196, 342, 347, 357, 365, 388, 458, 482 of the Indian Penal Code and sections 58(1) and 58(2) of the Narcotic Drugs and Psychotropic Substances Act. On completion of the investigation, a charge‑sheet was filed against Shri Sanjiv Bhatt and others under sections 114, 120B, 323, 342, 348, 357, 365, 368, 388, 452, 201 and 482 of the Indian Penal Code and sections 9, 17, 18, 29, 58(1) and 58(2) read with section 37 of the Narcotic Drugs and Psychotropic Substances Act in the court of Special Judge, NDPS Act, Jodhpur, Rajasthan. The allegations in brief are that the complainant, Shri Sumersingh Rajpurohit, was occupying a property as a tenant in Pali, Rajasthan, which was owned by a lady who happened to be a sister of Shri R. R. Jain, a sitting Judge of the Gujarat High Court. According to the complaint, Shri Sanjiv Bhatt and his subordinate police officers planted one kilogram of narcotic drug in a room in a hotel at Palanpur, Gujarat, which was shown as occupied by the complainant though he was at Pali, Rajasthan at that time. The complainant was abducted at midnight on the instructions of Shri Sanjiv Bhatt by his subordinate police officers of Gujarat Police, who went from Palanpur to Pali, Rajasthan to abduct him. The complainant was brought to Palanpur, Gujarat and pressurized by Shri Sanjiv Bhatt and his subordinate police officers to vacate the property by showing him arrested under NDPS offence. The complainant, while in the custody of Gujarat Police and due to police torture, vacated the property and physical possession was handed over to the sister of Shri R. R. Jain, Judge of the Gujarat High Court. Shri Sanjiv Bhatt and his subordinate police officers thereafter released the complainant on 8 May 1996 by filing a report under section 169 of the Criminal Procedure Code in which it was mentioned that the complainant could not be identified in the Test Identification Parade. Quashing petitions were filed in this matter by the accused persons in the Rajasthan and Gujarat High Courts, but the same had been dismissed. The matter is now pending before the Supreme Court of India.
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In the meantime, on the complaint of Shri Sidheshwar Puri, Secretary, Bar Association, Pali (Rajasthan), National Human Rights Commission, taking a very serious view of this false case under the Narcotic Drugs and Psychotropic Substances Act, vide its order dated 15-09-2010 asked the Government of Gujarat to pay a sum of Rs. one lakh as monetary relief to Shri Sumersingh, Advocate Pali., Significantly, Gujarat Vigilance Commission recommended twice on 15-07-2002 and 19-10-2006 that Shri Sanjiv Bhatt should be placed under suspension for his professional misconducts, but the Government of Gujarat did not do so. In view of the aforesaid position, it can be inferred that Shri Sanjiv Bhatt is facing a lot of problems in service matters and has got an axe to grind against the Government of Gujarat and, therefore, his evidence is ill motivated and cannot be relied upon., Government of Gujarat vide its letter dated 22-06-2011 forwarded a set of emails exchanged between Shri Sanjiv Bhatt, Deputy Inspector General, Gujarat Police and certain individuals during April & May 2011. It was mentioned in the above letter that during the course of an inquiry instituted against Shri Sanjiv Bhatt, Indian Police Service officer by Director General (Civil Defence), Gujarat regarding misuse of official resources, some revelations have been made having direct bearing on the cases being monitored by the Special Investigation Team. The material forwarded by Government of Gujarat has been scrutinised and the salient features of the same are summarised as below:, Top Congress leaders of Gujarat namely Shri Shaktisinh Gohil, Leader of Opposition in Gujarat Legislative Assembly and Shri Arjun Modhvadia, President of Gujarat Pradesh Congress are in constant touch with Shri Sanjiv Bhatt, Deputy Inspector General. They are providing him packages, certain materials and also legal assistance. Further, on 28-04-2011, Shri Sanjiv Bhatt exchanged mails with Shri Shaktisinh Gohil and the former gave points for arguments in Supreme Court of India matter, allegations to be made against the members of the Special Investigation Team and to establish that the burning of a coach of Sabarmati Express at Godhra Railway Station was not a conspiracy. From the emails, it appears that Shri Sanjiv Bhatt was holding personal meetings with senior Congress leaders as well. In one of the emails, he even mentions that he was under exploited by the lawyer representing Congress before Nanavati Commission of Inquiry., Shri Sanjiv Bhatt had been persuading various NGOs and other interested groups to influence the Learned Amicus Curiae and the Supreme Court of India by using “Media Card” and “Pressure Groups”., Shri Sanjiv Bhatt had been exchanging emails with one Nasir Chippa and in the email dated 11-05-2011 Shri Bhatt stated that Nasir Chippa should try to mobilise support/pressure groups in Delhi to influence Learned Amicus Curiae Shri Raju Ramchandran in a very subtle manner. In another email dated 18-05-2011, Shri Sanjiv Bhatt requested Shri Nasir Chippa to influence Home Minister Shri P. Chidambaram through pressure groups in the United States. It is believed that Shri Nasir Chippa has strong United States connections and his family stays there., Shri Sanjiv Bhatt arranged an appeal from Shri M. Hasan Jowher, who runs a so‑called NGO titled SPRAT (Society for Promoting Rationality) to the Amicus Curiae on 13-05-2011, to call Shri Sanjiv Bhatt, Indian Police Service officer, Shri Rajnish Rai, IPS, Shri Satish Verma, IPS, Shri Kuldeep Sharma, IPS and Shri Rahul Sharma, IPS (all police officers of Gujarat) to tender their version of the Gujarat story. It may be mentioned here that the draft for the said appeal was sent by Shri Sanjiv Bhatt himself to Shri Jowher. A copy of this mail was circulated by Shri Sanjiv Bhatt to Ms. Shabnam Hasmi, Ms. Teesta Setalwad, Shri Himanshu Thakker, journalist, Shri Leo Saldana, journalist, and Shri Nasir Chippa to encourage the persons/organisation to write to the Amicus Curiae on similar lines so as to pressurise him., In emails exchanged on 01-06-2011 between Shri Sanjiv Bhatt and Shri M.H. Jowher, it was proposed that a public interest litigation may be filed through a lawyer named Shri K. Vakharia (a Senior Advocate and Chairman of Legal Cell of the Congress Party in Gujarat) in the Gujarat High Court for providing security to Shri Sanjiv Bhatt. It was also proposed that another complaint may be filed with the Commissioner of Police, Ahmedabad City against Shri Narendra Modi and others for his alleged involvement in 2002 riots which would be taken to appropriate judicial forums in due course., Ms. Teesta Setalwad, her lawyer Shri Mihir Desai and journalist Shri Manoj Mitta of Times of India were in constant touch with Shri Sanjiv Bhatt, IPS and were instrumental in arranging/drafting the affidavit for filing the same in the Supreme Court of India. By email dated 10-04-2011, Shri Bhatt solicited coordinates from Ms. Setalwad, who had also arranged for a meeting with her lawyer Shri Mihir Desai at Ellisbridge Gymkhana, Ahmedabad. Shri Sanjiv Bhatt sent the first draft of his proposed affidavit to Shri Manoj Mitta on 13-04-2011, after meeting Shri Mihir Desai, Advocate and invited his suggestions. Shri Manoj Mitta advised Shri Sanjiv Bhatt to incorporate a few more paragraphs drafted by him which were incorporated by Shri Sanjiv Bhatt in his final affidavit sent to the Supreme Court of India as suggested by Shri Mitta., Shri Sanjiv Bhatt was instrumental in arranging an affidavit of one Shri Shubhranshu Chaudhary, a journalist, to corroborate his claim that he had gone to attend a meeting called by the Chief Minister at his residence on the night of 27-02-2002. Significantly, Shri Bhatt had sent his mobile phone details of 27-02-2002 to Shri Shubhranshu Chaudhary and had also suggested the probable timings of his meeting to Shri Shubhranshu Chaudhary on 15-05-2011. Simultaneously, these details were sent to Ms. Teesta Setalwad on 26-05-2011, for drafting the document, presumably the affidavit to be filed by Shri Shubhranshu Chaudhary. Shri Sanjiv Bhatt sent an email to Shri Shubhranshu Chaudhary that the said affidavit could be leaked out to the print media which would force the Amicus Curiae and the Supreme Court of India to take notice of the same. Shri Sanjiv Bhatt also sent another email to Shri Shubhranshu Chaudhary, in which he stated that they should play the media trick so that the affidavit is taken seriously by the Amicus Curiae and the Supreme Court of India., Shri Sanjiv Bhatt had been exchanging emails with one Leo Saldana, a Narmada Bachao Andolan activist, with a view to mobilise public opinion in their favour. On 01-05-2011, Shri Sanjiv Bhatt sent an email to the latter stating that what they needed to do at this stage was to create a situation where it would be difficult for a three‑judge Supreme Court bench to disregard the shortcomings of the Special Investigation Team under stewardship of Mr. Raghavan and that pressure groups and opinion makers in Delhi could be of great help in forwarding the cause. He further stated in the mail that he was hopeful that things would start turning around from the next hearing, if proper pressure was maintained at national level., Shri Sanjiv Bhatt was trying to contact Shri K.S. Subramanyam, a retired Indian Police Service officer, through Shri Nasir Chippa to make an affidavit supporting his stand with a view to convince the Learned Amicus Curiae and through him the Supreme Court of India that Shri K. Chakravarthi, former Director General of Police of Gujarat, was a liar., Shri Sanjiv Bhatt had been taking advice of Ms. Teesta Setalwad in connection with his evidence before Nanavati Commission of Inquiry. He had also been in touch with various journalists, NGOs and had been forwarding his representations, applications and other documents through email; whereas on the other side he had been claiming privilege that, being an Intelligence Officer, he was duty bound not to disclose anything unless he was legally compelled to do so., Shri Sanjiv Bhatt had been maintaining a close contact with Shri Rahul Sharma, Deputy Inspector General of Gujarat Police and had been getting his mobile phone calls analysed with a view to ascertain his own movements of 27-02-2002. This shows that Bhatt does not recollect his movements on that day. He has also been trying to ascertain the movements of Late Haren Pandya, the then Minister of State for Revenue on 27-02-2002, with a view to introduce him as a participant of the meeting of 27-02-2002 held at the Chief Minister’s residence, but could not do so, as Shri Rahul Sharma had informed him after the analysis that there was absolutely no question of Late Haren Pandya being at Gandhinagar on the night of 27-02-2002., From the study of emails, it appears that certain vested interests including Shri Sanjiv Bhatt, different NGOs and some political leaders were trying to use the Supreme Court/Special Investigation Team as a forum for settling their scores. This would also show that Shri Sanjiv Bhatt had been colluding with persons with vested interests to see that some kind of charge‑sheet is filed against Shri Narendra Modi and others., Observations made by the Learned Amicus Curiae: The other circumstances would also have to be taken into account. There is nothing to show that the Chief Minister intervened on 28-02-2002, when the riots were taking place to prevent the riots. The movement of Shri Modi and the instructions given by him on 28-02-2002 would have been decisive to prove that he had taken all steps for the protection of the minorities, but this evidence is not there. Neither the Chief Minister nor his personal officials have stated what he did on 28-02-2002. Neither the top police nor bureaucrats have spoken about any decisive action by the Chief Minister. This is one of the circumstances which indicates that the Chief Minister had not taken enough steps to ensure that riots in Ahmedabad City were immediately controlled by his direct intervention., During further investigation Shri Sanjay Bhavsar, Officer on Special Duty to the Chief Minister, stated that on 28-02-2002 the Chief Minister held a meeting in the morning concerning business in the Assembly. Further, at 08:30 hours the Chief Minister attended the Assembly session, in which there was an obituary reference for those killed in the Godhra incident. In the Assembly, the Chief Minister announced a judicial inquiry into the incident under the Commission of Inquiries Act instead of a high‑level inquiry announced earlier on 27-02-2002, and the house was adjourned., The Chief Minister held a meeting in the Assembly Secretariat with the acting Chief Secretary, Additional Chief Secretary (Home), Director General of Police and Additional Director General (Intelligence) about the prevailing situation in the State. In this meeting, the matter relating to the calling of the Army was also discussed, but no decision was taken and it was decided to watch the situation., Shri Ashok Narayan has categorically stated that Late Ashok Bhatt, the then Health Minister and Shri I.K. Jadeja, the then Minister did not attend the said meeting. Though, Shri K. Chakravarthi, the then Director General of Police has stated that Additional Chief Secretary (Home) had conveyed to him about the Government's instructions to the effect that the aforesaid two Ministers would sit in the two Control Rooms at Gandhinagar and Ahmedabad City to assist the police, yet Shri Ashok Narayan has stated that he does not recollect any such instructions., Shri Ashok Narayan has further stated that the Army had already been alerted on 27-02-2002, but inquiry conducted with the local Army authorities revealed that no force was available in Gujarat and that the same had been deployed at the borders., On 28-02-2002 another law and order review meeting was called by the Chief Minister at his residence around 13:00 hours, in which the situation was discussed and deployment of forces was reviewed. In this meeting it was unanimously decided that the Army should be called to assist the civil administration to maintain law and order as the situation in the State was getting out of control., In view of this, the Chief Minister made an oral request to Shri L.K. Advani, the then Union Home Minister over phone for deployment of the Army in the State. As decided in the meeting, a fax message was sent by Shri K. Nityanandam, the then Secretary (Home) to the Secretary, Ministry of Defence, Government of India at 14:30 hours seeking deployment of ten columns of Army at Ahmedabad City and other affected places immediately by airlifting them., The Chief Minister had earlier given instructions for the safe escort of the Hajj pilgrims returning to the State to avoid any untoward incident. The fax message in this regard was sent on 27-02-2002 to the Additional Director General (Intelligence) with information to the Director General of Police by the Section Officer (Special), Home Department, Government of Gujarat., The Chief Minister along with his cabinet colleagues and officials of the Home Department reached Circuit House Annex, Shahibaug, Ahmedabad City around 16:00 hours and held a meeting with the officers of the Home Department. Subsequently, the Chief Minister held a press conference at Circuit House Annex, Shahibaug, Ahmedabad City between 16:30 and 17:45 hours. In this press conference, the Chief Minister announced that a decision had been taken by the State Government to call the Army. A video CD of the press conference has been produced by Shri Sanjay Bhavsar., At about 18:00 hours, the Chief Minister's appeal to the public for keeping peace and to maintain law and order was recorded by the Dood‑Darshan at Circuit House Annex, Shahibaug, Ahmedabad City and the same was televised at 18:55 hours before the regional news bulletin., The Chief Minister held another law and order meeting at his residence at 20:30 hours on 28-02-2002, which was attended by the senior officers of the Home Department and the police., The Chief Minister met the Union Defence Minister Shri George Fernandes at his residence at 22:30 hours on 28-02-2002, in the presence of concerned officers, in which the prevailing law and order situation was reviewed and security arrangements discussed. This is confirmed from the records of the Protocol Department as well as the Police Control Room messages., According to Shri Sanjay Bhavsar, the Chief Minister met Shri George Fernandes, the then Union Defence Minister on 01-03-2002 at about 08:30 hours at his residence in the presence of Government officials and Army officers., As per the press release issued by the Gujarat Information Bureau on 01-03-2002, Shri Gordhan Zadafia, the then Minister of State (Home), Shri G. Subba Rao, the then Chief Secretary, Shri Ashok Narayan, the then Additional Chief Secretary (Home) and other senior police officers including Shri K. Chakravarthi, the then Director General of Police, Shri K. Nityanandam, the then Secretary (Home) and senior Army and Air‑force officers attended the said meeting. In this meeting, the Chief Minister requested deployment of more Para Military Forces and Border Security Force, to which Shri George Fernandes agreed. The Chief Minister also apprised the Defence Minister about the allotment of five companies of Para Military Forces to the State of Gujarat., The Chief Minister met the H.E. Governor of Gujarat at 09:30 hours at Rajbhavan and apprised him about the latest law and order situation in Gujarat and also about the security arrangements and bandobast made in the State., During 10:00 to 13:00 hours, the Chief Minister attended to Government work and gave directions to the administrative functionaries to take preventive actions to ensure that the disturbed situation did not spread. The Chief Minister also met the Congress delegation, informed them about the action taken by the Government, and advised them not to lodge any protest in this regard., The Chief Minister also gave directions for the safety and security of the Hajj pilgrims returning to Gujarat. He also discussed the cash doles and other help to be given to the riot victims. He also discussed the packages for the relief camps started by various NGOs and gave directions for other essential services to be provided to riot‑affected victims. He also gave directions to the hospitals in the State to make available uninterrupted medical services to the affected persons and other citizens., The Chief Minister held a law and order review meeting at 13:00 hours. Another law and order review meeting was held by the Chief Minister at 15:00 hours at his residence. At 16:30 hours, the Chief Minister held a press conference at Circuit House Annex, Shahibaug, Ahmedabad City. In this press conference, the Chief Minister informed the press that thirteen columns of Army had been deployed to assist the State Civil Administration and that shoot‑at‑sight orders to maintain law and order situation had been issued. The Chief Minister also briefed the press about his meeting with the Union Defence Minister and also about the deployment of the Army. He also gave details of various riot incidents and also about the deployment of Para Military Forces in the State. The Chief Minister also informed the press about the requisitioning of additional security forces from the neighbouring States and appealed to the media to keep restraint., The Chief Minister held another law and order review meeting at 20:30 hours at his residence., As per the request made by the Government of Gujarat, the Army personnel were airlifted from the border and they started arriving at Ahmedabad City in the night intervening 28-02-2002/01-03-2002., Shri P.S. Shah, the then Additional Secretary (Law & Order) has stated that on receipt of intimation from the Army authorities, a programme indicating the arrival of the Army and their logistic requirements was sent to the Commissioners of Police, Ahmedabad City, Baroda City and Rajkot City by him on 28-02-2002 itself. However, vide letter dated 01-03-2002, a revised deployment scheme of Army with three columns for Ahmedabad City and two columns each for Baroda City and Godhra and one column for Rajkot City was sent by him., Shri P.S. Shah has also stated that Shri Gurdayal Singh, the then Additional Director General had submitted a report to the Additional Chief Secretary (Home) on 02-03-2002, whereby he informed that three battalions of Infantry Division reached Ahmedabad City on 01-03-2002 and that one battalion strength having three columns was deployed in Bapunagar, Gomtipur, Raikhad and Amraiwadi at Ahmedabad City. He further informed that the second battalion was deployed in Dariyapur, Shah‑Alam, Danilimda, Khadia, Kalupur, Shahpur and Madhupura police station areas. Shri Gurdayal Singh had also informed that two companies of the second battalion were deployed in Juhapura, Vejalpur and Paldi areas and one company kept in reserve., Shri P.S. Shah has further stated that on 01-03-2002, another crash wireless message was sent by Shri J.R. Rajput, the then Under Secretary, Home Department with the approval of the Additional Chief Secretary (Home) to all Commissioners of Police, District Magistrates, Superintendents of Police, Inspectors General and Western Railway Superintendent, Baroda, in which it was emphasised that in view of the prevalent surcharged and tense atmosphere, directions given by the Home Department time and again for maintenance of public order and peace should be implemented. In this message, several other instructions including implementation of communal riots scheme, guidelines given by the Government of India to promote communal harmony, effective actions against unruly mobs and unlawful assembly and meetings of Peace Committee etc. were also given., Shri P.S. Shah, the then Additional Secretary (Law & Order) has also stated that on 01-03-2002, the Director General of Police felt that the resources available with him were insufficient to deal with the law and order situation in Gujarat and as such with the approval of the Additional Chief Secretary (Home), three letters were sent by Shri K. Nityanandam, the then Secretary (Home) to Chief Secretaries of Madhya Pradesh, Rajasthan and Maharashtra, through which these states were requested to spare ten companies each of their Armed Police to help the Gujarat police in handling the law and order situation. A reply dated 01-03-2002 was received from Shri R.K. Nair, Additional Chief Secretary, Government of Rajasthan, in which he regretted to spare any police force for duties in Gujarat for the time being. However, two companies of State Reserve Police were provided by the Government of Maharashtra on 03-03-2002, and the same were deployed in Surat., Shri G. Subba Rao, the then Chief Secretary has stated that he had gone abroad and was recalled on 01-03-2002. He has further stated that he sent a wireless message to all Commissioners of Police, District Magistrates, Range Inspectors General and Superintendents of Police to the effect that District Administration and police had to act in a decisive, prompt and effective manner to bring the situation under control and that they should not hesitate to use whatever force was necessary to bring the situation under control. The Chief Secretary also emphasised in this message that when lives and properties were threatened in communal situation, necessary force including firing should be resorted to bring the situation under control and if the situation deteriorated beyond a point besides imposing curfew, shoot‑at‑sight orders also be issued to prevent gathering of unlawful mobs at public places. The jurisdictional officers were asked to acknowledge this communication and ensure that no major incident took place under their jurisdiction., Shri Sanjay Bhavsar, Officer on Special Duty to the Chief Minister, has stated that on 02-03-2002, the Chief Minister held another meeting with Shri George Fernandes, the then Union Defence Minister at 08:30 hours at his residence. During 09:30 to 12:30 hours, the Chief Minister met the H.E. Governor of Gujarat and apprised him of the latest situation and the security arrangements and bandobast made by the administration. The Chief Minister further discussed the packages for the relief camps started by the various NGOs. The Chief Minister also discussed the cash doles and the other help to be given to the riot victims. The Chief Minister also gave instructions that SSC/HSC board examinations be held as scheduled in a peaceful atmosphere and also to ensure the safety of students., Two law and order review meetings were held by the Chief Minister at his residence at 13:00 hours and 15:00 hours respectively. The Chief Minister held a meeting of the officials of the Home Department at 16:00 hours at Circuit House Annex, Shahibaug, Ahmedabad City. The Chief Minister also held a press conference at 16:30 hours in Circuit House Annex, Shahibaug, Ahmedabad City, during which a detailed press release was issued by the Government of Gujarat., The Chief Minister held an all‑party meet at 18:00 hours, in which the Congress leaders did not participate., Another law and order review meeting was held by the Chief Minister at his residence at 20:30 hours., According to Shri P.S. Shah, the then Additional Secretary (Law & Order), some instances of attack on life and property in villages had been reported on 02-03-2002. He has stated that in view of violence in rural areas he sent a crash wireless message to all Commissioners of Police, District Magistrates and Superintendents of Police including the Western Railway, Baroda to the effect that sufficient police patrolling be organised to cover villages where a particular community may be in smaller number and steps be taken to prevent the entry of antisocial elements from outside the State or from large cities into rural areas through nakabandi. The jurisdictional officers were asked to convene peace committee meeting at Taluka level to sensitise social leaders in rural areas for the need to keep peace. They were also instructed to keep a telephonic contact with the villagers through the concerned police station in rural areas to obtain information and act quickly. Directions were also issued to these officers to deploy the available forces suitably to meet the developing situation and also to maintain sufficient mobility., Shri Ashok Narayan, the then Additional Chief Secretary (Home), has also stated that he sent a wireless message on 02-03-2002, in which it was emphasised upon the jurisdictional officers that apart from their duties of maintenance of law and order, the process of healing, building confidence amongst the people, diffusing tension and promoting communal harmony was also required to be geared up immediately by the District Administration and to achieve this object the District/City Ekta Committee, Peace Committees and Mohalla Committees should be activated and arrangements made to hold these meetings. The jurisdictional officers were also asked to involve the prominent members of all the communities, social leaders and NGOs in this process and to report compliance by 04-03-2002., As per Shri Sanjay Bhavsar, the Chief Minister left for Ahmedabad airport on 03-03-2002 at 09:00 hours, and received the then Union Home Minister Shri L.K. Advani at 10:50 hours. From the airport the Chief Minister accompanied the Union Home Minister at 11:45 hours to some of the riot‑affected areas like Delhi Darwaja, Idgah area and then went to Civil Hospital to see the riot victims. At 12:15 hours, the Chief Minister accompanied the Union Home Minister to Godhra by helicopter and reached Godhra at 13:00 hours. At Godhra, the Union Home Minister visited Godhra Railway Station and inspected the scene of occurrence. Later, he visited Civil Hospital, Godhra and met victims of the train incident. Shri Advani left Godhra at 13:45 hours by helicopter and reached Ahmedabad at 14:30 hours. Shri L.K. Advani held a law and order review meeting with the officials of Home Department as well as the police department at 16:00 hours, which was attended by the Chief Minister, Minister of State (Home), Chief Secretary, Additional Chief Secretary (Home), Director General of Police and senior officers of Home, Police and Revenue department. The Union Home Minister asked the State Government to trace the culprits responsible for the Godhra incident and get them punished, to take measures to restore peace, to prevent violence and that strict action be taken against those who indulged in violence. Shri Advani reviewed the measures taken by the State Government to restore law and order in the State. In this meeting the Chief Minister gave directions to organise joint peace marches., Thereafter, Shri Advani held a press conference at Circuit House Annex, Shahibaug, Ahmedabad City at 17:00 hours. Shri L.K. Advani went to Gandhinagar accompanied by the Chief Minister and met the then H.E. Governor of Gujarat at 18:30 hours. At 19:00 hours Shri L.K. Advani met the Ministers of Gujarat Government at the Chief Minister's residence. Shri L.K. Advani thereafter left for Hyderabad., Later, the Chief Minister held a law and order review meeting at his residence at about 20:30 hours., Shri Sanjay Bhavsar, Officer on Special Duty to the Chief Minister, has further stated that on 04-03-2002, the Chief Minister met the H.E. Governor of Gujarat at the latter's residence at 09:30 hours and apprised him of the latest law and order situation and bandobast made in Ahmedabad City. Between 10:30 hours and 13:00 hours, the Chief Minister held a law and order review meeting and also held discussion with the officials of Home, Police and Legal department for the appointment of a Judicial Inquiry Commission. The Chief Minister further held discussion about the Panchayat elections and local bodies elections, which were due in March/April 2002. The Chief Minister also held discussions for ex‑gratia payment to the riot‑affected persons, NGO relief camps, compensation for destruction of the properties during riots with the concerned officers. The Chief Minister also discussed the issues relating to Gram Panchayat and local bodies' elections and SSC/HSC exams., Shri Advani came to Bhavnagar directly on 04-03-2002. In view of this, the Chief Minister left for the airport at 13:00 hours and then left for Bhavnagar by air at 13:30 hours. The Chief Minister reached Bhavnagar at 14:10 hours and met Shri L.K. Advani at 14:20 hours. At Bhavnagar, they had a round of riot‑affected areas like Ranika, Ghogha Darwaja and S.T. Station Road. They also visited Akwada Madressa, where 400‑500 Muslim students were saved on account of a timely action by the police, held law and order review meeting and met the representatives of different organisations including minority delegations and political leaders., They left for Rajkot at 16:00 hours and reached there at 16:30 hours. At Rajkot, the Chief Minister, the then Union Home Minister and others visited Gondal Road, Parevadi Chowk and Lati plot areas. It may be mentioned here that during the earlier riots in Gujarat, the Kutch and Saurashtra region were peaceful, but in the year 2002 some signs of riots were noticed in these areas, as a result of which the Chief Minister and other leaders visited these areas so that the riots did not spread there. A law and order meeting was also held with the police officers at Rajkot., At Bhavnagar and Rajkot, high level meetings were held by the Chief Minister and other leaders, in which the Chief Minister directed to launch combing operations to track down the antisocial elements and recover lethal weapons and explosives., The Chief Minister left Rajkot at 18:00 hours and reached his residence in Gandhinagar at 19:15 hours. At 20:30 hours, the Chief Minister held a meeting with the Ministers of his Government., The Chief Minister has also instructed on 04-03-2002, that Shanti Kooch should be held in villages and a wireless message to this effect was sent by the Additional Chief Secretary (Home) to all the District Magistrates, Commissioners of Police, Superintendents of Police etc on the same day., As per Shri Ashok Narayan, the then Additional Chief Secretary (Home), he sent another message dated 04-03-2002 to all Commissioners of Police, Superintendents of Police, District Magistrates, in which it was emphasized that rumor mongers should be dealt with in an exemplary manner and that city peace committees be activated to assist in restoring peace. He also pointed out that the Chief Minister had instructed that Shanti‑Kooch be held in villages after looking into the local situation.
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It was also mentioned in this message that all Class I and Class II officers of Revenue and Panchayat should be instructed to visit the villages at least twice a week and that the Talatis and primary school teachers should be instructed to stay in their respective places of duties, keep in touch with the village leaders and sensitise them about the need to keep peace in their villages., Shri P.S. Shah, the then Additional Secretary (Law and Order), stated that he sent a crash wireless message on 04‑03‑2002 to all Chief Superintendents of Police, District Magistrates and Superintendents of Police to convene peace committee meetings immediately, ensuring participation of individuals from every community, and to hold peace marches in all the villages in view of the local situation., The jurisdictional officers were also requested to involve revenue and development machinery as per the instructions contained in the Home Department crash message dated 02‑03‑2002 and to document the same with the help of videography or photography and send it to the Home Department., Shri P.S. Shah further stated that he sent another fax message dated 04‑03‑2002 to all Chief Superintendents of Police, District Magistrates and Divisional Development Officers, pointing out disturbing reports of attempts to disturb the traditional peace and amity in the villages. He highlighted the failure of the society represented by village panchayat and village peace committees in meeting this responsibility and impressed upon the officers to take action under Section 50 of the Bombay Police Act, which provides for imposition of punitive fines, and also about the temporary withdrawal of developmental grants and facilities if any village was bent upon indulging in senseless and sectarian violence against its own members or neighboring villages., On 04‑03‑2002, a letter dated 02‑03‑2002 was received from the Deputy Secretary, Information and Broadcasting Department, Government of Gujarat, by Shri Ashok Narayan, indicating that in view of the prevailing situation in Gujarat, if any cable network exhibits programmes or news that might incite violence or create law and order problems, strict action should be taken immediately against them under the provisions of the Cable Television Networks Regulation Act, 1995 and the rules thereunder., On receipt of the same, a Departmental Order (DO) letter was sent by Shri Ashok Narayan on 05‑03‑2002 to Shri K. Chakravarthi, the then Director General of Police, to ensure strict and effective implementation of the revised guidelines issued by the Government of India for promotion of communal harmony. The DGP was further advised to take action against those who had demolished or damaged certain places of worship and against those who had converted places of worship of one religious denomination into places of worship of a different denomination under the provisions of the Places of Worship (Special Provisions) Act, 1991. In addition, reporters, editors, printers, publishers and owners of the media were to be advised to discourage distorted reporting or telecasting, and action under Sections 153(A) and 505(2) of the Indian Penal Code should be taken against writers or publishers of inflammatory material promoting disharmony or enmity between different religious communities. The DGP was also advised that, to maintain the sanctity of religious places and prevent their misuse for criminal, subversive or communal activities, the provisions of the Religious Institution (Prevention of Misuse) Act should be invoked., Shri Sanjay Bhavsar stated that on 05‑03‑2002 the Chief Minister held a law and order review meeting at his residence. The Chief Minister also addressed a high‑level meeting attended by the Chief Secretary, Revenue Secretary, Health Secretary, Secretary (Revenue and Buildings), and Health Commissioner, and gave specific instructions to visit eighteen relief camps in different areas. The Chief Minister instructed the Collector and District Magistrate of Ahmedabad to make arrangements for the distribution of food and essential commodities with the help of commercial organisations. At 14:30 hours the Chief Minister left for Ahmedabad and held a meeting with prominent citizens at the Gujarat Chamber of Commerce. He appealed to trade and industry, heads of religious organisations and intellectuals to help revive economic activities, which evoked an encouraging response. The Chief Minister categorically said that the Government would not compromise with law‑breaking anti‑social elements and was committed to re‑establish mutual trust and confidence. He condemned the law‑breakers and subsequent violent incidents. At about 16:30 hours the Chief Minister visited C.G. Road; at 17:00 hours Mahajan Vando, Jamalpur; at 17:30 hours Shethia building, Char Rasta and Revadi Bazar; at 18:00 hours Relief Road; at 18:30 hours Delhi Darwaja; at 19:00 hours Gulberg Society; and at 19:30 hours Naroda Patiya. He was accompanied by Late Ashok Bhatt, the then Health Minister; Shri Kaushikbhai Patel, the then Energy Minister; Smt. Anandiben Patel, the then Education Minister; Late Haren Pandya, the then Minister of State for Revenue; Shri Bharatbhai Pandya, the then sitting MLA; Smt. Mayaben Kodnani, the then MLA; and Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City., Shri Ashok Narayan, the then Additional Chief Secretary (Home), stated that he sent a confidential wireless message on 05‑03‑2002 to all Chief Superintendents of Police, Range Inspectors General of Police, District Magistrates and all Superintendents of Police that the surcharged communal atmosphere in parts of Gujarat was returning to normal and that measures suggested by the Government of India in the revised guidelines for communal harmony should be implemented to gear up the process of restoration of normalcy and promotion of communal harmony., On 05‑03‑2002, Shri Ashok Narayan also stated that he sent a DO letter to Shri K. Chakravarthi, the then Director General of Police, indicating that the law and order situation was being brought under control, the curfew was being lifted in a phased manner in places where the situation was improving, and that this was due to the presence of the Army and Central Paramilitary Forces (CPMFs), which was only a temporary measure. He warned that anti‑social elements might await the withdrawal of these forces and attempt to create disturbances again, and that sporadic incidents, revenge attacks or organised backlash could not be ruled out. He emphasized that the temporary assistance of the Army and CPMFs should be used to strengthen the police’s own control over the law and order situation and that a suitable strategy should be chalked out., On 05‑03‑2002, a representation dated 04‑03‑2002 was received from Kadi Muslim Samaj, Kadi, Mehsana, requesting protection. The representation was forwarded by Shri Ashok Narayan to the Director General of Police through his DO letter dated 05‑03‑2002 to provide all necessary protection to the Muslim community as soon as possible., On 06‑03‑2002, Shri P.S. Shah, the then Additional Secretary (Law and Order), sent another wireless message to Chief Superintendents of Police, District Magistrates and all Superintendents of Police to make necessary bandobast and give protection to the Haj Yatris and ensure that they reach safely to their residences. On the same day he sent another message to the aforesaid officials to review the local position and make adequate bandobast at various mosques to thwart any act of provocation and to protect the mosques on 08‑03‑2002, when a large number of Muslims were likely to assemble for Namaz., On 06‑03‑2002, a representation was received by Shri Ashok Narayan, the then Additional Chief Secretary (Home), from the residents of Jawahar Chawk, Raikhad, Ahmedabad City, requesting adequate police protection. The request was immediately forwarded by him to Shri K. Chakravarthi, the then Director General of Police, for further necessary action., On 06‑03‑2002, a DO letter was received by the Additional Chief Secretary (Home) from Shri Arvind Shukla, Public Safety Officer, to the Governor of Gujarat, forwarding a representation from the Daudi Vohra community of Garbada Taluka, Dahod District, requesting continuation of Border Security Force (BSF) protection. The representation was forwarded by the ACS to Director General of Police Shri K. Chakravarthi, stating that the Honorable Governor had desired that in Garbada, Gangardi and Jesawada and surrounding rural areas of Garbada Taluka, the BSF baridobast should be continued and intensive police patrolling should be done., On 06‑03‑2002, another representation was received by the Additional Chief Secretary (Home) from the Ahmedabad‑Mehsana Highway Hotel Association requesting financial assistance for damage done to the hotels during the riots in Gujarat. The request was forwarded by him to Shri C.K. Koshi, Principal Secretary, Revenue Department, Gandhinagar, for further necessary action., On 06‑03‑2002, a DO letter was sent by Shri Ashok Narayan, the then Additional Chief Secretary (Home), to the Deputy Commissioner of Police stating that, as the violence in the State continued, it was necessary that the police strictly adhere to the principles of rule of law, take effective action to prevent further violence and deal ruthlessly with all violators. He suggested that effective but controlled use of force be resorted to, that all ring leaders and persons named in the FIRs be arrested, that combing operations be conducted to recover arms, explosives and other material, and that all stolen or looted property be recovered. The DGP was also requested to initiate action immediately so that the supremacy of law could be established., On 06‑03‑2002, some members of the press informed Shri Ashok Narayan that, although the names of some Vishwa Hindu Parishad and Bajrang Dal leaders figured in FIR No. 98/2002 of Naroda Police Station against Shri Kishan Korani and others, and in the Gulberg case FIR against Shri Dipak Patel, they had not been arrested. This information was immediately passed on by the Additional Chief Secretary (Home) to the Director General of Police for suitable action., Shri P.S. Shah, the then Additional Secretary (Law and Order), stated that on 07‑03‑2002 he sent another wireless message to the Commissioner of Police, Range Inspectors General of Police, District Magistrates and all Superintendents of Police to exercise strict vigilance at temples during the Maha Shivratri festival to be celebrated on 12‑03‑2002, in view of the highly surcharged and tense communal situation. He highlighted that anti‑social and hardcore communal‑minded elements bent upon jeopardising communal harmony should be dealt with firmly and promptly, and that peace and communal harmony must be maintained at all costs. Further instructions were given to provide adequate security to Shiva temples to avoid any untoward incident, especially as a symbolic pooja at Ayodhya was scheduled for 15‑03‑2002., Shri Ashok Narayan, the then Additional Chief Secretary (Home), stated that on 07‑03‑2002 he sent a DO letter to Shri K. Chakravarthi, the then Director General of Police, referring to earlier discussions in which it was felt that there was a need to overhaul the intelligence set‑up and increase the lump‑sum amounts available to field officers. He requested a proposal on this matter and pointed out that, during discussions with the Chief Minister, the necessity of effective combing operations to identify areas to prevent further incidents of terrorism and violence was emphasized., A note sent to Shri Ashok Narayan by the Chief Secretary on 07‑03‑2002 stated that the tough law and order situation was fast returning to normal and that it was necessary to intensify efforts by rounding up all known anti‑social elements and conducting combing operations for detection and seizure of illegal arms and ammunition. These instructions were communicated to the Director General of Police on the same day through a DO letter requesting effective steps on these lines., On 07‑03‑2002, a representation was received from Shri Farook Sheikh, MLA, Kalupur, Ahmedabad City, intimating that he and his family had been receiving telephonic threats on their lives for a long time and that armed police protection be provided to him. The representation was forwarded to the Director General of Police on 07‑03‑2002 by Shri Ashok Narayan, with a copy to the Commissioner of Police, Ahmedabad City., Shri P.S. Shah, the then Additional Secretary (Law and Order), stated that he sent a wireless message on 13‑03‑2002 to the jurisdictional officers to monitor the situation closely for maintenance of law and order in their respective jurisdictions in light of the Honorable Supreme Court’s order in the writ petition filed by Mohammad Aslam versus Union of India to maintain status‑quo and that Ram Sevaks should not be allowed to perform symbolic pooja., Shri P.S. Shah also stated that on 14‑03‑2002 a wireless message was sent by him to all Chief Superintendents of Police, Range Inspectors General of Police, District Magistrates and all Superintendents of Police that, in light of the order passed by the Honorable Supreme Court of India in the writ petition filed by Aslam Bhura versus Union of India on 13‑03‑2002, neither symbolic nor actual Bhumi‑Pooja should be permitted to take place. He further directed all jurisdictional officers to strengthen security arrangements at religious places, deal firmly with anti‑social, disgruntled and hardcore communal‑minded elements, implement prohibitory orders, set up pickets at all sensitive points, curb rumor‑mongers, intensify foot and mobile patrolling, maintain communal harmony and keep close watch over the situation., On 14‑03‑2002, Shri Ashok Narayan received information about protection sought by some Muslim families residing in Baroda City. These families had asked for Rapid Action Force (RAF) deployment between 14‑03‑2002 and 16‑03‑2002 for their protection in view of the Vishwa Hindu Parishad programme fixed for 15‑03‑2002. The information was passed on by him to the Director General of Police, the Collector and the Commissioner of Police, Baroda City, through separate DO letters dated 14‑03‑2002 with a request to look into the security of these specific areas., On 15‑03‑2002, Shri Ashok Narayan wrote a DO letter to Shri K. Chakravarthi, the then Director General of Police, in the context of several discussions with the Chief Secretary regarding the need to activate the intelligence machinery in the prevailing situation. He mentioned that the Chief Minister had already given several suggestions to facilitate unearthing of anti‑social and anti‑national links and that, in the prevailing situation of general tension, it was even more necessary to take concrete steps to prevent worsening of the situation. Shri Narayan suggested to the Deputy Commissioner of Police to constitute a task force involving Shri R.C. Mehta, Shri R.B. Sreekumar and Shri G.C. Raiger to work out a suitable plan within about three days., On 21‑03‑2002, Shri P.S. Shah, the then Additional Secretary (Law and Order), sent a crash wireless message to all Chief Superintendents of Police, Range Inspectors General of Police, District Magistrates and all Superintendents of Police, emphasizing the need to keep a close watch over the communal situation in view of the festivals of Muharram, Holi/Dhuleti and Good Friday to be celebrated on 25‑03‑2002, 28‑03‑2002 and 29‑03‑2002 respectively by different communities. He noted that, in the highly surcharged and tense atmosphere prevailing in the State, the HSC/SSC examinations were also being held across the State (except five cities) and therefore special attention should be paid to sensitive areas that had recently witnessed communal violence. All jurisdictional officers were advised to make foolproof bandobast on the eve of Muharram (Qatli ki Raat) and during the Tazia processions, and to remain present at their headquarters to closely supervise all arrangements for maintenance of public order and communal harmony., Shri Ashok Narayan, the then Additional Chief Secretary (Home), Shri P.S. Shah, the then Additional Secretary (Law and Order) and Shri K. Chakravarthi, the then Director General of Police, stated that, in addition to the aforesaid references, a number of complaints and representations were received personally or telephonically, for which immediate necessary action was taken by them over telephone, for which no records are available. According to them, after seventy‑two hours the situation was gradually coming under control, though stray incidents of violence were reported from different parts of the State for a few days. The Panchayat elections were held in March‑April 2002 peacefully, and the Haj pilgrims who had returned from pilgrimage were safely escorted to their respective places without any untoward incident. The festivals of Maha Shivratri, Holi, Good Friday and the religious function of Muharram, as well as the HSC/SSC examinations, passed off peacefully in March 2002, showing that the State was returning to normalcy fast., It is established that the Godhra train burning incident took place on 27‑02‑2002 between 07:47 and 08:20 hours. Evidence on record shows that immediately the State machinery was put on high alert and this was communicated to all district authorities and Commissioners of Police. The first alert message of 27‑02‑2002 from the Home Department covered the need to take precautionary measures including adequate police bandobast and preventive measures such as issuance of prohibitory orders depending upon the local situation. It instructed that anti‑social and hardcore communal elements should be dealt with firmly. It also emphasized that when dead bodies arrived in their native places, there was a likelihood of heightened communal tension and bandobast should be arranged, especially for the funeral processions. All Commissioners of Police, District Magistrates and Superintendents of Police were to remain in headquarters and closely monitor the situation., The alert message of 28‑02‑2002, sent by the Home Department to all concerned, instructed the rounding up of anti‑social and known communal elements under preventive laws, intensification of mobile patrolling, provision of adequate protection at places of worship, and the use of whatever force necessary to disperse unruly mobs and unlawful assemblies. It also directed that anti‑social elements indulging in violence and jeopardising communal harmony must be controlled firmly., Another message dated 28‑02‑2002 impressed upon all concerned officers to maintain adequate bandobast for 01‑03‑2002, which was a Friday and the day of Namaz for Muslims. Adequate bandobast was directed to be provided to all sensitive areas and curfew was ordered to be strictly enforced., A message sent on 28‑02‑2002 to the Additional Director General (Intelligence) directed the maintenance of adequate bandobast for the security of returning Haj pilgrims at their point of entry., It appears that, realizing the seriousness of the situation, the Chief Minister decided on 28‑02‑2002 to call the Army to assist the civil administration in maintaining law and order in the State. Accordingly, the Chief Minister spoke to the Union Home Minister on 28‑02‑2002 around 14:00 hours and orally requested him to depute the Army to control the law and order situation. This was followed by a fax message sent by Shri K. Nityanandam, the then Secretary (Home), to the Secretary, Ministry of Defence, Government of India on 28‑02‑2002 at 14:30 hours. As the Army was not locally available because it had been deployed on the borders, it had to be airlifted to Ahmedabad and could be effectively deployed from 01‑03‑2002 onwards., The Army deployment began with nine columns arriving between 28‑02‑2002 midnight and 01‑03‑2002 23:00 hours, covering areas of Ahmedabad City such as Paldi, Juhapura, Vejalpur, Shahpur, Bapunagar, Rakhial, Gomtipur, Meghaninagar, Dariapur, Kalupur, Naroda and Danilimda. Later, two columns were moved to Vadodara on 01‑03‑2002 at 18:30 hours, two columns were dispatched to Godhra on 02‑03‑2002 arriving at 01:30 hours, and two columns moved to Rajkot on 02‑03‑2002 at 11:00 hours. While the situation in other parts of Gujarat was grave, cities like Bhavnagar and Surat were initially unaffected. However, as incidents of violence were reported from Bhavnagar and Surat, Army columns were moved to Surat on 03‑03‑2002 at 11:00 hours and to Bhavnagar on 03‑03‑2002 at 22:35 hours. In total, twenty‑six Army columns had been deployed at the peak of the riots in the State., In addition, the Government of India approved the deployment of Central Paramilitary Forces. By 03‑03‑2002, six companies of the Central Industrial Security Force, eleven companies of the Border Security Force, five companies of the Border Wing of Home Guards and four companies of the Rapid Action Force were deployed in the State. The State Government also requested the neighbouring states of Maharashtra, Rajasthan and Madhya Pradesh to spare the services of their Armed Reserve Police companies. Only Maharashtra responded by sending two companies of State Reserve Police; the governments of Rajasthan and Madhya Pradesh expressed inability to spare any police force due to internal commitments., The Union Defence Minister arrived in Ahmedabad on the night of 28‑02‑2002 to ensure that Army formations took their positions without delay. Shri G. Subha Rao, the then Chief Secretary, who had gone abroad, was recalled and arrived on 01‑03‑2002. The Chief Secretary issued a clear‑cut message to all jurisdictional officers to take effective action, including implementation of the Communal Riot Scheme, to act decisively and promptly to control the situation and not to hesitate to use whatever force was necessary, including firing and, if the situation deteriorated beyond a point, shoot‑at‑sight orders. This wireless message indicated that the riots had to be controlled at any cost., Frantic messages were sent by the Home Department from 01‑03‑2002 to 06‑03‑2002, giving specific instructions that the riots had to be controlled and all steps should be taken to restore normalcy and peace in the State. In addition, fourteen messages were sent covering measures for ensuing festivals, arrival of Haj pilgrims and their security, Jumma Namaz, Ram Navami, Muharram, Holi‑Dhuleti and Good Friday. These messages also included necessary precautions relating to the symbolic or actual Bhumi Pooja proposed by the Ram Sevaks on 15‑03‑2002, about which specific orders had been issued by the Honorable Supreme Court of India to maintain status‑quo., Further investigation disclosed that the Chief Secretary and the Additional Chief Secretary (Home) arranged two video conferences with the Commissioner of Police, District Magistrates, Superintendents of Police and other concerned officers on 04‑03‑2002 and 11‑03‑2002. The agenda items included: (i) review of the current law and order situation in the State; (ii) effective deployment of various forces; (iii) instruction for holding peace committee meetings and peace marches; (iv) curbing violence and protecting places of worship; (v) preventive measures and other actions against criminals including detention; (vi) incidents of 15‑03‑2002 at Ayodhya and the Ram‑mandir issue; (vii) bandobast for SSC/HSC examinations; and (viii) attention to various alert messages issued about law and order, ensuing festivals and Haj pilgrims., It has also come to light that from 27‑02‑2002 onwards, high‑level meetings with the Chief Minister and senior officers were held both in the morning and in the evening. The Chief Secretary and the Additional Chief Secretary (Home) also held at least one meeting per day with the Director General of Police and other senior police officers, reviewing the situation of the previous 24 hours, including bandobast and deployment of forces. The Chief Secretary also held separate high‑level meetings with Army officers on 07‑03‑2002., Further investigation established that the State Government was reasonably vigilant regarding developments on the law and order front and immediately responded by bringing to the notice of all district officials the need to maintain adequate bandobast in view of the Godhra incident on 27‑02‑2002. Written communications were sent on a day‑to‑day basis with specific instructions to control the law and order situation, bring normalcy, communal peace and harmony in the State at all costs. The State authorities also impressed upon jurisdictional officers that violators of law should be effectively dealt with, no laxity shown and maximum force used to suppress and contain the violence. The allegation of inaction on the part of the State Government and police department is therefore not established., Observations made by the Learned Amicus Curiae: It is difficult to believe that when the Chief Minister came back after the Godhra trip, no Minister was present at his residence; hence it may not be totally unbelievable that Shri Haren Pandya was present. Shri Haren Pandya is unfortunately dead, but the statements made by the late Shri Haren Pandya to Justice P.B. Sawant (Retd.) and Justice H. Suresh (Retd.) can be used, even if his statement has not been formally reproduced in writing by the Citizen’s Tribunal. It has also been brought out that an enquiry was made from the Chief Minister’s office as to the identity of the Minister who had deposed before the Citizen’s Tribunal and that the State Intelligence Bureau had verified the identity as that of Shri Haren Pandya. This also gives some corroboration to the fact that the Chief Minister’s office was uncomfortable with the disclosure made by an unidentified Minister to the Citizen’s Tribunal., Result of further investigation: Further investigation revealed that the Chief Minister left Godhra at about 19:45 hours on 27‑02‑2002 by road and reached Vadodara airport at about 21:30 hours. Shri Narendra Modi left for Ahmedabad by Government aircraft around 21:30 hours. From Ahmedabad airport the Chief Minister went to Gandhinagar by road and reached his official residence at about 22:30 hours. On his return, he called for a law and order meeting at about 23:00 hours, which was attended by the top officials of the administration, Home and Police departments. Shri K. Chakravarthi, the then Director General of Police, said that on 27‑02‑2002, late in the evening while he was in Door‑Darshan studio, Ahmedabad City, he received a message from the State Police Control Room that the Chief Minister had called for a meeting at his residence in Gandhinagar at about 22:30 hours.
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He has further stated that he had reached at the Chief Minister's residence alone a little earlier and waited there as the Chief Minister had not arrived at that time. Subsequently, Smt. Swarna Kanta Varma, the then acting Chief Secretary Shri Ashok Narayan, the then Additional Chief Secretary (Home), Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City and Shri K. Nityanandam, the then Secretary (Home) also arrived there. According to Shri Chakravarthi, the meeting was held around 2300 hrs or could be a little earlier and lasted for about 20‑30 minutes. All the participants of the said meeting have categorically stated that none of the Minister/politician attended the said meeting., Mr. Justice P.B. Sawant, Retired Judge of the Hon'ble Supreme Court of India and Mr. Justice Hosbet Suresh, Retired Judge of the Bombay High Court, members of the Concerned Citizens Tribunal – Gujarat 2002 (that was conceived in response to the Godhra carnage on 27‑02‑2002) have stated that one Minister of the Gujarat Government namely Late Haren Pandya appeared and deposited before the Tribunal on 13‑05‑2002, on condition of anonymity, that he had attended a meeting on the night of 27‑02‑2002 at the residence of Shri Narendra Modi, Chief Minister, in which the latter had made it clear that there would be a backlash from the Hindus on the next day and that the police should not come in their way. According to Justice Sawant, Late Haren Pandya revealed that Shri Modi also instructed the police officers and civil servants that a Hindu reaction was expected and the same must not be curtailed or controlled. However, his deposition had not been recorded anywhere by the Tribunal., Further investigation revealed that an inquiry into the Godhra incident as well as the riots that followed the Godhra carnage was conducted by the Concerned Citizens Tribunal sometime in April‑May 2002 and their report was published on 21‑11‑2002, in the form of a book titled *Crime Against Humanity*, which bears the signatures of Mr. Justice P.B. Sawant, Retired and Mr. Justice Hosbet Suresh, Retired beside others., The extracts from page 249 of volume I of *Crime Against Humanity* are reproduced below: Witnesses deposing before us testified to the fact that the Chief Minister called a meeting of senior police and other officers on that very night of February 27, 2002. At this meeting specific instructions were given by him in the presence of the State Home Minister on how the police should deal with the situation on the bandh day. We were informed that instructions were given in this meeting by the Chief Minister specifically not to take action against any Hindu reaction to Godhra. This report would go to show that the State Home Minister i.e. Shri Gordhan Zadafia, the then Minister of State (Home) was present in the said meeting, whereas there is conclusive evidence to establish that Shri Gordhan Zadafia had stayed at Godhra on 27‑02‑2002 and returned on the morning of 28‑02‑2002. Nowhere was the name of Late Haren Pandya, who was holding the portfolio of Minister of State for Revenue, mentioned in the said report. On the contrary, Late Haren Pandya had been severely criticized by the Concerned Citizens Tribunal in its report., Some of the extracts from the said report are reproduced below: Naroda Patiya and Naroda Gaon have a long history of VHP provocation. Police sources revealed to expert witnesses who deposed before the Tribunal that in 1999 a dargah was broken down and an idol installed in its place. At the time, the local police repaired the dargah and arrested 10‑15 persons, including Dr. Jaideep Patel, Maya Kodnani and Amrish Pandey. Pressure was mounted on the police by the then Home Minister, Haren Pandya, but the police stood their ground and the law‑breakers were forced to back down (page 36 of Vol. I). On the night of February 27‑28, the elephants that are kept inside the temple premises were made to drink liquor. The sounds and trumpeting that followed caused terror in the entire locality. During the last election, former Minister Haren Pandya, who won from the Paldi area, had openly proclaimed during his campaign, \Baandyo nahin bachwo joyiye\ (Not a single baandyo, abusive term for a Muslim/circumcised person must be spared) (page 44 of Vol. I)., Three eyewitnesses who deposited before the Tribunal saw former Revenue Minister Haren Pandya opposite the VS Hospital, setting fire to the Apna Bazaar Medical. \Aa Miyaone aag lagadiye\ (Let us burn these Muslims), he was shouting after he had burnt it down himself. The Ellis Bridge police station is close by but they did nothing. The fire brigade was called and they tried desperately to put out the fire, but Pandya, leading the mob, prevented them. An FIR has been launched against him and BJP MLA Ashok Bhatt. Just outside the Ellis Bridge police station, Haren Pandya was overheard telling the Police Inspector, even as Hotel Ellis was aflame, \Aah samaj kayi nathi kartoo\ (This community does nothing). The Police Inspector concerned had a special room permanently booked for him at Hotel Ellis (page 44 of Vol. I). There were attacks on six housing societies in Paldi, where about 1,000 Muslims live. In all, there are about 5‑6,000 Hindus living in this area. Kazmi Apartments, Elite, Delite, Corner 2, Tarana Apartments and Bungalows No. 16 and 24 in Paldi, occupied by the owners of Motimahal, were completely burnt. Eyewitnesses testified to seeing the then Gujarat Revenue Minister, Haren Pandya, leading mobs who then committed arson (page 48 of Vol. I)., Detailed evidence was recorded by us regarding the desecration of the tomb of Wali Gujarati, a renowned poet remembered as the founder of Urdu poetry. On March 1 his tomb, located not more than 10 metres from the office of Ahmedabad's Commissioner of Police (also the police headquarters), was demolished and a saffron flag hoisted on the site. It is believed that the shrine was torn down by marauding mobs under the directions of Gujarat's Revenue Minister, Shri Haren Pandya. This flag was removed on the night of March 2. On March 8, a tarred road was constructed at the site, leaving no trace whatsoever of the tomb that had stood there for nearly three centuries. It is shocking that a calious government and an unprincipled administration participated in the utter obliteration of this cultural monument and allowed a road to be constructed over it (page 48 of Vol. II)., On the night of March 3, a 400‑year‑old mosque owned by the Wakf Board, and located near Anjali Cinema in Ahmedabad, was broken down in the presence of State Ministers Shri Haren Pandya and Shri Amit Shah. As in many other cases, a Hulladiya Hanuman idol was installed there, followed by darshans and arti (page 49 of Vol. II). \The Tribunal observes that in Gujarat, many cabinet ministers are simultaneously prominent leaders of the VHP. The Home Minister, Shri Gordhan Zadafia, is one of them. So, too, is the former Revenue Minister Shri Haren Pandya, a senior VHP functionary. He has been named by many witnesses who appeared before us as trying to influence police not to take action against the accused. Minister for Forests, Shri Prabhat Singh Chauhan and Minister for Cottage Industries, Shri Narayan Laloo Patel are also two clear examples of this\ (page 52 of Vol. II)., Some of the senior BJP leaders and ministers in Shri Modi's cabinet were also alleged to have participated in the destruction of minority places of worship. Minister for Revenue, Shri Haren Pandya and Health Minister, Shri Ashok Bhatt led the mobs enthusiastically in Ahmedabad. Shri Bharat Barot, a sitting MLA, was also at the forefront. Residents of Paldi, from where Shri Pandya was elected, actually saw him lead arson attacks. Shri Pandya's election promise the last time was to wipe any trace of Muslims out of Paldi (page 77 of Vol. II). One of the most shocking aspects of the Gujarat carnage was that the constituencies of some ministers and sitting MLAs were the arena for the worst incidents of carnage. Bapunagar in Ahmedabad, one of the worst affected areas, is the home constituency of the Minister of State for Home, Shri Gordhan Zadafia. Paldi, Ahmedabad is the constituency of Shri Haren Pandya, former State Home Minister and, until recently, Revenue Minister in Shri Modi's cabinet (page 87 of Vol. II)., As regards the deposition of Late Haren Pandya before the Concerned Citizens Tribunal, further investigation has established that the meeting convened at the Chief Minister's residence was essentially a law and order review meeting held on 27‑02‑2002 and that none of the Cabinet Ministers attended the same. Late Haren Pandya was not even a Cabinet Minister at that time and was holding the portfolio of Minister of State for Revenue. Shri Gordhan Zadafia, the then Minister of State for Home, also did not attend this meeting, as he had stayed back at Godhra. In view of the version of all the senior officials of the Home and Police Department, the testimony of Late Haren Pandya before the Tribunal becomes questionable., As regards the entries made by Shri R.B. Sreekumar on page 21 on 12‑06‑2002 in a register unauthorisedly maintained by him that the call details of the mobile phone of Late Haren Pandya were handed over to Shri P.K. Mishra, the then Principal Secretary to the Chief Minister, through Shri O.P. Mathur in his office, the same appears to be doubtful as Shri Mathur has denied handing over any such call details to Dr. P.K. Mishra and that the Principal Secretary to the Chief Minister never visited the office of the State Intelligence Bureau, as stated in the entry. Moreover, Shri S.M. Pathak, the then Deputy Superintendent of Police, State Intelligence Bureau, has confirmed conducting a secret inquiry about one of the Ministers, which had met a forum of which Justice Krishna Iyer, a retired Judge of the Supreme Court, and others were members, who had come to Ahmedabad to enquire into the riots in the state. Shri Pathak has also confirmed that Late Haren Pandya had met and deposited before them and that this fact was reported to Shri R.B. Sreekumar orally. However, Shri Pathak has stated that he does not recollect whether he was asked to collect the mobile phone details of Late Haren Pandya, which again creates doubt about the entry made by Shri R.B. Sreekumar., Shri P.K. Mishra, the then Principal Secretary to the Chief Minister, has stated that he does not recollect whether he asked Shri R.B. Sreekumar to collect the mobile call records of Late Haren Pandya and that no phone call details were made available to him by either Shri Sreekumar or Shri O.P. Mathur. No disclosure was made by Shri R.B. Sreekumar about the said register in his deposition before the Commission on 31‑08‑2004 or in any of the two affidavits filed by him on 15‑07‑2002 and 06‑10‑2004. It is rather surprising that this register saw the light of day for the first time in the year 2005, when Shri R.B. Sreekumar filed a copy of the same along with his third affidavit filed before the Nanavati‑Shah Commission of Inquiry on 09‑04‑2005. This affidavit was filed by Shri R.B. Sreekumar after his supersession in promotion in February 2005. In view of the fact that the register maintained by Shri R.B. Sreekumar cannot be considered an authenticated document, the entries made by him in his said register cannot be considered reliable., Further investigation revealed that Government mobile number 9825039852 was allotted to Late Haren Pandya. The call detail records of the said mobile phone for 27‑02‑2002 have been sorted out from a CD made available by Shri Rahul Sharma, DIG, and the same show that Late Haren Pandya remained in Ahmedabad City till 10:46:55 on 27‑02‑2002. His location in Ahmedabad City again appears at 16:24:24 hrs and thereafter he remained in Ahmedabad City till 22:52:07 hrs on 27‑02‑2002 and therefore this conclusively establishes that Late Haren Pandya did not attend the law and order review meeting that took place at the Chief Minister's residence in Gandhinagar on the night of 27‑02‑2002., In view of the aforesaid position, it appears that Late Haren Pandya misled the Hon'ble Members of the Concerned Citizens Forum namely Mr. Justice (Retd.) P.B. Sawant and Mr. Justice (Retd.) Hosbet Suresh that he was present in the meeting called by the Chief Minister at his residence on the night of 27‑02‑2002 with a view to increase his credibility. It has been established beyond doubt that Late Haren Pandya could not have been present in the said meeting and that the so‑called evidence given by him was only on hearsay basis. Since the statement made by Late Haren Pandya is on hearsay basis, it is not admissible under any provisions of law., Observation made by the Amicus Curiae: The statement of Shri R.B. Sreekumar cannot be discarded as hearsay in the light of Section 6 of the Indian Evidence Act. As far as the allegation that a statement was made by the Chief Minister Shri Narendra Modi on 27‑02‑2002 in a meeting at his residence instructing senior officers to allow the Hindus to give vent to their anger is concerned, it is significant that Shri R.B. Sreekumar came onto the scene much afterwards and the evidence brought by him is all hearsay. Shri R.B. Sreekumar became Additional Intelligence Officer only on 09‑04‑2002 and had not attended the meeting which was held much prior to his joining. The Amicus Curiae is of the view that the above statement of Shri R.B. Sreekumar cannot be discarded as hearsay in the light of Section 6 of the Evidence Act. However, the facts suggest otherwise. If there is an interval between the acts of occurrence and the statement made by the person concerned, it blocks the statements so made from acquiring legitimacy under Section 6 of the Indian Evidence Act. Keeping in mind the principles laid down by the Hon'ble Supreme Court of India regarding hearsay evidence, it has been found that the evidence given by Shri R.B. Sreekumar neither forms part of the same transaction nor were the statements made by Shri Sreekumar at the time of occurrence of the incident or at least immediately thereafter, and therefore are not relevant as per Section 6 of the Indian Evidence Act. In the instant case, the so‑called evidence of Shri R.B. Sreekumar concerning the events before the riots was his own perception as he had no direct knowledge of the same., Result of further investigation: Shri Narendra Modi, Chief Minister, arrived at Godhra by helicopter around 16:45 hrs and was accompanied by Shri Anil Mukim, the then Secretary to the Chief Minister. He was received at the helipad by Smt. Jayanti Ravi and Shri Ashok Bhatt and he straightaway drove to the Godhra Railway Station. The Chief Minister inspected the spot and talked to some of the persons gathered there. From Godhra Railway Station, he went to the Civil Hospital and saw the persons injured in the Sabarmati Express train burning incident. Since curfew had been imposed in Godhra town, the Chief Minister then proceeded to the Collectorate and held a meeting with the ministers present there, namely Shri Ashok Bhatt, the then Health Minister; Shri Gordhan Zadafia, the then Minister of State (Home); Shri Bhupendra Lakhawala, the then Minister of State (Civil Defence); Shri Prabhatsinh Chauhan, the then Minister of State for Aviation & Pilgrimage; and Shri Bhupendrasinh Solanki, the then Member of Parliament, Godhra, Collector & District Magistrate, Police Officers and Railway Officers. The Chief Minister had also met the press thereafter., Smt. Jayanti Ravi has stated to the SIT that in the meeting held at the Collectorate, a unanimous decision was taken that the dead bodies which had been identified should be handed over to their relatives at Godhra itself and those bodies whose legal heirs or guardians had not come could be sent to Sola Civil Hospital, Ahmedabad, since these deceased passengers were heading towards Ahmedabad in the Sabarmati Express. The decision to send the bodies to Sola Civil Hospital was taken in view of the fact that it was situated on the outskirts of Ahmedabad City and thus away from the crowded area for security reasons. It has further come to light that out of 58 burnt and dead bodies, four bodies belonging to Dahod, Vadodara, Panchmahal and Anand districts were handed over to their legal heirs/guardians after identification at Godhra itself. The remaining 54 dead bodies were to be sent with police escort to Sola Civil Hospital, Ahmedabad and Shri Jaydeep Patel, who was present at the Collectorate, was to accompany these dead bodies to Ahmedabad., Further investigation revealed that Shri M.L. Nalvaya, the then Mamlatdar & Executive Magistrate, prepared a letter addressed to Dr. Jaydeep Patel of the VHP, in which he mentioned that 54 dead bodies were being sent through five trucks as detailed below: Truck No. 1 carried 12 dead bodies, etc. Shri Hasmukh T. Patel of the VHP had acknowledged receipt of the dead bodies. It may be mentioned that the handing over of the dead bodies to their legal heirs/guardians was the duty of the railway police, which had registered a case in connection with this incident. Shri Nalvaya further stated that these dead bodies were handed over officially to Shri Jaydeep Patel and Shri Hasmukh T. Patel of the VHP as per the instructions given by Smt. Jayanti S. Ravi, District Magistrate, Godhra and Late B.M. Damor, Additional District Magistrate, Godhra. Shri M.L. Nalvaya filed an affidavit before the Nanavati Commission of Inquiry to this effect on 05‑09‑2002. However, Smt. Jayanti Ravi has stated that no such instructions were given to Shri Nalvaya to hand over the dead bodies to Shri Jaydeep Patel or Shri Hasmukh T. Patel of the VHP and that Shri Jaydeep Patel was merely to accompany the dead bodies to Ahmedabad., Shri Jaydeep Patel visited Godhra on 27‑02‑2002 and was present at the Collectorate. Call detail records of mobile phone no. 9825023887 of Shri Jaydeep Patel show that he reached Godhra on 27‑02‑2002 around 12:48 hrs and remained there till 23:58 hrs. At Godhra, he made/received calls to/from Shri Gordhan Zadafia at the latter's mobile phone no. 9825049145. All these calls were made/received between 20:03 hrs and 21:13 hrs. It is therefore quite possible that Shri Gordhan Zadafia, the then Minister of State (Home), might have instructed the police authorities to allow Shri Jaydeep Patel to accompany the dead bodies. The aforesaid call detail records establish that Shri Jaydeep Patel remained at Godhra till about 23:58 hrs on 27‑02‑2002. Shri Jaydeep Patel has stated that he did not meet Shri Narendra Modi, Chief Minister. Since most of the persons who died in the Godhra carnage were the karsevaks of the Vishwa Hindu Parishad, he met some local administrative and police officials, whose names he could not recollect at this stage, and requested them to hand over the dead bodies of the karsevaks to him for onward transportation to Ahmedabad. The district officials acceded to his request and accordingly a letter was prepared by the Mamlatdar and Executive Magistrate, Godhra in his name specifying the details of the dead bodies and the number of trucks. Shri Hasmukh T. Patel of the VHP, who accompanied him, acknowledged receipt of these dead bodies as per his signature appearing on the list. It may be mentioned that 58 persons died in this incident, out of which four persons were identified at Godhra railway station itself by their relatives. The dead bodies of these four persons were handed over to their relatives after identification. Five trucks were arranged by the district administration for the transportation of the dead bodies. Shri Jaydeep Patel has stated that he met the lady collector of Godhra around 23:30 or 24:00 hrs. A police escort accompanied the dead bodies from Godhra and on the way to Ahmedabad the escorts from the concerned districts joined. The convoy reached Sola Civil Hospital, Sola, Ahmedabad between 03:30 hrs and 04:00 hrs on 28‑02‑2002. At Sola Civil Hospital, a lady doctor, Police Inspector Shri Lathia of Sola Police Station, Shri Prajapati, Deputy Collector, Collector and Mamlatdar were present along with several other administrative and police officials whose names he does not recollect. He handed over the letter to Shri Prajapati, Deputy Collector. Thereafter, the police and administrative officials got busy with the preparation of panchnama and other papers. Further investigation revealed that the relatives of the persons who died in the Godhra carnage were also present in the hospital. Accordingly, 35 persons were identified and their dead bodies handed over to their relatives by about 13:00 hrs on 28‑02‑2002 by the police after obtaining receipts from them. It may be mentioned that 25 dead bodies were claimed by residents of Ahmedabad, two by residents of Kadi, Mehsana, five by residents of Anand, two by residents of Khedbrahma, Sabarkantha and one from Rajkot. The photographs and DNA samples of the remaining unidentified 19 dead bodies were taken by the hospital authorities.
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These 19 unidentified dead bodies were cremated on 28-02-2002 evening at Gota cremation ground near Sola Civil Hospital by the District Administration and police officers with the help of the Sarpanch of Gota village. The cremation was completed by about 18:30 hours on 28-02-2002. Shri Narendra Modi, Chief Minister, had earlier stated that Shri Jaydeep Patel, the then General Secretary of the Vishwa Hindu Parishad, was known to him, but he does not remember meeting him at Godhra. According to Shri Modi, after the decision was taken to transport the dead bodies to Ahmedabad, it was the duty of the District Administration to arrange the modalities for transportation. The journey from Godhra to Ahmedabad started around midnight and the dead bodies reached Sola Civil Hospital sometime between 03:30 and 04:00 hours, with no one on the highway at that time to see them. Although a letter had been addressed by Shri M. L. Nalvaya in the name of Shri Jaydeep Patel of the Vishwa Hindu Parishad and the dead bodies were acknowledged by Shri Hasmukh T. Patel of the Vishwa Hindu Parishad, the dead bodies were escorted by the police up to Sola Civil Hospital, Ahmedabad, situated on the outskirts of the city. At Sola Civil Hospital, Shri Jaydeep Patel handed over the letter to the hospital authorities and the local police, and the hospital authorities took charge of the dead bodies. Subsequently, 35 dead bodies were handed over to the legal heirs or guardians of the deceased by the police after preparing the panchnama and documentation. The 19 unidentified dead bodies were cremated on the same evening by the local administration and police authorities at Gota cremation ground with the help of the Sarpanch of Gota village after retaining their DNA samples. Subsequently, 12 dead bodies could be identified after conducting DNA tests, while the remaining seven remained unidentified., The above facts establish that although a letter had been addressed by the Mamlatdar, Godhra, to Shri Jaydeep Patel of the Vishwa Hindu Parishad, the dead bodies were escorted by the police from Godhra to Ahmedabad, where they were taken charge of by the hospital authorities, District Administration and police officers and handed over to the kith and kin of the deceased after taking proper receipt. Shri M. L. Nalvaya, Mamlatdar, acted in an irresponsible manner by issuing a letter in the name of Shri Jaydeep Patel as a token of having handed over the dead bodies, which were not properly accounted for, and therefore the Government of Gujarat is requested to initiate departmental proceedings against him., Observations made by the Learned Amicus Curiae: The positioning of two Cabinet Ministers who did not hold the home portfolio in the Office of the Director General of Police and the State Police Control Room respectively reflects a direct instruction from the Chief Minister. Although Shri Jadeja says that he went to the Director General of Police’s office on instructions of Shri Gordhan Zadafia, Minister of State (Home), this is highly unbelievable. It is obvious that the Chief Minister positioned these two Ministers in highly sensitive places, which should not have been done. These two Ministers could have taken active steps to defuse the riots but they did nothing, indicating a decision to let the riots happen. It does not appear that these two Ministers immediately called the Chief Minister and informed him about the situation at Gulberg and other places. The Special Investigation Team merely relied upon the statements of police officers to conclude that these two Ministers did not give any instructions to the police department, but it appears highly unlikely that two Cabinet Ministers of the Government of Gujarat would not have given some direction when the Chief Minister had directed them to remain present. The two Ministers were fully aware of the developing situation in Gulberg Society, Naroda Patiya, etc., in Ahmedabad City. They were duty bound to convey the situation to the Chief Minister and to do everything possible to save lives. If the stand of the Chief Minister that these two Ministers were positioned so as to effectively control the law and order situation is correct, then there would have been a far quicker action to control the riots in Gulberg Society and Naroda Patiya at least., Result of further investigation: Further investigation was conducted into the allegation relating to the positioning of Shri I. K. Jadeja, the then Urban Development Minister, in the State Police Control Room and the Director General of Police’s office, and Late Ashok Bhatt, the then Health Minister, in the Ahmedabad City Police Control Room. Shri K. Chakravarthi, the then Director General of Police, stated during further investigation that Shri Ashok Narayan, Additional Chief Secretary (Home), informed him that it was decided by the Government that Shri I. K. Jadeja would be in his office to obtain information about the law and order situation, as the State Control Room is situated in the Director General of Police’s office. Shri Ashok Narayan further informed him that Late Ashok Bhatt would sit in the Ahmedabad City Police Control Room. Shri Chakravarthi added that he had his own reservations in this matter and advised the Additional Chief Secretary (Home) that it would be better if these Ministers obtained the information from the Control Room in the Home Department. However, Shri Ashok Narayan informed him that no such facility was available in the Home Department, and therefore the two Ministers would come to the respective Control Rooms., According to Shri Chakravarthi, Shri I. K. Jadeja came to his office on the forenoon of 28-02-2002 and sat in his chamber for about 15-20 minutes. Shri Chakravarthi could not attend to him because he was busy with telephone calls from across the State. He asked someone to shift the Minister to an empty chamber in his office, which was done. He was not aware of what Shri Jadeja did while in the Director General of Police’s office, as he was extremely busy with his work on that day when rioting was taking place at many locations. Later, Shri Chakravarthi learned that Shri Jadeja had left his office. Shri Chakravarthi categorically stated that his enquiries with the staff of the State Control Room revealed that Shri Jadeja did not interfere with the functioning of the Control Room in any manner., Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, stated that it was incorrect to say that Late Ashok Bhatt, the then Health Minister, remained stationed at Shahibaug Control Room on 28-02-2002 to guide the police force in controlling the law and order situation. He specifically asserted that Shri Bhatt did not visit the Commissioner’s office Control Room on 28-02-2002. He further stated that Shri George Fernandes, the then Union Defence Minister, arrived at Ahmedabad on the night of 28-02-2002, reached the Commissioner’s office on 01-03-2002 around 10:00 or 10:30 hours and asked Shri Pande about the deployment of the Army, to which the latter said that he would check the same from the Control Room. Both of them went to the Control Room downstairs. According to Shri Pande, Late Ashok Bhatt, who had been waiting for Shri Fernandes in the Circuit House, also came to the Commissioner’s office to meet Shri Fernandes and entered the Control Room. Shri Pande stated that Shri Fernandes and Late Ashok Bhatt remained in the Control Room for about ten minutes and then left the Commissioner’s office. During this visit, some press and media persons were also present, giving the appearance that Late Ashok Bhatt had come to monitor the Control Room. Finally, Shri Pande stated that Late Ashok Bhatt was never deputed to Shahibaug Police Control Room to assist the police., Shri Sanjiv Bhatt, the then Deputy Commissioner (Intelligence), stated that he attended a meeting at the Chief Minister’s residence on 28-02-2002 along with the Director General of Police and Additional Director General (Intelligence). After the meeting, he returned to his chamber on the second floor of Police Bhavan at about 11:00 hours and shortly thereafter went to meet the Director General of Police on the first floor of the same building. When he entered the Director General of Police’s chamber he found that, as instructed after the conclusion of the Chief Minister’s meeting, two Cabinet Ministers of Gujarat, namely Shri Ashok Bhatt and Shri I. K. Jadeja, had already arrived and were sitting on a sofa set in the Director General of Police’s chamber. He further stated that Shri G. C. Raiger, the then Additional Director General (Intelligence), and Shri Maniram, the then Additional Director General (Law and Order), were also present. Shri Sanjiv Bhatt briefed the Director General of Police and, after taking tea, returned to his chamber. Shortly thereafter, Shri Sanjiv Bhatt went to the State Control Room on the first floor to collect some documents and saw Shri I. K. Jadeja and his supporting staff sitting in the chamber of the Deputy Superintendent of Police, Control Room. Finding this odd, he informed the Director General of Police that it would be improper to permit outsiders in the State Control Room and asked whether the Minister and his staff could be shifted from the Control Room. The Director General of Police agreed, and Shri Sanjiv Bhatt requested Shri I. K. Jadeja to accompany him, as his presence in the Control Room would hamper its smooth functioning during the critical period. Shri Jadeja got up and followed him. Shri Sanjiv Bhatt took Shri Jadeja to the chamber of Shri P. C. Thakur, the then Inspector General of Police, which was empty at that time, and requested him to make himself comfortable and contact them for any assistance. Shri Chakravarthi was informed about it. Shri Sanjiv Bhatt later learned that Shri Jadeja left the Police Bhavan sometime in the afternoon after having lunch. He is not aware of any further visits of Shri Jadeja to the Police Bhavan on subsequent days., During further investigation, Shri Nissar Mohammad Malik, the then Police Sub-Inspector, who was on duty in the Police Control Room, Ahmedabad City from 28-02-2002 at 08:00 hours to 02-03-2002 at 08:00 hours, stated that Shri George Fernandes, the then Union Defence Minister, and Shri Harin Pathak, the then Minister of State for Defence, came to the Police Control Room, Ahmedabad City at 10:05 hours on 01-03-2002 and left at 10:25 hours. He confirmed the wireless message in this regard under his signature. He denied any knowledge about a visit of Late Ashok Bhatt, the then Health Minister, to the Police Control Room either on 28-02-2002 or 01-03-2002. Shri V. R. Patel, the then Police Sub-Inspector, also denied any visit of Late Ashok Bhatt to the Police Control Room on those dates. Shri Parbatsinh A. Dholetar, the then Police Sub-Inspector, Ahmedabad City Police Control Room, who was on duty on 28-02-2002 from 08:00 to 12:00 hours and from 20:00 to 24:00 hours, denied the visit of any Minister to the Police Control Room. Shri Maganbhai M. Limbachia, the then Police Inspector, who was on duty from 08:00 to 20:00 hours on 01-03-2002 in the State Police Control Room, Police Bhavan, Gandhinagar, denied the visit of any Minister in the Control Room., It may thus be seen that Shri K. Chakravarthi categorically stated that Shri I. K. Jadeja visited his office but did not go to the State Control Room and was made to sit in an empty chamber. Shri I. K. Jadeja himself confirmed that he was shifted to an empty chamber near the Director General of Police’s chamber and that the Director General of Police did not share any information with him. Shri K. Chakravarthi, the then Director General of Police, confirmed that Shri Jadeja did not interfere with their work. Shri I. K. Jadeja took the plea that it is an established practice in Gujarat State that in case of any natural calamities or serious law and order situation the Ministers of various departments extend their help in handling the crisis. Late Ashok Bhatt had earlier admitted that he might have visited Ahmedabad City Police Control Room on 28-02-2002 for a few minutes, but the call detail records of his official mobile phone show his location at Shahibaug Kedar Tower between 16:16:37 and 17:47:22 on 28-02-2002, when he attended the Chief Minister’s press conference. This conclusively proves that he did not visit the Police Control Room on that date. Moreover, officials of Ahmedabad City Police Control Room have denied that Late Ashok Bhatt ever visited the Control Room on either 28-02-2002 or 01-03-2002. In view of the aforesaid position, it is established that Shri I. K. Jadeja visited the Director General of Police’s office but did not enter the State Control Room or interfere with police work, and the Director General of Police did not share any information with him. However, it could not be established that Late Ashok Bhatt visited Ahmedabad City Police Control Room on either of those dates. As per his own admission he might have visited the Control Room for a few minutes, but the evidence shows otherwise. Therefore, the allegation that the two Ministers were positioned in the State Control Room and Ahmedabad City Police Control Room by the Chief Minister is not established. Significantly, Shri I. K. Jadeja remained at State Police headquarters for two to three hours as per his own admission but did not interfere in police functioning. Late Ashok Bhatt’s presence in the City Police headquarters on the relevant day, if any, was negligible and cannot be termed of any material value. In the absence of documentary or oral evidence of any directions given by these two Ministers to police officials, it cannot be said at this stage that they conspired in the preparation of riots or failed to take action to control the riots., Observation made by the Learned Amicus Curiae: No tangible action seems to have been taken by the senior police officials, namely the Commissioner of Police, to control the riots at Gulberg Society. Gulberg Society is not very far from the Office of the Commissioner of Police, Ahmedabad., Result of further investigation: Further investigation conducted about the role played by Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, revealed that on 27-02-2002, Shri Pande remained in the office till late at night and in the early hours of 28-02-2002. During this period he informally discussed the law and order situation and the arrangements to be made on 28-02-2002 with Shri Shivanand Jha, the then Additional Commissioner of Police, Sector-1, and Shri M. K. Tondon, the then Joint Commissioner of Police, Sector-II. On 28-02-2002, Shri Pande came to office around 08:00 hours. After some time he learned that the dead bodies of victims of the Godhra incident had been brought to Sola Civil Hospital and that a dispute was ongoing and the atmosphere was tense at the hospital. Accordingly, Shri P. C. Pande went to Sola Civil Hospital around 10:00 hours and found that doctors were under pressure to complete documentation whereas the relatives of the victims were in a hurry to take the dead bodies. He did not find anything alarming and returned to his office at about 11:00 hours. On the way, he observed that mobs had assembled at many places in large numbers, but they were not violent and most were spectators. While Shri Pande was in his office, reports started pouring in from all parts of the city about stone-pelting, arson, looting and damage to property. Whenever any information or distress call was received, it was promptly attended and the information immediately passed on to the concerned officer with instructions to attend to it on a priority basis. The Control Room was flooded with numerous calls for help and, with the available force, it was not possible to effectively deal with all situations. Distress calls were received from Police Station areas such as Satellite, Navrangpura, Ellisbridge, Bapunagar, Amraiwadi, Meghaninagar, Naroda and Odhav, which had comparatively faced fewer communal problems in the past. A few calls were received from the walled city, especially Shahpur, but the extent of damage was much less. Keeping in view the gravity of the situation, curfew was declared in many parts of the city from 12:20 hours onwards. As far as Shri P. C. Pande recollects, he instructed Shri M. K. Tondon, the then Joint Commissioner of Police, Sector-II, on the forenoon of 28-02-2002 to go to Meghaninagar as some calls of crowd gathering and stone-pelting were being received in the Control Room from the Meghaninagar Police Station area. He stated that he did not know Late Ahesan Jafri, former Member of Parliament, personally and also did not have knowledge that he was residing in Gulberg Society until the afternoon of 28-02-2002. Shri P. C. Pande had earlier stated that Shri M. K. Tondon reached Naroda Patiya around 12:30 hours and informed him over a mobile phone that the situation was alarming and recommended that curfew should be declared in the Naroda Police Station area. He concurred with the advice of Shri Tondon and curfew was declared in the Naroda area at about 12:30 hours. Shri Pande also stated that Ahmedabad City was totally disturbed and communication as well as transport systems had come to a standstill. According to Shri Pande, the additional force wherever sent was unable to reach in time because the roads had been blocked or obstructed by rioters, and large crowds had collected making movement difficult. At about 12:20 hours, a message was sent by Police Inspector Meghaninagar Police Station in the Control Room that Gulberg Society in the Meghaninagar area, a Muslim society, had been surrounded by a mob of 10,000 persons, pelting stones and setting fire to shops and rickshaws. He requested additional police personnel and Special Reserve Police immediately. On receipt of this message, Shri P. C. Pande deputed three officers—Shri G. D. Solanki, Deputy Superintendent of Police, Group VII; Shri Ajitkumar Gupta, Deputy Superintendent of Police, Group XII; and Shri A. B. Qureshi, Police Inspector, CID Crime—to go to Gulberg Society for assistance. At about 13:45 hours one section of the Central Industrial Security Force was also sent to Gulberg Society. At 14:05 hours, Shri M. K. Tondon sent a message to the Police Control Room that Late Ahesan Jafri, former Member of Parliament, and others had been surrounded by the mob in Gulberg Society and extra force and Police Inspector, Sardarnagar, should be sent there to shift them. At 14:14 hours another message was sent by Senior Police Inspector Erda of Meghaninagar Police Station in the Police Central Room that a mob of about 10,000 persons had gathered at Gulberg Society/Kalapinagar and was about to set fire to the entire society, and that an Assistant Commissioner of Police, Deputy Commissioner of Police along with additional force be sent immediately. At 14:45 hours, Shri K. G. Erda, Senior Police Inspector, Meghaninagar, sent another message that the Muslims in Gulberg Society had been surrounded by a mob of 10,000 persons from all sides and even the police force had been surrounded, and the mob was about to set fire to the society. He requested additional Special Reserve Police and police force as the situation was critical. Since two Deputy Superintendents of Police, one Police Inspector and one section of the Central Industrial Security Force had already been sent, no additional force was sent as nothing was available as reserves. Shri Pande contacted Shri P. B. Gondia, the then Deputy Commissioner of Police, Zone IV, at 15:16 hours and told him that Muslims were being burnt in Gulberg Society and that he should reach there immediately. However, Shri Gondia reached Gulberg Society only at 16:05 hours. At about 15:45 hours, Shri M. K. Tondon, despite being fully aware of the situation at Gulberg Society, sent a message to the Ahmedabad City Police Control Room asking whether there was any incident relating to loss of life at Gulberg Society and that a detailed report be sent to him. No other information was available with the Control Room at that time. Shri Pande has also stated that Shri K. Chakravarthi, the then Director General of Police, had informed him that a mob had surrounded Gulberg Society and that reinforcements should be sent there, to which he replied that extra force and officers had already been sent. Shri Pande claimed that he did not know when the additional police force he had sent actually reached Gulberg Society. He stated that he learned about the incident at Gulberg Society sometime in the evening and personally visited the society between 19:00 and 19:30 hours. He found that the houses were ransacked, belongings set on fire and some wooden articles and furniture were still smoldering. According to Shri Pande, since the Joint Commissioner of Police had already shifted most of the inmates of the society in vans to safer places, he gave instructions to the Senior Police Inspector and other staff present to go ahead with the inquest and send the dead bodies for post-mortem examination. He returned to his office thereafter. As per Shri Pande, Late Ahesan Jafri, former Member of Parliament, did not contact him either on his landline or mobile phone on 28-02-2002 seeking help, and no one else from Gulberg Society contacted him. The call detail records of official mobile phone number 98250 48303 of Shri Pande have been scrutinised and do not show any call from the landline number 2125166 of Late Ahesan Jafri. Shri Pande further stated that, as per his information, Late Ahesan Jafri did not have any mobile phone and there was no other landline in Gulberg Society. Shri Pande added that on 28-02-2002, requests were received from different police station areas seeking additional force or Special Reserve Police and whatever resources were available with him were dispatched. However, he found that no feedback had been received from any of them, leading him to presume that the additional force reached them in time and that they were able to control the situation. He noted that a similar situation occurred at Gulberg Society where initially three officers, two Deputy Superintendents of Police and one Police Inspector, and subsequently one section of the Central Industrial Security Force, were sent by him., Shri Nisar Mohd. Malik, the then Police Sub-Inspector, Police Control Room, Ahmedabad City, who was on duty from 08:00 hours on 28-02-2002 to 08:00 hours on 02-03-2002, stated that he was not aware of any communications from Shri P. C. Pande, the then Commissioner of Police, Shri M. K. Tondon, the then Joint Commissioner of Police, Sector-II, Shri Shivanand Jha, the then Additional Commissioner of Police, Sector-I, or any other officer on 28-02-2002 and 01-03-2002 that might have suggested or instructed inaction by the police while dealing with the Hindu rioters. He further stated that the instructions or messages of the senior officers, which were passed through the Ahmedabad City Police Control Room, were for taking all required measures to control the riots and prevent any untoward incident. Shri Malik also stated that Shri P. C. Pande visited the Police Control Room and personally passed on the instructions to the jurisdictional officers to use effective force and control the riots. He does not remember the exact date and time of the message passed on by Shri Pande, but had noted the instructions in the message register of the Police Control Room, Ahmedabad City. He also stated that as and when the Commissioner of Police was made aware of messages regarding the law and order situation, he passed necessary instructions such as imposition of curfew and deployment of manpower.
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Shri Malik denied the visit of the late Ashok Bhatt, the then Health Minister, to the Control Room. Shri V.R. Patel, another Police Sub‑Inspector who was on duty in Ahmedabad City Police Control Room from 08:00 hrs on 28‑02‑2002 to 08:00 hrs on 02‑03‑2002, fully corroborated the statement of Shri Nissarmohmad Malik, the then Police Sub‑Inspector. Shri Shivanand Jha, the then Additional Commissioner of Police, Sector‑I, Ahmedabad City, stated that there were no instructions from any senior officers not to act or to allow Hindus to vent their anger. Shri M.K. Tandon, the then Joint Commissioner of Police, Sector‑II, also stated that no such instructions were given by any senior officers to allow Hindus to vent their anger against Muslims in the light of the Godhra carnage and that the police should not act against them., Shri Tandon further stated that, on the contrary, instructions were given to deal with the situation firmly. Shri Pande explained that the mobs had swelled to such an extent that they openly defied the curfew orders and, when challenged by the police, hid themselves in the lanes and regrouped after the police left. He considered that this happened due to an inadequate number of policemen on duty, who could not leave the places where they were deputed. He stated that the police force was engaged in a particular area while the mobs concentrated on other areas. Similarly, the fire tenders sent to Gulberg Society and Naroda could not reach in time because of obstacles put up by the rioters, resulting in loss of life and property. He mentioned that Meghaninagar and Naroda Police Stations had never been communally sensitive in the past, and the attacks in Naroda Patiya and Gulberg Society were beyond their expectations. In view of the aforesaid position, the allegation that Shri Pande did not take adequate actions to control the situation at Gulberg Society is not established., Observation made by the Learned Amicus Curiae: The observation of Shri Narendra Modi in a television interview on 01‑03‑2002 clearly indicates an attempt to justify the violence against the minority community. This approach cannot be seen in isolation; it must be considered in conjunction with other facts mentioned herein, which provide sufficient justification for a detailed investigation in the matter., Result of further investigation: During further investigation, a requisition was sent to Zee TV to make available a copy of the CD of a television interview of Shri Narendra Modi, Chief Minister of Gujarat, conducted by their correspondent Shri Sudhir Chaudhary on 01‑03‑2002. Despite two reminders and a notice under section 91 of the Code of Criminal Procedure sent to them, the CD has not been made available. Shri Sudhir Chaudhary stated that he attended a press conference held by Shri Narendra Modi on 01‑03‑2002 at a Circuit House on the outskirts of Gandhinagar. He further stated that he had interviewed the Chief Minister for about ten minutes after the conference. After reviewing the Editor's Guild Fact‑Finding Mission report dated 03‑05‑2002, Shri Chaudhary said that only a few excerpts from the interview were available and that the original CD was not before him. He recalled questioning the Chief Minister about the Chamanpura massacre (Gulberg Society case), in which former Congress MP Late Ahesan Jafri was killed along with many others; the Chief Minister replied that the mob reacted because of private firing done by Late Ahesan Jafri, ex‑Member of Parliament. After refreshing his memory, Shri Chaudhary stated that the Chief Minister was of the view that he neither wanted action nor reaction. He was unable to elaborate further as he could not recollect the exact sequence of events after a span of nine years and the CD was not before him., Shri Narendra Modi was questioned about the aforesaid interview given to Zee TV on 01‑03‑2002. He stated that anyone who has read the history of Gujarat would be aware that communal violence in Gujarat has a long history and the State has witnessed serious incidents of such violence. Regarding the Zee TV interview, he said that after eight years he did not recollect the exact words, but he had always appealed only for peace. He further stated that he had tried to appeal to the people to shun violence in straight and simple language, and that if his words are considered in the correct perspective, it would be evident that there was an earnest appeal for people to refrain from any kind of violence. He denied all allegations against him in this regard. Concerning the statement made to the media about post‑Godhra riots citing Newton's law that every action has an equal and opposite reaction, Shri Modi said that the Times of India published a news item on 03‑03‑2002 purporting that he had given an interview to them, but the truth is that nobody had met him in this regard. He further stated that the falsehood of his so‑called justification \Action‑Reaction Theory\ is evident from this fact. According to Shri Modi, the State Government issued a denial that he had not given any interview, and this denial was belatedly published in a remote corner of the newspaper. He also said that violence cannot be replied to by violence and he had appealed for peace. He denied all allegations in this regard., The recommendations made in Chart B by the Learned Amicus Curiae, vis‑à‑vis comments of the Special Investigation Team (SIT), are as follows: The allegation is that thirteen IAS/IPS officers were rewarded for their support during the post‑Godhra riots. The finding of the SIT is that there was nothing to indicate that thirteen officers had been rewarded with postings for their support to the Chief Minister. However, the SIT concluded that the conduct of Shri M.K. Tandon, the then Joint Commissioner of Police, Sector‑II, Ahmedabad, was not satisfactory and therefore departmental action should be taken against him. Regarding Shri M.K. Tandon and Shri P.B. Gondia, the then Deputy Commissioner of Police, Zone‑IV, it does not appear to be a simple case of mere dereliction of duty; section 304A of the Indian Penal Code would be squarely attracted in such a case. As far as promotion of other IAS and IPS officers is concerned, the view taken by the SIT seems to be acceptable., The allegation is that the Government of Gujarat has been seriously indicted by this Hon'ble Court due to fresh investigation in the Bilkis Bano case by the Central Bureau of Investigation and retrial of the Best Bakery case outside the State of Gujarat. The SIT has concluded that the trials in both cases are over; some accused have been convicted, some have been acquitted, and the appeals are pending before the High Court. The SIT recommended that the matter be handled by the State of Gujarat to take departmental action for major penalty against Shri K. Kumaraswamy, Joint Commissioner of Police, Baroda City, and Shri Ramjibhai Pargi, former Assistant Commissioner of Police, in light of the observation of the Learned Sessions Judge, Greater Bombay. It also recommends setting up a committee by the Government of Gujarat to fix responsibility on the officials. The investigative agencies let off the accused in the Bilkis Bano case; if the CBI had not stepped in, the accused would have gone unpunished. Similarly, in the Best Bakery case, the prosecution appears to have been conducted in a shoddy manner to protect the accused. The SIT's recommendation that the Government of Gujarat should set up a committee may need to be reconsidered; it would be appropriate if these two cases are examined by the SIT so as to fix responsibility on the investigating/prosecuting officials and suitable directions can thereafter be issued by this Hon'ble Court to take action, either under the Indian Penal Code (depending on whether offences under the IPC are revealed) or departmental action for misconduct. The acts of the investigating/prosecuting agencies may attract Section X., The allegation is that investigations were partial in nature and there was prejudice against the riot victims. The finding of the SIT is that supplementary charge‑sheets have been filed in the Gulberg Society case and Naroda Patiya case, but that by itself cannot be a reason to hold that investigations were conducted in a partial manner. The grievance of the petitioner may not survive after the SIT has conducted fresh investigations, but it would be unjust to spare those who conducted partisan or negligent investigations. Hence, this issue needs to be addressed. The role of officials in the Crime Branch, especially Deputy Commissioner of Police Vanzara and Assistant Commissioner of Police Chudasama, needs to be inquired into, especially in light of the statement of Shri Rahul Sharma, Deputy Commissioner of Police, Control Room, Ahmedabad. To that extent, the finding of the SIT is not acceptable., The allegation is that pro‑VHP lawyers were appointed as Public Prosecutors, which had an adverse effect on the trial of the riot accused. The finding of the SIT is that, although the political affiliation of the advocate weighed with the government in their appointment as Public Prosecutors, there is no specific allegation showing favour by them to any of the accused persons involved in the riots, either at the time of grant of bail or during the trial. The issue may not survive because of the intervention by this Hon'ble Court whereby Public Prosecutors have been appointed in an independent manner. However, this may need to be looked into further in light of the subsequent letter of Ms. Teesta Setalvad. Allegations also relate to inaction against senior police officers who did not carry out proper investigation of riot‑related cases, especially the Bilkis Bano rape case. The SIT has stated that the allegations were vague and general and there was nothing against any specific officer. It is further stated that the CBI had not recommended any action against Shri Jadeja, Superintendent of Police, Dahod, in the Bilkis Bano case. In so far as Shri Jadeja is concerned, the documents relating to the Bilkis Bano case need to be scrutinised; the basis on which the CBI concluded that no departmental action is required against Mr. Jadeja has to be examined before any conclusion is drawn., The allegation is that the CD relating to telephonic calls of Bharatiya Janata Party leaders and police officers was not looked into by the investigating officers in the Gulberg Society and Naroda Patiya cases. The SIT has found that Shri Tarun Barot, the investigating officer of the case, and Shri G.L. Singhal, the Assistant Commissioner of Police, Crime Branch, intentionally did not examine the cell‑phone records, though they were available to them, and therefore major penalty departmental proceedings should be initiated against them. The Government of Gujarat may be directed to take departmental actions against these two officers immediately within a time‑bound manner., The allegation is that the police at Gulberg Society and Naroda Patiya did not take action and acted as mute spectators to the acts of lawlessness. Real culprits were not arrested and no preventive action was taken. The SIT found this allegation to be incorrect. Shri M.K. Tandon, the then Joint Commissioner of Police, Sector‑II, said that he reached Gulberg Society at 4.00 pm and ordered Central Industrial Security Force firing. It is not clear why the CISF could not reach earlier, though it had been sent at 1.45 pm. It is also not clear why other officers, namely G.D. Solanki, Deputy Superintendent of Police, etc., could not reach Gulberg Society on time. It appears that nothing was done by the police personnel present at Gulberg Society and Naroda Patiya to disperse the gathering mob, and the mob was being permitted to gather at these two places. Hence, there is substance in the allegations of police inaction. It is also not clear what action was taken by Shri M.T. Rana, the then Assistant Commissioner of Police, ‘G’ Division, who was present at Naroda Patiya to prevent the mishap. The following actions are recommended: (i) Shri M.K. Tandon and Shri P.B. Gondia be prosecuted under section 304A of the Indian Penal Code; (ii) the SIT may examine the role of the investigating agency in the Bilkis Bano rape case and make recommendations to this Hon'ble Court whether it reveals commission of any criminal offence or misconduct; (iii) the SIT may be directed to look into the role of the Crime Branch officers, namely Deputy Commissioner of Police Vanzara and Assistant Commissioner of Police Chudasama, as to their role in the investigation of Gulberg Society and Naroda Patiya cases; (iv) the SIT may examine the role of the prosecuting agency in the Best Bakery case and recommend suitable action against those who are responsible; (v) the SIT may look into the role of police officials in the Gulberg Society and Naroda Patiya cases (apart from those who are already facing charges); (vi) departmental action, as suggested by the SIT, be taken against K. Kumaraswamy, the then Joint Commissioner of Police, Baroda City, and Ramjibhai Pargi, former Assistant Commissioner of Police; (vii) as recommended by the SIT, departmental action be taken against Shri Tarun Barot, Inspector, and Shri G.S. Singhal, Assistant Commissioner of Police, Crime Branch, for faulty investigation of the riots cases., The aforesaid recommendations of the Learned Amicus Curiae show that he concurred with the findings of the SIT with regard to Allegations No. IX and No. XXIII. Further, as regards Allegation No. XV, the Learned Amicus Curiae opined that the issue may not survive because of the intervention of the Supreme Court of India, whereby Public Prosecutors have been appointed in an independent manner. The recommendations made by the Learned Amicus Curiae in Chart B have been examined and the comments on the same were as follows: Observation made by the Learned Amicus Curiae: Shri M.K. Tandon and Shri P.B. Gondia be prosecuted under section 304A of the Indian Penal Code., Result of further investigation: The Learned Amicus Curiae recommended that Shri M.K. Tandon (the then Joint Commissioner of Police, Ahmedabad City) and Shri P.B. Gondia (the then Deputy Commissioner of Police, Ahmedabad City) should be prosecuted under section 304A of the Indian Penal Code. Role and evidence available on record after further investigation of three cases (Meghaninagar Police Station I.CR No. 67/2002, Naroda Police Station I.CR Nos. 100/2002 & 98/2002) against Shri Tandon and Shri Gondia were analysed and it was found that the same is not adequate to launch prosecution of the two officers., Brief facts: (I) Meghaninagar Police Station I.CR No. 67/2002 (Gulberg Society): A call for Gujarat bandh on 28‑02‑2002 was given by Vishwa Hindu Parishad, supported by the ruling Bharatiya Janata Party, to protest against the killing of karsevaks at Godhra Railway Station on 27‑02‑2002. An unlawful mob of around 20,000 Hindus, armed with deadly weapons, attacked shops and houses of Muslims residing in Gulberg Society on the morning/afternoon of 28‑02‑2002, resulting in the death of 39 persons and injuries to 15 others. Thirty‑one Muslim individuals went missing; Shri Ahesan Jafri, ex‑Member of Parliament, fired in self‑defence from his private licensed weapon, injuring 15 persons in the mob, one of whom died later. Police fired 124 rounds to disperse the mob, resulting in the death of four rioters. On the complaint of Police Inspector of Meghaninagar Police Station, Shri K.G. Erda, the case was registered under various sections of the Indian Penal Code, the Bombay Police Act and the Arms Act against 11 named individuals and unknown others. After investigation, 11 charge‑sheets were filed against 71 individuals, while two persons were arraigned as accused by the trial court under section 319 of the Code of Criminal Procedure. Recording of prosecution evidence in that trial court is over and arguments are continuing. (II) Naroda Police Station I.CR No. 98/2002 (Naroda Gaam Case): During the same bandh on 28‑02‑2002, an unlawful mob of 5,000 to 7,000 rioters gathered around Naroda Gaam area at about 12:00 hours and attacked houses, shops and vehicles with inflammable materials, killing eight Muslim individuals; three victims went missing. On the complaint of Assistant Sub‑Inspector Vala of Naroda Police Station, a case was registered under various sections of the Indian Penal Code and the Bombay Police Act. Though only five persons were named in the FIR, 86 persons were charge‑sheeted in ten different charge‑sheets filed over the years. The trial is presently ongoing. (III) Naroda Police Station I.CR No. 100/2002 (Naroda Patiya): In another major incident on the same bandh day, an unlawful mob of 15,000 to 17,000 attacked houses of Muslims situated in Hussein‑ni Chali, Naroda Patiya and nearby areas between 11:00 and 20:00 hours, killing 58 Muslim individuals. Fifteen rounds were fired by the police to control the mob. Later, it was found that a total of 85 persons were killed, including two in police firing. On the complaint of Police Sub‑Inspector V.K. Solanki of Naroda Police Station, the case was registered under various sections of the Indian Penal Code and the Bombay Police Act against five named individuals and unknown others. Seventy persons were charge‑sheeted in eight charge‑sheets. The case is presently under trial., Enquiry by Shri A.K. Malhotra, Member of the Special Investigation Team, established the following: (A) Shri M.K. Tandon was Joint Commissioner of Police, Sector‑II, Ahmedabad City during the relevant period. Sector‑II comprises three zones (Zones IV, V & VI) and covers fifteen police stations including Meghaninagar and Naroda. Certain police stations in his jurisdiction—Dariapur, Gomtipur, Rakhial and Bapunagar—were traditionally communally sensitive, while Meghaninagar and Naroda did not have a history of serious communal riots, though they had a few Muslim pockets. Each zone is headed by a Deputy Commissioner of Police. Shri P.B. Gondia was posted as Deputy Commissioner of Police, Zone‑IV, with jurisdiction over Meghaninagar, Naroda, Dariapur, Shahibaug and Sardarnagar police stations. (B) Although Shri Tandon received information regarding the Godhra train incident and the proposed Vishwa Hindu Parishad bandh on 28‑02‑2002 on the morning of 27‑02‑2002, he did not hold any formal meeting with Deputy Commissioners of Police or Station House Officers, nor did he chalk out any plan to handle the law‑and‑order situation for the coming day. In fact, no major preventive police action was taken. Similarly, no meeting of SHOs or planning was done by Shri P.B. Gondia, Deputy Commissioner of Police. (C) Shri Tandon was allotted one company of State Reserve Police for the bandh day, which was distributed among three Deputy Commissioners of Police (one platoon each). During his movements on 28‑02‑2002, Shri Tandon had a striking force comprising two Police Sub‑Inspectors and a few armed men in two vehicles. (D) On the morning of 28‑02‑2002, Shri M.K. Tandon left for Dariapur Police Station as it was considered communally very sensitive. Around 10:35 hours, he received a wireless message from the Assistant Commissioner of Police, ‘G’ Division, requesting the Police Control Room to send more vehicles to Naroda Patiya area. In view of this message, he changed his route towards Naroda Patiya. En route, he inquired about the location of the Senior Police Inspector of Meghaninagar Police Station and, after learning that the officer had gone to Gulberg Society due to some problem there, proceeded towards Gulberg Society and reached there around 11:30 hours. Meanwhile, Shri P.B. Gondia, Deputy Commissioner of Police, received information regarding trouble at Naroda Patiya/Naroda Gaam and reached Naroda Patiya at about 11:00 hours. Inspector Shri Mysorewala of Naroda Police Station and Assistant Commissioner of Police Shri M.T. Rana were already there to deal with the mob which had gathered in large numbers. (E) Shri M.K. Tandon found a mob of around 1,000 Hindu rioters around Gulberg Society and ordered the bursting of tear‑gas shells and a lathi charge by his striking force. Official records suggest that six tear‑gas shells were fired by the striking force attached to Shri Tandon at that time, dispersing the mob in the lanes near Gulberg Society. It is believed that Shri Tandon also met the late Shri Ahesan Jafri, ex‑Member of Parliament, and certain other residents of Gulberg Society who were assured of strengthening police presence there. Though witnesses claim that Late Ahesan Jafri had met the Commissioner, investigation revealed that Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City, had not visited Gulberg Society at that time. Most likely, Late Jafri met Shri M.K. Tandon, the then Joint Commissioner of Police, Sector‑II. Shri Tandon denies this fact. Around 11:50 hours Shri M.K. Tandon left for Naroda Patiya. (F) On reaching Naroda Patiya around 12:20 hours, Shri Tandon found the situation very explosive and requested the Commissioner of Police, Ahmedabad City, for imposition of curfew in Naroda Patiya. The Commissioner agreed and curfew was imposed at 12:30 hours. (G) Significantly, Shri P.B. Gondia received a message at 12:35 hours from the Senior Police Inspector, Meghaninagar, about the grave situation at Gulberg Society where a mob of around 5,000 had reportedly gathered. (H) Around 12:40 hours, Shri M.K. Tandon left Naroda Patiya for Dariapur Police Station area, ostensibly on the ground that it was communally hyper‑sensitive. Incidentally, Shri Tandon did not take any concrete action at Naroda Patiya except requesting the imposition of curfew. Call‑detail records show he was in Bapunagar‑Rakhial area between 12:41 and 13:25 hours, and later in Dariapur and Kalupur Police Stations area between 13:51 and 15:42 hours. (I) At about 12:20 and 12:30 hours, Senior Police Inspector Erda of Meghaninagar Police Station sent alarming messages to the Police Control Room about the critical situation at Gulberg Society, requesting reinforcements. (J) Around 14:05 hours, Shri Tandon sent a message to the Control Room to send additional force for shifting Late Ahesan Jafri and others who had been surrounded by a mob in Gulberg Society. Shri Tandon did not inquire about the latest position until 15:45 hours, when he asked the Control Room to check whether there was any incident relating to loss of life in Gulberg Society. By that time, the society had been set ablaze and many lives, including that of Late Ahesan Jafri, had been lost. (K) Shri P.B. Gondia sent Shri V.S. Gohil, Second Police Inspector, Naroda Police Station, to Naroda Gaam around 13:00 hours due to the critical situation there. He also ordered police firing in Naroda Patiya area, which resulted in the death of one Hindu and one Muslim miscreant. Police records show that during this period, 48 rounds (22 rounds of 9 mm and 26 rounds of .303) and 95 tear‑gas shells were fired by the striking force of Shri P.B. Gondia. He left Naroda Patiya at 14:20 hours ostensibly to go to Pithadiya Bambha (Dariapur Police Station) in view of some trouble there. (However, in a signed statement made earlier to Shri A.K. Malhotra, Member of the SIT, during inquiry, he claimed that he had left for Hotel Moti Manor owned by a Muslim and Rosary School in Shahibaug area, which were being set on fire.) (L) On the way to Pithadiya Bambha, Shri P.B. Gondia received instructions from the Commissioner of Police, Ahmedabad City, at 15:16 hours to go to Gulberg Society and he reached there sometime around 16:00 hours. Shri M.K. Tandon arrived thereafter and arranged for prisoner vans, ambulances, etc., for safe shifting of 150 survivors of Gulberg Society to Shahibaug Police Station. (M) Late after the departure of Shri M.K. Tandon, Shri P.B. Gondia, Assistant Commissioner of Police Shri M.T. Rana and Senior Police Inspector Shri K.K. Mysorevala from Naroda Patiya area, a major incident of rioting took place between 18:00 and 18:30 hours, in which 85 persons were killed and 13 persons went missing. Five Vishwa Hindu Parishad activists were named as accused in the FIR. (N) Shri M.K. Tandon was in touch with certain accused persons of the Naroda Patiya/Naroda Gaam cases. He received two telephone calls on 01‑03‑2002 at 11:37 hours (250 seconds) and 12:56 hours (161 seconds) from accused Jaydeep Patel of VHP, and two calls on 01‑03‑2002 at 14:58 hours (32 seconds) and 19:04 hours (61 seconds) from accused Dr. Mayaben Kodnani. (O) Shri P.B. Gondia was also in touch with some accused persons of the Naroda Patiya/Naroda Gaam cases. He received three calls on his mobile phone from Dr. Mayaben Kodnani on 28‑02‑2002, 01‑03‑2002 and 02‑03‑2002 at 10:39, 13:39 and 12:49 hours respectively. He also received three calls on 28‑02‑2002 at 11:40, 11:52 and 12:20 hours, two calls on 01‑03‑2002 at 10:04 and 11:35 hours, and two calls on 02‑03‑2002 at 11:56 and 18:48 hours from accused Shri Jaydeep Patel., Role of Shri M.K. Tandon: During further investigation, efforts were made to ascertain whether Shri M.K. Tandon could be part of the conspiracy of these offences. No evidence has come on record to establish that he was a party to a criminal conspiracy hatched by the rioters. Normally, conspiracy is hatched secretly and only circumstantial evidence is available to establish the same. In the case of Shri Tandon, certain actions on his part suggest bonafide intentions to control the riots. Initially, he visited Gulberg Society and lobbed tear‑gas shells, dispersing the mob. Subsequently, he proceeded to Naroda Patiya and, on his advice, curfew was imposed in Naroda Patiya area by the Commissioner of Police. From Naroda Patiya, he went to Dariapur, which was communally very sensitive. Regarding telephonic contact with accused persons Dr. Mayaben Kodnani and Shri Jaydeep Patel, it has come to light that Dr. Kodnani was MLA from Naroda constituency and Shri Patel was Joint General Secretary, Vishwa Hindu Parishad, Ahmedabad Unit. These individuals were interrogated but expressed inability to recollect the conversations, claiming they must have been about the prevailing law‑and‑order situation. Telephone calls made a day after the offence, from certain local leaders who were later prosecuted, do not make an individual part of the conspiracy unless the contents of the conversation are known. In view of this, it would not be appropriate to conclude solely on the basis of telephone calls that he was part of the conspiracy. Investigation revealed that Shri Tandon got the mob dispersed outside Gulberg Society around 11:30 hours but did not provide additional force to Senior Police Inspector Erda as requested, despite assurances given to Late Ahesan Jafri and others. One platoon of State Reserve Police was allotted to Deputy Commissioner of Police, Zone‑IV, and reported at Naroda Patiya at about 12:45 hours, being deployed there. As the cremation of twelve karsevaks who had died on the previous day in the Godhra train incident was also to take place in Hatkeshwar cremation ground, which was within Shri M.K. Tandon's jurisdiction, he had some justification to leave Naroda Patiya for communally hyper‑sensitive areas in his jurisdiction. Furthermore, Deputy Commissioner of Police Shri P.B. Gondia, along with Assistant Commissioner of Police M.T. Rana, were already at Naroda Patiya handling the situation. Investigation revealed that Dariapur was traditionally communally hyper‑sensitive. Between 12:15 and 21:00 hours on the day, one person was killed in police firing and one mosque was heavily damaged, besides the setting of Lunsawad police post on fire by miscreants. However, records of that period do not reveal any action taken by Shri M.K. Tandon at any of the locations in Dariapur, nor any firing ordered by him. The objective assessment of the situation reveals that Shri Tandon did not appreciate the circumstances professionally and acted in a negligent manner by not taking appropriate action about the grave situation at Gulberg Society/Naroda Patiya area.
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It would not be out of place to mention here that Shri M. K. Tandon was very well aware of the situation at Gulberg Society, as he had sent a message to the Police Control Room at 14:05 hours on 28 February 2002, stating that late Ahesan Jafri and others had been surrounded by a mob and needed to be shifted immediately. Despite being aware of the inflammatory situation at Gulberg Society, he chose not to go there. He later sent a message at 15:45 hours asking whether there was any loss of life at Gulberg Society and, if so, that a detailed report should be given to him., As Joint Commissioner of Police, he was expected to monitor developments throughout his jurisdiction, especially when he had left the locations at Gulberg Society and Naroda Patiya, which were by no means peaceful at that time. He left the locations under the care of the concerned Police Inspector (in the case of Gulberg Society) and Deputy Commissioner of Police (in the case of Naroda Patiya) and did not inquire or take corrective actions, although he had become aware of the gravity of the situations., Investigation revealed that Shri P. B. Gondia had received three calls on his mobile phone from Dr. Mayaben Kodnani on 28 February 2002, 01 March 2002 and 02 March 2002 at 10:39 hours, 13:39 hours and 12:49 hours respectively. He also received three calls on 28 February 2002 at 11:40 hours, 11:52 hours and 12:20 hours, two calls on 01 March 2002 at 10:04 hours and 11:35 hours, and two calls on 02 March 2002 at 11:56 hours and 18:48 hours, from accused Shri Jaydeep Patel. Dr. Mayaben Kodnani, Shri Jaydeep Patel and Shri P. B. Gondia claimed that they were unable to recall the exact contents of these phone calls and said that the calls must have been in connection with the law and order situation. Notably, all these calls were incoming as far as Shri P. B. Gondia is concerned., Shri Gondia claimed that seven rioters had been killed as a result of police firing ordered by him. Police records show that 110 rounds of bullets and 183 tear‑gas shells were fired by the police personnel under his command on 28 February 2002, though the records do not show any personal firing by him. From Naroda Patiya he proceeded towards Pithaliya Bambha, from where some incidents of rioting had been reported. He was instrumental in controlling a riot situation at Moti Manor Hotel and Rosary School on the way., Investigation further revealed that he had left Naroda Patiya at 14:20 hours despite a huge mob of Hindu and Muslim rioters having gathered there while the curfew was in force. His leaving the location for Pithaliya Bambha was totally unjustified, especially when there was no information of any situation being more grave there than at Naroda Patiya. If Shri Gondia realized that he was in a position to leave the location, he should have gone to Gulberg Society and not to Pithaliya Bambha., Shri Tandon stated that on receipt of a message from Shri K. G. Erda at 14:45 hours that Gulberg Society had been surrounded by a mob and was about to be set on fire, he directed Shri P. B. Gondia to reach Gulberg Society immediately. Though this fact was mentioned by Shri M. K. Tandon in his affidavit filed before the Nanavati Commission in July 2002, he has not been able to explain how this direction was given to Shri Gondia, as there is no Control Room message or mobile phone call to Shri Gondia at that time. Shri Gondia denied having received any such instructions from Shri Tandon., Sufficient evidence has not come on record regarding police involvement of these two officers in the conspiracy or abetment of the offences. However, they demonstrated a profound lack of judgment that seriously undermined their credibility and damaged their effectiveness in dealing with the situations. All three major incidents took place in areas under their control and they left the locations for handling by junior officers. They did not take any preventive action on 27 February 2002, while any police officer worth the name could imagine the seriousness of the situation. Learned Amicus Curiae has recommended prosecution of the two officers under section 304A of the Indian Penal Code., In view of this recommendation, available evidence was analysed to assess whether the inaction of these two officers amounted to criminal negligence or professional misconduct. The basic requirement for prosecution under section 304A is that the act (including omission) must be rash or negligent and must be the immediate cause of death. The issue is whether the acts of Shri M. K. Tandon and Shri P. B. Gondia would amount to criminal negligence justifying their prosecution. Their actions need to be seen in the proper perspective and situation prevalent on that day., The following actions analyse the role played by Shri M. K. Tandon. In the morning of 28 February 2002 he left for Dariyapur Police Station (communally hypersensitive). On the way at 10:35 hours he heard a wireless message of Assistant Commissioner of Police, G Division requesting control to send more vehicles to Naroda Patiya. In view of this message he proceeded towards Naroda Patiya. En route he asked the location of Senior Police Inspector of Meghaninagar Police Station and, after learning that he was at Gulberg Society, he proceeded there and reached Gulberg Society at about 11:30 hours. At that time a mob of around 1,000 Hindu rioters had gathered there. Shri Tandon ordered the bursting of tear‑gas shells and a lathi charge through his striking force, resulting in the dispersal of the mob in the lanes near Gulberg Society. Around 12:00 hours Shri Tandon left for Naroda Patiya. At 12:20 hours he made a phone call to the Commissioner of Police and requested the imposition of curfew in Naroda Patiya, which was imposed at 12:30 hours. He informed the Commissioner of Police, Ahmedabad City regarding the situation at Naroda Patiya through a phone call at 12:37 hours and also informed him about the funeral procession of kar sevaks. The Commissioner instructed him to go to Dariyapur, as the Dariyapur Police Station is communally hypersensitive. As Assistant Commissioner of Dariyapur was on leave and the presence of a senior officer was required there, he left for Dariyapur. Therefore, his leaving the spot for a known communally hypersensitive place does not amount to criminal negligence though it could be an error of judgment or poor appreciation of the situation. During the investigation of the offence at Naroda Patiya it was established that the incident took place after 18:00 hours. When Shri Tandon left Naroda Patiya around 12:40 hours, Senior Police Inspector of Naroda Police Station along with his force, Assistant Commanding Officer G Division, Deputy Commissioner of Police Zone IV and one platoon of State Reserve Police were present there. Therefore it was not possible to envisage that such an incident might take place at Naroda Patiya. Shri M. K. Tandon stated that the first wireless message regarding the situation at Gulberg Society was received at 14:14 hours on his wireless handset. He further stated that he had not received the messages passed by Senior Police Inspector of Megharinagar Police Station at 12:25 hours and 12:38 hours as the situation was very noisy in Naroda Patiya area and he was using the public address system of his vehicle for declaration of curfew and ordering the mob to disperse. Regarding the situation at Gulberg Society, Shri M. K. Tandon stated that he was informed by an unknown Muslim individual that late Ahesan Jafri, former Member of Parliament and other Muslims of Gulberg Society needed to be shifted immediately. His enquiries with the Control Room revealed that additional force of two Deputy Superintendents of Police, one inspector and one section of the Central Industrial Security Force had been sent to Gulberg Society, as per orders of the Commissioner of Police. Shri M. K. Tandon claimed that he had called the Commissioner of Police on his mobile phone at 14:25 hours and discussed the situation. He considered that leaving Dariyapur without any senior police officer could have led to drastic consequences as the Assistant Commissioner was on leave and the Deputy Commissioner was busy handling the law and order situation elsewhere., The following actions of Shri P. B. Gondia are relevant to decide whether he was liable for criminal negligence. As per call details of his mobile phone for 28 February 2002, he was in the Dariyapur Police Station area (communally hypersensitive) since 08:30 hours. On receipt of information regarding trouble at Naroda Patiya/Naroda Gaam, he reached there around 11:00 hours. He was allotted one platoon of State Reserve Police, which he deployed at Naroda Patiya and Naroda Gaam. Curfew was imposed at Naroda Patiya at 12:30 hours. He ordered police firing at Naroda Patiya, which resulted in the death of one Hindu and one Muslim rioter. Shri P. B. Gondia left Naroda Patiya at 14:20 hours on receiving a message regarding trouble at Pitadiya Bambha in Dariyapur, a location with a history of serious communal violence. At 15:16 hours he received instructions from the Commissioner of Police, Ahmedabad City to go to Gulberg Society, where he reached around 16:00 hours and took measures to disperse the mob and rescue the survivors. Investigation established that the major loss of lives at Naroda Patiya occurred after 18:00 hours, approximately four hours after Shri Gondia had left the spot. The killings took place at a corner location away from the main road where police personnel were stationed and handling the mobs, and there appears to be no direct nexus with Shri Gondia, who had left at about 14:20 hours. On 28 February 2002 he ordered firing of 110 rounds of bullets and 183 tear‑gas shells to disperse rioters at different locations, leading to the killing of seven rioters (including six Hindus)., Section 304A of the Indian Penal Code requires that the act be the immediate cause of death and not a remote cause. It is necessary to show an immediate nexus between the wrongful act of an accused and the injuries received by another. To constitute the offence, the death must be the direct result of a rash and negligent act that is the proximate cause without intervention of any third factor. In case of criminal negligence, the negligence must be gross and not merely an error of judgment or a defect of intelligence. Considering all the circumstances, evidence on record and the defence available to Shri M. K. Tandon and Shri P. B. Gondia, it may not be viable to prosecute them for the offence under section 304A of the Indian Penal Code as proposed by Learned Amicus Curiae., The conduct of Shri M. K. Tandon, the then Joint Commissioner of Police, Ahmedabad City (now retired), and Shri P. B. Gondia, the then Deputy Commissioner of Police, Ahmedabad City, was unprofessional and unbecoming of senior police officers. Learned Amicus Curiae observed that the Special Investigation Team may examine the role of the investigating agency in the Bilkis Bano rape case and make recommendations to the Supreme Court of India whether it reveals commission of any criminal offence or misconduct. The Bilkis Bano case was investigated by the Central Bureau of Investigation under the orders of the Supreme Court of India, resulting in conviction of twelve accused persons and acquittal of eight; appeals are pending in the High Court. The Special Investigation Team was also directed to look into the role of Crime Branch officers DCP Vanzara and AC P. Chudasama in the investigation of Gulberg Society and Naroda Patiya cases. Departmental action has been recommended against Shri S. S. Chudasama, the then Assistant Commissioner of Crime Branch (retired), and Shri D. G. Vanzara, the then Deputy Commissioner of Crime Branch (now under suspension), who is in judicial custody in the Sohrabuddin fake encounter case since 2007, although no fresh material has come on record to establish lapses. The Special Investigation Team may examine the role of the prosecuting agency in the Best Bakery case; the case was investigated by Gujarat Police, ended in acquittal of all accused in a trial at Baroda, was later remanded by the Supreme Court of India for retrial in Bombay High Court, resulting in conviction of nine accused and acquittal of eight. The Special Investigation Team may also look into the role of police officials in the Gulberg Society and Naroda Patiya cases apart from those already facing charges. The Government of Gujarat would be requested to initiate appropriate action against the concerned officials for various administrative lapses. Departmental action, as suggested by the Special Investigation Team, be taken against K. Kumaraswamy, the then Joint Commissioner, Baroda City and Ramjibhai Pargi, former Assistant Commissioner Police. As recommended by the Special Investigation Team, departmental action be taken against Shri Tarun Barot, Inspector, and Shri G. L. Singhal, Assistant Commissioner of Police, Crime Branch for faulty investigation of the riots cases. The recommendations made in Chart C by the Learned Amicus Curiae in respect of the Special Investigation Team comments are given below:, The Learned Amicus Curiae agreed with the findings of the Special Investigation Team on Allegations II, III, VI, VIII, XIV and recommended that the Supreme Court of India accept the Special Investigation Team recommendations on these allegations. Regarding Allegations XIII, XVII, XVIII and XXVI, the Learned Amicus Curiae considered the issues not very material and recommended that they be dropped. Concerning Allegation XXX, the Learned Amicus Curiae opined that the allegation would be covered if the request for further investigation is accepted by the Supreme Court of India. The Learned Amicus Curiae also noted that further investigation conducted by the Special Investigation Team under section 173(8) of the Criminal Procedure Code about the involvement of Shri Gordhan Zadafia revealed a lack of evidence to suggest his involvement in the riots, and that finding is acceptable., As ordered by the Supreme Court of India, the matter was listed for hearing on 5 May 2011, when the following order was passed: Pursuant to the order dated 15 March 2011, the Chairman of the Special Investigation Team filed a report on further investigations carried out by his team along with his remarks. Statements of witnesses and documents have been placed on record in separate volumes. A copy of all these documents along with the report of the Chairman is to be supplied to Mrs. Raju Ramchandran, the Learned Amicus Curiae. The Learned Amicus Curiae shall examine the report, analyse and provide an independent assessment of the statements of the witnesses recorded by the Special Investigation Team and submit his comments. He may interact with any of the witnesses examined by the Special Investigation Team, including police officers, as he may deem fit. If the Learned Amicus Curiae forms an opinion that, on the basis of the material on record, any offence is made out against any person, he shall mention the same in his report. The list was scheduled for 28 July 2011 at 3:00 p.m. Pursuant to the aforesaid order passed by the Supreme Court of India, the Learned Amicus Curiae submitted his report dated 25 July 2011., In his report, the Learned Amicus Curiae agreed with the findings of the Special Investigation Team on several issues: (i) Although he observed in his note dated 20 January 2011 that the late Haren Pandya, the then Minister of State for Revenue, could have been present at the meeting on 27 February 2002, considering the material gathered by the Special Investigation Team and its further investigation report, he agrees that the late Haren Pandya could not have been present and therefore his statement regarding the alleged statement made by Shri Narendra Modi in the meeting may be disregarded. (ii) He agrees with the Special Investigation Team's finding that the statement made by Shri R. B. Sreekumar, the then Additional Director General (Intelligence), to Shri K. Chakravarthi, the then Director General of Police, would be hearsay evidence not saved by res gestae and therefore inadmissible. (iii) He accepts the Special Investigation Team's conclusion regarding the steps taken by Shri Narendra Modi to control the riots in Ahmedabad City. (iv) He accepts the observations of the Chairman, Special Investigation Team, on the handing over of the bodies of the Godhra victims to Shri Jaydeep Patel. (v) He accepts the observations of the Special Investigation Team regarding the Chief Minister's statement on television on 1 March 2002. (vi) Regarding the alleged inaction of Shri P. C. Pande, the then Commissioner of Police, Ahmedabad City, no comment is necessary at this stage as an application under section 319 of the Criminal Procedure Code has been filed against Shri P. C. Pande, and the matter may be dealt with by the concerned court in accordance with law, similar to the suggestion regarding Shri M. K. Tandon and Shri P. B. Gondia. The Learned Amicus Curiae concluded that, at this prima facie stage, offences under sections 153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the Indian Penal Code are made out against Shri Narendra Modi. He stated that it would be for the court of competent jurisdiction to decide whether Shri Modi should be summoned for any or all of these offences or for any other offences. These findings are based on the following grounds: (a) Shri Sanjiv Bhatt brought his former driver Shri Tarachand Yadav and submitted an affidavit sworn on 17 June 2011, which supports Shri Bhatt's version that he had gone to the residence of the Chief Minister on 27 February 2002. (b) Shri Sanjiv Bhatt submitted an affidavit of Shri K. D. Panth, Constable, affirmed on 17 June 2011 supporting the version of Shri Bhatt about going to the Chief Minister's residence on the night of 27 February 2002. (c) Shri Rahul Sharma, DIG, submitted an analysis of the call records of senior police officers, which, according to Shri Sharma, corroborates the statement of Shri Bhatt. (d) Although Shri Sanjiv Bhatt has contended that he would speak only when under a legal obligation, his conduct after making a statement under section 161 of the Criminal Procedure Code has not been that of a detached police officer. (e) It does not appear very likely that a serving police officer would make such a serious allegation against Shri Narendra Modi, Chief Minister, without some basis. (f) There is no documentary material of any nature that can establish that Shri Bhatt was not present at the meeting on 27 February 2002, and in the absence of minutes of the meeting, there is no documentary evidence regarding the participants and what transpired. Therefore, it is the word of Shri Sanjiv Bhatt against the word of other senior officers. (g) It is difficult to accept that Shri Bhatt's statement is motivated because he has an axe to grind with the State Government over issues concerning his career, and it may not be proper to disbelieve Shri Sanjiv Bhatt at this stage only because other officers have not supported his statement. (h) The delay in making the statement cannot be the sole ground to disbelieve it, especially in view of his explanation that as an Intelligence Officer, who was privy to a lot of sensitive information, he would make a statement only when under a legal obligation. (i) Shri G. C. Raiger, Additional Director General (Intelligence) was on leave on 27 February 2002 and Director General Shri K. Chakravarthi does not state that he had gathered intelligence from the office of Shri Raiger. Further, Shri P. C. Upadhyay, the then Deputy Commissioner of Investigation (Political & Communal), was on leave on 27 February 2002 and Shri Bhatt was looking after his work. Shri Raiger has stated that Shri Bhatt had accompanied him in the past to meetings called by the Chief Minister, though he used to wait outside with files or information, and therefore it is quite possible that Shri Bhatt was directed to attend the meeting on 27 February 2002 at the residence of the Chief Minister.
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Phone call records do not contradict the statement given by Shri Sanjiv Bhatt to the Special Investigation Team and, considering the important and emergent nature of the meeting, the relative junior status of Shri Bhatt need not have prevented his attendance, especially since Additional Director General (Intelligence) Shri G.C. Raiger was not available and Shri O. P. Mathur, the Inspector General of Police (Security and Administration) who was next in seniority, was not called for the meeting. This aspect was of little significance in the context of an emergency meeting called at short notice in response to an escalating situation., The discrepancies about the exact language used or the time of the meeting at the Chief Minister’s residence in Gandhinagar on 28 February 2002 are inevitable considering the lapse of time. Regarding the assessment of the role played by Shri M. K. Tandon, the then Joint Commissioner of Police, Sector‑II, Ahmedabad City, and Shri P. B. Gondia, the then Deputy Commissioner of Police, Zone‑IV, Ahmedabad City, the Learned Amicus Curiae has recommended that it would be appropriate for the Honourable Supreme Court of India to direct the trial court to consider an application under section 319 of the Criminal Procedure Code filed by the victims in the Gulberg Society case on the evidence brought before it, and also to consider the further investigation report submitted by Shri Himanshu Shukla, Deputy Commissioner of Police, to the Honourable Supreme Court of India on 26 November 2010, together with the statements recorded by him, and to pass appropriate orders in accordance with law., The Learned Amicus Curiae has also submitted to the Honourable Supreme Court of India to consider whether an offence under section 304A of the Indian Penal Code is made out. The Learned Amicus Curiae has finally concluded that since the Special Investigation Team has conducted a statutory investigation under section 173(8) of the Criminal Procedure Code, the report is required to be filed in the court and it is for the competent court to pass necessary orders after hearing the concerned parties. However, the Honourable Supreme Court of India has refrained from passing any order in this regard except that the Chairman of the Special Investigation Team has been directed to forward a final report along with the entire material collected by it to the Supreme Court of India, which had taken cognisance of Criminal Case No. 67 of 2002 under section 173(2) of the Criminal Procedure Code. Shri Raju Ramachandran, the Learned Amicus Curiae, has agreed with the findings of the Special Investigation Team on all the major issues., While the complainant has alleged that Shri Narendra Modi, the Chief Minister, sponsored the riots, the Learned Amicus Curiae has concluded that sufficient steps were taken by the Chief Minister to control the riots. The Learned Amicus Curiae did not allege any conspiracy or abetment on the part of the Chief Minister. He has further agreed with the recommendations of the Special Investigation Team that the statement made by Shri R. B. Sreekumar that Shri K. Chakravarthi had informed him about the utterances made by the Chief Minister on the night of 27 February 2002 would not be admissible as it amounts to hearsay evidence and therefore is inadmissible. He is also of the view that the recommendations of the Special Investigation Team about the steps taken by the Chief Minister to control the riots may be accepted., The Learned Amicus Curiae has also agreed with the recommendations of the Chairman of the Special Investigation Team about handing over the dead bodies of Godhra victims to Shri Jaydeep Patel. Regarding the Chief Minister’s alleged statement on television on 1 March 2002, by referring to Newton’s third law of motion, the Amicus Curiae has agreed with the recommendations of the Special Investigation Team. Shri Raju Ramachandran, the Learned Amicus Curiae, is of the view that a prima facie case under sections 153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the Indian Penal Code is made out against Shri Narendra Modi, the Chief Minister. However, he further holds that it would be for the court of competent jurisdiction to decide whether Shri Modi has to be summoned for any or all of these offences or for any other offence., This recommendation of the Learned Amicus Curiae is based on the sole testimony of Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security), who has claimed to have attended a meeting called by the Chief Minister on the night of 27 February 2002 at his residence. It may be mentioned that seven other participants of the said meeting have categorically stated that Shri Sanjiv Bhatt did not attend the meeting. According to the Learned Amicus Curiae, Shri Sanjiv Bhatt produced his driver Shri Tarachand Yadav, a dismissed constable driver of Gujarat Police, along with his affidavit dated 17 June 2011, who supports Shri Bhatt’s version that he had gone to the residence of the Chief Minister on 27 February 2002. In this connection, Shri Sanjiv Bhatt has stated that he had gone along with Shri K. Chakravarthi, the then Director General of Police, in the latter’s staff car to the Chief Minister’s residence from the DGP’s office and that Shri K. D. Panth, the then Assistant Inspector of State Intelligence Bureau, followed him in his staff car driven by Shri Tarachand Yadav., The Learned Amicus Curiae has wrongly projected that Shri K. D. Panth, constable, has supported the version of Shri Sanjiv Bhatt about the latter’s visit to the Chief Minister’s residence on 27 February 2002, whereas Shri K. D. Panth lodged a complaint on 17 June 2011 against Shri Sanjiv Bhatt for wrongful confinement and for obtaining an affidavit from him under duress and threat, and a case under sections 189, 193, 195, 341, 342 of the Indian Penal Code was registered against Shri Sanjiv Bhatt on 22 June 2011 in Ghatlodia Police Station, Ahmedabad City. Shri Raju Ramachandran relied upon a copy of this affidavit which was handed over to him by Shri Sanjiv Bhatt on 17 June 2011. In fact, Shri K. D. Panth had sent a letter to the Chairman of the Special Investigation Team on 17 June 2011 along with another affidavit sworn before the Deputy Collector, Gandhinagar, stating that he was on leave on 27 February 2002 and that his statement made before the Special Investigation Team in this regard was correct. A copy of the said letter along with the affidavit submitted to the Special Investigation Team by Shri K. D. Panth, with its English translation, was handed over to Shri Raju Ramachandran by Shri Y. C. Modi, Member of the Special Investigation Team, and Shri A. K. Malhotra, Member of the Special Investigation Team, personally on 21 June 2011, but the same has been conveniently ignored by the Learned Amicus Curiae., The claim of Shri Sanjiv Bhatt has been dismissed by Shri K. Chakravarthi, the then Director General of Police, who has denied that Shri Bhatt accompanied him in his staff car to the Chief Minister’s residence on 27 February 2002. Significantly, the log book of the vehicle of Shri Chakravarthi shows only the Police Sub‑Officer accompanied him and there is no mention of Shri Sanjiv Bhatt. Further, Shri Dilip Ahir and Shri Dharampal Yadav, the then Police Sub‑Officers to the DGP, and Shri Panchusinh Yadav and Shri Mangilal Kala, the then drivers attached to the DGP, have categorically denied that Shri Sanjiv Bhatt ever travelled in the DGP’s staff car. The observation made by the Learned Amicus Curiae that Shri K. D. Panth had supported the version of Shri Sanjiv Bhatt is therefore incorrect., The Learned Amicus Curiae has admitted that “I am conscious of the fact that though Shri Bhatt has been contending that he would speak only when under a legal obligation to do so, his conduct after making his statement under section 161 of the Criminal Procedure Code has not been that of a detached police officer, who is content with giving his version. I am left with no doubt that he is actively strategising and is in touch with those who would benefit or gain mileage from his testimony.” The Learned Amicus Curiae has also mentioned that Shri Rahul Sharma, Deputy Inspector General, submitted an analysis of the call records of senior police officers, which according to Shri Sharma corroborates the statement of Shri Bhatt. Shri Rahul Sharma has never stated that the call details of the senior officers corroborate the statement of Shri Sanjiv Bhatt. The Learned Amicus Curiae has accepted the contention of Shri Sanjiv Bhatt that, as an intelligence officer, he was privy to some information and would speak only when he was legally bound to do so., In this connection it may be stated that the alleged meeting called by the Chief Minister on the night of 27 February 2002 was essentially a law‑and‑order review meeting which was attended by various officials of the State Administration; therefore the question of oath of secrecy or application of the Official Secrets Act does not arise because it was neither a secret meeting nor would the revelation of its contents jeopardise public interest. Shri Sanjiv Bhatt has used the Official Secrets Act as a pretext to justify a long delay of nine years, and the fact that an official of the intelligence unit attended a law‑and‑order meeting does not make it a secret meeting for which a privilege of secrecy is being claimed., The view of the Learned Amicus Curiae that it does not appear very likely that a serving police officer would make such a serious allegation without some basis appears erroneous, as Shri Sanjiv Bhatt had been, throughout his career, involved in departmental enquiries, three of which were dropped in 2006‑07 and he received three promotions on a single day, which indicates his career progression. His promotion to the rank of Inspector General of Police was delayed because of other departmental enquiries and pending court cases, providing a possible motive to make a statement against the Chief Minister. It is also true that no minutes of the meeting were maintained and there is no documentary evidence available to show what transpired in the meeting. However, the evidence of seven senior officers cannot be ignored to the effect that Shri Sanjiv Bhatt was not present in the meeting, and his claim of having attended the meeting and of alleged utterances made by the Chief Minister is not acceptable., The observation of the Learned Amicus Curiae that Shri Sanjiv Bhatt cannot be disbelieved because his statements were motivated and he has an axe to grind against the government is absurd. The further observation that, in the absence of Shri G. C. Raiger, the then Additional Director General (Intelligence) and Shri P. B. Upadhya, the then Deputy Commissioner of Intelligence (Political & Communal), being on leave, it was quite possible that Shri Sanjiv Bhatt was directed to attend the meeting on 27 February 2002 is based on conjecture. The contention that the phone call records do not contradict the statement of Shri Sanjiv Bhatt is without basis, as the call detail records show the location of Shri Sanjiv Bhatt in Ahmedabad and the last call was received by him at 20:40 hours, which does not establish that he had gone to Gandhinagar to attend a meeting around 22:30 hours. Consequently, Shri Sanjiv Bhatt’s claim of having attended the meetings on 27‑28 February 2002 becomes false and unacceptable, as according to his call detail records he could not have been present at the alleged meeting that took place at the Chief Minister’s residence on 28 February 2002 at 10:30 hours. Another claim that he left the meeting of the night of 27 February 2002 halfway suggests that, in reality, he did not attend the meeting, which was of very short duration and it would have been practically impossible for a junior officer of his level to leave midway., The view of the Learned Amicus Curiae that the exact language allegedly used by the Chief Minister in the meeting on 27 February 2002 is not material cannot be accepted, as there are at least three versions on record. Smt. Jakia Nasim, in her complaint, claimed that a high‑level meeting was convened by the Chief Minister at which the Chief Secretary, the Home Secretary, and senior police officers were summoned and clear instructions were given ‘not to deal with the Hindu rioting mobs’. Shri R. B. Sreekumar claimed that Shri K. Chakravarthi had informed him on 28 February 2002 that the Chief Minister had convened a meeting of senior officers on 27 February 2002 late in the evening after returning from Godhra and had said that in communal riots police take action against Hindus and Muslims on a one‑to‑one basis, which would not allow Hindus to vent their anger. In contrast, Shri Sanjiv Bhatt claims that the Chief Minister allegedly impressed upon the gathering that for too long the Gujarat Police had been following the principle of balancing actions against Hindus and Muslims while dealing with the communal riots, and that this time the situation warranted that Muslims be taught a lesson to ensure that such incidents do not recur. The Chief Minister, Shri Narendra Modi, expressed the view that emotions were running very high amongst Hindus and it was imperative that they be allowed to vent their anger. None of the three persons—Smt. Jakia Nasim, Shri R. B. Sreekumar, or Shri Sanjiv Bhatt—were present in the meeting, and there is no evidence that any such instructions were passed to the police formation below, thereby ruling out the possibility that the alleged utterances were made., Based on the aforesaid three versions, the Amicus Curiae has concluded that the alleged statements would attract offences under sections 153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the Indian Penal Code. Section 153A(1)(a) IPC states that ‘whoever, by words, promotes or attempts to promote disharmony or feelings of enmity, hatred, or ill will on the ground of religion between different religious communities.’ Section 153A(1)(b) IPC can be paraphrased as ‘whoever commits any act which is prejudicial to the maintenance of harmony between different religious communities and which is likely to disturb public tranquility.’ Even if any of the three versions were alleged to have been made by the Chief Minister, the ingredients of section 153A(1)(a) & (b) are not attracted. The facets of the allegations attributed to Shri Narendra Modi cannot fall under sub‑class (a) or (b) of section 153A(1) IPC., It would not be out of place to mention that the Chief Minister made four statements within 24 hours on 27‑28 February 2002. On the evening of 27 February 2002 at Godhra, the Chief Minister publicly said that the burning of karsevaks in a train at Godhra was unparalleled in history and assured the people that the culprits would be punished. He also said that the government would ensure that peace was maintained in the State and would not be lacking in discharging its duty. On the morning of 28 February 2002, he spoke in the assembly after the obituary reference, stating that the State government had taken this cruel, inhuman, heinous and organized crime very seriously and was committed to taking symbolic strict steps and to punish the culprits in an exemplary manner so that such an incident may not recur. In the afternoon press conference at the Circuit House Annex, Ahmedabad, Shri Narendra Modi reiterated that the Government of Gujarat had taken this heinous train‑burning incident very seriously and that people should help the government to ensure that the culprits are punished. He also told the press that those who had acted in retaliation and anger after the incident would also not be spared. In the evening Doordarshan broadcast on 28 February 2002, he appealed to the people of Gujarat to keep restraint and maintain peace and harmony, stating that the government was determined to bring the culprits to justice and give them unimaginable punishment. The thrust of the Chief Minister’s speeches everywhere was that the incident was heinous, organised and that the culprits would be brought to the strictest punishment., Section 505(2) IPC can be paraphrased as ‘whoever makes any statement with intent to create or permit to create feelings of enmity or hatred or ill will between different religious communities.’ In view of the reasons enumerated above, a case under section 505(2) IPC is also not made out. Section 153B(1)(c) IPC can be paraphrased as ‘whoever, by words, makes any assertion concerning the obligation of any class or person by reason of their being members of a religious community and such assertion is likely to cause disharmony or feeling of enmity or hatred or ill will between such members and other persons.’ It may be mentioned that it is not the case that the Chief Minister made any assertion concerning the obligation of any religious community to do acts likely to cause disharmony. He did not make any appeal to Hindus or Muslims to take up arms against each other. On the contrary, Shri Narendra Modi made an appeal on 28 February 2002 that both communities should desist from physically attacking each other, an appeal broadcast by Doordarshan intermittently. In view of this, no offence under section 153B(1)(c) IPC is made out., Section 166 IPC deals with public servants disobeying any direction of law as to the way in which they are to conduct themselves as public servants. It cannot be extracted from the statements attributed to Shri Narendra Modi that he was thereby disobeying any direction of law as to the way in which he is to conduct himself as Chief Minister. No such direction can be quoted from law that the Chief Minister is required to disobey. Consequently, there is no application of section 166 IPC against Shri Narendra Modi., Thus the recommendations of the Amicus Curiae and the evidence collected during further investigation under section 173(8) of the Criminal Procedure Code have been examined in detail to see whether the ingredients of the suggested sections for prosecution are attracted. On such assessment it is reasonably concluded that no utterances on the part of Shri Narendra Modi could be attributed as suggesting any intended promotion of hatred, ill‑will, etc., amongst religious groups. The settled legal position is that mens rea is required for offences under section 153A IPC. In view of the same and the evidence discussed in the preceding paragraphs, there is no evidence to prima facie allege commission of the suggested offences by Shri Narendra Modi., Shri Sanjiv Bhatt, Deputy Inspector General (under suspension), sent a letter dated 30 December 2011 to the Secretary, Honourable Justice Nanavati & Justice Mehta Commission of Inquiry enclosing Annexure ‘D’, which is a copy of fax message No. D‑2/2‑COM I/ALERT/174/2002 dated 28 February 2002, which he claimed to have sent to different authorities under his signature. The same Annexure ‘D’ has been uploaded on the website and is reproduced below: ‘TO: PS to CM Gandhinagar INFO Home Sec Gandhinagar Police Gandhinagar FROM: Additional D.G.P. Intelligence, G.S. Gandhinagar O.No D‑2/2 COWALERT/100/2002 Date: 28‑02‑2002 Text: As informed telephonically to the Honourable Chief Minister, ex‑MP Ehsan Zafri and his family members residing at Gulbarg Society, Chamanpura, Mehsana Nagar have been surrounded and are being attacked by a Hindu mob in the presence of police bandobast. The lives of Ehsan Zafri and other family members are in imminent danger. CP Ahmedabad is requested to take immediate effective action and provide a situation report to SCR under intimation to this office at the earliest. (Sanjiv Bhatt) Deputy Commissioner (Communal) Gandhinagar.’, Subsequently, on 4 January 2012, Shri Sanjiv Bhatt forwarded to the Chairman of the Special Investigation Team a copy of his letter No. SRB/COI/120104/01 dated 4 January 2012 addressed to the Secretary, Justice Nanavati Commission of Inquiry, enclosing a copy of fax message No. D‑2/2‑COM/ALERT/100/2002 dated 27 February 2002, claiming to have sent the same under his signature. A copy of the said fax message is reproduced below: ‘To: CP Ahmedabad Info: PS to CM Gandhinagar PS to MoS (Home) Gandhinagar Home Sec Gandhinagar Police Gandhinagar FROM: D.G.P. Intelligence, G.S. Gandhinagar O.No D‑2/2 COWALERT/100/2002 Date: 27‑02‑2002 TEXT: Pursuant to the meeting held by the Honourable Chief Minister it has become clear that the State Government wishes to go ahead with the decision of bringing the dead bodies of karsevaks to Ahmedabad by road under police escort. The dead bodies will be brought to Sola Civil Hospital in your jurisdiction before being taken out for cremation. Local cadres of BJP/Bajrang Dal are being massively mobilised for enforcing the VHP/BJP‑supported Gujarat bandh. Widespread retributory communal violence is anticipated in your jurisdiction. Request appropriate preventive action. (Sanjiv Bhatt) Deputy Commissioner (Communal) Gandhinagar.’, On receiving Shri Bhatt’s communication dated 4 January 2012, a notice under section 91 of the Criminal Procedure Code was issued to Shri Sanjiv Bhatt on 13 January 2012 to produce the original/office copy of the fax message dated 27 February 2002. However, Shri Sanjiv Bhatt refused to accept the notice and instead sent a letter dated 15 January 2012 contending that the aforesaid document had already been handed over to Shri A. K. Malhotra of the Special Investigation Team in the year 2009 and to Investigating Officer Shri Himanshu Shukla in 2011. Shri Sanjiv Bhatt further contended that, in the normal course of investigation, the Investigating Officer should have called for the original and/or office copy of the aforesaid fax message from the State Intelligence Bureau, Gandhinagar and the offices of the respective recipients of the said fax message., It may be emphasized that the statement of Shri Sanjiv Bhatt was recorded by Shri A. K. Malhotra, Member of the Special Investigation Team, during enquiry on 25 November 2009 and 26 November 2009, and the same was signed by Shri Bhatt. However, the statement did not contain any reference to the two messages which Shri Bhatt now claims to have sent on 27 February 2002 and 28 February 2002, despite the fact that copies of all other messages duly mentioned by him in his statement were handed over by Shri Bhatt to Shri Malhotra. Similarly, the statement of Shri Sanjiv Bhatt was recorded under section 161 of the Criminal Procedure Code by Investigating Officer Shri Himanshu Shukla on 21 March 2011 and 22 March 2011, and the same also did not contain any reference to the two messages. This raises very serious doubts about the authenticity of the claim that these messages had in fact been sent to the concerned addresses., The statements recorded by Shri A. K. Malhotra and the Investigating Officer were submitted to the Supreme Court of India at the relevant point in time. Apart from the aforesaid position, the following points show that Shri Sanjiv Bhatt had the full opportunity to produce these messages if they had in fact been prepared and sent to the concerned authorities, and did not produce them before the Special Investigation Team: (1) Shri Sanjiv Bhatt did not file any affidavit before the Nanavati Commission of Inquiry, and, if he was in possession of these documents, he should have filed the same as per the instructions given by the Government of Gujarat in 2002. (2) Shri R. B. Sreekumar, formerly Additional Director General (Intelligence), in his letter dated 27 December 2011 addressed to the Secretary, Nanavati Commission of Inquiry, categorically stated that he had requested all senior officers of the State Intelligence Bureau in the rank of Superintendent of Police and above, including Shri Sanjiv Bhatt (who had assisted his predecessor Shri G. C. Raiger, Additional Director General (Intelligence) from 27 February 2002 to 8 April 2002), to submit any affidavit covering the terms of reference of the Commission; but none of them filed any affidavit. Shri Sreekumar further stated that he had asked all senior officers of the State Intelligence Bureau to provide him all relevant documents in their possession relating to the riots, and that all these documents received from his officers were appended by him to his first affidavit filed before the Commission on 15 July 2002. However, Shri Sanjiv Bhatt did not produce any such message before Shri Sreekumar., (3) Shri Sanjiv Bhatt did not produce any of the aforesaid messages either before Shri A. K. Malhotra, Member of the Special Investigation Team, during the preliminary inquiry conducted by him under the orders of the Honourable Supreme Court of India, or before Shri Himanshu Shukla, Deputy Commissioner of Crime, Ahmedabad City, who had conducted further investigation under section 173(8) in this case (Criminal Case No. 67 of 2002 of Mehsana Nagar Police Station (Gulberg Society case)). He also did not refer to either of these two fax messages in his statements made before Shri A. K. Malhotra on 25 November 2002 and 26 November 2002 and before Shri Himanshu Shukla on 21 March 2011. Both these statements were submitted to the Honourable Supreme Court of India on 14 May 2010 and 25 April 2011 respectively. (4) Shri Sanjiv Bhatt, suo moto, filed an affidavit dated 14 April 2011 before the Honourable Supreme Court of India in SLP (Civil) 1088/2008 filed by Smt. Jakia Nasim. In that affidavit also he did not mention anything about the two fax messages. (5) Shri Sanjiv Bhatt was summoned before the Nanavati Commission in May, June and July 2011 for his deposition and cross‑examination, but he did not mention anything about the two fax messages to the Commission. (6) Shri Sanjiv Bhatt was called by Shri Raju Ramachandran, Amicus Curiae, for personal interaction at Gandhinagar on 18 June 2011. On that occasion also, Shri Sanjiv Bhatt did not mention anything about the two fax messages to the Amicus Curiae and confirmed his statements recorded during the Special Investigation Team’s preliminary inquiry as well as subsequently recorded under section 161., (7) Shri R. B. Sreekumar, in his letter dated 28 December 2011 addressed to Shri Sanjiv Bhatt (copy sent to the Special Investigation Team), clearly stated that the plethora of incriminating information against the Government, which Shri Bhatt claimed to possess, had not been put up to him at the time of filing his first affidavit on 15 July 2002. Further, if it had come to his notice that such material had not been included in his affidavit, nothing stopped him from filing a separate affidavit bringing these relevant inputs to the notice of the Commission. Shri Sreekumar also highlighted that nearly twelve intelligence reports produced before him by Shri Sanjiv Bhatt were included in his affidavit, and the same did not contain anything about the role of Government officials in the alleged planning and execution of the anti‑minority genocide and subsequent prolonged subversion of the criminal justice system and delayed justice to the riot victims., It may thus be seen that Shri Sanjiv Bhatt produced the two fax messages for the first time before the Nanavati Commission of Inquiry only in December 2011, and subsequently before the Special Investigation Team in January 2012. A perusal of the photocopy of the office copy of fax message No. D‑2/2‑COM/ALERT/100/2002 dated 27 February 2002 claimed to have been sent by Shri Sanjiv Bhatt, the then Deputy Commissioner of Intelligence (Security) on behalf of Additional Director General (Intelligence) to the Commissioner of Police, Ahmedabad with information to PS to CM, PS to MoS (Home), Home Secretary and Police Gandhinagar, would show that there was no security classification of the said message. The dispatch register of the D‑2 section of the State Intelligence Bureau does not show any dispatch of the said message as the dispatch number on that date was under serial number 90. Investigation revealed that actually a letter No. D‑2/2‑COM/BANAO/100/2002 dated 2 March 2002 was sent on behalf of Additional Director General (Intelligence) to the Additional Chief Secretary (Home), Government of Gujarat with information to Police Gandhinagar, PS to CM and PS to MoS (Home) and the same related to Criminal Case No. 9 of 2002 under sections 302, 114 etc. of Khanpur Police Station, District Panchmahals. The said message bears a typed dispatch number, which is very unusual because all the dispatch numbers on the messages sent by the State Intelligence Bureau on 27 February 2002 were handwritten. It is not understood what prompted Shri Sanjiv Bhatt to send such a message, when all the individuals to whom this message had been addressed were present in the meeting held at the Chief Minister’s residence on the night of 27 February 2002, and it was known to all of them that the Government had already decided to bring the dead bodies to Ahmedabad, for which the necessary bandobast was required to be made. The said message had not been marked to the Inspector General of Police (Police and Crime), but was allegedly put up to Shri O. P. Mathur, the then Inspector General of Police (Police and Crime), who allegedly initialled the same as a token of having seen it on 28 February 2002.
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Surprisingly, this message was not put up to Shri G.C. Raiger, the then Additional Director General (Intelligence), who was very much in the office on 28 February 2002. Further, Shri O.P. Mathur, the then Inspector General of Police (Police & Crime) also did not mark it to the Additional Director General (Intelligence), a fact which raises serious doubts about the genuineness of the message in question. A perusal of the photocopy of the office copy of fax message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002, now claimed to have been sent by Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation (Security), on behalf of the Additional Director General (Intelligence) to the Principal Secretary to Chief Minister and the Principal Secretary to Minister of State (Home) with information to the Home Secretary, Police Gandhinagar and Commissioner of Police, Ahmedabad, would show that there was no security classification of the said message. The dispatch register of the D-2 section of the State Intelligence Bureau also does not show any dispatch of the said message as the dispatch number on the said date was under serial number 100., Investigation revealed that Office Note No. D-2/2-COM/174/2002, dated 16 March 2002, was sent by the Additional Director General (Intelligence) to Shri B.K. Haldar, Joint Secretary (National Intelligence), Ministry of Home Affairs, New Delhi and related to the daily report about the communal incidents up to 16 March 2002 (1800 hrs) in Gujarat state. This message was allegedly put up to Shri G.C. Raiger, the then Additional Director General (Intelligence), for perusal, and the same allegedly bears the initials of Shri Raiger dated 28 February 2002., Interestingly, the message in question had been addressed to the Principal Secretary to Chief Minister and the Principal Secretary to Minister of State (Home), whereas the same was actually actionable by the Commissioner of Police, Ahmedabad City. Further, Shri Sanjiv Bhatt had signed a fax message No. C/D-2/BANAO/178/2002, dated 28 February 2002, which was received by Shri E.L. Christian, the then Police Inspector, State Intelligence Bureau Control Room and written by Shri Bharatsinh Rathod, the then Assistant Investigation Officer, to the dictation of Shri Christian, who subsequently took it personally to Shri Bhatt for his signature. In this message it was mentioned that, based on received information, Gulberg Society located in Chamanpura, Meghaninagar had been attacked by a mob of Hindu rioters and late Ahsan Jafri, former Member of Parliament, along with his family members and 18 others had been killed, and that the attack was still continuing and this incident was likely to have statewide repercussions., This message would clearly show that no earlier intimation prior to the attack on Gulberg Society had been sent by Shri Sanjiv Bhatt, as the same did not contain any reference to the earlier message claimed to have been sent by Shri Sanjiv Bhatt vide message No. D-2/2-COM/ALERT/174/2002 dated 28 February 2002. The information contained in message No. 178 dated 28 February 2002 had actually been received over telephone by Shri E.L. Christian, Police Inspector, who had dictated the same to his Assistant Investigation Officer Shri Rathod and not by Shri Sanjiv Bhatt as claimed by him. Undoubtedly at the time of signing this message, Shri Sanjiv Bhatt had marked the message as \MOST URGENT\ in his own handwriting. Efforts were made to locate the dispatch register and fax register of the State Intelligence Bureau Control Room, but the same had been reportedly destroyed. Further efforts were made to locate the so‑called message No. 174 dated 28 February 2002 with the persons to whom the said message had been shown addressed, but without any success till date., During the course of further investigation, the persons who are supposed to have received the two messages dated 27 February 2002 and 28 February 2002 as well as the concerned officials of the State Intelligence Bureau, who were present in the office as also in the Control Room on the aforesaid two dates, were examined and the evidence collected is discussed in subsequent paragraphs. Dr. P.K. Mishra, the then Principal Secretary to the Chief Minister, denied having received or seen the message dated 27 February 2002, purportedly sent by Shri Sanjiv Bhatt. He is of the view that there was no occasion for Shri Sanjiv Bhatt to send such a message, because every participant at the law and order review meeting called by the Chief Minister on the night of 27 February 2002 was aware of the fact that the dead bodies of kar sevaks who were killed in the Godhra train carnage incident were being brought to Ahmedabad by road under police escort. Dr. Mishra denied receiving or having seen fax message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002. He added that the claimed message was quite alarming, and that had he received any such message, he would certainly remember the same. On being shown fax message No. C/D-2/BANAO/178/2002, dated 28 February 2002 handwritten in Gujarati and signed by Shri Sanjiv Bhatt on behalf of the Additional Director General (Intelligence) and addressed to the Home Secretary, Gandhinagar with information to the Principal Secretary to Chief Minister, Principal Secretary to Minister of State (Home), Police Gandhinagar and Ahmedabad City, Dr. Mishra stated that the language of this message clearly indicated that the information about the said incident was being sent for the first time, as there was no reference to message No. 174 which Shri Bhatt now claims to have sent earlier during that day. Finally, Dr. Mishra stated that the aforesaid two fax messages dated 27 February 2002 and 28 February 2002 in English allegedly sent by Shri Bhatt were false and fabricated documents., Shri Gordhan Zadafia, the then Minister of State (Home), denied having received or seen the two typed fax messages No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 and D-2/2-COM/ALERT/174/2002, dated 28 February 2002 in English now claimed to have been sent by Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation. He further stated that both these messages were false and bogus, and had never been received in his office. According to Shri Zadafia, these messages have been fabricated and have been introduced for the first time after a lapse of about ten years of the events mentioned therein, and that this appears to be a deliberate attempt on the part of Shri Sanjiv Bhatt to involve him in the Gulberg Society incident. He does not remember receiving message No. C/D-2/BANAO/178/2002, dated 28 February 2002 in Gujarati bearing the signature of Shri Sanjiv Bhatt. However, Shri Zadafia has stated that the fact that this message does not contain any reference to the earlier message No. 174 allegedly claimed to have been sent by Shri Sanjiv Bhatt on the same day would show that the earlier message was a fabricated one. He has stated that he came to know about the Gulberg Society incident late in the afternoon of 28 February 2002, and that on receipt of the said information, necessary instructions were given to the concerned police officers to deal effectively with the situation., Shri V.P. Patel, the then Private Secretary to the Minister of State (Home), denied receiving or having seen the two typed fax messages No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 and D-2/2-COM/ALERT/174/2002, dated 28 February 2002 in English claimed to have been sent by Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation. He further stated that he did not remember receiving the handwritten fax message No. C/D-2/BANAO/178/2002, dated 28 February 2002 in Gujarati bearing the signature of Shri Sanjiv Bhatt. Shri Ashok Narayan, the then Additional Chief Secretary (Home), denied having received or seen the typed fax message No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 claimed to have been sent by Shri Sanjiv Bhatt. He is of the view that such a message was not required to be sent by Shri Sanjiv Bhatt, because a decision to bring the dead bodies of the kar sevaks to Ahmedabad by road had already been taken by the Chief Minister at Godhra itself sometime in the evening of 27 February 2002, and this fact was well within the knowledge of the Director General of Police and the Commissioner of Police, Ahmedabad. He further denied having received or seen a typed fax message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002 purportedly sent by Shri Sanjiv Bhatt on behalf of the Additional Director General (Intelligence) to the Principal Secretary to Chief Minister and the Principal Secretary to Minister of State (Home) with information to the Home Secretary, Gandhinagar. According to Shri Narayan, the message was rather unusual. He added that both these fax messages are not genuine and are false and fabricated documents. He denied having received any information about the attack on Gulberg Society, and he came to know about the killing of late Ahsan Jafri, former MP, through Shri Nityanandam, the then Home Secretary, some time after the incident. After going through message No. C/D-2/BANAO/178/2002, dated 28 February 2002 handwritten in Gujarati, Shri Narayan stated that he does not remember receiving such a message after the incident, and that the same does not contain any reference to any earlier message vide No. 174 claimed to have been sent by Shri Sanjiv Bhatt., Shri K. Chakravarthi, the then Director General of Police, Gujarat, has stated that the fax message in English bearing No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 purportedly sent by Shri Sanjiv Bhatt as Deputy Commissioner of Investigation (Security) was not received or seen by him on the night of 27 February 2002, though a copy of the same is shown to have been marked to Police Gandhinagar. He has further stated that in all such law and order matters senior officers of the State Intelligence Bureau were normally expected to inform their superior telephonically and thereafter follow it up with a written message. He has also stated that Shri Sanjiv Bhatt did not contact him telephonically or in person on the night intervening 27/28 February 2002 in this regard. He has denied receiving any intelligence report about the massive mobilisation of local cadres of the Bharatiya Janata Party for the Vishwa Hindu Parishad‑supported Gujarat bandh. After going through a photocopy of another fax message bearing No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002, Shri Chakravarthi denied receiving any such message at the relevant time. According to Shri Chakravarthi, a member of a minority community from Ahmedabad telephoned him at about 1400 hrs on 28 February 2002 about an attack on late Ahsan Jafri’s house and he immediately telephoned the Commissioner of Police, Ahmedabad City, who informed him that officers and additional reinforcements had already been sent to deal with the situation. Shri Chakravarthi also stated that a fax message was sent by the State Control Room to the Commissioner of Police, Ahmedabad City at 1405 hrs on 28 February 2002 in this regard. On looking into the genuine photocopy of the handwritten fax message bearing No. C/D-2/BANAO/178/2002, dated 28 February 2002 in Gujarati, Shri Chakravarthi has stated that the language of the said fax message shows that the Gulberg Society incident was reported for the first time through this message after the occurrence of the incident on 28 February 2002, which proves the falsity of earlier message No. D-2/2-COM/ALERT/174/2002 dated 28 February 2002 claimed to have been sent by Shri Sanjiv Bhatt., Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City, has stated that it was well within his knowledge after the meeting of 27 February 2002 night held at the Chief Minister’s residence that the dead bodies of the kar sevaks killed in the Godhra incident were being brought to Ahmedabad City to facilitate the relatives of the deceased to identify and claim the bodies. As such there was no need for Shri Sanjiv Bhatt to send fax message No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 to him. He denied receiving any such fax message in his office on the night intervening 27/28 February 2002 as he remained in his office in Shahibaug till about 0100 hrs on 28 February 2002. He further denied seeing any such message. He has also denied receiving or seeing fax message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002. He gave details of the additional force/officers sent by him on receipt of the messages from the Senior Police Inspector, Meghaninagar regarding the surrounding of Gulberg Society by a mob. He also stated that the Director General of Police might have spoken to him about the situation in Gulberg Society and about the declaration of curfew, to which he was informed that the curfew had been declared in the Chamanpura Chowky area around 1220 hrs. Shri Pande is of the view that both these fax messages now claimed to have been sent by Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation, are false and fabricated documents. According to Shri Pande, this message was only marked to him for information, though he was required to take action on the same and send a situation report. Shri Pande has denied sending any situation report with regard to the Gulberg Society matter to the State Intelligence Bureau, Gandhinagar as the message was never sent to him. Regarding message No. C/D-2/BANAO/178/2002, dated 28 February 2002 handwritten in Gujarati and signed by Shri Sanjiv Bhatt, Shri Pande stated that this message could have been sent only after the incident had taken place at Gulberg Society, and the very fact that it did not contain any reference to the alleged earlier message No. 174 claimed to have been sent by Shri Sanjiv Bhatt would show that the said message was not a genuine one and appears to have been manipulated subsequently., Shri O.P. Mathur, the then Inspector General of Police (Political & Communal), has stated that fax message No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 does not have any security classification and, if it passed through the Control Room, it should have contained details about the time and date. Further, the fax message does not bear the date and time at which it was passed on to the authorities, and as such it cannot be said whether the said message was actually passed on to the concerned authorities or not. According to Shri Mathur, the language of the fax message does not show under whose instructions the said message was sent and who informed Shri Sanjiv Bhatt about what had transpired in the meeting, because the message does not say that Shri Sanjiv Bhatt had himself attended the meeting. Had Shri Sanjiv Bhatt attended the meeting, he was duty bound to submit a report in writing to the Additional Director General (Intelligence) on 28 February 2002, when Shri G.C. Raiger, the then Additional Director General (Intelligence), was very much in the office. Shri Mathur has further stated that the said fax message had not been marked to anyone including himself. After looking into his alleged initials dated 28 February 2002 on the office copy of the typed fax message dated 27 February 2002 claimed to have been sent by Shri Sanjiv Bhatt, Shri Mathur stated that the said initials were not his and had been fabricated by someone, as the message was not marked to him. Shri Mathur also stated that had it been a genuine paper, he would have marked it to the Additional Director General (Intelligence) for his information as the overall Head of the Intelligence wing, because Shri G.C. Raiger was very much in the office on 28 February 2002. Shri Mathur finally stated that the fax message was a forged document, fabricated subsequently by someone with a vested interest. He has denied receiving message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002 in English allegedly sent by Shri Sanjiv Bhatt to different authorities., Shri G.C. Raiger, the then Additional Director General (Intelligence), has stated that the typed fax message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002 was never put up to him on 28 February 2002 for perusal, and his initials dated 28 February 2002 on the said message are fabricated. He has stated that the said message was never seen by him and that it was a fabricated document. He has also stated that another typed fax message No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 claimed to have been sent by Shri Sanjiv Bhatt to different authorities was neither put up to him for his information nor shown to him. He was also not orally informed about the same by Shri Sanjiv Bhatt. However, Shri Raiger has stated that on the afternoon of 28 February 2002, Shri Sanjiv Bhatt came to his chamber and conveyed a message based on a report from the local Intelligence Bureau unit, Ahmedabad City about the collection of a mob outside Gulberg Society, where late Ahsan Jafri, former MP, was residing and also about the inadequate presence of police on the spot. Shri Raiger has stated that the said message was passed on to the Ahmedabad City Police Control Room. Further, according to Shri Raiger, he along with Shri Sanjiv Bhatt met the Director General of Police immediately and informed him about the developing situation at Gulberg Society. Shri Raiger further stated that the Director General of Police was requested to impress upon the Commissioner of Police, Ahmedabad City to declare curfew in the area. To this, the Director General of Police immediately responded by telephonically speaking to Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City to ascertain the factual position. Shri Pande informed the Director General of Police over phone that a curfew had already been imposed. Shri Raiger has also stated that after meeting the Director General of Police, there was no reason for Shri Sanjiv Bhatt to send such a fax message on 28 February 2002. After going through message No. C/D-2/BANAO/178/2002, dated 28 February 2002 handwritten in Gujarati and bearing the signature of Shri Sanjiv Bhatt, Shri Raiger has stated that the said message does not contain any reference to message No. D-2/2-COM/ALERT/174/2002 dated 28 February 2002 claimed to have been sent earlier during the day by Shri Sanjiv Bhatt. This would show that the message No. D-2/2-COM/ALERT/174/2002 dated 28 February 2002 was not a genuine one., Shri P.B. Upadhyay, the then Deputy Commissioner in charge of the Communal section, has stated that he proceeded on leave on 26 February 2002. However, Shri O.P. Mathur, the then Inspector General of Police (Administration & Security), who held the additional charge of the post of Inspector General of Police (Police & Crime), spoke to him over phone and cancelled his leave, with instructions to report immediately for duty in view of the Godhra train carnage incident. Shri Upadhyay accordingly reported for duty in the office on the evening of 27 February 2002 around 1700 hrs. He has further stated that Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation (Security), looked after his work in his absence and had sent some messages during the day of 27 February 2002. He also stated that he remained in the office till late hours of 27 February 2002 as he stayed in Gandhinagar and that Shri Sanjiv Bhatt left the office earlier than him as he lived in Ahmedabad city. He denied complete knowledge about the two typed fax messages No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 and D-2/2-COM/ALERT/174/2002, dated 28 February 2002 in English, and stated that neither Shri Sanjiv Bhatt informed him about them nor were these messages shown to him. According to Shri Upadhyay, these messages do not appear to be genuine, as the dispatch number had been typed, which was quite unusual as all dispatch numbers used to be written by hand by the dispatcher. According to Shri Upadhyay, had such a message been issued either on 27 February 2002 or 28 February 2002, the same would definitely have been put up to him for perusal as he handled the ‘Communal’ subject in the office as per the division of work at that time. He has also stated that the initials dated 28 February 2002 of Shri O.P. Mathur on the fax message dated 27 February 2002 do not appear to be genuine. Shri Upadhyay has further stated that the very fact that the message dated 28 February 2002 was addressed to the Principal Secretary to Chief Minister and the Principal Secretary to Minister of State (Home) and that the Commissioner of Police, Ahmedabad City was to take action, to whom only a copy was marked, would show that the message was not a genuine one. He has denied knowledge about a meeting at the Chief Minister’s residence on the evening of 27 February 2002 and that Shri Sanjiv Bhatt also did not inform him on 28 February 2002 of having attended any meeting with the Chief Minister on the night of 27 February 2002., Shri Iftekhar Ahemad V. Pathan, Assistant Investigation Officer, who is posted to D-2 section (Communal section) of the State Intelligence Bureau since 2000, has stated that the office copies of fax messages No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 and D-2/2-COM/ALERT/174/2002, dated 28 February 2002 typed in English are not available in the records of D-2 section and that he has never seen the same. He has further stated that these messages were not dispatched from the dispatch register of the State Intelligence Bureau and proved that dispatch No. 100 related to a letter dated 02 March 2002 sent by Shri P.B. Upadhyay to the Additional Chief Secretary (Home) regarding ICR No. 9/02 under section 302 of the Indian Penal Code of Khanpur Police Station, Panchmahals district, and dispatch No. 174 related to a fax message sent by the Additional Director General (Intelligence) to Shri B.K. Haldar, Joint Secretary, Ministry of Home Affairs, New Delhi on 16 March 2002 regarding communal incidents reported up to 16 March 2002. According to Shri Pathan, the fact that the dispatch numbers had been typed would show that the messages are false and bogus. He has further stated that Shri Sanjiv Bhatt did not come to the State Intelligence Bureau office late in the evening of 27 February 2002 while he was in the office till quite late. He has proved that fax message No. C/D-2/BANAO/178/2002, dated 28 February 2002 handwritten in Gujarati, was in the handwriting of Shri Bharatsinh Rathod and signed by Shri Sanjiv Bhatt, and a copy of the same was available in the D-2 branch. The same does not contain any reference to either message No. D-2/2-COM/ALERT/174/2002 dated 28 February 2002 claimed to have been sent by Shri Sanjiv Bhatt, which appears to be bogus., Shri V.M. Sonar, the then Police Inspector, and Shri S.R. Shukla, the then Investigation Officer of the State Intelligence Bureau, who were posted to D-2 Branch and were present in the office on 27 February 2002 and 28 February 2002, have corroborated the statement of Shri I.V. Pathan, Assistant Investigation Officer, D-2 Branch, State Intelligence Bureau. Shri Bharatsinh Rathod, the then Assistant Investigation Officer, State Intelligence Bureau Control Room, who was on duty from 0800 hrs to 2000 hrs on 28 February 2002, has stated that fax message No. C/D-2/BANAO/178/2002, dated 28 February 2002 was in his handwriting and was written to the dictation of Shri E.L. Christian, the then Police Inspector, State Intelligence Bureau Control Room, who had received the said information over telephone from the Intelligence Bureau, Ahmedabad Region. Shri Rathod has stated that Shri Christian took this message personally to Shri Sanjiv Bhatt, who signed the same in Gujarati. He has further stated that he put down dispatch No. 178 from the Control Room dispatch register in his handwriting and passed it on to the fax operator for transmission to the concerned authorities. However, he does not recollect the exact time of receipt of the said message, but it was certainly after the incident had taken place at the Gulberg Society. On looking into the photocopy of the office copy of fax message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002 in English, he has stated that the message does not bear the State Intelligence Bureau Control Room dispatch number, which would have been essential had the same been dispatched from the D-2 branch. He has denied having seen or passed on the said fax message. His version has been corroborated by Shri E.L. Christian, the then Police Inspector, State Intelligence Bureau Control Room., Shri A.S. Kasiri, the then Police Inspector, State Intelligence Bureau Control Room, has stated that he sent the Control Room messages No. D-2/2-COM/ALERT/172/2002, dated 27 February 2002 and D-2/2-COM/ALERT/173/2002, dated 27 February 2002 during his day duty hours from 0800 hrs to 2000 hrs on 27 February 2002 and has confirmed his signature thereon. Shri N.M. Gohil, the then Assistant Liaison Officer, State Intelligence Bureau Control Room, has confirmed writing the fax messages No. D-2/2-COM/Kar Sevak/78/2002, dated 28 February 2002 and D-2/2-COM/Kar Sevak/80/2002, dated 27 February 2002 and has identified the signature of Shri V.J. Solanki, the then Police Inspector, State Intelligence Bureau Control Room on the same. Shri V.J. Solanki could not be examined because he is unable to speak or walk following a paralytic attack., To sum up, on the basis of the further investigation conducted into the two typed fax messages No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 and D-2/2-COM/ALERT/174/2002, dated 28 February 2002, it is conclusively established that Shri Sanjiv Bhatt, the then Deputy Commissioner of Investigation, did not produce the same or copies thereof before any of the authorities before December 2011, though a number of opportunities arose for him to do so. From the records of D-2 section, it is conclusively established that one of these fax messages was issued/dispatched from the said section of the State Intelligence Bureau dealing with communal affairs. Besides that, Shri P.B. Upadhyay, the then Deputy Commissioner (Communal) and Shri I.V. Pathan, Assistant Investigation Officer, who is posted to D-2 Section since the year 2000, have categorically stated that neither of those two fax messages was issued from their section and that copies thereof are not available in the records of the State Intelligence Bureau. Shri O.P. Mathur, the then Inspector General of Police (Police & Crime) has categorically stated that fax message No. D-2/2-COM/ALERT/100/2002, dated 27 February 2002 was a fabricated document and that his initials thereon are not genuine. Shri G.C. Raiger, the then Additional Director General (Intelligence) has denied his initials on fax message No. D-2/2-COM/ALERT/174/2002, dated 28 February 2002 and has stated that the same have been forged by someone and that no such fax message was ever sent by Shri Sanjiv Bhatt. Shri Gordhan Zadafia, the then Minister of State (Home), Shri V.J. Patel, the then Principal Secretary to Minister of State (Home), Dr. P.K. Mishra, the then Principal Secretary to the Chief Minister, Shri Ashok Narayan, the then Additional Chief Secretary (Home) and Shri P.C. Pande, the then Commissioner of Police, Ahmedabad City, to whom the aforesaid fax messages were claimed to have been sent by Shri Sanjiv Bhatt, all have denied having received any such fax messages. The very fact that there is no reference to fax message No. 174 dated 28 February 2002 by the Control Room in fax message No. 178 actually sent on 28 February 2002 after the Gulberg Society incident would conclusively prove that no such message was sent earlier on 28 February 2002. The oral and documentary evidence available on record would therefore conclusively prove that these fax messages now produced by Shri Bhatt have been fabricated subsequently with an ulterior motive, and have been produced by Shri Sanjiv Bhatt for the first time before the Nanavati Commission of Inquiry and subsequently before the Special Investigation Team in January 2012. No reliance can, therefore, be placed upon both these fax messages., Shri A.K. Malhotra, Member of the Special Investigation Team, conducted an inquiry into the complaint made by Smt. Jakia Nasim as per the orders of the Hon'ble Supreme Court of India passed on 27 April 2009. In compliance with the said order a report was submitted by the Special Investigation Team to the Hon'ble Supreme Court of India on 13 May 2010, in which further investigation under section 173(8) of the Criminal Procedure Code was suggested to be conducted in respect of Shri Gordhan Zadafia, Shri M.K. Tandon, Joint Commissioner of Police and Shri P.B. Gondia, Deputy Commissioner of Police, Zone‑IV, Ahmedabad City. Further investigation in the matter was conducted by the undersigned (Shri Himanshu Shukla, Deputy Commissioner of Police, Crime Branch, Ahmedabad City) under the supervision of Shri Y.C. Modi, Additional Director General & Member, Special Investigation Team and a report in the matter was submitted to the Hon'ble Supreme Court of India on 17 November 2010. Both the aforesaid reports were given to Shri Raju Ramchandran, Senior Advocate, who had been appointed as Amicus Curiae in the matter by the Hon'ble Supreme Court of India. The Amicus Curiae submitted his Interim Report in the matter to the Hon'ble Supreme Court of India on 20 January 2011, vide which he suggested further investigation in respect of some of the issues. In compliance with the order passed by the Hon'ble Supreme Court of India on 15 March 2011, to conduct further investigation into the matter under section 173(8) of the Criminal Procedure Code, Shri Himanshu Shukla, Deputy Commissioner of Police, Crime Branch, carried out further investigation under the overall supervision of Chairman, Special Investigation Team Shri R.K. Raghavan, Shri Y.C. Modi, Additional Director General & Member, Special Investigation Team and Shri A.K. Malhotra, Member, Special Investigation Team and another report was submitted to the Hon'ble Supreme Court of India on 25 April 2011. The Hon'ble Supreme Court of India handed over the said report to the Learned Amicus Curiae for his examination and independent opinion. The Learned Amicus Curiae accordingly examined the Special Investigation Team reports and also interacted with some of the witnesses including the police officers and submitted his report to the Hon'ble Supreme Court of India on 25 July 2011. The Hon'ble Supreme Court of India after careful consideration of the matter passed an order on 12 September 2011, directed the Chairman, Special Investigation Team to forward a Final Report along with the entire material collected by the Special Investigation Team to the Court which had taken cognisance of FIR No. 67/2002 of Meghaninagar Police Station as required under section 173(2) of the Criminal Procedure Code of the Court. It may be mentioned here that the Learned Amicus Curiae has agreed with the various recommendations made by the Special Investigation Team on the different issues investigated by the Special Investigation Team. However, the Learned Amicus Curiae is of the view that at this prima facie stage offences under sections 153A(1)(a) & (b), 153B(1)(c), 166 and 505(2) of the Indian Penal Code are made out against Shri Narendra Modi regarding the statement made by him in the meeting on 27 February 2002. In this connection, as discussed above, the Special Investigation Team is of the view that the offences under the aforesaid sections of law are not made out against Shri Narendra Modi. In the light of the aforesaid facts, a closure report is being submitted for perusal and orders. (Himanshu Shukla) Gandhinagar (emphasis supplied)
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Through: Petitioner in person with Mr. Chaitanya Gosain and Mr. Anand Thumbayil, Advocates versus Through: Mr. Chetan Sharma, Additional Solicitor General and Mr. R. Balasubramanium, Senior Advocate, Mr. Anil Soni, Counsel General, Mr. Vinayak Sharma, Mr. Amit Gupta, Mr. Vikramaditya, Advocates, Mr. Kirti Uppal, Senior Advocate with Mr. Aditya Vikram Singh and Ms. Riya, Mr. Dilip Kumar Niranjan, Advocate for Indian Olympic Association. Mr. Ankur Goel, Advocate in Civil Miscellaneous No. Through: versus Through: Mr. Anil Soni, Counsel General, Mr. Vedansh Anand, Advocate, Mr. Aditya Vikram Singh, Advocate for Mr. Dilip Kumar Niranjan, Advocate for Indian Olympic Association., The present writ petitions have been filed challenging certain decisions dated 03.10.2020, 06.10.2020, 09.10.2020, 19.10.2020 and 20.10.2020, passed by the Union of India, renewing the recognition of certain sports federations, which, according to the petitioner, are in violation of the National Sports Development Code of India, 2011 (hereinafter referred to as the Sports Code) and various judgments passed by the Supreme Court of India., The Supreme Court of India, in various orders passed in the present writ petitions, has repeatedly expressed that all is not well in various sports federations and they are being run contrary to the Sports Code. On 03 June 2022, the Supreme Court of India passed the following directions: Evidently there is no clarity or confirmation as to which National Sports Federations (NSFs) are fully compliant with the Sports Code. Therefore, in view of the previous orders dated 26 May 2022 and 02 June 2022, it would be logical, prudent, legal and just that government monies not be expended on entities whose status in law is yet to be determined. Accordingly, no more monies will be expended nor any assistance extended to any NSFs until further order. The respondent shall ensure that monies, patronage and other facilities to NSFs will be resumed, in particular, only when the NSFs comply with Annexure 2 of the Sports Code, as well as in terms of the orders passed by the Supreme Court of India and by this Court in cases, inter alia, listed below: AIFF versus Rahul Mehra in Special Leave Petition (Civil) 30748/17 on 18 May 2022; Ravinder Dongre versus Union of India and others in LPA 362/2022; Aslam Sher Khan versus Union of India and others in Writ Petition (Civil) 5703/2020; Maharashtra Archery Association versus Rahul Mehra (2019) 18 Supreme Court Cases 287., It is hoped that the entire exercise of ensuring compliance will be completed by the end of the month. In the interim, assistance provided to sportspersons through the Sports Authority of India will be ensured and, wherever necessary, augmented. The non‑compliant NSFs shall be put on notice of suspension of their recognition., Civil Miscellaneous Application No. 5287/2023 has been filed seeking modification of orders dated 02 June 2022, 03 June 2022 and 19 January 2023., Pursuant to the order of the Supreme Court of India, various affidavits have been filed by the Union of India stating that the majority of the sports federations are in full compliance with the Sports Code, a contention vehemently opposed by Mr. Rahul Mehra, learned Senior Advocate who appears in person., On 20 July 2022, when faced with the fact that because of the order dated 03 June 2022 the participation of the Indian teams in various disciplines of the Commonwealth Games would be difficult, the Supreme Court of India passed directions on how the funds should be released. The Indian team for the Commonwealth Games has been selected. On a query put to the learned counsel for the government as to whether the Indian teams of various sports disciplines will be able to participate under the Indian National Flag in the upcoming Commonwealth Games, which is to start in about a week's time, the answer was affirmative. It is also not in dispute that travel expenses, accommodation, etc., for the teams' participation in the Commonwealth Games will be funded by the government, under its supervision and management. In effect, neither the Indian players nor the country are likely to suffer on account of non‑release of funds to the non‑compliant NSFs. Public monies can be released only to entities which qualify for such funding. This is under examination and relevant data is yet to be furnished., The writ petition has been taken up for hearing on various dates to ensure that the sports federations comply with the Sports Code and the judgments passed by the Supreme Court of India. On 13 April 2023, during the arguments, Mr. Mehra was requested to suggest some ways to deal with the various sports federations and to ensure that the Sports Code is complied with by the federations. An affidavit was handed over in the Supreme Court of India by Mr. Mehra on 20 April 2023. A question also arose regarding disbursement of funds to ensure proper participation of the Indian team in various disciplines in the Asian Games, which are to be held from 23 September 2023 to 08 October 2023 in Hangzhou, China. A copy of the affidavit filed by Ms. Mehra was given to the Union of India on 20 April 2023. The Union of India also filed an affidavit dated 25 April 2023., With regard to the release of funds to NSFs, it is submitted that all instructions and financial probity relating to the release of government funds are followed, as required for the release of government money to any entity. There is a prescribed procedure for the release of funds to NSFs under reference 21415/2020 and prescribed norms of assistance for various activities relating to training and competitions. Proposals of the NSFs for training and competitions are considered and deliberated upon in the meetings of the Annual Calendar of Training & Competitions (ACTC), in which representatives of NSFs, the Sports Authority of India and the Department of Sports take part and finalize the proposals. Meetings of ACTC are chaired by the Secretary of the Department of Sports. Funds are released only for those proposals that have been approved under ACTC. If, for some reason, a proposal is submitted subsequent to the finalization of ACTC, it is examined on merits., The funds released to NSFs are duly audited and certified by Comptroller and Auditor General‑empanelled Chartered Accountants. There are adequate checks and balances in place, including disbursal of funds through the Public Finance Management System (PFMS). Hence there is no chance of misappropriation or mis‑utilisation of government funds. If there are specific instances of mis‑utilisation, they should be specifically pointed out with supporting documents. It is not fair to doubt the integrity of the institution of Chartered Accountants/Auditors. They are well‑respected, qualified professionals regulated by the Institute of Chartered Accountants of India (ICAI), a statutory body set up under an Act of the Parliament of India. The Chartered Accountants Act, 1949 provides for addressing any misdemeanour on the part of members of the ICAI. It is not proper and fair to paint and brand everybody as corrupt and dishonest and thus cast doubt on the very foundation of such a vast edifice of statutory accounts management., The agencies exist to investigate any complaint of misuse of public funds, and NSFs are no exception. The petitioner, with special knowledge of wrongdoings, can always approach the concerned agencies to address his concerns., The Government is not giving any largesse to any NSF. Funds are provided for the training and competitions of sportspersons as per the prescribed norms. Participation in competitions, both domestic and international, is equally important for a sportsperson as training. It is also important to host international sporting events as they can have a significant positive impact on the host country, from promoting sports and physical activity to preparing a cadre of sports officials, support staff, and physical infrastructure, boosting the economy and tourism. The norms for assistance for various activities such as the conduct of national championships, international tournaments, diet and supplement charges, boarding and lodging charges, out‑of‑pocket allowance, air travel, journey by train, remuneration for coaches, sports doctors, physiotherapists, masseurs, sports psychologists and mentors, etc., are prescribed under the Scheme of Assistance to NSFs and grants are released strictly in accordance with these norms. In the first instalment, 75 % of the grant is released, and the balance is released on submission of the utilization certificate for the previous grant. Utilization certificates and audited statements are duly certified by Comptroller and Auditor General‑empanelled Chartered Accountants., The Comptroller and Auditor General also audits the Ministry of Sports and the Sports Authority of India, and all files and matters of financial grants handled in the Ministry and SAI are subjected to audit by the CAG. If any violations are found, audit objections are raised, further examined and acted upon as per the procedure established by law. When there is an elaborate procedure for the release of grants and norms of assistance are fixed, there is no need for any third party to monitor the release of funds., At present, the committee overseeing the disbursement of funds to the various sports federations consists of the Secretary, Department of Sports; the Director General of the Sports Authority of India; and the Joint Secretary, Department of Sports. To ensure that sportspersons are also included in the process of disbursement of funds so that the funds released by the Government go only for the purpose of betterment of sportspersons, their training and to ensure that a strong team is sent to represent the country in the Asian Games, the Supreme Court of India deems it expedient to modify the order dated 03 June 2022 by which the Court had directed that government monies should not be spent on any National Sports Federation. The Supreme Court of India also appoints Mr. Abhinav Bindra and Mr. M. M. Somaya as members of the committee, which is currently administered by the Secretary, Department of Sports; the Director General of the Sports Authority of India; and the Joint Secretary, Department of Sports. The committee will therefore have five members and shall oversee the disbursement of funds to the various sports federations for the purpose of selecting Indian teams for various disciplines to represent the country in the Asian Games, which are to be held in Hangzhou, China from 23 September 2023 to 08 October 2023., The committee shall ensure that the money is spent only on the sportspersons, their training, etc. It is made clear that government money should be spent only on training and travel of sportspersons for their selection in the Indian team, on arranging coaches for them and on other necessary equipment and services such as physiotherapists, trainers, etc. Government money will not be spent on office bearers of the sports federations who are not concerned with the sportsperson.
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The sole petitioner Nikhil Padha, who claims to be a law student and an ardent human rights activist, has preferred this petition in public interest seeking the following reliefs: that the Jammu and Kashmir Human Rights Commission, Jammu and Kashmir Women Commission, Jammu and Kashmir Accountability Commission, and Jammu and Kashmir State Information Commission be reopened to adjudicate the pending cases; that the trials of the pending 765 cases be reopened and continued until final adjudication; that the Union Territory of Jammu and Kashmir exercise its powers to institute an independent and separate body spread across the region in three branches at Jammu, Kashmir and Chenab Region; that a separate reporting agency be instituted consisting of at least one judicial member to record cases of human rights violation; and that any other order or direction deemed fit and proper in the interest of justice be issued., It is alleged that the aforesaid commissions were closed down after the abrogation of Article 370 by various Government Orders, one of which is Government Order No. 1143 GAD of 2019 dated 23 October 2019 whereby the Jammu and Kashmir State Human Rights Commission was ordered to be wound up with effect from 31 October 2019. It is also alleged that 765 cases are pending for adjudication before the Jammu and Kashmir State Human Rights Commission, of which 267 cases are against military, para‑military and police forces., The petition appears to have been drafted on behalf of more than one person, as the sole petitioner is shown as petitioner No. 1 and the plural form is used throughout. The first paragraph states that one of the petitioners is a law student, implying the existence of other petitioners, but in fact there are none. This suggests that the original draft was on behalf of multiple persons and the names of the other petitioners were later removed for unknown reasons., The petitioner has appeared in person and, on enquiry, it was stated that he passed law this year from the University of Jammu. His age, as per the affidavit, is 25 years. He proclaims himself to be a human rights activist as per the cause title of the petition and the averments contained in paragraph 1 of the writ petition., We fail to understand how a law student who has recently passed law can be recognized as an ardent human rights activist as proclaimed by the petitioner. The petitioner has not disclosed any activity that would indicate his involvement in the protection of human rights of citizens or that he is an acclaimed human rights activist despite his tender age., The narration of the facts in the writ petition reveals that the petitioner is not a bona fide person but a proxy set up by someone to initiate this litigation in public interest. The averments indicate that the petitioner is not really interested in the establishment of the above forums but seeks to attack the government over the deletion of the special status granted to Jammu and Kashmir. He has targeted the government by alleging a rise in army brutality, the applicability of draconian laws, the emergence of an unknown gunman culture, the transformation of the Kashmir region into a war zone, and significant youth unrest since the scrapping of Article 370. He also referred to the big win of the Gupkar Alliance in the recent District Development Council elections., All the above facts are highly critical of the government as if the petitioner were before a political platform rather than a legal forum. By making the above averments, the petitioner tends to scandalize the High Court in order to score political mileage., It is worth noting that a Public Interest Litigation is not a remedy for every grievance and should not be entertained if the bona fides of the persons are in doubt. It is equally settled that a PIL should not be allowed to be used to abuse the process of law if the pleadings are vexatious, misconceived, unfounded and untenable (see AIR 2018 SC 2855: Seema Upadhyay v. Union of India)., The Supreme Court of India, in a cited case, has clearly ruled that when a political rival complains against another political party or person, it would not be a bona fide litigation at the behest of the opponent and such petitions in public interest ought not to be entertained (see AIR 2018 SC 86: Manohar Lal Sharma v. Sanjay Leela Bhansali; AIR 2007 SC (Supple.) 163: Vishwanath Chaturvedi v. Union of India)., It is also noted that the demeanor of the petitioner while presenting the case reflected that he has been set up politically to unnecessarily raise an international issue of human rights violation., For the issuance of a writ in the nature of mandamus as sought by the petitioner, it is essential that the petitioner first approach the relevant competent authorities to satisfy his grievances, and only when he fails to achieve the same may he approach the High Court in exercise of its extraordinary discretionary jurisdiction. It must be shown by evidence that there was a distinct demand and that it was met with a refusal by the concerned authority. The petitioner has not produced any material to show that his demand was not considered or was refused., It may be worth noting that none of the complainants of the pending cases have ever approached this Court for adjudication of their claims pending before the Jammu and Kashmir Human Rights Commission, which has been wound up., In view of the aforesaid facts and circumstances, we do not deem it necessary to exercise our discretionary jurisdiction in the matter and thus decline to entertain this petition (see AIR 1975 SC 460: Sarswati Industrial Syndicate Ltd. v. Union of India)., The petition is accordingly dismissed with token costs of Rs 10,000, as the petitioner is a law graduate who has recently passed out. The costs shall be deposited with the Registrar (Judicial) of the High Court and be utilized for the benefit of litigants., We, however, expect the Government and respondents to take respective steps in earnest to revive the above institutions at the earliest., The writ petition is accordingly dismissed with the above observations.
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Shiv Charudatt Changdeo Pawar, aged 53 years, Wadala Naka, Nagsen Nagar, Poona Road, Nashik, Maharashtra 422001; Manohar Kisanrao Sonawane, aged 55 years, Bharat Bhushan Housing Society, Panchak Jail Road, Nashik Road, Nashik, Maharashtra 422; Prakash Narhar Desale, aged 46 years, Flat No 2, Shree Ganga Heights, Swadhyay Nagar, Mhasrul, Nashik, Maharashtra 422004., Union of India, Ministry of Law and Justice, Room No 405, A Wing, Shastri Bhavan, New Delhi 110001; Life Insurance Corporation of India, Central Office, Yogakshema Building, Jeevan Bima Marg, P O Box No 19953, Nariman Point, Mumbai 400021; Speaker of the Lok Sabha, through the Principal Secretary, Speaker’s Office, Lok Sabha, 17, Parliament House, New Delhi 110001., Counsel for the petitioners: Mister Pradeep Sancheti, Senior Counsel, with Mister Pulkit Sharma, Ms Pooja Kane, Ms Pallavi Bali, Mister Saurabh Bachawat, Mister Zaman Ali in behalf of Zaman Ali. Counsel for respondent No. 2: Mister N Venkataraman, Additional Solicitor General, with Ms Amita Katragadda, Mister Prakhar Pandey, Ms Preksha Malik, Ms Gathi Prakash, Ms Nidhi Asher, Ms Isha Choudhary and Ms Arushi Poddar in behalf of Cyril Amarchand Mangaldas., Judges Madhav J. Jamdar. Dated: 11th April 2022., We have heard Mister Sancheti, learned Senior Counsel for the petitioners, and Mister Venkataraman, learned Additional Solicitor General for respondents No. 1 and 2. The third respondent is the Speaker of the Lok Sabha. The hearing took place on 11th April 2022., The writ petition challenges the forthcoming public offering and issuance of shares by the Life Insurance Corporation of India. The specific prayer after amendment is a challenge to Sections 128 to 146 of the Finance Act 2021, which sought to amend the Life Insurance Corporation of India Act, 1956. The arguments proceed on two broad grounds: first, that the Finance Bill, a precursor to the Finance Act 2021, could never have been passed as a Money Bill under Article 110 of the Constitution of India; second, that the Finance Act and the amendments introduced to the LIC Act are ultra vires Article 300‑A of the Constitution of India., We clarified that we are not hearing the matter for final disposal at this stage but only considering it for ad interim relief in terms of amended prayer clauses (d) and (d)(i), which seek to stay the Draft Red Herring Prospectus filed by the LIC for the issuance of shares in a public issue to investors. We allowed Mister Sancheti to address why an ad interim stay should be granted and heard Mister Venkataraman briefly on this aspect., Having considered the rival submissions on this limited aspect, we are not inclined to grant ad interim relief. The petition is kept for final disposal on 11th April 2022 at the admission stage, and we propose to list it as soon as possible once the Supreme Court of India re‑opens after the summer recess. Any public issue that the LIC proceeds with between now and then may be subjected to further orders in this writ petition. This is not a final determination of any of the issues., For ad interim relief, the usual three determinants must apply: a strong prima facie case; balance of convenience; and irreparable injury. One settled principle is to consider whether there is a countervailing larger public interest involved., The principal plank of Mister Sancheti’s arguments is based on Article 300‑A. He contends that the impugned Finance Act 2021 operates to deprive not only the three petitioners but all LIC policyholders of their property, and that this deprivation is not with the authority of law., To appreciate the structure of this argument, it is necessary to see a few provisions of the LIC Act as it stood before the amendment. Chapter VI deals with the LIC’s finance, accounts, and audit. Sections 26 to 28A are as follows: Section 26 – Actuarial valuations: the corporation shall cause an investigation by actuaries into the financial conditions of the life insurance business and submit the report to the Central Government. Section 27 – Annual report of activities of the corporation: the corporation shall, as soon as may be, after the end of each financial year, prepare and submit to the Central Government a report of its activities and of activities likely to be undertaken in the next financial year. Section 28 – Surplus from life insurance business, how to be utilised: (1) if any surplus emerges from an investigation under Section 26, (a) ninety per cent or more of such surplus, as the Central Government may approve, shall be allocated to or reserved for the life insurance policyholders; (b) the remaining percentage, as approved, shall be credited to a separate account maintained by the corporation; and (c) the remainder shall be paid as dividend. (2) Funds in the separate account shall be utilised as the Central Government may determine. Section 28A – Profits from any business other than life insurance business: after making provision for reserves, the balance of such profits shall be paid to the Central Government., The Finance Act made several amendments to the LIC Act, beginning with Section 140 of the Finance Act 2021, which substitutes Section 28 of the principal Act. The amended Section 28 provides that if a surplus emerges from an investigation by the Board under Section 26, (a) for each financial year prior to the year for which funds under Section 24 are to be maintained, and for any subsequent year where members may exempt the maintenance of such funds, ninety per cent or a higher percentage as the Board may approve shall be allocated to or reserved for the life insurance policyholders; the remaining percentage may be allocated to or reserved for members and either credited to a separate account or transferred to reserves specified by the Board. (b) for every other financial year, (i) in respect of participating policyholders, ninety per cent or a higher percentage as the Board may approve shall be transferred to the participating policyholders fund and allocated to or reserved for the life insurance participating policyholders; the remaining percentage shall be allocated to or reserved for members. (ii) in respect of non‑participating policyholders, one hundred per cent of surplus shall be allocated to or reserved for members. The remaining surplus and profits allocated to members shall be utilised for purposes approved by the Board, including declaration or payment of dividend, issue of fully paid‑up bonus shares to members, and crediting any reserves created by the Board. The corporation shall, with Board approval, publish its surplus distribution policy on its website at least once in five years, or a shorter period not less than three years, specifying the percentages., The argument is that under the original Section 28 every policyholder held property in the surplus from the life insurance business. Mister Sancheti formulates that the allocation or reservation immediately gives every policyholder an estate in the surplus of the corporation. The fact that the allocation is limited to ninety per cent makes no difference for the purposes of Article 300‑A; every existing policyholder has a direct, enforceable, and realizable interest in the surplus, which is therefore the property of every policyholder as a class., In contrast, the Finance Act 2021 introduces a new class of claimants to the surplus. Previously the entire surplus belonged to policyholders; now it is to be divided between policyholders and shareholders. This creates a deprivation of property violative of Article 300‑A. Mister Sancheti acknowledges that policyholders are not entirely ousted from a share in the surplus, but the amendment creates a two‑level segregation: first between policyholders and shareholders, and second within policyholders between participating and non‑participating policyholders. Prior to the amendment, the only shareholder of LIC was the Central Government; there was no concept of private shareholders., Mister Sancheti points to paragraph 4 of page 27 of the Draft Red Herring Prospectus, which describes the segregation of the single consolidated life fund into a participating policyholders fund and a non‑participating policyholders fund. The prospectus explains that prior to segregation, surplus was distributed among policyholders and the shareholder in a 95:5 ratio; after segregation, 100 per cent of surplus from the non‑participating business is available for distribution to all shareholders, while surplus from the participating business is distributed to policyholders and the shareholder in a 95:5 ratio, later to be modified to 90:10. The prospectus further notes that the changes in surplus distribution policy may reduce the attractiveness of participating products and could adversely affect the corporation’s business, financial condition, results of operations, and cash flows., We are not at this stage concerned with the actual financial results but with the policy behind them for the purposes of this argument. In Mister Sancheti’s construct, the policyholders and future shareholders are all controlled by LIC (or the Central Government) for the purposes of declaration of dividends, surplus, bonus, or payouts. While the funds remain under LIC’s control, the portion that would have been exclusively available to policyholders is now reduced and made available to participating policyholders, non‑participating policyholders, and, for the first time, private shareholders. Thus the property of policyholders is being separated and taken away, although the majority shareholding of LIC will still be with the Central Government., In support of these submissions, Mister Sancheti cited several decisions. First, a five‑Judge Bench of the Supreme Court in KT Plantation Pvt Ltd and Anr v State of Karnataka, which explained the concepts of eminent domain, public purpose, and the requirement of just compensation for deprivation of property. The decision holds that a person whose property is taken is entitled to compensation and a judicially reviewable statement of the reasons and method of computing that compensation., The next decision relied upon is Life Insurance Corporation of India v Crown Life Insurance Co., where the Supreme Court observed that LIC is not obligated to distribute dividends unless there is a surplus, and that an entitlement to surplus arises under the unamended Section 1 of the LIC Act. If that entitlement is taken away, it amounts to deprivation of property, i.e., an enforceable right in the surplus., The Supreme Court decision in Madan Mohan Pathak and Anr v Union of India and Ors was also cited, discussing the concepts of property, deprivation, and compensation in paragraphs 11 and 18 to 21., We pause briefly to consider, for the purpose of ad interim relief, whether the petitioners can be said to have an enforceable estate in the surplus of the LIC fund. We are not satisfied that the petitioners, nor the class they may represent, have such a property right within the meaning of Article 300‑A. An entitlement to receive a dividend or bonus is conceptually different from having an in‑specie interest in the fund itself. The use of the words “allocated” and “reserved” in the unamended Act requires careful scrutiny at a later stage., Mister Sancheti also addressed the meaning of public purpose for the amendments, an argument that will be considered later., The third argument was based on Article 110 of the Constitution. Mister Sancheti submitted that the Finance Bill could never have been passed as a Money Bill. This issue was previously considered by a Division Bench of the Madras High Court in L. Ponnammal v Union of India and Ors. While the Madras High Court decision is not binding, it is persuasive and will be given high regard under the principle of comity of courts., The Supreme Court decisions regarding Money Bills in K.S. Puttaswamy (Retd.) and Anr v Union of India and Anr (Puttaswamy‑1) were noted, where the question of whether the UIDAI Act could have been passed as a Money Bill arose. The majority and dissenting opinions, as well as the later decision in Rojer Mathew v South Indian Bank Ltd and Ors, which examined the interpretation of Article 110, were also referenced., The complexity of the Article 110 argument does not, in our view, lend itself to a sufficiently strong prima facie case for ad interim relief., Mr Venkataraman, on behalf of respondents No. 1 and 2, asserted that the amendment to the LIC Act is not merely a corporate restructuring but must be a Money Bill because it affects inflows and potential outflows from the Consolidated Fund of India. He argued that the word “only” in Article 110 governs the entire provision and that amendments dealing incidentally with the Consolidated Fund cannot be included in a Money Bill., Mr Venkataraman further submitted that there is no binding contract giving the petitioners any enforceable property right in the surplus. The sum assured does not become part of the surplus, and insurance contracts are contracts of utmost good faith. Sections 24 and 28 do not confer a statutory right in the surplus to policyholders. Consequently, the argument under Article 300‑A must fail, as was held by the Madras High Court., He also raised an argument on delay and laches. For the purposes of ad interim relief, we made it clear to Mister Sancheti that we would not hold him to delay and laches, as there are substantive challenges to be considered. We have reservations about applying an overly strict reading of delay and laches in this context., For these reasons, we decline ad interim relief. All contentions are, however, kept open., Mister Sancheti requests leave to introduce a compilation of policies to meet the argument regarding contractual rights. Leave is granted., Should the respondents wish to file an affidavit in reply, it should be done by 9th June 2022. Any rejoinder, if any, is to be filed by 16th June 2022. The petition is listed peremptorily for hearing and final disposal at the admission stage on 21st June 2022 at 2:30 pm.
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Ms. Kangana Ranaut, an adult Indian inhabitant, having her address as Bungalow No. 5, Chetak Row House No. 41, Nargis Dutt Road, Pali Hill, Bandra (West), Mumbai 400050, is the petitioner. Respondent No. 1 is the Municipal Corporation of Greater Mumbai, a local statutory body having its office at Mahapalika Building, Mahapalika Marg, Mumbai 400001. Respondent No. 2 is the Executive Engineer (Buildings & Foundations), having his office at H/West Ward, H/W Ward Office Building, Saint Martin Road, behind Bandra Police Station, Bandra (West), Mumbai 400050. Respondent No. 3 is the Government of Maharashtra, through its Secretary, Ministry of Home Affairs, Mantralaya, Mumbai 400032. Respondent No. 4 is Mr. Bhagyavant Late, an adult Indian inhabitant, having his office at H/West Ward, H/W Ward Office Building, Saint Martin Road, behind Bandra Police Station, Bandra (West), Mumbai 400050. Respondent No. 5 is Mr. Sanjay Raut, an adult Indian inhabitant, residing at Maitri Friends Colony, Bhandup (East), Mumbai 400042., Counsel for the petitioner is Dr. Birendra Saraf, Senior Advocate, assisted by Mr. Prasanna Bhangale, Ms. Monisha Mane Bhangale, Mr. Rizwan Siddiquee, in practice of Siddiquee and Associates. Counsel for Respondents No. 1 and 2 is Mr. Aspi Chinoy, Senior Advocate, assisted by Mr. Joel Carlos and Ms. Rupali Adhate. Counsel for Respondent No. 4 is Ms. P.H. Kantharia, Government Pleader, assisted by Ms. Jyoti Chavan, Assistant Government Pleader. Counsel for Respondent No. 5 is Mr. Anil Y. Sakhare, Senior Advocate, assisted by Ms. Rupali Adhate, Mr. Rohan Mirpurey, in practice of Ms. Aruna Savla. Counsel for Respondent No. 3 is Mr. Pradeep J. Thorat, assisted by Ms. Aditi Naikare and Mr. Aniesh Jadhav., The writ petition is filed by Ms. Kangana Ranaut against Municipal Corporation of Greater Mumbai, the Executive Engineer (Buildings & Foundations), the Government of Maharashtra through its Secretary, Mr. Bhagyavant Late (Designated Officer of MCGM) and Mr. Sanjay Raut (Member of the Rajya Sabha, Chief Spokesperson of Shiv Sena and Executive Editor of the Marathi daily newspaper *Iaamna*)., The petitioner seeks: (i) quashing and setting aside the notice dated 7 September 2020 issued by Mr. Bhagyavant Late under section 354A of the Mumbai Municipal Corporation Act, 1888; (ii) quashing and setting aside the speaking order of demolition dated 9 September 2020 passed by the same officer; (iii) declaring the demolition carried out on 9 September 2020 as illegal and contrary to law; (iv) directing the respondents and their officers to compensate the petitioner Rs. 2,00,00,000 (Rupees Two Crores only) for damages suffered due to the illegal demolition; and (v) restraining the Municipal Corporation of Greater Mumbai and its officers from taking any further steps without due process of law and adequate notice., The petitioner’s advocate moved the Bombay High Court at around 11:30 a.m. on 9 September 2020 and sought circulation of the writ petition at the earliest. Because the Municipal Corporation of Greater Mumbai had filed a caveat, notice was given to it and the hearing was fixed for 12:30 p.m. The petition, filed in extreme urgency while the petitioner was out of Mumbai, lacked material particulars and was incomplete. The petitioner was granted liberty to amend the petition on 9 and 10 September 2020. In the amended petition, the petitioner reiterated the allegation that the demolition carried out by MCGM was malicious and with ulterior motives, relying on a video clip of an interview with Mr. Sanjay Raut and a news report in *Iaamna* dated 10 September 2020. By order dated 22 September 2020, the court allowed Mr. Sanjay Raut to be joined as a party respondent, and also allowed Mr. Bhagyavant Late to be joined in his personal capacity., On 28 September 2020, the senior advocate appearing for MCGM, while dealing with the petitioner’s allegation of malicious demolition, submitted that a Mukadam of MCGM had visited the petitioner’s bungalow on that day at around 1:00 p.m., whereas the petitioner’s tweet pointing out Mr. Raut’s statements was posted at 5:12 p.m. The advocate did not provide the exact time of Mr. Raut’s statements, and Mr. Raut himself made no such submission. The petitioner’s senior advocate then produced a compilation of tweets from 30 August 2020 onwards and a news report in *Iaamna* dated 5 September 2020, which quoted Mr. Raut promising that Shiv Sena would perform *Shraddha* (obsequies) for enemies of Maharashtra. The court directed the petitioner’s advocate to forward these materials to the respondents’ advocates, and no objection was raised., In 2017 the petitioner purchased Bungalow No. 5 at Chetak Row House No. 41, Nargis Dutt Road, Pali Hill, Bandra (West), Mumbai 400050. On 3 October 2018 she wrote to the Assistant Commissioner of MCGM stating that the bungalow was 42 years old and that a structural audit had categorized it under C2‑B, requiring structural repairs and eviction of occupants. She sought permission to carry out the repairs under the supervision of a structural auditor and enclosed the auditor’s report. MCGM replied on 30 October 2018 that the suggested repairs were major and should be carried out to the satisfaction of the structural consultant, with a stability certificate to be submitted, and that the letter was issued without prejudice to the authenticity of the structure. MCGM also informed her that no permission was required for tenantable repairs under section 342 of the Act., The petitioner appointed M/s. Paras Consultant and M/s. Tara Enterprises as structural consultants. Paras Consultant wrote on 17 May 2019 that the structural repair work was completed as per guidelines and under periodic supervision. Tara Enterprises issued a certificate on 19 May 2019 confirming completion of the structural repairs, annexing a document detailing the works carried out. The petitioner addressed a letter on 24 May 2019 to the Assistant Commissioner of MCGM enclosing the certificate, stating that the bungalow was sound, safe and fit for habitation after the repairs. She later sought permission to fully renovate the bungalow, writing on 31 July 2019 to the Chairman/Secretary of the Pali Hill Residents Association for renovation work from 09:00 a.m. to 08:00 p.m. She also wrote to the secretary of Chetak Cooperative Housing Society about continuous leakage from the terrace of Row House No. 6 belonging to Mr. Malhotra, which hindered renovation, and obtained permission to resolve the leakage on 6 August 2019. All the correspondence mentioned above is placed before the court., In January 2020 the renovation work was completed by a design and architect consultancy firm called Orange Lane LLP. The petitioner spent considerable sums on the renovation so that she could work conveniently from the bungalow. The renovated bungalow was inaugurated on the occasion of Makar Sankranti with a puja on 15 January 2020. The inauguration received wide publicity and was reported in online articles on 15 January 2020 on the websites of Quint Entertainment and Filmfare, with photographs of the façade, the puja ceremony and the petitioner’s family. In April‑May 2020 the magazine *Elle Decor* featured the bungalow, providing a detailed description of its interiors with photographs showing various rooms fully furnished. The official website of *Hindustan Times* published an article on 26 May 2020 titled “Step inside Kangana Ranaut’s elegant office studio in Mumbai’s plush Pali Hill. Watch video. Take a look into Kangana Ranaut’s luxurious office located at Pali Hill in Mumbai,” describing the European aesthetic of the redesigned space. The article also noted that the petitioner had launched her production house Mani Karnika Films in January 2020 and had inaugurated her new office, attaching photographs of the façade and the puja., The photographs on the *Quint Entertainment* website (15 January 2020) and the *Elle Decor* magazine (April‑May 2020) show the bungalow’s outer façade complete in all respects and the interior rooms ready for use, with custom‑designed furniture by Ms. Isha Gupta (Venture – Peacock Life), upholstery from A to Z Furnishings, cushions from AA Living, cottons and satins from Good Earth and Oma, rugs from Jaipur Rugs, lighting from Cona and Chor Bazaar, flooring from Lorenzo and Notion Flooring, Italian marble from Adenwala, and tables and stools sourced from Rajasthan., The petitioner, being a public‑spirited person, regularly airs her views on matters of public importance on social media, sometimes critically of the administration and the Government of Maharashtra. By the end of August 2020 she posted several tweets severely criticizing the Mumbai Police. Notable tweets include: 30 August 2020 at 2:01 p.m. – “I am more scared of Mumbai police now than the movie mafia goons in Mumbai and I would need security (either from the state government or directly from the Centre, not Mumbai please).” 1 September 2020 at 10:40 p.m. – “instead of condemning public teasing and bullying like this @CPMumbaiPolice is encouraging it @MumbaiPolice has hit all time.” 1 September 2020 at 10:54 p.m. – “When @CPMumbaiPolice is openly intimidating me like this encouraging bullying and crime against me will I be safe in Mumbai? Who is responsible for my safety? @PMOIndia.” 2 September 2020 at 11:09 a.m. – “You are a big sham in the name of police, don’t forget not just me all the people tagged got notifications of @CPMumbaiPolice liking the derogatory tweet trying to prove victim a criminal…”. 3 September 2020 at 12:27 p.m. – “Sanjay Raut Shiv Sena leader has given me an open threat and asked me not to come back to Mumbai after Aazadi grafts in Mumbai streets and now open threats where Mumbai is feeling like Pakistan‑occupied Kashmir?” 4 September 2020 at about 12:53 p.m. – “I see many people are threatening me to not come back to Mumbai so I have now decided to travel to Mumbai this coming week on 9 September. I will post the time when I land at the Mumbai airport.” In view of these threats, the petitioner was granted Y‑plus category protection by the Central Government and could come to Mumbai only under such protection., On the front page of the Marathi daily newspaper *Iaamna* dated 5 September 2020, a news report titled “Joining issues with Mumbai will prove costly” quoted Mr. Sanjay Raut stating: “Mumbai belongs only to forefathers of Marathi people. Those who do not agree with this should show who are their fathers. It is a promise that Shiv Sena will perform *Shraddha* (obsequies) of such enemies of Maharashtra. The Health Department should handle mental cases of such persons who talk nonsense about Mumbai.” The article also reported that the Home Minister had said Kangana has no right to stay in Mumbai and Maharashtra, and that Shiv Sena had warned that if she steps into Mumbai, their supporters would beat her with slippers., On the same day, Mr. Sanjay Raut answered questions from a *News Nation* reporter in Hindi. The English translation of the interview is: “Sanjay Raut: I am of the view that such a person will have to bring her father here and show us the father if there is one. News Nation: Will Shiv Sena stop her? Some leaders have said they will stop her and beat her. Sanjay Raut: Shiv Sena is not just the jagir of Maharashtra, all parties are there, all persons are in it, we will meet and decide. News Nation: It is your government, will you take any action against the law? Sanjay Raut: What is law? Has the girl respected the law in what she has spoken? Why are you advocating for that haramkhor girl who has insulted Shivaji Maharaj and Maharashtra? Are you on her side? Is your channel supporting her? (Mr. Raut walks away in anger).”, According to the Municipal Corporation of Greater Mumbai, on 5 September 2020 a Mukadam visited the petitioner’s bungalow and submitted a detection report to his superior on the same day. The petitioner’s advocate submitted a reply to the MCGM on 8 September 2020 at 4:00 p.m., stating that no work was being carried out in her premises and that the notice issued was baseless and intended to intimidate her. The reply also requested a maximum of seven days to respond to the notice and urged Mr. Bhagyavant Late not to misuse his dominant position., On 7 September 2020 at about 12:30 p.m. Mr. Bhagyavant Late, Executive Engineer and Designated Officer, together with other MCGM officers visited the bungalow. They measured the premises, prepared a handwritten inspection report, noted a workman doing waterproofing work due to leakage, uploaded the first inspection report and prepared a notice dated 7 September 2020 (the impugned notice) purportedly issued under section 354A (1) of the Act, stating that the petitioner had unlawfully commenced and was unlawfully carrying on erection of building work and ordering that if the work was not stopped within 24 hours the building or work would be removed or pulled down., The impugned notice was pasted on the outer door of the bungalow on 8 September 2020 at about 10:03 a.m. On the same day, although the petitioner was out of town, her advocate submitted a reply contesting the notice and seeking seven days to respond. The Municipal Corporation of Greater Mumbai filed a caveat under section 148A of the Code of Civil Procedure, 1908, anticipating that a writ petition would be filed. Mr. Bhagyavant Late also sent a letter to the duty officer of Khar Police Station, the contents of which are reproduced in ground J (vii) of the amended writ petition., On 9 September 2020 Mr. Bhagyavant Late passed an order rejecting the petitioner’s request for seven days’ time and stating that the petitioner had not stopped the work and had failed to produce the permission or sanction for the changes in the approved B.C.C. plan dated 7 March 1979. Consequently, the work was declared unauthorized and liable to be demolished forthwith. The order was pasted on the same day at 10:35 a.m., when MCGM officers, a JCB and other equipment were already present outside the bungalow, ready to demolish it. The petitioner’s tweet on 9 September 2020 at 10:19 a.m. recorded that “the Maharashtra Government and their goons are at my property all set to illegally break it down.”, At around 11:30 a.m. on 9 September 2020 the writ petition was moved in extreme urgency and the petitioner’s advocate went to the bungalow to serve a copy of the petition on the MCGM officers and to inform them that the matter was sub‑judice and listed for hearing at 12:30 p.m. The officers ignored the advocate, locked the bungalow from inside and, with malicious intent, demolished about 40 % of the bungalow, damaging numerous items including vintage furniture, antique mirrors, editing equipment, a crystal chandelier, Italian lights, designer chairs, music speakers, cashmere shawl, coffee machine, Victorian cutlery, cushions, rugs, antique pieces, books, toiletries, small furniture, doors, windows and civil and concrete work valued at more than Rs. 1 crore., The Bombay High Court, by its interim order dated 9 September 2020, restrained the Municipal Corporation of Greater Mumbai from carrying out any further demolition and recorded that the MCGM had filed a caveat expecting a court hearing, yet the MCGM’s advocate did not have a copy of the petition or the impugned notice, and no officer was available to instruct the advocate when he appeared before the court. The court observed that the MCGM’s conduct smacked of malice, although no affidavit filed by MCGM offered any justification for such conduct., On 10 September 2020 the newspaper *Iaamna*, of which Mr. Sanjay Raut is the Executive Editor, reported the demolition on its front page with the headline “m[kkM+ fn;k” meaning “uprooted”, rejoicing over the demolition.
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In the newspaper report it is interalia stated that the petitioner, who was unnecessarily spoiling the name of the Mumbai Police by comparing Mumbai with Pakistan‑occupied Kashmir, has received a good blow from the Municipal Corporation of Greater Mumbai., On 10 September 2020 the Municipal Corporation of Greater Mumbai filed its Affidavit in Reply to the unamended writ petition. On 17 September 2020 it filed its Additional Affidavit in Reply to the amended writ petition. On 20 September 2020 the petitioner filed its Affidavit in Rejoinder to the Additional Affidavit in Reply of the Municipal Corporation of Greater Mumbai dated 17 September 2020. On 24 September 2020 the Municipal Corporation of Greater Mumbai filed its Affidavit in your Rejoinder. On 27 September 2020 the petitioner filed her Affidavit in response to the Affidavit of the Municipal Corporation of Greater Mumbai dated 24 September 2020. On 28 September 2020 Respondent No. 5 filed his Affidavit in Reply. On 29 September 2020 the late Respondent No. 4 filed his Affidavit in Reply in his personal capacity. On 5 October 2020 the written submissions were filed by the petitioner, the Municipal Corporation of Greater Mumbai and Respondents Nos. 4 and 5., When the Bombay High Court was going through the Affidavits and the written submissions at the time of dictation of this order, it noted that Respondent No. 5 had not dealt with the compilation of tweets and news reports of the petitioner dated 5 September 2020, which had been submitted by the petitioner on 28 September 2020. Consequently, on 29 October 2020 the Court informed Advocate Pradeep Thorat of the omission and advised that he could still make submissions on the matter if his client so desired. Advocate Thorat thereafter tendered his additional written submissions on 30 October 2020., Relying on sections 44, 45(1), 52, 53 and 54 of the Maharashtra Regional and Town Planning Act, 1966 (the MRTP Act); sections 342, 351 and 354A of the Mumbai Municipal Corporation Act, 1888; the circular dated 15 March 2012 of the Municipal Corporation of Greater Mumbai; the decisions of the Supreme Court in Muni Suvrat Swaci Jain v. Arun Gaikwad; MCGM v. Sunbeam High‑Tech Developers; and the decisions of this Court in Abdul Razzaq Sunesra v. MCGM, MCGM v. Jagdishfhandra Mehra, Sopan Maruti Thopte v. Pune Municipal Corporation, the petitioner submitted that invocation of section 354A of the Act is illegal and an abuse of the powers and authority vested under the statute., In the present case the provisions of section 354A of the Act have been invoked under the false pretext that there was ongoing construction work at the petitioner’s bungalow. The documents and material on record, including the photographs relied upon by both the petitioner and the Municipal Corporation of Greater Mumbai, establish beyond a doubt that the alleged unauthorized works were already in existence and that there was no ongoing construction as alleged by the Municipal Corporation of Greater Mumbai. Section 354A was invoked only to deprive the petitioner of a fair opportunity to seek redress and, if required, regularisation. The absence of ongoing work is evident from the detailed reasons set out in paragraph 45 of the written submissions filed on behalf of the petitioner., It is settled law that malice cannot be established by direct evidence but may be discerned from circumstances. The impugned notice, order of demolition and its execution are vitiated by malice in fact for the reasons set out in paragraph 73 of the written submissions, and irrespective of malice in fact the actions are vitiated by malice in law as explained in paragraph 76 of the written submissions of the petitioner., To prove that the impugned notice, order of demolition and action are vitiated by malice in fact and, in any case, by malice in law, the petitioner relied on the decisions of the Supreme Court in Rajneesh Khajuria v. Wolfhardt Ltd.; State of Andhra Pradesh v. Govardhanlal Pitti; State of Punjab v. Gurdial Singh; Kalabharti Advertising v. Hecant Narifhania; S.C.T. S.R. Venkatracan v. Union of India; the decision of the Calcutta High Court in Birendra Kucar Singh v. Union of India; and the decision of this Court in Reserve Bank Employees v. State of Maharashtra., In the present case the exercise of power by Respondents Nos. 1 to 4 is colourable and a fraud on the statute, i.e. the Act. Every power vested in a public body or authority must be used honestly, bona‑fide and reasonably. In support of this submission the petitioner relied upon the decisions of the Supreme Court in Shrisht v. Shaw Bros; State of Bihar v. P.P. Sharca; and S. Pratap Singh v. State of Punjab., There are several lacunae in the Inspection Report at Exhibit‑B / Page 6 (2020) listed in Part C of the written submissions filed on behalf of the petitioner. The Municipal Corporation of Greater Mumbai claims that the Detection Report was prepared on 5 September 2020 at 1.00 p.m.; however, the same was not produced before the Court. The petitioner, through her Affidavit in Rejoinder, produced a Detection Report Register, which was available online and shows that the detection took place on 7 September 2020 and not on 5 September 2020., The Municipal Corporation of Greater Mumbai filed its Affidavit in Reply dated 10 September 2020, Additional Affidavit in Reply dated 17 September 2020 and Affidavit in your Rejoinder dated 24 September 2020. In each of these Affidavits the Municipal Corporation of Greater Mumbai took inconsistent pleas and attempted to improve its case. The inconsistent pleas are set out in paragraph 20 of the written submissions filed on behalf of the petitioner. No attempt has been made by the Municipal Corporation of Greater Mumbai to explain the discrepancies in the documents, as listed in paragraph 23 of the written submissions., Since inception the petitioner has pleaded that, had she been given a fair opportunity prior to demolition, she could have consulted an expert and taken remedial steps as required, including giving a proper response contesting the allegations and, if required, applying for regularisation under section 53(3) of the MRTP Act. The undue haste with which the bungalow was demolished deprived the petitioner of a fair opportunity to apply for regularisation, if so required. The circular dated 28 February 2020 issued by the Municipal Corporation of Greater Mumbai also clearly contemplates regularisation of internal work on payment of penalty., As held by the Delhi High Court in Sayeed Ali v. Municipal Corporation of Delhi and by this Court in G.J. Kanga v. S.S. Basha, a case of unauthorized construction does not always warrant demolition. The act of demolition is in breach of the orders passed by the Bombay High Court restraining demolition in view of the current pandemic., At a belated stage, in a your Rejoinder, the Municipal Corporation of Greater Mumbai raised a contention that the writ petition ought not to be entertained and the petitioner should be relegated to the remedy of a civil suit. There are no disputed questions of fact as alleged by the Municipal Corporation of Greater Mumbai. In its arguments the Municipal Corporation of Greater Mumbai contended that a civil suit is the norm and that entertaining a writ petition can only be in exceptional circumstances, which, according to the Municipal Corporation of Greater Mumbai, the petitioner has not made out. The reliance placed by the Municipal Corporation of Greater Mumbai on the decisions in 1995 I.C.C. (4) I.C.C. 426 and 1992 I.C.C. Online Bom 313 in support of this contention to the judgment of this Court in Abdul Karim Ahmed Mansoori v. Municipal Corporation of Greater Mumbai is misconceived., Section 515A of the Act incorporates a bar of jurisdiction and provides that any notice issued, order passed or direction issued by the Designated Officer under section 351 or 354A of the Act shall not be questioned in any suit or legal proceedings. The constitutional validity of this provision was challenged before the Bombay High Court in the case of Abdul Razzaq Sunesra v. MCGM. A Division Bench of this Court (Coram: Justice D.Y. Chandrachud and Justice I.C. Gupte) after analysing the scheme of the Act upheld the validity of the provision and held that a remedy of a petition under Article 226 of the Constitution of India is available to the petitioner., The Supreme Court has held that the High Court is justified in exercising its powers to the exclusion of all other remedies when it finds that the action of the State, or its instrumentality, is arbitrary and unreasonable and thus violative of Article 14 of the Constitution of India., In support of the submission that the petitioner is justified in filing the above writ petition for the reliefs sought therein, the petitioner also relied on the decisions of the Supreme Court in ABL International v. Export Credit; Popatrao v. State of Maharashtra; Century Spinning and Manufacturing Company v. Ulhas Nagar Municipal Council; and Sayed Maqbool Ali v. State of Uttar Pradesh., The impugned notice, order of demolition and its execution being ex‑facie illegal, the same ought to be set aside. The petitioner ought to be permitted to take such steps as are required to make the bungalow habitable so that she can immediately start occupying and using the same. As regards the restoration of the demolition work, the petitioner should be allowed to take such steps as the Bombay High Court may deem fit and proper in accordance with law, under the supervision of the Court. The petitioner is also entitled to compensation to make good the loss and damage caused to her as a result of the illegal and high‑handed action., The learned senior advocate appearing for the Municipal Corporation of Greater Mumbai made the following submissions: In view of the false denials and allegations made in the writ petition, several disputed questions of fact arise which cannot appropriately be decided in a writ. The Division Bench of this Court in Abdul Karim Ahmed Mansoori v. MCGM has held that notices under sections 351 and 354A of the Act could and should be challenged only by filing a civil suit. The petitioner in the writ petition has not made any averments or submissions regarding any special facts or circumstances for challenging the notice and order of demolition under section 354A(1) of the Act under Article 226 of the Constitution of India, instead of following the norm of challenging the same in a civil suit. The record establishes that the petitioner unlawfully carried out substantial alteration and additions to the property, made false statements and also withheld material facts. The petitioner has falsely alleged that the work was not ongoing on 5/7 September 2020 and has maintained a studied silence on when, according to her, such unlawful work had been done. The impugned notice issued under section 354A lists in its schedule the ongoing renovation and finishing work to the unauthorised portion of the premises, which is beyond the approved plan dated 7 March 1979, and items a to n give specific details of the fourteen unlawful additions and alterations. The photographs annexed to the Municipal Corporation of Greater Mumbai’s Affidavit in your Rejoinder at Exhibit‑B, pages 156‑170, show workmen with materials and sacks containing plywood pieces and construction debris, and Exhibit‑C, pages 192‑195, show the presence of five workmen and the supervisor in the property at the time of the inspection on 7 September 2020. In the petitioner’s advocate’s reply dated 8 September 2020, the petitioner falsely alleged that no work was being carried out by the client and sought seven days’ time to file a detailed reply. The petitioner did not dispute that the additions and alterations listed in the notice issued under section 354A of the Act have been carried out. In the amended writ petition the petitioner again did not dispute the alterations and additions listed in the impugned notice, nor the presence of workmen, material and tools at the property at the time of inspection on 7 September 2020. Instead the petitioner stated that she was unable to comprehend the details given in the schedule of the notice as the space required expert consultation, that the area was operationally used and could not be said to be unauthorised or illegal, and that the first inspection report does not mention any of the work purported to have been carried out, nor does it mention the presence of any material or tools found at the bungalow. The petitioner has made evasive denials regarding the unlawful work, alterations and additions carried on by her. If section 354A of the Act is to be restricted only to the actual erection work ongoing on the date of inspection and issuance of the impugned notice, it would result in an absurd situation whereby work completed yesterday or a few days ago could not be the subject matter of section 354A, and only the portion of work actually ongoing on the day of inspection could be made the subject matter of section 354A. The allegations of malice, bias and conspiracy are both inadequate to make a plea of malice and are untenable in law. The Supreme Court in Rajneesh Khajuria v. Wolfhardt Ltd. held that such allegations of malice demand proof of a high order of credibility. The untenability of the case of malice pleaded is apparent from the fact that the petitioner’s tweet referred to in paragraph 4‑A of the writ petition was made at around 05.00 p.m. on 5 September 2020, whereas the first visit to the petitioner’s bungalow by the Mukadam of the Municipal Corporation of Greater Mumbai was around 1.00 p.m. on the same day, i.e. well before the petitioner’s tweet. It is well settled that even if malice is attributed to a Government or a statutory local authority, it cannot be a case of malice in fact, i.e. personal ill‑will or spite of the Government/Local Authority. It could only mean malice in law, i.e. legal malice, or in other words, exercise of statutory power for purposes foreign to those for which it is intended. Even if this Court concludes that section 354A of the Act could not have been invoked because the erection of the unlawful additions and alterations was not ongoing or had allegedly been completed prior to 7 September 2020, the petitioner cannot and should not be permitted to reconstruct the unlawful additions and alterations which were demolished on 9 September 2020. In support of this contention reliance is placed on the decision of the Supreme Court in Municipal Corporation of Greater Mumbai v. Sunbeam High‑Tech Developers, wherein it is held that even if the corporation violates the statutory procedure while demolishing a building, but the structure is illegal, the Court should not permit the illegal structure to be re‑erected; only where the Court finds that the structure was constructed legally may reconstruction be permitted. The fact of the movables and articles allegedly damaged or destroyed during the demolition is disputed as also their value. In the absence of proper proof, such allegations and claims for compensation for loss allegedly caused cannot be entertained and adjudicated in the present proceedings., The learned senior advocate appearing for Respondent No. 4 submitted that the petitioner has impugned the action taken by Respondent No. 4 under section 354A of the Act, in his official capacity, on the ground of alleged malice against Respondent No. 4. He further submitted that Respondent No. 4 adopts the submissions of the Municipal Corporation of Greater Mumbai and makes further submissions as follows: The petitioner never added Respondent No. 4 as a party and had no allegations against Respondent No. 4 even after an exhaustive amendment to the writ petition, finally sought to take refuge under malice in fact against Respondent No. 4. The allegations of malice in fact cannot be gone into under the writ jurisdiction of the Bombay High Court under Article 226 of the Constitution of India. The allegations of malice are vague, general in nature and without material particulars. The allegations of malice in law can only be made against the State and therefore, by adding Respondent No. 4 as a party in his personal/individual capacity, the petitioner has sought to lay the foundation of the challenge on the principle of malice in fact. The Supreme Court in Regional Manager & Anr. v. Pawan Kucar Dubey held that before a case of malice in law can be affected the person who alleges it must satisfactorily establish it on proved or admitted facts; where the allegations are of malice in fact which are generally seriously disputed and the case cannot be satisfactorily decided without a detailed adduction of evidence or cross‑examination of witnesses, the aggrieved party will be left to an ordinary civil suit. This rule relating to the exercise of discretionary powers under Article 226 is also well settled. Consequently, the allegations of malice in fact cannot be gone into by this Court in writ jurisdiction and, given the pleadings of the petitioner on the issue of malice in fact, her case deserves dismissal in limine. The Supreme Court in Rajneesh Khajuria v. Wolfhardt Ltd. (supra) approved its earlier judgment in HMT Ltd. v. Mudappa and held that malice in fact cannot be attributed to the State and it could only be malice in law. Therefore, the law as it stands requires detailed adduction of evidence and cross‑examination of witnesses for malice in fact to be proved and the petitioner’s case deserves a discountenance at the threshold. The case of malice in fact requires clear and specific allegations of personal bias or oblique motives and ought not to be entertained on the basis of general and vague allegations made against the respondents or on mere conjectures or surmises. The only specific reference to Respondent No. 4 is at paragraph 2A of the writ petition, which reads: “Respondent No. 4 is the designated officer of Respondent No. 1. He has malafidely issued the impugned notice dated 07/09/2020 and has passed the impugned order dated 09/09/2020 and has acted in the manner as set out hereinafter. He is added herein in his individual capacity.” This obscurity of the petitioner brings to light that the petitioner has no case, even after two amendments to the writ petition and an array of rejoinders, to prove her case. When a person comes with a case of malice, there is a heavy burden of proof on the person who alleges such malice and, in the present case, the petitioner has not adduced any proof to substantiate the allegations of malice. The Supreme Court in Ajit Kucar Nag v. General Manager (PJ), Indian Oil Corporation, Haldia & Ors. held that the burden of proving malice is on the person making the allegations and the burden is very heavy. There is a presumption in favour of the administration that the power has been exercised bona‑fide and in good faith. It is to be remembered that allegations of malice are often more easily made than proved and the seriousness of such allegations demands proof of a high degree of credibility. The petitioner has neither made any specific averments nor adduced any material or proof or document against Respondent No. 4 to prove that the action of Respondent No. 4 was borne out of any malice, ill‑will or spite in his individual capacity. The Supreme Court in E. P. Royappa v. State of Tamil Nadu and Others held that the burden of establishing malice is very heavy on the person who alleges it; allegations of malice are often more easily made than proved and the seriousness of such allegations demands proof of a high order of credibility. All the steps and action under section 354A of the Act have been taken by Respondent No. 4 in his official capacity as a Designated Officer of the Municipal Corporation of Greater Mumbai and are in accordance with law. The inspection conducted by Respondent No. 4 on 7 September 2020 revealed large‑scale unlawful additions and alterations and also five to six workmen engaged in finishing work throughout the premises. Materials such as plywood and construction debris were found on the premises and for this reason Respondent No. 4 issued the impugned notice under section 354A of the Act. The petitioner in her reply, neither contended that the ongoing work had been stopped nor produced any permission for the said work. Since the reply of the petitioner was evasive, devoid of any merit and ex‑facie fallacious, contending that no work was going on (whereas the petition alleges that waterproofing work was going on), Respondent No. 4 passed a speaking order for demolition action under section 354A(2) of the Act. It is therefore clear that the action taken by Respondent No. 4 is in bona‑fide discharge of his statutory duties and in his official capacity as the Designated Officer, H/West. The present facts reveal that it is a clear case where the allegations of malice have been resorted to as the last refuge of a losing litigant and, apart from being vague, general in nature, devoid of material particulars and without any proof, are entirely false and misconceived. The writ petition is therefore not maintainable and, even otherwise, is devoid of any merit and liable to be dismissed., Respondent No. 5, Shri Raut, who was impleaded in the writ petition pursuant to the order dated 22 September 2020 passed by this Court, filed his Affidavit in Reply on 28 September 2020 and made the following submissions on 5 and 30 October 2020: The present writ petition involves various disputed questions of fact which cannot be adjudicated under Article 226 of the Constitution of India; hence the writ petition deserves to be dismissed with costs. Respondent No. 5 is not concerned with the demolition action taken by the Municipal Corporation of Greater Mumbai and the present dispute is only between the petitioner and Respondents Nos. 1 and 2, where Respondent No. 5 has been unnecessarily dragged. The action initiated by the Municipal Corporation of Greater Mumbai under the Act is an independent action and cannot be said to have been initiated at the behest of Respondent No. 5. Respondent No. 5 is neither the complainant nor is he concerned with the action taken against the petitioner in any manner and therefore he cannot be made liable for payment of compensation to the petitioner. The petitioner has not stated how Respondent No. 5 is concerned with the facts involved in the present writ petition and it appears that Respondent No. 5 has been impleaded only to fulfil some ulterior motives of the petitioner. Except for a vague allegation at page 8, paragraph 4A of the writ petition, which is also repeated on page 25 of the writ petition, there is no other averment made against Respondent No. 5. Respondent No. 5, in his Affidavit dated 28 September 2020, denied the allegation that he threatened the petitioner in a news video channel News Nation. Respondent No. 5 has not in any manner threatened the petitioner and has only expressed his opinion regarding the dishonesty of the petitioner in response to her statement, wherein she compared Mumbai to Pakistan‑occupied Kashmir. Respondent No. 5 has only responded to the derogatory statements made by the petitioner insulting the State of Maharashtra and Mumbai. Respondent No. 5 never responded to any of the tweets of the petitioner, and it is falsely contended that in relation to the statement made by the petitioner on 5 September 2020, Respondent No. 5 threatened the petitioner. With regard to malice in fact, the petitioner is required to aver the same specifically, and a heavy burden lies on her to prove it, as held in the case of Regional Manager v. Pawan Kucar Dubey (supra). The Supreme Court in Ratnagiri Gas & Power Private Ltd. v. RDS Projects Ltd. held that even otherwise the findings recorded by the High Court on the question of malice do not appear to be factually or legally sustainable. While we do not consider it necessary to delve deep into this aspect of the controversy, we point out that allegations of malice are more easily made than proved. The law places a heavy burden on the person alleging malice to prove it on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible therefrom. This is particularly so when the petitioner alleges malice in fact, in which event it is obligatory for the person making such an allegation to furnish particulars that would prove malice on the part of the decision‑maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the Court to found an inquiry into their veracity. The legal position in this regard is fairly well‑settled by a long line of decisions of this Court.
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Petitioner has impleaded Respondent No. 5, probably in order to divert attention from the fact that the Petitioner had carried out unauthorized construction, which was demolished by the Municipal Corporation of Greater Mumbai. The Petitioner is not entitled to any relief against Respondent No. 5 in the absence of pleadings against Respondent No. 5 and the writ petition deserves to be dismissed with heavy compensatory costs., As set out earlier, Respondent No. 5 has not dealt with the additional documents tendered in the Bombay High Court by the Petitioner at the instance of the Bombay High Court and, since the same were not dealt with in the written submissions of Respondent No. 5 dated 5 October 2020, the Bombay High Court informed the Advocate for Respondent No. 5 and gave an opportunity to file further written submissions. Thereupon, the Advocate for Respondent No. 5 filed additional written submissions on behalf of Respondent No. 5 dated 30 October 2020, wherein it is submitted as follows: The tweets made by the Petitioner do not form a part of the pleadings in the writ petition and Respondent No. 5 has not made any tweets against the Petitioner. The news report published in the newspaper Daily Imaan on 5 September 2020 states that the Maharashtra Home Minister has stated that if the Petitioner does not feel safe in Mumbai, she has no right to stay in Maharashtra. The said news report is also not part of the pleadings in the writ petition and hence the Bombay High Court may not take any cognizance of the same., The scheme of Section 351 and Section 354A of the Mumbai Municipal Corporation Act, 1888., The Petitioner has submitted that, assuming (though denying) that the works carried out by the Petitioner were unauthorized, every work set out in the impugned notice was completed and therefore existing prior to the inspection and issuance of the impugned notice. Accordingly, the Municipal Corporation of Greater Mumbai was required to give seven days’ time, as well as a personal hearing, to enable the Petitioner to seek regularisation of such internal works under Section 53(3) of the Maharashtra Regional and Town Planning Act, 1966. The Municipal Corporation of Greater Mumbai, however, submitted that the alleged unauthorized works were ongoing and therefore only a 24‑hour notice was required to be issued under Section 354A of the Act. For better appreciation of the facts and the respective submissions of the Petitioner and the Municipal Corporation of Greater Mumbai, it is necessary to explain the scheme of Section 351 and Section 354A of the Act., Section 342 of the Act makes it mandatory for every person who intends to make any additions to a building, change its existing use, or make any alterations or repairs involving removal, alteration or re‑erection of any part of the building, except tenantable repairs, to give notice to the Commissioner in a form prescribed under Section 344. After the Commissioner signifies in writing his approval for the work or fails to intimate in writing his disapproval, as provided under Section 345, the work may be carried out. Only after such approval or failure to intimate disapproval, the work can be commenced at any time within one year and with a notice of not more than seven clear days to the Municipal City Engineer of the proposed date of commencement as required by Section 347 of the Act. Section 342 has a proviso which prevents any work involving lowering of plinth, foundation or floor in a building., There are two remedial provisions in the Municipal Corporation Act, in addition to the provisions under the Maharashtra Regional and Town Planning Act, which authorize the Commissioner to act when work described in Section 342 is unlawfully commenced or carried on by any person. These are Section 351 and Section 354A of the Act. Under Section 351, if execution of any work described in Section 342 is commenced contrary to the provisions of Section 342 or 347, the Commissioner is required to serve a written notice requiring the person executing such work to show, within seven days of service of the notice, sufficient cause why such work should not be removed, altered or pulled down. The Commissioner may require the person, either personally or by an authorized agent, to attend and show cause. Upon failure to show sufficient cause, the Commissioner is empowered to remove, alter or pull down the work. Section 354A, on the other hand, empowers the Commissioner to stop any work described in Section 342 if he is satisfied that such work has been unlawfully commenced or is being unlawfully carried on upon any premises. If the work is not stopped or permission for its execution is not produced within twenty‑four hours from service of such stop‑work notice, the Commissioner has the power, under sub‑section (2) of Section 354A, to remove or pull down such work without further notice., Though there is some apparent overlap between the provisions of Sections 351 and 354A, since both use the phrase ‘any such work is commenced’ as the starting point for action, there is an obvious difference between the two, which has been judicially noticed. The differences may be summarised as follows: (i) Section 351 contemplates a show‑cause notice when execution of any work described in Section 342 is commenced contrary to the provisions of Section 342 or 347, that is, without notice to the Commissioner, without approval or intimation of disapproval from the Commissioner within thirty days of such notice, after one year from the date of delivery of such notice, without notice of the proposed date of commencement to the city engineer, or after seven days of notice of intimation to the city engineer of the proposed date of commencement. (ii) Section 354A contemplates a stop‑work notice upon unlawful commencement or carrying on of any work described in Section 342. By its very nature, Section 354A refers to on‑going work, whereas Section 351 refers to completed (whether fully or partially) work that is proposed to be removed, altered or pulled down if no sufficient cause is shown. The show‑cause notice under Section 351 is for work commenced contrary to the provisions of Sections 342 or 347. Unlike Section 354A, Section 351 does not require the Commissioner’s satisfaction about the commencement being unlawful; the Commissioner’s satisfaction can arise only after cause is shown. (iii) Under Section 354A, the Commissioner is empowered to act, under sub‑section (2), by removing or pulling down the work if the work is not stopped or permission for execution is not produced within twenty‑four hours. If the person executing the work stops the work or produces authorization, the Commissioner cannot proceed to remove or pull down the work., This scheme of Sections 351 and 354A has been explained in various judicial pronouncements. The leading authority on this subject is the judgment of the Supreme Court in Muni Suvrat Swami Jain v. Arun Gaikwad, where, whilst noticing the difference between Sections 351 and 354A of the Act, the Court observed that no notice under the provisions of Section 351 had been issued by the Municipal Commissioner in the matter against the appellant. In the special leave petition, the appellant contended that the Corporation had issued a notice to stop the work under Section 354A of the Brihanmumbai Municipal Corporation Act. No reference was made to any notice under Section 351 of the Act. It was specifically mentioned that the affidavit filed on behalf of the Corporation stated that after the service of the stop‑work notice under Section 354A no work was carried out. Respondent 1 is fully aware that the provisions of Section 354A deal with stop‑work notice whereas the provisions of Section 351 deal with show‑cause notice for demolition of an unauthorized structure. The grievance of the appellant is that without issuing a notice under Section 351 and without giving an opportunity to be heard, the structure of the temple should not have been ordered to be demolished by the High Court. The power under Section 351, in our opinion, has to be exercised only by the Municipal Commissioner, who may, under Section 351(2), either order or not order the demolition of the alleged unauthorized temple. In fact, Respondent 1, through his advocate’s letter dated 16 April 2005 (annexed to his counter‑affidavit), requested the municipal authorities to take action under Section 351. At the time of admission of the special leave petition, the provisions of Section 351 were pointed out by the learned Senior Counsel to show that the Municipal Commissioner had only been conferred the power under the said provisions to demolish or not demolish an unauthorized structure and therefore the High Court ought not to have issued mandamus for demolition of the temple before an order was passed by the Commissioner on the question of demolition. The provisions of Section 354A have nothing to do with the question of demolition., In Abdul Razzaq Sunesra v. Municipal Corporation of Greater Mumbai, after referring to Sections 351 and 354A, the Court observed the distinction as follows: The provision, as noted in the judgment of the Supreme Court in Muni Suvrat Swami Jain v. Arun Nathuram Gaikwad (2007) (2) Mh.L.J. (S.C.) 8 : (2006) 8 SCC 590, Paragraph 57, confers an enabling power on the Commissioner and a discretion if sufficient cause is not shown whether or not to demolish the unauthorized construction. Similarly, under Section 354A, if the designated officer is satisfied that the erection of a building or execution of a work has been unlawfully formed or is being unlawfully carried on, he may issue a notice to stop such erection of work forthwith. Sub‑section (2) of Section 354A deals with a situation where the erection of a building or execution of a work is not stopped upon receipt of a notice or where the person to whom the notice is addressed does not produce the approval of the competent authority within 24 hours. In such a case the designated officer is authorised without further notice to remove or pull down the building or the work. Section 354A evidently applies to emergent situations where the designated officer considers it necessary to stop work that has been unlawfully formed or is being unlawfully carried out despite issuance of a stop‑work notice., The authorities quoted above make the following position clear: Section 354A primarily deals with a stop‑work notice, whereas Section 351 deals with a show‑cause notice for demolition of an unauthorized structure; Section 354A applies to ongoing work and to emergent situations where the designated officer considers it necessary to stop such ongoing work which has been unlawfully commenced or is being unlawfully carried out despite issuance of a stop‑work notice; for any unauthorized work already carried out, the Commissioner must resort to his power under Section 351 and not under Section 354A., The guidelines laid down by the Municipal Corporation of Greater Mumbai in its circular dated 15 March 2012, and relied upon by the Corporation itself in the present matter, distinguish between two different situations. Part A deals with action under Section 354A and contains the procedure to be followed for on‑going unauthorized construction, whilst Part B deals with Section 351 and contains the procedure to be followed for existing unauthorized construction. Part A provides for a situation where any unauthorized construction is in progress contrary to the provisions of Sections 342 and 347 of the Municipal Corporation Act and where change in foundation, plinth or structural addition, alteration, load‑bearing walls endangering life and property is detected. The concerned officer detecting such work must take photographs showing the date and status of the work, prepare a panchnama/inspection report of the work in progress, make an entry to that effect in the detection register and then prepare a notice under Section 354A of the Act. On the other hand, for existing unauthorized construction, the staff of the Municipal Corporation of Greater Mumbai is mandated to proceed under Section 351, requiring the owner or occupier to show, within seven days, that the work complained of is carried out in accordance with the provisions of Sections 337, 342 and 347., The circular of 15 March 2012 thus makes it very clear when and how, consistent with the purpose of Section 354A, the staff of the Municipal Corporation of Greater Mumbai should resort to a notice under Section 354A., The question is whether the unauthorized works carried out by the Petitioner were completed and therefore existing on the date of issue of the impugned notice, or, as alleged by the Municipal Corporation of Greater Mumbai, were in progress, justifying the issuance of notice to the Petitioner under Section 354A of the Act., The Petitioner approached the Bombay High Court on the morning of 9 September 2020 with the present writ petition, which was prepared in haste and in the absence of the Petitioner in Mumbai. In the writ petition it was averred that Respondent No. 2 (Municipal Corporation of Greater Mumbai) has purported that the Petitioner is carrying out work in the suit premises whereas, in reality, no work is being carried out. The conclusion arrived at in the impugned notice that the Petitioner has carried out unauthorized development or is carrying out an unlawful erection is perverse and based upon improper and prejudicial surmises., In the amended writ petition, the Petitioner categorically stated that (i) in January 2020 the interior designing of the bungalow was fully completed by the design and architect consultancy firm The Orange Lane LLP; the Petitioner spent considerable monies towards renovating the bungalow to ensure that she could work conveniently; the decor of the bungalow received much appreciation and was widely publicised; (ii) the bungalow featured in a leading interior magazine, Elle Decor, in their April‑May 2020 issue where she opened up about the interiors of her new workplace; (iii) the Petitioner also conducted a Makarsankranti puja ceremony at the bungalow in January 2020 after the works and renovation were fully completed; this puja received wide publicity and was reported in various online articles; (iv) photographs from the puja and the magazine demonstrate that there was no erection of work or unlawful commencement of work by the Petitioner. Furthermore, the photographs in the Elle Decor edition of April‑May 2020, which were published before the impugned notice was issued by Respondent No. 1, show that the premises were fully completed in terms of all works and there was no further requirement by the Petitioner to carry out work therein; (v) the photograph annexed to the impugned notice is a mere photo of one person who was trying to control a leakage that had occurred due to waterproofing; the cause of the leakage was incessant rains during the monsoon. While the Municipal Corporation of Greater Mumbai listed fourteen alleged works ongoing in the bungalow at Item 7, there is only one photograph of a person attempting to prevent leakage from the monsoon rains., The Petitioner also relied on certain articles and photographs pertaining to the inauguration of her renovated bungalow by performing a puja on 15 January 2020, on the occasion of Makarsankranti, which appeared on the Quint and Filmfare websites (both dated 15 January 2020) and on the Hindustan Times website dated 26 May 2020. The Petitioner further relied on the April‑May 2020 issue of Elle Decor Magazine, which contains numerous photographs of the different rooms and areas of her lavishly renovated and furnished bungalow, along with her interview and that of the interior designer, detailing furniture, upholstery, carpets, lighting, sheers and flooring., Since the Municipal Corporation of Greater Mumbai, in its impugned notice dated 7 September 2020, issued to the Petitioner under Section 354A of the Act, gave only 24 hours to the Petitioner to respond, alleging that the renovation and finishing works to the unauthorized portions of the bungalow were ongoing and setting out items a to n of the notice, we proceed to examine item‑wise whether any such work was ongoing on 7 September 2020 as alleged, or whether the unauthorized works set out in the items were existing/completed works on that date as claimed by the Petitioner, for which the Municipal Corporation of Greater Mumbai was bound to give seven days’ notice and an opportunity of a personal hearing before carrying out any demolition., Items a to d in the impugned notice pertain to portions of the premises on the ground floor of the bungalow. We propose to deal with Item d first and thereafter proceed to Items a to c and then Item e onwards., Item d in the impugned notice dated 7 September 2020 reads: ‘Unauthorised pantry is constructed on ground floor.’ (i) The following photograph of the pantry on the ground floor, complete in all respects, appeared in the April‑May 2020 issue of Elle Decor Magazine. (ii) The pantry was complete and ready for use on the date of publication of the photograph, as evident from the description accompanying the photograph: ‘The ground floor safe near the spiral staircase reuses reclaimed wood. On the wall behind it are green handmade tiles sourced from Rajasthan. The coffee machine is from Smeg; Shabnam Gupta of The Orange Lane fame designed the façade. It features French openable windows and moulded design in outdoor dalmia. Metal troughs featuring greens by Tooth Mountain Nursery are seen above the customised glass light at the gate; the alfresco end of the cafeteria is levelled with brick‑patterned Kadappa flooring from Bhartia Marble. Against the landscape created by Tooth Mountain Nursery, bespoke furniture fusions and artefacts from Peacock Life are assembled around a cantilevered civil bench made with handmade tiles sourced from Rajasthan.’ (iii) The handwritten inspection report prepared by the late designated officer of the Municipal Corporation of Greater Mumbai on 7 September 2020 records that at first and second floor, internal renovation and finishing work was found in progress and the position of the entrance gate at ground floor was changed, thereby making it clear that there was no ongoing finishing/renovation work on the entire ground floor as alleged. Despite this, the pantry is mentioned as Item d in the schedule to the impugned notice issued under Section 354A, and contrary to the handwritten report, the notice alleges that unauthorised construction, addition, alteration and allocation work is in progress at G+2 Bungalow No. 5 without any permission from the competent authority. The Municipal Corporation of Greater Mumbai has not produced a single photograph showing any work being carried out by any person or workman on any portion of the ground floor, or at least in respect of the pantry. After pasting the impugned notice on the outer wall of the bungalow on 8 September 2020 at 10:03 a.m., and before pasting the demolition order at 10:35 a.m. on 9 September 2020, the Corporation had already made arrangements to carry out demolition, and the pantry was completely demolished by the time the Bombay High Court commenced hearing of the ad‑interim application at 12:30 p.m. on 9 September 2020, before the advocate for the Municipal Corporation of Greater Mumbai could convey the Court’s order to stop demolition. Photographs of the demolition of the pantry on the ground floor are shown below., Item a in the impugned notice dated 7 September 2020 reads: ‘Toilet unauthorisedly converted into office cabin on ground floor.’ (i) The photograph produced by the Municipal Corporation of Greater Mumbai shows the work as of 7 September 2020. (ii) The photograph shows that the office cabin is complete in all respects, with table, chairs, telephone, vials, air‑conditioner and CCTV camera, indicating that it is in use. (iii) The Corporation has not produced any details or photographs of any ongoing work on the ground floor premises described in Item a. (iv) The handwritten inspection report dated 7 September 2020, produced by the late officer and other officers of the Municipal Corporation of Greater Mumbai, does not record any renovation or finishing work ongoing on the ground floor; it only records that at first and second floor, internal renovation and finishing work was found in progress and the entrance gate position was changed. (v) In view of the ad‑interim order passed by the Bombay High Court on 9 September 2020, the premises described in Item a have not been demolished., Item b in the impugned notice dated 7 September 2020 reads: ‘Unauthorised kitchen is constructed in store room on ground floor.’ (i) The photograph produced by the Municipal Corporation of Greater Mumbai shows the kitchen as of 7 September 2020. (ii) The photograph shows that the kitchen is complete in all respects, with gas cylinder, dustbin, vessels on the platform, refrigerator and fire extinguisher, indicating that it is in use. (iii) The Corporation has not produced any details or photographs of any ongoing work on the ground floor premises described in Item b. (iv) The handwritten inspection report dated 7 September 2020 does not record any renovation or finishing work ongoing on the ground floor. (v) The Corporation therefore ought not to have included the unauthorised kitchen as Item b in its impugned notice. (vi) In view of the ad‑interim order dated 9 September 2020, except for demolition of the entrance door to the kitchen described in Item b, nothing else has been demolished., Item c in the impugned notice dated 7 September 2020 reads: ‘New toilets are unauthorisedly constructed beside stair‑case inside store and another in parking area on ground floor.’ (i) Two toilets are included in Item c: one beside the staircase inside the store and another in the parking area on the ground floor. Under the circular dated 15 March 2012, the Municipal Corporation of Greater Mumbai is bound to take photographs of the ongoing works, as the onus is on it to establish that the unauthorised work is ongoing. The Corporation has produced only one photograph, a side view of the toilet beside the staircase inside the store. (ii) The Corporation has not produced any details or photographs of any ongoing work on the ground floor premises described in Item c. (iii) The handwritten inspection report dated 7 September 2020 does not record any renovation or finishing work ongoing on the ground floor. (iv) In view of the ad‑interim order dated 9 September 2020, the premises described in Item c have not been demolished., Item e in the impugned notice dated 7 September 2020 reads: ‘Unauthorised room/fabric with wooden partition made in living room on first floor.’ (i) The photograph of the living room on the first floor reproduced from the April‑May 2020 issue of Elle Decor Magazine shows the completed and fully furnished living room. (ii) The description accompanying the photograph states: ‘Class black and white patterned flooring from Lorenzo leads to the panelled wooden door of the editing suite on the first floor. The suite is acoustically treated and, like the other spaces of the studio, is painted using Asian Paints. The light fixture on the right of Kangana is from Chor Bazaar. Kangana is wearing a dress by Bodife and earrings by Lune.’ (iii) A photograph of the discussion room on the second floor, adjacent but independent of the living room, is also reproduced from the same magazine. (iv) The description of the discussion room states: ‘The discussion area is furnished with pieces from Peacock Life, upholstery from A to Z Furnishing and Cona Lights fixtures.’ (v) Although the south side wall/wooden partition between the living room and the discussion room on the second floor is common, no work was being carried out in the living room on 5 or 7 September 2020 and no workmen were found in the room. The Municipal Corporation of Greater Mumbai has not produced any photograph of any work being carried out in the living room or showing any workmen present.
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From the photographs produced by the Municipal Corporation of Greater Mumbai on 5th/7th September 2020, the workman described as Workman No. 1 was carrying out work on a ladder in the discussion room, with a box of paint/polish and some pieces of cloth beside him. In the same discussion room, another workman described as Workman No. 2 is seen sitting on the floor with a box of paint/polish but not appearing to be doing any work. The petitioner explained in her Affidavit that Workman No. 2 was a helper to Workman No. 1, who is seen on the ladder. The photographs produced and relied upon by the Municipal Corporation of Greater Mumbai are reproduced hereunder, showing Workman No. 1 and Workman No. 2 near the common south side wall/wooden partition between the living room and the discussion room., Despite the living room and the discussion room being completed in all respects, the Municipal Corporation of Greater Mumbai alleged that two persons were carrying out work in the discussion room and included both the living room and the discussion room in the impugned notice, describing them as unauthorized rooms/fabric with wooden partition made in the living room on the first floor. Although the rooms are independent of each other and have been fully completed and furnished at least since April‑May 2020, the Municipal Corporation of Greater Mumbai, after pasting the impugned notice on the outer wall of the bungalow on 8 September 2020 at 10:03 a.m., and before pasting the order of demolition on 9 September 2020, had already made arrangements to carry out demolition. The two rooms—the living room and the discussion room—were completely demolished by the time the Supreme Court of India commenced the ad‑interim application at 12:30 p.m. on 9 September 2020, and before the advocate for the Municipal Corporation of Greater Mumbai conveyed the order of the Supreme Court of India to forthwith stop demolition., The photographs of the front view and the front‑side view of the demolished living room and discussion room are reproduced hereunder. Item f in the impugned notice dated 7 September 2020 reads: ‘Unauthorized seating room/fabric with wooden partition made in pooja room on first floor.’, The following photograph of the conference room on the first floor is reproduced from the April‑May 2020 issue of Elle Decor Magazine. The detailed description of the completed and fully furnished conference room in the same magazine is reproduced here for convenient reading: the conference room is enclosed with a metal and glass partition and overlooks greenery. Creating a grunge effect are the textured wall, solid wood table, floor lamp and custom seaters from Pearl of Life. From the photograph and its description, it is clear that the conference room has been complete in all respects since April‑May 2020. No photograph showing any ongoing work in the conference room on 5th/7th September 2020 was produced by the Municipal Corporation of Greater Mumbai. No workman was found in the conference room. Nevertheless, the Municipal Corporation of Greater Mumbai included the conference room in its impugned notice dated 7 September 2020 issued under section 354A of the Act as Item f and intended to demolish it on 9 September 2020. However, due to the ad‑interim order passed by the Supreme Court of India on 9 September 2020, the conference room has not been demolished to date., Item g in the impugned notice dated 7 September 2020 reads: ‘Unauthorized construction of toilets in open showk area with brick masonry walls and slab on first floor.’ From this description, it is clear that two toilets are covered by Item g. The photographs produced by the Municipal Corporation of Greater Mumbai showing the work set out in Item g of the impugned notice as on 7 September 2020 are reproduced hereunder. The photographs taken on that date show that the work is complete in all respects. The Municipal Corporation of Greater Mumbai has not produced any photograph showing any ongoing work in either of the two toilets. Photographs of the toilets being demolished by the Municipal Corporation of Greater Mumbai are reproduced hereunder., Items h and k in the impugned notice dated 7 September 2020 read: (h) Unauthorized horizontal extension of slab at front side measuring 2.6 metres on first floor; (k) Unauthorized horizontal extension of slab at front side measuring 3 metres on second floor. A photograph of the outer façade of the bungalow, which includes the horizontal slabs on the first and second floors (used for enhancing the façade with flower plants/pots), appeared on the Quint website on 15 January 2020 and is reproduced hereunder. The same photographs, along with the horizontal slabs on the first and second floors, appeared four to five months later in the April‑May 2020 issue of Elle Decor Magazine and on the Hindustan Times website on 26 May 2020. These photographs establish that the horizontal slabs on the first and second floors of the outer façade have existed since at least 15 January 2020. Nevertheless, the slabs are listed as Items h and k in the schedule to the impugned notice. The Municipal Corporation of Greater Mumbai has not produced any photograph showing any work being carried out by any person on any portion of the outer façade or, at least, in the areas where the horizontal slabs are constructed. However, after pasting the impugned notice on the outer wall of the bungalow on 8 September 2020 at 10:03 a.m., and before pasting the order of demolition at 10:35 a.m. on 9 September 2020, the Municipal Corporation of Greater Mumbai had already made arrangements to carry out demolition, including bringing a JCB to the site. The horizontal slab on the first floor was demolished by the time the Supreme Court of India commenced hearing of the ad‑interim application at 12:30 p.m. on 9 September 2020, and before the advocate for the Municipal Corporation of Greater Mumbai conveyed the order of the Supreme Court of India to forthwith stop demolition. Photographs of the demolition being carried out and completed with respect to the horizontal slab on the outer façade of the first floor are shown hereunder. The Municipal Corporation of Greater Mumbai could not carry out demolition of the horizontal slab on the outer façade of the second floor due to the ad‑interim order passed by the Supreme Court of India on 9 September 2020., Item i in the impugned notice dated 7 September 2020 reads: ‘Staircase orientation is changed on second floor.’ The photograph of the stairway (referred to as staircase orientation by the Municipal Corporation of Greater Mumbai) on the first floor, featured in the April‑May 2020 issue of Elle Decor Magazine, is reproduced hereunder. The detailed description of the fully completed staircase given on the top right corner of the photograph is as follows: a metal and glass grid partition opens out to the stairway, which is finished in black stone and brass inlay with a wooden handrail for the balustrades. The Dalmia‑finished walls are subdued to draw attention to the vertical garden created by Tooth Mountain Nursery at the back of the building. There was no ongoing work, nor any workman present near the stairway on 5th/7th September 2020. The Municipal Corporation of Greater Mumbai has not produced any photograph of a changed staircase orientation or any workman carrying out work there. Nevertheless, the Municipal Corporation of Greater Mumbai included the stairway in its impugned notice as Item i and intended to demolish it on 9 September 2020. However, due to the ad‑interim order passed by the Supreme Court of India, the stairway has not been demolished., Items j and l in the impugned notice dated 7 September 2020 read: (j) Balcony found enclosed in habitable area by recoiling partition walls on second floor; (l) Bedroom of adjoining bungalow No. 4 is merged into bungalow No. 5 by recoiling partition wall on second floor. The following photograph of the entire second floor, featured in the April‑May 2020 issue of Elle Decor Magazine, is reproduced here. The detailed description of the completed and fully furnished second floor in the same magazine, found on the top right corner of the photograph, is as follows: this floor is exclusively designed for Kangana’s use. Under timber ceiling rafters is a solid wood meeting table and classical‑inspired chairs from Pearl of Life. Above it hangs a cluster of naked pendant bulbs. The partially seen mezzanine level showcases plush couches and low seating arrangements, all by Pearl of Life. A key design aspect that follows Kangana’s feminine early‑20th‑century brief are the sculpted sheer blinds that block the afternoon sun. The photograph establishes that the work on the entire second floor, including furniture, electrical fittings, sheers and focus lamps, has been complete in all respects at least since April‑May 2020. Nevertheless, the second floor is included by the Municipal Corporation of Greater Mumbai in Items j and l of the impugned notice dated 7 September 2020 issued under section 354A of the Act. The Municipal Corporation of Greater Mumbai alleged that Workmen No. 3, 4, 5 and a site supervisor were found in the rooms. The photographs relied upon by the Municipal Corporation of Greater Mumbai are reproduced hereunder: Photograph 1 and Photograph 2. According to the Municipal Corporation of Greater Mumbai, the man in the pink shirt in Photograph 1 is Workman 3; the man in the red T‑shirt in Photograph 2 is Workman 4; the man in the grey shirt in Photograph 1 is the site supervisor; the man shown sitting in Photograph 2 is Workman 5. The workmen numbered 3 and 4 were not found doing any work. The petitioner has informed the Supreme Court of India that the person shown as Workman 3 appears to have accompanied the officers of the Municipal Corporation of Greater Mumbai, and the workman described as Workman 4, Ishwar Rajil Varma, is the caretaker of the bungalow. The person shown as Workman 5 is an electrician named Ishwar who came to check the dimmers. It is also submitted that Nikhil Iyer supervises the office and is always present in the bungalow, but he is not found doing any work. The Municipal Corporation of Greater Mumbai could not carry out demolition with respect to the second floor due to the ad‑interim order passed by the Supreme Court of India on 9 September 2020., Item m in the impugned notice dated 7 September 2020 reads: ‘Toilet of adjoining bedroom (i.e., bungalow No. 4) is found recovered and space area is used as habitable area on second floor.’ Regarding Item m, the Municipal Corporation of Greater Mumbai, which is required to take photographs of all unauthorized works along with the date and status of the work at the time of detection as per the circular dated 15 March 2012, has not produced any photograph. The premises described in Item m have not been demolished due to the ad‑interim order passed by the Supreme Court of India on 9 September 2020. However, the petitioner has produced a photograph of the premises described in Item m to completely refute the allegation made in the notice by the respondent., Item n in the impugned notice dated 7 September 2020 reads: ‘Position of main entrance gate is found changed.’ Regarding Item n, the Municipal Corporation of Greater Mumbai, which is required to take photographs of all unauthorized works along with the date and status of the work at the time of detection as per the circular dated 15 March 2012, has not produced any photograph showing any ongoing work in respect of Item n. The premises described in Item n have not been demolished due to the ad‑interim order passed by the Supreme Court of India on 9 September 2020., From the facts and photographs reproduced above, we are certain that the respondent and the officers of the Municipal Corporation of Greater Mumbai also had no doubt that the works described in Items a to n of the schedule to the impugned notice dated 7 September 2020 were existing works completed in all respects well before the inspection on 5th/7th September 2020. Except for one workman, who together with his helper appears to have been carrying out some painting, polishing and waterproofing work in the discussion room on the first floor—this discussion room was also complete in all respects at least by April‑May 2020 (photograph on page 66)—there was no other renovation or finishing work occurring in any part of the bungalow, as alleged by the Municipal Corporation of Greater Mumbai or otherwise. Consequently, the Municipal Corporation of Greater Mumbai could never have issued a notice under section 354A of the Act giving only 24 hours to the petitioner to respond. Even if the existing completed works described in Items a to n were unauthorized, the respondent was bound to issue and serve the petitioner with a notice under section 351 of the Act, giving seven days to respond, including a personal hearing. The respondent, being aware of these facts, consciously did not provide the required rough sketch of the unauthorized works either in the First Inspection Report or in the impugned notice dated 7 September 2020. The respondent also consciously did not provide any other photographs of the alleged ongoing unauthorized works to the petitioner along with the impugned notice dated 7 September 2020 and called upon the petitioner to comply with the notice without informing her what, according to him or the Municipal Corporation of Greater Mumbai, were the ongoing unauthorized works in the entire bungalow. For the same reason, the respondent, despite stating in his Affidavit dated 10 September 2020 that he had annexed photographs taken by him and his team during the inspection on 7 September 2020, did not annex a single photograph to his Affidavit, thereby delaying their production before the Supreme Court of India., The respondent also failed to annex the photographs to his Affidavit dated 17 September 2020 and produced them only when this Court, through its associate, called upon the Municipal Corporation of Greater Mumbai to do so. It is set out hereinafter how the respondent belatedly made a statement for the first time in his Affidavit dated 24 September 2020 that the Mukadam had also taken photographs during the inspection of the bungalow on 5 September 2020. When this Court called upon the respondent on 25 September 2020 to produce the camera used by the Mukadam for taking the photographs, on 28 September 2020 the respondent, who had consistently maintained that only the Mukadam visited the bungalow on 5 September 2020, through his counsel retracted his earlier sworn statements and stated that some other officer had accompanied the Mukadam on that date and had taken the photographs. Moreover, in view of the facts set out above and those that will unfold hereinafter, it will be further established that the respondent also made an incorrect statement in his Affidavit dated 17 September 2020 that he found six workmen working in the bungalow on 7 September 2020., Before proceeding further, we make it clear that the Supreme Court of India does not countenance unauthorized construction and does not approve of loose and irresponsible statements against any individual, authority or government. We do not accept as true any of the statements or allegations made by the petitioner through her tweets regarding the alleged prevailing atmosphere in the state, the state police, or the film industry. If anything, we are of the view that the petitioner should be advised to exercise restraint when, as a public‑spirited person, she airs her views on issues of public importance on social media platforms. However, we must emphasize that the subject matter of the controversy in the present petition, or indeed of the impugned order of demolition/action on the part of Respondent Nos. 1 to 4, is not the petitioner’s tweets but the action of an arm of the state while dealing with a citizen. Irresponsible statements made by a citizen in an individual capacity, however distasteful or wrong, are best ignored. Illegal and colourable actions on the part of the state or its agencies vis‑à‑vis a citizen are far too serious and damaging to society to be overlooked. Whatever the folly of an individual—whether in matters of unauthorized construction or irresponsible statements hurting the sentiments of individuals or the public in general—no action against such individual by anyone, much less by the state, can lie except within the four corners of law. By no means can a colourable exercise of power, resort to threats, use of muscle power, or causing injury by unlawful means to a person or his/her property be permitted in any civil society; such actions are the very antithesis of the rule of law., Malafide conduct: when can it be alleged? As stated above, it is contended on behalf of the petitioner that the conduct of the respondents smacks of malafides. Before setting out in detail the facts that led to the demolition of the bungalow and deciding whether the demolition may be termed malafide or malicious, we first need to examine the law on the subject. As correctly submitted by the advocates for the parties, malafide means want of good faith, personal bias, grudge, oblique or improper motive, or ulterior purpose. An administrative authority must act in a bona fide manner and should never act with improper or ulterior motives, contrary to the requirements of the statute or circumstances contemplated by law, or improperly exercise discretion to achieve some ulterior purpose. For malice in fact, it must be expressly pleaded along with supporting allegations, and the concerned person must also be impleaded. There is, however, an independent concept of malice in law. No set guidelines exist for proving malafides; they depend on the facts and circumstances of each case. The Court must scrutinize the factual spectrum and reach its own conclusion. Malice in law can be inferred from the doing of a wrongful act without any just cause or excuse, or something done without lawful excuse. It is a deliberate act in disregard of the rights of others, a conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. Malice in law does not even need to be pleaded., In Rajneesh Khajuria v. Wofkhardt Ltd (supra) the Supreme Court held that the act of transfer can be an unfair labour practice if the transfer is effectuated by malafide. The allegations of malafides have two facets: one malafide in law and the other malafide in fact. The challenge to the transfer is based upon malafide in fact as it is an action taken by the employer on account of two offers present in the conference. In State of Bihar v. P.P. Sharma (1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192) this Court held that malafide means want of good faith, personal bias, grudge, oblique or improper motive, or ulterior purpose. The plea of malafides involves two questions: (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the object’s requirements and foundations of a valid exercise of administrative power. As far as the second aspect is concerned, there is a power of transfer vested in the employer in terms of the letter of appointment. Even under the provisions of the Act, the transfer itself cannot be said to be an unfair labour practice unless it is effectuated by malafide. Therefore, to sustain a plea of malafide there must be an element of personal bias or an oblique motive. The Court held that malafides means want of good faith, personal bias, grudge, oblique or improper motive, or ulterior purpose. The administrative action must be said to be done in good faith if it is done honestly, whether negligently or not. An action done honestly is deemed to have been done in good faith. An administrative authority, therefore, must act in a bona fide manner and should never act for an improper motive or ulterior purpose or contrary to the requirements of the statute, or the basis of the facts contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of malafide involves two questions: (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the object, requirements and foundations of a valid exercise of administrative power., The action taken must therefore be proved to have been made malafide for such considerations. Mere assertion or a vague or bald statement is not sufficient; it must be demonstrated either by admission or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken malafide for such considerations, or as fraud on power or colourable exercise of power, it cannot be allowed to stand. Malafide in law could be inferred from the doing of a wrongful action intentionally without any just cause or excuse, or without a reasonable relation to the purpose of the exercise of statutory power. Malafide in law is not established from the omission to consider some documents said to be relevant., Equally, reporting the commission of a crime to the Station House Officer cannot be held to be a colourable exercise of power with bad faith or fraud on power. There are no grounds made out or shown to us that the first information report was not lodged in good faith. State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426) is an authority for the proposition that the existence of deep‑seated political vendetta is not a ground to quash the FIR. In that case, despite the respondent's attempt to prove by affidavit evidence corroborated by documents of the malafides and even on facts as alleged no offence was committed, this Court declined to go into those allegations and relegated the dispute for investigation. Unhesitatingly, I hold that the findings of the High Court in Prem Prakash Sharma v. State of Bihar (1990 SCC OnLine Pat 105 : (1990) 2 PLJR 404 (2)) that the FIR is vitiated by the malafides of the administrator and that the charge‑sheets are the result of the malafides of the informant or investigator constitute a fantastic and obvious gross error of law., In Prabodh Sagar v. Punjab SEB (2000) 5 SCC 630 : 2000 SCC (L&S) 731, this Court held that the mere use of the expression malafide would not by itself make the petition entertainable. The Court observed (SCC p. 640 para 13): ‘Incidentally, it should be noted that the expression malafide is not meaningless jargon and it has its proper connotation. Malafide can only be appreciated from the records of the case in the facts of each case. There can possibly be no set guidelines regarding the proof of malafides. Malafides, where alleged, depend upon their own facts and circumstances. There must be factual support pertaining to the allegations of malafides; unfortunately, there is none. Mere use of the words malafide by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and draw its own conclusion, i.e., exactly what the High Court has done, and that is the reason the narration has been noted in this judgment in extenso.’, In HMT Ltd. v. Mudappa [(2007) 9 SCC 768], the Supreme Court, quoting from State of A.P. v. Goverdhanlal Pitti (2003) 4 SCC 739, held that legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done out of ill feeling or spite. The Court explained the concept of legal malice, referring to Words and Phrases Legal (Defined) 3rd Edn., London Butterworths 1989: ‘The legal meaning of malice is ill will or spite towards a party and any indirect or improper motive in taking an action. This is described as malice in fact. Legal malice or malice in law means something done without lawful excuse. In other words, it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done out of ill feeling or spite. It is a deliberate act in disregard of the rights of others, a conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. It was observed that where malice is attributed to the State, it cannot be a case of malice in fact or personal ill will or spite on the part of the State; it can only be malice in law, i.e., legal malice. If the State wishes to acquire land, it must exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence notification was issued. Such an action could not be held malafide.’, In Union of India v. Ashok Kumar (2005) 8 SCC 760 : 2006 SCC (L&S) 47, it was held that allegations of malafides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility. The Court held (SCC p. 770 para 21): ‘Doubtless, a party who seeks to invalidate or nullify an act or order must establish the charge of bad faith, abuse or misuse by the authority of its powers. While an indirect motive or purpose, or bad faith or personal ill will, is not to be established except on clear proof thereof, it is obviously difficult to establish the state of a person’s mind; that is what the employee has to establish in this phase, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has in fact been acting malafide in the sense of pursuing an illegitimate aim.’, It cannot be overlooked that the burden of establishing malafides is very heavy on the person who alleges it. Allegations of malafides are often more easily made than proved, and the seriousness of such allegations demands proof of a high order of credibility.
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As noted by the Supreme Court of India in E.P. Roappa v. State of Tamil Nadu (L&S) 165, courts would be slow to draw dubious inferences from incomplete facts placed before them, particularly when the imputations are grave and are made against the holder of an office which has a high responsibility in the administration. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC). In State of Andhra Pradesh v. Govardhanlal Pitti, the Supreme Court explained malice in law as follows:, The legal meaning of malice is ill‑will or spite towards a party and an indirect or improper motive in taking an action. This is sometimes described as malice in fact. Legal malice or malice in law means something done without lawful excuse. In other words, it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others., Where malice is attributed to the State, it can never be a phase of personal ill‑will or spite on the part of the State. If at all it is malice in the legal sense, it can be described as an act which is taken with an oblique or indirect object. Professor Wade, in his authoritative work on Administrative Law (8th edition, p. 414), based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described as mala fide if it seeks to acquire land for a purpose not authorized by the Act. The State, if it wishes to acquire land, should exercise its power bona fide for the statutory purpose and for none other., Legal malice therefore on the part of the State, as attributed to it, should be understood to mean that the action of the State is not taken bona fide for the purpose of the Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings., In State of Punjab v. Gurdial Singh, the Supreme Court of India expounded on what amounts to mala fide exercise of power and held that in cases of malice in law, neither any pleading nor any strict proof is necessary. The Court held as follows: The question then is what is mala fides in the jurisprudence of power? Legal malice is meaningless unless the jurist keeps it separate from the popular concept of personal life. Bad faith invalidates the exercise of power, sometimes resulting in a fallacious exercise or fraud on power, and often overlaps motives, passions and satisfactions in the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal., If the use of the power is for the fulfillment of a legitimate object, the action or falsification by malice is not illegal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, driven by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for which the power is vested, the act becomes a fallacious exercise and is not deceived by illusion., In a broad sense, Benjamin Disraeli said: \I repeat that all power is a trust for which we are accountable; it springs from the people and for the people.\ Fraud on power voids the order if it is not exercised bona fide for the designed end. Fraud in this context is not equal to moral turpitude and embraces all phases in which the impugned action is to affect some object beyond the purpose and intent of the power, whether malice‑laden or even benign. If the purpose is perverted, the resultant act is bad. If considerations foreign to the scope of the power or extraneous to the statute enter, they vitiate the action; mala fides or fraud on power vitiates the acquisition or other official act., In Kalabharti Advertising v. Hecant Narifhania, the Supreme Court observed as follows: The State is under obligation to act fairly without ill will or malice in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others. Where malice is attributed to the State, it can never be a phase of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is intended by law. It signifies a flagitious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, whose intent is manifested by its injurious acts., See ADM Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207]; S.R. Venkataraman v. Union of India; State of A.P. v. Govardhanlal Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941]; BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567]; and W.B. SEB v. Dilip Kumar Rao [(2007) 14 SCC 568]. Passing an order for an unauthorised purpose constitutes malice in law. (See Punjab SEB Ltd. v. Zora Singh [(2005) 6 SCC 776] and Union of India v. V. Ramakrishnan)., In S.C.T. S.R. Venkataraman v. Union of India, the Supreme Court of India held as follows: We have noted the plea of malice that the appellant raised in her writ petition. Although she alleged malice against V.D. Vyas, under whom she served for a very short period and received an adverse report, there is nothing on record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is therefore not the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer v. Shields [(1914) AC 808‑813]: A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he acted with an innocent mind; he is taken to know the law and must act within the law. He may therefore be guilty of malice in law although his state of mind is formed that he acts unintentionally and, in that sense, innocently. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause., It is not necessary to examine the question of malice in law in this phase, for it is settled law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its holder was acting in good faith or in bad faith. As Lord Goddard C.J. stated in Pilling v. Abergele Urban District Council [(1950) 1 KB 636 : (1950) 1 All ER 76], where a duty to determine a question is conferred on an authority which states its reasons for the decision, and the reasons show that it has taken into account matters which it ought not to have taken into account or has failed to consider matters which it ought to have considered, the appellate court may adjudicate on the matter., The principle applicable in such cases has been stated by Lord Esher M.R. in Queen on the Prosecution of Richard Westbrook v. The Vester of St. Pancras [(1890) 24 QB 1]. If persons who have to exercise a public duty, in exercising their discretion, take into account matters which the Courts consider not proper for the guidance of their discretion, then in the eyes of the law they have not exercised their discretion. This view has been followed in Sadler v. Sheffield Corporation [(1924) 1 Ch 483]., In Birendra Kumar Singh v. Union of India, the Calcutta High Court expounded on when malice can be inferred from existing facts and held as follows: Malice in fact – piercing the veil. All these facts are to be considered in the background of the present phase where malice and mala fide have been alleged. In fact the Court is not supposed to question the decision taken by the Management, but there might be reasons which might impel the Court to pierce the veil and discover the truth and infer malice in fact or mala fide., In a phase where there are materials from which the Court can infer malice in fact or mala fide, if it appears that such malice or mala fide exists when allegations are made and materials are produced to force a certain opinion, the Court must endeavour to recover the truth and pierce the veil. The Court has the right to assess the material placed before it and arrive at a conclusion even on facts. When malice or mala fide is sought to be covered under the grounds of administrative exigencies or executive reasons, there may not be any direct evidence to establish it. In such circumstances, the Court is empowered to draw inference on the basis of the facts disclosed and materials produced before it and arrive at a conclusion, which, in its opinion, may not be doubtful and should be supported by justifiable reasons., The Court cannot shut its eyes and avoid its responsibility when materials are placed before it. It cannot refuse to act, in a given circumstance, in order to discover the truth and dispense justice. People come to the Court to seek justice. The Court has a responsibility to dispense justice. The party against whom allegations are made is expected to cover up its decision or action and dress it up to give it a colour of justification. Whether the action is colourable must be discovered by the Court on the basis of materials looking beyond the apparent., In Aravind Dattatraya v. State of Maharashtra [AIR 1997 SC 3067; (1997) 6 SCC 169], it was held that it is most unfortunate that the Government demoralises the officers who discharge their duties honestly and diligently and bring to book the persons indulging in black marketing and contraband liquor, and that the transfer in the said phase was not in public interest but was a phase of victimisation of an honest officer, and that the order of transfer was a mala fide exercise of power aimed at demoralising an honest officer discharging his duties of a public office., In the facts and circumstances of this phase as presented by Mr. Mukherjee, it appears to the Court that there are materials to conclude that this is also a phase of victimisation since the petitioner had the advantage of detecting the shortage of stock of fuel, irregularities in the purchase of sand and transportation costs, etc., An order of transfer within a span of four months when the petitioner was instrumental in bringing to surface the irregularities in the administration definitely appears to be an attempt to ease him out of the scenario. These facts appear to be squarely covered by the ratio laid down in Aravind Dattatraya (supra)., In Rajendra Rao v. Union of India [(1993) 1 SCC 148; AIR 1993 SC 1236], the Apex Court held that it may not always be possible to establish malice in fact in a straightforward manner; in an appropriate phase it is possible to draw a reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. However, for such inference there must be a firm foundation of facts, pleadings and evidence. Inference cannot be drawn on the basis of insinuation and vague suggestions., Having regard to the facts and circumstances of this phase, there are materials from which a reasonable inference can be drawn about the malice in fact or the mala fide as discussed hereinbefore. The inference that this Court is attempting to draw appears to be based on a firm foundation as disclosed in the pleadings and the materials placed before this Court by the respective parties., In C. Ramanathan v. Acting Zonal Manager, PCI Madras [1980 (1) LLJ 1; 1980 (1) SLR 309], the Madras High Court held that in a given circumstance, to find the mala fide in an order of transfer asserted by the Government, the Court must break the shell of innocuousness with which the order is wrapped and pierce the veil to discover the operative reason behind the order. The Court found that the order was a colourable exercise of power surcharged with bad faith and motivated by irrelevant considerations., In S.V. Singh v. Union of India [1992 CWN 276], this Court held that the Court must investigate whether the order of transfer is tainted with malice or motive and can be said to be an order passed in administrative exigencies. The Writ Court can break the shell to see for itself whether there is, in fact, a malice or mala fide move on the disclosure of documents by the parties. A definite motive would be a necessary ingredient to bring the charge of malice., In S. Pratap Singh v. State of Punjab [AIR 1964 SC 72], the Apex Court held that every power vested in a public body or authority must be used honestly, bona fide and reasonably. When a dominant purpose is found to be unlawful, the action itself is unlawful. It cannot be cured by showing that it had another lawful purpose. A power is vested in the authority to accomplish a definite public purpose, i.e., to ensure probity and purity in public services. If the context suggests that such power is exercised to achieve an alien purpose, the action is mala fide, colourable and liable to be struck down., The mala fide cannot be established by direct evidence. It cannot be discerned from the order impugned or from the note made in the file preceding the order. If bad faith vitiates the order, the case can be deduced as a reasonable and inexorable inference from proved facts., If such power is exercised by the Government, which has exclusive authority to do so, the case can be inferred within such circumstances even though denied by the authorities on the basis of an asserted absence of oblique motive., The Court is not precluded from enquiring into the truth of the allegations, thereby affording appropriate relief to the party aggrieved by the abuse of power., In Reserve Bank Employees v. State of Maharashtra, this Court held as follows: There is a difference between malice in fact and malice in law or legal malice. The expression legal malice means and implies that the action of the State is not in good faith and not for the purposes of the Act. The action in the present phase does not appear to be aimed at execution of works of improvement or development of a slum area per se, but rather to enable respondent No. 8 to develop the said property for commercial gains, notwithstanding the civil Court finding no prima facie merit in respondent No. 8's claim against the petitioner for the development of the said property., When malice is attributed to the State, it may not be a phase of personal ill‑will or spite on the part of the State. It is sufficient that power is exercised for some collateral or oblique purpose. It is sufficient that the authorities who are custodians of power are influenced in its exercise by considerations other than those for which the power is vested. It is sufficient that in the exercise of power the authority is swayed by extraneous considerations irrelevant to the entrustment. It is sufficient if the exercise of power is designed to attain ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal., The principles that can be deduced from the aforesaid judgments, as well as the judgments referred to in the respective written submissions of the parties, are as follows:\n\ni. An action is said to be vitiated by malice in fact when it lacks good faith and is motivated by personal bias, grudge, oblique or improper motive, or ulterior purpose. Malice in fact needs to be pleaded; the party against whom malice in fact is alleged must be impleaded, and an opportunity must be given to that party to respond to the allegations. The allegations must be established before the Court.\n\nii. An order or action can be said to be vitiated by malice in law in one or more of the following circumstances:\n (a) The doing of a wrongful act intentionally without any just cause, excuse, or without a reasonable relation to the purpose of the exercise of statutory power.\n (b) The attainment of ends beyond the sanctioned purposes of power by simulation or pretence of gaining a legitimate goal, when the custodian of power is influenced in its exercise by considerations outside those for which the power is vested.\n (c) A deliberate act in disregard of the rights of others.\n (d) An act taken with an oblique or indirect object.\n (e) Conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, manifested by injurious acts.\n (f) Passing an order for an unauthorised purpose.\n\niii. Malice in law need not be pleaded and does not require proof. For malice in law, intention is immaterial.\niv. There are no strict guidelines for proving malice where material exists from which the Court can infer malice. The Court is empowered to draw inference on the basis of facts disclosed and material produced before it and to arrive at a conclusion which, in its opinion, may not be doubtful and can be supported by justifiable reasons. The party against whom allegations are made is expected to cover up its decision or action and dress it up to give colour or justification, but the Court must discover whether the action is colourable on the basis of material, looking beyond the apparent. Malice cannot be established by direct evidence alone; it may not be discernible from the order impugned or from the note made in the file preceding the order, and can be deduced as a reasonable and unavoidable inference from proven facts., The facts leading to the demolition of the said bungalow, and whether the same disclose any malafides on the part of the respondents: We now proceed to examine the facts leading to the demolition of the petitioner's bungalow, and whether the facts disclose any malafides on the part of the respondents., 17.1. Statements / tweets of the petitioner: As set out in paragraph 4.17 above, the petitioner has made various tweets, the compilation of which is tendered in Court and taken on record as described in paragraph 3.2. In her tweets dated 30 April 2020, 1 September 2020 and 2 September 2020, the petitioner criticized the Mumbai Police, stating that she was more scared of them than of movie goons in Mumbai and that she would need security either from the Government of Himachal Pradesh or directly from the Central Government. In her tweet dated 3 September 2020, she stated that Shri Sanjay Raut, Respondent No. 5, had given her an open threat and asked her not to return to Mumbai, and she questioned why Mumbai was feeling like Pakistan‑occupied Kashmir. On 4 September 2020, she tweeted that many people were threatening her not to return to Mumbai, so she decided to travel to Mumbai on 9 September 2020, concluding with the phrase “kisi ke baap mein himmat hai toh rok le.” Thereafter, the petitioner was given protection under Y‑Plus Category by the Central Government to travel to Mumbai., 17.2. Outbursts of Shri Sanjay Raut, Respondent No. 5, on 5 September 2020 and the news report in Saamna dated 10 September 2020, the day after the demolition:, 17.2.1. Shri Sanjay Raut is a Member of the Rajya Sabha and the chief spokesperson of the Shiv Sena, a party that is part of the Government of Maharashtra and the ruling party in the Municipal Corporation of Greater Mumbai (MCGM). He is also the Executive Editor of the Marathi daily newspaper Saamna. On 3 September 2020, the petitioner tweeted that Sanjay Raut, a Shiv Sena leader, had given her an open threat and asked her not to come back to Mumbai after the Azadi protests in Mumbai streets, and she questioned why Mumbai was feeling like Pakistan‑occupied Kashmir., This statement appears to have angered Shri Sanjay Raut to such an extent that on 5 September 2020 a news report appeared on the front page of Saamna with the headline “Joining issues with Mumbai will prove costly.” The report stated that the petitioner, Kangana Ranaut, referring to Mumbai as Pakistan‑occupied Kashmir, thereby joining issues with Mumbai and Mumbaikars, would incur a cost for her. The report quoted Shri Raut as saying that Shiv Sena would perform ‘Shraddha’ (obsequies) for such enemies of Maharashtra., The news report is addressed in the written submissions filed on behalf of Shri Raut, wherein the report or its contents have not been denied or disputed, except to the extent of stating that it reports the Maharashtra Home Minister’s comment that if the petitioner did not feel safe in Mumbai, she had no right to stay in Maharashtra. The submissions also contend that the news report is not part of the pleadings and the Court may not take cognizance of it., It is pertinent to note that the news report forms part of a compilation that was submitted in Court on 28 September 2020, as described in paragraph 3.2. No objection was raised on behalf of Shri Raut when the compilation was tendered in Court, taken on record and relied upon during arguments., 17.2.2. The petitioner, along with the writ petition, also produced a DVD containing a video clip of an interview of Shri Raut (in Hindi) by a reporter of the News Nation channel. The English version of the interview is set out in paragraph 4.20 of this order. The video was played in Court, and when the reporter asked Shri Raut whether his party, i.e., Shiv Sena, would stop the petitioner from entering Mumbai and whether some leaders had said they would stop her and beat her, Shri Raut replied that Shiv Sena is not just the jagir of Maharashtra; all parties are there, all persons are there, and all of us will meet and decide. Thus, Shri Raut’s answer clearly conveys that all persons, including himself, will meet and decide whether to stop the petitioner from entering Mumbai and whether to beat her., In response, Shri Raut was reminded by the reporter that it was his government and was asked whether he would take any action against the law. Shri Raut unabashedly retorted, “Kya hota hai kanoon?” (What is law?) and questioned whether the girl had respected the law in what she had said. He then proceeded to abuse the petitioner and reprimand the channel’s correspondent, asking, “Why are you advocating for the harakhor girl who has insulted Shivaji Maharaj and Maharashtra? Is our channel supporting her?”, 17.2.3. Shri Sanjay Raut has not denied or disputed the contents of the video clip containing his interview. In his affidavit, he only refuted the allegation that he threatened the petitioner and, as a cover‑up, attempted to explain that the use of the word ‘harakhor’ was in the context of her dishonesty and that he had merely responded to the derogatory statement made by the petitioner insulting the state of Maharashtra and Mumbai. This explanation is not accepted., 17.2.4. Immediately on the day after the demolition, i.e., 10 September 2020, the newspaper Saamna, of which Shri Raut is the Executive Editor, reported the demolition on its front page in a celebratory manner, with the headline “Uprooted.” The report stated that the petitioner, who was unnecessarily tarnishing the name of the Mumbai Police by comparing Mumbai with Pakistan‑occupied Kashmir, had received a fitting blow., 17.2.5. The aforementioned response of Shri Raut and the language he used show that because the petitioner tweeted on 3 September 2020 that she was threatened by Shri Raut and questioned why Mumbai was feeling like Pakistan‑occupied Kashmir, Shri Raut, without regard to the rule of law, was determined to teach a lesson to the petitioner. Such conduct certainly does not befit a leader like Shri Raut, who is also a parliamentarian., 17.3. On 5 September 2020, the same day as Shri Raut’s outburst in Saamna and his interview to the News Nation channel, Shri Keluskar, the Mukadam of the MCGM, arrived at the petitioner’s bungalow and detected alleged ongoing works, which the MCGM had failed to notice when the entire bungalow, including its large outer façade, was renovated and had been standing complete in all respects at least since January 2020., 17.3.1. As stated above, Late Respondent No. 4, in his affidavit, relied upon the circular issued by the MCGM on 15 March 2012, which sets out instructions for the staff of the MCGM to follow for demolition of unauthorized constructions and warns the staff of serious action if the instructions are not followed carefully. For demolition of the ongoing unauthorized construction alleged in the present case, the following instructions are applicable:\n(i) The unauthorized construction detected should be contrary to the provisions of Sections 342 and 347 of the Act and must involve changes in foundation, plinth, structural addition, alteration, load‑bearing walls, or endanger the life and property of occupiers or others.\n(ii) The work can be detected during the usual round of inspection or upon receipt of a complaint from any member of the public.\n(iii) The concerned officer detecting such unauthorized work shall take photographs showing the date and status of the work and prepare a panchanama/inspection report of the work in progress.\n(iv) The officer shall immediately make an entry in the detection register and prepare a notice under Section 354A of the Act, showing a rough sketch of the unauthorized construction, obtain the signature of the officer authorized to sign such notice, and serve it on the person/owner carrying out the construction.\n(v) A copy of the notice must be sent to the local police station for registering the complaint.
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Respondent No.4, the designated officer of the Municipal Corporation of Greater Mumbai (MCGM), West Ward, stated on oath in his affidavits dated 10 September 2020 and 17 September 2020 that on 5 September 2020 the Officer (Mukadam) conducting a routine inspection in the area noticed construction work taking place at the said bungalow and prepared a detection report at about 1.00 p.m. The affidavits do not rely on the detection report, nor mention any photographs taken by the Mukadam on that date, nor any panchanama or inspection report required to be prepared by the Mukadam, nor any entry that the Mukadam was bound to make in the detection register as mandated by the MCGM circular dated 15 March 2012. The affidavits also do not state that the Mukadam was satisfied that the unauthorised construction was contrary to sections 342 and 347 of the Act., In view of the above requirements set out in the MCGM circular, the Bombay High Court directed its associate to request the MCGM to forward the detection report prepared by the Mukadam on 5 September 2020 and the photographs taken by him of the unauthorised works on that day. The MCGM subsequently forwarded the purported detection report dated 5 September 2020, captioned as a Service Report. The Bombay High Court noted that the reason for captioning the detection report as a Service Report was not explained in any of the affidavits., In the purported detection report, the Mukadam stated that on 5 September 2020, while distributing notices under Section 353B in the old buildings, he inspected the said bungalow, saw some sacks of rubble/kachara, entered the bungalow because the gate was open, and observed that work was in progress. This statement contradicts the affidavit of Respondent No.4, which said the Mukadam merely noticed construction work during a routine inspection., The Bombay High Court observed that the purported detection report does not mention the nature of the work found in progress, does not include any photographs, does not contain a panchanama or a detection report prepared by the Mukadam, and makes no entry in the detection register regarding the alleged unauthorised construction., Along with the report, the MCGM forwarded two photographs purportedly taken on 5 September 2020. These photographs were relied upon by Respondent No.4 in his affidavit dated 24 September 2020, where he stated on oath that the Mukadam had taken photographs on that date. The photographs lacked date and time as required by the MCGM circular of 15 March 2012, and no photograph showing the rubble that allegedly prompted the Mukadam to enter the bungalow was produced. The Bombay High Court, sensing mischief, asked senior Advocate Mr. Chinoy of the MCGM on 25 September 2020 to confirm whether the photographs were taken by the Mukadam. Mr. Chinoy initially confirmed that they were, but the Court later learned that the photographs were actually taken by a sub‑Engineer of the MCGM who accompanied the Mukadam. No prior report, affidavit, or oral argument had indicated the presence of a sub‑Engineer., The dishonesty of Respondent No.4 is evident from the fact that his affidavits dated 10 and 17 September 2020 made no reference to any photographs taken by the Mukadam, yet after the Bombay High Court required the photographs, he relied on photographs without date or time. Subsequently, in his affidavit dated 24 September 2020, he claimed the photographs were taken by the Mukadam, a claim now exposed as false. The Court finds that both Respondent No.4 and the Mukadam deliberately misled the Court, breaching the guidelines of the MCGM circular of 15 March 2012., On 7 September 2020, Respondent No.4, together with his team of MCGM officials, inspected the bungalow and prepared a handwritten inspection report at the site. The report recorded several discrepancies observed beyond the approved plan, including conversion of a ground‑floor toilet into an office, unauthorised rooms with wooden partitions, unauthorised construction of toilets in open areas, unauthorised extensions of slabs on the first and second floors, and changes to stair‑case orientation. The report concluded that internal renovation finishing work was found in progress on the first and second floors and that the entrance gate on the ground floor had been altered., The handwritten inspection report dated 7 September 2020 indicates that the works on the ground, first and second floors were completed and therefore existing works. However, within a few hours the First Inspection Report was uploaded by Respondent No.4 on the Removal of Encroachment Department Tracking and Data Management System (RETMS). In this report, the description of internal renovation finishing work on the first and second floors was altered to state that unauthorised construction, addition, alteration and amalgamation work was in progress at the G+2 bungalow without permission from the competent authority. The handwritten report provided no particulars or description of the alleged works on the first and second floors, nor any photographs or panchanama as required by the circular of 15 March 2012., No photographs or panchanama were annexed to the affidavit dated 10 September 2020, despite the affidavit claiming that photographs taken on 7 September 2020 were annexed. The photographs were only produced in the third week of September after the Bombay High Court’s associate called for them., Respondent No.4 was extremely reluctant to forward copies of the photographs or a rough sketch of the work in progress to the petitioner and the Court, apparently because the photographs showed that all unauthorised works were completed and only one workman with a helper was performing painting/polishing work, contrary to the affidavit dated 17 September 2020 which claimed six workmen were carrying out unauthorised works., The First Inspection Report dated 7 September 2020, uploaded on RETMS, shows the date of detection as 7 September 2020 at 15:27 p.m., despite Respondent No.4’s affidavit stating that the Mukadam detected the unauthorised works on 5 September 2020. No explanation has been provided for the absence of an entry for 5 September 2020 in the detection register, and the Court finds the explanation that the upload time equals the detection time to be highly doubtful., Item No.11 of the First Inspection Report refers to an inspection image that has never been produced by the MCGM, and the Court is not informed as to the identity of the person shown in that image., Item No.14 of the First Inspection Report, captioned \Stage of Construction and Material Used\, contains a table with nonsensical entries: \Others 0.1 0.1 0.1 Unauthorised construction, addition, alteration and amalgamation work is in progress at G+2 Bungalow No.5 without any permission from competent authority.\ The particulars provided under the columns for name, structure length, width, height and material make no sense and expose an attempt to create a false record of unauthorised work., Items 15 and 16 of the First Inspection Report ask whether the construction is an extension to the existing structure or an independent structure, and whether it is an addition or alteration to the existing structure. Respondent No.4 answered both in the negative, yet Item 14 and Item 27 state that unauthorised construction, addition, alteration and amalgamation work is in progress, a contradiction also evident in the handwritten inspection report which described internal renovation finishing work as being in progress., Item No.4 of the First Inspection Report, which requires the name of the inspection officer, was left blank., Item No.23, which asks whether the structure is occupied and, if so, since when and the name(s) of the occupier, was answered in the negative, which is incorrect. Item No.24, which requires the name(s) and address(es) of the owner(s), was also left blank., Although the First Inspection Report requires a sketch of the unauthorised construction, no sketch was provided. Instead, a photograph of a person doing polishing/painting work in the discussion room was placed under the caption \Sketch (not on scale)\., Respondent No.4 issued a notice to the petitioner on 7 September 2020 under Section 354A of the Act, pasted on the outer door on 8 September 2020 at 10:03 a.m. The notice, as required by the MCGM circular of 15 March 2012, should have included a rough sketch of the unauthorised construction, but no sketch was provided; the photograph of the person on a ladder was used instead. Respondent No.4 later annexed a sketch to his affidavit dated 24 September 2020, which was too late to be accepted., Section 354A of the Act requires the recipient of the notice to stop the unauthorised work or produce permission within 24 hours. Clause 4 of the impugned notice states that if the petitioner fails to stop the work or produce permission within 24 hours, the respondent will, without further notice, cause the building or work to be removed or pulled down. This makes the notice defective and in violation of Section 354A., The impugned notice describes the alleged unauthorised works as ongoing renovation and finishing work on the ground plus two floors, contradicting the handwritten inspection report which stated that internal renovation finishing work was found only on the first and second floors., The handwritten inspection report under the heading \Ground Floor\ did not mention an unauthorised kitchen being constructed, whereas Item b of the impugned notice describes an unauthorised kitchen on the ground floor. Respondent No.4 explained that the handwritten report mentioned \U/A additions and alterations with partition walls\, which was later described more specifically in the notice. The Court finds that the respondent could not have altered the description of any part of the bungalow that was not mentioned in the handwritten report., Only one photograph – a person standing on a ladder with a brush – was reproduced in the impugned notice. No other photographs of alleged unauthorised work were forwarded to the petitioner, and no sketch of the unauthorised works was prepared, despite the requirement in the MCGM circular of 15 March 2012 and Clause 7 of the notice. Nevertheless, Respondent No.4 expected the petitioner to answer the notice without being informed of the alleged works., The petitioner’s advocate replied on 8 September 2020, at 4.00 p.m., the same day the notice was affixed. The petitioner, who was not in Mumbai, was asked to respond without being provided photographs or a sketch of the alleged unauthorised works. The advocate recorded that no work was being carried out by the client, that the notice was a \stop work notice\ issued to intimidate the client, and that all allegations made by the MCGM would be dealt with legally. The advocate also requested a maximum of seven days for the petitioner to respond, warned the respondent against misusing his dominant position, and urged that justice be served.
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Late by his letter dated 7th September 2020 directs the Duty Officer of Khar Police Station to drive out unnamed persons from the bungalow before passing his Order of Demolition dated 9th September 2020, without dealing with the reply of the Petitioner's Advocate dated 8th September. Section 354A(2) of the Maharashtra Municipal Corporations Act reads: If the erection of the building or execution of the work is not stopped as required by the Commissioner or permission approved by the competent authority in favour of the erection of the building or execution of the work is not produced within twenty‑four hours from the service of notice referred to in subsection (1), the Commissioner may, without further notice, remove or pull down the building or work and the expenses thereof shall be paid by the person or owner of the building or work. The Commissioner may also direct that any person directing or carrying out such erection or work shall be removed by a police officer from the place where the building is being erected or the work is being executed., The above provision empowers the Municipal Commissioner to remove or pull down unauthorized works and remove any person directing or carrying out the unauthorized works, by the local police, after the noticee fails to comply within 24 hours. In the instant case, Mr. Late did not wait for the statutory period of 24 hours. He pasted the impugned notice dated 7th September 2020 on the outer door of the Petitioner's bungalow on 8th September 2020 at 10:03 a.m. The Advocate for the Petitioner forwarded his reply to the notice at 4:00 p.m. on the same day. Mr. Late rejected the Petitioner's explanation only by his Order of Demolition dated 9th September 2020. However, Mr. Late invoked Section 354A(2) of the Act at 10:30 a.m. on 8th September 2020 vide his letter addressed to the Duty Officer, Khar Police Station, which reads: With reference to the above notice I am satisfied that the persons mentioned have unlawfully carried out or been unlawfully faring on erection of building/unauthorized work located at the above address..., The letter directs that the persons be driven out by (our) officer from the place of the site, that vigilance be kept and similar action taken against any other persons who may continue the work, that a report be sent to the officer, that police be provided for undertaking demolition, and that if any person is habitually involved in such activities, prosecution be initiated under the Maharashtra Pollution Control Board Act and other statutes. The letter, however, does not name any persons carrying out the unlawful work. Mr. Late was aware that only one workman with a helper was carrying out polishing, painting and waterproofing work in the discussion room on the first floor of the bungalow, yet he did not name them in any of his reports, notices or letters to the police., Mr. Late also avoided stating in his affidavit dated 10th September 2020 how many workers were found working in the bungalow. In his affidavit dated 17th September 2020 he stated that six workmen were working, and in his affidavit dated 24th September 2020 he attempted to identify the six workmen from photographs. The subsequent pleadings are inconsistent and appear to be an attempt to improve the case of the Municipal Corporation of Greater Mumbai (MCGM). The Petitioner explained that the waterproofing work was carried out by Workman No.1 and his helper Workman No.2; Workman No.3 was an individual accompanying MCGM staff; Workman No.4 was the caretaker, Mr. Rajil Varma; Workman No.5 was an electrician named Ishwar; and Workman No.6 was the supervisor, Mr. Nikhil Iurve (Reference: paragraph 14.15, page 77 of this Order)., Order of Demolition dated 9th September 2020 passed by Mr. Late rejected the request of the Petitioner's Advocate to grant a maximum of seven days' time. The Advocate had replied on 8th September 2020 stating that no work was being carried out by the Petitioner in her premises, a claim the Municipal Corporation allegedly understood falsely. Mr. Late denied the allegations in paragraph 3 of the demolition order as baseless and recorded that the petitioner had failed to produce any permission or sanction for changes in the approved B.C.C. plan dated 7th March 1979. He further noted that after receipt of the notice the work was not stopped and continued, and therefore the request for seven days' time was rejected., In the operative part of the demolition order dated 9th September 2020, Mr. Late stated that he was satisfied that the petitioner was carrying out the work as mentioned in the schedule to the notice and had failed to produce the required permission. Consequently, the work was declared unauthorized and the notice structure was liable to be demolished forthwith. When the Bombay High Court commented that Mr. Late had not mentioned in any of his affidavits when the work was noticed to have continued after the inspection on 7th September 2020, the Municipal Corporation submitted that since the petitioner did not state that she had stopped the work, it was presumed to have continued. The Corporation further argued that the stop‑work notice was illegal and issued only to intimidate the petitioner., The impugned notice dated 7th September 2020 was issued under Section 354A despite the entire unauthorized work having been completed, with only one workman and a helper doing painting, polishing and waterproofing in the discussion room, which was completed by April‑May 2020. Mr. Late could have granted the petitioner time to come to Mumbai and address the allegations, but he refused. Before pasting his demolition order on 9th September 2020 at 10:35 a.m., he had already stationed his demolition squad with equipment including a JCB and police officers, and demolition began at 11:00 a.m., Demolition on 9th September 2020: MCGM commenced demolition and continued until the Bombay High Court passed an ad‑interim order staying demolition. Prior to the demolition order being served, Mr. Late and his demolition squad (40 persons according to a news report dated 10th September 2020) were ready at the site with a large contingent of police. The petitioner's advocate moved the Bombay High Court with a writ petition, the hearing of which commenced at 12:30 p.m. on 9th September 2020. MCGM attempted to delay the hearing. The Court recorded that for the first ten minutes no MCGM representative appeared despite notice being served. An in‑house counsel for MCGM later appeared and could not produce a copy of the writ petition or the notice. The Court directed the Municipal Commissioner to stop demolition pending the hearing., The material, including the petitioner's tweets, newspaper reports, inspection reports, and photographs, indicates that the demolition was carried out with malice. The Municipal Corporation's attempts to deny the petitioner's allegations and to justify its conduct by alleging false statements, denial, withholding material facts, and vague allegations are contradicted by the evidence. While the Court refrains from making a final finding of malice in fact, the material suggests a strong case of legal malice sufficient to redress the petitioner's grievance., The submission that Section 354A should be restricted only to work ongoing on the date of inspection would lead to absurd results. In the present case, all works listed in the notice were existing since at least April‑May 2020, and the discussion room work was completed before the inspection. Accepting the submission that any ongoing work in an existing unauthorized structure justifies demolition of the entire structure would misuse power and render Section 351 otiose., Assuming the facts do not establish personal bias, they nonetheless sustain a case of legal malice. Legal malice, as defined by the Supreme Court in State of A.P. v. Govardhanlal Pitti, is an act done without lawful excuse, wrongfully and willfully, without reasonable cause, and not necessarily motivated by ill feeling. The Municipal Corporation's actions, including demolition of completed unauthorized works under Section 354A, constitute such malice., The works cited in the schedule to the notice—conversion of a toilet into an office cabin, construction of a kitchen in a storeroom, new toilets beside the staircase, unauthorized pantry, unauthorized rooms with wooden partitions, unauthorized horizontal extensions, altered staircase orientation, enclosed balcony, merged bedroom, and changed main entrance—were all completed works found at the time of inspection. There is no evidence that any of these works were ongoing at the time of the notice, and therefore Section 354A does not apply., The purpose of Section 354A is to stop unauthorized ongoing work, not to demolish completed unauthorized work. The demolition in the present case was therefore for a purpose not authorized by the Act, lacking any reasonable or probable cause, and was carried out willfully., The Municipal Corporation’s own circular dated 15th March 2012 distinguishes between action under Section 354A for ongoing unauthorized construction and action under Section 351 for existing unauthorized construction. The deliberate resort to Section 354A for an existing unauthorized structure, contrary to law, the authority of courts, and the Corporation’s own guidelines, is willful.
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Coming now to the wrongfulness of the state action, it is important to note at the outset that anything which is not authorized by law and which infringes a citizen's rights is wrongful on the part of the state. As we have seen above, assuming that the subject structures were illegal and amounted to unauthorized works as per sections 342 and 347 of the Act, it was the Petitioner's right to show cause why they should not be removed, altered or pulled down. Even after passing of a final Order for removal, alteration or pulling down of these works, upon her failure to show sufficient cause, it was open to the Petitioner to approach the Municipal Corporation of Greater Mumbai for regularisation of such works under section 53(3) of the Maharashtra Regional and Town Planning Act or alternatively, approach the High Court for preventing the threatened action. To the extent she was prevented from doing so, the action of the Municipal Corporation of Greater Mumbai in taking precipitate steps under section 354A, as we have noted above, can only be described as wrongful. But what really aggravates the wrongfulness and lends further credence to the case of malice in law is the manner in which the whole action was carried out as we have described above., The manner in which the action was carried out, as we have noted above, leaves hardly any doubt that the purpose for using the provision of section 354A in the instant case was not only unauthorized, considering the distinction between sections 351 and 354A, but more sinister than that, namely, to prevent the Petitioner from taking recourse to her legal remedies. The whole attempt on the part of the Respondent – Municipal Corporation of Greater Mumbai and its officers was to somehow present the Petitioner with a fait accompli, leaving her practically no time to seek redressal of her grievance through the High Court by means of preventive action., That sums up the case against the Respondents of malice in law. The Municipal Corporation of Greater Mumbai, which is an organ of the state, has done something without lawful excuse; it has proceeded to act wrongfully and willfully without reasonable or probable cause; its act can only be described as a deliberate act in disregard of the rights of a citizen; the true object of the act clearly appears to be to reach an end different from the one for which the power was entrusted to it. The exercise of power can be summed up as bad in law and lacking in bonafides. It is nothing but malice in law., Maintainability of the Writ Petition: The Municipal Corporation of Greater Mumbai at the stage of sur-rejoinder raised the contention that the Writ Petition ought not to be entertained and the Petitioner should be relegated to the remedy of a civil suit. It is also submitted that since several disputed questions of facts arise in the present matter, the Writ Petition should not be entertained. It was contended by the Municipal Corporation of Greater Mumbai that a civil suit is the norm and the entertaining of a Writ Petition can only be in exceptional circumstances which, according to the Municipal Corporation of Greater Mumbai, the Petitioner has not made out. Reliance was placed by the Municipal Corporation of Greater Mumbai in support of this contention on the judgment of the Supreme Court of India in the case of Abdul Karim Ahmed Mansoori v. Municipal Corporation of Greater Mumbai (supra)., According to the Petitioner, the contention of maintainability of the Writ Petition raised at a belated stage is clearly an afterthought. It is submitted that it is apparent that on the wrongdoings of the Municipal Corporation of Greater Mumbai, standing exposed and finding no defence on merits, the Municipal Corporation of Greater Mumbai has raised this issue only in an attempt to deprive the Petitioner of her legitimate rights and remedies., It is also submitted on behalf of the Petitioner that there are no disputed questions of facts as alleged by the Municipal Corporation of Greater Mumbai. The facts of the case are clearly established from the documents on record including the photographs produced by the Municipal Corporation of Greater Mumbai itself. It is apparent from the pleadings, when seen in light of the record, that the Municipal Corporation of Greater Mumbai has merely raised certain contentions only in an attempt to create dispute when, in fact, none exist., We have perused section 515A of the Act which incorporates a bar of jurisdiction and provides that any notice issued, order passed or direction issued by the designated officer, under sections 351 or 354A shall not be questioned in any suit or legal proceedings. The constitutional validity of this provision was challenged before the Supreme Court of India (Coram: Dr. D.Y. Chandrachud J as he then was and I.C. Gupte J) in the case of Abdul Razzaq Sunesra v. Municipal Corporation of Greater Mumbai (supra). A Division Bench of the Supreme Court, after analysing the scheme of the Act, upheld the validity of the provision and held that a remedy of a petition under Article 226 of the Constitution of India is available to the Petitioner. The Court held that section 515A was intended to ensure that proceedings arising out of sections 351 and 354A do not get lost in the maze of dilatory remedies in civil court. Thus, it is clear that in a case of proceedings arising out of sections 351 and 354A of the Act, a Writ Petition is the norm and a civil suit is an exception, only in certain limited circumstances., As correctly pointed out by the learned senior Advocate for the Petitioner, the judgment relied upon by the Municipal Corporation of Greater Mumbai in the case of Abdul Karim Ahmed Mansoori (supra) merely carved out certain very limited circumstances in which the jurisdiction of a civil court can still be invoked. In that case, the Petitioner had filed a suit and his application for ad‑interim relief was declined. The Petitioner filed an appeal from the order which was also withdrawn. While the suit was still pending, the Petitioner filed a Writ Petition challenging the same action. It was in these circumstances that the Supreme Court relegated the Petitioner in that case to a suit and held that in certain situations, the jurisdiction of a civil court could still be invoked. The Court, however, categorically held in paragraph 10 that while entertaining a suit, the civil court is obliged to take note of the statutory bar and to consider the maintainability of the suit on the basis of the averments in the plaint., In any case, it is settled law as held by the Supreme Court of India in a catena of decisions that the availability of an alternative remedy is only a self‑imposed restraint and not any bar on the jurisdiction of the High Court in exercising its jurisdiction under Article 226 of the Constitution of India. The Supreme Court has held that the High Court is justified in exercising its powers to the exclusion of all other remedies when it finds that the action of the state or its instrumentality is arbitrary and unreasonable and as such violative of Article 14 of the Constitution of India. We have reached a categorical conclusion, as discussed above, that the action of the state is arbitrary and unreasonable and informed by malice in law. As far as this conclusion is concerned, in the present case in view of the clear facts and evidence made available before the Supreme Court of India, no disputed question of facts can be said to have arisen. Secondly, merely because disputed questions of facts arise, a party cannot be relegated in every such case to a lengthy, dilatory and expensive process of a civil suit against a public body, particularly if the action is high‑handed and illegal. In fact, the courts have frowned upon public bodies raising such contentions and held that state instrumentalities ought not to raise technical pleas to defeat the rights and legitimate claims of a citizen., In ABL International v. Export Credit (supra) the Supreme Court of India held as follows: 8. As could be seen from the arguments addressed in this appeal and also from the divergent views of the two judges below, one of the questions that falls for our consideration is whether a writ petition under Article 226 of the Constitution of India is maintainable to enforce a contractual obligation of the State or its instrumentalities (an aggrieved party). 9. In our opinion this question is no more res integra and is settled by a large number of judicial pronouncements of this Court. In K.N. Guruswami v. State of Maharashtra [AIR 1954 SC 592: (1955) 1 SCR 305] this Court held: (AIR pp. 595‑96 para 20) 20. The next question is whether the appellant can complain of this breach of a writ. In our opinion he could have done so in an ordinary case. The appellant is interested in these contracts and has a right under the laws of the State to receive the same treatment and be given the same chance as anybody else. We would therefore in the ordinary course have given the appellant the writ he seeks. But owing to the time which this matter has taken to reach us (a consequence for which the appellant is in no way to blame, for he has done all he could to have an early hearing) there is barely a fortnight of the contract left to go. A writ would therefore be ineffective and, as it is not our prerogative to issue meaningless writs, we must dismiss this appeal and leave the appellant content with an enumeration of the law., It is clear from the above observations of the Supreme Court of India in the said phase, though a writ was not issued on the facts of that phase, that on a given set of facts if a State acts in an arbitrary manner even in a case of contract, an aggrieved party can approach the Court by way of writ under Article 226 of the Constitution and the Court, depending on the facts of the said phase, is empowered to grant the relief. This judgment in K.N. Guruswami v. State of Maharashtra was followed subsequently by the Supreme Court of India in the case of D.F.O. v. Ram Sanehi Singh (1971) 3 SCC 864 wherein the Court held: (SCC p. 865 para 4) The order has deprived the respondent of a valuable right. We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract for obtaining relief against an arbitrary and unlawful action on the part of a public authority, he must resort to a suit and not to a petition of a writ. In view of the judgment of this Court in K.N. Guruswami, there can be no doubt that the petition was maintainable even if the right to relief arose out of an alleged breach of contract where the action challenged was of a public authority invested with statutory power., A perusal of this judgment, though, shows that a writ petition involving serious disputed questions of fact which requires consideration of evidence which is not on record will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. This decision again, in our opinion, does not lay down an absolute rule that in all phases involving disputed questions of fact the parties should be relegated to a civil suit. In this view of ours, we are supported by a judgment of the Supreme Court of India in the case of Gunwant Kaur v. Municipal Committee, Bhatinda (1969) 3 SCC 769 where, dealing with such a situation of disputed questions of fact in a writ petition, the Court held: 14. The High Court observed that it will not determine disputed questions of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit‑in‑plea was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because, in considering the petitioner's right to relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature which for their determination require oral evidence to be taken and, on that account, the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try the petition. Rejection of a petition in limine will normally be justified where the High Court is of the view that the petition is frivolous, or because of the nature of the factual dispute sought to be agitated, or that the petition against the party against whom relief is sought is not maintainable, or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons., From the averments made in the petition filed by the appellants it is clear that, in proof of a large number of allegations, the appellants relied upon documentary evidence and the only matter in respect of which further facts may possibly arise related to the due publication of the notification under Section 4 of the Collector., In the present phase, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed questions of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute, and the present, in our judgment, is a phase in which, in the interests of both parties, the High Court should have entertained the petition and called for an affidavit‑in‑complaint from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit., The above judgment of Gunwant Kaur (1969) 3 SCC 769 finds support from another judgment of the Supreme Court of India in the case of Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582] wherein the Court held: (SCC p. 587 para 13) Mere because a question of fact is raised the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this phase are elementary., Therefore, it is clear from the above enumeration of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the phase, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above phase of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate phase, the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact., From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate phase, a writ petition as against a State or an instrumentalities of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, such cannot be a ground to refuse to entertain a writ petition in all phases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable., However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court, having regard to the facts of the phase, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power (see Whirlpool Corp. v. Registrar of Trade Marks [(1998) 8 SCC 1]). And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentalities is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons for which the Court thinks it necessary to exercise the said jurisdiction., In Popatrao Patil v. State of Maharashtra (supra), the Supreme Court of India declined to entertain a writ petition on the ground that there were disputed questions of fact and relegated the Petitioner to a civil suit. Setting aside the said decision and requiring the High Court to consider the matter on merits, the Supreme Court held thus: (i) No doubt that normally when a petition involves disputed questions of fact and law the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India. However, it is a rule of self‑restraint and not a hard and fast rule. In a phase this Court in ABL International Ltd. v. Export Credit Guarantee Corp. of India Ltd. observed thus: (ii) Therefore it is clear from the above enumeration of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the phase, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above phase of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate phase the writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact., From the above discussion the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate phase a writ petition as against a State or an instrumentalities of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration cannot be a ground to refuse to entertain a writ petition in all phases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court, having regard to the facts of the phase, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power (see Whirlpool Corp. v. Registrar of Trade Marks [(1998) 8 SCC 1]). And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentalities is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 of the Constitution of India. In the present phase we find that there are hard and disputed questions of fact., This Court has time and again held that the State should act as a model litigant. In this respect we can refer to the following observations made by the Supreme Court of India in Urban Improvement Trust Bikaner v. Mohan Lal: 6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf. 7. In Dilbagh Rai Jarr v. Union of India [(1974) 3 SCC 554 : 1974 SCC (L&S) 89] this Court extracted with approval the following statement (from an earlier decision of the Kerala High Court (P.P. Abubacker case [AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ 723]): 25. The State under our Constitution undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is not an ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to forego a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with concern on immoral forensic excesses so that if on the merits the case is weak the Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in court. The law on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of lawsuits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in a judicial homily but only echoing the domestic national policy on State litigation evolved at a Conference of Law Ministers of India held back in 1957. 8. In Madras Port Trust v. H. Manshu International [(1979) 4 SCC 176] this Court held: 2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course if a Government or a public authority takes up a technical plea the Court has to decide it and if the plea is well founded it has to be upheld by the Court but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority unless, of course, the claim is not well founded and because of delay in filing it the evidence for the purpose of resisting such a claim has become unavailable. 9. In a three‑Judge Bench judgment of Bhag Singh v. Union Territory of Chandigarh [(1985) 3 SCC 737] this Court held: The State Government must do what is fair and just to the citizen and should not, as far as possible, except in phases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen., In Century Spinning and Manufacturing Company v. Ulhasnagar Municipal Council the Supreme Court of India held that merely because a question of fact is raised the High Court should not require the party to seek relief by the somewhat dilatory, lengthy and expensive process of a civil suit against a public body, particularly when questions of fact are elementary. The Court is not incompetent to decide an issue of fact which can be determined from the material on record. It held as follows: 8.) The High Court may, in exercise of its discretion, decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution. But the discretion is judicial if the petition makes a claim which is frivolous, vexatious or prima facie unjust or may not appropriately be tried in a petition invoking extraordinary jurisdiction; the Court may decline to entertain the petition. However, a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high‑handed, arbitrary or unjust is entitled to a hearing of its petition on the merits. Apparently the petition filed by the Company did not raise any complicated questions of fact for determination and the claim could not be characterised as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in limine, and on consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried., Mr. Gokhale, appearing on behalf of the Municipal Corporation, urged that the petition filed by the Company apparently raised questions of fact which, in the view of the High Court, could not appropriately be tried in the exercise of the extraordinary jurisdiction under Article 226. But the High Court has not said so and, on review of the averments made in the petition, this argument cannot be sustained. Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process of a civil suit against a public body. The questions of fact raised by the petition in this phase are elementary., In Sayed Maqbool Ali v. State of Uttar Pradesh (supra) the Supreme Court of India held thus: 9.) The remedy of a landholder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation or to approach the High Court by filing a writ petition if the action can be shown to be arbitrary, irrational, unreasonable, biased, mala fide or without the authority of law and seek a direction that the land should be acquired in a manner known to law. The appellant has chosen to follow the second course. The High Court was not therefore justified in dismissing the writ petition on the ground that the remedy was under Section 18 of the Act. The order of the High Court, which is virtually a non‑speaking order, apparently passed on the basis that the appellant was seeking increase in compensation for an acquired land. The matter therefore requires to be reconsidered by the High Court on merits. 10.) But that does not mean that the delay should be ignored or the appellant should be given relief. In such matters the aggrieved person should approach the High Court diligently. If the writ petition is belated, unless there is a good and satisfactory explanation for the delay, the petition will be rejected on the ground of delay and laxity. Further, the High Court should be satisfied that the phase warrants the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India and that the matter is one where the alternative remedy of suit is not appropriate. For example, if the aggrieved person and the State are owners of adjoining lands and the claim is that the State has encroached over a part of his land, or if there is a simple boundary dispute, the remedy will lie only in a civil suit as the dispute does not relate to a high‑handed, arbitrary or unreasonable action of the State and there is a need to examine disputed questions relating to title, extent and actual possession. But where the aggrieved person establishes that the State had high‑handedly taken over his land without recourse to acquisition or deprived him of his property without authority of law, the landholder may seek his remedy in a writ petition.
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id_1041
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When a writ petitioner makes out a case for invoking the extraordinary jurisdiction under Article 226 of the Constitution, the High Court would not refer it to the alternative remedy of a civil suit, merely because the matter may involve an incidental examination of disputed questions of fact. The question that will ultimately weigh with the High Court is whether the person is seeking remedy in a matter which is primarily a civil dispute to be decided by a civil court, or whether the matter relates to a dispute having a public law element or violation of any fundamental right or to any arbitrary and high‑handed action. (See the decisions of this Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553] and Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers [(2008) 12 SCC 500]) (emphasis supplied)., We are of the view that this well‑settled law, when applied to the facts of the present case, makes it apparent that the objection as to the maintainability of the writ petition is clearly an afterthought, intended to defeat the petitioner's rights. The petitioner is aggrieved by an ex‑facie illegal, arbitrary, unjustified and high‑handed action of the Municipal Corporation of Greater Mumbai (MCGM) ignoring statutory provisions and guidelines of the courts as well as its own circulars, and the said action is an abuse of power and authority. The petitioner therefore is fully justified in approaching the Supreme Court of India for redress of her grievances and the protection of her rights., Reliefs sought: It is submitted on behalf of the petitioner that the impugned notice, order and the action of demolition, being ex‑facie illegal, ought to be set aside; the petitioner should be permitted to take such steps as are required to make the premises habitable so that she can immediately start occupying and using the said premises. As regards the restoration of the demolition work, it is submitted that the petitioner be allowed to take such steps as the Supreme Court of India may deem fit and proper in accordance with law, under the supervision of the court. It is also submitted that the petitioner is entitled to compensation to make good the loss and damage caused to her as a result of the illegal and high‑handed action of MCGM., As regards the reliefs pertaining to payment of compensation by MCGM to the petitioner, in the case of MCGM v. Sunbeam High‑Tech Developers (supra), the Supreme Court of India held that where demolition work is done illegally, even if the structure was unauthorized, compensation can be awarded by the court. The court observed: 'We make it clear that we do not approve the action of the Municipal Corporation or its officials in demolishing the structures without following the procedure prescribed by law, but the relief which has to be given must be in accordance with law and not violative of the law. If a structure is an illegal structure, even though it has been demolished illegally, such a structure should not be permitted to be re‑erected again. If the Municipal Corporation violates the procedure while demolishing the building but the structure is totally illegal, compensation can be awarded and, in all cases where such compensation is awarded, the source should invariably be recovered from the officers who have acted in violation of law. However we reiterate that the illegal structure cannot be permitted to be re‑erected.' (emphasis supplied)., In United Air Travel Services v. Union of India (2018) 8 SCC 141 the Supreme Court of India held: 'The principles of damages in public law have to satisfy certain tests. In Nilabati Behera v. State of Orissa [(1993) 2 SCC 746] it was observed that public law proceedings serve a different purpose than private law proceedings. The purpose of public law is not only to civilise public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore when the court moulds the relief by granting compensation in proceedings under Article 32 or Article 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law way of penalising the wrongdoer and fixing liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood as it is generally understood in a civil action for damages under private law but in the broader sense of providing relief by an order of compelling corrective acts under public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or to prosecute the offender under the penal law.' (emphasis supplied). It was also emphasized that it is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation in exercise of writ jurisdiction. The objective is to ensure that public bodies or officials do not act unlawfully. Since the issue is one of enforcement of public duties, the remedy would be available under public law notwithstanding that damages are claimed in those proceedings., The aforesaid aspect was again emphasized in Common Cause v. Union of India [(1999) 6 SCC 667] and we may also refer to N. Nagendra Rao & Co. v. State of A.P. [(1994) 6 SCC 205] regarding the proposition that the determination of various liabilities of the State being linked with the negligence of its officer is nothing new if the officer can be sued personally for which there is no dearth of authority. In the facts of the present case the arbitrariness and illegality of the action of the authority is writ large. The petitioners have been deprived of their right to secure the quota on a particular wrongful order passed for reasons which did not apply to them and for conditions which had been specifically exempted. Such arbitrariness and illegality gives rise to consequent violation of the principles enshrined under Article 14 of the Constitution of India. The facts of the present case thus undoubtedly satisfy the parameters for grant of compensation., On a consideration of the aforesaid facts, including the number of pilgrims for whom the petitioners would have been entitled to arrange the Hajj pilgrimage, an amount of Rs 5 lakhs per petitioner would be adequate compensation for the loss suffered by them and would subserve the ends of justice. We are conscious of the fact that there is no quantification based on actual loss but the award is in the nature of damages in public law., Having concluded that the impugned notice under Section 354A of the Act and the demolition action are motivated by malice, causing substantial injury to the petitioner, we are justified, on the basis of the law stated by the Supreme Court of India in the case of Sunbeam High‑Tech Developers (supra), to order compensation against the responsible respondents. Any such order must be preceded by an estimate prepared by an approved valuer of the damage caused to the petitioner's property. We will therefore appoint a valuer for the purpose of preparing such estimate. Both parties, i.e., the petitioner and MCGM, shall be heard by the valuer while making his report. Further orders will be reserved pending the valuer's report. We will also pass appropriate orders on recovery of any part of such compensation from individual officers of MCGM when ordering payment of such compensation., As regards allowing the petitioner to reconstruct demolished portions of the property, we record that though parties have taken contrary positions about the authorized or unauthorized nature of the demolished portions, we have not been shown any material to justify either contention. Accordingly we have no occasion to decide one way or the other and leave the parties to their positions in law. If, to the extent the demolished portions were originally created or constructed in accordance with law—either as tenantable repairs for which no permission of MCGM was required, or simply matters of interior decoration for which no planning permission is required, or were authorized having regard to the approved plans—the petitioner shall be within her rights to reconstruct the same. In case a planning permission is required and none exists, the petitioner may apply for such permission and MCGM shall be bound to deal with such application in accordance with law., Reliefs granted: Based on the foregoing observations, and being convinced that the impugned notice dated 7 September 2020 and the impugned speaking order of demolition dated 9 September 2020 issued by the Municipal Corporation of Greater Mumbai deserve to be quashed and set aside, the following orders are passed: (i) The impugned notice dated 7 September 2020 along with the speaking order of demolition dated 9 September 2020 are quashed and set aside. (ii) The petitioner is allowed to take such steps as are required to make the bungalow habitable so that she can immediately start occupying and using the same. However, to the extent any demolished portion requires a planning permission and such permission is not in place, reconstruction of such portion can only be made either in compliance with the sanctioned plan or after seeking approval of MCGM for the work proposed. In the event any application is made, MCGM shall decide the same within a period of four weeks from the date of receipt of such application or plan. (iii) As regards the area which is not demolished by MCGM, if MCGM proposes to take any action, it may issue a notice giving seven days time to the petitioner to respond or comply. In the meantime, the petitioner shall also be at liberty to make an application seeking regularisation of the works already carried out but not demolished under Section 53(3) of the MRTP Act, 1966. In case any such application is made, no further steps in response to the notice shall be taken by MCGM before disposal of such application and a copy of the order shall be provided to the petitioner as well as her advocate. (iv) M/s. Ihetgiri and Associates, Architects, Engineers, Interior Designers and Valuers are appointed as the valuers to value and determine the extent and value of damage and loss caused to the petitioner and submit their report to the Supreme Court of India on 9 March 2021 to enable the court to award compensation to the petitioner. The valuers shall hear both parties before making their report. The charges of the valuers shall initially be borne by the petitioner. (v) Liberty to the parties to apply in case of any difficulty. (vi) The writ petition shall appear for further orders on 9 March 2021.
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id_1042
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Leave granted. The appellant before the Supreme Court of India has challenged the order dated 12 July 2021 by which his petition before the Karnataka High Court was only partly allowed in as much as the High Court has quashed the proceedings regarding offences under Sections 406, 420 and 417 of the Indian Penal Code as they relate to the co‑accused, and also against the appellant insofar as it relates to offences under Sections 406 and 420, but the criminal proceedings against the appellant have not been quashed under Section 417. Thus, still aggrieved, he has come before the Supreme Court of India., The facts of this case are that the informant, Ms. Sushmita (respondent No.2), lodged her FIR at Malamaruti Police Station, Karnataka under Sections 406, 420 and 417 read with Section 34 of the Indian Penal Code against six persons including the present appellant. The informant is a Master of Technology graduate working as a lecturer. Her elders were searching a suitable bridegroom for her and found the present appellant. The appellant and the informant thereafter communicated by phone and her father gave Rs 75,000 in advance for the marriage hall, but the marriage never took place as she learned from a newspaper report that the appellant had married someone else. She then lodged an FIR against six persons under Sections 406, 420 and 417 read with Section 34 of the Indian Penal Code. The FIR primarily related to the offence of cheating and criminal breach of trust. The accused persons are the present appellant (the prospective bridegroom according to the informant), his mother, sisters and brothers. All the accused filed a petition under Section 482 of the Code of Criminal Procedure for quashing the proceedings, arguing that no case under Sections 406, 407 or 420 read with Section 34 of the Indian Penal Code was made out against any of them and that the proceedings were an abuse of the process of law., The learned Single Judge of the Karnataka High Court concluded that no offences under Section 406 or Section 420 of the Indian Penal Code were made out against any of the accused persons. To constitute an offence punishable under Section 406, there must be criminal breach of trust as defined under Section 405, which requires entrustment of property or dishonest misappropriation. In the present case, although a sum of Rs 15,000 was paid to accused No.1 for purchase of clothes and Rs 75,000 was spent for booking the marriage hall, the ingredients of Section 405 are not attracted; there was no entrustment of property nor dishonest misappropriation, therefore the offence under Section 406 is not made out. Similarly, to constitute an offence under Section 420, there must be cheating dishonestly by inducing a person to deliver any property or to alter or destroy any valuable security. The first information report does not satisfy these requirements, so the offence under Section 420 is not made out. However, the High Court held that an offence under Section 417 of the Indian Penal Code is made out against the appellant alone. The Court reasoned that the appellant intended to deceive the informant, received money for purchase of clothes and booked the marriage hall, which prima facie constitutes the offence under Section 415 punishable under Section 417. The Court further stated that the father of the informant was induced to book the marriage hall by the appellant alone, providing prima facie material for a case under Section 417., We find the reasoning of the Karnataka High Court in upholding the proceedings under Section 417 to be patently incorrect. Cheating is defined under Section 415 of the Indian Penal Code as follows: 'Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat.' The offence of cheating requires that the intention to cheat or deceive be present from the beginning of the transaction. This principle has been reiterated by this Court in Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168, where it was held that the distinction between mere breach of contract and the offence of cheating depends upon the intention of the accused at the time of inducement, and that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the outset. The same position was reiterated in Indian Oil Corporation v. NEPC India Ltd. and Others (2006) 6 SCC 736., The punishment for cheating is given under Section 417 of the Indian Penal Code: 'Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.' We do not see how an offence under Section 417 is made out against the present appellant. While a marriage proposal may fail for various reasons, the prosecution must have reliable and trustworthy evidence to prove cheating. No such evidence is before the prosecution; consequently, no offence under Section 417 is made out. Accordingly, we allow the appeal and set aside the order of the Trial Court to the extent it refrained from quashing the proceedings under Section 417 of the Indian Penal Code against the appellant. The petition succeeds, the appeal is allowed as stated above., New Delhi, 2 February 2024. Petition for Special Leave to Appeal (Criminal) No. 6137/2021 (arising out of the impugned final judgment and order dated 12 July 2021 in Criminal Revision Law Petition No. 100898/2020 passed by the Karnataka High Court, Circuit Bench at Dharwad). This matter was called on for hearing on 2 February 2024. For the petitioner: Advocate Sharanagouda Patil, Advocate Shivprasad Shantanagouda, Advocate Shupreeta Sharanagouda, Advocate Supreeta Patil, Advocate Jyotish Pandey, and M/S S‑legal Associates, Advocate on Record. For the respondents: Advocate V. N. Raghupathy, Advocate on Record; Advocate Manendra Pal Gupta; Advocate M. Bangaraswamy; Advocate Premnath Mishra; Advocate Dhanesh Ieshdhan; Advocate Rana Ranjit Singh, Advocate on Record; Advocate Vivek Kumar Singh; Advocate Ravish Singh; Advocate Akanksha Singh; Advocate Sweta Singh; Advocate Abhilash Tripathy; Advocate Avijeet Kumar. Upon hearing the counsel, the Supreme Court of India made the following order: Leave granted. The appeal is allowed in terms of the signed order.
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B. Muthuramalingam, Petitioner vs. The Secretary, The Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, New Delhi, Respondent., Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of mandamus directing the respondent to consider and dispose of the petitioner's representation dated 16 June 2021, sent in connection with the acceptance of reviewed cadre strength by relying upon the vacancy position available during 2019‑2020, as expeditiously as possible so as to enable him to get his name included in the select list prepared in this regard., For the petitioner: Mr. R. Anand. For the respondent: Ms. L. Victoria Gowri, Assistant Solicitor General of India., The relief sought in this writ petition is to direct the respondent to consider and dispose of the petitioner's representation dated 16 June 2021 in connection with the acceptance of reviewed cadre strength by relying upon the vacancy position available during 2019‑2020, as expeditiously as possible so as to enable him to get his name included in the select list prepared in this regard., Promotion per se cannot be claimed as a matter of right by the employee. No doubt, consideration for promotion is a fundamental right of the employee. The question of considering the eligible candidates arises only if an administrative decision is taken to prepare a panel of eligible persons who are fit for appointment or promotion. Administrative prerogative cannot be insisted upon by the employees though they are eligible for promotion or appointment, as the case may be., The rights of the employees must be considered at the first instance before considering the relief sought by the petitioner. The petitioner claims that he is now working as District Revenue Officer and is eligible for the conferment of post in the Indian Administrative Service and that if the Cadre Strength Review Committee has been constituted duly in time, he will have an opportunity of securing appointment as an Indian Administrative Service officer. However, such a claim is hypothetical in nature. In respect of future events, the High Court cannot take a decision. The principle is that once a decision is taken by the authority competent to prepare a panel for promotion, all eligible persons are to be included for grant of promotion to the post of Indian Administrative Service. The eligible employee cannot seek a direction or submit a representation to convene a Cadre Strength Review Committee meeting, which is beyond the purview and scope of the service conditions of the employee, who is otherwise working in the State service under the Government of Tamil Nadu. As far as the Indian Administrative Service is concerned, the Central Government has to take a decision and therefore the petitioner cannot claim that a Cadre Strength Review Meeting must be conducted for the purpose of granting promotion., The learned counsel appearing for the petitioner submitted that the petitioner filed Writ Petition (Madras Division) No. 19680 of 2020 and that this Court, by order dated 23 December 2020, directed the respondent to publish the select list prepared on or before 31 December 2020 by considering the petitioner's representation dated 3 December 2020. According to the learned counsel, the said order has not been implemented so far. However, filing another writ petition cannot be a solution for the implementation of the order passed in the earlier writ petition. Thus, the service rights of the petitioner must be ascertained before issuing a direction even to consider the representation. In the absence of establishing any such right, the High Court cannot issue any direction even to consider the representation. Mere issuance of a direction to consider the representation would not serve the cause of justice; rather, it would lead to multiplicity of proceedings and the litigant would not obtain a proper remedy., The rights in respect of promotion have been considered by the Supreme Court in the recent decision in Union of India and others vs. Manpreet Singh Poonam and others, reported in MANU/SC/0280/2022, wherein the Apex Court held unequivocally that, as there is no vested or accrued right over a promotional post, in the absence of any vacancies actually in existence for the year 2009, the migration of other officers of the Indian Administrative Service cadre took place only in the year 2011. The Apex Court reiterated that consideration for promotion is a fundamental right as per the decision in Ajit Singh vs. State of Punjab, reported in (1999) 7 SCC 209. Thus, the rights of the employee are restricted only if an administrative decision is taken by the authorities competent to prepare a panel while considering the eligible candidates for promotion., The learned counsel for the petitioner also submitted that the name of the petitioner has already been considered and included in the list by the State Government as an eligible person and that if any decision is taken by the Government of India, the State Government will forward the names of eligible persons for consideration. Therefore, mere preparation of a panel by the authority competent would not confer any right on the petitioner to seek a direction against the Government of India to convene a Review Committee Meeting and to prepare a panel., Filling up of posts is an administrative decision and the prerogative of the Government of India. An employee cannot seek any direction to fill up the post or claim a promotional post. When such rights are not conferred on the employees, the relief sought in this writ petition cannot be granted., The learned counsel appearing for the petitioner, in support of his contentions, placed reliance on the unreported decision of the Supreme Court in the case of Union of India and another vs. Hemraj Singh Chauhan and others, dated 23 March 2010 in Civil Appeal No. 2651‑52 of 2010, wherein paragraph 40 held that legitimate expectations of the respondents of being considered for promotion were defeated by the acts of the government and that unreasonable inaction on the part of the State Government of Uttar Pradesh stood in the way of the respondents' chances of promotion, and paragraph 45 held that the delayed exercise could not be justified and there was a failure on the part of the authorities in carrying out the timely exercise of cadre review., In the above decision, the Supreme Court considered the legitimate expectation of the employee for being considered for promotion. These observations do not provide any absolute right for an employee to claim promotion as a matter of right. They are observations regarding expectations of the employee and the procedures to be followed for the purpose of grant of promotion. However, in the present case, the Review Committee was not convened during the relevant period and no decision was taken for grant of promotion to the State Government employees to the post of Indian Administrative Service. Therefore, the petitioner has not established even a semblance of legal right to direct the respondent to consider his representation, and a mere direction to the authority concerned would do no service to the cause of justice in the absence of establishing any legal right., Thus, the writ petition is devoid of merits and is dismissed. No costs., 15 March 2022, The Secretary, The Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training.
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Date of Decision: 15 November 2022. Through: Mr. Kapil Sibal and Mr. Devadatt Kamath, Senior Advocates with Mr. Amit Anand Tiwari, Mr. Vivek Singh, Ms. Devyani Gupta, Ms. Tanvi Anand, Mr. Rajesh Inamdar, Mr. Rohit Sharma, Ms. Aparajita Jamwal, Mr. Sunny Jain and Mr. Harsh Pandey, Advocates, versus Respondents Through: Mr. Siddhant Kumar, Ms. Vidhi Udayshankar, Ms. Manyaa Chandhok, Mr. Shivankar Rao and Mr. Gurpreet Singh Bagga, Advocates for Respondent 1 (Election Commission of India). Mr. Rajiv Nayar, Mr. Maninder Singh and Mr. Neeraj Kishan Kaul, Senior Advocates with Mr. Chirag Shah, Mr. Utsav Trivedi, Mr. Himanshu Sachdeva, Ms. Manini Roy, Mr. Saurabh Seth, Mr. Prabhas Bajaj, Mr. Dhruv Sharma and Mr. Aniket Pawar, Advocates for Respondent 2. Mr. Mahesh Jethmalani, Senior Advocate with Mr. Ravi Sharma, Ms. Mugdha Pande, Ms. Shivani Bhushan, Ms. Kanjini Sharma, Mr. Piyush Tiwari and Mr. Ashish Yadav, Advocate for Intervenor (Gulabrao Patil)., There is a split between members of the Shiv Sena, a recognized political party in the State of Maharashtra. One faction is led by Shri Eknathrao Sambhaji Shinde (Respondent No. 2) and the other by Shri Uddhav Thackeray (Petitioner). Both claim to be the president of the original Shiv Sena party and stake claim to its poll symbol of bow and arrow. In this background, before the Election Commission of India (Respondent No. 1), a dispute petition under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 (Symbols Order) was filed by Respondent No. 2 on 19 July 2022. Claiming that he represents the majority faction of the Shiv Sena Party, Respondent No. 2 sought, inter alia, allotment of the symbol to the group led by him. Pending final adjudication of the dispute petition, the Election Commission of India passed an interim order dated 8 October 2022, freezing the symbol., The interim order states that, having regard to the facts and circumstances, the time available is not adequate to ensure the due process required for proceedings under Paragraph 15. However, the Commission notes the urgency of use of the party symbol and party name due to the schedule of the bye‑elections. Accordingly, to place both rival groups on an even keel and to protect their rights and interests, the Commission makes the following interim order for the purpose of the current bye‑elections and to continue till the final determination of the dispute: (a) Neither of the two groups led by Shri Eknathrao Sambhaji Shinde (Petitioner) nor the group led by Shri Uddhav Thackeray (Respondent) shall be permitted to use the name of the party Shiv Sena simultaneously; (b) Neither group shall be permitted to use the symbol Bow & Arrow reserved for Shiv Sena; (c) Both groups shall be known by such names as they may choose for their respective groups, including, if they so desire, linkage with their parent party Shiv Sena; and (d) Both groups shall be allotted different symbols of their choice from the list of free symbols notified by the Election Commission for the current bye‑elections. Both groups are directed to furnish, latest by 1:00 PM on 10 October 2022, (i) three preferred names for their groups, any of which may be approved by the Commission, and (ii) three preferred free symbols, any of which may be allotted to their candidates., While the impugned order freezes the Bow and Arrow symbol and prohibits the use of the name Shiv Sena simultaneously by either group, it permits both factions to use free symbols for the bye‑elections, which were imminent when the order was passed. Final adjudication of the dispute petition is still pending, but the bye‑elections concluded on 3 October 2022 and the candidate set up by the Petitioner's faction was declared successful. The Election Commission of India, in its recent order dated 12 November 2022, has afforded both parties an opportunity to file necessary documents and submit essential information by 23 November 2022, and the proceedings appear to be moving swiftly towards culmination. As all issues urged on merits are still open, the most appropriate course would be to dispose of the petition with a request to the Election Commission of India to complete adjudication in a time‑bound manner., Mr. Kapil Sibal, Senior Counsel, assisted by Mr. Devadatt Kamath, Senior Counsel, on behalf of the Petitioner, strongly submits that notwithstanding the conduct of the bye‑elections, this Supreme Court of India should set aside the impugned order and defreeze the symbol, with a direction to the Election Commission of India to take a decision afresh, as the impugned order is patently illegal, without jurisdiction and unsustainable, both in law and on facts. Their submissions are briefly recorded as follows: (a) The issue of maintainability of the dispute petition has neither been considered nor decided, whereas it was imperative for the Election Commission of India to dwell upon it as a preliminary issue; (b) The impugned order was passed without adhering to principles of natural justice. The Petitioner was not afforded any oral hearing, contrary to the mandate of Paragraph 15 of the Symbols Order and the Commission’s past practice, and without ensuring timely supply of the documents filed by Respondent No. 2; (c) None of the parameters for grant of an interim order – prima facie case, balance of convenience or irreparable injury – were considered while passing the impugned order; (d) The Supreme Court of India, while refusing to stay the proceedings vide order dated 27 September 2022, has not decided the issue of maintainability of the dispute petition, hence it remains open for the Petitioner to raise before this Court; (e) No dispute petition under Paragraph 15 of the Symbols Order can lie unless there exist splinter groups or rival sections of a recognized political party. The Election Commission of India has not ascertained this in the instant case; (f) The Election Commission of India has exhibited procedural unfairness, for example by failing to consider multiple requests made by the Petitioner on 7 July 2022, 13 August 2022, 23 August 2022, 22 September 2022, 28 September 2022 and 1 October 2022 for supply of documents filed by Respondent No. 2, and by directing parties to supply documents to each other only on 29 September 2022, which Respondent No. 2 did not comply with., In contrast, Mr. Rajiv Nayar, Mr. Maninder Singh and Mr. Neeraj Kishan Kaul, Senior Advocates for Respondent No. 2, make the following submissions: (a) The Petitioner had taken up a similar line of argument before the Supreme Court of India, which was not accepted in its order dated 27 September 2022, and the Court refused to stay the proceedings before the Election Commission of India; (b) Despite multiple opportunities, the Petitioner failed to file any document in his favour by the prescribed deadline, thus the Election Commission of India had to pass an interim order; (c) If the Petitioner feels prejudiced by the freezing order, it would be best that the Election Commission of India be directed to dispose of the proceedings in a time‑bound manner; (d) The Election Commission of India has plenary powers to adjudicate intra‑party disputes under Paragraph 15 of the Symbols Order, as recognised by the Supreme Court of India in several judgments; (e) Even on facts, in light of Paragraph 15 of the Symbols Order, the prayers made by Respondent No. 2 in the dispute petition are maintainable., Mr. Siddhant Kumar, counsel for the Election Commission of India, has made the following submissions: (a) The Petitioner has no basis for making unsubstantiated allegations of bias against a constitutional body such as the Election Commission of India, which has the responsibility for superintendence, direction and control of elections in India; (b) The impugned order has been passed in accordance with law. In all cases where there are disputes between rival factions, considering the interests of the factions as well as the general public, a freezing order pending adjudication is an appropriate course of action; (c) The Petitioner’s insistence on a decision on maintainability as a preliminary issue cannot be sought as a matter of right. The Election Commission of India is free to devise its own procedure and is conducting an expedited proceeding in the matter., The Supreme Court of India has considered the foregoing submissions., The Symbols Order was enacted by the Election Commission of India in exercise of powers conferred upon it under Article 324 of the Constitution of India, read with Section 29A of the Representation of the People Act, 1951 and Rules 5 and 10 of the Conduct of Election Rules, 1961. The general power of the Election Commission of India to issue instructions and directions stems from Paragraph 18 of the Symbols Order. Paragraph 15 of the Symbols Order was enacted to deal with the precise situation that has emerged in the instant case. Since the petition revolves around jurisdiction of the Election Commission of India and maintainability of the dispute petition, it is apposite to refer to the relevant provisions: Conduct of Election Rules, 1961, Rule 5 (Symbols for elections in parliamentary and assembly constituencies); Election Symbols (Reservation and Allotment) Order, 1968, Paragraph 15 (Power of the Commission in relation to splinter groups or rival sections of a recognised political party); Paragraph 18 (Power of the Commission to issue instructions and directions)., Paragraph 15 of the Symbols Order was brought into force to deal with a situation where there are rival sections or groups of a recognised political party, each claiming to be that party. The dispute referred to the Election Commission of India is exactly the situation contemplated under Paragraph 15. The Election Commission of India therefore has the power to decide if one or none of the rival groups is a recognised political party. Consequently, the argument that the dispute petition is non‑maintainable before the Election Commission of India, rendering the impugned interim order without jurisdiction, is wholly incorrect. Nonetheless, the Petitioner remains free to make such submissions, and this Supreme Court of India is not commenting on the merits of the proceedings before the Election Commission of India., With regard to the contention that no petition under Paragraph 15 of the Symbols Order can lie unless there exist splinter groups or rival sections of the recognised political party, there is sufficient material on record before the Election Commission of India to invoke Paragraph 15. Two rival factions – the Petitioner and Respondent No. 2 – both claim to be the original or majority faction. This fact cannot be discounted; therefore, the Election Commission of India’s jurisdiction is plainly demonstrable from the pleadings. The issue of whether Respondent No. 2 gave up his membership on 23 June 2022, and whether he can claim to represent the party, requires detailed deliberation and has not been addressed by the impugned order. No opinion needs to be expressed by this Supreme Court of India on that issue, and it is best left for adjudication in the appropriate proceedings., The Petitioner has raised a jurisdictional objection regarding non‑maintainability of the dispute petition before the Election Commission of India, and the Supreme Court of India is confident that the same will be examined on its own merits by the Election Commission of India while rendering the final decision, notwithstanding the lack of trust exhibited by the Petitioner., Both parties agree that the issue of disqualification of Respondent No. 2 is pending before the Supreme Court of India. The Petitioner’s written submissions filed before the Supreme Court of India sought a stay of the dispute petition while substantial questions of law, as framed by the Supreme Court of India in its order dated 23 August 2022, were pending before the Constitution Bench. The Supreme Court of India categorically declined the stay application vide order dated 27 September 2022, allowing the proceedings before the Election Commission of India to continue., The Supreme Court of India therefore did not interdict the proceedings before the Election Commission of India despite the Petitioner raising jurisdictional issues. Regarding the Petitioner’s contention that the Election Commission of India passed an interim order without affording an oral hearing, the impugned order notes that the Commission took note of requests for adjournment made by Mr. Vivek Singh, Advocate for the Petitioner. The order records that on 8 August 2022 Shri Chirag Shah, Advocate on behalf of Shri Eknathrao Sambhaji Shinde, submitted affidavits of MPs and MLAs supporting the petitioner, charts of office bearers, and a Vakalatnama authorising several advocates to appear. On the same day Shri Vivek Singh, Advocate for Shri Uddhav Thackeray, submitted a Vakalatnama authorising his team to appear. Subsequent applications for adjournment were filed on 6 August 2022, 23 August 2022, 28 September 2022 and 7 October 2022, seeking additional time to examine voluminous documents and to address pending Supreme Court matters. The Election Commission of India granted extensions on 10 August 2022 and 23 August 2022, but no further extension was granted after 30 September 2022., In the aforesaid circumstances, the Election Commission of India observed that the steps envisaged under Paragraph 15, prior to hearing the parties, require both parties to submit documentary evidence of support claimed in the organisational and legislative wings of the party. The process of submission of documents was initiated by the Commission’s order of 22 July 2022 and the timeline has been extended several times. The Commission noted that Shri Vivek Singh sought an additional four weeks before the start of a formal hearing to prepare and understand the documentation filed by the rival faction. The Commission recognised that the time required to ensure due process was incongruent with the schedule of the bye‑elections, where both parties claimed exclusive use of the Shiv Sena symbol Bow & Arrow and the party name. Consequently, the Commission deemed it necessary to act promptly to avoid confusion in the electoral process., Petitioner’s counsel had sought four weeks before the start of a formal hearing. However, the Election Commission of India was duty bound to ensure that the electoral steps of the bye‑elections were completed within time. Noting the urgency of allotting a symbol due to the announced schedule of the bye‑elections, the Commission made the directions for freezing. The Supreme Court of India therefore finds no procedural infraction on the part of the Election Commission of India. The Petitioner, who repeatedly delayed furnishing necessary documents, cannot now allege violation of natural justice principles and criticize the Commission., Mr. Sibal also argued that the Petitioner was not supplied with the documents filed by Respondent No. 2 despite repeated requests. It was further argued that the Election Commission of India’s counsel before the Supreme Court of India had agreed to an extension of time, if an application was made, and therefore there was no delay on the Petitioner’s part. Reference was made to the order dated 4 August 2022, which noted that the Commission had fixed 8 August 2022 as the date for the Petitioner to file an affidavit in the matter pending before it.
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According to the learned Senior Counsel, the proceedings may take some time as voluminous evidence is usually submitted by the parties which must be considered by the Election Commission of India. The learned Senior Counsel, therefore, states that no orders may need to be passed by this High Court of India interdicting proceedings before the Election Commission of India. In these circumstances, we grant liberty to the petitioner to file an application before the Election Commission of India for seeking time., In the opinion of the High Court of India, Election Commission of India’s counsel had only agreed for accommodating the petitioner’s request for extension of time. However, since adequate time was not available for the Election Commission of India to complete proceedings under Paragraph 15, taking note of the urgency involved with regard to the party symbol and name, in light of the scheduled and upcoming bye elections, pending final determination, the course of action adopted by the Election Commission of India was within its jurisdiction under Paragraph 18 of the Symbols Order, as well as the plenary powers of the Election Commission of India as recognized by the Supreme Court of India (Edapaddi P. Palaniswami v. T.T.V. Dinakaran, (2019) 18 Supreme Court Cases 219)., At this juncture, it must also be noted that although it was argued that the procedure adopted by the Election Commission of India is a one‑off in the instant case, this High Court of India’s attention has been drawn to similar such orders made by the Election Commission of India, wherein, pending adjudication of dispute under Paragraph 15 of the Symbol Orders, the Election Commission of India directed the reserved symbol to remain frozen until final adjudication of disputes. Similar orders include Dispute Case No. 01/2021 (Sh. Chirag Paswan and Others v. Sh. Pashupati Kumar Para and Others); Dispute Case No. 2/2017 (Sh. E. Madhusudan and two Others v. Smt. V.K. Sasikant and Another); and In Re: Dispute in Uttarakhand Kranti Dal. There is thus nothing unusual or extraordinary in the present case., In light of the fact that there is no interdiction by the Supreme Court of India regarding the proceedings to be conducted by the Election Commission of India, in the opinion of the High Court of India, it would be in the interest of both the parties as well as the general public that the proceedings are concluded expeditiously. Accordingly, the Election Commission of India is directed to adjudicate the Dispute Petition under Paragraph 15 of the Symbols Order as expeditiously as possible., For the foregoing reasons, the present petition is dismissed along with pending applications.
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Date of decision: 06 March 2024. Through: Mr. Jayant Mehta, Senior Advocate with Mr. Ripu Daman Bhardwaj, Mr. Satya Ranjan Swain, Mr. Vijay Kumar Joshi, Mr. Himanshu Bidhuri and Ms. Kangan Roda, Ms. Nikita Sethi, Advocates for Petitioners 1. Ms. Sonia Mathur, Senior Advocate with Mr. Chetanya Puri, Ms. Priyanka Garg and Mr. Nikhil Jaiswal, Advocates for Petitioners 2. Mr. Kirti Uppal, Senior Advocate with Mr. Kamal Digpaul, Ms. Soumava Karmakar and Mr. Rudra Paliwal, Advocates for Petitioners 3 versus Respondents. Through: Mr. Sudhir Nandrajog, Senior Advocate with Mr. Sameer Vashisht, Additional Standing Counsel and Mr. Vanshay Kaul, Mr. Aman Singh and Mr. Vedansh Vashisht, Advocates. Through: Mr. Pavan Narang, Ms. Jyoti Taneja, Mr. Piyush Beriwal, Mr. Himanshu Sethi and Ms. Aiswarya Chhabra, Advocates. Through: Ms. Malvika Trivedi, Senior Advocate with Mr. Himanshu Pathak, Mr. Neeraj, Mr. Amit Tiwari, Mr. Sahaj Garg, Mr. Abhishek Saket, Mr. Shrey Sherawat, Mr. Kautilya Birat, Advocates for Petitioners 1 and 2. Mr. Dinesh Agnani, Senior Advocate with Mr. Shoumendu Mukherjee, Mr. Kushagra Kansal, Mr. Siddharth Khatana, Mr. Subhash Tanwar, Mr. Ankush Kapoor and Mr. Shrey Sherawat, Advocates for Petitioners 3., The present writ petitions have been filed challenging the motion passed in the Fifth Session of the Seventh Delhi Legislative Assembly on 16 February 2024 whereby the petitioners were suspended from the sittings of the House and the issue was referred to the Committee of Privileges of the Legislative Assembly. The petitioners are members of the Seventh Delhi Legislative Assembly, elected in the elections held on 08 February 2020. The Fifth Session, which is the budget session for the year 2024‑2025, was scheduled from 15 February 2024 to 21 February 2024, extended to 29 February 2024 and further to 08 March 2024 with eighteen scheduled sittings. Bulletin II dated 14 February 2024 was issued by the Legislative Assembly Secretariat, National Capital Territory of Delhi, informing all members that the Hon'ble Lieutenant Governor of Delhi would address the House at the start of the Fifth Session on 15 February 2024 and a schedule was provided. On 15 February 2024 the petitioners, together with other members, interrupted the address of the Hon'ble Lieutenant Governor and continued to disrupt it despite repeated warnings from the Speaker. At 11:18 a.m. and 11:31 a.m. the petitioners were marshaled away from the chamber on the directions of the Speaker for continuously disrupting the address. Subsequently, on 16 February 2024 a motion was proposed to refer the matter to the Committee of Privileges and a decision was taken to suspend the petitioners from sitting in the House until the Committee submits its findings. The relevant excerpt of the motion states that the House disapproves the repeated violation of rules, directives of the Chair and unruly conduct of the members named, as such conduct lowers the dignity of the House and violates the Code of Conduct for Members of the Delhi Assembly, and therefore the matter is referred to the Committee of Privileges and the members are suspended pending the Committee's findings. The motion was adopted by voice vote on 16 February 2024 and the petitioners were escorted out of the legislative chamber by marshals. The petitioners have therefore approached the Hon'ble High Court of Delhi challenging the motion., The learned counsel for the petitioners contends that the Fifth Schedule is a self‑contained code and is exhaustive with respect to the Code of Conduct of members inside the House. It describes the procedure to enquire into breaches and the punishments that may be imposed. It is submitted that a punishment under Clause 44 of the Fifth Schedule had already been inflicted on the petitioners when the Speaker asked the members to withdraw on 15 February 2024. Once the mechanism under the Fifth Schedule had operated, a motion could not have been entertained on 16 February 2024 concerning the same conduct. Moreover, the transcript shows that the motion was passed invoking Rule 6 of the Fifth Schedule and not Chapter XI of the Rules of Procedure and Conduct of Business in the Legislative Assembly of the National Capital Territory of Delhi., It is submitted that the petitioners were suspended by invoking Clause 44 of the Fifth Schedule for breach of the Code of Conduct. Since the Fifth Schedule is exhaustive, after such a suspension no further proceedings could be initiated under Chapter XI for questions involving breach of privilege or contempt. The proceedings under Chapter XI were initiated after the punishment under Clause 44 had already been awarded, which amounts to a procedure unknown to the House. The suspension awarded under Clause 44 could only be for a specific period and not for an indefinite period, which was not observed in the present case., Even assuming, without admitting, that the procedure provided under Chapter XI for breach of privilege or contempt could be invoked, the procedure has not been properly followed. In the present case a question of breach of privilege was raised under Rule 66 via a complaint of a member, but the requirements of Rule 67 were not complied with. The condition for admissibility under the proviso to Clause 68, which requires that the member against whom a complaint is made be given an opportunity of being heard, was not fulfilled. Reference to the Committee of Privileges can only be made by the Speaker under Rule 70, and must be presupposed by the application of the Speaker’s mind. In this case the reference was made directly by a motion moved in the House on 16 February 2024, which does not find footing under Rule 70 of Chapter XI or any other rule, and is therefore contrary to the prescribed procedure., Without admission of any guilt, the members of the House wrote to the Hon'ble Lieutenant Governor rendering their apology, which was duly accepted. Moreover, the petitioners on 21 February 2024 also met the Speaker regarding the events of 15 February 2024., The learned senior counsel for the respondents argues that the House, as an institutional body, has the right to self‑protection and to maintain its dignity. The behaviour expected of a member is one that does not hamper the functioning of the House as a whole. It is submitted that the action of the Speaker on 15 February 2024 was not exercised under Rule 277(2) because the Speaker had not named any members, as can be seen from the transcript. Immediate removal to maintain the dignity and functioning of the House is an in‑built rule whose exercise is not punitive in nature., It is also submitted that despite the high degree of immunity envisaged for members of the Assembly, they do not possess protection for unruly behaviour from the House, which can itself take action. The procedure followed in taking such action is perverse and warrants interference by the court, which has not been established. Reliance is placed on Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184, to state that the matter should not be tested on traditional parameters of judicial review and that a constrained approach is required., On the issue of the exhaustive operation of the Fifth Schedule, it is submitted that a schedule to an enactment cannot be a complete code unless the enactment itself makes it so. Schedule 5 was made under the general Rules of Conduct under Rule 235B and does not override earlier provisions. The respondents rely on Aphali Pharmaceuticals Ltd. v. State of Maharashtra & Ors., 1989 4 SCC 378, which holds that where a dichotomy exists between a provision of a schedule and a rule, the rule will override the schedule. The judgment explains that a schedule is part of the statute and must be read together with the act; in case of inconsistency, the enactment prevails., The actions of the suspended members are not isolated. The constant disruption by the petitioners undermines the dignity of the House and the Speaker, culminating in the motion passed on 16 February 2024 under Rule 6 of the Fifth Schedule. The ultimate resolution is of a different footing than merely disrupting the Lieutenant Governor’s speech; the matter is one of continuous misconduct., The present case falls within a complaint made by a member under Rule 66. The alleged failure to comply with the requirements of Rule 67 is a procedural irregularity, not an illegality., The learned counsel for the respondents submitted that under Chapter XI of the Rules, a motion passed by the House under Rule 66 (Proviso) to refer the case to the Committee of Privileges can either be consented to by the Speaker under Rule 70, or, if the Speaker is of the opinion that the matter can be disposed of by the House, under Rule 71, complying with the provisions of Rule 72., The counsel further explained that the Speaker’s consent is required at two stages: first to allow the motion to be raised in the House, and second to refer the matter to the Committee of Privileges under Rule 70. While doing so, the Speaker will be guided by the principles of Rule 68., It was also elaborated that it is not necessary to hear the member concerned at the time the House recommends the matter to the Committee of Privileges; the member can be heard before the Committee under Rule 220(2). If the member is not heard at that stage, he will be heard under Rule 75 when a substantive motion is raised under Rule 74 before passing the sentence., The learned counsel stated that substantial compliance with the procedure laid down in the Rules has been achieved, even if some procedural provisions were not complied with. The principles of natural justice are satisfied, as the petitioners were given a chance to be heard while the discussion on the motion was ongoing in the House on 16 February 2024., In rejoinder, Mr. Jayant Mehta, Senior Counsel for the petitioners, stated that Clauses 42, 43 and 44 of the Fifth Schedule prescribe a procedure to deal with complaints regarding breach of the Code of Conduct. Under Clause 42, the presiding officer of the House can suo motu take up for consideration a breach of conduct. If the presiding officer or the House does not take up the breach, Clause 43 allows the Speaker to refer the complaint to the Committee on Ethics for examination and report. Clause 44 provides the punishment for breach of conduct. Parallelly, under Rule 277, the Speaker has the power to order withdrawal of a member, adjourn the House or suspend the sitting. Rule 277(3)(b) provides that the maximum punishment for the first breach of conduct is three sittings and for the second breach is seven sittings. Once the Speaker has taken action under Rule 277(3)(b), the House cannot impose a further suspension under Clause 44 of the Fifth Schedule., Mr. Mehta further stated that Rule 277 and the Sixth Schedule are facets of the ordinary functioning of the House. Under Rule 277(1), the Speaker can order withdrawal from the House for that day. Under Clause 44 of the Fifth Schedule, the presiding officer or the House can impose a punishment for withdrawal. Once the Speaker has exercised his power under Rule 277, any further action by the House under the Fifth Schedule would not be permissible, as it would amount to taking action twice for the same conduct., The question for consideration is whether the decision to suspend the petitioners without specifying any period until the Committee of Privileges submits its findings on breach of privilege and contempt is sustainable, whether the House’s referral of the matter to the Committee of Privileges without an independent decision of the Speaker is sustainable, and whether the House violated the procedure prescribed in the Rules for procedure and conduct of business., Special provisions with respect to Delhi were introduced by the 69th Constitution Amendment Act, 1991, creating Article 239AA. Article 239AA(2)(a) provides for a Legislative Assembly for the National Capital Territory and that its seats shall be filled by members chosen by direct election from territorial constituencies. Article 239AA(3)(a) gives the Legislative Assembly the power to make laws for the whole or any part of the National Capital Territory., The Parliament enacted the Government of National Capital Territory of Delhi Act, 1991 (the \GNCTD Act\). The Act supplements the constitutional provisions relating to the Legislative Assembly. Section 3 of the GNCTD Act states that the total number of seats in the Legislative Assembly shall be seventy. Section 33 empowers the Legislative Assembly to make rules or regulations for regulating its procedure and the conduct of its business. In exercise of the powers conferred under Sub‑Section (1) of Section 33, the Legislative Assembly framed the Rules of Procedure and Conduct of Business., Rule 277 gives power to the Speaker to direct any member whose conduct is disorderly to withdraw immediately from the House. The procedure to implement this power is given under Rule 277(2)., The position of the Speaker emanates from election or choice exercised by the members of the House. The Speaker holds office during the pleasure of the majority of the House and acts as an impartial arbitrator, applying his own mind while conducting the proceedings., Rule 277 empowers the Speaker to pass orders to preserve peace and order. If the Speaker is of the opinion that a member’s conduct is disorderly or defiant, he may direct the member to withdraw immediately, and the member shall withdraw forthwith and remain absent for the remainder of the day’s sitting. Under Clause 2 of Rule 277, if a member ordered to withdraw does not obey, or persistently creates obstruction, Clause 3(a) allows the Leader of the House, the Minister for Parliamentary Affairs, or any other member to move a motion that the member be suspended. The period of suspension is three sittings for the first occasion, seven sittings for the second, and for subsequent occasions, unless otherwise decided, for the remainder of the session., The Fifth Schedule of the Rules lays down the code of conduct of members of the Legislative Assembly and the code of conduct for members inside the House. Clause 6, relevant to this case, deals with conduct during the Lieutenant Governor’s address. It provides that any interruption or obstruction of the Lieutenant Governor’s address shall be deemed an act of disrespect and may be considered grossly disorderly conduct and contempt of the House, which may be dealt with by a motion moved by a member., Clause 42 of the Fifth Schedule prescribes that the presiding officer or the House may suo motu take up for consideration cases of breach of the code that have taken place in the House. Clause 43 provides that in other cases the Speaker may refer complaints regarding violation of the Code of Conduct to the Committee on Ethics for examination and report. Clause 44 enumerates the punishments: admonition, reprimand, censure, withdrawal from the House, suspension for a specific period, and any other penal action deemed appropriate., A conjoint reading of Clauses 6, 42, 43 and 44 shows that the code of conduct for the Lieutenant Governor’s address is prescribed, and the presiding officer or the House can suo motu consider breaches and punish under Clause 44. If the presiding officer does not act suo motu, the Speaker may refer the complaint to the Committee on Ethics, and upon receipt of the report, punishment may be imposed under Clause 44., Clause 6 states that interruption or obstruction of the Lieutenant Governor’s address shall be deemed disrespect, grossly disorderly conduct and contempt of the House, which may be dealt with by a motion moved by a member. Apart from proceeding under the Fifth Schedule, the House may also initiate proceedings under Chapter XI for contempt. Further proceedings under the Fifth Schedule and Chapter XI can be taken in addition to the power exercised by the Speaker under Rule 277., Chapter XI of the Rules deals with questions involving breach of privilege and contempt. The entire Chapter XI is reproduced because the Hon'ble High Court of Delhi intends to deal with the complete procedure for breach of privilege and contempt., The scope of interference by a court exercising jurisdiction under Article 226 of the Constitution of India has been crystallised in several judgments of the Apex Court. In Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184, the Apex Court summarised the parameters of judicial review in relation to parliamentary procedure, observing that Parliament is a coordinate organ deserving deference, that the constitutional system abhors absolutism, and that judicial review of the exercise of power of contempt or privilege does not amount to usurping the legislature’s jurisdiction.
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Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges, etc. have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one. The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power. While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Supreme Court of India would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error. The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens. The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct. If a citizen, whether a non-Member or a Member of the legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of the Supreme Court of India to examine the merits of the said contention, especially when the impugned action entails civil consequences. There is no basis to the claim of bar of exclusive cognizance or absolute immunity to the parliamentary proceedings in Article 105(3) of the Constitution. The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other constitutional provisions, for example Article 122 or Article 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case-law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by the Constitution of India. Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure. The truth or correctness of the material will not be questioned by the Supreme Court of India nor will it go into the adequacy of the material or substitute its opinion for that of the legislature. Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the Supreme Court of India will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the court may examine the validity of the said contention, the onus on the person alleging being extremely heavy. The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution. Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed. The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny. Even if some of the material on which the action is taken is found to be irrelevant, the Supreme Court of India would still not interfere so long as there is some relevant material sustaining the action. An ouster clause attaching finality to a determination does ordinarily oust the power of the Supreme Court of India to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, malafides, non-compliance with rules of natural justice and perversity., In Ashish Shelar v. Maharashtra Legislative Assembly, (2022) 12 Supreme Court Cases 273, the Supreme Court of India after placing reliance upon Paragraph No. 431 of Raja Ram Pal (supra) and several other judgments has observed as under:, From the exposition in these successive Constitution Bench decisions referred to above, it is not possible to maintain the submission of the learned counsel for the respondent State that the enquiry must be limited to one of the parameters specified in Raja Ram Pal [Raja Ram Pal v. Lok Sabha, (2007) 3 Supreme Court Cases 184] and, in this case, only clause (s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny. On the other hand, we lean in favour of taking the view that each of the parameters is significant and permissible area of judicial review in relation to exercise of parliamentary privileges including clauses (f), (g), (s) and (u). In one sense, clause (u) is a comprehensive parameter articulated by the Constitution Bench in Raja Ram Pal [Raja Ram Pal v. Lok Sabha, (2007) 3 Supreme Court Cases 184], as it predicates that: (SCC p. 373, para 431) 431. (u) an ouster clause attaching finality to a determination does ordinarily oust the power of the Supreme Court of India to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, malafides, non-compliance with rules of natural justice and perversity., The Constitution, by itself, does not specify the limitation on the privileges of the legislature, but, indubitably, those privileges are subject to the provisions of the Constitution [as is predicated in the opening part of Article 194(1) as also in Article 208(1) requiring the House of the legislature to make Rules for regulating its procedure], which ought to include the rights guaranteed to the citizens under Part III of the Constitution. The moment it is demonstrated that it is a case of infraction of any of the rights under Part III of the Constitution including ascribable to Articles 14 and 21 of the Constitution, the exercise of power by the legislature would be rendered unconstitutional. For attracting Articles 14 and 21 of the Constitution, it is open to the petitioner to demonstrate that the action of the legislature is manifestly arbitrary. The arbitrariness can be attributed to different aspects. Applying that test, it could be a case of irrationality of the resolution/decision of the House. Indeed, in this case, the Supreme Court of India is not called upon to enquire into the proportionality of such a resolution/decision., The Supreme Court of India in Ashish Shelar (supra) further held that rules made to exercise the powers and privileges of a State Legislature constitute law within the meaning of Article 13. The Supreme Court of India after placing reliance upon In re, Special Reference No.1 of 1964, All India Reporter 1965 Supreme Court 745 reiterated that when the State Legislatures purport to exercise this power, they are undoubtedly acting under Article 246 read with Entry 39 of List II and the enactment of such a law will, therefore, have to be treated as a law within the meaning of Article 13. The Supreme Court of India, thereafter, went on to hold that even though the legislature has the prerogative to deviate from the rules including to alter the rules; until then, and even otherwise, it is expected to adhere to the express substantive stipulation (which is not mere procedure) in the Rules framed under Article 208 of the Constitution and the principle underlying therein, being procedure established by law., Applying the aforesaid principles, let's examine as to whether the decision of the assembly to suspend the Petitioners for an indefinite period till the Committee of Privileges submits its findings on the question of breach of privilege and contempt under the various provisions of Rules of Procedure and Conduct of Business in the Legislative Assembly of National Capital Territory of Delhi has been taken after following the procedure in the assembly or not and as to whether the decision to refer the question to the Committee of Privileges has been taken in accordance with procedure or not., The allegation against the Petitioners is that the Petitioners along with other Members of the House have interrupted the address of the Hon'ble Lieutenant Governor on 15.02.2024. The Petitioners marched out on 15.02.2024 and they were permitted to rejoin in the next sitting which is on 16.02.2024. On 16.02.2024, a motion was moved against the Petitioners by Shri Dilip Kumar Pandey, Chief Whip of AAP, and the House took a decision to refer the question of breach of privilege and contempt to the Committee of Privileges and suspended the Petitioners till the Committee of Privileges submits its findings on the question of breach of privilege and contempt., As stated earlier, Clause 6 of the Fifth Schedule deals with the Code of Conduct of Members during the address of Hon'ble Lieutenant Governor. A perusal of Clause 6 indicates that apart from being a violation of Code of Conduct, action can also be taken for contempt of the House which can be dealt with by the House subsequently on a motion moved by a Member. Therefore, it cannot be said that the Fifth Schedule is a complete Code in itself. However, it must be noted that in the present case the Petitioners have been suspended till the Committee of Privileges takes a decision on the question which is not one of the punishments that is prescribed in Clause 44 of the Fifth Schedule. Clause 44(e) of the Fifth Schedule gives power to the Presiding Officer or the House to suspend a Member only for a definite period and not indefinitely. For a breach of Code of Conduct, the Petitioners could have been given only any one of the punishments provided under Clause 44 of the Fifth Schedule which does not stipulate a suspension for an indefinite period. Since the suspension can be only for a specific period and not indefinitely i.e., till the Committee of Privileges takes a decision on the question of breach of privilege, the suspension of the Petitioners till the Committee of Privileges takes a decision is, therefore, beyond the purview of Clause 44 of the Fifth Schedule and is, therefore, unsustainable., Chapter XI deals with the questions involving the breach of privilege and contempt. Rule 66 of Chapter XI provides that a question involving a breach of privilege or contempt of a Member of the House or of a Committee can be raised by a complaint from a Member, a report from the Secretary, a petition or a report from a Committee, however, this can be raised only with the consent of the Speaker. Proviso to Rule 66 of Chapter XI gives the power to the House to proceed ahead to take action under Chapter XI even without a complaint, however, it has to be done with the consent of the Speaker. In the present case, the House was of the view that the Petitioners have committed contempt and therefore, by way of motion raised by Shri Dilip Kumar Pandey, Chief Whip of AAP, the House referred the matter to the Committee of Privileges. Since the House has unanimously taken the issue, Rule 67 of Chapter XI would not be applicable in this case because Rule 67 of Chapter XI deals with a complaint by a Member which does not apply here. Rules 67 and 68 of Chapter XI do not apply here. Though the learned Senior Counsel for the Assembly states that even when the House decides to take up the issue of breach of privilege, Rules 67 and 68 of Chapter XI would apply but in the opinion of this Court once the House has taken a decision to take action without any complaint then Rules 67 and 68 of Chapter XI do not apply., It is pertinent to mention that if the contention of the learned Senior Counsel for the Petitioners is accepted that Rules 67 and 68 of Chapter XI would apply even in the present case then it must be said that proviso to Rule 68 of Chapter XI has not been followed inasmuch as the Petitioners have not been given an opportunity to be heard which itself vitiates the decision of the House in referring the issue to the Committee of Privileges. The Petitioners have been suspended without following the procedure established by law., Rule 70 of Chapter XI gives power to the Speaker to exercise his discretion to refer the matter to the Committee of Privileges for examination. Rule 70 of Chapter XI states that after the motion is passed by the House then it is the Speaker who has to take a decision as to whether there has been a breach of privilege or not and as to whether contempt has been committed or not. Only the Speaker can refer the matter to the Committee of Privilege for examination, investigation and a report from the Committee and no one else can, including the House itself. Proviso to Rule 70 of Chapter XI also gives discretion to the Speaker to hear the Member before giving his decision. Rule 70 of Chapter XI, therefore, casts an obligation on the Speaker to take a decision as to whether the Speaker feels that the matter should be referred to the Committee of Privileges or not and the Speaker has to inform the House accordingly. Rule 70 of Chapter XI has not been followed in this case. The Speaker who is an impartial arbitrator and conducts the House has not taken any decision independently and has not held that the matter is one that requires to be referred to the Committee of Privileges., Rule 71 of Chapter XI also gives power to the Speaker to dispose of the motion without it being referred to the Committee of Privileges and proceed directly to impose punishment. If such a route is taken then before imposing punishment, the Member concerned has to be given an opportunity of being heard under Rule 75 of Chapter XI. Rule 77 of Chapter XI prescribes the punishment., In the present case, the Petitioners have been given a punishment under Rule 44 of the Fifth Schedule which is not prescribed under Rule 44 of the Fifth Schedule. The Petitioners have been given a punishment in excess of what can be given under Rule 44 of the Fifth Schedule and at the same time, the Petitioners have been actually given a punishment under Rule 77 of Chapter XI which is a suspension for an indefinite period without even being heard (which has not been held to be valid by the Supreme Court of India in Ashish Shelar (supra)). In the absence of any application of mind by the Speaker in referring the matter to the Committee of Privileges and in view of the fact that the Petitioners have not been heard while being given punishment of suspension till the Committee of Privileges decides the matter and since the punishment under Rule 77 of Chapter XI can be prescribed only after a Member is heard, the direction for suspending the Petitioners till the Committee of Privileges takes a decision cannot be sustained., The upshot of this is that the decision of the House to send the issue before the Committee of Privileges without the Speaker independently applying his mind as postulated under Rule 70 of Chapter XI and the decision of the House to suspend the Petitioners till the Committee of Privileges takes a decision both are in violation of the procedure prescribed under the Fifth Schedule and Chapter XI. Since the Petitioners have already undergone the suspension of 14 sittings, this Court is of the opinion that the Petitioners should be permitted to rejoin the House forthwith., In view of the above, the writ petitions are disposed of, along with pending applications, if any.
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