Allahabad High Court
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Allahabad High Court: In a bail application filed by the applicant for committing offence under Section 302 of Penal Code, 1860 Ajay Bhanot, J. has held that the instances of “undeserved want” depicted in Section 12(e) of the Legal Services Authorities (‘LSA’) Act, 1987, is not a fixed concept but an evolutionary exercise. Further, the State Legal Services Authority is mandated to enquire whether the circumstances of a person being considered for legal aid fall within the sweep of “undeserved want” and directed the SLSA to devise certain schemes for providing legal aid to prisoners and for timely filing of bail application.

The applicant submitted that he has been in jail since 06.12.2017 and his bail application was rejected by the Trial Court in 2019. Further, two more criminal cases were registered against the applicant while he was in jail; however, he was falsely implicated in the aforesaid case when he raised his voice against the excesses of jail authorities and demanded legal aid. Further, the petitioner reiterated that the denial of legal aid caused this prolonged imprisonment.

The Court observed that the LSA Act, 1987 is a welfare legislation, that creates enforceable rights in favour of the recipient and enhances efficacy of the schemes for legal aid. Further, under the Act, the Legal Services Authorities must suo motu initiate the process of identifying classes of persons who face circumstances of “undeserved want” and educate them on their right to legal aid, frame schemes, determine the nature of legal services required in the case, and give them requisite legal services.

The Court observed that the eligibility criteria for giving legal services under Section 12(e) is broad based, and under the provision, persons facing circumstances of “undeserved want” become entitled for legal services. Further, the phrase “undeserved want” is generic in nature and the instances under it are illustrative and not exhaustive in nature.

The Court viewed that the persons who cannot file bail applications before the competent court due to lack of resources; abandoned by friends and family after their incarceration; do not have any pairokar (pleader); or have not been educated of their right to move a bail application without delay; are victims within the scope of “undeserved want” and such class of persons are entitled to legal services, the nature of which must be decided by the statutory authorities.

The Court cited Rajoo v. State of M.P., (2012) 8 SCC 553, wherein it was held that “eligible persons are entitled to legal services at any stage of proceedings (whether pretrial, trial or appeal or revisional) which he or she is prosecuting or defending”, and observed that for the grant of legal aid, the legislature has made no distinction between persons who are imprisoned for heinous offences or non-heinous crimes.

Similarly, there are persons who fail to file bail applications before the trial court in a timely manner after their detention, or do not expeditiously approach the High Court for bail after the rejection of their bail applications by the trial court. The said cases prima facie falls within the ambit of “undeserved want”, subject to enquiry by the State Legal Services Authority or the District Legal Services Authority.

The Court observed that “legal aid is a catalyst to redeem the preamble’s promise of justice and remains a bulwark for protection of fundamental rights”. Further, the rights to file a bail without delay, and access to legal aid of an eligible prisoner are intertwined and cannot be separated. It also observed that the right of moving a bail application becomes illusory and personal liberty remains a distant dream, if the right to legal aid of an entitled prisoner is not effectuated.

Moreover, the Court observed that the anonymity of a prisoner imposed by isolation cannot suppress the identity of a citizen created by the Constitution. Further, the fundamental rights of prisoners paired with statutory duties of the State Legal Services Authority cast an obligation on the SLSA to devise a scheme:

  • To identify prisoners who are undertrial for various crimes including heinous offences and have not applied for bail before the trial court in a timely manner after their imprisonment or have failed to file bail applications before the High Court in an expeditious time frame after rejection of their bail application by the trial court.

  • To identify prisoners who are unable to effectively prosecute their pending bail applications in various offences including heinous crimes causing delays in hearing.

  • To ascertain whether the inability of the said prisoners to expeditiously file or effectively prosecute bail application is caused by factors comprehended under Section 12 read with Section 13 of the Legal Services Authorities Act.

  • To approach prisoners who qualify for legal aid, educate them on their rights of filing bail applications without delay, and determine the nature of legal aid needed by them.

  • To provide legal aid and facilitate filing of bail applications of such. prisoners in a timely manner before the competent courts.

  • To facilitate counsel in getting necessary instructions, relevant documents, office support for filing the bail applications.

  • To facilitate effective prosecution of bail applications by the counsels who should take out measures for listing of bails and hearing of matters.

The Court further directed the district legal services authorities to undertake on a continuous basis and without any break the exercise of identification of prisoners, determination of their eligibility for legal aid and giving legal aid should be an established procedure in jails. Further, directed the jail officials to prevent undue long detention of prisoners as stated in Regulation 439(a) of the U.P. Jail Manual.

The Court observed that the State could not satisfactorily dispute the submissions and further, the applicant was granted interim bail on 18.08.2022 by this Court. Thus, released the applicant on bail subject to certain conditions.

[Anil Gaur v. State of UP, Criminal Misc. Bail Application no. – 16961 of 2022 decided on 12.09.2022]


Advocates who appeared in this case:

Counsel for Applicant: – Nanhe Lal Tripathi

Counsel for Opposite Party: – Government Advocate

Know thy Judge

“The world acknowledges that children in conflict with law should be treated differently than adults in conflict with law. The reason is that the mind of the child has not attained maturity and it is still developing. Therefore, the child should be tested on different parameters and should be given an opportunity of being brought into the main stream if, during his juvenility, has acted in conflict with law.” 

Vikram Nath 

Barun Chandra Thakur v. Bholu,  2022 SCC OnLine SC 870

 

To Know About: 

Name: Vikram Nath (Sitting Judge of the Supreme Court of India) 

Assumed Office: 31-08-2021 

Retires On: 24-09-2027 

Previously: Chief Justice of the Gujarat High Court  

                    Judge of the Allahabad High Court 

  

Born on 24-09-1962, Justice Vikram Nath hails from a family of lawyers with him being the 4th generation in his family to pursue law. He obtained his law degree from the University of Lucknow in 1986. He enrolled as an advocate on 30-03-1987 and practised as an advocate in the Allahabad High Court. 

  • Did You Know?  Justice Nath practised as an advocate for 17 years before he was elevated as an Additional Judge of the Allahabad High Court in 2004. 

Justice Vikram Nath was elevated as an Additional Judge of the Allahabad High Court on 24-09-2004 and was made a permanent Judge of the Allahabad High Court on 27-02-2006. 

  • Did You Know?  Justice Vikram Nath was recommended for first Chief Justice of new Andhra Pradesh HC, following the bifurcation of a combined High Court for Andhra Pradesh and Telangana, but the Centre disapproved the recommendations. 

Justice Nath was appointed as Chief Justice of the Gujarat High Court on 10-09-2019.  

  • Did You Know?  Justice Nath is the first Chief Justice of a High Court in India to live stream its proceedings on Youtube during the 2020 Covid Pandemic. 

Justice Nath was elevated to the Supreme Court on 31-08-2021. 

  • Did You Know?  Justice Vikram Nath is likely to serve as the Chief Justice of India for seven months from February 10, 2027 to September 24, 2027. 

  

Notable Judgements at Supreme Court 

  

Manipulated laboratory report, broken links of evidence; Supreme Court reverses concurrent findings of Courts below to acquit a murder accused 

The Division Bench of Hemant Gupta and Vikram Nath*, JJ., reversed the impugned judgments of the Punjab and Haryana High Court and the Trial Court of convicting the appellant for murder on the basis of circumstantial evidence. 

Noting that there were many broken links in the chain of evidence and the prosecution could not prove the case beyond a reasonable doubt. Casting a doubt on the prosecution version, the Court remarked, 

“The milk which is said to be adulterated with the poison was taken out from the refrigerator, transferred into a pan for boiling, and thereafter given to the deceased. If it actually had organophosphorus in it the smell would have filled up the room. The deceased being a healthy woman aged 45 years would not have consumed it if the pungent smell was coming from the milk. Even the informant did not sense any foul smell from the milk while boiling it.” 

[Rajbir Singh v. State of Punjab, 2022 SCC OnLine SC 1090, decided on 24-08-2022] 

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Mental capacity & ability to understand consequences of acts not same; Guidelines must be in place for preliminary assessment of children above 16 years of age for trial as adults 

In an unfortunate incident in 2017, a class II student was found with his throat slit in the bathroom of his school. A class XI student, aged 16 years and 5 months on the date of the incident, was arrested. The Supreme Court was called upon to examine the preliminary assessment made under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The bench of Dinesh Maheshwari and Vikram Nath*, JJ has asked the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard which may assist and facilitate the Board in making the preliminary assessment under section 15 of the Act, 2015. 

“A child with average intelligence/IQ will have the intellectual knowledge of the consequences of his actions. But whether or not he is able to control himself or his actions will depend on his level of emotional competence. For example, risky driving may result in an accident. But if emotional competence is not high, the urge for thrill seeking may get the better of his intellectual understanding.”

[Barun Chandra Thakur v. Bholu, 2022 SCC OnLine SC 870, decided on 13.07.2022] 

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Unless there’s a written instrument declaring land was voluntarily relinquished for no consideration, State cannot deny payment of compensation 

The Division Court of Vikram Nath* and Dinesh Masheswari, JJ., held that the State’s act of taking the appellants’ property, all being farmers, without compensation, was arbitrary, irrational, and a clear violation of Article 300A of the Constitution. Since the land in question was agricultural, the Court opined that non-payment of adequate compensation would amount to a violation of the right to livelihood; a fundamental right under Article 21. 

[Kalyani v. Sulthan Bathery Municipality, 2022 SCC OnLine SC 516, decided on 26-04-2022] 

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Mafat Lal v. State of Rajasthan, (2022) 6 SCC 589 

The Division Court of Vikram Nath* and S A Nazeer, JJ., held that kidnapping would necessarily involve enticing or taking away any minor under 18 yrs of age, if a female, for offence under S. 363 IPC to be made out. 

  

Why has the legislature left it open for the plaintiff to value his claim for the six categories of the suit falling under Section 7(iv) of the Court Fees Act, 1870? 

In case relating to court fees, the bench of Dinesh Maheshwari and Vikram Nath*, JJ had the occasion to explains why the legislature had left it open for the plaintiff to value his claim for the six categories of the suit falling under Section 7(iv) of the Court Fees Act, 1870. 

[State of Punjab v. Dev Brat Sharma, 2022 SCC OnLine SC 330, decided on 16.03.2022] 

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Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right: Supreme Court 

The 3-Judges Bench comprising of D.Y. Chandrachud, Vikram Nath* and B.V. Nagarathna, JJ., set aside the seniority list prepared by the Department of Minor Irrigation, U.P. on finding the list to be in contravention of statutory mandate. The Bench stated, 

“The Appointing Authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission; otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit.”

[Ajay Kumar Shukla v. Arvind Rai, 2021 SCC OnLine SC 1195, decided on 08-12-2021] 

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Same offence but separate trials – Can appellate court pass common judgment based on evidence recorded in only one trial? 

In the case where two different criminal appeals were being heard against two sets of accused, on account of one of them absconding, and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence, the 3-judge bench of Dr. DY Chandrachud, Vikram Nath* and BV Nagarathna, has held that the Madras High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. 

[AT Mydeen v. Customs Department, 2021 SCC OnLine SC 1017, decided on 29.10.2021] 

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Entire country under impression that Re-Rolling Steel Plants do not require prior Environmental Clearance; NGT right in giving such plants opportunity to meet the requirement 

In an appeal regarding the jurisdiction of National Green Tribunal’s (NGT) to pass an order to operate a unit without Environmental Clearance and against the decision of closure of the unit, the bench of Hemant Gupta* and Vikram Nath, JJ. has observed that there was no error in the order passed by the Tribunal that opportunity should be provided to re-rolling or cold rolling units to fall within Environmental Clearance (EC) regime by granting a period of at least one year to operate for the purpose. However, the order of closure of the unit cannot be sustained. 

[Gajubha Jadeja Jesar v. Union of India, 2022 SCC OnLine SC 993, decided on 10.08.2022] 

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Bilkis Bano’s rapists walk free: Supreme Court issues notice to Gujarat Government  

When on August 15, 2022, her rapists walked out of the prison after serving 15 years’ imprisonment based on Gujarat Government’s remission policy, Bilkis Bano found herself “bereft of words” and “numb”. 

The 3-judge bench of NV Ramana, CJ and Ajay Rastogi and Vikram Nath, JJ has issued notice to the Gujarat Government on the release of 11 men convicted for the gangrape of Bilkis Bano during the 2002 Gujarat riots. The Court has also directed that the 11 released men be impleaded as parties in the plea challenging the decision of the Gujarat Government. 

[Subhashini Ali v. State of Gujarat, 2022 SCC OnLine SC 1083, order dated 25.08.2022] 

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What happens when a candidate, in a competitive exam, uses different language in answer sheet than that filled in application form? 

In the case where a candidate appearing for examination for recruitment to the post of Constables in Railway Protection Force (RPF) had used a different language in the OMR answer book than that filled in the application form, the bench of Hemant Gupta* and Vikram Nath, JJ has held that his candidature was rightly rejected. 

[Union of India v. Mahendra Singh, 2022 SCC OnLine SC 909, decided on 25.07.2022] 

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Bail applications of co-accused arising from the self-same FIR shall be listed before the same court to avoid disparity 

With a view to bringing reform in practices relating to disposal of bail applications arising from the same case, the Division Bench of Ajay Rastogi and Vikram Nath, JJ., held that where more than one bail application has been filed by co-accused of offences arising from self-same FIR, all such applications shall be listed before the same court to avoid disparity.   

[Abhyanand Sharma v. State of Bihar, W.P. (Cr) No. 420 of 2021, decided on 10-05-2022]   

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FIR for repeated rape cannot be filed just because a long standing relationship is no longer working out; Pre-arrest bail granted 

The Division Bench of Hemant Gupta and Vikram Nath, JJ has granted pre-arrest bail to a man in a case relating to the rape of the woman he had been in a relationship with for four years. 

When the relationship between the bail applicant and the complainant started, the complainant was 21 years of age. Taking these factors together, the Court observed, 

“…the complainant has willingly been staying with the appellant and had the relationship. Therefore, now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC.”

[Ansaar Mohammad v. State of Rajasthan, CRIMINAL APPEAL NO.962 OF 2022, order dated 14.07.2022] 

  

Long co-habiting couple’s child cannot be disentitled from family property in absence of proof against presumption of marriage 

In a family property dispute wherein the legitimacy of one of the contenders was questioned, the Division Bench of SA Nazeer* and Vikram Nath, JJ has held that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock and since in the present case, the defendants had failed to rebut the presumption in favour of a marriage between the plaintiff’s parents on account of their long co-habitation, he cannot be held to be an illegitimate son. 

[Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 SCC OnLine SC 737, decided on 13.06.2022] 

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Whether the term “school children” includes university students while interpreting Government Memo exempting buses carrying school children from Passengers Tax?  

While holding that the term “school children” will include college and university as well while interpreting government memo exempting passengers’ tax in respect of Stage Carriage (buses) owned by educational institution and used for the transportation of children to and from such institutions, the Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., remarked, 

“It gets perforce reiterated that the broad expression “children”, obviously, refers to the students taking instructions in educational institutions, irrespective of their class or standard or level.”

[State of Haryana v. Daronacharya College of Engineering, 2021 SCC OnLine SC 3333, order dated 27-09-2021] 

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IGST on Ocean Freight for imports unconstitutional; Won’t create a level playing field but will drive Indian shipping lines out of business 

In the case where the constitutionality of two Central Government notifications related to levy of Integrated Goods and Services Tax (IGST) was under scanner, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that since the Indian importer is liable to pay IGST on the ‘composite supply’, comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the ‘supply of services’ by the shipping line would be in violation of Section 8 of the CGST Act. 

The Court observed that, 

“If Indian shipping lines continue to be taxed and not their competitors, namely, the foreign shipping lines, the margins arising out of taxation from GST would not create a level playing field and drive the Indian shipping lines out of business.”

[Union of India v. Mohit Minerals (P) Ltd., 2022 SCC OnLine SC 657, decided on 19.05.2022] 

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“Democratic interests cannot be judicially aborted to preserve unfettered freedom to conduct business, of the few”; Govt. decision to ban MTTs in PPE products ensures adequate PPE in India 

In a case where an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States, challenged the prohibition of the export of PPE products from India, the bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ held that as a developing country with a sizeable population, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations. 

The Court held that, 

“Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few.”

[Akshay N. Patel v. RBI, 2021 SCC OnLine SC 1180, decided on 06.12.2021] 

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Disciplinary proceedings against person with mental disability is a facet of indirect discrimination; SC sets aside action against CRPF personnel 

In a case where the CRPF had initiated disciplinary proceeding against a person with a medical history of obsessive compulsive disorder  and depression and has been undergoing treatment for the same since 2009, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination as such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings. 

“…while the stigma and discrimination against persons with mental health disorders are rampant in society, as the highest constitutional court of the country, it falls upon us to ensure that societal discrimination does not translate into legal discrimination.”

[Ravindra Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293, decided on 17.12.2021] 

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Women burdened with an unequal share of family responsibilities yet discriminated at workplace; State must consider family life while framing any policy 

Speaking about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman’s being from the outset, including reproduction, sexuality and private choices, within an unjust structure, the bench of Dr. DY Chandrachud* and Vikram Nath, JJ has observed that it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace. 

[SK Nausad Rahaman v. Union of India, 2022 SCC OnLine SC 297, decided on 10.03.2022] 

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Notable Judgements at High Court 

  

[Midnight Hearing] | Situation of Ahmedabad on account of COVID-19 cannot be compared with situation in Puri or in the State of Orissa (sic Odisha); No Rath Yatra at Ahmedabad 

A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., rejected all the civil applications in a midnight hearing, filed with regard to granting permission for Rath Yatra on the ground that Supreme Court allowed the Yatra in restricted manner by modifying its earlier order. 

[Mahant Akhileshwardasji Ramlakhandasji v. State of Gujarat, 2020 SCC OnLine Guj 917 , decided on 23-06-2020] 

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Also Read | SC modifies order; Jagannath Puri Rath Yatra to take place in a restricted manner 

  

 “If State would not have been doing anything, we all would have been dead”: Gujarat High Court berates politicizing of COVID-19 situation while at the same time reminding the State of its Constitutional obligations 

A Division Bench of Vikram Nath, CJ and J.B. Pardiwala, J.* while addressing certain issues with regard to COVID-19, stated that, 

“Healthcare access is the ability to obtain healthcare services such as prevention, diagnosis, treatment and management of diseases, illness, disorders, and other health ­impacting conditions. For healthcare to be accessible it must be affordable and convenient.”  

[Suo Motu v. State of Gujarat, 2020 SCC OnLine Guj 836, decided on 29-05-2020] 

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[COVID-19] | No Rath Yatra shall be carried out at Ahmedabad; No activities secular or religious associated with Rath Yatra to be conducted 

A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., held that in view of present times of outbreak of COVID-19, there shall be no Rath Yatra at Ahmedabad and any of the districts in the State of Gujarat.  

[Hitesh Kumar Vittalbhai Chavda v. Shri Jagannathji Mandir Trust, 2020 SCC OnLine Guj 910 , decided on 20-06-2020] 

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U.P. Power Corpn. Ltd. v. Urmila Devi, 2011 SCC OnLine All 152 

The 3- Judge Bench comprising of Ferdino Inacio Rebello, C.J. and Vineet Saran and Vikram Nath, JJ., deliberated upon the question that whether the definition of “family” under the U.P. State Electricity Board Dying in Harness Rules, 1975 would include a daughter-in-law. It was observed that a daughter-in-law on the death of her husband, does not cease to be a part of the family. 

“The concept that such daughter-in-law must go back and stay with her parents is abhorrent to our civilized society. Such daughter-in-law must, therefore, have also right to be considered for compassionate appointment as she is part of the family where she is? married and if staying with her husband’s family. In this context, in our opinion, arbitrariness, as presently existing, can be avoided by including the daughter-in-law in the definition of ‘family’. Otherwise, the definition to that extent, prima facie, would be irrational and arbitrary. The State, therefore, to consider this aspect and take appropriate steps so that a widowed daughter-in-law like a widowed daughter, is also entitled for consideration by way of compassionate appointment, if other criteria is satisfied”. 

 

‘Harrowing Tales, Unfortunate and Unimaginable Difficulties’ HC takes suo moto cognizance due to upsurge in COVID-19 cases and asks what steps Government will take 

The Division Bench of Vikram Nath, CJ and Bhargav D. Karia, J., had a dialogue with the Senior most State Law Officers, Advocate General and Government Pleader expressing concern regarding the upsurge of COVID-19 cases in the State and requesting the State to take appropriate measures in order to check and control the rise in COVID-19 cases and its management. 

[Suo Motu v. State of Gujarat, R/WP (PIL) No. 53 of 2021, decided on 12-04-2021] 

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Respondent entitled to gratuity under S. 2(e) of Payment of Gratuity (Amendment) Act, 2009; Court dismisses appeal while reproducing observations of Single Judge 

The Division Bench of Vikram Nath, CJ and Ashutosh J. Shastri, J., dismissed a Letters Patent Appeal which was filed aggrieved by the judgment and order passed in Special Civil Application. 

The Court stated that order cannot be said to be perverse in any form, as all possible contentions which had been raised have been dealt with by the Single Judge. The Court further mentioned that after construing the relevant provisions, namely Section 2(e) of the Payment of Gratuity (Amendment) Act, 2009 and after analyzing the facts in the context of Section 40(c) of the Act, they were in conformity with the view taken by the Single Judge. 

[Godhara Sarvajanik Shikshan Mandal v. Dimpleben Bhrupeshkumar Shah, 2020 SCC OnLine Guj 1656, decided on 03-02-2020] 

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Employed woman permitted to appear for All India Bar Examination; Directions issued to the Bar Council of Gujarat  

A Division Bench of Vikram Nath, CJ and J.B. Padiwala, J., allowed a petition which was filed praying to issue an appropriate writ, order or direction in order to quash and set aside Rule 1 and Rule 2 of the Bar Council of Gujarat (Enrollment) Rules to the extent that they prohibited the admission of a person who was otherwise qualified to be admitted as an advocate, but was either in full or part-time service or employment or was engaged in any trade, business or profession, as an advocate. 

[Twinkle Rahul Mangaonkar v. Union of India, R/Special Civil Application No.  15123 of 2019, decided on 06-10-2020] 

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Virtual Streaming of Court proceedings to be decided after Judge’s report to work out modalities in view of facilitating public at large 

A Division Bench of Vikram Nath, CJ and P.B. Pardiwala*, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court. 

“Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.” 

[Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020] 

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Tablighi Jamaat Crisis | Union of India to provide complete information to State of Gujarat of persons who were present for Tablighi Jamaat & have entered Gujarat 

A Division Bench of Vikram Nath*, CJ and Ashutosh J. Shastri, J. addressed a suo motu public interest litigation in view of incident of mass congregation in Delhi. 

At least 200 members of the said congregation have been reported to traveled to the State of Gujarat who may be infected with COVID-19. News reports have further confirmed death of one person in Gujarat out of a total of 8 deaths all over the country who had participated in the congregation at Delhi. 

[Suo Motu v. State of Gujarat,  2020 SCC OnLine Guj 385, decided on 01-04-2020] 

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* Judge who has penned the judgment. 


†Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal filed under Section 378 of Code of Criminal Procedure (CrPC) against the judgment passed by the trial court, acquitting Mukhtar Ansari of all charges under Sections 353, 504, 506 the Penal Code, 1860 (IPC), Dinesh Kumar Singh, J. has convicted Mukhtar Ansari for offences under Sections 353, 504, 506 IPC and sentenced him to undergo rigorous imprisonment for 2 years with fine of Rs. 10,000/- for offence under Section 353 IPC. Further, for an offence under Section 504 IPC, he is sentenced to undergo rigorous imprisonment for 2 years with fine of Rs. 2,000/- and for the offence under Section 506 IPC, rigorous imprisonment for 7 years with fine of Rs 25,000/-.

In the present case, the complainant was a jailer in the prison where former Uttar Pradesh M.L.A Mukhtar Ansari is a prisoner, in 2003 some people had come to meet Mukhtar Ansari and the complainant ordered for their frisking, on which Mukhtar Ansari got highly annoyed and abused him and took revolver from one of the persons and pointed it towards the complainant and gave him death threats.

The Court observed that Mukhtar Ansari has reputation of most dreaded criminal and mafia don who had more than 60 cases of heinous offences to his credit, and no one can dispute his credibility of striking terror and fear in the minds and heart of the people including the Government officials. Further, during his incarceration in jail, he had committed several heinous offences including elimination of his political rivals, kidnapping/abduction, usurping private and public properties, amassing wealth and properties from proceeds of crime. Even inside the jail, his people would come to meet him without any hindrance created by any jail staff and the warden opened the gate and allowed the people to meet Mukhtar Ansari, out of his fear and terror.

The Court further observed that the complainant did not have any enmity with Mukhtar Ansari, and it appears that he was trying to enforce rules inside the jail and, therefore, ordered that no visitor should be allowed to meet the prisoners unless permission is granted.

It was also observed that one of the witnesses in his examination-in-chief, had said that Mukhtar Ansari got highly enraged by the fact that the Jailer was not allowing visitors who had come to meet him inside the jail without permission and he took out a revolver from one of the visitors who and extended verbal threats of killing the complainant. However, the said witness was not cross examined on 12.12.2003 when his examination- in- chief took place. Thus, the Court accepted the submission of the complainant that when the said witness was influenced by Mukhtar Ansari, an application came to be filed to recall the said witness, which was allowed by Trial Court, and then the witness to some extent did not support the prosecution case in his cross examination.

The Court placed reliance on the ruling in Dayaram v. State of M.P., (2020) 13 SCC 382, wherein it was held that “even if the witnesses were declared hostile during their cross-examination, their testimony, prior to cross-examination can be relied upon” and further took note of the ruling in Ramesh v. State of Haryana, (2017) 1 SCC 529, wherein it was held that “evidence of a hostile witness cannot be totally rejected but requires its closest scrutiny and portion of evidence which is consistent with the case of the prosecution or defence may be accepted”. Thus, viewed that evidence of a witness who has supported the prosecution case in examination-in-chief does not get effaced or washed off the record altogether and in such a situation, it is the duty of the Court to examine the evidence carefully and find that part of evidence which can be accepted and be acted upon. Thus, there is no legal bar for conviction upon the testimony of hostile witness, given in examination-in-chief, if it is corroborated by other reliable evidence.

The Court observed that Criminal case is built on edifice of evidence which is admissible in Law and referred to the decision in Swaran Singh v. State of Punjab, (2000) 5 SCC 668, wherein the Court observed that “criminal cases can be adjourned again and again till the witness gets tired or gives up. Adjournments are taken till the witness is no more or is tired. This results in miscarriage of justice. The witness is not treated with respect in the Court”.

Placing reliance on the ruling in Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450, the Court observed that law is very clear that appellant court should not interfere with the judgment and order of acquittal unless the said judgment is perverse, or the view taken by the learned Trial Court is impossible view. Further, it is well settled that testimony of hostile witness does not get effaced completely and washed off record, and it is for the Court to closely scrutinize the testimony of such witness in the facts and circumstances of the cases and take into consideration while convicting or acquitting the accused on that part of the testimony which supports the prosecution case and can be relied on for convicting the accused.

It was also observed that “the witness who was given threats of life by pointing a revolver by Mukhtar Ansari, has fully supported the prosecution case in all respects in his examination-in-chief. Further, he does not have any enmity with Mukhtar Ansari, and there was no reason to falsely implicate him. Thus, there is no reason to disbelieve his testimony given in examination-in-chief and his testimony in cross examination which takes place after he could have been won over, does not appear to be credible”.

Thus, the Court observed that the Trial Court had completely ignored the evidence of that hostile witness given in examination-in-chief and had only considered his cross examination. Thus, the approach of the trial Court is palpably erroneous and against the well settled legal position, hence, the impugned judgment and order passed by the Trial Court is unsustainable. Further, the complainant was discharging public/official duty on the date, time and place of the incident and as Mukhtar Ansari used criminal force by pointing pistol towards him with intent to prevent and deter the complainant from discharging his duty as a Jailer, therefore, offence of assault or criminal force to deter public servant from discharge of his duties under Section 353 IPC, is clearly proved against Mukhtar Ansari and he is convicted for committing the said offence.

Moreover, Mukhtar Ansari abused the complainant and insulted him knowing that it would undermine the authority of the Jailer and would cause breach of peace inside the jail and outside inasmuch as if a public servant can be humiliated and abused, then authority of public functionary would get diminished, and people would not respect the lawful authority. Therefore, Mukhtar Ansari was also found guilty under Section 504 IPC i.e. intentional insult with intent to provoke breach of the peace, and as Mukhtar Ansari took pistol from a visitor and pointed towards the complainant and threatened him for his life. Thus, he is also guilty for criminal intimidation under Section 506 IPC.

[State of UP v. Mukhtar Ansari, 2022 SCC OnLine All 654, decided on 21.09.2022]


Advocates who appeared in this case:

Counsel for Appellant:- Government Advocate

Counsel for Respondent:- Advocate Abhishek Misra

Advocate Karunesh Singh

Advocate Satendra Kumar

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a case relating to unwanted 23-week pregnancy of a 12-year-old rape victim, the division bench of Attau Rahman Masoodi and Om Prakash Shukla, JJ. has permitted the medical experts to proceed with the termination of pregnancy in the interest of justice to free the victim of the trauma and social miseries ahead.

The Court ordered that the petitioner must be provided due medical care equipped with all the necessities required for the purpose. Further, the Chief Medical Officer was directed to monitor financial implications inclusive of the food and accommodation of two extra family members of the victim.

Moreover, the Court permitted the medical board to obtain the necessary consent of victim’s father before termination of pregnancy and further directed that the tissues of fetus must be preserved for forensic analysis and use of the evidence in trial.

The matter will next be taken up on 20.9.2022

[Ms. X Thru. Her Legal Guardian Bharat Lal v. State of U.P., 2022 SCC OnLine All 639, decided on 12.9.2022]


Advocates who appeared in this case :

Ashish Kumar Singh, Advocate, Counsel for the Petitioner;

Chief State Counsel, Counsel for the Respondent.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal against the decision of the Trial Court whereby the accused/appellant has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 376 of Penal Code, 1860 (IPC) with a fine of Rs. 10,000/- and in default thereof, to further undergo six months simple imprisonment, the bench of Ashwani Kumar Mishra and Shiv Shanker Prasad, JJ. has observed that the charge originally framed against the appellant of attempt to rape under Section 376/511 of Penal Code, 1860 (‘IPC’) is proved beyond reasonable doubt and the conviction of the appellant is altered from Section 376 IPC to Section 376/511 IPC and in view of the provisions contained in Section 57 IPC, the appellant was sentenced to undergo 10 years imprisonment. Further, as the appellant has already served the aforesaid sentence, he shall be released on compliance of Section 437-A Code of Criminal Procedure (CrPC). Thus, the Court sustained the order of conviction and partly allowed the present appeal.

In this case, the victim aged about 11 years went to jungle situated outside the village to collect wood, when the appellant with an evil intention grabbed the victim and dragged her inside the jungle and he attempted to rape her and threatened her to not disclose about the incident to her parents. However, the victim informed her mother about the said incident.

The Court noted that from the material placed on record, it did not appear that the statement of the victim was recorded under Section 164 of Code of Criminal Procedure, 1973 in the presence of the Magistrate and in her statement, recorded by the Police under Section 161 CrPC., she had only disclosed the offence of attempt of rape and not actual commissioning of offence of rape.

The Court observed that the complaint made orally by the informant did not contain any allegation regarding rape upon the victim. However, almost nine months after the alleged incident for the first time, the statements of the informant and the victim before the trial court contains a different story of actual commissioning of rape. Thus, these statements are not reliable or convincing.

The Court further observed that the statements of the informant and the victim about commissioning of offence of rape, appears to be clear improvement in the prosecution version, as no plausible explanation has been put forth as to why such disclosure was not made, when the first information report itself was lodged or when their statements were recorded under Section 161 CrPC. Moreover, even at the time of framing of charge such facts were not disclosed by the first informant or the victim. It further observed that “as these statements were made after nearly nine months from the date of alleged incident of commissioning of offence, therefore, does not inspire confidence of the Court”.

The Court also noted that the appellant has asserted in his statement recorded under Section 313 CrPC that he has been falsely implicated on account of enmity relating to election on the post of Village Pradhan, and the victim in her cross-examination has also admitted that her father was supporting the contestant for whom he worked, who had lost election of the said post to another contestant to whom the appellant and his family members supported.

The Court observed that “subsequent statements of the victim and the informant do not appear to be reliable, particularly when it is otherwise not supported by medical evidence”. It also observed that from the statement of the victim, coupled with the marks of injuries sustained by her and the statements of other witnesses, the charge originally framed against the appellant of attempt to rape under Section 376/511 IPC is proved beyond reasonable doubt. Thus, the Court sustained the order of conviction and released the appellant on compliance of Section 437-A CrPC, as he already served the given punishment of 10 years for attempt to rape.

[Mahesh Rathaur v. State of UP, 2022 SCC OnLine All 608, decided on 7.9.2022]


Advocates who appeared in this case :

Counsel for Appellant:- Advocate Sushil Kumar Dubey

Advocate Shivanand Mishra

Counsel for Respondent:- Government Advocate

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a bail application filed by the applicant charged under Sections 376-A, 376-B, 354 of Penal Code, 1860 (IPC), Sections 9-D and 10 of Protection of children from sexual offences, 2012 (‘POCSO Act’), and Section 3(2)(v) of Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act), Sadhna Rani Thakur, J. has without expressing any opinion on the merit of the case, released the applicant on bail subject to some conditions.

The Court noted that on the perusal of the First information report (FIR), it appears that in the absence of other family members, when the eight years old victim was alone at her home, she called the applicant to repair the dish connection, seeing the girl alone at her home, he started vulgar activities with her. In the statement under Section 161 of Code of Criminal Procedure, 1973, the victim has stated that when applicant came in the house to repair the dish connection, seeing the girl alone, he inserted his hand in her clothes and kissed her on lips. However, as per statement under Section 164 CrPC of the victim, the applicant after repairing the dish connection held her tightly and kissed on her lips, inserted his hand into her panty and also pressed her breast by inserting her hands therein.

The applicant submitted that there are no ingredients of Section 376 IPC as per the statements of the victim under Sections 161 and 164 CrPC. Further, no medical examination has been conducted as the parents of the victim refused to get her daughter medically examined. Moreover, the father of the victim is police personnel, and the FIR is only the misuse of that power. The applicant is 50 years of age and has been in jail since 13.04.2022.

The Court considering the seriousness of the charge, severity of punishment in case of conviction, the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India, and the decision in the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22 and without expressing any opinion on the merit of the case, released the applicant on bail subject to certain conditions.

[Manoj Saxena v. State of U.P, 2022 SCC OnLine All 624, decided on 2.9.2022]


Advocates who appeared in this case :

Umesh Pal Singh, Advocate, Counsel for the Applicant;

Government Advocate, Counsel for the Opposite Party.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a case relating to the fire incident on 05.09.2022 at a well-known hotel, namely, Levana Suites, where four human lives were lost and many more are in a critical state, the division bench of Brij Raj Singh and Rakesh Srivastava, JJ. have taken a suo motu cognizance of the various digital and print reports relating to the incident of fire and observed that there is an exigent demand to ensure that such incidents do not occur in the future and issued certain directions.

The Court placed reliance on various newspaper reports and noted that the hotel in question did not even have an approved map, and the hotel was being operated on the basis of a residential map. It has been further noted that the hotel was operating in blatant violation of several fire safety rules, with outdated and inadequate fire safety equipment.

Further, the Court expressed surprise on the fact that, at the time when this unfortunate incident took place that the hotel was in possession of Non-Objection Certificate (NOC) of fire department even, when there was a clear lack of fire escape management system and violation of several fire related safety rules on its part. Further, the hotel was allowed to operate for several years without having proper fire exits in place.

The Court also noted that another fire broke out in a coaching centre, namely, Gravity Classes on 06.09.2022 within a space of a few hours; and that several hotels, coaching centres, hospitals and commercial establishments are operating across the city of Lucknow without validly sanctioned maps and fire safety measures, with total impunity.

The Court observed that “this is a very serious state of affairs, with very wide public health and safety ramifications, and the saddest part is that the loss of life and property was totally avoidable in nature, by mere adherence to the rules and regulations in place by the establishments, and its stricter implementation by the concerned authorities”.

Moreover, the Court viewed that “it is deeply concerning that thousands of residential and commercial establishments are allowed to flout the building and fire safety rules by the relevant authorities, and it is only when a major tragedy such as the said incident takes place, that these authorities wake up from their slumber and start taking proactive steps to seal and demolish such buildings”.

Placing reliance on the decision in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, wherein the Court held that unauthorized constructions should be demolished, irrespective of the financial burden imposed upon the wrongdoers. Further, there is an urgent need to bring to book not only the builders flouting the norms, but also the officers who are involved in the raising of such illegal constructions.It further took note of the ruling in Dipak Kumar Mukherjee v. Kolkata Municipal Corpn.,(2013) 5 SCC 336 wherein the Court observed that it is imperative for the concerned public authorities to not only demolish such construction but also impose adequate penalty on the wrongdoer.

Thus, the Court directed the Vice-Chairman of the Lucknow Development Authority to be present before this Court on the next date of listing and directed him the following:

  • To file an affidavit detailing the number of establishments which are operating without proper building and fire permits in the city of Lucknow.

  • To bring on record as to how many commercial establishments are doing business without even a commercial map approval.

  • To ascertain the cases in which permits have not been issued, but illegally obtained.

  • To bring on record the steps being taken to curb this menace

  • To file an affidavit stating whether construction activities are being carried out as per approved land use; whether the map is sanctioned in accordance with the rules/ regulation governing the field; whether building completion certificate has been given by the Development Authority; whether the buildings in which commercial activity is being carried out have enough space for the movement of ambulance and fire brigade etc.

  • To bring on record the action taken, if any, by the authority against the officials found guilty in such cases.

Further, the Court directed the Chief Fire Officer to file his affidavit bringing on record the number of buildings, hospitals and commercial establishments which are operating without valid fire exits and equipment, and to clearly mention the number of NOCs which were found to have been wrongly given, in spite of the absence of proper adherence to the fire safety norms. It also directed the Public Interest Litigation Cell to register a suo motu Public Interest Litigation and requested Senior Advocate Jaideep Narain Mathur, and Advocate Meha Rashmi, to assist the Court in this matter by acting as Amicus Curiae. Moreover, the media was requested to produce relevant material on the basis of which they have reported the matter in the newspapers and the electronic media for the assistance of the Court.

The matter will next be taken up on 22.9.2022.

[In Re: Incidents of Fire at Levana Suites Hotel v. State of U P, 2022 SCC OnLine All 613, decided on 8.9.2022]

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: Samit Gopal, J. acquitted the appellant of the charges leveled against him of Section 307 of Penal Code, 1860 (‘IPC') wherein he was ordered to undergo three years and six months of rigorous imprisonment by the Additional District & Sessions Judge holding that the prosecution couldn’t establish the case beyond reasonable doubt.

As per the FIR, the police informer informed the police that one person standing at Jalalpur Mod and is about to commit an incident who is having narcotics and a country made pistol with him. The S.O. along with accompanying officials proceeded towards the said person and he all of sudden fired upon them to which they escaped and then they followed him after which near Jalalpur Mod he showed them his weapon but they arrested him on 03-03-2003 at about 23:40 hrs . They recovered a 12 bore country made pistol from his right hand and immediately upon opening its barrel found an empty cartridge. He further told them that he has diazepam tablets with him. He told them to take his search after which from his left pocket something wrapped in paper was found, on opening of which small tablets were recovered which were on counting found to be 300 tablets. The matter was investigated and a charge sheet was filed against the accused-appellant under Section 307 IPC.

Sub-Inspector was examined as PW-1 and the accused in his statement recorded under Section 313 Criminal Procedure Code, 1973 (‘CrPC') stated that he committed a fault and pleaded guilty. The Trial Court thus after his confession concluded that the prosecution had succeeded its case beyond reasonable doubt and convicts him as stated above.

Amicus Curiae, Satya Prakash Rathor argued that the view as taken by the trial court is fully perverse and illegal. The prosecution has to stand on its own leg and prove its case beyond reasonable doubt. It was pointed out that there is no opinion of any expert or even evidence to the effect that the said weapon was sent for analysis to show that there was fire made by the accused-appellant. The corroboration in so far as the use of the said weapon is concerned, was missing. It was argued that even the prosecution has not come forward to show that the said weapon was sent to the ballistic expert for its testing which would go to corroborate its use in the present case. It was argued that merely by pleading guilty in the statement recorded under Section 313 CrPC, the accused cannot be held guilty.

The main issue for this Court to decide was whether after pleading guilty in the statement recorded under Section 313 CrPC and the prosecution proving the recovery memo and in presence of one witness and the deposing against the accused who was one of the team members of the arresting team, is sufficient for conviction or not.

The Court noted that the present case was a case of no injury. The Court noted that the prosecution is silent as to whether the said weapon was sent to the ballistic expert for examination which would corroborate its use at that point of time. Mere recovery of a weapon and one empty cartridge would not be sufficient to prove the use of the said weapon without any corroborating evidence.

Another question was that if accused pleads guilty in his statement under Section 313 CrPC then does the circumstance rest against him or not to which the Court answered that the law stands undisputed that the statement under Section 313 CrPC is not evidence. It is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. However, it cannot be said to be a substitute for the prosecution evidence.

“It cannot be said that mere stating of being guilty in the statement under Section 313 CrPC will end the issue and would lead the route only to the guilt of the accused without prosecution establishing its case beyond reasonable doubt against him through cogent, reliable and admissible evidence.”

The Court was of the opinion that the accused-appellant deserves to be extended the benefit of doubt. The appeal was allowed.

[Gabbar Patel v. State, Jail Appeal No. – 5752 of 2007, decided on 11-08-2022]


Advocates who appeared in this case :

From Jail, Bhanu Pratap Singh A/C, Advocate, Counsel for the Appellant;

S.B. Maurya, Advocate, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Om Prakash Shukla, JJ. dismissed and appeal on the admission stage itself which was directed against the order passed by the family court under Section 24 of the Hindu Marriage Act, 1955 in a proceeding for divorce instituted by the appellant husband.

It was noted from the impugned order that only Rs. 3000/- per month had been granted towards interim maintenance to the respondent wife apart from Rs. 5000/- towards the cost of the proceeding. Counsel of the appellant had challenged the order contending that the appellant was unemployed and he has no source of income. It was further submitted that the respondent wife has independent income as she is running a medical store along with his father who is a doctor.

The Court was of the opinion that the mere fact that the respondent wife is educated and is doing something to survive since she has been thrown out of her matrimonial home cannot be a reason to deny interim maintenance.

An able-bodied husband cannot argue that he is not in a position to maintain his wife. It is social, legal and moral responsibility of a man to maintain his wife and no exception to the same can be taken by us, in view of bald assertions of the appellant.

The Court dismissed the appeal referring to the decision of the Supreme Court in Rajnesh v. Neha , (2021) 2 SCC 324 where law of maintenance was discussed.

[Vaibhav Singh v. Divyashika Singh, 2022 SCC OnLine All 577, decided on 03-08-2022]


Advocates who appeared in this case :

Santosh Kumar Singh, Advocate, Counsel for the Appellant.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: Saurabh Shyam Shamshery, J. dismissed a writ petition filed for claiming compassionate appointment stating that compassionate appointment cannot be claimed or offered after a significant lapse of time and after crisis is over.

Petitioner claimed to be the adopted son of late Ram Achal Singh through adoption deed dated 23-10-1990 who had died in harness on 31-01-1995. Counsel of the petitioner submitted that petitioner was given assurance for compassionate appointment, therefore, he remained silent however on 17-08-1999, he submitted an application for compassionate appointment. The claim of petitioner was rejected on the ground that adopted son was not included in the definition of ‘family' under Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (“Rules, 1974”) . Thus, the instant petition.

Counsel for petitioner submitted that cause of petitioner still survives and adopted son is now included in the definition of family, therefore, his claim may be considered and petitioner be appointed on compassionate ground.

Standing Counsel appearing for State-Respondents, submitted that Ram Achal Singh died way back on 31-01-1995, i.e., 27 years ago, therefore, even the petitioner has purported right of compassionate appointment, it could not be considered at such belated stage.

The Court heard the parties and reproduced two recent judgments of the Supreme Court in relation to Compassionate Employment first being Government of India v. P. Venkatesh, (2019) 15 SCC 613 and Central Coalfields Limited through its Chairman and Managing Director v. Parden Oraon, 2021 SCC OnLine SC 299.

It was then noted that in the death of the employee was not in dispute and petitioner for the first time approached respondents on 17-08-1999, i.e., after more than four years. Thereafter petitioner remained silent for some time and again approached respondents in the year 2001 which was again rejected. Relying on these judgments the Court said that the object of compassionate appointment is to tide over the immediate financial crisis suffered by the bereaved family due to unexpected death of employee concerned. The substantial delay in the present case is now more than 27 years which goes against the claim of petitioner.

The Court held that an amendment was carried out which was published in U.P. Gazette dated 22-12-2011 wherein adopted son was also included. Therefore, the impugned order cannot be faulted since at that time adopted son was not included under the definition of ‘family'.

Finally, the Court while dismissing the petition held that the claim of petitioner was rightly rejected by impugned order as well as considering the claim of petitioner for compassionate appointment at belated stage, after 27 years of death of his father, cannot be sustained.

[Sanjay Kumar Singh v. State of U.P., Writ – A No. – 47252 of 2003, decided on 03-08-2022]


Advocates who appeared in this case :

A.K. Dubey, Arvind Tripathi, B.K.Tripathi, M.P. Pandey, Pradeep Singh Sengar, S.K.Yadav, Advocates, Counsel for the Petitioner;

C.S.C., A.K.Dubey, B.K. Tripathi, S.K. Yadav, Advocates, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamshery, J. dismissed the writ petition which was filed praying to issue a mandamus commanding and directing to respondent 3 to exempt the age relaxation to the petitioners for Assistant Prosecution Officer and accept the application form of the petitioners for Assistant Prosecution Exam.-2022.

All the petitioners were candidates of recruitment process for the post of Assistant Prosecution Officer Exam – 2022 and their counsel contended that no recruitment process for Prosecuting Officers could be conducted after 2018 and after four years now in 2022, present recruitment process is commenced. During 4 years, many candidates have become over aged and by fixing cut off date for maximum age of 40 years to be 1-7-2022, respondents have declined petitioner’s legitimate right to participate in the examination and cut off date for maximum age ought to be 1-7-2021. It was further submitted that date of Advertisement was 21-5-2022, therefore, year of recruitment ought to be 1-7-2021 to 1-7-2022 and accordingly cut off date for maximum age ought to be 1-7-2021 and not 1-7-2022.

Counsel for respondent 2 submitted that advertisement was issued on the direction of State, therefore, respondent 2 has no submission on merit, however, Advertisement was issued on 21-4-2022, therefore, recruitment year would be 2022-23 and reckoning of date would be 01-07-2022, as such, cut off date is rightly fixed.

The Court noted that Covid-19 pandemic has startled and affected not only day to day life of a human being but has affected State’s normal working and an example of it is the recruitment process in question which is scheduled after four years. Resultantly, petitioners became over aged.

The Court however after hearing the parties and the evidence on record found that in the recruitment process, candidate between 21 years to 40 years are eligible to participate and there is no limit of attempts, therefore, petitioners were eligible to participate in recruitment held prior to recruitment held in 2018, therefore, the argument that they have been denied the right of legal expectation has no force. The court considered the fact that it was beyond control of the State, therefore, State cannot be faulted for not conducting recruitment examination during Covid-19 pandemic.

It was noted that Assistant Prosecution Officer examination 2018 was advertised by Advertisement dated 28-12-2018 and cut off date for maximum age was forced to 01-07-2018 whereas for Assistant Prosecution Office examination, 2022 (Advertisement dated 21-4-2022), cut off date for maximum age is fixed i.e. 1-7-2022. The relevant cut off date is fixed according to year of advertisement. The Court distinguished on facts the case of High Court of Delhi v. Devina Sharma, (2022) 4 SCC 643 relied on by the petitioners where the age was relaxed on basis of submission of the recruitment body as in the present case State has fixed the cut off date and being a policy matter not be disturbed or interfered not being to be 1-7-2022, which has followed earlier pattern arbitrarily.

The Court observed that it is settled proposition that due to inaction on the part of the State Government in not filing the posts year-wise, the candidates cannot get a right to participate in the selection process being over aged and that nobody can claim as a matter of right that recruitment on any post should be made every year. State has taken a decision which cannot be interfered except it is arbitrary which the petitioners have failed to make out a substantial case. In the present case, Commission has advertised on 21-4-2022, therefore, calendar year would be 01-01-2022 to 31-07-2000 and accordingly date would be first day of July of Calendar year i.e. 1-7-2022. Commission and State have followed the provisions correctly. Fixing of date cannot be said to be arbitrary.

The Court finally reproduced relevant paragraphs of the judgment in Vijay Kumar Singh v. State of U.P., 2022 (7) ADJ 677 (LB) and in placing reliance dismissed the writ petition finding no illegality and irregularity in fixing of reckoning date in terms of date of advertisement.

[Ajay Kumar Yadav v. State of U.P., 2022 SCC OnLine All 542, decided on 11-08-2022]


Advocates who appeared in this case :

Somendra Singh, Advocate, Counsel for the Petitioner;

C.S.C., Avneesh Tripathi, M.N. Singh, Advocates, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Appointments & TransfersNews

   

The President is pleased to appoints following to be Additional Judges of Allahabad High Court, for a period of two years, with effect from the date they assume charge of their respective offices

1. Mohd. Azhar Husain Idrisi;

2. Ram Manohar Narayan Mishra;

3. Mayank Kumar Jain;

4. Surendra Singh-I, and

5. Nalin Kumar Srivastava.

The appointment of following Additional Judges of Allahabad High Court, with effect from the date they assume charge of their respective offices till 21.06.2024, 16.05.2024, 14.07.2024 and 05.05.2024 respectively, when they attain the stipulated age of 62 years fixed for a High Court Judge:

1. Smt. Renu Agarwal;

2. Smt. Jyotsna Sharma;

3. Shri Shiv Shanker Prasad; and

4. Shri Gajendra Kumar.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Rajesh Singh Chauhan, J. allowed a bail application in a case registered under sections 376, 506 Penal Code, 1860 and sections 5,6 of POSCO Act, 2012.

Counsel for the applicant submitted that this is a case of love affair. Even as per the prosecution story so narrated in the F.I.R. she had gone to Ludhiyana with the present applicant willingly where the present applicant established physical relation on the promise of marriage. Attention was drawn towards the statement of prosecutrix recorded under section 161 and 164 Criminal Procedure Code, 1973 wherein she had not leveled any allegation against the present applicant. She did not support the prosecution version rather submitted that she was willingly living with the present applicant. Their relation were consensual. They got married without informing their family members. She subsequently conceived and was blessed with a male child. It was further submitted that presently the prosecutrix was living with the family members of the applicant and she does not want to go to the place of her parents.

However, State Counsel opposed the bail application on the point that since the age of the present applicant at the time of incident was below 18 years, to be more precise, around 15 years and one month on the basis of statement of the Principal of the institution where the prosecutrix was studying. Therefore, such consent of prosecutrix is meaningless in the eyes of law and the present applicant should not be released on bail.

The Court was pained to observe the fact that a children of tender age who have not attained the age of majority are indulging in such type of relations which may not be said to be a proper relation. When a certain age has been prescribed by the statute to get married and live accordingly, any such act which has been committed prior to such age cannot be approved. The age of 15-16 years or below 18 years is not the age where any young couple should enter into the institution of marriage.

The Court however opined that in the present circumstances wherein the present applicant and prosecutrix have not only got married but they are having infant son from said wedlock and it is the responsibility of the couple to look after his child properly, it would be only just to release the applicant from jail otherwise there might be a possibility that his minor wife with his son might not be taken care of properly by his parents.

The Court allowed the bail application with certain directions considering the larger interest of the child and mother who should have been taken care of by the present applicant.

[Suraj v. State of U.P., 2022 SCC OnLine All 485, decided on 27-05-2022]


Advocates who appeared in this case :

Ram Pukar Singh, Advocate, Counsel for the Applicant;

Dr Gyan Singh ,Shiv Charitra Tiwari, Advocates, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Rajesh Bindal, CJ. and J.J. Munir, J. had taken note of a news item published in a newspaper on 24-05-2022 regarding cleaning of drains in the city where the workers were carrying out their job without any protective gears, this petition was registered in public interest.

In various submitted affidavits certain photographs were placed on record along with the application dated 07-06-2022 showing the manner in which the drains were still being cleaned. The Court took cognizance of the submissions and found that it is evident that no protective gears have been provided to the workers and they were still waist deep under the water for cleaning of drains. The Court further observed that some of the drains were in open areas but still no machines were being used for cleaning of the drains, though it is claimed that Nagar Nigam has number of machines available, which are being used for cleaning of drains.

The Court summoned the District Magistrate and Nagar Ayukt, Prayagraj on 25-07-2022 taking note that the affidavit which was filed by Upper Nagar Ayukt on 13-06-2022 had no response to the aforesaid factual position placed on record by the Amicus Curiae appointed by this Court.

[In Re Ensuring The Security of Life and Safety of Health of the Workmen and Employees Engaged v. Government of U.P., 2022 SCC OnLine All 475, decided on 12-07-2022]


Advocates who appeared in this case :

Mr Kunal Shah, Amicus Curiae, Advocate, for the Petitioner;

Mr Manish Goel Additional Advocate General for the State and Mr Vibhu Rai, Advocate for Nagar Nigam, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Siddharth, J. allowed an application for anticipatory bail filed on behalf of applicants in relation to an FIR registered under Sections- 504, 506, 384, 467, 468, 120-B Penal Code, 1860.

Applicant 1 (58 years), the applicants 2 and 3 are the sons and the applicant 4 is the daughter of applicant 1 and the applicant no 2 and 4 are the directors of several companies situated at Agra. The applicants 5 and 7 are the employees of said company and applicant 6 was earlier director of complainant’s company. Huge amount has been paid to the opposite party 3, who is director of Vastu Colonisers (P) Ltd., having its office at Jaipur through the Pink City Infrastructure (P) Ltd., for providing the land of 380 bighas at Jaipur for the development of Township and the colonies. However, till date only 80 bighas of land has been provided and the money has not been returned to the applicant’s company through the Pink City Infrastructure (P) Ltd.

Pink City Infrastructure (P) Ltd., thus lodged an FIR against the opposite party 4 and other persons at Agra which had been registered as FIR 0508 of 2021 on 11-12-2021 at Police Station in Agra, under Sections- 120-B, 406, 420, 467, 468, 471 IPC as they had cheated the applicant’s company and not provided the land as agreed therefore, as a counter blast FIR 444 of 2022 has been lodged by the opposite party 3 against the applicants and several other persons only to create pressure upon them to appear the court at Jaipur.

Counsel for the applicants has submitted that the FIR has been lodged at the Police Station- Mansarovar, Jaipur City (South), Rajasthan and the applicants are the residents of District — Agra in the State of U.P. They are willing to appear before the court concerned at Jaipur, Rajasthan for the purpose of getting bail. However, they may be granted transit anticipatory bail for short time so that they may appear before the competent court at Jaipur under limited protection granted by this court by way of time bound transit anticipatory bail.

Additional Government Advocate has opposed the prayer made on behalf of the counsels for the applicants and has submitted that this Court has no jurisdiction to grant any protection to the applicants. The offence has taken place outside the state.

The Court after listening to the parties found that there is no legislation or law which defines ‘transit or anticipatory bail’ in definitive or specific terms. The term ‘transit’ means the act of being moved from one place to another while the word ‘anticipatory bail’ means a temporary release of any accused person who is anticipating arrest, therefore, transit anticipatory bail refers to bail granted to any person who is apprehending arrest by police of a State other than the State he is presently located in.

The Court further explained that transit anticipatory bail is different from ordinary bail. Ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e., it precedes detention of the accused and is effective immediately at the time of the arrest. The Court further emphasized on the fact that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail. The mere fact that an accused has been granted transit bail, does not means that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail. Upon the grant of transit bail, the accused person, who has been granted such transit bail, has to apply for anticipatory bail before the regular court.

The Court further relied on the decision of the Bombay High Court in Teesta Atul Setalvad v. State of Maharashtra, 2014 SCC OnLine Bom 4819 where it was held that the High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 of the Criminal Procedure Code. In appeal the Supreme Court had declined to interfere with the said order (Teesta Atul Setalvad v. State of Maharashtra, 2014 SCC OnLine Bom 4819).

The Court consequently held that there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered. The Court allowed the application finding that there are commercial transaction ensued between the applicants and the complainant and there are criminal cases lodged by the parties against each other and that it is a fit case where the applicants should get the privilege of transit pre-arrest bail.

[Amita Garg v. State of U.P., 2022 SCC OnLine All 463, decided on 06-07-2022]


Advocates who appeared in this case :

Ram Kishore Pandey, Ajay Kumar Bashist Singh, Advocates, Counsel for the Applicant;

G.A., Advocate, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. rejected a bail application which was filed by the accused-applicant in FIR registered against him and another co-accused under Sections 120-B, 167, 195-A, 218, 306, 504 and 506 Penal Code, 1860.

The accused-applicant, BSP MP, elected from Ghosi Lok Sabha Constituency of Uttar Pradesh in 2019 general elections of Lok Sabha. He to his credit so far has 23 criminal cases, which include cases of kidnapping, murder, rape and other heinous offences. The current case was registered against the accused-applicant on a complaint by the victim, who later on attempted to commit suicide along with her friend within the precincts of the Supreme Court India on 16-08-2021 and they were admitted in very serious and critical conditions. They had gone live on Facebook making serious allegations against the accused-applicant and co-accused. Statements made by two victims live on Facebook have been treated as dying declarations. It was alleged that the co-accused an Ex IPS-officer was manufacturing false documents/evidence against the victim and her friend to favour present accused-applicant on monetary consideration.

Director General of Police constituted a Two Members Committee which submitted its report based on which a written complaint was given by Sub Inspector which is the basis of the FIR in question registered against the accused-applicant and co-accused.

The Court pointed out the unfortunate irony of the largest democracy of the world that as many as 43 percent of the Member of Lok Sabha who got elected in 2019 general elections are having criminal cases including cases related to heinous offences pending against them.

The Court further reiterated what the Supreme Court observed in Public Interest Foundation v. Union of India, (2019) 3 SCC 224 where it had taken note of 244th Law Commission report in which it was said that 30 per cent or 152 sitting M.P.s were having criminal cases pending against them, of which about half i.e. 76 were having serious criminal cases. This phenomenon has increased with every general election. The Supreme Court has said that this leads to a very undesirous and embarrassing situation of law breakers becoming law makers and moving around police protection. The Supreme Court in the said case has directed the Election Commission of India to take appropriate measures to curb criminalization in politics but unfortunately collective will of the Parliament has not moved in the said direction to protect the Indian Democracy going in the hands of criminals, thugs and law breakers.

No one can dispute that the present-day politics is caught in crime, identity, patronage, muscle and money network. Nexus between crime and politics is serious threat to democratic values and governance based on rule of law.

Read more…

The Court further opined that it is responsibility of the Parliament to show its collective will to restrain the criminals from entering the politics, Parliament or legislature to save democracy and the country governed on democratic principles and rule of law and Parliament and Election Commission of India are required to take effective measures to wean away criminals from politics and break unholy nexus between criminal politicians and bureaucrats.

The Court held that looking at the heinousness of offence, might of the accused, evidence available on record, impact on society, possibility of accused tampering with the evidence and influencing/ winning over the witnesses by using his muscle and money power does not find that there is a ground to enlarge the accused-applicant on bail at this stage. The application for bail was rejected.

[Atul Kumar Singh v. State Of U.P., 2022 SCC OnLine All 446, decided on 07-06-2022]


Advocates who appeared in this case :

Kaustubh Singh, Advocate, Counsel for the Applicant;

G.A., Advocate, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: While dismissing the bail application in case registered under Section 302, 120-B Penal Code, 1860, Sameer Jain, J. held that parity cannot become the sole criteria to grant bail.

Applicant is the cousin brother of the deceased. FIR was lodged against the applicant and his parents with the allegation that applicant along with his parents ablazed the sister of informant by pouring kerosene oil and during the course of treatment she succumbed to her injuries. The dying declaration of the deceased was recorded by the Additional City Magistrate-III on the date of incident in the hospital in which she stated that applicant, his parents and brother of applicant dragged her in their home and after pouring kerosine oil ablazed her.

Counsel for the applicant submitted that entire allegation made in the FIR and in the dying declaration of the deceased was totally false and baseless and initially, during investigation, the accusation made against the applicant and his parents were found false. He vehemently submitted that co-accused have already been enlarged on bail by the co-ordinate Bench of this Court and as per dying declaration the allegation against the applicant is also at par with those accused persons, who have been enlarged on bail, therefore, on the ground of parity applicant should also be released on bail.

AGA submitted that there is specific allegation against the applicant in the dying declaration of the deceased recorded by the Additional City Magistrate-III and while granting bail to co-accused the dying declaration of the deceased could not be discussed, therefore, on the ground of parity applicant should not be released on bail.

The Court noted that the informant was not the eye-witness but Additional City Magistrate- III recorded the dying declaration of the deceased and from its perusal there is specific allegation against the applicant and co-accused. The Court from the perusal of the bail orders of other co-accused found that they were given bail without assigning any reasons. They were released on bail merely on the basis of argument advanced by counsel for the co-accused persons.

The Court reiterated the recent Supreme Court case of Birjmani Devi v. Pappu Kumar, (2022) 4 SCC 497 where the Court deprecated the practice to allow bail application without assigning any reason observing,

“38. Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

The Court dismissed the bail application stating that parity cannot become the sole criteria to grant bail and if the bail granted to similarly placed co-accused persons without assigning any reasons then on the basis of such bail orders merely on the ground of parity, the bail application should not be allowed and parity can only be persuasive in nature and cannot be binding.

[Manish v. State of U.P., 2022 SCC OnLine All 429, decided on 22-06-2022]


Advocates who appeared in this case :

Mr Kapil Tyagi, Advocate, for the Applicant;

Mr Arvind Kumar, Advocate, for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Appointments & TransfersNews

The President appoints following Additional Judges of the Allahabad High Court, to be Judges of the Allahabad High Court with effect from the date they assume charge of their respective offices:

  1. Shri Justice Sanjay Kumar Pachori,
  2. Shri Justice Subhash Chandra Sharma,
  3. Shri Justice Subhash Chand,
  4. Smt. Justice Saroj Yadav,
  5. Justice Mohd. Aslam,
  6. Shri Justice Anil Kumar Ojha,
  7. Smt. Justice Sadhna Rani(Thakur),
  8. Justice Syed Aftab Husain Rizvi,
  9. Shri Justice Ajai Tyagi, and
  10. Shri Justice Ajai Kumar Srivastava-I

Ministry of Law and Justice

Interviews

Mr Justice Ravi Nath Tilhari is currently a Judge of the Andhra Pradesh High Court. Before sitting on the Bench, he had an illustrious practice of 28 years in litigation. He was appointed as Additional Judge of Allahabad High Court on 12-12-2019 and took oath as a permanent Judge on 26-3-2021. Later on, he was transferred to the Andhra Pradesh High Court on 18-10-2021. Till today Justice has passed some significant judgments, including Badugu Panduranga Rao v. Legal Services Authority[1], where he held that the Legal Services Authorities Act of 1987, does not provide any jurisdiction to appoint a guardian; Amoda Iron Steel Ltd. v. Sneha Anlytics and Scientifics[2], which is a landmark judgment related to Commercial Courts Act; Pattam Gousha Bi v. Pattan John Shaida[3], where he held that when there can be no pronouncement of talaq, contrary to Mahomedan law, orally, it can also not be in the form of writing; Rentapalli Anand Mary v. Kankipati Kalyan Babu[4], where he held that rape is a crime against society and cannot be settled between the parties.

 

He has been interviewed by Ayush Shukla, EBC/SCC Online Student Ambassador who is currently pursuing law from TNNLU.

1. Please tell us about how your journey in the field of law started. Given that you are a 3rd generation lawyer, did you have any choice?

I would trace out the journey in the legal profession in the year 1918, when my grandfather, late Moti Lal Tilhari, joined the Bar and practised in the Commissioner Court of Awadh; in the Chief Court of Awadh at Lucknow, and after the amalgamation of the Chief Court of Awadh in the new High Court he practised in the new High Court at Lucknow. He dreamed that someone from his family, which hails from Tilhar, in District Shahjahanpur, would deliver justice to the poor and needy persons. It came true on the elevation of my father, late Mr Justice Hari Nath Tilhari as a Judge of the Allahabad High Court on 4-2-1992 and later on transferred to the Karnataka High Court.

I joined this noble profession on 23-3-1991. There is no question of any other choice as I entered the profession by my own choice. I never thought of entering any profession or service other than the legal profession. I feel proud, with all humbleness, to say that for more than 100 years, we have been rendering our services in the dispensation of justice as lawyers and as Judges, and the journey is still on.

2. To what extent have your law school or initial days of your practice contributed to what you are today, and from that experience, could you please tell our readers what all things one should remember during those days of their life?

 

My memories are still fresh of my Lucknow University days while studying law. I pay my regards and owe gratitude to my teachers who imparted the knowledge in law to make my basics strong.

The memories are also fresh from the day I entered this profession in the old High Court building campus at Lucknow. I found the Awadh Bar Association a family away from home, which has been through all my thick and thin and helped me grow into what I am today. Many senior advocates of that time extended their valuable guidance to me even in the courtroom while arguing a case when faced with the intricacies of the law. I feel privileged to be a part of one of the strongest and most amicable Bar of the High Courts, the Awadh Bar Association, which is rich in culture and heritage.

The youngsters should focus in their early days on utilising the time they have to read law journals to be acquainted with the latest ones. Spend more time in courtrooms, even if they have no brief of their own. They will learn a lot from the arguments going on in the courtroom, the observations made, and the courtcraft from the senior members.

3. Recently Chief Justice N.V. Ramana inaugurated the International Arbitration and Mediation Centre in Hyderabad, a function in which you were also an esteemed guest. In his speech, while being a strong advocate of the alternate dispute resolution process, Chief Justice Ramana has stated that “people should explore ADR options such as arbitration and mediation first, and approach courts only as a last resort”. So, what are your views about this statement and the alternate resolution mechanism?

 

Let me briefly state about the alternative dispute resolution mechanism. Resort to an alternative dispute resolution mechanism is intended to bring an end to litigation between the parties at an early date and amicably. Section 89 of the Code of Civil Procedure was inserted with this object to see that the court itself need not necessarily decide all the cases filed in court.

There are five types of well-known alternative dispute resolution measures arbitration, conciliation, judicial settlement, settlement through Lok Adalat, and mediation.

Arbitration is an adjudicatory process by a private forum governed by the provisions of the Arbitration and Conciliation Act, 1996. This can be recourse to when there is a pre-existing arbitration agreement between the parties. But, even if there is no pre-existing agreement, the court can refer the parties to the suit proceedings for the resolution of the dispute by the arbitrator with the consent of all the parties. Then, the case goes outside the stream of the court and becomes an independent proceeding before the Arbitral Tribunal, which ends in a decision, subject of course to the judicial proceedings provided under the Arbitration and Conciliation Act, 1996 itself.

The conciliation process is also governed by the Arbitration and Conciliation Act, 1996, for which there can be a valid reference if both the parties to the dispute have consented to negotiation with the help of a third party or third parties.

In conciliation, judicial settlement, or mediation, the dispute would not ipso facto go outside the judicial system, but if, despite efforts, it is not successful, the dispute will ultimately be decided by the court. Suppose the conciliation, mediation, or judicial settlement is successful. In that case, the settlement agreement will have to be placed before the court concerned for recording the settlement and disposal, as these processes are non-adjudicatory.

The Lok Adalats are of two types. One, the Lok Adalat constituted under Section 19 of the Legal Services Authorities Act, 1987. It has no adjudicatory function but discharges a purely conciliatory function. The second is permanent Lok Adalat which is established under Section 22-B(1) of the Act 1987, regarding specified public utility services, having both conciliatory and adjudicatory functions. On failure of conciliation, the permanent Lok Adalat proceeds to adjudicate the dispute on merits.

The awards of the Lok Adalat are also of two kinds: one, made in a direct reference by parties under Section 19(5) of the Act, 1987, without the intervention of the court, and the other made on a reference by a court in a pending proceeding. The award of the Lok Adalat made on a reference by a court has to be placed before the court for recording and disposal in terms of the award. The Lok Adalat award is deemed a decree of a civil court and is executable.

I am also a strong advocate of alternate dispute resolution mechanisms. During my practice days, I was an active member of the Mediation and Conciliation Centre, High Court at Lucknow. My first endeavour has always been to see if the dispute, having regard to its nature, can be amicably settled through an alternative dispute resolution mechanism and if it can be, all the efforts should be made to make it a success. This process helps in maintaining the harmony between the litigating parties and reduces the number of cases in the court that can be amicably resolved. It is cost-effective, less time consuming, and most importantly, particularly in a non-adjudicatory process, results in a win-win situation for both the litigating parties, as the settlement arrived at is voluntary with their consent and of their choice.

Therefore, I strongly believe that the people should explore ADR options before approaching the court. Even after they approach the courts, they should always be ready to take recourse to ADR for an amicable settlement of their dispute.

The establishment of the International Arbitration and Mediation Centre in Hyderabad is a welcome step and will undoubtedly lead to a productive outcome.

 

4. Why do you think we need arbitration centres? What is the importance or need of institutional arbitration, while there are ad hoc arbitrations, which are widely preferred? 

As I have highlighted, in response to the earlier questions, the importance of the alternative dispute resolution measures in the dispensation of timely justice, it is the need of the hour that steps are taken to promote ADR-friendly culture in India. So, setting up arbitration centres is a step towards achieving that objective. The institutional arbitration centres have their set rules and regulations as opposed to the ad hoc arbitration, where these rules and regulations are to be negotiated before the session even starts and which at times becomes a point of dispute in itself. Moreover, the arbitration centres are assisted by a panel of experts in specified fields in which arbitration is to take place, making it more convenient to deal with matters of complexity. It would raise the people’s confidence in the ADR mechanism and make it preferable to the public by their choice.

 

5. Recently in an interview Justice A.K. Sikri (Retd) Judge, Supreme Court of India and an associate member of the 4 Pump Court, London has pointed out that one of the major obstacles in letting foreign companies prefer India as a seat of arbitration is the delay in adjudication of issues related to Section 34 of the Arbitration and Conciliation Act, 1996 which is related to setting aside of arbitral award, by the courts. So, what is your view of this, and how can the judiciary address this issue?

Section 34 of the Arbitration and Conciliation Act, 1996 provides for setting aside an arbitral award by the court on limited grounds contained in its sub-section (2). The recourse for setting aside an arbitral award can be made only by an application confined to the grounds under sub-section (2). The application must be made within three months from the date of receipt of the arbitral award, but an application filed beyond this period may be entertained within a further period of thirty days if the applicant was prevented by sufficient cause. After that, an application for setting aside award cannot be entertained. Further, as per sub-section (5), such an application shall be filed only after issuing a prior notice to the other party. This is to ensure that the time consumed generally in service of notice after the filing of the application is avoided and made good within three months prescribed for filing the application for setting aside the award. Sub-section (6) also provides that an application for setting aside the arbitral award shall be disposed of expeditiously and in any event within one year from the date of service of the notice on the other side.

The challenge to an arbitral award cannot be on merits. There is no power given to the court to modify the award or even remand the matter to the arbitrator after setting aside the award. Suppose the court finds it appropriate and it is so requested. In that case, the court may adjourn the proceeding for a definite period to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or take such other action as, in the opinion of the Arbitral Tribunal, will eliminate the grounds for setting aside the arbitral award.

The appeal under Section 37 is against the order of the court either setting aside or refusing to set aside an arbitral award. Any other order passed in proceedings under Section 34 has not been made appealable.

When it comes to the execution of the arbitral award, the execution court cannot enter any factual enquiry, which may have the effect of nullifying the decree itself. However, it can undertake a limited enquiry regarding jurisdiction issues going to the root of the decree, having the effect of rendering the decree a nullity.

Finality has been attached to the arbitral award even when the award is not enforced. Once an award is made on a subject-matter, no action can be started again on the original claim.

Thus, there are ample safeguards to ensure that the adjudication of issues related to Section 34 is not delayed. The only thing required, in my view, is to adhere to the statutory provisions.

 

6. What steps, according to you, can be taken to promote arbitration-friendly culture in India to make it an attractive seat for arbitration not only for domestic companies but also for foreign companies? Besides judiciary, what, according to you, should be the role of Government in achieving the same? 

Making India a preferable seat for arbitration and developing an arbitration-friendly culture in India is not a one day process. It is a gradual process that will gain pace as the society of India moves forward with education and awareness about arbitration. Undoubtedly, setting up the International Arbitration and Mediation Centre at Hyderabad is a progressive step towards promoting the arbitration culture in India. There are already centres like Delhi International Arbitration Centre (DIAC) and Nani Palkhivala Arbitration Centre (NPAC), which are playing a significant role in strengthening the arbitration in India. Still, we need more such centres to promote healthy arbitration. An arbitration-friendly culture will attract better business opportunities in the country, as big multinational companies prefer arbitration over litigation for speedy remedies. So, if India adopts the arbitration culture, the chances of witnessing more business opportunities will increase. Moreover, the promotion of arbitration culture in India, as I have earlier said, needs awareness, and for this purpose, we must take steps. Here, major efforts should be made by the stakeholders of the legal fraternity.

7. You have been a part of one of India’s oldest and newest High Courts and have witnessed both going from physical to virtual hearing, and in this, you must have witnessed the changes that the system has undergone, which has its own merits and demerits. Could you please tell our readers what, according to you, are the merits and demerits of going virtual? Are there any infrastructural issues that need to be addressed in India?

 

I would like to briefly state the history of the Allahabad High Court. The Allahabad became the seat of the Government of North-Western Provinces, and the High Court was established in 1834. It was shifted to Agra, and then at Agra on 17-3-1866 under the High Courts Act, 1861, the High Court of Judicature for the North-Western Provinces was founded. It was shifted from Agra to Allahabad in 1875, and its name was changed to the High Court of Judicature at Allahabad from 11-3-1919. In Awadh, on 2-11-1925, the Awadh Judicial Commissioner Court was replaced by the Awadh Chief Court at Lucknow, by the Awadh Civil Court Act, 1925, and on 25-2-1948 the Chief Court of Awadh was amalgamated with the High Court of Allahabad, by the United Provinces High Court (Amalgamation) Order, 1948. Thus the new High Court, the present Allahabad High Court, was established with its seats at Allahabad and at Lucknow.

It is my proud privilege to be part of the Allahabad High Court not only because it is the biggest High Court in the country and one of the oldest High Courts but also because it has pronounced many fearless, landmark judgments upholding the Constitution, the democracy independence of the judiciary, the basic structure, as also the dignity of an individual. To mention a few, I may refer to Keshav Singh v. Speaker, Legislative Assembly[5]; Raj Narain v. Indira Nehru Gandhi[6]; and Rahmat Ullah v. State of U.P.[7] (known as Triple Talaq case).

The High Court of Andhra Pradesh was established in 1954 when the State was formed from the earlier Madras Presidency. However, post bifurcation of Andhra Pradesh new High Court was established on 1-1-2019 under the Andhra Pradesh Reorganisation Act, 2014. I cherish my journey from Allahabad High Court to Andhra Pradesh High Court and would work for its glory.

Regarding virtual hearing, I would not name it as “merits” or “demerits” but would prefer to say it as how habitual or familiar people want to be with the new set-up. This all depends upon the approach of the people towards a virtual hearing. The more positively the people react, the fewer demerits we will witness. Also, the merits of virtual hearing are permanent as opposed to its demerits, which are temporary and can be resolved by a change in approach as also with technological advancement. Still, to answer your question as per the present situation of the judiciary, the virtual system has helped a lot of the litigants to avail themselves of the services of many senior advocates, though far away from the court concerned. It has become more convenient for them to address the court without taking the pains of journey as also to connect to various courts in a single day. The difficulties I have experienced sometimes are in appreciating the arguments of counsels due to connectivity issues and seeing the documents referred by the counsels going from one page to another, but these difficulties are due to the introduction of the new system and are only a matter of time. Another issue that I have faced is that the people take unwarranted advantage of this convenient set-up by not following the dress code and not maintaining the discipline and decorum required to be maintained in courts. I am not saying it generally, but there are a few instances, you all know when the court had to take steps to ensure the functioning of the court in a dignified manner.

To sum up, I would like to say that people should be flexible enough to adapt to the changing conditions for proper judicial administration.

8. Finally, what will be your advice to the young law students and lawyers on how they should approach this field of law.

I would like to say that I am confident that the judiciary’s future is in safe hands, as the current generation is given not only academic classroom lectures but also good practical exposure by way of internships and mooting. With the help of online legal research websites and tools, research has become handier and more easily accessible. Today any judgment or journal is just a click away. However, besides all these technological enhancements and being a forever student of law, I would never say that anyone can master this profession because the law is dynamic and ever-evolving. Therefore, my advice to the youngsters will always be to remain updated with all the developments in the law. And for this, one should never stop reading and never shy away from reading voluminous documents and seeking guidance from their senior colloquies at the Bar, maybe on a very common or general point in law.

Please remember that this profession’s nobility lies in serving society and helping the poor and the needy. The profession deserves the utmost sincerity, decency, honesty, and hard work. There is no substitute for hard work and no shortcut to success.

The youngsters should also do some “pro bono” considering that the traditional litigation is from the weaker section of society.

Always be fair to your client, your opponent as well, and the most to the court. The future is yours.

Let this chariot of justice reach every corner and to one and all to deliver justice. 


[1] 2022 SCC OnLine AP 739

[2] 2022 SCC OnLine AP 136

[3] 2022 SCC OnLine AP 1020

[4] 2021 SCC OnLine AP 3989

[5] 1965 SCC OnLine All 355

[6] 1974 SCC OnLine All 287

[7] 1994 SCC OnLine All 1072

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Manoj Kumar Gupta and Chandra Kumar Rai, JJ., in compliance of previous order of the Court perused the affidavit filed on behalf of the State in relation to laying down the Standard Operating Procedure (SOP) to be followed in cleaning sewers and septic tanks. 

Additional Advocate General appearing on behalf of the State submitted that strict instructions have been issued to all local bodies to ensure full compliance of the laid down SOP. Special emphasis was made to the provisions relating to  

(a) insurance of the life of workers engaged in hazardous cleaning;

(b) complaint redressal system and helpline number;

(c) making it imperative to constitute a Responsible Sanitation Authority (RSA) and Emergency Response Sanitation Unit (ERSU) in every urban area.

Another important decision in the meeting was taken for preparing a project repost jointly by Social Welfare Department and Labour Department prescribing revision of wages, compensation, insurance amounts and other facilities for the sanitation workers. 

Advocate on behalf of Respondent 6 submitted that  cleaning work of 202 drains in the city is being done with the help of mechanised machines. The affidavit also disclosed about the safety gears and uniform provided by the Nagar Nigam to the contractors engaged in cleaning of drains and making sure that the gear was used properly while carrying out the tasks. 

Amicus filed certain recent photographs where safai karmis were still seen working in the drains without any protective gear. 

The Court opined that a lot has been done on paper but the benefits have not trickled down to the beneficiaries. Only framing SOPs and guidelines without having any mechanism in place to ensure implementation is of no use. The Court requested the Chief Secretary and other respondents to ponder over the issue and take concrete measures for implementation so that some change is discernible in the working conditions of the sanitary workers. The Court believed that SOPs and other beneficial schemes framed by the Government will not serve its objectives unless the workers are educated of their rights and entitlements.  

The Court directed the respondents to prepare a brief one page pamphlet specifying the rights and entitlements of the workers and widely publicize it in the newspapers, on the notice board of the local body and other mediums of mass communication . 

On suggestion of the Court, a separate portal would be created, accessible to common citizen where they can upload photographs to highlight the plight of the sanitary workers, it was also stated that the complaints received on the portal would be addressed within 24 hours. Considering the onset of monsoon, the matter was urgently posted for hearing on 13-06-2022. 

[In Re Ensuring The Security of Life and Safety Of Health of The Workmen And Employees Engaged v. Chief Secretary, 2022 SCC OnLine All 405, decided on 07-06-2022] 


For Petitioner: Suo Motu PIL on the basis of the newspaper report, Vibhu Rai 

For Respondent: C.S.C., Satyavrat Sahai 


*Suchita Shukla, Editorial Assistant has reported this brief.