competitive exam
Case BriefsHigh Courts

Delhi High Court: In a case filed by the petitioner seeking legal representation for an enquiry regarding allegations of sexual harassment at workplace, before the Internal Complaints Committee by a person of legal background, Sanjeev Narula J., held the petition to be non-maintainable as the prayer sought cannot be allowed considering an express bar to legal representation under Rule 7(6) of Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.

The Petitioner is facing an enquiry before the Internal Complaints Committee/Respondent No. 2 [‘ICC’] of GIZ India constituted under provisions of the Prevention of Sexual Harassment at Workplace Act, 2013 [‘POSH Act’] and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (Rules).

An e-mail dated 23-09-2022 received from ICC wherein his request to engage an advocate was declined on account of an express bar to legal representation under Rule 7(6) of Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. Assailing this, the petitioner filed a petition challenging the vires of Rule 7(6) of Rules, 2013 as the same is in contravention to Article 14, 19 and 21 and is also against the principles of natural justice.

However, he withdrew the petition and filed the instant petition praying to allow the petitioner to be represented though any other persons of the Petitioners choice other than the legal practitioner.

Counsel for petitioner submitted that the petitioner should be entitled to be represented by a person who can conduct cross-examination of the complainant to the Petitioner’s satisfaction. It further submitted that with a harsh consequence such as termination, evidencing mechanism thereof should necessarily require that Petitioner should have a right of representation.

Counsel for respondent submitted that that there is no provision under the POSH Act or Rules which enable the Petitioner to be represented through any next friend, and hence no such relief can be granted.

The Court noted that a successful challenge to the vires of Rule 7(6), before the Division Bench, would have entitled the Petitioner to be represented through a legal practitioner, or a dilution thereof would have allowed for a next friend. However, in the instant petition, the court is bound to respect the law as it stands today vis-à-vis Rule 7(6).

The Court further noted that the intent of Rule 7(6) is to disallow a legal practitioner from representing the parties at any stage of the proceedings and it cannot be construed in the manner the petitioner is seeking to do in the present case.

On query by the Court regarding non-disclosure of who, in particular, petitioner seeks to engage for his proceedings, counsel for petitioner submitted that although the name of the next friend has not been disclosed, however it would be a person with a legal background or a legal understanding, so that he can conduct cross-examination, the Court remarked, “it is indeed baffling that the Petitioner, who is himself a law graduate, which in general parlance would mean an ‘advocate’, wants to take assistance of a next friend, who has legal background but is not registered as an advocate.”

Thus, the Court held that once the petitioner has given up on the challenge to the provision, he cannot be permitted to seek an alternate prayer in absence of any enabling provision under the Act or Rules which entitles the Petitioner to be represented, as the bar under Rule 7(6) would certainly apply.

[X v. Union of India, 2022 SCC OnLine Del 3489, decided on 14-10-2022]


Advocates who appeared in this case :

Mr. Maninder Singh, Senior Advocate with Mr. Siddhant Asthana, Ms. Aekta Vats, Mr. Chhetarpar Singh & Ms. Anshika Batra, Advocates for the Petitioner;

Ms. Monika Arora, CGSC with Mr. Shivam Raghuwanshi & Mr. Yash Tyagi, Advocates for UOI.;

Mr. Anil Bhat, Advocate for R-2.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: While determining the powers of the Courts under Section 311 CrPC, the Division Bench of Dhananjaya Y Chandrachud* and AS Bopanna, JJ., held that the Court is vested with broad and wholesome power to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 

Background 

The instant appeal was filed by the appellant—the spouse of an advocate who was brutally murdered outside his office on 18-11-2015—to assail the impugned orders of the M.P. High Court rejecting an application under Section 311 CrPC seeking to summon the nodal officers of certain cellular entities along with the decoding register to trace the mobile location of the accused persons.  

An FIR was filed regarding the incident dated 18-11-2015 for an offence punishable under Section 302 read with Section 34 of the Penal Code 1860. The investigation was initiated. The post mortem report indicated that the homicide was caused due to a firearm injury and following persons were arrested during the course of the investigation: Vikas, Sawan, Mangilal, Suresh and Raju.  

Among the enclosures to the supplementary charge-sheet were certificates of the nodal officers of certain cellular companies, namely Airtel, Reliance, Idea, and Vodafone. Upon the commencement of the recording of evidence at the trial, the nodal officers were examined.  

The Impugned Order 

The genesis of the issue was that an application was filed by the prosecution under Section 311 CrPC to summon the nodal officer of Idea and under Section 91 to produce the call data records of two mobile numbers. A similar application was filed under Section 311 seeking to call for the production of the decoding register.  

The aforesaid applications were dismissed by the Trial Court on the ground that the document which the prosecution desired to summon did not form a part of the investigation; and that the document had not been obtained during the course of the investigation. In appeal, the High Court, while affirming the order of the Trial Court held:   

  • The decoding registers are not part of the case diary or the charge-sheet;  
  • The prosecution has closed its evidence; and  
  • The application has been filed at a belated stage without collecting all the relevant information (for instance, whether the decoding register is available with the service provider or not). 

Analysis and Findings  

Rejecting the contention of the defendant that it was not open for the appellant, wife of the deceased to pursue the proceedings owing to the bar in Section 301 of the CrPC, the Court observed that in the case at hand, the application for the summoning of witness and for production of the decoding register was submitted by the State. Hence, the bar contained in Section 301 does not stand in the way.  

Power of Court under Section 311 CrPC 

Examining the Statutory interpretation of Section 311, the Court observed the following: 

  • The power can be exercised at any stage of any inquiry, trial, or proceeding; 
  • The power of the court is not constrained by the closure of evidence. The broad powers under Section 311 are to be governed by the requirement of justice;  
  • The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. 

The Court expressed, 

“Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitutes the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.” 

Considering the above, the Court observed the following reasons to allow the application of the appellant:  

  • The decoding registers are sought to be produced through the representatives of the cellular companies in whose custody or possession they are found.  
  • The decoding registers are a relevant piece of evidence to establish the co-relationship between the location of the accused and the cell phone tower.  
  • The reasons which weighed with the High Court and the Trial Court in dismissing the application are extraneous to the power which is conferred under Section 91 on the one hand and Section 311 on the other.  
  • The summons to produce a document or other thing under Section 91 can be issued where the Court finds that the production of the document or thing ―is necessary or desirable for the purpose of any investigation, trial or other proceedings under CrPC.  
  • The effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. 
  • The summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case.  

Regarding the objection that the application should not be allowed as it will lead to filling in the lacunae of the prosecution‘s case, the Court opined that the said reason cannot be an absolute bar to allowing an application under Section 311. Relying on Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, and Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., (2008) 11 SCC 108, the Court observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court‘s determination of the application should only be based on the test of the essentiality of the evidence. 

Hence, the Court held that the decoding registers merely being additional documents required to appreciate the existing evidence in form of the call details which are already on record—but use codes to signify the location of accused, a crucial detail—the production of the decoding registers fit into the requirement of being relevant material which was not brought on record due to inadvertence and production of the registers would not prejudice the accused persons’ right to fair trial. 

Whether the Application was filed after the Closure of Evidence? 

Rejecting the contention that the application was filed after the closure of the evidence of the prosecution as manifestly erroneous, the Court observed that the closure of the evidence of the prosecution took place after the application for the production of the decoding register and for summoning of the witness under Section 311 was dismissed. The Court noted that though the dismissal of the application and the closure of the prosecution evidence both took place the same date, the application by the prosecution had been filed nearly eight months earlier.  

Further, the Court held that the Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. 

Conclusion 

In the backdrop of above, the impugned decision of the High Court, as well as that of the Trial Court, were set aside. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose was allowed. 

[Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986, decided on 08-08-2022]  


*Judgment by: Justice Dhananjaya Y Chandrachud 


Appearance:  

For the Appellant: Ramakrishnan Viraraghavan, Senior Counsel 

For the State of M.P.: Shreeyash U Lalit, Counsel 

For Respondents 2nd, 3rd, 6th: SK Gangele, Senior Counsel  

For Respondents 4th and 5th: Bansuri Swaraj, Counsel  


Kamini Sharma, Editorial Assistant has put this report together. 

Appointments & TransfersNews

Collegium Statement


Supreme Court Collegium has recommended elevation of the following Chief Justices / Judges of the High Courts and a Bar member, as Judges in the Supreme Court:

1. Justice A.S. Oka, Chief Justice, Karnataka High Court

2. Justice Vikram Nath, Chief Justice, Gujarat High Court

3. Justice J.K. Maheshwari, Chief Justice, Sikkim High Court

4. Justice Hima Kohli, Chief Justice, Telangana High Court

5. Justice B.V. Nagarathna, Judge, Karnataka High Court

6.  Justice C.T. Ravikumar, Judge, Kerala High Court

7. Justice M.M. Sundresh, Judge, Madras High Court

8. Justice Bela M. Trivedi, Judge, Gujarat High Court, and

9. P.S. Narasimha, Senior Advocate.


Supreme Court of India

[Statement dt. 17-08-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of R.F. Nariman and Hrishikesh Roy, JJ. directed that adverse comments recorded against the appellant─advocate in certain judgments of the Uttaranchal High Court be recalled. The Supreme Court found that the offending remarks were unnecessary for deciding the disputes and appeared to be based on personal perception of the Presiding Judge. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending remarks.

Facts and Appeal

The appellant was a practicing advocate before the Uttaranchal High Court with around 17 years of standing at the Bar. The focal point of the matter arose from four cases before the High Court in which the appellant represented one of the contesting parties. In those four cases, the Presiding Judge of the High Court made certain adverse observations/remarks against the appellant. A brief summary of High Court’s remarks in question is as follows:

Case 1. [1] Anguished over ‘suppression of material fact’ by the appellant, the High Court remarked: “The counsel for the petitioner is a seasonal (sic seasoned) advocate … he has deliberately created a wrong example for the pious institution.

Case 2. [2] Disapproving appellant’s tactic of ‘wasting court’s time’, the High Court said: “.. the learned counsel for the plaintiff/appellant … was intentionally attempting to make a mountain of a mole, which .. was a brutal assassination of time … It further reflected that as if it was not an argument for the case but rather for the visitor’s gallery.

Case 3. [3]  Noting the ‘unacceptable conduct’ of the appellant, the Presiding Judge observed: “… the learned counsel for the appellant submitted that in a prior proceeding which was held before this Court … since I had appeared as a counsel on behalf of the defendant/appellant herein, an attempt was made … to avoid to address of the Second Appeal on its merits before this Court.” (sic)

Case 4.[4] Expressing displeasure against appellant’s ‘modus operandi’ in placing voluminous record including irrelevant precedents/judgments running into volumes, at the stage of admission of the petition itself, the High Court, inter alia, remarked: “… the intention behind making reference to the judgment, was to mislead the Court and to buy time in prolonging the proceedings in order to overcome the effect of dismissal of the concurrent Writ Petitions in limine by placing voluminous judgments on record, and making references of them, by quoting excerpts.

Aggrieved, the appellant approached the Supreme Court for expunging such offending remarks recorded by the High Court against him.

Contention

The appellant submitted that the offending comments were neither essential nor necessary for the High Court’s verdict in the cases concerned. In any case, those remarks were made without putting him to notice or providing any hearing. Further, such adverse comments will not only undermine the professional reputation of the appellant, but would also impact his standing and practice as a lawyer.

In addition, it was submitted that the comments may have emanated from personal prejudice and may not be otherwise warranted. It was stated that before his elevation to the Bench, the Presiding Judge concerned was a member of the same Bar as the appellant and both were rival counsel in several contested matters.

Analysis and Observations

The Supreme Court relied on a catena of judicial precedents on the subject, including State of U.P. v. Mohd. Naim, AIR 1964 SC 703, where Justice S.K. Das laid down three tests to be applied while dealing with the question of expunction of disparaging remarks:

(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;

(ii) Whether there is evidence  on record bearing on that conduct justifying the remarks; and

(iii) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.

Discussing the law laid down in earlier cases which has been consistently followed, the Court observed:

While it is of fundamental importance in the realm of administration of justice to allow the judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court.

Considering the adverse comments recorded in the High Court judgments, the Supreme Court was of the view that such remarks could have been avoided as they were unnecessary for deciding the disputes. Moreover, in Court’s opinion, they appeared to be “based on the personal perception of the learned Judge“.

It was apparent that the Judge did not give any opportunity to the appellant to put forth an explanation. The Court stated that the remarks so recorded have cast aspersion on professional integrity of the appellant. Such condemnation of the appellant without giving him an opportunity of being heard would be a negation of principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending comments.

Opining that to allow the appellant to suffer would be prejudicial and unjust, the Court said:

The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the appellant will have to bear, all his life.

Decision

The Court concluded that the offending remarks recorded by the Presiding Judge of the High Court against the appellant should not have been recorded in the manner it was done. It was accordingly held that the offending remarks should be recalled to avoid any future harm to appellant’s reputation or his work as a member of the Bar. Order was made accordingly. [Neeraj Garg v. Sarita Rani, 2021 SCC OnLine SC 527, decided on 2-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.   


[1] WP (M/S) No. 2216 of 2017 and WP (M/S) No. 2208 of 2017, dated 14-11-2017 (Uttaranchal High Court)

[2] SA No. 190/2019, dated 22-11-2019 (Uttaranchal High Court)

[3] SA 182 of 2019, dated 12-3-2020 (Uttaranchal High Court)

[4] WP (M/S) 519 of 2019, dated 22-2-2021 (Uttaranchal High Court)

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Declining to grant relief to a law graduate who had failed to obtain the cutoff marks in the LL.B course for enrollment into the Bar, a bench comprising of Rajiv Narain Raina, J. held that it would not be possible to accept the plea of the petitioner merely on the ground that her career would be ruined if she is not able to practice in a court of law.

The Court took into account Section 7 of the Legal Education Rules, 2008 which states that the minimum marks secured by a person should be 45% in order to get admitted into the rolls of a Bar. The Court also noted that a clarification resolution was issued that those who secure less than 45% marks at graduation level but secure more than 45% at postgraduate level can apply for bar license but in the case of the petitioner she has secured only 40.87% in her post-graduation level, therefore this relaxation is not available to her. The Council for the state also pointed out that in ‘identical cases’ decided beforehand, where persons did not possess minimum qualifying marks, they were denied enrolment.

The Court did not find any merit in the petitioner’s argument that the University allowed her to pursue LL.B in spite of her marks, therefore the Bar should also make an exception for her. The Court could not be persuaded to accept this, as admission to the LL.B course and admission to the Bar are not one and the same thing. The Court also took into account that the Bar Council had notified the girl’s institution to not depart from prescribed norms and therefore, the petitioner cannot be heard to succeed on the ground that she was not at fault. The Court said that the petitioner was free to make a career in teaching after her degree. [Kitti Chhabra v. Bar Council of Punjab and Haryana, 2019 SCC OnLine P&H 2189, decided on 14-10-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P.D. Rajan, J. declared the election of one K.M. Shaji as void, for having used corrupt practices and unduly influencing voters by creating a religious divide.

Petitioner filed the instant petition to challenge the election of respondent to the Azheekode Assembly Constituency. His case was that: (i) respondent, being a Muslim candidate, had appealed to voters belonging to Muslim community to vote for him on the ground of religion, and (ii) he had distributed pamphlets accusing petitioner of having an extra-marital relationship with Ms. Saritha (an accused in the solar scam case – a major issue in 2016 Kerala General Assembly Election).

The Court noted that the respondent had appealed to Muslim voters to refrain from voting for petitioner on the ground that he was a non-Muslim. Pamphlets as to petitioner’s personal life were false and published with the intention to defame him. It was observed that publication of such pamphlets had created misunderstanding among the voters and affected petitioner’s election prospects.

The Court noted Apex Court’s opinion in Krishnamoorthy v. Sivakumar, 2015 (3) SCC 467 where it was held that any direct or indirect interference/attempt to interfere on part of a candidate amounts to undue influence.

It was opined that the basic principle underlying Section 123(3) of the Representation of People Act, 1951 (RP Act) is elimination of divisive factors such as religion, caste etc. from the electoral process. Candidates cannot tell the electors that their rivals are unfit to act as representatives of people on the ground of their religion as such an appeal would be on the ground of religion.

In view of the above, the petition was allowed and respondent’s election was set aside under Sections 100(1)(b) and 100(1)(d)(ii) of the RP Act for having committed corrupt practice under Sections 123(3) and 123(4) of the RP Act. He was also disqualified from contesting in any election for a period of six years and subjected to payment of Rs. 50,000 as cost to the petitioner.

Lastly, the Court directed its finding in relation to respondent’s corrupt practice to be forwarded to the President of India for appropriate action under Section 8A of the RP Act; and also directed the High Court to intimate substance of its decision to the Election Commission and the Speaker of the Kerala Legislative Assembly.[M.V. Nikesh Kumar v. K.M. Shaji,2018 SCC OnLine Ker 4953, decided on 09-11-2018]

Case BriefsHigh Courts

Allahabad High Court: A Full bench comprising of CJ Dilip B. Bhosale, Ramesh Sinha and Yashwant Varma, JJ. struck down the proviso to Section 14A (3) of the Scheduled Castes/ Schedules Tribes (Prevention of Atrocities) Amendment Act, 2015, which imposed a 180-day bar for preferring appeals against judgments, sentences, bail orders and other orders passed by Special Courts under the SC/ST Act and gave a comprehensive interpretation to questions arising from Section 14A of the Act.

The Court took suo motu cognizance of the validity of Section 14A of the Act, in view of divergent opinions of two Single Benches of the court. The present PIL was tagged along with another PIL, numbered as Criminal Writ-PIL No. 11 of 2018, challenging the validity of Sections 14A (2) and 14A (3) of the Act for being violative of Articles 14 and 21 of the Constitution of India. The provisions relevant to the present matter were:

  • Section 14A(1) stating that appeals from judgments, sentences or orders, except interlocutory orders, of a Special/Exclusive Court, trying SC/ST cases would lie to the High Court on both facts and law.
  • Section 14A(2) stating that appeals from bail orders of the Special/ Exclusive Court would lie to the High Court, even if it is an interlocutory order.
  • Section 14A(3) stating that an appeal under this Section should be preferred within a period of 90 days (extendable on court’s discretion). However, the second proviso to this clause laid down that the limitation period to not be extendable beyond 180 days.
  • Section 14A(4) providing for disposal of every appeal preferred under sub-section (1) within three months from the date of admission of appeal.

The aforesaid provisions had an overriding effect over provisions of the Code of Criminal Procedure (CrPC).

The court noted that Section 14A primarily created an appellate forum at the level of the High Court to challenge any judgment, sentence or order, not being an interlocutory order, including an order refusing or granting bail. It was noted that though an appeal is not maintainable against interlocutory orders since an interlocutory order refusing or granting bail pertains to the liberty of the accused, an exception had been carved against the said general exclusion.

The challenge to Section 14A(2) was on the sole ground that Section 14A (2) ousted the concurrent jurisdiction of High Court under Section 439 CrPC in matters pertaining to grant of bail. The said challenge was dismissed holding that SC/ST Act is a special statute and as per the general principles of statutory construction, its non-obstante clauses had to be given overriding effect over a general enactment such as CrPC.

The Bench struck down the second proviso to Section 14A (3) holding it to be manifestly arbitrary in as much as it took away the salutary right of the first appeal, an integral facet of fair procedure under Article 21. It was held that absence of discretion in the court to consider condonation of delay even on the existence of sufficient cause rendered the said proviso wholly capricious, irrational and excessive.

The Bench further noted that the inherent and constitutional powers of High Court under Articles 226 and 227 of the Constitution were not ousted by Section 14A of the Act. However, a note of caution was given by the Bench stating that courts must exercise the principle of judicial restraint and allow such powers to be invoked only in exceptional and rare cases to secure justice.

The Court also noted thatthe scheme of the Act showed the manifest legislative intent to oust revisional powers of High Court under Section 397 CrPC and therefore Section 14A eclipsed the revisional jurisdiction of High Court.

Another question posed before the court was that since Section 14A of the Act, introduced by the amendment in 2015, came into effect from 26-1-2016, whether offences committed before the said date would also be subject to Section 14A. It was clarified that applicability of Section 14A would depend on the date of the judgment or order sought to be assailed. If the judgment sought to be appealed against was passed after the 26-01-2016, then only would Section 14A be triggered. It was further clarified that even if the impugned judgment was passed before 26-01-2016 but if the appeal against it is preferred after the said date, Section 14A would apply.

The 2015 amendment to SC/ST Act empowered Exclusive Special Courts established under the amended provisions to directly take cognizance of offences under the Act. The last question for determination before the Bench was as to whether the power to directly take cognizance of offences shall be exercisable by the existing Special Courts (constituted under the 1989 Act). On this point, the court held that the existing Special Courts did not have jurisdiction to directly take cognizance of offences; such existing courts could take cognizance of offences under the Act only after the concerned Magistrate commits the case as per Section 193 of CrPC. However, it was clarified that the same not be construed to be a disrobing of these courts’ powers to try offences under the Act.

The PIL was disposed of answering the issues framed for the consideration of the Full Bench, as detailed above, along with a parting observation that although the Amending Act came into force with effect from 26-01-2016, neither any Exclusive Special Courts had been established nor had any Special Courts been designated till the date of order. The Bench directed the State government to initiate the consultative process, as envisaged under Section 14 of the Act, to ensure that Exclusive Special Courts and Special Courts are constituted and designated within a period of eight weeks from the date of order. [Provision of Section 14A of SC/ ST (Prevention of Atrocities) Amendment Act, 2015, In Re; Criminal Writ – PIL No. 8 of 2018, decided on 10-10-2018]