Legislation UpdatesStatutes/Bills/Ordinances

The Central Government has notified the Essential Defence Services Act, 2021 on August 11, 2021. It shall be deemed to have come into force on the June 30, 2021. The Act shall be effective for one year from the date on which it receives the assent of the President.

Key features of the Act are:


  • Definitions:

Essential defence services: Essential defence services include any service in:(i) any establishment or undertaking dealing with production of goods or equipment required for defence related purposes, or (ii) any establishment of the armed forces or connected with them or defence.  These also include services that, if ceased, would affect the safety of the establishment engaged in such services or its employees.  In addition, the government may declare any service as an essential defence service if its cessation would affect the: (i) production of defence equipment or goods, (ii) operation or maintenance of industrial establishments or units engaged in such production, or (iii) repair or maintenance of products connected with defence.

Strikes: Under the Act, strike is defined as cessation of work by a body of persons acting together.  It includes: (i) mass casual leave, (ii) coordinated refusal of any number of persons to continue to work or accept employment, (iii) refusal to work overtime, where such work is necessary for maintenance of essential defence services, and (iv) any other conduct which results in, or is likely to result in, disruption of work in essential defence services.

  • Power to prohibit strikes: Under the Act, the central government may prohibit strikes, lock-outs, and lay-offs in units engaged in essential defence services, in the interest of: (i) public interest (ii) security of any state (iii) public order (iv) sovereignty and integrity of India (v) decency or (vi) morality.  The prohibition order will remain in force for six months, and may be extended by another six months.
  • Removal of persons: A police officer may take all such measures to remove any person violating the prohibition order, whose presence in any area connected with the (a) defence equipment production services; or (b) operation or maintenance of any industrial establishment or unit engaged in production or manufacturing of goods or equipment required for any purpose connected with defence; or (c) repair or maintenance of products connected with defence.
  • Illegal Strikes: Employees engaged in illegal strikes or responsible for instigating a strike shall be liable for disciplinary action (including dismissal). Persons commencing or participating in illegal strikes will be punished with up to one year imprisonment or Rs 10,000 fine, or both.
  • Punishment for instigation of strike: Persons instigating, inciting, or taking actions to continue illegal strikes, or knowingly supplying money for such purposes, will be punished with up to two years imprisonment or Rs 15,000 fine, or both.
  • Punishment for providing financial aid to illegal strikes: Persons responsible for providing financial help to illegal strikes shall be punishable with up to two-year imprisonment or Rs. Rs. 15,000 penalty or both.
  • Arrest without warrant: All offences punishable under the Act will be cognisable and non-bailable.

*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed the the petition seeking review of it’s 2018 order where the bench had dismissed the petition seeking probe in the much talked about Rafale Deal by holding that there was no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government

The Court held that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that it’s original decision was based within the contours of Article 32 of the Constitution of India.

SK Kaul, J, writing for himself and Gogoi, CJ said,

“We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute. We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry.”

On the aspect of pricing, the Court held that it is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation. It, further, said,

“As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.”

On the decision making process, the Court said that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.

On the argument by the petitioner that the prayer made was for registration of an F.I.R. and investigation by the C.B.I., which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts, the Court said that it wasn’t a fair submission as,

“all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.”

KM Joseph, J, in a separate but concurring opinion, wrote on the issue of registration of FIR

“This is not a case where an old argument is being repeated in the sense that after it has been considered and rejected, it is re-echoed in review. It is an argument which was undoubtedly pressed in the original innings. It is not the fault of the party if the court chose not even to touch upon it.”

He, however, noticed that the petitioners have filed the complaint fully knowing that Section 17A of the Prevention of Corruption Act, 1988 constitutes a bar to any inquiry or enquiry or investigation unless there was previous approval.

In terms of Section 17A, no Police Officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence 88 alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed.

Noticing the law as specified under Section 17A, he said,

“Even proceeding on the basis that on petitioners complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A.”

He, hence, held that though otherwise the petitioners may have made out a case, having regard to the law actually laid down in Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed.

In the 2018 verdict, the Court had said that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. Stating that it cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft, the Court said

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

Read more about the 3-judge bench verdict in Rafale Deal case here.

Hot Off The PressNews

Supreme Court:  The 3-judge bench of Ranjan Gogoi, CJ and SK Kaul and KM Joseph, JJ has directed the Centre to file response by May 4 to the petitions seeking review of last December’s verdict by which the Court had dismissed the pleas challenging India’s deal to procure 36 Rafale fighter jets from France. The bench did not allow the plea of the Centre that it be granted four weeks time to file its response to the pleas.

The Court has fixed May 6 for hearing the petitions.

Former Union ministers Arun Shourie and Yashwant Sinha and activist lawyer Prashant Bhushan have filed a petition seeking review of the December 14, 2018 verdict of the Court giving clean chit to the Rafale deal. AAP leader and Rajya Sabha MP Sanjay Singh has also filed a separate review petition in the case.

In the verdict, the apex court said there was no occasion to doubt the decision-making process in the procurement of 36 Rafale fighter jets from France and dismissed all the petitions seeking an investigation into alleged irregularities in the Rs 58,000 crore deal. It said,

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

The court said there was no substantial evidence of commercial favouritism to any private entity. It aslo said,

Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

The Rafale fighter is a twin-engine Medium Multi Role Combat Aircraft manufactured by French aerospace company Dassault Aviation. A deal to procure the jets was signed between India and France in 2015. The delivery is expected to begin in September this year.

Also read:

Rafale Deal: SC dismisses Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed by petitioner (wife) for striking off respondent’s (husband) defence in proceedings pending under the Protection of Women from Domestic Violence Act, 2005.

Earlier, the trial court vide its order dated 2-3-2017 had dismissed the wife’s application for striking off husband’s defence observing that non-payment of maintenance/arrears of maintenance cannot be a ground to do so. Aggrieved thereby, the wife preferred the present petition.

Jatin Sehgal, Adhirath Singh and Raymon Singh, Advocates appeared for the wife. On the other hand, the husband was represented by Laksh Khanna, Advocate who supported the trial court’s order.

The High Court noted that the respondent was in arrears of Rs 9,00,000 towards payment of maintenance to the wife. Furthermore, the Appellate Court vide its order dated 14-7-2017 evolved an equitable solution whereby husband’s employer was to deduct Rs 50,000 from his salary every month and pay that sum directly to the wife. Out of this, Rs 25,000 was to be the current monthly maintenance amount, and remaining Rs 25,000 were to be adjusted against the arrears. However, this order was not complied with by the husband.

In view of such facts and circumstances, the Court found that the husband’s failure to clear arrears of maintenance in terms of the Appellate Court’s order justified striking off his defence. Consequently, the wife’s application was allowed. [Swati Kaushik v. Ashwani Sharma, 2019 SCC OnLine Del 7133, dated 11-2-2019]

Case BriefsSupreme Court

“Perception of individuals cannot be the basis of fishing and roving enquiry by the Court.”

Supreme Court: A Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. dismissed the petitions pertaining to seeking probe in ‘Rafale Deal’ by stating that “we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.”

The present judgment given by the 3-judge bench of the Supreme Court dealt with 4 writ petitions in regard to procurement of 36 Rafale Fighter Jets for the Indian Airforce. 

Background Note:

In June, 2001, an in-principle approval was granted for procurement of 126 fighter-jets to augment the strength of the Indian Airforce. A more transparent Defence Procurement Procedure (DPP) was formulated in the year 2002, further in the year 2005 a robust ‘offset clause’ was included in the DPP in order to promote Indigenisation which was followed by Services Qualitative Requirements (SQRs) in the year 2006. Later in the year 2007, Defence Acquisition Council (DAC) granted ‘Acceptance of Necessity’ for procurement of 126 medium multi role combat aircrafts.

Bidding process commenced in August, 2007 and the proposals were followed by technical and field evaluations; a Staff Evaluation Report and a Technical Oversight Committee Report. Commercial bids were opened in November, 2011. Dassault Aviation was placed as the L-1 by January 2012. Negotiations commenced and continued but without any final result.

It has been stated that a process of withdrawal of the Request for Proposal in relation to the 126 MMRCA was initiated in March 2015, which was finally withdrawn in June 2015. Negotiations were carried out and the process was completed with the approval of the Cabinet Committee on Security (CCS). Further, contract along with Aircraft Package Supply Protocol; Weapons Package Supply Protocol; Technical Arrangements and Offset contracts was signed in respect of 36 Rafale Jets on 23-09-2016 which were to be delivered from October, 2019.

Triggering Point for the present Writ Petitions:

In September, 2018, certain newspapers reported a statement made by the former President of France, Francois Hollande, to the effect that the French Government were left with no choice in the matter of selection of Indian Offset Partners and the Reliance Group was the name suggested by the Government of India, which seems to have triggered the present petition.

Court’s Analysis & Decision:

The Bench noted that, it would be appropriate, at the outset, to set out the parameters of judicial scrutiny of governmental decisions relating to defence procurement. Referring to the decision in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, Court held that “it was not to exercise the power of judicial review even if a procedural error is committed to the prejudice of the tenderer since private interests cannot be protected while exercising such judicial review.” It was also stated by the Court that various judicial pronouncements from Tata Cellular v. Union of India, (1994) 6 SCC 651, emphasise the aspect that scrutiny should be limited to the Wednesbury Principle of reasonableness and absence of mala fides or favouritism.

Coming to the present issue, it was stated that it is a defence tender for procurement of aircrafts. The parameter of scrutiny would give far more leeway to the Government, keeping in mind the nature of the procurement itself, and the said aspect was highlighted and emphasized in the decision of Siemens Public Communication Networks (P) Ltd. v. Union of India, (2008) 16 SCC 215. Therefore, “the extent of permissible judicial review in matters of contracts, procurement, etc. would vary with the subject matter of the contract and there cannot be any uniform standard or depth for the same.”

Hence, the Court scrutinised the controversy raised in the writ petitions which primarily raise 3 broad areas of concern, namely, 

  1. decision-making process; 
  2. difference in pricing; and
  3. the choice of IOP.

On a careful consideration of every aspect of the above-stated issue and concerns, the Court extended its’ view by stating that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. To which the bench stated that there is no reason to really doubt the process and further they were informed that there is financial advantage to our nation.

“We cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft.”

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

In regard to the pricing issue, the Court stated that it is certainly not the job of the Court to carry out a comparison of the pricing details in matters like the present. We say no more as the material has to be kept in a confidential domain.

Lastly, the Court stated that it is neither appropriate nor within the experience of the Supreme Court to step into the arena of what is technically feasible or not. According to the Court, there was no substantial record to show that this is a case of commercial favouritism.

Thus, the writ petitions were dismissed and held that there is no reason for any intervention by the Supreme Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.[Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 2807, decided on 14-12-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: This appeal was preferred before a 2-Judge Bench of Rakesh Kumar and  Anupinder Singh, JJ., against the judgment and decree passed by the Additional District Judge by which petition filed under Sections 11 and 12 of the Hindu Marriage Act, 1955 by the respondent-husband for annulment of marriage with the appellant-wife was allowed.

During the pendency of this appeal, the appellant filed an application for maintenance pendente lite under Section 24 of the Act. The above application was allowed and thereby the respondent was supposed to pay Rs. 5,000 per month towards maintenance pendente lite. But since respondent failed to do so he was directed to pay entire arrears of maintenance pendente elite. The only contention made by respondent for non-payment of maintenance was that he did not have any money to give. High Court struck off respondent’s only defence leaving with the issue that if the respondent has no defence can the judgment and decree passed by the trial Court sustain or is to be set aside.

High Court struck off the defence of respondent on the ground of non-payment of maintenance, that he wanted annulment of marriage on the ground that appellant had already married twice and marriage with respondent was her third marriage with previous marriage subsisting. Thus, there remained no defence on record for annulment of marriage. Therefore, this appeal was allowed and judgment and decree passed by trial court was set aside. [Sonia v. Deepak, 2018 SCC OnLine P&H 2024, decided on 04-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J. allowed a petition filed against the order of the trial court whereby the two of the prosecution witnesses were discharged only after recording of their testimony and without cross-examination.

The trial court had recorded the testimony of the said witnesses and thereafter discharged them. The petitioner submitted that sufficient opportunity was not granted for the defence counsel to be ready for cross-examination of those witnesses. Aggrieved by such discharging of the witnesses, the present petition was filed by the accused-petitioner.

The High Court perused the orders passed by the trial court. They, inter alia, showed that the matter was adjourned from time to time for examination and cross-examination and the same was being deferred either for want of FSL report or securing the presence of witness. It was seen that one of the witnesses was discharged after recording the testimony without cross-examination as on that date only a proxy counsel was present who sought passover or an adjournment which was not granted. Similarly, the opportunity for cross-examination of the other witness was not sufficient as the FSL report was produced by the Investigating Officer for the first time on the same date the witness was examined and discharged. In such facts and circumstances, the Court was satisfied that the petitioner was not afforded a sufficient opportunity to be ready for cross-examination. Thus, the petition was allowed and the trial court was directed to re-summon the witnesses concerned. [Deepak Kumar v. State (NCT of Delhi),2018 SCC OnLine Del 11517, dated 25-09-2018]

Case BriefsSupreme Court

“Police force needs to develop and recognize the concept of democratic policing.”

Supreme Court: The Bench comprising of N.V. Ramana and Mohan M. Shantanagoudar, JJ., addressed an appeal filed against the order and judgment of the Bombay High Court. “The present matter deals with police being the violators of law, who had the primary responsibility to protect and uphold law.”

In the present matter, Police Inspector Narule (A-1) was informed about a case of loot that had occurred 8 days before the information was placed. It is stated in the facts of the appeal filed that, A-1 along with nine other officers was on patrolling along with the informants of the incident of loot and all of them together reached HCP Telgudiya who found out that the person involved in the incident of loot was a person named ‘Anthony’. The HCP later confirmed that a person named ‘Joinus’ (deceased) used to live nearby and was a known suspect. A-1 reached the house of ‘Joinus’ where they all the accused persons molested ‘Zarina’, wife of ‘Joinus’ who was tied to a pole and beaten up with a stick and later all his family members were taken to different parts of the city. Thereafter later in the night, ‘Joinus’ was brought to the police station. The next morning he was found to be dead which lead to the investigation and charging on the ten erring officers.

The Supreme Court dealt with the above-stated matter by intensively taking up 4 questions one after another to reach a decision.

  • First question was “Whether the incident narrated amounted to murder in order to attract Section 302 IPC?” Bench while answering this question analysed Section 299 IPC and stated that causal link between the injuries caused by erring officers and death of deceased are not connected, further not attracting Section 299 which raises no question of attracting Section 302 or 304 IPC.
  • Second question was with respect to the defence of superior order or infamously known as ‘Nuremburg Defence’ pleaded by accused-appellants (sub-ordinate officers). Bench stated that the said argument was raised only to take advantage of the situation where A-1 had passed away in order to seek re-trial, the Court did not take this issue into consideration.
  • Third question was in regard to A-10 not being present with the investigating party at the time of patrolling; thereby his acquittal of the charges framed. For this question, the bench while quoting “It is wrought in our criminal law tradition that the Courts have the responsibility to separate chaff from the husk and dredge out truth”, stated that the presence of reasonable doubt exists on A-10 being there, therefore High Court’s findings on this particular aspect won’t be disturbed.
  • Fourth question to reach the conclusion of the matter concerned punishment under Section 330 IPC, for this the bench stated that no material is found to interfere with the conviction.

Therefore, on consideration of the facts of the case, it was evident that police was well-aware of the fact that the deceased was different from the person against whom they wanted to initiate investigation. Court found it appropriate to increase the term of the sentence to maximum imposable period under Section 330 IPC and directed the appellant-accused to surrender before the authorities. [Yashwant v. State of Maharashtra,2018 SCC OnLine SC 1336, decided on 04-09-2018]

Case BriefsForeign Courts

Eswatini High Court: A Single Judge Bench comprising of T.M. Mlangeni, J., granted an application for rescission of default judgment.

This matter was with regard to an application for rescission of default judgment that was given against the applicant. The respondent submitted that the application for rescission was defective on the ground that the applicant did not mention the legal regime under which he seeks rescission. It is to be noted that such applications can be filed on one or more legal regime, either under Rule 31, Rule 42 or common law. Applicant is supposed to show good cause in his founding papers satisfying conditions attached with it as was mentioned in the case of Chetty v. Law Society, Transvaal, 1985(2) SA 750. The issue before Court was whether there was a requirement of stating the rule or regime under which an application for rescission of judgment or order was filed. To this issue Court was of the view that there was no such legal requirement of stating the rule or regime under which the applicant is seeking rescission of judgment or order. The Court while perusing if the applicant had made bona fide defence with prospects of success observed that besides allegation of fraud, applicant contended to have paid all dues to the respondent therefore if the above is proved it will be a bona fide defence. Therefore, application for rescission was granted. [Eugene Rochat v. Fernando Julius Manjeia, (1734/16) [2018] SZHC (184), dated 10-08-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Arun Palli, J. allowed the defendant to file the written statement (WS) in a civil suit even after the expiry of 90 days statutory period.

A civil suit was filed against the defendant on 08-09-2017. He caused his first appearance before the court on 29-11-2017 and the matter was adjourned to 08-01-2018 for filing of the written statement by the defendant. As no written statement was filed on that date, the matter was further adjourned to 19-02-2018. However, despite this last opportunity, the defendant failed to file written statement within the statutory time period of 90 days. Consequently, his defence was struck off. The defendant was in appeal against the said order.

The High Court noted that ex facie the defendant was granted two opportunities to file written statement after he caused the first appearance before the trial court. However, the Court was of the view that even if it was assumed that the defendant was remiss in pursuing his cause and failed to file written statement despite being given one last opportunity, yet the fact remained that if he was not granted one more opportunity, he shall suffer irreparable loss and injury. Giving due consideration to the said fact, the Court set aside the impugned order and allowed the defendant to file written statement on the next date of hearing already fixed by the trial court. It was also held that in case of default on part of the defendant in filing written statement even on that date, the defence will be deemed to be struck off. [Beant Singh v. Dilbagh Singh,2011 SCC OnLine P&H 15664: (2012) 3 RCR (Civil) 115 , decided on 01-06-2018]

Case BriefsSupreme Court

Supreme Court: Taking note of the very disturbing fact of encroachments on defence land, the Court said that the legislative policy and the provisions of the relating to encroachments should be strictly implemented. Prompt action has to be taken by the concerned authorities for removal of the illegally constructed buildings in the Cantonment area and the Cantonment Boards should be vigilant and ensure that no further encroachments are made on defence land.

Section 34 (1) (e) of the the Cantonments Act, 2006, enacted the existing Act of 1924 after taking into consideration the recommendations made by the Standing Committee of Parliament on Defence which called for tackling the encroachments on defence lands situated all over the country, provides for removal of a member of the Board who aids or abets encroachment and the illegal constructions on the defence land.

The bench of Anil R. Dave and L. Nageswara Rao, JJ was dealing with the question regarding the right to vote of persons living in illegally constructed buildings in a Cantonment area. The Court held that the Cantonment Board is not authorized to include the encroachers in the voters list.

It was contended that the Rule 10 (3) of the Cantonment Electoral Rules, 2007 was in conflict with Section 28 of the Cantonments Act, 2006 Section 28 which states that a person who is not less than 18 years of age and who has resided in a Cantonment area for a period of not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector.

Explaining the meaning of the word ‘resident’ as used in Section 28 of the Act, the Court held that the scope of word ‘resident’ as defined in the Cantonment Act, 2006 is completely different from that of ‘ordinarily resident’ as defined in the Representation of the People Act, 1950. The restrictive definition of a ‘resident’ in the Act is peculiar to the Cantonments whereas the definition of ‘ordinarily resident’ is very wide. Even if a person is residing in an unauthorised structure he will be entitled to be included in the electoral rolls under the Representation of the People Act which is not the case with the Cantonment Act.

The Court, hence, rejected the contention and said that Rule 10 (3) of the 2007 Rules is not in conflict with Section 28 of the Act. On the other hand, Rule 10 (3) is strictly in conformity with Section 28 making only persons living in houses with numbers eligible to vote as it is clearly from the language of Rule 10(3) that the persons who are living in illegally constructed houses which are not assigned any number will not be entitled for inclusion in the electoral roll to be prepared in accordance with Rule 10 (3) of the 2007 Rules.  [Sunil Kumar Kori v. Gopal Das Kabra, 2016 SCC OnLine SC 993, decided on 27.09.2016]

Case BriefsSupreme Court

Supreme Court: In the matter where the accused persons has sought for recall of the witnesses under Section 311 read with Section 231(2) CrPC on the ground of illness of the counsel, the Bench of Dipak Misra and U.U. Lalit, JJ held that recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, are not acceptable in the obtaining factual matrix. considering the fact that a number of counsels were engaged by the defence, the Court held that in such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction.

Referring to a series of decisions where it was held that a liberal approach needs to be followed while allowing the recall of witnessed, the Court said that the decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous.

The Court further said that a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck.

In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, i.e. 148 in number, had been recorded under Section 313 CrPC and the defence had examined 15 witnesses. Taking note of these facts, the Court said that the foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. [State of Haryana v. Ram Mehar2016 SCC OnLine SC 857, decided on 24.08.2016]