Delhi High Court: A Division Bench of Siddharth Mridul and Gaurang Kanth, JJ. dismissed the writ petition as it was filed after almost 62 years challenging the acquisition proceedings whose enhanced compensation has been enjoyed already by the petitioners merely on the basis of coming to knowledge of a recent Supreme Court pronouncement declaring the notifications that led to proceedings being bad in law.
The facts of the case are such that Late Dewan Kesho Das ‘predecessor in interest’ was a displaced person under Displaced Persons (Compensation and Rehabilitation) Act, 1954 “Displaced Persons Act” successfully participated in the public auction of the ‘evacuee property’ in the year 1959 and executed an Indemnity Bond in favour of the President of India for the 10% of bid amount. Being declared as the highest bidder, he was directed to deposit the balance purchase price and even though the provisional possession of the evacuee property was offered the predecessor in interest never took the possession.
The predecessor-in-interest in year 1959 accepted the offer made by the Settlement Commissioner and offered their verified amount towards the balance purchase price. After adjusting the verified amounts, the sale certificate was finally issued in the year 1961. The Delhi Administration ‘Respondent 2′ issued the impugned Notifications on 13-11-1959 and 18-08-1960 ‘notifications’ and accordingly acquired the evacuee property. The predecessor, in interest being aware of the acquisition proceedings in respect of the evacuee’s property accepted the compensation and further sought for enhancement of compensation which was thereby granted.
It is the case of the petitioner that the Petitioners that they came to know about the Supreme Court judgment Saraswati Devi v. Delhi Development Authority, (2013) 3 SCC 571, in the year 2021 and later sought information from the Respondents under the Right to Information Act, 2005. Accordingly, the Petitioners came to know that the impugned Notifications are bad in law as the notices under section 4 of the Land Acquisition Act, 1894 had been issued prior to any sort of encumbrance being created on the evacuee property.
The petitioners, being son of the predecessor in interest herein filed the instant petition challenging the validity of notifications by Respondent 2 under Section 4 of the Land Acquisition Act, 1894 regarding acquisition of ‘evacuee property’.
Placing reliance on M S Dewan v. UOI, 2008 SCCOnLine Del 484, the Court noted that in the present case, there is an inordinate delay of almost 62 years in challenging the acquisition proceedings. The Petitioners accepted the enhanced compensation without reserving any right whatsoever. The law does not permit a person to approbate and reprobate at the same time. Inordinate delay in making the motion for a writ is indeed adequate ground for refusing to exercise discretion in favour of the petitioner. Therefore, now after an inordinate delay of about 62 years after the acquisition, the Petitioners cannot challenge the said acquisition proceedings.
“We are of the view that the petitioners cannot after such a long period seek to rake up the issue of acquisition merely on the basis of some recent pronouncements by the Hon’ble Supreme Court even when they accepted the compensation qua acquisition of the land by neither challenging the acquisition proceedings nor the award but on the other hand were only interested in enhancement of compensation for which they have sought a reference.”
The Court while dismissing the petition noted that f an axiomatic delay disentitles a party to discretionary relief under Article 226 of the Constitution of India.
[Nardev Soni v. Union of India, WP (C) No. 7815 of 2022, decided on 05-07-2022]
Advocates who appeared in this case :
Snr. Adv. Neeraj Kishan Kaul, Azmat H. Amanullah, Namisha Chaddha, Nitya Sharma, Pritma Suri and Aarzoo Aneja, Advocates, for the Petitioner;
Jitesh Vikram Srivastava and Prajesh Vikram Srivastava, Advocates, for the Union of India ‘R1′;
Manika Tripathy Pandey, Shubham Hasija and Ashutosh Kaushik, Advocates, for R3;
Yeeshu Jain and Jyoti Tyagi, Advocates, for R 9.
*Arunima Bose, Editorial Assistant has reported this brief.
Supreme Court: In a trade mark infringement case where interlocutory injunction was sought during the pendency of the suit, the bench of L. Nageswara Rao and BR Gavai*, JJ, was faced with a strange situation where at first, an adjournment order of the single judge of Calcutta High Court was treated as a ‘judgment’ and appealed against and later on, in appeal, the division bench took in upon itself to dispose of the interlocutory application instead of relegating it to the court below for its disposal because it did not want to prolong the litigation.
Single Judge Bench’s order
The order was postponement of the question as to whether the respondent-plaintiff was entitled to grant of an ad-interim injunction or not, and that too, by merely three weeks. The order was only giving an opportunity to the appellants-defendants to file their affidavit-in-opposition within a period of two weeks. The order clarified that no prayer for extension of time shall be entertained.
Was it a ‘judgment’?
There was no adjudication with regard to the rights of the respondent-plaintiff to get an ad-interim injunction during the pendency of the suit. Though by postponement of the issue with regard to grant of ad-interim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the respondent-plaintiff; the same could not be treated as a ‘judgment’ inasmuch as there was no conclusive finding as to whether the respondent-plaintiff was entitled for grant of ad-interim injunction or not.
“As such, the order passed by the learned Single Judge did not contain the traits and trappings of finality. If it is held otherwise, this will open a floodgate of appeals for parties who may even challenge the order of adjournment or grant of time to the other side to file affidavit-in-reply.”
Hence, the said order cannot be construed to be a ‘judgment’ within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable.
Division Bench’s order
The Single Judge passed an order on 2nd April 2019 and the appeal to the Division Bench was filed immediately thereafter in the month of April, though the exact date of filing of appeal is not known. The judgment and order impugned herein was passed after a gap of about 8-9 months from the date of the order passed by the Single Judge.
The perusal of the judgment and order impugned herein would clearly reveal that the counsel for the appellants-defendants had specifically submitted that the appeal was against an ad-interim order and therefore, the appellate court should not interfere by substituting its views but should instead direct a speedy hearing of the interim application of the respondent-plaintiff. The Division Bench of the High Court after recording the said submission, observed thus:
“Before entering into a discussion with regard to the merits of this case I say that all the facts and papers which were necessary for deciding the prima facie case of the parties were before us. On these facts and evidence we were in a position to assess their respective prima facie case and the balance of convenience. In those circumstances we propose to dispose of the interlocutory application ourselves instead of entering a prima facie finding and relegating it to the court below for its disposal. That would be unnecessary prolongation of the litigation and utter wastage of time.”
What was wrong with the order?
The Supreme Court could not understand the anxiety on the part of the Division to itself dispose of the interlocutory application instead of relegating it to the court below for its disposal when it itself took 8-9 months to decide the appeal.
“If the learned Judges of the Division Bench were so much concerned with the prolongation of litigation, they could have very well requested the learned Single Judge to decide the injunction application within a stipulated period. Instead of waiting for a period of 8-9 months, this could have been done by them at the very first instance when the appeal was listed. The hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts”
Hence, having waited for 8¬9 months after the Single Judge had passed the order, all that ought to have been done by the Division Bench was to request the Single Judge to decide the application for ad-interim injunction, which in fact, the Single Judge had scheduled to do after three weeks from 2nd April 2019. It was not even necessary for the Division Bench to have waited till 24th December 2019 and taken the pains of deciding the application at first instance. It could have very well, in the month of April, 2019 itself, done the exercise of requesting the Single Judge to decide the application as scheduled.
In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application.
The Court observed that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged.
Hence, the Court order the respondent-plaintiff to pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society.
Uttaranchal High Court: The Division Bench of S.K. Mishra and A.K. Verma, JJ., dismissed the appeal for acquittal considering it to be devoid of substantial and compelling reasons.
An application for grant of leave to appeal against the order of acquittal was rendered by the Court of Sessions Judge, Pithoragarh, Camp Didihat in Session Trial 11 of 2015 dated 21-08-2021.
The view of Ghurey Lal v. State of U.P., (2008) 10 SCC 450 was also considered. There have to be very substantial and compelling reasons for setting aside a judgment of acquittal, as the presumption of innocence becomes stronger by acquittal of the respondent, i.e. the accused, by the Trial Court. It was also decided that, while appreciating evidence, merely because the Appellate Court has a different opinion, the
Appeal cannot be allowed.
Court also took note of the judgment in State of Orissa v. Urmila Nayak, CRLLP 103 of 2015, in which S.K. Mishra, A.C.J. had opined that Court must be satisfied about the existence of, prima facie, compelling and substantial reasons.
The Court held that in the present case, there were no, prima facie, ‘substantial and compelling reasons’, to come to the conclusion that the matter should be heard, the impugned judgment should be re-examined or examined by the Appellate Court in an Appeal against acquittal.[State of Uttarakhand v. Ganesh Ram, 2022 SCC OnLine Utt 160, decided on 08-03-2022]
Counsel for the appellant: Mr. J.S. Virk, Deputy Advocate General assisted by Mr Rakesh Joshi, Brief Holder for the State of Uttarakhand.
Counsel for the respondent: None
Suchita Shukla, Editorial Assistant has reported this brief.
Gujarat High Court: Ashokkumar C. Joshi, J. dismissed a petition and emphasised the importance of proper reasoning in a judgment/order.
Petitioners were the original defendants in the captioned civil suit filed by the respondents herein –original plaintiffs for declaration and permanent injunction before the civil Court concerned at Amod, District, Bharuch, which came to be decreed by order dated 26-08-2001 as compromise took place between the parties. In filing of the execution petition, since there was a delay of about 02 years and 05 months, the respondents –plaintiffs filed a Civil Misc. Application 1 of 2016 before the Principal Civil Judge, Amod, which was rejected vide order dated 06-03-2017 and hence, the respondents –plaintiffs filed the aforesaid appeal before the first appellate Judge, which came to be allowed by way of impugned judgment and order.
Advocate for the petitioners – defendants, with all vehemence at his command, submitted that the learned first appellate Judge had committed a grave error in allowing the appeal and thereby, condoning the delay in filing the execution petition, which was filed almost after 15 years of the judgment and decree is passed in the civil suit, that too, without assigning any reasons for the same.
It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay.
The Court reiterated the decision of Supreme Court in Indian Oil Corpn. Ltd. v. Subrata Borah Chowlek, (2010) 14 SCC 419 and opined that the consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal. Ignorantia juris non excusat (latin for “ignorance of the law excuses not”) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content. Nonetheless, it is also trite that every case should be decided on merits rather than mere technicalities, save and except they are inexcusable.
Thus, the Court dismissed the petition and held that the first appellate Court had rightly exercised the discretion with a view to advance substantial justice. The Court however took this opportunity to emphasize the importance of reasoning in a judgment/order.
Proper reasoning is the heartbeat of a judgment/order. Detailed reasoning does not mean to have unwarranted repetition but it should be terse and to the point. It can be summed up in few lines also, but that must go to the root of the controversy and explanation thereto.Reasoned order furthers the cause of justice as well as avoids uncertainty it helps in the observance of law of precedent. Lack of reasons introduces an element of uncertainty, dissatisfaction and give entirely different dimensions to the questions of law raised before the higher/appellate courts.
[Ayeshaben v. Huriben Ismail Ali, R/Special Civil Application No. 12535 of 2018, decided on 22-02-2022]
For the Petitioner: Mr Varun G Rai
For the Respondent(s): Mr Faimuddin Saiyed
Suchita Shukla, Editorial Assistant has reported this brief.
Madhya Pradesh High Court: The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ., allowed the petition while hearing an appeal against the order against the order passed by the Jabalpur bench of the central administrative tribunal in O.A. No.697/2014 on 17-01-2020 in the matter where the application preferred by the petitioner challenging the order of penalty of compulsory retirement was rejected.
The present petition was initiated by the petitioners before the court after not getting the desired relief in the original application No. 697/2014 and then in the review application besides challenging the order of penalty of compulsory retirement and also the order of Appellate Authority rejecting the appeal against the order of penalty.
In the instant case, the advocate for petitioners Amit Seth refarined from going into the actual merit of the case confined his argument on a single ground that based on the rulings of the apex court in the cases of Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC Online SC 893 and Anil Rai v. State of Bihar, (2001) 7 SCC 318 the order in question, thus passed by the Tribunal has vitiated the law as there was an unusual delay in the reservation and pronunciation of the judgement and therefore the tribunal should reconsider the original application of the aggrieved party.
As far as the present matter was concerned the following opinion was formed by the Court:
“It is the need of the hour to emphasize over the need to pronounce judgment expeditiously and curtailing the time gap between reserving of a case and pronouncing of judgment to the bare minimum, it is vivid that the Tribunal heard and reserved the original application preferred on 20.02.2019 whereafter the impugned judgment was pronounced by the Tribunal on 17.01.2020 i.e. after nearly 11 months, which is a very long period of time”
Court emphasized to bridge the time gap in the reservation and pronunciation of the judgement to avoid the unnecessary delay.
In the light of the facts in the present matter, the Court dismissed the orders passed by the Central Administrative Tribunal in O.A No. 697/2014 and also the order passed in the Review Application No. 03/2020 and eventually the court directed the tribunal to re-hear the matter and pronounce the judgement at the earliest.[Sudesh Kumar Yadav v. Union of India, W.P No. 24337 of 2021, decided on 23-12-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
For petitioners: Shri Amit Seth, (Advocate)
For respondent 1: Shri J.K Jain, Assistant Solicitor General
Supreme Court: In a case where the order was dictated in the court, but had not been signed, the 3-judge bench of Dr. BS Chauhan, J. Chelameswar and MY Eqbal, JJ refused to accept the argument that once the order had been dictated in open court, the order to review or recall is not permissible in view of the provisions of Section 362 Cr.P.C. and took the opportunity to explain what a judgment is.
The order came in the case where the petitioners were convicted under Section 222 IPC. They had then preferred an appeal before the Gujarat High Court and during the pendency of the appeal, the petitioners had been enlarged on bail in November 2006. 7 years later, in December 2013, the appeal was finally allowed, and the order was dictated in open court allowing the appeal on technical issue.
However, the order dictated in open court and acquitting the petitioners was recalled by the court suo moto vide order dated 27.12.2013 and directed the appeal to be reheard on the ground that the court wanted to examine the issue further as to whether in the facts and circumstances of the case where the accused had been police constables, the offence could not be attributed to have been committed under the commission of their duty where sanction under Section 197 Cr.P.C. would be attracted.
It was, hence, argued that once the order had been dictated in open court, the order to review or recall is not permissible.
The Court rejected the contention and explained that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed.
The Court heavily relied on the judgment in Surendra Singh v. State of U.P., AIR 1954 SC 194 wherein it was held,
“… it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment.”
Referring to several judgments, the Court observed,
“… unless the judgment is signed and sealed, it is not a judgment in strict legal sense and therefore, in exceptional circumstances, the order can be recalled and altered to a certain extent.”
[Kushalbhai Ratanbhai Rohit v. State of Gujarat, (2014) 9 SCC 124, decided on 06.05.2014]
Delhi High Court: While stating the well-settled law that even when an appellate Court affirms the order of the Court below, it has to adjudicate on the issues which arise in the appeal, Subramonium Prasad, J., emphasized why reasons laid down in a judgment are essential and in view of that referred to certain decisions of the Supreme Court.
Present matter was directed against the decision of Additional Sessions Judge arising out of the order passed by Metropolitan Magistrate.
The Metropolitan Magistrate had dismissed the petition filed under Section 12 of the Domestic Violence Act on the ground of non-prosecution. Further, the MM had also issued notice to the Deputy Director, Directorate General of All India Radio to furnish details of empanelment of the petitioner along with other details in order to determine the maintenance.
Additional Sessions Judge heard the appeal under Section 29 of the DV Act.
Under Section 29 of the DV Act, an appeal is maintainable against an order passed by the Magistrate on both law and facts.
“…reasons are the live links between the mind of the decision taker to the controversies in decision and the decision or conclusion arrived at. An order sans reasons takes away a very valuable right of a litigant – to challenge that order.”
Supreme Court’s decision in CCT v. Shukla & Bros., (2010) 4 SCC 785 was also referred wherein it was observed that,
“…Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders…”
“…A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that judgment…”
Supreme Court’s decision in State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 was also referred to.
Bench held that the impugned order was completely bereft of any reasons.
Duty of the Appellate Court is to see whether the Metropolitan Magistrate had considered the claim of the petitioner on merits and what are the reasons given by the Metropolitan Magistrate to reject the claim.
High Court while setting aside the order of the Additional Sessions Judge remanded the matter back to the ADJ for consideration. [BSR v. PSR, 2021 SCC OnLine Del 4789, decided on 21-10-2021]
Rajasthan High Court: Dinesh Mehta, J., allowed a petition which was filed challenging the order whereby petitioner’s transfer order dated 28-07-2021 had been amended and she had been posted at Gram Panchayat 12 LNP.
Petitioner was working as Gram Vikas Adhikari and vide order dated 28-07-2021, she was posted at Gram Panchayat, Sahuwala, pursuant to which she joined her duties at Sahuwala on 30-07-2021. After about 14 days of the transfer order transferring her to Sahuwala another order came wherein she was transferred to Gram Panchayat, 12 LNP, treating her to be ‘under transfer’ at Sahuwala.
Counsel for the petitioner submits that pursuant to order dated 28-07-2021 the petitioner was relieved from earlier place of posting on 29-07-2021 and she has joined on 30-07-2021 at Gram Panchayat Sahuwala. Thus, she cannot be treated to be ‘under transfer’ and the impugned order amounts to fresh transfer order within a short span of 14 days.
The Court stated that according to Law of Precedence, judgment passed by Coordinate Bench of this Court was binding, whereas judgment of other High Court was only having persuasive value. The Court was of the consistent view that a transfer order once executed, cannot be cancelled giving reference to the judgment of Kalu Singh v State, 2003(1) WLC 674 and Gangaram Bishnoi v. State, 1994 WLR 537.
The Court was of the opinion that since pursuant to the order dated 28.07.2021 the petitioner had been relieved on 29.07.2021 by the concerned Vikas Adhikari and she had even joined at Panchayat Samiti, Sahuwala, it cannot be said that petitioner was under transfer. As a matter of fact, on 29.07.2021, the petitioner has become Gram Vikas Adhikari of Sahuwala. The order dated 14.08.2021 was thus, clearly contrary to facts.
The Court while allowing the petition held that the transfer order, which has been executed, cannot be cancelled, altered or modified as the petitioner had joined at Sahuwala, directing her to join at Gram Panchayat, 12 LNP amounts to fresh transfer, which cannot be countenanced as it has been passed within a short span of 14 days.[Anusuiya Bishnoi v. State of Rajasthan, 2021 SCC OnLine Raj 1205, decided on 03-09-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
For Petitioner(s): Mr. J.S. Bhaleria
For Respondent(s) : Mr. Kunal Upadhyay for Mr. Sunil Beniwal, AAG
Madras High Court: Dr G. Jayachandran, J., refused to pass a decree in favour of the plaintiff who relied on general admission of facts made by the defendant.
In the instant matter, it was stated that the plaintiff was engaged in the business of providing and arranging finance to various borrowers and had lent a loan to the first defendant company, which is an NBFC.
On the date of filing the suit, a sum of Rs 38,16,45,711/- was due and payable to the plaintiff. While advancing the loan, the second defendant provided personal guarantees for each of the facility agreements entered by the first defendant.
The second and third defendants were jointly and severally liable to pay the suit claim.
According to the plaintiff, since 2014, the transaction between the plaintiff and the first defendant company was regular without any default till the month of September 2020.
Further, it was submitted that the misappropriation of the fund by the Management of the Company came to light, when there was a default and when the Chief Financial Officer of the first defendant issued a Circular on 07-10-2020 disclosing diversion of the fund of the first defendant company by the second defendant as a consequence, criminal proceedings had been initiated by the plaintiff and the matter had been seized by the Directorate of Enforcement Wing.
Extracting a certain portion of the pleadings in the written statement, the plaintiff sought passing of a decree and judgment upon the said statement as admission.
Bench stated that the three admissions which were relied upon by the applicant were all general admissions and did not admit the suit claim.
Further, the Court added that the admission that fraud was committed per se will not entail the plaintiff for a decree as claimed in the suit. Whatever claimed in the suit has to be proved through evidence in the manner known to law and the portions of the admission relied upon by the plaintiff/applicant is a general admission of fact regarding the liability of the first defendant company and its inability to pay his creditors. The general admissions of fact cannot be construed as an admission of suit claim to pass a judgment and decree.
In view of the above application was dismissed. [Northern Arc Capital (P) Ltd. v. Sambandh Finserve (P) Ltd., 2021 SCC OnLine Mad 2577, decided on 5-07-2021]
Rajasthan High Court: Mahendra Kumar Goyal J., dismissed the petition being devoid of merits.
The facts of the case are such that the petitioner was charged under Sections 420, 467, 468, 471, 474 and 120-B Penal Code, 1860 i.e. IPC. There is a categorical allegation against the petitioner forging and fabricating the transfer certificate of Class- VIII which he used along with his nomination papers submitted for contesting election for the post of Sarpanch Gram Panchayat, Mundoti. The instant criminal miscellaneous petition under Section 482 Criminal Procedure Code, i.e. CrPC. is filed against the order dated 05-12-2019 passed by the Additional Sessions Judge, Sambhar Lake, District Jaipur whereby, the revision petition filed by the petitioner against the order dated 27-02-2017 passed by the learned Additional Chief Judicial Magistrate, Sambhar Lake, District Jaipur.
Counsel for the petitioner submitted that allegation against him was of furnishing false information before the Returning Officer while submitting nomination papers and in view of provisions of Section 195(1)(a) CrPC, the complaint could have been filed by the public servant, i.e., by the Returning Officer only and no private complaint was maintainable. He further relied on a judgment Kiran Kanwar v State of Rajasthan, S.B. Criminal Misc. (Petition) No.4345/2019 stating that it involves identical facts and wherein proceedings which was initiated on behest of private complaint was quashed in view of the bar contained under Section 195(1)(a) CrPC.
Counsel for the respondents submitted that in the present case, the allegations disclose commission of cognizable offence also and hence, the bar under Section 195 (1) (a) CrPC is not applicable. They, therefore, prayed that the criminal misc. petition be dismissed.
Section 195(1) (a) Cr.P.C. provides as under:-
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice a for offences relating to documents given in evidence-(1)
No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;”
The Court thus observed that in the present case, the allegations, beside submitting false information with the Returning Officer, are with regard to forging and fabricating a document also, for which private complaint was very well maintainable. The judgment of the co-ordinate Bench of this Court in the case of Kiran Kanwar (supra) has no applicability in the facts and circumstances of the present case.
The Court thus held in regard to the case relied by the petitioners that “ it has specifically been observed that there was no allegation in the FIR of forging and fabricating any document, which is specifically levelled herein and hence, the same has no applicability in the facts and circumstances of the present case.”
In view of the above, petition was dismissed.[Laluram v. State of Rajasthan, S.B. Criminal Miscellaneous (Petition) No. 55/2020, decided on 24-02-2021]
Arunima Bose, Editorial Assistant has reported this brief.
Uttaranchal High Court: Lok Pal Singh, J., allowed a writ petition which was filed seeking a writ of certiorari to quash the impugned order which had rejected the claim of the petitioner for revision and up-gradation of the pay-scale of the post of Private Secretary in the Uttarakhand State Legal Services Authority in the pay-scale of Rs 15600- 39100 with Grade Pay of Rs 5,400 from the date of promotion and a writ of mandamus directing the respondents to revise and upgrade the pay-scale of the petitioner of Private Secretary to Rs 15600-39100 with Grade Pay of Rs 5,400 from the pay scale of Rs 9300- 34800 with Grade Pay of Rs 4,600.
Petitioner was appointed as a Personal Assistant in the pay-scale of Rs 5500-9000 in the Uttarakhand State Legal Services Authority and was promoted to the post of Private Secretary in the pay-scale of Rs 9300-34800 with grade pay of Rs 4600. Department of Finance, Government of Uttarakhand sanctioned the structure of stenographer cadre in Government departments, but the said staffing pattern did not contain the post of Private Secretary, to ventilate his grievance, the petitioner submitted a representation to the Member Secretary, Uttarakhand State Legal Services Authority seeking upgradation of the pay-scale of Private Secretary in the pay-scale of Rs 15600-39100 with grade pay of Rs 5400.
The counsel for the petitioner, Mr Vinay Kumar submitted that the order was not sustainable as the same was cryptic and unreasoned.
The Court observed that the order seemed to be passed without taking into consideration the recommendations made by respondent 3 and it also stated that the work of the Private Secretary whether he was in the High Court, in the office of the Advocate General or in the office of Uttarakhand State Legal Services Authority, was similar and since work assigned to the petitioner on the post of Private Secretary is the same as assigned to the Private Secretaries in the High Court as well as in the office of the Advocate General, the respondents had no authority to discriminate the petitioner from the same pay-scale.
The Court allowed the petition and relied on the judgment of State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 where it was held that,
“18. Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts’ clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.
Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties’ submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.
We are sorry to say that the judgment in question does not satisfy the above standards set for proper determination of disputes. Needless to say these types of orders weaken our judicial system. Serious attention is called for to enhance the quality of adjudication of our courts. Public trust and confidence in courts stem, quite often, from the direct experience of citizens from the judicial adjudication of their disputes.”
While going through the judgments uploaded on the Supreme Court’s official website, an anomaly has caught our attention. In two of the judgments uploaded on the website, the case details mention the bench strength of three judges but the judgment carries the name of only two.
Here are the screenshots of the Case Details and the names of the judges mentioned in the judgment:
While this is sure to create confusion as to which bench delivered the judgment, the order in the said case clearly mentions that Justice UU Lalit has pronounced the verdict for himself and Justice MM Shantanagoudar.
Similarly, in Jayantilal Verma v. State of Madhya Pradesh (now Chattisgarh), Crl.A. No.-000590-000590 / 2015, as per the case details, consists of Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, however, the judgment, as originally uploaded on the Supreme Court’s official website on 19.11.2020, has been signed by Justices Sanjay Kishan Kaul and Hrishikesh Roy.
Here are the screenshots of the Case Details and the names of the judges mentioned in the judgment:
Just like the previous case, the order in this case also clearly mentions that Justice Sanjay Kishan Kaul has pronounced the verdict for himself and Justice Hrishikesh Roy.
While these are just a couple of examples, similar discrepancies continue to appear on the Supreme Court website.
We hope the Supreme Court looks into this and makes sure that the ‘Bench’ column in the ‘Judgments’ section on the Supreme Court website displays the names of the judges who have delivered the verdict.
Bombay High Court: Vibha Kankanwadi, J., observed that,
“The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated.”
The instant application was filed by the original accused for suspension of substantive sentence, during the pendency of revision imposed against him by Judicial Magistrate after holding him guilty of committing an offence punishable under Section 138 of the Negotiable Instruments Act.
Bench stated that at first it is required to be seen, as to whether before admitting the revision and while dealing with the present application whether it is necessary first to direct the applicant to surrender himself.
It appears that the Appellate Court in the present case pronounced the Judgment on 04-05-2019 in absence of the appellant-accused.
Section 387 of CrPC deals with Judgment of subordinate Appellate Court and it provides that the rule contained in Chapter XXVII as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate.
“…if directions/ order is passed by the Appellate Court for exemption of the accused, then only the Judgment can be pronounced in absence of the accused; otherwise his presence should be secured before the Judgment is pronounced.”
No doubt, sub section (7) of Section 353 of the Code provides, that no judgment delivered by any Criminal Court shall be deemed to be invalid by the reason only in absence of any party, however, the Appellate Court cannot insist upon invoking sub section (7) of Section 353 of the Code if there was no endeavour on its part to secure the presence of the accused.
Court stated that it is the Appellate Court’s duty to see that the Judgment in an appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353 (6) of the Code) and to take such appellant in custody upon the confirmation of the conviction.
Coming to the question of whether in the present case, Court could direct the revision applicant to surrender himself before the Appellate Court and then take up revision for hearing, Bench stated that the answer for the said question was in the Supreme Court’s decision of Bihari Prasad Singh v. State of Bihar, (2000) 10 SCC 346.
In the above-cited case, the following question was considered:
Whether the High Court while exercising its jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered?
Following was observed:
“Under the provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.”
In view of the above discussion, Court held that the revision application cannot be rejected on the ground that the accused did not surrender and therefore, there was no bar on considering the present application.
What was the basic crux and background of the matter?
The complainant stated he had extended loan amount, from time to time, and the disputed cheque was given by the accused in the discharge of said legal debt or liability. Accused took a defence that he had already given certain cheques in possession of the complainant and one of the said cheques was misused. He led evidence and in his defence he tried to show, that the presumption under Section 139 of the Negotiable Instruments Act had been rebutted by him.
Court found the above to be an arguable case and hence held that the revision deserves to be admitted.
Bench directed for the suspension of the substantive part of the sentence till the revision was decided.[Fazal Khalil Ahemad Shaikh v. Nadkishor Ramnivasji Agrawal, Criminal Application No. 2743 of 2019, decided on 13-02-2020]
Delhi High Court: Vibhu Bakhru, J., in the present petition observed that,
“A deadly weapon is one, which is lethal and is likely to cause death when used in the manner in which it is intended. By its very nature, a deadly weapon is one, which is likely to result in a fatality.”
Appellant was convicted of the offences punishable under Sections 393/398 of the Penal Code, 1860 and Sections 25/27 of the Arms Act, 1959.
The present appeal has been filed impugning the judgment for the above-stated conviction and order of sentence.
It has been submitted that the accused was armed with a pistol which he placed on the complainant’s temple and asked him to hand over whatever he had.
While the accused was fleeing from the spot, two patrolling police officials pursued and apprehended him and the police officials snatched the pistol carried by the accused.
Analysis and Decision
Police Officials Testimony
Bench while analysing the facts and submissions in the present case stated that merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of the police officials is required to be discarded.
Supreme Court’s decision in Kalpnath Rai v. State,(1997) 8 SCC 732 was referred in the above context, wherein following was the Court’s proposition:
“There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance.”
Further, there wasno doubt on the fact that a country made pistol (katta) was recovered from the accused also the fact that he was apprehended while he was fleeing from the spot has also been established.
Question to be determined is whether the appellant’s conviction under Sections 25 and 27 of the Arms Act is maintainable?
The country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.
Further the Court observed that the possession of ammunition is a punishable offence under Section 25 of the Arms Act. The use of such ammunition is punishable under Section 27 of the Arms Act.
Thus, there is little doubt that the appellant is guilty of committing an offence punishable under Sections 25 and 27 of the Arms Act.
Next issue to be examined is whether the country made pistol (katta) can be termed as a “deadly weapon” under Section 398 IPC?
Section 398 IPC states that if an offender is armed with a deadly weapon at the time of robbery or dacoity, the same would constitute an offence under Section 398 IPC.
Whether the country made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair?
Court stated that in order for any weapon to be termed as deadly, it should one which is capable of or likely to cause death if used in the manner in which it is intended to be used.
There may be a large number of instruments or objects, which can be used in a lethal manner, however, if they are not intended or meant to be used in that manner, they cannot be understood to be weapons for the purposes of Section 398 of the IPC.
Bench also noted that there are a large number of instruments which if used in a particular manner, may result in a fatality. A pen is not a deadly weapon and merely carrying the said writing instrument, at the time of committing robbery or dacoity, would not constitute an offence punishable under Section 398 of the IPC.
Two necessary ingredients of a ‘deadly weapon’:
first, that it should be a weapon and capable of being used as such
second, that it must be inherently lethal and if used in the intended manner is likely to result in death.
Hence in view of the above analysis, it can be construed that even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon.
In the present matter, at the material time, the pistol could not be used to inflict any fatal injury, if used in the manner in which it was meant to be used — that is, for the purpose of firing a bullet — on account of it being in disrepair.
Thus the impugned judgment convicting the appellant under Section 398 of the IPC was set aside and his sentence was also reduced.[Sonu v. State, 2020 SCC OnLine Del 1213, decided on 15-09-2020]
Mr. Bharat Chugh, who is currently working as a Partner at L&L Partner. In 2013, Mr. Chugh secured first rank in Delhi Judicial Services Examination and became the youngest Civil Judge in his batch. He has also trained both at the Delhi and National Judicial Academy and served in various civil/criminal assignment in three and half years of judgeship. He has been interviewed by EBC/SCC Online Ambassador Vijaya Singh Gautam who is currently pursuing law from RGNUL.
Refer to the Link below for the Podcast of the interview
PART 1: Click HERE for Conversation with Bharat Chugh on his definition of “Good Resume” and much more
PART 2: Click HERE for Conversation with Bharat Chugh on Art of Legal Writing, implications of pandemic on Legal Proceedings and much more
How do you define good legal education if one is aspiring to practice litigation or serve judiciary?
It is a common notion that it is very difficult to get into certain law schools and if you manage to get into those by cracking the very difficult entrance examination then there is a presumption of merit. This is not always unfounded and there is a certain amount of merit to this thinking. But this is not all.
No law school is better than the other, it always boils down to the individual merit of the candidate to what the candidate has done in terms of law schools- internships, publications, moot courts etc.
Individuals make the institutions. The important thing to notice is sometimes it takes only a certain number of students to put your law school on map. Personally, I have helped recruit many worthy candidates at the law firm without going by the traditional notion and looking at the candidate rather than the institution.
What do you expect from a good resume in order in case of attaining internship or employment?
In the initial years, everyone should endeavor to experience everything and on the basis of the experience accumulated, must decide the path that suits him/her. We live in an era of specialization and therefore, one must focus on the areas in which recruiter will have interest. The idea is to be able to fill a vacuum in the market; fulfill a need; that’s the only way to stay relevant. But before one specializes, one should experience everything. Therefore, initially, broad based internships and work(which translates into a broad understanding of first principles of law and broader lay of the land) which slowly gravitates to the subject area work really well for me personally. As one masters in any field, he/ she becomes the knowledge base of the firm or the ‘go to person’ on that subject and people approach him/her for any consultation on the subject matter. It develops your credibility and reputation as a lawyer not only in the firm but generically also in terms of clients & all who start trusting you.
I personally have a bias for publications as it reflects prowess at language; skills such as how you speak, draft and also language which is reflected a lot in your communication. It also helps a lot in network building which is very important in this era. Words, as I always say, are the only stock in trade of a lawyer and the importance of the ability to communicate cannot be emphasized enough.
Also, simplicity is very crucial so the idea is to write something easily comprehendible, witty and interesting. I believe, if you can’t state it simply enough, you haven’t understood it well enough. And, if you can’t say out aloud what you’ve written, don’t write it either. It has paid great dividends to me as well.
Law cannot be studied in a vacuum so if the candidate is well read on economics, sociology etc gives him/ her upper edge.
To have better dialogue and conversation with judges or clients, policy makers, business leaders, you need to have a world view and being well-read definitely helps.
Someone said the difference who reads and who doesn’t read is of a mason and an architect.
For example, if you are given to work on economic policies, you cannot limit yourself to bare acts but need to have an overview of other relevant factors also and their impacts. Law is inter-vowen with so many other disciplines and having an interdisciplinary knowledge not only ensures a more well-rounded personality but also an ability to strategize better. Hence,one must have an inter-disciplinary approach. One must read extensively – sociology, history, philosophy, critical thinking, anthropology; all go on to make one a better lawyer/judge.
Also, sometimes the resume is not final word or correct determinant. One should not judge a book by its cover. So, we try selecting resumes on the basis of personalized well written cover letter. Because, even if an interview is an equalizer or a leveller, getting that opportunity is sometimes not easy because of the sheer number of resumes that recruiters get, and in order to get that opportunity – the resume/cover letter should catch the attention of the recruiter. It should have things that make the candidate stand out; convince the recruiter that this candidate will add value and is at very cutting edge of his/her specialization or area of interest.
Where do you get this sort of clarity while working hard for the judiciary to crack it and then leave it for another unplanned opportunity? Do you ever think about the road not taken?
Through my personal life experiences and some of them are already in public domain. I started working in an early age and that gave me a great exposure to law. It definitely helped me realize a lot about life, especially the injustices meted out on people on daily basis; the plight of people who are marginalized, who don’t have access to resources, how they are possible given a rough deal by the system; how difficult it is for a common man to get justice and how important is sensitivity in judicial decision making.
My father ended up losing his own house as a matter of fact when he came as a refugee to India due to the lawyer not showing up in the court.That’s when – my dad took the pledge of fighting for the disfranchised. Slowly and gradually, my father rose from selling tea to a typist at Tis Hazari Court, who would go back in the evening to study law, after a hard day at work typing out documents. He finally completed his law and started his legal practice at Tis Hazari and did a lot of pro bono work. He wanted me to start from the very court, but as a judge. He wanted me to be a judge because as a judge, you have the power to do a lot for the people and to do justice on a day to day basis. I ended up preparing for judiciary in my final year of Law College. I was always passionate about law and really enjoyed the time of preparation. I was fortunate to have made it in my first attempt and really enjoyed my stint as a judge. Ended up getting to do a lot of good. But somewhere along the line, I realized that I really missed the feel of being a lawyer. My dad was lawyer; I’ve personally always connected-to the idea of being a lawyer more than anything else. That’s who I really am. That’s what I associate more with. I’ve always loved arguing & persuasion, and on a balance , I thought – I am more suited to being a lawyer than a judge, atleast in my initial few years where the experience at bar is crucial and goes a long way in shaping one’s self. Also, I thought a litigation would give me a wider canvas to work with, at least in my initial few years. I also love to write and grappling with legal issues that one doesn’t have exposure to, at least, in the initial few years of judgeship. This was the thought behind leaving judgeship and there’s never been a moment of regret, ever. I have had the great fortune of working on some of India’s most complicated and biggest cases in the last three and a half years and there’s never been a dull day or a day of regret. Being a Lawyer is challenging, fulfilling and extremely rewarding.
In India even after several Pay Commissions, Judges are not paid considering the amount of work load they have in courts? Do you think it was one of the major reasons for you to leave judiciary?
No. As I said, I am passionate about the practice of law and that was what weighed with me when I took up lawyering. Judgeship is something that can never be measured in terms of compensation. Plus, I am a man of very limited needs. My biggest expense a decade back and even now is on Books and judges are paid well enough to buy them. Therefore, money was never a consideration though the practice of law, if you’re good at it, is extremely rewarding. On a broader point, I agree compensation of judges in India is not at par with the work-load and India is amongst one of the nations where post-independence, the salary of judges have actually gone down relative to the rest of the world. Indian judges are one of the most poorly paid judges in the world. Despite that we tend to attract good talent from the bar. To attract and continue to attract the best minds, we need to pay them better.
Consultancy Services being barred by Bar Council to provide Legal Services? What is your view on it?
It is the need of the hour to have some regulation in order to regulate Consultancy Services in India but in the wider picture, opening market for the big law firms or foreign law firms can increase healthy competition and can create more employment opportunities. Competing with the best brains (and brains from diverse fields) can benefit the legal fraternity at large. The legal sector as whole and the client both benefit with this cross fertilization. I have never been in favour of closing down the market but talking about protecting the interest of the lawyers, it should be done in a regulated fashion,and we can balance the pros and cons for betterment and growth.
Quoting a phrase from your profile ‘you have had the experience of facing 12 criminal appeals in a day’ and you have excelled the art of cross examination. You are also very well known for your talks and writings on the art of judgment writing. How do you cope with the humongous work pressure? Also, how can one maintain mental health and well-being while pursuing a career as competitive as law?
I consider myself blessed to have a big team of bright young lawyers to work with and it will be unfair to take the entire credit. Arguing 12 criminal appeals in a day and balancing the work is intellectually stimulating and I strongly believe time management was the key to this as it is the key to pretty much everything in life. One should be very jealous of their time and should not waste time at any cost. Distractions are faced by each one of us and therefore, it is important to master the art of self-control.
The Stanford Marshmallow Test concluded that people who are good at self control have better chances of being successful than people who are not as they can let go of the instant gratification.
The emotional toll that long working hours take on you can be mitigated with a sound support system which can exist in the form of your family, friends & peers, or even something that you totally enjoy doing for instance, reading, painting or playing the piano. Also, it is always advisable for one not to get too emotionally attached to one’s case because not only does that limit your objectivity but even the judges lose the confidence in you if you are too emotional about your brief. Your and the judge’s compass should be aligned. The Judge should trust you as an officer in the court and that trust is earned by being objective about one’s case and making fair concessions whenever appropriate. That way – courts start trusting you as an officer of the court. Even otherwise, it is a good idea to be emotionally balanced. In fact, speaking from a personal experience, cultivating hobbies help in overall development and helps one get through tough times.
We would like to know some of your interesting cross examinations instances.
I have shared multiple criminal cross examination instances and talked about. Let me talk about a civil case where I was trying to get an email admitted in a case of misrepresentation. I was representing a foreign client where a startup company, through a series of misrepresentations, had convinced my client into buying it. Since it was nothing but a sham, my client wanted a reconsideration of the sale deal and return of the consideration. It was important for me to prove certain emails that were denied by the opposite party:
When I was cross examining the party had already denied the email throughout the course of the case. It was an old mail and we couldn’t call the service provider as we were in an advance stage of the case. There was no way really to prove the email if this witness denied it even during cross examination. I had to get that admission out of him someway or the other. I was careful not to ask an open ended question but keep the witness on a tight lease by asking close/leading questions. So, the question I ended up asking the witness was somewhat on the lines of : “why you didn’t escalate the email to your Board of Directors” not “did you receive the email or not?”
My question was somewhat loaded (which may not always be permissible) and presumed that the witness had received the mail; I deflected attention to the reason of not forwarding it to the board of directors. I took it as a given that he received it and the guy took the bait and starting explaining the reasons for not forwarding. The witness was well into his justification before he realized that he had ended up conceding the fact that he got the email.
In the same case, the witness claimed selective amnesia/forgetfulness of certain facts; in order to overcome that, I starting by asking the witness self serving details from his distant past, all of which he could recollect with ease. To establish that he had a robust memory. This laid a great foundation for my case as – as I gradually moved to more damaging aspects of the case, he could not claim forgetfulness as a defence as the same would not be trustworthy.
In light of the current pandemic, what as per you will the ramifications be on the legal proceedings, on students graduating this year and the corporate culture?
Currently, each one of us is grappling with pandemic. There is also a silver lining to things depending on whether you see the glass half full or empty. Personally, I see it as half full as it has made us capable of working remotely, building technological infrastructures and we are becoming more efficient in doing things. It all depends on our approach to this – how we are taking and how willing we are to grow.
In hindsight, Bill Gates sometimes in 2015 warned us about this and we have failed in our duty of preparing better.
But sometimes, we learn the hard way. It is important for us to learn lesson and adapt once over. For young graduates, anxiety due to employment prospects is growing. Most lawyers and law firms have kept up their commitment of hiring and providing virtual internships. Many lawyers and partners have decided against taking their equity in order to pay the dues and to provide their employees with pay. Fortunately, people continue to show empathy and concern towards each other in these difficult times.
Few years ago, people thought that the M & A sector wasn’t doing too well, people thought economy has taken a down turn. People were not investing and businesses were failing. NPAs were rising. Even in that state of financial doldrums, there was IBC which came up as a big practice area; financial fraud/white collar crime also saw a huge rise and flourished as a practice area.
Litigation/legal work will continue till human species exist. The work form and nature may change but opportunities will always be there and we lawyers are a resilient species and are great at adapting and evolving.
Do you think ADR mechanism in these times will emerge as a savior in tackling the backlogs of cases?
Yes, I absolutely believe it will emerge as a savior. It is a more efficient method of resolving dispute which is why people are slowly turning away from the traditional civil processes/suits. I do think COVID-19 will help accelerate this process of motivating people to go for not only arbitration but also pre-mediation and other ADR mechanisms as well.
How can we overcome the gaps created by virtual hearings on cross-examination or how is it different from the traditional hearing set up? Also,how will it impact on the evaluation of factors such as body language and emotional sense of the witness/ accused who are being cross-examined virtually?
Personally, I am not a huge fan of cross examining someone virtually. Demeanor is a very important element in appreciation of evidence and virtual hearing makes it very difficult to calculate factors such as sweaty palm, tapping of feet etc. Another problem with the virtual cross-examination is the possibility of the witness sitting in a jurisdiction where he may not be subject to the laws of perjury.
Ultimately, it poses a greater challenge; when video conferencing was introduced in India, the courts, as a matter of prudence expounded that the witness must be present in a country with which India has an extradition treaty and under whose laws of perjury are punishable. Even beyond benefits such as: observation of demeanour of witness and prevention of perjury, traditional hearings have other advantages too; very often, just by being in each other’s presence, the parties approach each other during coffee and lunch breaks and the matter gets resolved amicably without resorting to further litigation.
In my opinion, if the current situation demands virtual hearings, then it is incumbent upon us to evolve more effective methods and make use of better technology such as well defined cameras, better view, more oversight etc.
Please throw some light on how can one improve upon judgment writing or any legal writing for that matter?
What’s true for any legal writing, is true for judgment writing as well. I’ve written extensively on this and those interested may visit my earlier pieces on this. In short, one must go by the Rule of CRAM when writing facts. Facts have to be written Chronologically and must focus on Relevancy, Admissibility and Materiality. I have also often recommended young aspiring judges to firstly follow the Rule of ‘WDWDW’ (WHO DID WHAT TO WHOM) while writing judgment. If your judgment does not say this, in the first few paras, then it does not catch the reader. One may follow this formulation in order to give all necessary information that the reader needs. Secondly, in our writings and our briefing notes/preparation,we should always seek to address the necessary questions such as: Who? When, Where and How, What and Why? All of this helps the senior/reader/judge to understand what happened, what was the dispute about, how did the dispute come to this situation; also ‘What’ part articulates what the party seeks from the Court; and finally ‘Why’addresses the question as to why should the court decide in that particular way The last part is very important from the perspective of pleadings as it tells the court the reasons why should the court should decide in a particular way. But the golden rule in the judgment writing is that
“If you can’t say it aloud – don’t write it.”
Many times, judgment writing is not an exercise of coming to a point or deciding a law but rather a show of the literary genius of the writer. I believe, the factual part of the case must be clear and the losing party must be provided with adequate reasoning so that if need be, an appeal could be filed. As it is said, justice shall not only be done but seen to be done. The litigant must understand what is written and done.
We have judgments with 180 paragraph with 140 paragraphs just being a narration of history. Quoting Rig-Veda in a judgment is unnecessary. Nobody needs to be told in a gender justice judgment that we ought to respect women because a historical document says so. Our constitution is good enough framework. This would help with managing the bulk of a judgment which puts many students-off reading them while not taking away anything from its legal reasoning. Use of visual aids, maps, clear conclusions, key take away should be adopted more to make judgments more understandable. Ultimately, we need to remember that judgments constitute law – and ignorance of law is no excuse; in this background, it seems a bit odd and unfair that many judgments are simply not readable and the citizen can’t understand them.
It has always been my advice to young aspirants to write less as it is not the quantity but the quality which sets well-written judgments apart. Finally – whenever writing any legal brief, remember:
The shortest distance between two points is the straight line. Be straight in your writing.
Also, “less is more” and in order to practice the ability to pack a lot of punch for our briefings we often try and prepare our cases as Elevator Pitches, and the practice allows us to be able to summarise our cases or atleast the key points in the time that it takes for a person to go from the ground floor to the 9th floor; this helps us cultivate the skills of ‘separating the chaff from the grain’ and also focus on the most important ideas/arguments of our case and distill our thoughts.
We have Colonial Laws due to which at times, judge faces moral dilemma? Do the judges have the power to subside law and follow the moral principles?
Yes, some of these dilemmas are faced by the young judges all the time. I had faced one by myself.
To answer this question, I want everyone to remember that a judge does not only do justice but he does the same in accordance with law and not on the basis of his conception/idea of justice which may be very subjective. There are different ways of looking at any given situation and the idea of justice usually varies from person to person. However, as a judge, justice has to done solely on the basis of law. This ensures rule of law and sanctity of justice and not rule of individual men. Principled judicial decision making is important.
However, where the judge is of the opinion that a given law is colonial and may not be constitutional, a civil judge or a magistrate cannot declare the law as unconstitutional but there are enough provisions allowing the judge to make a reference; formulating the question on constitutionality and referring it to higher bench competent to deal with constitutional challenge matters. CPC and CrPC allow judge to make such references.
There is a huge perception that these references are not appreciated by the Higher Courts. I don’t agree with that perception at all and strongly believe that if there is question in which the need to check its constitutionality is felt, it must be referred to the Higher Courts as the law allows you to do so. The Law grants the judge the power to do so.
Another approach would be to find out a creative way to interpret law. For example, I had the opportunity of ruling on a provision in Railways Act which prohibits anyone from selling anything in the train any without the permission of the Railway Authorities and doing so is a punishable offence. When I started as a Judge, this was one of the first issue which came to me.
I glanced at these people, who sold tea, water bottles and trinkets and they stood in front of me as if they have committed some heinous crimes. They had been projected as a threat to national security where in reality they have been struggling to make ends meet and provide for their families.. We have to also consider that this is not the choice that they have made, rather they are force to work like this due to lack of opportunities. So, if State cannot create enough employment opportunities, then we don’t have any moral right to punish them.
That was my instinctive response to the issue came in hand. And with my research, I came to the conclusion that “basic necessity knows no law”. I was really inspired by some of the foreign decisions which said that in a particular circumstances, , stealing bread is not a crime. Of course, it does not legitimize stealing; otherwise it would have been anarchy.
I was also inspired by Delhi High Court judgment which talks about the Decriminalization of Begging where the court went on with a similar logic that we need to get rid of the poverty but not the poor and gave defence of necessity to beggars who begged out of circumstantial necessity.
The social media platform is currently buzzing with opinions on bois locker room which is an Instagram chat room sharing objectionable views on girls and their morphed pictures. How do you see this act as abuse of freedom of speech and expression on social media platform? What are the legal actions that can be taken to prohibit such activities from happening again in the future?
We have enough laws in terms of IPC and cyber acts to handle the situation. Freedom of Speech is not an absolute right and as we call know:
Freedom of speech is not the right to say fire in an open theatre or freedom to say something which incites violence, cause public disorder etc. which is sufficiently entrenched in the system.
Certainty of application of the existing laws is a better response than enacting more laws. There cannot be a pre-censorship and we cannot go that way. I strongly believe better application of existing laws and good investigation can bring the offenders to the book and will act as deterrent to others.
How important is legal research and how can one ace the art of legal drafting?
It is a very important question to address as legal researching holds paramount importance in winning the trust of the client and as that of a judge. The entire profession is based on knowledge assyemtry; knowing or understanding something that the opposite side doesn’t and thriving on that. We don’t sell anything except what we know and how we think, right?
A client comes to you because you know something which he does not.You win a case by knowing something that your opposite side does not and by convincing the judge and persuading him.
It is not only important to know how to do research conventionally; we need to go a step beyond to be outstanding. It is very important that young lawyers do not start their research on Google directly.Rather go with bare act – understand the language of the bare act and illustrations, the standard commentaries based on the subject. One should know the legislative history, evolution of law, the Parliament debates, Constituent Assembly debates and other primary materials to help you understand the law the law in depth. It is also important refer portals like SCC, Journals and other sources to look for precedents. When you build up a case, go with the research ina particular order and use the credible sources only. It should be primary sources more than hearsay or what somebody’s personal opinion is.
…it is on us to help the judges to make a better decision. With the help of a good research, you help them and yourself by convincing them for making a decision in your favor.
What inspired you to not stop and kept you moving forward in life?
You learn from everyone and everything. Ones failure also gives the biggest lesson and we learn from our mistakes and failures as well.. I looked up to a lot of judges as my role model such as Justice Krishna Iyer, Justice Bhagwati, Justice Kuldeep Singh, Lord Denning, Lord Atkin as they have redefined judicial system and done justice in a way which improved the life of the people at the ground level. . On the practice side, there are other great inspirational figures such as Mr. Nariman, Dr. Ambedkar. Looking up for the few people and learning and emulating from those giants and standing up is very important. When you read, you get inspiration, not only in the field of law but also in the other field and people like Leonardo da vinci, Steve Jobs can be quoted as a great inspiration for the fact that they stood for making a dent in the world and were so passionate about what they did. They almost always let the perfect be the enemy of the good (not always recommended) and stood out for their fantastic contributions to the world.
In India, one cannot advertise legal services. In such a case, the most effective way to solicit client as a young lawyer is to –
Focus on the case in hand, put your heart and soul and do it really well. Your efforts will manifest into clients over a period of time.There have been so many times when we have got cases from the court after successful arguments in a case; That’s how you build a reputation.
Where do you see yourself in the next 10 years or what is your next 10 year plan?
I know broadly in terms of what I am going to do but it is not specific. Firstly, I feel guilty about leaving judgeship for personal ambition when I did. Not guilty in the sense that I have any regrets but guilty in the sense that I do not continue to give back the way I possibly used to do or the way which I used to do.
We do pro-bono cases but, I feel that I’m still not giving back enough. So, I provide training to young judges and IPS officers at various academies; I also try to work with judicial service aspirants, try to guide and help them traverse their journey from studying to judging – and from judging to justicing.
As I love to say I get to live vicariously through judges who I’ve had the opportunity to working-with and teaching, at some point or the other. That gives me a lot of satisfaction. Having contributed to nation building by helping make good judges.
Currently, I am working on a book related to “What and how is it to be a young judge, and what is judge’s life”, the idea is to put young students into the judges driving seat and share everything that I can on preparation, exam process, the expectations from a young judge, the kind of work and how to deal with it, both pre-preparation and post selection. This will not only help the young lawyers to decide being a judge or not but also help them along the way..
I am always keen to work on my cases; it is an exciting times to be a lawyer; my practice of law straddles practice areas as diverse as : White collar crime, International Commercial Arbitration and Tech law, with a bit of advisory thrown in. It makes for a interesting blend and though it always keep us on our toes, it is also extremely rewarding individually to be able to work at such a wide canvas and contribute. Also, super excited about my involvements with legislative discussions, law reform, law enforcement training’s, etc.
We are acquainted with your love for poetry! It would be nice if you could share with us, the one, which is closest to your heart.
I like to call myself a ‘closet poet.’ And once you hear me – you’d agree that’s where I should be – because it’s not good at all.
But since you insist, here’s something I wrote on the Juvenile Justice System.I strongly felt on the issue of Juvenile Justice and lack of enough measures for the children which are in conflict with law. I strongly opposed the amendments which came in the Juvenile Justice Act a couple of years back which treated children of age between 16 to 18 years as adult in some cases.
Nobody taught me to speak-therefore, I can’t mince words,
I also have to tell, rather quickly my tale, for time doesn’t stop and the guillotine doesn’t fail;
I can hear the shouts of the crowd, people who’ve gathered about, The civilised society is baying for my blood; my young scarlet blood; upper-middle class children would be made to drink from it, I am told-it lulls the demons inside.
That’s what the priests say: “it kills juvenility”; really, that’s what they say, but let me not get ahead of myself, and begin where it all began:
The setting is a one room house-in a slum in north Delhi,
where I was conceived, in Dickensian poverty
I was at peace with not-living, I was free,
before a young couple decided to have me;
people call them my mother and father; none, of course, took my consent,
and thus, I began the journey of life, unwilling, reluctant and angry;
No wonder – I caused my mother much pain, first, because of my desire not to be born,
second- since there was never any food inside of her,
I kicked & gnawed at her insides, she wailed in vain, just for her not to have me, but she didn’t budge.
I caused her to nearly die, while she gave birth to me,
You see, that was an act of protest, against introduction into this world,
this inhospitable sphere of exploitation and injustice;
I was raised on my impoverished mother’s thin milk- the toxic gruel of poverty, exploitation, desperation & disease.
For my parents- My introduction into this world –
was an act of triumph of unmitigated hope, or callous thoughtlessness to the
consequences of their action; This lack of control of impulse,
would go on to be the defining feature of my life, legal battles, television debates would be fought and lost over it, my dear friends – it would have a bearing –
on the course my life would take –
and the choices I would make.
I was raised on staple diet of violence, abuse and hunger- no wonder, I never knew control,
I’d flung myself to the first sight of bread crumbs, leftover rice, or on a good day, sour curd; the lack of control would come back to haunt me, as we would see later.
I was abused by countless men, multiple times, don’t ask when and how; to the point, that I started valorising my own violators.
I stopped fighting back, in this resignation was a realisation that I deserve it, and all those, who are weaker, those who’ve lost the ovarian lottery, and have had poor mothers for fate.
I never knew mercy, compassion-
a hungry child is incapable of empathy; incapacitated for emotional telepathy,
the exercise of placing one in someone else’s shoes? you must be kidding; he never knew any shoes,
and can hardly see the world for himself, for what runs in his system is not blood, he is nourished with envy running through the course of his being,at the injustice of this world,
at its monstrous inequities.
No wonder I never knew, the finer aspects of living, of civilisation;
of the rules set by men, who had either abused, or watch me being abused, while they fed, clothed their children with a nourishing touch, a benign sort of love.
No wonder when I found somebody even weaker, I couldn’t resist,being on the winning side of the power equation, for the first time – the abused turned an abuser.
Now, they are gunning for my head, they’d like me to die a judicial death; but they don’t know – children like me exist on the penumbra of life as you know it, banished from civilisation.
They don’t care much. Rules matter to those who have a chance to win. They don’t know – I never wanted to be born and I am quite indifferent to living. And I have one thing to say to them:-
Since I never had a childhood – don’t treat me as a child – Punish me, make me free !!
Supreme Court of Pakistan: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. set aside the impugned judgment and conviction of the appellant by extending the benefit of doubt.
The prosecution’s case was hinged on the dying declaration made by the deceased Haji Muhammed Zamin Khan (complainant), in which he said that he was on his way back from a condolence meeting when the respondent herein fired upon him. After making this statement to the police, he succumbed to his wounds. The accused was arrested, convicted under Section 302 of Pakistan Penal Code, 1860 and sentenced to death. Peshawar High Court however altered the death penalty into imprisonment for life. Aggrieved by the said order, the present appeal was filed by complainant’s son.
The learned counsel for the appellant, Astagfirullah, contended that in the absence of any mitigating circumstance, there was no occasion for the learned High Court to alter the death penalty into imprisonment for life. Whereas learned counsel for the accused-respondent, Ghulam Mohyuddin Malik, questioned the legality of conviction on the ground that the case was founded primarily on a dying declaration and the prosecution miserably failed to show as to who recorded deceased’s last words and thus it was unsafe to maintain the conviction.
The Court noted that the statement of the deceased was recorded by Munawar Khan, one of the prosecution witnesses, who dictated it to Khan Ghalib Khan (another prosecution witness) to be recorded in the first information report. However, the second prosecution witness denied recording the first information report and thus it was unknown as to who had recorded the deceased’s last words.
It was observed that dying declaration is an exception to the general rule of direct evidence and it is admitted to the detriment of an accused without the opportunity of cross-examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Therefore, it was held that prosecution must demonstrate beyond the shadow of a doubt that the dying declaration comprised of the words of declarant alone without extraneous prompting or additions. Thus, the person who recorded the dying declaration is the most important witness to verify its veracity. However, this person was missing in the present case.
In view of the above, the Court held that it was grievously unsafe to maintain the conviction and hence by extending the benefit of the doubt to the appellant, the appeal was dismissed and respondent was directed to be released.[Somaid v. Ali Gohar, 2019 SCC OnLine Pak SC 9, decided on 30-04-2019]
Gauhati High Court: Achintya Malla Bujor Barua, J. dismissed a petition against the order of the trial court whereby it had summoned the Controller of Examination of the Board of Secondary Education, Assam to produce relevant documents in order to prove the age of the prosecutrix.
The petitioner was facing trial under Sections 366, 342 and 34 IPC along with Section 4 of Protection of Children from Sexual Offences Act, 2012. As per the petitioner, the arguments had concluded and the matter was fixed for judgment on 26-04-2019. However, submitted the petitioner, that as he had taken a substantive stand that the prosecutrix was not below the age of 18 years on the date of occurrence. The Aditional Sessions Judge decided to fill up the lacuna in the prosecution case by suo moto issuing an order, whereby summons was issued to the Controller of Examination as mentioned above.
The petitioner was represented by H. Goswami, Advocate, contended that under Section 311 CrPC, the trial court can summon a material witness or examine any person only at the stage of enquiry or trial or in any other proceeding under the Code and not after termination/conclusion of the trial. The petitioner also relied upon Section 353 which inter alia provides that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in the open court presiding officer immediately after termination of the trial or at some subsequent time of which notice shall be given to the parties. It was contended that as per the provisions of Section 353 which provides for judgment after the termination of a trial, any order passed in a trial reserving a matter for judgment, would itself be an indication that the trial of the matter had already concluded. Accordingly, the very order posting the matter for judgment on 26-04-2019 was itself a conclusive indication that the stage of termination of the trial already had been arrived.
Rejecting such contentions, the High Court observed: “Section 353 nowhere provides that once a proceeding is fixed for judgment that by itself is an indication that it is the termination of the trial. All that it provides is that the Judgment shall be pronounced by the presiding officer after the termination of the trial. Therefore, only a pronouncement of the judgment itself can be understood to be a situation where there is a termination of the trial and merely because the matter stood fixed for a judgment to be delivered on a subsequent date by itself cannot be construed to be a termination of the trial.
It was noted that Section 311 clearly provides that any Court may at any stage of the enquiry trial or other proceedings under the Code; summon a person as a witness, or examine the person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to the Court to be essential to the just decision of the case. Resultantly, finding no infirmity in the impugned order, the Court dismissed the petition.[Deepjyoti Kalita v. State of Assam, 2019 SCC OnLine Gau 2631, decided on 04-06-2019]
Meghalaya High Court: A Division Bench of Mohammad Yaqoob Mir, CJ and H.S. Thangkhiew, J. set aside the controversial judgment passed last year by Justice S.R. Sen in Amon Rana v. State of Meghalaya, 2018 SCC OnLine Megh 274 wherein, now retired, Justice Sen had observed that India ought to have been declared a “Hindu Rashtra”.
Respondent herein had applied for issuance of domicile certificate for recruitment in armed forces but was denied the same by Meghalaya Government. In a petition assailing the denial order of Government, Justice Sen had set aside two notifications issued by the Meghalaya Government relating to the issuance of permanent residence certificate and domicile certificates. He stated that the ongoing National Register of Citizens (NRC) process was defective, and also had observed that anyone opposing Indian laws and the Constitution should not be considered a citizen of India. He had remarked that India should have declared itself a Hindu country like Pakistan declared itself an Islamic nation. When he drew flak from various quarters for his observations, Justice Sen issued a clarification stating that his judgment was not politically motivated or influenced by any party.
In the present appeal, the learned Advocate General, A. Kumar, contended that the said notifications quashed by Justice Sen were not even challenged in the petition filed by the respondent. Hence, a case for adjudication could not be made out for a subject which was not even part of the pleadings. The learned Advocate General, further contended that the direction for taking necessary steps to bring a law to safeguard the interest of Hindus, Sikhs, Jains, Buddhists, Christians, Parsis, Khasis and Garos and certain other observations made in the judgment were not consistent with the Preamble and other provisions of the Constitution.
At the outset, the Court noted that while an SLP seeking an expunction of Justice Sen’s remarks and observations was pending before the Supreme Court, the same would not be a bar for deciding the instant appeal.
It was held that the setting aside of the two notifications by learned Single Judge in absence of any challenge in the writ petition was totally impermissible, and therefore, findings regarding the same were unsustainable. The Court observed that the petition filed by the respondent herein before Single Judge was for seeking issuance of domicile certificate. There was no requirement to go into the superfluous issues not brought up by either party. Direction of policy framing in the exercise of writ jurisdiction was impermissible. Reliance in this regard was placed on Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364 where it was held that “The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive.”
Further, any direct or indirect observation which offends the Preamble of the Constitution could not be sustained. It was noted that directions of the Single Judge Bench offended the “secular colour of the country and the provisions of the Constitution of India”.
The impugned judgment was set aside observing that, “After bestowing our thoughtful consideration to the entire gamut of the matter we have reached to a firm conclusion that the judgment impugned dated 10-12-2018 is legally flawed and is inconsistent with the constitutional principles, the observations made and directions passed therein are totally superfluous, therefore, is set aside in its entirety, as such shall be non est.”
However, it was opined that writ petition for issue of the requisite certificate be allowed and provisional certificate as issued in pursuance to the interim direction in favour of the respondent herein based on which he had joined the armed forces be treated as final.[State of Meghalaya v. Amon Rana, 2019 SCC OnLine Megh 95, decided on 24-05-2019]
Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, C.J. and N.S. Dhanik, J. contemplated a writ petition filed in pursuant to the order passed by Court in 2019, which directed the Project Director to prepare a set of instructions, in consultation with the concerned officials, for effective implementation of the Mid-day Meal Scheme, directed each school to strictly adhere thereto, and periodical inspections to be caused by a separate inspection staff with a view to satisfy himself that the funds earmarked for this Scheme were not misappropriated, an affidavit was filed by the Project Director enclosing thereto the Government Order in this regard.
The petitioner i.e. the Project Director in the affidavit stated that, immediately after the Government Order was issued, the Secretary and School Education had issued directions to all District Magistrates of Uttarakhand for implementation of the said guidelines.
Siddharth Sah, learned counsel for the petitioner contended that, Principals of the said schools where lapse were noticed and implementation of Scheme was ineffective, were let off with a mere adverse entry. The counsel was satisfied with the guidelines issued by State, but highlighted certain loopholes as well in the practical approach.
The Court observed considerable force in the submissions of the petitioner and noted that undue leniency was shown to those who failed to discharge the duties entrusted to them, of effective implementation of the Scheme, which may well embolden others to be negligent or to misutilize funds earmarked for the Scheme. The Court advised to take more stringent disciplinary actions against the concerned Principals and officers. It directed the first respondent to consider giving wide publicity to the guidelines now framed for effective implementation of the Scheme, so that all stakeholders are made aware of the duties which those, in charge of the Scheme, were required to discharge.
The Court further held, “in the exercise of its jurisdiction under Article 226 of the Constitution of India, this Court would, ordinarily, not sit in judgment over the decision of the competent authority in imposing punishment. We see no reason, therefore, to now direct the authorities to impose a more stringent punishment on the Principal concerned.”[Somendra Kumar v. State of Uttarakhand, 2019 SCC OnLine Utt 359, decided on 14-05-2019]