Patna High Court
Appointments & TransfersNews

President appoints S/Shri (i) Khatim Reza and (ii) Dr Anshuman, to be Judges of the Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 3-6-2022]

Patna High Court
Appointments & TransfersNews

President appoints S/Shri (i) Shailendra Singh, (ii) Arun Kumar Jha, (iii) Jitendra Kumar, (iv) Alok Kumar Pandey, (v) Sunil Dutta Mishra, (vi) Chandra Prakash Singh, and (vii) Chandra Shekhar Jha, to be Judges of the Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 1-6-2022]

Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar J., held that an order of payment of interim compensation under the Negotiable Instruments Act, 1881 can be enforced under the Bihar & Orissa Public Demands Recovery Act, 1914 as ‘public demand’.

Question for Consideration


Whether an order for payment of interim compensation under the Negotiable Instruments Act can be enforceable under the Bihar & Orissa Public Demands Recovery Act, 1914 as a public demand?

High Court noted that Section 143A of the NI Act under sub-section (5) specifically states that interim compensation payable under this Section is recoverable as a fine under Section 421 of the Criminal Procedure Code, 1881.

Section 421 (1) (b) provides for issuance of warrant to the Collector to realize amounts as arrears of land revenue from movable and immovable properties of said defaulter.

Further, clause 3 of Schedule I of the Recovery Act as already extracted hereinabove states that any money realizable as arrear of land revenue by process authorized for said purpose shall be deemed a public demand under Section 3 of the Act.

Hence, the interim compensation so ordered under Section 143A of the NI Act is recoverable as a fine under Section 421 of CrPC which then, as shown from the above discussion, clearly falls under the definition of ‘public demand’

Therefore, Lower Court was correct in issuing an order under Section 143A of the NI Act for recovery of interim compensation as land revenue.

In view of the above discussion, the petitioner was at liberty to avail of alternative remedies under the law. [Sunil Kumar v. State of Bihar, 2022 SCC OnLine Pat 1045, decided on 10-5-2022]


Advocates before the Court:

For the Petitioner/s :

Mr. Sumeet Kumar Singh, Advocate Mr. Amarendra Kumar Singh, Advocate

Mr. Nikhil Singh, Advocate Ms. Shatakshi Sahay, Advocate

For the Respondent/s :

Mr. Anil Kumar Singh (GP 26 ) Mr. Sanjay Kumar, Advocate

Patna High Court
Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the elevation of the following Judicial Officers as Judges in the Patna High Court:

1. Shri Shailendra Singh,

2. Shri Arun Kumar Jha,

3. Shri Jitendra Kumar,

4. Shri Alok Kumar Pandey,

5. Shri Sunil Dutta Mishra,

6. Shri Chandra Prakash Singh, and

7. Shri Chandra Shekhar Jha.


Supreme Court of India

[Statement dt. 4-5-2022]

Patna High Court
Appointments & TransfersNews

President appoints S/Shri (i) Rajiv Roy, and (ii) Harish Kumar, to be Judges of the Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 24-3-2022]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Expressing that the entire community is aggrieved if the economic offenders, who ruin the economy of the State are not brought to book, Anjani Kumar Sharan, J., held that economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community.

What is the Prosecution case?

Shashi Kumar and Rajesh Kumar had lodged a case under Sections 419, 420 467, 468, 469, 471 and 120B of the Penal Code, 1860 against the Chief Manager and other officials of Bank of India. Further, it was revealed that the bank account in their names and in the firm’s name and their family members held with the Bank of India were misutilized in connivance with the bank officials and huge amount of cash was deposited and transferred to other bank accounts without their knowledge and consent.

Petitioner during the investigation had revealed that a cash of Rs 50 lakhs was deposited in the account of the firm which was transferred on the same day to bank account of Radha Trading Company and out of the said amount, Rs 10 lakhs was transferred to the account of Sanjog Steels (P) Ltd.

Similarly, cash of Rs 25 lakhs was deposited in the account in the name of M.T.I. Cotton Mills Pvt. Ltd. and on the same day it was transferred to the account of Radha Trading Company, Delhi and out of this an amount of Rs 10 lakhs was transferred in the account of Sanjog Steels Pvt. Ltd., Jaipur.

Thus, proceeds of crime amounting to Rs 25 lakhs originated from a bank account held with Bank of India, G.B. Road Branch, Gaya have merged in the bank account of Sanjog Steels Pvt. Ltd., Jaipur after being layered through the bank account of fake and non-existent firms.

Further, it was alleged that the petitioner who claimed to have received sale proceeds of sale of the product of his factory but either the petitioner or his representative failed to produce documents justifying the transactions of sale and purchase documents justifying the transactions of sale and purchase between the petitioner and Radha Trading Company. He also could not produce any documents in support of the claim that he received Rs 20 lakhs against the supply of the goods.

Analysis, Law and Decision

Whether the applicant would qualify to get bail?

There was no doubt about the complicity of the applicant and there are no reasonable grounds to believe that he is not guilty.

Though the Bench added that it should be considered whether there was a likelihood of the applicant committing any offence while on bail?

High Court noted that during investigation it was found that the firms namely, M/s Radha Trading Company, Delhi, M/s Shree Ram Overseas, M/s Shree Ganesh Overseas, M/s Sandeep Traders, M/s Rajesh Trading Company, M/s Sunil Trading Company and M/s Azad Singh and Manoj Kumar were fake and fictitious firms and had not been operating from the addresses as mentioned in their bank accounts or the sales invoices.

In the above manner, Rs 20 lakhs cash after deposit in the accounts was transferred to the bank accounts of M/s Sanjog Steel (P) Ltd. after being layered through the bank accounts of fake and non-existent firms. Hence, the transactions, through the said firms were involved in money laundering in terms of Section 23 of the PMLA.

High Court expressed that,

A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest.

In view of the above discussion, the anticipatory bail was rejected.[Pankaj Goel v. Union of India, 2022 SCC OnLine Pat 643, decided on 11-3-2022]


Advocates before the Court:

For the Petitioner/s : Mr. S.D. Sanjay, Senior Advocate Mr. Mohit Agarwal, Advocate

For the Opposite Party/s : Mr. K.N.Singh, A.D.S.G. Mr. Tuhin Shankar, Advocate

Patna High Court
Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of Shri Harish Kumar, Advocate, as Judge in the Patna High Court.


Supreme Court of India

[Collegium Statement dt. 8-2-2022]

Patna High Court
Appointments & TransfersNews

Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following two Advocates as Judges in the Patna High Court:

 1. Shri Khatim Reza, and

2. Dr. Anshuman Pandey.

The Supreme Court Collegium also approved the proposal for the elevation of Shri Rajiv Roy, Advocate, as Judge in the Patna High Court.


Supreme Court Collegium

[Collegium Statement dt. 1-2-2022]

Appointments & TransfersNews

President transfers Justice Birendra Kumar, Judge of the Patna High Court as a Judge of the Rajasthan High Court.


Ministry of Law and Justice

[Notification dt. 21-12-2021]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Noticing discrepancies in the Trial the Division Bench of Ashwani Kumar Singh and Anil Kumar Sinha, JJ., acquitted a woman accused of killing a 2 year old kid.

The appellant was alleged to have killed 2 year old child of the defendant whose body was found rolled in a gendra (a locally made mattress of textile in Bihar) and a plastic bag. The whole case of prosecution was based on circumstantial evidence, i.e., gendra in question belonged to the accused, frequent quarrel between accused and parents of the deceased, sniffer dog going to the house of the accused etc. The Trial Court found the accused guilty and convicted him for the offences punishable under Sections 302 and 201 of Penal Code, 1860.

Was admission made by son of the accused admissible?

Regarding the confession made by the son of the appellant was concerned, wherein he had, while in custody of IO, admitted that his mother had killed the victim boy, the Bench stated that statements made by an accused before the police amounts to confession are barred under Section 25 of the Evidence Act, 1872 and an extra-judicial confession by itself is a very weak type of evidence.

Can a person be convicted of a crime based on the evidence gathered by the police sniffer dog?

Noticing that the Trial Court had convicted the appellant on the evidence of a sniffer dog, the Bench opined, though the police was allowed to use the services of a sniffer dog for investigation, but merely because the dog entered the house of the appellant in her absence, the same could not be treated to be evidence sufficient enough to establish the guilt of the appellant and the appellant could not be convicted only on the basis of evidence gathered by the police sniffer dog.

Moreover, the circumstance that the sniffer dog entered the house of the appellant after smelling the place where the body of the deceased was thrown was not brought to the notice of the appellant while examining her by the Trial Court under Section 313 of the CrPC. Hence, the said circumstance could not have been taken into consideration as the accused was not granted opportunity to explain the circumstances. The Bench said,

If the questions on incriminating circumstances have been ignored by the trial court, then it is an illegality and amounts to an abuse of the process of Court.

Hence, circumstances which were never put to the appellant while examining her under Section 313 of the CrPC could not have been used for convicting and sentencing her.

Findings and Conclusion

Opining that to sustain a conviction on circumstantial evidence, the factual circumstances should be so established and only inference to the said circumstances must be that of the guilt of the accused, incompatible with any other hypothesis, the Bench took note that the gendra, which was seized by the police was never put before the Magistrate for an identification parade. Moreover, the Bench remarked, “gendra is a common item which is found in every house.”

Hence, holding that there was no cogent evidence to suggest that the gendra in which the body of the deceased was rolled belonged to the appellant, the Bench opined that the prosecution had miserably failed to prove each of the links in the chain of circumstances beyond reasonable doubts against the appellant.

Accordingly, the Trial Court’s order was set aside and the appellant was acquitted of the charges levelled against her. [Soni Devi v. State of Bihar, 2021 SCC OnLine Pat 2289, decided on 15-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Appellant: Anirudh Kumar Sinha, Advocate and Santosh Kumar, Advocate

For the Respondent-State: Ajay Mishra, APP

Appointments & TransfersNews

Appointment of Two Judges [Patna High Court]


President appoints Nawneet Kumar Pandey and Sunil Kumar Panwar to be the Judges of Patna High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.



Appointment of Additional Judge [Chhattisgarh High Court]


President appoints Deepak Kumar Tiwari to be an Additional Judge of the Chhattisgarh High Court for a period of 2 years with effect from the date he assumes charge of his office.



Appointment of 4 News Judges [Jharkhand High Court]


President appoints Gautam Kumar Chaudhary, Ambuj Nath, Navneet Kumar and Sanjay Prasad to be the Judges of Jharkhand High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.



Appointment of 1 New Judge [Madhya Pradesh High Court]


President appoints Purushaindra Kumar Kaurav, to be a Judge of the Madhya Pradesh High Court, with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notifcation dt. 6-10-2021]

Patna High Court
Appointments & TransfersNews

Elevation of 2 Judicial Officers as Judges in Patna High Court


The Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges in the Patna High Court:

1. Shri Nawneet Kumar Pandey, and

2. Shri Sunil Kumar Panwar.


Collegium Statement dt. 23-9-2021

Supreme Court of India

Patna High Court
Appointments & TransfersNews

Elevation of 6 Advocates as Judges


Supreme Court Collegium has approved the proposal for the elevation of the following Advocates as Judges in the Patna High Court:

1. Shri Khatim Reza,

2. Shri Sandeep Kumar,

3. Dr. Anshuman Pandey,

4. Shri Purnendu Singh,

5. Shri Satyavrat Verma, and

6. Shri Rajesh Kumar Verma.


Collegium Statement dt. 23-9-2021

Supreme Court of India

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., asked the State government to sensitize people regarding the consequences of illegal migration, how to identify them and requirement to inform the officers concerned of the presence of illegal migrants in the State.

 The Court was addressing the case of two minor girls, who undisputedly were foreign national, were housed at the After Care Home, Patna and for a considerably long period and no action was taken by the State in pursuing the matter for their repatriation. Noticing that the affidavits filed by the government were conspicuously silent of the mechanism for expediting the process of deportation of foreign nationals, more so, from the neighbouring country i.e. Bangladesh, the Bench had asked the State to set up detention centres on the lines of Chapter 2.6 of Model Detention Centre/Holding Centres/Camp Manual, 2019.

On being informed by the State that it had decided to establish detention/holding centre/camp outside the jail premises for restricting the movement of illegal foreign nationals awaiting for their deportation even after completion of sentence due to non-confirmation of their nationality, the Bench asked the government, sought reply of the State on the following:

  1. What was the time frame for setting up of detention centre and
  2. Whether the temporary detention centre was equipped with the requisite minimum infrastructure stipulated under Chapter-4 of the Manual, 2019.

Need for Sensitization of General Populace

The Foreigners Act, 1946 imposes an obligation upon master of the vessel as also the passengers travelling therein and the housekeepers/lodgers permitting accommodation to such foreigners whose entry in India is contrary to law.

Therefore, directing the State to apprise the Court of the steps taken for sensitizing the general populace of Bihar, the Bench emphasised on making the people aware of mechanism in place for identification and deportation of the persons suspected to be illegal migrant, more so from Bangladesh and the fact that such persons are required to be immediately deported for their entry in India is illegal under the Foreigners Act, 1946 and that their custody is required to be immediately handed over to the Nodal Officer, Government of West Bengal. The Bench opined,

“Such process of sensitizing people, more so along the border areas, must be carried vigorously both through electronic and print media as also associating the public spirited persons/N.G.O’s for deportation of illegal migrants is of paramount importance and in national interest.”

Hence, the Bench had placed following queries before the State and had sought replying on:

  1. Whether the Government had worked out any mechanism for furnishing information on-line i.e. through digital mode to the concerned Agency;
  2. Whether the record sought to be maintained under Sections 6 and 7 of the Foreigners Act, 1946 is digitalized
  3. Whether there is any mechanism in place for facilitating furnishing such information on-line.
  4. Whether Authorized Officers under the Foreigners Act, 1946 Act are verifying the record and monitoring the movement of any unauthorized persons or not.

[Marium Khatoon v. State of Bihar, Criminal Writ Jurisdiction Case No.390 of 2020, decided on 18-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Petitioner/s: Mr Upendra Kumar Singh, Advocate,

Amicus Curiae: Mr Ashish Giri

For the Respondent/s: Mr P.K. Verma, A.A.G. 3, Mr Sanjay Kumar Ghosarvey, AC to AAG 3, Mr Dr. K.N. Singh, ASG, Mr Kumar Priya Ranjan, CGC, Mr Abhijit Gautam, JC to ASG

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ., and Partha Sarthy, J. slammed Patna Municipal Corporation for operating its vehicles without registration in contravention to provisions of the MV Act. The Bench expressed,

“It is difficult to fathom that Patna Municipal Corporation, a municipal body originally established in 1922, was oblivious of the factum of the requirement of getting 925 vehicles (Approx.) registered under the provisions of the Motor Vehicles Act, 1988.”

The instant Public Interest Litigation was filed to apprise the Court that the Municipal Corporation, Patna was operating its vehicle on road for collecting garbage without registration and insurance and in spite of complaint, no actions had been taken by the Corporation.

Observing the provisions of Section 39 of the Motor Vehicles Act, which is very categorical when it states that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with the Chapter and the certificate of registration of the vehicle has not been suspended or cancel and the vehicle carries registration mark display in the prescribed manner, the Bench also referred to Section 192 of the M.V. Act which deals with the penal consequences of using a vehicle without registration.

In Union of India v. Jubbi, (1968) 1 SCR 447, wherein the Supreme Court had held as follows: “…The position now thereof is that a statute applies to State as much it does to a citizen unless it expressly or by necessary implication exempts the State from its operation.” Noticing that there was no provision under the Motor vehicle Act to exempt the State by any express provision or by necessary implication from registration of the vehicles of the State and it was not even the case of the State that the Vehicles of the Corporation were in any manner exempt from registration, the Bench stated,

 “Such vehicles were allowed to be plied in public places for a considerable period, thus potentially jeopardizing public and put interest, endangering human life and property.”

Stating that the Motor Vehicles Act being welfare legislation, was enacted to ensure road safety, compensation for victims of road accidents, third party insurance and health, the Bench emphasised on registration of vehicles as an essential step in achieving objective of the Act. Further, noticing the recent decision of the Supreme Court in Narinder Singh v. New India Assurance Co. Ltd., (2014) 9 SCC 324, wherein the Court had elaborately discussed the need to register vehicles under the Act, the Bench stated, despite the same, the respondent-Corporation, with audacity, took a stand of there being no requirement for the vehicles to be registered, purportedly under a misconception that they are above the law.

Noticing that all the vehicles of the Corporation had been registered, the Bench refrained from passing further direction in this regard however, the State was directed to take appropriate action against the erring officers/officials, who negligent in performing of their statutory duty which, the Bench added, should not be construed to be only of civil nature, but also in relation to the one envisaged under Section 192 of the Act. The directions were crystallized as under:-

  • No vehicle of the Municipal Corporation or its authorities would be plied in derogation of the provisions of the Motor Vehicles Act, 1988.
  • The Urban Development Department, Government of Bihar should have an enquiry conducted and take appropriate action against the erring officers/officials who were negligent in complying with the statutory provisions by allowing the vehicles to be plied for various purposes in public roads.
  • The disciplinary proceedings must be completed within four months. Simultaneously, the proceedings under Section 192 of the Act should be initiated against the erring officers/officials within a period of four months.

In the Backdrop of above, the petition was disposed of. [Nirbhay Prashant v. State of Bihar, 2021 SCC OnLine Pat 1920, decided on 03-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Petitioner/s: Mr. Nirbhay Prashant (In Person)

For the State: Mr. Ajay Kr. Rastogi, AAG10, Mr. Sunil Kumar Singh, AC to AAG-10

For the Patna Municipal Corporation: Mr. Jaweb Gaffar Khan, Advocate

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Ashwani Kumar Singh snd Arvind Srivastava, JJ., reiterated that a victim has no right to maintain an appeal under the proviso to Section 372 of the CrPC on the ground of inadequate sentence.

Background

The instant appeal was filed by the appellant on being aggrieved and dissatisfied with the sentence passed by the Special Judge, POCSO Court-cum-Additional Sessions Judge-VI. Noticeably, on the basis information provided by the appellant an FIR was registered under Sections 363, 364, 366A of the Indian Penal Code (IPC) and 8 of the Protection of Children from Sexual Offences Act (POCSO Act). Later on, Sections 302, 376, 307 and 201 of the IPC and 4 of the POCSO Act were added to the FIR during investigation after the dead body of the missing daughter of the appellant was recovered.  The appellant, who was the father of the deceased girl, had filed the instant appeal challenging the order of sentence passed by the Trial Court seeking enhancement of sentence to death penalty.

Sentence Awarded by the Trial Court

Since the defence did not produce any evidence, the Trial Court heard the arguments advanced on behalf of the parties and, vide judgment dated 19-10-2020 convicted the respondent 2 for the offences punishable under Sections 363, 364, 366, 307, 376, 302, 201 of the IPC and 4(2) of the POCSO Act. Pursuant to which following sentence was awarded to the respondent 2:

“1. 363 IPC Rigorous imprisonment for a term of seven years and a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.

  1. 364 IPC Rigorous imprisonment for a term of ten years and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.
  2. 366 IPC Rigorous imprisonment for a term of ten years and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.
  3. 307 IPC Rigorous imprisonment for a term of ten years and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.
  4. 302 IPC Imprisonment for life and a fine of Rs.10000/- and in default of payment of fine to further undergo imprisonment for six months.
  5. 201 IPC Rigorous imprisonment for a term of seven years and a fine of Rs.2000/- and in default of payment of fine to further undergo imprisonment for six months.
  6. 4(2) of the POCSO Act Imprisonment for life which shall mean imprisonment for the remainder of natural life of the accused and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.”

Contentions Raised by the Appellant

After awarding the sentence for the proved charges under various provisions of the IPC and the POCSO Act in the manner indicated hereinabove, the Trial Court directed that all the sentences shall run concurrently and the period of detention already undergone by the convict shall be set off against the period of imprisonment.

The appellant submitted that his daughter, a minor girl, aged 8 years, was raped in car and when she started crying; she was strangulated to death by respondent 2. He contended that after ravishing a minor girl and killing her, respondent 2 dumped her body behind the residence of the District Magistrate, hence, the offence committed by respondent 2 was heinous and brutal.

The appellant argued that aggravating circumstances outweighed the mitigating circumstances as a calculated and diabolical cruelty had been inflicted on an innocent girl. Therefore, the Trial Court ought to have awarded death sentence to respondent 2 for the offence punishable under Section 302 of the IPC as the punishment awarded to respondent 2 was not commensurate to the crime committed by him.

Findings of the Court

Considering the provisions prescribed under the CrPC for filing the appeal against the order of sentence and after perusing the materials on record, the Bench stated that the appeal was thoroughly misconceived. The Bench noticed Section 372 of CrPC which deals with ‘Appeals’ reads as under:- “No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force”.

The Bench observed, by the Act 5 of 2009, a right to appeal had been conferred to the ‘victim’ by inserting a proviso to Section 372 of the CrPC with effect from 31-12-2009. The proviso so inserted reads as under:

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

Hence, the Bench opined that a reading of the proviso would make it clear that so far as the victim’s right to appeal is concerned, the same can be invoked only under the following circumstances:

(a) Acquittal of the accused;

(b) Conviction of the accused for a lesser offence; or,

(c) In case of imposition of inadequate compensation.

Accordingly, holding that there is no provision under the CrPC for an appeal by the ‘victim’ against the order of an inadequate sentence, the Bench clarified the only provision for appeal against inadequate sentence is Section 377 which provides for filing appeal by the State Government for enhancement of sentence. Hence, the appeal was dismissed.  [Sanjay Kumar v. State of Bihar, CRIMINAL APPEAL (DB) No.401 of 2021, decided on 23-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Appellant: Mr Rabindra Nath Tiwari, Advocate

For the Respondent-State: Mr Dilip Kumar Sinha, APP

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Special 5-Judges Bench comprising of Ashwani Kumar Singh, Vikash Jain, Ahsanuddin Amanullah, Rajendra Kumar Mishra and Chakradhari Sharan Singh, JJ., had by the majority of 4:1, directed to demolish the entire building of newly erected Waqf Bhawan which was constructed in close proximity of the northern side of the newly inaugurated Centenary Building of the Patna High Court. The Court opined.

“The structure has been constructed in utter and brazen violation of provisions of law across statutes, starting from Section 32 of the Central Act, through the various provisions of the Municipal Act, and finally Bye-law 21, as discussed above, and must be held to be illegal and non-est from the word go.”

Noticing a huge structure being constructed in close proximity of the northern side of the newly inaugurated Centenary Building of the Patna High Court the Court had formulated the following questions in view of the serious security concerns posed by such construction had referred the matter to the Chief Justice for being taken on the judicial side –

  1. Who is constructing the building and at whose instance it is being constructed?
  2. Whether such person has right and title over the land on which the construction is being made?
  3. Whether the map of the building has been duly approved by the Patna Municipal Corporation and the construction is in accordance with the approved plan?
  4. What is the proposed use of the building?

The matter was registered as public interest litigation and was placed before the Special Bench for its consideration. Accordingly, the Court took note that the structure in question was about 40-42 feet in height and stood approximately 30 feet away from the boundary wall of the High Court building which was in clear breach of Bye-law 21 of the Bihar Building Byelaws, 2014 which prohibits the existence of any building exceeding 10 feet in height within 200 meters radius of the boundary of important buildings including the High Court.

Stand Taken by the Waqf Board

As per the Building Construction Department and the Bihar State Sunni Waqf Board the properties in question were being used as Mosque, Eidgah, Khanqah, Peer Khana and Maqbara Graveyard since time immemorial and thus constitute ‘Waqf by user’ under the provisions of Section 2 (m) of the Bihar Waqf Act, 1947. A Waqf Bhawan comprising a guest house, a guard room and a parking space on the ground floor; a library and a conference room on the first floor; and offices of the Waqf Board on the second and third floors were proposed to be constructed and a sanction map was prepared by the Bihar State Building Construction Corporation Limited for the proposed construction, which was approved by the Minority Welfare Department. It was further stated that the plan was approved by the Government Architect of the Building Corporation.

On the question whether the plan for the building had been approved by the Patna Municipal Corporation, a common stand had been taken by the Waqf Board and the Building Corporation that no such permission was required in view of Bye-law 8(1) (A); which states that wherever works are carried out by Central Government and State Government departments/the Bihar State Housing Board, no permission is required if the building plans are signed by the Government Architect, who shall no doubt, ensure that such plans accord with the Bye-laws.

Whether the Architect of the Building Corporation a Government Architect?

The respondents contended that the construction in question had been carried out by the Building Corporation, which was wholly owned by the State Government. The construction being carried out at the instance of the Minority Welfare Department of the State Government, and been made on the basis of the building plan signed by the Government Architect did not require any permission.

Noticing that no materials had been brought on record to satisfy the Court that the Architect of the Building Corporation who sanctioned the building plan was a ‘Government Architect’ to avail the exemption; although a submission was made that a Government Architect would be one who is registered under the Architects Act and performs the work of the Government, the Bench opined that no clear basis for this was however shown. There was no explanation as to who is the ‘Government Architect’ within the meaning of Bye-law 8(1)(A). The State respondents could not place any statutory provision, circular or notification defining the term; much less an Architect employed by the Building Corporation was a Government Architect. Hence, the stand of the respondents that an Architect employed by the Bihar State Building Construction Corporation was the Government Architect had been rejected.

Whether the Building was Exempted under Bye-law 8(1)(A)?

The Building Corporation proceeded with the construction on the strength of Bye-law 8(1)(A), submitting that the building plan having been sanctioned by the Government Architect, sanction of the plan by Patna Municipal Corporation was not required. While Amicus Curiae, Mr. Rajendra Narayan contended that the exemption under Bye-law 8(1)(A) was not applicable to the instant case inasmuch as the Architect of the Building Corporation who sanctioned the plan was not a ‘Government Architect’ as required by the bye-law.

The stand of the respondents on the strength of Byelaw 8(1)(A) that permission of Patna Municipal Corporation was not required, was rejected on the ground that the main body of Bye-law 8(1) exempts from permission in cases only of certain alterations and not those of new erection of a building within the meaning of Bye-law 2(135) read with Section 312(1)(a) of the Bihar Municipal Act, 2007.

Thus, the Bench held that ‘alteration’ was the pre-condition which controls the applicability and interpretation of Bye-law 8(1)(A) which was but a part of Bye-law 8(1). Opining that Bye-law 8(1)(A) was not separate but an extension of Bye-law 8(1), the majority stated that Bye-law 8(1)(A) specifically enjoined the Government Architect to ensure that the plans are prepared as per the provisions of the Bye-laws. Moreover, the Building Corporation could not be granted the privilege of exemption as the Building Corporation could not be equated with the Central or State Government, much less the Bihar State Housing Board, rather it was an entirely distinct, separate and independent entity.

Accordingly, the Bench held that considering that the building plan was admittedly never submitted to the Patna Municipal Corporation, it was duty bound to have enquired into the construction to satisfy itself that the same was in conformity with the Building Bye-laws and for the breach of which it ought to have taken action under Section 314 and Section 323 of the Municipal Act. Instead of so doing, it became a mute spectator to the illegal construction being carried on in gross violation of Bye-law 21.

Observation and Analysis

While examining Section 32 of the Waqf Act, 1995 which enumerates the powers and functions of the Waqf Board, the Bench observed that Section 32 does not accord unlimited power to the Waqf Board to acquire property of a Waqf for its own use on a permanent basis. Therefore, the action of the Waqf Board in acquiring the land for the stated purposes, particularly earmarking two floors of the building for its own use, was ex-facie held to be in the teeth of Section 32 and destructive of the very object of a Waqf. Similarly, the funds of the Waqf had not been used for developing the land; rather it was the clear stand of the Waqf Board that it was the Bihar State Minority Welfare Department, Government of Bihar which, after granting technical sanction, had released Rs. 500 lakhs for purposes of construction of the proposed building.

Bye-law 21 stipulates an unexceptionable and absolute embargo upon construction of any building exceeding 10 meters in height within 200 meters radius of the boundary of important buildings including the High Court. The Bench opined that the main object behind such embargo was of course, the safety and security standpoint in view of the sensitive nature of duties discharged within these buildings. The Bench added, “Apart from that, the ‘important buildings’ referred to therein have special significance and stand as a symbol of the rich heritage, culture and history of the city. It is apparent that the purpose of restricting any major construction around buildings such as the High Court is to ensure that they continue to retain their majesty, glory and grandeur by providing an unobstructed view, which is all at once stunning, magnificent and awe-inspiring.”

In spite of the expressed embargo, construction far in excess of 10 meters in height had been made at a distance of only 15 feet 6 inches on the northern side of the boundary wall of the High Court in complete, utter and outright violation of Bye-law 21, which, in the view of the Bench was a compelling reason to necessitate the demolition of the structure as it could be a threat to the safety and security of Court records, litigants, lawyers, staff and all stakeholders, arising from the extreme proximity of the structure which stands a mere 15 feet 6 inches from the boundary of the High Court. The Bench expressed,

“The wanton impunity with which law has been violated by the various authorities, firstly in granting sanction and allowing construction, and secondly in not halting the illegal construction which continued for several months, discloses serious lapses and errors of both omission and commission. This leaves the Court with no other option but to correct the executive error.”

Findings of the Court

 In the backdrop of above, the Bench, by the majority of 4:1, held that the structure could not be allowed to stand and must be demolished in its entirety for several reasons, which were:

  1. The structure had been constructed in utter and brazen violation of the provisions of law across the Statutes starting from Section 32 of the Waqf Act, 1995, various other provisions of the Municipal Act and finally Bye-Law 21 of Bye-Laws;
  2. The very initiation of the entire project with taking over of the property by the Waqf Board was unauthorized and without fulfilling the pre-conditions of Section 32 of the Act of 1995;
  3. There was nothing on record to indicate that the proposed building would be an income generating asset intended for the purposes of recouping the expenses incurred by the Waqf Board before returning the property to Waqf Estate in question;
  4. The primary object of the Waqf Board was in self interest by way of providing office space for itself rather than for the development of Waqf Estate, which was contrary to the very spirit of the Waqf Act.
  5. There was no explanation as to who is the ‘Government Architect’ within the meaning of Bye-law 8(1)(A). The State respondents could not place any statutory provision, circular or notification defining the term; much less an Architect employed by the Building Corporation is a Government Architect. Accordingly, the plea that approval of building plan by the Architect of the Building Construction Corporation satisfies the condition laid down in Bye-Law 8(1)(A), which requires plan to be sanctioned by a Government Architect was not tenable;
  6. The submission that the Building Construction Corporation should be treated at par with the Bihar State Housing Board mentioned in Bye-Law 8(1)(A) for the purposes of exemption from taking permission thereunder could not be accepted.

Dissent View 

Ahsanuddin Amanullah, J recorded his dissent view on the matter. The Judge opined that the structure was irregular and not an illegal one and deficiency could be removed, especially qua bringing the height of the structure within ten meters in conformity with Bye-law 21. The Judge further held that the Corporation being a Government Company, its Architect would be deemed to be a Government Architect and in terms of Byelaw 8(A), therefore, once he had prepared the map for the building, no permission was required from the PMC and, even if it was assumed that the building was constructed in the absence of sanction from the competent authority, the map of the building could very well be submitted to the PMC for post facto approval.

Opining that Bye-laws 8(1) and 8(A) could be construed in harmony, the Judge held that Bye-law 8(1) and Bye-law 8(A) were distinct, operating in different fields and relating to different situations and Bye-law 8(A) was not a sub-clause of Bye-law 8(1), thus the same could not be limited to alterations and modifications. Even otherwise, the Judge opined that,

“Merely because the building in question is in proximity to the High Court, the same is necessarily required to be razed to the ground – cannot be a view that this Court ought to approve, given that, in law, the affected party has a right to construct up to the height of 10 metres, subject to satisfying other conditions under the Act and/or the Bye-laws.”

 Consequently, the Judge concluded that demolition would be too harsh a punishment to inflict, especially when the structure, at best, was an ‘irregular’ construction, and not an ‘illegal’ construction as the violation was not of a magnitude such that the entire structure was required to be demolished, more so, at the cost of repetition, when there is a right in law to make construction up to the height of 10 metres.

Similarly, holding that the Architect of the Corporation had to be held to be a ‘Government Architect’ within the ambit of Bye-law 8(A), subject to the architect qualifying under Bye-law 2(107) which reads ‘“Registered Architect” means an Architect registered with the Council of Architecture and who had not been debarred by the Authority, the Judge stated that the Corporation was a fully-owned Government Company under a department of the State Government, hence, there was no reason not to include the Corporation within the expression ‘State Government Departments’ occurring in Bye-law 8(A).

Verdict

In the backdrop of above, the majority was of the view that the disputed structure had been constructed in violation of statutory Bye-law 21 of the Bihar Building Bye-laws, 2014. Accordingly, the respondents were directed to demolish the entire building with the further direction that in case the Building Corporation fails to do so within one month, Patna Municipal Corporation was be required to ensure demolition of the entire structure and realise the cost of demolition from the Building Corporation.

Observing the surreptitious manner in which the construction of the building had come up during the period of complete lockdown, the majority directed the Chief Secretary to cause an enquiry and appropriately fix responsibility and take action should be take action against the erring Architect and others who had caused or allowed the illegal construction to come up, including by way of recovery of such loss from them.

Additionally, taking note of the fact that a number of religious structures had mushroomed in an unauthorised manner by encroaching public land including public roads all over the State, the majority directed the State of Bihar to look into that aspect with right earnest and take steps for the removal of such illegal structures in the larger public interest.[Suo Motu cognizance taken by the Court vide order dated 01-03-2021 of a structure on the north side adjacent to the Centenary Building of the Patna High Court which came up during Covid-19 Pandemic, In Re., 2021 SCC OnLine Pat 1633, decided on 03-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Mr. Amicus Curiae Rajendra Narayan, Sr. Advocate

For the State: Mr. Lalit Kishore, Advocate General

For the Sunni Waqf Board : Mr. P.K. Shahi, Senior Advocate

For the PMC: Mr. Prasoon Sinha, Advocate

For the Bihar State Building Construction

Building Corporation Ltd. : Mr. Tej Bahadur Singh, Sr. Advocate

For the High Court: Mr. Mrigank Mauli, Advocate

For the Managing Committee of Waqf Estate No. 663: Mr. Khursheed Alam In Person as President of the Managing Committee

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ., and S. Kumar, J., passed strict directives to complete proceedings under Section 58 of Bihar Prohibition and Excise Act, 2016 within a period of ninety days from the date of appearance of the parties.

The Bihar Prohibition and Excise Act, 2016 (Act, 2016) prohibits the manufacture, storage, distribution, transportation, possession, sale, purchase and consumption of any intoxicant or liquor, unless so allowed in terms of the Act. (Section 13). In addition to the penalty imposed for committing such an offence, Section 56 of the Act lays down the procedure for confiscation of “things” used for in the commission of such an offence.

Further, under section 58 power to issue an order of confiscation vests with the District Collector/Authorized officer, who upon receipt of the report of the seizing officer detaining such property (“things”) is required to pass an order.

Noticeably, the Court had been flooded with several petitions solely on account of non-initiation of such proceedings of confiscation or passing of illegal orders with respect thereto and also, on account of lack of parties pursing the remedies so provided under the Act, consequently, the Court was faced with following situations:-

  1. Where despite seizure, no proceedings for confiscation under Section 58 were initiated;
  2. Where such proceedings were initiated but not concluded within a reasonable time;
  3. Where the parties after obtaining interim relief for release of “things” under orders passed in different set of writ petitions, did not participate in the confiscatory proceedings;
  4. Where the order of confiscation was neither communicated nor the parties made aware of such fact, thus precluding them from filing appeal under Section 92 and Revision under Section 93 of the Act;
  5. Where proceedings initiated under Section 92/93 were not concluded within a reasonable time either on account of inaction on the part of the authority(s) or on account of non-cooperation of the private parties, be it for whatever reason.

In Md. Shaukat Ali v.  State of Bihar, (2020) 3 PLJR 927, the Court had issued the following directions to address the issues mentioned above: –

  1. The appropriate authority shall positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner.
  2. If for whatever reason, such proceeding could not be concluded, in that event it shall be open for the authority to take such measures, as are permissible in law, for release of the vehicle in question by way of interim measure, on such terms as may be deemed appropriate, considering the attending facts and circumstances of the case.
  3. If eventually, the appropriate authority arrives at a conclusion that the property was not liable to be confiscated, it shall be open for the petitioner to seek damages in accordance with law and have appropriate proceedings initiated against the erring officials/officers.

The expression “reasonable delay” used in Section 58 of Chapter VI of the Act, in our considered view, necessarily has to be within a reasonable time and with dispatch, which period, in our considered view, three months time is sufficient enough for any authority to adjudicate any issue, more so, when we are dealing with confiscatory proceedings.”

In Bunilal Sah v. State of Bihar, (2020) 3 PLJR 935, the Court took notice of non-compliance of its orders by the authority concerned and had asked the State to file an affidavit as to why proceedings for contempt be not initiated. The Bench had noticed,

“It is seen that despite our order in Md. Shaukat Ali v. State of Bihar, (2020) 3 PLJR 927, and in Umesh Sah v. State of Bihar, (2020) 3 PLJR 931, the State has not initiated proceedings under the provisions of the Bihar Prohibition and Excise Act, 2016. It is a matter of record that this legislation has generated huge litigation. The docket of the Court, be it the trial court or the High Court, is now choked solely on account of such legislation. This, perhaps, is done only to protect the property from being destroyed, for there is no mechanism under the Statute or with the administration for protecting the property seized in relation to the crime registered under the said Statute…Property is left to the vagaries of weather, resulting into national loss. This we say for the reason that proceedings for confiscation, as envisaged under Section 58, were never initiated by the authority, which under the Act is the District Magistrate/Collector. It is only as a result of inaction on the part of such authorities that the owners of the vehicles/properties are constrained to approach this Court for its release.” 

Again in Diwakar Kumar Singh v. State of Bihar, 2018 SCC OnLine Pat 462, the Court directed the confiscating authority to take not of the provisions of Section 56 of the Act, 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner was found or the vehicle was found to be used by a person in drunken condition and no liquor was seized from the vehicle or when the vehicle was not used for transportation of liquor, whether the provision of Section 56 of the Act would apply. The Bench stated that it shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act, apply his mind and pass a speaking order with regard to confiscation initiated. Without deciding the aforesaid issue as a preliminary issue, further proceedings in the confiscation proceedings shall be prohibited.

Hence, noticing that in large number of cases, position about the conclusion of the proceedings, be it under Section 58, 92 or 93 remains the same, the Bench directed that all proceedings under Section 58 must positively be initiated/concluded within a period of ninety days from the date of appearance of the parties. Further, the Bench directed:

  1. Appeal/Revision, if any, be also decided within a period of thirty days from the date of initiation, failing which the “things” (vehicle/property/ etc.) shall be deemed to have been released in terms of several orders passed by this Court.
  2. Wherever confiscatory proceedings stand concluded and parties could not file the appeal/revision within the statutory period of limitation, as already stands directed in several matters, if they were to initiate such proceedings within next thirty days, the plea of limitation would not come in their way of adjudication of such proceedings on merit.
  3. The Bench clarified that convenience of parties, especially during the time of Pandemic Covid-19 is of prime importance and it shall be open for the authority to hear the parties with the use of technology, i.e. Video Conferencing facility etc.

The Court further directed that no certified copy of the order shall be required to be placed on the file of proceedings pending or initiated under the Act, for such order is available on the official website of the High Court & can be downloaded and/or verified from there, in the times of current Pandemic Covid-19. Lastly, the Bench stated that if the authorities concerned fail to take appropriate action at the earliest and in accordance with law, within the time schedule, the vehicle/property/things liable for confiscation shall be deemed to have been released without any further reference to this Court. [Abhishek Kumar v. State of Bihar, 2021 SCC OnLine Pat 1301, decided on 01-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Petitioner/s: Mr Arbind Kumar Singh, Advocate

For the Respondent/s: Mr Kumar Manish, SC-5

Patna High Court
Case BriefsCOVID 19High Courts

Patna High Court: Ashutosh Kumar, J., directed the Bihar government to consider representation made by the petitioners for appointment in the State Health Department, contrary to the advertisement issued by the state whereby it had barred the doctors above 37 years of age from participating. The Bench stated,

“Though the classification with respect to different maximum age limit fixed for different categories may not be called arbitrary, but under the present circumstances, the Government ought to have given due consideration to the fact that the State of Bihar today in the Health Department is severely deficient in terms of manpower.”

Background

The petitioners were qualified doctors, who were aggrieved by the decision of the Government as also of the Technical Service Commission in fixing the upper age limit of 37 years for unreserved male doctors for participating in the interview against the advertisement issued for tackling the difficult situation arising out of Pandemic.

The government of Bihar had advertised the posts of 2632 doctors to be posted as Medical Officers against regular and vacant posts in various Districts and Sub-Divisions as well as Primary Health Centres. This was required to be done as an emergency for the paucity of doctors to handle the COVID-19 Pandemic situation. Pursuant to the aforesaid direction by the State Government, the Bihar Technical Service Commission came up with the impugned advertisement, whereby, the age limit was set as below 37 years.

The petitioners had submitted that fixing of the outer age limit for unreserved male doctors was arbitrary and it does not serve the purpose for which such advertisement had been issued. The petitioner contended that a female doctor in the general category had been allowed to participate if she is 40 years of age whereas the outer age for other class of doctors had been kept as 42 years; also many other States in their Health Departments have considered it appropriate to fix the outer age limit at 42 to 47 years. Apart from this, it had been submitted that the advertisement for appointment and posting of doctors was first issued in the Year 2015, thereafter in 2019 and presently, in an emergency situation in the Year 2019. For the last seven years, there had been only three advertisements which had prevented the qualified doctors in Bihar to get any opportunity of serving in the Health Department.

Maintainability of the petition has been assailed by the state on the ground that the decision to fix the particular age limit for a class of doctors for the purposes of appointment and posting was exclusively in the Government domain as it pertains to policy decision and, therefore, it could not be interfered with in a writ petition by a Court of law.

Findings of the Court

Finding substance in the argument of the petitioners, the Bench agreed that the fixation of 37 years as the outer age limit for the doctors of the General Category may not serve the purpose of improving the medical infrastructure and manpower. Noticing that in last seven years, instead of yearly advertisement for filling-up of such posts, only three advertisements had been issued including the present one and in the earlier advertisement, lesser number of posts than the vacancy was advertised and, therefore, only less number of doctors were appointed, the Bench directed that the state would definitely do a better job by giving relaxation in the outer age limit of the doctors. Moreover, the Bench stated, when the age of superannuation of such Government doctors has been increased from 62 years to 65 or 67 years, it would only be in the commonweal to tackle this problem of lack of medical hands in tackling the problem at the stage of appointment itself.

Accordingly, it was held by the Court that though the classification with respect to different maximum age limit fixed for different categories may not be called arbitrary, but under the present circumstances, the Government ought to have given due consideration to the fact that the State of Bihar today in the Health Department is severely deficient in terms of manpower. Hence, the Bench while asking the state to file a detailed affidavit on the matter, directed it to consider representation made by the aspirants including the petitioners.[Abhay Kumar v. State of Bihar, CWJC No.10366 of 2021, decided on 15-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner/s: Mr. Sanjeev Ranjan- Advocate

For the State: Mr. Suryakant- Advocate

For BTSC: Mr. Nikesh Kumar- Advocate

Patna High Court
Case BriefsCOVID 19High Courts

Patna High Court: The Division Bench comprising of Sanjay Karol, CJ., and S. Kumar, J., addressed the issue as to whether more than ten crore people of the State of Bihar had a right to know the number of deaths that occurred in Bihar during the time of Covid-19 and whether the Government had a corresponding duty to disclose either voluntarily or as mandated by law. The Bench stated,

Noticing the reluctance of the Government to put in the public domain the number of deaths which occurred in Bihar during the last one year, i.e. during the time of Pandemic Covid-19, the Bench expressed its anguish, stating that the resistance is uncalled for, for such action was neither protected by any law nor was in consonance with good governance’s settled principles. Relying on the decision in State of U.P. v. Raj Narain, (1975) 4 SCC 428, wherein the Supreme Court had expressed that, “To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired”; the Bench remarked,

“The Government, while correcting its myopic approach, only needs a reminder that…Transparency is the hallmark of good governance, more so in today’s era, especially when the Government, both Central and the State, are committed to making success the flagship programme of the Government of India termed as ‘Digital India’”

The need undertaking such an exercise arose when the Court found that the number of deaths reported by the Government, in the times of the second wave of Covid-19, did not appear to be correct, the total number of deaths which took place in Bihar was 9375, contrary to what was reported to be 5424.

Reliance was also placed by the Court on the decision of the Constitution Bench of the Supreme Court in State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501, while elaborately dealing with the concepts of democracy; democratic spirit; representative participation; pragmatic federalism; constitutional renaissance, inter alia had observed that:

… “Fundamental human freedoms limit the authority of the State. Yet the role of institutions in achieving democracy is as significant. Nations fail when institutions of governance fail. The responsiveness of institutions is determined in a large measure by their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue. Constitutional skirmishes are not unhealthy. They test the resilience of democracy. How good a system works in practice must depend upon the statesmanship of those who are in decision-making positions within them.”

 International Obligations and Statutory Mandate

Rejecting the argument made by the State that there is no mandate of law to disclose information of the number of deaths on the digital portal, the Bench stated that the objection was legally unsustainable, as there were clear provisions of the Statutes (Acts) and the Bihar Registration of Births and Deaths Rules, 1999 and that India is a signatory to the United Nations Convention on the Rights of the Child, 1989 and hence, is under an obligation to ensure registration of every birth under Article 7. Accordingly, the Union Government maintains a Civil Registration System that enables the continuous and permanent recording of births and deaths under a statutory regime, i.e. Registration of Births and Deaths (RBD) Act, 1969.

The Bench added, the State could not dispute that the WHO had repeatedly emphasized the need of maintaining accurate data from credible sources to design effective countermeasures for this pandemic. Reiterating the words of the director-general of WHO the Bench stated,  “We’re not just fighting a pandemic; we’re fighting an infodemic.”

Further, the mandate to upload general information concerning all deaths that occurred during the pandemic also flows under S. 4(2) of the Right to Information Act, 2005 which requires the authorities concerned to suo motu provide as much information to the public at regular intervals through various means of communication, including internet, so that the public have minimum resort to the use of the RTI Act to obtain information.  Similarly, the Government of India had published National Data Sharing and Accessibility Policy (NDSAP) – 2012 the objective of which is to facilitate the access to Government of India owned shareable data and information through a network all over the country in a proactive and periodically updatable manner. Hence, the data collection process for the births and deaths was considered to be an important exercise, more so during the Pandemic COVID-19, from the point of relief measures to be made available to the families of the deceased; also, in maintaining the correct statistics so that we as a Nation can be prepared for the Third Wave of COVID Pandemic. The Bench remarked,

“We find that the systematic neglect of civil registration and vital statistics has been identified as “the single most critical failure of development over the past 30 years”. It has become increasingly clear that we cannot monitor progress towards our sustainable development goals or national development policies without reliable vital statistics.”

Directions by the Court

In light of the above, the Bench issued the following directions:

  1. The Registration of Births and Deaths Act, 1969 and also the RTI Act, 2005, gives a right to a person in almost unequivocal terms of their access to information and therefore, the Digital Portals should be made accessible to the general public with regular and timely updates. The private information of deceased individuals can be protected under Right to Privacy guaranteed under Article 21 of the Constitution but it has to be balanced with ‘General public awareness’ and information dissemination.
  2. The RTI is a Fundamental Right, and the Government of Bihar is under an obligation to to provide information on the Digital Portal the number of deaths that had occurred during the COVID 19 Pandemic.
  3. The State is under a duty under the Registration Act to facilitate the right of any person to cause a search, and for that to happen, the Digital Portal maintained by different entities must be updated immediately.
  4. The Digital Portals maintained by the Government are opaque, and therefore the concerned authority shall take steps to integrate ease of access, in consonance with the larger aims of the Digital India program.
  5. The information to be updated regularly on the digital portal shall be done in line with the right to privacy, recognized under the Constitution.
  6. Elected representatives upon whom an obligation has been placed by relevant statutes/orders are duty-bound to disclose the number of deaths that occurred in their constituencies within twenty-four (24) hours.
  7. Recognizing the obligation placed by Directive Principles of State Policy under Article 51 of the Constitution, the Bench held that the State is obligated to provide accurate information to fight the infodemic and heal the systemic neglect.
  8. The State was directed to take all necessary action for sensitizing the general public, especially in the rural areas, of their Constitutional and Statutory right of uploading and obtaining information on the digital portal.
  9. The Bench also directed the Chief Secretary, Government of Bihar to convene a meeting of all concerned to ensure compliance of the order.

[Shivani Kaushik v. Union of India, 2021 SCC OnLine Pat 1207, decided on 18-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief


Advocates before the Court:

For the Petitioner/s: Shivani Kaushik (In Person)

Amicus Curiae: Mrigank Mauli,

For the UOI: Dr K.N. Singh (ASG)

For the State: Anjani Kumar, AAG-4

For the Respondent 5: Mrs Binita Singh

For Respondent 6: Shivender Kishore,

For PMC: Prasoon Sinha

For DMCH: Mr. Bindhyachal Rai, Advocate
For GMC: Mr. Rabindra Kr. Priyadarshi,
For the Intervener: Mr. Rajiv Kumar Singh, Advocate