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: 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.
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.
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.
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.
For the Appellant: Anirudh Kumar Sinha, Advocate and Santosh Kumar, Advocate
For the Respondent-State: Ajay Mishra, APP
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]
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
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: 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:
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:
[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.
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: 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:-
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.
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: 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.
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.
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.
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.
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.
For the Appellant: Mr Rabindra Nath Tiwari, Advocate
For the Respondent-State: Mr Dilip Kumar Sinha, APP
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 –
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.
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.
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.
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.
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.”
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:
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).
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.
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: 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:-
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: –
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:
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.
For the Petitioner/s: Mr Arbind Kumar Singh, Advocate
For the Respondent/s: Mr Kumar Manish, SC-5
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.”
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.
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: 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.”
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.”
In light of the above, the Bench issued the following directions:
[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
Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra ACJ. and Parth Prateem Sahu, J. laid down noteworthy observations regarding various issues brought to the notice of the Court related to Covid.
The instant PIL was registered suo moto by the Court to take stock of the various issues that arose due to the coronavirus crisis.
It was submitted that the figures of vaccination provided therein are in violation of category-wise allocation of vaccination under the State Government’s order dated 9-5-2021. It was also submitted that the problem arising out of issuance of a defective certificate in respect of vaccination inasmuch as a person getting Covishield jab is issued a certificate of Covaxin jab.
Counsel for the State submitted that the State is making all possible efforts to adhere to its policy by maintaining the ratio of the percentage of vaccination amongst different categories as per its order dated 9-5-2021, while at the same time minimising the wastage.
The Court observed that violation of percentage of allocation for a particular category is happening because the vaccines are to be utilised at the center as is allocated for the given day so that there is minimum wastage and due to digital divide.
The Court observed that the whole vaccination programme is such a complex phenomenon that adherence to the percentage in precise terms is very difficult to achieve. It is the intent of the respondent to provide jab to the citizens which is more important than some glitches which are occurring at some places either while issuing a different certificate or the difficulties in scheduling for the second dose.
The Court observed, “the State shall ensure that the dead bodies are buried/cremated in a decent and respectful manner as the right to be respectfully and decently buried/cremated has always been treated to be inclusive in the right to life under Article 21 of the Constitution of India.”
The Court directed the State Government to take all necessary precautions that a person getting first jab of a particular brand/company, is issued the certificate of the same jab and not the other one.[Suo Moto WP (PIL) v. State of Chhattisgarh, 2021 SCC OnLine Chh 1426, decided on 04-06-2021]
Arunima Bose, Editorial Assistant has reported this brief.
Advocate for Petitioner: Mr. Rakesh Pandey
Amicus Curiae: Mr. Prafull N Bharat
Advocate for UOI. Mr. Ramakant Mishra
Advocate for Railways: Mr. Abhishek Sinha
Advocate for SLSA: Mr. Ashish Shrivastava
Advocates for the respective Interveners: Mr. Palash Tiwari, Mr. Anumeh Shrivastava, Mr. Devershi Thakur, Mr. Arjit Tiwari, Mr. Aman Pandey
Intervenor in Person- Mr. Himanshu Choubey
Patna High Court: While addressing the issue of minors being put to observational homes in routine manner in spite of them (minors) being willing to reside with relatives, the Bench of Rajeev Ranjan Prasad, J., observed that, the judicial officers are required to be sensitized on the subject. The Bench remarked,
“It is only when there is no possibility of keeping the victim girl with her family or with a guardian, she would be required to be sent to an Observation Home.”
The instant application had been preferred by the victim girl who had been kept in the Remand Home since 20-03-2020 in connection with a Case registered under Section 363, 366(A) of the IPC lodged by her father alleging that his daughter was seen being taken away by the accused. On recovery, the victim disclosed that she had gone to the house of her maternal grandmother because her parents wanted to marry her to someone else. She disclosed her age as 18 years but the Magistrate assessed the same as 17 years without there being any basis for the same. Moreover, without considering the request of the victim girl to allow her to live with her maternal grandmother, the Magistrate had sent her to the Observation Home.
The Bench opined that the Additional Chief Judicial Magistrate while passing the impugned order should have acted with more circumspection and care. In all fairness, he should have called for the school certificate of the victim girl because he was aware that the victim girl was a student of Class-XII. The Magistrate had also failed to consider the submission of the victim girl that she wanted to live with her maternal grandmother. It was not the case that the parents of the victim girl had objected to sending the victim girl to her maternal grand-mother. Opining that the judicial officers were required to be sensitive towards the rights of the child and need to take care of them on the principles of parens patriae; the Bench remarked,
“The judicial officers are required to be sensitized on this issue otherwise similar examples will kept on coming before this Court. The need to keep a child in the Observation Home or to allow him/her to stay with her parents/guardians is one of the most essential consideration which is required to be given by the Magistrates when they find that a minor girl or victim of a crime is produced before them. There cannot be a remand of a victim girl to an Observation Home in a routine manner.”
The Bench stated that all possibilities were required to be explored keeping the best interest of the child in the mind, to facilitate her stay either with her own family or with a trusted guardian where her security would also be intact. In the instant case, there was no dispute that the petitioner was major and was entitled to set free. In Bar and Bench v. State of Bihar, 2018 SCC Online Pat 1179, the Court had heavily relied on the decision of Supreme Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, and had observed that:
“…If we analyze the aforesaid judgment in the backdrop of facts and circumstances of the present case, even though we are conscious of the fact that the parents have various reasons to resist the wishes of their daughter, but once the daughter in categorical term on two occasions when she appeared before us, i.e. today and earlier to that on 26.06.2018, expressed her desire to have her own way of life and exercise her fundamental right, we have no hesitation in allowing her to go the way she desires and exercise the constitutional right available to her. She is a free citizen and no one even her parents have a right to curtail or withhold the freedom available to her under the Constitution…”
For the reasons stated above, the Court set aside the impugned order and directed respondent 5 to release the petitioner from the Observation Home. The Bench further directed that it would be open to the petitioner to choose her place of residence and to her father to persuade her to live with the family without resorting to any force or extra-judicial method to pressurize the petitioner in any manner. Additionally, observing that the judicial officers are required to be sensitized on the subject, the Bench urged the Chief Justice to consider issuing appropriate directions to the Bihar Judicial Academy to hold classes on the subject and take efforts to sensitize the judicial officers of the State as to how to deal with such cases in accordance with law.[Khushi Kumari v. State of Bihar, 2021 SCC OnLine Pat 1352, decided on 25-03-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Petitioner: Adv. Upendra Kumar Singh
For the Respondent/s: APP Sheo Shankar Prasad
Patna High Court: Birendra Kumar, J., while addressing the matter stated that the present judgment as well as the Trial Court’s Judgment against which the appeal was filed required to be forwarded to the Director, Bihar Judicial Academy to ensure proper academic training to the judicial officers to make them conversant with the correct legal proposition.
Adding to the above, Bench expressed that Chief Justice may deem it proper that the trial judge who passed the impugned judgment needs special training at the Judicial Academy.
Appellant was charged under Section 376 of Penal Code, 1860 and Section 6 of the POCSO Act.
Trial Judge convicted the appellant for offence under Section 18 of the POCSO Act for the reason that no case of aggravated penetrative sexual assault was made out rather a case of attempt to commit penetrative sexual assault was proved against the appellant.
In the present appeal, Trial Court’s decision was challenged.
As per the facts of the case, appellant forcefully established a sexual relationship with a 13-year-old girl. The further allegation is that the appellant lifted her and was carrying her to commit her murder, but the family members came, and the appellant was apprehended and was handed over to the police.
Bench noted that none of the doctors who had occasion to examine the victim were produced as witness during the trial.
Prosecution’s report was not a substantive piece of evidence unless the expert appeared before the Court and supported the medical performance done by them. Therefore, no evidence was present in the case. Hence the impugned judgment of conviction was fit to be set aside.
High Court noted that the Trial Court Judge referred to Sanskrit shloka and Ghazals of Late Jagjit Singh while awarding the sentence against the appellant.
Bench expressed that Trial Judge especially a Judge having power to award death sentence must have correct knowledge of legal principles and zeal to its proper application while exercising the most onerous responsibility of taking decision on the life and liberty of the person before him.
Further adding to the above, Court stated that lack of knowledge of legal principles leads to miscarriage of justice and unnecessary harassment to the parties to the litigation. Bias and prejudices, conjectures and surmises and personal views contrary to the material on the record have no place in the court of law.
Court held that the trial Judge accepted the conflicting prosecution case as disclosed in the statement of the prosecutrix under Sections 154 and 164 CrPC for recording conviction without appreciating the fact that the aforesaid were not a substantive piece of pieces of evidence and the evidence brought during the trial did not disclose the commission of any offence or identity of the perpetrator of the offence.
Hence the impugned judgment and sentence was set aside. [Deepak Mahto v. State of Bihar, 2021 SCC OnLine Pat 770, decided on 12-04-2021]
Advocates before the Court:
For the Appellant/s: Mr N. K. Agrawal, Sr. Advocate. Mr Vijay Anand, Advocate.
For the Respondent/s: Mr Zeyaul Hoda, APP
Patna High Court: Birendra Kumar, J., heard the instant revision application challenging the validity of ex-post facto approval of search and seizure operations effected by the police.
“…entire exercise of action of seizure from the house of accused Kundan Mandal and its confirmation by the Designated Authority suffers from arbitrariness and illegality.”
On 26-07-2012, the SHO of Naya Ram Nagar Police Station registered a case for offences under Section 414 of the Indian Penal Code, Sections 10/13 of the Unlawful Activities (Prevention) Act, 1967 and Sections 25(1-AA)/(1-AAA), 26(2) and 35 of the Arms Act, 1959 on the basis of self-statement.
The accused were reported to be moving to supply arms and explosives to the Nuxals. The police arrested the accused, though nothing was recovered from the physical possession of the accused. However, from the vehicle, a pistol along with other accessories was recovered for which the arrested accused could not show any paper. Besides that some Nuxal literature were also seized from the vehicle and the arrested persons disclosed that they used to supply arms to the Nuxals. Pursuant to the arrest of the house of Kundan Mundal, one of the accused was searched from where laptop, cash, ATM cards, Pan Cards and 34 deposit bonds were recovered. Additionally, a tractor was also seized without the approval of the Designated Authority which was a prerequisite under Section 25 of UAP Act, 1967. Interestingly, the Designated Authority granted ex post facto approval for the seizure made above and confirmed the same.
Noticing that the Investigating Officer could exercise power of seizure only if the offence had been committed under Chapter IV or Chapter VI of the UAP Act and no such offence was alleged to had been committed in the instant case In this case, the Bench remarked,
“…the exercise entered into by the Investigating Officer in making seizure of property from the house of accused Kundan Mandal is wholly illegal and without jurisdiction. Section 25 of the UAP Act requires that the Investigating Officer must have “reason to believe”
Section 25 of the UAP Act requires that the Investigating Officer must have “reason to believe” that any property in relation to which an investigation is being conducted represents “proceeds of terrorism”. “The reason to believe” must be on the basis of specific, reliable and relevant information. The police report did not show, specially, the evidence collected till the date of making of the prayer for confirmation of seizure that any specific reliable or relevant information was there to form a belief that the property seized from the house of the accused were proceeds of terrorism. Thus,
“In absence of any connection between the act alleged and the property recovered, it cannot be assumed that those properties were acquired by the terrorist act.”
The Bench opined that to attract the mischief of penalty for being member of an unlawful association under Section 10 of the UAP Act, it must be established that the association was declared unlawful by a notification issued under Section 3 of the Act. In the case on hand, there was no evidence that to which of the unlawful association the accused were supplying the arms. Hence, it could not be ascertained whether that association was declared unlawful association or not.
Hence, the entire seizure exercise and its confirmation, as well as the order of the Lower Appellate Court, was set aside and the police officials were directed to release the property in favour of the petitioners at the earliest preferably within ten days. In case of default compensation of rupees ten thousand to the petitioners for each day delay was also granted. [Ramchandra Mandal v. State of Bihar, 2021 SCC OnLine Pat 670, decided on 22-03-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court:
For the Petitioner/s: Adv. Sandeep Kumar, Adv. Arvind Kumar and Adv. Anil Kumar Roy,
For the Respondent/s: A.P.P. Umanath Mishra
On 27th February, 2021, Patna High Court hosted a function on the inauguration of a new ‘Centenary building’ of the Patna High Court in the august presence of Hon’ble the Chief Justice of India HMJ SA Bobde, Union Law Minister Ravi Shankar Prasad, Hon’ble the Chief Justice of Patna High Court HMJ Sanjay Karol, Bihar Chief Minister Nitish Kumar, Hon’ble Judges of Supreme Court HMJ Navin Sinha, HMJ Indira Banerjee and HMJ Hemant Gupta, and the Hon’ble Judges of the Patna High Court. Chief Justice Karol welcomed the esteemed dignitaries.
CJI Bobde called for reducing dependence on Courts by encouraging parties to opt for ‘pre-litigation mediation’ in both civil and criminal cases to adopt a solution-oriented approach. He commented,
“Litigation is fine and making provisions for the litigation is fine. But it is time we resort to pre-litigation mediation”
Furthermore, he said that the need for new Court buildings implied that there was an increased legal literacy, which is necessary, without encouraging litigiousness and cantankerousness and people were increasingly approaching Courts to settle their disputes instead of taking law into their own hands. The Chief Justice remarked that the Theory of Separation of Powers does not imply hostility between the branches of the government. It is extremely important that all the branches listen to the voice of the Constitution and the government understands the needs of the Courts.
Union Law Minister Ravi Shankar Prasad addressed the august gathering and reminisced about his association with the High Court. He recalled that many great lawyers, freedom fighters and the first President of India Dr. Rajendra Prasad practiced in the Patna High Court. The Court was established in 1916 and today, it is a great symbol of Bihar’s identity. He cited that during the pandemic, 52.353 cases were heard digitally in the Supreme Court, 24.55 Lakhs cases were heard in the High Courts and 51.83 Lakhs cases in District Courts.
The Law Minister talked about the National Judicial Data Grid which is created in collaboration with the Supreme Court where 18.09 crore case statuses are available on a click and 13.59 crore orders and judgments can be referred on the portal. He claimed that India has nearly 4 lakh Common Services Centres where through Tele-Law, citizens seek free pre-litigation advice from lawyers. Since 2017, 6.35 lakh pieces of advice have been given by lawyers who are willing to give pro-bono legal services.
Chief Justice Sanjay Karol, in his address, traced the history of Patna High Court. He emphasized how India’s architectural heritage is replete with stunning creations: the Sanchi Stupas, the Chola Temples of Tamil Nadu, the Ashokan Column in Vaishali, the Tomb of Sher Shah Suri at Rohtas and the Taj Mahal at Agra.
“The magnificent Building of the Patna High Court, designed by the renowned architect Mr. Munnings in neoclassical style, is based on the Palladian concept of a country house. It creates a grand impression with its vast proportions and subtle detailing.”
The Main Building, on its completion, was formally made functional on February 3, 1916, with Sir Edward Chamier officiating as the first Chief Justice.
To meet the Court’s expanding needs, the new Centenary Building has been conceptualized on similar lines. Housing all modern amenities and eco-friendly systems, it shall serve the people with 43 Court Rooms, 57 Chambers, 2 Libraries, 6 Committee Rooms, a big Conference Room and an underground parking facility for more than 100 vehicles.
Justice Karol also acknowledged the esteemed guidance of Hon’ble the Chief Justice of India and expressed his gratitude for having travelled amid COVID to grace the occasion with his physical presence. The CJI’s humility, impartiality and courtesy make him a complete Judge. He underscored how the CJI is a voracious reader, having a keen interest in protecting and preserving art, culture, and heritage, and His Lordship is known to be an upholder of the rule of law with classical constitutional values. CJ Karol also acknowledged the role of Hon’ble Dr. Justice D Y Chandrachud as Chairman, E-Committee, Supreme Court of India, in helping put in place systems to meet the challenges of COVID.
CJ Karol also addressed Union Minister of Law & Justice, Mr. Ravishankar Prasad, as “one of us” since he practised law and is a designated Senior Advocate. Mr. Prasad’s passion and devotion for public service was acknowledged by CJ Karol. He expressed his happiness for the Hon’ble Minister’s leading role in the “Digital India’” program. The impetus for digitizing the Courts given by him as a Minister for Law & Justice has shown rich dividends.
CJ Karol also underscored the important contributions of Justice Navin Sinha, Justice Indira Banerjee and Justice Hemant Gupta. Justice Sinha played a vital role in the High Courts’ computerization, firstly at Patna, later at Chhattisgarh and Rajasthan. He termed his work under the Legal Services Authority as ‘legendary’. Justice Banerjee’s contribution in training and inspiring the Officers at the Judicial Academies is unparalleled. Justice Sinha has been championing the cause of the downtrodden by applying technology to optimize human potential and capabilities.
CJ Karol observed that the role of the Constitutional Courts in the country is both collaborative in nature. While at one level, they work with the Executive of the day to achieve the National objectives and aspirations yet at another level, it becomes adversarial in nature to check constitutional transgression. However, a commonality in purpose is present, “to uphold the constitutional values and rule of law.”
“The State High courts’ responsibility is to engage with the culture, traditions, practices, and beliefs of the State they serve while keeping in mind the letter of the law and our founding document’s spirit and ideals.”
Quoting Justice Stephen G Breyer of the United States Supreme Court,
“The story that a building tells through its design may be as important to the community it serves as is its function. By shaping our thoughts about ourselves and our institutions, it will directly affect our efforts to work productively together.”
CJ Karol observed that the Constitution makers have provisioned for the independence of the Judiciary to serve as the guardian and the custodian of the Constitution. It is for achieving such a purpose that we have magnificent Court complexes.
The Bar was represented through the learned Advocate General; the learned Additional Solicitor General of India; the President and the Secretary, Advocates Association; the President and the Secretary, Lawyers Association; the President and the Secretary, Bar Association; the Chairman, Bar Council of India.
Patna High Court: A Division Bench of Sanjay Karol, CJ. and S. Kumar, J., while allowing the present petition, discussed the issue of unlawful detention and compensation for the same under Article 226, placing reliance on settled legal precedents.
It is the case of the petitioner that on 29-04-2020, during transportation of milk from one place to another, a milk tanker vehicle was seized in the jurisdiction of Parsa Police Station (Bihar). The tanker was taken to a nearby dairy for milk to be extracted and thereinafter detained at the police station where the detenue was detained in extra-judicial custody. All this was done without lodging of any FIR and/or following the appropriate procedures of recording the detention of the individual or impounding the vehicle, rendering the seizure unlawful and detention illegal. Even till 15-05-2020, the date of filing of this writ petition, the detenue was never presented before the District Magistrate having competent jurisdiction. The present petition is moved against the respondent authorities, so to question the said unlawful detention and further draw the attention of the Court to such practices of gross human rights violation, with special focus on, truck drivers.
Illegal Detention and Breach of Fundamental Rights
Considering the submissions made, Court noted, “The facts of the instant case indicate a grim state of affairs where the police officials have acted in contravention and violation of the procedure established by law. The vehicle and detenue were detained and kept in police custody for more than 35 days without either filing of FIR or following any other procedure of arrest prescribed in law, ensuring constitutional protections to all persons… Therefore any detention made by the Police in this case, is completely illegal, unlawful, in contravention of the constitutional and statutory provision and direct violation of detenue’s fundamental rights. This follows from the constitutional protections guaranteed to every person under Articles 21 and 22 of the Constitution.”
Procedure of Arrest required to be followed
Enumerating the provisions of Chapter V, Code of Criminal Procedure, 1973, the Court raised a few questions which essentially remains unanswered by the police authorities; “(i) why did the Police not register the FIR immediately when the vehicle driven by the detenue was intercepted by the Dariapur police, especially when the interception was made on account of communication of the alleged accident and fleeing away of the driver? (ii) Why was the vehicle not impounded? (iii) why was the drive not produced before the Court? and (iv) why was no action promptly taken against the officials?” The Court further said that when there is no statement of any person witnessing the occurrence of the accident, then how did the police get to know of such facts?
Reliance was also placed on, D.K. Basu v. State of W.B., (1997) 1 SCC 416; wherein the Supreme Court laid down the guidelines which must be followed by every police officer conducting arrest. To highlight the same;
Furthermore, the Court referred Joginder Kumar v. State of U.P., (1994) 4 SCC 260, Lalita Kumari v. State of U.P., (2014) 2 SCC 1, Gangaram v. State of Madhya Pradesh, 2020 SCC OnLine SC 623, Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
Detention of vehicle without FIR or Seizure Memo, Power and procedure for detaining vehicles
With respect to detention of vehicle, the Court referred Section 102, Section 451, Section 457 of Code of Criminal Procedure, 1973 and Section 207 of the Motor Vehicles Act, 1988. Also, it placed on record the findings of Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283, wherein the Court held that the power of disposing of the property seized by police officers should be exercised expeditiously and judiciously, for serving the purpose, namely; (i)Owner of the article would not suffer because of its remaining unused or by its misappropriation (ii)The Court or the Police would not be required to keep the article in safe custody (iii)If the proper panchanama before handing over possession of an article is prepared, it can be used in evidence instead of its production before the Court, in a trial. If necessary, evidence could also be recorded describing the nature of the property in detail and (iv) This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
The Court conclusively remarked, “The vehicle seized, although without the registration of search memo or an F.I.R under Section 154 of the Code of Criminal Procedure, 1973, is liable to be disposed of as per the provision under section 451 and 457 of the Code. Owing to the same, by our order dated 20th July, 2020, the petitioner was granted liberty to file a petition for provisional release of the vehicle, that is, Milk Tanker.”
Right to Compensation under Articles 32 & 226 of the Constitution of India for Violation of Fundamental Rights
Delving upon the aforementioned issue, the Court identified a catena of judgments including, Rudal Shah v. State of Bihar, (1983) 4 SCC 141, wherein the petitioner was illegally detained for over fourteen years despite his acquittal in a full- dressed trial, the Supreme Court upheld the grant of compensation for illegal detention under a petition of Habeas Corpus, “taking into consideration the grave harm done”. Bhim Singh v. State of J&K, 1984 Supp SCC 504, further reinstated the right of compensation for illegal detention. Similarly, In Nilabati Behara v. State of Orissa, (1993) 2 SCC 746, petitioner’s son was kept in unlawful police custody and his dead body found near the railway tracks. Apparently, he died as a result of the multiple injuries inflicted to him while being in police custody. The Court upheld the grant of compensation to the mother of the deceased for contravention of his fundamental right under Article 21. It further upheld that the enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.
T.C. Pathak v. State of U.P., (1995) 6 SCC 357, bears close connection with the facts of the present case as the detainee herein was kept in police custody for days without any registered FIR or informing any ground of arrest against him. The father filed a writ of Habeas Corpus for production of his son, forcibly taken away from the shop. Supreme Court held that even though the detainee was released and the prayer in Habeas Corpus petition did not survive, nevertheless, on account of denial of the right of personal liberty guaranteed under Article 21, the detainee deserved to be compensated. Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757, was further cited by the Court, to put forth the effect of illegal detention upon the alleged police officials. Supreme Court, in this case, directed initiation of contempt proceedings and perjury cases against the police officials who were, by way of affidavits to the Court, acting to cover up their acts of illegal detention of the petitioners.
Upon balancing the facts and circumstances of the given case, the Court observed, “The instant case is one that is fit for hefty compensation to be levied on the State for violation of the fundamental right to life and liberty by way of illegal detention of Jitendra Kumar @ Sanjay Kumar, the detenue.”
Court conclusively summarized the law expounded by judicial pronouncements under the following principles
“Right under Article 21 cannot be kept in abeyance for convicts, undertrials and prisoners. Allowing Police to violate fundamental rights of such persons would amount to anarchy and lawlessness, which cannot be permitted in a civilized society.”
BALANCE BETWEEN NATIONAL SECURITY AND INDIVIDUAL LIBERTY
“Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them.”
“Violation of fundamental rights under Article 21 and 22(2) – Police officers who are custodians of law and order should have greatest respect for the personal liberty of citizens and should not become depredators of civil liberties. Their duty is to protect and not to abduct.”
DUTY AND POWER TO REGISTER F.I.R.
“While prompt registration of FIR is mandatory, checks and balances on power of Police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance has to be maintained between the interest of society and liberty of an individual.”
TORTURE/CUSTODIAL DETENTION AND/OR DEATH
“Torture involves not only physical suffering but also mental agony. It is violation of human dignity and destructive of human personality under Articles 21, 22 and 32 – Custodial Violence – Torture/rape, death in police custody/lock-up infringes Article 21 as well as basic human rights. State terrorism is no answer to terrorism.”
HABEAS CORPUS JURISDICTION/ RIGHT TO GRANT COMPENSATION
“The refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention.”
BALANCE TO BE MAINTAINED WHILE GRANTING RELIEF OF BAIL TO THE ACCUSED
“The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first — the criminal or society, the law violator or the law abider.”
RIGHT OF ACCUSED
“(i) An arrested person has a right to know of his entitlement of supply of information of detention to friend, relative or other person told that he has been arrested and where he is being detained (ii) Period of detention under section 151 Cr. P.C. cannot exceed 24 hours and in absence of anything else, after expiry of that period the detainee must be released (iii) An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. (iv) Fair and Independent investigation is crucial to preservation of rule of law and is the ultimate analysis of liberty itself.”
“Since arrest and detention can cause irreparable damage to a person’s reputation a police officer must be guided and act according to principles laid down by the Courts when deciding whether to make an arrest or not.”
“Police need to be trained and sensitized all of rights of citizens and maintaining law and order in a civilized manner.”
PROCEEDINGS AGAINST POLICE OFFICIAL
“Mandatory Requirements as sated in D.K. Basu case, to be followed by police personnel while arresting or detaining a person are in addition to constitutional and statutory safeguards. Non-compliance with the same would make official liable for departmental action.”
ROLE AND PROBLEMS OF TRUCK DRIVERS
“The drivers of commercial vehicles, especially the Truck Drivers, in India occupy a very unique and vital place in the immense Transportation sector which serves as the backbone of the Indian Economy. The road transport sector contributes almost 85-90% of passenger traffic 60-65% of freight traffic. Drivers of commercial vehicles are uniquely tasked with the supply of nearly all goods required for daily sustenance across the whole nation. Their life is defined by great hardship and sacrifice. Some of the issues faced by truck drivers can be highlighted as follows: a) Lack of guidelines and regulations regarding the working hours and payment who suffer from unstable and poor personal relationships due to the high-pressure job requirements b) Lack of proper facilities of hygiene, rest and proper food c) pressures of the job, leads to various physical and mental health issues including obesity, diabetes and heart diseases. There is an immediate need to improve the conditions of truck drivers in the State of Bihar as well as across the country. It is apparent that they are invaluable to the movement of the Economy and face widespread discrimination and constant hardships. The State ought to consider constituting a body to address these issues. There is an immediate need to address the human rights violations faced by them.”
While allowing the present petition, the Court issued necessary directions to the respondent authorities, including, payment of compensation to the tune of Rs 5,00,000 for the violation of the petitioner’s Fundamental Right under Article 21.[Sumit Kumar v. State of Bihar, 2020 SCC OnLine Pat 2700, decided on 22-12-2020]
Sakshi Shukla, Editorial Assistant has put this story together
Patna High Court: Mohit Kumar Shah, J., while addressing the instant partition suit decided on the question as to whether:
transferee pendente lite have a right to be added as parties to the partition suit?
Facts pertinent to the present case were that the plaintiffs-respondents had filed a title suit against the defendants-respondents.
Plaintiffs and main defendants belonged to the branches of two brothers. The suit property belonged to the daughter of Late Tikam Mahton namely Balkesia who was murdered in 1952 and was issueless.
Husband of Balkesia, who predeceased her, gifted the suit property to her vide registered deed of gift dated 18-12-1928.
After her death, the two brothers of Balkesia, namely Late Ramcharan Mahton and Late Beni Mahton, fought tooth and nail for the suit property with Ram Chandra Mahton, Ram Das Mahton, Tuntun Mahton, Sheonath Mahton and Ram Prasad Mahton who claimed to be reversioners of Late Balkesia.
Good sense prevailed on the parties and the dispute culminated into a compromise decree passed on 22-07-1958 in the second appeal, where the branches of two brothers namely Late Ramcharan Mahton and Late Beni Mahton were given 8 annas share each of the suit property.
Subsequently wife of Late Ramcharan Mahton namely Quadri Devi fraudulently executed some sale deeds in favour of different persons (defendants/respondents) with respect to more land than what had actually fallen in the share of Late Ramcharan Mahton.
Therefore the plaintiffs/respondents were forced to file title suit.
In the above-stated title suit, plaintiffs very cleverly suppressed the subsequent agreement entered into between the Late Ramcharan Mahton and Late Beni Mahton by virtue of which the entire half share of total land, which fell in equal share of the two brothers as per the decree passed in the Second Appeal was relinquished by Late Beni Mahton in favour of his brother late Ramcharan Mahton in lieu of the cost of litigation and Rs 100 paid by Late Ramcharan Mahton.
After the death of Quadri Devi, plaintiffs/respondents chose to file a Tite Suit for half share of the suit property by suppressing the said agreement and misrepresenting facts. In fact, the son of Late Ramcharan Mahton namely Rameshwar Mahton had also died earlier leaving behind his wife and two minor children who were the vulnerable target for the plaintiffs/ respondents.
Bench stated that there is no quarrel or dispute regarding the proposition of law that no period of limitation is prescribed under Order 22 Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the right to apply under the said rule is a continuous right and application can thereafter be made at any stage till the proceedings are pending.
High Court found that the petitioner admitted that the land n question was sold by Quadri Devi, wife of late Ramcharan Mahton to different persons.
Proforma defendant/respondent 15 purchased one katha of land vide registered sale deed dated 20-10-1982 and proforma defendants/respondents 16, 17 and 18 purchased one katha of land vide sale deed dated 14-12-1982.
Petitioners stated to have purchased one katha of land each from defendants/respondents 15 and 16 to 18 who were defendants 10 and 11 to 13 respectively in the title suit, vide two registered sale deeds, both dated 28-11-2001 and thereafter, they sold the said pieces of land by two registered sale deeds both dated 13-02-2012 in favour of Sanjay Kumar Gupta and Punam Rai.
In view of the above Court referred to the Supreme Court decision in Udit Narain Singh Mahapaharia v. Additional Member Board of Revenue, Bihar, AIR 1963 SC 786.
Thrust of arguments of petitioners counsel was that the transferees in the interest of other co-owners acquiring interest during the pendency of a partition suit filed by a co-owner is a necessary and proper party in a partition suit filed by a co-owner, hence the trial court wrongly rejected the petition of the partitioners.
Court stated that in the present case, petitioners are the transferee pendente lite, however, whether they have a right to be added as parties to the partition suit, is the issue to be decided in the present proceedings.
Bench referred to the broad purpose of Section 52 of the Transfer of Property Act which states to maintain status quo unaffected by the act of any party to the litigation pending its determination since if alienations pendente lite are permitted to prevail, it would be impossible to bring an action or suit to a successful termination.
In the decision of Supreme Court, Marirudraiah v. Sarojamma, (2009) 12 SCC 710, it was observed that courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour at the cost of co-sharers.
Doctrine of lis pendens is expressed in the well-known maxim; ‘pendente lite nihil innovature’ which means ‘during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created.
Section 52 of the Transfer of Property Act incorporates the well-known principle of lis pendens, which was enunciated in Bellamy v. Sabine [(1857) 1 De G&J 566: 44 ER 842].
The above-stated doctrine is based upon expediency and it is immaterial whether the transferee pendente lite had or had not any notice of the suit.
This doctrine had or “had not notice of the suit” has been fully expounded by the Privy Council in Faiyaz Hussain Khan v. Prag Narain, (1907) 29 All 339 PC where their lordship quote with approval the observations of Lord Justice Turner is Bellamy’s case.
In the Supreme Court decision of Amit Kumar Shaw v. Farida Khatoon, (2005) 11 SCC 403 it was held that a transferee pendente lite cannot claim his addition in the pending suit as of right, though the Court has the discretion to make him a party, he can be added as a proper party only if his interest in the subject matter of the suit is substantial and not just peripheral.
Court also observed that
“…Courts must be cautious and vigilant and impleadment of a stranger in the partition suit must be for substantial cause and a purchaser pendente lite if impleaded in a partition suit has a very limited right.”
Bench held that, a purchaser pendente lite like the petitioners herein, who have purchased the suit property / a portion thereof from another purchaser/purchaser pendente lite and not from the co-sharer, have no right to equities and thus cannot be impleaded in a partition suit, more so, since the petitioners herein have also alienated the property in question in favour of Sanjay Kumar Gupta and one Punam Rani.
Court added that though the petitioners had already alienated their interest in the suit property vide two sale deeds dated 13-02-2012, before filing the present writ petition, they had suppressed the said fact and obtained a stay, which also disentitles the petitioners to any relief under an equitable and discretionary jurisdiction of the High Court under Article 226 of the Constitution of India.
In view of the above discussion, Court found no infirmity in the impugned order passed by the lower court. [Pushpa Drolia v. Sohrai Mahton, 2020 SCC OnLine Pat 1921, decided on 14-08-2020]
Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., addressed the vital issue of citizenship with respect to its essentialities and other issues such as whether the State Election Commission is empowered to set aside the election of a person in light of her not being a citizen of India.
Primary Issue for consideration
Whether the appellant is a citizen of India or not?
The instant appeal arose from an order and judgment by which the appellant’s writ petition assailing the order of the State Election Commission was dismissed. Appellant’s election was set aside on the ground of disqualification contained under Section 136 1(a) of the Bihar Panchayat Raj Act, 2006.
Appellant was born and brought up in Nepal and after her marriage, she permanently started residing in India.
Issue of appellant’s nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat.
Court noted that the appellant herself acknowledged that she was born and brought up in Nepal and wasn’t an Indian Citizen under Sections 3 and 4 of the Citizenship Act, 1955.
Hence, the State Election Commission was empowered to set aside her election as Mukhiya.
Bench added that the issue is no longer res integra in view of the decision Supreme Court’s decision in Rajani Kumari v. State Election Commission, (2019) 4 PJLR 673.
ISSUE 2 and 4:
For the adjudication of issue, Article 10 and 11 are reproduced as under:
“10. Continuance of the rights of Citizenship.— Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
11. Parliament to regulate the right of Citizenship by law.— Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of Citizenship and all other matters relating to Citizenship.”
Section 135 of the Panchayat Act makes it clear that every person whose name is entered in the voters’ list of any Panchayat constituency, unless disqualified under the Act or any other provisional law, shall be qualified to be elected as a member or office-bearer of the Panchayat.
Section 136 of the Panchayat Act commences with a non-obstante clause. The expression used is ‘notwithstanding anything contained in this Act’. If a person entails any one of the disqualifications also enumerated in the said Section, a person will entail disqualification.
For the post of a Mukhiya, the person stands disqualified if she/he is not a citizen of India.
Further, the expression ‘citizen of India’ is not defined under the Panchayat Act. The Constitution of India itself does not confer any right of Citizenship. Hence, the Citizenship Act enacted under Entry 17 of List I of 7th Schedule for acquisition and determination of India Citizenship is to be considered.
Only the Central Government is empowered to confer Citizenship upon the Foreign Nationals. Petitioner admitted that she has not applied for Citizenship under the Citizenship Act.
Adding to the above, Court also stated that the appellant’s case would fall under clause (c) of sub-section (1) of Section 5. She is married to a citizen of India and is ordinarily residing in India for the last seven years. But then, significantly and undisputedly, she never sought Citizenship by way of registration.
An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act.
Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship.
The Citizenship Act does not provide for a scenario where a person residing in India, upon relinquishing her/his original Citizenship is automatically considered to be a citizen of India.
Hence, in Court’s opinion, the appellant failed to follow the procedure as set out in the Citizenship Act.
Whether documents produced by the appellant can form the basis of conferring Citizenship upon her or not. Court stated that in view of the discussion, it cannot be in the affirmative.
In the Supreme Court’s decision of Sarbanda Sonowal v. Union of India, (2005) 5 SCC 665, laid down certain principles in dealing with cases of illegal migrants.
“Burden of proof would be upon the proceedee as he would possess the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act.”
Further, on reading the Representation of the People Act, 1950 it is clear that the name in the electoral roll (voter list) would not be proof of the Citizenship of India.
“Mere registration of a person’s name in the voter list, ipso facto, does not confer Citizenship.”
The only exception to the above was Supreme Court’s decision in Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100, but then, that was peculiar to the attending facts and circumstances, where action for ‘en-masse’ deletion of names of lakhs of voters, who already exercised their right of franchise, was influenced by extraneous consideration and without any proper enquiry.
Purpose of the PAN card is to facilitate the payment of taxes to the Indian State, which foreigners may also be required to pay.
This Court in Narendra Narayan Das v. State of Bihar, AIR 2008 Pat 124, while examining the issue of a citizen of Nepal, held that Citizenship of a foreigner is determined under the Municipal laws of the parent country and not the Indian Citizenship Act.
The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more, not citizenship.
Section 9 of the Aadhaar Act, 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder.
Hence, the appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship.
Further, Bench also held that, mutating name in the register is only proof of ownership of property and is silent on the status of Citizenship of person to whom property is transferred.
Supreme Court in Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233, held that even a certificate of registration under Section 5(1)(c) of the Citizenship Act may be challenged in an election petition under Section 82(1) (a) of the Representation of the People Act, 1951.
Hence issue 3 was not answered in the appellant’s favour.
Appellant had surrendered her Nepali Citizenship in 2016 but failure to meet the requirements for Indian Citizenship by registration coupled her surrender of Nepali Citizenship, left her citizenship status in limbo.
The facts of the present case represent the appellant’s intention to make India her permanent home/domicile.
There is an additional bureaucratic hurdle in registering herself under the Citizenship Act – the documents to be attached for an application under Section 5, per Form III under Rule 5(1)(a) of the Citizenship Rules, 2009, include a copy of valid Foreign Passport and a copy of the valid Residential permit.
To re-obtain her Nepalese Citizenship, she will have to return to “reside” in Nepal before applying for Citizenship, away from her immediate family in India.
Hence, in view of the above, the Court held that it is not permitted to direct the Central Government to grant the petitioner Indian Citizenship as that would impinge upon the Executive’s functions.
Complications in legal status
Parting with the decision, and on observing the peculiar situation of the petitioner and in order to prevent statelessness, Court directed that upon receipt of petitioner’s application, the appropriate authority may consider her application expeditiously.
In view of the above, the present appeal was disposed of.[Kiran Gupta v. State Election Commission, 2020 SCC OnLine Pat 1641, decided on 12-10-2020]
Counsel for the Appellant: Advocates, Rajes Singh, Ranvijay Narain Singh, Jitendra Singh and Ranjeet Choubey.
Counsels for the State Election Commission: Amit Shrivastava and Girish Pandey, Advocates.
For the State: Lalit Kishore, A.G. and Pawan Kumar AC to AG.