OP. ED.

Introduction

Children are always cherished everywhere as embodiment of innocence, virtue, sheer beauty perhaps the only closer embodiment of Him. They are future citizens of the world, the true torch-bearer of a nation and entitled to the equitable principles of intergenerational equity, a rightful candidate of the peaceful world, pollution-free ambience and righteous society. Along with other laws, criminal law is often employed to protect innocent children from the attack of the depraved mind. Criminal law also decides on the age group of children for fixing the immunity/liability of the children depending upon their mental maturity. The criminal laws of various countries usually treat children below seven years age as Doli Incapax, who are completely excusable from crime; due to lack of mental maturity or absence of guilty mind — the mens rea. Children above seven and up to 12 are presumed to be innocent of an offence, unless sufficiently mentally mature to understand the nature of the act or omission. These are the provisions (Sections 82 and 83) of the main substantive Criminal Code of the land — the Penal Code, 1860[1]. Procedural criminal law, Criminal Procedure Code, 1973 in Section 360 provides for a separate trial for child offenders with special reformative aim of bringing them back to the mainstream of the society. The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter mentioned as “JJ Act”), a special law was enacted to reform criminal justice system for children keeping in view India’s international obligation to the Convention on the Rights of the Child adopted in UN General Assembly in 1989. India ratified it in 1992. In the body of the JJ Act, 2000 under Section 2, the juvenile has been defined as a person who has not completed 18 years of age. Two important terms “juvenile in need of care and protection” and “juvenile in conflict with law” have been coined. Juvenile in conflict with the law means a person who has committed an offence under a criminal statute and is punishable under it. “Juvenile in need of care and protection” means a person who are street children, without any guardian, are neglected, are in danger of being abused by any guardian, terminally ill or abandoned, etc. Juveniles cannot be given the death penalty as per hitherto provision of Section 15 of the JJ Act, 2000; they can be kept under observation by a special official up to a maximum of three years. In other situations, they can be released after admonition by a Juvenile Justice Board and in some cases, if the juvenile is over fourteen years and earning has to pay fine or their guardian has to pay fine.

In 2013, in Delhi the brutal gang rape of a paramedic student “Nirbhaya” happened in a moving bus; where a juvenile was also a member of the ghastly assembly. It is said that he was the cruelest perpetrator and because of his age treated leniently under the scheme of the JJ Act, 2000. And was released after being confined for three years of supervision. This incident created a fear psychosis in the mind of the masses and there was a demand for speedy, ultimate preventive, disutility ? capital punishment. In this emotional backdrop the JJ Amendment Act, 2015 was enacted.[2]

Now three issues can be raised and dealt in the next paragraphs:

  1. Should a juvenile sometimes be tried as an “adult” as per Section 19 of the provision of the JJ Amendment Act, 2015?
  2. Are we aware of the rule/standard dichotomy?
  3. Whether societies’ expectation of capital punishment for a juvenile guilty of a heinous crime shall be met irrespective of the evil consequence to the concept of rule of law in a civilised country like India?

We try to analyse the issues one by one:

In our Constitution under Article 15(3) children are given a special status along with women. The Scheme of JJ Act, 2000 was in consonance with the International Convention on the Rights of the Child passed in the UN General Assembly in 1999. Thus the whole scheme of the JJ Act, 2000 was reformative and the aim is to bring a juvenile to the mainstream of the society as a useful contributor towards the State. While passing the JJ Amendment Act, 2015, it was laid down that the heinous juvenile offender of sixteen to eighteen may be tried as an adult.  Now the question is, what a heinous crime is. Is the benchmark — the quantum of punishment prescribed in substantive Criminal Law Code of IPC or other laws or the Judge’s sense of repulsion to the crime committed or requirement of further prevention of crime based on social investigation report of a juvenile?  We know that it is not possible to efficiently measure the societies’ reactions in a cost-effective way. If a juvenile destroys authority to adopt or adoption deed under Section 477 of the Penal Code or defame a State official under Section 499 IPC, based on the quantum of punishment — are these offences meritorious enough to be treated as heinous as an adult offender?

Then we can also pose a rider when a juvenile is termed as a heinous offender from a perspective of a reasonable common man? If the answer is always from the retributive instinct of vengeance, then the solution is capital punishment for a juvenile. Reflecting on it, it is irrational itself, because practically a child is born innocent and he picks the deviant values from the peers, the society where he lives. Crime sometimes a learned process and society is also responsible for it. Deviant behaviour of juveniles often results from lack of self-esteem, education, economic, social and political status, feeling of alienation, and insensitive treatment by adults and a result of discouraging environment.[3]

Society should try to reform a child but if there is hardly a chance of reform. Only in rare cases, he is a threat to society and he may be condemned to life imprisonment with hard labour with limited chance of commutation and remission. This decision also shall not hurt the society economically, as the juvenile shall contribute positively through hard labour for the community. Juveniles cannot be detained under Preventive Detention Acts as their detention is only with the aim of there formative relocation to the society as per Section 1(4)(i) of the JJ Amendment Act, 2015.

The rule/standard dichotomy always creates a problem for rule-based society.[4] As for example, the rule of a certain age for ascertaining a minority shall leave an escape route to the sufficiently mature minor, a prospective juvenile. We still believe exception proves the rule and to achieve justice as it protects — a majority of the minor population who are not sufficiently mature enough. Even the law recognises this mental immaturity and minors’ contract are treated as void, incapable of enforcement as declared in Privy Council ruling in Mohori Bibee v. Dharmodas Ghose[5] (1903, Privy Council). In property laws unborn person, until they reach legal maturity are not full-grown owner, always under the lawful control of a guardian.

If we opt for a standard element in law like “good faith”, “mala fide”, “reasonableness” these are open to evil of multitude of subjective conjectures.

The solution to these problems of dichotomy is perhaps promoting the flexible rules with scope of making sufficient discretion, the limited exceptions with preventive screening like life imprisonment with hard labour — which is nothing but disutility or preventive measure.

There is an economic analysis of the criminal law that, human being are rational choice maker, thus always calculate profit and loss of any act or omission. Thus criminal law imposes enough cost or disutility in the form of punishment for the volitional act of rational human being. Universal Declaration of Human Rights in Article 1, explains that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” If this declaration is indeed true, then separate convention for children is not required at all. Children are special constitutional class, who most of the time a victim of the situation, which determines their fate. They are hardly their own master in the sense that they follow intentionalist discourse. Their choice is not reasoned free and not liable to be dealt with harsh disutility.

One can argue that there are enough safeguards under Section 3 of the JJ Amendment Act, 2015 as for example, it is laid down that, the Central Government, the State Governments, the Board and other agencies, as the case may be, while implementing the fundamental principles, namely:

  1. Principle of presumption of innocence, (up to the age of eighteen years from criminal act or omission).
  2. Principle of dignity and worth, (all human being are equal in worth and dignity).
  3. Principle of participation, (children shall be heard in proceeding and due regard shall be given depending upon the mental maturity of the children).
  4. Principle of best interest, (children’s best interest shall be the only consideration for the growth of the child’s full potential).
  5. Principle of family responsibility, (the primary responsibility for the care and protection of the children shall be the biological family, or adoptive or foster family).
  6. Principle of safety, (children in contact with care system shall not be maltreated or abused and it has to be seen that he is not abused even after).
  7. Positive measures, (the resources of the family and community shall be utilised in such a way that in an encouraging environment there shall be all-round development of the child and the requirement of the intervention by the Act is lessened).
  8. Principles of non-stigmatising semantic, (adversarial and accusatory words are not to be used against the child in any proceeding).
  9. Principles of non-waiver of right, (any rights or fundamental rights of children cannot be waived even by non-exercise by the children, Board or any authority).
  10. Principle of equality and non-discrimination, (there shall not be discrimination based on sex, caste, ethnicity, place of birth, access to resource and equality of the opportunity).
  11. Principle to right to privacy and confidentiality, (throughout the judicial process children’s privacy and confidentiality shall be protected).
  12. Principle of institutionalisation as a measure, of the last record, (a child shall be taken under institutionalised care after reasonable enquiry).
  13. Principle of repatriation and restoration, (any child under the scheme of the JJ Act shall be reunited with the family at the earliest and given the same socio-economic status to him before he came under the Act and unless it is not against his interest).
  14. Principle of a fresh start, (all the past records of the juvenile under the Act shall be erased unless there is a demand of special circumstance).
  15. Principle of diversion, (children in conflict with the law shall be dealt with other than judicial proceeding if it is not against the interest of the society).
  16. Principles of natural justice, (in a judicial proceeding concerning children fair hearing shall be given, rule against bias shall be applied by all persons and bodies).

But these principles are mere magic words[6], explained as — prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage. For children because as like other powerless groups hardly they have any meaningful impact on the powerful State officials like judiciary, police or probation officers. We can easily imagine even a juvenile of eighteen years age may not make a beneficial rational choice for meaningful consultation from a lawyer as enshrined under Article 22(1) of the Constitution, simply because of his mental immaturity. Neither he is able to prepare his defence if he gets to know the ground of arrest or detention. These principles are like directive principles of the Indian Constitution creating moral values for the State officials. The fair trial principle simply gets vitiated if a juvenile is treated as an adult who often lacking mental maturity. Juveniles usually cannot assert their rights properly.

Criminal Law (Amendment) Ordinance, 2018[7] provides the death penalty even for juveniles in some cases when gang rape is committed against the person of a minor below twelve years of age. We know in Bachan Singh v. State of Punjab[8], the Supreme Court has laid down that life imprisonment is the rule, death penalty as an exception. Thus Judges in most cases shall be reluctant to impose death penalty and needs to cite a special reason. Moreover, the death penalty is not thought to be a deterrent for crimes committed under sudden passion or grave provocation, or motivated offender. Rape and murder shall not decrease by passing the death penalty and offenders shall try to obliterate evidence. The conviction rate of crimes in India is hovering around (46.90)% in 2015, which is satisfactory compared to the previous era and thus we can stress on reformatory institutional care based approach for children[9].

Influence of the Mental Health Act, 2017 on the Juveniles

This Act was enacted in India, inconsonance with India’s international obligation to the Convention on the Rights of Persons with Disabilities held in United Nations Headquarter in 2006. This Act replaces the previous Mental Health Act, 1987. In this Act, minor has been defined as who have not completed 18 years. The definition of mental illness has been given as, (s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. Unfortunately, in India legal insanity described in Section 84 of the Penal Code still follows the archaic M’Nanghten rules. Here a person is criminally liable if his cognitive faculty is working, that is, he knows the nature of his act and it is wrong or contrary to law. He will not get any “diminished responsibility”[10] relief for mood swings, impaired behaviour, impaired mental or physical condition unlike in England. In India, there are about 3000 psychiatrists for 120 crore people. Juvenile with mental illness often indulges in crime. State can detain their liberty, and keep them in Government and private institutions. But the Act is silent about the expenditure to be incurred in private institutions. Juveniles with mental illness cannot get admission to hospitals immediately like other patients. The doctor has to examine and verify that his illness requires admission and his decision is coming out of free will. This examination period is for 7 days which can expose the juvenile to danger. Despite statutory declaration mental persons are treated in India with cruelty due to lack of ignorance of the general population. This Act imposes a heavy burden on families to give care to the mentally ill persons, like admitting them in health care institutions. This caused resentment in the mind of mentally ill persons towards the family members. Crime in many situations is result of mental illness which can be cured with timely psychiatric intervention. The Mental Health Act, 2007 provisions are declaring noble human rights, but practically there are a lot of gaps in the Act.

Conclusion

Legislators are not immune to the emotional pressure created by the people. But they are armed with resources, like skilled criminologists, Judges, lawyers, and police force. They can reflect over any policy they make and its impact in the future. Rationality is the benchmark of the rule of law in a democratic country like India.  One can suggest that, there cannot be any deviance from the concept of the “categorical imperative” of Immanuel Kant, even when the majority do not want it. According to Kant, human beings occupy a special place in creation, and morality can be summed up as an imperative or ultimate commandment of reason, from which all duties and obligations derive. He defined an imperative as any proposition declaring a certain action or inaction to be necessary. “Act only according to that maxim whereby you can, at the same time will that it should become a universal law.” Thus barring a few, mere good is subjective but right is always desired as per community legal and moral standard. The children turned juveniles in most of the situations are more amenable to reform. Making juveniles criminally liable as adults without any rationality; expose the society to graver consequences, dogmatic insensitiveness.


 †  Assistant Professor, SLS, Pune, e-mail: bibhabasumisra@gmail.com.

[1]  K.D. Gaur, Textbook on the Indian Penal Code, Fifth Edition, Universal Law Publishing Co., 2014 at p. 117.

[2]  <http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF> visited on 5-10-2018.

[3]  Larry J. Siegel, Criminology: The Core Fourth Edition, Social Process Theories  p.173.

[4]  Lloyd’s  Introduction to Jurisprudence, Seventh Edition, Sweet and Maxwell p.1041.

[5]  1903 SCC OnLine PC 4.

[6]  Hagerstrom’s concept of magic in legal or in language: Lloyd’s Introduction to Jurisprudence at p. 858. He explains that as prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage.

[7]  <www.prsindia.org/ordinances/The20%criminal%20> visited on 5-10-2018.

[8]  Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[9]  Source: <www.ceicdata.com>.

[10]  Diminished responsibility in England is a partial defence under S. 2(2) of the Homicide Act, 1957.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ. and Mohammad Nawaz, J. directed the state government to refund the amount already deducted from the salaries of judicial officers by the end of February 2020.

The New Defined Contributory Pension Scheme was made operational to the State Government employees from 01.04.2010. This was made applicable to those employees who joined the services on or after 01.04.2006. The scheme provided for employees’ contribution of 10% of the basic pay and dearness allowance (DA) with the matching contribution from the State Government. The first petitioner is an association of the Judicial Officers in the State. The first relief claimed was for issuing a writ of mandamus seeking a direction against the respondents to clarify whether the New Pension Scheme is applicable to Judicial Officers. A writ of mandamus was also sought for directing the State of Karnataka to continue with the old pension scheme.

In a connected writ, the State Government based its submission on the Karnataka Judicial Services (Recruitment) Rules, 2004.Karnataka Civil Services Rules which are deemed to have been made under the Karnataka Civil Services Act, 1978, govern the pension payable to the government servants. It was submitted that except to the extent of the recommendations of the first and second Judicial Pay Commissions, the Judicial Officers are government servants. Karnataka Judicial Services (Recruitment) Rules, 2004 were made under Article 309 read with 233, 234 and 235 of the Constitution of India and therefore, all the Judicial Officers are civil servants.  Therefore, no merit remains in the writ petition.

Counsel for the petitioners, Shashi Kiran Shetty submitted that separate pay Commissions, the First National Judicial Pay Commission (popularly known as Justice Shetty Commission) as well as the recommendations made by the Second National Judicial Pay Commission (popularly known as Justice Padmanabhan Commission) were established to consider and recommend the pay and allowances payable to the Judicial Officers and the recommendations made by both the Commissions were accepted by the Supreme Court by issuing necessary directions to all the State Governments to implement the same. The submission, in short, was that the pay of the Judicial Officers is governed by the Orders of the Apex Court accepting both the reports with modifications and therefore, the act of applying the new pension scheme which requires 10% deduction from the salary of the Judicial Officers is completely in gross violation of the directions issued by the Supreme Court.

Additional Advocate General, R. Subramanya submitted that as the payment of pension is concerned, the Judicial Officers are equivalent to the Government Servants except to an extent of certain modifications made by the first and second National Judicial Pay Commissions. He submitted that in the above mentioned Rules 2004, the word ‘service’ has been defined as ‘Karnataka State Judicial Services’ and, therefore, all the rules regulating conditions of service of the members of the State Civil Service are applicable to the Judicial Officers as well. He further submitted that in All India Judges’ Association v. Union of India, (2002) 4 SCC 274, Supreme Court appointed Second Judicial Commission headed by Justice Padmanabhan. It had recommended for continuation of the pension fixed by the First National Judicial Pay Commission at the rate of 50% of the average emoluments drawn during the 10 months preceding the age of superannuation. 

In view of the above, the Court observed that State Government, without seeking permission of the Supreme Court, has no power to tinkle with the quantum of the salaries and pension payable to the Judicial Officers. As noted earlier, the new pension scheme contemplates contribution of 10% of the basic salary and dearness allowance by the Judicial Officers and the said amount will be deducted from the salary of the Judicial Officers. Thus, looking from any angle, the act of the State Government in applying the new pension scheme to the Judicial Officers of the State appointed after 1st April 2010 and consequential act of making 10% deductions from their salary is not only completely against the recommendations of the two National Judicial Pay Commissions Report but also in breach and gross violation of the directions issued by the Supreme Court and hence, the same is illegal. 

In a similar case of Vihar Durve v. State of Maharashtra, 2017 SCC Online Bom 7560, deduction of 10% of the basic salary of the Judicial Officers was challenged before a Division Bench of the Bombay High Court and the said challenge was upheld by the Bombay High Court. 

Therefore, Government Order bearing No. FD (SPL) 04 PET 2005, of 31st March 2006 (Annexure-A in Writ Petition No.44240 of 2013) is not applicable to the Judicial Officers of the Karnataka cadre.[Vijayakumar Rai v. State of Karnataka, 2019 SCC OnLine Kar 2186, decided on 28-11-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ. and N.S. Dhanik, J. allowed an appeal against the interlocutory order passed by learned Single Judge, for construction of the Advocates’ Chamber without giving appropriate time extension to the appellant. 

The appellant filed an appeal seeking relief and pleading extension of time against the impugned order directing them to file a final affidavit and to take immediate decision on the project. They contended that sanction of Detailed Project Report (for short DPR) is linked to releasing of funds. It is only if a budgetary sanction is accorded for construction of the Advocates’ chambers, would the question of approval of the DPR arise; and as funds can only be sanctioned by the State Legislature, and not Executive, a mandamus to the Executive is wholly unjustified.

The respondents in the aforementioned writ are practicing Advocates of the respective High Court; they had previously requested the Court for issuing the writ of mandamus and directing the appellant to complete the construction and to constitute a competent committee for allotment of new chambers and to review the existing chambers. The further allegation was that because of the negligence on the part of State, they are forced to work in harsh conditions. 

The learned Single Judge observed negligence and inaction on the part of State and the concerned agencies despite a constant reminder from the Registrar General of High Court, who identified and allotted the land area for construction. After the declaration of Chief Minister sanctioning funds for the particular project, State remained inactive and failed to deliver the project in time. 

The Court inquired about the laws which obligate State to finalize DPR only after adequate funds are sanctioned. Hence, the Court observed that there were no such laws and it was only the customary practice which required the State to approve DPR only when funds are released. The Court held, “It is not in dispute that a DPR is a pre-requisite for the commencement of construction, and it is only if the detailed project report is approved by the State Government, would the question of commencement of construction arise thereafter.” 

The Bench, however, observed that funds are undoubtedly required, but in absence of any such law which makes obligatory on the part of State to approve DPR after sanction of funds, upheld and modified the order of learned Single Judge and directed State to finalize DPR within three months. [State of Uttarakhand v. Pradeep Kumar Chauhan, Special Appeal No. 268 of 2019, Order dated 02-05-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of CJ Hrishikesh Roy and A.K. Jayasankaran Nambiar, J. directed the State government to decide on a representation relating to encroachment on Uttarapalliyar river.

Petitioner is a registered association of residents of the watershed area of the Uttarapalliyar river in the Alappuzha district. Their averment was that the said river was being subjected to large-scale encroachment resulting in considerable narrowing of the river. As a result, people who were dependent on it for their cultivation and other needs were adversely affected.

Learned counsel for the petitioner Ms Surya Binoy submitted that Uttarapalliyar river emanates from Achankovil in Venmani village and meanders across Ala, Cheriyanadu, Puliyoor, Ennaykkadu villages to join the Pampa river in the Budhanur village. However, revenue records indicated that the river route had not been accurately surveyed which resulted in unauthorized encroachment on river banks at several places.

It was stated that the petitioner had made a representation to the Secretary, Department of Revenue, Government of Kerala for proper survey and demarcation of river boundaries and also to carry out dredging activities to restore the river to its pristine glory. The request was also made to evict the encroachers by invoking provisions of the Kerala Land Conservancy Act, 1957. Since the said representation had not been heeded so far, the petitioners approached this court by filing the present Public Interest Litigation.

Learned senior government pleader Mr Aravindakumar Babu submitted that the court may issue direction for disposal of petitioner’s representation by the competent authority.

In view of the above, the Court directed the respondent to consider the petitioner’s representation by affording him and other stakeholders a hearing in the matter. A speaking order, addressing the grievances raised in the representation, was directed to be passed within four months of receipt of a copy of this judgment.[Rural Development and Cultural Society v. State of Kerala,2018 SCC OnLine Ker 5275, decided on 11-12-2018]

Case Briefs

Madhya Pradesh High Court: A review petition was filed before a Single Judge Bench of Sujoy Paul, J., to review an order passed by this court.

Respondent had availed all the remedies available to him under M.P. Panchayat Service (D&A) Rules, 1999 where these rules were created under Section 70 of Panchayat Raj and Gram Swaraj Adhiniyam, 1993.

Petitioner submitted that respondent could not have availed the remedy under Section 91 of the Adhiniyam. Rules of 1999 prescribed remedy of revision, which was admitted to have been exhausted by respondent. Once a specific rule dealing with service matters and disciplinary action were framed i.e. Rules of 1999, and respondent had exhausted all the remedies available therein, respondent could not have preferred an appeal under Section 91. Since Section 70 was an enabling provision, the rules framed there under cannot override Section 91 of the main Adhiniyam. Section 91 states that an appeal was maintainable against the orders of Panchayat and other authorities under the Act. Thus revision before government was maintainable.

The High Court was of the view that even if it is accepted that revisional power exercised by the State Government was in fact under the M.P. Panchayat (Appeal & Revision) Rules, 1995 and not under Section 91 of the main Act, the outcome would not change because the power is with the State Government under Section 91 of the Act to interfere with the order passed by an authority under the Act. If a wrong provision is mentioned while exercising the power, it would not stop the Competent Authority to exercise the appellate power. The Court found no reason to review the order passed earlier. Therefore, the petition was dismissed. [Gram Panchayat Khaira Janpadh Panchayat Rewa v. State of M.P., RP. No. 1664 of 2018, dated 14-11-2018]

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench comprising of Rajiv Sharma and Lok Pal Singh, JJ., directed the State Government to start the National Law University (NLU) in the State within three months from the date of judgment and to run the University from the government buildings or by hiring a private accommodation. Court further mentioned that the first academic session shall start from September 2018 and necessary permission shall be obtained.

The National Law University of Uttarakhand Act, 2011 (Uttarakhand Act No.11 of 2011) has been promulgated and came into force but despite that, the State Government had failed in establishing the NLU. As per Section 3(4) of the Act, the Head Office of the University shall be at Bhowali, Nainital.  However, the state asserted that the land required for the establishment of the University was not available at Bhowali. The petitioner suggested that if the land is not available at Bhowali, there is about 1500 acres of land available at G.B. Pant University, Pant Nagar, and District Udham Singh Nagar.

The Court collected information in this regard with the assistance of the District Magistrate, Udham Singh Nagar and found that sufficient land was available. The land available was more than 1800 acres whereas the land required for the University was only 10 acres. Court also noted that it may be that the land was not available at Bhowali but it is difficult to believe that the land is not available in the entire State for the establishment of the University. It was clarified by the Court that it was not dealing with the policy matter but with an enactment providing for the establishment of University under Section 3 of the Act. It was further observed that the primary objective of the University was vanished due to the reason of ‘red-tapism’.

Therefore the Hon’ble Court directed the State to frame the regulations within a period of one month along with the appointments in the University including those of teaching faculty and ministerial staff in a span of 3 months.[Bhupal Singh Bhakuni v. State of Uttarakhand, 2018 SCC OnLine Utt 563, order dated 19-06-2018]

Case BriefsSupreme Court

Supreme Court: In the case where the role and power of the Central Government while dealing with the request of a State Government for reservation of lands for government companies or corporations owned and controlled by the State Government under Section 17A(2) of the Mines and Minerals (Development and Regulations) Act, 1957 was in question, the Bench of Madan B. Lokur and Deepak Gupta, JJ held

“The State Government being the owner of the land and minerals, has a right to make a proposal to the Central Government to reserve lands not held under a prospecting licence or mining lease for exploitation by the State Government companies or undertakings but approval of the Central Government is necessary.”

The Court further clarified that each case has to be decided on its own merits and that the Central Government cannot be bound by any specific parameters. However, the Central Government can not only take into consideration factors of national security or public interest but also economic factors, the policy of the Government and all such other factors which are relevant to decide the issue whether the land should be reserved for exploitation only by State Government Undertakings;

Regarding the question as to the scope of applicability of Section 11(1) and Section 17A(2) of the Act and the effect of the right of preference granted to Reconnaissance Permit holder in terms of Section 11(1) of the Act while dealing with a matter under Section 17A(2) of the Act, the Court held that  Section 11(1) and Section 17A(2) of the Act have no connection with each other. Section 11(1) of the Act deals with preference to be given to Reconnaissance Permit holder and Prospecting Licence holder while considering their case for grant of Prospecting Licence and Mining Lease respectively. This has nothing to do with reservation of land under Section 17A(2) of the Act. The only connection, if it can be called that, is that if a land is held under a Prospecting Licence or Mining Lease, then action under Section 17A(2) of the Act cannot even be initiated. [Geomysore Services (I) Pvt. Ltd.v. Hutti Goldmines Co. Ltd., 2018 SCC OnLine SC 503, decided on 08.05.2018]

Case BriefsHigh Courts

Patna High Court: The 3-judge bench of I. A. Ansari ACJ, Chakradhari Sharan Singh and Navaniti Prasad Singh, JJ upheld the validity of Invoking the provisions as contained in Sub-section (3) of Section 197 , the Notification dated 16.05.1980 issued by Bihar Government, invoking the provisions as contained in Sub-section (3) of Section 197 CrPC, which direct which declared that the provisions of sub-section (2) shall apply to no court can take cognizance of the offence committed by “Officers and men” wherever they may serving the State of Bihar or the Bihar Police Force, such class or category of the members of the Forces charged with the maintenance of public order of the Code of Criminal Procedure, while performing his official duty, except by the prior sanction of the State Government. , a notification of Bihar Government, issued in 1980. The bench of three judges I. A. Ansari ACJ, Chakradhari Sharan Singh and Navaniti Prasad Singh, J J upheld the order of Chief Judicial Magistrate.

The petitioner who was posted as Officer-in-charge of Government Rail Road Station, in Muzaffarpur was charged under offences punishable under Sections 147, 323, 353, 342 and 379 of the Penal Code, 1860 by and the Chief Judicial Magistrate took the cognizance of the matter without prior sanction. The petitioner, relying on the impugned Notification, under section 482 of the Cr.PC moved to Patna High Court where the Single Judge referred the matter to the Division Bench which was later transferred to a larger bench. The Court took reliance with of the case of ruling in of Om Prakash and others v. State of Jharkhand, (2012) 12 SCC 72 and held that The notification, dated 16.05.1980, cannot be held to be beyond the scope and/or powers conferred on the State Government under Sub-section (3) of Section 197 CrPC of the Code of Criminal Procedure, the same having been applied by Supreme Court in case of Om Prakash vs. State of Jharkhand (supra) and criminal prosecution having been quashed against police personnel on that ground. We are mindful of the fact that the question of jurisdiction of the State Government to issue notification, granting protection to police personnel in exercise of power under section 197(3) of the CrPC., was neither raised nor decided. The Court further said that in view of the said notification, the previous sanction of the offences alleged to have been committed by the Police Officers, while acting or purporting to act in discharge of his official duty, is a condition precedent.
Hence, the Court held that the Chief Judicial Magistrate erred by taking cognizance of the matter without the prior sanction of the State Government and hence, quashed the impugned order. the Court held that under Section 197 (2) of CrPC that any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government uphold the Bihar Notification and quashed the order of the Chief Judicial Magistrate. [Ram Rekha Pandey vs. State of Bihar, 2016 SCC OnLine Pat 2130, dated on 26th June,26.06. 2016]