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It is quite significant to note which cannot be just glossed over that none other than the Apex Court itself as recently as on September 8, 2022 while taking the bull by the horns and sending a very strong straightforward and firm message all across on the key issue of quashing of criminal proceedings on the basis of compromise between complainant and accused when offences are capable of impacting others has in an extremely laudable, learned, landmark and latest judgment titled P. Dharamaraj vs Shanmugam & Ors in Criminal Appeal No. 1514 of 2022 (Special Leave Petition (Crl.) No. 1354 of 2022) With Criminal Appeal Nos. 15151516 of 2022 (@ Special Leave Petition (Crl.) Nos………………… of 2022) (@ Special Leave Petition (Crl.) D. No. 11748 of 2022) been most forthright in mincing just no words whatsoever to hold most explicitly that, Thus it is clear from the march of law that the Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others..

As seen from the final report filed in this case and the counter affidavit filed by the I.O., persons who have adopted corrupt practices to secure employment in the Transport Corporation fall under two categories namely:

1. those who paid money and got orders of appointment; and
2. those who paid money but failed to secure employment.

If persons belonging to the 2nd category are allowed to settle their dispute by taking refund of money, the same would affix a seal of approval on the appointment of persons belonging to the 1st category. Therefore, the High Court ought not to have quashed the criminal proceedings on the basis of the compromise. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by Justice V Ramasubramanian for a Bench of the Apex Court comprising of Justice S Abdul Nazeer and himself sets the ball rolling by first and foremost putting forth in para 1 that:
Permission to file Special Leave Petition(s) is granted in D.No.11748 of 2022.

As we see, the Bench then points out in para 3 that:
There are three Special Leave Petitions on hand, two of which challenge an Order passed by the High Court of Judicature at Madras in a Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C), quashing a criminal complaint in CC No. 25 of 2021 pending on the file of the Additional Special Court for trial of cases related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu, on the ground that all the victims have compromised their claims with the accused. The third Special Leave Petition arises out of an order of dismissal passed by the High Court in a Criminal Miscellaneous Petition filed by a third party by name Anti Corruption Movement, seeking the recall of the order dated 30.07.2021 in the quash petition.

Background Facts
To put things in perspective, the Bench then envisages in para 5 that:
The brief facts sufficient for the disposal of these special leave petitions are as follows:

1. On a complaint lodged by one K. Arulmani, working in the technical wing of the factory of the Metropolitan Transport Corporation of Tamil Nadu, a FIR in Crime No. 344 of 2018 was registered on 13.08.2018. To avoid any confusion, the contents of the said complaint are extracted as follows:
   I have been working as a Worker in the Technical Wing of the Factory of Metropolitan Transport Corporation (MTC), at Perambur. In the year 2014, an announcement in regard to vacancies existing for the posts of Conductor and Driver in the Transport Department. When I went to our Head Office in Pallavan Salai in connection with work, one Mr. Rajkumar got introduced to me. He told me that he hails from Pambaipadayur near Kumbakonam and he had got close contact with the then Transport Minister, Mr. Senthil Balaji and his younger brother Asok Kumar, through one Mr. Shanmugam, who was the Personal Assistant to Mr. Senthil Balaji and on paying money, jobs would certainly be got. My friends by name Ambedkar, Senthil, Vijayakanth, Muthiah and a few others told to get them jobs in the Transport Corporation and they are ready to pay money for the same.
   
   I told that money was to be given to through one Mr. Rajkumar and should there surface any problem, we should be ready to face the same. They also, agreeing to the same, paid me money, in several installments during the period from 25.12.2014 to 04.01.2015, amounting to Rs. 40,00,000/-, conveyed those details to Mr. Rajkumar. In the first week of January 2015, he and myself went to the house of Thiru Senthil Balaji at R.A. Puram. At that time, Mr. Shanmugam, P.A. to Thiru Senthil Balaji came towards me and received the sum of Rs. 40,00,000/-. We insisted on Thiru Shanmugam to see Thiru Asok Kumar and Thiru Senthil Balaji in person. Thiru Asok Kumar, who came there, when we gave the amount, had assured that all who have paid amounts would be issued with appointments orders. He took us then itself to Thiru Senthil Balaji. He told in an assuring voice that there is no need to worry and all those who gave money would be definitely given appointment orders.
   
   In the list of names released by the Transport Corporation, the names of persons for whom I gave money, have not appeared in list of appointments. Hence, persons who gave money to me started pestering me to return the money. When I asked about it to Thiru Rajkumar, he told that in the next list, their names would definitely come. But in the next list also, names of none came. When I informed this to Thiru Rajkumar, he said that he would enquire about the same to Asok Kumar and Shanmugam and then he would say. But each time when I asked Rajkumar, giving me the very same reply, asked me to wait for some time. Persons who gave me money, started threatening me. On their insistence, I gave them my cheques from my savings bank account with canara Bank, Ambatur Branch, as security.
   
   In pursuance of that, when I asked Rajkumar on 12.10.2015 for returning the money, he gave me two cheques drawn on City Union Bank, Mount Road Branch, filling each cheque with a sum of Rs. 15,00,000/-. He told me to deposit the said cheques for collection at the time when he instructs, on his being paid repaid the amounts by Thiru Senthil Balaji, Asok Kumar and Shanmugam and the balance sum of Rs. 10,00,000/ would be given by him later on. When I went to City Union Bank, Mount Road Branch and checked whether there are sufficient amounts in their accounts, the Bank Officer said that there were no sufficient funds. When I met Raj Kumar, Shanmugam and Asok Kumar several times and requested for returning the money, they asked me to wait for some time.
   
   Persons who gave me money started pestering me very much demanding money. In October 2016, when I met Messrs Senthil Balaji, his younger brother Asok Kumar, and P.A Shanmugam and Rajkumar, and entreated them to return the money to me, after explaining my pathetic position, each one of them said that they cannot return the amount, nothing can be done against them and if I give them trouble demanding money, they would liquidate me along with my family. I am living daily in consternation along with my two children.
   
   As Thiru Senthil Balaji was a Minister then and subsequently a MLA in the ruling party, the situation posing threat to my life in the event of my lodging a complaint against him, was in existence. I came forward to give the complaint now, since he is not holding any post. I therefore humbly request you to kindly initiate appropriate legal action against Messrs Senthil Balaji, Asok Kumar, Shanmugam and Raj Kumar for their acts of fraud, deception and also the threats unleashed against me and get me back the sum of Rs. 40,00,000/- payable to me by all of them.
    
2. The FIR was for alleged offences under Sections 405, 420 and 506(1) of the Indian Penal Code (for short IPC). Four persons by name Shri Senthil Balaji (the then Transport Minister), Shri Ashok Kumar (the brother of the Minister), Shri Shanmugam (Personal Assistant to the Minister) and Shri Raj Kumar were cited as the accused in the FIR.
    
3. After investigation, the police filed a final report dated 12.04.2019 under Section 173(2)(i) of Cr.P.C., against all the four accused named in the First Information Report. The final report indicted the persons named as accused, for alleged offences under Sections 406, 409, 420, 506(1) read with Section 34 IPC. The Special Court for trial of cases related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu took the final report on file in CC No. 25 of 2021.
    
4. Shri Shanmugam named as accused No. 3 then filed a criminal original petition in Criminal O.P. No. 13374 of 2021 on the file of the High Court of Judicature at Madras under Section 482 of the Cr.P.C. praying for quashing the criminal complaint CC No. 25 of 2021.
    
5. Before the High Court, the de facto complainant Shri K. Arulmani filed an affidavit supporting the accused and praying for quashing of the final report, on the ground that what the victims had with the accused was only a money dispute and that the same had been settled out of Court and that due to political rivalry between two groups, his complaint got converted into a more serious one, by including unwarranted statements which were not made by him.
    
6. The victims who originally claimed to have paid money for procuring employment, also filed individual affidavits supporting the accused.
    
7. A joint compromise memo dated 28.7.2021 containing the signatures of 13 victims (who had paid money) on the one hand and accused No.3 on the other hand was also filed before the High Court.
    
8. When the quash petition came up for hearing, the learned Government Advocate appearing for the State made a submission that the occurrence took place in the year 2014 and that the matter was compromised between the accused and the victims in the year 2019 after the filing of the final report.
    
9. Interestingly, all the 13 victims also appeared before the learned Judge of the High Court of Madras through Video Conference and claimed that the issues have been resolved between them and the accused.
    
10. In the light of what had transpired after the filing of the final report, the High Court passed an order dated 30.07.2021 quashing the criminal complaint on the ground that by passage of time, the parties have decided to bury their hatchet and that no useful purpose would be achieved by keeping the criminal case pending. After noticing that the offences are not compoundable in nature, the High Court recorded in one sentence that it had taken note of the guidelines issued by this Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. vs State of Gujarat (2017) 9 SCC 641 and The State of Madhya Pradesh vs. Dhruv Gurjar and Another (2019) 2 MLJ Crl 10 and concluded that the complaint could be quashed.
     
11. Upon coming to know of the quashing of the complaint, a person by name Shri P. Dharamaraj, who participated in the process of selection for appointment to the post of drivers/conductors in the Metropolitan Transport Corporation, but who did not get selected, has come up with one special leave petition contending that what happened was a cash-for-job scam and that he would have got selected if the scam had not taken place. Since he was not a party to the quash proceedings before the High Court, his special leave petition was accompanied for leave to file Special Leave Petition. The said application was allowed by this Court on 11.02.2022.
     
12. In the meantime, an organization by name Anti Corruption Movement, moved a Miscellaneous Petition before the High Court seeking recall of the order dated 30.07.2021 on the ground that the complaint involved allegations of corruption and abuse of official position and that therefore the chargesheet could not have been quashed on the basis of a compromise between the parties. This application of recall was rejected by the High Court by an Order dated 14.03.2022, primarily on the ground that this Court has already entertained a special leave petition against the order sought to be recalled.
     
13. Therefore, challenging the original order dated 30.07.2011 and the order dated 14.03.2022, the said Association, namely, Anti Corruption Movement has come up with two special leave petitions.
     

Be it noted, the Bench then notes in para 42 that:
Thus it is clear from the march of law that the Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others.

While taking potshots at the High Court’s judgment, the Bench then candidly concedes in para 43 that:
As seen from the final report filed in this case and the counter affidavit filed by the I.O., persons who have adopted corrupt practices who have adopted corrupt practices to secure employment in the Transport Corporation fall under two categories namely, (i) those who paid money and got orders of appointment; and (ii) those who paid money but failed to secure employment. If persons belonging to the 2nd category are allowed to settle their dispute by taking refund of money, the same would affix a seal of approval on the appointment of persons belonging to the 1st category. Therefore, the High Court ought not to have quashed the criminal proceedings on the basis of the compromise.

Most forthrightly, the Bench then goes on to hold in para 44 that:
It is needless to point out that corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement.

Conclusion
As a corollary, the Bench then further holds in para 50 that:
In the light of what is stated above, the impugned order of the High Court is wholly unsustainable. Therefore the appeals are allowed and the impugned order of the High Court is set aside. The criminal complaint is restored to file. The I.O. shall now proceed under Section 173(8) of the Code to file a further report, based on the observations made in the preceding paragraphs. Additionally/alternatively, the Special Court before which the CC is pending, shall exercise power under Section 216 of the Cr.P.C., if there is any reluctance on the part of the State/I.O. If two other cases where offences under the P.C. Act are included, are under the orders of stay passed by the High Court, the State should take appropriate steps to have the stay vacated. The Court dealing with these two cases should also keep in mind the disastrous effect of putting on hold the prosecution under the P.C. Act.

Finally, the Bench then concludes by holding in para 51 that:
At present we are not passing any orders on the prayer made by the interventions either to constitute a Special Investigation Team or to appoint Special Public Prosecutor, since we do hope that based on the observations made above, the State itself may do the needful. We also make it clear that at the time of trial, the Special Court may not be swayed by the observations contained herein, but proceed on the merits of the case and the law on the points. The appeals are allowed. I.A.s stand closed.

In conclusion, the Apex Court has made it indubitably clear that Courts must be slow in quashing the criminal proceedings on the basis of settlement between complainant and accused when offences are capable of impacting others. We have dwelt on this quite elaborately also! It thus merits no reiteration that all the Courts including the High Courts must abide by what the Apex Court has laid down so very clearly, cogently and convincingly in this leading case.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road Kankerkhera, Meerut – 250001, Uttar Pradesh

It is most reassuring, refreshing and reenergizing to learn that none other than the Apex Court itself has in a most laudable, learned, landmark and latest judgment titled Vinod Katara vs State of Uttar Pradesh in Writ Petition (Criminal) No. 121 of 2022 pronounced as recently as on September 12, 2022 minced just no words to hold unequivocally that lodging juveniles in adult prisons amounts to deprivation of their personal liberty.

The Bench of Justice Dinesh Maheshwari and Justice JB Pardiwala also conceded that once a child is caught in the web of adult criminal justice system, it is difficult for the child to get out of it unscathed. This was held so while considering a writ petition that was filed by a murder accused undergoing life imprisonment seeking appropriate directions to the respondent State of Uttar Pradesh to verify the exact age of the convict on the date of the commission of the offence. According to he convict, on the date of the commission of the offence i.e. 10.09.1982, he was a juvenile aged around 15 years.

At the outset, this brief, brilliant, bold and balanced judgment authored by Justice JB Pardiwala for a Bench of Apex Court comprising of Justice Dinesh Maheshwari and himself sets the ball rolling by first and foremost putting forth in para 1 that, “Personal liberty of a person is one of the oldest concepts to be purported by national courts. As long ago as in 1215, the English Magna Carta provided that:-

“No free man shall be taken or imprisoned…. but….. by law of the land.””

Broadly speaking, the Bench then duly acknowledges in para 2 that, “Today, the concept of personal liberty has received a far more expansive interpretation. The notion that is accepted today is that liberty encompasses these rights and privileges which have long been recognized as being essential to the orderly pursuit of happiness by a free man and not merely freedom from bodily restraint. There can be no cavil in saying that lodging juveniles in adult prisons amounts to deprivation of their personal liberty on multiple aspects.”

To be sure, the Bench then states in para 3 that, “This Writ Application under Article 32 of the Constitution is at the instance of a convict accused undergoing life imprisonment for the offence of murder seeking appropriate directions to the respondent State of Uttar Pradesh to verify the exact age of the convict on the date of the commission of the offence as it is the case of the convict that on the date of the commission of the offence i.e. 10.09.1982 he was a juvenile aged around 15 years.”

To put things in perspective, the Bench then envisages in para 4 that, “The facts giving rise to this litigation may be summarized as under:

1. The writ applicant along with other co-accused persons was put to trial for the offence punishable under Section 302 r/w 34 of the IPC;
    
2. The 5th Additional Sessions Judge, Agra in the sessions trial No. 535 of 1983 arising from the case crime no. 126 of 1982 registered with the Fatehpur Sikri District, Agra held the writ applicant herein and the co-accused persons guilty of the offence of murder and sentenced them to life imprisonment;
    
3. The writ applicant herein and the other convicts went in appeal before the Allahabad High Court by filing the Cr. Appeal No. 133 of 1986 questioning the legality and validity of the judgment & order of conviction passed by the trial court dated 06.01.1986;
    
4. The appeal was heard by the High Court and vide judgment and order dated 04.03.2016 came to be dismissed thereby affirming the judgment and order of conviction passed by the trial court;
    
5. The writ applicant herein dissatisfied with the order passed by the High Court dismissing his appeal, referred to above, came before this Court by filing application for Special Leave to Appeal (Crl.) No. 6048 of 2016. This Court vide order dated 16.08.2016 declined to grant leave as prayed for and dismissed the Special Leave Petition.

It would be instructive to note that the Bench then mentions in para 5 that, “It may not be out of the place to state at this stage that till this Court dismissed the Special Leave Petition vide the order dated 16.08.2016, the writ applicant herein had not raised the question of him being a juvenile on the date of the commission of the alleged offence on 10.09.1982.”

Briefly stated, the Bench then notes in para 6 that, “It appears that while the writ applicant was undergoing sentence of life imprisonment, he was subjected to medical examination by the Medical Board constituted by the respondent State in pursuance of the judgment rendered by a Division Bench of the Allahabad High Court in the Criminal Writ Public Interest Litigation No. 855 of 2012, wherein the Division Bench of the Allahabad High Court observed as under:

“Admittedly, as per the State’s earlier affidavits, it was claimed that there were 72 prisoners, who may have been below 18 years in age and who are detained in the various district or Central jails. Their break up was as follows:

There were 23 such prisoners in Bareilly, 1 in Lucknow, 4 in Allahabad, 2 in Etawah, 18 in Agra and 23 in Fatehgarh. One such prisoner Raju, who belonged to Faizabad, whose age was determined to be below 18 years by the Principal Magistrate, Juvenile Justice Board was sent to Special Home after having been detained for a long time in Faizabad jail.

Thus, vide the order dated 24.05.2012 referred to above passed in a Public Interest Litigation being Criminal (PIL) Misc. W.P. No. 855 of 2012, the Allahabad High Court directed the Juvenile Justice Boards to hold an enquiry for determination of the age of prisoners languishing in jails who claimed to have been juveniles in conflict with the law.”

Be it noted, the Bench then notes in para 7 that, “The Medical Board subjected the writ applicant herein to the X-rays of the skull and sternum. Upon medical examination of the writ applicant herein, the Medical Board gave its report dated 10.12.2021 certifying that on 10.09.1982 i.e. the date of the commission of the alleged offence, the writ applicant could have been around 15 years of age as on the date of the medical examination, the convict was around 56 years of age.”

As it turned out, the Bench then discloses in para 8 that, “It appears that sometime later, the writ applicant was in a position to obtain a document in the form of Family Register dated 02.03.2021 issued under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. In the Family Register certificate, the year of birth of the writ applicant herein is shown as 1968. If 1968 is the correct birth year of the writ applicant herein, then in 1982 he was about 14 years of age.”

Needless to say, the Bench then mentions in para 9 that, “In such circumstances referred to above, the writ applicant is here before this Court. He claims that as he was a juvenile on the date of the commission of the alleged offence sometime in the year 1982, he could not have been put to trial along with other co-accused and should have been dealt with under the provisions of the Juvenile Justice Act as prevailing at the relevant point of time. It is the prayer of the writ applicant that the respondent State be directed to get the claim of the writ applicant in regard to the juvenility verified through the concerned Sessions Court or the Juvenile Justice Board.”

It would be pertinent to note that the Bench then observes in para 18 that, “The first and the foremost issue that arises for our consideration in this writ petition is in regard to the applicability of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, “the 2000 Act”).”

While continuing in the same vein, the Bench then specifies in para 19 stating that, “In the aforesaid context, we must first look into the relevant dates as follows:

1. The date of the incident is 10.09.1982. Thus, on the date of incident even the Juvenile Justice Act, 1986 was not in force. What was in force was the Children Act, 1960. The Children Act, 1960 was a beneficial legislation enacted to take care of the delinquent and neglected children. Under the said Act, a child meant a person who had not attained the age of 16 years in the case of a boy or 18 years in the case of a girl.
    
2. The petitioner herein came to be convicted by the trial court vide judgment and order dated 06.01.1986. Even on the date of conviction, the Juvenile Justice Act, 1986 was not in force. The Juvenile Justice Act, 1986 came in force with effect from 01.12.1986. Thus, even on the date of conviction, the Children Act, 1960 governed the field.
    
3. The appeal filed by the petitioner herein in the High Court of Allahabad against the judgment and order of conviction passed by the trial court came to be decided and was ordered to be dismissed vide judgment and order dated 04.03.2016. It is relevant to note that on the date when the appeal came to be dismissed by the High Court, the 2000 Act was in force.
    
4. Special Leave to Appeal (Crl.) No. 6048 of 2016 filed by the petitioner herein in this Court came to be dismissed vide order dated 16.08.2016.

Quite rightly, the Bench then points out in para 20 that, “On and with effect from 15.01.2016, the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, “the 2015 Act”) came into force which repealed the 2000 Act. While the appeal of the petitioner herein against his conviction and sentence was pending in the High Court, the 2000 Act came into force which repealed the Juvenile Justice Act, 1986. The 2000 Act inter alia raised the age of juvenility from 16 to 18 years and in terms of Section 20 of the 2000 Act, the determination of juvenility was required to be done in all pending matters in accordance with Section 2(1) of the 2000 Act.”

It deserves mentioning that the Bench then notes in para 33 that, “The 2000 Act stands repealed by the 2015 Act. The procedure for determining the age is now part of Section 94 of the 2015 Act which was earlier provided under the abovementioned Rule 12 of the Rules.”

Quite significantly, the Bench then mandates in para 64 that, “Despite all the odds against the writ applicant, we would still like to look into the matter in the larger interest of justice. It will be in fitness of things if the writ applicant convict is once again subjected to the ossification test at the Civil Hospital, Allahabad or any other latest medical age determination test and such test shall be carried out by a team of three doctors, one of whom should be the head of the Department of Radiology.”

Most significantly, the Bench then directs in para 65 that, “In view of the aforesaid, we issue the following directions:

1. We direct the Sessions Court, Agra to examine the claim of the writ applicant to juvenility in regard with law within one month from the date of communication of this order;
2. The concerned Sessions Court shall also examine the authenticity and genuineness of the Family Register sought to be relied upon by writ applicant convict considering that the document does not appear to be contemporaneous. This document assumes importance, more particularly in the light of the fact that the ossification test report may not be absolutely helpful in determining the exact age of the writ applicant on the date of incident. If the Family Register on record is ultimately found to be authentic and genuine, then we may not have to fall upon the ossification test report. In such circumstances, the Presiding Officer concerned shall pay adequate attention towards this document and try to ascertain the authenticity and genuineness of the same. If need be, the statements of the persons concerned i.e. from the concerned government department may also be recorded;
3. The Sessions Court shall ensure that the writ applicant convict is medically examined by taking an ossification test or any other modern recognized method of age determination;
4. The Sessions Court concerned shall submit its report as regards the aforesaid to this Court within one month from the date of communication of this order;
5. The Registry is directed to forward one copy of this order to Sessions Court, Agra;
6. We request the learned counsel appearing for the State to take appropriate steps to facilitate the Sessions Court to complete the enquiry.

Finally, the Bench concludes by holding in para 66 that, “Notify this matter after a period of four weeks along with the report that may be received from the Sessions Court, Agra. The final order shall be passed after perusal of the report upon receipt from the Sessions Court, Agra.”

All in all, the key takeaway from this most learned judgment is that lodging juveniles in adult prisons amount to deprivation of their personal liberty. The Apex Court made it clear that lodging juveniles in adult prisons is a very serious matter as it straightaway tantamount to deprivation of their personal liberty. We all know that personal liberty is a fundamental right as enshrined under Article 21 of the Constitution. So there can be just no compromise on it and the Apex Court has made the picture entirely clear before us as discussed hereinabove. Of course, the Court also made it pretty clear that in deciding whether an accused is a juvenile or not, a hyper technical approach should not be adopted.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road Kankerkhera, Meerut – 250001, Uttar Pradesh

While fully, firmly and finally espousing equality for women with men, a three Judge Full Bench of the Rajasthan High Court has just recently on September 13, 2022 in a most laudable, learned, landmark and latest judgment titled Priyanka Shrimali vs State of Rajasthan & Ors. with other connected matters in Civil Reference No. 1/2022 connected with others and cited in 2022 LiveLaw (Raj) 231 has observed most commendably, cogently and convincingly that the use of the word ‘unmarried’ in Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 depriving a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced. Notably, the Rule 2(c) which defines dependent, stands amended with effect from (w.e.f.) 28.10.2021, wherein the married daughter has also been included in the definition, subject to certain conditions. In this context, the Bench noted that the government servants/employees in all the present cases have died in harness prior to the date of amendment in the provision, the cases of the applicants-petitioners would be governed by the unamended provisions.

It was also made clear by the Full Bench that on account of the stipulation ‘unmarried’ daughter in the definition of dependent under the unamended provision, the applicant-petitioners have been rendered ineligible and thus, their challenge cannot be negated merely on account that the provision stands amended w.e.f. 28.10.2021.

Most commendably, while answering a reference made by the Division Bench, the 3-Judge Full Bench of the Rajasthan High Court comprising of Hon’ble Mr Justice Sandeep Mehta, Hon’ble Mr Justice Vijay Bishnoi and Hon’ble Mr Justice Arun Bhansali in this leading case observed sagaciously noting that:
The provision of Rule 2(c) of the Rules of 1996, which excludes the married daughter from definition of dependent prior to its amendment vide notification dated 28.10.2021 is discriminatory and violative of Articles 14 to 16 of the Constitution of India and as such, the word ‘unmarried’ from the definition of ‘dependent’, is struck down. Further, in Rule 5 of the Rules of 1996 also the word unmarried daughters/adopted unmarried daughters, shall be read as daughters/adopted daughter. Very rightly so!

At the outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Arun Bhansali for a Full Division Bench of the Rajasthan High Court comprising of Hon’ble Mr Justice Sandeep Mehta, Hon’ble Mr Justice Vijay Bishnoi and himself first and foremost puts forth that:
The present reference has come-up before this Larger Bench on account of issue referred by the Division Bench on 12.01.2022, inter alia, observing and referring the question as under:-

In our opinion, the view of the Rajasthan High Court requires consideration by a larger Bench. The reference is therefore made to three members Bench on the following:

Whether the view taken by the three Division Benches of this Court in the cases of Smt. Sumer Kanwar (supra), Smt. Vandana Sharma (supra) and Kshama Devi (supra) upholding the vires of Rule 2(c) of the Rules, which excludes the married daughter from the definition of term ‘dependent’ is correct?

As we see, the Full Bench then stipulates in the next para that:
After hearing the learned counsel appearing before this Bench, on 20.07.2022, the question referred was re-framed with the following observations:-

After hearing the learned counsel appearing before us on previous dates and today, we are of the opinion that the question which has been referred to the Larger Bench requiring it to examine the correctness of the Division Bench judgments in the case of Smt. Sumer Kanwar, Smt. Vandana Sharma and Kshama Devi restricts the scope of consideration of the aspects which arise in the matter and rather puts this Larger Bench in an appellate position, which essentially is contrary to the jurisprudence in relation to reference of issues to a Larger Bench.

In view of the above, after hearing the learned counsel, the issue for consideration in the present reference is re-framed as under:

Whether the provisions of Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996, which excludes the married daughter from the definition of ‘dependent’, prior to its amendment vide Notification dated 28/10/2021, is discriminatory and violative of Articles 14 & 16 of the Constitution of India? In case the provision is discriminatory etc., the consequences thereof.

Truth be told, the Full Bench then discloses in the next para that:
The above question was referred by the Division Bench, while hearing the case of Priyanka Shrimali v. State of Raj. & Ors.: DBCW No. 14345/2021. Whereafter, in Savita Khatik v. State of Raj. & Ors.: DBCW No. 13697/2021 and Smt. Heena Sheikh v. State of Raj. & Ors.: DBCW No. 15488/2021 also directions were given for connecting the said petitions with the present reference.

No doubt, the Full Bench then rightly reveals in next para that:
Though in Kavita Gurjar & Anr. v. State of Raj. & Ors.: DBCW No.7343/2019, challenge has been laid to the validity of Clause 2(c) of the Rajasthan State Road Transport Corporation Compassionate Appointment of the Dependents of Deceased Employees Regulations, 2010, as the provisions are akin to the provisions of Rule 2(c) of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (‘the Rules of 1996’), the same was also ordered to be connected to the present reference.

To put things in perspective, the Full Bench then envisages quite aptly in the next para that:
The petitioner-Priyanka Shrimali filed the petition praying that the provisions of Rule 2(c) of the Rules of 1996 be declared unconstitutional to the extent it envisage that besides spouse and son only ‘unmarried daughter’ is entitled for consideration for compassionate appointment as the petitioner, a married daughter of Smt. Hemlata Shrimali, a Government Servant, who died on 18.06.2021 sought compassionate appointment as the only child of the deceased, even after the marriage, she was living with her parents and now father only, however, on account of the provisions of the Rules of 1996, her candidature was rejected by order dated 01.09.2021, inter alia, indicating that married daughter is not eligible for compassionate appointment under the Rules of 1996.

While continuing in the same vein, the Full Bench then states in next para that, Similarly, the petitioner-Savita Khatik, on account of death of her mother, a Government servant, who died on 18.04.2021 and being the only child claimed herself to be wholly dependent on her mother, sought appointment under the Rules of 1996, however, as the definition of dependent excluded married daughter under the Rules of 1996, she has challenged the validity of the provision.

Further, the Full Bench then states in next para that:
The petitioner-Heena Sheikh’s mother Smt. Nuzhat Aara was a Government servant, who died on 04.03.2019 and the petitioner also being the only child, sought compassionate appointment claiming herself as dependent on the deceased, however, it was indicated to her that on account of the fact that the petitioner is a married daughter of the deceased, she is not entitled for compassionate appointment under the Rules of 1996.

Be it noted, the Full Bench clearly states that:
In the present circumstances, though the provision i.e. Rule 2(c) of the Rules of 1996 which defines dependent, stands amended w.e.f. 28.10.2021, wherein the married daughter has also been included in the definition, subject to certain conditions, however as the government servants/employees in all the present cases have died in harness prior to the date of amendment in the provision, the cases of the applicants-petitioners would be governed by the unamended provisions and as under the unamended provision, on account of the stipulation ‘unmarried’ daughter in the definition of dependent, they have been rendered ineligible, the challenge laid by the petitioners, cannot be negated merely on account of the fact that the provision stands amended w.e.f. 28.10.2021.

Needless to say, the Full Bench rightly points out that:
The Larger Bench of Madhya Pradesh High Court in the case of Meenakshi Dubey (supra) came to the conclusion that the clause in the policy to the extent, the same debars the married daughter from right of consideration for compassionate appointment, was violative of Articles 14, 15, 16 and 39(a) of the Constitution of India.

Simply put, the Full Bench then further states that:
A Single Judge of Karnataka High Court in the case of Smt. Bhuvaneshwari V. Puranik (supra), after referring to various judgments on the said aspect, came to the conclusion that without a shadow of doubt the words unmarried were discriminatory and struck down the word unmarried in the Rule. The said judgment of the learned Single Judge was noticed by another Single Judge in the State of Karnataka & Ors. v. C.N. Apporva Shree & Anr.: WP No. 5409/2021 (S-KSAT), decided on 22.03.2021, who dismissed the petition filed by the State of Karnataka.

Quite significantly, the Full Bench then points out in next para that:
Against the said judgment, when the State of Karnataka approached Hon’ble Supreme Court by filing Special Leave to Appeal, in State of Karnataka & Ors. v. C.N. Apporva Shree & Anr.: Special Leave to Appeal (C) No.20166/2021, decided on 17.12.2021, Hon’ble Supreme Court ordered as under:-

We have heard learned counsel for the petitioner(s) and have analyzed the impugned judgment. We give our full imprimatur to the reasoning of the High Court, more so, as even the rule in question relied upon by the petitioner to deny a married daughter a job on compassionate grounds while permitting it to a married son, has been quashed in the judgment of the Karnataka High Court in Bhuvaneshwari V. Purani v. State of Karnataka – (2021) 1 AKR 444 [AIR Online 2020 Kar 2303]. The Special Leave Petition is dismissed.

Quite ostensibly, the Full Bench then expounds in next para stating that:
From the above, it would be seen that Hon’ble Supreme Court, while dismissing the Special Leave to Appeal made observations giving its full imprimatur to the reasoning of the High Court in the case of C.N. Apporva Shree (supra) and noticed that the denial of job on compassionate basis to a married daughter while giving such indulgence to a married son has been quashed in the case of Smt. Bhuvaneshwari V. Puranik (supra).

As a corollary, the Full Bench then deduces from the afore-stated that:
From the above cited judgments, it would be seen that practically all the High Courts, after testing the validity of exclusion of a married daughter from the definition of dependent/family have unanimously come to the conclusion that the said exclusion was unconstitutional.

It would be instructive to note that the Full Bench then observes that:
Coming to the submissions made by learned counsel for the respondent-State seeking to emphasize that the Rule making authority has deliberately omitted a married daughter from the definition of dependent as after marriage, a married daughter would be dependent on her husband and/or her-in-laws.

The said submissions and exclusion is based on an assumption that only as a consequence of marriage, the married daughter would cease to be dependent on the deceased government servant and, therefore, disentitled to be considered for compassionate appointment. As the only reason indicated is purported lack of presumed dependence, the said basis, cannot be sustained, inasmuch as, there may be cases where despite marriage, the daughter for various reasons may continue to be dependent on the deceased government servant.

More to the point, the Full Bench then forthrightly states in the next para that:
The very assumption that a married daughter, would invariably and in all cases, would not be dependent on the government servant is based on surmises, oblivious of the present day social realities and at the same time including a dependent married son, while leaving out a dependent married daughter from the definition, is clearly discriminative.

It cannot be lost sight of that the Full Bench then propounds that:
The Hon’ble Supreme Court in Dr. (Mrs.) Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai & Anr.: (1987) 2 SCC 278, opined that a daughter after marriage does not cease to be a daughter of a father and mother and did not accept the contention that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves. It was held that it is moral obligation of the children to maintain their parents and that Section 125 Cr.P.C. has imposed a liability on both the son and daughter to maintain their parents, who is unable to maintain himself or herself.

On similar lines, the Full Bench then further states that:
Further, now under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, equal duty on both sons and daughters to take care and maintain the parents has been placed and, therefore, the purported assumption in seeking to distinguish a married son from a married daughter for the purpose of grant of compassionate appointment, cannot be sustained.

Most remarkably, the Full Bench then minces no words to hold that:
Yardstick, for extending the benefit of compassionate appointment in terms of the Rules is and should be dependency of the dependents on the deceased government servant and, therefore, their marital status only should not be an impediment for consideration on compassionate ground. In fact, the requirement of the definition quoted hereinbefore even for the spouse, son and unmarried daughters, requires them to be wholly dependent on the deceased government servant at the time of his/her death and, therefore, inclusion of the married daughter in the definition, would not dilute the said requirement of the Rule.

Most commendably, the Full Bench then unequivocally holds that:
Further, the marriage by itself cannot be a disqualification and, therefore, the definition barring a married daughter from seeking compassionate appointment merely on the ground of her marriage is apparently arbitrary and violative of Articles 14, 15 and 16(2) of the Constitution of India.

It cannot be glossed over that the Full Bench then points out that:
From what has been laid down by various High Courts, dealing with the exclusion of married daughter from the purview of grant of compassionate appointment, the opinion essentially is unanimous that the same is violative of Articles 14 to 16 of the Constitution of India. Except for the judgments of this Court, which all have followed the initial judgment in the case of Smt. Sumer Kanwar (supra), none has cited any other judgment upholding the exclusion of married daughter from the definition.

Besides the above, the fact that Hon’ble Supreme Court in the case of C.N. Apporva Shree (supra) has given its full imprimatur to the reasoning of the High Court and has noticed that the provision denying married daughter a job on compassionate grounds, has been quashed in the case of Bhuvaneshwari V. Purani (supra), the proposition holding the married daughter as eligible for compassionate appointment, has the sanction of Hon’ble Supreme Court as well.

It is worth noting that the Full Bench then holds in next para that:
Hon’ble Supreme Court in the case of The Secretary, Ministry of Defence v. Babita Puniya & Ors.: (2020) 7 SCC 469, wherein challenge was laid to the directions of the High Court ordering that the Short Service Commission Women Officers are entitled to Permanent Commission at par with Male Short Service Commission with all consequential benefits, observed as under:-

67. The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1).

Most significantly, the Full Bench minces absolutely no words to unambiguously hold that:
From the above discussion, it can be safely concluded that the use of word ‘unmarried’ in Rule 2(c) of the Rules of 1996 depriving a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced. Consequently, the reference is disposed of. The re-framed question in the reference, is answered as under:-

The provision of Rule 2(c) of the Rules of 1996, which excludes the married daughter from definition of dependent prior to its amendment vide notification dated 28.10.2021, is discriminatory and violative of Articles 14 to 16 of the Constitution of India and as such, the word ‘unmarried’ from the definition of ‘dependent’, is struck down.

Further, in Rule 5 of the Rules of 1996 also the word unmarried daughters/adopted unmarried daughter, shall be read as daughters/adopted daughter. The judgment in the case of Sumer Kanwar (supra) and all other judgments, which have followed the judgment in the case of Sumer Kanwar (supra), upholding the denial of compassionate appointment to married daughter, are overruled.

What’s more, the Full Bench then further hastens to add in next para that:
As a consequence, it is directed that on account of striking down of the word ‘unmarried’ from the definition:

1. the same shall not effect any case, wherein compassionate appointment has already been granted under the provisions as they stood before this order;
2. the same by itself would not provide a cause of action to any applicant and would apply to cases which are either pending before the competent authority and/or to the cases where litigation is pending on the date of this order only;
3. the provisions and other requirements of the definition regarding the applicant being wholly dependent on the deceased government servant at the time of his/her death would be scrupulously applied;
4. all the parameters as laid down by Hon’ble Supreme Court for grant of compassionate appointment, shall also be scrupulously followed and that
5. all other provisions of the Rules except the inclusion of the ‘married daughter’ in the definition of ‘dependent’, shall have full application.

Finally, the Full Bench then concludes by directing that:
The matters be now placed before the Division Bench for appropriate orders.

In summation, the Full Bench of the Rajasthan High Court has made it indubitably clear in this notable judgment that depriving the married daughter from right of consideration for compassionate appointments violates Articles 14 to 16. Of course, what has been resoundingly laid down by a three-Judge Full Bench of the Rajasthan High Court has to be accepted by all the Courts and it is a most progressive judgment which deserves to be implemented in totality by all the Courts! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road Kankerkhera, Meerut – 250001, Uttar Pradesh

In a most significant development, we got to witness how as recently as on September 9, 2022, none other than the Supreme Court of India in a most learned, laudable, landmark and latest judgment titled Vishwanath Pratap Singh vs Election Commission of India in Petition(s) for Special Leave to Appeal (C) No(s).13013/2022 and cited in 2022 LiveLaw (SC) 758 minced just no words to hold that the right to contest an election is not a fundamental right but only a right conferred by a statute. To say the least and yet most effectively, the Apex Court states right in the beginning itself that:
The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The name of a candidate to be proposed while filling the nomination form. Therefore, an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act. Referred to Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445. It is also mentioned then about this judgment that it is arising out of impugned final judgment and order dated 10-06-2022 in WP(C) No.9475/2022 passed by the High Court of Delhi at New Delhi.

It must also be mentioned here that the Bench of Apex Court comprising of Hon’ble Mr Justice Hemant Gupta and Hon’ble Mr Justice Sudhanshu Gupta observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh also imposed a cost of Rs one lakh on him. It certainly merits no reiteration that all politicians must abide by what has been laid down so explicitly in this leading case. No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball rolling by first and foremost putting forth in the opening para itself that:
Application for permission to appear and argue in-person is allowed.

While stating the key object of the present special leave petition, the Bench then discloses in the next para of this learned judgment that:
The challenge in the present special leave petition is to an order passed by the High Court of Delhi on 10.06.2022 whereby a writ petition filed by the petitioner claiming a mandamus to decide the candidature of the petitioner to file his nomination for Rajya Sabha Elections 2022, was dismissed.

To put things in perspective, the Bench then envisages in the next para of this remarkable judgment that:
The petitioner filed a writ petition before Delhi High Court raising a grievance that a notification for election to Rajya Sabha was issued on 12.05.2022 to fill up the seats of members retiring from 21.06.2022 to 01.08.2022. The last date for submission of the nomination was 31.05.2022.

While continuing in a similar vein and stating how the petitioner felt his right was infringed, the Bench then lays bare in the next concise para of this robust judgment that:
The stand of the petitioner is that he collected nomination form but was not allowed to file his nomination without a proper proposer proposing his name. The petitioner sought his candidature without proposer which was not accepted and, therefore, he claims that his fundamental right of free speech and expression and right to personal liberty has been infringed.

Most notably, the Bench of Apex Court then minces no words absolutely to hold unambiguously in the next para of this rational judgment that:
We find that the writ petition before the High Court was entirely misconceived and so is the present special leave petition. The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. In Javed v. State of Haryana, (2003) 8 SCC 369, this Court held that:-

22. Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right — a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.

23. Reiterating the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [AIR 1952 SC 64 : 1952 SCR 218] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892] this Court held in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691] : (SCC p. 696, para 8)

8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.

No less significant is what is then laid down in the next para of this forthright judgment wherein it is stated that:
In a later judgment reported as Rajbala v. State of Haryana, (2016) 2 SCC 445, this Court held that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by the Parliament. It was held as under:-

39. Insofar as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to comparatively greater restrictions imposed by or under the Constitution. The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326 the authority to restrict the right to vote can be exercised by the appropriate legislature. The right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by Parliament.

Most forthrightly, the Bench then also propounds in the next para wherein it is expounded that:
Thus, the petitioner did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament. The Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. Therefore, an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

As a corollary, the Bench then hastens to add in the next para of this noteworthy judgment directing that:
In view of the said fact, we dismiss the present special leave petition with cost of Rs.1,00,000/- (Rupees one lakh only). The said cost be paid to the Supreme Court Legal Aid Committee within four weeks.

Finally, the Bench then concludes by holding in the final para of this notable judgment that:
Pending application(s), if any, stands disposed of.

In conclusion, we thus see that the petitioner is left with no option but has to comply with what has been held and pay the cost of Rs 1 lakh accordingly as directed by the Apex Court. This definitely clearly manifests that the Apex Court is not at all happy with what the petitioner claimed and we have discussed this in detail as hereinbefore elaborated upon. The bottom-line of this learned judgment to be picked up is that politicians must stop thinking themselves above all law for whom no one can lay down any restriction within which they have to function!

It definitely merits no reiteration that the sum and substance of this most commendable judgment is that the right to contest election is definitely not a fundamental right as the Apex Court clearly held also which politicians however have an age old tendency to most wrongly assume it to be. The Apex Court also made it indubitably clear that it is a right conferred by the statute as we have discussed also threadbare. More than anyone else, it is none other than the politicians themselves who always ought to remember this and pay heed to what the Apex Court has laid down so very elegantly, eloquently and effectively in this leading case! There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road Kankerkhera, Meerut – 250001, Uttar Pradesh.

While taking a very principled and legal stand, the Single Judge Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr Justice Pankaj Jain in an extremely laudable, learned, landmark and latest judgment titled Sarabjit Jain vs State of Punjab & Ors in CRR No. 2925 of 2018 (O&M) that was reserved on August 18 and then finally pronounced on August 31, 2022 has minced absolutely no words to unambiguously hold that the High Court will not be justified in interfering with an order of acquittal merely because the Trial Court has taken a wrong view of law or has erred in appreciation of evidence. This is what forms the real crux of this notable judgment. It must be mentioned here that the factual matrix of the case as we see here is that the present petition is the revision of the order that was passed earlier by the Trial Court. It must also be pointed out here while recalling that when the statement was made by the petitioner, the proceedings were set in motion, and on the basis of that statement, the FIR was registered under Sections 447, 551, 506, 148 and 149. It must be noted that the Trial Court after analyzing the available evidence that was presented before it, the Trial Court acquitted the accused and stated that the prosecution has failed to prove its case.

CRM No. 30827 of 2018

At the very outset, this brief, brilliant, bold and balanced oral judgment authored by the Single Judge Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr Justice Pankaj Jain sets the Ball rolling by first and foremost putting forth in the very beginning that:
This is an application seeking condonation of delay of 305 days in filing the revision petition. For the reasons mentioned in the application, the same is allowed subject to all just exceptions. Delay of 305 days in filing the revision petition is condoned. Application stands disposed off.

CRR No. 2925 of 2018

To put things in perspective, the Bench then envisages in this opening para of this learned judgment that:
The petitioner is in revision against the order passed by Additional Sessions Judge, Sri Muktsar Sahib dated 19.07.2017 whereby judgment of acquittal passed by Judicial Magistrate First Class, Gidderbaha dated 06.12.2016 has been affirmed. The proceedings were set in motion on the statement made by the petitioner that on 17.04.2012, respondents and his co-sharers started raising construction in the land of the complainant. On the basis of the statement made by the petitioner, F.I.R. No. 17 dated 18.04.2012 registered under Sections 447, 511, 506, 148 and 149 IPC at Police Station Kotbhai, District Muktsar Sahib was registered. The accused were put to trial.

To be sure, the Bench then points out in the next para of this brilliant judgment that:
Trial Court after analyzing the evidence on record found that the prosecution has failed to prove its case and accordingly, acquitted the accused of the charges vide judgment dated 06.12.2016.

As we see, the Bench then lays bare in the next para of this remarkable judgment that:
Aggrieved by the same, the petitioner filed appeal. The Appellate Court found that the acquittal recorded by the Trial Court is based upon the correct appreciation of the evidence and there is no material/evidence on record which has been excluded while appraising the evidence on record and thereby affirmed the findings recorded by the Trial Court.

As it turned out, the Bench then goes on to specify in the next para of this concise judgment that:
Counsel for the petitioner argues that the Courts below have wrongly appreciated the evidence on record which has resulted in the perverse findings. It has been contended that the benefit of doubt has been wrongly extended to the respondents on account of defective investigation conducted by the police. It is contended that this Court while exercising revisional jurisdiction should re-appreciate the evidence and reversed the findings recorded by the Courts below.

Needless to say, the Bench then observes in the next para of this commendable judgment that:
I have heard the learned counsel for the petitioner and have carefully gone through the record of the case.

Most significantly, what constitutes the real cornerstone of this laudable judgment is then encapsulated best in this next para wherein it is explicitly laid down that:
The scope of revision against acquittal stands settled by Apex Court in the case of Bindeshwari Prasad Singh @ B.P. Singh and others vs. State of Bihar (Now Jharkhand) and another, 2002, AIR (SC) 2907 wherein it has been held that:
We have carefully considered the material on record and we are satisfied that the high court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under section 401 of the code of criminal procedure, sub-section (3) of section 401 in terms provide that nothing in section 401 shall be deemed to authorize a high court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by section 401 of the code of criminal procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which the exercise of revisional jurisdiction may be justified, but the decision of this court has laid down the parameters of the exercise of revisional jurisdiction by the high court under section 401 of the code of criminal procedure in an appeal against acquittal by a private party. (See AIR 1951 Supreme Court 196 : D. Stephens v. Nosiballa; AIR 1962 Supreme Court 1788 : KC Reddy v. State of Andhra Pradesh; (1973) 2 SCC 583 : Akalu Ahir and others v. Ramdeo Ram; AIR 1975 Supreme Court 1854; Patakalapati Narayana Gajapathi Raju and others v. Bonapalli Peda Appadu and another and AIR 1968 Supreme Court 707 : Mahendra Pratap Singh v. Sarju Singh).

As a corollary and no less significant is what is then pointed out so very rightly in the next para of this noteworthy judgment wherein it is held that, Thus, taking into consideration the facts and circumstances of the case and in view of the ratio of law laid down by the Apex Court in Bindeshwari Prasad Singh’s case (supra), no case for exercising revisional jurisdiction is made out.

Finally, the Bench then concludes by holding aptly in the final para of this learned judgment that:
Consequently, the present revision petition is dismissed.

All told, we thus see that the Punjab and Haryana High Court has made it indubitably clear by this notable judgment that the High Court will not be justified in interfering with an acquittal order simply because the Trial Court has misapplied the law or has misapplied the evidence. Of course, the Single Judge Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr Justice Pankaj Jain has cited the most relevant judgment in this regard as we have discussed quite elaborately hereinabove! The same must be always followed and adhered to in letter and spirit in similar such cases by all the High Courts in our country! It definitely merits just no reiteration that there can be just no denying or disputing it! Let’s fervently hope so that the same shall always be followed in practice abiding by the same by all the High Courts in our country and not in breach!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

In a very significant observation with far reaching consequences, the Supreme Court has in an extremely laudable, learned, landmark and latest judgment titled Shiv Kumar vs The State of Madhya Pradesh in Criminal Appeal No. 1503 of 2022 (Arising out of SLP (Crl.) No. 9141 of 2019) in exercise of its criminal appellate jurisdiction has minced just no words to observe that the initial possession of stolen goods may not be illegal but retaining it with the knowledge that it was a stolen property, makes it culpable under Section 411 of Indian Penal Code. The Bench of Justice KM Joseph and Justice Hrishikesh Roy observed specifically that:
The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable. It deserves mentioning that the Court held that, In these circumstances where it is not established that the appellant dishonestly received stolen property with the knowledge and belief that the goods found in his possession were stolen, the conviction of the appellant under Section 411 IPC, in our view, cannot be sustained. So the Apex Court very rightly ordered the acquittal of the appellant-accused.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hrishikesh Roy for a Division Bench of the Apex Court comprising of himself and Justice KM Joseph first and foremost puts forth in para 3 that:
The challenge in this appeal is to the judgment dated 12.03.2019 in the Criminal Appeal No. 1261 of 2006 whereunder the appellant’s conviction by the trial Court under Section 411 of the Indian Penal Code, 1860 (for short IPC), was sustained by the High Court. For such conviction, the appellant was sentenced to rigorous imprisonment (for short R.I.) for 2 years and fine of Rs. 1,000 and in default of fine payment, additional R.I. for 3 months was ordered.

Simply put, the Bench then states in para 4 that:
In this appeal, limited notice was initially issued on 4.10.2019 only on the quantum of sentence but on 9.5.2022, after considering the submission of the learned counsel for the appellant, the Court decided to examine the challenge to the conviction itself. Earlier, the appellant was exempted from surrendering by the Court’s order dated 6.9.2019.

Truth be told, the Bench then discloses in para 5 that:
In the common judgment, the High Court had disposed of three appeals including the appeal filed by one Sadhu Singh alias Vijaybhan Singh Patel who was convicted for murder and other offences and was sentenced, inter alia, to imprisonment for life. The appellant and one Shatrughan Prasad were not charged in the murder case, but were charged with the offence of receiving stolen property and were convicted for the offence punishable under Section 411 of the IPC.

To put things in perspective, the Bench then envisages in para 6 that:
The prosecution’s case, as revealed from the impugned judgment, is that on 14.2.2003, complainant Abhay Kumar Jain (PW-26) gave a written report to the Town Inspector, City Kotwali, Satna with the information that a truck loaded with household articles operating under the informant’s Excel Transport Agency had proceeded from Indore for delivering goods at Satna. The truck driven by Gurmel Singh after starting from the transport office at Indore on 8.2.2003 had, however, failed to reach its destination at Satna until 12.2.2003. On 14.2.2003, the informant, on learning that the truck was standing on Galla Mandi, Satna, found that the loaded goods from the truck were missing. Initially, an FIR was registered for offence under Section 406 of the IPC in the Crime No. 183/2003 but during police investigation, it came to light that the truck driver was murdered by Sadhu Singh alias Vijaybhan Singh with co-accused Raju alias Rajendra. The loaded goods in the truck were looted and those stolen articles were dishonestly received by the present appellant Shiv Kumar and co-accused Shatrughan Prasad allegedly knowing the articles to be stolen property. It is the further case of the prosecution that the goods in question were sold at cheaper rate by the two accused who were, accordingly, charged for offences under Section 411 of the IPC.

As it turned out, the Bench then mentions in para 7 that:
The trial Court convicted the co-accused Sadhu Singh for the offence of murder and related charges. It was also held that the prosecution is able to prove that the appellant Shiv Kumar and co-accused Shatrughan Prasad had received the articles looted from the truck knowing fully well that those are stolen property, and thereby, both accused committed the offence punishable under Section 411 of the IPC.

Analysis and Findings
Be it noted, the Bench while citing the relevant case law points out in para 11 that:
The law governing disclosure statement was discussed by this Court in the case of Haricharan Kurmi & Anr. Vs. State of Bihar AIR 1964 SC 1184. It was observed:

12. …….In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right….

As we see, the Bench then opines in para 12 that:
In this case, although recovery of items was made, the prosecution must further establish the essential ingredient of knowledge of the appellant that such goods are stolen property. Reliance solely upon the disclosure statement of accused Raju alias Rajendra and Sadhu alias Vijaybhan Singh will not otherwise be clinching, for the conviction under Section 411 of the IPC.

Most notably, the Bench minces no words to point out in para 20 that:
The contradiction in the testimonies of Nitin Jain (PW-5), Sub-Inspector Bharat Singh Thakur (PW-22), and Sub-Inspector G.P. Tiwari (PW-24) are also quite glaring. For instance, the utensils as per PW-5, were seized by Sub-Inspector G.P. Tiwari (PW-24) in the presence of Nitin Jain (PW-5), however, the S.I. G.P. Tiwari (PW-24) in his testimony has denied seizing any property, owing to lacking Jurisdiction, stating seizure must have been done by Police Station, Panagarh and not by the officer from the Police Station Kotwali, Satna. Apart from the above, interestingly, the support for the testimony of SubInspector G.P. Tiwari (PW-24) is provided by SubInspector Bharat Singh Thakur (PW-22) of Police Station, Panagarh to the effect that PW-24 was not present at Shiv Kumar’s house during the seizure process. He has also denied that PW-24 called Nitin Jain (PW-5) to the house of Shiv Kumar to witness the seizure. Moreover, the seizure memo being written by Sub-Inspector G.P. Tiwari (PW-24) is also not supported by PW-24. Noticing all these discrepancies, the seizure evidence is found to be totally unreliable.

While citing yet another relevant case law, the Bench then specifies in para 21 stating that:
In Trimbak vs. State of Madhya Pradesh AIR 1954 SC 39, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove,

5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property….

Quite ostensibly, the Bench then expounds in para 22 stating that:
When we apply the legal proposition as propounded to the present circumstances, the inevitable conclusion is that the prosecution has failed to establish that the appellant had the knowledge that articles seized from his possession are stolen goods. This essential element was not established against the appellant to bring home the charge under Section 411 of the IPC against him.

Furthermore, the Bench then deems it apposite to note in para 23 stating the following: That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411 of IPC. The Prosecution’s evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, you speak an infinite deal of nothing. (William Shakespeare. Merchant of Venice, Act 1 Scene 1.).

Quite significantly, the Bench then propounds in para 24 holding that:
In a case like this, where the fundamental evidence is not available and the law leans in appellant’s favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.

Finally and far most significantly, the Bench concludes by holding in para 25 that:
In these circumstances where it is not established that the appellant dishonestly received stolen property with the knowledge and belief that the goods found in his possession were stolen, the conviction of the appellant under Section 411 IPC, in our view, cannot be sustained. Therefore, applying the test in Trimbak [supra], it must be held that the appellant was erroneously convicted. Therefore, we order the acquittal of the appellant. The appeal stands allowed with this order.

In essence, it must be said at the cost of repetition that the key point of this extremely commendable judgment is that:
The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable. When it is not established that the appellants received the property knowing it to be stolen then the appellants have to be acquitted as we see in this notable case! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

It is extremely relevant to note that none other than the Punjab and Haryana High Court in an enlightening, elegant, eloquent and effective judgment titled Suhail Ahmad Vs State of Haryana in CRR-801-2022 decided recently on July 8, 2022 has held that when the accused had, while committing the offence of lurking house trespass by night or house-breaking by night, also voluntarily caused or attempted to cause death, then the convicting Court can per-emptorily impose a sentence of life imprisonment, upon the juvenile in conflict with law.

The Bench comprising of Hon’ble Mr Justice Sureshwar Thakur further added that the punishment for simpliciter offence of lurking house trespass by night or house-breaking by night can be less than 7 years whereas, an offence, is a heinous offence, only when the imposable sentence, upon the convict, is per-emptorily statutorily contemplated to necessarily extend upto a term of seven years or more. The co-accused being juveniles in conflict with law, were to be tried by the Children’s Court constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015.

At the very outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr Justice Sureshwar Thakur sets the ball rolling by first and foremost putting forth in para 1 that:
In FIR bearing No.45 of 27.01.2021, registered at Police Station Quilla Panipat, offences constituted under Sections 201, 302, 34 of IPC, later on changed to under Sections 460, 201, 120-B, 34 of IPC, and, under Section 25 of Arms Act, are embodied.

To put things in perspective, the Bench then envisages in para 2 that:
The petition FIR offences (supra) are alleged to be committed by two co-accused namely Suhail Ahmad, and, Sameer. There is no quarrel amongst the learned counsel appearing for the petitioner, and, for the respondent-State that, at the relevant stage, and/or, in contemporaneity to the commission of the FIR offences, rather both the accused were aged about 16 years.

Be it noted, the Bench then notes in para 3 that:
Though, in the face of the above undisputed factum, both the coaccused, who are juveniles in conflict with law, were to be tried, and/or, their delinquent conduct was enjoined to be inquired into by the Children’s Court, as, constituted under the The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act). Moreover so, as the petition FIR offences, are alleged by the prosecution, to be heinous offences, as defined in Section 2(33) of the Act, provisions whereof become extracted hereinafter. Consequently, the respondent-State has contended before this Court, that, the dis-affirmative concurrent verdicts as, made, upon the petitioner’s application cast, under Section 19 of the Act, require theirs becoming validated or upheld by this Court.

2. xxx

(33) heinous offences includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more;.

As it turned out, the Bench then points out in para 4 that:
The learned counsel appearing for the petitioner, has most vociferously contested, the afore made submission made before this Court, by the learned State counsel. Therefore, the above raised controversy, has to be adjudicated, and, in doing so, it is deemed fit, and, appropriate to make a keenest perusal, and, also a studied analyses of the provisions (supra), besides, also of the provisions carried in Sections 15, and, 19 of the Act, both of which provisions become extracted hereinafter.

15. Preliminary assessment into heinous offences by Board.—

(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:



Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Explanation: For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:

Provided further that the assessment under this section shall be completed within the period specified in section 14.

xxx

19. Powers of Children’s Court:

1. After the receipt of preliminary assessment from the Board under section 15, the Children s Court may decide that:
   1. there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;
   2.  there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.
      
2. The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.
   
3. The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
   
   Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.
   
4. The Children’s Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.
   
5. The reports under sub-section (4) shall be forwarded to the Children s Court for record and follow up, as may be required.

It would be pertinent to mention that the Bench then states in para 5 that:
A circumspect reading of the statutory provisions, as, carried in sub Section (1) of Section 15, unfolds that, when the juvenile in conflict with law, conspicuously, at the relevant stage, inasmuch as, in contemporaneity to the commission of the petition FIR offence(s), has completed or is above the age of 16 years, and, when it is alleged against him that, he has committed a heinous offence, thereupon it becoming incumbent, upon the Board to conduct a preliminary assessment qua his mental, and, physical capacity to commit such offence, his ability to understand the consequences of the offence, and, the circumstances in which he allegedly committed the offence. The thereunderneath proviso (supra) contemplates, that in the making of the above assessment, the Board may proceed to take the assistance of experienced psychologists or psycho-social workers, and, other experts.

Broadly speaking, the Bench then specifies in para 6 that:
After the receipt of the above assessment, and, after making an objective satisfaction thereof, the Board is required to, in consonance with the provisions of sub Section 3 of Section 18, provisions whereof stands extracted hereafter, make an order qua the child aged about 16 years, and/or, who is less than 18 years, rather in contemporaneity to the commission of the petition offences, becoming tried as an adult, and, also becomes statutorily injuncted to make a further order qua transfer of the trial of the apposite case, to the Children’s Court having jurisdiction to try such offences.

18 (3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.

It is worth noting that the Bench then discloses in para 8 that:
The learned counsel appearing for the petitioner, has rested, his opposition, to the argument addressed before this Court, by the learned State counsel, on two premises; 1) the FIR offences have been fallaciously construed to be heinous offences, by concurrent dis-affirmative verdicts, as, made by both the learned Courts below, upon, the petitioner’s application, cast under Section 19 of the Act; 2) he further rests the above argument on the ground that, the offence constituted against the petitioner, and, as the one embodied in Section 460 of the IPC, provisions whereof becomes extracted hereinafter, prescribes a duo of alternate punishments, inasmuch as, imprisonment for life, and, the alternate thereto imprisonment of either description rather for a term which may extend to 10 years.

Therefore, he argues that since in the factual matrix of the instant case, the alternate to the imposition of sentence of imprisonment of life, rather upon conclusion of the apposite inquiry, hence, upon the petitioner, is imposable upon him, and, also when the apposite alternate to the imposition of the sentence of imprisonment of life, upon the convict, either by the empowered Criminal Court of competent jurisdiction or by the Children’s Court, does not imperatively, make any per-emptory statutory injunction, upon the Convicting Court concerned, to necessarily impose upon the convict, a punishment of 10/7 years, given the word ‘may’ preceding extend to 10 years, becoming readable or being connotative, of a statutory discretion being vested in the competent Court, to sentence the convict, even for a term even upto much less than 3 years, thereupon he argues that, in the wake of the above, the petition FIR offence, constituted under Section 460 of IPC, does not become a heinous offence, and, therefore, he strives to invalidate the impugned verdicts.

460. All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them.— If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

It cannot be glossed over that the Bench then hastens to add in para 9 that:
In determining the vigor of the above submission, it is also, but necessary, to allude to the mandate carried in Section 2(33), wherein, occurs a prescription qua an offence, under the IPC or any other law for the time being in force, when necessitating hence a per-emptory imposition, upon the convict, a sentence of imprisonment for a term of 7 years or more, thereupon alone the committed offence becoming a heinous offence.

Therefore, the learned counsel for the petitioner has argued, that since the word ‘may’ preceding sentence upto 10 years, as carried in Section 460, rather leaves a statutory discretion in the competent Court, to impose a sentence even less than even 7 years. In sequel, he has further argued, that when the above made interpretation to Section 2(33) of the Act, is clearly reflective of the fact, that, the punishment imposable, upon the juvenile in conflict with law, rather by the Children’s Court, qua a charge drawn against him under Section 460 of the IPC, is not imperatively required to extend for a term which may always extend to 7 years, but rather for above reasons, may be even for a term, hence less than 7 years. In consequence, though, he naturally further argues, that the offence under Section 460 of IPC, does not become a heinous offence, and, thereafter, argues that the instant criminal revision petition be allowed, and, the concurrent dis-affirmative verdicts, as made, upon the petitioner’s application be quashed, and, set aside.

Quite significantly, the Bench then enunciates in para 10 that:
However, the above made argument would hold immense vigor, and, would become validated by this Court, only when the factual matrix or the prosecution case, as, alleged against the petitioner, evidently does pointedly rather fall within the ambit of the apposite incrimination, and, it necessitating the imposition of the alternate, to the imposition of sentence of life imprisonment, rather upon, the convict.

However, when the incrimination as drawn against the petitioner, is rather, reflective of his causing the death of the deceased in the course of his committing the offence of lurking house trespass. Therefore, when only in case, the apposite incrimination, as, drawn against the petitioner appertains to a simpliciter commission of an offence of lurking house trespass by night or house-breaking by night, in course whereof, the accused, does not, however voluntarily cause or attempt to cause death or grievous hurt to any person, whereupon(s) alone rather the alternate to the sentence of imprisonment of life, inasmuch as, a sentence of imprisonment even less than 7 years rather would become imposable, upon the convict, otherwise not.

However, when Section 2(33) of the Act makes an offence to be a heinous offence when the imposable punishment, upon the convict is per-emptorily for a term extending upto 7 years or more. In sequel, the argument of the learned counsel for the petitioner would succeed, otherwise not. In discerning the validity of the above argument, and, necessarily for it to galvanize strength, it is to become embedded in the relevant factual/evidentiary strata, thereupon it is necessary to allude to the evidence, which has been, at this stage brought forth by the prosecution, rather against the petitioner.

Most significantly, the Bench then holds in para 11 that:
The evidence as brought forth against the accused, at this stage, is comprised in the electronic evidence, as becomes encapsulated in a CCTV footage, revealing therein, the factum of the accused not only committing the simpliciter offence of lurking house trespass by night or house-breaking by night, but also, in course thereof, theirs voluntarily causing or attempting to cause death or grievous hurt to any person. Therefore, when only, and, with respect of a commission of a simpliciter offence of lurking house trespass by night or house-breaking by night rather the imposable punishment, upon the convict, may be less than 7 years, and, may thereupon empower the convicting Court to sentence him to a term which may be even less than 7 year, whereas, contrarily the meaning assigned to a heinous offence, is an offence would rather become a heinous offence, only when the imposable sentence, upon the convict, is per-emptorily statutorily contemplated to necessarily extend upto a term of 7 years or more, and, also thereupon, if so imposable upon the convict, hence the impugned verdicts would become interfered with. However, when the above alluded evidence, as, becomes brought forth, at this stage, by the prosecution against the accused, rather unfolds qua its prima-facie revealing, that the accused had, during the course of committing the offence of lurking house trespass by night or house-breaking by night, theirs also voluntarily causing or attempting to cause death, and, when in respect of the above drawn incrimination against them, rather the convicting Court becomes empowered to per-emptorily impose a sentence of life imprisonment, upon the juvenile in conflict with law. Therefore, when a heinous offence is statutorily described to be one in respect whereof, the per-emptorily imposable punishment, upon the accused/juvenile in conflict with law, is imprisonment upto a term extending upto 7 years. Consequently, when in respect of or qua an offence under Section 460 of IPC, more especially for the reasons (supra), the sentence of imprisonment of life, is per-emptorily prescribed to be imposed, upon the juvenile in conflict with law, term whereof is explicitly beyond 7 years. In sequel, the petition offences are to be construed to be heinous offence, and, the impugned order, and, transfer of the case to the Children’s Court, rather for his being tried as an adult, is required to be sustained.

Furthermore, the Bench then observes in para 12 that:
The learned counsel for the petitioner, has also most vehemently argued that, the impugned orders are legally deficit, inasmuch as, the mandate of the proviso to sub-Section 1 of Section 15 of the Act, has been breached, inasmuch as, the Board concerned, has not taking the assistance of experienced psychologists or psycho-social workers or an expert rather for the making of the statutorily ordained preliminary assessment of the petitioner. But the above argument becomes completely unhinged, as the Board concerned, in paragraph 8 of its verdict, has referred to the relevant assessment.

As a corollary, the Bench then mandates in para 13 that:
There is no merit in the petition, and, the same is hereby dismissed. The impugned orders are maintained, and, upheld.

For clarity, the Bench then adds in para 14 that:
The afore observations are meant only for the disposal of the present petition, and, shall have no bearings, upon the merits of the inquiry, as may become entered into against the petitioner, by the Children’s Court.

Finally, the Bench concludes by holding in para 16 that:
The Registry is directed to forthwith forward a copy of this verdict, to all the Juvenile Justice Boards within the State of Punjab, Haryana, and, also within the Union Territory, Chandigarh.

In conclusion, the Punjab and Haryana High Court has made it quite explicitly clear that under the Juvenile Justice (Care and Protection of Children) Act, 2015, a heinous offence is one where per-emptorily punishment is imprisonment upto 7 years or more. We have already discussed it elaborately. It merits no reiteration that all the Juvenile Justice Boards must definitely comply with it accordingly!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

While not leaving even an iota of doubt, the Punjab and Haryana High Court in an extremely learned, laudable, landmark and latest judgment titled Buta Khan Vs State of Punjab in CRA-S-262-SB-2018 (O&M) that was reserved on August 1 and then finally pronounced on August 26, 2022 has held in no uncertain terms that the sample parcels of alleged contraband that is sent to Forensic Science Laboratory is “case property” and must be produced before Trial Court under FSL seal, after the forensic examination is completed. It merits no reiteration that all the courts must always pay heed and abide by what the Punjab and Haryana High Court has held in this leading case so explicitly. No denying it!

At the outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of Hon’ble Mr Justice Sureshwar Thakur sets the ball rolling by first and foremost putting forth in para 1 that:
The learned Special Judge, Patiala through a verdict drawn on 02.12.2017, upon Sessions Case No.10 of 21.02.2017, made a verdict of conviction, upon, the convict qua charges drawn against him, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the Act”), and, thereafter through a separate sentencing order, drawn on 02.12.2017, proceeded to sentence the convict to rigorous imprisonment extending upto a term of 10 years, and, also imposed, upon him a fine of Rs.1,00,000/-, besides in default of payment of fine, he sentenced the convict to undergo rigorous imprisonment for one year.”

Needless to say, the Bench then states in para 2 that:
The convict becomes aggrieved from the verdict of conviction, and, consequent therewith sentence (supra), as became imposed upon him, by the learned Convicting Court, and, is led to institute there against, the instant appeal before this Court.”

To put things in perspective, the Bench then envisages in para 3 that:
The investigating officer concerned, after apprehending the convict-accused at the crime site, caused recoveries of COREX, besides of LOMOTIL tablets, from the polythene bag lying in a black colour polythene bag, as, held in the right hand of the convict. On counting the recovered bottles make COREX, they were found to be 15, and, each bottle was found to be bearing manufacture date May 2016, and, expiry date October 2017. Moreover on counting the recovered intoxicant strips of LOMOTIL, they were found to be 9 in number, and, each strip was found to be containing, 60 tablets, and, total number thereof was found to be 540 tablets, besides, each strip was found to be bearing the manufacturing date January 2016, and, expiry date June 2018. The above made recoveries were kept in the same polythene bags, wherefroms they were retrieved, and, also at the crime site, the investigating officer concerned, proceeded to prepare cloth parcels of the seizure. The cloth parcel was sealed with seal impression IS.”

In short, the Bench then mentions in para 4 that:
The above recovery was, as unfolded in Ex. PW-2/B hence effected, at the crime site.”

As it turned out, the Bench then specifies in para 5 that:
The accused was arrested through memo embodied in Ex.PW-2/D. Through a memo drawn in Ex.PW-2/E, the investigating officer concerned, made a personal search of the convict, and, resultantly the recoveries as detailed therein became effected. Subsequently, the investigating officer concerned, caused production of the seizure, as made, at the crime site, before the SHO of the police station concerned, and, through a memo drawn in Ex.PW-2/F, and, in Ex.PW-2/G, at the police station concerned, the SHO after properly checking the case property attested the same with his seal impression bearing superscription GS. The FIR bearing No.62 of 01.09.2016 was registered at the police station concerned, after a ruqa being sent there from the crime site through a police official, by the investigating officer concerned.”

While continuing in the same vein, the Bench then observes in para 8 that, “Since a perusal of Ex.PW-2/B reveals that, the recovery of the seizure was made from the polythene bag held, by the convict, at the relevant time, in his right hand. Resultantly when the recovery was made obviously not from any of the pockets of the trouser(s) or of the shirt or from pockets of the over clothes, if any, worn, at the relevant time, by the convict, and/nor, became effected, upon, the contraband being tethered onto the body of the convict. Therefore, when only in the latter events, there was a dire statutory necessity qua prior to the making of a personal search of the convict rather by the investigating officer concerned, qua the convicts’ apposite written consent within the ambit of Section 50 of the Act, hence being obtained by the investigating officer concerned. In sequel when given the effectuation of recovery from the polythene bag held, rather by the convict in his right hand, thereupon, the afore recovery, did save the application thereon, qua the mandate of Section 50 of the Act.”

Furthermore, the Bench then discloses in para 9 that:
Though, at the crime site, and, as unfolded by the recovery memo to which Ex.PW-2/B is assigned, the seizure was enclosed in a cloth parcel, and, thereons seal impression IS was embossed, and, also though subsequently at the police station concerned, the SHO concerned, as unveiled by Ex.PW-2/F, and, by Ex.PW-2/G, hence made on the sample cloth parcels seal impression GS, but since the case property became subsequently produced before the learned Magistrate concerned, for enabling him to prepare an apposite inventory, and, when there, as unfolded by Ex.PW-2/N, the bulk parcels were embossed with seal impression HS, and, the remaining sample parcels became also, after becoming enclosed in cloth parcels, rather embossed with seal impressions HS. Consequently, the seal impressions, as carried on the bulk as well as on the sample cloth parcels concerned, were required to remain in an untampered condition, from the phase commencing from the preparation of Ex.PW-2/B, upto their production in Court. The evidence in respect of the case property, remaining untampered, and, that too uninterruptedly from the drawing of Ex.PW-2/B, upto production thereof in Court, became comprised in qua each of the cloth parcels concerned, in contemporaneity, to their respective production (s) in Court, rather unveiling qua each carrying seal impression HS.”

Moving on, the Bench then reveals in para 10 that:
However, the sample parcels are revealed in Ex.PW-2/L, to become sent through HC Ravinder Kumar, to the FSL concerned, and, therein it is also echoed, that each of the sample parcels became embossed with seal impression HS.”

What’s more, the Bench then notes in para 11 that:
The report of the FSL concerned, which has been ad-verbatim reproduced hereinabove, though reveals that, at the time of the sample cloth parcels becoming received in the FSL concerned, rather the sample cloth parcels carrying seal impression HS, but subsequently after the retrievals therefrom qua the stuff inside each, and, whereafter the apposite stuff, upon, becoming analysed, and, examined, it become opined, that it contains the prohibited substance, but significantly the Chemical Analyst concerned, did not yet proceed to re-enclose the examined stuff, into the cloth parcels nor did he proceeded to emboss thereon, rather the seal impression of the FSL concerned. The result of the above omission, does cause the inevitable effect, that the prosecution has been unable to link the opinion of the FSL, as carried in PW-2/N, with the bulk parcels, which however never became sent for analysis to the FSL concerned. The further consequence thereof, is obviously that the bulk parcels concerned, cannot be concluded to be also containing the prohibited substance.”

It cannot be glossed over that the Bench then discloses in para 12 that:
The above infirmity was curable through the Public Prosecutor concerned, casting an appropriate motion before the learned Special Judge concerned, that yet samples being drawn from the bulk preserved in the police malkhana concerned, and, theirs through a validly drawn certificate, rather being sent, to the FSL concerned. However, the Public Prosecutor concerned, never cast the above motion before the learned Special Judge concerned, and, the above omission, begets a sequel, that the prosecution for proving the charge against the accused depended, only upon Ex.PW-2/N, which however for reasons (supra), does not link the opinion made therein rather with the bulk parcel(s).”

Adding more to it, the Bench then hastens to add in para 13 that:
An additional fortification to the above inference, becomes garnered from the factum that, not only the bulk parcels were required to be produced in Court, but also the sample cloth parcels, as sent to the FSL concerned, under a validly drawn road certificate, were also necessarily required to be produced in Court, to ensure that, not only upto the transmission of the sample cloth parcels to the FSL concerned, the thereon made seals impression, remained untampered with or remained intact, but also necessarily required that, after examination of the stuff inside the cloth parcels, the Chemical Analyst concerned, not only re-enclosing the stuff examined inside the cloth parcels, but also embossing thereon, the seal impressions of the FSL concerned. However, as above stated, the above did not happen, and, nor did the Public Prosecutor concerned, despite the above infirmity, cast any motion for the requisite purpose before the learned Special Judge concerned, with the resultant ill-sequel, that the infirmity (supra), hence percolating the report of the FSL rather remaining alive.”

Be it noted, the Bench then clearly states in para 14 that:
The above narrated necessities are not merely perfunctory nor are mechanical, rather work towards unflinchingly proving the charge drawn against the accused. The charge would become efficaciously proven, only when the stuff inside the cloth parcels, is opined to be the apposite prohibited substance, which though however, is revealed in Ex.PW-2/N, but yet the FSL concerned, was to re-enclose the stuff examined inside the cloth parcels concerned, and, was to also emboss thereon, the seals of the FSL, as, then the cloth parcels would become retrieved to the police malkhana concerned, for thereafter theirs becoming produced before the learned Special Judge concerned, which again never happened.”

Notably, the Bench then points out in para 15 that:
The sample cloth parcels whereon an adverse opinion, becomes drawn against the convict, by the FSL concerned, can never become the property of the FSL concerned, “but is case property” and, is obviously required to be returned, by the FSL concerned, to the police malkhana concerned, for thereafter its becoming produced in Court, as, only upon its production in Court the factum of its provenly becoming linked with the road certificate, and, also its apposite link, with the report of the FSL, would become established, and, rather only when after examination of the stuff inside cloth parcels, the same, became re-enclosed in them, and, thereafter the seals’ of the FSL become also embossed, hence, on each of the sample cloth parcels.

Reiteratedly the above has not happened, and, as above stated despite the sample cloth parcels comprising the case property, they became unlawfully retained, at the FSL concerned. Even otherwise, the incriminatory opinion of the FSL concerned, is required to be corroborated, by the production of the apposite sample cloth parcels, as, sent to it, rather before the learned trial Judge concerned, as the primary evidence for relying, upon the report of the FSL concerned, is the stuff inside the sample cloth parcels concerned. The reason being that alike, the report of a Handwriting Expert concerned, which becomes bedrocked, upon the apposite documents sent to it for comparison, and, as such, the writings concerned, becoming necessarily to become appended with the report, as they are rather the best primary evidence for supporting the report of the FSL concerned, also rather, the stuff inside the sample cloth parcels, is the apposite primary evidence to not only prove the charge, but also for corroborating the incriminatory opinion, as made thereon, by the Chemical Analyst concerned, therefore, the primary evidence (supra), is required to be produced in Court, and, also is required to be proven to be then in an untampered condition.”

Most forthrightly, the Bench then mandates in para 16 that:
Even otherwise, the above necessity of the above legally enjoined acts, becoming performed by the Chemical Analyst working, at the FSL concerned, does apart from reasons (supra), also facilitate the convict, to ask for apposite re-examinations from the FSL concerned, but that would happen only when the sample cloth parcels are produced in Court.

The facilitation to the accused to ask for re-examination of the stuff inside sample cloth parcels, rather by the FSL concerned, whereons an adverse opinion is earlier made by the Chemical Analyst concerned, does necessarily ensue to the accused, as the report of the FSL concerned, has only a presumption of truth, and, obviously its opinion, does not enjoy any conclusivity in law. Therefore, for facilitating the accused, to rebut the opinion of the FSL concerned, rather the production of the sample cloth parcels, in Court after there retrieval from the police malkhana concerned, is, of utmost significance.

However, neither the above defence has been purveyed to the accused nor obviously any opportunity has been given to the accused, to rebut the presumption of truth, enjoined by the report of the FSL concerned, to which Ex.PW-2/N is assigned, and, all the above hindrances to the accused hence for his efficaciously propagating his defence, have made their emergence, only because the FSL concerned, has not returned the sample cloth parcels to the FSL concerned, and, nor obviously the sample cloth parcels, as, became sent to it, never became produced in Court. Resultantly, on the above ground also, the adverse opinion, as made on the stuff inside the sample cloth parcels concerned, cannot become the plank for concluding that, the presumption of truth, if any, as attached to it, being linked either to the bulk, and/or, it carrying any legal efficacy, given apparently the stuff inside, the sample cloth parcels concerned, becoming probably destroyed, and/or, not being preserved.”

Quite analytically, the Bench then observes in para 17 that:
Be that as it may, though, during the course of the examination-in-chief of PW-2, the bulk parcels became shown to him, and, though he identified them to be the ones in respect whereof, an inventory became prepared, by the learned Judicial Magistrate concerned, and, though also he did make echoings, in his examination-in-chief, that the bulk parcels remained untampered with, but the above made deposition of PW-2, and, which became corroborated by PW-5, does not yet link the opinion of the FSL concerned, to the bulk parcels, as became produced in Court.

The reason being that the bulk parcels remained in the malkhana concerned, and, even despite the above infirmity existing in the report of the FSL concerned, and, even despite the sample cloth parcels becoming never returned to the FSL concerned, conspicuously the Public Prosecutor never asking the leave of the Court qua the bulk cloth parcels, being sent to the FSL concerned, rather for the stuff inside them becoming examined. Therefore, for want of the above, no conclusion can be formed, that the stuff inside the bulk cloth parcels also contained the prohibited substance(s).”

Most significantly, the Bench then underscores in para 18 holding that:
From the above, the following principles emerge:

1. The bulk as well as the sample cloth parcels concerned, are case property, and, both are amenable for orders with respect to their destruction or confiscation to the State, as the case may be, being rendered only by the jurisdictionally empowered Court, and, that too upon the completest termination of the trial, as becomes entered into by the jurisdictionally empowered Court(s). Dominion over the bulk parcels, and, or over the sample cloth parcels can neither be assumed by the SHO of the police station concerned, and, nor can be assumed by the Chemical Analyst working at the FSL concerned.
    
2. The production in Court of the bulk as well as of the sample cloth parcels, as, sent to the FSL concerned, is of utmost importance, as the opinion made by the FSL concerned, on the stuff inside the cloth parcels concerned, would link it with the bulk parcels, yet only upon production of the sample cloth parcels, before the learned trial Judge concerned, as the examined stuff inside the sample cloth parcels, is the primary evidence to prove the charge, and, to also corroborate the opinion of the FSL.
    
3. The report of the FSL concerned, has a rebuttable presumption of truth, and, the accused for availing the right to rebut the presumption of truth attached to the opinion of the FSL concerned, can ask for re-examination by the FSL concerned, of the stuff inside the cloth sample parcels concerned, and, that would occur only when the sample cloth parcels are produced in Court, otherwise not.
    
4. The stuff inside the cloth sample parcels, is the primary evidence, and, report of the FSL concerned, as made in respect thereof is secondary evidence, and, unless primary evidence is adduced before the Court, the secondary evidence does not acquire any probative vigor or any evidentiary worth.”

As a corollary, the Bench then enjoins in para 19 that:
The result of the above discussion is that, the impugned verdict suffers from a gross infirmity, of gross misappraisal of the above, and, requires its being annulled, and, set aside.”

Most remarkably, the Bench then directs in para 20 that:
In consequence, there is merit in the instant appeal, and, the same is allowed. The impugned verdict, as, drawn, upon the convict, by learned Special Judge concerned, is quashed, and, set aside. The personal, and, surety bonds of the convict are directed to be forthwith cancelled, and, discharged. The convict if in custody, and, if not required in any other case, is directed to be forthwith released from prison. Release warrants be accordingly prepared. Fine amount, if any, deposited by the accused be forthwith refunded to him, but in accordance with law. Records of the Court below, be sent down forthwith. Case property, if not required, be dealt with, and, destroyed after the expiry of the period of limitation.”

Finally, the Bench then concludes by holding in para 21 that:
Pending miscellaneous application(s), if any, stand(s), disposed of.”

In essence, the Punjab and Haryana High Court has made it indubitably clear that under the NDPS Act, the sample parcels sent to FSL necessarily required to be sealed and produced in court after forensic examination is completed. Of course, this must be strictly implemented always in cases under the NDPS Act. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.

While making the right, rational and remarkable move, the Allahabad High Court has in an extremely laudable, landmark, learned and latest judgment titled Rajnish vs State of UP in Criminal Misc. Bail Application No. – 20805 of 2022 pronounced as recently as on August 6, 2022 granted bail to a murder accused who spent more than 11 years in jail as he could not get access to legal aid to move his bail application before the Court.

It is a national shame that Allahabad High Court which is the biggest High Court in the whole world has just one High Court Bench and that too just about 200 km away from Allahabad at Lucknow created way back by Pandit Jawaharlal Nehru in 1948 and nowhere else has a Bench been created since then even though Justice Jaswant Singh Commission headed by former Supreme Court Judge Justice Jaswant Singh appointed by former PM Mrs Indira Gandhi way back in mid 1970s had very strongly recommended three High Court Benches for undivided UP yet not even one was not created due to which 10 crore people of 30 districts of West UP are compelled to travel more than 800 km on an average all the way foolishly till Allahabad as no Bench created even though a Bench was recommended to be created at Agra!

What is worst is that the 230th Law Commission of India also in 2009 recommended for more High Court Benches for different states yet only one state named Karnataka gained where 2 High Court Benches were created for just 4 and 8 districts at Dharwad and Gulbarga respectively way back in 2013! Even former Union Law Minister Kapil Sibal had recommended a High Court Bench at Meerut while he was Union Law Minister yet not a single created! Even Yogi Adityanath who is CM had brought a private member bill in 2015 in Parliament and even in 1998 had raised it in Parliament for Bench at Gorakhpur yet not a single created till now!

Even former PM Atal Bihari Vajpayee as Leader of Opposition demanded Bench in West UP at Meerut in 1986 yet none created till now! It cannot be lightly dismissed that none other than the former CJI Ranjan Gogoi while in office as CJI had categorically appreciated the dire need of a High Court Bench in West UP when a woman lawyer named KL Chitra raised this burning issue in her PIL pointing out how litigants had to travel a night and half day all the way to Allahabad which is 200 km away from Lucknow and about 750 to 800 km from West UP but ex CJI Gogoi made it clear as CJI that it was only for the Centre to take the final call on this as it has the sole power to do so! But Centre is doing just nothing on it but let us still hope it will act in coming days!

Anyway, coming back to the case in hand, at the very outset, the ball is set rolling by first and foremost putting forth in opening para of this notable judgment that:
By means of this bail application, the applicant has prayed to be enlarged on bail in Case Crime No. 556 of 2011 at Police Station Chaubepur District Varanasi under Sections 147, 148, 149, 302, 201, 120B, 34 I.P.C. The applicant is in jail since 26.04.2011.”

As we see, the Bench then states in the next para that:
The bail application of the applicant was rejected by learned Sessions Judge, Varanasi, on 19.04.2022.”

To put things in perspective, the Bench then envisages in the next para of this concise judgment that:
Shri Ashish Kumar Singh, learned counsel for the applicant contends that the applicant has been falsely implicated in the instant case. The applicant is the brother-in-law of the deceased. The applicant did not torture the deceased not did he demand dowry. In fact he never interfered the marital life of the deceased and her husband. The applicant was nominated only out of malafides. Prosecution evidence does not connect the applicant with the offence. Learned counsel for the applicant contends that the applicant does not have any criminal history apart from the instant case.”

Furthermore, the Bench then states in the next para that:
Shri Ashish Kumar Singh, learned counsel for the applicant further contends that the applicant is in jail since 26.04.2011 i.e. more than 11 years. Inordinate delay in concluding trial had lead to virtually an indefinite imprisonment of the applicant without the prosecution evidence connecting the applicant to the offence. The right of the applicant to speedy trial has been violated. The applicant has always cooperated with the investigation proceedings and has joined the trial as a law abiding citizen.”

Most forthrightly, the Bench then minces no words to hold in the next para of this laudable judgment that:
This is the first bail application which has been moved by the applicant before this Court. The applicant belongs to the bottom heap of humanity and unfortunately forgotten class of citizens. He did not have the resources to engage a counsel nor was he given to access to legal aid for these long years. Constitutional promise of securing justice has been denied to him.”

Most remarkably, the Bench then also minces no words to hold upfront in the next para of this laudable judgment that:
This appears to be a systemic failure. The Court will observer no further. However, it is for all instruments of governance, the trial courts, the police authorities, the legal services authorities to introspect and bring about necessary systemic corrections with the conviction that such a state of affairs will not be repeated. Never again. The District Legal Services Authorities in the State of Uttar Pradesh shall draw up a list of prisoners who are incarcerated for long period and examine whether they have not been able to move bail applications due to penury and lack of access to legal aid. Corrective measures should accordingly be taken. Legal aid workshop should be conducted in every jail in the State of Uttar Pradesh to ensure that such grievances are promptly redressed.”

Going forward, the Bench then holds in the next para that:
Learned AGA for the State could not satisfactorily dispute the aforesaid submissions. I see merit in the submissions of learned counsel for the applicant and accordingly hold that the applicant is entitled to be enlarged on bail. In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.”

What’s more, the Bench then directs in the next para of this brilliant judgment that:
Let the applicant- Rajnish be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below.

The following conditions be imposed in the interest of justice:

1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not influence any witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

Finally, the Bench then concludes by holding in the last para of this noteworthy judgment that:
In case any averment made in the bail application or the submissions during the course of argument are found to be false or in case of breach of any of the above condition, the State/prosecution may move an application for cancellation of bail application.”

In sum, it must be said that in all fairness, the Single Judge Bench of Hon’ble Mr Justice Ajay Bhanot of Allahabad High Court has taken a very cool, calibrated and courageous move in granting bail to a murder accused who spent 11 years in jail for want of legal aid. Justice Bhanot was gracious enough to concede that the constitutional promise was denied to the accused due to which he had to spend 11 years in jail as he could not get any legal aid which is most astonishing, appalling and must be taken note of by not just the Apex Court but also by the Centre! It is high time and Centre must step in and now and make sure that undertrials get free and quality legal aid and also their case gets tried at the earliest which is possible if more High Court Benches are set up as was recommended by the 230th report of the Law Commission of India. It certainly brooks no more delay anymore now!

Needless to say, this alone explains why the 18th Law Commission in its 230th report submitted in August 2009 by the then Chairman of Law Commission of India – Justice Dr AR Lakshmanan who is a former Supreme Court Judge had explicitly noted that:
In almost every High Court, there is huge pendency of cases and the present strength of the judges can hardly be said to be sufficient to cope with the alarming situation. The institution of cases is much more than the disposal and it adds to arrears of cases. The litigating citizens have a fundamental right of life i.e. a tension-free life through speedy justice-delivery system. Now it has become essential that the present strength of the judges should be increased manifold according to the pendency, present and probable. It is also necessary that the work of the High Courts is decentralized, that is, more Benches are established in all States. If there is manifold increase in the strength of the judges and the staff, all cannot be housed in one campus.

Therefore, the establishment of new Benches is necessary. It is also in the interest of the litigants. The Benches should be so established that a litigant is not required to travel long. It is true that the new establishments will require money, but it is necessary as a development measure, particularly, when efforts are being made for all-round development of the country. Therefore, the money should not be a problem. We have to watch and protect the interest of the litigants. We must always keep in mind that the existence of judges and advocates is because of the litigants and they are there to serve their cause only. Sometimes, some advocates object to creation of new Benches and selection of new sites for construction of new buildings.

But they raise objections in their personal, limited interest. Creation of new Benches is certainly beneficial for the litigants and the lawyers and a beginning has to be made somewhere. A speedy trial is not only required to give quick justice but it is also an integral part of the fundamental right of life, personal liberty, as envisaged in article 21 of the Constitution. Article 39A of the Constitution provides for equal justice and free legal aid. The said article obligates the State to promote justice on a basis of equal opportunity and, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities!”

It is more than 13 years that the Law Commission made this historic recommendation yet ironically only one State – Karnataka has gained from it and the bigger States like UP, Bihar, Rajasthan, Odisha etc have not gained anything as not even a single High Court Bench has been created anywhere! Should not the CJI UU Lalit do something most promptly on this? Maharashtra from where CJI UU Lalit comes has 3 High Court Benches at Aurangabad, Nagpur and Panaji and fourth has been approved at Kolhapur for just 6 districts even though Maharashtra tops in justice index ranking among all States in India and UP which tops in maximum pending cases among all States has just one and another lawless State Bihar has none! This most shocking disparity among different States is most despicable and must be set right at the earliest! Let’s fervently hope that Centre will at least now do something in this regard!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.

In a very significant observation with far reaching consequences, the Punjab and Haryana High Court in an extremely laudable, learned, landmark and latest judgment titled Sagar Kapoor Vs State of Haryana in CRM-M-35393-2022 (O&M) that was reserved on August 31, 2022 and then finally pronounced on September 5, 2022 has observed unequivocally that merely because the parties are engaged and are meeting each other, it doesn’t give any right or liberty to the proposed bridegroom to sexually exploit the fiancée without her consent.

It thus merits no reiteration that those bridegrooms who dare to sexually exploit the fiancée without her consent have to pay the price for their terribly reprehensible act! Most commendably, we see that the Single Judge Bench of Hon’ble Mr. Justice Vivek Puri has minced just no words to unambiguously observe that:
The petitioner cannot get any leverage to physically exploit the fiancée against the consent during the period intervening the engagement and the marriage.” The Court we thus see has been very firm in denying anticipatory bail to a man who had been implicated in a rape case by his fiancée!

At the very outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr. Justice Vivek Puri has set the ball rolling by first and foremost putting forth in para 1 that:
The petitioner is seeking anticipatory bail in the case bearing FIR No. 0552, dated 23.07.2022, under Section 376 of the Indian Penal Code (for short IPC), registered at Police Station Civil Lines Karnal, District Karnal.”

To put things in perspective, the Bench then envisages in the next para of this learned judgment that:
Briefly, the FIR has been registered on the allegations that roka ceremony of the petitioner was held on 30.01.2022 with the petitioner and the date of marriage was fixed as 06.12.2022 with the consent of the family. On 21.02.2022, the petitioner met the prosecutrix and asked her to form physical relationship, but she refused to do so. The petitioner again met her on 27.05.2022 in Delhi and again insisted for physical relationship. On 18.06.2022, the prosecutrix was taken by the petitioner to Leela Grand Hotel, Karnal, on the pretext that he was tired and wants to take rest. The prosecutrix was taken to a room and petitioner asked her for physical relations, but she refused to do so. Despite that the petitioner entered into physical relationship with the prosecutrix and also made her videos. Subsequently, on 17.07.2022, the mother of the petitioner informed the mother-in-law of the sister of the prosecutrix that the petitioner is quarrelling for the last two months at home as he does not want to solemnize marriage with the prosecutrix.”

On the one hand, while dwelling on the petitioner’s version, the Bench then points out in the next para of this judgment that:
Learned senior counsel for the petitioner contends that there is no dispute with regard to the fact that the petitioner was engaged with the prosecutrix and the date of marriage was fixed as 06.12.2022. Furthermore, the necessary bookings for the marriage ceremonies were done by the petitioner and his family. The family of the petitioner came to know that the prosecutrix was having love affairs with other male friends and accordingly, marriage was called off on 02.07.2022.

Subsequent to the engagement, the petitioner and the prosecutrix had voluntarily visited the hotel and their names have been reflected as guest in the records of the hotel. The physical relations were developed with the consent of the prosecutrix. Even subsequent to the occurrence, the whatsapp messages were exchanged which indicate that it was a consensual relationship. By placing reliance upon a decision of Hon’ble Supreme Court rendered in Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108, it has been argued that the relationship was consensual in nature, but the marriage could not fructify and consequently, no case under Section 376 IPC is made out.”

On the other hand, the Bench then discloses in the next para of this notable judgment that:
Learned State counsel and the learned counsel for the complainant have opposed the bail application on the score that serious allegations of commission of rape have been leveled against the petitioner despite the refusal on the part of the prosecutrix. The petitioner had also prepared the video while indulging in physical relationship. Subsequent chats between the petitioner and the brother-in-law of the prosecutrix are indicative of the fact that the petitioner is not disputing the fact of entering into physical relationship and preparing the video. Furthermore, the audio recordings have also been presented by the complainant party to the investigating agency and the voice sample of the petitioner is required for proper investigation of the case. Even in her statement under Section 164 of the Code of Criminal Procedure, the prosecutrix has reiterated her allegations.”

Most significantly, the Bench then minces no words in the next para to lay down what constitutes the cornerstone of this robust judgment wherein it is held explicitly, elegantly and effectively that:
There is no dispute between the parties to the effect that the petitioner was engaged with the prosecutrix and the date of marriage was fixed for 06.12.2022. The petitioner has sought to put forth a case to the effect that the marriage was called off on 02.07.2022 as his family had discovered that the prosecutrix was having love affair with other male friends. As per the version of the prosecution, on 18.06.2022, the petitioner took the prosecutrix to a hotel, where physical relations were developed despite her refusal. Even at earlier instance also, the petitioner had been insisting for such relationship, but the prosecutrix had been refusing to do so. It is a categoric case of the prosecution that there was refusal on the part of the prosecutrix and despite that the petitioner entered into sexual relationship. The whatsapp messages sought to be relied upon by the petitioner are subsequent to the occurrence. There is lack of material to indicate that as on 18.06.2022, the prosecutrix had consented for any such relationship. The whatsapp chat at a subsequent stage may have been exchanged on the score that the matrimonial alliance was existing at that point of time. However, it does not indicate that the act was committed by the petitioner with the consent of the prosecutrix. It is not borne out that at any point of time, the prosecutrix has voluntarily consented for the sexual intercourse and it is a case of consensual relationship. In the event, the parties were engaged and were meeting each other, it cannot give any right or liberty to the proposed bridegroom to sexually exploit the fiancée without her consent. The petitioner cannot get any leverage to physically exploit the fiancée against the consent during the period intervening the engagement and the marriage. The version in the FIR is also indicative of the fact that as per information derived from the mother of the petitioner, there was reluctance on the part of the petitioner to solemnize marriage even at the point of time when physical relationship was developed. There is lack of material to indicate that there was genuine intention on the part of the petitioner to solemnize marriage and the prosecutrix was the consenting party at the relevant time. In the peculiar circumstances of the case, it is not made out that it was a case of consensual relationship.”

Most forthrightly, the Bench then hastens to add in the next para of this remarkable judgment that:
The ratio of the decision rendered in Maheshwar Tigga (supra) is distinguishable from the facts of the case. In the aforesaid case, the Hon’ble Supreme Court was dealing with an appeal against conviction. Though the parties were engaged, but the marriage could not be fructify because they were from difference religious beliefs. The engagement ceremony was held in the solemn belief that the societal obstacles would be overcome, but unfortunately the differences arose as to whether the marriage was to be solemnized in the church or in a temple and ultimately failed. It was held that the prosecutrix was conscious of the obstacles and she continued to establish physical relationship. In the said case, there was initial consent on the part of the prosecutrix to enter into physical relationship, but the marriage could not fructify on account of different religious beliefs. Besides there was delay of about four years in lodging of the FIR and certain circumstances were not put to the accused in his statement under Section 313 Cr.P.C. and were excluded from consideration. However, in the instant case, there is a categoric statement of the prosecutrix that the petitioner entered into physical relationship with her, despite her reluctance, refusal and denial. The passive submission on the part of the prosecutrix to the act, cannot be construed as a circumstance to hold that it was a case of consensual relationship.”

Finally, the Bench then concludes by directing in the last para of this noteworthy judgment that:
In these set of circumstances and keeping in view the gravity of the allegations, no extra ordinary circumstances are made out to grant the pre-arrest bail to the petitioner. Present petition is, accordingly, dismissed.”

In essence, the Punjab and Haryana High Court has thus taken a very forthright, frank and firm stand that the bridegroom has no right to exploit fiancée sexually against her consent during the period intervening engagement and marriage. Those who dare to exploit fiancée as we see in this latest case will have to pay dearly for it and cool their heels in jail for which no one but they themselves would be responsible for it! At the cost of repetition, it must be said forthrightly that the Single Judge Bench of Hon’ble Mr Justice Vivek Puri has thus very rightly refused to grant bail to the petitioner for the reasons as discussed hereinabove. No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.