The case of fateful demise of young celebrity actor Sushant Singh Rajput’s generated a lot speculation in the last few days among the public and media. Emotions were high demanding non-partisan inquiry into his sudden death. Initially, the Mumbai Police started investigating the case in terms of section 174 of CrPC without formal registration of a FIR. Successively, Bihar Police registered a FIR on the basis of complaint of father of deceased Sushant Singh Rajput under various serious sections of IPC, 1860 as against actor Rhea Chakorbarty and Ors. In due course, Mumbai Police and Bihar Police were at loggerheads over the Investigation of the case. Both sides, the accused and victim were fearing no justice, leading to a lawsuit in Supreme Court.
Finally, the Supreme Court on 19.08.2020 gave a judgment in Rhea Chakraborty vs State of Bihar and Ors paving a way for Central Bureau of Investigation to investigate the case putting an end to all kind of murmur. The case was filed by Rhea Chakraborty under section 406 of CrPC seeking transfer of case registered by Bihar Police to Mumbai Police. Section 406 of Code of Criminal Procedure deals with power of Supreme Court to transfer cases and appeals from on State to another State, to secure the ends of justice. Additionally, Supreme Court Rules 2013 empowers a Single Judge of Supreme Court to deal with cases of transfers.
Rhea Chakraborty argued that she has been falsely implicated by the Bihar Police, that the incidents alleged have been taken place entirely in the jurisdiction of State of Maharashtra, therefore the jurisdiction lies only with the Mumbai Police and not with Bihar Police. And since the Bihar Police lacked the jurisdiction to register and investigate a case hence transfer of investigation to CBI on Bihar Govt’s consent would not amount to a lawful consent under section 6 of Delhi Special Police Establishment Act, 1946. To explain briefly, section 6 of DSPE Act mandates consent of State Government to enable any exercise of power by member of DSPE in an area of that State Govt. Interestingly, petitioner also made a prayer for an exercise of power under Article 142 of Constitution of India. Article 142 of Constitution of India gives power to Supreme Court to pass any order or direction for doing a complete justice in the matter, which is often termed as one of the most important tools of Supreme Court.
The stand of the Bihar Government was that upon disclosure of a cognizable offence, it is mandatory on the police to register an FIR and investigate the case. Since the allegation of criminal breach of trust, cheating and defalcation of money from account of deceased was alleged, the Bihar Police is well within its jurisdiction to register a case. Also, since no FIR was registered by Mumbai Police, the action of Bihar Police in registration of FIR and consequent consent for entrustment of investigation to CBI satisfies the requirement of Section 6 of DSPE Act. Uniformly, it was urged by the father of Sushant Singh Rajput that since only an investigation (not a case or appeal) is pending at Patna, and a legally competent investigation has commenced, invocation of Section 406 power by this Court to transfer the investigation, is projected to be not merited.
The State of Maharashtra asserted that the Mumbai Police is seized of investigation and already examined around 56 persons and if it discloses commission of cognizable offence, the FIR will be registered and that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction, the offence was committed. That further crime investigation cannot be routinely transferred to the Central Agency. The Union of India being also a party submitted that in the absence of any FIR by the Mumbai Police following the death of the actor on 14.06.2020, the FIR registered at Patna at the instance of the deceased’s father is projected to be the only one pending. Hence, the matter does not relate to two cases pending in two different states. Referring to the contradictory stand and the parallel allegation of state’s Police being influenced by external factors in both states, Union prayed that this itself justifies entrustment of the investigation to an independent Central Agency.
Answering these contentions, the Supreme Court framed four important questions of law. Coming to the first question of law ‘whether under section 406 of CrPC a mere ‘investigation’ can be transferred’. Relying on a previous judgment rendered by J. Krishna Iyer of Supreme Court in Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu, (1978) 2 SCC 35, it has been held that only cases and appeals (not investigation) can be transferred under section 406 of CrPC. A mere investigation done by a Police Station cannot be transferred to another part of the Country.
Secondly, whether the proceeding under Section 174 CrPC conducted by the Mumbai Police to inquire into the unnatural death, can be termed as an ‘investigation’. Supreme Court held that “the proceeding under Section 174 CrPC is limited to the inquiry carried out by the police to find out the apparent cause of unnatural death. In the present case, the Mumbai Police has attempted to stretch the purview of Section 174 without drawing up any FIR and therefore, as it appears, no investigation pursuant to commission of a cognizable offence is being carried out by the Mumbai police. They are yet to register a FIR. Nor they have made a suitable determination, in terms of Section 175(2) CrPC. Therefore, it is pre-emptive and premature to hold that a parallel investigation is being carried out by the Mumbai Police. Following the above, it is declared that the inquiry conducted under Section 174 CrPC by the Mumbai police is limited for a definite purpose but is not an investigation of a crime under Section 157 of the CrPC.” To base this finding, the Learned Single Judge had relied on a judgment titled Manoj K Sharma vs. State of Chhatisgarh (2016) 9 SCC 1.”
Thirdly, “whether it was within the jurisdiction of the Patna Police to register the FIR and commence investigation of the alleged incidents which took place in Mumbai? As a corollary, what is the status of the investigation by the CBI on the consent given by the Bihar government”. Answering this, it has been held that ‘registration of FIR is mandated when information on cognizable offence is received by the police. Precedents suggest that at the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case. Moreover, the allegation relating to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna (where the Complainant resides), could prima facie indicate the lawful jurisdiction of the Patna police. Hence they were not required to transfer the investigation to Mumbai Police. For the same reason, the Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI is held to be lawful’. While answering this query, it has been also held that though the Patna police although found to be competent to investigate the allegation in the Complaint, the FIR suggests that most of the transactions/ incidents alleged in the Complaint occurred within the territorial jurisdiction of the State of Maharashtra indicating that the Mumbai police also possess the jurisdiction to undertake investigation on those circumstances. Therefore, in the event of a case being registered also at Mumbai, the consent for the investigation by the CBI under Section 6 of the DSPE Act can be competently given by Maharashtra Government. Hence, this needs to be determined.
Lastly, “What is the scope of the power of a single judge exercising jurisdiction under section 406 of the CrPC and whether this Court can issue direction for doing complete justice, in exercise of plenary power”. Explaining this, it has been held while the CBI cannot conduct any investigation without the consent of the concerned state as mandated under section 6, the powers of the Constitutional Courts are not fettered by the statutory restriction of the DSPE Act and Supreme Court can pass appropriate directions by resorting to Article 142. Relying on the judgment rendered in Monica Kumar (Dr.) and Anr. Vs. State of Uttar Pradesh and Others (2008) 8 SCC 781 on Article 142 of Constitution of India which stated that-
“Under Article 142 of the Constitution this Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any “cause” or “matter” pending before it. The expression “cause” or “matter” would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal.
This Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality……’’
Hon’ble Justice Hrishikesh Roy held that the “above ratio makes it amply clear that the Supreme Court in a deserving case, can invoke Article 142 powers to render justice. In such backdrop, to ensure public confidence in the investigation and to do complete justice in the matter, this Court considers it appropriate to invoke the powers conferred by Article 142 of the Constitution. As a Court exercising lawful jurisdiction for the assigned roster, no impediment is seen for exercise of plenary power in the present matter. Therefore while according approval for the ongoing CBI investigation, if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.”.
Hence, it becomes clear from a reading of the judgment that that every query has been methodically answered. It is not a first time that a Single Judge of Supreme Court has exercised powers under Article 142 of Constitution of India. Infact, in Gaurav Jain vs UOI and Ors reported in (1997) 8 SCC 114, the Supreme Court has already held that “a Single Judge of a Supreme Court can invoke Article 142 to issue appropriate orders/ directions to meets the end of justice in a case. However, a point which is being argued post this judgment is that whether sitting in this roster such directions could have been issued, though this point according to me has also been taken care by the Hon’ble Single Judge. While we may continue to argue on various legal issues, the judgment had atleast put a final stamp regarding investigation which seems to be in the interest of both parties for the time being.
Adv. Rahul Bhandari practices at the Supreme Court, Delhi High Court and district courts at Delhi.
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‘District judiciary extremely tight-twisted in granting bail’: MP HC issues guidelines
Observing that the district judiciary is “extremely tight twisted” while granting bail, the Madhya Pradesh High Court in a latest, learned, laudable and landmark judgement titled Zarina Begum vs State of Madhya Pradesh through P.S.E.O.W in M.Cr.C. No. 30933/2020 delivered on 13 May 2021 has issued commendable guidelines to the police authorities and Judicial Magistrates in the state for implementation of guidelines issued in Arnesh Kumar vs State of Bihar & Anr. in Criminal Appeal No. 1277 of 2014 judgement while dealing with the bail applications. It must be mentioned here that in this notable case a single-judge Bench comprising Justice Atul Sreedharan made the significant observation stipulating that, “The hesitancy of the District Judiciary to adhere to the rule of bail and not jail is understandable. There exists a widespread fear amongst judges of the District Judiciary that they may be questioned by the High Court, or complaints may be preferred against them by disgruntled lawyers or litigants whenever they pass orders granting bail which in turn, results in a vigilance enquiry against them.”
While underscoring the importance of independent decision making in District Judiciary, the Bench then also held that, “The importance of having a District Judiciary unfettered and fearless cannot be underscored enough. In a state like Madhya Pradesh with widespread widespread poverty, illiteracy and lack of resources, it is only a free, independent and fearless District Judiciary that can ensure that the end user of the justice system is given justice at the very first level and does not have to move higher up the hierarchy of Courts to get justice.”
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice Atul Sreedharan of Madhya Pradesh High Court sets the ball rolling by first and foremost pointing out in para 1 that, “This application has been preferred by the applicant under section 438 Cr.P.C, in Crime No.95/2020 registered at P.S E.O.W Bhopal, District Bhopal, for offences under sections 420,467,468,471,472,474 read with section 120B of IPC.”
Of course, the Bench then observes in para 2 that, “The investigating agency is the Economic Offences Wing, Bhopal (hereinafter referred to as the “EOW”). The applicant is around 58 years of age and is stated to be suffering from various medical ailments including sleep apnoea.”
To put things in perspective, the Bench then observes in para 3 that, “Briefly, the facts of this case are that one Rabiya Bi, the complainant along with others, registered the FIR against the applicant and other co-accused persons. The property in question is a piece of land admeasuring 93.37 acres situated in Village Singarcholi, Bhopal. The owner was one Faiz Mohammad who died leaving behind seven legal heirs. They are Mohammad Ayub, Mohammad Yakub, Hanifa Sultan, Asma Sultan, Sikandar Khan, Qamar Khan and Anwar Khan. Out of the total area of 93.37 acres, 54 acres was demarcated for residential purpose while the remaining, approximately 39 acres was kept aside for agricultural purpose.”
While elaborating on the facts of the case, the Bench then puts forth in para 4 that, “With the exception of Mohammad Yakub, the remaining six legal heirs of Faiz Mohammad jointly executed a power of attorney dated 17/01/1989 and transferred all their rights in the aforesaid property to the power of attorney holder Mohammad Sharif (the then President of Tilak Grah Nirman Society). Similarly, Mohammad Yakub also executed a power of attorney on 05/08/1989 transferring all his rights in the aforesaid property in favour of power of attorney holder Mohammad Sharif. Thus, Mohammad Sharif became the power of attorney holder for six of the legal heirs by way of power of attorney dated 17/01/1989 and also the power of attorney holder for Mohammad Yakub vide power of attorney dated 05/08/1989. On the basis of the combined power of attorney given by the six legal heirs, Mohammad Sharif sold 34 acres of agricultural land through 12 registered sale deeds, executed in favour of various individuals between 04/02/1989 and 26/06/1989. On the basis of the power of attorney executed by Mohammad Yakub, Mohammad Sharif sold the remaining agricultural land of five acres and 64 decimals to Tilak Grah Nirman Samity vide 11 registered sale deeds and the same was executed between 15/11/1994 and 23/11/1994. Besides the power of attorney mentioned hereinabove, all the 7 legal heirs of Faiz Mohammad executed 7 different power of attorneys in favour Mohammad Sharif between February and March 1990 vesting the rights of remaining the 54 acres of land in favour of Mohammad Sharif, the power of attorney holder.”
To say the least, the Bench then states in para 5 that, “On the strength of the 7 power of attorneys executed between February and March 1990, the remaining land of 54 acres was also sold to Tilak Grah Nirman Samiti by 14 registered sale deeds executed in the year 1997 and Tilak Grah Nirman Samiti further sold the land to 1500 persons.”
As we see, the Bench then discloses in para 6 that, “In the FIR dated 07/02/2020, it has been alleged by the complainants that Mohammad Sharif had executed the power of attorney dated 17/01/1989 without the knowledge of the 6 legal heirs or the ancestor of the complainants and altered the remaining paragraphs of the power of attorney and thereby committed forgery.”
While continuing in the same vein, the Bench then elucidates in para 7 stating that, “In the FIR, it was also alleged that Mohammad Sharif, in connivance with other accused persons, executed various sale deeds in favour of his family members and friends between 04/02/1989 to 26/06/1989. The applicant Zarina Begum was one of the beneficiaries. It is for this alleged offence that was committed thirty-one years ago, that the applicant is sought to be arrested today.”
On similar lines, the Bench then points out in para 8 that, “In a connected case arising from the same FIR, being M.Cr.C No. 26706/2020 (Colonel Bhupendra Singh Kharayat Vs. State of Madhya Pradesh), this court had granted the benefit of bail to the 78 year old retired Colonel who was picked up from his home by the investigating agency for the same offence for which the applicant herein is sought to be apprehended. In that case the Colonel did not even get an opportunity to move either this Court of Sessions Court for an anticipatory bail. While passing that order, this court had elaborately discussed the judgement of the Supreme Court in Joginder Kumar versus State of Uttar Pradesh, a landmark judgement of the Supreme Court striking a balance between the personal liberty of an accused and the safety of the society. However, the order passed by this court in Col Bhupendra Singh Kharayat’s case, though being available to the Ld. Court below it has unfortunately dismissed the application for anticipatory bail moved by the applicant only on the basis that the investigation was still in progress. Not even fleetingly has the learned court below even considered the necessity for a custodial interrogation of the applicant for an offence that was committed more than three decades ago.”
Quite forthrightly, the Bench then minces no words to hold in para 9 that, “Case after case this court has observed that the District Judiciary is extremely tight-fisted when it comes to granting bail. Applications are routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses. Hardly ever does the court below examine the requirement for continued incarceration of the accused as an under trial, but for the routine reasons given above. Resultantly, the High Court suffers a deluge of bail cases and its precious time is lost in deciding bail applications instead of deciding civil and criminal appeals.”
Briefly stated, the Bench then lays bare in para 10 that, “The pressure of the pending bail applications is a major factor preventing this Court to spare time for deciding criminal appeals on account of which, several criminal appeals are withdrawn by the appellants on account of the same being rendered infructuous with the appellant having served the entire sentence during the pendency of the appeal or, in case of life imprisonment, the State offers remission to the appellants who have completed fourteen years or more of their sentence, subject to the withdrawal of the criminal appeal. The chart below shows the number of criminal appeals withdrawn from the High Court in the year 2020.
The above figures have been received from the Registry of the High Court. The huge burden of bail matters that has been shifted to the High Court, is on account of the extremely negative view that is being adopted by the District Judiciary in bail matters for which they can hardly be held responsible on account of perception by the judges of the District Judiciary of professional hardships they may have to face, if they indeed start deciding bail applications applying the principle of “Bail and not Jail”. For a majority of the Judges of the District Judiciary, it is a catchy phrase to be observed in breach rather than in compliance.”
Be it noted, the Bench then observes in para 11 that, “The attention of the District Judiciary must also be drawn to the overcrowding of jails in the State which is also directly associated with the reluctance of the lower courts to grant bail. The inmates occupying these jails are far in excess of the optimum capacity of these jails. A majority of them are undertrials. Even convicts and undertrials are entitled to basic human rights and overcrowded prisons with waning resources, result in the violation of that right. Convicts serving sentence or undertrials awaiting judgment cannot be held in inhuman conditions. The charts below give the figures, which paint a very dismal picture. It is almost as if, basic human rights are not available to undertrials while judgement after judgement laudably mentions that during trial, the presumption is of innocence and not of guilt.
PRISON INMATES AS ON 30 NOVEMBER 2020
S.No Type of Jail Number Undergoing Sentence Undertrials Others Total
1. Central Jails 11 11,182 10,107 96 21,385
2. District Jails 41 2290 13,164 47 15,501
3. Open Jails 06 2 0 0 2
4. Sub-Jails 73 271 7596 3 7870
5. Total 131 13,745 (30.71%) 30,867 (68.96%) 146 (0.33%)
The figures disclose that 68.96% of the prison inmates in the State are undertrial while convicts constitute 30.71%.
OVER-CROWDING OF PRISONS AS ON 30 NOVEMBER 2020
S.No Type of Jail Number Prison Capacity Number of Prisoners Excess Percentage of Overcrowding
1. Central Jails 11 14,060 21,385 7325 52.10%
2. District Jails 41 9485 15,501 6016 63.43%
3. Open Jails 06 94 2 -92
4. SubJails 73 5020 7870 2850 56.77%
5. Total 131 28,659 44,758 16,099 56.17%
The chart above reveals that the total overcrowding in the four categories of jails in the State is 56.17%. Even convicts and under trails are entitled to basic human rights and if the figures are anything to go by, their condition as on date is no better than livestock, herded together for lack of infrastructure and a “not so sensitive” judicial system.”
Quite remarkably, the Bench then waxes eloquent to hold in para 12 that, “The “grundnorm” of bail jurisprudence i.e., “bail and not jail” [State of Rajasthan Vs. Balchand – (1977) 4 SCC 308] appears to have been forgotten. Bail should not be denied by the District Judiciary only for the purpose of ingratiating the raucous blood lust of a society existing on social media, or to pander to public perception. The courts must remember that the presumption is always of innocence and that the denial of bail must be for exceptional reasons, justifiable on the facts and circumstances of the case before it.”
It would be worthwhile to mention here that the Bench then quite aptly states in para 13 that, “This Court feels it essential to refer to the judgement of the Supreme Court in Joginder Kumar’s case where the Supreme Court has extensively discussed the power of the police to affect an arrest. The Supreme Court refers to the third National Police Commission report and extracts therefrom “In India, Third Report of the National Police Commission at p. 32 also suggested: “An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances: (i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims. (ii) The accused is likely to abscond and evade the processes of law. (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ….” (Joginder Kumar v. State of U.P., (1994) 4 SCC 260, Paragraph 20). After reproducing the above from the NPC report, the Supreme Court holds “The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do” (Joginder Kumar v. State of U.P., (1994) 4 SCC 260, Paragraph 20.).”
In context of this case which we are discussing, it would be instructive to mention here that the Bench then makes it clear in para 14 that, “In recent times, if there has been a judgement of the Supreme Court which passionately desired the protection of the individual’s liberty from arbitrary arrest, it is Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, the Supreme Court scathingly indicted the police for still bearing a colonial mindset and disdain for the liberty of the citizen. The Supreme Court referred to the power of arrest as a “tool of harassment”. In paragraph 5 the Supreme Court observed “Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive”. The Supreme Court went on to hold that a person accused of an offence punishable with imprisonment up to seven years, cannot be arrested by the police on mere prima facie satisfaction of the person having committed such an offence and thereafter, adverting to s. 41 (1) (b) (ii) clause a to e, laid down the requirement under the law in the following words.
“7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by subclauses (a) to (e) of clause (1) of Section 41 CrPC.” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraphs 7.1 to 7.3 at page 278 to 279.).
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The Supreme Court, in paragraph 7.3 has reiterated the spirit of Joginder Kumar Vs. State of Uttar Pradesh, when it says that the police officer before effecting an arrest must question himself with regard to the necessity of arrest and the objective such an arrest seeks to fulfil. In Joginder Kumar, the Supreme Court opined that “The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so”. Having thus illumined the legal position on the power of the police to arrest without a warrant in cases punishable with imprisonment up to seven years, the Supreme Court went on to lay down the duty of the Magistrate, to ascertain the necessity for further incarceration of the accused as an undertrial, in the following words.
“8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 CrPC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.
8.2. Before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused.
8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraphs 8.1 to 8.4 at page 279 to 280).”
Going ahead, the Bench then postulates in para 15 that, “After imposing the checks on the power of the police to arrest, the Supreme Court, in paragraphs 8.1 to 8.4, diverts its attention to the duty of the Magistrate u/s. 167 Cr.P.C. It emphasises that further detention of the accused should not be resorted to in the exercise of remand powers, unless warranted. The Supreme Court has also given serious consideration to the power of remand referring to it as a “solemn function” which must be exercised with concern for liberty of the individual and has also observed that it is presently exercised in a “routine, casual and cavalier manner” in some cases.” Who can deny this unpalatable truth? This is what happens most unfortunately in so many cases!
To be sure, the Bench then points out in para 16 that, “The Supreme Court, in paragraph 9 of the judgement examines s. 41A Cr.P.C in and observes “Another provision i.e. Section 41- A CrPC aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalized …….. The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraph 9 at page 280). This observation reveals the unequivocal premium that the Supreme Court attaches to an individual’s liberty. It has held that section 41 of the CRPC, prohibits the police from effecting an arrest for an offence where the punishment is not more than seven years imprisonment except for exceptional reasons to be recorded. It has interpreted section 41A CrPC and held that the police shall refrain from making an arrest where the accused, in response to a notice under section 41A appears before the police and joins the investigation, except in exceptional circumstances to be recorded by police.”
Quite pertinently, the Bench then brings out in para 17 that, “Thereafter, in paragraph 11 of the judgement, the Supreme Court issue directions which is law under article 141 of the Constitution. The same are reproduced hereinbelow.
“11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41- A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraph 11 to 11.8 at page 281).
the directions given by the Supreme Court in Arnesh Kumar’s case are extremely elaborate and has taken into consideration, the liberty of the individual accused of offences where the punishment is not more than seven years imprisonment.”
Quite rightly, the Bench then puts forth with regret in para 18 that, “This judgement was passed by the Supreme Court in the year 2014. Yet, after the passage of nearly 7 years, the directions passed are observed more in breach than in compliance. In order to ensure that the benevolent effect of the judgement is not restricted only to those offences arising from matrimonial cases u/s. 498-A and s. 406 IPC, the Supreme Court laid down in the following words that “We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498- A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine” (Arnesh Kumar Vs. State of Bihar – (2014) 8 SCC 273, Paragraph 12 at page 281).”
Quite rightly, the Bench then while striking the right chord in para 19 holds that, “The underlying concern of the Supreme Court regarding the approach of the Courts below in bail matters was reflected yet again in Dataram Singh Vs. State of Uttar Pradesh and Another (2018) 3 SCC 22, where a two-judge bench of the Supreme Court, in the very first paragraph observed, “……A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society” ( Dataram Singh Vs. State of UP and Another – (2018) 3 SCC 22, at paragraph 1, page 22).”
Notably, the Bench then hastens to add in para 20 that, “More recently, in Arnab Goswami’s case, the Supreme Court once again focussed its attention on liberty of the individual. The Supreme Court emphasised on the role of the District Judiciary and the High Court to be more proactive when it comes to dealing with cases of personal liberty rather than dealing with it in a mundane manner. Paragraph 70 of the judgement deserves to be reproduced in full in which the Supreme Court observes, “More than four decades ago, in a celebrated judgment in State of Rajasthan v. Balchand [State of Rajasthan v. Balchand, (1977) 4 SCC 308 : 1977 SCC (Cri) 594], Krishna Iyer, J. pithily reminded us that the basic rule of our criminal justice system is “bail, not jail” [ These words of Krishna Iyer, J. are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are : State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2) and Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] . The High Courts and courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the “subordinate judiciary”. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground—in the jails and police stations where human dignity has no protector. As Judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the “solemn expression of the humaneness of the justice system” [ Arghya Sengupta and Ritvika Sharma, ‘Saharashri and the Supremes’, (The Wire, 23-6-2015) available at ] . Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard”(Arnab Manoranjan Goswami Vs. State of Maharashtra – (2021) 2 SCC 427 – paragraph 70 at page 473) (emphasis added). The portions bearing added emphasis, reveals the importance given by the Supreme Court to the District Judiciary in bail matters. It gently disapproves of the District Judiciary being referred to as the Subordinate Judiciary and goes on the say that the District Judiciary is only administratively subordinate to the High Court but on the judicial side, it is just as responsible for upholding the liberty of the average citizen as is the High Court and the Supreme Court.”
While taking the right stand, the Bench then makes it clear in para 21 that, “It is all very well to reproduce the benevolent observations of the Supreme Court in Arnab Goswami’s case while glossing over the reality that exists on the ground relating to the District Judiciary. The District Judiciary is the bulwark against executive excess. It is the first line of defence, and for a large number of the citizens, perhaps the last. The existence of the rule of law in the state is reflected by the responsiveness of the District Judiciary to matters relating to personal liberty and freedom of the individual. The hesitancy of the District Judiciary to adhere to the rule of ‘bail and not jail’ is understandable. There exists a widespread fear amongst judges of the District Judiciary that they may be questioned by the High Court, or complaints may be preferred against them by disgruntled lawyers or litigants whenever they pass orders granting bail which in turn, results in a vigilance enquiry against them.”
Practically speaking, the Bench then candidly concedes in para 22 that, “Whenever a judge of the District Judiciary is proceeded against by the vigilance on account of a bail order or an acquittal in a high-profile case, it results in a domino effect where other judges of the District Judiciary feel intimidated and consider it practical to dismiss bail applications and enter convictions and remain safe from imputations of dishonesty and the associated enquiry that follows it. Even an inquiry by the High Court in which the Judge may eventually be exonerated, which may seem innocuous for those of us sitting in the High Court, has a debilitating effect on the psyche of the Judge in the District Judiciary. The fact that there has been an inquiry against a Judge for granting bail or an acquittal sees a fall in his image amongst his peers. Resultantly, they clam up and refuse bail in even the most trivial of offences. The High Court sees numerous cases coming up before it, concerned with the minor offences which are triable by the Court of the JMFC.”
In addition, the Bench then further rightly adds in para 23 that, “The combined effect of some members of the bar and disgruntled litigants, ever ready to complain against judges by anonymous communication coupled at times with an overzealous District Judge (Vigilance and Inspection), out to prove the worth of his existence, whose overbearing presence and attitude of selectively examining the orders passed by the Judges of the District Judiciary relating to anticipatory bail, regular bail and acquittals (especially in those cases relating to heinous offences or cases which acquire prominence in the print, electronic and social media), has a demoralising effect on the Judges of the District Judiciary for whom such action is the proverbial sword of Damocles, perpetually hanging over their heads, always threatening to drop.”
On a practical note, the Bench then puts forth in para 24 that, “The office of the District Judge (Vigilance and Training) continues to have a debilitating effect on independence and individuality of the judges of the District Judiciary. The post is a surplus appendage, akin to a vestigial organ in the body of the Judiciary in the State of Madhya Pradesh. The post is occupied by a Judge, senior enough to occupy the post of the District Judge. His duties involve calling at random, the judgements and orders passed by the Judges of the District Judiciary and examine them for quality and integrity. A position of immense power and influence over the Judges of the District Judiciary. As it is, the District Judge constantly reviews the work of those under him and gives his or her assessment in the ACR’s of the Judges who are working under him. Sometimes, the post can be occupied by an individual who to prove his preeminent importance to the High Court, as a conduit of information, can assess the orders of the Judges and comment upon the same being passed with a dishonest motive only because in his or her opinion, the order is bad in law. This demotivates the Judges of the District Judiciary, especially in criminal cases from doing justice and may convict in the absence or inadequacy of evidence and dismiss bail applications even in cases in which were fit to be granted bail. It would not render the District Judiciary less efficient if the post is done away for good. Instances of judges of the District Judiciary being proceeded against by the High Court on the administrative side for discretion exercised in bail matters would demoralise others who would consider it safest to dismiss bail applications as proof of their integrity.”
Furthermore, the Bench then adds in para 25 that, “An adverse report from the District Judge (Vigilance and Inspection) can be sufficient to initiate an enquiry by this Court against the Judge in question. The post of the District Judge (Vigilance and Inspection) is a surplusage with potential to cow down Judges of the District Judiciary and gives a sublime message to them to dismiss bail applications and enjoy a career in the District Judiciary without facing any inquiry. The continued existence of the post of District Judge (Vigilance and Inspection) is questionable. It belies reason why the orders passed by a Judge of the District Judiciary must be scrutinised by his peer in a purely administrative capacity, for quality or otherwise, when the District Judge scrutinises them every year while preparing the ACR of the Judges. Besides, if a party is aggrieved by an order, it has the right to challenge the order before the Court higher in the judicial hierarchy.”
Interestingly enough, while referring to an American case law, the Bench then envisages in para 26 that, “Justice William O. Douglas, a former Judge of the U.S Supreme Court, in his dissenting opinion in Stephen S. Chandler V. Judicial Council of the Tenth Circuit of the United States observed “No matter how strong an individual Judge’s spine, the threat of punishment – the greatest peril to judicial independence – would project as dark a shadow whether cast by political strangers or by judicial colleagues. A federal Judge must be independent of every other Judge…. Neither one alone nor any number banded together can act as censor and place sanctions on him. It is vital to preserve the opportunities for judicial individualism” (Extracted from C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee – (1995) 5 SCC 457 at page 469) (emphasis added).”
While citing a relevant case law, the Bench then states in para 27 that, “In Ramesh Chander Singh Vs. High Court of Allahabad (2007) 4 SCC 247, a judge of the District Judiciary in Uttar Pradesh was imposed the punishment of withholding of two increments with cumulative effect and being reduced in rank from Additional District and Sessions judge to Civil Judge (Senior Division). His alleged misconduct was passing a judicial order granting bail to an accused in a double murder case after taking illegal gratification from the accused. The Judge who conducted the enquiry against the Petitioner in this case disbelieved the allegation of illegal gratification and held the same to be not proved. However, observations were made that the order was passed with an oblique motive, insufficient grounds and extraneous consideration. The enquiry report does not reveal as to what these oblique motive, insufficient ground and extraneous considerations were. Two other co-accused persons were already granted bail by the High Court. He failed before the High Court in challenging the decision of the full Court. On appeal to the Supreme Court, it was held “…….. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently” (Ramesh Chander Singh Vs. High Court of Allahabad – (2007) 4 SCC 247 – Paragraph 11 at page 254). The Supreme Court further held “This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts …” (Ramesh Chander Singh Vs. High Court of Allahabad – (2007) 4 SCC 247 – Paragraph 12 at page 255). Needless to state, the Supreme Court set aside the order of the full Court and reinstated the Petitioner on the post of AD&SJ with full consequential benefits.”
Quite relevantly, the Bench then states in para 28 that, “More recently, in Krishna Prasad Verma Vs. State of Bihar ((2019) 10 SCC 640), a judge of the District Judiciary was proceeded against for misconduct. The charge against him was of having granted bail to an accused in a case under the NDPS where an earlier application of another accused was dismissed by the High Court. The other charge against him was having closed the evidence of the prosecution and thereby preventing it from producing evidence against the accused which led to his acquittal. As regards the charge of having overlooked the previous order passed by the High Court, the Supreme Court held that it could at the most be held as an act of negligence on the part of the judge. As regards closing of the prosecution’s evidence prematurely, the Supreme Court held from the record of the case that the prosecution was granted about 18 opportunities of producing the witnesses and it was only thereafter that the evidence was closed. The Supreme Court, while setting aside the punishment imposed upon the petitioner, underscored the importance of the independence of the District Judiciary. In paragraph 1, the Supreme Court held “In a country, which follows the Rule of Law, independence of the judiciary is sacrosanct. There can be no Rule of Law, there can be no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected at the level of the Superior Courts but also from the District Judiciary” (Krishna Prasad Verma Vs. State of Bihar – (2019) 10 SCC 640 – Paragraph 1 at page 640). Emphasizing upon the importance of the District Judiciary as the first and perhaps the last resort for a large part of our population, which is unable to approach the High Court or the Supreme Court on account of their poverty or lack of resources, the Supreme Court held “Most litigants only come in contact with the District Judiciary. They cannot afford to come to the High Court or the Supreme Court. For them the last word is the word of the Magistrate or at best the Sessions Judge. Therefore, it is equally important, if not more important, that the judiciary at the District level and at the Taluka level is absolutely honest, fearless and free from any pressure and is able to decide cases only on the basis of the facts on file, uninfluenced by any pressure from any quarters whatsoever” (Krishna Prasad Verma Vs. State of Bihar – (2019) 10 SCC 640 – Paragraph 2 at page 640). It further held that where the order passed by a judge of the District Judiciary is incorrect or against the settled law, the same should not lead to administrative action against Judge, unless from the record of the case and based upon evidence, malice, misconduct and corrupt practice is evident.”
Quite strikingly, the Bench then commendably adds in para 29 that, “The importance of having a District Judiciary unfettered and fearless cannot be underscored enough. In a state like Madhya Pradesh with widespread poverty, illiteracy and lack of resources, it is only a free, independent and fearless District Judiciary that can ensure that the end user of the justice system is given justice at the very first level and does not have to move higher up the hierarchy of Courts to get justice.”
Also, quite significantly, the Bench then also seeks to make it clear in para 30 that, “The court hopes that the High Court may, on the administrative side, re-assess the necessity for the post of District Judge (vigilance and inspection). The existing system by which complaints against judges of the District Judiciary are dealt with are adequately sufficient in order to ensure that the demands of a person aggrieved by the conduct of a judge is suitably addressed and also ensures that the judge of the District Judiciary is adequately protected from frivolous complaints from disgruntled and maliciously motivated persons.”
More significantly, the Bench then seeks to clarify in para 31 that, “In order to ensure that the directions passed by the Supreme Court in Arnesh Kumar’s case is scrupulously implemented and followed by the police and the Judicial Magistrates in Madhya Pradesh, this court considers it essential to pass certain directions.
DIRECTIONS TO THE POLICE
31.1 Where for an offence, the maximum imprisonment provided is up to 7 years, the accused shall not be arrested by the police as an ordinary course of action. Unless it is a special statute mandating such an arrest.
31.2 Before effecting an arrest in such a case, the police would have to record its reasons that the arrest was essential to prevent such person from committing any further offence, or for a proper investigation of the case, or to prevent the accused from causing the disappearance of evidence or on the basis of credible apprehension that the accused would tamper with evidence or prevent a witness from disclosing such facts to the court or to the police which thereby necessitates the arrest of the accused.
31.3 The State Police is directed to format and prepare a check list of pre-conditions fulfilled by the police under section 41(1)(b)(ii) of the Cr.P.C, while arresting an accused for offences bearing a maximum punishment up to 7 years. It is mandatory to supply a copy of the check list along with the remand application, to the Magistrate authorised to further remand the accused to police or judicial custody.
31.4 Where decision is taken not to arrest the accused, the police shall forward an intimation to the Magistrate within two weeks of the registration of the FIR. This period may be extended by the Superintendent of Police of the district concerned with reasons to be recorded in writing.
31.5 Where interrogation of the accused is required, notice in terms of section 41A Cr.P.C or s. 160 Cr.P.C be served on the accused within two weeks from the date of registration of the FIR which may be extended by the Superintendent of Police of the district concerned for reasons to be recorded in writing.
31.6 Where the police does not arrest the accused and upon notice u/s. 41A or 160 Cr.P.C, the accused appears before the police and assists the police in the course of investigation, in such a situation, the police are not to arrest the accused unless, there exists compelling reasons which must be recorded, as given in paragraph 31.2.
31.7 If the police does not perform as required of them as hereinabove, it would constitute contempt of the order passed by this court in addition to such other action, which may be taken against the erring officer on the administrative side.”
No less significant is what is then envisaged in para 32 that,
“DIRECTIONS TO THE JUDICIAL MAGISTRATES:-
32.1 The Magistrate, while exercising powers of remand, shall ascertain if the arrest effected by the police satisfies the requirements of section 41 of the CRPC as provided in paragraph 11.2 of Arnesh Kumar’s case (see paragraph 17 supra).
32.2 The Magistrate shall ascertain the availability of the check list as ordered by the Supreme Court in paragraph 11.3 of Arnesh Kumar’s case.
32.3 If there is non-compliance of paragraph 11.2 and/or 11.3 of Arnesh Kumar’s case, the Magistrate shall not authorise the further detention of the accused and shall release forthwith as the arrest itself is unlawful and therefore, his detention would also be rendered unlawful on account of the police not having fulfilled the requirements of section 41 of CRPC.
32.4 It is mandatory for the Magistrate authorising detention to record his independent satisfaction and also ensure in his order of remand that his satisfaction for further remand of the accused stands satisfied in compliance of paragraph 11.4 of Arnesh Kumar’s judgement.
32.5 The Magistrate shall also satisfy himself whether specific reasons have been recorded for the arrest of the accused and whether those reasons are relevant, raising a reasonable conclusion that one of the conditions for further detention of the accused as an under trial is satisfied.
32.6 Failure on the part of the Magistrate to perform as directed hereinabove, may see the initiation of proceedings against such Magistrate on the administrative side.”
While taking the practical approach, the Bench then observes in para 33 that, “As regards the grant of bail in offences involving punishment of more than seven years imprisonment, there can be no universal rule of thumb. It would defeat the very purpose of bail law, if bail were to be rejected only on account of the offence being heinous in nature. Weather an offence is heinous in nature is a matter of perception but, it would be reasonable to include in its ambit and scope such offences, which shock the conscience of a reasonable person. Again, bail cannot be denied merely because the allegations relate to the commission of a heinous offence. The nature of the evidence, the antecedents of the offender, the circumstances in which the offence was committed etc., are also to be considered. However, what the Courts must consciously exclude is the cacophony of hyper opinionated and unmoderated voices on social, print and electronic media. Public perception must never be a factor while deciding a bail application. At the same time, prudent reasons ought to be briefly given to reflect the mind of the Court while deciding the application for bail.”
Adding still more, the Bench then also holds in para 34 that, “While considering an application for bail, the following may be kept in mind:
34A. Whether, granting bail to the under-trial would result in him attempting to overawe and influence the witness or influence the course of investigation, either by threat of dire consequences or by monetary inducement?
34B. Whether, the probability of the under-trial, upon his release, committing another crime while on bail, would be germane while considering grant of bail to recidivists or repeat offenders?
34C. Whether, there is a probability upon the release of the accused on bail that he would fall victim of any vengeful action by the Complainant?
34D. Whether, the release of the accused on bail would raise a reasonable apprehension of breach of peace, and social or civil unrest, on account of the nature of the offence alleged against him?
34E. Whether, the accused would destroy the evidence yet to be collected during investigation, upon his release on bail?
34F. Whether, the overwhelming nature of prima facie evidence against the accused is such that he may be tempted to abscond and evade the process of justice all together if he is enlarged on bail?”
In context to what is stated in para 34, the Bench then adds in para 35 that, “The above considerations should be applied in a reasonable and judicious manner based upon the material on record. They, however, must not be applied in a pedantic manner only to deny the benefit of bail to the accused. Also, it must be borne in mind that the said considerations are not glossed over in order to grant the benefit of bail. Whichever way the application is decided, unless it is withdrawn, reasons ought to be given to reflect the prima facie appreciation of the material for or against the accused.”
For the sake of clarity, the Bench then points out in para 36 that, “The above notwithstanding, no undertrial ought to be kept in judicial custody, inordinately. There may be several factors delaying the trial which may not be attributable to the accused. The production and examination of prosecution witnesses is where the delay is maximum. In such cases, even if there is a perceived handicap in releasing the accused on bail, it may still be considered by placing stringent condition like higher quantum of personal bond and surety, to appearing before the Police periodically and registering his presence and in extreme cases, even asking the under trial to remove himself from the municipal limits of the district where the trial is taking place and the witnesses are situated. Of course, no rule of thumb can ever be laid down as an indelible proposition which must be followed in every case of bail and the discretion must be left to the Court.”
On an advisory note, the Bench then observes in para 37 that, “The District Judiciary must create an environment where bail applications can be decided at the first tier of the justice system itself. There is no legislative provision that mandates the disposal of a bail application within a fixed period of time. However, the ends of justice do demand that it be so done in the shortest possible time. However, it must also be borne in mind that many a litigant may not have the wherewithal of approaching the next forum available within the shortest possible time. This Court has seen applications for bail in offences triable by the Court of Magistrate, coming for the first time after the accused has completed more than half the period of the total sentence.”
Adding more, it is then stated in para 38 that, “Therefore, the District Judiciary must instil confidence in the bar and the litigants alike in bail matters. Where, the Court is unable to grant bail because the investigation is still in process, the applicant can be asked if he wants to withdraw the application with liberty to file afresh after the charge sheet is filed. In some cases, certain documents may be necessary to effectively decide the application, it may be better to adjourn the proceeding giving short dates, rather than dismiss the application on merits forcing the applicant approach the High Court for bail. In other words, the endeavour must be to see that justice is done at the level of the District Court itself. The applicant may only be too willing to try his luck a second time before the District Courts itself as along as his application is not dismissed on merits. Such an option must be given to the applicant.”
To be sure, the Bench then notes in para 39 that, “The office is requested to send a copy of this order to the Director General of Police, who is further requested to circulate the same to all the districts and disseminate to the lowest functionary, the directions given by this Court in paragraph 31.1 to 31.7 are complied with and, if in any case where such compliance is found wanting after 01/07/2021, this court shall proceed to try the policemen acting in violation of this order for contempt of this Court’s order.”
What’s more, the Bench then also adds in para 40 that, “The office is requested to send a copy of this order to all the District Judges, who are further requested to circulate the same to all the Judicial Magistrates under them to ensure compliance with the directions given by this Court in paragraph 32.1 to 32.6 and any case where such compliance is found wanting after 01/07/2021, they may be proceeded on the administrative side.”
Finally, it is then held in para 41 that, “On the merits of this case, for what has been discussed and observed by this Court herein above, the application is allowed, and it is directed that the applicant shall be forthwith enlarged on bail upon arrest by the investigating officer, upon furnishing a personal bond in the sum of Rs.10,000/- (Rupees ten Thousand only) with one solvent surety in the like amount to the satisfaction of the arresting officer. Certified copy as per rules.”
No doubt, it is a very learned, brilliant and balanced judgment which must be adhered to in totality. Justice Atul Sreedharan has painstakingly elaborated on each and every aspect very rightly and has sought to make it absolutely clear that the district judiciary is extremely tight-twisted in granting bail and elaborated the reasons also for it and suggested the right approach also which must always be followed. The directions which it has issued to police and judicial magistrates for implementing the Arnesh Kumar case guidelines must be implemented in totality. There can be no denying it!
Significant Supreme Court judgements of May 2021
The Supreme Court of India has pronounced numerous judgments in the month of May, 2021. In this write-up, the important pronouncements are briefly discussed.
RAJKUMAR SABU V. M/S SABU TRADE PRIVATE LIMITED, TRANSFER PETITION (CRIMINAL) NO. 17 OF 2021
The transfer of a criminal case under Section 406 of the 1973 Code of Criminal Procedure can be directed when such transfer would be expedient for the ends of justice.
A Single-Judge Bench of Justice Aniruddha Bose held that a transfer of a criminal case under Section 406 of the 1973 Code can be directed when such transfer would be expedient for the ends of justice. This expression entails factors beyond mere convenience of the parties or one of them in conducting a case before a Court having jurisdiction to hear the case. The Bench also held that if a Court hearing a case possesses the jurisdiction to proceed with the same, solely based on the fact that one of the parties to that case is unable to follow the language of that Court would not warrant exercise of jurisdiction of the Supreme Court under Section 406 of the 1973 Code.
RAHUL SHARMA & ANR. V. NATIONAL INSURANCE COMPANY LTD. & ORS., CIVIL APPEAL NO. 1769 OF 2021
In case the deceased is self-employed and below the age of 40, 40% addition would be made to their income as future prospects.
A Bench comprising the Chief Justice N.V. Ramana, Justices Surya Kant and Aniruddha Bose reiterated that in case the deceased is self-employed and below the age of 40, 40% addition would be made to their income as future prospects, as was held by the Supreme Court in a Five Judge Bench decision in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680. In the present case, the deceased was self-employed and was 37 years old, therefore, warranting the addition of 40% towards future prospects. The Bench observed that Pranay Sethi (supra), affirming the ratio in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 held that the deduction towards personal and living expenses for a person such as the deceased who was married with two dependents, to be one-third (1/3rd).
SATBIR SINGH & ANOTHER V. STATE OF HARYANA, CRIMINAL APPEAL NOS. 17351736 OF 2010
Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.
A Bench comprising the Chief Justice N.V. Ramana and Justice Aniruddha Bose while summarizing the law under Section 304B, IPC read with Section 113B, Evidence Act, held that Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand; the prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC; once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act operates against the accused; the phrase “soon before” as appearing in Section 304-B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives; Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non-categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental; due to the precarious nature of Section 304-B, IPC read with 113-B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial; it is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution; the Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304-B, IPC read with Section 113-B, Evidence Act; Section 232, CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts; once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233, CrPC, which is also an invaluable right provided to the accused; Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, the Bench cautioned that the provisions should not be allowed to be misused as delay tactics; the presiding Judge should follow the guidelines laid down by the Supreme Court while sentencing and imposing appropriate punishment. It was also observed that sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places and the Court need to be cautious in its approach in such cases.
THE CHIEF ELECTION COMMISSIONER OF INDIA V. M.R VIJAYABHASKAR & ORS., CIVIL APPEAL NO. 1767 OF 2021
Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well.
A Bench of Justices Dr Dhananjaya Y Chandrachud and M R Shah held that the freedom of speech and expression extends to reporting the proceedings of judicial institutions as well and Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law. Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings. The Bench observed that there is a need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation. Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The Bench further observed that the power of judicial review is entrusted to the High Courts under the Constitution and so high is its pedestal that it constitutes a part of the basic features of the Constitution, yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. The Bench clarified that the oral observations during the course of the hearing do not constitute a part of the record.
DR JAISHRI LAXMANRAO PATIL V. THE CHIEF MINISTER & ORS. CIVIL APPEAL NO. 3123 OF 2020
No exceptional circumstances justifying the grant of reservation to Marathas in excess of 50% ceiling limit as a socially and economically backward class.
A Constitution Bench of the Supreme Court comprising Justices Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, while striking down the Maratha quota, held there were no exceptional circumstances justifying the grant of reservation to Marathas in excess of 50% ceiling limit as a socially and economically backward class. The Bench also held that there was no need to revisit the 50% ceiling limit on reservation laid down by the 9-judge bench decision in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217. The Bench observed that neither the Gaikwad Commission nor the High Court have made out any situation for exceeding the ceiling of 50% reservation for the Marathas.
UTTAR PRADESH POWER TRANSMISSION CORPORATION LTD. AND ANR. V. CG POWER AND INDUSTRIAL SOLUTIONS LIMITED AND ANR., SPECIAL LEAVE PETITION (C) NO. 8630 OF 2020
The availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case.
A Bench of Justices Uday Umesh Lalit and Indira Banerjee held that the existence of an arbitration clause does not debar the court from entertaining a writ petition. The Bench observed that it is well settled that availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case. The High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly where the writ petition seeks enforcement of a fundamental right; where there is failure of principles of natural justice or where the impugned orders or proceedings are wholly without jurisdiction or the vires of an Act is under challenge. The Bench also observed that it is now well settled by a plethora of decisions of the Supreme Court that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, the writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses. Monetary relief can also be granted in a writ petition.
LALIT KUMAR JAIN V. UNION OF INDIA & ORS., TRANSFERRED CASE (CIVIL) NO. 245/2020
The approval of a resolution plan does not ipso facto discharge a personal guarantor of a corporate debtor of her or his liabilities under the contract of guarantee.
A Bench of Justices L. Nageswara Rao and S. Ravindra Bhat held that the approval of a resolution plan does not ipso facto discharge a personal guarantor (of a corporate debtor) of her or his liabilities under the contract of guarantee. The release or discharge of a principal borrower from the debt owed by it to its creditor, by an involuntary process, i.e. by operation of law, or due to liquidation or insolvency proceeding, does not absolve the surety/guarantor of his or her liability, which arises out of an independent contract. The Bench held that the impugned notification was legal and valid. It was also held that approval of a resolution plan relating to a corporate debtor does not operate so as to discharge the liabilities of personal guarantors (to corporate debtors).
GAUTAM NAVLAKHA V. NATIONAL INVESTIGATION AGENCY, CRIMINAL APPEAL NO. 510 OF 2021
Under Section 167 CrPC, it will be open to courts to order house arrest in appropriate cases.
A Bench of Justices Uday Umesh Lalit and K.M. Joseph held that custody under Section 167 CrPC has been understood as police custody and judicial custody, with judicial custody being conflated to jail custody ordinarily. The concept of house arrest as part of custody under Section 167 has not engaged the courts, however, when the issue has come into focus, and noticing its ingredients, it involves custody which falls under Section 167. The Bench observed that under Section 167 in appropriate cases, it will be open to courts to order house arrest as well. The Bench observed that in order to house arrest a person, courts can consider criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest.
A Bench comprising the Chief Justice N.V. Ramana and Justice Aniruddha Bose while summarising the law under Section 304B, IPC, read with Section 113B, Evidence Act, held that Section 304-B, IPC, must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand; the prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC; once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act, operates against the accused; the phrase “soon before” as appearing in Section 304-B, IPC, cannot be construed to mean ‘immediately before’.
Why justice is delayed
Though our judiciary has achieved remarkable feats in the past 70 years, a gap between ideal and reality is becoming wider and clearer over the years. Slow delivery of justice, the appointment of judges enmeshed in controversies, ineffective disciplinary mechanisms are some of the major problems our justice system is facing.
The Indian judicial system, as we know today, incorporates the Supreme Court, high courts, and various subordinate courts. It began functioning on 28 January 1950. Since then, our judicial system has been able to prove itself as moral conscience keeper, upholding the rights of all citizens irrespective of their class, gender, status, religion, and on several occasions, it has also saved the democratically established government itself. Even though our nation’s judiciary has achieved remarkable feats in 70 years, the gap between ideal and reality is becoming wider and clearer over the years. Slow delivery of justice, the appointment of judges enmeshed in controversies, and ineffective disciplinary mechanisms are some of the major problems our justice system is facing. The question of delay in the administration of justice has been addressed in the past but even now there has been no considerable change and the ironic thing is that today in all the other avenues of this modern civilisation, speed and efficiency are of great significance. Delayed justice, if justice at all, has become the basic premise of Indian judicial system. There are almost 25 million pending cases all over the court. According to experts these numbers are likely to grow with the growing population unless and until something is done to tackle this. The objective of this article is to identify and study the gridlocks leading to such delay and inefficiency and to suggest effective measures to correct them.
THE BLIND SPOT: CRIMINAL JUSTICE
The criminal justice system has been revamped by hundreds of thousands of pending cases and is also skewed against the poor or unprivileged section of the society. Even though justice is served it still takes several years which highlights the deficiencies of the adjudicating authority. The constitution of India grants every citizen certain fundamental rights , the breach of which lead to legal consequences, but still, there are thousand rape cases are never investigated ,because of the belief that court may takes 8-10 year to decide the matter. This is an ongoing condition of Indian judiciary. For example in the Nirbhaya Rape cases, even after the whole nation knew that those six people were guilty of rape and needed to be punished it still took the court 8 precious year of victim’s mother’s life to decide whether they are guilty or not. The Mohammad Harrris Nalapad case in Bengaluru took into consideration the fact that the chargesheet was never filled within the stipulated 60 days period. Evidence has also been tampered with in several cases due to political pressure or sometimes due to callousness.
ROLE OF THE POLICE
It is the police who set criminal justice into motion by initiating an investigation. A police officer handling law and order duties may not be able to pay adequate attention to the specialised field, hence law and order and investigation duties must be separated, which the supreme court has recommend in its order on police reforms though practical difficulties come in the way of its full implementation a specialised unit can be started in every district to investigate crimes of a grave nature such as murder and rape. Often the police delay filing of chargesheet. Sometimes chargesheet returned for rectification, forensic reports too are delayed as just few forensic labs exist. More labs should be opened with capabilities for cyberforensic, DNA testing, handwriting comparison and so on, every district should have one. Even after the chargesheet is submitted in the court, there is considerable delay in taking the cases on file and committing them to the court. Special court exclusively for the trial of heinous offences such as murder and dacoity must be set up with powers to take cognisance of offences directly and conduct trial on day to day basics. Many provisions of the criminal procedure code enable the accused to delay trial. Such provision intended to provide every opportunity to the accused to defend themselves are often used to delay and scuttle trials. Once the court takes cognizance of a case, it should be the bounden duty of the accused to appear for the trial. The accused should be put to jeopardy if they try to abscond. The accused adopt many delaying tactics absenting themselves one after the other without receiving copies of documents relied upon by the prosecution; failing to appear to give explanation for the charges and filing discharge petition one after the other and later going on appeal. When trial finally starts the witnesses are first examined but the defence counsel defers cross examination. The accused then seek repeated adjournments by filling petitions under section 317 of c.r.p.c examination of witnesses questioning of the accused and so too are deferred. Another method is to abscond and remain untraceable for a long time. Warrants are then issued against the accused If one absconding accused is secured and produced before the court, the co-accused will abscond one by one. After closure of prosecution the defence counsel invariably represents that they propose to examine the defence witnesses but after many adjournments, they will say there are no such witnesses. Likewise the oral arguments are delayed by giving excuses such as personal inconvenience of counsel.
SOME MAJOR OBSTACLES AND DEADLOCKS
It is unfortunate that despite the Indian judiciary’s many successes, it is suffering from several structural problems that hamper its effective and efficient administration of justice. Unlike in the past this structural mess can be understood and analysed in a better way in present times, due to better availability of data. There are numerous reasons behind the law’s delay and ineffectiveness. The inadequate number of judges as well as courts in the country is one of the primary causes of delayed disposal of cases. In the year 2000, unlike 107 judges to every million in the US, 75 in Canada, India only had 10.5 per million people. Incompetent and inefficient judges are another such reason. In Indian courts it can be easily seen that there is a habit of taking adjournment by the majority of the lawyers for their own benefit. This is one of the big reasons for such a huge number of pending cases in India. The legal costs and all the expenses that a person has to incur to commence a legal action, even for a small claim any legal action possible. The procedure and formalities are so complex and full of technicalities that it hinders the litigants at every stage. A lot of time is wasted on jurisdictional arguments sufficiency of notices; causes of action and other procedural issue .And even after the court of law has given the initial judgements the number of counter appeal in higher courts iis also one of the reasons for delay in imparting justice
There is another reason for the ineffectiveness in the working of our judiciary like many Supreme court and high court judges being made to study various commission reports and recommendations which in turn hamper the working of our courts. Political affiliation and sluggish tactics committed by judges also defeat the true essence of the justice system. One of the biggest reason for the delay in our courts in our country’s diverse culture, language, religion sentiments, customs and practices which pose an unsettling issue in front of our courts in i.e whenever a matter is addressed before a court of law, the rule to be applied is capable of hundreds and thousands of interpretations which prevents the judge making a straightforward and quick decision is not so complicated matters
AMENDMENTS TO THE LAWS TO OVERCOME THESE PROBLEMS
The following amendments in the C.R.P.C need to be carried out. Section 207 may be amended to furnish copies to counsel when the accused is absent. Section 228 and 240 may be amended to get explanation from counsel when the accused is absent. Under section 227 and 239 a time limit of 30 days from the date of receipt of copies may be set for filling a discharge petition . Section 317 may be amended to enable the court to examine witnesses in the absence of the accused and their counsel. In the revisional power under section 397 and inherent powers under section 482 necessary provision may be inserted so that the other party heard before passing interim orders on the investigation and prosecution. The bail provision under section 436and 437 may be amended so that the accused who violate bail conditions can be detained till the completion of the trial. Provision may be included in the bail bond to obtain the consent of the accused to conduct the trial in his absence in case of breach of conditions. Some of the frequently reported offences under section 294[b] 147,148,279,324,384 and 498A of the Indian Penal code which are not every serious in nature can be brought under compoundable offences.
SUGGESTIVE MEASURES FOR THE WAY AHEAD
The necessary changes cannot be brought in one days, but surely they will come if we strive for them. Despites many loopholes and deadlocks a change needs to take place to reform the justice system in India. The number of judges should be increased in the High court as well as the Supreme Court. Although we have highly qualified judges, their strength has failed to administer justice. As discussed earlier, we are far behind in the appointment of judges as compared to other developed nations, which is the main reason for inefficiency and effectiveness
A Fast Track court should be set up and also there is an urgent need to increase the number of tribunals, judicial and quasi-judicial bodies. Each tribunal must be categorized according to the specialization of its judges which reduces the burden of the courts.
A major shift needs to be made from adjourning authority to adjudicating authority and advocates who seek delay excessively must be condemned severely. People should be made aware of the Alternatives Disputes Resolution system like mediation, arbitration conciliation, etc, which ensure speedy justice to trivial cases and screening of matters that require court assistance. In addition, the number of appeals should be capped and the court must extensively use video conferencing to examine witnesses
Justice is the foundational goal of any civilization. Thus, it is imperative for the judicial system to perform its duty with due diligence so that society can strive for peace, harmony and progress. Article 39A of the Indian Constitution shines light upon the concept of free legal aid to poor and weaker sections of society, but keeping the present state of mind, it has failed to achieve significance. The judges are considered equivalent to god, hence it their duty to ensure that no guilty person escapes unpunished. Since our independence, we have suffered a lot due to the excruciating slow pace, but now is the time when reformations must be done in the judicial system. “Justice delayed is justice denied’’ should be the major aim of every adjudicating authority.
If this is not so, then how much we develop economically or technologically doesn’t matter because we will never be a developed nation.
It is unfortunate that despite the Indian judiciary’s successes, it is suffering from several structural problems that hamper its effective and efficient administration of justice. Unlike in the past this structural mess can be understood and analysed in a better way in present times, due to better availability of data. There are numerous reasons behind the law’s delay and ineffectiveness. The inadequate number of judges as well as court in the country is one of the primary causes of delayed disposal of cases. In the year 2000, unlike 107 judges to every million in the US, 75 in Canada, India only had 10.5 judges per million people.
Understanding the role of ‘seat’ in an arbitral proceeding and its relation to the exclusive jurisdiction of court through BGS Soma case
Supreme Court held that, Section 37 of the Act, specifically provided that appeal may lie only in the
provided sub-clauses and in no other. The judgement of the special commercial court was not an
order of refusal to set aside an arbitral award, rather it stated that the court did not have jurisdiction
to try the case and it should be transferred before court having jurisdiction to hear the case.
Any arbitration proceeding starts with an arbitration agreement, the arbitral tribunal is formed and arbitration proceedings commences. However, an important and one of the most vital point in between these is to designate an arbitral seat. An arbitral seat is the place where the arbitration proceedings will be conducted. It is provided by the consent of the parties in the arbitrational agreement. The problem arises when express provision for arbitral seat is not inculcated in the agreement by the parties. A three judged bench of Supreme Court, in BGS SGS SOMA JV vs. NHPC Ltd. Explained the long disputed issue in the Arbitration laws regarding the relation in seat of arbitration and jurisdiction of court as well as the test to determine the seat of arbitration.
In BGS SGS SOMA JV vs. NHPC Ltd, Supreme Court overruled Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd and a three judge bench case of Union of India vs. Hardy Exploration and Production (India) Inc, on the view as being contrary to the judgment laid down by five judge bench in the BALCO case. Court stated that the judgment of Hardy Exploration Case cannot be regarded as “good law”
BACKGROUND OF THE CASE
Petitioner filed a SLP in 2018, the outset of facts of which are as follows; petitioner signed a contract with respondent from construction of various tunnels, dams and a hydroelectricity project on river Subansri, India. Dispute arose between the petitioner and the respondent with regard to the compensation for the losses incurred by the petitioner due to the actions of respondent. Clause 67.3 in the agreement signed by the parties provided for resorting to arbitration in case any dispute arises. An Arbitral tribunal constituting three members was constituted under Arbitration Act, 1996 in accordance with Clause 67.3 of the agreement of the parties. In five years of arbitral proceedings from August 2011 to August 2016, 71 arbitral proceedings took place at New Delhi. Finally the tribunal unanimously gave award in favor of the petitioner. Respondent filed an application under section 34 of the Arbitration Act, for setting aside of the arbitral award before the Civil Court, at Faridabad, Haryana. Petitioner filed application seeking return of the application and to be filed before the court having appropriated jurisdiction over the matter which is either Civil Court New Delhi, where seat of arbitration was located or before the Civil Court, Dhemji, Assam, where the cause of action arose. In 2017, the application was transferred from Faridabad court to Special Commercial Court, Gurugram. The Special Commercial court allowed the application of petitioner and returned the petition to court having jurisdiction to try the case, New Delhi Civil Court. Respondent filed an appeal under section 37 of the Act, before the High Court of Punjab and Haryana. The High Court allowed the appeal and held that, the New Delhi court did not have jurisdiction over the matter, as Delhi was only a “Venue” and not “Seat”. The Civil Court of Faridabad has jurisdiction over the matter as a part of cause of action arose there. The Judgment of the Special Commercial Court, Gurugram was set aside. Therefore the SLP was filed by aggrieved petitioner.
ISSUES BEFORE SUPREME COURT
1. Whether the appeal under section 37, before High Court of Punjab and Haryana maintainable?
2. Whether the designation of a “seat” is akin to an exclusive jurisdiction clause?
3. Whether the arbitration clause contained “Venue” or “seat” for arbitration?
SUPREME COURT HELD
1. Whether the appeal under section 37, before High Court of Punjab and Haryana maintainable? Under section 37 of the Arbitration Act, 1996 appeal may lie to the court which is designated in law, to hear appeals from original decrees passed by such lower courts in the following cases and in no other:
a. Refusing to refer the parties to arbitration under section 8;
b. Granting or refusing to grant any measure under section 9;
c. Setting aside or refusing to set aside an arbitral award under section 34. It was stated by the High Court of Punjab and Haryana that the appeal could lay before it as, it was against refusal to set aside an arbitral award under section 34, from the order of Special Commercial court, Gurugram. Supreme Court held that, section 37 of the Act, specifically provided that appeal may lie only in the provided sub-clauses and in no other. The judgment of Special Commercial court was not an order of refusal to set aside an arbitral award, rather it stated that the court did not have jurisdiction to try the case and should same be transferred before court having jurisdiction to hear the case. Therefore the Supreme Court held that, the appeal was not maintainable.
2. Whether the designation of a “seat” is akin to an exclusive jurisdiction clause? Supreme Court took into consideration various previous judgments on the subject matter and carefully scrutinized the application of law regard the relation of arbitral seat and exclusive jurisdiction clause. One of the major case, which was referred on the topic was the landmark case, BALCO case; Bharat Aluminium Company vs. Kaiser Aluminium Technical Services INC which overruled the Bhatia International vs. Bulk Trading SA,.. Para 96 of the case BALCO case was major the point of dispute, which states that, “In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties……. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the Courts would have jurisdiction, i.e., the Court within whose jurisdiction the subject matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution, i.e., arbitration is locate.” The case of, Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd. Was also referred by the Supreme Court in which a division bench of Delhi High Court, setting out Para 96 of BALCO, stated that the case laid down, that the court of “seat” and the court where cause of action arose would have concurrent jurisdiction, even when the parties have decided seat of arbitration in agreement. On the same issue, Indus Mobile Distribution Pvt. Ltd. vs Datawind Innovations Pvt. Ltd was also referred which holds a contrary decision to Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd. It was held in the case that, the when the seat is decided by the parties in the arbitration agreement, it is akin to an exclusive jurisdiction clause, which then provided the court where “seat” is designated with exclusive jurisdiction over the subject matter of the case to regulated the arbitral proceeding between the parties. Supreme Court after evaluation of the issue and noting the precedents, demystified the Para 96 of BALCO case, and stated that, this Para is to be read along with the whole judgment. Para 96 on the face of it appears to reinforce the concurrent jurisdiction clause, however when read with the whole judgment, which clearly sets out that the choosing of a “seat” amounts to the choosing of the exclusive jurisdiction of the Courts at which the “seat” is located. Therefore BALCO case does not hold two courts to have concurrent jurisdiction. The Supreme Court asserted concurrence with the judgment of Indus Mobile Distribution Pvt. Ltd. vs Datawind Innovations Pvt. Ltd and overruled the Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd through this judgment. 3. Whether the arbitration clause contained “Venue” or “seat” for arbitration? The Supreme Court in deciding the test for “seat” of arbitration took reliance on the English case of Roger Shashoua & Ors. v. Mukesh Sharma, which laid down the Shashoua Principle. In the case, London was expressly agreed by the parties as the venue for arbitration, and no other place was designated as the seat. Court held that, together with the supranational body of rules governing the arbitration and no other contrary indication, provided that London is arbitral seat and not just venue, and arbitration will be subject to English Laws. Court reason the decision by stating that, although terms “venue” and “seat” are not synonymous, however on a holistic view of the facts of the case it is apparent that London is not just a venue rather the seat of arbitration. As London was a neutral place to both the parties, where neither of them worked for gain, resided and any cause of action arose there. The court designated it as a neutral place where the arbitral proceedings could be “anchored”. This was called as “Shashoua Principle”. Further reference was made to case of Union of India v. Hardy Exploration and Production (India) Inc., where a three judge bench held, that when there is mention of venue in arbitration agreement or something else is appended thereto, is cannot be rendered as seat of arbitration and therefore there is implied exclusion of Part I of the Act. The Supreme Court held that, Hardy Exploration and Production (India) Inc. case failed to apply the Shashoua Principle to the arbitration clause in question. Had they applied the principle, Kuala Lumpur would have been not just venue but arbitral seat. Supreme Court in reliance to case of Roger Shashoua and Ors. v. Mukesh Sharma1 , which was expressly accepted in the BALCO case, held that when parties to an arbitration agreement provided for the “arbitration proceedings” to be conducted at a venue and no express provision for seat of arbitration, then the venue should be considered as the seat. It also stated that inclusion of expression such as “shall be held” in agreement along with venue would provide further more anchor to consider venue as seat of arbitration. The court held that the arbitration agreement in the present case stated that, “Arbitration Proceedings shall be held at New Delhi/Faridabad, India…” signified that parties intended that all arbitral proceeding to take place at one place. The expression “shall be held” also indicated that the venue is actually seat of arbitration. The parties were free to choose between New Delhi and Faridabad as the seat for arbitration. It is clear that parties choose New Delhi and not Faridabad as seat, from the fact that, all the 71 arbitral proceedings were conducted in New Delhi and award was signed in New Delhi and not in Faridabad. Therefore the seat of arbitration is New Delhi, and the court of New Delhi would have exclusive jurisdiction over the subject matter of case.
CONSTITUTIONALITY OF THE JUDGEMENT
In the case of Shanker Raju vs. Union of India, divisional bench of Supreme Court explained the Doctrine of Stare Decisis as, “It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim “stare decisis et non quieta movere”, which means “to stand by decisions and not to disturb what is settled.” The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.” The doctrine of Stare Decisis in simple terms mean that the judgments of higher court are binding on lower courts or the judgment of a higher bench is binding of lower bench of same court. In the case of BGS SGS SOMA JV vs. NHPC Ltd, the doctrine of Stare decisis was not followed. The case overruled an earlier case of Supreme Court, of a co-ordinate bench, Union of India vs. Hardy Exploration and Production (India) Inc., which enumerated that, if in an arbitration agreement parties have not expressly designated any arbitral “seat”, the “venue” provided in agreement would not automatically be considered as the seat of arbitration. Supreme Court held that, the Judgment could not be considered as good law as it was contrary to the position laid down in the BALCO case by the five judge bench of Supreme Court. The issues decided in BGS judgment are of crucial importance in diversifying the scope of arbitration laws in India and a smooth arbitration mechanism, however, it is also of pivotal importance to consider the validity and constitutionality of BGS judgment viewing through the lens of the mainspring of jurisprudence, doctrine of stare decisis. It has been established rule of Stare decisis, which has also been stated time and again in various judgments that, the re-consideration of a decision of a co-ordinate bench can only be done by a higher bench. In the case of, Central Board of Dawoodi Bohra Community and Ors. vs. State of Maharashtra and Ors. The question placed before the constitutional bench was, whether a re-consideration of a judgment of a constitutional bench, shall necessarily placed before a higher bench. The court held that the case should be first placed before a coordinate bench that is five judge bench, which shall then further decide whether the matter should be place before higher bench. The co-ordinate bench shall not by itself decide the validity of the judgment which came for re-consideration, but shall decide whether it is to be place to a higher bench or not.
1. The court laid down two exceptions to the principle:
2. That if in the discretion of chief justice, a particular matter is placed before a court of any strength, it shall be considered by that court it itself, regardless of its bench. Where the matter had already come up for hearing before a Bench of larger quorum and that Bench was of the view that the law laid down by a Bench of lesser quorum needed correction or reconsideration, then by way of exception (and not as a rule) and for reasons given by it, it could dispense with the need for a specific reference and decide the case. In case of, Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. A two judge bench dissent from a decision of a three judgment and placed it for re-consideration before a five judge bench. The court held that, the correctness of the decision can only be questioned by a co-ordinate bench and be placed before a higher bench, it cannot be done by a lower bench, then the bench of judgment which is for re-consideration. In the BGS judgement, none of the two aforesaid exceptions, as provided in Dawoodi case were present. In BGS judgment, the three judge bench of Supreme Court overruled by itself a judgment of another three judge bench (Hardy Exploration case). The constitutional procedure should have been to, consider whether the judgment is to be placed before a higher bench or not, and when the court would have been satisfied that the judgment of co-ordinate bench needs re-consideration, it should have placed it before a higher bench.
Uniform bail act must be initiated at the earliest
Let me at the very outset begin by voicing my utmost indignation at the discriminatory manner in which bails are given with poor being at the receiving end almost in all the cases barring a few notable exceptions. This has to change now. The earlier this is done, the better it shall be in the long term interest of millions and millions of poor people who for many years languish in jail just because they don’t have the push and pull to obtain the necessary money and other things required to obtain bail. Why should poor suffer endlessly just because they are not rich? Why should our laws and legal system not be uniform for one and all?
Needless to say, it is only the rich and influential who face no difficulty or just a few hassles in obtaining bail as they can arrange for money, surety etc at the drop of a hat. Why this raw discrimination between the rich and the poor? Under no circumstances can this be justified. I will not like to be even the last person on earth to ever justify this raw discrimination just because this malady has been an integral part of our legal system not just since independence but since British Raj days as we have also inherited the legal system mostly in the form Britishers handed over to us.
While craving for my esteemed readers exclusive indulgence, let me invite their undiminished attention to what our former. Union Law Minister Sadanand Gowda had said in this regard while as Law Minister for which I fully and unstintedly extend my fullest support to him. He had rightly urged the newly appointed chairman of Law Commission – Justice (retd) Dr BS Chauhan who is a former Supreme Court Judge and former Chairman of Cauvery Water Dispute Tribunal to explore the possibility of a ‘Bail Act’ that would ensure “uniformity and predictability” in matters relating to grant of bail in the country. Gowda has minced no words in urging Dr Chauhan to explore a “major revamp” in the bail system so that there is parity between the poor and the rich in their right to bail. I am sure that Dr Chauhan will pay heed to what our Law Minister Sadanand Gowda has very rightly urged him to do so.
For my esteemed readers exclusive benefit, let me also reveal here that Sadanand Gowda met Justice BS Chauhan on March 29, 2016 where he very rightly urged the latter to examine bail laws prevailing in countries such as the UK and US. Under Section 5(3) of the Bail Act, 1976 of the UK, a court in England that withholds bail is required to give reasons for doing so. Likewise, in the US an accused has the right to bail unless there is sufficient reason not to grant it. Why should India also not emulate the law as prevalent now in UK and US rather than blindly sticking to what the British Raj left when they treated Indians as slaves and we were ruled also by them?
Needless to say, the matter was first mooted by the law ministry after Bollywood star Salman Khan was granted bail the same day when he was convicted in a hit-and-run case. The ministry in September had written to the then Chairman of Law Commission – Justice (retd) AP Shah, seeking a report suggesting a revamp of the bail system. We all had seen how Salman Khan quickly got bail just because he had hired top lawyers like Harish Salve whereas we see how on the contrary a poor man who has no money to hire good lawyer languish in jail for an interminably long period just because of his poor financial condition.
I have always opposed tooth and nail Sadanand Gowda for not supporting the creation of a high court bench for not just 26 districts of West UP but for any of the 80 districts of UP except the one at Lucknow which is so close to Allahabad. When 3 high court benches can exist for just 6 crore population of Karnataka with less than 2 lakh pending cases and whose districts are half nearly as compared to that of UP then why can’t 3 and rather 5 or 6 high court benches be created for UP which has maximum pending cases among all states – more than 10 lakh as per official figures maintained by the ministry of Law itself, maximum population more than 20 lakh with West UP alone accounting for more than 9 crore population which is much more than Karnataka and most of the other states except Bihar, Maharashtra and UP itself of which it is a part yet has not even a single bench! If 2 benches of high court can be created for home state of Gowda for just 4 and 8 districts at Gulbarga and Dharwad then why can’t a single bench be created for 26 districts of West UP or for 80 districts of UP? Similarly why a lawless state like Bihar has no bench? The 230th report of Law Commission favoured more benches not just for Karnataka but for all the big states like UP, Bihar, Rajasthan etc! But on his courageous decision on enacting a uniform bail act, I fully support him.
It may be recalled that Gowda had spearheaded the most commendable initiative with an internal note. He wrote that, “There is a growing dissatisfaction among public about the system of grant of bail. Though it is a uniform and reasonable provision in theory but in practice it does not prove to be so. Rather, it has a crude effect on the undertrials and hence the system of grant of bail has come under severe criticism from a cross-section of society. Therefore the bail system as it is practiced in India may have to be studied in detail and major revamp may have to be brought in.” I fully support Gowda’s historic initiative. How I wish he also could have unbiasedly implements 230th report of Law Commission in all major states!
A senior official of the Law ministry while requesting anonymity told reporters of The Economic Times as reported in 13 April, 2016 that , “Bail(s) should not be a matter of discretion (of the judges). A poor person should be treated at par with a rich or an influential person when it comes to grant of bail. And that is possible only when there are specific guidelines laid down for grant of bail.” He also said that, “Another benefit of this will be that the judges would be required to give reasons for denying bail which would benefit an accused or an undertrial in challenging the order before an appellate court. Since at present bail is a matter of discretion (of the judges) the accused virtually has no cogent reason to immediately move in appeal against the denial of bail”. This is the crying need of the hour also!
Frankly speaking, I wholeheartedly support the landmark initiative of our the then Law Minister Sadanand Gowda in this regard. I am also happy to note that the Law ministry has told the Law Commission to submit a report after detailed examination of the subject. I am sure that Law Commission too which is headed by a former very learned Judge of the Supreme Court Justice (retd) BS Chauhan too will seize upon this landmark initiative of Gowda and act in the interest of millions of poor people who rot in jail for many years just because they don’t have enough money to hire lawyer leave alone good or very good lawyers as opposed to rich people leave alone celebrities like Salman Khan who get bail very easily! This should now end permanently! Uniform Bail Act must be initiated at the earliest cutting across different states so that no person of any particular state faces any kind of discrimination in this regard! No delay of any kind is advisable on this score! I don’t see anything happening on this since last five years when the idea was first mooted historically but let’s hope that better wisdom prevails on our lawmakers on this count also!
Needless to say, it is only the rich and influential who face no difficulty or just a few hassles in obtaining bail as they can arrange for money, surety, etc, at the drop of a hat. Why this raw discrimination between the rich and the poor? Under no circumstances can this be justified. I will not like to be even the last person on earth to ever justify this raw discrimination just because this malady has been an integral part of our legal system not just since Independence but since British Raj days as we have also inherited the legal system mostly in the form Britishers handed over to us.
JURISPRUDENCE LAID BY UJJAWAL AND ANOTHER VS STATE OF HARYANA AND OTHERS: A CALL FOR REFORM AND ACTION
The presence of live-in relationship has made an impact on modern Indian society, and the changes are evident. It is slowly gaining significance in rural areas and villages. Henceforth, it is high time that the Indian judiciary looks at the issue in this perspective.
“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”
Change is a rule of life. According to Marxian philosophy, the interaction between an existing practise and a new change results into a new mechanism called as synthesis. When an economic change takes place, it always brings a social and moral change. We see a similar kind of change in India owing to globalization, resulting into an evolution of a social transition chain reaction especially with regard to the Indian family and marriage structure. Marriage is considered as the basis of social relations from which we derive important legal rights and obligations. Since ancient times, it is considered as a sacred social institution in our nation. As Indian society is moving forward, the younger generation found an alternative to the concept of marriage, ergo, live-in relationship.
The term ‘live-in relationship’ primarily suggests that two unmarried individual living together without any right and responsibilities which the traditional marriage creates. In daily jargon it is called as cohabitation. Currently, the term ‘Live-in Relationship’ is not defined under any Indian statute. However, it must be observed that the Protection of Women from Domestic Violence Act 2005 clearly provides for live-in relationships as emphasized in the case of Nandakumar & Another v The State of Kerala. This can be observed by referring to the definition of domestic relationship as “two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” Even though India has not legalised live-in relationships by passing a formal legislature, the Indian judiciary has come-to-the-fore to protect the rights of women engages in live-in relationships and has given various interpretations on the matter of live-in relationships.
INDIAN JUDICIARY’S STANCE ON LIVE-IN RELATIONSHIPS
The oldest and perhaps the first case, wherein the matter of live-in relationships was adjudged upon in India, dates back to the time of Privy Council in the case of Andrahennedige Dinohamy vs. Wijetunge Liyanapatabendige Blahamy. In this case, the court decided that when it is proved that a man and woman are living as spouses, it will be presumed that they were living as so in result of a legitimate marriage. The court will always presume the relation of marriage between such a couple and it is upon the other party to prove otherwise. However, as seen in the case of Gokal Chand vs. Parvin Kumari, due to the existence of certain situations, the Court may, on its own, be forced to rebut this presumption. Even though such a presumption is rebuttable, there lays a heavy onus on the person claiming to deprive the relationship of a legal status.
A similar view was taken by the Supreme Court in the case of Badri Prasad vs. Dy. Director of Consolidation wherein the Court upheld a 50-year live-in relationship and granted legal validity to the same. The real breakthrough came in the year 2001 when the Allahabad High Court in the case of Payal Sharma vs. Nari Niketan observed that “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.” The same was iterated in the cases of Ramdev Food Products Ltd. vs. Arvindbhai Rambhai Patel and Madan Mohan Singh vs. Rajni Kant.
Furthermore, the Supreme Court went as far as holding that a choice to be in a live-in relationship comes under the ambit of right to life, ergo, Article 21 of the Indian Constitution in the case of S.Khushboo vs. Kannaimmal. The Apex Court has also held that not only married women, but also those women who have been in a live-in relationship are entitled to all such reliefs and claims that are vested in a legally wedded wife, and it has also provided guidelines/conditions which are to be followed to consider a live-in relationship as a marriage. Most recently, in 2020, Orissa High Court entertained a writ petition from a trans-man. He and a cis-woman were living together in a live-in relationship and this petition was to prevent the woman’s family members from marrying the woman away against her wishes. The court upheld the right of the trans-man and the cis-woman to cohabit in a live-in relationship. From the above deliberation, it becomes clear that Indian Judiciary has taken a leap in promoting and recognizing live-in relationships in India. However, most recently the Punjab and Haryana High court ( hereinafter “P&H High Court” ) seemed to have a deviating view which threatens the Right to Life and personal liberty of two consenting adults.
MATTER OF UJJAWAL AND ANOTHER VS STATE OF HARYANA AND OTHERS
In this case, Mr. Ujjawal and another filed a petition for a protection order in the Punjab and Haryana High Court who were residing together. They filed the petition in the High Court because they had an apprehension that there was a danger to their lives. In the present case, Petitioner no.1 was 18 years old and Petitioner no.2 was a 21 year old. Justice Anil Kshetarpal of the Punjab & Haryana High Court via the order remarked that the couple were seeking approval of their live-in relationship through the petition which was morally and socially not acceptable and would further damage the entire social fabric. Thus, he did not grant any protection to the couple and dismissed the petition accordingly.
In light of the aforementioned facts and jurisprudence laid by the court in past, it becomes evident that the above order is contrary to the progressive approach adopted by the Indian Judiciary in this regard. The above order has many flaws, not the least of which is an ambiguous and highly subjective definition of “social fabric.” The court also seemed to be bothered by the petitioners’ age. The Punjab and Haryana High Court contradicts to its own jurisprudence laid down in the case of Priyapreet Kaur and another vs. State of Punjab and Others. The Hon’ble court, in this case, iterated that the right of the Petitioner to live together cannot be refused solely because the boy is not of marriageable age.
Furthermore, in the case of Sumanpreet Kaur and anr. vs. State of Punjab, the court hearing a protection petition filed by a runaway couple noted that the courts should not consider its personal views in respect of morality, and must ensure that the couple’s rights under Article 21 of the Indian Constitution are secured. In the same way, the P&H High Court approved a live-in relationship in the case of Mafi and anr vs. State of Haryana and ors. The Allahabad High Court in the case of Smt. Shikha & Anr vs. State of Uttar Pradesh & Ors observed similarly and granted police protection and security to a live-in couple. In the same manner protection was provided to a live-in couple by issuing direction to the Superintendent of Police in the case of Simran Kaur vs. State of Punjab.
The apex court has observed in the case of S. Khushboo that live-in relationships are permissible, and the act of two adults living together is not illegal or unlawful. Further, it states that “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy”. Thus, in light of the observations made by the judiciary in the aforementioned cases, it must be noted that morality is separate from criminality thereby paving the way for live-in relationships in India. Therefore, given the long line of legal precedents, statutes, and observations in support of live-in relationships, the Punjab and Haryana high court’s decision appears to be a travesty.
THE WAY FORWARD
The concept of live-in relationship is relatively new in the Indian social setting. The presence of live-in relationship has undoubtedly made an impact on modern Indian society, and the changes are evident. It is slowly gaining significance in rural areas and villages. Henceforth, it is high time that the Indian Judiciary does away with such flawed judgement. Further, it is recommended that a separate legislation shall be formulated in order to deal with the current issue so that rights of adults in a live-in relationship (especially women), children born out of it and people getting affected by such relationship is protected. Consequently, this would also look into the fact that diverse judicial opinions are eliminated as this legislation would control and streamline the issue by not giving any room to conflicts in the future.
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