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Bigger Homes: The housing market is evolving in the time of Covid-19 pandemic

With concepts like work from home gaining ground, housing size now matters like never before.

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Across cities, the trend of office work shifting into our homes – the much-talked-about work-from-home (WFH) effect – has taken hold. A home office, previously considered a luxury or even completely unnecessary, is now an important feature. It not only helps homeowners to separate work from personal life to some extent, but enables the focus required for optimal WFH productivity.

WFH AS THE ‘NEW NORMAL’

Many companies have discovered first-hand that WFH is a viable option and are willing to extend it to employees who can maintain productivity under these changed circumstances. Some companies have even given their employees a permanent WFH option, while others have extended it to mid-2021. Like their owners, homes now need to multi-task efficiently.

A separate workspace is therefore essential, and many homebuyers are willing to shift to cheaper suburbs and even to smaller cities to get larger homes.

In most cities, homebuyers are opting for 2.5-3 BHK configurations wherever they can purchase them within their budgets. The peripheral areas of our cities are invariably cost-effective – and even a larger home amounts to an added expense, homebuyers correctly see it as a secure investment for what are currently less-than-certain times.

Even in other respects, the quest for larger homes is not a surprising trend.

A NATURAL PROGRESSION

Most Indians begin their homeownership journey with small ‘starter’ homes, fully intending to upgrade to larger homes at a later stage. Upgrade decisions are usually taken when finances improve on the back of higher salaries, as a higher salary improves affordability. Affordability is an important point here.

In previous times, home prices would grow inexorably over time. However, salaries and savings grew too, so there would eventually come a point when one could comfortably afford to buy a larger home via a home loan.

No doubt, a question mark currently floats above the issue of salary increments in the immediate future. The coronavirus pandemic has seriously dampened India’s economic vibrancy, stifling companies’ growth prospects in some instances and actually causing them to scale back their manpower in other instances. Many retained employees have taken temporary salary cuts.

Nevertheless, housing affordability has improved in tandem with the times. To boost consumption, the RBI has brought lending rates down to a two-decade low and thrown several other sweeteners into the mix. In Maharashtra, stamp duty charges have been brought down for the duration of the festive season.

On their part, developers have not only trimmed prices to their lowest best, but also responded to the current exigencies by offering several cost-saving incentives. Moreover, serious buyers can negotiate the final price like never before.

LARGER HOMES: THE BUYER PROFILES

Salaried people who either already own a home or were in the process of finalizing their first home purchase.

Current homeowners merely need to upgrade, and first-time homebuyers just need to set their sights higher. Across the major cities, buyers are viewing homeownership with a renewed sense of urgency – and are factoring in the new WFH environment.

ENTREPRENEURS

The Indian homebuyer population is not exclusively salary-driven – the country also has a vibrant entrepreneurial culture. Many small-time business owners are now relocating their previous workplaces to their homes to save on office rental costs and the daily commute.

Interestingly, latest trends suggest that cities like Bengaluru and MMR are especially conforming to the new WFH reality – the need for more space. For instance, over the last few months, enquiries for larger homes in Bengaluru have increased up to 40% with property seekers predominantly scouting for 3BHKs (avg. 1,800 sq. ft. built-up area) as against the previously-preferred 2 BHKs.

The current buyers are largely working couples with children, most currently pursuing the WFH and e-learning options. In many cases, their budgets have not increased – rather, they are willing to settle for peripheral locations to secure bigger homes and a better lifestyle at a more affordable price.

Likewise, we are also seeing an increase in enquiries for bigger spaces in MMR. In previous months, many buyers sought to upgrade from 1 BHK to 2 BHKs. In Noida and Ghaziabad, an increasing number of buyers are looking for 3 or 4 BHKs, as opposed to the previously-preferred 2 BHKs. Those with lower budgets look for 2 BHK + study (2.5) of around 1,200 sq. ft. of built-up area.

In Gurgaon, demand for both 2 and 3 BHKs is as consistent as before. In Hyderabad, the preference for large homes of minimum 3 BHK was in place even before the pandemic and its fallout.

THE HOME AS THE NEW FOCAL POINT

No matter how disruptive the COVID-19 pandemic is, it will eventually be contained. The economy is already recovering, and employment will not only stabilize but grow. Eventually, many people will return to their offices to work. Nevertheless, some of the lessons we have learned will not be unlearned. For instance – WFH works, but it needs larger homes.

Also, cutting out the daily commute saves both time and money, simultaneously boosting productivity and job satisfaction. The previously trendy ‘compact’ homes are only viable when we can work in an external office.

Perhaps the two strongest messages we have received from the Covid-19 pandemic are that our homes are the only environments that we can actually control, and it makes sense to not only own this precious domain but to make it as large as possible.

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Policy & Politics

For reservation in promotion for persons with disabilities, Supreme Court directs Kerala to complete identification of posts

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The Supreme Court in the case Anand KN & Ors v Biju Prabhakar & Ors recently observed the process of identification of posts for giving reservation in promotions for persons with disabilities and the court directed the state of Kerala to complete the process.

The Top Court asked the Union to file an affidavit informing the court about the decision taken for implementation of the directions issued by this Court in Siddharaju’s case. Further it was noted by the Court that while considering another contempt petition wherein it was contended that irrespective of succeeding before the Top Court he was not being considered for promotion in IAS.

Wherein the contempt petitioner’s counsel had argued that that the computation of vacancies wS not done in a proper manner and that the decision to be taken for providing reservations.

It was stated in the affidavit that 380 posts have been identified for the purpose of providing reservation to persons with disabilities and the State had informed that the process of identification of posts was going on, in the counter affidavit.

It was contended by the petition in the plea that the reservations for the promotions to civil posts in the State of Kerala have not been provided for persons with disabilities in spite of repeated directions issued by this Court.

The contentions raised by the petitioner in the plea was that The reason for his non consideration to IAS by selection from non-SCS category is that Government of India has not taken a decision to implement reservations in promotion and he has succeeded before this Court in spite of which he is not being considered for promotion to IAS. Ms. Aishwarya Bhati, learned Additional Solicitor General, submits that she will obtain instructions on the issue pertaining to implementation of reservations for disabled persons under the Persons with Disabilities Act, 1995.

The Union of India may file a affidavit informing the court about the decision taken for implementation for the directions issued by this court.

Where the Top Court had declared that persons with disabilities have right to reservation in promotions and the bench issued the directions in a contempt petition which was filed in the civil appeal.

The bench comprising of Justice LN Roa, Justice BR Gavai and the Justice AS Bopanna also asked the State to file a status report by 2nd week of July 2022.

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Policy & Politics

MoS Commerce Anupriya Patel launches Indian Business Portal e-commerce marketplace

Portal to empower SMEs, artisans and farmers and support our Indian exporters to get global visibility, portal to focus on promotion of GI products from India.

Tarun Nangia

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Union Minister of State for Commerce & Industry Anupriya Patel launched the Indian Business Portal – An International Trade Hub for Indian Exporters and Foreign Buyers here today. FIEO in partnership with GlobalLinker, has designed and developed the “Indian BusinessPortal”, an International Trade Hub for Indian Exporters and Foreign Buyers. This is a B2B digital marketplace to empower SME exporters, artisans and farmers to identify new markets for their products and grow their sales globally.

Launching the portal Anupriya Patel said, “Indian Business Portal addresses a number of elements which are part of the vision of the Prime Minister and a commitment of this government like digitizing exporters, supporting MSME and encouraging greater exports of products Made in India”. The Minister mentioned that during the pandemic online platforms such as e-commerce have shown immense potential in supporting millions of businesses to sustain themselves.

She further mentioned that this initiative has come at very appropriate time as currently Indian exports are witnessing robust growth. India’s overall exports (i.e. Services and Merchandise) touched USD 676.2 Billion in financial year 2021-2022 as both Services and Merchandise hit record high exports in financial year 2021- 2022. India’s overall exports were USD 526.6 Billion and USD 497.9 Billion in 2019-20 and 2020-21respectively. The Minister further informed that India’s Merchandise exports had crossed USD 400 Billion milestone in Financial Year 2021-2022 and stood at USD 421.8 Billion which is a phenomenal increase of

44.6 percent and 34.6 percent over 2020-21 and 2019-20 respectively.

Lauding the initiative of FIEO, Patel said that Indian Business Portal will be a big encouragement to Indian Startups, SMEs, Artisans & Farmers (GI Products), and Service providers to take their first step toward the exports. She expressed hope that more exporters will engage on the Indian Business Portal and would provide their valued feedback to FIEO. Smt Patel also mentioned that this is the most opportune time for the young entrepreneurs to get into business and exports.

Santosh Kumar Sarangi, Director General of Foreign Trade, Govt. of India said tech-enabled governance will play a key role in determining India’s growth and competitiveness. The government is focused onpaperless, automated processing systems, simple procedures for trade players, online data exchange between departments, digital payments & acknowledgements. Lauding the efforts of FIEO, he said that Progress intechnology helps develop the economy and strengthen Indian firms in thecompetitive global market.

In his address, Dr. A Sakthivel, President FIEO said that FIEO has been championing the cause of Indian exporters and in a digital era. He further stated that FIEO could do much more for the exporters and helpboost India’s export opportunities through a digital platform solution. Our SMEs are blessed with vast skills, unique product portfolios anddiversity, he added.

Dr. Ajay Sahai, Director General & CEO, FIEO stated that FIEO’s vision is to focus on innovation to provide new and value-added services to exporters. He said, “Over a period of time, we will seek to build tradecorridors with a number of countries for small businesses to trade efficiently through this partnership. The platform will facilitate the enhancement of India’s trade linkages for the International markets”. The portal has a diverse product mix i.e Consumer & Lifestyle Products, Industrial Products, Business Services and Geographical Indication (GI) products. This portal holds special value for artisans and farmers’ products dealing in Indian GI and handicraft products. India has about370 GI-certified products across various categories, he added.

Sameer Vakil, Co-founder & CEO, GlobalLinker, said “FIEO ishelping businesses navigate international market opportunities through its wide range of progressive initiatives. He said that FIEO’s domain expertise, combined with its partnership with GlobalLinker has led to the creation of the Indian Business Portal, where businesses ranging from artisans to women entrepreneurs and from farmers producing GI productsto leading star export houses can create digital catalogues for the world todiscover.

Proposing the vote of thanks Khalid Khan, Vice President, FIEO requested the participants to give feedback/suggestion to continually enhance the portal with new features and make it more valuable for theindustry.

ABOUT THE PORTAL:

Indian Business Portal is the only such marketplace that is exclusive for exporters registered in India and is custom-built to support exporters witha range of bespoke features and relevant partners integrated to build thisecosystem.

STRATEGIC OBJECTIVES OF INDIAN BUSINESS PORTAL:

• Digitizing Indian Exporters and help them become discoverable online

• Promoting exports from all Indian States

• Showcasing India’s strength in wide range of Products & Services

• Encouraging virtual meetings between buyers and sellers

• Providing a trusted network of Indian Exporters to Foreign Buyers

• 14000+ SMEs are registered on the FIEO GlobalLinker platform and ofthose 2000+ have already joined with over 40,000+products and serviceslisted on Indian Business Portal for the pilot before launch.

Global Visibility – FIEO will promote the marketplace worldwide to helpIndian exporters, SMEs, artisans promote their products and servicesglobally.

Business Meetings – Facility to create buyer & seller meetings has beenprovided, and also the option for overseas consumers to directly buy fromartisans and exporters who offer smaller quantities of their products.

Geographical Indication (GI) products – A special focus has been dedicated to empowering Indian artisans, farmers, and producers dealing in over 370 Indian Geographical Indication (GI) Categories by helping them digitize their catalogues and showcase their unique offeringsglobally through Indian Business Portal.

Lauding the initiative of FIEO, Patel said that Indian Business Portal will be a big encouragement to Indian Startups, SMEs, Artisans & Farmers (GI Products), and Service providers to take their first step toward the exports. She expressed hope that more exporters will engage on the Indian Business Portal and would provide their valued feedback to FIEO. Smt Patel also mentioned that this is the most opportune time for the young entrepreneurs to get into business and exports.

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Policy & Politics

Woman Can Be Granted Bail For Non-Bailable Offence Even If It Is Punishable With Life Sentence/Death Sentence: Karnataka HC

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While explicitly observing that it is not the law that bail should always be denied in a case where the offence punishable is of death or life imprisonment, the Karnataka High Court has as recently as on May 12, 2022 in a recent, refreshing, robust and rational judgment titled Nethra vs State of Karnataka in Criminal Petition No. 2306 of 2022 and cited in 2022 LiveLaw (Kar) 169 granted bail to a woman accused of murdering her husband. A single Judge Bench of Justice M Nagaprasanna allowed the petition filed by one Nethra and granted her bail relying on Section 437 of the Criminal Procedure Code (CrPC). It must also be mentioned here that the Court made it clear that in terms of Section 437 of the CrPC, bail can be granted in a non-bailable offence on three circumstances as depicted in the proviso, (i) a person below 16 years of age, (ii) a woman and (iii) a person who is sick or infirm.

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Justice M Nagaprasanna of Karnataka High Court sets the ball rolling by first and foremost putting forth in para 1 that, “The petitioner is before this Court seeking enlargement on bail in C.C.No.252 of 2022 arising out of Crime No.530 of 2021 registered for offences punishable under Section 302, 120B and 34 of the IPC, it having been turned down by the Principal District and Sessions Judge, Bangalore Rural in Criminal Miscellaneous No.2009 of 2021, on 17.02.2022.”

To put things in perspective, the Bench then while briefly stating the facts envisages in para 3 that, “The facts in brief are as follows:-

The petitioner is accused No.1. It is the case of the prosecution that on 07-11-2021 at about 1.30 a.m., the complainant, father of the deceased registers a complaint for offences punishable under Section 302 of the IPC, which becomes a FIR in Crime No.530 of 2021. The complaint was that he had two daughters and a son who are all married and his two daughters are no more. His son Palar Swamy was into real estate business. He had two children from the wedlock. About 6 years ago his son Palar Swamy had married one Nethra, the petitioner herein allegedly without the knowledge of his family and had also a child from the said marriage. His son had set up a house in a different locality to reside with the petitioner and was also visiting the house of the complainant. Three years prior to the incident, the son Palar Swamy had purchased two acres of land and developed the same into sites. He had constructed a house in the said developed sites and was residing there with his alleged second wife – the petitioner. The purchase and decision to reside with the second wife became a subject matter of quarrel between the members of the family. It is the case of the complainant that on 06-11-2021, Palar Swamy came to the house of the complainant and had enquired about his health and on the same day, the complainant had tried to call Palar Swamy after 11 p.m. after his dinner but Palar Swamy had not answered the calls. Apprehending some problem for his son, the complainant goes to the house of Palar Swamy at about 12.10 (night) and found the door opened and the petitioner who was holding some weapon in her hand ran away seeing him. Later, the complainant finds his son lying dead on the bed in his room and his head was bleeding. This was narrated in the complaint and a case of murder was registered against the petitioner and one Vijay Kumar, son of petitioner’s sister. On registration of the crime, the petitioner was taken into judicial custody and is in the custody from 08-11-2021. On getting arrested, the petitioner moved an application for bail under Section 439 of the Cr.P.C. during the pendency of investigation itself. Bail application was not considered. The Police after investigation filed their final report/charge sheet on 25-01-2022. The application for bail was taken up later on 17.02.2022 and dismissed notwithstanding the fact that charge sheet had been filed in the matter on the ground that the offence committed was punishable with death or life imprisonment. Rejection of the application is what drives the petitioner to this Court in the subject petition.”

Needless to say, the Bench then observes in para 6 that, “I have given my anxious consideration to the submissions made by the respective learned counsel and peruse the material on record.”

It would be germane to note that the Bench then specifies in para 7 that, “The afore-quoted chain of events is not in dispute. The petitioner is the alleged second wife of the deceased as is also borne out from the records. Quarrel between the wife and the husband is also a matter that is on record. There are no eye witness to the incident is again borne out from the records. Therefore, it is a case where the prosecution has to prove the offence beyond all reasonable doubt, that the petitioner has actually committed murder of the deceased by a weapon. It is also the material on record that quarrel between the husband and the wife took place for the reason that the deceased had pestered the petitioner to have physical relationship with one of his friends in his office and further on 06-11-2021, when the petitioner had asked her husband with whom he was going to travel outside, the answer was that he was travelling with other girls, this again resulted in serious quarrel between the two and the result of quarrel appears to be the reason behind the gruesome act. It is also a matter of record that the petitioner herself went and surrendered before the Police.”

Briefly stated, the Bench then most remarkably after elaborating on Section 437 of CrPC goes on to state aptly in para 8 that, “In terms of Section 437 of the Cr.P.C. bail can be granted in a non-bailable offence on three circumstances as depicted in the proviso, (i) being a person below 16 years of age, (ii) a woman and (iii) is sick or infirm. The petitioner is a woman. She is entitled for consideration under Section 437 of the Cr.P.C. Before applying the aforesaid provision to the facts of the case and considering the case of the petitioner for enlargement on bail, it is germane to notice application of the said provision by coordinate Benches of this Court all in the case of offences punishable under Section 302 of the IPC and they being women. A coordinate Bench of this Court in KAVITHA v. STATE OF KARNATAKA – Crl.P.No.2509 of 2019 decided on 05-08-2019 has held as follows:

“2. The complainant by name Smt. Indirani lodged a complaint stating that, she had two sisters by name Parvathamma and Baby and three brothers by name Vijay Kumar, Subramani and Manjunath. The said Subramani was residing along with his brother Vijaya Kumar and his wife Smt. Kavitha along with another sister i.e., Baby and her two sons. The other brother Manjunath was residing along with his wife and children separately. In this background, it is alleged that, on 2-01-2019 at 2.00 p.m. the husband of the petitioner/accused by name Vijayakumar telephone to the husband of the complainant stating that the deceased Subramani is dead. Thereafter, all these persons came to the house of Vijayakumar and saw the dead body of the deceased Subramani and suspected his death. Hence, after the post-mortem examination they came to know that Subramani died due to asphyxia as a result of strangulation. On the basis of such information, the complainant lodged a complaint against the petitioner, which initially came to be registered in UDR No.2/2019 and thereafter in Crime No.5/2019 for the offences punishable under Section 302 of IPC and the police after thorough investigation, laid charge sheet against the petitioner/accused.

3. Learned counsel for the petitioner submitted that, there are many people residing in the said house. The entire case revolves around the voluntary statement of the petitioner/accused – Kavitha that, she informed her husband and others that she actually tried to wake him up but, he did not wake up and she noticed that he was dead. Therefore, the prosecution has to prove beyond reasonable doubt that, actually the petitioner/accused has committed the murder of the deceased by strangulation. It is also not available in the charge sheet that actually what transpired on the particular date of incident and how many persons were present in the house. All those things to be thrashed out during the course of full dressed trial.

4. In the above facts and circumstances of the case, proviso to Section 432 Cr.P.C. would come to the help of the petitioner herein. Even at this stage, if the court comes to the conclusion that, a strong prima facie case is made out against a woman, still the court can exercise its discretion and it may enlarge a lady on bail with conditions. Though the petition is filed under Section 439 of Cr.P.C., the proviso to Section 437 can be equally made use of. The said proviso says that, even if there appears reasonable grounds for believing that the accused is guilty of the offences punishable with death or imprisonment for life, provided the Court may direct that the person referred to in Clause (i) or Clause (ii), be released on bail, if such person is under the age of sixteen years or is a woman or is sick or infirm. Therefore, in the above circumstances, in my opinion, as the petitioner/accused has been in jail since 5-01-2019 and the charge sheet has already been filed, she is entitled to be enlarged on bail during the trial, with certain condition………” (Emphasis supplied).

Long before the said judgment, the very learned Judge in RATNAWWA AND ANOTHER v. STATE OF KARNATAKA – Crl.P.No.100503 of 2014 decided on 13-03-2014, has held as follows:

“2.The petitioners, who are arrayed as accused Nos. 2 and 3 in Crime No.117 of 2013 of Kundgol Police have approached the Sessions Court, Hubli, for grant of bail, after filing of the charge sheet, which came to be rejected. Hence, petitioners are before this Court for grant of bail.

3. The brief factual aspects that emanate from records are that, a person by name Parameshappa Basappa Naikar has lodged a complaint stating that, on 6.10.2013 at about 5.30 p.m. he has received a telephonic message from his son-in-law by name Manjappa Ningappa Balanaikar of Betadur Village that the accused persons – petitioners and one Dyamanna have assaulted the deceased Basappa Shivappa Balanaikar with a spade. Immediately complainant went to the spot and saw the dead body and from one Ningappa Shivappa Balanaikar he came to know that Dyamanna has assaulted on the head of deceased with a spade. It is alleged that petitioners Ratnawwa and Neelawwa have instigated said Dyamanna to assault the deceased, who has succumbed to injuries on the spot. The Police have investigated the matter and even during the course of investigation the eye-witnesses have reiterated same set of facts. CW-8 Ningappa Shivappa Balanaikar, an eye-witness to the incident has stated that the petitioners were present at the time of incident and they have instigated or abetted Dyamanna to commit suit an offence. Looking to the above factual aspects, no overt act has been alleged against these petitioners. The learned Sessions Judge after considering the materials has observed that the petitioners are root cause for the incident and rejected the bail petition filed by petitioners. Police have filed charge sheet against the petitioners. Petitioners were arrested on 7-10-2013 and since then they are in judicial custody.

4. The proviso in Section 437 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity) empowers the Court that even if the offences which are punishable with death or imprisonment for life or imprisonment for seven years or more, the Court may direct that such a person referred to in clause – (i) or (ii) of Section 437 of Cr.P.C. be released on bail, if it is satisfied that if such person is under the age of 16 years or is a woman or is sick or infirm. Therefore, it is a special proviso appended to Section 437 of Cr.P.C. particularly, considering the woman folk, sick and infirm persons and the persons, who are less than 16 years. When specific over acts are not there, the abetment has to be proved before the Court beyond all reasonable doubt and further that only on the basis of such abetment the other accused has committed such a ghastly incident. Hence, it is not necessary to keep the petitioners in jail. …..” (Emphasis supplied).

In a later judgment, another coordinate Bench of this Court in THIPPAMMA @ THIPPAKKA v. STATE OF KARNATAKA – Crl.P.No.8575 of 2017 decided on 01-03-2018, has held has follows:

“2. Respondent-Police has registered a complaint against the petitioner and another accused for the offences under Section 302 and 201 r/w 34 of IPC in Crime No.225 of 2016. The complaint was made by the son of the deceased. It appears that there was illicit relationship between accused Nos. 1 and 2 and the deceased came to know of this. It is alleged that in the background of illicit relationship, on 10-11-2016 in between 11.00 p.m. and 1.30 p.m. accused Nos. 1 and 2 caused death of Thippeswamy.

3. The learned counsel for the petitioner argues that there are no eye-witnesses to the incident. The prosecution has to prove the circumstances. Investigation has been completed and charge sheet is filed and other accused is released on bail. This petitioner is a woman and therefore, requires to be released on bail.

4. The HCGP opposes the grant of bail stating that there are prima facie materials although the entire case rests on circumstantial evidence.

5. Having perused the complaint and other materials, it can be said that since other accused has been released on bail, this petitioner being woman can also be released on bail. That apart, this case rests on circumstantial evidence. Burden is on the prosecution to prove every link in the chain of circumstances. Since charge sheet has been filed and that the petitioner has been in custody for quite a long time, she can be admitted to bail…….” (Emphasis supplied).

All the afore-quoted judgments rendered by the coordinate Benches of this Court, were considering the purport of Section 437 of the Cr.P.C. and were cases where accused No.1 therein were women and all of them alleged of offence punishable under Section 302 of the IPC for commission of murder. It is also a matter of record that the alleged accomplice in the act of murder one Vijay Kumar is granted bail on 13-04-2022 by the learned Sessions Judge. For the aforesaid facts, the statute i.e., Section 437 of the Cr.P.C. and its application in the judgments of three coordinate Benches all would enure to the benefit of the petitioner to be enlarged on bail notwithstanding the fact that the offence alleged is under Section 302 of the IPC. It is not the law that bail should always be denied in a case where the offence punishable is of death or life imprisonment. In exceptional cases, if the statute permits and the facts not being so gory and grave criminal antecedents shrouding the culprit, the consideration in such cases would be different.”

Finally and far most significantly, the Bench then holds in para 9 that, “In my considered view, the facts in the case at hand are not those that would not entitle consideration of the case under Section 437 of the Cr.P.C. particularly, looking at the conduct of the petitioner for having surrendered before the Police on commission of the alleged murder. The petitioner has no criminal antecedents except the present sword hanging on the head, and on release would not be a threat to society, coupled with the fact that the police have completed the investigation and have filed the charge sheet at the case on hand. Wherefore, the following:

ORDER

The criminal petition is allowed. The petitioner/accused No.1 Nethra shall be released on bail in connection with Crime No.530 of 2021 of Madanayakanahalli Police Station and pending before the Additional Civil Judge (Junior Division) and JMFC Court, Nelamangala, Bangalore Rural District subject to the following conditions:

(i) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees two lakhs only) with one surety for the like sum to the satisfaction of the jurisdictional Court.”

(ii) The petitioner shall not indulge in tampering the prosecution witnesses.

(iii) The petitioner shall appear before the jurisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.

(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court till the case registered against her is disposed of.

The observations made above are only for the purpose of consideration of the application for bail and the same shall not in any manner influence the trial. The trial Court shall consider the case on its merits and without being influenced by this order.”

In sum, it must be underscored that Justice M Nagaprasanna of Karnataka High Court has in this learned, laudable and landmark judgment made it crystal clear that women can definitely be granted bail even in non-bailable offences and even if it is punishable with life sentence/death. But the Court has simultaneously also made it indubitably clear that before granting bail, the Court must definitely take into account the conduct of the petitioner, her past track record, whether she poses a real threat to society if released on bail and all other necessary factors as stated herein aforesaid! It definitely merits no reiteration that all the Courts in similar such cases must always unfailingly and unflinchingly abide by what the Karnataka High Court has laid down so very commendably in this leading case!

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Policy & Politics

S. 389 CRPC: ‘Application for suspension of sentence should be considered liberally if punishment is less than 10 years’

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It is really most heartening to see that in an extremely commendable, cogent, concise composed and courageous judgment titled Ghulam Mustafa & Anr V/s UT of J&K&L in Crl A(S) No. 48/2019 CrlM Nos. 2432 & 1080/2021 CrlM Nos. 391 & 445/2022 that was reserved on May 17 and then finally pronounced on May 19, 2022, the Jammu and Kashmir and Ladakh High Court has most rightly, robustly and rationally reiterated that as per the provision under Section 389 of CrPC, if the convict is punished with imprisonment for a term less than ten years, no notice is required to the Public Prosecutor/State regarding the application filed by the accused for suspension of his sentence and release on bail. This clearly implies that the Court wants that the application for suspension of sentence should be considered liberally if punishment is less than 10 years. The Court was hearing a criminal appeal under Section 374 of CrPC which was directed against the judgment of conviction and order of sentence where the appellant were found guilty of offence under Section 307, 451, 34 of the Ranbir Penal Code and sentenced to go for rigorous imprisonment for ten years with a fine of Rs 10,000.

CRLM NOS. 391 & 445 OF 2022

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Hon’ble Mr Justice Mohan Lal of Jammu and Kashmir and Ladakh High Court sets the pitch in motion by first and foremost putting forth in para 1 that, “Instant criminal appeal under Section 374 Cr.P.C is directed against judgment of conviction dated 30.10.2019 and order of sentence dated 30.10.2019 rendered by the Court of learned 2nd Additional Sessions Judge, Jammu in file No. 33/Sessions titled “State v/s Ghulam Mustafa & Anr.” where under appellants/convicts have been found guilty of commission of offences u/s 307, 451, 34 RPC and sentenced to undergo rigorous imprisonment for (10) years and also fine in the sum of Rs.10,000/.”

Needless to say, the Bench then aptly mentions in para 2 that, “Feeling aggrieved of the impugned judgment of conviction, appellants/convicts have assailed it’s correctness, propriety and legality on the grounds, that as a result of miss-appreciation of facts and misapplication of law so far as the finding of the trial court relating to holding appellants guilty of having committing of offences under Sections 307, 451, 34 RPC and convicting them of the same is bad in the eyes of law, therefore, prayed that the present appeal be allowed the judgment of learned 2nd Additional Sessions Judge, Jammu be set aside.”

To put things in perspective, the Bench then enunciates in para 3 that, “Alongwith the appeal, appellants/convicts have filed applications for suspension of conviction and sentence pending the hearing of appeal, with further prayer for ordering them release on bail primarily on the ground that there is no likelihood of the appeal being heard in the near future, and in view of the law laid down by the Supreme Court wherein it has been held that when a convicted person is sentenced to a fixed period of sentence, on filing of appeal, suspension of sentence should be considered liberally unless there are exceptional circumstances; that the bail applications of both the appellants/convicts filed earlier were rejected vide order dated 02.07.2020 of this Court and to obviate the apprehension of the appellants of there being no likelihood of hearing of the appeal in near future and this Court directed the matter to be listed for hearing on 18.08.2020, thereafter the matter was listed more than 10 times but the arguments in the appeal could not be considered which further constrained the appellant/convict No.2 to file another application for grant of bail bearing CrlM No. 1612/2020, which was further rejected by this Court vide order dated 03.09.2021 on the ground that the appellant No.2 has not even undergone a substantial period of sentence and therefore, it was not a stage for showing indulgence of this Court; that the appellant/convict No.2 is suffering from kidney related ailments and is having only one kidney and the other one stands removed even before the conviction.”

As it turned out, the Bench then observes in para 4 that, “Respondent has filed objections wherein it has been stated that both the appellants/convicts are the main accused in case FIR No. 14/2005 for commission of offences U/S 307, 326, 451, 34 RPC registered at Police Station Gharota, Jammu; that it has been established by the court below that appellants/accused persons have been convicted after full trial and the entire testimonies of the witnesses would narrate as how brutally and with scant regard and fear of the convicts has chopped the arm of the victim; that the appellants deserve no lenience and there are cogent reasons and chances that they would escape the clutches of law as they have come to know that they cannot be absolved of the crime, thus there is every eventuality of the fleeing away justice; that no case of suspension of sentence is made out as the offences for which the accused persons/appellants are charged is of heinous nature and these offences definitely constitute a class apart and need to be viewed with a different approach in the matter of bail; that the case of the appellants are also not covered under the Supreme Court judgments as they have not been in the prison for half of their sentence, therefore, the application be dismissed.”

Most significantly, the Bench after hearing the learned counsels from all sides then while citing relevant provisions and relevant case laws expounds in para 7 that, “Heard & considered. Section 389 of Code of Criminal Procedure deals with the provisions of suspension of sentence pending the appeal. For the sake of convenience Sec. 389 Cr.PC is reproduced hereunder:-

389. Suspension of sentence pending the appeal; release of appellant on bail.—(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:

[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.]

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of Appellate Court under Sub-Section(1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Cursory glance of Section 389 Cr.PC makes the legal proposition abundantly clear, that pending an appeal preferred by a convicted person notice shall only be issued to the Public Prosecutor/State in case the convict is punished for offences punishable with death or imprisonment for life or imprisonment for a term not less than ten (10) years, which clearly connote that if the convict is punished with imprisonment for a term less than 10 years no notice is required to be given to the Public Prosecutor/State in regard to the application filed by the convict/accused for suspension of his sentence and his release on bail.

In the case of BHAGWAN RAMA SHINDE GOSAI AND OTHERS Versus STATE OF GUJARAT [(1999) 4 Supreme Court Cases 421], Hon’ble Supreme Court while discussing the power and scope of section 389 Cr.PC regarding suspension of sentence pending the appeal filed by the convict, and while holding that the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction, and while suspending the sentence and directing appellant/accused/convict to be released on bail found guilty for commission of offences u/ss 392 r/w 397 IPC for rigorous imprisonment of 10 years by the trail court, in paras 3&4 of the judgment held as under:-

3. When a convicted person is sentenced to fixed period of sentence and when he files appeals under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.

4. In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00p.m. and 6.00 p.m. until disposal of the appeal pending before the High Court.

Ratio of the judgment (Supra) makes it manifest, that Section 389 Cr.PC does not contain any “statutory restriction” in suspension of sentence and granting of bail to the accused/convict and the prayer should be considered liberally and the Appellate Court may impose restrictions considering the gravity of offence.

Similarly, in the case of Vajida Bano and Ors V/s State Through Advocate General, this Court while relying upon the judgment of BHAGWAN RAMA SHINDE GOSAI’S (Supra) suspended the sentence of appellant/convicts, convicted and sentenced in FIR 09/2014 for commission of offences u/ss 363/317/ 302/ 120-B & 201 RPC of P/S Kargil.

In the case of State of Haryana Vs Hasmat (decided by Hon’ble Supreme Court of India on 26th July 2004 in Appeal Crl. 715-717 of 2004), relied by Ld. Counsel for respondent/victim, Hon’ble Supreme Court set aside the order of Punjab & Haryana High Court regarding the suspension of sentence and enlargement of accused/convict on bail convicted for commission of offences u/ss 148/302/307/324 r/w Sec. 149 of IPC r/w 25/27 Arms Act on the ground of seriousness of offence wherein the relevant facts like the “nature of acquisition” the manner in which crime was committed, “the gravity of offence” and the desirability of releasing the accused on bail after they were convicted for committing serious offence of murder, and the said aspects were not considered by the High Court which passing the impugned order of suspension/bail.

In the case of Bholu Vs State of U.P. (Crl. Misc. Application No. 124973 of 2017) decided by Allahabad High Court on 04-05-2018 relied by Ld. Counsel for respondent/victim, Hon’ble Allahabad High Court rejected the 1st and 2nd bail applications of accused/appellant/convict even though he was in jail for 9 years on the ground that the appellant/convict was convicted for heinous offence of 2 murders.

In another case relied by Ld. Counsel for respondent titled Mahesh Pahade Versus State of Madhya Pradesh) [Criminal Appeal No. 933/2014 decided on 18th July 2018] the Division Bench of Madhya Pradesh High Court relaying upon the plethora of decisions of Hon’ble Supreme Court viz; 1. (2018) 3 SCC 187 (Lachhman Dass vs. Resham Chand Kaler and Another); 2. (2016) 6 SCC 699 (Amanullah and Another vs. State of Bihar and others); 3. (2009) 6 SCC 767 (National Human Rights Commission vs. State of Gujarat and others); 4. (2006) 3 SCC 374 (Zahira Habibullah Sheikh and another vs. State of Gujarat and others); 5. (2001) 6 SCC 338 (Puran etc. vs. Rambilas and another etc.); 6. (2000) 2 SCC 391 (R. Rathinam vs. State by DSP); 7. (1980) 3 SCC 141 (P.S.R. Sadhanantham vs. Arunachalam and another); 8. (1979) 4 SCC 719 (Rattan Singh vs. State of Punjab), held, that the victims of heinous crime cannot be denied the right to address their grievances before the court of law. In the decision (Supra) Hon’ble 8 CrlM Nos. 391 & 44 Madhya Pradesh High Court held, that Section 372 of Code of Criminal Procedure gives right to victim to file an appeal against order of conviction which clearly gives right to the prosecutrix a victim of heinous crime on her person to approach the court for cancellation of bail. The case laws relied upon by Ld. Counsel for respondent/victim only lay down an invariable principle of law that in cases punished with imprisonment of less than ten (10) years even no notice is required to be given to the State/Public Prosecutor, however, in heinous offences like that of murders u/s 302 IPC, the court has the power/jurisdiction to grant or refuse the suspension of sentence and bail. In the case in hand, appellants/convicts have been found guilty by the trial court of 2nd Additional Sessions Judge Jammu for commission of offence u/s 307, 451, 34 RPC and sentenced to undergo rigorous imprisonment for (10) years and also fine in the sum of Rs.10,000. Vide ratio of the judgment of Bhagwan Ram Shinde Gosai’s and others case (1999) 4 Supreme Court Cases 421 (Supra), relied by Ld. Counsels for appellants/convicts, there is no statutory restriction/prohibition in not considering the application for suspension and releasing of appellants/convicts on bail. Appellant/convict No.1 is resident of Sagar Nallah Graint Ranjan, Tehsil Jammu while appellant/convict No.2 is resident of Bye Dhara Gursai, Tehsil Mendhar and both them have deep roots in the society and do not possess the golden wings to flee from justice, as nothing substantial has been brought before the notice of this court that appellants/convicts have absconded during trial. The seriousness or gravity of offence is to be seen in cases where accused/convict is punished with death penalty, life imprisonment or imprisonment of 10 years and above, wherein, while considering the application for suspension and bail the judicial description lies in the wisdom of the court. Right to life and liberty of an individual is precious under Article 21 of the Constitution of India and is also a very valuable right of accused/convict which also continues during the appeal period as appeal is the continuation of the trial.”

While batting for suspension of sentence, the Bench then hastened to add in para 8 that, “Keeping in view the facts that the applicants/appellants are in custody for the last more than two and half years of the total sentence imposed and applicant/appellant No.2 is suffering from kidney related ailment and there is no immediate prospect of the main appeal being heard in near future, a fit and proper case for suspension of sentence is made out.”

As a corollary, the Bench then stipulates and directs in para 9 that, “As a sequel to the aforesaid discussion, I am of the considered opinion that applicants/appellants have made out a strong case for suspension of sentence and grant of bail in their favour. I, therefore, suspend the sentence inflicted upon the applicants/appellants and direct them to be released on bail by executing surety bonds in the sum of Rs.50000/- each to the satisfaction of Registrar Judicial of this court with the direction to furnish personal recognizance of like amount before Superintendent Central Jail Kot Bhalwal Jammu where the applicants/appellants are presently serving the sentence term in judicial lockup. It is further ordered, that the applicants/appellants shall appear before this court on each and every date of hearing except for the reasons beyond his control and unless exempted.”

What’s more, the Bench then observes in para 10 that, “Applications are disposed of.”

Finally, the Bench then concludes by holding in para 11 that, “List the main appeal for final hearing on 29.07.2022.”

All told, the sum and substance of this extremely learned, laudable and landmark judgment by Jammu and Kashmir and Ladakh High Court is that application for suspension of sentence should be considered liberally if the punishment awarded is less than 10 years and the case is genuine and needy as we see in this leading case also! Of course, all courts must definitely abide by what has been laid by the J&K&L High Court in this learned judgment and consider similar such cases compassionately! There can certainly be just no denying or disputing it whatsoever!

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Policy & Politics

Just One Psychiatrist For All Prisoners With Mental Illness In State Not Sustainable: Orissa HC Expresses Concern On Prison Conditions

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It cannot be easily glossed over that none other than the Orissa High Court itself in an extremely laudable, learned, landmark and latest judgment titled Krushna Prasad Sahoo v. State of Orissa & Ors. in W.P.(C) No. 6610 of 2006 pronounced as recently as on May 21, 2022 has expressed deep concerns on the issue of the mental health of prisoners. On learning that there existed only one psychiatrist to attend all prisoners in the state with mental illness, a Division Bench of Chief Justice S Muralidhar and Justice RK Pattanaik noted with concern that, “This situation is unsustainable considering that it is physically impossible for just one psychiatrist to attend all prisoners in the state with mental illness.” It merits mentioning that the development comes in an ongoing case in which the Orissa High Court had previously directed the Director-General, Prisons, to ensure food, hygiene, and health facilities in all the jails/sub-jails of the State.

ATHAMALIK SUB-JAIL MATTER

To start with, this brief, brilliant, bold and balanced judgment authored by a Bench of Orissa High Court comprising of Chief Justice Dr S Muralidhar and Justice RK Pattanaik sets the pitch in motion by first and foremost putting forth in para 1 that, “Pursuant to the directions issued by this Court on 5th May 2022, the District and Sessions Judge, Angul has submitted a report dated 18th May, 2022 enclosing original statements of 12 inmates and 2 staff of the Athamalik Sub-Jail. The sealed cover containing the report was opened and the report has been perused by the Court. Copies of the report be made available to Mr. Debakanata Mohanty, learned Additional Government Advocate (AGA) and Mr. Gautam Misra, learned Amicus Curiae (AC).”

In the fitness of things, the Bench then points out in para 2 that, “Mr. Manoj Chhabra, DG, Prisons, Odisha, who is present in virtual mode, states that he will immediately act on the said report by taking an appropriate action against the person involved in the incident of the assault on a convict as mentioned in that report. After copies of the report have been provided to them, the said report will again be placed in the sealed cover and kept with Registrar (Judicial) of this Court.”

To be sure, the Bench then discloses in para 3 that, “Affidavits dated 20th May, 2022 have been filed by the Deputy Inspector General of Prisons and the Member Secretary, Odisha State Legal Services Authority (OSLSA) regarding status of compliance with the earlier directions issued by this Court. The learned AC has also prepared a detailed convenience note for consideration of this Court.”

OVERCROWDING

While according top priority to overcrowding of prisons, the Bench then mentions in para 4 that, “At today’s hearing, the Court first considered the issue of overcrowding of prisons. The note of the AC, refers to two SubJails, viz., the Balliguda Sub-Jail and the Jajpur Sub-Jail, where even now the prison population is more than 100% of the carrying capacity of the said Sub-Jails. Mr. Chhabra, the DG, Prisons is conscious of this position and has offered a temporary solution of shifting the prisoners to neighbouring jails. He has also undertaken to re-examine the earlier suggestion whether pending the actual increase in the additional capacity of the jails and sub-jails, there can be a temporary solution found for accommodating prisoners in other state-owned buildings.”

To put things in perspective, the Bench then envisages in para 5 that, “In the course of the discussion, a concern was raised about the resistance faced when applications are filed before the concerned Courts for shifting of an inmate from one Jail to another. Considering that the problem of overcrowding of jails in Odisha is a real and serious one, and it is going to take some time before the additional capacity in jails can be constructed, if a request is made for shifting of an inmate from a jail to a jail in a neighbouring district at the nearest possible location then such request should be considered in its proper perspective keeping in view the serious problems faced by inmates in an overcrowded Jail. It is emphasized that this is only a temporary solution pending the creation of the additional capacity in the Jails.”

Quite revealingly, the Bench then notes in para 6 that, “Apart from the above two sub-jails, there are four jails viz., the Phulbani District Jail, Bhadrak Special Sub-Jail, Kamakhyanagar Sub-Jail and the Malkanagiri Sub-Jail, where the prison population between 50 to 100% in excess of the carrying capacity of those jails even as of today. That apart, fifteen District Jails, Special Jails and Sub-Jails face the situation of prison population being in excess to the extent of 20 to 50%. Mr. Chhabra assures the Court that each of these situations is receiving the highest attention of the prison authorities and wherever possible, applications will be filed before the concerned Courts for shifting of the excess population to the nearest possible jails to tide over the critical situation.”

PRISONERS WITH MENTAL ILLNESS

No doubt, the Bench then specifies in para 7 that, “The issue of prisoners with mental illness was highlighted during today’s hearing. As per the figures collated by the Secretary, Odisha State Legal Services Authority (OSLSA), from the reports of visit undertaken by the District Magistrates (DMs) there are at least 286 prisoners with mental illnesses in the various jails and sub-jails. Mr. Chhabra anticipates that this number may be even higher and would be in the range of around 500 prisoners.”

Alarmingly, the Bench then notes in para 8 that, “The statistics provided to this Court show that there are as many as 42 prisoners in Circle Jail, Koraput, 33 in Circle Jail, Sambalpur, 29 in District Jail, Keonjhar, 22 in District Jail, Bhawanipatna, 19 in Special Sub-Jail, Bonaigarh, 14 in District Jail, Angul, 14 in Sub-Jail, Nayagada and 15 in Special Jail, Rourkela, who have been diagnosed with mental illnesses that require urgent attention. It is a matter of deep concern, and a concern that is shared by Mr. Chhabra, that there is just one psychiatrist in Choudwar Circle Jail, who is expected to cater to the needs of all prisoners with mental illnesses throughout the State. This situation is clearly unsustainable considering that it is physically impossible for just one psychiatrist to attend to all prisoners with mental illnesses.”

Commendably, the Bench then lays bare in para 9 that, “A suggestion that has come forth from the learned AC and which the Court is willing to accept is to have the OSLSA to step in to arrange for visits by psychiatrists to each of the jails where there are prisoners with mental illnesses to have an assessment done of their present condition and what urgent measures need to be taken to alleviate their distress. The Member Secretary, OSLSA, who is present in virtual mode, has undertaken to arrange for such visit by specialist psychiatrist not just from Public Health Facilities but even from Private Health Facilities, the expenses for which will be defrayed by OSLSA. The OSLSA will then follow up on such reports of individual assessment by filing appropriate applications before the concerned Courts on behalf of the prisoners enclosing such assessments and praying for appropriate orders from the Court concerned, particularly for interim or regular bail. Each such prisoner with mental illness will be assigned with an individual lawyer from the panel of the OSLSA.”

PRISONERS’ PANCHAYAT COUNCIL

Essentially, the Bench then stipulates in para 10 that, “The Court’s attention was drawn to Rule 802 of the Odisha Model Jail Manual, 2020 (2020 Manual), which provides for constitution of Prisoners’ Panchayat Council (PPC). Mr. Chhabra has undertaken to examine the position of the constitution of such PPC in the jails since that would address a large number of problems faced by inmates within jails, which can be then brought to the notice of the jail administration for remedial action. The Court emphasises that since this is a statutory requirement, it has to be complied both in letter and spirit and on the next date of hearing, the Court will be informed of the constitution of such PPCs in every circle jail, district jail, special jail, special sub-jail or sub-jail as mandated under Rule 802 of 2020 Manual.”

PRISON DEVELOPMENT BOARD

As we see, the Bench then lays down in para 11 that, “As regards the Prison Development Board (PDB), Mr. Chhabra informs the Court that in view of the draft agenda proposed by his predecessor having to be revised, a meeting has not yet been held. However, he expects it will happen very soon and definitely before the end of June, 2022. The Court expects the PDB to take up in its agenda the issue of the budgetary allocations per prisoner, which requires revision among the other issues including infrastructure, overcrowding, medical facilities, skill development of the prison inmates and the like. The deliberations of the meeting of the PDB be placed before the Court on the next date.”

INFORMATION ABOUT PRISONERS’ CASES

As things stand, the Bench then maintains in para 12 that, “On the issue of information being provided to prisoners about their cases, Mr. Chhabra states that during his visit to the Circle Jail, Choudwar and District Jails in Angul and Puri, he did notice such e-kiosk and his information is that there are around 20 jails in Odisha that have such e-kiosks. He states that he will be visiting the jails in other States to ascertain the best practice in this area and ensure that those are made available in the jails in Odisha. Basically, a prisoner must have easy and ready access to latest updated information regarding his own case as well as orders of the concerned Court in his case.”

VACANT POSTS OF MEDICAL STAFF

On key issue of vacant posts of medical staff, the Bench then directs in para 13 that, “On the issue of vacant post of Medical Staff, the position of 3 psychiatrists is still lying vacant and 31 sanctioned posts of Medical Officers are also still vacant. It is stated that since the D.G. of Prisons has made a request to the State Government in this regard, a direction is issued to the Home Department as well as the Health and Family Welfare Department, Government of Odisha to immediately act upon the above requests of the D.G., Prisons and expedite the process of filling up of the vacant posts of Medical Officers and Psychiatrists.”

Adding more to it, the Bench then also directs in para 14 that, “Mr. Chhabra states that although directions have been issued by the Health Department and Home Department for increasing the frequency of the visits by the Medical personnel to the jails, that is not happening as was directed. This aspect must be immediately examined by both the Health and Family Welfare Department and the Home Department to ensure that the instructions are strictly carried out. The responsibility should be fixed on the concerned Chief District Medical Officer (CDMO) in each of the districts in this regard. A further circular/order be issued to that effect forthwith.”

Segregation of UTPs from convicted inmates, Segregation of Young Offenders from Adults and Separate Enclosures for Women Prisoners

Quite worryingly, the Bench then enunciates in para 15 that, “A concern has been expressed that at least in six sub-jails in Champua, Kamakshyanagar, Banki, Jajpur, Dharamagarh and Jeypore, under trials were not segregated from convicted inmates. Further, young offenders in the age group of 18 to 21 are not separated from adults in jails of several districts including Bargarh, Malkanagiri, Keonjhar, Bhadrak, Cuttack, Jajpur, Kalahandi, Koraput and Nuapada. A third aspect here is that the reports collated by the Member Secretary, OSLSA reveal that there are no separate enclosures for women prisoners in the District Jail in Bhawanipatna and even the report from the visit of the DLSA to Jharsuguda reveals that the women’s ward is in a pathetic condition. As regards the jail in Jharsuguda is concerned, Mr. Chhabra states that the Additional I.G. has visited the said jail and corrective measures have already been taken. As regards the issue regarding segregation in the jail in Bhawanipatna, he states that steps will immediately be taken to rectify the situation and that he will be issuing instructions in that regard.”

BIJU PATNAIK OPEN AIR PRISON

Be it noted, the Bench then states in para 16 that, “This Court had in its order dated 23rd December 2021, pointed out that the Biju Patnaik Open Air Prison, which has a capacity of 125, has remained largely underutilized. The position as of 30th April, 2022 is that the said prison has only 33 prisoners. Mr. Chhabra stated that once the COVID-19 situation totally eases and convicts return to the jails, the prison population in the open-air prison would increase. The Court urges that this issue receive the highest and most urgent attention of the prison department and on the next date, the Court must be informed of a substantial increase in the prisoner population in the open air prison.”

DUTY LAWYERS

It is worth noting that the Bench then recalls and puts forth in para 17 that, “This Court had issued detailed directions regarding the duty lawyers being to be attached to every Police Station and of the directions issued by the Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, having to be followed in letter and spirit. The Court is informed by Mr. Biswajit Mohanty, Secretary, OSLSA that in 418 Police Stations in Odisha, the Duty-Lawyer system has already been implemented. The names and the mobile numbers of the Duty-Lawyers are stated to be displayed on boards in a prominent place in each of these Police Stations. He expects the Duty-Lawyer system to be implemented in all the remaining Police Stations by the 10th June, 2022. The Duty-Lawyers will be given an orientation through the DLSAs, emphasizing the need to ensure compliance with the directions issued by the Supreme Court in Arnesh Kumar (supra). The orientation will also be for effective interaction with the persons brought into Police Stations and proper advice as to their options.”

Needless to say, the Bench then mentions in para 18 that, “Mr. Chhabra states that the efforts would be made to earmark some space in every jail and sub-jail for library books and reading materials to be kept for prisoners.”

Of course, the Bench then reiterated in para 19 that, “The learned AC points out that despite the directions issued by this Court in its order dated 23rd December, 2021 in Para-48 about the Police authorities having to strictly comply with the directions issued by the Supreme Court in Joginder Kumar v. State of U.P. AIR 1994 SC 1349 and the subsequent amendments by which Sections 41-A to 41-D were introduced in the Cr.P.C., those provisions are not yet being strictly implemented. The direction to the Police to publish every month on its website the relevant information of persons arrested is reiterated.”

Quite remarkably, the Bench then mandates in para 20 that, “In modification of the direction issued by this Court in Para-7 of its Order dated 23rd December 2021, it is directed that the Member Secretary, OSLSA will facilitate the release of prisoners, who were unable to be released on bail despite being granted bail on account of their inability to furnish bail bonds, by filing applications before the Court of Sessions or the High Court under Section 440 (2) of the Cr.P.C. for modifying the conditions and the terms of both the Judgments of the Supreme Court as well as the guidelines issued by the NALSA in this regard.”

Most commendably, the Bench then notes in para 21 that, “A suggestion has been received from the D.G. Prisons to the DLSAs, who organize the visits by Panel Counsel or themselves visit the prisons should compile a list of Under Trial Prisoners (UTPs), who may be informed sick or aged or in need of urgent medical attention including pregnant women and on that basis, advise moving the Court for bail on medical grounds. This suggestion will also be acted upon by the Secretary, OSLSA, who will instruct the DLSAs accordingly.”

What’s more, the Bench then adds in para 22 that, “The Court also notes its satisfaction on the various measures that have been taken in the jails in Odisha pursuant to the orders passed by this Court, which has resulted in a considerable improvement in the conditions in he prisons in Odisha, as is reflected in the reports submitted to the Court by the District Magistrates, the DLSAs and even the District Judges, who have undertaken visits, all of which has been collated and presented in this Court at today’s hearing. Nevertheless, much more needs to be done. Hopefully, the further directions issued by this Court today should help in that direction.”

Finally, the Bench then concludes by holding in para 23 that, “List on 28th July, 2022 at 2 pm.”

In sum, we thus see that the Orissa High Court has taken great pains to ensure that prisoners are properly looked after in prisons. The Court minced no words to express its serious concern on the deplorable condition of prisoners in jail. It also made it indisputably clear that just one psychiatrist for all prisoners with mental illnesses in State is not sustainable. No denying it!

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Policy & Politics

My brush with the PMO: Part 2

Anil Swarup

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As I mention in my book, “Not Just A Civil Servant”, the real coal story wasn’t about the successful coal block auctions. It was about the record increase in coal production. In 2014, there were on an average more than 25 power plants that were declared critical daily for want of coal. This changed dramatically in subsequent years as the coal production rose by 33 million tonnes (which was more than the cumulative increase during the past 4 years) during 2014-15 and further by 44 million tonnes during 2015-16. By 2016, there was not a single power plat critical on account of shortage of coal. We were even toying with the idea of exporting coal to Bangladesh. This increase in production created another set of problems.

There were a select few “privileged” power producers who now wanted to make a “fast buck”. These generating companies had bid for tariff and they were supposed to make arrangement for coal themselves. Coal India Limited (CIL) was obliged to supply coal at the notified price (a price below the market price as this was adjusted in the tariff. The benefit of lower price was not retained by the generation company but passed on to the state-owned distribution companies) only to such power generating companies with whom they had prior agreement. There was no obligation to supply coal at notified price to these “privileged” few. These “privileged” power producers had succeeded in getting a special dispensation for themselves during the UPA regime when there was acute shortage of coal. Ironically the Comptroller and Accountant General who had gone to town with the irregularities relating to coal block auctions chose to remain silent on an equally scandalous dispensation being given to sect set of industrialists.

By 2016 coal production had increased substantially. In almost every meeting convened by the PMO whether relating to coal or otherwise, I was asked why was I not giving linkages to these “privileged” industrialists. Ultimately, I sent a note to the Principal Secretary raising following issues:

Should CIL coal be supplied at notified price to such entities?

Would not the benefits of concessionally priced domestic coal lead to undue gains for them as the Power Purchase Agreements were not signed on the basis of assurance/commitment of notified price coal?

Wouldn’t allotment of linkages to these tantamount to grant of undue favour or preferential treatment when there is no legal or contractual obligation to supply notified price coal to these plants?

Would this not amount to favour to the successful bidders (in PPA bidding) as bid conditions would be changed after the bidding process?

Would not assignment of linkages to such entities that did not bid in coal block auctions or did not win a coal block after bidding amount to gross disfavour to those that participated and won coal blocks in auction?

In subsequent meeting at the PMO when the issue came up for discussion yet again and I referred to the note that I had sent, I was given a dressing down that the PMO doesn’t take decisions. How true it was! Yes, we were told very clearly that PMO should not be mentioned in any decision that is taken by the Ministry/Department. Lessons were learnt from the mistakes of the previous government.

However, I stuck to my guns. And, I was moved from dark dungeons of coal mines to the bright lights of school education. Or, so I thought.

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My visits to the PMO became few and far between as it was evident that school education was not high on the priority of the Government. The budgetary allocation for school education had kept coming down since 2014-15. It was Rs 55,115 crore for that year and as a percentage of GDP it was 0.52. For the year 2016-17, it came down to Rs 43,554 crore (0.36% of GDP). In one of the rare school education meetings at the PMO when I brought this to the notice of the participants, normally unflappable Mr P K Mishra got very annoyed. He appeared to be convinced that I was not providing the correct figures. There were indeed many occasions when those at the PMO were not prepared to face facts. I wondered how would they then convey facts to the PM.

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It happened just three months before superannuation. There were a couple of paper leaks in the examination being conducted by the Central Board od Secondary Education (CBSE). The media was baying for Anita Karwal’s blood. She was Chairperson, CBSE. As she had chosen to set things in order in CBSE, a set of mafias were after her. (The entire story is narrated in “Not Just a Civil Servant”). After ascertaining the details, I was convinced that neither she nor the CBSE was to be faulted. It took some effort to convince the Minister who initially wanted to shift Anita to “diffuse” the crisis. Despite being convinced subsequently, he still wanted to take the PMO into confidence (A culture that had evolved over a period of time). Mr Nripendra Mishra was always available for guidance and this day was no different. Despite the short notice, he gave us time. A meeting was held at the PMO on 30th March. Mr Mishra backed my stand and asked me to go ahead to brief the media later in the afternoon but only after I had received the PM’s clearance through the PMO. I also suggested announcement of the future course of action with regard to the two papers that had leaked. This too was agreed upon. We now had something concrete to tell the media. The economics exam of class 12 was to be re-conducted and the decision on Mathematics paper for class 10 was to be taken subsequently on the basis of an enquiry into the extent and impact of leakage. The logic was simple. The class 10 exam was like an internal exam with virtually no implication on future admissions. Class 12 had much greater implications. (Subsequently, post enquiry, it was discovered that the class 10 paper leak was neither widespread nor did it have any impact on the outcome. Hence, no re-examination was done in this case and around 16 lakh children were saved from the trouble of having to appear again).

The press conference was originally scheduled at 5 pm on 30th March. The entire media was waiting for me but I was eagerly awaiting the clearance from the PMO. With every passing second, the suspense grew as everyone waited with bated breath. The clearance finally came at around 6 pm. This press conference was unarguably the toughest I ever had. Later I noted in my diary, ’The Conference took place in the afternoon in a packed hall. The aggressive posture of the media reflected angst. Fortunately, in the hour-long interaction I kept my cool and handled the questions reasonably well. One could clarify the approach of the government and the purpose seemed to have been served”. It was perhaps much more than that. It was the severest of all tests in my career.

Excerpted from “No More a Civil Servant”

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

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