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Policy & Politics

CIVIL SERVANTS: MUCH MALIGNED BUT NOT THE WORST OF THE LOT

Anil Swarup

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Civil servants, pejoratively referred to as “Babus” have been at the receiving end for pretty long. Not very ago I conducted a survey on Twitter. The question asked was, “According to you, which of the following institutions is carrying out its responsibilities in the best possible manner?”

1. Civil Servants

2. Judiciary

3. Politicians

4. Media

Of more than 3000 participants, 65% voted in favor of Civil Servants, 22% for Judiciary, Politicians 9% and Media was last with 5%.

I conducted a similar survey subsequently on Twitter and Linkedin to ascertain whether there was consistency in the findings. The question was changed a bit. The question asked now was, “With which of the following institutions are you comparatively most satisfied or comparatively least dissatisfied in terms of carrying out the tasks expected of them”.

More than 1500 voters participated in this Twitter poll. The sample size was admittedly a small one but the Civil Servants were yet again at the top (39%). Judiciary at 34% was a close second. With 15% votes, politicians were way below and the Media at the bottom at 13%.

Similar pattern was visible in the Linkedin Survey too. Civil Servants led with 44% of the votes polled, followed by Judiciary at 22%. Media were marginally ahead of Politicians (17%) at 18%

Civil Servants continue to be at the top even though the gap between them and the Judiciary has narrowed considerably. Despite being a democracy, politicians don’t seem to enjoy the confidence but the real surprise is in the context of media that seems to have lost all credibility. Ironically, some amongst those that have don’t have credibility or lost it continue to refer civil servants as “Babus”. Even the Prime Minister chose Parliament to express his angst against the IAS. This was even more surprising because his own PMO is run by IAS officers. He even chose an IAS officer to replace a world-renowned economist to head the RBI. All quite inexplicable.

Why is it that certain part of the social elite still dislikes (some even hates) the civil service in general and the IAS in particular even though the common man perhaps does not?

Often “barbs” are thrown at civil servants but they don’t protest. And, if the person is the Prime Minister himself, the quintessential bureaucrat, bound by the Code of Conduct, has no option but to keep quiet. Dismay was indeed expressed by a large number of them but in private. They appeared to be quite demoralized at this unwarranted outburst. Most of the retired officers too didn’t protest publicly. It wasn’t very surprising though. As one of my senior colleagues put it, we are all “Durbaris”. He was referring to the period when we were in service but I thought many of us remain “Durbaris” even after retirement on account of our servility over the years or indifference, or fear or perhaps still expecting some “rewards”. So, when no one is contesting, an ex-parte judgement gets given by the social elite. The term “Babu” has now the stamp of the Prime Minister himself.

Gurcharan Das was perhaps reflecting not the view of all Indians but the social elite when he wrote, “Today, our bureaucracy has become the single biggest obstacle to the country’s development. Indians think of the bureaucrats as self-servers, rent seekers, obstructive and corrupt”. And, as is evident in his book, his personal experience with a Joint Secretary was not a pleasant one. We often tend to generalize our personal experience instead of using scientific and data- based analyses to prove our point. This is not to say that all is well with the bureaucracy. There are indeed huge problems. However, such generalized condemnation doesn’t help except that it would resonate with those that dislike bureaucracy. We all love to criticize and only criticize without suggesting a credible way forward. Perhaps the easiest thing to do

There are a number of those like Gurcharan Da amongst the social elite that have had a bad experience with civil servants (there are indeed some bureaucrats who put the entire civil service to shame but, as they say, it takes all types to make this world) and they tend to generalize their experience. Public display of pleasant experiences is rarely witnessed though many do praise a large number of civil servants in private. Consequences of such an approach have had devastating consequences. Mr Harish Gupta, an honest and efficient IAS officer, was caught in political cross-fire and was hounded. No one had doubts about his credentials but hardly anyone spoke about it in public. Some amongst the social elite who did not know him professionally or personally, even felt that he must have done some wrong. Mr Gupta suffered.

So long as we are not part of it, we all love “masala”. We are, accordingly, presented with negative stories, including those relating to civil servants. If we look at Twitter, the negative stories trend much more than positive ones (that are in any case few and far between). This also creates a negative image of the civil servant.

Much of the responsibility also rests with the civil servants for the image they carry. There have been instances of irresponsible behaviour in public glare. This is deplorable. The visibility of such incidents has increased on account of an increasingly aware public and the social media wherein everything gets magnified quickly.

It is ironical that despite the image that the civil service carries, lakhs of students aspire to become civil servants. If the civil services were as bad as they are made out to be, why should so many want to join the “bad company”? And, perhaps for some of those that don’t make it, it is not merely a case of sour but bitter grapes. And, a few of them carry this bitterness right through their lives.

It is evident that the civil servants are not as bad as they are made out to be. However, there are, as I mentioned earlier, huge issues that beset them. Criticism alone will not help. Calling them “Babus” is not serving any purpose. Bureaucracy has not withered away in any part of the world. Hence, the need is to see how improvement, perhaps transformation, be brought about. The debate should be around this change, this transformation. Criticism is fine and should be welcome. Condemnation will not help.

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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Policy & Politics

Musings of a BSF officer’s daughter

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An important part of being raised as a BSF officer’s kid was to get acquainted with the vagaries and challenges of a borderman’s job and to learn about their life-threatening situations along India’s international borders in states and union territories afflicted with insurgency and terrorism.

The task of protecting the borders stretched to the protection of villages in those areas from the enemy’s nefarious designs and activities.

In border areas, phenomena such as cross-border shelling and infiltration were routine and seldom shocked or demoralized a borderman’s family. Bordermen knew places they were posted to quite well. In several instances, their understanding was better than that of the locals, having researched every nook and corner, ditch, tunnel and ridge and topographical feature.

My father, Late Shri RS Mehta, who retired from the Border Security Force (BSF) as an Inspector General (IG), belonged to one of the first batches of officers to join the force. As a result, right from the time of BSF’s founding in 1965, he was passionately involved in the process of giving the force a shape, identity and a clear direction in over three decades of service. He held many key positions in the organization up to, and including, the Commanding Officer of a battalion.

During his very eventful career with the force, he conducted several counterterrorism operations in Jammu & Kashmir as well as planned and executed many counter-insurgency operations in the Northeastern part of India. These experiences were to later come in handy when, as a senior officer, he was instrumental in formulating many protocols and policies relating to securing the Nation’s borders.

My father used to tell us that bordermen had clearly defined protocols to deal with residents of border villages. A key part of their duty was to maintain an excellent rapport with the local population to win its faith and confidence. Moreover, in certain areas of the country, this also involved making sincere attempts to expedite the integration of the locals into the national mainstream.

I recall my father narrating his experience during his tenure as a young Commanding Officer (CO) posted at Dera Baba Nanak in Punjab’s Gurdaspur district, where he was instrumental in organizing several sports and cultural programmes for the villagers. He would always encourage them to wholeheartedly participate and excel in such events organized by BSF to become model citizens. Various prizes, certificates of merit and goodies were given to participants to build strong linkages. Papa also mentioned his efforts to work closely with Sub-Divisional Magistrates (SDMs) and Tehsildars to provide to the border villages basic facilities such as schools, dispensaries, etc., and to resolve any immediate problems that they might be facing.

Undeniably, the rapport that a borderman shares with the local population can hardly be replicated by the police or other law-enforcement agencies. In a similar vein, inhabitants of rural habitations secured by BSF feel inclined to provide security-related information, updates on border activity and other intelligence inputs.

I chanced to accompany my father to one of his border inspection tours of a remote area in Jammu & Kashmir. Certain pockets in the mountainous regions of Gul and Kishtwar were becoming host to terrorist camps. Our convoy comprising four to five vehicles swerved through the ravines of the majestic Himalayas. In a lonely spot, just by the waterfall, seeing an elderly lady walking by herself, Papa asked the driver to stop for a breather, rolled down his window and asked her, “Amma, sab theek hai na?” (Hope all is well?). To which she replied, “Ethe bus butte he butte ne!” Once the convoy started moving again, I asked my father what she meant and he laughingly told me that her evasive answer implied that there was nothing to tell as there were “only pebbles and more pebbles” in that area.

When we halted for the night at a BSF base camp, we were informed that there were many interceptions of our wireless network by the miscreants who had even challenged the inspecting officer to locate their camp and visit them for a cup of tea! Thanks to his knowledge of the culture and traditions of the area, and other information related to the region, it was possible for my father to deduce that local herdsmen, with their routine cross-border travels and nomadic way of life, had allied with the enemy. Consequently, they were providing strategic support to the miscreants from across the border.

Having understood the root of the problem, the force could carry out combing operations in the region, freeing it of the anti-national forces and, thus, cleansing the area of any terrorist camps.

It would not be wrong to say that the rigorous training of a borderman, his vast experience at the border in different terrains and familiarity with the people living in border villages, make him fit to fulfill his role of securing areas not just along the border but also beyond.

Recently, the Ministry of Home Affairs has issued a notification to widen BSF’s jurisdiction for seizure, search and arrest up to 50 kilometres from the international border in the states of Assam, West Bengal and Punjab.

On October 11, 2021, the Ministry of Home Affairs, Govt. of India announced that it was amending a 2014 notification related to the jurisdiction of the BSF to exercise its powers in states that are on the international border. This notification replaces a 2014 order under the BSF Act, 1968, which also covered the States of Manipur, Mizoram, Tripura, Nagaland and Meghalaya. It also specifically mentions the two newly created union territories of J&K and Ladakh. The BSF can carry out search and seizure operations to check and combat smuggling, illegal entry of migrants and other nefarious activities.

The Central Government’s decision to thus extend the area of jurisdiction of the BSF is, therefore, a welcome step. It will enable our bordermen to carry out combing and search operations in more areas and help the state governments concerned in weeding out anti-national elements to greatly reduce threats to national security. Further, having a centralized chain of command makes the BSF well-equipped and competent to handle issues relating to border security and to also secure the areas adjoining and adjacent to the borders.

As someone rightly noted a long time ago, the price of liberty is eternal vigilance.

The author is a practicing advocate at the Delhi High Court 

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Policy & Politics

Closure report can’t be filed merely because informant did not supply adequate materials for probe: SC

The three-judge Bench of the Supreme Court, while setting aside closure reports against some accused in a murder case did not shy away from remarking that a ‘fair investigation is a necessary concomitant of Articles 14 and 21 of the Constitution of India’. The court observed that it is the statutory as well as constitutional duty of the police to investigate on receiving report of the commission of a cognizable offence.

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In a recent, remarkable and righteous decision titled Amar Nath Chaubey vs Union of India [SLP (CRL.) NO. 6951 of 2018] delivered just recently on December 14, 2020 has maintained that a closure report cannot be filed merely on the ground that the investigation was not possible as the informant had not supplied adequate materials to investigate. The three-judge Bench of Apex Court headed by RF Nariman and also comprising of Justice Navin Sinha and Justice Krishna Murari while setting aside closure reports against some accused in a murder case did not shy away from remarking that, “A fair investigation is a necessary concomitant of Articles 14 and 21 of the Constitution of India.” The Court observed that it is the statutory as well as constitutional duty of the police to investigate on receiving report of the commission of a cognizable offence.

To start with, the ball is set rolling in the opening para 1 of this notable judgment wherein it is observed that, “One Shri Ram Bihari Chaubey, the father of the petitioner, was shot dead at his residence in Village Shrikanthpur, Chaubepur, Varanasi in the State of Uttar Pradesh, on 04.12.2015 at around 7.15 AM. An F.I.R. No. 378/2015 under Sections 302, 147, 148 and 149, I.P.C. was registered the same day at Chobepur Police Station at 11.15 AM. Four unknown assailants were stated to have come on a motor cycle. Two of them entered the residence and shot the deceased, while the two others waited outside, after which they all escaped.”

To put things in perspective, the Bench then observed in para 2 that, “The petitioner, son of the deceased, approached the Allahabad High Court complaining of the lackadaisical manner in which the police was investigating because some powerful personalities were also involved. The investigating officers were also being changed with regularity seeking a mandamus for a proper inquiry into the murder of his father including by the C.B.I. The High Court called for a progress report and also required the Chief Secretary to file his affidavit in the matter. The petitioner is aggrieved by the impugned order of the High Court dated 17.05.2018 disposing the writ petition, accepting the contention of the police that the investigation would be concluded expeditiously and report will be submitted before the competent court within a period of eight weeks.”

Of course, the Bench then observes in para 3 that, “We have heard the learned counsel for the petitioner, for the State of Uttar Pradesh and for respondent no.5. On 29.06.2017 charge sheet was submitted against one Raju alias Nagender Singh son of late Ramji Singh, Ajay Singh and Shani Singh both sons of Narayan Singh, citing 21 witnesses. The charge sheet stated that the name of respondent no.5 had transpired during investigation as having conspired in the killing after which Section 120B I.P.C. was also added. The charge sheeted accused Raju alias Nagender Singh confessed that apart from the others named by him, respondent no. 5 in conspiracy had the murder planned and executed. The investigation was thus kept pending against Manish Singh, Dabloo Singh and respondent no.5. The police in the case diary noting dated 17.02.2017 recorded that on basis of confidential information from the police informer, that respondent no.5 had given a “supari” of Rs. Five lacs for murder of the deceased. Political rivalry existed between the deceased and respondent no.5 on account of assembly elections as also panchayat elections. It further contained noting that the real person behind the incident was respondent n. 5 based on very confidential information, having serious ramifications. The case diary noting dated 06.04.2017 records that the police party went to landmark tower to arrest Ajay Singh and Shani Singh. Respondent no.5 demanded the production of arrest warrant against the concerned persons and required the investigating officer to give in writing that the suspect was being taken for interrogation. Raju alias Nagender Singh after intensive interrogation disclosed that with co-accused Ajay Singh, he had gone to meet respondent no.5, disclosing the manner in which the murder was committed by him and his accomplices. The case diary noting dated 29.06.2017 records that investigation against Dabloo Singh and Manish Singh and respondent no.5 were in progress. Respondent no.5 vide Annexure P.5 letter no. 4/2017 wrote to the Principal Secretary that he was being falsely implicated and the matter be properly investigated, if required from the C.B.I.”

While further elaborating on the progress of the case, the Bench then elucidates in para 4 that, “The Sub-Inspector of Police submitted a progress report before the High Court on 11.10.2017 that the investigation up to that date revealed the involvement of Ajay Singh, Raju alias Nagender Singh, Shani Singh, Manish Singh, Dabloo Singh and respondent no.5 as a conspirator. Charge sheet had been submitted against Ajay Singh, Raju alias Nagender Singh and Shani Singh and investigation with regard to Dabloo Singh, Manish Singh and respondent no.5 is still pending. It further stated that raids were conducted for arresting others including respondent no.5. From the material collected during investigation it was apparent that the murder was committed due to political rivalry by hatching a conspiracy effectively with the help of respondent no.5 and that the police were trying to collect more credible materials. Another affidavit was filed on 16.05.2018 before the High Court, by one Shri Devender Chaubey, the In-charge Chief Secretary, disclosing that respondent no.5 had 24 criminal cases against him including under Section 302 IPC. In five cases final report had been filed in absence of credible evidence. In nine cases respondent no. 5 had been charge sheeted but was acquitted. Five criminal trials are still pending against respondent no.5. He had also been put behind bars under the provisions of National Security Act by order dated 11.11.1998. It concluded that the allegations against respondent no.5 were under investigation.”

To be sure, it is then revealed in para 5 that, “This Court issued notice in the present matter on 07.09.2018. On 20.01.2020, this Court directed the Director General of Police, U.P. to file an affidavit with regard to the status of the investigation vis-à-vis respondent no.5. An affidavit was filed by the D.G.P. on 22.02.2020 stating that there was no cogent evidence against respondent no.5 despite discreet efforts. Investigation of the case was therefore closed on 30.01.2019 and report submitted in the concerned court along with other police papers on 04.06.2019 with regard to accused Ajay Singh, Shani Singh, Raju alias Nagender Singh only and no further investigation was pending against any person. The trial court summoned the complainant for evidence on several dates, but the complainant had not appeared.”

Be it noted, the Bench then observes in para 6 that, “We have considered the matter. The F.I.R. was registered on 04.12.2015. Eight investigating officers have been changed. Respondent no.5 suo motu sought impleadment in the writ petition filed in the High Court. An investigation which had been kept pending since 04.12.2015 was promptly closed on 30.01.2019 after this Court had issued notice on 07.09.2018. The affidavit of the Director General of Police, U.P. not being satisfactory, on 26.10.2020 this Court required the respondents to file copy of the closure report stated to have been filed before the court concerned. The affidavit filed by the Circle Officer, Pindara, Varanasi dated 31.10.2020, pursuant to our order dated 26.10.2020 encloses the closure report dated 02.09.2018, the supervision note of the Superintendent of Police, Rural dated 17.12.2018 and the closure report dated 30.01.2019 submitted in court. We have gone through the same. It simply states that there was no concrete evidence of conspiracy against respondent no.5 and that the informant had not placed any materials before the police direct or indirect with regard to the conspiracy. As and when materials will be found against respondent no.5 in future, action would be taken as per law. No credible evidence was found against Manish Singh and Dabloo Singh.”

While slamming the police investigation and the closure report, the Bench then, more significantly, without mincing any words states upfront in para 7 that, “We are constrained to record that the investigation and the closure report are extremely casual and perfunctory in nature. The investigation and closure report do not contain any material with regard to the nature of investigation against the other accused including respondent no.5 for conspiracy to arrive at the conclusion for insufficiency of evidence against them. The closure report is based on the ipse dixit of the Investigating Officer. The supervision note of the Senior Superintendent of Police (Rural), in the circumstances leaves much to be desired. The investigation appears to be a sham, designed to conceal more than to investigate. The police has the primary duty to investigate on receiving report of the commission of a cognizable offence. This is a statutory duty under the Code of Criminal Procedure apart from being a constitutional obligation to ensure that peace is maintained in the society and the rule of law is upheld and applied. To say that further investigation was not possible as the informant had not supplied adequate materials to investigate, to our mind, is a preposterous statement, coming from the police.”

Most significantly, the Bench then minces no words to state squarely, simply and straightly in para 8 that, “The police has a statutory duty to investigate into any crime in accordance with law as provided in the Code of Criminal Procedure. Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.”

Briefly stated, para 9 then while citing a recent relevant case law states that, “In Manohar Lal Sharma vs. Principal Secretary and ors., (2014) 2 SCC 532, this Court observed as follows:

“24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens.

26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to book.

xxx xxx xxx

39. … In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference.””

It is worth paying attention here that para 10 then discloses that, “The trial is stated to have commenced against the charge sheeted accused, and the informant summoned to give evidence. In the facts of the case, we direct that further trial shall remain stayed. The closure reports dated 02.09.2018, 17.12.2018 culminating in the report dated 30.01.2019 are partly set aside insofar as the non-charge sheeted accused are concerned only. Those already charge sheeted, calls for no interference.”

Now it is time to deal with concluding paras. Para 11 states that, “We hereby appoint Shri Satyarth Anirudh Pankaj, I.P.S. as the senior officer, State of Uttar Pradesh to carry out further investigation in the matter through a team of competent officers to be selected by him of his own choice. The State shall ensure the availability of such officers. The investigation must be concluded within a period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police, Uttar Pradesh shall do the needful.” The last para 12 then stipulates that, “List immediately after two months for further orders.”

In a nutshell, this latest, landmark, learned and laudable judgment leaves no room for doubt that closure report cannot be filed merely because informant did not supply adequate materials to investigate. The police must always follows this useful directive whenever it is confronted with such situations in future! It will in doing so certainly benefit its ownself as also the investigation process which has to be taken always to its logical conclusion by ensuring that the guilty is not spared and the innocent is not convicted or harassed in any manner! This is exactly what the Supreme Court also desires so by this commendable judgment as is clearly manifested also in it! Very rightly so!

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Policy & Politics

Inter country adoptions: Delhi HC issues directions for enabling parties to obtain certification from DM, foreign authorities and CARA

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In a progressive, powerful and path breaking development, the Delhi High Court has in a learned, latest, laudable and landmark judgment titled Rajwinder Kaur & Anr v Central Adoption Resource Authority in W.P.(C) 279/2019 and CM APPL. 40751/2021 and connected matters has commendably issued various directions for enabling adoptive and biological parents to obtain the required certification and no objection from District Magistrates, foreign authorities and Central Adoption Resource Authority (CARA) in relation with inter country adoptions. This was the crying need of the hour also! It must be mentioned here that this development came while the Court was dealing with three cases pertaining to international adoption of Indian children.

To start with, the ball is set rolling in this notable judgment authored by a single Judge Bench of Justice Prathiba M Singh first and foremost in para 1 wherein it is put forth that, “This hearing has been done in physical Court. Hybrid mode is, however, permitted only in cases where explicit permission has been taken from the Court.”

Simply put, the Bench then points out in para 2 that, “Vide order dated 9th November, 2021, in view of the absence of a proper status report filed by CARA and non-issuance of NOCs to the Petitioners, this Court had directed the presence of Ms. Tripti Gurha, member Secretary and CEO of CARA on the next date.”

As we see, the Bench then states in para 3 that, “Further to the last order, Ms. Tripti Gurha has appeared before the Court and ld. Counsel under instructions from CARA, has made submissions today. Ld. counsels for the Petitioners have also been heard.”

To put things in perspective, the Bench then envisages in para 4 that, “Vide judgement dated 31st August, 2021, the following directions were issued:

96. In terms of the directions issued above;

a. The Secretary, Ministry of Women and Child Development, Government of India shall file a report before this Court as to the manner and mode of creating a permanent mechanism to deal with inter-country adoptions under HAMA, both direct and indirect and place the said report before this Court within a period of two months.

b. There are several errors on the website of CARA in respect of HAMA adoptions. CARA shall carry out corrections in its website and place a report before this Court within eight weeks;

c. CARA shall also frame guidelines for the processing of NOCs for inter-country adoptions under HAMA and make available forms for this purpose on the portal. Let the draft guidelines and the timelines for activating the portal be placed on record by means of a status report within two months. Details of the special Committee constituted to deal with HAMA adoptions shall also be specified in the report;

d. A status report in respect of each of the writ petitions and the processing of grant of NOCs be also filed at least one week before the next date of hearing.””

As it turned out, the Bench then discloses in para 5 that, “It is submitted by CARA’s counsel that pursuant to the judgement passed by this Court, the Adoption (Amendment) Regulations, 2021 (hereinafter “2021 Regulations”) have been notified w.e.f. 17th September, 2021. They have been framed specifically to lay down the procedure to be followed for adoption of children under the Hindu Adoptions and Maintenance Act, 1956 (hereinafter “HAMA”) by parents who desire to give their children in adoption to adoptive parents located in a foreign country. The said Regulations apply to all inter-country adoptions under HAMA, both amongst relatives and non-relatives. Under the said 2021 Regulations, there are broadly two categories:

• Category No.1 are those adoptions which were executed pre-2021 Regulations; and

• Category No.2 are adoptions undertaken post the coming into effect of the 2021 Regulations.”

Furthermore, the Bench then enunciates in para 6 that, “On behalf of CARA, it is further submitted that upon the 2021 Regulations coming into effect, various steps have been taken by CARA including:

(i) Appointment of an officer at the level of an Assistant Director as the Nodal Officer for dealing with HAMA-related adoptions;

(ii) Communications have been issued to all State Governments through the Principal Secretary, Ministry of Woman and Child Development, informing them of the 2021 Regulations coming into effect and seeking their cooperation in implementation of the same; and

(iii) Various webinars have been conducted by CARA to sensitize all stakeholders, since the first week of November, 2021.”

What’s more, the Bench then brings out in para 7 that, “On behalf of the Petitioners who are before this Court, it is submitted that no NOCs have been issued to any of the parties and the process of issuance of NOCs is at different stages.”

Needless to say, the Bench then specifies in para 8 that, “In W.P.(C) 279/2019, the Petitioners have appeared before CARA and requisite documentation has been submitted. The DM’s certificate has also been obtained by the Petitioners on 11th November, 2021 and has been submitted to CARA. Thereafter on 16th November, 2021, CARA has written to the relevant central authority in Spain seeking the required certification under Article 5 and Article 17 of the Convention on Protection of Children and Co-Operation in respect of Inter-country Adoption, 1993 (hereinafter “Hague Convention”). Copy of the said communication has been shown to the Court. This communication has however not been marked to the Petitioner. A copy of that said letter has now been given to the ld. Counsel for the Petitioner who may follow up with the Spanish authorities on the status of the said certification. Post the said certificate being obtained, it is assured to the Court that CARA would initiate steps to issue the NOC, expeditiously.”

Going ahead, the Bench then further specifies in para 9 that, “Insofar as W.P.(C) 10064/2019 is concerned, it is submitted by ld. Counsel for the Petitioner that the documents could not be submitted by the Petitioner to CARA as the counsel had met with an accident. Accordingly, the required documents have now been submitted to CARA and also to the ld. Counsel for CARA, in Court. Petitioner/Petitioner’s authorized representative to appear before CARA on 26th November, 2021, at 2:30 p.m., in this regard.”

Not stopping here, the Bench then further brings out in para 10 that, “In W.P.(C) 11168/2020, the adoption is by the paternal uncle (Chacha) of the child who is located in the USA. The Petitioner to accordingly appear before the Nodal Officer physically or through authorized representative to submit the requisite documents and obtain the NOC. The Petitioner/authorized representative to appear before CARA on 26th November, 2021, at 1:30 p.m.”

Adding more to it, the Bench then stipulates in para 11 that, “In both W.P.(C) 10064/2019 and W.P.(C) 11168/2020, the Nodal Officer shall meet the Petitioner/authorized representative and coordinate with the concerned District Magistrate in order to enable the Petitioners to obtain the verification from the concerned District Magistrate expeditiously. Upon the same being obtained, CARA assures the Court that it would take necessary steps in terms of the 2021 Regulations to move forward for issuance of the NOC. All communications either with the District Magistrate or with any foreign authority shall be copied to the authorized representative of the Petitioners, as also the Petitioners, so that the Petitioners are duly informed of the progress of the application for issuance of NOC.”

Most crucially, what forms the cornerstone of this brief, brilliant and balanced judgment is then encapsulated in para 12 wherein it is held that, “From the facts that emerge in these three writ petitions, this Court notes that the main issue that arises for the applicants is the obtaining of verification from the concerned SDMs/DMs in terms of Schedules XXXIII and XXXIV of the 2021 Regulations. The second issue that arises is also as to the manner in which the coordination is to be effected between the adoptive child, adoptive parents, the relevant foreign agencies, CARA and the biological parents. In order to provide assistance and enable adoptive and biological parents to obtain the required certification and obtain no-objection from both District Magistrate as also the foreign authorities, CARA would consider implementing the following steps:

(i) Creation of a database of all SDMs/District Magistrates as also the State Adoption Resource Agencies and District Child Protection Unit who will need to be contacted for the purpose of verification and issuance of certificates;

(ii) Publication of such a database on CARA’s website;

(iii) Creation of a help desk at CARA which shall be available both physically and online. The help desk/helpline should have a 24- hour helpline, considering the time differences in different jurisdictions. This would enable adoptive parents to contact CARA as per their convenience. The feasibility of the same shall be reviewed by CARA and shall be submitted before this Court by way of a status report;

(iv) CARA shall also consider permitting advocates/lawyers to appear as authorized representatives to coordinate and facilitate the various formalities that are required to be undertaken;

Read concluding section on thedailyguardian.com

(v) Mechanism to be created to enable biological or adoptive parents to appear even virtually or be available telephonically, whenever CARA requires to contact them or interact with them;

(vi) All communications with foreign authorities or District Magistrates or any other parties made by CARA shall also be copied by an e-mail to the party concerned as also their authorized representatives so that the procedure being followed and the progress of the application is within their knowledge as well. This would also enable the parties concerned to follow up with the concerned foreign authority or with the District Magistrate for issuance of the certification.”

Be it noted, the Bench then lays bare in para 13 that, “Mr. Atul Nagarajan (Mb. No. 9811169087), ld. Counsel who is familiar with adoption matters and who is present in Court today, is appointed as an Amicus Curiae to assist the Court in these petitions. Mr. Nagarajan, may be provided with electronic copies of these writ petitions by the Court Master, to enable him to assist this Court.”

It is worth noting that the Bench then directs in para 14 that, “Let a status report in respect of the implementation of the above steps be placed on record within two weeks. In the status report, CARA shall also mention the details of the number of applications which are pending for inter-country adoption and the time period for which they have been pending with CARA. Steps taken qua each of the applications and their respective status shall also be placed before the Court. In the case of all inter-country adoption applications which are pending, CARA shall inform the parties concerned about the 2021 Regulations so that the said applications can also be processed towards issuance of NOCs.”

For sake of clarity, the Bench then also added in para 15 that, “In the meantime, all the ld. Counsels for the Petitioners as also the ld. Amicus Curiae may place on record their suggestions if any, in this regard.”

Quite significantly, the Bench then directs in para 16 that, “Let Court notice be issued to Mr. Kirtiman Singh, ld. CGSC, Union of India, with a copy of this order to enable him to obtain instructions from Ms. Preeti Pant, Joint Secretary, Ministry of Women and Child Development, Government of India. The Union of India to also place on record the status report in respect of the implementation of the 2021 Regulations.”

Of course, the Bench then hastens to add in para 17 that, “On the next date, the Nodal Officer for HAMA adoptions, at CARA, shall be present in Court.”

It is worth paying attention that the Bench then directs in para 18 that, “List these petitions on 20th December, 2021.”

Finally, the Bench then concludes by making it clear in para 19 that, “These are part-heard matters.”

In a nutshell, this extremely commendable, cogent, composed, concise and convincing judgment by a single Judge Bench of Justice Prathiba M Singh of the Delhi High Court lays bare the steps to be taken for enabling adoptive and biological parents to obtain the required certification and no objection from District Magistrates, foreign authorities and Central Adoption Resource Authority (CARA) in relation with inter country adoptions. The same must be done at the earliest. This is the real purpose also of this learned judgment and so its implementation brooks no delay!

Sanjeev Sirohi, Advocate

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Policy & Politics

An airport at Jewar: Noida and Greater Noida get ready for take-off

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The foundation-laying ceremony of the Jewar International Airport by the Prime Minister heralds significant future economic activity in and around the airport. With an estimated cost of INR 34,000 Cr, the airport, once completed, will ease traffic at the IGI Airport, create a massive number of jobs for the local population, and give a major impetus to the property market in Noida, Greater Noida, and Yamuna Expressway.

These regions were previously speculator havens and needed significant impetus to attract end-user demand. For an area to become end-user-centric and liveable, an infrastructure project like the Jewar Airport can help kick-start more real estate developments, including housing, commercial, retail, and hospitality projects.

Interestingly, after the pandemic, the relatively affordable markets of Noida and Greater Noida had begun to see some demand uptick. Focus on Noida and Greater Noida increased manifold in the residential and commercial real estate segments. The airport will help push this demand even further.

PLOTTED DEVELOPMENTS TO GAIN MOMENTUM

The height restrictions for developments near airports and the newly-evolved homebuyer preferences post COVID-19 may combine to push up the viability of plotted developments around the Jewar Airport. In recent times, plots and independent homes have gained a lot of popularity in Delhi-NCR.

To illustrate – residential plots around the airport selling at INR 22,000 per sq. yard a year have seen prices increase to INR 30,000-32,000 per sq. yard by now, depending on the exact juxtaposition of the plot vis-à-vis the upcoming airport.

A MAJOR BOOST FOR THE REGION

If the construction progresses as per the schedule and Phase 1 completes by the second half of 2024, there will be significant ‘real’ benefits. Already, over the last year, commercial activity – particularly warehousing – saw increased momentum in and around the airport – also factoring in other mega projects in the vicinity, including the Film City.

Already, there is an uptick in office leasing in Noida. Various private institutions are now scouting for land in and around the airport. The Greater Noida Authority has boosted investments into the region by attracting big companies with various incentives.

While the future for real estate around Jewar Airport certainly looks bright, investors, end-users, and developers must continue to tread with caution. The arrival of a second international airport in NCR will have a positive impact on the real estate market in and around the region and the state of UP. However, investment gains expectations must be more realistic than speculative.

Over the short-to-mid-term, the area in and around the airport will undoubtedly witness significant development activity by players who hold suitable land banks there. Many players have been hoping to cash in on this mega project since it was announced several years ago and bought up large land parcels in the vicinity.

For these far-sighted developers, the time to come forward and weigh the best options is finally at hand. However, they will need to consider that the nearby areas, including Noida, Greater Noida, and Yamuna Expressway already have a lot of residential projects available.

As per ANAROCK data, the total available housing stock in Noida, Greater Noida, and Yamuna Expressway collectively stands at nearly 54,450 units (as on Q3 2021). This is 33% of the total stock in the entire NCR. Interestingly, back in 2019, the total available stock in the three areas was approx. 67,830 units. With demand rising in these cities after the pandemic, housing inventory declined by nearly 20% in this period.

NOTABLE FUTURE TRENDS

Once operational, the Jewar Airport will be a major game-changer for Noida and Greater Noida, and also the hitherto obscure property markets in the nearby hinterlands. Some of the most significant trends to watch for in the long-term include:

End-user Demand: Despite being more affordable than markets like Gurgaon and Delhi, Greater Noida and areas along Yamuna Expressway had been unable to position themselves as solid end-user markets due to lacklustre infrastructure facilities. The new airport will induce a massive infrastructure boost and make these areas more liveable and active. This will attract increasing interest from end-users in this region.

Greater Noida & Yamuna Expressway – New Affordable Options for First-time Homebuyers: With increased connectivity and several infrastructure upgrades on the anvil, these two regions will see significant real estate development in the times to come. These regions are more affordable than Gurgaon or Delhi, where prices are largely unaffordable for many. First-time budget-conscious homebuyers will have viable alternatives in these areas.

Commercial RE Uptick: The new airport will increase demand for housing, as well as commercial real estate like office and retail spaces. More and more office spaces will come up in this region as rentals there will be relatively lower than in Gurugram.

Moreover, COVID-19 came as a boon for the Noida office market, as demand for Grade A office space in the city was much higher than in Gurugram. To rein in costs during the pandemic, several corporates, start-ups, and other businesses saw Noida as a better alternative in 2020. Now, the upcoming Jewar international airport gives Noida an additional advantage.

As per ANAROCK research, the avg. monthly rentals for Grade A office spaces in Noida are anywhere between INR 50 – 80 per sq. ft. In Gurugram’s prime areas, they range between INR 85 –125 per sq. ft.

Steady Future Capital Appreciation: Both Greater Noida and Yamuna Expressway historically aw high investor activity. While the areas always looked promising for end-users, their liveability quotient was a challenge. Many housing projects along the Expressway thus remained unoccupied and were tagged as ‘ghost towns.’ With the new airport drawing more end-users, the region will finally see steady capital appreciation based on actual demand, not speculation.

Tourism Boost in Mathura and Agra: The new airport will significantly boost tourism in Mathura and Agra. These cities are already well-connected with the national capital via the Yamuna Expressway, and the airport will massively increase tourist footfalls. This, in turn, will help these cities’ overall real estate markets in the times to come. The airport will also act as a catalyst for Western UP’s real estate market.

With the Jewar Airport finally set to take off, we can reasonably expect significant activity to commence over the next 2-4 years.

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Policy & Politics

LIECHTENSTEIN, A NEW HOPE FOR THE WORLD!

We have been celebrating ‘International Day for the Elimination of Violence Against Women’ for the last 28 years but is it making any difference?

Vijay Darda

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On my recent visit to Switzerland, I also visited Liechtenstein, a small country in its neighbourhood, and met the people there. Before telling you the inspirational story of this very small country of Europe, let me remind you that on November 25, the whole world is going to celebrate ‘International Day for the Elimination of Violence Against Women’. This day was conceived in 1993 under a resolution of the United Nations General Assembly. This year, the celebrations will continue till Human Rights Day on December 10. The goal is to curb all kinds of violence against girls and women around the world. They should get the freedom to choose and shape their own destiny and no one should infringe upon their rights!

It has been almost 28 years since we have been celebrating ‘International Day for the Elimination of Violence Against Women’. Therefore, it is pertinent to assess whether this day has been successful in creating awareness about atrocities against women and most importantly, we need to know whether the instances of atrocities against the fair sex have come down. I think it would be relevant if I tell you the story of Liechtenstein, a very small country in Central Europe between Austria and Switzerland, which has demonstrated to the world that atrocities against women can be rooted out. The population there is less than 40,000 and there are 126 boys per 100 girls. Despite this skewed ratio, there was not a single incident of rape in the last year i.e. 2020! Of course, this difference in the sex ratio is vast, which is a result of the desire for boys. But now Liechtenstein has passed a strict law against abortion. The reason for the number of rape being zero is not at all that there are police in every street and locality! The reality is that there are only 125 policemen including 90 officers in the entire country of 160 square kilometres. Liechtenstein has adopted a zero tolerance policy to eliminate crimes against women. Moreover, it has also succeeded in establishing respect for women in the society. A major reason is also the education level of that country where literacy is 100 per cent.

The success achieved by Liechtenstein in ensuring an atrocity-free atmosphere for its women has set a new example before the whole world. If we are determined at the social level, at the government level and at the private level to end every atrocity against women, there is no reason why we should not get success!

Atrocities against women are a matter of serious concern for us Indians as well because our record in this area is quite poor. Even now more than 80 incidents of rape take place every day and some form of crime is committed against women every second-third minute. Even in the developed countries of the world, the situation is not any good. Be it developed countries like Russia, America, China, Japan or our neighbouring countries like Pakistan, Nepal or Bangladesh, I have closely observed the situation everywhere and can say that there is no assured safety for women anywhere. In our country too, there are documented tales of atrocities against and humiliation of women since the Mahabharat period. But the recent incident in Afghanistan has crossed all the limits of barbarism against the female population. The crude and barbaric Taliban government has made the lives of women there miserable and the world is reduced to being a mute spectator. Alarmingly, the barbarism of primitive times is being practised in the civilised era and destitute women are becoming victims of suppression. Imagine, when the whole world will be celebrating ‘International Day for the Elimination of Violence Against Women’ on November 25, Afghan women will either be sobbing in a dark closed room or suffering the dreadful whip of a Taliban vigilante for going out on the street! Does the United Nations, which has mandated to observe ‘International Day for the Elimination of Violence Against Women’, not have any duty towards Afghan women, against whom the Taliban cops have unleashed barbarism with extreme vengeance?

As far as other countries of the world are concerned, the United Nations alone has collated the overall figures that highlight that every third woman or girl is a victim of some form of sexual assault in her life. Girls fall prey to the dirty mentality of their acquaintances and women fall prey to the lust of their own partner. Apart from this, beatings and abusive behaviour have also become the destiny of such women. It was revealed in the survey during the Covid pandemic that domestic brutality against women had increased. This kind of situation prevails in almost every other country. Statistics from the United Nations itself show that only 52 per cent of married women in the world are able to make their own decisions about their personal life. It is the family members who decide about the life of 48 per cent women. As far as the girls are concerned, even today in many countries of the world their marriage is fixed without consulting them. There remains an uncertainty regarding married life. In the new era, cyber crimes against girls have also increased a lot.

Let me quote you another figure released by the United Nations itself. 71 per cent of the victims of human trafficking are women. Of these, three out of four women become victims of sexual assault. These are the figures which have been documented or recorded. The undocumented and unrecorded figures might be several times more. The reality is that half of our population is still awaiting freedom. It is not that there are no strict laws to curb atrocities against women. The fact is that despite the existence of such stringent laws all over the world, the attitude of men towards women has not changed. They continue to objectify women and thus women are falling prey to their lust. That is why, besides a strict law, a big campaign to change the mindset of men to curb the atrocities against women will also have to be launched. It should be deeply inculcated in every man’s mind that woman is our mother, our sister and our life partner. Woman is the manifestation of Almighty in this world. Respect for women is respect for Almighty!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.

If we deeply analyse our inner soul, we will find that a woman is the manifestation of the Almighty on this earth. She is the basis of worldly creation. Unfortunately, the ‘male dominance’ mindset has held her back.

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Policy & Politics

Merely because an arrest can be made lawfully, it doesn’t mandate that arrest must be made: SC

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In a big boost for rights concerning the personal liberty of citizens, the Apex Court in a cogent, commendable, composed and convincing judgment titled Siddharth vs State of Uttar Pradesh Criminal Appeal No. 838 of 2021 (Arising out of SLP (Crl.) No. 5442/2021) delivered just recently on August 16, 2021 has minced just no words to make it absolutely clear that, “Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.” The Bench of Apex Court comprising of Justice Sanjay Kishan Kaul and Hrishikesh Roy also made it amply clear that personal liberty is an important aspect of our constitutional mandate. It goes without saying that all the Courts must always certainly adhere strictly to what has been laid down by the Apex Court in this leading case.

To start with, it is first and foremost stated by the Bench of Apex Court that, “Leave granted. The short issue before us is whether the anticipatory bail application of the appellant ought to have been allowed. We may note that as per the Order dated 02.8.2021 we had granted interim protection.”

While elaborating on the facts of the case, the Bench then enunciates in the next para that, “The fact which emerges is that the appellant along with 83 other private persons were sought to be roped in a FIR which was registered seven years ago. The appellant claims to be supplier of stone for which royalty was paid in advance to these holders and claims not to be involved in the tendering process. Similar person was stated to have been granted interim protection until filing of the police report. The appellant had already joined the investigation before approaching this Court and the chargesheet was stated to be ready to be filed. However, the reason to approach this Court was on account of arrest memo having been issued.”

Needless to say, the Bench then puts forth in the next para that, “It is not disputed before us by learned counsel for the respondent that the chargesheet is ready to be filed but submits that the trial court takes a view that unless the person is taken into custody the chargesheet will not be taken on record in view of Section 170 of the Cr.P.C.”

Simply put, the Bench then envisages in the next para that, “In order to appreciate the controversy we reproduce the provision of Section 170 of Cr.P.C. as under:

“170. Cases to be sent to Magistrate, when evidence is sufficient. – (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.”

To put things in perspective, the Bench then quite pertinently observes in the next para that, “There are judicial precedents available on the interpretation of the aforesaid provision albeit the Delhi High Court. In Court on its own motion v. Central Bureau of Investigation 2004 (72) DRJ 629, the Delhi High Court dealt with an argument similar to the contention of the respondent that Section 170 Cr.P.C. prevents the trial court from taking a chargesheet on record unless the accused is taken into custody. The relevant extracts are as under:

“15. Word “custody” appearing in this Section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the chargesheet whereafter the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.

16. In case the police/Investigating Officer thinks it unnecessary to present the accused in custody for the reason that accused would neither abscond nor would disobey the summons as he has been co-operating in investigation and investigation can be completed without arresting him, the IO is not obliged to produce such an accused in custody.

19. It appears that the learned Special Judge was labouring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.

20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in-charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out.””

Furthermore, the Bench then states that, “In a subsequent judgment the Division Bench of the Delhi High Court in Court on its own Motion v. State (2018) 254 DLT 641 (DB) relied on these observations in Re Court on its own Motion (supra) and observed that it is not essential in every case involving a cognizable and non-bailable offence that an accused be taken into custody when the chargesheet/final report is filed.”

It cannot be glossed over that the Bench then points out that, “The Delhi High Court is not alone in having adopted this view and other High Courts apparently have also followed suit on the proposition that criminal courts cannot refuse to accept a chargesheet simply because the accused has not been arrested and produced before the court.”

While referring to another relevant case law, the Bench then added in the next para that, “In Deendayal Kishanchand & Ors. v. State of Gujarat 1983 CriLJ 1583, the High Court observed as under:

“2.…It was the case of the prosecution that two accused, i.e. present petitioners Nos. 4 and 5, who are ladies, were not available to be produced before the Court along with the charge-sheet, even though earlier they were released on bail. Therefore, as the Court refused to accept the charge-sheet unless all the accused are produced, the charge-sheet could not be submitted, and ultimately also, by a specific letter, it seems from the record, the charge-sheet was submitted without accused Nos. 4 and 5. This is very clear from the evidence on record. […]

8. I must say at this stage that the refusal by criminal Courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law. Therefore, it should be impressed upon all the Courts that they should accept the charge-sheet whenever it is produced by the police with any endorsement to be made on the charge-sheet by the staff or the Magistrate pertaining to any omission or requirement in the charge-sheet. But when the police submit the charge-sheet, it is the duty of the Court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence. Likewise, police authorities also should impress on all police officers that if charge-sheet is not accepted for any such reason, then attention of the Sessions Judge should be drawn to these facts and get suitable orders so that such difficulties would not arise henceforth.””

Quite significantly, the Bench then hastens to add in the next para that, “We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 of the Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the chargesheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the chargesheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word “custody” appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.”

More significantly, the Bench then holds in the next para that, “We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it [Joginder Kumar v. State of UP & Ors. (1994) 4 SCC 260]. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

Most significantly, the Bench then goes on to hold in the next para that, “We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar’s case how a police officer has to deal with a scenario of arrest, the trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of the provisions of Section 170 of the Cr.P.C. We consider such a course misplaced and contrary to the very intent of Section 170 of the Cr.P.C.”

As it turned out, the Bench then went on to hold in the next para that, “In the present case when the appellant has joined the investigation, investigation has completed and he has been roped in after seven years of registration of the FIR we can think of no reason why at this stage he must be arrested before the chargesheet is taken on record. We may note that learned counsel for the appellant has already stated before us that on summons being issued the appellant will put the appearance before the trial court.”

Finally, the Bench then holds in the final para that, “We accordingly set aside the impugned order and allow the appeal in terms aforesaid leaving the parties to bear their own costs.”

In a nutshell, this learned, latest, laudable and landmark judgment places the personal liberty of any accused in any given case on the highest pedestal. Even Article 21 of our Constitution manifestly accords supreme importance to the right to life and personal liberty of citizens. It thus merits no reiteration that this noteworthy ruling also makes it quite abundantly clear that nowhere does Section 170 of the CrPC imposes any obligation of any kind on the officer-in-charge to arrest each and every accused at the time of filing of the charge sheet which must be abided and adhered to in totality! In other words, we thus see the Supreme Court had itself made it quite discernibly clear that, “Merely because an arrest can be made lawfully, it does not mandate that arrest must be made.”

The judgement places the personal liberty of any accused in any given case on the highest pedestal. Even Article 21 of the Constitution manifestly accords supreme importance to the right to life and personal liberty of citizens. It thus merits no reiteration that this noteworthy ruling also makes it abundantly clear that nowhere does Section 170 of the CrPC imposes any obligation of any kind on the officer-in-charge to arrest each and every accused at the time of filing of the chargesheet which must be abided and adhered to in totality. In other words, we thus see the Supreme Court had itself made it clear that, “Merely because an arrest can be made lawfully, it does not mandate that arrest must be made.”

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