Illegal detention and the compensation discrepancies: An (im)perfect judicial matchmaking - The Daily Guardian
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Illegal detention and the compensation discrepancies: An (im)perfect judicial matchmaking

Shahzeb Ahmed

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On 1 September 2020 Allahabad High Court, in the matter of Nuzhat Parween vs. State of Uttar Pradesh and Anr. (Khafeel Khan Case), held that the order for preventive detention of Dr. Kafeel Khan, under National Security Act is illegal. Therefore, the same was set aside by the court. However, this case brings to the limelight, an issue pertaining to wrongful confinement of an individual. The legal framework in India has a provision for victim compensation under Section 357 of Code of Criminal Procedure, 1973.

Under Section 357A of the Act, if the accused have been acquitted or discharged, then he needs to be compensated. The presumption made in the law is that the accused can commit an offence against a State or its constituent organs, the state itself cannot commit any offences (punishable under IPC) against the citizens.

A similar counterpart can be found in United Kingdom. The legislation in question is called the Criminal Justice System, 1988. Section 133, of the said act provides for compensation in cases of miscarriage of justice. An instance of invocation of this provision was witnessed in R(Adams) v. Secretary of State of Justice. In this case, the UK Supreme Court pronounced a landmark judgement where they have expanded the scope of the term “miscarriage of justice” by rejecting the contention that, only those who can prove their innocence would be entitled to compensation for miscarriage of justice. In their view, the word should also include the cases where fresh evidence can be given to negate the possibility of committing a crime by the accused. Additionally, the court observed that the provision will also cover the conviction due to deficiency of investigation process and trial.

It is interesting to note that both UK and India are signatories to the International Covenant on Civil and Political Rights. The Article 14(6) of the International Covenant clearly states that a person who has suffered punishment due to miscarriage of justice as a result of such conviction shall be compensated. However, it is disheartening to see that whereas UK has taken steps to abide by the mandates of this convention, India is arguably lagging behind.

It is also to be borne in mind that the issue of such miscarriage of justice the last two decades. Back in 1983, Supreme Court of India delt with the question of compensation for unlawful detention in the case of Rudal Shah v. State of Bihar (1983 AIR 1086). In this case, the petitioner who was detained in the prison for more than 14 years after his acquittal filed a habeas corpus petition under Article 32 of the Constitution, praying for his release on grounds that his detention was unlawful. Additionally, he prayed for other reliefs such as compensation for his illegal detention. The Supreme Court held that, the right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the state as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to their rights. The court passed an order that State must pay to the petitioner sum of Rs. 30,000/- as compensation. Further, the court held that Article 21 which guarantees the right of life and liberty will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention.

In my view, one of the means by which violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Refusal to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated.

A similar issue also arose before the apex Court in Bhim Singh v. State of Jammu & Kashmir (AIR 1986 SC 494). In this case court ordered the State to pay the compensation of Rs. 50,000/- to the MLA of Jammu and Kashmir assembly for not producing him before the magistrate within 24 hours of the arrest.

The latest of this chain of cases, where the Supreme Court has given an exemplary compensation is the case of S. Nimby Narayanan vs Siby Mathews and Ors. In this case the appellant was arrested on allegations of espionage. After investigation, the Central Bureau of Investigation submitted report before Chief Judicial Magistrate stating that evidence collected indicated that allegations of espionage against scientists, including Appellant, were found to be false and accused were discharged. Even after disposal of the case, the State did not take any action against the erring police officers. The petition was filed before the High Court to take necessary action against erring police officers for conducting malicious investigation. A single-judge bench quashed order passed by State whereby government had decided not to take any disciplinary action against police officers. On further appeal, division bench left it to the government to consider or not to consider opinion expressed by CBI in its said report for purpose of taking disciplinary action. This order was then challenged before the Supreme Court by the petitioner on the aforesaid grounds. The court held that the prosecution charges initiated by the State police was malicious and it has caused tremendous harassment and immeasurable anguish to the petitioner. It was not a case where the accused was kept under custody and, eventually, after trial, he was found not guilty. The State police was dealing with an extremely sensitive case and after arresting the accused and some others, the State, on its own, transferred the case to the CBI. After comprehensive enquiry, the closure report was filed. An argument had been advanced by the State, as well as by the other respondents, that the fault should be found with the CBI but not with the State police, for it had transferred the case to the CBI. The impugned submission was categorically rejected by the court. The court observed that in in this case, criminal law was set in motion without any basis. It was initiated, if one was allowed to say, on some kind of fancy or notion. Liberty and dignity of the accused which were basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. In the opinion of the court, this situation invites the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution and needs to be dealt with promptness. It is because life commands self-respect and dignity. The court also held that suitable compensation had to be awarded, without any trace of doubt, to compensate the suffering, anxiety and the treatment by which the quintessence of life and liberty under Article 21 of the constitution withers away. Thus, the court awarded Rs. 50 Lacs as compensation.

The above cases provide an insight into the discrepancies of ad-hoc compensation scheme, one that functions on the discretion of the judiciary. Whereas, Rudal Shah received meagre Rs.30,000 for spending 14 years illegally detained but Bhim Singh received Rs. 50,000 for just six days detention. Again, S. Nimby Narayanan the exemplary compensation was given to the petitioner because of violation of the same fundamental right. Thus, this fragile knee-jerk attitude of the court in deciding the compensation raises a more intriguing question: whether one individual’s fundamental right is more important than the others’?

To this respect, the 277th Law Commission Report has recommended an amendment in Code of Criminal Procedure, 1973 to address the issue of wrongful prosecution. The report recommends

“Compensation under this framework will include both pecuniary and non-pecuniary assistance…while pecuniary assistance will be in terms of monetary award as may be determined by the special court; non- pecuniary assistance will be awarded in the form of services such as counselling, mental health services, vocational/employment skills development, and such other similar services. Non pecuniary assistance shall also include a specific provision for removing disqualification attached to a prosecution or conviction…”

In my opinion, while the law commission report is fairly comprehensive but little has been done to put the same into practice. Notably, these recommendations were made in 2018. Till date, the only progress that has been made in this regard is a PIL filed in the Supreme Court, praying that laws to be enacted to provide compensation to individuals who have been wrongfully prosecuted and convicted by the state. This lacklustre attitude certainly needs a complete overhaul. Additionally, It is high time India should adhere to its commitment under the International Covenant on Civil and Political Rights.This is what the law commission has relied upon while coming up with the 277th report.

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ON THE PLEA TO STAY THE RETIREMENT OF EXISTING MEMBERS UNTIL THE ACTUAL JOINING OF NEW MEMBERS, SUPREME COURT ISSUES NOTICE

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The Supreme Court in the case Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi v Union of India & Or’s observed in a petition till all the vacancies which arose from 2019-2022 are filled by actual joining of candidates by putting a stay on the impending retirement of all the existing Judicial/ Administrative Members of CAT the court further issued the notice.

In the plea it was stated in the petition that although 35 Judicial Members including the Chairman and 35 Administrative Members cater to 19 benches and 8 circuit benches, many benches of the Tribunals have become non functional because of the retirement of members at regular intervals as it was Preferred by Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi.

Furthermore, the petition stated the Jabalpur Bench, Cuttack Bench, Lucknow Bench, Jammu and Srinagar Bench are left with only one member either Judicial or Administrative because of which no division bench can be constituted there. As on 31st March, 2022, the Guwahati Bench has become totally non-functional as no Member is available there.

Justice Chandrachud stated by taking a note of the above submissions:

A bench can’t be constituted with one member.

Justice Chandrachud further asked to submit an up-to-date chart with regards to the number of members who are present in the various benches of CAT and ordered the counsel for the Central Administrative Tribunal (Principal Bench) Bar Association, New Delhi to do the same.

Justice Kant further added by taking a note of the above submissions:

The members whose term is likely now to expire in Future, give the details of those members.

The benches of the Central Administrative Tribunal will become non-functional if the aforesaid situation continues for a couple of more months, more than half of the sanctioned stated in the plea.

AOR Amita Singh Kalkal, has filled a plea before the Supreme Court.

The bench of comprising of Justice DY Chandrachud and the justice Surya Kant by making a note of the above submissions ordered to issue a notice and in addition the liberty to serve the Central Agency.

The bench ordered to comply with the same and listed the matter on 13th May.

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Supreme Court upholds disciplinary action against judicial officers for showing undue favour to a party in the worst kind of judicial dishonesty

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The Supreme Court in the case Muzaffar Hussain versus State of Uttar Pradesh observed a judicial officer in Uttar Pradesh for passing orders to unduly favour certain parties for taking against the disciplinary action.

The High Court reduced the punishment as curtailment of pensionary benefits by 70% and refused to interfere with the findings and the officer approached the Supreme Court for Challenging the High Court’s verdict.

A writ petition was filed before the High Court challenging the punishment by the officer. In 2005, the Allahabad High Court initiated disciplinary enquiry against him for misconduct and found the charges to be proved. On the recommendation made by the Full Court, the State of Uttar Pradesh imposed a punishment of curtailment of his pensionary benefits by 90% to join the Central Administrative Tribunal as a judicial member in 2003, the officer took Voluntary Retirement from Service.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

The bench of Justice Bela Trivedi, an judgement authored noted:

the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case and if he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion. The extraneous consideration for showing favour need not always be a monetary consideration further she said that In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct.

while being the Additional District Judge at Agra during 2001 to 2003, the officer named Muzaffar Hussain and the charge was that in a batch of land acquisition matters in violation of settled principles in order to unduly favour certain subsequent purchasers had exorbitantly enhanced the compensation.

Thereafter the Apex Court added that under Article 235 of the Constitution of India the High Court had perfectly justified in exercising its supervisory jurisdiction, under these circumstances.

The division bench comprising of justice DY Chandrachud and the justice Bela M Trivedi observed under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct and that showing undue favour to a party.

The Court stated, the case must be decided by the Judge on the basis of the law applicable to the case and the facts on record. He is not performing his duties in accordance with law if he decides the case or extraneous reasons.

Supreme Court observed while dismissing the appeal that the appellant had misconducted himself while discharging his duties as a judicial officer and there was enough material and evidence to show that. to unduly favour the subsequent purchasers of the acquired lands who had no right to claim compensation, and that such orders were actuated by corrupt motive, and had passed the judicial orders in utter disregard of the specific provisions of law.

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ONCE CIRP IS ADMITTED AND MORATORIUM IS ORDERED THE SARFAESI PROCEEDINGS CANNOT BE CONTINUED AGAINST CORPORATE DEBTOR: SC

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The Supreme Court in the case Indian Overseas Bank vs RCM Infrastructure Ltd observed that once the CIRP is initiated and the moratorium is ordered, the proceedings under the SARFAESI Act cannot be continued.

the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered as Section 14(1)(c) of the IBC has an overriding effect interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited with respect to any other law, any action to foreclose, to recover or to enforce any security, the court observed in view of this provision.

It was further being observed and was stated clearly that once the CIRP is commenced, there is complete prohibition for any action created by the Corporate Debtor to foreclose, recover or enforce any security interest are prohibited with respect of its property. All the actions including any action under the SARFAESI Act to foreclose, to recover or to enforce any security interest are prohibited, after the CIRP initiate, the legislative point is clear at this, the bench observed while referring to Section 14 and Section 238 of the IBC.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

under Section 10 of the Insolvency and Bankruptcy Code, 2016, an application was filled by the Corporate Debtor before NCLT. On 03.01.2019, the NCLT admitted the petition and a moratorium was also notified the auction was continued by the bank the auction proceedings and accepted the balance 75% of the bid amount and completed the sale, even after that. The NCLT passed an order setting aside the sale, while allowing the application filled by the Corporate Debtor and the appeal filled by the Bank was dismissed by the Bank and thereafter the bank approached the Apex Court. As to recover the public money availed by the Corporate Debtor, an E-­auction notice came to be issued by the Bank.

The bench comprising of Justice L. Nageswara Rao and the justice B R Gavai observed that in respect of its property including any action under the SARFAESI Act is prohibited in such a situation, any action to foreclose, to recover or to enforce any security interest created by the Corporate Debtor.

The contentions made by bank: on 13th December 2018 and as such, and on 3rd January 2019 the admission of the petition by the learned NCLT would not affect the said sale as the sale in question was complete on its confirmation and further stated that it will not deprive the Bank from receiving the said money in pursuance to the sale which has already been completed, merely because a part of the payment was received subsequently after initiation of CIRP.

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Supreme Court pulls up the state of Kerala for challenging the seniority of upper division clerk

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The Supreme Court in the case The State of Kerala and Or’s. V. Subeer N.S. And Anr observed assailing the Kerala High Court’s order of affirming the seniority of an upper division clerk for filling a Special Leave Petition pulled up the State of Kerala.

The Government lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR based on the review of the Seniority the Director of Public Instruction and the Government while issuing the impugned orders, none of these aspects wee considered to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list and there was no objection and further there was no objections to the rank and seniority assigned to the applicant in the provisional seniority list. the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same as early as on 8th March 2009., the bench observed While affirming the view by KAT.

The said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant’s seniority was reassigned based on his eligibility on the part of the controlling officer it is only by a mistake that he was granted promotion and was assigned the rank in the seniority list, the counsel said to further persuade the bench.

The Bench of Justice Chandrachud remarked that if the counsel feels there is an error you must rectify the error correctly and there was no fraud on his part and all this must be due on a reasonable dispatch.

The bench comprising of Justice DY Chandrachud further observed and noted when the matter was called upon hearing before the bench that the State is here challenging it the bench further remarked by saying that why don’t you do something better? Build schools, roads or infrastructure as one upper division clerk has got seniority.

respondent’s seniority was revised to the date on which he rejoined duty after the leave and the respondent was on leave without allowance at the time of his promotion as U.D Clerk, the counsel appearing for the State contended before the Court.

The Bench comprising of Justice DY Chandrachud and the justice Surya Kant orally remarked while dismissing the SLP against the order dated 01.17.2022., We are not a court of law but a court of justice as well.

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A PLEA IN SUPREME COURT CHALLENGES THE CHANGED NEET-SS 2022 EXAM PATTERN

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The Supreme Court in the case Dr Richa Verma v. National Board of Examination observed the changed examination pattern which would now be comprising of 150 questions from the general i.e., the basic component of the primary feeder broad specialty subject and from all sub- specialty/systems/component of that primary feeder broad specialty subject. A plea filled in the Supreme Court by MD Radiation Oncologists and MD Anaesthesiologists NEET SS 2022 aspirant.

the petitioners have sought issuance of directions to restrain the NBE from excluding / MD Radiotherapy from the eligible feeder specialties for the super specialty course of DM Medical Oncology for NEET SS 2022 and have further sought for restoring the scheme/pattern for the exam further the petitioner deleting the MD Radiation Oncology, against this backdrop.

On 05.10.2021 the Central Government had told the Court that the revised pattern will be implemented only from next year and it may be noted that over the eleventh-hour changes brought to the NEET-SS 2021 pattern after facing the harsh criticism from the Supreme Court.

The petition further states that they will have to compete with candidates who have 100% questions from their postgraduate syllabus/ broad specialty as the new examination scheme is making some candidates write a paper which has no questions from their postgraduate broad specialty.

particularly in favor of MD Medicine in so far as the choice of options is far greater vis-a-vis the choices available to either MD Radiation Oncology or MD Anaesthesia, the pattern is not just a waste of time and effort for all those who have prepared for Critical Care but also grossly biased against few broad specialties and of the other four post-graduate branches there will be no questions from broad specialties.

This is complete waste of time, resources and effort put by the candidates who have been preparing for a super speciality subject for years as it is arbitrarily, illogical, highly partial and unreasonable, while terming the change in pattern, the contentions made by the petitioner.

the new pattern was forcing all the candidates from the broad specialties to write a single paper which will have 100% questions from General Medicine, stated by the petitioner. Furthermore, contending that the erstwhile pattern had a paper with 40% mixed questions from all the broad specialties and 60% questions from Critical Care (i.e., the super-specialty subject) which had ensured a level playing field.

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THE CRIMINAL PROCEEDINGS UNDER SECTION 482 OF THE CRPC CANNOT BE QUASHED MERELY ON THE GROUND THAT NO USEFUL PURPOSE WILL BE SERVED: SUPREME COURT

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The Supreme Court in the case Satish Kumar Jatav vs State of Uttar Pradesh observed that while by prolonging the proceedings of the case, the criminal proceedings cannot be quashed. As when a clear case is made for the offence alleged on the ground that no useful purpose will be served.

under Sections 307, 504, 506 of the IPC and 9 Section 3(10)(15) of the Act, the serious allegations for the offences were made and while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences, the High Court ought to have been more cautious and circumspect. on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous, has not at all being allowed by the High Court. the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated in the manner in which the High Court has disposed of further the High Court has observed in the proceedings of the case that no useful purpose will be served. The aforesaid cannot be a good ground and/or a ground at all to quash the criminal proceedings when a clear case was made out for the offences alleged, appeared while quashing the criminal proceedings by the High Court even for the impugned order passed, the bench overserved while allowing the appeal.

The application under Section 482 Cr.P.C The manner in which the High Court has disposed and quashed the criminal proceedings is not appreciated at all Furthermore the Court has emphasized that the High Court must pass a speaking and reasoned order in such matters. The same has been set aside by the High Court in a most cursory and casual manner.

The allegations made against the accused persons and even on the legality and validity of the order passed by the Magistrate summoning the accused, has not been discussed by the High Court the Court noted.

The appellant contended that there are no reasons whatsoever have been assigned while quashing the criminal proceedings and further the appellant contended that there is no independent application of mind by the High Court. The respondent defended the impugned order, on the other hand before the Apex Court.

the Allahabad High Court quashed the criminal proceedings merely opining that “that no useful purpose shall be served by prolonging the proceedings of the case, while allowing the petition filled by the accused challenging this order and the offences punishable under Sections 307, 504, 506 of the Indian Penal Code and Section 3(10)(15) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the accused to face the trial the Magistrate summoned the accused in the present case.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and reiterated under Section 482 of the Code of Criminal Procedure that a High Court must pass a speaking and reasoned order while disposing petitions.

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