Without any iota of doubt, the Jammu and Kashmir High Court has very rightly, remarkably and rationally in a latest, learned, laudable and landmark judgment titled Wasim Ahmad Trag v/s Union Territory of J & K and another in WP (Crl.) No. 12/2021 that was reserved on 4 June, 2021 and then finally delivered on July 15, 2021 while setting free a detenu from preventive custody has held that the procedural requirements are the only safeguards available to the detenu and therefore, they must be strictly complied with. A Single Judge Bench comprising of Justice Rajnesh Oswal of Jammu and Kashmir High Court made it clear that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to be followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. It must be apprised here that the petitioner in this noteworthy case had challenged the order of preventive detention which was passed against him while he was in custody in connection to alleged commission of offences under the NDPS Act.
To start with, the ball is set rolling in para 1 of this cogent, convincing and composed judgment authored by a Single Judge Bench comprising of Justice Rajnesh Oswal of Jammu and Kashmir High Court wherein it is put forth that, “Through the medium of this petition filed through his Uncle, the petitioner has questioned the order of detention bearing No. 01/DMP/PSA/2021 dated 02.01.2021 issued by the respondent No. 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978 (for short, the Act).”
To put things in perspective, the Bench then points out in para 2 of this judgment that, “It is stated in the petition that the petitioner was arrested by the Police of Police Station, Pulwama in the month of January, 2021 and was implicated in the FIR bearing No. 201/2020 for commission of offences under section 8, 21 and 29 of the NDPS Act by the Police Station, Pulwama. While the petitioner was in custody in the aforementioned FIR, the petitioner was ordered to be detained under the Act vide order dated 02.01.2021.”
While dwelling on the petitioner questioning the detention order, the Bench then enunciates in para 3 that, “The petitioner has questioned the order of detention inter alia on the ground that the petitioner has been detained on the basis of vague grounds and no prudent man can make a representation against such vague allegations and that the order of detention has been executed in the month of February, 2021 that after a delay of one month, no documents those have been relied upon by the Detaining Authority i.e. the respondent No. 2 herein have been furnished to the petitioner and the constitutional as well as procedural safeguards as envisaged by the Constitution of India as well as under the Act have not been complied with by the Detaining Authority.”
As against what is stated in para 3, the Bench then brings out in para 4 that, “The respondents have filed the response, in which they have stated that the petitioner has been detained pursuant to the order of detention and they have categorically stated that the procedural as well as statutory safeguards enshrined under Article 22(5) of the Constitution of India and section 13 of the Act have been complied with by the respondents while passing the detention order. They have further stated that they have supplied all the requisite documents to the petitioner so as to enable him to make an effective representation to the detaining authority and to the Government. Pursuant to the order of detention, the warrant was executed by the Executive Officer, Syed Jaffar of Police Station, Awantipura and the petitioner was handed over to the Superintendent of Central Jail, Jammu for lodgment. The contents of the detention order/warrant and the grounds of detention were read over and explained to the petitioner in the language he fully understood.”
To say the least, the Bench then notes in para 5 that, “The respondents have produced the soft copy of the detention record.” On the one hand, the Bench then envisages in para 6 that, “Mr. M. Ashraf Wani, learned counsel for the petitioner has vehemently reiterated the grounds those have been taken in his petition. He laid much emphasis only on the ground that the petitioner could not have been detained under the Act as the petitioner was implicated in the FIR bearing No. 201/2020 for commission of offences under sections 8, 21 and 29 of the NDPS Act and as the quantity of the contraband was commercial quantity, the petitioner could not have been granted bail, as such, the order of detention is bad in law as there was no likelihood for grant of bail to the petitioner.”
On the other hand, the Bench then mentions in para 7 that, “On the contrary, Mr. Mir Suhail, learned Additional Advocate General appearing for the respondents has vehemently argued that all the documents have been served upon the petitioner. Mr. Suhail has also argued that the detention order is legal and all procedural and statutory safeguards have been complied with while passing the order of detention, as such, the order of detention is sustainable in the eyes of law.”
Briefly stated, the Bench then observes in para 8 that, “Heard and perused the detention record meticulously.”
Quite remarkably, the Bench then very rightly observes in para 9 that, “Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. In Abdul Latif Abdul Wahab Sheikh v. B. K. Jha reported in (1987) 2 SCC 22, the Apex Court has held that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any, value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.”
Most remarkably and also most significantly, what forms the cornerstone of this brief, brilliant and balanced judgment is then elaborated upon in para 10 wherein it is postulated that, “From perusal of grounds of detention it reveals that the order of detention has been passed on the ground of the involvement of the petitioner in FIR bearing No. 72/2014 for commission of offences under sections 147, 148, 336, 435, 307, 353, 332 and 427 RPC, FIR bearing No. 78/2014 for commission of offences under sections 147, 148, 341, 336 and 427 RPC, FIR bearing No. 100/2015 for commission of offences under sections 148, 149, 341 and 336 RPC of Police Station, Tral and thereafter, the petitioner was found involved in FIR bearing No. 201/2020 of Police Station, Awantipora for commission of offences under sections 8, 21 and 29 of the NDPS Act as while driving a vehicle bearing registration No. JK01X 4920, the petitioner was found to be in possession of 17 bottles of Codeine Phosphate and 39 tablets of Spasmo Proxy-Von Plux, It is further stated that the petitioner is at present in custody and has applied for bail in the court of law. A perusal of the detention record reveals that the order of detention was executed on 03.02.2021 and notice of detention and contents of detention warrant and grounds of detention were read over to the petitioner in English and explained to him in the Urdu and Kashmiri language. A perusal of the execution report reveals that only four leaves i.e. one leaf of order of detention, one leaf of notice of detention and two leaves grounds of detention were furnished to the petitioner at the time of execution of warrant. However, the perusal of the grounds of detention reveals that the Detaining Authority has relied upon all aforementioned FIRs while passing the order of detention but none of the FIR has been furnished to the petitioner as is evident from the execution report and, as such the petitioner has been deprived of his right to make an effective representation against his preventive detention to the detaining authority as also to the Government. It is only after the petitioner is supplied all the material that he can make an effective representation to the Detaining Authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent No. 2 to supply the material relied upon by him, while passing the detention order renders it illegal. Reliance is placed upon the decision of Apex Court in Thahira Haris v. Govt. of Karnataka, reported in (2009) 11 SCC 438, the relevant para is reproduced as under: “30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.””
Adding more to it, the Bench then also points out in para 11 that, “Otherwise also, as the petitioner was found to be involved in carrying the commercial quantity of the contraband, so in ordinary course the petitioner could never have been granted bail under the NDPS Act. As such, this Court has no hesitation in observing that the satisfaction recorded by the respondent No. 2 that the court may grant bail in the instant case is without any basis.”
Finally, the Bench then holds in para 12 that, “In view of the above, this petition is allowed. Detention order No. 01/DMP/PSA/2021 dated 02.01.2021 is quashed. Petitioner (detenue) be set free from the preventive custody, provided he is not required in any other case.”
All said and done, it is the bounden duty of all the courts in our country to always strictly comply with what is the essence of the Jammu and Kashmir High Court judgment in this notable case that, “The procedural requirements are the only safeguards available to the detenu and therefore, they must be strictly complied with.” Thus a Single Judge Bench of Justice Rajnesh Oswal of the Jammu and Kashmir High Court in this case has very rightly held that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to be followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. It must be adhered to in totality. The liberty and the constitutional rights guaranteed to a citizen under our Constitution is paramount and has to be protected always. This is what is the crux also of this notable judgment!
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MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?
The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.
The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.
It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?
In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.
It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.
The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-
Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.
Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.
HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956
The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.
The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
FACTS OF THE CASE:
The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.
The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.
the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.
Contentions Raised by the Parties:
It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.
It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.
The submissions of the petitioner were countered by the Respondent on the following grounds:
Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.
It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.
The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.
The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.
Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.
KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?
The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.
The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.
The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.
In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.
Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.
It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.
Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.
It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.
Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.
The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?
In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.
Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.
The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.
GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN
The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.
It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.
It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.
It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.
In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.
It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.
Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.
It was ordered by the court status quo till July 11, the next date of hearing.
The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.
In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.
In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.
Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.
Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.
It is submitted that these observations would apply across the board, in the entire NCT of Delhi.
Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.
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