RECALLING OF WITNESSES: A BOON OR A BANE FOR THE CRIMINAL JUSTICE SYSTEM? - The Daily Guardian
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RECALLING OF WITNESSES: A BOON OR A BANE FOR THE CRIMINAL JUSTICE SYSTEM?

Maseeh Syed Yazdani

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INTRODUCTION

The general bias in India towards the adversarial decision-making system is evident. We have a neutral judge that decides a particular case by listening and weighing the arguments presented by both sides. On the other hand, in an inquisitorial decision-making system the judge is actively involved with the lawyers in an attempt to get justice; the judge in this system is not just a decision-maker but is also involved with the purpose of finding the truth. Even though India doesn’t have a full-fledged inquisitorial system, our criminal procedure code has inserted some aspects of it into our criminal judicial system. One such element is seen under Section 202 of the criminal procedure code, which deals with private complaints. Through this section whenever there is a doubt, the judge can ask the police to further investigate the matter, this is an inquisitorial initiative. Another one of such inquisitorial tools can be seen when we take a look at Section 311 of the criminal procedure code, which allows the trial court to call independent witnesses, i.e., the witnesses that haven’t been listed either by the prosecution or the defence. These witnesses can be called if the judge feels that their contribution is essential in deciding the outcome of the case. This section allows the judge to take an initiative and expand his decision-making capabilities by going beyond the witness list that has been presented by the defence and the prosecution. So, in the larger adversarial system that India has there is an injection of an inquisitorial tool such as 311 and due to this reason, this section can be regarded as one of the most integral sections in the criminal procedure code. This section also encourages judges to take more part in the procedural part of the case by involving themselves deeper into the case.

Section 311 of the CrPC states that,

“Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

In essence this section seeks to highlight that a judge has the power to summon or examine a material witness. A Court may summon any person to be a witness or examine any person attending, who is not a witness, at any stage of the investigation, trial or other procedure under this Code.

ANALYSIS OF THE SECTION THROUGH INDIAN CASE LAWS

The Supreme Court in several cases while examining Section 311 has in essence stated that the aim of section 311 is to discover the truth which is the predominant beauty of the criminal procedure code. One such example can be seen in Hanuman Ram Vs State Of Rajasthan & Ors on 13 October, 2008 the Honourable Supreme Court stated that,

“The object underlying Section. 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case.”

Further the case also sheds light on the extent to which Section 311 can be interpreted, by stating that,

“The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case.”

It can clearly be seen that the Supreme Court has explained in great detail how the section is to be implemented and what meaning the section carries with it. The distinction between the first and second part of this section relies on just two mere words, “may” and “shall” as highlighted by the supreme court which goes on to show how integral each and every word is in determining the rationale behind any section in the criminal procedure. This judgement is important as it provides a standalone elongated explanation of Section 311.

The procedure of the trial once the independent witnesses summoned is by the court is that the court examines the witness and then gives a chance to the prosecution and the defence to examine the witness too. Technically here, the chief examination is done by the court then followed by the examinations by the prosecution and the defence. The procedure brought in by section 311 is what makes it an integral tool for India’s criminal judicial system. However, section 311 doesn’t serve this one and only purpose which makes it a double-edged sword.

To see how section 311 act as a double-edged sword we will have to look at an example. Let’s assume that two witnesses are contradicting each other and due to this reason, the judge can’t comprehend the reality of the matter and hence, calls back one of the witnesses through the powers given to him under section 311. This re-examination of a witness is known as recalling of a witness. If there is a genuine blockage or a doubt in the chain of circumstances, then re-examination of witnesses is a genuine solution. However, this provision can be enforced using two pathways, firstly the court can do it Suo Moto and secondly the parties can also seek the permission of the court. Heeralal Alias Nimma vs State Of M.Palso saw the supreme court take stand for the Suo Moto aspect of Section 311 by stating that,

“It is settled in law, if the conditions under this provision are satisfied the Court can call a witness not only on the motion of either the prosecution or the defence, but it can do so on its own motion.”

The same ratio is also highlighted in the case of Mohan Lal Shamlal Soni vs Union Of India where the Supreme Court states that,

“At the risk of repetition it may be said that Section 311 (then Section 540) allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition.”

At times the defence or the prosecution can make an argument to re-call a witness on the grounds that his/her statement has casted doubts in the mind of the court or maybe is conflicting in nature as section 311 allows the lawyers of the parties to make such an application to the court. There is no limitation on the purposes on which recalling can be done, however this reason must be genuine in nature. Depending on the judge’s discretion the witnesses can be recalled, however, section 311 provides flexibility for the parties to revisit in case of any mistakes made in the initial phase of the trial. The Supreme Court expanded on the same in Hanuman Ram Vs State Of Rajasthan by stating that,

“Sometimes the examination of witnesses as directed by the Court may result in what is thought to be “filling of loopholes”. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the Presiding Judge.”

Now, the part in which lawyers request re-examination of witnesses is often misused by lawyers and even more by defence lawyers to delay the trial as you’re essentially going back to examining a witness that has already been examined. A witness examination can take a long period of time and requires a lot of initial procedure such as issuing of summons, a delay can be caused due to personal reasons of the witness and further unavoidable reasons. So, the defence might use section 311 not just to recall the witness for substantive reasons of genuine doubt but to also put a hold to the trial or delay the trial to some extent. These concerns have been clarified by the Supreme in Natasha Singh V CBI (State), where the Supreme highlights that the provisions under Section 311 must not be misused; the court stated that,

“Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties.”

These clever tactics on part of the defence can easily be resolved if the judge identifies frivolousness of the application by the defence and decides the merit of the section 311 application purely on genuine substantive doubts. The Supreme Court in Rajaram Prasad Yadav Vs State Of Bihar & Anr (2013) expanded on how a 311 application should be looked at by stating that,

“The paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.”

Many defence lawyers don’t examine the prosecution witnesses in the initial stages of the trial just to ask for a re-examination of witnesses under section 311, however, a sensible judge wouldn’t allow such application just because he/she would sense what a frivolous reason is and to some extent would also be able to identify the genuine intentions of the defence lawyer. The part of section 311 that can be misused makes it an extremely important provision and also highlights how it is at the crux of it, a double-edged sword.

CONCLUSION

Section 311 even though put as an inquisitorial initiative in our Criminal Procedure Code is regularly being misused by lawyers to delay trials, however, this problem has a very simple solution which calls for an alert and active judge. The double-edged nature of this section can very easily be addressed if a judge can identify the intention through a witness is being re-called by the defence or the prosecution. It is essential that the through the help of the judicial system, Section 311 gets the positive recognition that it very rightly deserves.

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‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

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The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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GUJARAT HC GRANTS RELIEF TO DIPLOMA HOLDERS: STUDENTS CAN’T BE FAULTED FOR PHARMACY COUNCIL’S FAILURE TO APPROVE MEDICAL STORES FOR IMPARTING TRAINING.

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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UTTARAKHAND HC SAYS UTTARKASHI’S BAN ON “MEAT SHOPS” WITHIN 500 METRES OF “RIVER GANGA” IN LINE WITH CONSTITUTIONAL SCHEME

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It is interesting to note that while fully, firmly and finally very rightly and commendably upholding the ban that was imposed on meat shops that was enacted by the Zila Panchayat of Uttarkashi District, the Uttarakhand High Court in an extremely remarkable, robust, refreshing and rational judgment titled Naved Qureshi vs State of Uttarakhand & Ors in Writ Petition (MS) No. 2073 of 2016 that was pronounced recently on July 20, 2022 has expressed its consonance with a bye-law of Zila Panchayat, Uttarkashi to the effect that no shop for butchering animals and selling meat within 500m from the bank of river Ganga shall be permitted. It must be noticed here that the Single Judge Bench of Hon’ble Mr Justice Sanjaya Kumar Mishra said quite clearly that keeping in view the “special status” of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making the said bye-laws is in line with the scheme of Constitution of India, as envisaged in Part IX. It very rightly ruled that the District Magistrate had not committed any error in not issuing a no objection certificate to the petitioner to run a mutton shop, at a premises situated at 105 metres distance from the bank of Ganga.

At the outset, this extremely laudable, learned, landmark and latest judgment authored by a Single Judge Bench of the Uttarakhand High Court comprising of Hon’ble Mr Justice Sanjaya Kumar Mishra sets the ball rolling by first and foremost putting forth lucidly in para 1 that, “By filing this writ petition, the petitioner has prayed for the following reliefs:

“i. Issue a writ, order or direction in the nature of certiorari calling for the original record and pleased to quash the impugned order dated 08.06.2016 (Annexure – 2) passed by the respondent no. 2 i.e. District Magistrate, Uttarkashi, District Uttarkashi.

ii. Issue a writ, order or direction in the nature of Mandamus directing and commanding the respondents that they shall not interfere in the peaceful business activities i.e. in running the mutton shop in his house situated at the roadside of Gangotri National Highway without any valid reason.

iii. Issue a writ, order or direction in the nature of Prohibition making declaration to the effect that after central enactment of the Food Safety and Standards Act, 2006 the bye-laws no. 3 framed by the respondent Zila Panchayat became illusionary and same are not applicable for the purpose of regulating food safety activities in rural area, therefore, no license from respondent Zila Panchayat is required to do business.””

To put things in perspective, the Bench then envisages in para 2 that, “The facts of the case, not disputed at this stage, are that petitioner is a resident of village Hina Gaon, Police Station – Maneri, District – Uttarkashi. His father was recorded tenure holder having bhumidhari land bearing Khasra Nos. 1555 and 15556, situated in the aforesaid village. He was running a mutton shop since 2006 in a rented accommodation in village – Hina Gaon, after getting license from Zila Panchayat. Though, according to him, license was not required after enforcement of Food Safety and Standards Act, 2006 (hereinafter referred to as “FSS Act, 2006” for brevity). In the year 2012, he also obtained a license from the designated authority under the FSS Act, 2006. Till the year, 2015, he ran his shop at aforesaid rented premises and after construction of his own shop over the bhumidhari land, he shifted his business of butchering and selling mutton into it. On 27.02.2016, respondent no. 3 – Zila Panchayat, Uttarkashi, through Additional Mukhya Adhikari, issued a notice to the petitioner to shift his mutton shop, within 7 days to another place, as his shop is situated 105 metre away from the bank of river Ganga, which is violative of the existing by-laws. As per the by-laws, operation of mutton/chicken shop within 500 metres from the bank of river Ganga is prohibited. On 15.03.2016, petitioner being aggrieved by the notice, preferred a Writ Petition (MS) No. 651 of 2016, which was disposed of, in limine, by this Court by giving opportunity to the petitioner to file a representation before the Authorities and with a direction to the Authorities to dispose of the same. Thereafter, on 09.05.2016, the petitioner served a copy of the aforesaid order on respondents no. 2 and 3 and prayed for issuance of license for the next financial year 2016-17 but the respondent no. 2 – District Magistrate, Uttarkashi vide order dated 09.05.2016 rejected the representation of the petitioner on the basis of the Resolutions of meeting held on 04.05.2016.”

In this same para 2, it is then further mentioned that, “Feeling aggrieved by the aforesaid order dated 09.05.2016 and minutes of meeting dated 04.05.2016, the petitioner preferred a Writ Petition (MS) No. 1383 of 2016 wherein respondents were directed to file counter affidavit within four weeks and the said writ petition is still pending. In the meantime, petitioner again represented before respondent no. 2 – District Magistrate, Uttarkashi to grant him no objection certificate, which was again rejected. The said order of the learned District Magistrate, Uttarkashi is assailed in this writ petition.”

On the one hand, the Bench then points out in para 3 that, “Learned counsel for the petitioner would submit that the only ground on which his application for grant of no objection certificate has been rejected by the District Magistrate, Uttarkashi is that his shop is situated within 500 metre from the bank of river Ganga. According to the petitioner, after passing of the FSS Act, 2006, the jurisdiction of Zila Panchayat is ceased to operate and it is only the Designated Authority, under the FSS Act, 2006 has authority to grant license or reject it in favour of the petitioner for running a shop for selling and butchering the animals. Therefore, he prayed that annexure no. 2 to the writ petition be quashed and it be declared that FSS Act, 2006 shall have overriding effect on the by-laws issued by the Zila Panchayat.”

On the other hand, the Bench then mentions in para 4 that, “Learned counsel for the State would submit that petitioner was granted license by the Designated Authority to run the shop at a particular place but he shifted his shop, after getting the license from the Designated Authority under the FSS Act, 2006, to another place, which came within 500 metre from the bank of river Ganga, therefore, no objection certificate was not granted to him and order passed by District Magistrate, Uttarkashi does not have any infirmity or perversity and requires no interference.”

Furthermore, the Bench then succinctly discloses in para 5 that, “Learned counsel for the State further submits that as per Section 106 (1) of the Uttarakhand Panchayati Raj Act, 2016, the Zila Panchayats have powers to make by-laws. Section 106 of the Uttarakhand Panchayati Raj Act, 2016 is quoted as under:

“106 Powers of Zila Panchayat to make bye-laws (1) A Zila Panchayat may, and where required by the State Government shall, make bye-laws for its own purposes and for the purposes of {Kshettra Panchayats}, applicable to the whole or any part of the rural area of the district, consistent with this Act and with any rule, in respect of matters required by this Act to be governed by bye-laws and for the purposes of promoting or maintaining the health, safety and convenience of the inhabitants of the rural area of the district and for the furtherance of the administration of this Act in the Khand and the district.””

Needless to state, the Bench then notes explicitly in para 6 that, “Article 243 (Part IX) of the Constitution of India provides for formation of Gram Sabha and Gram Panchayat. Article 243 G provides for the powers, authority and responsibilities of Panchayats. For better appreciation of the matter, it is quoted below:

“243G. Powers, authority and responsibilities of Panchayats – Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to –

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.””

Quite ostensibly, the Bench then enunciates in para 7 that, “Thus, it is apparent from the aforesaid Article that the Constitution recognises the Zila Panchayats, as sovereign authorities, having powers to plan for economic development and social justice, as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Article 243 G also provides that the Legislature of a State, may by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self government. Entry 4 in the Eleventh Schedule of the Constitution of India provides for animal husbandry, dairying and poultry. Entry 22 provides for markets and fairs. Thus, it is clear that as far as markets and fairs and animal husbandry, dairying and poultry are concerned, the Zila Panchayat, as an institution of self government, may function to regulate animal husbandry etc. as mentioned above.”

Be it noted, the Bench then quite forthrightly holds in para 8 that, “Therefore, the contention of learned counsel for the petitioner that after passing of the FSS Act, 2006, the powers of Zila Panchayat ceased to operate with respect to food items does not appears to be correct. Since, the Zila Panchayats have been granted powers to act as institutions of self government, the provisions made by Zila Panchayat has to be harmoniously constructed with the provisions of the FSS Act, 2006.”

Most significantly, what truly constitutes the cornerstone of this notable judgment is then encapsulated in para 9 wherein it is held that, “In view of the above, this Court is of the opinion that no objection certificate is mandatory to be obtained from the Zila Panchayat or the District Magistrate for running a mutton shop in the present matter. At the same time, keeping in view the special status of State of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making by-laws to the effect that no shop for butchering the animals and selling the meat within 500 metres from the bank of river Ganga appears in line with the scheme of Constitution of India, as envisaged in Part IX. Hence, this Court is of the view that respondent no. 2, District Magistrate, Uttarkashi has not committed any error in not issuing no objection certificate to the petitioner to run a mutton shop within 500 metres from the bank of river Ganga.”

Finally, the Bench then concludes aptly by directing in para 10 that, “Accordingly, the writ petition fails and is hereby dismissed. It is observed that any person, who runs a meat shop for selling and butchering the animals in District Uttarkashi, shall obtain no objection certificate from the concerned authority, in the light of by-laws made by the Zila Panchayat and also obtain license from the designated authority.”

In sum, the Uttarakhand High Court has very rightly held that Uttarkashi’s ban on meat shops within 500 meters of the river Ganga is in line with constitutional scheme. So it definitely merits no reiteration of any kind that the same has to be complied with accordingly in its entirety! No denying it!

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