While mincing absolutely no words on the shoddy manner in which the investigation is done by the police, the Gwalior Bench of Madhya Pradesh High Court in a recent, remarkable, robust and rational judgment titled Rajveer Singh Jatav Vs State of MP in MCRC-18696-2022 delivered as recently as on April 25, 2022 directed the DGP of the State to send a police officer for a training for not less than six months to learn the law and the manner of investigation. It must be stated here that the Court passed the said directions pursuant to its observations on a regular basis that the police was filing charge-sheet only on the basis of confessional statements made by the accused persons without making any effort to collect any substantive evidence against them. It must be also stated here that there is no harm in making it mandatory for all police officers and so also constables to spend a minimum time of at least six months to learn the intricacies of law because if this is done, it will help the litigants to a great extent in registering their cases along with other works involving police.
Needless to say, time and again we keep hearing also that police refuses to lodge FIR and it is possible to prevent such unpalatable situations by training police more in this direction along with other spheres as directed by the Court. If this is done mandatory for all policemen then there will be no need for Courts to pass such order as we see in this leading case. There is just no harm in training policemen professionally so that they are better placed in learning law and the manner of investigation.
To start with, the single Judge Bench comprising of Justice GS Ahluwalia of Gwalior Bench of Madhya Pradesh High Court first and foremost puts forth in the beginning of this learned judgment that, “Shri Ram Kishor Sharma, Counsel for the applicant. Shri P.P.S. Vajeeta, Counsel for the State. Case Diary is available. This second application under Section 439 of CrPC has been filed for grant of bail. The applicant has been arrested 14.02.2022 in connection with Crime No.494/2012 registered at Police Station – Dehat, Distt. Bhind for offence under Section 392 of IPC, Section 25/27 of Arms Act and Section 11/13 of MPDVPK Act.”
Simply put, the Bench then states that, “It is submitted by Shri Sharma that this is a repeat application for grant of bail. First application of the applicant was dismissed by order dated 08.03.2022 passed in M.Cr.C. No.10793/2022 with an observation that the applicant has been produced after 10 years on execution of production warrant as he was in jail in connection with some other offence and Test Identification Parade has not been conducted and supplementary charge-sheet has also not been filed. It is submitted that now charges have been framed against the applicant. There is no evidence against the applicant except the confessional statement made by the co-accused under Section 27 of the Evidence Act. Accordingly, Shri Vajeeta was directed to explain as to why the Test Identification Parade of the applicant has not been conducted.”
As it turned out, the Bench then discloses that, “It was replied by Shri Vajeeta that although a letter has been written to the Tahsildar, but he has not given any date for holding the Test Identification Parade. On further query, it was pointed out by Shri Vajeeta that the letter has been written yesterday only. Therefore, Shri Vajeeta was directed to explain as to why the police was sleeping over the matter and why they did not try to hold the Test Identification Parade at the earliest in spite of the fact that the first application of the applicant was rejected only on this ground on 08.03.2022, then Shri Vajeeta replied that SHO, Police Station Dehat Kotwali, District Bhind would reply the same. Accordingly, Shri Rambabu Singh Yadav, SHO Dehat Kotwali, District Bhind, who was outside the Court, was called by the State Counsel.”
As we see, the Bench then points out that, “It is submitted by Shri Rambabu Singh that in fact, the applicant was not arrested and he was produced in execution of production warrant and now this matter has come to his cognizance that the Test Identification Parade has not been conducted and, accordingly, on 24.04.2022 a letter has been sent to the Tahsildar, Bhind and Test Identification Parade would be conducted.”
Quite glaringly, the Bench then states that, “Reply given by Shri Rambabu Singh was shocking. He was not ready to understand the implication of his submission that “now the matter has come to his cognizance”. First of all, this Court is unable to understand the meaning of “cognizance” in the language of the Investigating Officer. However, when a specific question was put to Shri Rambabu Singh as to when he came to know about the fact that the applicant is lodged in different jail, then he submitted that on a departmental letter issued by the Director General of Police, State of MP, Bhopal regarding execution of all pending warrants of arrest, a drive has been initiated and only in compliance of said drive, whereabouts of the applicant came to his knowledge and, accordingly, production warrant was issued by the Court. He fairly conceded that issuance of departmental letter by the Director General of Police, is in compliance of the order passed by this Court.”
Nonetheless, the Bench then also observes that, “Be that whatever it may. Since Shri Rambabu Singh Yaddav, SHO is not ready to understand the meaning of production warrant, then he was specifically asked as to whether the production warrant was issued on the application made by the police or by the co-accused, then he fairly conceded that the application for issuance of production warrant was made by the police. He also stated that in the month of December, 2021 he had come to know that the applicant is detained in different jail. Thereafter, again Shri Rambabu Singh was not ready to understand the meaning of production warrant, then again a specific question was put to him as to whether the accused was produced by the police in execution of the production warrant or not, then he fairly conceded that the accused was produced by the police in execution of production warrant. However, he maintained that since the charge-sheet against the applicant under Section 299 of CrPC was filed, therefore, there was no need to file any supplementary charge-sheet. Accordingly, Shri Rambabu Singh was asked with regard to the admissibility of confessional statement made by the accused thereby disclosing the name of the co-accused. With great hesitation, it was submitted by Shri Rambabu Singh that the said information given by the co-accused is not admissible and he fairly conceded that after the arrest or production of the applicant before the Trial Court, further investigation with regard to the identification was necessary, which was not done.”
Most forthrightly, the Bench then minces no words to hold that, “Initially, reply was given by Shri Rambabu Singh that only now it has come to his cognizance that the Test Identification Parade is necessary as the applicant has been arrested. Specific question was put to him that when the applicant had filed an application for grant of bail before the Sessions Court, then whether the case diary was produced before the Trial Court or not, then it was fairly conceded that the police case diary was submitted along with the Kafiyat sent by him. Thus, it is clear that the SHO, Police Station Dehat Kotwali District Bhind was aware of each and everything, but still he was sitting tight over the matter. That shows a lack of legal knowledge as well as lack of efficiency on the part of SHO. This Court is regularly observing that the police is filing the charge-sheet only on the basis of confessional statement made by the accused persons without making any effort to collect any substantive evidence against them. On earlier occasion also, this Court had marked the orders to the Director General of Police to take corrective measures in the matter, but the things have not improved and, therefore, it is clear that at least Shri Rambabu Singh, SHO, requires an immediate training of law as well as manner of investigation.”
As a corollary, the Bench then directs that, “Accordingly, the Director General of Police, State of MP, Bhopal is directed to immediately send Shri Rambabu Singh Yadav, SHO Police Station Dehat Kotwali, District Bhind for a police training to learn the law as well as the manner of investigation. Training must be of at least six months and not less than that. The training shall be conducted in any PTS of the choice of Director General of Police. The Director General of Police, State of MP, Bhopal is also directed to submit his report before the Principal Registrar of this Court within a period of 15 days.”
Truth be told, the Bench then stipulates that, “So far as the present case is concerned, it is true that the offence was committed in the year 2012 and the applicant has been produced before the Trial Court in execution of production warrant but there is no substantive admissible evidence against the applicant and nothing has been recovered from him. Under these circumstances, this Court is left with no other option but to grant bail to the applicant. Since the applicant is the resident of Dholpur (Rajasthan) and it appears that he has a criminal history and three criminal cases have been registered against him and he was detained in jail in connection with some other criminal case, therefore, he cannot be released on bail except on furnishing stringent condition. Accordingly, without commenting on the merits of the case, the application is allowed. It is directed that the applicant shall be released on bail on furnishing cash surety of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) to the satisfaction of the Trial Court/Committal Court to appear before the Court on the dates given by the concerned Court.”
While adding a caveat, the Bench then remarks that, “This order shall remain effective till the end of trial but in case of bail jump, it shall become ineffective.”
For sake of clarity, the Bench then hastens to add noting that, “It is made clear that single default in appearance before the Trial Court, or in case of registration of new offence, this bail order shall automatically come to an end and the cash surety so furnished by the applicant shall automatically stand forfeited without any reference to the Court.”
Be it noted, the Bench then mandates that, “In the light of the judgment passed by the Supreme Court in the case of Aparna Bhat and others Vs. State of M.P. Passed on 18.03.2021 in Criminal Appeal No. 329/2021, the intimation regarding grant of bail be sent to the complainant.”
Finally, the Bench then while concluding directs in the final para of this notable judgment that, “Let a copy of this order be given to Shri Vajeeta for communicating the same to the Superintendent of Police, Bhind latest by tomorrow, who in his turn, shall immediately communicate to the Director General of Police, State of MP, Bhopal for necessary information and compliance. CC as per rules.”
To conclude, it merits no reiteration that the single Judge Bench of Gwalior Bench of Madhya Pradesh High Court comprising of Justice GS Ahluwalia has made everything quite clear as we can see also while taking a cursory glance at this brief, brilliant, bold and balanced judgment. The Hon’ble Court has thus very rightly directed DGP to send the SHO for six months training to learn law and manner of investigation. There is no harm in doing so and no one will become small by undergoing such training. But I very strongly feel that this should not be done in isolation in a rare case like this but all police personnel must definitely be made to strictly undergo such professional training mandatorily and be taught that they have to conduct themselves totally in the most professional manner. Of course, the directives delivered by none other than the 3 Judge Bench of the Apex Court comprising of the then CJI YK Sabharwal, Justice CK Thakker and Justice PK Balasubramanyan in Prakash Singh & Ors vs Union of India & Ors in Writ Petition (Civil) 310 of 2006 should not just gather rust as we are seeing even after 16 years and must be implemented strictly in totality. Only then will we be able to see a sea change in police way of functioning which affects all of us and our nation as a whole also! Let’s hope so most fervently!
As we see, the Bench then points out that, “It is submitted by Shri Rambabu Singh that in fact, the applicant was not arrested and he was produced in execution of production warrant and now this matter has come to his cognizance that the Test Identification Parade has not been conducted and, accordingly, on 24.04.2022 a letter has been sent to the Tahsildar, Bhind and Test Identification Parade would be conducted.”
Finally, the Bench then while concluding directs in the final para of this notable judgment that, “Let a copy of this order be given to Shri Vajeeta for communicating the same to the Superintendent of Police, Bhind latest by tomorrow, who in his turn, shall immediately communicate to the Director General of Police, State of MP, Bhopal for necessary information and compliance. CC as per rules.”
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Domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there: SC
While upholding the right of a woman to reside in a ‘shared household’ even if she has not actually lived there, the Supreme Court as recently as on May 12, 2022 in a learned, laudable, landmark and latest judgment titled Prabha Tyagi vs Kamlesh Devi in Criminal Appeal No. 511 of 2022 in exercise of its criminal appellate jurisdiction held that a victim of domestic violence can enforce her right to reside in a shared household, irrespective of whether she actually lived in the shared household. The Bench of Apex Court comprising of Justice MR Shah and Justice BV Nagarathna held in no uncertain terms that, “Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the DV Act. Very rightly so!
To start with, this learned judgment authored by Justice BV Nagarathna for a Bench of Apex Court comprising of Justice MR Shah and herself sets the ball rolling by first and foremost putting forth in para 1 that, “The aggrieved person, being the appellant herein, who had filed Miscellaneous Case No. 78 of 2007 on the file of the Court of Special Judicial Magistrate- I, Dehradun, has assailed judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand at Nainital, in Criminal Revision No. 186 of 2014, by which the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011 setting aside the order passed by the Special Judicial Magistrate-I, was sustained.”
While dealing with the factual background, the Bench then lays bare in para 3 that, “According to the aggrieved person, her marriage with Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on 18th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and rituals and in connection with the marriage, the family members of the aggrieved person had given dowry to the family of her deceased husband and Stridhana to the aggrieved person. For the period immediately following the wedding, the aggrieved person was residing at the ancestral home of the respondents along with her mother-in-law-respondent no.1, two brothers-in-law, wife of her husband’s elder brother and six sisters-in-law. Thereafter, the aggrieved person began living with her husband and the respondents in village Jhabreda. That Kuldeep Tyagi, husband of the aggrieved person died on 15th July, 2005 in a car accident and after the Terhanvi ceremony of her husband, the aggrieved person was constrained to reside initially at Delhi, at her father’s house. That immediately prior to the death of her husband, the aggrieved person had conceived a child.”
While continuing in the same vein, the Bench then states in para 4 that, “That on 30th March, 2006 the aggrieved person gave birth to a daughter and owing to the misbehavior and torture meted out to her by her matrimonial family after her husband’s death, she moved to Dehradun, Uttarakhand with her daughter, where she began working as a teacher to support herself and her child. That the Stridhana given to her at the time of her wedding was never allowed to be enjoyed by her and even following her exit from her matrimonial home, the Stridhana was being used by her in-laws, respondent nos. 1 to 6. That the aggrieved person had sent a legal notice dated 22nd November, 2006, requesting them to return the articles of Stridhana, however, there was no response to the same.”
Furthermore, the Bench then discloses in para 5 that, “That the father of the aggrieved person had gifted her a Maruti (Alto) car, at the time of her wedding and the same was registered in the name of her deceased husband. Owing to the accident that her husband had met with, resulting in his death, the said car had also been damaged. That the aggrieved person’s mother-in-law had submitted an application before the insurance company, National Insurance Company which was processing the claim for damage caused to the car, stating therein that she was the mother of the deceased and was the only legal heir of the deceased and therefore any compensation may be made in her favour.”
Truth be told, the Bench then mentions in para 6 that, “That there exists a land in village Jhabreda to which the deceased husband of the aggrieved person had right and title. That respondent no. 1- mother-in-law, on being instigated by the other respondents objected to the recording of the aggrieved persons’ name in the revenue records of the said property. Respondent no. 1 objected by stating that the child borne by aggrieved person was not Kuldeep Tyagi’s daughter. Owing to such objection, the Court of Tehsildar passed an order of status quo with respect to the said property.”
It cannot be lost sight of that the Bench then observes in para 7 that, “That the respondents, on several occasions threatened the aggrieved person that she would face dire consequences if she ever attempted to claim any right over her husband’s property. That the respondents, having no sympathy towards the aggrieved person who had, while pregnant, lost her husband in a fatal accident, tortured her mentally by denying that her child was the daughter of Kuldeep Tyagi.”
As it turned out, the Bench then points out in para 8 that, “With the aforesaid averments, the aggrieved person approached the Court of the Special Judicial Magistrate under Section 12 and sought protection orders, residence orders and compensation orders to be passed under various provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, the ‘D.V. Act’). Further, prayers were also made for monetary reliefs under Section 22 of the D.V. Act.”
Briefly stated, the Bench then states in para 14 that, “Aggrieved by the judgment of the First Appellate Court, the aggrieved person preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. By judgment dated 23rd July, 2019, the criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was sustained. The aggrieved appellant has approached this Court challenging the judgments of the First Appellate Court and the High Court.”
Notably, the Bench then observes in para 51 that, “In the instant case, when the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament. Hence, in our view, the judgments of the Madhya Pradesh High Court in Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014) DLT 61], do not lay down the correct law and are hereby overruled while we affirm all other judgments referred to supra which are in consonance with the line of interpretation made above.”
Most significantly, the Bench then while clearing the air on the questions raised holds in para 52 that, “In view of the above discussion, the three questions raised in this appeal are answered as under:
i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?”
It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.
“(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?”
It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.
“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”
It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.”
Most remarkably, the Bench then directs in para 53 that, “Consequently, the judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand in Criminal Revision No. 186 of 2014 as well as the judgment dated 11th July, 2014 passed by the Vth Additional Sessions Judge, Dehradun in Criminal Appeal No. 53 of 2011 are set aside and the order passed by the Special Judicial Magistrate-I in Miscellaneous Case No. 78 of 2007, Dehradun is affirmed.”
On a concluding note, the Bench then remarks in the final para 56 that, “Before parting with this case, we express our appreciation to the valuable services rendered by Shri Gaurav Agarwal, learned amicus curiae, who has painstakingly researched all the relevant judgments on the questions raised in this case arising from various High Courts and has made his submission schematically with particular reference to the facts of the case and all relevant provisions of the D.V. Act.”
In sum, the Apex Court has made the whole picture crystal clear in this notable judgment by the Apex Court. So it is now crystal clear that a domestic violence victim can enforce her right to reside in ‘shared household’ even if she has not actually lived there. No denying!
POLICE ATROCITIES: GUJARAT HC URGES STATE TO INSTALL CCTV CAMERAS AND FOLLOW D.K. BASU GUIDELINES
While according paramount importance to the human rights of prisoners and so also taking a serious note of the increasing incidents of human right violations of prisoners, the Gujarat High Court has in a recent, remarkable, robust, refreshing and rational judgment titled Vasaya Yunusali Alarakhabhai Vs State of Gujarat in R/Special Criminal Application No. 1615 of 2022 and delivered as recently as on May 5, 2022 has recommended that the State government take initiatives to implement the guidelines issued by the Apex Court in the landmark case of DK Basu v. State of West Bengal and to install CCTV cameras with night vision and maintain their records for 6 months to deal with police atrocities in the region. A Bench comprising of Justice Sonia Gokani and Justice Mauna Bhatt was hearing a habeas corpus petition involving an inter-religious couple when it came down heavily on the Gujarat police and directed the concerned authorities to intimate all police stations about the guidelines issued in the Paramvir Singh Saini case [Paramvir Singh Saini vs Baljit Singh and others (2021) 1 SCC 184]. The Bench said that, “We expect the State to complete the task of installing the new gadgets and also follow the directions of the Apex Court as earliest possible”.
To start with, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Sonia Gokani for a Bench of Gujarat High Court comprising of herself and Hon’ble Mrs Justice Mauna M Bhatt first and foremost puts forth in para 1 that, “This Court on 08.02.2022 in this petition under Article 226 of the Constitution of India issued the notice by passing the following order:
“1. The petitioner is a father of one of the persons (corpus) who is alleged to have been illegally detained by the respondent no.2. The prayers sought for in this petition is as follows: –
“(A) Your Lordships may kindly be pleased to admit and allow the present petition;
(B) Your Lordships may kindly be pleased to issue a writ of habeas Corpus and / or any other appropriate writ, order or direction directing the Respondent No. 2 to produce the Corpuses namely ‘Vasaya Nadeem Yunusali’ and girl namely ‘Kukreja Jayaben Hareshkumar’ before this Honorable Court, the custody of the Corpuses be handed over to the Petitioner in the interest oat her parental home and moreover, it was an absolutely illegal act on the part of the respondent no.2.
(C) Pending admission, hearing and final disposal of this Petition, Your Lordships may kindly be pleased to direct the Respondent No. 2 to produce Corpus namely namely ‘Vasaya Nadeem Yunusali’ and girl namely ‘Kukreja Jayaben Hareshkumar’ before this Honorable Court in the interest of justice;
(D) Your Lordship may kindly be pleased to grant such other and further relief(s) as may deed just and proper in the facts and circumstances of the case.”
2. It appears that both, the son of the petitioner and the girl – Jaya had intended to marry each other. This being interreligious/interfaith marriage, the notice of intended marriage was issued under Section 5 addressed to the marriage officer for Bhavnagar District on 14.12.2021. Before the same could be actually performed, on completion of 30 days period, it is alleged that they both were illegally taken away by the respondent no.2. Some of the family members had been beaten up badly. The photographs of which are forming part of the petition. The medical report dated 18.12.2021 also reflects the names of those persons who have allegedly beaten up the family members.
3. Learned advocate Ms. Laksha Bhavnani appearing with learned advocate Ms. Setu Joshi for the petitioner has urged that once the respondent came to know of this petition of habeas corpus, they have chosen to release both the corpora. However, the marriage has not taken place as the girl is sent at her parental home and moreover, it was an absolutely illegal act on the part of the respondent no.2.
4. Issue Notice returnable on 11.02.2022. Learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent authorities.
5. Learned APP shall gather the details and shall file an affidavit of the respondent no.2 which shall be also vetted by the Superintendent of Police, Bhavnagar.
6. The girl has been allegedly forcibly sent to her residence. The Superintendent of Police, Bhavnagar shall ensure her production before this Court through video conference from the District Legal Services Authority, Bhavnagar in presence of the Chair Person, District Legal Services Authority, Bhavnagar at 1:30 p.m. on 11.02.2022. The Superintendent of Police, Bhavnagar also shall remain present on that day.””
Quite significantly, the Bench observes in para 7 that, “The guidelines of 09.07.2018 issued from the Office of Director General and Inspector General of Police gives the detailed modality of working of the RMS as in all police stations the CCTV camera system are installed for preventing the incident of custodial violence, non registration of First Information Report as also the violation of human rights etc. following the decision of the Apex Court rendered in case of D.K.Basu vs. State of West Bengal & others, reported in (2015) 8 SCC 744 and thereafter reiterated in Criminal Miscellaneous Petition No.16086 of 1997 r/w Criminal Miscellaneous Petition No. 19694 of 2010 on 02.09.2015. For enhancing the quality of services rendered by the police and for the use of technology these guidelines have been formulated.
7.1 It mandates maintaining of Dead Stock Register in all offices of Superintendent of Police with the District level. The Superintendent of Police or the Police Commissioner is expected to monitor at least once in a week through the RMS, the CCTV Camera System and the video footage. All the gadgets of their RMS shall need to be maintained by a Wireless Sub Inspector after giving him the training in this respect. It also mandates the preservation of the video footage of CCTV camera for 30 days’ period. There are many complaints for the use and maintenance of this CCTV Camera System and it has been mandated that the strictest actions be taken if some police personnel or the officers continue to do the objectionable activities.
7.2 The detailed guidelines further says as to in what manner the misbehavior or the unpalatable actions with the citizens should be checked.”
Be it noted, the Bench then envisages in para 8 that, “This very clearly gives the indications as to how for the Gujarat Police office of DG & IG has been vigilantly directing every police station to follow the use and maintenance of the CCTV footage. It has also further detailed the manner in which the Head of the District to monitor the CCTV footage every week at least in one case and thereafter, to take necessary actions as directed in the very guidelines. However, from the affidavit which has been filed by the Secretary, Home Department, it is quite clear that there are various levels of redressing the different kind of grievances for the complaints, but there is no specific guideline issued to intimate the District Police Head when there are complaints regarding the police harassment in the District. There is no specific direction for the senior police officer or the Superintendent of Police to be intimated of such harassment. Every police station is equipped with this technology and the advancement of this technology is for the succor of the citizen.”
Most remarkably, the Bench then enunciates in para 9 that, “We need to also make a reference of the decision of the Apex Court rendered in case of PARAMVIR SINGH SAINI VS. BALJIT SINGH AND OTHERS, reported in (2021) 1 SCC 184 where the question was of installation of CCTV cameras in police stations and credible recording of evidence and safeguarding the human rights inside the police stations. The Apex Court vide its order dated 03.04.2018 directed that the Central Oversight Body (referred to as COB) to be set up by the Ministry of Home Affairs to implement the plan of action with respect to the use of videograph in the crime scene during the investigation.
9.1 The Apex Court also referred to the decision issued in case of D.K.Basu (supra) to hold that there was a need for further directions that in every State an oversight mechanism be created whereby the independent committee can study the CCTV camera footage and periodically publish a report of its observations thereon. The COB also may issue the appropriate direction from time to time so as to ensure that use of videography becomes a reality in a phased manner. It had also given the constitution of the District Level Oversight Committee and eventually enlisted the duties and the responsibilities for working maintenance and recording of CCTV.
9.2 Apt would be to refer to the guidelines and the mandate given by the Apex Court in this regard.
“14. The duty and responsibility for the working, maintenance and recording of CCTVs shall be that of the SHO of the police station concerned. It shall be the duty and obligation of the SHO to 7 immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the concerned SHO shall inform the DLOC of the arrest / interrogations carried out in that police station during the said period and forward the said record to the DLOC. If the concerned SHO has reported malfunctioning or non-functioning of CCTVs of a particular Police Station, the DLOC shall immediately request the SLOC for repair and purchase of the equipment, which shall be done immediately.
15. The Director General/Inspector General of Police of each State and Union Territory should issue directions to the person in charge of a Police Station to entrust the SHO of the concerned Police Station with the responsibility of assessing the working condition of the CCTV cameras installed in the police station and also to take corrective action to restore the functioning of all non-functional CCTV cameras. The SHO should also be made responsible for CCTV data maintenance, backup of data, fault rectification etc.
16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; 8 main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.
17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in 9 any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.
18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.
19. The Union of India is also to file an affidavit in which it will update this Court on the constitution and workings of the Central Oversight Body, giving full particulars thereof. In addition, the Union of India is also 10 directed to install CCTV cameras and recording equipment in the offices of:
(i) Central Bureau of Investigation (CBI)
(ii) National Investigation Agency (NIA)
(iii) Enforcement Directorate (ED)
(iv) Narcotics Control Bureau (NCB)
(v) Department of Revenue Intelligence (DRI)
(vi) Serious Fraud Investigation Office (SFIO)
(vii) Any other agency which carries out interrogations and has the power of arrest.
As most of these agencies carry out interrogation in their office(s), CCTVs shall be compulsorily installed in all offices where such interrogation and holding of accused takes place in the same manner as it would in a police station. The COB shall perform the same function as the SLOC for the offices of investigative/enforcement agencies mentioned above both in Delhi and outside Delhi wherever they be located.
20. The SLOC and the COB (where applicable) shall give directions to all Police Stations, investigative/enforcement agencies to prominently display at the entrance and inside the police stations/ offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.
21. Since these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and since nothing substantial has been done in this regard for a period of over 2½ years since our first Order dated 03.04.2018, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible. Affidavits will be filed by the Principal Secretary/Cabinet Secretary/Home Secretary of each State/ Union Territory giving this Court a firm action plan with exact timelines for compliance with today’s Order. This is to be done within a period of six weeks from today.
22. We record our gratitude to Shri Siddhartha Dave, learned Amicus Curiae, for rendering his services to this Court.”
9.3 This dictum insists on the CCTV system to be installed with night vision and to consist of audio and video footage both. The Apex Court has also asked for the requirement of the CCTV footage to be preserved for a period of six months and a firm action plan to be submitted within six weeks.”
For clarity, the Bench then adds in para 10 that, “This in addition to what has been already directed by way of guidelines in the year 2018 by the office of Director General and Inspector General of Police will take care of the maintenance of the CCTV cameras.”
Simply put, the Bench then states in para 11 that, “According to the learned APP, Ms.Jhaveri, for fulfilling the directions of the Apex Court, the mechanism is already underway. She has taken the instructions to ensure this Court that pursuant to this mandate and the guidelines issued by the Apex Court, the process is on and it is soon to be completed. Therefore, no further directions in respect of this will be additionally needed till the new system is purchased and installed.”
In addition, the Bench clarifies in para 12 that, “Let the other guidelines which have been directed by the Apex Court, if are not otherwise presently hampered by the technological limitations be followed. All police stations should be intimated the guidelines issued in case of PARAMVIR SINGH SAINI (supra).”
Without mincing any words, the Bench then directs in para 13 that, “According to us, any incident of the alleged atrocities or involvement of the police officers in violation of mandatory guidelines shall at least be intimated to the Head of the District, i.e. to the Superintendent of Police or the Police Commissioner, as the case may be. Let a specific guidelines in that respect also be initiated. It is one thing for the Superintendent of Police himself to find out from the CCTV camera footage the misbehavior or the misconduct and it is another thing when he, as the District Head, is made aware of such complaints and registered. Let that be worked out by the Home Department.”
What’s more, the Bench then observes in para 14 that, “We have noticed that, in the instant case, the matter is pending before the District Court and therefore, we chose not to presently intervene. After once the District Court finalise the matter, it will be for the petitioner to also take an appropriate remedy in respect of his personal complaint. None of these observations or the limitation of the technology will in any manner hamper his right to approach the appropriate authorities.”
Most commendably, the Bench then rightly holds in para 15 that, “We expect the State to complete the task of installing the new gadgets and also follow the directions of the Apex Court as earliest possible.”
Finally, the Bench then concludes by holding in para 16 that, “Present petition stands disposed of accordingly.”
No doubt, what the Gujarat High Court has directed so very commendably in this notable judgment must be implemented forthwith by the State. CCTV cameras must be installed in police stations and so also all other steps must be taken as we have already discussed herein aforesaid. No denying!
Sanjeev Sirohi, Advocate
Group of Companies Doctrine set to undergo the test of a larger bench
The genesis of arbitration being chosen as the preferred mode of dispute resolution mechanism lies on the premise of mutual consent given by the parties under the agreement or contract, as the case may be. The same underlying principle is also surmised by Section 7 of the Arbitration and Conciliation 1996 (“A&C Act 1996”).
A significant change in the interpretation of Section 7 of the A&C Act 1996 evolved with the courts in India enlarging the scope by taking into consideration the intention of the parties, role of parties and its affiliates as per the Group of Companies doctrine etc. The Group of Companies doctrine aims to encompass, under certain conditions, the arbitration agreement signed only by one or some of the companies of a group to the non-signatory companies of the same group. This doctrine is inherently linked to piercing or lifting the corporate veil doctrine. By way of this article, we aim to understand the Group of Companies doctrine and its evolution by the Indian courts.
II. GROUP OF COMPANIES DOCTRINE
The doctrine of “Group of Companies” had its origins in the 1970s from French arbitration practice. The Group of Companies doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactions.
The Group of Companies doctrine was first invoked in 1984 by the International Chamber of Commerce Tribunal in the matter of Dow Chemical v. Isover Saint Gobain, 1984 Rev Arb 137: (1983) 110 JDI 899 wherein the Court duly held that in accordance with the common intention of all the companies involved, Dow Chemical France and Dow Chemical Company (USA) were found to be parties to the arbitration agreements although they did not actually sign them. The arbitration clause was applicable to them as well due to the common intention. It is pertinent to note herein that the Court duly held that arbitration clauses were applicable to Dow Chemical Company (USA) as they effectively and individually participated in the contract’s conclusion, their performance, and their termination.
Though the scope of an arbitration agreement is limited to the parties who entered into it and those claiming under or through them, the courts under the English law have, in certain cases, also applied the Group of Companies doctrine. This doctrine has developed in the international context, whereby an arbitration agreement entered into by a company, being one within a group of companies, can bind its non-signatory affiliates or sister or parent concerns, if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non-signatory affiliates. This theory has been applied in a number of arbitrations so as to justify a tribunal taking jurisdiction over a party who is not a signatory to the contract containing the arbitration agreement.
The focus point while applying Group of Companies doctrine comes into play in the form of extending arbitration proceedings to a non-signatory to the arbitration agreement which is beyond the rigours of Section 7 of the A&C Act 1996. A valid arbitration agreement is the essential element and the basis of the arbitration proceedings. As a consequence of the same, generally under normal circumstances, only those parties who have signed and are a part of the arbitration agreement may take part in the arbitration proceedings and would be bound by the relevant award passed by the arbitral tribunal. The difficulty arises where the arbitration agreement is sought to be extended to a non-signatory to the arbitration agreement based on the mutual intention of such non-signatory to be bound by such agreement.
The real inference of the Group of Companies doctrine in the present commercial world is considerable, given the swelling complexity of commercial contracts. For example, it is rather usual to see multiple entities within a group company be involved in the negotiation, performance, or termination of a contract, even if they have not signed the said contract. The entity that formally signs and executes an agreement may also not essentially be the entity that performs it for various business organizational reasons. The performance of an agreement by a subsidiary may be funded by the holding and/ or parent company, or funds may flow between group companies to facilitate performance under the agreement. In these circumstances, and especially in relation to such complex commercial transactions where such entities may have formulated their deals to limit or separate liability among various group members, the Group of Companies doctrine may provide a legal basis for non-signatories to be compelled to arbitrate.
The interesting bit about the Group of Companies doctrine is lifting of or piercing the corporate veil of a company to identify where the true control of the company lies and to ascertain whether the arbitration agreement was intended to bind both the signatory and non-signatory affiliates. The parties’ intentions are typically ascertained through their conduct, which includes a consideration of whether the non-signatory participated in the negotiation, performance, or termination of the contract.
III. INDIAN COURT AND THE EVOLUTION OF GROUP OF COMPANIES DOCTRINE
The Doctrine took its time to be recognized in the Indian Jurisprudence. In the early 2000s, Indians courts have taken an orthodox view. For instance, in the case of Pramod C Patel v. Lalit Constructions and Anr, 2002 SCC OnLine Bom 546, the High Court of Bombay explicitly noted that the arbitration agreement needs to be signed by both the parties. Later, even the High Court of Delhi in K.K. Modi Investment and Financial Services Pvt. Ltd v. Apollo International Inc. & Ors, 2009 SCC OnLine Del 1595 reiterated that there should be a contract between the parties and if there is no contract between petitioner and respondent, the arbitration clause between them cannot be inferred.
The same view was taken by the Hon’ble Supreme Court in 2010 in the matter of Indowind Energy Limited v. Wescare (I) Limited and Another, (2010) 5 SCC 306. The Hon’ble Supreme Court held that it is fundamental that a provision for arbitration to constitute an arbitration agreement for the purpose of Section 7 should satisfy two conditions: (i) it should be between the parties to the dispute; and (ii) it should relate to or be applicable to the dispute. Further, each company being separate and distinct legal entity and the mere fact that the two Companies have common shareholders or common Board of Directors, will not make the two Companies a single entity or lead to an inference that one company will be bound by the acts of the other.
Eventually, it was in the year 2012, when the Apex Court for the first time adopted the Group of Companies doctrine in the matter of Chloro Controls (I) P. Ltd. v. Severn Trent Water Purification Inc. & Ors, (2013) 1 SCC 641 wherein the Court held that a non-signatory forming part of the same corporate group as a signatory could be made a party to the arbitration, where it is clear from circumstances surrounding the transaction that the ‘mutually held intent’ was to bind the signatory as well as the non-signatory to the arbitration agreement. The doctrine could be applied to join non-signatories based on: (i) direct relationship between the signatories and the non-signatories; (ii) direct commonality of the subject matter; (iii) the composite nature of the transaction between the parties; and (iv) whether the ends of justice would be served by referring the disputes to arbitration. Pertinently, the Court’s concluding remark on the doctrine was “An arbitration agreement entered into by a company within a group of companies can bind its non-signatory affiliates, if the circumstances demonstrate that the mutual intention of the parties was to bind both the signatory as well as the non-signatory parties”. After the passing of the judgment in 2013 by the Apex Court and the recognition of Group of Companies doctrine in the Indian diaspora, the doctrine has been widely applied in numerous cases and its scope has been diluted or enlarged on a case of case basis.
In the case of Cheran Properties Limited v. Kasturi and Sons Limited and Others, (2018) 16 SCC 413, the Hon’ble Court held that the doctrine is intended to facilitate the fulfilment of a mutually held intent between the parties, of arbitrating disputes involving signatory and non-signatory parties. The effort is to find the true essence of the business arrangement and to unravel from the commercial and business arrangement the real intent of the parties whether to bind a non-signatory to an arbitration clause or not. Even, in Ameet Lalchand Shah and Ors. v. Rishabh Enterprises and Anr., (2018) 15 SCC 678, the Hon’ble Supreme Court applied the doctrine to join non-signatories as parties in a composite transaction even though the participants in the transaction were not part of the same corporate group. The emphasis was on the interlinked agreements for a single commercial project.
In the matter of MTNL V. Canara Bank and Others, (2020) 12 SCC 767 the apex Court reiterated that conduct of parties evidencing a clear intention of the parties to bind both the signatories and non-signatories or where there is tight group structure with strong organisational and financial links, so as to constitute a single economic unit, or a single economic reality are pre-conditions for invoking the Doctrine. Further, in the matter of Reckitt Benckiser (India) Private Limited v. Reynders Label Printing India Private Limited and Another, (2019) 7 SCC 62 the Supreme Court reiterated the above by stating that mutual intention to bind the parties through their conduct is paramount for invoking the said Doctrine.
Recently, a three-judge bench of the Apex Court in the matter of Oil and Natural Gas Corporation Limited V. M/s Discovery Enterprises Private Limited and Anr, Civil Appeal No. 2042 of 2022 (Judgment dated 27 April 2022) set aside an interim award under Section 16 of the A&C Act 1996 deleting a party from the array of the parties as the Arbitral Tribunal failed to determine the legal foundation for the application of the Group of Companies doctrine. As per the apex Court, the Arbitral Tribunal erred by deferring an application for discovery and inspection after determining its jurisdiction in the application under Section 16 of the A&C Act which deprived the party a chance to establish Group of Companies doctrine by leading evidence which may come to light vide the said discovery and inspection application. Interestingly, when the interim award by the Arbitral Tribunal was passed, the Group of Companies Doctrine had not landed its foot in India, but the Apex Court observed that the foundation for the same had been laid down. In its judgment, the Hon’ble Supreme Court enlarged the scope of the doctrine under section 7 by stating that the following factors may be considered when deciding whether a non-signatory company within a group of companies would be bound by the arbitration agreement:
“i) The mutual intent of the parties;
(ii) The relationship of a non-signatory to a party which is a signatory to the agreement;
(iii) The commonality of the subject matter;
iv) The composite nature of the transaction; and
(v) The performance of the contract.”
The most recent judgment to join the queue is the matter of Cox and Kings Limited V. SAP India Private Limited & Anr., Arbitration Petition No. 38 of 2020 (Judgment dated 6 May 2022), wherein the Hon’ble Court examined whether the principles of party autonomy under arbitration law and corporate personality in company law have been adequately safeguarded in outlining the scope and applicability of the Group of Companies doctrine being followed at present in Indian jurisprudence. It was duly noted that Group of Companies doctrine is one such area which is utilized to bind third parties to an arbitration agreement. Theoretically, the policy consideration of efficiency is argued to allow such joinders. However, until a legal basis for the same is provided, efficiency cannot itself be the sole ground to bind a party to arbitration.
The Apex Court further noted that vide various precedents courts in India on one hand have reduced the threshold of arbitration being a consensual affair and on the other hand, the Group of Companies doctrine is transposed on requirements under contract law to bind a party to an arbitration. It was further noted that amendment to the A&C Act 1996 in 2015 has expanded Section 8 (1) to include persons claiming, “through or under”. But such change has not been carried out in Section 2 (1) (h) which has created an anomalous situation wherein potentially a party “claiming through or under” could be referred to an arbitration but would not have the right to seek relief under Section 9 of the A&C Act 1996.
Though the Group of Companies doctrine as expounded, requires the joining of non-signatories as ‘parties in their own right’. This joinder is not premised on non-signatories ‘claiming through or under’. Such a joinder has the effect of obliterating the commercial reality, and the benefits of keeping subsidiary companies distinct. Concepts like single economic entity are economic concepts difficult to be enforced as principles of law. Eventually and keeping in mind the evolution of the Doctrine, the Hon’ble Supreme Court deemed it appropriate to refer the following questions to larger bench for an authoritative determination:
A. Whether phrase ‘claiming through or under’ in Sections 8 and 11 could be interpreted to include ‘Group of Companies’ doctrine?
B. Whether the ‘Group of Companies’ doctrine as expounded by Chloro Control Case (supra) and subsequent judgments are valid in law?
C. Whether the Group of Companies doctrine should be read into Section 8 of the Act or whether it can exist in Indian jurisprudence independent of any statutory provision?
D. Whether the Group of Companies doctrine should continue to be invoked on the basis of the principle of ‘single economic reality’?
E. Whether the Group of Companies doctrine should be construed as a means of interpreting the implied consent or intent to arbitrate between the parties?
F. Whether the principles of alter ego and/or piercing the corporate veil can alone justify pressing the Group of Companies doctrine into operation even in the absence of implied consent?
From the above analysis, it is clear the Group of Companies doctrine is set to undergo a major overhaul whenever the larger bench of the Supreme Court takes up the matter and decides the questions as noted above. Their interpretation and answers will either make the Group of Companies doctrine a part and parcel of arbitral law as prevalent in India or would simply render it useless which may be invoked only in very exceptional cases. As noted above, it is important to balance the basic ethos of arbitration i.e. consent of the parties to choose arbitration as their preferred mode of dispute resolution and at the same time make sure that a party may be able to enforce its right against such company which effectively was performing the obligations under the Agreement. It is also important to note that the relevant extant commercial laws of India provide a for separate corporate identity and therefore, any judgement that shall be rendered by the larger bench of Supreme Court will have a direct impact on the same. In view of the complex commercial transactions which is the norm in today’s commercial world, it is important to hold the right company responsible for any wrong but at the same time, it is also important to even out the issues that might be felt by a company which is forced to participate in an arbitration proceeding when it had nothing to do with the arbitration agreement and has been made a party just because it is a group or a holding or a subsidiary company. It may be an option for the parties to contracts governed by Indian law to specifically exclude the application of Group of Companies doctrine by noting in their contracts (including arbitration agreements) that (i) the benefits derived from the contract will be restricted to only the parties to the contract; and (ii) only the signatories and defined individuals/entities will be treated as parties.
The authors are advocates at Khaitan & Co. Ajay Bhargava (Partner), Aseem Chaturvedi (Partner), Trishala Trivedi (Principal Associate) and Milind Sharma (Senior Associate) are part of the Dispute Resolution Practice at Delhi.
Madhya Pradesh HC acquits man wrongly convicted for murder and imprisoned for 13 years
In a most deserving case, the High Court of Madhya Pradesh in a learned, laudable, landmark and latest judgment titled Chandresh Marskole vs The State of Madhya Pradesh in Criminal Appeal No. 1580/2009 pronounced as recently as on May 4, 2022 has set aside the conviction of a man for murder and further directed the State to pay compensation worth Rs 42 lakhs observing that his conviction was a result of a botch and maliciously motivated investigation by an ‘outrightly partisan’ police. While directing the State to pay compensation, the Division Bench of Justice Atul Sreedharan and Justice Sunita Yadav further held that the appellant was free to proceed against the State for an action in tort for malicious prosecution. The Court was deciding an appeal preferred by the appellant against his conviction under Section 302, 201 IPC.
To start with, this learned judgment authored by Justice Atul Sreedharan for a Bench of Madhya Pradesh High Court at Jabalpur comprising of himself and Justice Sunita Yadav sets the ball rolling by first and foremost putting forth in the opening para that, “The Appellant Chandresh Marskole, has filed this appeal aggrieved by the judgment and conviction dated 31/07/2009, passed in Sessions Trial No.06/2009 by the learned 8th Additional Sessions Judge, Bhopal, by which, the Appellant was found guilty of an offence U/s.302 of the I.P.C and sentenced to suffer rigorous imprisonment for life. A fine of Rs.5000/- was also imposed upon him, which was deposited by the Appellant vide receipt No.59, book No.10430 on 31/07/2009 itself. He was also found guilty of an offence U/s.201 of the I.P.C and was convicted and sentenced to suffer rigorous imprisonment for a term of three years for the said offence. For reasons given in this judgement, the case reveals a sordid saga of manipulative and preconceived investigation followed by a malicious prosecution, where the police have investigated the case with the sole purpose of falsely implicating the Appellant and perhaps, deliberately protecting a prosecution witness who may have been the actual culprit.”
Be it noted, the Bench then observes in para 66 that, “In the present case, the following would reveal the nature of the investigation done by the police:- 66.1 The statement u/s. 161 Cr.P.C of PW9 Ram Prasad is recorded by the police on 21/09/08. He states that the Appellant had brought down the bedding from his hostel on 19/09/08 and loaded it onto the dickey of the car. He does not say that he had either helped the Appellant in loading the bedding into the dickey of the car or that he had even touched the bedding. Thus, when this witness says in his police statement that the bedding was heavy, the police ought to have asked him as to how he knew that the bedding was heavy if he had not assisted the Appellant in loading the same into the car? However, no such question is asked to this witness (in his Court testimony the witness specifically states in para 8 that he never touched the bedding). No question is put to this witness by the police as to how, the Appellant managed to open the hatch of the dickey at Denwa Darshan which was locked and the key to which was with him (PW9)? Ex.P26C was given by PW13 to the police on 25/10/08 and it revealed that there were four occupants in the car including PW9. However, no supplementary statement of PW9 is taken by the police enquiring who the two other occupants of the car were, as PW9 only says that besides himself, the other occupant was the Appellant. Thus, the police statement of PW9 (Ex.D3) reflects that the police recorded it as has been given by the witness and there was no interrogation of PW9 which may have revealed if he was truthfully stating the events of 19/09/08.
66.2 PW1, Dr. Hemant Varma’s police statement leaves much to be desired, and he too ought to have been interrogated by the police. Whatever has been stated by PW1 to the police on 20/09/08 (Ex.P1) and his police statement recorded on 24/09/08 is ostensibly based upon the information that he received from PW9. According to his police statement and Ex.P1, Dr. Hemant Varma had gone to Indore on 19/09/08 for some personal work. The police never interrogated PW1 as to what was the personal work for which he went to Indore on 19/09/08? where he stayed at Indore? and what was the mode of transport by which he went to Indore and whom he met there? The police never questioned PW1 that if he had to go to Indore on 19/09/08, then why did he let the Appellant borrow his vehicle with driver to go to Hoshangabad? The police deliberately did not investigate into the absence of PW1 from Bhopal on 19/09/08 and neither did they ascertain if PW1 actually went to Indore on 19/09/08 or did he go somewhere else? The police also do not question PW1 as to how he arrived at the conclusion on 20/09/08 itself that (a) the Appellant was a murderer and (b) what was the reason for PW1 was to mention in Ex.P1, that the Appellant was in a relationship with a girl and that the bedding probably contained the body of Shruti Hill? as these facts were never told by Ram Prasad (PW9) to Dr. Hemant Varma. Ram Prasad (PW9) only says that the circumstances in which the bedding was allegedly disposed of by the Appellant was suspicious. He does not even fleetingly indicate in his police statement that he suspected the bedding to contain human remains let alone the remains of a girl and if that be so, how does Dr. Hemant Varma indicate by necessary implication in his letter dated 20/09/08 (Ex.P1) addressed to the SHO P.S Kohefiza that the Appellant is a murderer and the body may be that of the deceased Shruti Hill? Dr. Hemant Varma ought to have been interrogated intensively by the police on this aspect, but he never was.
66.3 The FSL report had disclosed that there was human sperm in the panties (FSL Article A4) worn by the deceased and in the blanket in which the body was wrapped. However, the police do not send the same for a DNA analysis as it ought to have. If the evidence revealed that it was the Appellant’s sperm, it would not have been of much consequence as the consistent evidence of the prosecution points to a romantic relationship existing between the deceased and the Appellant and that in all probability they were married (as is revealed by the presence of a mangal sutra which was sent along with the body and noticed by the doctor who performed the post-mortem). However, if the DNA revealed that it was not the sperm of the Appellant, the scope of the investigation could have been enhanced.
66.4 The largest hole in the prosecution’s case is Ex.P26C. This is the receipt issued by PW13 at the Pachmarhi toll barrier which reflects that there were four passengers in the Qualis and not two as stated by PW9. PW13 in cross examination has clearly stated that there were four persons travelling in the vehicle and that the receipt was issued to the driver Ram Prasad (PW9). This receipt should have set the alarm bells ringing in the mind of the Investigating Officer. He should have resorted to more strenuous interrogation of PW9 to unravel the truth. Once Ex.P26C revealed that there were four passengers in the Qualis and not two, it should have become apparent to the IO that PW9 was lying. That coupled with the fact that Dr. Hemant Varma gave no proof of his absence from Bhopal and his presence at Indore on 19/09/08, as he did not provide any proof of journey from Bhopal to Indore on 19/09/08 and neither did he produce any witness who could have given a statement to the police establishing his presence at Indore on 19/09/08. The conduct of Dr. Hemant Varma and his claim of absence from Bhopal on 19/09/08 when analysed in the circumstance of Ex.P26C and the statement of PW13, should have goaded the IO to subject Dr. Hemant Varma to rigorous interrogation with regard to his alleged absence from Bhopal and his presence at Indore on 19/09/08 in order to either confirm or eliminate the presence of Dr. Hemant Varma as one of the four occupants of the Qualis. The IO does not even ask Dr. Hemant Varma as to why he gave his Qualis to the Appellant to go to Hoshangabad when Dr. Hemant Varma himself had to travel to Indore on the same day? The IO should have also realised that there was no material unearthed in the course of the investigation to reveal that the relationship between Dr. Hemant Varma and the Appellant was extremely close that Dr. Hemant Varma chose to sacrifice his own comfort of travelling in his car to Indore and instead offered the same to the Appellant to go to Pachmarhi? On the contrary, the letter dated 20/09/08 (Ex.P1) written by the Dr. Hemant Varma to the SHO of PS Kohefiza clearly reveals that from the very outset itself, Dr. Hemant Varma was referring to the Appellant as a murderer even before the body was recovered. All these aspects of the case ought to have made a vigilant investigator to examine the role of Dr. Hemant Varma critically to ascertain, if his role in this case was more insidious than innocent, as was sought to be made out by the police which attributed the role of a witness to him. The omission on the part of the IO of not questioning Dr. Hemant Varma (PW1) and his driver Ram Prasad (PW9) in the light of Ex.P26C is not inadvertent but deliberate. The police knew that the entire case of the prosecution was based on the testimony of PW1 and PW9 and as per their version, on 19/09/08, only two persons travelled in the Qualis to Pachmarhi and back and they were the Appellant and PW9. The emphatic evidence revealed by Ex.P26C that there were four persons in the Qualis threw the investigation into a disarray. Obviously PW9 knew for sure that there were four persons in the vehicle. The driver Ram Prasad’s continued silence and his negation of the suggestion put forth by the defence that there were four people in the vehicle, was to protect them.
66.5 The police kept the Appellant in illegal custody from 20/09/08 till his arrest on 25/09/08. Dr. Hemant Varma in his court testimony as PW1, states in paragraph 7 that the TI of PS Kohefiza took away the Appellant with him on 20/09/08. There is no material on record to show that the police ever released Appellant after he was taken away from the hostel on 20/09/08. In order to arrive at this conclusion, we took into consideration Ex.P7 which is a memorandum of identification of the dead body. The document reveals that the identification was effected by the Appellant on 22/09/08 at 1330 hrs, in the presence of witnesses Ramprasad and Rajendra in which the Appellant has confessed that he has murdered the deceased in his hostel room by strangling her and thereafter disposed of her body at Denwa Darshan. On that date, the FIR was not registered, and neither was the Appellant arrested. The next document relied upon by us is inquest report Ex.P5 dated 22/09/08 in which also the Appellant has confessed to his crime in the presence of the witnesses to the inquest proceedings. The FIR is Ex.P51 and it has been registered on 24/09/08 and the Appellant was formally arrested on 25/09/08 and the memorandum of arrest is Ex.P53. Thus, it is clear from the prosecution’s documents that the Appellant has been in the custody of the police since 20/09/08 till he was formally arrested on 25/09/08. Before his arrest, he was made to confess to the crime during the period he was in custody of the police as is reflected by Ex.P5 and 7 which clearly reveals the malice with which the police was conducting its investigation against the Appellant. The police was well aware of the inherent fallacies and shortcomings in their investigation which have been discussed hereinabove and yet, it went ahead and prosecuted the Appellant knowing fully well that he had no role to play in the crime.
66.6 The police was outrightly partisan in its investigation. It did not investigate the offence from the standpoint of the Appellant at all. Its bias is reflected from Ex.P5 and Ex.P7 where it got the Appellant to confess to his crime before witnesses on 22/09/09 even before the FIR was registered on 24/09/08 and before the Appellant was arrested on 25/09/08. The timeline establishes that the Appellant was in the continuous custody of the police from 20/09/08. This is also proved by the testimony of PW1 Dr. Hemant Varma who states that the Appellant was taken away from the hostel by the police on 20/09/08. The conduct of the police clearly reveals that it was bent upon convicting the Appellant and the statement of the Appellant u/s. 313 Cr.P.C is telling. In response to question No.2, the Appellant has answered that PW1 Dr. Hemant Varma is vengeful towards him due to campus politics. In question No. 130, the Appellant is informed by the Court that PW6 Dr. Bhagwan Waskle stated that the Appellant was staying in the boys’ hostel since 2003 to which the Appellant answers that it is correct to say so but that due to campus politics, PW6 and the Appellant are opposed to each other. Likewise, the Appellant, in his answer to question No. 135 says that PW17 Pragyesh Navlakhe is also inimical terms with him on account of campus politics. Lastly, in response to question 198 where the Appellant is asked as to why the prosecution witnesses are against him, the Appellant replies that on account of political rivalry, he has been implicated on the basis of suspicion and that Dr. Hemant Varma has got him falsely implicated. The Appellant further says that Dr. Hemant Varma knows senior officers in the police and with their help has fabricated evidence against the Appellant and has got him implicated so as to spoil the Appellant’s career and to ensure that the Appellant is unable to study in the college.
66.7 In this regard, it is painful to note that the Ld. Trial Court has not cared to reflect upon the case of the Appellant as per his statement u/s. 313 Cr.P.C. Recently, a two judge bench the Supreme Court held that it is necessary for the Trial Court to deal with a parallel hypothesis set up by the accused in the following words, “Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) CrPC. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC to consider the same. The mere use of the word “may” cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing” [Reena Hazarika v. State of Assam – (2019) 13 SCC 289 – para 19]. This judgement was once again followed by a three judge bench of the Supreme Court where it held, “Under the Code of Criminal Procedure, 1973, after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial court to fairly apply its mind and consider the defence, could endanger the conviction itself [ Reena Hazarika v. State of Assam, (2019) 13 SCC 289, para 19 : (2019) 4 SCC (Cri) 546] . Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities [M. Abbas v. State of Kerala, (2001) 10 SCC 103, para 10 : 2002 SCC (Cri) 1270] . Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea” [Parminder Kaur Vs. State of Punjab – (2020) 8 SCC 811 – paragraph 22].
66.8 However, the Ld. Trial Court has not even fleetingly dealt with the version put forth by the Appellant in his statement u/s. 313 Cr.P.C. It was incumbent upon the Ld. Trial Court to deal with the allegation levelled by the Appellant in his answer to question No. 198, that Dr. Hemant Varma was close to the police authorities. In fact, this assertion of the Appellant assumed great significance as Dr. Hemant Varma (PW1) has himself stated in paragraph 12 of his Court testimony that he contacted IG Bhopal Mr. Shailendra Shrivastava directly on his mobile phone which reflects the close relationship between Dr. Hemant Varma and the then IG Bhopal Mr. Shailendra Shrivastava, as the personal mobile number of such a senior official is not in the public domain that anyone and everyone can have access to it. Moreover, PS Kohefiza that conducted the entire investigation was under the jurisdiction of Mr. Shailendra Shrivastava, the then IG Bhopal and therefore, his influence in the case, though no more than a lingering presence like Du Maurier’s Rebecca, was enough for the Trial Court to find that the entire investigation showed signs of manipulation though the same may not be directly attributable to Mr. Shailendra Shrivastava. However, the Ld. Trial Court has unfortunately not even referred to the contentions of the Appellant in his statement u/s. 313 Cr.P.C.
66.9 The enthusiasm shown by the police in conducting this case in a tearing hurry, adds to the suspicion. A speedy trial is most desirable but when a case is investigated, charge sheeted and concluded in less than a year, the same, in the light of other circumstances and the average time usually taken to conclude a trial in this state, makes the cloud even more dense. The incident is of 19/09/08 and the judgement of the Trial Court convicting the Appellant is dated 31/06/09. In less than one year, twenty seven witnesses are examined and sixty documents are exhibited on behalf of the prosecution. A tad too efficient to not arouse suspicion.”
It cannot be lost on us that the Bench then observes in para 67 that, “Thus, from the material on record, we find the conduct of the police is malicious and the investigation has been done with the intention of securing the conviction of the Appellant for an offence he did not commit and perhaps, for shielding Dr. Hemant Varma (PW1) whose involvement in this offence is strongly suspected though there is no material to hold affirmatively against him as he was not on trial. The proximity between Dr. Hemant Varma and the then IG Bhopal Mr. Shailendra Shrivastava, and the fact that PW1 Dr. Hemant Varma’s involvement in the case was far more than that of an innocent bystander in view of what has been discussed by us hereinabove, the investigation ought to have been done by a neutral agency like the Central Bureau of Investigation in the first place.”
Most significantly, the Bench then minces no words to hold in para 68 that, “This is a case that has been deliberately botched up and the Appellant falsely implicated to protect perhaps, the actual perpetrators of the offence who may have been known to the higher echelons of the state police. Under the circumstances, the appeal succeeds, and the judgement of conviction dated 31/07/09 passed in S.T No. 6/09, imposing on the Appellant the sentence of rigorous imprisonment for life for the offence of murder punishable u/s. 302 IPC and for three years for an offence u/s. 201 IPC, is set aside. The Appellant shall be set at liberty forthwith.”
While referring to a recent case law, the Bench then pointed out in para 77 that, “More recently, the Supreme Court in Nambinarayanan Vs. Siby Mathew (2018) 10 SCC 804, awarded a compensation of rupees fifty lakhs to the former ISRO scientist Nambinarayanan who was indicted by the Kerala Police and exonerated by the Central Bureau of Investigation. However, during the course of investigation, which the Supreme Court concluded was malicious, Nambinarayanan had to spend about fifty days as an undertrial.”
Quite significantly, the Bench then concedes in para 78 that, “In comparison to the fate suffered by Nambinarayanan, the Appellant’s fate is almost one of eternal damnation. The Appellant in this case, a Gond tribal, who with much difficulty, thanks to the provision for affirmative action in the Constitution, made it to a State run Medical College and was in the fourth (final) year of M.B.B.S and was on the verge of becoming a full-fledged doctor, a support for his family and a source of inspiration for his community. However, on account of this case, his entire life has been thrown into a disarray. He has spent over four thousand seven hundred and forty days in prison, first as an undertrial after being taken into custody on 20/09/08 (formal arrest was on 25/09/08) and thereafter as a convict. Even by modest accounts, the Appellant would have earned at least rupees three lakhs per annum, whether he be in the service of the State or in private practice. Therefore, in the unique factual circumstances of this case, we hold that the Appellant is eligible for compensation on account of the violation of his fundamental right to life under Article 21 of the Constitution of India.”
Interesting interplay and interpretation of day, date and time by the Supreme Court
The Supreme court being the final court having onerous responsibility for settling disputes and putting quietus to the myriad of contentious issues and most of the times it has to go into the interpretation of words in the statutes, contractual clauses, agreements etc., its interpretation is having a binding effect across the legal forums and in a common parlance those interpretation are followed by the institutions, corporations and governments across the country.
Herein, the light has been thrown on two of such judgement’s wherein interpretation regarding the interplay of day, date and time has come into picture.
The latest being Pradeep Kumar sonthalia vs. Dhiraj prasad sahu & anr. in Civil Appeal no. 611 of 2020 and Civil Appeal no. 2159 of 2020 , In this an interesting question with far-reaching consequence arised for consideration, It was “Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day? The brief facts of the case were as follows: –
i) By a notification dated 05.03.2018, the Election Commission of India notified the biennial elections for two seats in the Council of States from the State of Jharkhand;
(ii) Three candidates by name Pradeep Kumar Sonthalia, Samir Uraon and Dhiraj Prasad Sahu, filed their nominations on 12.03.2018. It is stated that the first two candidates belonged to the Bhartiya Janata Party (BJP), and the third candidate belonged to the Indian National Congress (INC);
(iii) On 23.03.2018, the election was held between 9.00 A.M. and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of the Legislative Assembly of the State of Jharkhand cast their votes;
(iv) One Shri Amit Kumar Mahto who was an elected member of the Assembly belonging to Jharkhand Mukti Morcha Party (JMM) admittedly cast his vote at 9.15 A.M. on 23.03.2018;
(v) As fate (not of the voter but of the contestant) would have it, Shri Amit Kumar Mahto was convicted by the Court of the Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial No.481 of 2010, for the offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on the same day, but the conviction and sentence were handed over at 2.30 P.M. He was sentenced to various periods of imprisonment for those offences, but all of them were to run concurrently. The maximum punishment was for the offence under Section 506/149 and the Court awarded RI for a period of two years;
(vi) Since the election to the Council of States is by a system of proportional representation by means of single transferable vote, the counting of votes began at 7.30 P.M on 23.03.2018. Out of the 80 votes cast, two were declared invalid by the Returning Officer. The remaining 78 votes, which were validly cast, were converted into points (at the rate of 100 points per vote) and Pradeep Kumar Sonthalia was declared to have secured 2599 value of votes, Samir Uraon was declared to have secured 2601value of votes and Dhiraj Prasad Sahu was declared to have secured 2600 value of votes. Thus, the election petitioner was declared defeated and the other two, declared duly elected;
(vii) That an objection was lodged at 11.20 P.M., requesting the Returning Officer to declare the vote cast by Shri Amit Kumar Mahto invalid, on the basis of the conviction and sentence imposed in the afternoon on the same day by the Criminal Court;
(viii) However, the Returning Officer went ahead and declared the results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon and Shri Dhiraj Prasad Sahu were declared by the Returning Officer to be duly elected and they were also issued with a certificate in Form No. 24 in terms of Rule 85 of the Conduct of Election Rules, 1961;
(ix) Therefore, Pradeep Kumar Sonthalia, the defeated candidate filed an election petition in Election Petition No.01/2018, praying for a declaration that the Returning Officer has caused improper reception of the void vote of Shri Amit Kumar Mahto. He also prayed for setting aside the election of Shri Dheeraj Prasad Sahu with a consequential declaration that the petitioner was duly elected as a member of Rajya Sabha;
The court was poised with the interesting question to answer that whether the vote admittedly cast by Shri Amit Kumar Mahto in favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on 23.03.2018 should be treated as an invalid vote on account of the disqualification suffered by the voter under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act, 1951, by virtue of his conviction and sentence by the Sessions Court in a criminal case, rendered at 2.30 P.M. on the very same date 23.03.2018.
The argument of the appellant in this case was that the event of conviction and sentencing that happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M., that wherever the word “date” is used in a Statute, it should be understood to relate back to 00:01 a.m., court held that than in the event of voting by Shri. Amit Kumar Mahto which happened at 9.15 A.M. can also relate back to 00.01 A.M. Once both of them are deemed to relate back to the time of commencement of the date, the resulting conundrum cannot be resolved.
The court rejected the argument of the appellant and held that Amit Kumar mahto was not disqualified at the time of voting in the morning that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote, went on to say that, to hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m. about the outcome of the criminal case rendered at 2.30 P.M. on the very same date 23.03.2018 in the afternoon.
Another interesting case having the interplay of interpretation of date and time was Union of India & Ors. vs. M/S G.S Chatha Rice Mills & Anr. Civil Appeal no. 3250 of 2020 in this case, a notification was issued by the Government of India under section 8A of the Customs Tariff Act 1975, introducing a tariff of enhanced customs duty of 200% on all goods originating in or exported from Pakistan, and this was done in wake of terrorist attack at Pulwama, Jammu and Kashmir on 14.02.2019, The notification of the same was uploaded on the e-gazette at 20:46:58 hours on 16.02.2019. The Government of India took a stand that the enhanced rate of duty was applicable even to those who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-gazette. The importers successfully challenged the claim of the customs authorities before the High court and the Union of India came up on appeal to the Supreme Court.
Customs authorities at the land customs station at the Attari border sought to enforce the enhanced rate of duty on importers who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-Gazette. The customs authorities refused to release the goods which were assessed earlier and reassessed them by levying revised duty at 200% and IGST at 28%.
This was challenged before the Punjab and Haryana High Court a division bench of the high court allowed a batch of writ petitions. The high court held that since the importers, who had imported goods from Pakistan, had presented their bills of entry and completed the process of “self-assessment” before the notification enhancing the rate of duty to 200% was issued and uploaded, the enhanced rate of duty was not attracted.
The high court found that the bills of entry were presented on February 16, 2019, before the issuance of notification 5/2019. The filling of the bill of entry and the entry of the vehicle were fulfilled before the publication of notification 5/2019. The absence of customs’ clearance had no bearing on the rate applicable; the notification 5/2019 having been released after working hours, it would apply from the next day as held in the decision of the Supreme Court in Union of India v Param Industries Limited.
The Union of India contended before the Supreme Court that the e-Gazette notification would have effect from the expiry of the previous day. Thus though it was issued late in the evening on February 16, 2019, since the previous day, February 15, 2019 expired at midnight, the notification must be treated as born and alive from the first tick of time past the midnight of February 15, 2019.
A three-judge bench of the Supreme Court said, with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Such notifications, akin to the exercise of delegated legislative power, cannot operate retrospectively, unless authorised by statute, it said that,
In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on February 16, 2019.
It held that , a rule framed by the delegate of the legislature does not have retrospective effect unless the statutory provision under which it is framed allows retrospectively either by the use of specific words to that effect or by necessary implication.
Thus through above two cases it makes an interesting study of how an interpretation of events occurred at various time of the day will have an effect and bearing on the stakes involved in the cases.
Rishesh Sikarwar is an advocate practising before the Supreme Court of India.
Still not ‘Highly Educated’ from India?
According to the latest data available with Ministry of External Affairs, there are around 11,33,749 students currently studying abroad. This number is likely to increase to 1.8 million by 2024 as per Redseer’s India focused report titled ‘Higher Education Abroad’. Moreover, the growth of Indian students studying abroad for Higher Education had outpaced the domestic student growth by 6x in 2016-19 to reach 770,000.
Consequently, with the increased number of students going abroad, higher education remittance from India is predicted to grow up to USD 80 billion in 2024.With a view to curb this outflow of Indian currency and also to further the goal of internationalisation of education, the Hon’ble Finance Minister in her 2022 Budget speech announced ‘world-class foreign universities and institutions will be allowed in the GIFT City to offer courses in Financial Management, FinTech, Science, Technology, Engineering and Mathematics free from domestic regulations, except those by IFSCA to facilitate availability of high-end human resources for financial services and technology’.
Ankit Bhansali, DGM, IFSCA, on the said development, comments, “We have a large pool of talented Indians serving in the IFSCs at London, New York, Singapore and Dubai. With the government’s move to allow foreign universities within the GIFT city, we will hopefully have home grown talent with the requisite skills needed for the technological and sectoral growth of the financial industry.”
The move sets a pathway for foreign universities to establish in India, providing India an opportunity to attract talent from overseas to flow in India as well as retain the Indian talent within India. With that in the background, it is important for us to understand the policy measure and discuss whether Indian students would choose to stay within India or still go abroad for their higher education.
The government policy is in line with NEP 2020 which also proposes to set up world-class foreign universities within India. These universities in IFSC would be regulated by a unified regulator i.e., IFSCA, free from multiple regulators in the Indian education sector in order to facilitate universities from diverse countries to establish in the GIFT City. As described by the finance minister, these universities will be allowed to function with 100% foreign ownership, no restriction on the repatriation of profits and an opportunity to collaborate with domestic universities, students and the financial industry.
Additionally, foreign universities would be allowed to setup as business entities functioning for profit. The move has generated interest from renowned universities like London Business School, Cambridge University, King’s College amongst others to establish within the country.
While IFSCA would be the regulator for these educational institutions, its scope of authority requires more clarification since its scope of authority under IFSCA Act, 2019 relates to regulation of financial services. In matters such as fee structure entry level qualifications, accreditation and others, it is not clear whether foreign universities would be allowed the requisite autonomy. Also, as per the budget statement, the universities in GIFT city would be allowed limited scope of subjects which could hinder the participation from Indian students.
The setting up of foreign universities within IFSC would ensure the availability of trained human resource for latest financial products and services. It would also lead to promotion of different financial services including remittance services within the zone. Since Indian students would also be required to pay their fees in foreign currency, it will create an ease of transaction, converting to ease of living.
Lastly, the investment by these universities within India would majorly depend on its ability to attract students from abroad and within India. Some of the major drawing factors for Indian students to study abroad remain better quality of education, higher standard of living and job opportunities after completing education from these institutions. Another factor is the world class professors and the highly diverse peer network that these universities offer with their campuses abroad. There are also sector specific factors like in case of medical students, we see the gap in demand and supply in government educational institutions and the hefty fees charged by private colleges as the motivating factors for students to study outside India.
RECOMMENDATIONS AND CONCLUSION
The Act governing IFSCA needs to be adequately amended in order to allow for clear scope of governing the education sector. Domestic legislations need to be altered as well to allow collaboration between these universities set up in the GIFT city and outside it. A major reason hindering participation of foreign universities in India has been finance. These universities depend on large donations from private and government funders and also run on for profit-basis in order to function. The government needs to look into these factors in order for the policy to materialise.
India has remained an education hub for students from low-income and neighbouring countries.
As per available data, around 3.33 lakh foreign students have arrived in India over the last five years, 2016-2021. Nearly 22 lakh Indian students went abroad between 2016 and end of January 2021 and spend around $28 billion or 1% of GDP every year on education and related expenses. Out of this, around $6 billion are fees received by foreign universities.
“Lending and remittance activities being a regulated space, Fintechs and neo banks need to take into account not just the regulations applicable in India but also the regulations of the countries to which the students move for education. This being e regulated space, the regulators in India and across the globe should ensure not just compliances by the organisations but also a hassle free and streamlined standard operating procedure laid down for obtaining licenses and compliances thereafter” as pointed out by Anuroop Omkar, Partner at AK & Partners.
With the coming in of foreign universities, it could be possible to attract students from the west and high-income countries apart from the traditional countries if the universities are structured accordingly.
While the outward remittance under ‘Studies Abroad’ has declined from $455.51 million in January 2021 to $345.76 million in January 2022, this trend maybe short lived due to the ongoing pandemic and geopolitical uncertainties.
Pawanjit, co-founder of Reeudo, comments, “In the current outbound remittances payment ecosystem from India students have to face multiple friction points at both ends of the corridors, the needs of the students in the origin countries vs the destination countries are very different. In the absence of a completely digitized journey for outbound remittances, the students have to face significant cost and time delays in sending or receiving payments abroad.” Reeudo was recently granted an FMCC license by RBI to carry out its activities pertaining to student remittance.
The possibility of Indian students to be highly educated from within India thus depends on the government’s ability to allow the foreign universities to set up and function with the requisite autonomy and its ability to attract qualified professors and students from abroad. There would always be a section of students willing to go abroad to study for exposure but government can focus on the middle-class section which aspires to raise their living standard by ensuring the best education for their children and are spending their crucial savings to provide the same.
Going forward, Indian government needs to look into sector wise education needs of students within India and ways to attract students from abroad in these universities in order to truly internationalise education and save on the large amount of remittance flowing outside.
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