Centre clears transfer of Justice Thottathil B Radhakrishnan to Calcutta High Court [Read Notification]

thottathil b radhakrishnan

The Central Government has notified the transfer of Justice Thottathil B Radhakrishnan from the Telangana High Court to the Calcutta High Court.

As per a notification issued today, Chief Justice Radhakrishnan has to take charge as the Chief Justice of Calcutta High Court by April 6, 2019. The notification states,

In exercise of the powers conferred by conferred by clause (1) of Article 222 of the Constitution of India, the President, after consultation with the Chief Justice of India, is pleased to transfer Shri Thottathil Bhaskaran Nair Radhakrishnan, Chief Justice of the Telangana High Court, as Chief Justice of the Calcutta High Court and to direct him to assume charge of the office of the Chief Justice of the Calcutta High Court on or before 06th April, 2019.”

The Collegium, by its resolution of January 10, 2019, had proposed to transfer Justice Thottathil B Radhakrishnan to Calcutta High Court in the interest of better administration of justice.

The above proposal which was sent to the Central government was referred back to the Chief Justice of India for reconsideration.

However, last month, the Collegium stood by its earlier recommendation and reiterated the proposal, holding,

“While making aforesaid recommendation dated 10th January, 2019, the Collegium has already considered all aspects pointed out by the Government for seeking reconsideration thereof. Nothing new has been brought to our notice.”

The Centre has finally cleared the proposal.

Read the Notification:

Notification of Transfer of Shri Justice T.B.N. Radhakrishnan, CJ, Telangana HC as CJ, Calcutta HC

Jain to Sahara Birla Diaries: What may happen if the Yeddyurappa Diaries issue reaches the courts

yeddyurappa bjp

The Caravan has accessed documents which reveal that the Income Tax Department is in possession of copies of diary entries in the handwriting of prominent BJP leader and the former Chief Minister of Karnataka, BS Yeddyurappa.

What has come to be known as the Yeddyurappa Diaries allegedly note payoffs amounting to over Rs 1,800 crore to the BJP’s national leaders, its central committee, as well as judges and advocates.

The implications of this revelation might be fully known in the days to come. However, what would be the legal implications of these documents? Can the same be used against Yeddyurappa and other political bigwigs? The matter is not without a precedent and might very well weigh in favour of Yeddyurappa, especially if a petition in the nature of public interest litigation is filed in any High Court or the Supreme Court. (yeddyurappa bjp )

This is because of a very similar precedent which was decided by the Supreme Court more than two years ago – the Sahara Birla payoffs.

Sahara Birla: What were the documents?

In 2016, a plea by NGO Common Cause came up for hearing before the Supreme Court. The plea sought a SIT probe into the evidence gathered against the Sahara Group and the Aditya Birla Group regarding bribing of politicians. The applicant had alleged that the Central Bureau of Investigation (CBI) had conducted raids on the premises of Aditya Birla group industries in four cities on October 15, 2013 followed by another raid by the Income Tax Department on the very next day. It was submitted that the CBI transferred the incriminating documents to the Income Tax Department. The laptop of Mr. Shubhendu Amitabh, Group Executive President, was seized during the raid. An e-mail containing a cryptic entry referring to political functionaries was also recovered from the laptop. (yeddyurappa bjp)

It was also submitted that during the investigation, top officials of the Birla Group admitted that large amounts of cash were routed by the Sahara Group through hawala transactions. The Income Tax Department prepared a detailed appraisal report on the hawala transactions. Some extracts of the report were filed as an annexure to the petition.

With respect to the Sahara Group, incriminating documents and cash amounting to Rs. 135 crores were seized. Certain documents were filed in the form of printouts of Microsoft Excel sheets, showing cash receipt of over Rs. 115 crores and cash outflow of over Rs. 113 crores during a short period of 10 months. The log suggested that cash was transferred to several important public figures.

Thus, in a nutshell, the documents seized during the raids allegedly evidenced bribing of high-ranking officials and politicians including then Gujarat Chief Minister Narendra Modi.

“Anybody can make a computer entry against a Chief Minister or Prime Minister. Can we order a probe based on all that? Bring better material.”

The Court’s reactions

From the very beginning, the Court showed its inclination to junk the plea. Various remarks by different judges who heard the matter made this evident. The matter was initially being heard by a Bench of Justices JS Khehar and Arun Mishra.

When it came up for hearing on November 25, 2016, a document by Sahara was cited by advocate Prashant Bhushan, who was appearing for the petitioner.

Justice Khehar (who had heard the SEBI Sahara case for a long time before recusing himself) remarked that none of the documents of Sahara were genuine. He remarked,

“Are you relying on Sahara’s documents? They never have genuine documents. That is why I recused from hearing their case.”

Subsequently, Bhushan cited the computer entry found from raids at Birla’s premises, which dealt with payments made to the then Chief Minister of Gujarat Narendra Modi. (yeddyurappa bjp)

The Bench was, however, far from impressed.

“Anybody can make a computer entry against a Chief Minister or Prime Minister. Can we order a probe based on all that? Bring better material.”

Referring to Attorney General Mukul Rohatgi, who was appearing for the Central government, Justice Khehar remarked,

“I can make a computer entry against, say, Rohatgi’s name and that cannot form the basis for an SIT probe.”

Email found on the laptop of Shubendu Amitabh making allegations against the then Chief Minister

The Court then granted three weeks’ time to the petitioner to produce better material to satisfy the Court that the matter warrants a probe. During the subsequent hearings, the petitioner sought additional time to file documents which had come into their possession. The Bench of Justices Khehar and Arun Mishra were not inclined to grant the same. This led to advocate Prashant Bhushan citing conflict of interest on the part of Justice Khehar, since he was slated to take over as the next Chief Justice of India and the files pertaining to the same was pending before the government. (yeddyurappa bjp)

Justice Khehar eventually recused and the matter was sent before another Bench of Justice Arun Mishra and Justice Amitava Roy.

The judgment

The matter was heard by the above Bench on January 11. The Court heard the case for the whole day before dismissing the case.

In its order, the Court emphasised that high Constitutional functionaries cannot be investigated without cogent material.

“There has to be some cogent material which is prima facie reliable…in case we do not insist for the same and order investigation, process of law can be misused and no democracy can function if investigation is set in motion against high Constitutional functionaries without cogent material”.

The Court felt obliged to be “on guard while ordering investigation against any important constitutional functionary, officer, or any person in the absence of some cogent legally cognizable material.”

An Excel sheet containing details of inflow and outflow of cash was referred to by the court in its judgment as “random log”.

“The random log suggests that cash was transferred to several important public figures. Copies of the random pages have been filed as Annexure A-8.” 

Jain Hawala case (CBI vs VC Shukla)

Regarding the admissibility of the materials placed before it, the Court placed reliance on its judgment in CBI v. VC Shukla. In the Jain judgment, a 3 Judge Bench ( Justices M.K. Mukherjee, S.P. Kurdukar and K.T. Thomas), the Court had considered whether entries in Jain Hawala diaries, notebooks and files containing loose sheets of papers not in the form of “Books of Accounts” can be admissible under Section 34 of Indian Evidence Act. It had held that such entries in loose papers/sheets are irrelevant and not admissible, and that only entries in books of accounts regularly kept are admissible. Even in the case of books of account, such evidence is only corroborative and independent evidence is necessary to ascertain the trustworthiness of the entries in the books of account, the Court held in that case.

Kapil Sibal citing American Jurisprudence, Proof of Facts (Volume 34, Second Series) had argued in the Jain Hawala case :

“The entry should have been made at or near the time of the transaction recorded – not merely because this is necessary in order to assure a fairly accurate recollection of the of the matter, but because any trustworthy habit of making regular business records will ordinarily involve the making of the record contemporaneously. The rule fixes no precise time’ each case must depend on its own circumstances.”

Thus combining these factors, the Court turned down the plea for probe in Sahara Birla payoffs, holding,

“We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on random papers at any given point of time.”

BS Yeddyurappa Diary

Whether the Yeddyurappa diaries are “books of account” or “loose sheets” is one question. Even if they are books of account, whether the same would be admissible as evidence without independent evidence would be the next question. In any case, Constitutional courts are empowered to dismiss such a petition in limine.

In this context, it remains to be seen whether anyone will choose to take the Yeddyurappa Diaries issue further. If it does eventually find itself to the courts, the government and the accused are likely to place reliance on the judgment in Sahara Birla payoffs to seek dismissal of the matter.

Read the judgment in Sahara-Birla Payoffs below:

Sahara Birla payoffs

Justice PK Mishra appointed Acting CJ of Chhattisgarh HC after CJ AK Tripathi appointed Member of Lokpal

Chhattisgarh High Court

The Central Government has notified the appointment of Justice Prashant Kumar Mishra as the Acting Chief Justice of the Chhattisgarh High Court, following the resignation of Chief Justice Ajay Kumar Tripathi from the office. (AK Tripathi)

Chief Justice AK Tripathi had tendered his resignation after he was appointed as a judicial member of the Lokpal. Consequently, the duties of the Chief Justice have been transferred to the next senior-most judge of the High Court, Justice Prashant Kumar Mishra.

Justice AK Tripathi (Left) and Justice PK Mishra

Two notifications to this effect were issued by the Central Government yesterday. 

Justice Mishra enrolled as an advocate in 1987. He was designated a senior counsel in 2005. He went on to serve as an Additional Advocate General for Chhattisgarh between 2004 and 2007. Thereafter, he also acted as the Advocate General from 2007 until his elevation as a judge of the High Court in December 2009. 

Justice AK Tripathi becomes part of the first-ever Lokpal, along with Justice PC Ghose, who was appointed the first Chairperson of the Lokpal earlier this week. 

Prior to his taking charge as the Chief Justice of the Chattisgarh High Court, Justice Tripathi was a judge of the Patna High Court. During his years of practice, Justice Tripathi had served as Additional Advocate General for Bihar. 

Read the notification appointing Justice Prashant Kumar Mishra as the Acting Chief Justice of the Chhattisgarh High Court:

ACJ Chhattisgarh HC

Read the notification regarding the resignation of Chief Justice AK Tripathi consequent upon his appointment as a judicial member of the Lokpal:

Shri Justice A.K. Tripathi
 

  • March, 23rd, 2019
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Persons with locomotor disability of more than 80% eligible for admission to PG medical courses, MCI to Delhi HC

locomotor disability

The Medical Council of India has informed the Delhi High Court that persons who have locomotor disability of more than 80% shall be eligible for admission to postgraduate medical courses, if the disability can be brought down to the level of 80% or less with the help of assistive devices.

Such persons shall be eligible for seats reserved for persons with disability, MCI has stated.

The averment was made in an affidavit submitted to the Court in a petition by one Mohd Shaloo. The petitioner had challenged the MCI notification declaring persons having locomotor disability of more than 80% as ineligible for admission to postgraduate medical courses.

The petitioner is a junior resident at Delhi’s  RML Hospital and has a disability of 90%.

It is respectfully submitted that the answering respondent with the prior approval of the Central Govt. has amended the Postgraduate Medical Education Regulations, 2000, including that persons with more than 80% disability may be allowed, on case to case basis, after determining their functional competency with the aid of assistive devices, if the same are being used, so as to assess if the disability is brought below 80% and also whether they possess sufficient motor ability as required to pursue/complete the medicine course satisfactorily“, the affidavit reads.

It is stated that the decision to amend the Postgraduate Medical Education Regulations, 2000 to this effect was taken by the Board of Governors in supersession of the MCI in its meeting held on February 25, 2019. The decision was communicated to the Central Government on March 7, 2019.  It was approved by the Centre, subject to certain clarifications.

Subsequently, the Medical Counseling Committee (DGHS) through its notice dated March 15, 2019, also informed the candidates that persons with disability candidates, who had been earlier found to be ineligible for having locomotor disability was more than 90%, would have to get themselves re-assessed by the Designated Disability Centres to obtain a fresh disability certificate as per the amendment to the Postgraduate Medical Education Regulations, 2000.

Meanwhile, another petition challenging the Medical Council of India’s notification declaring that aspirants having benchmark disability of more than 80% are ineligible for admission to undergraduate medical courses is still pending.  This notification was applicable to persons having locomotor disability, amputation of a hand, dysgraphia, blood disorders like haemophilia, thalassemia, sickle cell anaemia, and chronic neurological conditions.

Both the petitions were filed through Advocate Gaurav Bansal.

The cases are being heard by a Division Bench led by Chief Justice Rajendra Menon.

The matter will be heard next on July 29.

Time for Insurance Companies to respect the remedy of Arbitration

Insurance

Narasimhan Vijayaraghavan

There is an apocryphal tale attributed to the Courtroom genius, Nani Palkhivala. Once, while arguing before Chief Justice Gajendrakar, he is reported to have said,

“If I were appointed the dictator of a country, in the short period between my appointment and my assassination, I would definitely impose a law making international arbitration practices compulsory. Arbitration would help to transform character, towards less confrontation and more consensus, less litigiousness and more understanding and above all else finality to the dispute”. 

Why this preamble? Palkhivala would be turning in his grave if he were privy to the approach of licensed general insurance companies, including the public sector entities. There appears to be a dedicated effort to avoid agreeing to settle disputes through arbitration. 

For, the insurers are convinced, with empirical or on notional basis, that arbitration is skewed against their interests. They appear convinced from ‘experience’ that once the dispute is referred to arbitration, an award against them is a foregone conclusion, and together with interest and costs, they face certain financial liability, which they need to avoid ‘at all costs’.

It is true that the precept and practice of insurance is not healthy or happy in India. The consumers of insurance products view them as ‘expenses’ and not as ‘investments’ to protect themselves in the wake of a fire accident, flood, earthquake, terrorist strike, or a simple theft, pilferage et al. There is an effort by business entities to cut down on the ‘costs/premium’, with the result that they rue their parsimony when a tragedy takes over. 

That is why the insurance penetration, in India, according to the regulator Insurance Regulatory and Development Authority (IRDA), is an unhappily low 3.69% in 2017 from 2.61% in 2001 before privatisation.

Be that as it may, it is the insurer, who in the very scheme of things has a higher responsibility. As insurers, they have knowledge, expertise, and inputs and experience. As Supreme Court said in the Skandia Insurance case (1987),

“the business of insurance is to provide relief in times of distress. It is their business to arrange their affairs prudently to be commercially viable”. 

Contextually, therefore, the acts of insurers to deny claims is founded on their anxiety to avoid being “sucked into the vortex of arbitration proceedings”, as a retired insurance official put it. So, what do they do?

The reason that insurers always offer to deny claims outright is that “claims are exaggerated and hence tainted by fraud”. Why this course?

The answer is simple. Under the standard form of commercial insurance contracts, there is an age-old clause christened as the Scott v. Avery clause, which offers room for mischief. As per the said clause, if the insurers deny the claims as not ‘admissible’, there is no remedy available for arbitration. Only when the insurer admits ‘liability’ and offers settlement, would there arise a dispute on quantum and its ‘arbitrability’.

In order to deny liability, the insurers can invoke a term, clause, condition, exclusion, warranty of convenience.  As someone once put it, “The insurer would offer to cover a fall from a height, but would exclude an actual fall on the ground”. Or as Lord Denning waxed eloquent,

“The insurance contract is a strange beast. What the bigger clauses yield, the smaller clauses take away. So beware”. 

The Supreme Court has consistently held that once ‘liability’ is denied, the remedy of arbitration is ousted. The claimants need to go the dreaded long winding civil suit route, vide the Maharaj Singh case (1973), leading up to the Hyundai case (2018). So the insurers appear eager to latch on to any and every clause to deny claims. 

Of late, the instances are too many, as burgeoning suits and consumer complaints reveal, and the one clause that offers immense scope for insurers to go this route, is alleged ‘exaggeration’ in claims.

Standard insurance contracts have a clause that if the claim was ‘exaggerated’, the insurers would be entitled to deny the claim as ‘fraudulent’. The meaning and interpretation attached to it by insurers is loose and convenient.  In the seventeenth century, Lord Mansfield said,

“It is a matter of common knowledge and human instinct to exaggerate an insurance claim just so that they may get the actual loss, for the insurer is bound to beat it down no matter what, which is their commercial instinct”.

If that be so, then in the 21st Century, to rely on that elusive clause as an elastic one, seems unfair.

Aware of the proclivity of insurers to indulge in ‘creative repudiations’ and to insist on discharge vouchers in ‘full and final settlement’, while holding the bargaining chips, IRDA issued two circulars dated September 24, 2015, and June 6, 2016, pursuant to intervention by the Delhi High Court. It was made clear that insurers should not compel the insureds to give a full discharge to receive even admitted indemnity. The insureds should be allowed to exercise their legal remedies. 

Having been cornered, the insurers appear to have decided that they can, after all, exercise their ‘discretion to decide on admissibility’ and deny claims rather than be compelled to face the remedy of arbitration. If the insureds are forced to seek the route of a civil suit – which is expensive and time-consuming – many a claimant falls by the wayside at the very thought of it. 

Add the compulsive inclination of insurers to file appeals against the arbitration awards, as a matter of routine, the finality of awards take an eternity. The precept and practice of alternate dispute resolution viz. arbitration as an expeditious remedy, goes for a toss.   

The time may have come for the regulator IRDA to take note of such acts of insurers. To begin with, it must compile the number of claims repudiated in the recent past and have them examined by a committee of experts as to whether the denials passed muster or there was an effort to deny by stretching their defences.  

More importantly, it may be time for IRDA to direct the insurers to incorporate an arbitration clause which would take within its fold, a dispute on ‘liability’ also, rather than confining it to ‘quantum’ alone. Maybe IRDA could conceive and implement the resolution of disputes to arbitration, by itself, forming a panel of domain experts with integrity and independence.

The time for such a surgical remedy may well have arisen, for denial of insurance claims, when the industry needs it most, causes immense harm not only to the unit, but has its cascading effect on the economy too. 

Or do we need a Nani Palkhivala to be born again as the dictator he dreamed to be?  

 The author is practising advocate at the Madras High Court.

 

Image taken from here.

Justice AK Sikri: The Professor Judge of India

Undertaking the task to pen our views about a Supreme Court Judge is daunting, not least because Justice AK Sikri was one of the most respected and admired judges of the nation, but also because we realize that the words that adequately describe his nature, humility, integrity, and intelligence may be misconstrued as treading into obsequiousness.

But his story is one for the ages, one that demands to be told. We, as his law clerks, only attempt to contribute a drop in this vast ocean. The opportunity to write this is indeed a particular honor. For as much as Hon’ble Mr. Justice AK Sikri has touched the life of the law, he has touched the lives of those around him and in ways that hold rich lessons of their own.

We all have had those extraordinary moments when particular incidents provide us a glimpse about the decisions that have brought us to this very minute and how our actions continue to unravel our future and impact all that is around us. These moments are insightful, rare and valuable. While for most of us these moments occur infrequently, there are a few exceptional people who are capable of seeing the world with such a viewpoint.

Crossing paths with such exceptional people is often regarded as a blessing, because they are capable of lifting us up, providing us with a mindset that enables us to see new perspectives. We, as Justice AK Sikri’s law clerks, consider ourselves to be extremely fortunate, as we had the opportunity to not only cross paths with him, but also to share intensive years and a lifelong bond with a man who has that gift and has continuously shared it with those who he has come in contact with.

To clerk for Justice AK Sikri was an opportunity to serve an institution that we venerate. The approach adopted by His Lordship has been unique because while he is the most forward looking and adaptable judge, his insight is rooted in history, the Constitution and an unparalleled appreciation for the Rule of Law. His lectures and judgments insightfully present an amalgamation of the past and the present. His primary focus is not only to appropriately resolve the dispute at hand, but also to contribute effectively towards the constant evolution of law so that similar conflicts seldom crop up.

A thinker, a philosopher, a teacher, Justice AK Sikri has always believed in the richness of the Indian jurisprudential thought, which is lately becoming disjointed from our modern jurisprudential thought. Quoting Justice AK Sikri,

“There is a wrong perception, which even we, the people of India, carry that human rights are the gifts of the West to the rest”.

It has been his endeavor to look back at the tides of time to find the genesis of our modern laws and legal thought in our ancient scriptures and teachings, thereby connecting modern legal thought with ancient Indian jurisprudence.

Giving Human Dignity a meaning the world craved

“Human rights are not granted by the people nor can they be taken away by them.”

Reinforcing that Human Rights are universally recognized as belonging to every person, Justice KS Radhakrishan along with Justice AK Sikri penned the historical judgment, granting legal recognition of gender identity whether it be male, female or third gender.

Holding that “the Constitution is a living entity and its interpretation must be dynamic”, the judgment paved the way for a more accepting and equal society. The “human” element of the judgment was further highlighted when Justice AK Sikri referred to an article that appeared in a magazine “Eye” that narrated the story of a person born as a boy but with trappings of female. Emphasizing the difficulties faced by the person compounded by our society’s discriminatory behavior, Justice AK Sikri’s words stirred empathy in the minds of the readers, an outcome he was hoping for.

Many judgments of Justice AK Sikri laid emphasis on the “human element”

In the Jeeja Ghosh matter, Justice AK Sikri began the judgment by quoting this phrase from the book No Pity by Joseph Shapiro,

“Non-disabled Americans do not understand disabled ones”.

This one line encapsulated the underlying issues that the case brought to the fore. Stressing upon the indispensable aspect of human dignity, Justice AK Sikri classified the constitutional value of human dignity into three essential categories: 1) Theoretical Model; 2) Philosophical Model; 3) Constitutional Model.

He seamlessly merged this with the case at hand – the requirements of indisputably treating people in all respects with absolute dignity, and not merely sympathy.

In the Constitution Bench judgment concerning Passive Euthanasia, Justice AK Sikri unfolded the complexities surrounding the controversial issue. He went on to state.

“In the context of euthanasia, ‘personal autonomy’ of an individual, as a part of human dignity, can be pressed into service…In addition to personal autonomy, other facets of human dignity, namely, ‘self expression’ and ‘right to determine’ also support the argument that it is the choice of the patient to receive or not to receive treatment.”

As a judge of the Delhi High Court, Chief Justice of the Punjab and Haryana High Court, and eventually judge of the Supreme Court he has tried to remind us to safeguard the freedoms we enjoy. Through his judgments, speeches and even discussions with us, he would stress on the issues that we as a nation are facing and how we must as young professionals evolve with the constantly changing legal and political dynamics.

Justice AK Sikri showed us with the power of his pen, the vital role the judiciary has in ensuring our Constitution, our structures, and our government are respected, relevant and accessible. He stressed that it is the people’s respect for the rule of law, the faith in our institutions, and the integrity of those who serve them that will protect the liberties and rights we know.

It is believed that judges of today ought to be ones who are “sensitive to the climate of the age, not the weather of the day or the weather of the year.” When we look at the climate of this day, we can describe it as one that demands increasing sensitivity towards human rights and human dignity.

At the very outset, based on all that he stands for and all he has propounded, Hon’ble Justice AK Sikri has been not merely a part of the climate of our age but largely responsible for bringing it into existence. In the Maharashtra Dance Bar judgment, Justice AK Sikri balanced the competing interests, respecting the dignity of those associated. His judgment diluted certain provisions and brought about the much-needed regulation in the industry aimed at curbing the exploitation of the dancers.

For him, human dignity was not just words on a paper, or something that should be preached emptily. The words that he wrote and spoke about were words that he lived by, believed in with all his heart, holding it on the highest pedestal, whether it was in his judgments, speeches or interpersonal interactions. Despite having presided over numerous criminal cases and issues concerning human rights, cases with a blatant disregard for human dignity would leave him distressed and he would assume responsibility in ensuring that similar issues do not repeat itself. It was this characteristic of his that truly set him apart.

New disputes, new resolutions

Justice AK Sikri has been mindful of the issues that Indian courts grapple with, including the huge caseload. He has also been someone who has strongly felt that the courts need to encourage alternative methods for the resolution of disputes and must strive to limit interference in matters concerning arbitration.

In A Ayyasamy. he clarified that allegations of fraud could be arbitrable if not complicated or serious. Whether it is mediation in matrimonial cases or arbitration in many commercial matters, it has been his view that this is the way forward as long as justice is done.

Placing emphasis on the non-adversarial characteristic of mediation he has aptly said,

“Mediation brings us from I to We, or Me to We. However the only reason behind mediation is not to take the burden off the courts but to deliver justice and stay true to the law. Mediation talks about what is right whereas the judicial system talks about who is right.”

Additionally, he has strongly believed that the court process should only strive to assist arbitration and not hamper it in any which way. He has always thought of India one day being the “future hub for neutral arbitration”, and the need for India to aspire to be so, “since most people have tremendous faith in this system of resolution”.

His contribution to this field of law has been remarkable. Often he would speak to us about different mediation techniques that he has seen being used by mediators around the world in various matters and how each was pertinent and unique. He would narrate stories to us and tell us about the importance of truly understanding the conflict in order to determine what method ought to be employed in its effective resolution.

The Teacher in Him

Some of us interned with Justice AK Sikri during law school; for a young law student, orally briefing a Senior judge of the Supreme Court could, quite appear to be an intimidating task. However, to our pleasant surprise, even during such briefings, the teacher in Justice AK Sikri would come out and he would slowly explain legal concepts pertaining to the case.

Justice AK Sikri

Justice AK Sikri with his clerks and research assistants

Not once did he raise his voice, or lose his calm, which made our first steps into the profession extremely smooth and full of warmth. He was Justice AK Sikri for the world, but more importantly, he was a friend who his students or staff could approach at any given time and he would always take out the time to hear them out, no matter who it was. Justice AK Sikri is not an individual, he is an institution and his extremely successful career and legacy will always be celebrated and cherished by future lawyers for years to come.

Humility personified

When we look back, all of us still vividly remember the first time we walked into his chamber at his residence. There were so many thoughts running through our heads, for we were about to meet a judge of the Apex Court, someone whose judgments we grew up hearing about in the news and whose opinions we studied throughout law school.

Upon walking in – on different occasions for all of us over a span of a few years – we all felt a sheer sense of warmth dawn upon us. It was on that very moment of that very day, that we realized that fate had brought us to the perfect boss, the perfect Guru – welcoming towards his juniors and always open to conversation about almost anything under the Sun.

Growing under his guidance has been a truly enriching experience for us, not only as young lawyers but also as human beings. Looking back today, all of us collectively believe that there could have been no better way for us to start our professional journeys into the field of law than under Justice AK Sikri’s most able guidance.

It has been two weeks since his retirement, and his absence in the Supreme Court can be felt. The way he worked day and night, reminded us that it was impossible to achieve any success without perseverance and hard work. He often told us about the importance of young lawyers in the constantly evolving world. He would share numerous motivating and inspiring stories with us over a cup of coffee. While discussing the different cases he would narrate anecdotes that would constantly encourage us to be even better than our capabilities permitted. Working for him has been an honour, for he is sincere, modest, humble, intellectually thorough, and extremely generous.

As former law clerks, current advocates, and proud Indians, we are extremely grateful for what Justice AK Sikri has taught all of us about the law and life. He has left an indelible impression on his law clerks, the advocates who appeared before him, his colleagues, the Court, and the Bar. Just as he has inspired us, he will continue to inspire the future lawyers and judges to serve justice, stand for the truth, defend the rule of law. and to support and uphold the Constitution.

Written by Justice AK Sikri’s former Law Clerks–cum-Research Assistants.

AZB, SAM lead on DLF-Hines JV to develop ₹1,900 crore commercial project

DLF Ltd has formed a second joint venture with global investment and development firm Hines to develop a commercial project in Udyog Vihar, Gurugram, at an investment of 1,900 crore ($281 million).

AZB & Partners acted for DLF and the team was led by Partner Vinati Kastia along with Senior Associate Ankit Tandon.

Shardul Amarchand Mangaldas acted for Hines and the team was led by Partner Jatin Aneja.

The project will be developed on 11.76 acres of land owned by the JV.

DLF Home Developers Ltd and Green Horizon Trustee (an affiliate of Hines) have entered into the joint venture, in which the former will hold 67% stake while the remaining 33% will be held by Hines, reported Mint.

  • March, 22nd, 2019
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L&L, JSA lead on PFC acquisition of govt stake in REC for 14,500 crore

PFC

State-owned Power Finance Corporation Limited (PFC) has acquired the Centre’s 52.63% paid-up share capital in Rural Electrification Corporation (REC) Limited for Rs 14,500 crore.

L&L Partners acted for PFC and the team was led by Partner Damini Bhalla along with Senior Associate Akshay Jain and Associate Arsh Khan.

Partner Abdullah Hussain and Managing Associate Rudresh Singh advised on the Competition Law aspects for securing approval of the Competition Commission of India.

Partner Karan Mitroo, Managing Associate Purvi Dabbiru and Associates Aditya Gupta, Anuradha Godrey, Ankita Parasar and Navroop Bhatia advised from the banking and finance perspective.

J. Sagar Associates (JSA) acted for Government of India and the team was led by  Partners Rohitashwa Prasad and Sujoy Bhatia. Associates Anshu Bansal, Namrata Nambiar, Aishwarya Abhijit also worked on the deal.

Partners Dina Wadia and Uttara Kolhatkar and Associate Rishab Jain worked on consent solicitation exercise for the US dollar bonds on behalf of REC along with the waiver exercise for the ECB loans.

In December 2018, the Cabinet Committee for Economic Affairs (CCEA) approved the sale of central government’s existing 52.63 per cent equity in REC to PFC along with the transfer of management control.

PFC – Press Release

Press Release - PFC

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  • March, 22nd, 2019
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No man should suffer because of the mistake of the court, Gujarat HC frowns upon quality of legal aid in murder case

Gujarat High Court

In a recent judgment, the Gujarat High Court set aside the capital punishment awarded to a young woman accused of a double murder on the ground that her mental condition was not taken account of.

The Division Bench of Justices JB Pardiwala and AC Rao began the judgment by stating that if a litigant is harmed by mistake, it is the duty of the courts to correct this wrong. The judgement states,

“There is no higher principle for the guidance of the court than the one that no act of courts should harm a litigant and it is the bounden duty of the courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied, but for that mistake. This is aptly summed up in the maxim ‘actus curiae neminem gravabit’.”

The Gujarat Court also frowned upon the quality of legal aid provided to the appellant by the Legal Services Authority.

The appellant, a nineteen-year-old woman, was awarded capital punishment after being convicted of a double murder by the trial court in Gandhidham. She was also sentenced to rigorous imprisonment for five years.

When the Gujarat High Court examined the evidence furnished during the trial, it observed that the plea of insanity was not raised by the defence, nor was it touched upon by the prosecution.

The counsel representing the appellant before the Gujarat High Court brought the Court’s attention to the fact that the appellant was undergoing treatment for her mental condition for the last two years. Her unstable mental state had also found a mention in the statements made by the informant in the First Information Report. This fact was overlooked or missed by the trial court, submitted the Public Prosecutor assisting the Gujarat High Court in the case.

A public prosecutor is an officer of the Gujarat High Court and shall not try to obtain a conviction “by hook or by crook”, theGujarat High Court noted, further adding that the investigating officer as well as the defence lawyer appointed by the Legal Services Authority failed in their duties in this case.

While saying so, theGujarat High Court highlighted the mandatory nature of compliance with Section 329 of the Code of Criminal Procedure (CrPC), which deals with the procedure of trial before the Magistrate when the accused appears to be of unsound mind. (Gujarat High Court)

The Gujarat High Court ordered a re-trial of the case, directing that an inquiry under Section 329 of the CrPC be conducted to ascertain whether or not the appellant is indeed of unsound mind. Should the appellant be found to be capable of making her defence, the trial court can proceed with framing charges, the Gujarat High Court held.

The Bench also delved into the issue of efficiency of the legal aid provided to the appellant by the Legal Services Authority. Underscoring the importance and gravity of good legal aid, the Gujarat High Court said that the legal aid service is not a platform for training of young lawyers.

“This is a second matter in last 15 days we are dealing with in which we have noticed that the legal aid which is being provided is just for namesake. The legal aid is nothing but a farce. The panel of lawyers which is being prepared for the purpose of legal aid is not a platform to provide training to young lawyers or give them an opportunity to gain experience as regards conduct of a sessions case. The cross-examination of the witnesses in a serious offence like murder is not a child’s play. It is very unfortunate to note that in the case on hand there is practically no cross-examination.”

Thus, reiterating that it is the duty of the court to ensure that every party is adequately represented, the Bench went on to lay down the following directives for police officers as well as Judicial Magistrates and Sessions Judges:

  1. When an accused appears to be of unsound mind, it is the duty of the arresting Police Officer to produce him before medical professionals and obtain certification in this regard.
  2. The onus of this medical examination of the accused falls on the Judicial Magistrate should the arresting Police officer fail to do so.
  3. Every accused, particularly those facing charges inviting substantial sentence, should be provided appropriate legal assistance at the State’s expense.
  4. It is the duty of the Sessions Judge to ensure that sufficiently experienced lawyers are provided to the accused for their representation.
  5. The Directorate of Prosecution, Legal Remembrance and the Principal Secretary, Home Department, must regularly review the manner in which the Public Prosecutors in-charge of the sensitive cases are conducting the trial.

The judgment ends with the Gujarat High Court warning,

“If inexperienced advocates alone are available to defend such unfortunate accused, the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from treading on dangerous grounds.”

Read the Judgment:

 

Gujarat vs Manjuben

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Umroi Airport Case: What the Meghalaya High Court found “disturbing” and “disgusting”

umroi airport

The Meghalaya High Court has expressed its displeasure over the fact that Airliners have reservations in operating flights to Umroi airport in Meghalaya.

The Court found it “disturbing” and “disgusting” that it was not informed about the same when proceedings in a public interest litigation petition concerning operationalisation of Umroi airport was initiated.

A Division Bench of the High Court comprising Chief Justice Mohammad Yaqoob Mir and Justice HS Thangkhiew was hearing a petition seeking operation of flights from Umroi Airport to other metros including Delhi.

While the Airport Authority of India (AAI) informed the Meghalaya High Court that Umroi airport “in all respects is ready for operation“, the Ministry of Civil Aviation stated that “the possibility” of operating flights to/from Shillong has to be explored by the Airliners.

The Court was informed by the AAI that ATR 72-600 and Bombardier-Q400 aircrafts could operate between Umroi airport and Delhi airport. However, the commercial viability of their operation was entirely within the domain of airliners, AAI stated.

The Ministry of Civil Aviation, through its affidavit, informed the Court that the airliners would explore “the possibility” to operate flights from Delhi to Shillong and vice versa, based on the technical and financial viabilities.

Expressing its displeasure over the situation, the Court remarked,

It is quite disturbing and disgusting, after reaching to a point when Umroi airport as stated by AAI is fit for operation, airliners have reservations, this situation was not brought to the notice of the Court when the proceedings in Public Interest Litigation (PIL) were initiated.

After being confronted with the entire scenario, AAI sought two weeks’ time from Court to explore the viable possibility of connecting Shillong with metros, more particularly Delhi, in consultation with the Ministry of Civil Aviation the airliners.

It was further vouched that the possibility of the operation of Indigo’s ATR 72-600 aircraft and Spice Jet’s Bombardier-Q400 aircraft would also be explored.

The Court was also informed that Air India and Zoom Airways were operating CR Jets from Guwahati to Delhi with a flying time of 2 hours and 15 minutes.

Therefore, if the two airliners agree to operate on the Umroi-Delhi route, the operation would be “more convenient” because of their lesser flying time, Court was told.

The Court thus directed Zoom Airways and Air India to file their respective responses about the operation of CR Jets from Delhi to Umroi airport.

Importantly, the Court directed the AAI and the Ministry of Civil Aviation to come up with a concrete plan on the operation of CR Jets or ATR 47, ATR 72-600 and Bombardier-Q400 aircraft to/from Umroi airport.

The Court has granted two weeks’ time to the Ministry of Civil Aviation and AAI to hold meetings with all stakeholders including the two airliners which possess CR Jets, Air India and Zoom Airways, for the same.

Pursuant to the Court’s order, Ministry of Civil Aviation and AAI will file an affidavit detailing the ‘preparation of the plan’ before the next date of hearing.

The Respondents were represented by Advocate General A Kumar, ASG A Paul with Advocates K Paul, PD Nair, S Jindal and  A Sharma. 

P Yobin is the Amicus Curiae in the case.

The matter would be heard next on April 3, 2019.

Read the order:

Registrar General High Court of Meghalaya vs State of Meghalaya_watermark

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Themis, IndusLaw, MD&T, JSA act on PineLabs acquisition of Amazon-backed Qwikcilver

Payments startup PineLabs has acquired Amazon-backed Qwikcilver, a gift card technology startup for over INR 650 Crores

Themis Associates acted for Pine Labs along with Pine legal counsel – Abhishek Dwivedi. The Themis team was led by Partner Amritha Salian along with Senior Associates Alimpan Chatterjee and Srivani Tyarla, Associates Shruti Mahajan, Anupam Datta Roy, Utsav Gandhi, Shivani Setty and Anmol Jain.

IndusLaw acted for two largest existing investors – Accel and Helion in Qwikcilver Solutions. The team was led by Partners Srinivas Katta and Anindya Ghosh, along with Associates Ajay Randhawa and Abhishresth Goswami.

Qwikcilver promoter, Kumar Sudarsan, was advised by MD&T Partners’ Mahesh Devaiah and Sandhya P.V.
and Senior Associate Sridip Sural.

J. Sagar Associates (JSA) advised Amazon Asia-Pacific Resources along with Amazon’s internal legal counsel – Hina Doon. JSA also acted for Sistema Asia Fund Pte. Ltd., existing investors in Qwikcilver Solutions.

The JSA Team advising Amazon comprised Joint Managing Partner Vivek K. Chandy, Partner Archana Tewary and Principal Associate Siddharth K. Vedula.

The JSA Team advising Sistema comprised of Partner Rohitashwa Prasad and Associate Anshu Bansal.

Tax Counsel for Amazon Asia-Pacific Resources Pte Ltd was Khaitan & Co Partner Bijal Ajinkya and Senior Associate Jimmy Bhatt

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  • March, 22nd, 2019
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Review permissible even after dismissal of SLP: Supreme Court settles law in Khoday Distilleries case

By Ashish Bhan and Mohit Rohatgi

Setting the context

Is a review petition seeking review of a judgment against which the special leave petition has already been dismissed by the Supreme Court maintainable before the High Court?

This question of law remained unsettled for about two decades. In this time, benches of different strengths of the Supreme Court as well as different High Courts had taken conflicting views. This ambiguity in the position of law had resulted in various High Courts adjourning several such review petitions sine die until the issue was resolved by the Supreme Court, and quite rightly so.

The genesis of this issue relates back to the different views taken by the three-judge benches in Abbai Maligai Partnership Firm and Anr v. K Santhakumaran and Ors and later in Kunhayammed and Ors State of Kerala and Anr. Broadly speaking, while Abbai Maligai had condemned the practice of filing a review petition after the dismissal of the special leave petition (albeit on its peculiar facts), Kunhayammed had approved such practice on the basis of several well-established legal principles including the doctrine of merger.  

In Khoday Distilleries Ltd v. Sri Mahadeshwara Sahakara, the two-judge bench of the Supreme Court took cognisance of the conflicting views in these two cases (as well the conflicting views that ensued) and referred the question to a larger bench for an authoritative pronouncement “in order to resolve those conflicts and for proper guidance to the High Courts”.

By a recent judgment dated March 1, 2019, a three-judge bench of the Supreme Court in Khoday Distilleries Ltd v Sri Mahadeshwara Sahakara, finally put this long-standing conflict to rest holding that the “detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench…

This article analyses the Khoday Distilleries case in the context of the judgments of the Supreme Court in Abbai Maligai and Kunhayammed.

Genesis of the conflict: Abbai Maligai and Kunhayammed  

Abbai Maligai

The question of whether after the dismissal of a special leave petition by the Supreme Court a review petition could be entertained by the High Court against its own order first came up before a three-judge bench of the Supreme Court in Abbai Maligai. 

In this case, an order passed by the Rent Controller in an eviction proceeding was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. After hearing counsel of both sides, the special leave petitions were dismissed.

Review petitions were then filed against the orders passed by the High Court in the revision petitions. There was also a long delay of 221 days in filing the review petitions after the dismissal of the special leave petitions. The High Court not only entertained the review petitions, but also reversed its earlier orders after condoning the delay. The orders in review were challenged by filing appeals under leave granted on special leave petitions. 

In a seemingly short and succinct judgment, the Supreme Court held that in the facts and circumstances of the case, the review petitioners were indulging in vexatious litigation and abusing the process of the court by re-approaching the High Court. It was also held that the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was “subversive of judicial discipline, palpably erroneous” and an “affront” to the order of the Supreme Court dismissing the special leave petitions. 

Two important aspects are discernible from the decision of the Supreme Court in Abbai Maligai. First, this judgment was passed “in the facts and circumstances of the case” without delving into or even discussing any propositions on the point of law. 

Second, and perhaps more importantly, a careful reading of the judgment in its specific context shows that the Supreme Court did not hold as a general principle of law that a review petition is not maintainable after the dismissal of the special leave petition. Rather, it merely sanctified the underlying logic attaching efficacy to an order of the Supreme Court dismissing a special leave petition after hearing counsel for the parties.

Kunhayammed  

Kunhayammed related to a case where the Kerala High Court dismissed an appeal against the order of the Forest Tribunal. Against this dismissal, a special leave petition was filed. This special leave petition was dismissed in limine by simply stating that “Special Leave Petition is dismissed on merits”.

A review petition was filed in the High Court against its earlier order dismissing the appeal. By order dated December  14, 1995, the High Court upheld the maintainability of the review and posted the case for hearing on merits. This order was challenged before the Supreme Court.

While holding that the review was maintainable, the Supreme Court undertook a detailed analysis of several judgments and legal principles on the point. Primarily, the Supreme Court’s findings were based on the interplay between the doctrine of merger, res judicata, the scope of powers under Article 136, declaration of law under Article 141, and judicial discipline of lower courts. Relevant to the issue of maintainability of review petition after dismissal of special leave petition, the Supreme Court concluded as follows (at para. 44):

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country… 

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.

Interestingly, the Supreme Court in Kunhayammed did not read Abbai Maligai as laying down anything contrary, rather it approved Abbai Maligai as being the “correct statement of law” and one which fortified the view taken in Kunhayammed.

Supreme Court settles the law in Khoday Distilleries 

Applying the ratios of either Abbai Maligai or Kunhayammed, several subsequent judgments saw two-judge benches of the Supreme Court take divergent views. These views were not only conflicting with either Abbai Maligai or Kunhayammed, but were also propounding further legal nuances on the issue. The most relevant ones are discussed below.  

Just a few months after the Kunhayammed decision, in K Rajamouli v. AVKN Swamyi, the Supreme Court followed Kunhayammed and expressed the view that the dismissal of the special leave petition would not constitute res judicata provided the review petition was filed prior to the filing of special leave petition against the main judgment of the High Court.

This position was, however, held to be different where the review petition is filed after a long delay from the date of dismissal of the special leave petition. That was considered to be an abuse of the process of the law. Palani Raman Catholic Mission v. S Bagirathi Ammal and Bhakra Beas Management Board v. Krishan Kumar Vij and Anr, also took the pro-Kunhayammed view. 

In Meghamala and Ors v. G Narasimha Reddy and Ors, the Supreme Court, after referring to Abbai Maligai and Kunhayammed, held that if a review petition is filed before filing the special leave petition and it remains pending till the special leave petition stands dismissed, the review petition deserves to be considered. However, in case it is filed subsequent to the dismissal of the special leave petition, the process of filing review application would amount to an abuse of process of the court.

Then, in Gangadhara Palo v. Revenue Divisional Officer and Anr, the Supreme Court expressed its disagreement with K Rajamouli and held that it will make no difference whether the review petition was filed before or after the dismissal of the special leave petition. Irrespective, the review will stand barred and the doctrine of merger would apply, even when the special leave petition is dismissed in limine.

Finally, in Khoday Distilleries, a regular first appeal came to be challenged before the Supreme Court. The special leave petition was opposed by the other side and was dismissed in limine with the order that “Special Leave Petition is dismissed”.

Later, a review petition was filed in the Karnataka High Court for reviewing its earlier judgment. That review petition was also dismissed by the High Court holding that,

when the judgment and decree passed by this Court has been confirmed by the Hon’ble Supreme Court, question of entertaining any review by us does not arise for consideration”.

After undertaking an in-depth analysis of the genesis as well as the dichotomy of the Supreme Court’s views on the issue, and more particularly delving into the ratios of Abbai Maligai and Kunhayammed, in Khoday Distilleries it was (perhaps once and for all) settled that the “detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench.

Concluding remarks

There can be no denying that the judgment in Khoday Distilleries is based on, and reiterates, sound logic and principles of law. On the other hand, perhaps a curb against special leave petitions of frivolous nature or against sundry kinds of orders needs to be reconsidered as suggested in Mathai @ Joby v. George.

In this case, the Supreme Court opined that converting the Supreme Court practically into an ordinary appellate court was never the intention of Article 136 of the Constitution. Nothing seems to be more apt than the following opinion of the Supreme Court in V Vasanthakumar HC Bhatia:

Statistics show that more than ¾th of the total number of cases filed are dismissed in limine. Even so, the dismissal is only after the Court has applied its mind and heard arguments which consume considerable time of the Judges. Dismissal of an overwhelming number of cases has not and does not discourage the litigants or the member of the Bar from filing cases. That is why the number of cases filed is on the rise every year.

It is no secret that the Supreme Court, much like other courts in the country, has been facing the issue of docket-explosion for several years now. The idea of establishing Courts of Appeals has also been flirted with both by the judiciary and the legislature. In such a situation, while review has been held to be available even after dismissal of special leave petition, it is incumbent upon our society and litigants to evolve and not misuse the discretionary powers of the Supreme Court under Article 136 of the Constitution.

About the authors: Ashish Bhan and Mohit Rohatgi are lawyers working at Trilegal. Ashish Bhan is a partner, whereas Mohit Rohatgi is a senior associate at the firm. 

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Silent Witness Theory to counter Hostile Witnesses: What Madras HC held in Dinakaran Newspaper Office attack

dinakaran newspaper

The Madras High Court on Thursday convicted ten persons, including a policeman, in the case concerning the 2007 Dinakaran Newspaper Office attack, which had cost the lives of three persons.

The judgment was rendered by Justices PN Prakash and B Pugalendhi after the CBI, as well as the mother of one of the deceased, moved the High Court against the verdict of a Madurai trial court. The trial court had acquitted all the accused in the case.

A newspaper poll taken by Dinakaran newspaper had indicated that MK Stalin, son of DMK patriarch and former Chief Minister M Karunanidhi, was viewed more favourably as Karunanidhi’s political successor compared to his older brother MK Alagiri. Incensed by the poll, Alagiri’s supporters wreaked havoc and set fire to the Dinakaran newspaper office building on the morning of May 9, 2007, leading to the death of three, Vinoth Kumar, Gopinath and Muthuramalingam.

Following a detailed examination of the material on record, including visual evidence on CDs, the High Court eventually concluded that the trial court had erred in acquitting the ten accused. The High Court concluded,

“… we have no manner of doubt that the conclusions reached by the trial Judge are palpably erroneous and suffer from manifest perversity. We find that the learned Judge has perfunctorily rejected valuable material and has based his findings on an incomplete evaluation of the evidence on record resulting in total miscarriage of justice.”

Application of the Silent Witness theory after Human Witnesses turn hostile

Inter alia, the High Court relied on photographs and videos of the incident to set aside the trial court acquittal and convict the accused. To this end, the Bench relied on the silent witness theory, which has also been recognised in foreign jurisdictions, such as in the cases of State of Nevada v Archanian (2006) and Her Majesty v Jaiyhi He (2017).

The theory proceeds on the footing that photographic and video evidence are ‘silent witnesses’ which speak for themselves. They are substantive evidence of what they portray,” noted the Court.

The Court was constrained to base a large part of their conclusions on such evidence given that as many as 49 out of 83 witnesses in the case had turned hostile during the trial court proceedings. Among the hostile witnesses were 21 police officers, a revenue officer and 15 media persons, including colleagues of the deceased.

Expressing its dismay at such a turn of events, the Bench observed,

“… we must perforce point out that this case bears an eerie similarity with Zaheera Habibulla Sheikh vs. State of Gujarat and others [(2004) 4 SCC 158], infamously called as the Best Bakery case… 

All of the principal eye-witnesses, including the employees of ‘Dinakaran’ newspaper who witnessed the incident, turned hostile. The newspaper reporters and photographers, who were present on the spot, turned hostile. Several police officials, who had witnessed the incident, were turning hostile. Some of them who did not turn hostile, covertly supported the defence case in the cross-examination.

This is, therefore, yet another case where the criminal justice system has been subverted and undermined by the scourge of witnesses turning hostile. Time and again, acquittals are obtained as vital witnesses turn turtle, abandoning their respective stands.

We say, without fear of contradiction, that there can be no greater affront to our system of administration of justice than erroneous acquittals in criminal cases resulting from witnesses turning hostile. The very edifice of the criminal law is compromised when the enforcement machinery of the State is subverted and the perpetrators of crime walk out scot-free.

In fact, the High Court even reproduced the hostile testimony on record to point out irregularities in the later statements of the hostile witnesses. The brazen inconsistencies in the testimony given by the hostile witnesses even led the Court to remark,

Literally and allegorically, Muthupandian’s (P.W.2’s) above statement reminds us of the classical quote ‘Nero fiddled when Rome burned.’

Fortunately, Muthupandian (P.W.2) and the other colleagues of the deceased did not say that the trio [deceased] committed suicide by self-immolation in the Dinakaran newspaper office and that is why the office went ablaze.

… all the policemen who had witnessed the occurrence turned completely turtle excepting Aaladiyan (P.W.1)… all the Pressmen, excepting Nakkeeran Kamaraj (P.W.26) and Nakkeeran Gopal (P.W.75), who wailed that the assault on the Dinakaran newspaper office was an assault on democracy and who shed crocodile tears over the bodies of the deceased, and who took out candlelight processions (which can be seen in the videos) have conveniently turned hostile. The deceased must be turning in their graves at the perfidy of their colleagues like Muthupandian (P.W.2).”

Hostile witnesses alone not an obstacle to appreciating evidence

Even though a large number of witnesses had turned hostile, the High Court proceeded to observe that the trial court was wrong to disregard the evidence unearthed by their testimony altogether, as well as the visual evidence on record. The trial court’s disregard of such evidence on technicalities was faulted. On this aspect, the Bench pointed out,

In matters of appreciation of evidence, the Trial Court is not required to abandon common sense and persist in non-existent hyper-technicalities like a rudderless boat in an endless sea

… It is settled law that merely because the witnesses have turned hostile, their testimony need not be discarded in toto in view of Section 154(2) of the Indian Evidence Act, 1872, which came into force with effect from 16.04.2006. Even before its incorporation, the Supreme Court has held that the evidence of hostile witness need not be discarded lock stock and barrel and those portions which are all compatible with the case of the prosecution, can be relied upon. “

Notably, the judges themselves identified that the accused were involved in the acts of rioting and arson after cross-checking visuals recorded in the CDs with the accused who were made to present themselves before Court. The judges were prompted to undertake this exercise given that no witnesses came forward to carry out the identification. The trial court had disregarded the photographic and video evidence on the CDs for this reason. However, the High Court found the trial court’s approach on this aspect erroneous, remarking,

Instead of making a witness look at the photograph and identify the person in the dock, nothing prevented the Trial Judge to use his own eyes to see the person standing in the dock and the person seen in the photographs/videos and arrive at a just conclusion.

Perhaps, the Trial Judge was labouring under a belief that since the Goddess of Justice is a blindfolded lady with a physical balance in one hand and a sword in the other, he could follow suit and turn a Nelson’s eye to the electronic records that were before him. The trial judge could have very well used his own eyes to correlate the accused present before him with those found in the material objects.”

On Sentencing and Compensation

The Court proceeded to sentence nine of the accused convicted to life imprisonment for various offences under the Indian Penal Code (IPC) including murder, as well as offences under the Explosives Substances Act and the Tamil Nadu Property Prevention of Damage and Loss Act.

The tenth person convicted in the case was Deputy Superintendent of Police, V Rajaram, who the Court found had aided the attackers instead of preventing the crime. As noted in the judgment,

We are appalled to find from the photographs and the video footage that during the course of the incident, Rajaram (A17) went along with Attack Pandi (A1) as if he was giving him a police escort!!

… In our view, Rajaram (A17) could have easily prevented the arson and arrested Attack Pandi and his group, when they unabashedly went about committing cognizable offences right under his nose. He could have even opened fire in the air with his weapon to scare the arsonists. On account of his supine indifference and his wilful and intentional failure to prevent the attack or arrest the attackers, three precious lives were lost.

In view of the same, the Court convicted Rajaram under Sections 217 (public servant disobeying a direction of law with intent to save person from punishment) and 221 (intentional omission by public servant to apprehend an offender) of the IPC. The High Court has ordered his presence before the Court next Monday to decide on the quantum of sentence to be imposed.

Further, the Court has also ordered the State to pay the families of all three deceased a sum of Rs 5 lakhs each within three months for the supine indifference shown by the police in failing to protect their lives.

The acquittal of seven others in the case was confirmed. Of the seven, one of the accused had died during the pendency of the case.

Read the Judgment:

Dinakaran case - Madras HC - March 2019

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Directions to amp up security issued after man stabs wife within Madras High Court premises [Read Circular]

madras high court

After a man attacked his wife with a knife in the 1st Additional Family Court within Madras High Court premises earlier this week, a circular intended to tighten the security within the Court complex has been issued.

A common court complex houses the Madras High Court as well as several lower courts, including the family courts.

In an incident that marked a major security lapse, the man had managed to carry with him a large knife into the Court premises. This, despite the fact that litigants entering the court complex are generally frisked by the police at major entry points. The security cover for the lower courts housed within the Court complex falls under the supervision of the State police. The CISF presently only oversees the entry and exit of persons entering the Madras High Court within the same complex.

The circular issued by Principal Judge AKA Rahmaan now directs that litigants are only allowed to enter the court premises through designated entry points. The designated entry points are as follows:

  • For the Principal Family Court and Additional Family Courts I-III, the litigant can only enter through the main entrance of the additional buildings. 
  • For access to the Additional Family Courts IV-VII, litigants can only enter through the entrance near the IV Additional Principal Family Court.
  • Exit is permitted through all access points.
  • These instructions are not applicable to advocates, court-staff and counsellors on the production of their ID cards.

Other directions issued towards increasing security within the Court complex include the following:

  • Relatives accompanying litigants are not permitted to enter the Family Court premises. They are to be retained outside the main door entrance.
  • Manual checking will be carried out for litigants, regardless of gender. A separate search hub is set up for the security check of women litigants.
  • The Deputy Commissioner of Police is to ensure the posting of adequate police personnel at the entry and exit points.

On a related note, Advocate RY George Williams on Wednesday made a mention before Chief Justice VK Tahilramani for increasing the security measures in the Family Courts, in light of Tuesday’s incident. In response, Chief Justice Tahilramani directed that his representation be handed over to the Registrar General of the State Law Department, along with the sketch he has prepared of the Family Court premises.

Read the Circular:

Addl court circular

The B&B Causelist #73: Cases we track today

causelist

A summary of important cases from the causelist of the Supreme Court of India, the Delhi High Court and the Madras High Court.

The causelist will be updated in the evening to reflect the developments in court today.

MADRAS HIGH COURT

  • Grace Banu Ganesan v State of Tamil Nadu

Item 12 in Court 3 -   WP 6052/2019

  • March, 22nd, 2019
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  • Percival Billimoria joins Outer Temple Chambers as Door Tenant

    Percival Billimoria has been admitted as a door tenant at Outer Temple Chambers in the United Kingdom.

    Outer Temple Chambers is a leading set of barrister chambers, which is highly ranked for its legal and advocacy expertise in a range of specialist practice areas. Of these, commercial and chancery litigation and arbitration in the UK and internationally, business and regulatory (including global investigations), banking and financial services, are common to Percy’s areas of expertise.

    Last year, Percy had left Cyril Amarchand Mangaldas to set up his own Chamber. He had joined CAM in 2016 as Head – Delhi and Chair of the Disputes, Regulatory Advocacy and Policy practice of the firm. Prior to that, he was a Senior Partner at AZB & Partners.

    Percy joins the small but significant club of Indian lawyers associated with a set of Barristers’ Chambers in London. In August 2014, Nakul Dewan was invited to join 20 Essex Street. A few months later, ASG and Senior Advocate Gourab Banerji joined Essex Court Chambers. in 2016, Senior Advocate Gaurav Pachnanda joined Fountain Court Chambers, London as a Door Tenant (an overseas associate).

    Former Solicitor General Gopal Subramanium is a member of 3 Verulam Building, while leading Senior Counsel Harish Salve is a member of Blackstone Chambers

    • March, 21st, 2019
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    Why did Central Government appoint Lokpal? Because Supreme Court was breathing down its neck

    Almost six years after the Lokpal and Lokayuktas Act was passed, the Central government recently appointed members of the Lokpal, headed by former Supreme Court judge, Justice PC Ghose.

    It has taken the Modi government nearly five years to finally appoint members to the anti-corruption body.

    The fact that the government has been dragging its feet over the appointment of Lokpal members has been the subject of a case in the Supreme Court for the past few years.

    Here is what happened in the Lokpal appointment case before the Supreme Court.

    Conflicting opinions

    In November 2016, the then Attorney General Mukul Rohatgi, arguing for the Central government, took the stand that it was the absence of a Leader of Opposition that was preventing the Centre from appointing a Lokpal.

    The Supreme Court was hearing a PIL filed by Common Cause with regard to the appointment of the Chairperson and members of the Lokpal, as per the amended rules framed under the Lokpal and Lokayuktas Act, 2013.

    This argument made by the Attorney General Mukul Rohatgi, however, appeared to contradict the legal opinion tendered by him in 2014. In his opinion, Rohatgi had stated that the provision in the Lokpal and Lok Ayuktas Act of 2013 which provides that vacancies in Selection Committee will not invalidate appointments to statutory bodies, covers the situation where Leader of Opposition does not exist.

    A Bench of Justices Ranjan Gogoi and Navin Sinha heard both sides of the story amidst allegations that the Centre was dragging its feet in the matter. The Bench reserved its order.

    A workable legislation

    In April 2017, the Supreme Court held that the Lokpal Act as it stood is a workable piece of legislation and the Central government need not wait for amending the Act to enforce its provisions. The Court effectively turned down the contention of the Centre that the Lokpal Act as it stands cannot be enforced without a Leader of Opposition.

    Despite the same, no appointments were made to Lokpal for a year.

    Date Supreme Court Hearing
    November 24, 2016 Centre takes a stand that absence of a Leader of Opposition was preventing the Centre from appointing a Lokpal
    April 27, 2017 Lokpal Act as it stands today is a workable legislation, Supreme Court passes Judgment
    April 17, 2018 Attorney General KK Venugopal says process set in motion
    May 15, 2018 Former AG Mukul Rohatgi appointed as Eminent Jurist to Lokpal Selection Panel
    July 17, 2018 SC expresses hope that Search Committee will be set up soon
    July 24, 2018 Supreme Court expresses dissatisfaction with Centre’s affidavit in Lokpal matter
    January 17, 2019 Shortlist Candidates for Lokpal by the end of February 2019, Supreme Court
    March 7, 2019 SC directs Centre to communicate date for meeting of Selection Committee
    March 19, 2019 Justice PC Ghose appointed as Lokpal

    Contempt action

    In April 2018, a year after the Supreme Court judgment, a contempt petition came to be filed against the Central government.

    When this contempt petition came up for hearing, Attorney General KK Venugopal said that the process for appointment has been set in motion, and that an eminent jurist will be appointed to the Selection Committee soon.

    In May 2018, Mukul Rohatgi was appointed as the eminent jurist of the Lokpal selection panel. This, despite the fact that as Attorney General, Mukul Rohatgi had argued that the Lokpal Act is not workable without a Leader of Opposition. Senior Advocate PP Rao had initially been appointed as the eminent jurist in the Committee. This post fell vacant after Rao had passed away.

    Still searching

    Subsequently, in yet another hearing in the Supreme Court in July 2018, Justice Gogoi said,

    Let’s start on a positive note that the Search committee will be duly constituted”.

    In that hearing, Attorney General KK Venugopal expressed reservations, stating that if the process is hurried at this stage, it could be counterproductive.

    However, Justice Gogoi’s positivity was short lived when he expressed displeasure after perusing the Centre’s affidavit. The Centre had submitted that while the Selection Committee had its scheduled meeting on July 19 in conformity with the rules, the Search Committee has not been appointed yet, and the same may be deliberated upon in the next meeting. It also informed the Court that the date for the next meeting is yet to be decided.

    The Supreme Court, therefore, directed the Centre to file a detailed affidavit within four weeks; the Court also ordered that the same must include a time frame within which the Search Committee will be set up.

    In February 2019, the Supreme Court laid down a time frame for shortlisting candidates who are to be considered for appointment to Lokpal. The Court directed the Search Committee to finish its deliberations and submit the names of shortlisted candidates by the end of February this year.

    On March 7, 2019, Attorney General KK Venugopal told the Supreme Court that three panels of names have been sent to the Selection Committee in conformity with the Court’s last order.

    Ten shortlisted names for Chairperson of Lokpal as well as names for judicial and non-judicial posts have been given to the Selection Committee, the Attorney General submitted.

    The Court then directed the Centre to communicate to the Court as to when the Selection Committee will hold the meeting for the selection of the Chairperson and members of the Lokpal.

    Advocate Prashant Bhushan asked the Court that the process of selection should be made transparent. To this end, he suggested that the shortlisted names be uploaded on the website. This request, however, was rejected by the Court.

    And finally

    The contempt petition had now reached its conclusion. There was no room or very little room for the Centre to escape contempt action from the Supreme Court, except to process the appointment.

    So, long story short, the only reason the Centre has finally appointed members of the anti-graft ombudsman is because the Supreme Court forced its hand.

    A heartfelt tribute to Senior Advocate Pratap Chatterjee

    Abhijit Chatterjee

    It is the end of an era spanning over three generations. It is not often that one family has dominated the legal domain in Calcutta, and in a large measure in the whole of India, for decades. Each of the stalwarts from three generations strode the field of law like a Colossus, and the sad demise of Pratapda (Pratap Chatterjee) can be, and has been aptly described as a colossal loss.

    The glorious journey of the family in the field of law and in public life began with Late NC Chatterjee, a doyen of the Bar in the whole of India and a distinguished parliamentarian. His legacy was taken over and taken forward by the Late Somnath Chatterjee, who became a legend in his lifetime. Pratapda emerged as an equally eminent and distinguished torchbearer of that great legacy.

    Pratapda was one of the all-time greats as a lawyer. His erudition, which he made look simple, has always left me awestruck. He was a versatile genius who strode every branch of law with equal ease and elan. The intellectual sparks that flew in courtroom exchanges between him and the Bench and between him and the opponent counsel were a feast for every intellectual appetite. To put it in few words, Pratapda was a complete lawyer who could match any iconic figure in the national legal domain.

    Besides being a lawyer par excellence, Pratapda was a great human being. He was an affectionate senior in the profession and perfectly fitted the mould of an elder brother who would always be around with a helping hand in times of need. He, however, did not mince words on issues on which criticism was justified. He was never afraid to call a spade a spade.

    Pratapda also had a great sense of humour and extensive knowledge in a variety of subjects apart from law, including medicine. He was a voracious reader of all subjects.

    Today, the Calcutta High Court in particular, and the legal fraternity in general, has lost one of its all-time iconic figures and the institution stands poorer from all angles. He leaves behind a void which is hard to fill. His memories will hopefully continue to inspire the younger generation of lawyers and also future generations. May his soul rest in peace.

    Abhijit Chatterjee is a Senior Advocate at the Calcutta High Court.

    • March, 21st, 2019
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    Supreme Court asks High Courts to register suo motu PILs over vacancies in Police Forces

    The Supreme Court has directed that the matter pertaining to filling up of vacancies in Police forces be entertained and monitored by the respective High Courts. Towards this end, the Supreme Court has requested the High Courts to register suo motu PILs in this regard.

    While disposing of the petition before it, a Bench of Chief Justice of India Ranjan Gogoi with Justices Deepak Gupta and Sanjiv Khanna directed the Supreme Court registry to transfer the material on record as well as affidavits filed by various States to the Registries of the High Courts.

    The Court noted that the main prayer in the writ petition pertained to filling up of vacancies in the Police posts and the same can be dealt with more efficiently while monitored by the High Courts of various States

    Since the issues raised in the petition are State specific, the same can be dealt with appropriately by the respective High Courts, the Court said.

    “From the material on record and the Orders passed by this Court from time to time it appears that one of the central issues canvassed till date is the filling up of the large number of vacancies in the different posts in the police forces in the States. In this regard detailed affidavits have been filed by a large number of States. In view of the factual matrix at some point of time it was in the contemplation of the Court that the matter be sent to High Court(s) for effective monitoring instead of this Court continuing with the present writ petition. Issue and problems are State specific and can be appropriately dealt with by the respective High Courts.”

    It, therefore, directed the Supreme Court Registry to transmit the records of the case to respective High Courts while requesting the Chief Justices of High Courts to entertain the matter on the judicial side by way of suo moto PILs.

    “Having considered the matter, we are of the view that the records pertaining to each of the States including affidavits etc. be sent by the Supreme Court Registry to the Registry of the concerned High Courts with a request to Hon’ble the Chief Justice of the High Court to entertain the matter on the Judicial Side as suo motu Public Interest Litigation and monitor the prayers made from time to time.”

    Read the Order:

    Manish Kumar vs UOI-watermark

    Senior Counsel Pratap Chatterjee passes away

    Pratap Chatterjee, Senior Advocate at the Calcutta High Court, has passed away.

    A third generational lawyer, Pratap was the son of former Speaker of the Lok Sabha, Somnath Chatterjee.

    He was also qualified as a Barrister in the United Kingdom.

     

    Read Here: A Heartfelt Tribute to Pratap Chatterjee by Senior Advocate Abhijit Chatterjee.

     

    Story to be updated.

    • March, 21st, 2019
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    Chhattisgarh Bar Council sets aside Bastar Bar Association resolution barring lawyers from other States

    The State Bar Council of Chhattisgarh has annulled a 2015 resolution passed by the Bastar Bar Association barring advocates who are from other States from practicing in Jagdalpur.

    The order comes as a relief for lawyers from other States who wish to practice in the region.

    The decision was made in an appeal by lawyers of the Jagdalpur Legal Aid Group (JAGLAG), Shalini Gera and Isha Khandelwal against the 2015 resolution. The resolution passed by the Bar Association was part of the pressure exerted on JAGLAG that eventually forced their eviction.

    Though Gera and Khandelwal subsequently registered themselves with the Chhattisgarh State Bar Council after appealing against the resolution, they pushed for quashing of the same, for the benefit of their colleagues and other lawyers.

    Two and a half years after JAGLAG first began providing legal aid in the Bastar region, the Bastar Bar Association held an aam sabha (general body meeting). At that meeting, a resolution was passed that prohibited non-local lawyers from appearing in cases without the prior approval of the association.

    As a clear sign of hostility, the Association passed a second resolution saying that it would not be responsible if something untoward happened to the lawyers.

    JAGLAG was eventually forced to exit Jagdalpur and relocate to Bilaspur, from where they continued to serve their clients.

    In a previous interview with Bar & Bench, Shalini Gera spoke on the harassment JAGLAG and other lawyers faced from the local bar association and the police.

    “For the first four years, they didn’t have any issues with us; we even co-hosted a seminar on legal aid and justice with them. Just as police harassment increased, even they started harassing us.

    They were probably being pushed by the police. So, the police used many strategies – direct threats, pushing the Bar against us and the Samajik Ekta Manch. These were not independent incidents.”

    Read the Chhattisgarh Bar Council’s order:

    Chhattisgarh bar council order

     

    The B&B Causelist #72: Cases we track today

    causelist

    A summary of important cases from the causelist of the Supreme Court of India, the Delhi High Court and the Madras High Court.

    The causelist will be updated in the evening to reflect the developments in court today.

    MADRAS HIGH COURT

    • Grace Banu Ganesan v State of Tamil Nadu

    Item 13 in Court 3 –   WP 6052/2019

    Bench: Justices S Manikumar and Subramonium Prasad

    PIL petition moved by transgender activist Grace Banu Ganesan calling for horizontal reservation for transgender persons in public employment and educational institutions. The High Court had issued notice in the matter earlier this month.

    Today in Court: The item was not taken up owing to paucity of time.

    Bar & Bench is available on WhatsApp for real-time updates on stories, Click here to subscribe to our WhatsApp.

    Nirav Modi denied bail by London court, to remain in custody till March 29

    Indian businessman Nirav Modi, who was implicated in the multi-crore PNB scam, has been denied bail by a London court today.

    Modi was presented before the Westminster Magistrate’s Court in London today, a day after he was arrested by local police. The Court had issued a warrant for Modi’s arrest in response to a request from India’s Enforcement Directorate.  District Judge (Magistrates’ Courts) Marie Elizabeth Mallon denied bail even though Nirav Modi was ready for a 500,000-pound bail bond. It was reported that George H Scott (Church Court) is representing Nirav Modi. The judge noted that he possessed the “means” to acquire further travel documents and therefore there are “substantial grounds” to believe he may not surrender before the court if granted bail. The Crown Prosecution Service (CPS), arguing the case for his extradition to face the Indian justice system on behalf of the Indian government, had strongly opposed bail because Modi had “deliberately evaded justice” and not returned to India despite a series of criminal summons issued by Indian courts. 

    Nirav Modi’s Legal Team: Anand Doobay and George Scott

    It is also reported that Nirav Modi has engaged Anand Doobay of Boutique law in these proceedings initiated by the Indian Government.  After the arguments, the judge sent Nirav Modi to HMP Wandsworth prison in south London until the next hearing in the case on March 29.

    On March 9, Enforcement Directorate had tweeted confirming this extradition request. 

    In a separate development, a Special Court (PMLA), Mumbai also allowed Income Tax Authorities to auction 68 paintings owned by Nirav Modi with direction to deposit the auction proceeds with ED. PMLA Court allowed ED to auction 11 vehicles (Rolls Royce, Porsche, Mercedes and Toyota Fortuner etc.)

    Nirav Modi’s Cars

    Shortly after the PNB scam came to light, Modi’s company Firestar Diamond Inc had filed for bankruptcy in the United States.

    After the ED attached Modi’s properties, he had filed a petition before the Delhi High Court challenging the same.

    Here is an image from BBC about the HMP Wandsworth prison in South London where Nirav Modi will be kept.

    HMP Wandsworth prison

     

    • March, 20th, 2019
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    Samjhauta Express Blast: NIA Court acquits all accused including Swami Aseemanand

    Samjhauta Express

    The Special NIA Court of Panchkula today acquitted all the four accused including Swami Aseemanand in the 2007 Samjhauta Express Blast case. As per reports, the Court also dismissed the application for examination of Pakistani eyewitnesses in the case.

    The judgment was delivered after the NIA Court had earlier deferred the pronouncement of the judgment on March 14. This was on account of a fresh application filed by a Pakistani resident Rahila Wakil through Advocate Momin Malik seeking permission for deposition of Pakistani witnesses. The application was dismissed today by the Special NIA Judge Jagdeep Singh.

    The Court also acquitted the four accused in the case – Swami Aseemanand along with three others, Kamal Chauhan, Rajinder Chaudhary, and Lokesh Sharma.

    The case relates to the IED blast that was carried out in Samjhauta Express, which connects India’s New Delhi to Pakistan’s Lahore, in February 2007. The blast took place in Panipat and had led to the killing of over 65 people.

    There were a total of eight accused in the case of which three were declared proclaimed offenders and one was killed in December of 2007. Thus, only four accused persons were tried by the NIA Court and acquitted today.

    Over 250 witnesses were examined. Many witnesses had turned hostile during the trial while the Pakistani witnesses failed to appear before the Court despite issuance of summons through the Ministry of External Affairs.

    The trial which began in 2013 and lasted for five years. It was heard by various Judges and was eventually decided by Special Judge Jagdeep Singh who also delivered the judgment in the cases against Dera Sacha Sauda head Gurmeet Ram Rahim Singh Insaan.  

    This is the third acquittal for Swami Aseemanand who was earlier freed of charges in the Ajmer Dargah blast and Hyderabad’s Mecca Masjid blast.

    Image from here

    Robert Vadra moves Delhi HC to quash the ECIR in a money laundering case by ED

    Robert Vadra

    Robert Vadra has moved the Delhi High Court seeking to quash an enforcement case information report (ECIR) registered by the Enforcement Directorate (ED) in a money laundering case, PTI has reported.

    Vadra is currently on interim bail in the case.

    The Petition moved under Article 226 of the Constitution of India, also seeks a declaration that Sections 3,17,19,24, 44 and 50 of the Prevention of Money Laundering Act, 2002 are ultra vires Articles 14, 20(3) and 21 of the Constitution of India.

    The case pertains to charges of money laundering by Vadra in purchasing a property in London worth 1.9 million pounds. Vadra has been summoned by the EC several times for interrogation pursuant to ECIR.

    Vadra’s plea for anticipatory bail in the case is currently pending with a Special CBI Court in Delhi. Earlier this week, ED had told the CBI Court that custodial interrogation of Vadra was needed in the case.

    It is the ED’s case that Vadra is involved in the commission of the offence of cross border and domestic money laundering. It has also alleged that Vadra is the beneficial owner of various properties under investigation in the instant case, which have been acquired through proceeds of crime.

    In his anticipatory bail plea, Vadra, the husband of Priyanka Gandhi who has recently been appointed the General Secretary of the AICC (Eastern Uttar Pradesh), has claimed that the case has a colour of political witch hunt.

    The matter is likely to be listed for hearing in the coming week.

    Delhi HC stays decision restraining elected JNU Student Union office bearers from attending Committee Meetings

    The decision by Jawaharlal Nehru University (JNU) administration to restrain elected office-bearers of the JNU Student Union (JNUSU) from attending meetings of various bodies at School/Centre level has been stayed by the Delhi  High Court.

    Meanwhile, the issue with respect to the nullification of the election in the event of non-compliance with the Lyngdoh Committee recommendations has been referred to the Grievance Redressal Committee (GRC).

    As per the order, the GRC Report has to be filed with the High Court within two months.

    While issuing notice to the JNU Administration, the Court has directed them to file its response within six weeks.

    The interim order was passed by a Single Judge Bench of Justice Yogesh Khanna in pleas by elected JNUSU officer bearers. They have challenged the decision of the JNU Administration to not notify the elected office-bearers of the JNUSU Elections held in September 2018.

    The decision to not notify the elected officer beares was taken by the JNU Administration on the ground that the Petitioners did not follow the Supreme order which directed mandatory compliance with the recommendations by the Lyngdoh Committee.

    Consequently, the elected office-bearers were “not invited” to the meetings of Academic Council, Board of Students, Health Advisory Committee, Campus Development Committee, Standing Committee on Admissions and other Committees, meant for the welfare of the students.

    It is the Administration’s stance that even after repeated reminders, the elected officer bearers failed to furnish individual audited accounts of the poll expenses incurred by them within 15 days from the declaration of the result, in terms of the Lyngdoh committee recommendation.  Instead, a collective bill was submitted by the 19 people who had contested for different posts. Therefore, JNU Administration argued that it had the power to not notify the elected officer bearers and nullify the election.

    The Petitioners, on the other hand, argued that they had followed the procedure which was being followed in the University for years, by submitting self-certified common accounts. It was further argued that neither the Lyngdoh Committee nor the Supreme Court directed submission of audited accounts.

    While referring to the issue of non-compliance to the GRC, the Court stated,

    The arguments of the University viz. the petitioner ought to have approached the Redressal Cell, is misconceived since the complaint is made against the Union and not by the Union. Thus, without referring the issue of expenses to the Grievance Redressal Committee, the Council on its own could not have restrained the JNUSU to attend various committee meetings meant for student’s welfare.

    The GRC would, therefore, consider if the candidates committed default in non-filing of the certified accounts and the manner in which such accounts were being filed since 2012 till last year. The Court has also directed the GRC to grant the right of hearing to JNUSU.

    The Petitioners were represented by Senior Advocate Akhil Sibal along with Advocates Govind Manoharan, Abhik Chimni and Shriya Mishra.

    JNU was represented by Standing Counsel Monika Arora and Advocates Kushal Kumar, Harsh Ahuja and Parveen Singh.

    The matter would be next heard on July 17.

    Read the order: 

    N Sai Balaji & Ors vs JNU_watermark

    Why Madras HC rejected pleas to quash charges against Maran Bros in the Telephone Exchange Case

    The Madras High Court today dismissed pleas to quash charges framed last January against former Union Telecom Minister Dayanidhi Maran and his brother, media baron Kalanithi Maran in the BSNL telephone exchange scam case.

    Justice N Anand Venkatesh dismissed petitions filed by four of the accused, including the Maran brothers, on finding that there was little scope for interfering with the trial court process at the juncture of framing charges. He observed,

    "The High Court . . .

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    Reconsider proportion of distribution of money among creditors of Essar, NCLAT tells CoC

    Essar steel

    Reiterating that there is no stay on the approval granted to ArcelorMittal's resolution plan for Essar Steel, the NCLAT today clarified that the resolution plan has to be implemented "in the letter and spirit" of the order passed by the NCLT, Ahmedabad Bench.

    Therefore, as suggested by the NCLT in its order, before disbursing the money, a meeting of the Committee of Creditors (CoC) will be called to reconsider the proportion of distribution of money among the financial and operational creditors of Essar Steel.

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    Every saint has a past, every sinner a future: Bombay HC bats for Reformative theory in matters of sentencing

    In a judgment passed last month, the Bombay High Court made certain pertinent observations concerning the need to apply the reformative theory of punishment in matters of sentencing.

    In a case involving questions of concurrent versus consecutive sentencing, the Bench of Justices Sunil B Shukre and SM Modak was also prompted to recall the following words of Oscar Wilde,

    "Every Saint has a past and every sinner has a future."

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    Profile: First Chairperson of Lokpal, Justice PC Ghose

    lokpal

    Former Supreme Court judge, Justice Pinaki Chandra Ghose has been appointed the first Chairperson of Lokpal.

    Justice Ghose was elevated to the Supreme Court on March 8, 2013. After a tenure of more than four years, or 1541 days to be precise, Justice Ghose retired on May 27, 2017.

    Justice Ghose enrolled at the Bar in 1976. Born to Justice SC Ghose, former Chief Justice of the Calcutta High Court, he went on to practise on both the original as well as the appellate side at the High Court.

    He made the switch to the Bench in 1997, when he was elevated as a judge of the Calcutta High Court. He was then transferred to the High Court of Judicature at Hyderabad, where he became the Chief Justice in December 2012.

    During his tenure at the apex court, Justice Ghose was involved in a total of 190 reported orders and judgments. He authored 85 of these.

    Justice Ghose’s most productive year was 2015, during which he made 68 rulings. His least productive year was his penultimate year at the apex court, 2016, during which he made a mere 22 rulings. To put that in perspective, he managed just three fewer rulings in 2017 even though he was in office only for half the year.

    At the apex court, Justice Ghose established himself as a specialist in Criminal Law. This translated into his being given criminal rosters quite often, which in turn meant that he was involved in 104 rulings relating to criminal appeals. By comparison, he was involved in 72 orders and judgments relating to civil appeals. He also passed rulings while sitting on Benches that heard 6 civil writ petitions and 1 Special Reference.

    Justice Ghose will probably be best remembered for his judgment in the Jayalalithaa disproportionate assets case. The judgment, which was passed after the death of the former Tamil Nadu Chief Minister, restored the trial court verdict in toto.

    Along with Justice KS Radhakrishnan, he ruled that the practices of Jallikattu and bullock cart races to be violative of the Prevention of Cruelty to Animals Act.

    He was part of the 3:2 majority along with then CJI HL Dattu and Justice FMI Kalifulla that held that the state government has no suo motu power to remit sentences of persons who were convicted under a central law in the Rajiv Gandhi assassination case.

    Justice Ghose also ruled on cases involving political leaders. He was part of the Constitution Bench that restored status quo in Arunachal Pradesh after President’s Rule was imposed in the state last year.

    Along with Justice RF Nariman, he directed the trial court to frame charges of criminal conspiracy against BJP leaders LK Advani, Murli Manohar Joshi, Uma Bharti, Kalyan Singh and others involved in the Babri Masjid demolition case.

    He was also part of the Bench that laid down guidelines for publication of government advertisements.

    There were two major blots on his tenure.

    One was the inordinate delay in delivering the verdict in the case against late Tamil Nadu Chief Minister J Jayalalithaa.

    The judgment in the case was reserved on June 7, 2016. However, it took eight long months before the judgment was eventually delivered in February 2017. By then, the appeal against Jayalalithaa had abated due to her death.

    Another particularly unenviable instance was when the Supreme Court sought to pass a resolution demanding “respect” for lawyers “at the hands” of Justice Ghose and then CJI Dattu. This was eventually called off after the discussions between SCBA and CJI.

    Read more about the tenure of Justice Pinaki Chandra Ghose in Supreme Court here.