TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS

1 REPORTABLE

 IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

SUO MOTU WRIT(CRL.) NO.1 OF 2017

IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS

 O R D E R

During the course of hearing of Criminal Appeal No.400/2006 and connected matters, Mr. R. Basant, learned Senior Counsel appearing for the appellants-complainant, pointed out certain common inadequacies and deficiencies in the course of trial adopted by the trial court while disposing of criminal cases. In particular, it was pointed out that though there are beneficial provisions in the Rules of some of the High Courts which ensure that certain documents such as list of witnesses and the list of exhibits/material objects referred to, are annexed to the judgment and order itself of the trial court, these features do not exist in Rules of some other High Courts. Undoubtedly, the judgments and orders of the trial court which have such lists annexed, can be appreciated much better by the appellate courts. Certain other matters were also pointed out by Mr. Basant, learned Senior Counsel for the appellantscomplainant, during the course of arguments. He made the 2 following submissions : A. In the course of discussions at the Bar while considering this case, this Court had generally adverted to certain common inadequacies and imperfections that occur in the criminal trials in our country. I venture to suggest that in the interests of better administration of criminal justice and to usher in a certain amount of uniformity, and acceptance of best practices prevailing over various parts of India, this Court may consider issue of certain general guidelines to be followed across the board by all Criminal Courts in the country. B. The following areas may be considered specifically: 1. The pernicious practice of the Trial Judge leaving the recording of deposition to the clerk concerned and recording of evidence going on in more than one case in the same Court room, at the same time, under the presence and general supervision of the presiding officer has to be disapproved strongly and discontinued forthwith. A visit to Delhi Trial Courts any day will reveal this sad state of affairs, I am given to understand. 2. The depositions of witnesses must be recorded, in typed format, using computers, in Court, to the dictation of the presiding officers (in English wherever possible) so that readable true copies will 3 be available straightaway and can be issued to both sides on the date of examination itself. 3. The deposition of each witness must be recorded dividing it into separate paragraphs assigning para numbers to facilitate easy reference to specific portions later in the course of arguments and in Judgments. 4. Witnesses/documents/material objects be assigned specific nomenclature and numbers like PWs/DWs/CWs (1 onwards); Ext. P/Ext. D/Ext. C (1 onwards); MOs (1 onwards) etc., so that reference later becomes easy and less time-consuming. Kindly see the Relevant Rules Kerala Criminal Rules of Practice 1982 “Rule 62 – Marking of exhibits.- (1) Exhibits admitted in evidence shall be marked as follows: (i) If filed by the prosecution, with capital letter P followed by a numeral P1, P2, P3 etc (ii) If filed by defence, with capital letter D followed by a numeral D1, D2, D3 etc (iii) If Court exhibits, with capital letter C followed by a numeral C1, C2, C3 etc. (2) All exhibits marked by several accused shall be marked consecutively. (3) All material objects shall be marked in Arabic numbers in continuous series, whether exhibited for the prosecution or the defence or the Court as M.O.1, M.O.2, M.O.3, etc” Andhra Pradesh Criminal rules of Practice and Circular Orders, 1990 4 “Rule 66 – How witness shall be referred to Witnesses shall be referred by their names or ranks as P.W.s., or D.Ws., and if the witnesses are not examined, but cited in the chargesheet, they should be referred by their names and not by numbers allotted to them in the charge-sheet.” 5. Every judgment must mandatorily have a preface showing the name of the parties and an appendix showing the list of Prosecutions Witnesses, Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects. Kindly see inter alia the Relevant rules in the Kerala Criminal Rules of Practice, 1982. “Rule 132 – Judgment to contain certain particulars.- The Judgment in original decision shall, apart from the particulars prescribed by Section 354 of the Code also contain a statement in Tabular Form giving the following particulars, namely:- 1. Serial Number 2. Name of the Police Station and the Crime No. of the offence 3. Name Description of the Accused 4. Father's name 5. Occupation 6. Residence 7. Age 8. Occurrence Date of 9. Complaint 10. Apprehension 11. Release on bail 12. Commitment 13. Commencement of trial 14. Close of trial 15. Sentence or order 16. Service of copy of judgment or 5 finding on accused 17. Explanation of delay Note.- (1) Date of complaint in column 9 shall be the date of the filing of the charge-sheet in respect of case instituted on police report and the date of filing of the complaint in respect of other case. (2) Date of apprehension in column 10 shall be the date of arrest. (3) Date of commencement of trial in column 13 shall be : (a) In summons cases, the date on which the particulars of the offence are stated to the accused under section 251 of the Code. (b) In warrant cases instituted on police report, the date on which the documents under section 207 of the Code are furnished to the accused and the Magistrate satisfied himself of the same under section 238 of the Code. (c) In other warrant cases, when the recording of evidence is commenced under section 244 of the Code. (d) In Sessions trials, when the charge is read out and explained to the accused under section 228 of the Code. “Rule 134 – List of witnesses etc. to be Appended to Judgement. There shall be appended to every judgment a list of the witnesses examined by the prosecution and for the defence and by the Court and also a list of exhibits and material objects marked.” 6 6. Once numbers are assigned to the accused, witnesses and exhibits, they be referred to, subsequently in the proceedings and in the judgments with the help of such numbers only. The practice of referring to the names of the accused/witnesses and documents descriptively in the proceedings paper and judgments creates a lot of confusion. Whenever there is need to refer to them by name their rank as Accused/Witness must be shown in brackets. 7. Repetition of pleadings, evidence, and arguments in the judgments and orders of the Trial Court, Appellate and Revisional Courts be avoided. Repetition of facts, evidence, and contentions before lower Courts make the judgments cumbersome, and takes away the precious time of the Court unnecessarily. The Appellate/Revisional Court judgment/order is the continuation of the lower court judgment and must ideally start with “ in this appeal/revision, the impugned judgment is assailed on the following grounds” or “the points that arise for consideration in this appeal/revision are”. This does not of course, take away the option/jurisdiction of the Appellate/Revisional Courts to re-narrate facts and contentions if they be inadequately or insufficiently narrated in the judgment. Mechanical re narration to be avoided at any rate. 7 8. In every case file, a judgment folder to be maintained, and the first para in the appellate/revisional judgment to be numbered as the next paragraph after the last para in the impugned judgment. This would cater to a better culture of judgment writing saving precious court time. 9. The healthy practice in some states of the Investigating Officer obtaining and producing (or the wound certificate/ post mortem certificate showing) the front and rear sketch of the human torso showing the injuries listed in the medical documents specifically, may be uniformly insisted. This would help the judges to have a clearer and surer understanding of the situs of the injuries. 10. Marking of contradictions – A healthy practice of marking the contradictions/Omissions properly does not appear to exist in several States. Ideally the relevant portions of case diary statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a Prosecution/Defence exhibit. 11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The 8 relevant portion of such prior statements of living persons used for contradiction or corroboration U/s. 145/157 of the Evidence Act deserves to be marked separately and specifically. 12. The practice of whole sale marking of confession statement of accused persons for introduction of the relevant statement admissible under S. 27 of Evidence Act deserves to be deprecated. Ideally the admissible portion and that portion alone, must be extracted in the recovery memos (Mahazar or Panch – different nomenclature used in different parts of the land) within inverted commas. Otherwise the relevant portion alone written separately must be proved by the Investigating Officer. Back door access to inadmissible evidence by marking the entire confession statement in the attempt to prove the admissible portion under S. 27 of Evidence Act should be strictly avoided. 13. The Trial Courts must be mandatorily obliged to specify in the Judgment the period of set off under Section 428 Cr.P.C specifying date and not leave it to be resolved later by jail authorities or successor presiding officers. The Judgements and the consequent warrant of committal must specify the period of set off clearly. 9 In the circumstances, we direct that notices be issued to the Registrars General of all the High Courts, and the Chief Secretaries/the Administrators and the Advocates-General/Senior Standing Counsel of all the States/Union Territories, so that general consensus can be arrived at on the need to amend the relevant Rules of Practice/ Criminal Manuals to bring about uniform best practices across the country. This Court may also consider issuance of directions under Article 142 of the Constitution. They can be given the option to give suggestions also on other areas of concern. .........................J [S. A. BOBDE] ........................J [L. NAGESWARA RAO] New Delhi; MARCH 30, 2017.

Article 142 invovked to waive of Cooling period in a Mutual Divorce Case by Supreme Court

1
NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 4490 OF 2016 (Arising out of SLP (c) No.12161 of 2016)

NIKHIL KUMAR Appellant

 VERSUS

RUPALI KUMAR Respondent

J U D G M E N T KURIAN,J.

1. Leave granted.

2. The appellant and respondent have filed the petition under Section 13-B(1) of the Hindu Marriage Act, 1955 before the Family Court (Principal Judge, Family Court, Tiz Hazari District Courts), Delhi. The parties were married on 07.02.2011 according to the customary rights. It is submitted that they have not been able to workout their marriage as husband and wife since day one. For the last around five years, most of the time they have been living separately and their marriage reached a breaking point more than a year back. Both the parties, after giving serious thought on the entire consequences of their decision, have taken a conscious decision to part and accordingly they have filed a petition before the Family Court for divorce on mutual consent on 29.03.2016. The Family Court granted the First Motion on 01.04.2016 and now, the matter is posted in the month of October, 2016. 2

3. The respondent has made a travel plan to move to New York on 29.04.2016 seeking a job and resettlement in life, after a long period of traumatic experiences of her married life as stated in the affidavit.

4. In the above circumstances, the appellant has filed the present appeal praying for waving the six months' waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955, invoking our jurisdiction under Article 136 read with Article 142 of the Constitution of India.

5. The respondent has appeared in person. She was directed to file an affidavit before this Court. The respondent in the affidavit has endorsed the submission that they were not happy ever since their marriage in 2011. It is stated that with the set-back of a broken marriage, the respondent needs a change in environment and thus, she has proposed to move to New York and it would be difficult for her to get back to India after six months or even in the near future. It is further stated that both of them have realized the consequences of their decision and they have taken the decision out of their free will and without any undue influence or coercion.

6. Both the parties have appeared before the Court. The appellant was born in the year 1984, and is graduate in commerce. He is working as senior manager in a private firm. The respondent was born in the year 1982 and she also is a graduate. 3

7. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.

8. Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.

9. In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.

10. The Registry to communicate a copy of this judgment to the Family Court forthwith.

11. The appeal is allowed as above. No order as to costs.

 …....................J (KURIAN JOSEPH) …....................J (ROHINTON FALI NARIMAN)
NEW DELHI
APRIL 27, 2016 4 

Supreme Court : A person can change his religion and faith but not the caste to which he belongs, as caste has linkage to birth

Page No.1
Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4870 OF 2015
Mohammad Sadique … Appellant
Versus
Darbara Singh Guru … Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal, preferred under Section 116A of The Representation of the People Act, 1951, is directed against judgment and order dated 07.04.2015, passed by High Court of Punjab and Haryana at Chandigarh, in EP No. 1/2012, whereby Election Petition filed by respondent has been allowed, and election of the appellant from 102-Bhadaur (Scheduled Caste) Assembly Constituency in Punjab, has been set aside. Page No.2

2. Brief facts of the case are that General Elections were held to Punjab Legislative Assembly, in January, 2012. Last date of filing of nomination papers was 12.01.2012. Date for scrutiny of nomination papers was 16.01.2012. And polling was held on 30.01.2012. The counting of votes was done on 06.03.2012, in which appellant was declared elected.

3. Election Petitioner (respondent herein) filed his nomination papers as a candidate of Shiromani Akali Dal. The appellant was a candidate from Indian National Congress. There were other 17 candidates in the fray. Seven independent candidates withdrew their candidature, as such, only 12 were left in the field. Since Bhadaur constituency was reserved for Scheduled Castes, only the candidates belonging to Scheduled Castes were qualified to contest the election under Section 5 (a) of The Representation of the People Act, 1951 (hereinafter “RP Act”).

4. It appears that on 14.01.2012, one Badal Singh complained to the Returning Officer, Bhadaur Constituency, alleging that appellant Mohammad Sadique was a muslim, and as such did not belong to any Scheduled Caste. He also filed Civil Writ Page No.3 Petition No. 985/2012 before the High Court which was dismissed as not pressed, since, the remedy of challenging the election through Election Petition was available.

5. Total 1,13,233 votes, including 83 Postal Ballots, were polled on 30.01.2012 in the Bhadaur Assembly Constituency. On counting of votes, appellant was found to have secured 52,825 votes in his favour, and respondent got 45,856 votes, and as such appellant Mohammad Sadique was declared elected from 102-Bhadaur (Scheduled Caste) Assembly Constituency on 06.03.2012.

6. Respondent challenged the election of the appellant pleading that, he (appellant), being a muslim, is not a member of Scheduled Caste, and as such he was not qualified to contest the election from any constituency reserved for Scheduled Castes. It is specifically pleaded that the appellant was born in a family which followed Islam, and his parents and others members of the family also professed Islam. They had their names which are prevalent amongst muslims, and they used to observe traditions of Islam. None of their family members use “Singh”, in their Page No.4 names, normally found with the names of those following ‘Sikh’ religion. It is further pleaded by the election petitioner-respondent that in his interview in the book titled - “Sada Bahar Gayak – Mohammad Sadique : Jeevan Te Geet”, the appellant had confessed that he was a muslim. It is also stated in the election petition that after death of the parents of the appellant, their bodies were buried as per muslim rites. It is further alleged that the Caste certificate issued to the appellant showing him to be member of community “Doom (Marasi)” by Tehsildar, Ludhiana (West), was cancelled. Thereafter, the appellant obtained caste certificate certifying his cast as “Doom” (i.e. Scheduled Caste) on 25.08.2006. However, the Joint Secretary, Department of Welfare, Government of Punjab vide memorandum No.1/32/2008-RS-1 dated 17.11.2008 issued directions to all the Deputy Commissioners in State of Punjab that a person professing Islam is not legally entitled to get Scheduled Caste certificate. Another communication dated 16.03.2009 stated to have been issued by the State Government informing the Deputy Commissioners that such Scheduled Castes certificates issued on or after 01.01.1980 were liable to be Page No.5 cancelled.

7. Appellant contested the election petition, and filed his written statement. He pleaded that he professed Sikh religion, and is a member of “Doom” community which is a Scheduled Caste in the State of Punjab. He admitted that he was born in a muslim family, but never offered prayers in mosque or observed Rozas. It is further pleaded that from the childhood appellant used to sing songs in the company of Sikh writers, artists and singers. He used to go to the Gurudwaras to pay obeisance and developed faith in Sikh religion. He followed the rites, rituals and customs of Sikh religion. He performed ‘Sampath Path’ with Ragis at his residence for seven days in the year 2000, and his two daughters are married to Hindu boys. The appellant specifically stated in the written statement that he embraced Sikh religion formally on 13.04.2006, and a public notice to this effect was published in newspapers- ‘The Hindustan Times’, Chandigarh, and ‘Daily Akali Patrika’, Jalandhar, dated 04.01.2007. It is explained in the written statement that since the appellant was popular as a singer with name- Mohammad Sadique, therefore, he did not change his name even after Page No.6 embracing Sikh religion. On death of his wife Smt. Raffikan @ Seeto who died on 17.12.2007 though she was buried by followers of Islam, but appellant performed “Akhand Path” from 04.01.2008 to 06.01.2008 as per Sikh religion. It is further stated that Bhog of Akhand Path, Kirtan and Antim Ardas were held in Gurudwara at Ludhiana which was attended by prominent Sikh personalities. The appellant has explained in the written statement that his mother Smt. Parsanni Devi who died on 16.12.2009 was follower of Islam, and after her death her body was buried but the appellant performed Akhand Path and Bhog on 27.12.2009 in Gurdwara Sahib at village Kupkalan. Name of the appellant’s father was Waliat Ali. The appellant denied that he admitted in the interview that he was a muslim. It is alleged that since earlier he was issued caste certificate as ‘Doom Marasi’ by mistake, that is why he got issued fresh certificate of caste mentioning ‘Doom’. It is also pleaded that the daughters of the appellant were also issued Scheduled Caste certificates. The appellant accepted that he did receive a notice vide letter dated 30.11.2006, to deposit caste certificate issued to him by 19.12.2006 but denied that his certificate was ever Page No.7 cancelled or withdrawn by the Government.


8. The High Court, on the basis of the pleadings of the parties framed following issues:-

(1) Whether the respondent being muslim was not qualified to contest the election from 102-Bhadaur Assembly Constituency reserved for the members of the Scheduled Castes?

(2) Whether the respondent is a Sikh and professes Sikh religion?

(3) Whether the election petition is not verified in accordance with Order VI Rule 15 of the Code of Civil Procedure, 1908? If so, its effect.

(4) Whether no material fact can be pleaded in the replication after expiry of the period of limitation for filing an election petition?

(5)Whether paragraph Nos. 12 to 15, 22(vii)(viii)(ix)(x) (xiii)(xiv) and 27 to 28 of the election petition are liable to be struck off on the ground mentioned in the Preliminary Objection No.1 of the written statement?

(6) Relief.”

9. The High Court, after recording evidence of the parties, and hearing them, allowed the Election Petition and set aside the election of the appellant, holding that he was a muslim, and not a member of Scheduled Caste, as such not qualified to contest election from 102 – Bhadaur (Scheduled Caste) Assembly Page No.8 Constituency.

10. Aggrieved by the above order of the High Court, this appeal is preferred by the respondent in the Election Petition.

11. Submissions and arguments advanced on behalf of the appellant:

11.1 In 1939, appellant was born in ‘Doom’ caste in Punjab. The appellant’s parents were Muslims by birth. However, the appellant even before his conversion to Sikhism, had complete inclination towards Sikhism and was a ‘Ragi’ and used to perform Kirtan at Alamgir Sikh Gurdwara.

11.2 The appellant has throughout been raised as a Sikh. He has professed the Sikh religion, and performed the ceremonies, rituals and rites of Sikhism.

11.3 He has never offered prayer in a mosque, or kept Rozas, or offered Namaz, or had never been to Haj. He has never lived nor considered himself a muslim, nor was he so considered by others.

11.4 He started singing songs at a very early age and in due course became one of the most popular folk singers in Page No.9 Punjab. He was associated with other writers, artists, singers and producers, who were all Sikhs, and used to visit Gurdwaras with them to pay obeisance, and had full faith in Sikh religion. At every stage - show of his, the appellant started the performance by singing religious songs in praise of the Guru Sahibans.

11.5 During 1989-1991, appellant’s daughters were all issued caste certificates mentioning ‘Doom’ as their caste, as per certificates dated 01.08.1989, and 16.04.1991. These are still valid and not cancelled.

11.6 During 1999-2000, appellant was going through a personal bad phase in his life. On the advice of Sardar Pargat Singh Grewal, the appellant got performed the ‘Sampat Path’, which was performed by Sant Baba Sucha Singh along with other Ragis of Jawadi Taksal at his residence in Ludhiana for seven days. Thereafter, the appellant’s condition started improving, and it further strengthened his belief in Sikh religion.

11.7 During 2001-2002, three of the appellant’s daughters, namely, Naseem Akhtar, Shehnaz Akhtar and Javed Akhtar Page No.10 were married into Hindu families. The marriages were performed as per Hindu rites and ceremonies, as desired by the respective husbands’ families.

11.8 Though the appellant had always been raised as a Sikh and had followed Sikhism, he formally embraced Sikhism on 13.04.2006. He gave a public notice of this, which was published in leading newspapers namely Hindustan Times, Chandigarh and Daily Akali Patrika, Chandigarh on 04.01.2007. Since appellant had become famous throughout Punjab and indeed all over India as a singer, he retained his muslim name and did not change it.


11.9 On 13.07.2006, appellant got his application and affidavit typed by a typist in Ludhiana for obtaining his caste certificate. The appellant did not read the same before signing and Caste certificate was issued to the appellant mentioning his caste as ‘Doom’ (Marasi). The appellant at this stage realized that the typist had by mistake in the application wrongly mentioned his caste as ‘Doom’(Marasi) instead of caste ‘Doom’.

11.10 On 25.08.2006, appellant therefore asked the Tehsildar Page No.11 to cancel the wrong caste certificate and, on his asking, re-applied with the correct caste mentioned as ‘Doom’. Fresh caste certificate mentioning ‘Doom’ as the caste was issued to the appellant, which is still valid and has not been cancelled. ‘Doom’ is a Scheduled Caste in Punjab.

11.11 There was no objection from anyone to the appellant’s formally embracing Sikhism, rather, he was welcomed into it. Prominent Sikh personalities such as Sant Shamsher Singh Jagera, President of Sant Sepahi Dal and International Sant Samaj, honoured the appellant by presenting “Saropa” to the appellant on 20.01.2007. He was also welcomed by Sant Kartar Dass Jee at his Dera and Sardar Pargat Singh Grewal, President, Prof. Mohan Singh Foundation.

11.12 The appellant’s wife Rafikan @ Seeto passed away on 17.12.2007. Since she had been following Islam, she was buried. However, since the appellant had been following Sikhism, he got the ‘Akhand Path’ performed in Gurdwara Shri Tegh Bahadur Satsang Sabha, Ludhiana from 04.01.2008 to 06.01.2008, and the bhog of Akhand Path of Page No.12 Sh. Guru Granth Sahib was performed on 06.01.2008 at his residence and thereafter Kirtan and Antim Ardas was held on the same day followed by Guru ka Langar as per Sikh rituals, rites, customs and ceremonies. The obituary to this fact was got published in various newspaper namely ‘Aj Di Awaj, Jalandhar dated 05.01.2008 and ‘Ajit Jalandhar’ dated 04.01.2008. The Kirtan and Antim Ardas of the appellant’s wife was well publicised and widely attended, including by prominent Sikh personalities. The entire event was also videographed and the original video recordings were produced as evidence before the High Court.

11.13 The appellant’s mother Smt. Parsanni Devi passed away on 16.12.2009. Since she had followed Islam, she was buried. However, again, since the appellant was following Sikhism, he got performed the Akhand Path and bhog of Akhand Path of Sri Guru Granth Sahib and Kirtan and Antim Ardas on 27.12.2009 in Gurdwara Sahib at Village Kupkalan, Tehsil Malerkotla District Sangrur. This was also attended by several prominent Sikh personalities.

11.14 In December 2011, the election scheduled for Punjab Page No.13 Legislative Assembly Elections was announced. Nomination papers were to be filed on or before 12.01.2012. Scrutiny of papers was on 13.01.2012. The appellant filed his nomination papers from Indian National Congress Party for Bhadaur Constituency. The respondent (Election Petitioner) filed his nomination from the Shiromani Akali Dal Party. Bhadaur constituency was reserved for Scheduled Castes in Punjab. Demographically, it is dominated by Sikhs who are the majority religious group in this constituency. Polling was held on 30.01.2012. On 06.03.2012, results were declared and the appellant emerged as the successful candidate, winning by a wide margin.


11.15 For the avoidance of doubt, on 11.08.2014, appellant made a declaration as per Section 2(9) of the Sikh Gurdwaras Act 1925 to the effect that he was a follower of Sikh religion. However, on 07.04.2015, the impugned order was pronounced by the High Court, which allowed the petition, holding that the appellant was not eligible to contest the election from Bhadaur. The High Court held that since the appellant’s parents followed Islam, he was a Page No.14 muslim and therefore could not be a member of a Scheduled Caste. It further held that appellant had not embraced Sikhism and even if he embraced Sikhism, he would not get the benefit of being a member of a Scheduled Caste.

11.16 The impugned order is erroneous because it ignored the overwhelming evidence that the appellant had lived his life throughout as a Sikh. Finding of High Court that the appellant is a muslim is incorrect, and the evidence has not been correctly appreciated. There is no formal ceremony or procedure required to embrace Sikhism. The fact that a person has led his life throughout by following Sikh customs, rituals, rites and ceremonies, and that he has not followed the ceremonies, of any other religion, leads to the conclusion that the person is a Sikh.

11.17 Appellant had led his life throughout by following Sikh customs. He used to pray in Gurdwaras. He got the Akhand Path, bhog, kirtan and Antim Ardas performed after the death of his wife and his mother. Three of his daughters are married into Hindu families. He had given a Page No.15 public notice of his formally embrasing Sikhism as far back as in 2006, which was not objected to by anyone. On the other hand, the evidence was clear that he had never observed any of the customs, rites, or ceremonies of Islam. Thus, neither did appellant conduct himself as a muslim, nor did he regard himself as the one. He was not perceived as a muslim by his near and dear ones, friends and acquaintances.

11.18 The High Court erred in holding that the declaration made by the appellant under the Sikh Gurdwaras Act 1925 would take effect only from the date of the declaration. It failed to note that the declaration, by its very nature, would be retroactive in operation.

11.19 The High Court erred in holding that the instant case was one of conversion from Islam to Sikhism and therefore the appellant could not claim to be a member of a Scheduled Caste. The High Court failed to appreciate that the appellant had been raised as a Sikh belonging to ‘Doom’ caste from the very beginning and such it was not a case of conversion. Page No.16

11.20 The High Court has misconstrued the evidence of PW-2, PW-4 and PW-5. All that was stated by these witnesses is that the State Government had issued instructions that Scheduled Caste Certificates should not be issued to muslims, even if they indicated their caste as ‘Doom’. These instructions were not specific to the case of the appellant since the appellant is not a muslim. The Caste Certificate issued to the appellant remains valid even on date, and has never been cancelled.

11.21 The High Court further erred in holding that since the appellant did not wear the five ‘kakkas’ i.e Kachha, Karha, Kirpan, Kangha and Kesh, he could not be a Sikh. The High Court failed to note that the same is required only of Amritdhari Sikhs, and not all Sikhs, and even among Amritdhari Sikhs it is not a universal practice.


12. Submissions and arguments advanced on behalf of Respondent (Election Petitioner) :-

12.1 Constitution (Scheduled Castes) Order, 1950 provides that no person who professes a religion different from the Hindu, the Sikh or the Buddhist shall be deemed to be a member of Page No.17 a Scheduled Caste. Thus a person professing Muslim religion cannot claim Scheduled Caste status.

12.2 Under section 5(a) of the Representation of the People Act 1951, the qualification to be elected to the Legislative Assembly from a seat reserved for Scheduled Castes is that the candidate must belong to one of the Scheduled Castes specified for the said State, in the Constitution (Scheduled Castes) Order, 1950. Since the Bhadaur Constituency was reserved for the Scheduled Castes in the State of Punjab, as such the appellant being not a member of Scheduled Caste was not qualified to contest election from said Constituency.

12.3 The High Court has correctly evaluated the material available on record to find out as to whether the appellant had taken birth in the family of Scheduled Caste as per the Constitution (Scheduled Castes) Order, 1950 before concluding that the appellant being a muslim cannot derive any benefit of Scheduled Caste.

12.4 Even if it is presumed that the appellant belonged to Doom community and embraced Sikhism, it cannot be said that he was a member of Scheduled Caste and he would carry Page No.18 his ‘Doom’ Caste along with him at the time of conversion. It is apposite to mention here that a muslim even if belonging to Scheduled Caste was not eligible to contest the election, as such by merely embracing Sikhism, he cannot become eligible for the same.


12.5 A person embracing religion other than Hindu or Sikh does not carry his caste with him as a general rule. No special circumstances have been brought on record so that this Court may presume that the appellant had carried his ‘Doom’ caste along with him after embracing Sikhism. In fact, on the basis of the evidence led by both the parties, the High Court was rightly not convinced that the appellant had embraced Sikhism for the reason that the appellant fairly admitted during his cross-examination that his forefathers as well as his wife were following Islam.

12.6 Moreover, the declaration which is required to be verified by a Magistrate under Rule 3(b) of the Sikh Gurdwaras Rules, 1925 has been verified by the Oath Commissioner and not by the Magistrate, and hence it does not qualify to be a legal declaration and therefore, its not a valid declaration. Page No.19

12.7 By an application dated 13.07.2006, (Exh. PF), the appellant had applied for issuance of a Scheduled Caste certificate by claiming himself that he belonged to “Doom (Marasi)” caste, which was granted to him on the same date i.e.13.07.06 (Exh. PF6), under the orders of the then Tehsildar, Ludhiana (West). When the said fact came to light, the then Commissioner, Patiala Division, Patiala, ordered an inquiry and thereafter a direction was issued to the appellant to return the said Scheduled Caste certificate in the office of the Tehsildar by 19.12.2006, but the same was not obeyed by the appellant and, as such, the Government of Punjab vide its order no. 15/MC, dated 11.01.2007, cancelled the said certificate. In the meantime, the appellant again applied on 25.08.2006 (Exh.PG), for issuance of another Scheduled Caste certificate claiming himself to be a “Doom” caste only and a certificate (Exh. PG2), to that effect was issued on the same date i.e. 25.08.2006. However, the Joint Secretary, Welfare, Government of Punjab, vide his Memo No.1/32/2008-RS-1, dated 17.11.2008, issued directions to all the Deputy Page No.20 Commissioners in the State of Punjab, to the effect that a person belonging to Islam was not legally entitled to get a Scheduled Caste certificate.

12.8 A public notice claiming to declare the appellant a Sikh was published in the newspapers – The Hindustan Times, Chandigarh and Daily Akali Patrika, Jalandhar on 04.01.2007 but as admitted by his own witness RW 14 in the cross examination, the appellant was a Mohammedan before the advertisement in the newspapers on 04.01.2007. As such the appellant is a born muslim, and continued to be a muslim upto the date of filing nomination papers.

12.9 The two Scheduled Caste Certificates dated 13.07.2006 Exh.PF6 and 25.08.2006 Exh.PG2 got issued by the appellant are not valid Scheduled Caste certificates.

12.10 Sub Section (9) of Section 2, of the Sikh Gurudwara Act, 1925 defines a Sikh reads as follows- “(9) Sikh – “Sikh means a person who professes the Sikh religion or in the case of a deceased person, who professed the Sikh religion or was known to be a Sikh during his life time. If any question arises as to whether any living person is or is not a Sikh, he shall be deemed respectively to be or not to be a Sikh according as he makes or Page No.21 refuses to make in such manner as the State Govt. may prescribe the following declaration: - I solemnly affirm that I am a Sikh, that I believe in the Guru Granth Sahib, that I believe in the ten Gurus and that I have no other religion.”

12.11 In the Rules framed under Sikh Gurudwara Act, 1925, it is provided that a declaration shall be made either orally in the presence of the authority by whom it is to be decided whether the person in question is a Sikh or not, or in writing and (i) if the declaration is made orally the authority in whose presence it is made shall record the making of it in writing and the record shall be attested by the signature or thumb-mark of the person making it, and (ii) if the declaration is made in writing it shall be signed by the person making it, shall be verified by a magistrate and shall be forwarded in original to the authority by whom it is to be decided whether the person in question is a Sikh or not.

12.12 For ceremony of Baptism and Imitation procedure required in Art. XXIV is required to be followed, which is not followed, as such High Court committed no error of law in setting aside election of the appellant. Page No.22

12.13 In the above circumstances, the respondent deserves to be declared elected for remaining period from Assembly Constituency Bhadaur.

13. We have considered the rival submissions of learned counsel for the parties and perused the papers on record.

14. In the present case, the main issue before us is whether the High Court has erred in holding that the appellant was not a member of Scheduled Caste on the date of filing of his nomination papers from the Assembly Constituency 102 Bhadaur (SC) in Punjab, as such he was not qualified, and his election from said constituency is bad in law.

15. Before further discussion we think it just and proper to understand what “caste” actually means. The word “caste” is defined in Encyclopedia Americana, Vol. 5, as under: - “Caste: Caste is a largely static, exclusive social class, membership in which is determined by birth and involves particular customary restrictions and privileges. The word derives from the Portuguese casta, meaning ‘breed’, ‘race’, or ‘kind’ and was first used to denote the Hindu social classification on the Indian subcontinent. While this remains the basic connotation, the word ‘caste’ is also used to describe in whole or in part social systems that emerged at various times in other parts of the world….” Page No.23 According to Webstar Comprehensive Dictionary (International Edition), ‘caste’ in relation to Hinduism means – any of the four social divisions namely Brahmin (Priests), Khshatriya (Warriers), Vaishya (agriculturists & traders) and Shudras (servants).


16. Now, we would like to examine the expression “Scheduled Caste”. In Guntur Medical College v. Y. Mohan Rao1 , Constitution Bench of this Court has explained the term “Scheduled Castes” and made following observation: - “3. ………… The expression ‘scheduled castes’ has a technical meaning given to it by clause (24) of Article 366 and it means - ‘such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution’. The President in exercise of the power conferred upon him under Article 341 has issued the Constitution (Scheduled Castes) Order, 1950. Paras (2) and (3) of this Order are material and they read as follows: “2. Subject to the provisions of this Order, the castes, races or tribes or parts of or groups within caste or tribes specified in Part I to XIII of 1 (1976) 3 SCC 411 Page No.24 the Schedule to this Order shall, in relation to the States to which these parts respectively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule. 3. Notwithstanding anything contained in para 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste. The schedule to this order in Part I sets out the castes, races or tribes or parts of or groups within castes or tribes which shall in the different areas of the State of Andhra Pradesh be deemed to be scheduled castes. One of the castes specified there is Madiga caste and that caste must, therefore, be deemed to be a scheduled caste. But by reason of clause (3), a person belonging to Madiga caste would not be deemed to be a member of a scheduled caste unless he professes Hindu or Sikh religion at the relevant time. It is not necessary that he should have been born a Hindu or a Sikh…….” (Emphasis supplied)


17. In S. Anbalagan v. B. Devarajan2 , which is a case pertaining to election from Rasipuram Parliamentary Constituency (reserved for Scheduled Castes), a three-Judge Bench of this Court at the end of para 13 has observed as under: - “13. ………….Now, if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on 2 (1984) 2 SCC 112 Page No.25 continuously in India and generation by generation lost sheep appear to return to the caste-fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the Scheduled Castes, who embrace other religions in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion.” (Emphasis supplied) 18. In Kailash Sonkar v. Maya Devi3 , which arose out of election from a reserved Assembly constituency in Madhya Pradesh, another three-Judge Bench of this Court examined the question – whether the loss of the caste is absolute, irrevocable so as not to revive under any circumstance. After deriving the history of caste system, this Court observed following guiding principle to determine the question in paragraph 28: - “Where a person belonging to a scheduled caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retain their 3 (1984) 2 SCC 91 Page No.26 caste or family laws and despite the new order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the new religion, however, does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In a large area of South and some of the North-Eastern States it is not unusual to find persons converted to Christianity retaining their original caste without violating the tenets of the new order which is done as a matter of common practice existing from times immemorial. In such a category of cases, it is obvious that even if a person abjures his old religion and is converted to a new one, there is no loss of caste. Moreover, it is a common feature of many converts to a new religion to believe or have faith in the saints belonging to other religions. For instance, a number of Hindus have faith in the Muslim saints, Dargahs, Imambadas which becomes a part of their lives and some Hindus even adopt Muslim names after the saints but this does not mean that they have discarded the old order and got themselves converted to Islam”.


19. In above Kailash Sonkar (supra) this Court further discussed regarding reconversion into Hinduism by the members of the community whose forefathers converted to other religions. Applying the doctrine of eclipse, this Court observed as under: - “34. In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. Whether or not the revival of the caste depends on the will and discretion of the Page No.27 members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case there is overwhelming evidence to show that the respondent was accepted by the community of her original Katia caste. Even so, if the fact of the acceptance by the members of the community is made a condition precedent to the revival of the caste, it would lead to grave consequences and unnecessary exploitation, sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognised documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community, otherwise in normal circumstances the case would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said i.e. whether it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here.” (Emphasis supplied)

20. In paragraphs 51 and 52 in Kailash Sonkar (supra), on the facts of said case, this Court gave following conclusions: - “51. …………… (1) That the respondent was born of Christian parents and was educated in various schools or institutions where she was known as a Christian, (2) That 3-4 years before the election, the respondent was reconverted to Hinduism and married Jai Prakash Shalwar, a member of the Katia caste, and also performed the Shudhikaran ceremony, Page No.28 (3) That she was not only accepted but also welcomed by the important members, including the President and Vice-President, of the community, (4) There is no evidence to show that there was any bar under the Christian religion which could have prevented her from reconverting herself to Hinduism, (5) That there was no evidence to show that even her parents had been Christian from generation to generation. 52. In these circumstances, therefore, this case fulfils the conditions required for being reconverted to Hinduism from Christianity in order to revive the original caste.”


21. In K.P. Manu v. Scrunity Committee for Verification of Community Certificate4 , one of the questions examined by this Court is – whether on re-conversion, a person born to Christian parents could, after reconversion to the Hindu religion, be eligible to claim the benefit of his original caste. Referring to various case laws, including those referred above, this Court disagreed with the finding of Scrutiny Committee that caste certificate issued to a person on the basis of the fact that though the great grandfathers of such person belonged to Pulaya community (i.e. Scheduled Caste), but he was born after his ancestors embraced 4 (2015) 4 SCC 1 Page No.29 Christianity and thereafter, reconverted into Hindu religion is not entitled to the Scheduled Caste certificate. Constitution Bench decision in Guntur Medical College (supra) and three-Judge Bench decisions in S. Anbalagan (supra) and Kailash Sonkar (supra) are referred to and relied upon in K.P. Manu (supra).


22. In the case at hand, admittedly the appellant was born to muslim parents. However, he has proved that his family members though followed Islam but they belonged to “Doom” community. It is settled law that a person can change his religion and faith but not the caste, to which he belongs, as caste has linkage to birth. It is proved on the record that the appellant was issued a caste certificate as he was found to be member of ‘Doom’ community by the competent authority, after he declared that he has embraced Sikhism, and he was accepted by the Sikh community. It is not disputed that ‘Doom’ in Punjab is a Scheduled Caste under Constitution (Scheduled Castes) Order, 1950. The Scheduled Caste Certificate No. 6149 dated 25.08.2006 (Exh PG/2) was issued to the appellant by the competent authority, and accepted by the returning officer. Said certificate appears to have not been cancelled. What is shown on Page No.30 behalf of the respondent is that vide communication dated 17.11.2008 (Ext. PJ) State authorities informed and clarified to the Deputy Commissioner that members following Islam are not entitled to the certificate of Scheduled Caste, and if issued, certificates may be cancelled. But the certificate (PG/2) dated 25.08.2006 already issued in favour of appellant, is not cancelled, which he obtained after his conversion to Sikhism. It is proved on the record that the appellant embraced Sikh religion on 13.04.2006, and got published the declaration on 04.01.2007 in the newspapers Hindustan Times (English) Exh.RA, and Ajit (Punjabi) Exh RB. Nomination for election in question was filed by him five years thereafter. The appellant has further sufficiently explained that since he was popular as a singer with the name – ‘Mohammad Sadique’ as such without changing his name, he accepted the Sikhism and followed all rites and traditions of Sikh Religion.

23. It is not essential for anyone to change one’s name after embracing a different faith. However, such change in name can be a corroborating fact regarding conversion or reconversion into a religion/faith in appropriate cases. Also it is not necessary in Page No.31 law that entire family of a person should convert or reconvert to the religion to which he has gone. RW-5 Mohammad Sadique has stated that he not only followed Sikh traditions, he never offered Namaz, nor observed Roza nor went to Haj. It is also relevant to mention here that PW-7 Darbara Singh Guru (respondent-Election Petitioner) in his cross-examination admits that he did not raise any objection at the time when nomination papers were filed by the appellant.

24. In the above circumstances, we are inclined to hold that the High Court has erred in law, by ignoring the above facts on the record, and giving importance to form of declaration, and the interview said to have been given by appellant to PW 6 Gulzar Singh Shaunki, author of book - “Sada Bahar Gayak – Mohammad Sadique : Jeevan Te Geet” (Exh.PK). Statement of the appellant RW-5 regarding conversion to Sikhism, is fully corroborated by RW-11 Darshan Singh, Ex-Sarpanch of village Kupkalan, RW-6 Rachhpal Singh, Secretary of Gurudwara Sahib Kupkalan, RW-9 Ms. Sukhjeet Kaur, co-singer in Gurudwara, and RW-14 Sant Shamsher Singh Jageda, who presented ‘Saropa’ to the appellant. Page No.32


25. Having re-appreciated the evidence on record, as above, and keeping in view the law laid down by this Court in Guntur Medical College v. Y. Mohan Rao1 , S. Anbalagan v. B. Devarajan2 , and Kailash Sonkar v. Maya Devi3 , in our opinion, the impugned judgment passed by the High Court cannot be upheld.

26. Accordingly, the appeal is allowed, and the Election Petition filed by the respondent is dismissed. No order as to costs.

 ……………………………..J. [Ranjan Gogoi] ……………………………..J. [Prafulla C. Pant]
New Delhi; April 29, 2016.

1 (1976) 3 SCC 411 2 (1984) 2 SCC 112 3 (1984) 2 SCC 91 

Supreme Court -Directs more stringent measures to control pollution in Delhi city

1 REPORTABLE IN THE SUPREME COURT OF INDIA 

CIVIL ORIGINAL JURISDICTION 

I.A. Nos.366, 367, 368, 370, 371, 372 in I.A.No.365 in I.A.No.345, I.A.No.369, 373, 374 in I.A. No.366 in I.A. No.365 in I.A. No.345 in Writ Petition(Civil) No.13029/1985 WITH Writ Petition (Civil) No.817 of 2015 WITH Writ Petition (Civil) No.116 of 2013 AND Writ Petition (Civil) No.728 of 2015 

M.C.MEHTA                                                          Petitioner 

 VERSUS UNION OF INDIA & ORS.                   Respondents 

O R D E R 

We had by our order dated 9th October, 2015 issued certain directions, aimed at mitigating the hardship which the people living in Delhi undergo having regard to the high of pollution in the city that has earned to it the dubious reputation of being the most polluted city in the world. 

We had among others directed the following measures to be taken: 

(1) The Governments of the States of Uttar Pradesh, Haryana and Rajasthan shall take steps to ensure that commercial traffic for destinations other than Delhi use alternative routes and to ensure that in the course of implementation of the said direction no traffic jams and other inconvenience is 2 caused to the public. 

(2) The Government of NCT of Delhi shall direct issue advertisements to inform commercial traffic of the bypass routes and the imposition of the ECC imposed by this Court for entry of the vehicles into Delhi. 

(3) The toll collectors shall put in place Radio Frequency Identification (RFID) systems at their own costs at nine main entry points in the city by November 30, 2015 and by 31st January, 2016 at all the remaining 118 entry points to the city. The NCT Government shall install its own CCTV cameras at nine entry points and also organise surprise visits to oversee the collection of ECC and other necessary arrangements. 

We had by the same order directed levy and collection of ECC at the following rates: 

(i) The Category 2 (light duty vehicles etc.) and Category 3 (2 axle trucks) at the rate of Rs.700/- per vehicle; 

(ii) Category 4 (3 axle trucks) and Category 5 (4 axle trucks and above) at the rate of Rs.1300/- per truck. 

 Passenger vehicles, ambulances and vehicles carrying essential commodities like food stuffs and oil tankers for Delhi were exempted from the above charges. 

 Mr. Harish N. Salve, learned senior counsel appearing as amicus, argued that imposition of ECC and the directions issued by this Court regarding diversion of commercial vehicles/trucks to alternative routes has made some difference but the pollution levels continue to remain high despite such measures. He submitted by reference to the material placed on record that the level of pollution detected on or before 9th October, 2015 3 was infact lower than the levels recorded on subsequent dates. Mr. Salve further submitted that although diversion of vehicles to alternative routes in terms of the order passed by this Court was given effect to belatedly on 6th November, 2015, yet the said direction has not been effectively enforced inasmuch as vehicles not bound for Delhi are being allowed to enter Delhi on payment of the prescribed ECC. It was submitted that the true spirit of the order passed by this Court was that vehicles that were bound for Delhi alone were to enter Delhi and other vehicles bound for other destinations/cities were supposed to bypass Delhi by using alternative routes. He drew our attention to a similar direction issued by this Court in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561. It was in that view urged that the order passed by this Court on 9th October, 2015 could be modified/clarified to make it clear that the State Governments shall take steps to divert vehicles that are not bound for Delhi through alternative routes especially those using National Highway-8 and National Highway-1 for entering the national capital. It was also contended by Mr. Salve that in order to effectively discourage vehicles from entering Delhi, the ECC could be revised upwards especially when the Government of NCT of Delhi, the M.C.D. and the Union of India were all agreeable to the same. 

Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, submitted that diversion of traffic away from Delhi by use of alternative routes as also by way of 4 enhancement of the ECC has been thoroughly discussed with the learned Amicus Curiae and that the Union of India and so also the Government of NCT have no objection to such a direction being issued. He submitted that as a matter of fact discussions held between the representatives of the two governments, namely, Union of India and Government of NCT of Delhi as also the M.C.D. had led to a consensus on five other points also on which this Court could issue suitable directions to help reduce the pollution levels in Delhi. It was submitted that the revision of ECC could be upto 100% of the amount already stipulated for vehicles that are Delhi bound while other vehicles which are not bound for Delhi could be directed to bypass Delhi by using alternative routes which the two governments could be directed to specify. 

By our order dated 6th December, 2001 passed in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561, we had, inter alia, directed : 

“8. It appears that vehicles which transit through Delhi do not adhere to the vehicular standards which are applicable in Delhi, namely, they are not Euro II-compliant nor are they using low sulphur and low benzene fuel. There is no reason why very large number of goods vehicles should transit through Delhi thereby adding to the pollution level and the traffic on the road. 

9. It is, therefore, proposed that with effect from 15.1.2002 no heavy-, medium- or light-goods vehicles will ply on inter-State routes by passing through Delhi or New Delhi. It is only those goods vehicles which on payment of octroi/toll tax carry goods to or from Delhi which would be allowed to ply. The Commissioner of Police is directed to formulate a 5 scheme in this behalf and give due publicity to all concerned and implement the same.” 

Our order dated 9th October, 2015 was in the same spirit intended to act as a restraint against vehicles not bound for Delhi entering Delhi. The said direction appears to have been understood to mean as though vehicles not bound for Delhi could also enter Delhi provided they pay ECC. The true intention, however, was that the vehicles that are not bound for Delhi are diverted to alternative routes to bypass Delhi. The levy of ECC has no doubt resulted in some diversion of such vehicles but a very large number of vehicles not bound for Delhi still appear to be entering Delhi on payment of ECC, stipulated by us. In the circumstances, we consider it necessary to make it clear that no vehicle which is not bound for Delhi will be allowed to enter from N.H.-8 which connects Jaipur to Delhi and N.H.-1 that connects the States of Punjab, Haryana and other northern States to Delhi via Kundli border. We are limiting the restraint order to these two entry points for the present because from the figures given to us the largest number of vehicles that are entering into Delhi are from these two entry points. We according direct that traffic from these two entry points viz. Kundli border on N.H.-1 and Rajokri on N.H.-8, shall be diverted to bypass Delhi through such alternative routes as the transport/traffic departments of the governments concerned may stipulate. 

We are further of the view that empty/unladen vehicles 6 bound for Delhi, can enter Delhi on payment of the ECC earlier stipulated by us @ Rs.700/- and Rs.1300/- per vehicle depending upon the category to which the vehicle belongs. We, however, direct that for Delhi bound vehicles loaded with goods, the ECC will be twice the charge stipulated by us by our order dated 9th October, 2015. This measure shall, in our opinion, discourage any vehicle trying to enter Delhi on a false pretext of the goods loaded on it being Delhi bound. 

Mr. Salve next argued that the transport vehicles registered on or before 2005 which are non-compliant with the current pollution control standards also need to be disallowed from entering Delhi even if the same are Delhi bound with goods loaded for consumption in the city. There was a consensus among learned counsel for the parties even on this issue who submitted that Union of India or Government of NCT of Delhi have no real objection if a direction to that effect is issued. We accordingly direct that while vehicles “bound for Delhi” may enter on payment of ECC at the rates stipulated hereinabove, those registered in the year 2005 or earlier shall not qualify for such entry. State Governments and Union Territories concerned shall ensure that vehicles bearing registration numbers of the year 2005 or earlier do not enter Delhi. The governments will evolve a suitable system for implementation of this direction. 

It was contended by Mr. Salve that since diesel vehicles are the most polluting vehicles contributing to the current 7 state of affairs in Delhi, it is time to issue directions banning registration of any new private and/commercial light duty diesel vehicles in the National Capital Region. This submission was opposed by Mr. Ranjit Kumar who submitted that banning of commercial light duty diesel vehicles is likely to affect trade and commerce within Delhi and supply of essential commodities to the people living in the National Capital Region especially because such vehicles are used in large numbers for ferrying goods from one place to the other in the region. 

M/s. Dushyant Dave and Dhruv Mehta, learned senior counsel appearing for the automobile dealers selling diesel vehicles, also opposed any ban on registration of new private vehicles and commercial light duty diesel vehicles as proposed by Mr. Salve. Having given our anxious consideration to the submissions made at the Bar, we are of the view that the new commercial light duty diesel vehicles can for the present continue being registered in Delhi on account of the dependence of the public on such vehicles for supply of essentials. There is, however, no reason why registration of private cars and SUVs using diesel with an engine capacity of 2000 cc and above should not be banned upto 31st March, 2016. It is noteworthy that diesel vehicles of 2000 cc and above and SUVs are generally used by more affluent sections of our society and because of the higher engine capacity are more prone to cause higher levels of pollution. A ban on registration of such vehicles will not therefore affect the common man or the 8 average citizen in the city of Delhi. We accordingly direct that Registration of SUVs and private cars of the capacity of 2000 CC and above using diesel as fuel shall stand banned in the NCR upto 31st March, 2016. 

It was then argued by Mr. Salve that all taxis including aggregators like OLA and UBER plying in the National Capital Region may be moved to C.N.G. fuel within a reasonable time but not later than 1st March, 2016. There was a general consensus on this subject also primarily because it is hoped by all concerned that it will contribute substantially to the reduction of the pollution. We, therefore, direct that all taxis including those operating under aggregators like OLA and UBER in the NCT of Delhi, plying under city permits shall move to C.N.G. not later than 1st March, 2016. It was submitted by Mr. Salve that one of the contributors to the pollution in the city is dust that rises from the roads and pavements which are not fully developed. 

It was submitted that Government of NCT of Delhi could be directed to vacuum clean the roads which will substantially reduce the pollution levels. To the credit of learned counsel for the Government of NCT of Delhi and Union of India and the M.C.D. we must mention that a direction to that effect was not opposed by anyone of them. As a matter of fact, Mr. Wasim A Qadri, learned counsel for the Government of NCT of Delhi submitted that the State Government is very keen to undertake these steps to reduce the pollution levels and ensure that paving of roadsides starts 9 immediately. Vacuum cleaning will, however, take some time as the State Government shall have to purchase vacuum cleaning vehicles/appliances for use on the roads. 

We accordingly direct the Government of NCT of Delhi to take immediate steps for repair of pavements and make pavements wherever the same are missing and also to take immediate steps for procurement of the requisite vacuum cleaning vehicles for use on Delhi roads expeditiously but not later than 1st April, 2016. 

It was argued by learned counsel for the parties that one of the major contributors to the current pollution levels is the construction activities going on in the National Capital Region. It was submitted that Union of India and State Governments concerned must be directed to take steps to enforce the C.P.C.B. rules and norms against those engaged in such construction activities to prevent further rise of pollution levels. We see no reason to decline a direction to that effect. C.P.C.B. norms regarding prevention of pollution by putting curtains and other devices at construction sites must be strictly enforced by the enforcement agencies concerned. We direct accordingly. 

It is also contended by learned counsel for the parties that one of the contributors to the pollution is burning of solid waste by local bodies like M.C.D., N.D.M.C and institutions that generate such waste. It was submitted that 10 burning of solid waste was impermissible under the relevant rules and that lapses on the part of the concerned authorities in the matter of enforcing the said rules is contributing to the deteriorating situation. It was, therefore, prayed that authorities including the local bodies and institutions within the National Capital Region be directed to refrain from disposing of solid waste by burning such waste and to take steps for proper management/disposal of such waste in a scientific manner following the norms and the requirements of the relevant rules in that regard. We see no reason to decline that prayer either. We accordingly direct that the State Government and the local bodies concerned including M.C.D., N.D.M.C. and all other institutions that are generating solid waste shall take steps to ensure that no part of such waste is burnt and that proper arrangements are made for disposal of such waste in a scientific way without causing any hazard to environment. 

There are a few other suggestions also mooted by learned counsel for NCT of Delhi with which we are not dealing at present as learned counsel for Union of India and the amicus curiae wanted some time to examine the same and make their submission. They may do so on or before the next date of hearing. 

Mr. Shyam Divan, learned counsel for the toll collector SMYR Consortium LLP, prayed for early hearing of his (I.A. No.366) for modification of our Order dated 9th October, 2015 as 11 according to the learned counsel, the diversion of vehicular traffic away from Delhi is seriously impacting the contract entered into by the applicant with M.C.D. 

In the circumstances, therefore, while we adjourn these proceedings to Tuesday, the 5th January, 2016 to be listed along with all pending applications including those filed by the toll collector, we direct that steps that we have indicated hereinabove shall be taken by all concerned in the right earnest notwithstanding any order to the contrary passed by any court or authority or Tribunal whatsoever. 

Post on 5th January, 2016. ...................

CJI. (T.S. THAKUR) .....................J. (A.K. SIKRI) .....................J. (R. BANUMATHI) 

NEW DELHI DATED 

16th DECEMBER, 2015.

SC panel’s direction to all states – suspend driving license for a minimum of 3 months for traffic violations including over speeding and red light jumping

                      SUPREME COURT COMMITTEE ON ROAD SAFETY 

Directions to the States/UTs to implement road safety laws (Addressed to: Chief Secretary of States/UTs) Dated: 18th August, 2015 

The Committee constituted by the Supreme Court of India to monitor and measure implementation of road safety laws in the country has had detailed discussions with the concerned Central Ministries and all the States/UTs on the trend of road accidents and fatalities. The data furnished by them have clearly established that the number of fatalities in India continues to be very high, causing serious emotional trauma and economic loss to the families of the deceased and the society. The compensation awarded to the victims by the Insurance Companies also runs into hundreds of crores of rupees every year. 

The Committee has over the last one year issued directions to the States/UTs to establish institutional arrangements to promote road safety, undertake engineering measures to make roads safe, tighten enforcement together with promoting road safety education and establishing adequate trauma care facilities, and the Committee has been closely monitoring the action being taken by the States/UTs. Even though a number of measures have been taken by the States/UTs as directed by the Committee, the Committee on the basis of detailed analysis of traffic accidents and fatalities has come to the conclusion that unless strong and urgent measures are taken to deal with over speeding, SUPREME COURT COMMITTEE ON ROAD SAFETY Page 2 of 3 drunken driving, red light jumping, violation of helmet laws and seat belt laws, use of mobile phones while driving, and over loading, the number of accidents and fatalities will continue to remain high. 

The Committee is of the considered view that the States/UTs and their concerned Departments should take stern action against the violators of the law and exercise the discretion under Section 19 of the Motor Vehicle Act, 1988 read with Rule 21 of the Central Motor Vehicle Rules, 1989 by passing an order disqualifying the offender from holding a driving license for a specified period and also by seeking imprisonment wherever it is provided under the law. The Supreme Court, while constituting the Committee, has also emphasised the necessity of strict and faithful enforcement of all existing laws and norms not only as an absolute principle of law as well as for the high beneficial effects thereof. 

The Committee, therefore, directs the States/UTs and their concerned Departments to take the following action forthwith: Suspension of the licence for a period of not less than 3 months under Section 19 of the Motor Vehicle Act, 1988 read with Rule 21 of the Central Motor Vehicles Rules, 1989 for: i. Driving at a speed exceeding the specified limit which in the Committee’s view would also include red light jumping; SUPREME COURT COMMITTEE ON ROAD SAFETY Page 3 of 3 ii. Carrying overload in goods carriages and carrying persons in goods carriages; iii. Driving vehicles under the influence of drink and drugs; iv. Using mobile phone while driving a vehicle. 

The Committee further directs that in case of driving a vehicle under the influence of drinks or drugs, the police should prosecute the offender and seek imprisonment as prescribed under Section 185 of the Motor Vehicle Act, 1988 even for the first offence. 

The Committee also directs that the helmet laws be made applicable all over the State/UT both for main riders and the pillion riders. In case where the law relating to the use of helmet is violated by either the main rider or the pillion rider, they should both be subject to Road Safety Education and Counselling for not less than 2 hours before imposition of fine as prescribed under the Act. 

Those who violate the seat belt law should also be subject to Road Safety Education and Counselling before imposition of fine as mentioned above. 

The Committee further directs the States/UTs to submit Action Taken Reports at the end of every 3 months starting from 1st Sept, 2015. ***

Yakub Abdul Razak Memon's Petition rejected by Supreme Court on 30.7.2015 at 4.50 am.

Page 1 Reportable

 IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.135 OF 2015


Yakub Abdul Razak Memon ...Petitioner

Versus

State of Maharashtra and Anr. ...Respondents

J U D G M E N T

Dipak Misra, J.

The issue that had seen the end after the day’s drill at 4.15 p.m. yesterday, i.e., 29.07.2015, appears to have unending character because precisely after ten hours, about 3.15 a.m. on 30.07.2015, it has risen like a phoenix possibly harbouring the idea that it has the potentiality to urge for a second lease of life as put forth by Mr. Anand Grover, learned Senior Counsel and Mr. Yug Chaudhry, learned counsel, appearing for the petitioner, stating that the assail has become inevitable after the President of India in exercise of his power under Article 72 Page 2 of the Constitution has rejected the mercy petition preferred by the petitioner. Be it stated, it is contended by the learned counsel for the petitioner that by virtue of the rejection of the mercy petition, the death warrant issued on 30.4.2015 would be executed today, without waiting for 14 days, and hence, there should be a grant of stay.


2. We may mention that, before the ink in the earlier judgment has dried up, the present writ petition has been filed by the petitioner assailing the legal justifiability of the execution warrant dated 30.04.2015 issued by the Presiding officer, Designated TADA Court, Mumbai, for execution of the petitioner at 7.00 a.m. on 30.07.2015 and further to direct the stay of the petitioner’s execution till the instant writ petition is disposed of. 3. We do not have to adumbrate the facts in entirety as the facts of the instant case have been elaborately stated in W.P. (Crl.) No. 129 of 2015 which has been dismissed on 29.07.2015. In the earlier writ petition, the prayer, in quintessentiality, was made for setting aside the death warrant issued by the Designated TADA Court, Mumbai. The grounds were many but we must state with certitude that they did not 2 Page 3 find favour with us. Mr. Grover, learned Senior Counsel would submit that it might appear that the prayers in the present petition are the same and anyone may foster the idea that an effort has been made in a contrived manner to procrastinate the date of execution of the convict, but it is not so. He would further submit that by the occurrence of subsequent events that took place after the pronouncement of the judgment, fresh grounds have emerged which could not have been conceived of at the time when the matter was argued. It is urged that though the prayer is the same, yet the grounds are totally different.


4. At this juncture, the subsequent event which has been accentuated upon by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel, needs to be noted. After we dismissed the earlier writ petition being W.P.(Crl) No. 129 of 2015, the President of India rejected the mercy petition of the petitioner. The fulcrum of the submission of Mr. Grover is that the petitioner is entitled in law to challenge the same albeit on a limited ground and, therefore, a three-Judge Bench of this Court in Shatrughan Chauhan & Anr. V. Union of India & ors.1 has, upon perusal of various jail manuals which exhibited 1 (2014) 3 SCC 1 3 Page 4 discrepancies, intended to rationalise by laying down a minimum period so that the convict can make certain arrangements. To put it succinctly, when a mercy petition is rejected, there has to be a minimum period of 14 days between its rejection being communicated to the petitioner and his family and the scheduled date of execution. That apart, minimum period of 14 days is stipulated between the communication of the death warrant to the petitioner and the scheduled date of execution.

5. Mr. Grover, learned senior Counsel appearing for the petitioner, would contend that both the conditions are to be satisfied as they are cumulative in nature. There can be no cavil over the same. First, to the second condition. The death warrant was issued on 30.04.2015 which was admittedly received by the petitioner on 13.07.2015 and the date of its execution is 30.07.2015, i.e., today. Thus, one of the facets is met with. As far as the first aspect is concerned, in the earlier judgment passed in W.P.(Crl) No. 129/2015, this Court has held thus:- “After the judgment was pronounced on 21.03.2013, an application for review was filed, which was dismissed by circulation on 30.07.2013. After the rejection of the application for review, Suleman, the 4 Page 5 brother of the petitioner, represented under Article 72 of the Constitution to the President of India on 06.08.2013, claiming benefits under Article 72(1) of the Constitution. The petitioner on 07.08.2013, wrote to the Superintendent, Central Jail, Nagpur, informing him about receipt of petition by the office of the President of India. On 02.09.2013, the Government of India forwarded the mercy petition of the convict addressed to the President of India, to the Principal Secretary, Home Department, Mahrashtra, as per the procedure. The Governor of Maharashtra rejected representation on 14.11.2013 and on 30.09.2013, the State Government informed the Central Government about rejection of the mercy petition by the governor of Maharashtra. On receipt of the said communication from the State Government on 10.03.2014, the summary of the case/mercy petition prepared by the Ministry of Home Affairs under the signatures of Home Minister was forwarded to the Petitioner. The said rejection was communicated to the stipulation that the convict be informed and, accordingly, on 26.05.2014, the petitioner was informed about the rejection of mercy petition by the President of India.” We have reproduced the whole paragraph as they state the facts in completeness. Before we proceed with regard to the necessity for grant of 14 days’ time after receipt of communication of the rejection of the mercy petition, it is appropriate to refer to paragraph 241.7 of the Shatrughan Chauhan’s case (supra) which reads as follows:- “241.7. Some Prison Manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some Prison Manulas have a minimum period of 1 day, 5 Page 6 others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons: (a) It allows the prisoner to prepare himself mentally for execution, to make his peace with God, prepare his will and settle other earthly affairs. (b) It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.” It is urged by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel that the first mercy petition was submitted by Suleman, brother of the petitioner, on 06.08.2013 which stood rejected on 11.04.2014 by the President of India and that was communicated to the petitioner on 26.05.2014, but the petitioner had not submitted any mercy petition.


6. There is no dispute over the fact that the petitioner had not submitted any representation invoking the authority of the President of India under Article 72 of the Constitution of India. However, it is not in dispute that his brother had submitted. It is also beyond dispute that the petitioner does not disown the submission of the petition by his brother on his behalf. In fact, 6 Page 7 he had communicated to the Superintendent, Central Jail, Nagpur, on 07.08.2013, informing him about receipt of the petition by the office of the President of India so as to pursue the same. The said mercy petition as has been indicated earlier stood rejected on 11.04.2014. The petitioner did not think it appropriate to challenge the rejection of the mercy petition by the President of India. He accepted his fate.


7. Be it stated here, the mercy petition was preferred on 6.08.2013 and prior to that, the review petition was dismissed by circulation on 30.07.2013 by the two-Judge Bench of this Court which had decided the appeal on 21.03.2013. As is evident, the constitutional validity of the rule relating to review was called in question before this Court. The Constitution Bench in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and Ors.2 dealing with the said rule opined that in death cases, the matter should be heard by a three-Judge Bench and the review petition should be heard in the open court by giving maximum time limit of 30 minutes to the convict.


8. Since the petitioner had not filed a curative petition, he was entitled to seek reopening of the review petition, as per the 2 (2014) 9 SCC 737 7 Page 8 liberty granted to certain categories of cases in Mohd. Arif Alias Ashfaq (supra). Accordingly, his review petition was heard by a three-Judge Bench in the open Court. After rejection of the said review petition on 09.04.2015, he filed a curative petition on 22.05.2015 which also got dismissed on 21.07.2015. At this stage, it is imperative to state that despite the Constitution Bench saying that there shall be oral hearing of the application for review for a maximum period of 30 minutes, the review petition was heard for almost ten days. The purpose of mentioning the same is that ample opportunity was afforded to the petitioner.


9. After rejection of the curative petition on the 21.07.2015, the petitioner submitted a mercy petition to the Governor, Maharashtra which was received on 22.07.2015. He also submitted another mercy petition to the President of India which was received by the President of India at 2.00 p.m. on 29.07.2015. Both these mercy petitions have been rejected.


10. It is submitted by Mr. Grover, learned Senior Counsel, that as per the principle stated in Shatrughan Chauhan (supra), the petitioner is entitled to claim commutation of death sentence to life imprisonment on the basis of supervening 8 Page 9 circumstances. For the said purpose, he has referred to paragraphs 28 and 29 of the decision in Shatrughan Chauhan (supra) which read as under:- “28. The petitioners herein have asserted the following events as the supervening circumstances, for communication of death sentence to life imprisonment: (i) Delay (ii) Insanity (iii)Solitary confinement (iv)Judgments declared per incuriam (v) Procedural laspses 29. All the petitioners have more or less asserted on the aforesaid grounds which, in their opinion, the executive had failed to take note of while rejecting the mercy petitions filed by them. Let us discuss them distinctively and come to a conclusion whether each of the circumstances exclusively or together warrants the communication of death sentence into life imprisonment.” What is submitted today is that the petitioner can challenge the rejection of the mercy petition only when it is formally served on him, for the counsel for the petitioner have only come to know from the news report about the rejection of the mercy petition by the President of India. Thus, 14 days’ time has not been granted and he has been deprived of the right to assail the same. As has been stated earlier, the said stand has been sought to be highlighted on the basis of the 9 Page 10 reasons stated in paragraph 241.7 of the case of Shatrughan Chauhan (supra). Pyramiding the said submission, it is propounded by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel that in the absence of any time to assail the rejection of the mercy petition, the execution of death warrant deserves to be stayed.


11. The question that emerges for consideration is whether on the ground of not granting of 14 days’ time from the date of receipt of communication of rejection of the mercy petition, should the warrant which is going to be executed at 7.00 a.m. on 30.07.2015 be stayed. Mr. Mukul Rohatgi, learned Attorney General for India, appearing for the respondent, would submit that the mercy petition is considered by the President of India in exercise of his power under Article 72 of the Constitution of India and when he has rejected the mercy petition after due consideration of all the relevant facts on earlier occasion, if such kind of repetitive mercy petitions are allowed to be submitted and further challenge to the rejection of the same is permitted, the danger of the concept of ad infinitum would enter into the field. Mr. Rohatgi would further contend that at the drop of a hat, everybody can add a new fact or a new 10 Page 11 development and expect the President of India to deal with it as contemplated under Article 72 of the Constitution of India and, thereafter, challenge the same in a court of law.


12. The instant petition is a clear expose of the manipulation of the principle of rule of law. The petitioner was tried for which is known as “Bombay Blast Case’ and stood convicted in the year 2007. Almost 22 years have passed since 1993 when the incident occurred. We have not perceived any error in the issue of the death warrant as per our order dated 29.07.2015 passed in W.P. (Crl) No.129 of 2015. The only exception which has been enthusiastically carved out by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel is that they are entitled to get 14 days’ time to assail the rejection of the mercy petition. When the first mercy petition was rejected on 11.04.2014, there was sufficient time available to the petitioner to make arrangement for his family members to meet him in prison and make necessary worldly arrangements. There was adequate time to prepare himself to meet his Maker and to make peace with himself. We have been apprised by Mr. Rohatgi, learned Attorney General for India that the family was 11 Page 12 allowed to meet the petitioner whenever they desired as per the Jail Manual.


13. The residuary part of the submissions put forth by the learned counsel for the petitioner is that the petitioner can still challenge the rejection of his mercy petition. On a first glance, the aforesaid submission may look quite attractive, but in the present case the same does not have much commendation because the rejection of the first mercy petition by the President of India could have been assailed before this Court, but it was not done. We have been apprised that the copy of the order of rejection of the mercy petition has been sent to the petitioner, but the fact remains that after the rejection of the first mercy petition, despite sufficient time, the petitioner chose not to challenge the same. We do not think that it is a case of such nature where it can be said that legal remedy was denied to the petitioner. True it is, the first mercy petition was submitted by the brother of the petitioner, but as the facts would clearly show, he was aware of the same. Learned Attorney General would contend that the petitioner, in fact, had written a letter to the concerned Superintendent of Jail pertaining to the same. Regard being had to the totality of facts and circumstances of 12 Page 13 this case, we are not inclined to accept the submission that the present mercy petition was preferred by the petitioner for the first time and, therefore, 14 days’ time should be granted so that he can do the needful as per law. In our considered opinion, to grant him further time to challenge the rejection of the second mercy petition for which we have to stay the execution of the death warrant dated 30.04.2015 would be nothing but travesty of justice.

14. Resultantly, we do not perceive any merit in this writ petition and the same is, accordingly, dismissed.

......................J. [Dipak Misra]
 .......................J. [Prafulla C. Pant]
.....................J. [Amitava Roy]
New Delhi July 30, 2015
13 

Supreme Court:- Special Courts alone will have jurisdiction to try all offences based on same transaction to avoid multiplicity of litigation

Page 1

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 516-518 OF 2010

S. SATYANARAYANA …. APPELLANT

VERSUS

ENERGO MASCH POWER ENGINEERING & CONSULTING PVT. LTD. & ORS. …. RESPONDENTS

JUDGMENT S. A. BOBDE, J.

These Criminal Appeals are preferred by the complainant against the Judgment of the High Court of Judicature of Andhra Pradesh at Hyderabad by which the High Court has in exercise of powers under Section 482 of the Code of Criminal Procedure (in short Cr.P.C.) quashed the proceedings in CC No. 37 of 2008 on the file of the court of the Special Judge for Economic Offences at Hyderabad insofar as the accused Nos. A4, A5, A6, A9 and A10 are concerned.


2. The complainant i.e. the appellant herein lodged a private complaint in his capacity as a Promoter Director of Sri Satyanarayana 1 Page 2 Power Private Ltd. - a company incorporated to generate biomass based power project in the District of Warangal in the State of Andhra Pradesh (hereinafter referred to as the ‘Company’). The complaint was filed in respect of the offences allegedly committed under Section 628 of the Companies Act, 1956 (in short the ‘Companies Act’) and Sections 120B and 420 of the Indian Penal Code (in short the ‘IPC’). This complaint was filed in the Court of Special Judge for Economic Offences at Hyderabad.



3. The accused Nos. 1, 2 and 3 are Directors of the Company. The accused no. 4 i.e. Energo Masch Power Engineering & Consulting Pvt. Ltd. is another Company. The accused Nos. 5, 6, 7 & 8 are its Directors. Accused No. 9 is the Manager of M/s Indian Renewable Energy Development Agency (in short ‘IREDA’) a financing agency and is brother-in-law of A5 and A6, and accused No. 10 is a private person, namely Mrs. Sudha Ramani who is said to have been given a fictitious authorization in respect of a Bank account by a resolution of the company.


4. In brief, it was alleged that the accused entered into a criminal conspiracy to cheat the complainant and the Company. Further, accused A1 to A3 made false declaration in regard to record maintained under the provisions of the Companies Act, and filed a false declaration purporting to be an extract of Board Resolution of 2 Page 3 the Company before Andhra Bank, Sowcarpet Branch, Chennai in order to open a bank account. According to the complainant the signatory to the Board Resolution was not even a Director in the Company on the date the bank account was opened. A series of events alleged in the complaint show how the complainant was induced to invest in the Company by acquiring land for the Company at a cost of Rs. 20 lakhs and make payment for the front end fee to IREDA which had in collusion with the other accused sanctioned the financial assistance to the Company to the extent of Rs. 11.50 crores subject to the condition that the promoters should invest Rs. 4.98 crores as their contribution towards the total project cost of Rs. 16.48 crores.


5. According to the complainant, accused A9 - the Manager of IREDA, suggested that the company should appoint A4 Company as a contractor representing that the Directors of the said A4 Company i.e. A5 and A6 in reality his brother-in-law, have wide experience in executing such projects. The complainant believed that representation and allowed those persons and others to become Director as a result of which A1 along with his nominee Directors enjoyed a majority on the Board of the Company. Thereafter, in order to obtain the first installment of loan the accused represented that they have spent an amount of Rs. 1,88,21,484/-, to the accused A4 Company as if the 3 Page 4 amount was invested from the Company’s account maintained in Andhra Bank, Sowcarpet Branch. On such a representation, A9 IREDA released the first installment of loan. The accused again induced A9 to release the second installment of loan of Rs. 2.85 crores without the knowledge of the complainant and without submitting any Board Resolution of the Company. A major amount of the loan was paid to the accused A4 Company, which had not done any substantial work. Though Rs. 145 lakhs from the first installment of loan and Rs. 92 lakhs from the second installment of loan were paid to the A4 Company only a nominal amount of Rs. 30 lakhs was used for work and the rest was swindled. As a part of these transactions the complainant alleged that A1 to A3 had made a false declaration as records in a purported Board Resolution of the Company in order to open a bank account and falsely authorised A10 and thereby made a false declaration amounting to an offence under Section 628 of the Companies Act. Thus, A10 was falsely authorized to operate the bank account.

6. It will thus be seen from the above that according to the complainant the transactions of all the accused persons in conspiracy with each other amounted to offences under Sections 120B and 420 of the IPC and Section 628 of the Companies Act. 4 Page 5


7. Against the complaint, the following accused-namely A4 Company; its Directors A5 and A6; A9 the manager of the IREDA; and A10 the private person approached the High Court under Section 482 of the Cr.P.C.. The High Court took the view that the Special Judge could not have taken cognizance of the offences under Sections 120B and 420 of the IPC unless he could also try the accused under Section 621 of the Companies Act. As regards the accused Company A4 and its Directors A5 and A6, the High Court held that no cognizance could be taken against the said accused because the complainant did not belong to any of the categories or persons who were entitled to file a complaint under Section 621 of the Companies Act1 i.e. to say the 1 “621. Offences against Act to be cognizable only on complaint by Registrar, shareholder or Government- (1) No court shall take cognizance of any offence against this Act which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, or of a shareholder of the company, or of a person authorised by the Central Government in that behalf: Provided that nothing in this sub- section shall apply to a prosecution by a company of any of its officers. [Provided further that the Court may take cognizance of offence relating to issue and transfer of securities and nonpayment of dividend on a complaint in writing by a person authorized by the Securities Exchange Board of India]. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 , (5 of 1898) where the complainant under subsection (1) is the Registrar or a person authorised by the Central Government, the personal attendance of the complainant before the Court trying the offence shall not be necessary unless the Court for reasons to be recorded in writing requires his personal attendance at the trial.] (2) Sub- section (1) shall not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in respect of any of the matters included in Part VII (sections 425 to 560) or in any other provision of this Act relating to the winding up of companies. 5 Page 6 complainant was neither (a) the Registrar, (b) a shareholder of the company, or (c) a person authorized in that behalf. Thus, the High Court held that taking of cognizance by the Special Court in so far as accused nos. A4, A5 and A6 is without jurisdiction. This finding is sought to be supported by the provisions of Section 621(1) of the Companies Act. However, without giving any special reasons as regards accused Nos. A9 and A10 the High Court quashed the taking of cognizance. In fact A9 is the manager of IREDA a financing agency and A10 is a private person and are prima facie not a company or officers of a Company vide Section 621. The High Court has not committed any error in reading Section 621 of the Companies Act and observing an accused cannot be prosecuted under Section 621 of the Companies Act because the complainant is not a share holder in the accused Company. However, it is obvious from the complaint that there was no allegation that the accused Nos. A4, A5, A6 and A9 have committed an offence under Section 628 of the Companies Act. Such an allegation of commission of an offence under Section 628 of the Companies Act was only against the accused A10 (vide para 19 and 20 of the complaint). It may be recalled that the allegation as (3) A liquidator of a company shall not be deemed to be an officer of the company, within the meaning of sub- section (1).” 6 Page 7 regards Section 6282 of the Companies Act is said to have been committed by the accused A1 to A3 by making a false declaration with regard to the record that is maintained in accordance with Section 193 of the Companies Act by filing an extract of the Board resolution of the company before the Andhra Bank, Sowcarpet Branch, Chennai in order to open a bank account ‘the said Board resolution being a false declaration,’ since a bank account in the said bank was already opened even before A1 had obtained consent of the complainant to open the said account and further since the said Board resolution is signed by Hari Sesha Reddy - A3 who was not even a Director in the company as on the date of the opening of the bank account. The offence alleged against A10 was that she had drawn huge amounts through self cheques in the capacity of the authorized signatory of the company. It is surprising to see that the High Court has quashed the complaint against the accused persons on the ground of legal defects though no allegation containing such defects were made against the said accused persons. 2 628. Penalty for false statements.- If in any return, report, certificate, balance sheet, prospectus, statement or other document required by or for the purposes of any of the provisions of this Act, any person makes a statement- (a) which is false in any material particular, knowing it to be false; or (b) which omits any material fact knowing it to be material, he shall, save as otherwise expressly provided in this Act, be punish- able with imprisonment for a term which may extend to two years, and shall also be liable to fine. 7 Page 8


8. As can be seen from the complaint the allegations are that the accused conspired with each other to cheat the complainant and a series of transactions gave rise to offence under Section 120B read with Section 420 of the Indian Penal Code as also Section 628 of the Companies Act. It is, therefore, clear that if the Special Court has jurisdiction to try offences under both the aforesaid Acts then the trial can certainly continue in respect of the offences which do not require the complainant to belong to the categories specified under Section 621 of the Companies Act. Thus the trial could certainly continue against those accused under the IPC.


9. The High Court completely overlooked the fact that the complaint made allegations against the accused A4, A5, A6, A9 and A10 only in respect of Section 120B and 420 of Indian Penal Code and there was no reason in law to quash a complaint against them on the ground that they were immune from prosecution under Section 628 of the Companies Act by virtue of Section 621 of that Act.


10. We accordingly set aside the findings of the High Court that taking of cognizance against the accused A4, A5, A6 and A9 is without jurisdiction on the ground that the complaint does not make out a prima facie case for the offences under Section 628 of the Companies Act, 1956 against the said accused. At this stage, it may be noted that the Special Court is empowered to try the offences 8 Page 9 under the Companies Act alongwith other Acts by virtue of a notification issued by the erstwhile Government of Andhra Pradesh dated 13.3.1981 which empowers such special Courts to try offences under specified enactments such as The Companies Act, 1956, The Income-tax Act, 1961, The Wealth-tax Act, 1957 etc., which reads as follows:- “even if such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the same transaction.” [vide Notification reproduced in Criminal Petition No. 5846 of 2014 The Superintendent Of Customs Vs. Kannur Abdul Kader Mohammed Haneefa reported in 2014 (310) ELT49(A.P.)]


11. Thus, even if a number of persons are accused of offences under a special enactment such as ‘the Companies Act and as also the IPC’ in respect of the same transaction or facts and even if some could not be tried under the special enactment, it is the special court alone which would have jurisdiction to try all the offences based on the same transaction to avoid multiplicity of proceedings. We make this observation because at some stage in the hearing learned counsels addressed us on this point. We make it clear that in the present case all the accused are liable to be tried by the special court in respect of the offences under the IPC as well as the Companies Act as alleged in the complaint. 9 Page 10

12. Appeals are allowed in above terms. …………………………….…..........…..

J. [JAGDISH SINGH KHEHAR] …...................................………

J. [S.A. BOBDE]

NEW DELHI, MARCH 26, 2015