No sanction needed to remove corrupt Govt.servants: High court

The Punjab and Haryana High Court has reinterpreted provisions of the Prevention of Corruption Act to hold that public servants, who can be removed by the subordinate authorities other than the government, are not entitled to protection of sanction. It means that they can be proceeded against even without the grant of sanction for their prosecution. The significant judgment, expected to affect nothing less than 90 per cent of the corruption cases against the lower-level staff, came on a petition filed by a patwari in Punjab. He was facing criminal proceedings after being allegedly caught red handed while accepting Rs 2,000 as illegal gratification for carrying out a mutation. For reaching the conclusion, Justice Mehinder Singh Sullar referred to Section 19 of the Prevention of Corruption Act 1988 that deals with “previous sanction necessary for prosecution”. He held that only those public servants of the Central or state governments are entitled to the umbrella of protection under Article 19 of the Act, who are employed in connection with the affairs of the Union or the State and are removable by the respected governments, and not otherwise. “Meaning thereby, public servants who are liable to be removed by the lower/subordinate authority other than the government indeed are, and would, not at all be entitled to such protection”. Examining the section in depth, Justice Sullar added: “Section 19 (1) (a) of the Act regulates public servants, who are removable by the Central Government; and clause (b) deals with public servants, who are removable by the state government; whereas clause (c) is only applicable to other persons (public servants) employed with the affairs of variety of other financial institutions, banks, corporations and not public servants of the Centre or state governments. Justice Sullar added that the intention of the legislature been to extend the protection of sanction under this Section to all categories of public servants, “it ought to have mentioned that all public servants are entitled to protection of sanction and only this one line would have served the purpose”. Referring to the case in hand, Justice Sullar minced no words to say: “Since the petitioner was working as a patwari at the relevant time and place, and was removable by the district collector and not by the state government, no prior sanction was required to prosecute him”. Prior to the judgment so many accused, who could be removed by subordinate authorities, would claim their case fell under clause (c). They would claim that sanction was necessary for their prosecution as well. But, the latest judgment has paved way for their trial.

Don’t link woman’s character to rape:SC

If a woman of “easy virtue” accuses a person of rape, then courts must not discard her evidence but it must be “cautiously appreciated”, the Supreme Court ruled while acquitting a Delhi resident concurrently held guilty of rape by a trial court and the Delhi high court. “Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated,” said a bench of Justices B S Chauhan and Dipak Misra on Friday. It is common for accused facing rape charges to term the victim as a woman of easy virtue to lessen their guilt during the trial. The apex court asked the courts to be wary of such arguments. Writing the judgment for the bench, Justice Chauhan said: “Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of ‘easy virtue’ or a woman of ‘loose moral character’ can be drawn.” “Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone,” the bench added. The ruling came in the case where a woman had accused Narender Kumar of sexually assaulting her on September 16, 1998, near village Khirki in south Delhi by dragging her to the road-side bushes at 8pm. The trial court convicted Kumar on December 7, 1999, under Section 376 of the IPC and sentenced him to seven years of imprisonment. The high court on March 25, 2009, upheld the trial court verdict. But, amicus curiae Yakesh Anand pointed out to theSuptreme court that the trial court as well as the HC did not consider the evidence placed by the defense that the accused and the alleged victim were having intimate relationship much to the dislike of her husband. Anand said there were defense witnesses who corroborated Kumar’s version that only after he refused to live with her that the rape complaint was filed. The SC said that though the complainant’s version in a rape case had been traditionally given weight by the courts, but even in such cases the onus was always on the prosecution to prove affirmatively each ingredient of the offence it sought to establish and “such onus never shifts” to the accused. “However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted of an offence,” the bench said. Acquitting Narender Kumar, the bench said: “The given facts and circumstances make it crystal clear that if the evidence of the prosecutrix is read and considered in totality of circumstances along with the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence.”

HC stays admission to dental colleges

The Gujarat high court has stayed the Gujarat University (GU) and certain self-financed dental colleges to go ahead with the admission process in the postgraduate programme on 50-50 management-government seat ratio as per the consensus arrived at between the state government and the consortium of self-financed dental colleges. Students of dental colleges had questioned an agreement, labeled as amicable settlement/arrangement, between the state government and self-financed dental colleges to admit 50% students on management quota excluding 15% NRI quota and keeping the rest 50% for students getting admission on government seats. This arrangement was in modification of earlier 25%-70% ratio of management-government seats. The students challenged the move by managements and government claiming that it was in violation of various laws and rules laid by the state government itself. The government and the colleges as well as their consortium opposed the petition. However, justice M R Shah concluded that earlier petitions challenging vires of the laws providing 25%-75% ratio were dismissed by court and the new arrangement has not even been reduced down to writing by the government. In such circumstances, no such consensus or arrangement between the government and colleges can by-pass or substitute statutory provisions and this arrangement can be termed as absolutely illegal and contrary to provisions of law. With this observation, the HC has directed the university to stall registration/enrollment of certain students who have passed the entrance test conducted as per 50-50 management-government seat arrangement. The court has also directed that those students who have already enrolled after having passed the test, which was held in February this year, to wait till final order of the HC, as their admission is subject to the outcome of final order of this petition.

Protection of Children from Sexual Offences Act (PCSOA)

Protection of Children from Sexual Offences Act (PCSOA) are both empowering and threatening to teenagers accustomed to mixing freely with others. The cause for concern goes beyond PCSOA criminalizing teenage sex by increasing the age of consent from 16 to 18. Teenagers would do well to know how this 'child-friendly' law could affect their lives, for better or for worse, and how different it is from the corresponding IPC provisions dealing with adults.

Rape is gender neutral for juveniles

Under IPC enacted in 1860, "A man is said to commit rape." But under PCSOA, "A person is said to commit penetrative sexual assault." This means that when it comes to adults, only women can be raped. PCSOA for the first time recognizes the possibility of a boy being raped by a girl or a woman

Definition of "penetration" has been expanded

In IPC's conception of rape, penetration is a necessary condition and it has been traditionally limited to penile vaginal intercourse. In the corresponding provision of PCSOA, the penile penetration need not be only of the vagina; it can be of the mouth, urethra or anus of the child. It also covers situations where the offender "inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of the child" . Equally unprecedented is the stipulation that oral sex with anybody below 18 would be treated as rape

Penalty for molestation of a child enhanced

Under IPC, any man who outrages the modesty of a woman is liable to be punished with a maximum imprisonment of two years. As a result of the public outrage over the Ruchika Girhotra case, PCSOA stipulates that any adult who molests a child shall be awarded sentences ranging from three to five years

No close-in-age reprieve for statutory rape

While increasing the age of consent from 16 to 18, PCSOA failed to provide the safeguard adopted in liberal societies of taking a lenient view of consensual sex with a minor if the age gap between the partners is within three years. The absence of such a safeguard can have draconian implications for hormonally driven teenagers

Burden of proof on the accused, not the victim

Doing away with the presumption of innocence, PCSOA states that for sexual offences committed against children, the burden of proof shall be on the accused rather than the victim. This opens up scope for abuse: for, even if the accused is a minor, the defence case will always have to be presented first during the trial

False complaint by a child not punishable

If an adult makes false allegations against somebody of committing a child sexual offence, such a person would be punished under PCSOA with imprisonment up to six months. But PCSOA exempts a child from such a liability. "Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child." This means that if one teenager makes a false allegation against another, the former is statutorily protected from any liability.

Guarantors liable to pay if debtors default: Supreme Court

The guarantor of a loan is liable to pay it if the debtor fails to clear it, the Supreme Court has ruled, while maintaining that financial institutions too cannot act like property dealers in recovering the debts.

A bench of justices BS Chauhan and Dipak Misra also said the guarantor cannot insist that the creditor must first exhaust all remedies against the principal debtor before recovering the debts from the surety holders.

"There can be no dispute to the settled legal proposition that in view of the provisions of Section 128 of the Indian Contract Act, 1872, the liability of the guarantor / surety is co-extensive with that of the debtor.
"Therefore, the creditor has a right to obtain a decree against the surety and the principal debtor.

"The surety has no right to restrain execution of the decree against him until the creditor has exhausted his remedy against the principal debtor for the reason that it is the business of the surety/ guarantor to see whether the principal debtor has paid or not," said Justice Chauhan, writing the judgement for the bench.

The apex court gave the ruling on an appeal by one Ganga Kishun, who had stood as a guarantor to a bank loan, raised by one Ganga Prasad, who had died without clearing it. Ganga Kishun had come to the apex court against the Uttar Pradesh government's decision to recover the loan arrears from him after the death of principal debtor Ganga Prasad.

While dismissing Ganga Kishun's appeal, the apex court, however, faulted the government's decision to auction Ganga Kishun's entire stretch of land for Rs 25,000 to recover an arrear worth Rs 8,500 only and not confining the auction to only 1/3rd of the land which could have fetched the arrears.

UNION TERRITORY OF LAKSHADWEEP & ORS. v. SEASHELLS BEACH RESORT & ORS. [2012] EssenSC 319 (11 May 2012)

Judgement
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. OF 2012 (Arising out of SLP (Civil) No.5967-5968 of 2012)

Union Territory of Lakshadweep & Ors. ....................Appellants
Versus 
Seashells Beach Resort & Ors. .....................Respondents

O R D E R
1. Leave granted.

2. These appeals have been filed by the Union Territory of Lakshadweep against an order dated 16th January, 2012 passed by the High Court of Kerala at Ernakulam whereby the High Court has directed the appellants to process the applications made by respondent No.1-Seashells Beach Resort, hereinafter referred to as respondent, for all clearances including finalisation of CRZ norms and pending final decision on the same, to permit the respondent to run the resort established by it at Agatti. The High Court has further directed the appellants to issue travel permits and entry passes required by tourists making use of the accommodation in the said resort.

3. Lakshadweep Administration finds fault with the direction issued by the High Court on several grounds including the ground that respondent-writ petitioner before the High Court had no licence from the Tourism Department and no clearance from the Coastal Zone Regulatory Authority or the Pollution Control Board to run the resort established by it. It is alleged that the direction issued by the High Court amounts to permitting the respondent to run a resort sans legal permission and authority and without any check, control or regulation regarding its affairs. The Administration also points out that diversion of land use qua different survey numbers in Agatti was obtained by one of the partners of the respondent for construction of dwelling houses and not for establishing a commercial establishment like a tourist resort and that respondent No.1 had misused the said permission by constructing a resort in the No Development Zone (NDZ) falling within 50 metres of High Tide Line and thereby violated the CRZ norms. The respondent has, according to the Administration, constructed cottage at a distance of 28 metres from the High Tide Line on the western side of the sea and thus violated the terms of the permission given to it.

The Administration further alleges that it had never permitted the respondent to run a resort and that it had on the basis of a permission obtained from the local panchayat, which had no authority to issue such permission, started bringing tourists, including foreign tourists, to the resort on the pretext that the accommodation was in the nature of ‘home stay’. The Administration asserts that neither the Union Territory of Lakshadweep nor the Government of India have taken any policy decision regarding permitting home stay arrangements on the Lakshadweep islands and that the High Court had completely overlooked the fact that all development in relation to the said islands shall have to be in accordance with the Integrated Island Management Plan and the CRZ norms. The Administration also relies upon a Notification dated 6th January, 2011 issued by the Government of India in exercise of its powers under Section 3 of the Environment (Protection) Act, 1986 which notification is intended to promote conservation and protection of the Island’s unique environment and its marine area and to promote development through a sustainable integrated management plan based on scientific principles, taking into account the vulnerability of the coast to natural hazards.

4. When these petitions came before us for preliminary hearing on 2nd March 2012, this Court while issuing notice to the respondent and staying the operation of the impugned order passed by the High Court, directed the petitioner and respondent No.2 to furnish the following information on affidavit:

1) Whether the proposed Integrated Island Management Plan has been finalised for the Union Territory of Lakshadweep and whether CRZ for the said territory has been notified? 2) If the CRZ has not been notified or the plan has not been finalised, the reasons for delay and the stage at which the matter rests at present and the particulars of the authority with whom the matter is pending.

3) The total number of the applications received by the Union Territory of Lakshadweep for setting up of resorts and stage at which the said applications are pending/being processed.

4) The nature and extent of the violations which the administration of the Union Territory of Lakshadweep have noticed in the proposed resorts and the action, if any, taken for removal of such violations. If no action has been taken/initiated for removal of the violation, the reasons for the failure of the authorities to do so and the persons responsible for the omission/inaction.

5) The particulars of unauthorised resorts being operated in any part of the Union Territory of the Lakshadweep and the action proposed to be taken for closure/removal of such resorts.

5. In compliance with the above directions, the Administrator of the UT of Lakshadweep has filed an affidavit, inter-alia, stating:

i) The proposed Integrated Island Management Plan (IIMP) for Agatti Island in pursuance of the notification dated 6th January, 2011 of Ministry of Environment and Forests has not been finalized as yet and is under finalization with the Administration of Union Territory of Lakshadweep. The Coastal Regulation Zone (CRZ) Notification for the whole country including the UT of Lakshadweep Island has been notified by the Ministry of Environment & Forests, Government of India vide CRZ Notification S.O. No. 114(E) dated 19th February, 1991.

ii) In exercise of the powers conferred under Section 3(3)(i) and 3(3)(ii) of CRZ Notification dated 19th February, 1991 a Coastal Zone Management Plan for UT of Lakshadweep was also notified by the Administration on 22nd August, 1997 which is in force till date and shall be in force until 6th January, 2013.

iii) The Government of India vide Notification S.O. No. 20(E) dated 6th January, 2011 provided that the Lakshadweep Island shall be managed on the basis of an Integrated Island Management Plan (IIMP) to be prepared as per the guidelines given in the notification. The notification stipulates that the Lakshadweep Island Administration shall, within a period of one year from the date of this notification, prepare the IIMPs, inter-alia specifying therein all the existing and proposed developments, conservation and preservation schemes, dwelling units including infrastructure projects such as schools, markets, hospitals, public facilities and the like. The Administration may, if it considers necessary, take the help of research institutions having experience and specialisation in Coastal Resource Management in the preparation of IIMPs, taking into account the guidelines specified in the notification.

iv) Since the Administration of Union Territory of Lakshadweep did not have the required expertise for the preparation of such a comprehensive Integrated Island Management Plan (IIMP) for which lot of scientific inputs are required, Centre for Earth Science Studies (CESS), Trivandrum was approached for preparing the IIMPs for all inhabited and uninhabited islands. The said Centre is, according to the Administration, a prestigious institution under the Ministry of Earth Sciences having experience and specialisation in coastal resource management and has extensive scientific database on Lakshadweep.

v) The CESS informed the Administration that IIMP will be prepared within a period of one year. Work relating to preparation of Integrated Island Management Plan for Agatti and Chetlat Island in the first phase of the study have been completed and the draft plan for Agatti and Chetlat Islands have been submitted to Union Territory of Lakshadweep Administration on 2nd January, 2012 and the study of remaining islands viz. Kavaratti, Andrott, Minicoy, Kalpeni, Kiltan, Kadmat, Amini and Bitra have already started and are in progress.

vi) The Administration has initiated action for giving wide publicity to the draft Integrated Island Management Plan for Agatti Island by uploading it on Lakshadweep website and will be published in two newspapers inviting comments/suggestions from the public as well as other stake holders in the island. On receipt of the comments/suggestions, the Island Administration shall make necessary changes/modification in the draft plan if required and final IIMP shall be submitted to the Ministry of Environment and Forests, Government of India.

vii) It is expected that the IIMP for Agatti and Chetlat Island will be finalised by 6th January 2013 as per the time limit given in the Notification and until that time the CRZ notification of 1991 and its Rules i.e. Coastal Zone Management Plan 1997 shall apply, as clearly stated in clause 3(ii) of the notification.

6. It is evident from the above assertions made in the affidavit of the Administrator that while the process of formulation of IIMPs for Lakshadweep has started, the draft plan received from the CESS is yet to be evaluated by the Administrator and sent for approval to the Government of India. In the meantime, another development has intervened in the form of UT of Lakshadweep, Department of Tourism, issuing a Notification dated 28th January, 2010 inviting proposals from local entrepreneurs and registered organisations from Lakshadweep group of islands for setting up of tourist resorts at Agatti Island fulfilling the prescribed requirements. The case of the Administration is that in response to this Notification the Department has received nine applications for setting up of tourist resorts, which were to be submitted along with:

(a) Environmental clearance from the Department of Environment and Forests;

(b) Land use diversion certificate from SDO/DC/Local Panchayat;

(c) Clearance from Lakshadweep Pollution Control Committee;

(d) Clearance from Coastal Zone Management Authority.

7. Despite reminders issued to the applicants, none of them has fulfilled the above conditions till date. In the result, all the nine applications are awaiting complete details from the applicants. Respondent also happens to be one of the applicants, out of the nine applicants, three of whom have started some construction activity which are at different stages of completion. Respondent is one of the three applicants who has started raising a construction. The case of the Administration is that neither the respondent nor the other applicants have complied with the requisite conditions including the coastal zone clearance. No final approval to any one of the applicants has, therefore, been granted, or could be granted having regard to the fact that as many as five huts constructed by the respondent are located in the NDZ area and are, therefore, in violation of the CRZ Notification 1991 and Coastal Zone Management Plan, 1997, in which the entire area within 50 meters from High Tide Line from both sides, western and eastern, is declared as No Development Zone. According to the Administration, the respondent has violated the conditions of the land use diversion certificate, inasmuch as the land use diversion certificate, permitted construction of dwelling houses away from the NDZ whereas the respondent has set up a commercial enterprise like a tourist resort, which was not authorised. According to the affidavit of the Administration, the Administration proposes to conduct a detailed inquiry to fix responsibility of officials for not taking action while construction of five huts in NDZ was being carried on by the respondent. The affidavit refers to a show cause notice issued to the respondent to remove the construction in Sy. Nos. 1300/1, 1301/1A and 1301/1 Part. Writ Petition No. 1312/2012 was filed by respondent against the said notice in which the High Court has directed the parties to maintain status quo in respect of the building in question.

8. The affidavit further states that a tourist resort owned by the Administration at Agatti is closed with effect from 4th February, 2012.

The affidavit also refers to five resorts owned by the Department of Tourism, UT of Lakshadweep, that the Administration runs at different islands which were constructed during 1980s and 1990s. The affidavit goes on to state that there is no “home stay” policy and the Administration has not authorised any owner of house to run a home stay. On an experimental basis, the ‘Home based tourism’ was started in Agatti during October- December 2011 by the Administration. The Administration, it is asserted, had hired few houses in the village Agatti which were lying vacant and owners of the said houses were paid on daily user basis whenever the guests were staying. That arrangement has now been stopped as a section of islanders had objected to the same. The Administration is engaged in discussing with various sections of society to frame a policy for “home stay”, based on the Bed and Breakfast scheme of Government of India which will be applicable to the houses in the village area and resorts will not be covered under any such policy.

9. An affidavit has been filed by Deputy Director, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, New Delhi , which has taken the same line of argument as set up by the Administrator in his affidavit especially as regards the finalisation of IIMPs with the help of CESS, the issue of Government of India’s Notification dated 6th January, 2011 and any construction in Coastal Regulation Zone between 50 meters and 500 meters from the High Tide Line being in violation of the CRZ Notification hence liable to be proceeded against by the Lakshadweep Coastal Zone Management Authority as per the provisions of the Environment (Protection) Act, 1986.

10. The Director, Tourism in UT of Lakshadweep has separately filed an affidavit stating only one tourist resort owned by the Union Territory is operating in Agatti.

11. Respondents No.1 and 2 have also filed an affidavit in reply, sworn by Mohd. Kasim H.K., S/o Syed Mohammed, one of the partners of respondent No.1. In this affidavit, the respondent clearly emphasises that although the width of the ‘No Development Zone’ in respect of Agatti Island is uniformly 50 meters from the high tide line, the high tide line is not demarcated till date and the assertion that the respondent No.1 has violated the CRZ notification and raised construction in the ‘No Development Zone’ is without any basis. The respondent has also relied on the certificates issued by the PWD of the Lakshadweep Administration which according to the respondent show that the construction does not fall in the ‘No Development Zone’. It is further stated that the respondents have obtained the requisite clearance like the occupancy certificate issued by the district Panchayat, No Objection Certificate issued by the Lakshadweep Pollution Control Committee, in principle approval granted by the petitioner-Administration, environmental clearance granted by the Department of Environment and Forests, provisional clearance granted by the Tourism Department, no objection certificate granted by the village Panchayat and no objection certificate granted by the district Panchayat.

12. The allegation that the land use diversion certificate has been violated, is also denied. The Administration was, according to the respondent, aware from the inception that the respondent proposed to set up tourist accommodation over the land held by them through a valid lease in their favour. The respondent had submitted an application seeking grant of the land use diversion certificate for the above project. The Administration had prior knowledge of the proposed project and had granted the approval to the same. Since the certificate wrongly mentioned construction of a dwelling house as the purpose of land use diversion the error was brought to the notice of the Administration. The respondent was, however, informed that the certificate had been granted in a general format and should not cause any worry to the respondent. The respondent has also vehemently disputed the assertion of the Administration that no resorts are functional at Agatti. The affidavit refers to Agatti Island Beach Resort, which has been leased out in the year 1996 by the Administration to one T.

Muthukoya. It also refers to multi-storeyed tourist accommodation being operated on Agatti Island. Photographs of these establishments have been placed on record. It enlists as many as six different establishments which, according to the respondent, are being run as tourist resorts. The affidavit also disputes the assertion of the Administration that the Home Stay has been discontinued w.e.f. February 2012. The affidavit refers to what is described as parallel tourism resorts set up with the active permission of the Administration.

13. The Administration has filed an affidavit in rejoinder sworn by one Asarpal Singh, Deputy Resident Commissioner for UT. Apart from reiterating the assertion made by the Administration in the affidavit, it alleges that the use of local material is forbidden in Lakshadweep islands as the locally available sand being coral dust is not allowed to be used for building purposes. All the building material is, therefore, imported from the mainland. The thatched roof over the hutments is also a false roofing as the cottages are air-conditioned and the thatched roof is only a camouflage. The rooms visible in the photographs are actually pucca constructions. The structures are made of cement and concrete. The accommodation is according to the Administration advertised for a price ranging between Rs.6000-12000/- per day.

14. We have referred copiously to the pleadings of the parties only to draw the contours of the controversy before us. Broadly speaking only two questions arise for our determination in the backdrop set out above. These are:

1) Whether the High Court was in the facts and circumstances of the case correct in allowing the interim prayer of the respondent and permitting him to run the resort? and 2) If the answer to question No. 1 be in the negative, what is the way forward? We shall deal with the questions ad-seriatim.

Re. Question No. 1 15. Appearing for the appellant-UT Administration of Laskshdweep, Mr.

H.P. Raval, learned Additional Solicitor General of India contended that the High Court had without adverting to the several aspects that arose for consideration permitted the respondent to run the resort simply because the respondent is alleged to have engaged 47 employees who were likely to be affected if the resort was shut down. Mr. Raval submitted that permitting the respondent to run a resort which was established in complete violation of the CRZ regulations and contrary to the land use diversion certificate granted in its favour was tantamount to placing a premium on an illegality committed by the said respondent.

16. Mr. Giri, learned senior counsel appearing for the respondents, on the other hand argued that the Administration was adopting double standards inasmuch as they were permitting certain resorts to operate while the resort which had secured the requisite permissions, was being prevented from doing its legitimate business. It was contended that in the absence of a policy forbidding ‘home stay’ arrangement for tourists visiting the Islands the refusal of the Administration to permit the resort for being used even as ‘home stay’ was arbitrary. It was also contended that while there were allegations of breach of the conditions, subject to which the authorities had granted clearances, such allegations were levelled only after the respondent had approached the High Court for redress.

17. The High Court has not indeed done justice to the issues raised by the parties, whether the same relate to the alleged violations committed by the respondent-entrepreneur in setting up of a resort or the Administration permitting similar resorts to operate in the garb of ‘home stay’ arrangement while preventing the respondent from doing so. The High Court has not even referred to the Notification dated 6th January, 2011 issued by the Government under Section 3 of the Environment (Protection) Act, 1986 or the effect thereof on the establishment of the project that does not so far have a final clearance and completion certificate from the competent authority and is being accused of serious violations. The High Court’s order proceeds entirely on humanitarian and equitable considerations, in the process neglecting equally, if not more, important questions that have an impact on the future development and management of the Lakshadweep Islands. We are not, therefore, satisfied with the manner in which the High Court has proceeded in the matter. The High Court obviously failed to appreciate that equitable considerations were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion. No one could in the teeth of those requirements claim equity or present the administration with a fait accompli. The resort could not be commissioned under a judicial order in disregard of serious objections that were raised by the Administration, which objections had to be answered before any direction could issue from a writ Court. We have, therefore, no hesitation in holding that the order passed by the High Court is legally unsustainable. Question No. 1 is accordingly answered in the negative, and the impugned order set aside.

Re. Question No. 2

18. Lakshadweep or Laccadive is a cluster of islands situate at a distance ranging from two hundred to four hundred and forty kms. from the main land known for their natural beauty but fragile, ecological and environmental balance. Most of the islands are not inhabited, the total population living on the islands including Agatti, which is the largest in size, being just about sixty thousand. The island is of great attraction for tourists both domestic and international who approach this unique destination by sea as also by air. The islands are centrally administered and have been the concern of the Administrators as much as the environmentalists. All the same there has not been much development activity in the area largely because of absence of any vision plan as to the manner and extent and the kind of development that would suit the area keeping in view its locational advantages and disadvantages. Progress in this direction is so slow that it is often overtaken by the pressure of the up market forces that push tourism inflow in these areas to higher levels with every passing year. While entrepreneurs may be keen to invest and develop facilities for tourists and infrastructure for locals living on the islands, the question is whether such pressure ought to disturb the Administration’s resolve to permit only a planned development and management of these islands on a basis that is both ecologically and economically sustainable.

19. Given the fact that no vision or master plan for the development of the islands has been prepared so far, developments made over the past few decades, may be haphazard. Mr. Raval, however, submitted that the Government of India was conscious of the importance of the region and had in terms of Notification dated 6th January, 2011 directed the preparation of an integrated management plan for the islands. While broad guidelines were available in the said Notification, the details have to be worked out by experts not only in science, environment and the like but also town- planners who will have a major role to play in how the islands should develop. Having said that Mr. Raval fairly conceded that the draft IIMPs for two of the islands received from the CESS have not been evaluated by the U.T. Administration nor does the Administration have the assistance of any expert body that can look into the draft IIMPs and suggest modifications, improvements or alterations in the same. That being so neither the Lakshadweep Administration nor the Government of India were according to Mr. Raval averse to the constitution of an expert Committee that could assist the Lakshadweep Administration in finalising the IIMPs so that the same is submitted to the Government of India for approval at the earliest.

20. Mr. Giri, learned counsel for the respondents too had no objection to the appointment of a committee of experts to do the needful. He however urged that since the committee could be requested to examine other aspects of the controversy also the same could be headed by a former Judge of this Court.

21. Notification dated 6th January, 2011 issued by the Government of India under Section 3 of the Environment (Protection) Act, 1986 read with sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, inter alia, provides for the preparation of Integrated Islands Management Plans for each of the islands in Lakshadweep. These IIMPs have to specify all the existing and proposed developments, conservation and preservation schemes, dwelling units including dwelling infrastructure projects such as, schools, markets, hospitals, public facilities and the like. The notification further provides that development activities in the island shall be included in the IIMPs in accordance with the rules and regulations and building bye-laws of local town and country planning for the time being in force in the islands and that all activities in the islands including the aquatic area shall be regulated by the Lakshadweep Islands Administration on the basis of the IIMPs. Notification also gives certain guidelines which have to be kept in view while preparing the IIMPs. It makes the UT Coastal Zone Management Authority responsible for enforcing and monitoring the notification and assisting in the task of constituting District Level Committees under the Chairmanship of District Magistrate concerned with at least three representatives of local traditional coastal communities. Notification also enumerates the activities that shall be prohibited on the islands including destruction of corals, mining of sand in and around coral areas, construction of shore protection works, disposal of untreated sewage or effluents, and disposal of solid wastes including fly ash, industrial waste, medical waste etc. It also permits setting up of new industries and expansion of existing industries except those directly related to waterfront or directly needing offshore facilities. Suffice it to say that the Notification draws the contours of the IIMPs envisaged thereunder, but leaves the details to be worked out by the Lakshadweep Administration if necessary with the help of experts in the relevant fields.

22. The issue of the Notification, in our view, is a step forward in the direction of providing an integrated sustainable development of the islands along planned and scientific lines, taking into consideration all the relevant factors. As noticed in the earlier part of this order draft IIMPs for two islands, one of which happens to be Agatti, have already been submitted which are yet to be finalised by the Lakshadweep Administration.

23. In the light of the above we have no difficulty in directing the constitution of an Expert Committee with a request to it to look into the matters set out in the terms of reference which we are setting out herein below. The Lakshadweep Administration has proposed that the Committee could comprise of four expert members from different fields named in the memo filed by the Administration under the chairmanship of Justice R.V.

Raveendran, former Judge of Supreme Court of India. Mr. Giri has no objection to the composition of the Committee being as proposed. We are also inclined to accept the proposal submitted in this regard. We are hopeful that the setting up of the Committee will not only provide expert assistance to the Lakshadweep Administration and eventually the Government of India in the preparation and approval of the IIMPs for the islands in question but also expedite the entire process for the general benefit of the people living on the islands as also for those visiting the place as tourists. Once the IIMPs are in place, all development activities will have to be regulated in accordance with the said plans which will make it so much easy for the Administration to grant approvals and clearances for activities that are permissible under such plans for the areas reserved for the same. It will also provide for a broad framework for the future development of the islands without disturbing the ecological or environmental balance and affecting the beauty of the area.

24. That brings us to yet another aspect which has been debated at some length by learned counsel for the parties before us concerning the alleged violation of CRZ and the land use diversion certificate by the respondent.

It is not possible for us to express any opinion on any one of those aspects for the same would require inspection and verification of facts on the spot apart from examination of the relevant record concerning the issue of the permission and the alleged violation of the conditions subject to which they were issued. That exercise can, in our opinion, be more effectively undertaken by the Expert Committee not only in relation to the respondent but also in relation to all other resorts and commercial establishments being run on the islands. So also the question, whether the Administration committed any violation of the CRZ Regulations by granting permission to any resort in the name of ‘home stay’ or committed any other irregularity or adopted any unfair or discriminatory approach towards any one or more resorts or commercial establishments is a matter that can be looked into by the Committee.

25. Suffice it to say that allegations and counter-allegations made by the parties against each other in regard to the violation of the CRZ and other irregularities in the matter of establishment and/or running of resorts and ‘home stay’ and grant of permits to tourists visiting the islands can also be examined by the Expert Committee and action, if any, considered appropriate by it recommended in the Report to be submitted to this Court. While doing so, the Committee shall also examine whether any official of the Lakshadweep Administration has wilfully or otherwise neglected the discharge of his duties whether the same related to violation of CRZ norms or any other act of omission or commission. The Committee may examine whether there is any criminal element in any such neglect or act of omission or commission on the part of any of the officials in the Lakshadweep Administration.

26. We are told that CBI had been at one stage asked to look into certain violations alleged in relation to the affairs of the islands. The Committee may examine the said report also and recommend, if necessary, any investigation to be conducted by the CBI into the alleged blameworthy conduct of the officers if there be any need for such investigation.

27. In the result, we appoint the following Committee of experts:

|Justice R.V. Raveendran, |Chairman | |Former Judge, Supreme Court of India | | |Dr. M. Baba, |Member | |Executive Director, Advance Training Centre | | |for Earth System Sciences and Climate, | | |Indian Institute of Tropical Meteorology | | |(IITM), Pune | | | | | |Mr. B.R. Subramaniam, |Member | |Project Director | | |Integrated Coastal and Marine Area | | |Management (ICMAM) | | |Project under Ministry of Earth Sciences, | | |Govt. of India | | | | | |Prof. M.M. Kamath |Member | |Chief Engineer (Civil) (retd.) | | |Vice-Chairman, Expert Appraisal Committee on| | |CRZ/Infrastructure Projects Constituted by | | |Ministry of Environment and Forests | | | | | |Prof. E.F.N. Ribeiro |Member | |School of Planning and Architecture, | | |New Delhi | | | | |

28. Director, Science and Technology, Lakshadweep Administration, shall be the nodal officer, responsible for organising and providing the necessary administrative, secretarial and logistic support required by the Committee. The Committee shall endeavour to work on the following broad terms of reference:

(I) The Committee shall use its expertise for evaluation of the draft IIMPs received from CESS or others that may be received in due course, and make such additions or alterations in the same as it may consider proper having regard, inter alia, to the following:

(a) The development already in existence and the future developments, conservation and preservation of the entire area keeping in view the statutory Notification dated 6th January, 2011 issued by the Government of India under the provisions of the Environment Protection Act, 1986.

(b) The impact of the proposed development on the livelihood of indigenous population and the various vulnerability issues.

(c) Reservation/identification of suitable locations and areas for creation of public and semi-public facilities for development of tourism in the islands.

(d) Redevelopment/sustainable development of inhabited and/or uninhabited areas of each island as independent and self contained units or as part of a larger development plan along scientific lines.

(II)The Committee may consider and recommend incorporation in the IIMP, Development Control Regulations governing the developmental activity in accordance with the final proposals on the IIMP for the purpose of islanders’ seeking clearances for permissible development activities on the islands. Such regulations may also include setting up of an appellate authority for the grievance redressal of the islanders with respect to such clearances. The Committee may suggest an outer time frame within which the Authority may have to respond to the applications of the islanders seeking permission for development activities.

(III) The Committee may examine the desirability and the feasibility of running ‘home stays’ for tourism purpose in the islands and may suggest the same to be incorporated in the IIMPs. The Committee may examine and suggest necessary guidelines keeping in mind environmental, economic and security considerations for running of such Home stays including norms/rules for such ‘home stays’ and the number of ‘home stays’ to be permitted, the number of permits to be granted, the norms for identification of houses for homestays, and the facilities to be offered etc.

(IV) The Committee may in its wisdom and discretion make suggestions on any other issue concerning the islands which it may deem fit.

29. The Committee shall examine allegations regarding violation of the CRZ and other irregularities committed by the respondent or by other individuals/entities in relation to establishment and/or running resorts and ‘home stays’ in the islands. Allegations regarding irregularities in the matter of grant of permits to the tourists visiting the islands as also in regard to permissions granted to the resort owners/home stays to operate on the islands shall also be examined by the Committee. So, also the Committee shall be free to examine whether any official of the Lakshadweep Administration has been guilty of any act of omission or commission in the discharge of his official duties and if considered necessary recommend action against such officials.

30. The remuneration payable to the Chairman and the members of the Committee is not being determined by us. We deem it fit to leave that matter to be decided by the Committee keeping in view the nature of work to be undertaken by it and the time required to accomplish the same.

31. The Chairman of the Committee may, in his discretion co-opt or associate with the Committee, any other expert member from any field considered relevant by it or take the assistance of any scientific or expert body considered necessary for completion of the assignment.

32. The Committee shall evolve its own procedure including the place and time of the meetings, division of work, powers, duties and responsibilities of members etc.

33. The Lakshadweep Administration shall provide to the Committee the requisite information, documents, material, infrastructure or any other requirement for the successful implementation of the objectives of the Committee.

34. The expenses incurred directly or indirectly for the functioning/management of the Committee shall be borne by the Administration.

35. The Committee is requested to submit a preliminary report about the steps taken by it as far as possible within a period of two months from the date of receipt of a copy of this order.

36. The matter shall be posted for orders before the Court after the receipt of the preliminary report.


(T.S. THAKUR)
................J.

CBSE Class X marks can’t be revealed under RTI: HC

Marks obtained by a student in the Class X CBSE exams cannot be revealed under the Right to Information (RTI) Act as it would defeat the very purpose of the new grading system, the Delhi high court has ruled.

Setting aside a ruling by the Central information Commission asking the Central Board of Secondary Education to reveal marks obtained by a girl in her Class X board examination in 2010, a bench of Acting Chief Justice A K Sikri and Justice R S Endlaw held that marks could not be treated as "information" under the RTI Act as CBSE awarded only grades now.

The verdict came on the plea of Anil Kumar Kathpal, who wanted the board to disclose the marks secured by his daughter in her Class X exam in 2010. He said the information, specifically subject-wise marks, would help him identify the weak areas in her studies.


The high court has set aside a CIC ruling that asked CBSE to reveal under the RTI Act marks obtained by a girl in her Class X board examination in 2010.

The court also set aside the verdict of a single-judge bench which had asked CBSE to reveal the marks. "We are unable to agree; we feel the CIC as well as the learned single judge, by directing disclosure of 'marks', in the regime of 'grades' have indeed undone what was sought to be done by replacing marks with grades and defeated the very objective thereof," the high court said, allowing CBSE's appeal.

"In our opinion, even though there is no express order of any court of law forbidding publication of marks... the effect of bringing the regime of grades in place of marks and of dismissal of challenge thereto, is to forbid publication/disclosure of marks... The objective...was to grade students in a bandwidth rather than numerically, it was felt that (the) difference between a student having 81% and a student having 89% could be owing to subjectivity in marking," the bench said.

Kerala bans gutka, paan masala

Thiruvananthapuram: The Kerala government Friday imposed a complete ban on sale and consumption of gutka and paan masala in the state, Chief Minister Oommen Chandy said.
Citing increasing incidence of diseases like oral cancer, the Congress-led UDF Government in Kerala today announced a ban on the manufacture and sale of gutka and pan masala containing tobacco in the state with immediate effect.

Announcing the decision at a press conference here, Chief Minister Oommen Chandy said the ban on gutka and pan masala containing tobacco and nicotine was enforced under the provisions of Food Safety and Standards Regulation Act, 2011.

Kerala is the second state to ban the use of gutka and pan masala after Madhya Pradesh.

The increasing incidence of gutka-induced diseases like oral cancer had prompted the government to ban the products, Chandy said adding the Commissioner of Food Safety (Kerala) had issued the notification banning these products on May 22.

The government would strictly enforce the ban and take strong action in case of any violation, he said.

Chandy said he had written to Prime Minister Manmohan Singh seeking a total ban on these products in the country. However, the Centre had replied last month that the states had the jurisdiction to ban gutka and pan masala under the Food Safety and Standards Regulation Act, 2011.

The notification issued by the Commissioner prohibits the manufacture, storage, distribution and sale of these products that contain tobacco and nicotine, in whatsoever name it is available in the market today.

PTI

Supreme court orders N D Tiwari to submit blood sample

The Supreme Court Thursday directed him to submit his blood sample for DNA profiling in a paternity suit filed by a young man, Rohit Shekhar, who claims to be his biological son.

The Supreme court bench of Justice Deepak Verma and Justice S.J. Mukhopadhyay directed Tiwari to submit his blood sample on May 29 after he refused to follow a Delhi High Court order for giving his blood sample.

The Supreme court said the surgeon of the Dehradun Civil Hospital along with district judge and a pathologist would visit Tiwari to collect his blood sample.

The court said the team would be accompanied by a joint registrar of the Delhi High Court and Rohit Shekhar or any of his representatives when it goes for collecting the sample.

The court also directed that the entire process would be carried out in strict confidentiality and the blood sample kept in sealed cover would be sent to designated lab for DNA profiling.

E-ticket cancellations - Indian Railways

Between 2005 and 2011, the Railways earned a neat Rs 750 crore (almost equivalent to its annual profit) on account of cancellations of e-tickets alone. (Its earnings from e-tickets from 2005 to April 2012 were Rs 30,094 crore.) RTI activist Manoranjan Roy, who procured this information, says that the railways must do away with cancellation charges. "Indian Railways now has several avenues for generating revenue," he points out. "It must stop burdening the common man with cancellation charges."

In 2011, between March and December, the railways earned Rs 198 crore from cancellation charges of e-tickets. Ever since it began in 2005, e-ticketing has ballooned to make up about 40% of all rail ticket sales. Railway officials say that the convenience that booking and cancelling an e-ticket offers has seen more passengers making advance bookings that very often result in cancellations. In fact, one out of every three e-tickets sold is cancelled.

If a confirmed ticket is cancelled more than 24 hours before the scheduled departure of the train, the penalty is Rs 70 for an AC first-class ticket, Rs 60 for AC Tier-2, AC Tier-3 and AC chair car, Rs 40 for sleeper class and Rs 20 for a second-class ticket. In fact, even if a wait-listed ticket is not confirmed, the Railways go on to deduct Rs 20 before refunding the remaining sum.

Popular trains have long waiting lists of 700 or 800. "Close to 95% of the wait-listed tickets do not get confirmed and automatically stand cancelled," explains a rail officer. "Hence, what ordinarily happens is that most passengers book themselves on more than one train; others with flexible travel dates book tickets on different days if they are on the waiting list."

Parts of hostile witness’s evidence can be used: Supreme court

“It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him,” theSupreme court bench of Justice B.S. Chauhan and Justice Dipak Misra said Monday.

“The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof,” Justice Chauhan said.

The judges said that “the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence”.The court said this while upholding the Allahabad High Court’s verdict by which it reversed the acquittal of Ramesh Harijan in a case of rape and causing the death of a minor child in Uttar Pradesh in 1996.The high court by its March 23, 2007 order reversed the acquittal decision of an additional district and session judge in Basti district Feb 2, 1999.

The apex court said “even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate the grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end”.

“The maxim falsus in uno, falsus in omnibus (false in one, false in all) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop,” the court said.

The judgment said “it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well”.

Referring to the evidence tendered by three hostile witnesses in Harijan’s case, the apex court said: “Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses… however, it is the duty of the court to unravel the truth under all circumstances.”

“A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense”, the apex court said, upholding the high court’s verdict setting aside the acquittal of Harijan by the trial court.

In Harijan’s case, the five-year-old victim was first buried by her family under the belief that she died of paralysis. But her body was later exhumed and sexual assault and death due to shock was confirmed in a medical test.
Judges should not treat as totally erased the evidence tendered by a witness whom the prosecution terms as hostile during a trial, the Supreme Court has said.

Deaf-mute can be credible witness: Supreme Court

The Supreme Court on Monday said a deaf-mute need not be prevented from giving evidence in court merely on account of his physical disability as he can do so either by writing or through gestures.

The court said this while upholding the Rajasthan High Court’s verdict of May 29, 2005 by which it had quashed the conviction of murder accused Darshan Singh.

The apex court bench of Justice BS Chauhan and Justice Dipak Misra said: “…a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.”

“Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to convey,” said the court.

Justice Chauhan said: “When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath.”

The witness may be administered oath by appropriate means and that may also be with the assistance of an interpreter, said Justice Chauhan.

In case a person can read and write it was most desirable to adopt a method that was more satisfactory than any sign language. “The law required that there must a record of signs and not the interpretation of signs,” the court said.

Finding no infirmity in a dumb witness tendering evidence, the court said that the object of enacting the provisions of Section 119 of the Indian Evidence Act reveals that deaf and dumb people were earlier contemplated in law as idiots.

“However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed,” said the court.

To buttress its conclusion, the court referred to the era of silent movies where the theme of the film was expressed through gestures and the expression and was widely understood by the audiences.

Darshan Singh was sentenced to life term in 2003 for killing Kuku Singh on the evidence of the victim’s deaf-mute widow Geeta. The high court set aside the trial court’s conviction, giving the benefit of the doubt to Darshan Singh.

Air India files contempt petition against striking pilots in Delhi high court

Air India today filed a contempt petition against striking pilots in the Delhi high court on grounds that the agitators have failed to comply with its previous order restraining them from undertaking the stir.

Filing the petition through counsel Lalit Bhasin, Air India management said despite the court's restraint order, several opportunities were given to the striking pilots to resolve their issues but they failed to settle the matter.

The counsel for AI is likely to mention the matter before Justice Reva Khetrapal, who had passed the restraint order, for the petition to be heard today itself.
On May 9, the high court had restrained over 200 agitating pilots from continuing their "illegal strike", reporting sick and staging demonstrations, a day after the airlines management sacked 10 pilots and derecognised their union.

The pilots, under the banner of Indian Pilots Guild (IPG), are agitating over the rescheduling of Boeing 787 Dreamliner training and matters relating to their career progression.

The judge had also said allowing such a strike to continue would cause irreparable loss to the company as well as huge inconvenience to the passengers travelling by the national carrier.

Filing an injunction suit against the pilots, counsel for AI management Bhasin had termed the strike as illegal and said due to the pilots' stir, the company has been compelled to cancel some of its international flights which has resulted in extreme hardship and also inconvenience to the passengers.

Moreover, as a result of the cancellation of flights, Air India is facing huge financial loss of over Rs 10 crore per day.

Minimum 7 years term mandatory for rapes: SC

Rapists should be awarded a minimum sentence of 7 years which can be reduced only in special circumstances, the Supreme Court has ruled ticking off the Rajasthan High Court for reducing the punishment of two convicts in a rape case.

"Such an order is violative of the mandatory requirement of law and has defeated the legislative mandate.

"Deciding the case in such a casual manner reduces the criminal justice delivery system to mockery," a bench of justices B S Chauhan and Dipak Misra said in a judgement.

The apex court passed the judgement while upholding an appeal filed by the Rajasthan Government challenging the high court's decision to reduce the sentence on two rapists Vinod Kumar and Heera Lal without recording any special reasons for taking the lenient view.

On January 22, 2005, the Special Judge Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act had awarded 7 years RI for the duo after convicting them for rape of an SC woman who had checked into hotel along with her brother-in-law.

However, the High Court on an appeal by the convicts reduced the sentence of Vinod Kumar from 7 years to 5 years and that of Heera Lal from 7 years to 11 months and 25 days.

Section 376 IPC (rape) mandates a minimum 7 years punishment, but which may be life or for a term which may extend to 10 years, provided that the court may for adequate and special reasons to be mentioned in the judgement, impose the punishment for a term less than 7 years.

Personal liberty can’t be curtailed illegally: Supreme Court

Personal liberty is the “most precious and prized right” guaranteed by the Indian constitution and it can’t be taken away without following the due procedure of law, says the Supreme Court.

The court said this as a caution while holding that a person who is already in custody could be ordered to remain in detention (under the National Security Act) only if there was a real possibility that his release on bail would lead to activities prejudicial to public order.

Holding that “there is no prohibition in law to pass detention order in respect of a person already in custody in respect of criminal case”, the apex court bench of Justice B.S. Chauhan and Justice Dipak Misra said: “Personal liberty of a person is sacrosanct and state cannot be permitted to take it away without following the procedure prescribed by law…”

Pronouncing the verdict, Justice Chauhan said any encroachment on personal liberty by the state without following the procedure prescribed under law would violate the fundamental rights of the constitution.

While permitting the courts to order detention of a person already in jail, the court said that such an order could be passed only if there was “reliable material” to believe that there was a real possibility that his release on bail could affect public order.

The court said authorities could move for the detention order if it was felt that it was necessary to prevent him from indulging in activities prejudicial to public order.

However, the court said, “in case either of these facts does not exist, the detention order would stand vitiati”.

The court said this while setting aside the detention order passed by the District Magistrate of Imphal West under the National Security Act on June 30 last year.

The detention order was upheld by the Imphal bench of the Gauhati High Court Jan 13, 2012.The apex court’s order came on an appeal by Huidrom Shantikumar Singh, whose son was to be detained. The son was arrested June 19, 2011.While passing the detention order, the district magistrate feared that he would indulge in anti-national activities.

The accused was charged with extorting of money and giving shelter to members of the outlawed Kangleipak Communist Party.”Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail,” the court concluded.

“Thus, as the detenu in the instant case has not moved bail application and no other co-accused, if any, had been enlarged on bail, resorting to the National Security Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit (unsupported assertion) (and) detention cannot be sustained in the eyes of law,” the ruling said.
(IANS)

Delhi High Court dismissing the plea filed by Indian Pilots’ Guild (IPG)

The court, while dismissing the plea filed by Indian Pilots’ Guild (IPG), an association of Air India pilots, said: “You cannot take advantage of the appeal while you are in contempt.”

“There is no reason to entertain the plea, there is no urgency, as according to you there is no strike,” said a division bench of Justice Sanjay Kishan Kaul and Justice Rajiv Shakdher.

The IPG moved the court challenging the court’s earlier order that restrained the pilots of the national carrier from going on an “illegal strike”.

Is jantri valid without changes in Stamp Duty Act? Gujarat High Court

The Gujarat high court has admitted a petition questioning the validity of 'jantri rate' also termed as Annual Statement of Rate as fixed by the state government and questioned whether it can be accepted without amending existing piece of legislation.

The petition was filed by Shihor Bar Association through advocate B M Mangukiya contending that the state government's gesture of fixing market value of any property undermines the power of adjudicatory authority appointed under the Gujarat Stamp Duty Act, 1958.

With admission of the plea, the court has also asked the revenue authority to explain within a month certain aspects and place before the court the methodology of assessing the market value for preparing jantri rates.

The HC has asked the government under which provisions of law, jantri rate "could befoisted upon the adjudicatory authority so as to be the sole guiding instructions, leaving no room for discretion to appreciate the evidence adduced, which may indicate contrary to the rates prescribed in Annual Statement of Rates".

The HC has also asked, "Under what circumstances and under what authority of law, market value could be determined by the state government itself in respect of property situated in entire state. Whether it could be said to be a scientific method of fixing rates so as to nullify the discretion of the authority to determine market rate?"

The court prima facie considered the argument put forth by advocate Mangukiya that any document that is provided to the authority to adjudge the value of property becomes unnecessary in light of fixed jantri rates. But this snatches discretionary powers of stamp authority to evaluate the property.

Justice S R Brahmbhatt, who is hearing this case, has also observed that if jantri rates are to be accepted as market rate or to be accepted as a guideline for the authority, the authority's discretion stands restricted. But if restriction on discretion is to be put, it has to be complete restriction. With such observation, the judge further noted that the stamp duty officials draw powers from the legislation. And no restriction on their discretion can be permitted without any legislative amendment to the existing Stamp Duty Act.

High Court sends back ‘illiterate’ couple’s claim suits to railway tribunal

Two “illiterate” victims of the 2005 Samlaya train accident who due to lack of knowledge about filing claim petitions fell prey to alleged unprofessional conduct of two advocates, the Gujarat High Court has sent back their claim suits to the Railway Claims Tribunal.

The tribunal had dismissed the victims’ claims while imposing fines on them after two advocates allegedly filed two separate claims for each victim before the tribunal claiming compensation of Rs 2 lakh and Rs 80,000 separately.

The two victims have been identified as Liyakatali Maniyar and his wife Gulshanbanu.

They had sustained injuries when Sabarmati Express had collided with a stationary goods train near Samlaya station in Vadodara district in April 2005. Seventeen persons were killed and more than 80 were injured in the accident.

Subsequently, the Maniyars had moved claim petitions before the Railway Claims Tribunal through advocates M B Shah and N R Kapade. Their lawyers had moved two separate claim petitions on behalf of each of them and claimed Rs 2 lakh and Rs 80,000 respectively.

On discovering this, the tribunal did not decide the petitions on merits and dismissed it on alleged fraudulent conduct of the advocates.

Later, the Maniyars approached the High Court.

Deciding to send back the matter to the tribunal, a division bench headed by Justice Akil Kureshi recently ordered the tribunal to decide the claim petitions on merits where they have demanded Rs 2 lakh as compensation.

The court also ordered to terminate the proceedings on the other two claim petitions moved by the Maniyars’ lawyers on their behalf.

“It appears that the appellants are illiterates and were not having requisite knowledge about filing of claim petitions and they were guided as per the advice of their advocates... the appellants, as might have been asked by their advocates, unknowingly allowed the advocates to present different claim petitions claiming compensation,” observed the bench.

“The Claims Tribunal, however, did not decide the petitions on merits and dealt with the petitions on alleged fraudulent conduct of the advocates. The tribunal mainly proceeded against the conduct of the advocates... The tribunal has taken the conduct of the advocates to be the ground to impose cost on the appellants though it does not appear from the order of the Claims Tribunal that it has recorded any finding about the fraudulent act on the part of the appellants,” the High Court observed.

Google Earth or Bhaskaracharya Institute of Space Applications (BISAG) maps?

Whether Google Earth images can be relied on by the government instead of maps provided by a state-owned space applications institute is being debated in the Gujarat High Court in a case that deals with tribals and forests.

In early 2010, the state Tribal Development Department (TDD) had authorised the use of satellite imagery as second evidence in determining claims under the Forest Rights Act (FRA) of 2006, entrusting the task of acquiring imagery and preparing maps to state-owned Bhaskaracharya Institute of Space Applications and Geo-informatics (BISAG), Gandhinagar.

BISAG soon started providing maps even as the TDD commissioner issued three circulars to hasten the process, “urging BISAG to prepare at least 60 maps every day”, according to the petition.

“The task of marking these Common Plots was to be carried out by the human operators sitting in BISAG office, with no field verification and as such highly error-prone,” three tribal rights groups — Action Research in Community Health & Development, Rajpipla Social Service Society and Paryavaran Suraksha Samiti — said in a petition against the rejection of 1.13 lakh FRA claims (out of 1.56 lakh), although a review has been ordered.

The petition adds the maps were in A4 sizes (later in A3), none had latitude/longitude grids and “many of these maps had gross mistakes in marking village boundaries, forest survey numbers and common plots”.

The groups said they met a top official and showed him the maps, juxtaposing them with satellite imagery from Google Earth, after which the official instructed BISAG to correct these mistakes and prepare larger A2 size maps with latitude/longitude grids. But the official did not insist on ground verification of the maps.

Again, the groups overlaid the new BISAG maps with GPS-based location identifiers and Google Earth images and found that latitude/longitude grids of important landmarks on the new maps were “off the mark by 2 to 10 seconds, i.e. 60 to 300 meters, or even more”.

The government has since told the HC that “Google Earth is not authentic as well as not authorised by state or central government and it is also highly objectionable to use by the government without the permission of the owner”.

In reply, the groups termed the government’s claims as “totally false” and said that “Google imagery are very high resolution images made freely available in the public domain”.

The last hearing took place on Friday and the matter is now likely to come up for hearing in June after summer vacation.

GENERAL OFFICER COMMANDING v. CBI & ANR. [2012] INSC 270 (1 May 2012)

Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 257 of 2011

General Officer Commanding ...Appellant

Versus

CBI & Anr. ....Respondents

WITH CRIMINAL APPEAL NO.55 of 2006

Additional Director General ...Appellant

Versus

Central Bureau Investigation ....Respondents

Dr. B.S. CHAUHAN, J.

1. Criminal Appeal No. 257 of 2011 has been preferred against the impugned judgment and order dated 10.7.2007 passed by the High Court of Jammu and Kashmir in Petition Nos. 78 and 80 of 2006 under Section 561- A of the Code of Criminal Procedure, (J&K) (hereinafter called as `Code’) by which the High Court upheld the order dated 30.11.2006 passed by the Additional Sessions Judge, Srinagar in File No.

16/Revision of 2006, and by the Chief Judicial Magistrate, Srinagar dated 24.8.2006, rejecting the appellant’s application for not entertaining the chargesheet filed by the Central Bureau of Investigation (hereinafter called CBI).

2. Brief facts relevant to the disposal of this appeal are as under:

A. In Village Chittising Pora, District Anantnag, J&K, 36 Sikhs were killed by terrorists on 20.3.2000. Immediately thereafter, search for the terrorists started in the entire area and 5 persons, purported to be terrorists, were killed at village Pathribal Punchalthan, District Anantnag, J & K by 7 Rashtriya Rifles (hereinafter called as `RR’) Personnel on 25.3.2000 in an encounter.

B. In respect of killing of 5 persons by 7 RR on 25.3.2000 at Pathribal claiming them to be responsible for Sikhs massacre at Chittising Pora, a complaint bearing No. 241/GS(Ops.) dated 25.3.2000 was sent to Police Station Achchabal, District Anantnag, J&K by Major Amit Saxena, the then Adjutant, 7 RR, for lodging FIR stating that during a special cordon and search operation in the forests of Panchalthan from 0515 hr. to 1500 hrs. on 25.3.2000, an encounter took place between terrorists and troops of that unit and in that operation, 5 unidentified terrorists were killed in the said operation. On the receipt of the complaint, FIR No. 15/2000 under Section 307 of Ranbir Penal Code (hereinafter called ‘RPC’) and Sections 7/25 Arms Act, 1959 was registered against unknown persons. A seizure memo was prepared by Major Amit Saxena (Adjutant) on 25.3.2000 showing seizure of arms and ammunition from all the 5 unidentified terrorists killed in the aforesaid operation which included AK-47 rifles (5), AK-47 Magazine rifles (12), radio sets (2), AK-48 ammunition (44 rounds), hand grenades (2) detonators (4) and detonator time devices (2). The said seizure memo was signed by the witnesses Farooq Ahmad Gujjar and Mohd.

Ayub Gujjar, residents of Wuzukhan, Panchalthan, J & K.

C. The 7 RR deposited the said recovered weapons and ammunition with 2 Field Ordnance Depot. However, the local police insisted that the Army failed to hand over the arms and ammunition allegedly recovered from the terrorists killed in the encounter, which tantamounts to causing of disappearance of the evidence, constituting an offence under Section 201 RPC. In this regard, there had been correspondence and a Special Situation Report dated 25.3.2000 was sent by Major Amit Saxena, the then Adjutant, to Head Quarter–I, Sector RR stating that, based on police inputs, a joint operation with STF was launched in the forest of Pathribal valley on 25.3.2000, as a consequence, the said incident occurred. However, it was added that ammunition allegedly recovered from the killed militants had been taken away by the STF.

D. There had been long processions in the valley in protest of killing of these 5 persons on 25.3.2000 by 7 RR alleging that they were civilians and had been killed by the Army personnel in a fake encounter. The local population treated it to be a barbaric act of violence and there had been a demand of independent inquiry into the whole incident. Thus, in view thereof, on the request of Government of J & K, a Notification dated 19.12.2000 under Section 6 of Delhi Police Special Establishment Act, 1946 (hereinafter called as `Act 1946’) was issued. In pursuance thereof, Ministry of Personnel, Government of India, also issued Notification dated 22.1.2003 under Section 5 of the Act 1946 asking the CBI to investigate four cases including the alleged encounter at Pathribal resulting in the death of 5 persons on 25.3.2000.

E. The CBI conducted the investigation in Pathribal incident and filed a chargesheet in the court of Chief Judicial Magistrate-cum- Special Magistrate, CBI, (hereinafter called the ‘CJM’) Srinagar, on 9.5.2006, alleging that it was a fake encounter, an outcome of criminal conspiracy hatched by Col. Ajay Saxena (A-1), Major Brajendra Pratap Singh (A-2), Major Sourabh Sharma (A-3), Subedar Idrees Khan (A-4) and some members of the troops of 7 RR were responsible for killing of innocent persons. Major Amit Saxena (A-5) (Adjutant) prepared a false seizure memo showing recovery of arms and ammunition in the said incident, and also gave a false complaint to the police station for registration of the case against the said five civilians showing some of them as foreign militants and false information to the senior officers to create an impression that the encounter was genuine and, therefore, caused disappearance of the evidence of commission of the aforesaid offence under Section 120-B read with Sections 342, 304, 302, 201 RPC and substantive offences thereof. Major Amit Saxena (A-5) (Adjutant) was further alleged to have committed offence punishable under Section 120-B read with Section 201 RPC and substantive offence under Section 201 RPC with regard to the aforesaid offences.

F. The learned CJM on consideration of the matter, found that veracity of the allegations made in the chargesheet and the analysis of the evidence cannot be gone into as it would tantamount to assuming jurisdiction not vested in him. It was so in view of the provisions of Armed Forces J & K (Special Powers) Act, 1990 (hereinafter called ‘Act 1990’), which offer protection to persons acting under the said Act.

G. The CJM, Srinagar, granted opportunity to Army to exercise the option as to whether the competent military authority would prefer to try the case by way of court-martial by taking over the case under the provisions of Section 125 of the Army Act, 1950 (hereinafter called the `Army Act’). On 24.5.2006, the Army officers filed an application before the court pointing out that no prosecution could be instituted except with the previous sanction of the Central Government in view of the provisions of Section 7 of the Act 1990 and, therefore, the proceedings be closed by returning the chargesheet to the CBI.

H. The CJM vide order dated 24.8.2006 dismissed the application holding that the said court had no jurisdiction to go into the documents filed by the investigating agency and it was for the trial court to find out whether the action complained of falls within the ambit of the discharge of official duty or not. The CJM himself could not analyse the evidence and other material produced with the chargesheet for considering the fact, as to whether the officials had committed the act in good faith in discharge of their official duty;

otherwise the act of such officials was illegal or unlawful in view of the nature of the offence.

I. Aggrieved by the order of CJM dated 24.8.2006, the appellant filed revision petition before the Sessions Court, Srinagar and the same stood dismissed vide order dated 30.11.2006. However, the revisional court directed the CJM to give one more opportunity to the Army officials for exercise of option under Section 125 of the Army Act.

J. The appellant approached the High Court under Section 561-A of the Code. The Court vide impugned order dated 10.7.2007 affirmed the orders of the courts below and held that the very objective of sanctions is to enable the Army officers to perform their duties fearlessly by protecting them from vexatious, malafide and false prosecution for the act done in performance of their duties. However, it has to be examined as to whether their action falls under the Act 1990. The CJM does not have the power to examine such an issue at the time of committal of proceedings. At this stage, the Committal Court has to examine only as to whether any case is made out and, if so, the offence is triable by whom.

Hence, this appeal.

3. Criminal Appeal No. 55 of 2006 has been preferred against the impugned judgment and order dated 28.3.2005 passed by the High Court of Guwahati in Criminal Revision No.117 of 2004 by which it has upheld the order of the Special Judicial Magistrate, Kamrup dated 10.11.2003 rejecting the application of the appellant seeking protection of the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958 (hereinafter called the `Act 1958’) in respect of the armed forces personnel.

4. Facts and circumstances giving rise to this appeal are as under:

A. In order to curb the insurgency in the North-East, the Parliament enacted the Act 1958 authorising the Central Government as well as the Governor of the State to declare, by way of Notification in the official Gazette, the whole or part of the State as disturbed area.

Section 4 of the Act 1958 conferred certain powers on the Army personnel acting under the Act which include power to arrest without warrant on reasonable suspicion, destroy any arms, ammunitions dumped and hide out, and also to open fire or otherwise use powers even to the extent of causing death against any person acting in contravention of law and order and further to carry out search and seizure. The entire State of Assam was declared disturbed area under the Act 1958 vide Notification dated 27.11.1990 and Army was requisitioned and deployed in various parts of the State to fight insurgency and to restore law and order.

B. On 22.2.1994, the 18th Battalion of Punjab Regiment was deployed in Tinsukhia District of Assam to carry out the counter insurgency operation in the area of Saikhowa Reserve Forest. The said Army personnel faced the insurgents who opened fire from an ambush.

The armed battalion returned fire and in the process, some militants died. The Battalion continued search at the place of encounter and consequently, 5 bodies of the militants alongwith certain arms and ammunitions were recovered. In respect of the said incident, an FIR was lodged at P.S. Doom Dooma. Local Police also visited the place on 23.2.1994 and 1.3.1994 and investigated the case. The incident was investigated by the Army under the Army Court of enquiry as provided under the Army Act. Two Magisterial enquiries were held as per the directions issued by the State Government and as per the appellant, the version of the Army personnel was found to be true and a finding was recorded that ‘the counter insurgency operation was done in exercise of the official duty’.

C. Two writ petitions were filed before the High Court by the non- parties alleging that the Army officials apprehended 9 individuals and killed 5 of them in a fake encounter. The High Court directed the CBI to investigate the matter.

D. The CBI completed the investigation and filed chargesheet against 7 Army personnel in the Court of Special Judicial Magistrate, Kamrup under Section 302/201 read with Section 109 of the Indian Penal Code, 1860 (hereinafter called `IPC’). The Special Judicial Magistrate issued notice dated 30.5.2002 to the appellant i.e. Army Headquarter to collect the said chargesheet. The appellant requested the said Court not to proceed with the matter as the action had been carried out by the Army personnel in performance of their official duty and thus, they were protected under the Act 1958 and in order to proceed further in the matter, sanction of the Central Government was necessary. The learned Special Judicial Magistrate rejected the case of the appellant vide order dated 10.11.2003. Being aggrieved, the appellant preferred the revision petition which has been rejected vide impugned order dated 28.3.2005 by the High Court.

Hence, this appeal.

5. As the facts and legal issues involved in both the appeals are similar, we decide both the appeals by a common judgment taking the Criminal Appeal No. 257 of 2011 as a leading case.

6. Shri Mohan Parasaran and Shri P.P. Malhotra, learned Addl.

Solicitor Generals appearing on behalf of the Union of India and Army personnel, have contended that mandate of Section 7 of the Act 1990 is clear and it clearly provides that no prosecution shall be instituted and, therefore, cannot be instituted without prior sanction of the Central Government. It is contended that the prosecution would be deemed to have instituted/initiated at the moment the chargesheet is filed and received by the court. Such an acceptance/receipt is without jurisdiction. The previous sanction of the competent authority is a pre- condition for the court in taking the chargesheet on record if the offence alleged to have been committed in discharge of official duty and such issue touches the jurisdiction of the court.

7. On the other hand, Shri H.P. Raval, learned ASG, Shri Ashok Bhan, learned senior counsel appearing on behalf of the CBI, and Mr.

M.S. Ganesh appearing for the interveners (though application for intervention not allowed) have vehemently opposed the appeals contending that the institution of a criminal case means taking cognizance of the case, mere presentation/filing of the chargesheet in the court does not amount to institution. The court of CJM has not taken cognizance of the offence, therefore, the appeals are premature.

Even otherwise, killing innocent persons in a fake encounter in execution of a conspiracy cannot be a part of official duty and thus, in view of the facts of the case no sanction is required. The appeals are liable to be dismissed.

8. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

9. The matter is required to be examined taking into consideration the statutory provisions of the Act 1990 and also considering the object of the said Act. It is to be examined as to whether the court, after the chargesheet is filed, can entertain the same and proceed to frame charges without previous sanction of the Central Government. The Act 1990 confers certain special powers upon members of the Armed Forces in the disturbed area in the State of J & K. The disturbed area is defined and there is no dispute that the place where the incident occurred stood notified under the Act 1990. Section 4 of the Act 1990 confers special powers on the officer of armed forces to take measures, where he considers it necessary to do so, for the maintenance of public order. However, he must give due warning according to the circumstances and even fire upon or use force that may also result in causing death against any person acting in contravention of law and order in the disturbed area and prohibit the assembly of five or more persons or carrying of weapons etc. Such an officer has further been empowered to destroy any arms dump, arrest any person without warrant who has committed a cognizable offence and enter and search without warrant any premises to make any arrest. Section 6 of the Act 1990 requires that such arrested person and seized property be handed over to the local police by such an officer.

10. Section 7 of the Act 1990 provides for umbrella protection to the Army personnel in respect of anything done or purported to be done in exercise of powers conferred by the Act. The whole issue is regarding the interpretation of Section 7 of the Act 1990, as to whether the term ‘institution’ used therein means filing/presenting/submitting the chargesheet in the court or taking cognizance and whether the court can proceed with the trial without previous sanction of the Central Government.

11. The analogous provision to Section 7 of the Act 1990 exists in Sections 45(1) and 197(2) of the Code of Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.’). The provisions of Section 7 of the Act 1990 are mandatory and if not complied with in letter and spirit before institution of any suit, prosecution or legal proceedings against any persons in respect of anything done or purported to be done in exercise of the powers conferred by the Act 1990, the same could be rendered invalid and illegal as the provisions require the previous sanction of the Central Government before institution of the prosecution.

According to the appellants, institution of prosecution is a stage prior to taking cognizance and, therefore, the word ‘institution’ is different from the words taking ‘cognizance’.

The scheme of the Act requires that any legal proceeding instituted against any Army official working under the Act 1990 has to be subjected to stringent test before any such proceeding can be instituted. Special powers have been conferred upon Army officials to meet the dangerous conditions i.e. use of the armed forces in aid of civil force to prevent activities involving terrorist acts directed towards overawing the government or striking terror in people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people. Therefore, Section 7 is required to be interpreted keeping the aforesaid objectives in mind.

12. The ‘prosecution’ means a criminal action before the court of law for the purpose of determining ‘guilt’ or ‘innocence’ of a person charged with a crime. Civil suit refers to a civil action instituted before a court of law for realisation of a right vested in a party by law. The phrase ‘legal proceeding’ connotes a term which means the proceedings in a court of justice to get a remedy which the law permits to the person aggrieved. It includes any formal steps or measures employed therein. It is not synonymous with the ‘judicial proceedings’.

Every judicial proceeding is a legal proceeding but not vice-versa, for the reason that there may be a ‘legal proceeding’ which may not be judicial at all, e.g. statutory remedies like assessment under Income Tax Act, Sales Tax Act, arbitration proceedings etc. So, the ambit of expression ‘legal proceedings’ is much wider than ‘judicial proceedings’. The expression ‘legal proceeding’ is to be construed in its ordinary meaning but it is quite distinguishable from the departmental and administrative proceedings, e.g. proceedings for registration of trade marks etc. The terms used in Section 7 i.e.

suit, prosecution and legal proceedings are not inter-changeable or convey the same meaning. The phrase `legal proceedings’ is to be understood in the context of the statutory provision applicable in a particular case, and considering the preceding words used therein. In Assistant Collector of Central Excise, Guntur v. Ramdev Tobacco Company, [1991] INSC 15; AIR 1991 SC 506, this Court explained the meaning of the phrase “other legal proceedings” contained in Section 40(2) of the Central Excises and Salt Act, 1944, wherein these words have been used after suit and prosecution. The Court held that these words must be read as ejusdem generis with the preceding words i.e. suit and prosecution, as they constitute a genus. Therefore, issuance of a notice calling upon the dealer to show cause why duty should not be demanded under the Rules and why penalty should not be imposed for infraction of the statutory rules and enjoin of consequential adjudication proceedings by the appellate authority would not fall within the expression “other legal proceedings” as in the context of the said statute. ‘Legal proceedings’ do not include the administrative proceedings.

In Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. & Anr., [1993] INSC 46; (1993) 2 SCC 144, this Court dealt with the expressions ‘proceedings’ and ‘legal proceedings’ and placed reliance upon the dictionary meaning of expression ‘legal proceedings’ as found in Black Law Dictionary (Fourth Edition) which read as under:

“Any proceedings in court of justice ... by which property of debtor is seized and diverted from his general creditors .... This term includes all proceedings authorised or sanctioned by law, and brought or instituted in a court of justice or legal tribunal, for the acquiring of a right or the enforcement of a remedy.” The Court came to the conclusion that proceedings before statutory authorities under the provisions of the Act do not amount to legal proceedings.

‘Legal proceedings’ means proceedings regulated or prescribed by law in which a judicial decision may be given; it means proceedings in a court of justice by which a party pursues a remedy which a law provides, but does not include administrative and departmental proceedings. (See also: S. V. Kondaskar, Official Liquidator v. V.M.

Deshpande, I.T.O. & Anr.[1972] INSC 4; , AIR 1972 SC 878; Babulal v. M/s. Hajari Lal Kishori Lal & Ors., [1982] INSC 10; AIR 1982 SC 818; and Binod Mills Co. Ltd., Ujjain v. Shri. Suresh Chandra Mahaveer Prasad Mantri, Bombay, [1987] INSC 156; AIR 1987 SC 1739).

The provision of Section 7 of the Act 1990 prohibits institution of legal proceedings against any Army personnel without prior sanction of the Central Government. Therefore, chargesheet cannot be instituted without prior sanction of the Central Government. The use of the words ‘anything done’ or ‘purported to be done’ in exercise of powers conferred by the Act 1990 is very wide in its scope and ambit and it consists of twin test. Firstly, the act or omission complained of must have been done in the course of exercising powers conferred under the Act, i.e., while carrying out the duty in the course of his service and secondly, once it is found to have been performed in discharge of his official duty, then the protection given under Section 7 must be construed liberally. Therefore, the provision contained under Section 7 of the Act 1990 touches the very issue of jurisdiction of launching the prosecution.

(i) INSTITUTION OF A CASE:

13. The meaning of the aforesaid term has to be ascertained taking into consideration the scheme of the Act/Statute applicable. The expression may mean filing/presentation or received or entertained by the court. The question does arise as to whether it simply means mere presentation/filing or something further where the application of the mind of the court is to be applied for passing an order.

14. In M/s. Lakshmiratan Engineering Works Ltd. v. Asst.

Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur & Anr.[1967] INSC 205; , AIR 1968 SC 488, this Court dealt with the provisions of U.P. Sales Tax Act, 1948 and rules made under it and while interpreting the proviso to Section 9 thereof, which provided the mode of filing the appeal and further provided that appeal could be “entertained” on depositing a part of the assessed/admitted amount of tax. The question arose as what was the meaning of the word ‘entertain’ in the said context, as to whether it meant that no appeal would be received or filed or it meant that no appeal would be admitted or heard and disposed of unless satisfactory proof of deposit was available. This Court held that dictionary meaning of the word ‘entertain’ was either ‘to deal with’ or ‘admit to consideration’. However, the court had to consider whether filing or receiving the memorandum of appeal was not permitted without depositing the required amount of tax or it could not be heard and decided on merits without depositing the same. The court took into consideration the words ‘filed or received’ in Section 6 of the Court Fees Act and held that in the context of the said Act it would mean ‘admit for consideration’. Mere filing or presentation or receiving the memorandum of appeal was inconsequential. The provisions provided that the appeal filed would not be admitted for consideration unless the required tax was deposited.

15. In Lala Ram v. Hari Ram, [1969] INSC 300; AIR 1970 SC 1093, this Court considered the word ‘entertain’ contained in the provisions of Section 417(4) of the Code of Criminal Procedure, 1898 (analogous to Section 378 Cr.P.C.) providing for the period of limitation of 60 days for filing the application for leave to appeal against the order of acquittal. Thus, the question arose as to whether 60 days are required for filing/presenting the application for leave to appeal or the application should be heard by the court within that period. This Court held that in that context, the word ‘entertain’ meant ‘filed or received by the court’ and it had no reference to the actual hearing of the application for leave to appeal. So, in that context ‘entertain’ was explained to receive or file the application for leave to appeal.

16. In Hindustan Commercial Bank Ltd. v. Punnu Sahu (dead) through LRs., AIR 1970 SC 1384, this Court dealt with the expression ‘entertain’ contained in the proviso to Order XXI Rule 90 Code of Civil Procedure, 1908 as amended by the High Court of Allahabad and rejected the contention that it meant initiation of the proceeding and not to the stage when the court takes up the application for consideration, observing that ‘entertain’ means to “adjudicate upon” or “proceed to consider on merits”.

17. In Martin and Harris Ltd. v. VIth Additional District Judge &

Ors., AIR 1998 SC 492, while dealing with the provisions of Section 21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the word “entertain” was interpreted as considering the grounds for the purpose of adjudication on merits i.e.

thereby taking cognizance of an application by the statutory authority.

The Court rejected the contention that the term ‘entertain’ contained in the said statutory provision was synonymous with the word ‘institute’.

18. In Jamuna Singh & Ors. v. Bhadai Shah, [1963] INSC 199; AIR 1964 SC 1541, this Court dealt with the expression ‘institution of a case’ and held that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. Section 190(1) Cr.P.C.

contains the provision for taking cognizance of offence (s) by Magistrate. Section 193 Cr.P.C. provides for cognizance of offence (s) being taken by courts of Sessions on commitment to it by a Magistrate duly empowered in that behalf.

This view has been reiterated, approved and followed by this Court in Satyavir Singh Rathi, ACP & Ors. v. State through CBI, (2011) 6 SCC 1.

19. A similar view has been reiterated by this Court in Kamalapati Trivedi v. The State of West Bengal, [1978] INSC 256; AIR 1979 SC 777, observing that when a Magistrate applies his mind under Chapter XVI, he must be held to have taken cognizance of the offences mentioned in the complaint.

Such a situation would not arise while passing order under Section 156(3) Cr.P.C. or while issuing a search warrant for the purpose of investigation. In Devarapalli Lakshminarayana Reddy & Ors. v. V.

Narayana Reddy & Ors.[1976] INSC 136; , AIR 1976 SC 1672, this Court held that ‘institution’ means taking cognizance of the offence alleged in the chargesheet.

20. Mere presentation of a complaint cannot be held to mean that the Magistrate has taken the cognizance. (Vide: Narsingh Das Tapadia v.

Goverdhan Das Partani & Anr., AIR 2000 SC 2946).

21. Thus, in view of the above, it is evident that the expression “Institution” has to be understood in the context of the scheme of the Act applicable in a particular case. So far as the criminal proceedings are concerned, “Institution” does not mean filing;

presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in the Cr.P.C.

(ii) SANCTION FOR PROSECUTION:

22. The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Use of the expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been done in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Section 197 Cr.P.C. cannot be disputed. (See: R. Balakrishna Pillai v. State of Kerala & Anr., [1995] INSC 789; AIR 1996 SC 901; S.K. Zutshi & Anr. v. Bimal Debnath & Anr., AIR 2004 SC 4174; Center for Public Interest Litigation & Anr. v. Union of India & Anr., AIR 2005 SC 4413; Rakesh Kumar Mishra v. State of Bihar & Ors., AIR 2006 SC 820; Anjani Kumar v. State of Bihar & Ors., AIR 2008 SC 1992; and State of Madhya Pradesh v. Sheetla Sahai & Ors., (2009) 8 SCC 617).

23. The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation.

There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. However, performance of public duty under colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. It is quite possible that the official capacity may enable the pubic servant to fabricate the record or mis- appropriate public funds etc. Such activities definitely cannot be integrally connected or inseparably inter-linked with the crime committed in the course of the same transaction. Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction. (Vide: Bhanuprasad Hariprasad Dave & Anr.

v. The State of Gujarat[1968] INSC 113; , AIR 1968 SC 1323; Hareram Satpathy v. Tikaram Agarwala & Ors., [1978] INSC 144; AIR 1978 SC 1568; State of Maharashtra v. Dr.

Budhikota Subbarao[1993] INSC 132; , (1993) 3 SCC 339; Anil Saran v. State of Bihar &

Anr.[1995] INSC 417; , AIR 1996 SC 204; Shambhoo Nath Misra v State of U.P. & Ors., AIR 1997 SC 2102; and Choudhury Parveen Sultana v. State of West Bengal &

Anr., AIR 2009 SC 1404).

24. In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative. It is so, for the reason that the power of the State is performed by an executive authority authorised in this behalf in terms of the Rules of Executive Business framed under Article 166 of the Constitution of India insofar as such a power has to be exercised in terms of Article 162 thereof.

(See : State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009) 17 SCC 92).

25. In Satyavir Singh Rathi, (Supra), this Court considered the provisions of Section 140 of the Delhi Police Act 1978 which bars the suit and prosecution in any alleged offence by a police officer in respect of the act done under colour of duty or authority in exercise of any such duty or authority without the sanction and the same shall not be entertained if it is instituted more than 3 months after the date of the act complained of. A complaint may be entertained in this regard by the court if instituted with the previous sanction of the administrator within one year from the date of the offence. This Court after considering its earlier judgments including Jamuna Singh (supra);

The State of Andhra Pradesh v. N. Venugopal & Ors., [1963] INSC 143; AIR 1964 SC 33;

State of Maharashtra v. Narhar Rao, [1966] INSC 75; AIR 1966 SC 1783; State of Maharashtra v. Atma Ram & Ors., AIR 1966 SC 1786; and Prof. Sumer Chand v. Union of India & Ors., [1993] INSC 341; (1994) 1 SCC 64, came to the conclusion that the prosecution has been initiated on the basis of the FIR and it was the duty of the police officer to investigate the matter and to file a chargesheet, if necessary. If there is a discernible connection between the act complained of by the accused and his powers and duties as police officer, the act complained of may fall within the description of colour of duty. However, in a case where the act complained of does not fall within the description of colour of duty, the provisions of Section 140 of the Delhi Police Act 1978 would not be attracted.

26. This Court in State of Orissa & Ors. v. Ganesh Chandra Jew, AIR 2004 SC 2179, while dealing with the issue held as under:

“….. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.” (Emphasis added) (See also: P. Arulswami v. State of Madras, [1966] INSC 148; AIR 1967 SC 776).

27. This Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors., AIR 1998 SC 1524, held as under:

“……The legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the concerned Government in a case where the acts complained of are alleged to have been committed by public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings.” (Emphasis added)

28. In Matajog Dobey v. H.C. Bhari, [1955] INSC 61; AIR 1956 SC 44, the Constitution Bench of this Court held that requirement of sanction may arise at any stage of the proceedings as the complaint may not disclose all the facts to decide the question of immunity, but facts subsequently coming either to notice of the police or in judicial inquiry or even in the course of prosecution evidence may establish the necessity for sanction. The necessity for sanction may surface during the course of trial and it would be open to the accused to place the material on record for showing what his duty was and also the acts complained of were so inter-related or inseparably connected with his official duty so as to attract the protection accorded by law. The court further observed that difference between “acting or purporting to act” in the discharge of his official duty is merely of a language and not of substance.

On the issue as to whether the court or the competent authority under the statute has to decide the requirement of sanction, the court held:

“Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the Court, which is the ascertainment of the true nature of the act……There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter- related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.” (Emphasis added)

29. In Sankaran Moitra v. Sadhna Das & Anr., AIR 2006 SC 1599, this Court held as under :

“The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted.” (See also: Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors., AIR 2001 SC 2198).

30. In S.B. Saha & Ors. v. M.S. Kochar, [1979] INSC 131; AIR 1979 SC 1841, this Court dealt with the issue elaborately and explained the meaning of “official” as contained in the provisions of Section 197 Cr.P.C., observing:

"In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged…….. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.”

31. In Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274, this Court reiterated the same view while interpreting the phrase “official duty”, as under:

“…Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service.

Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned……”

32. In P.K. Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC 229, this Court dealt with the issue wherein an Army officer had allegedly indulged in the offence punishable under Section 166 IPC - public servant disobeying law, with intent to cause injury to any person and Section 167 IPC - public servant framing incorrect document with intention to cause injury, and as to whether in such an eventuality sanction under Section 197 Cr.P.C. was required. The Court held as under:

“As the offences under Sections 166 and 167 of the Penal Code have a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was prerequisite before the learned Judicial Magistrate could issue summons upon the appellant.” The Court further rejected the contention that sanction was not required in view of the provisions of Sections 125 and 126 of the Army Act, which provided for a choice of the competent authorities to try an accused either by a criminal court or proceedings for court-martial.

Section 126 provides for the power of the criminal court to require delivery of offender. The Court held that in case the competent authority takes a decision that the accused was to be tried by ordinary criminal court, the provisions of the Cr.P.C. would be applicable including the law of limitation and the criminal court cannot take cognizance of offence if it is barred by limitation. In case, the delay is not condoned, the court will have no jurisdiction to take the cognizance. Similarly, unless it is held that a sanction was not required to be obtained, the court’s jurisdiction will be barred.

33. This Court in Nagraj v. State of Mysore, [1963] INSC 137; AIR 1964 SC 269, held that:

“ The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of S. 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If S. 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected.” (Emphasis added)

34. In Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431, the Constitution Bench of this Court while dealing with the issue involved herein under the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958, held as under:

“Under Section 6 protection has been given to the persons acting under the Central Act and it has been prescribed that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by the said Act except with the previous sanction of the Central Government.

The conferment of such a protection has been assailed on the ground that it virtually provides immunity to persons exercising the powers conferred under Section 4 inasmuch as it extends the protection also to “anything purported to be done in exercise of the powers conferred by this Act”. It has been submitted that adequate protection for members of armed forces from arrest and prosecution is contained in Sections 45 and 197 CrPC and that a separate provision giving further protection is not called for. It has also been submitted that even if sanction for prosecution is granted, the person in question would be able to plead a statutory defence in criminal proceedings under Sections 76 and 79 of the Indian Penal Code.

The protection given under Section 6 cannot, in our opinion, be regarded as conferment of an immunity on the persons exercising the powers under the Central Act. Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution or a suit or other civil proceeding is instituted against such person. Insofar as such protection against prosecution is concerned, the provision is similar to that contained in Section 197 CrPC which covers an offence alleged to have been committed by a public servant “while acting or purporting to act in the discharge of his official duty”. Section 6 only extends this protection in the matter of institution of a suit or other legal proceeding.

xx xx xx In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the State and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation.” (Emphasis added)

35. In Jamiruddin Ansari v. Central Bureau of Investigation & Anr., (2009) 6 SCC 316, this Court while dealing with the provision of Maharashtra Control of Organised Crime Act, 1999 (hereinafter called as ‘MCOCA’) held that:

“As indicated hereinabove, the provisions of Section 23 are the safeguards provided against the invocation of the provisions of the Act which are extremely stringent and far removed from the provisions of the general criminal law. If, as submitted on behalf of some of the respondents, it is accepted that a private complaint under Section 9(1) is not subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison d'être. At the same time, since the filing of a private complaint is also contemplated under Section 9(1) of MCOCA, for it to be entertained it has also to be subject to the rigours of Section

23. Accordingly, in view of the bar imposed under sub-section (2) of Section 23 of the Act, the learned Special Judge is precluded from taking cognizance on a private complaint upon a separate inquiry under Section 156(3) CrPC. The bar of Section 23(2) continues to remain in respect of complaints, either of a private nature or on a police report.

In order to give a harmonious construction to the provisions of Section 9(1) and Section 23 of MCOCA, upon receipt of such private complaint the learned Special Judge has to forward the same to the officer indicated in clause (a) of sub-section (1) of Section 23 to have an inquiry conducted into the complaint by a police officer indicated in clause (b) of sub-section (1) and only thereafter take cognizance of the offence complained of, if sanction is accorded to the Special Court to take cognizance of such offence under sub-section (2) of Section 23.” (Emphasis added)

36. This Court in Harpal Singh v. State of Punjab, (2007) 13 SCC 387, while dealing with the provision of Section 20A(2) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter called ‘TADA’) held as under:

“The important feature which is to be noted is that the prosecution did not obtain sanction of the Inspector General of Police or of the Commissioner of Police for prosecution of the appellant under TADA at any stage as is required by Section 20- A(2) of TADA. The trial of the appellant before the Designated Court proceeded without the sanction of the Inspector General of Police or the Commissioner of Police. In absence of previous sanction the Designated Court had no jurisdiction to take cognizance of the offence or to proceed with the trial of the appellant under TADA”.

(Emphasis added)

37. In Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat, AIR 1997 SC 3475, this Court while dealing with the same provisions of TADA, held that:

“…Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the Court in order to enable the Court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the Court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction.” 38 In State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, this Court while dealing with the issue held as under:

“Use of the words “no” and “shall” makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of.” (Emphasis added)

39. In broad and literal sense `cognizance’ means taking notice of an offence as required under Section 190 Cr.P.C. `Cognizance’ indicates the point when the court first takes judicial notice of an offence. The court not only applies its mind to the contents of the complaint/police report, but also proceeds in the manner as indicated in the subsequent provisions of Chapter XIV of the Cr.P.C. (Vide:

R.R. Chari v. The State of Uttar Pradesh, [1951] INSC 21; AIR 1951 SC 207; and State of W.B. & Anr. v. Mohd. Khalid & Ors., [1994] INSC 609; (1995) 1 SCC 684).

40. In Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr., AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word ‘cognizance’ as under:

“In legal parlance cognizance is ‘taking judicial notice by the court of law’, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially.” (Emphasis added) (See also: Bhushan Kumar v. State (NCT of Delhi), [1994] INSC 487; (2012) 4 SCALE 191)

41. In State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, this Court explained the meaning of the term ‘the very cognizance is barred’ as that the complaint cannot be taken notice of or jurisdiction or exercise of jurisdiction or power to try and determine causes. In common parlance, it means taking notice of. The court, therefore, is precluded from entertaining a complaint or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.

42. The relevant provisions in the Cr.P.C. read as under:

“45(1)- Notwithstanding anything contained in Sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

197(2)- No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.” Section 7 of the Act 1990, puts an embargo on the complainant/investigating agency/person aggrieved to file a suit, prosecution etc. in respect of anything done or purported to be done by a Army personnel, in good faith, in exercise of power conferred by the Act, except with the previous sanction of the Central Government.

43. Three expressions i.e. ‘except’, ‘good faith’ and ‘purported’ contained in the aforesaid provision require clarification/elaboration.

(i) Except :

To leave or take out: exclude; omit; save Not including; unless. The word has also been construed to mean until.

Exception – Act of excepting or excluding from a number designated or from a description; that which is excepted or separated from others in a general rule of description; a person, thing, or case specified as distinct or not included; an act of excepting, omitting from mention or leaving out of consideration.

(ii) Purport :

Purport means to present, especially deliberately, the appearance of being; profess or claim, often falsely. It means to convey, imply, signify or profess outwardly, often falsely.

In other words it means to claim (to be a certain thing, etc.) by manner or appearance; intent to show; to mean; to intend.

Purport also means ‘alleged’.

‘Purporting’ – When power is given to do something ‘purporting’ to have a certain effect, it will seem to prevent objections being urged against the validity of the act which might otherwise be raised. Thus when validity is given to anything ‘purporting’ to be done in pursuance of a power, a thing done under it may have validity though done at a time when the power would not be really exercisable. (Dicker v. Angerstein, 3 Ch D 600) ‘Purporting to be done’ – There must be something in the nature of the act that attaches it to his official character. Even if the act is not justified or authorised by law, he will still be purporting to act in the execution of his duty if he acts on a mistaken view of it.” So it means that something is deficient or amiss: everything is not as it is intended to be.

In Azimunnissa and Ors. v. The Deputy Custodian, Evacuee Properties, District Deoria and Ors. [1960] INSC 179; AIR 1961 SC 365, Constitution Bench of this court held:

“The word ‘purport’ has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable…..Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so.” (Emphasis added) (See also: Haji Siddik Haji Umar & Ors. v. Union of India, [1983] INSC 5; AIR 1983 SC 259).

(iii) GOOD FAITH:

44. A public servant is under a moral and legal obligation to perform his duty with truth, honesty, honour, loyality and faith etc.

He is to perform his duty according to the expectation of the office and the nature of the post for the reason that he is to have a respectful obedience to the law and authority in order to accomplish the duty assigned to him. Good faith has been defined in Section 3(22) of the General Clauses Act, 1897, to mean a thing which is, in fact, done honestly, whether it is done negligently or not. Anything done with due care and attention, which is not malafide, is presumed to have been done in good faith. There should not be personal ill-will or malice, no intention to malign and scandalize. Good faith and public good are though the question of fact, it required to be proved by adducing evidence. (Vide: Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu & Ors., AIR 1958 SC 767; Madhav Rao Scindia Bahadur Etc. v. Union of India & Anr., [1970] INSC 253; AIR 1971 SC 530; Sewakram Sobhani v. R.K. Karanjiya, Chief Editor, Weekly Blitz & Ors., AIR 1981 SC 1514; Vijay Kumar Rampal & Ors. v. Diwan Devi & Ors., AIR 1985 SC 1669; Deena (Dead) through Lrs. v. Bharat Singh (Dead) through LRs. &

Ors., (2002) 6 SCC 336; and Goondla Venkateshwarlu v. State of Andhra Pradesh & Anr., (2008) 9 SCC 613).

In Brijendra Singh v. State of U.P. & Ors., [1980] INSC 223; AIR 1981 SC 636, this Court while dealing with the issue held:

“…..The expression has several shades of meanings. In the popular sense, the phrase 'in good faith' simply means "honestly, without fraud, collusion, or deceit; really, actually, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme".

(See Words and Phrases, Permanent Edition, Vol. 18A, page 91).

Although the meaning of "good faith" may vary in the context of different statutes, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for constituting 'good faith' is conditioned by the context and object of the statute in which this term is employed. It is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour, light and content from the context.”

45. For the aforesaid qualities attached to a duty one can attempt to decipher it from a private act which can be secret or mysterious. An authorised act or duty is official and is in connection with authority.

Thus, it cannot afford to be something hidden or non-transparent unless such a duty is protected under some law like the Official Secrets Act.

46. Performance of duty acting in good faith either done or purported to be done in the exercise of the powers conferred under the relevant provisions can be protected under the immunity clause or not, is the issue raised. The first point that has to be kept in mind is that such a issue raised would be dependent on the facts of each case and cannot be a subject matter of any hypothesis, the reason being, such cases relate to initiation of criminal prosecution against a public official who has done or has purported to do something in exercise of the powers conferred under a statutory provision. The facts of each case are, therefore, necessary to constitute the ingredients of an official act. The act has to be official and not private as it has to be distinguished from the manner in which it has been administered or performed.

47. Then comes the issue of such a duty being performed in good faith. ‘Good faith’ means that which is founded on genuine belief and commands a loyal performance. The act which proceeds on reliable authority and accepted as truthful is said to be in good faith. It is the opposite of the intention to deceive. A duty performed in good faith is to fulfil a trust reposed in an official and which bears an allegiance to the superior authority. Such a duty should be honest in intention, and sincere in professional execution. It is on the basis of such an assessment that an act can be presumed to be in good faith for which while judging a case the entire material on record has to be assessed.

48. The allegations which are generally made are, that the act was not traceable to any lawful discharge of duty. That by itself would not be sufficient to conclude that the duty was performed in bad faith. It is for this reason that the immunity clause is contained in statutory provisions conferring powers on law enforcing authorities. This is to protect them on the presumption that acts performed in good faith are free from malice or illwill. ?The immunity is a kind of freedom conferred on the authority in the form of an exemption while performing or discharging official duties and responsibilities. The act or the duty so performed are such for which an official stands excused by reason of his office or post.

49. It is for this reason that the assessment of a complaint or the facts necessary to grant sanction against immunity that the chain of events has to be looked into to find out as to whether the act is dutiful and in good faith and not maliciously motivated. It is the intention to act which is important.

50. A sudden decision to do something under authority or the purported exercise of such authority may not necessarily be predetermined except for the purpose for which the official proceeds to accomplish. For example, while conducting a raid an official may not have the apprehension of being attacked but while performing his official duty he has to face such a situation at the hands of criminals and unscrupulous persons. The official may in his defence perform a duty which can be on account of some miscalculation or wrong information but such a duty cannot be labelled as an act in bad faith unless it is demonstrated by positive material in particular that the act was tainted by personal motives and was not connected with the discharge of any official duty. Thus, an act which may appear to be wrong or a decision which may appear to be incorrect is not necessarily a malicious act or decision. The presumption of good faith therefore can be dislodged only by cogent and clinching material and so long as such a conclusion is not drawn, a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute.

?51. There has to be material to attribute or impute an unreasonable motive behind an act to take away the immunity clause. It is for this reason that when the authority empowered to grant sanction is proceeding to exercise its discretion, it has to take into account the material facts of the incident complained of before passing an order of granting sanction or else official duty would always be in peril even if performed bonafidely and genuinely.

52. It is in the aforesaid background that we wish to record that the protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be widely construed in order to assess the act complained of. This would also include the assessment of cases like mistaken identities or an act performed on the basis of a genuine suspicion. We are therefore of the view that such immunity clauses have to be interpreted with wide discretionary powers to the sanctioning authority in order to uphold the official discharge of duties in good faith and a sanction therefore has to be issued only on the basis of a sound objective assessment and not otherwise.

53. Use of words like ‘No’ and ‘shall’ in Section 7 of the Act 1990 denotes the mandatory requirement of obtaining prior sanction of the Central Government before institution of the prosecution, suit or legal proceedings. From the conjoint reading of Section 197(2) Cr.P.C.

and Section 7 of the Act 1990, it is clear that prior sanction is a condition precedent before institution of any of the aforesaid legal proceedings.

54. To understand the complicacy of the issue involved herein, it will be useful to compare the relevant provisions of different statutes requiring previous sanction.

|CRIMINAL PROCEDURE |PREVENTION OF |ARMED FORCES |

|CODE, 1973 |CORRUPTION ACT, 1988|(SPECIAL POWERS) |

| | |ACT, 1990 |

|197. Prosecution of |19. Previous |7. Protection to | |Judges and Public |sanction necessary |persons acting | |servants.- (1) When|for prosecution.- |under Act.— No | |any person who is or|(1) No court shall |prosecution, suit | |was a Judge or |take cognizance of |or other legal | |Magistrate or a |an offence |proceeding shall be| |public servant not |punishable under |instituted, except | |removable from his |Sections 7,10,11,13 |with the previous | |office save by or |and 15 alleged to |sanction of the | |with the sanction of|have been committed |Central Government,| |the Government is |by a public servant,|against any person | |accused of any |except with the |in respect of | |offence alleged to |previous sanction. |anything done or | |have been committed |(a) in the case of a|purported to be | |by him while acting |person who is |done in exercise of| |or purporting to act|employed in |the powers | |in the discharge of |connection with the |conferred by this | |his official duty, |affairs of the Union|Act. | |no Court shall take |and is not removable|………………… | |cognizance of such |from his office save|………………… | |offence except with |by or with the | | |the previous |sanction of the | | |sanction. |Central Government, | | |………………… |of that Government. | | |………………… | | | | |……………………. | | | |……………………. | | Thus, it is evident from the aforesaid comparative chart that under the provisions of Cr.P.C. and Prevention of Corruption Act, it is the court which is restrained to take cognizance without previous sanction of the competent authority. Under the Act 1990, the investigating agency/complainant/person aggrieved is restrained to institute the criminal proceedings; suit or other legal proceedings.

Thus, there is a marked distinction in the statutory provisions under the Act 1990, which are of much wider magnitude and are required to be enforced strictly.

55. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant.

The act complained of may fall within the description of the action purported to have been done in performing the official duty.

Therefore, if the alleged act or omission of the public servant can be shown to have reasonable connection inter-relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The Legislature has conferred “absolute power” on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority.

56. The present case stands squarely covered by the ratio of the judgments of this Court in Matajog Dobey (Supra) and Sankaran Moitra (Supra). Thus, we have no hesitation to hold that sanction of the Central Government is required in the facts and circumstances of the case and the court concerned lacks jurisdiction to take cognizance unless sanction is granted by the Central Government.

57. The CJM Court gave option to the higher authorities of the Army to choose whether the trial be held by the court-martial or by the criminal court as required under Section 125 of the Army Act. Mr.

P.P. Malhotra, learned ASG, has submitted the original file of the Army Authorities before the court, File notings reveal their decision that in case it is decided by this Court that sanction is required and the Central Government accords sanction, option would be availed at that stage.

58. Military Authority may ask the criminal court dealing with the case that the accused would be tried by the court-martial in view of the provisions of Section 125 of the Army Act. However, the option given by the Authority is not final in view of the provisions of Section 126 of the Army Act. Criminal court having jurisdiction to try the offender may require the competent military officer to deliver the offender to the Magistrate concerned to be proceeded according to law or to postpone the proceedings pending reference to the Central Government, if that criminal court is of the opinion that proceedings be instituted before itself in respect of that offence. Thus, in case the criminal court makes such a request, the Military Officer either has to comply with it or to make a reference to the Central Govt. whose orders would be final with respect to the venue of the trial.

Therefore, the discretion exercised by the Military Officer is subject to the control of the Central Govt. Such matter is being governed by the provisions of Section 475 Cr.P.C. read with the provisions of the J & K Criminal Courts and court-martial (Adjustment of Jurisdiction) Rules, 1983.

Rule 6 of the said Rules, 1983, provides that in case the accused has been handed over to the Army authorities to be tried by a court-martial, the proceedings of the criminal court shall remain stayed. Rule 7 thereof, further provides that when an accused has been delivered by the criminal court to the Army authorities, the authority concerned shall inform the criminal court whether the accused has been tried by a court-martial or other effectual proceedings have been taken or ordered to be taken against him. If the Magistrate is informed that the accused has not been tried or other effectual proceedings have not been taken, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law.

59. Constitution Bench of this Court in Som Datt Datta v. Union of India & Ors., [1968] INSC 223; AIR 1969 SC 414, held that option as to whether the accused be tried by a criminal court or court-martial could be exercised after the police has completed the investigation and submitted the chargesheet. Therefore, for making such an option, the Army Authorities do not have to wait till the criminal court takes cognizance of the offence or frames the charges, which commences the trial.

60. In Delhi Special Police Establishment, New Delhi v. Lt. Col.

S.K. Loraiya[1972] INSC 186; , AIR 1972 SC 2548, a similar view has been reiterated by this Court observing that relevant Rules require that an option be given as to whether the accused be tried by a court-martial or by ordinary criminal court. The Magistrate has to give notice to the Commanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice.

61. In Balbir Singh & Anr. v. State of Punjab, [1994] INSC 575; (1995) 1 SCC 90, this Court dealt with the provisions of the Air Force Act, 1950;

provisions of Cr.P.C. and criminal court and court-martial (Adjustment of Jurisdiction) Rules, 1952 and reiterated the same view relying upon its earlier judgment in Ram Sarup v. Union of India & Anr., AIR 1965 SC 247, wherein it has been held that there could be variety of circumstances which may influence the justification as to whether the offender be tried by a court-martial or by criminal court, and therefore, it becomes inevitable that the discretion to make such a choice be left to the Military Officers. Military Officer is to be guided by considerations of the exigencies of the service, maintenance of discipline in the Army, speedier trial, the nature of the offence and the persons against whom the offence is committed.

62. Thus, the law on the issue is clear that under Section 125 of the Army Act, the stage of making option to try an accused by a court- martial and not by the criminal court is after filing of the chargesheet and before taking cognizance or framing of the charges.

63. A question has further been raised by learned counsel for the appellant that the Act 1990 is a special Act and Section 7 thereof, provides full protection to the persons who are subject to the Army Act from any kind of suit, prosecution and legal proceedings unless the sanction of the Central Government is obtained . Thus, in such a fact- situation, even if the Commanding Officer exercises his discretion and opts that the accused would be tried by the court-martial, the proceedings of court-martial cannot be taken unless the Central Government accords sanction.

64. Learned counsel for the CBI and interveners have opposed the submission contending that in case the accused are tried in the court- martial, sanction is not required at all. The provisions of the Act 1990 would apply in consonance with the provisions of the Army Act.

Section 7 of the Act 1990 does not contain non-obstante clause.

Therefore, once the option is made that accused is to be tried by a court-martial, further proceedings would be in accordance with the provisions of Section 70 of the Army Act and for that purpose, sanction of the Central Government is not required. The court-martial has been defined under Section 3(VII) of the Army Act which is definitely different from the suit and prosecution as explained hereinabove, and has not been referred to in the Act 1990.

65. Undoubtedly, the court-martial proceedings are akin to criminal prosecution and this fact has been dealt with elaborately by this Court in Union of India & Ors. v. Major A. Hussain, AIR 1998 SC 577.

However, once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act. The Army Act does not provide for sanction of the Central Government. Thus, we do not find any force in the contention raised by the appellant and the same is rejected.

66. Sum up:

i) The conjoint reading of the relevant statutory provisions and rules make it clear that the term “institution” contained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.

ii) The competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a court-martial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by the court.

iii) Facts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial.

iv) In case option is made to try the accused by a court-martial, sanction of the Central Government is not required.

67. In view of the above, the appeals stand disposed of with the following directions:

I. The competent authority in the Army shall take a decision within a period of eight weeks from today as to whether the trial would be by the criminal court or by a court-martial and communicate the same to the Chief Judicial Magistrate concerned immediately thereafter.

II. In case the option is made to try the case by a court-martial, the said proceedings would commence immediately and would be concluded strictly in accordance with law expeditiously.

III. In case the option is made that the accused would be tried by the criminal court, the CBI shall make an application to the Central Government for grant of sanction within four weeks from the receipt of such option and in case such an application is filed, the Central Government shall take a final decision on the said application within a period of three months from the date of receipt of such an application.

IV. In case sanction is granted by the Central Government, the criminal court shall proceed with the trial and conclude the same expeditiously.

.............................................J.

(Dr. B.S. CHAUHAN)