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Bombay High Court orders 7 days jail for prison superintendent for denying emergency parole to eligible prisoners

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In a very significant development with far reaching consequences, the Nagpur Bench of Bombay High Court in a recent, refreshing, robust, rational and remarkable judgment titled Hanuman Anandrao Pendam v State of Maharashtra in Criminal Writ Petition No. 537/2021 delivered as recently as on March 16, 2022 has held the Superintendent of Central Prison, Nagpur – Anupkumar M Kumre – guilty of contempt and sentenced him to seven days simple imprisonment for selectively denying prisoners emergency parole during the Covid pandemic. The Division Bench of Justice VM Deshpande and Justice Amit Borkar refused to accept Kumre’s apology, fined him Rs 5,000 and suspended the sentence for 10 weeks, allowing him to approach the Supreme Court for relief. The Nagpur Bench of Bombay High Court observed that, “If the Court finds that the Government’s (officials) action in rejecting the grant of parole to a prisoner has the effect of suffocating the Articles 14 and 21 of the Constitution of India, in that case, the Court must act to restore the rule of law and respect the residuary fundamental rights of the prisoners.” Very rightly so!

To start with, this oral judgment authored by Justice Amit Borkar by a Bench of Nagpur Bench of Bombay High Court comprising of himself and Justice VM Deshpande sets the ball rolling by first and foremost putting forth in para 3 that, “This is a suo motu contempt initiated in exercise of the power under Article 215 of the Constitution of India against a Contemnor Shri Anupkumar M. Kumre, Superintendent of Central Prison, Nagpur, mainly on the grounds that the Contemnor selectively chose to apply the binding precedent of this Court as regards the release of prisoners in Central Prison, Nagpur on emergency parole in wilful disobedience of the judgment of this Court in the case of Milind Ashok Patil and Ors vs State of Maharashtra, in Criminal Writ Petition-ASDBLD-VC No.65/2020 thereby refusing to release 35 prisoners on emergency parole though eligible and granting emergency parole to 6 prisoners though ineligible. Furthermore, in addition to the aforesaid grounds, notice was issued for making misleading statements made in the affidavit filed before this Court, though cautioned twice earlier by two Co-ordinate Benches of this Court.”

While elaborating on the facts, the Bench then stipulates in para 4 that, “The facts which necessitated initiation of sou-motu contempt proceedings, which are relevant for adjudication of the present proceedings briefly are as under:-

The State of Maharashtra on 08/05/2020 introduced Rule 19(1)(c) in the Maharashtra Prisons (Bombay Furlough and Parole) (Amendment) Rules, 2020 (for short “the said Rules”) providing for the grant of emergency parole in view of the emergent Corona pandemic. One of the prisoners, namely Hanuman Anandrao Pendam, filed this Writ Petition seeking directions against the Contemnor for his release on emergency parole. In pursuance of the notice, the Contemnor filed a reply stating that the Petitioner did not surrender on his own and was required to be arrested.”

As it turned out, the Bench then discloses in para 5 that, “On 03/08/2021, this Court issued notice to the Contemnor and others, pursuance of which the Contemnor filed affidavit-in-reply on 11/08/2021 justifying the rejection of the emergency parole leave of the Petitioner stating that he was absconding for 14 days after expiry of the period of furlough leave of 21 days. However, curiously, the Contemnor filed another affidavit dated 14/09/2021, taking a U-turn and stating that the Petitioner had reported on time on 16/02/2021. However, the Petitioner was directed to go to the Government Hospital for undergoing a Covid test.”

To put things in perspective, the Bench then envisages in para 6 that, “On 27/09/2021, when this Court was about to dismiss the present Petition, the Advocate for Petitioner submitted that the Contemnor had released similar prisoners on parole though they were ineligible, but she was not having copies of such orders. She placed on record one such copy of the order. We, therefore, appointed Mr. F.T. Mirza as Amicus Curiae to assist the Court, as the Advocate appearing for Petitioner is a new entrant in the Bar. We also directed the Contemnor to file his personal affidavit giving all the details in respect of the orders passed after the policy of emergency Corona parole was introduced in a tabular form giving the details of prisoners/convicts who were released on emergency parole though surrendered late on their own as well as those brought in jail be using Police machinery and entire data in respect of the cases where he had released prisoners and rejected emergency parole under the Rules.”

Furthermore, the Bench then discloses in para 7 that, “In pursuance of the said order, the Contemnor filed his affidavit dated 28/09/2021, wherein he stated that 90 prisoners were denied emergency parole as they were found ineligible as per the Rules. The Contemnor, along with the said affidavit, filed five lists which are as under:-

i) List of 292 prisoners who were granted parole;

(ii) List of six prisoners who reported late;

(iii) List of six prisoners who surrendered on their own and were released on parole;

(iv) List of 63 prisoners released on parole; and

(v) List of 90 prisoners who were refused parole.”

As things stand, the Bench then points out in para 8 that, “At this stage, it needs to be noted that Prisoner Suresh Bhoyer’s name is mentioned in the two lists. One list shows that he reported late by seven days and another list shows that he reported on time.”

Notably, the Bench then remarks in para 9 that, “On 30/09/2021 learned Amicus Curiae invited the attention of this Court to various judgments (unreported) of the Co-ordinate Bench of this Court and in particular the order passed in Criminal Writ Petition No. 1069/2020 wherein the Co-ordinate Bench of this Court noted the manner in which the Prison Authorities flout the orders of this Court. Therefore, we directed the Respondent No. 2 to give details of the following facts on oath.

“i. The names of prisoners who were released on emergency parole under Rules though they were not released earlier twice;

ii. The names of prisoners who were denied emergency parole under Rules on the ground that they are residents of other States;

iii. The names of prisoners who were granted emergency parole though residents of other states.

iv. The names of prisoners who were released on emergency parole and after the expiry of the period of 45 days, their parole leave was not automatically extended;

v. The names of prisoners who were released on emergency parole under Rules and after the expiry of 45 days period their parole leave was automatically extended;

vi. The number of applications that were pending for more than one month where the prisoners had sought their release on emergency parole;”

It cannot be glossed over that the Bench then notes in para 10 that, “This Court, after comparing the anomalies in the affidavit, by the order dated 04/10/2021, directed the Contemnor to file an affidavit as to why different treatment is given to different prisoners though they were similarly situated. For the sake of clarity, Paragraphs 1 and 3 of the order dated 04/10/2021 are reproduced herein under:-

“1. In pursuance of order dated 30/09/2021, the respondent No.2 has filed his affidavit dated 01/10/2021 giving list of prisoners, as directed in the said order. Annexure – I of the said affidavit give list of the prisoners, who were released under Rule 19(1)(c) of the Prison Rules, 1959, though they were not released earlier twice. It needs to be noted that in an affidavit dated 20/09/2021, the respondent No.2 by way of Annexure R-7 has given a list of the prisoners whose parole leave had been rejected under Rule 19(1)(c) of the Prison Rules, 1959 for the reason that they were not released earlier on two occasions. The comparison between the affidavits on the face of it shows that the respondent No.2 has released many prisoners but on the same ground has refused parole leave to others during the same period. It is therefore, necessary for the respondent No.2 to explain, prima facie, arbitrary exercise of power.

3. The respondent No.2 shall file his detailed affidavit which shall include explanation / reasons as to why different treatment is given to different prisoners though all were similarly situated. The respondent No.2 shall explain in detail his explanation in relation to any other matter which he things relevant for adjudication of the present petition.””

As we see, the Bench then reveals in para 11 that, “In compliance with the order dated 04/10/2021, the Contemnor filed another affidavit on 06/10/2021 justifying his stand. In Paragraph 5 of the said affidavit, the Contemnor has stated on oath that he had carefully gone through the lists prepared by his office. Further, in Paragraph 1 of the said affidavit, he stated that he had carefully gone through the orders passed by this Court dated 30/09/2021 and 04/10/2021. He had also verified the position available on record in his office.”

Quite significantly, the Bench then observes in para 12 that, “Not being satisfied by the explanation offered by the Contemnor, this Court, on 08/10/2021, issued a notice of suo motu contempt under Rule 9(1) of the Contempt of the Courts (Bombay High Court) Rules, 1994 to Shri Anupkumar M. Kumre. This Court, in the order dated 08/10/2021, gave the detailed reasons as to why prima-facie action for Contempt of Court needs to be taken against the Contemnor. The Co-ordinate Bench of this Court had warned the Contemnor from giving false information or misleading the Court while filing his affidavit. For the sake of convenience, Paragraphs 7 & 8 of the order dated 08/10/2021 read as under:-

“7. The first instance of the indicator of the arbitrariness of respondent no.2 was noted by this Court in Criminal Writ Petition No. 524/2020 in order dated 25th November 2020. (Coram: Sunil B. Shukre and Avinash G. Gharote JJ.) wherein this Court in Para no.11 has observed thus :

“The respondent no. 2 is requested to be cautious in performing of his duty and refrain from any attempt from giving false information to the Court or misleading the Court while filing his reply on affidavit in future.”

8. The second instance is the order passed by this Court in Civil Application No. 188/2021 in Contempt Petition No.56/2021 wherein this Court by order dated 26th February,2021 (Croam: Z.A. Haq and Amit B Borkar, JJ.) by taking a suo moto cognisance of refusal on the part of respondent no.2 to release of a prisoner on bail in spite of specific order passed by the Court. The Court observed in para no.7 that the tenor of the respondent’s explanation shows that he had utterly brushed aside the directions given by the Court to release the accused therein who has overlooked the issue of personal liberty of the accused. Then Court observed that respondent no.2 could not sit in appeal over the directions given by the competent Court. If such action is tolerated, there will not be any meaning to the principle of the rule of law which is the foundation of an institution functioning in a democratic set up. That time, Court noted in earlier order referred to hereinabove and observed that the second respondent had repeated the mistake within a span of ten weeks. Though Court accepted the unconditional apology tendered by the respondent Court was of the view that the entry about the said order should be taken in the service book of respondent no.2, so that officer of such high rank does not commit such a blunder.

Accordingly, we are informed that an entry in the service book of the respondent no.2 was taken, and this Court was communicated with the said fact by way of an affidavit.”

Without mincing any words, the Bench then holds in para 79 that, “On an overall view of the precedent relied upon by the Contemnor and the learned Amicus Curiae, we are satisfied that this Court should not extend the mercy of discharging the Contemnor by accepting his apology as it would amount to encouraging his behaviour of selectively applying binding precedent of this Court. This is not the solitary instance, but earlier Co-ordinate Benches of this Court have cautioned the Contemnor by observing not to indulge in misleading the Court. In spite of such caution, it appears that the Contemnor has filed affidavits before this Court making false statements and giving incorrect information on several occasions, which we have noted earlier. At the cost of repetition, we must mention that on the earlier date of hearing, the Advocate for the Contemnor was made aware of the consequences of the statement made in an affidavit dated 08/03/2022 wherein the Contemnor had feigned ignorance to the judgment of this Court. During the course of the hearing, the Advocate was allowed to go out of the Courtroom to make Contemnor aware of the consequences of making a false statement in an affidavit. In spite of granting sufficient time, the Contemnor persisted with his defence of being not aware of the judgment of this Court in the case of Milind Ashok Patil, which we have found to be false in view of the documents on record. The conduct for which the apology has been tendered cannot be ignored without compromising the dignity of the Court. We, therefore, hold the Contemnor guilty of wilful disobedience of the judgment of this Court in the case of Milind Ashok Patil.”

Most forthrightly, the Bench then holds in para 81 that, “While awarding a sentence on the Contemnor, the Court does so to uphold the majesty of law and not with an idea of vindicating the prestige of the Court. It is really to see that the unflinching faith of people in Courts remains intact. This Court is conscious of the legal position that sentence of fine should be rule and imprisonment is an exception. In the facts of the present case where 35 poor prisoners were denied their residual fundamental right under Article 21 of the Constitution of India, most of whom could not afford to challenge the denial of emergency parole. Per contra, six ineligible prisoners were released on emergency parole for reasons best known to him. In spite of caution by two Co-ordinate Benches not to mislead this Court by filing false affidavits, the Contemnor has pleaded false defence of lack of knowledge. The reply before Disciplinary Authority shows that the Contemnor has intentionally disobeyed binding precedent 41 times.”

To be sure, the Bench then maintains in para 82 that, “Section 12(1) of the Contempt of Courts Act provides that the maximum amount of fine may extend to two thousand rupees. It is well settled that the inherent power to punish for contempt is provided in Article 215 of the Constitution of India which states that every High Courts shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself. This Constitutional power is an absolute power which cannot be abridged by any statutory law. This power contemplated by Article 215 of the Constitution of India cannot be abridged or controlled by any statute and so, no limitation as contemplated by Section 12 of the Contempt of Courts Act, 1971 can be read in the exercise of that power. When the High Court exercises its powers derived from Article 215 of the Constitution of India, the Contempt of Courts Act 1971, could only be regarded as laying down the procedure to be followed.”

Most remarkably, the Bench then hastens to add in para 83 that, “Therefore, in facts of the present case, we are imposing a fine of Rupees Five Thousand in exercise of the power under Article 215 of Constitution of India deriving support from observations in the recent judgment of the Hon’ble Supreme Court in the case of Re: Vijay Kurle and Others reported in 2020 SCC OnLine SC 407 which is affirmed in Prashant Bhushan, In re (Contempt Matter),(2021) 1 SCC 745; Prashant Bhushan, In re (Contempt Matter),(2021) 3 SCC 160, wherein in Paragraph 36, it is observed as under,

“36. A careful analysis of the Constitution Bench decision leaves no manner of doubt that Section 15 of the Act is not a substantive provision conferring contempt jurisdiction. The Constitution Bench finally left the question of whether the maximum sentence prescribed by the Act binds the Supreme Court open. The observations made in Para 38 referred to above clearly indicate that the Constitution Bench was of the view that the punishment prescribed in the Act could only be a guideline and nothing more. Certain observations made in this judgment that the Court exceeded its jurisdiction in Vinay Chandra Mishra’s case (supra) by taking away the right of practice for a period of 3 years have to be read in the context that the Apex Court held that Article 129 could not take over the jurisdiction of the Bar Council of the State or the Bar Council of India to punish an advocate. These observations, in our opinion, have to be read with the other observations quoted hereinabove, which clearly show that the Constitution Bench held that “Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment of contempt of itself.” The Court also held that Section 15 is not a substantive provision conferring contempt jurisdiction. Therefore, it is only a procedural section, especially in so far as suo moto contempts are concerned. It is thus clear that the powers of the Supreme Court to punish for contempt committed of itself is a power not subject to the provisions of the Act. Therefore, the only requirement is to follow a procedure that is just, fair and in accordance with the rules framed by this Court.”

Going ahead, the Bench then holds in para 84 that, “Therefore, we pass the following order:-

(a) The Contemnor Anupkumar Kumre is held guilty of committing wilful disobedience of the binding precedent of this Court in the case of Milind Ashok Patil.

(b) The Contemnor Anupkumar Kumre shall undergo simple imprisonment for seven days. In addition, the Contemnor shall pay a fine of Rs. Five Thousand, in default, he shall undergo simple imprisonment for a further seven days.

(c) At this stage, learned Advocate for the Contemnor prays for suspension of the sentence. Accordingly, considering the facts of the case, we suspend the sentence of imprisonment and fine for a period of 10 weeks.

(d) We express our gratitude for the valuable assistance rendered by learned Amicus Curiae Shri F.T. Mirza, Advocate.”

To summarize, the Nagpur Bench of Bombay High Court has taken a very strong exception to the Jail Superintendent’s despicable stand of selectively denying emergency parole to eligible prisoners during the Covid pandemic. This alone explains why the Court ordered 7 day jail term for him. It merits no reiteration that all those men in uniform who hold high position like that of Jail Superintendent as we see in this notable case then full care should be taken to ensure that no one is denied emergency parole who deserves it! It shall be in their own best interests! No doubt, all the courts must also definitely act similarly in similar such cases like the Nagpur Bench of Bombay High Court has done in this noteworthy case so that no men in uniform can ever dare to take the legal rights of prisoners for granted!

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

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DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

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SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

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Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

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Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

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Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

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The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

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‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

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The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

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