PROSECUTION UNDER UP GANGSTERS ACT PERMISSIBLE EVEN IN CASE OF A SINGLE FIR FOR ANTI-SOCIAL ACTIVITIES: SUPREME COURT - Business Guardian
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PROSECUTION UNDER UP GANGSTERS ACT PERMISSIBLE EVEN IN CASE OF A SINGLE FIR FOR ANTI-SOCIAL ACTIVITIES: SUPREME COURT

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In a significant development, we saw how just as recently as on April 26, 2022, the Apex Court in a brief, brilliant, bold and balanced judgment titled Shraddha Gupta vs The State of Uttar Pradesh and Others in Criminal Appeal Nos. 569-570 of 2022 observed that there can be prosecution against a person under Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act. We saw how in this case, the Allahabad High Court had refused to quash the proceedings against the accused under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The crux of this judgment can be stated thus as noted in judgment itself that, “Even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’ – There can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person. (Para 9-10).”

To start with, this extremely commendable, cogent, composed, courageous and creditworthy judgment authored by Justice MR Shah for a Bench of Apex Court comprising of himself and Justice BV Nagarathna sets the ball rolling by first and foremost putting forth in para 1 that, “Feeling aggrieved and dissatisfied with the impugned order dated 27.09.2019 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No. 21964 of 2019 and the subsequent order dated 10.11.2020 passed in Criminal Miscellaneous Review Application No. 2/2019, the original accused, Shraddha Gupta, against whom an FIR has been filed under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as the ‘Gangsters Act, 1986’), has filed the present appeals.”

To put things in perspective, the Bench then envisages in para 2 while dwelling on facts that, “The facts leading to the present appeals in nutshell are as under:

That a written report was made by respondent no.4 herein (original informant) on 24.05.2016 to the effect that her sister and her family members had previous enmity with the accused persons, namely, (1) Shravan Kumar (husband of the appellant herein), (2) Guddu @ Sudhanshu, (3) Munna @ Brajendranth Sharma, (4) Kamal Sharma and (5) Bhure. That on 23.5.2016, her sister Kumari Sadhna Sharma, Incharge, DGC(Crl.) in the Court of the District Judge, Badaun, had gone to the Court on her scooty to pursue the cases on behalf of the Government. Bhure and others had a hearing date in the Court of District Judge, Badaun for appearance. At about 5:30 p.m. her sister was returning from Badaun to Ujhani, sitting on the rear seat of the scooty being driven by her servant Bihari. When the scooty reached near Balaji temple, they saw a car parked near the temple in which all the abovenamed accused were present. The car followed the scooty of her sister Sadhna and when she reached near Jiorlia village, the car of the accused rammed into her sister’s scooty with the result both Sadhna and Behari fell on the road. Then the accused drove their car towards her sister, stopped it near Behari and shouted, ‘kill this fellow also otherwise he may also give evidence’. The accused, however, ran away on the arrival of the people. The incident was witnessed by the passer-by and with their help Behari took her sister to Badaun hospital in a vehicle. Her sister Sadhna died in the hospital. The complainant further stated that she had come to the hospital at 11:00 on getting the information and lost her consciousness on seeing the dead body of her sister. The autopsy of the deceased was conducted in the night. When she regained her consciousness, Behari told her the entire incident. After making arrangements for the last rites of her sister, she came to the police station to lodge the report. The complainant alleged that she apprehends the association of the former BJP MLA Yogender Sagar in the entire conspiracy. On the basis of this report, a case under Section 147 , 304, 504, 323, 506, 120-B IPC was registered against the above named six accused persons at P.S. Ujhani, District Badaun, vide Case Crime No. 337/2016 dated 24.05.2016.

2.1 That subsequently on 27.05.2017, a case under Sections 2/3 of the Gangsters Act, 1986 was registered against eight accused persons vide Case Crime No. 268/2017. The charge sheet was filed against the said eight accused persons on 26.5.2018 and the cognizance of the same was taken by the learned Special Judge under the Gangsters Act, Badaun on 2.7.2018.

2.2 It appears that thereafter on further investigation and on the basis of the call recordings between the co-accused, handed over to the Investigating Officer by the complainant, the names of the appellant – Shraddha Gupta, her husband Sharvan Gupta and Kamlesh Sharma, came to light and accordingly they were arrayed as accused in Case Crime No. 337/2016.

2.3 That in the course of investigation, it also revealed that the appellant – Shraddha Gupta, her husband – Sharvan Gupta and Kamlesh Sharma were also involved in the offence pertaining to the conspiracy of murder of deceased Sadhna Sharma. Therefore, supplementary charge sheet was also filed against the aforesaid three accused persons, namely, Shraddha Gupta, Sharvan Gupta and Kamlesh Sharma. That subsequently, it was brought to the notice of the Senior Superintendent of Police, Badaun, that the case under the Gangsters Act, 1986 has been registered only against eight accused persons and the charge sheet has been filed against eleven accused persons in Case Crime No. 337/2016.

2.4 Thereafter, a gang chart was prepared against the appellant and other two accused, which was sent to the Senior Superintendent of Police, District Badaun on 19.03.2019. That thereafter the Joint Director (Prosecution), Badaun granted approval on 1.4.2019 to register a case against the aforesaid three persons under Sections 2/3 of the Gangsters Act, 1986. SSP, Badaun, vide communication dated 2.4.2019 communicated to the Investigating Officer and accordingly FIR dated 27.05.2019 in Case Crime No. 268/2017 under Sections 2/3 of the Gangsters Act has been lodged/registered against the appellant and other two co-accused. Thus, the FIR for the offences under the Gangsters Act has been registered against eleven accused in all (eight accused charged earlier and the three accused including the appellant herein charge sheeted subsequently).

2.5 That the appellant herein filed the present Criminal Miscellaneous Writ Petition No. 21964/2019 before the High Court under Section 482 of the Criminal Procedure Code and prayed for the following reliefs:

i) Issue a writ, order or direction in the nature of certiorari to quash the orders dated 7.6.2019 and 2.4.2019 passed by the respondent no.3;

ii) Issue a writ, order or direction in the nature of certiorari to quash the impugned FIR dated 27.5.2017 as Case Crime No. 268/2017 under Section 2/3 Gangsters Act, P.S. Ujhani, Dist. Badaun, only to the extent of the petitioner;

iii) Issue a writ, order or direction in the nature of mandamus commanding respondents no. 2 and 3 not to arrest the petitioner in case Crime No. 268/2017 under Sections 2/3 Gangsters Act, P.S. Ujhani, District Badaun.

2.6 It was the case on behalf of the appellant that she has been falsely implicated in the case; she was not named in the FIR; in the FIR, no role has been assigned to her; her name has surfaced in further investigation under Section 173(8) Cr.P.C.; the Senior Superintendent of Police, Badaun maliciously submitted the supplementary gang chart against her approved by the District Magistrate, Badaun; that she is neither a gang leader nor a member of the gang being a household lady. It was also the case on behalf of the appellant-accused that solely on the basis of the single FIR/charge sheet, she cannot be charged for the offences under the provisions of the Gangsters Act.

2.7 That by the impugned order, the High Court has dismissed the said writ petition and has refused to quash the criminal proceedings under Sections 2/3 of the Gangsters Act. A review application was also filed which has also been dismissed.

2.8 Feeling aggrieved and dissatisfied with the impugned orders passed by the High Court dismissing the writ petition under Section 482 Cr.P.C. and dismissing the review application, the accused Shraddha Gupta has preferred the present appeals.”

Simply put, the Bench then enunciates in para 6 that, “The short question which is posed for the consideration of this Court is, whether, a person against whom a single FIR/charge sheet is filed for any of the anti-social activities mentioned in section 2(b) of the Gangsters Act, 1986 can be prosecuted under the Gangsters Act. In other words, whether a single crime committed by a ‘Gangster’ is sufficient to apply the Gangsters Act on such members of a ‘Gang’.”

It deserves mentioning that the Bench then observes in para 7 that, “While considering the aforesaid issues/questions, the relevant provisions of the Gangsters Act, 1986 are required to be referred to. The object and purpose of enactment of the Gangsters Act, 1986 is to make special provisions for the prevention of, for coping with, gangsters and anti-social activities and for matters connected therewith or incidental thereto. Section 2(b) defines ‘Gang’ and Section 2(c) defines ‘Gangster’. Sections 2(b) and 2(c) read as under:

“2(b) “Gang” means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in anti-social activities (Act no. 2 of 1974), namely—

(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code (Act no. 45 of 1860), or

(ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U.P. Excise Act, 1910 ( U.P. Act no. 4 of 1910) or the Narcotic Drugs and Psychotropic Substances Act, 1985 or any other law for the time being in force, or

(iii) occupying or talking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or (Act no. 61 of 1985)

(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or

(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Art, 1956, or

(vi) offences punishable under section 3 of the Public Gambling Act, 1867 ( Act no. 104 of 1956), or

(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking for any lease or right or supply of goods or work to be done, or

(viii) preventing or disturbing the smooth running by any person of his lawful business profession, trade or employment or any other lawful activity connected therewith, or

(ix) offences punishable under section 171-E of the Indian Penal Code, or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or

(x) inciting others to resort to violence to disturb communal harmony, or

(xi) creating panic, alarm or terror in public, or

(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or

(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or

(xiv) kidnapping or abducting any person with intent to extort ransom, or

(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course;

(c) “gangster” means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities.”

7.1 Section 3 of the Gangsters Act, 1986 provides for punishment, which reads as under:

“3. (1) A gangster shall be punished with imprisonment of either description for a term which shall not be less than two years and which may extend to ten years and also with fine which shall not be less than five thousand rupees:

Provided that a gangster who commits an offence against the person of a public servant of the person of a member of the family of a public servant shall be punished Kith imprisonment of either description for a term which shall not be less than three years and also with fine which shall not be less than five thousand rupees,

(2) Whoever being a public servant renders any illegal help or support in any manner to a gangster, whether before or after the Commission of any offence by the gangster (whether by himself or through others) or abstains from taking lawful measures or intentionally avoids to carry out the directions of any court or of his superior officers, in this respect, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than three years and also with fine.”

7.2 Section 5 of the Gangsters Act provides for constitution of Special Courts for the speedy trial of the offences under the Act. Section 6 provides that a Special Court may, if it considers it expedient or desirable so to do, hold its sitting for any of its proceedings at any place, other than the ordinary place of its sitting or seat. Section 8 of the Act provides that when trying any offence punishable under the Gangsters Act, a Special Court may also try any other offence with which the accused may, under any other law for the time being in force, be charged at the same trial. Under Section 9 of the Gangsters Act, the State Government shall appoint a person to be the Public Prosecutor for every Special Court. Section 10 provides that a Special Court may take cognizance of any offence triable by it, without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. Section 12 provides that the trial under the Gangsters Act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other court ( not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance. Section 13 of the Gangsters Act provides that where, after taking cognizance of any offence, a Special Court is opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such an offence, transfer the case for trial of such offence to any other court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it has taken cognizance of the offence.”

It can be thus surmised from what is stated above as noted in para 8 that, “From the aforesaid, it can be seen that all provisions are to ensure that the offences under the Gangsters Act should be given preference and should be tried expeditiously and that too, by the Special Courts, to achieve the object and purpose of the enactment of the Gangsters Act.”

Most significantly, the Bench then minces no words to unequivocally state in para 9 that, “Now so far as the main submission on behalf of the accused that for a single offence/FIR/charge sheet with respect to any of the antisocial activities, such an accused cannot be prosecuted under the Gangsters Act, 1986 is concerned, on a fair reading of the definitions of ‘Gang’ and ‘Gangster’ under the Gangsters Act, 1986, it can be seen that a ‘Gang’ is a group of one or more persons who commit/s the crimes mentioned in the definition clause for the motive of earning undue advantage, whether pecuniary, material or otherwise. Even a single crime committed by a ‘Gang’ is sufficient to implant Gangsters Act on such members of the ‘Gang’. The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.

A group of persons may act collectively or anyone of the members of the group may also act singly, with the object of disturbing public order indulging in anti-social activities mentioned in Section 2(b) of the Gangsters Act, who can be termed as ‘Gangster’. A member of a ‘Gang’ acting either singly or collectively may be termed as a member of the ‘Gang’ and comes within the definition of ‘Gang’, provided he/she is found to have indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act.”

No less significant is what is then stated in para 10 that, “On a fair reading of the definitions of ‘Gang’ contained in Section 2(b) and ‘Gangster’ contained in Section 2(c) of the Gangsters Act, a ‘Gangster’ means a member or leader or organiser of a gang including any person who abets or assists in the activities of a gang enumerated in clause (b) of Section 2, who either acting singly or collectively commits and indulges in any of the anti-social activities mentioned in Section 2(b) can be said to have committed the offence under the Gangsters Act and can be prosecuted and punished for the offence under the Gangsters Act. There is no specific provision under the Gangsters Act, 1986 like the specific provisions under the Maharashtra Control of Organized Crime Act, 1999 and the Gujarat Control of Terrorism and Organized Crime Act, 2015 that while prosecuting an accused under the Gangsters Act, there shall be more than one offence or the FIR/charge sheet. As per the settled position of law, the provisions of the statute are to be read and considered as it is. Therefore, considering the provisions under the Gangsters Act, 1986 as they are, even in case of a single offence/FIR/charge sheet, if it is found that the accused is a member of a ‘Gang’ and has indulged in any of the anti-social activities mentioned in Section 2(b) of the Gangsters Act, such as, by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person and he/she can be termed as ‘Gangster’ within the definition of Section 2(c) of the Act, he/she can be prosecuted for the offences under the Gangsters Act. Therefore, so far as the Gangsters Act, 1986 is concerned, there can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person.”

As we see, the Bench then points out in para 11 that, “In the present case, it is alleged that the main accused P.C. Sharma was a gang leader and who was the mastermind and he hatched the criminal conspiracy along with other co-accused including the appellant herein to commit the murder of the deceased Sadhna Sharma for a pecuniary benefit as there was a property dispute going on since long between the family members. It is also to be noted that the other co-accused were already charge sheeted/prosecuted for the offence under the Gangsters Act and therefore the appellant and the other two co-accused being members of the ‘Gang’ were also required to be prosecuted for the offences under the Gangsters Act also like other co-accused. Therefore, in the facts and circumstances of the case, it cannot be said that no prosecution could have been initiated against the appellant-accused for the offences under Sections 2/3 of the Gangsters Act, 1986.”

Finally, the Bench then concludes by holding in para 12 that, “In view of the above discussion and for the reasons stated above, the High Court has rightly refused to quash the criminal proceedings against the appellant-accused under Sections 2/3 of the Gangsters Act, 1986, in exercise of powers under Section 482 Cr.P.C. We are in complete agreement with the view taken by the High Court. Under the circumstances, the present appeals fail and the same deserve to be dismissed and are accordingly dismissed.”

In conclusion, the Apex Court has made it indubitably clear that the prosecution under the UP Gangsters Act is permissible even in case of single FIR/charge sheet for anti-social activities. It thus merits no reiteration that the Apex Court has very rightly refused to quash the criminal proceedings against the accused under the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986. There can be just no denying or disputing it!

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Legally Speaking

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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