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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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Legally Speaking

Former AAP Minister Moves Delhi High Court, Seeks Removal Of Kejriwal From CM’s Post

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In the case Sandeep Kumar v. Arvind Kejriwal and Others, the Delhi High Court observed a petition filed by Aam Aadmi Party MLA Sandeep Kumar seeking the removal of Arvind Kejriwal from the post of Chief Minister of Delhi. Arvind Kejriwal is presently in judicial custody related to an Enforcement Directorate (ED) case concerning the excise policy. This is the third petition seeking such a prayer, with the previous two pleas being rejected by the Division bench headed by Acting Chief Justice Manmohan.

Sandeep Kumar approached the court as a Court of first instance in writ jurisdiction, not as a Public Interest Litigation (PIL), in his individual capacity. He, being a lawyer by profession, claims to be a founding member of the Aam Aadmi Party and a social worker.

The plea filed seeks the issuance of a writ of quo warranto against Kejriwal, calling upon him to show by what authority, qualification, and title he is holding the office of the Chief Minister of Delhi. Additionally, the plea prays for an inquiry to dislodge Kejriwal from the office of the Chief Minister, with or without retrospective effect.

Kumar claims that as a voter of the Delhi Assembly Election, he is personally aggrieved for having a Chief Minister for his Union Territory who has incurred an ‘incapacity to hold the post’ and ‘who can never function as the Chief Minister from custody or prison’ as envisaged by the Constitution of India.

The petitioner argues that Kejriwal has incurred an incapacity to carry out his functions as the Chief Minister of Delhi under the Constitution and therefore, he cannot hold the post. The plea emphasizes that the right to have a government in accordance with the Constitution is a Constitutional Right of every citizen and voter.

Arvind Kejriwal was arrested on the night of March 21 and subsequently remanded to judicial custody until April 15. However, the court refused to entertain a Public Interest Litigation (PIL) seeking Kejriwal’s removal from the post of Chief Minister, observing that there is no scope for judicial interference in the matter, and it is for other organs of the State to examine the issue.

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Delhi High Court Reserved Verdict On Arvind Kejriwal’s Plea Challenging ED Arrest In Liquor Policy Case

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The Delhi High Court in the case Arvind Kejriwal v. Directorate Of Enforcement observed and has reserved verdict on the plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate, ED in the money laundering case related to the alleged liquor policy scam case.

The bench headed by Justice Sharma in the case observed and has denied any interim relief to Kejriwal and only issued notice on his plea challenging the arrest, as well as his interim application seeking immediate release.

In the present case, Kejriwal is currently in judicial custody. Kejriwal was being arrested on the night of March 21.

The Trial Court in the case remanded him to six days of ED custody, which was extended by further four days. On April 01, he was remanded to judicial custody till April 15.

It has been stated by the Enforcement Directorate, ED that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in its possession that he was guilty of the offence of money laundering.

It has also been alleged that the Aam Aadmi party was the ‘major beneficiary’ of the proceeds of the crime and has committed the offence through Kejriwal.

The response stated that, the Aam Aadmi Party, AAP is the major beneficiary of the proceeds of crime generated in the Delhi Liquor Scam. The Sh Arvind Kejriwal was and is not only the brain behind the AAP but also controls its major activities, he was also one of the founding members and was also involved in the decision making of the policy as evident from the statements of the witnesses.

Arguments:

The counsel, Additional Solicitor General SV Raju told the Court that investigation qua the sitting CM is at a nascent stage. Thus, he also pointed that Kejriwal has not challenged the latest order remanding him to 15 days judicial custody. He has also challenged the first remand order. Please look at the remand order of 26 March. Today we are on April 3. The second remand order is passed on March 28. That has not been challenged. Thus, the third remand order of judicial custody has not been challenged. So today his custody isn’t pursuant to arrest or first remand order, it’s pursuant to April 1 order which has not been challenged. Therefore, Raju also wondered if Kejriwal can challenge his remand since he did not oppose it. ‘He voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver? They are blowing hot and cold at the same time. You cant challenge the remand order and say please pass the order and accept it. They have not challenged the latest orders pursuant to which he is in custody. Thus, custody can’t be said to be illegal.”

The counsel, Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal argued before the court that the central probe agency did not comply with Section 50 PMLA which empowers it to issue summons, collect evidence, etc. thus, it being clear that section 50 involves an inquiry. Because it’s inquiry which enables ED to make up mind about arrest and prosecution. No attempt is made to record my section 50 even at my residence. While pointing out the remand application he added ED wants to “find out” the role of Chief Minister. ‘Surely that’s not a ground for today’s arrest… There has to be specific role of the petitioner, even for the company, which I’m denying.’

On the other hand, it has been argued by the ASG that the fact that a PMLA offence has taken place is clear and beyond any doubt. Because as far as first Police Custody and subsequent Police Custody is concerned, court has taken cognizance… Categorical finding that there is money laundering. Cognizance of the offence of money laundering. Nobody has challenged the order.

It has also been contended by the Singhvi that ED forced the approvers Raghav Magunta, Sarath Reddy and Magunta Reddy to make statements against Kejriwal. Further, it has been alleged that two approvers even have links with the ruling party. Adding to it, Singhvi stated that initial statements that did not implicate Kejriwal are not even put on record by the ED. ‘These statements are kept in unrelied. Why should the court not see it? Is it fair? What cannon of fairness are you carrying ED? Out of 13 statements by this Reddy. He says nothing in 11 statements. The judge will go by one statement?’

He also questioned the necessity of arrest amid upcoming general elections. The test is not can arrest. It is demonstrating the necessity to arrest. The should arrest test. The necessity to arrest immediately before elections… the only object is to insult, humiliate and disable… So that the petitioner is unable to participate in the election process and to try to demolish the party before the first vote is cast. The timing reeks of basic structure issue, free and fair election issue and democracy issue. What is this urgency or necessity?

Further, Singhvi stated that it said to be a flight risk, given his deep roots in the society. Responding to this ASG stated that, supposing a political person commits murder two days before elections. This means he can’t be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases there is no infringement of basic structure.

Further, it has been argued by ASG that calculation was done as to why 5 percent profit was made 12 percent in the new policy. “Only inference is that it was done so that 7 percent of portion is used for giving kickbacks. The fact that there is a scam is beyond doubt. Howsoever hue and cry you make, its a fact that a scam was there… Finding of the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering.

Facts of the Case:

Kejriwal had skipped nine summons issued to him by ED. The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. While following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later. Kejriwal has previously moved the Delhi High Court, the division bench wherein it challenged the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22. The Kejriwal has skipped the summons, claiming that they are illegal.

It has also been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. It being the case of ED’s that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. Further, it has also been claimed by the Central agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers. According to the agency, Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia.

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Delhi High Court CM Arvind Kejriwal’s ED Custody extended By 4 Days Till April 1 In Liquor Policy Case

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The Delhi High Court in the case Surjit Singh Yadav v. Union Of India observed and has remanded the Chief Minister Arvind Kejriwal to Enforcement Directorate, ED custody till April 01 in the money laundering case which relates to the alleged liquor policy scam case. Arwind Kejriwal was being arrested on the night of March 21, 2024. The Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced in court on the expiry of his six days of Enforcement Directorate, ED custody.

The Delhi High Court in the case declined any interim relief to Kejriwal and only issued notice on his plea challenging the arrest and remand. The counsel, Additional Solicitor General SV Raju told the court that the sitting CM was giving “evasive replies” during interrogation and the agency needs to confront him with some individuals who have been summoned from Goa. Thus, ED sought 7 more days of custody. He doesn’t get exonerated if he is a CM. There is no different standards for a CM. Right to arrest a CM is no different from an ordinary man.”

Yesterday, the Enforcement Directorate, ED summoned AAP’s Goa unit chief Amit Palekar and some other party leaders for questioning. Thus, they have been asked to appear at the agency’s Goa office on March 28, 2024. Further, the Kejriwal while appearing in person submitted before the court that he is not opposing remand. He claimed the entire case is a ‘political conspiracy’ and there is no such material against him. It has also been alleged by the Delhi CM that the central probe agency was collecting selective material and even the approver was forced to make a statement against him. Further, the central probe agency submitted before the court that Kejriwal has refused to share the password of his mobile phone.

Adding to it, Kejriwal responded that ED cannot force him to unlock his electronic gadgets. Delhi High Court Rejected PIL For Removal Of Arvind Kejriwal From Post Of Chief Minister The Delhi High Court rejected the Public Interest Litigation, PIL moved seeking removal of Arvind Kejriwal, who has been arrested by the Enforcement Directorate, ED in the liquor policy case, from the post of Chief Minister of Delhi. The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that the petitioner failed to show any bar in the law which prohibits the arrested CM from holding office. The CJI orally stated that, ‘Show us, where is the prohibition. Show us any legal bar which you’re canvassing’.

Further, the bench stated that there is no scope for judicial interference in the matter and the executive is examining the issue. The court in the case observed that if there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this. In the present case, the petition is moved by one Surjit Singh Yadav, a Delhi resident claiming to be a farmer and social worker. It has been claimed by him before the court that a Chief Minister accused of a financial scandal should not be permitted to continue in public office. Kejriwal is presently in ED custody which ends on March 28, 2024. It has been submitted by Yadav in the PIL that Kejriwal’s continuation in the post would not only lead to obstruction of due process of law and disrupt the course of justice, but also would lead to a breakdown of the constitutional machinery in the State as Kejriwal does not satisfy most of the limbs of Article 163 and 164 of the Constitution of India owing to his incarceration.

Further, the plea stated that the Respondent No.4 has virtually forfeited his office as a Chief Minister of account of being arrested and as he is in the Custody he has disabled himself from performing the duties and responsibilities of being a public servant and as such he ought not to continue as a Chief Minister. Therefore, the AAP Ministers have been making statements in the media that Kejriwal will not resign from the post and if need be, he will run the government from inside the prison.

It has been submitted by Yadav that a jailed CM would be incapable of transacting any business that the law enjoins upon him and if he is allowed to do so, any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches Kejriwal’s hands and such an act would amount to direct breach of oath of secrecy administered to the CM under the Third Schedule of the Constitution. Further, the plea stated that the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 empowers a CM to call for files from any department of the Cabinet and if Kejriwal continues as CM, he would be well within his rights to demand for the investigation of files wherein he has been arraigned as an accused.

The plea states that, such a situation is against the ethos of Criminal Jurisprudence. Therefore, Yadav had prayed the Court to issue a writ in the nature of Quo Warranto, calling upon Kejriwal to answer under what authority he is holding the post of CM and consequently remove him. However, Yadav has also filed another PIL seeking to prevent Kejriwal from issuing directions or orders while in ED custody. About The Case: The Kejriwal had skipped nine summons which were issued to him by the Enforcement Directorate, ED.

The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. The Kejriwal while following the arrest of him had promptly moved an urgent petition before the Supreme Court challenging his arrest. Later, the same was withdrawn. Therefore, Kejriwal has previously moved the Delhi High Court (division bench) challenging the summons issued to him by the central probe agency. Further, the Kejriwal has also filed an application seeking interim protection.

The matter was fixed for hearing on April 22. It has been alleged by ED that two criminal complaints had been filed against Kejriwal in city’s Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal. It has been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores.

It being the case of ED that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. It has been claimed by the Central Agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.

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Supreme Court: Plea To Stay Citizenship Amendment Act

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The Supreme Court in the case was hearing the application filed to stay the Citizenship Amendment Act 2019 and the Citizenship Amendment Rules 2024.

The bench comprising of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra was hearing the present matter. In the present case, the court was hearing the 237 writ petitions challenging the CAA, filed in 2019.

Therefore, these petition before the Court on October 31, 2022. The Union Government notified the Citizenship Amendment Rules 2024 to implement the CAA and notified the formation of committees at the State or UT levels to process the applications on March 11.

The petitioner are Political party Indian Union Muslim League (IUML, the lead petitioner in the case), Democratic Youth Front of India (DYFI, youth wing of the CPI(M)), All Assam Students Union, Assam opposition leaders Debrabata Saika and Abdul Khaleque, State of Kerala, AIMIM head Asaduddin Owaisi, Socialist Democratic Party of India etc.,

The Senior Advocate Kapil Sibal told the court that there was no question of a pause back then since the rules were not notified. Adding to it, Solicitor General Tushar Mehta then said that the fact that the rules were notified before the elections was irrelevant.

The party leader Jairam Ramesh has stated that, the pposition has slammed the Narendra Modi government over the timing of the law’s implementation – four years after it cleared the Parliament. The move is “evidently designed to polarise the elections, especially in West Bengal and Assam”.

Further, the Trinamool Congress chief and Bengal Chief Minister Mamata Banerjee stated that she doubts the legality of CAA and alleged a conspiracy to “snatch citizenship rights. The Bengal Chief Minister Mamata Banerjee says that, BJP leaders say CAA gives you rights. But the moment you apply for citizenship, you become illegal migrants and you will lose your rights. You will lose rights and be taken to detention camps. Please think before you apply. The Centre has trashed the Opposition’s allegations. Stressing that the CAA is not “unconstitutional”, Home Minister Amit Shah has accused the Opposition of resorting to the “politics of lies”.

Amit Shah stated that, On the timing of the law’s implementation, “BJP made it clear in its 2019 manifesto that it will bring CAA and provide Indian citizenship to refugees (from Pakistan, Bangladesh and Afghanistan). BJP has a clear agenda and under that promise, the Citizenship (Amendment) Bill was passed in both houses of Parliament in 2019. It got delayed due to Covid.” Further, Amit Shah stated that, minorities of the country “need not be afraid because CAA has no provision to take back the rights of any citizen”.

Court Hearing:

The bench passed an order appointing separate nodal counsels for petitions which relates t0o States of Assam and Tripure. The Adv Ankit Yadav appointed for the petitioners’ side and Adv Kanu Agarwal for the Petitioners.
Sibal: the moment something like this happens, give us liberty to move here.
CJI: We are here.
Jaising : Would your lordships be pleased to say that any citizenship granted will be subject to the outcome of the petitions.
SG : No, no.
CJI : They don’t have the infrastructure in place, the committee..
SG : This attempt was made outside the court four years back. Misleading people that you will be out of NRC. Same thing Mr. Pasha did. NRC is not an issue here. Grant of citizenship is. Please don’t do this. Nizam Pasha : Muslim members left out of NRC will be prejudiced.. 19 lakhs people left out of NRC, it applies to them.
SG : NRC is not an issue
CJI : They are not willing to make a statement, that is why we keep on April 9.
Sibal : If something happens, we will come..
CJI : What we will do is we will keep on April 9, 2024.
Jaising : In the meantime no citizenship.
SG : I am not making any statement.
SC : We direct the proceedings be listed on April 9, 2024.
Sibal : In meantime no citizenship be granted.
SG: Realistically speaking, I need 4 weeks.
CJI : You can file response in one case, opposing interim prayer.
SG : Many matters have different contentions.
Sibal : Then make a statement that no citizenship will be granted
CJI dictates order : On 22.01.2020 notice was issued. The rules have been
recently notified. This has given rise to applications for stay. SG submits that 4 weeks’ time be granted to file response. The request of 4 weeks’ time is opposed on the ground that in the meantime if citizenship is granted, it will be irreversible.
Sibal : There are serious issues of constitutionality.
Sr Adv Ranjit Kumar (for migrant) : From Balochistan, I came to India because I was persecuted. If I am given citizenship, how is it affecting them?
Jaising : They will get the right to vote!.

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Legally Speaking

Delhi High Court: ED summons cannot be quashed merely because documents required for confrontation or probe not specified in it

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The Delhi High Court in the case Mr Talib Hassan Darvesh v. The Directorate Of Enforcement observed and has said that the summons issued by Enforcement Directorate, ED cannot be quashed merely because relevant documents are required for investigation or confrontation with an accused who have not been specified in them.

The bench of Justice Anoop Kumar Mendiratta in the case observed and has stated that the summoning, in exercise of statutory powers, cannot be stalled merely on mere apprehension that the accused may be arrested and prosecuted on basis of summons issued after registration of ECIR in the proceedings which are initiated by the Enforcement Directorate, ED. The court in the case observed and has denied the interim relief to Talib Hassan Darvesh, the accused in the money laundering case.

Before the court, he also sought a stay on the summons which is issued to him by Enforcement Directorate, ED and to restrain the probe agency from taking any further coercive steps against him. Therefore, the Enforcement Directorate, ED opposed the petition which being on the ground that Darvesh cannot be insulated from any coercive action at the initial stage itself and no protective orders could be passed in his favour, ignoring the mandate of Section 45 of PMLA.

It has also been submitted before the court that the proceedings which are initiated by ED were an independent investigation into money laundering allegations based upon the ECIR and the benefit could not be granted which being merely on account of orders granting anticipatory bail to Darvesh in FIR registered by CBI.

The court stated while denying the relief that the summons issued by the Enforcement Directorate, ED cannot be quashed merely because the relevant documents required for purpose of investigation or confrontation to the petitioner, have not been specified in the summons. Adding to it, the court stated that since ECIR is an internal document which is being created before initiation of prosecution against persons involved with process or activity connected with proceeds of crime and it is not necessary to reveal the evidence collected by the Enforcement Directorate, ED at this stage in the summons forwarded to Darvesh.

Further, the court stated that the petitioner is yet to be absolved of scheduled offence by way of discharge, acquittal or quashing and as such protection orders cannot be issued in favour of petitioner ignoring the mandate as it is stated under Section 45 of PMLA, 2002 for grant of bail. Further, the court stated that summoning in exercise of statutory powers cannot be stalled merely on mere apprehension that petitioner may be arrested and prosecuted on basis of summons issued after registration of ECIR, in proceedings initiated by Enforcement Directorate, ED.

The court while considering the facts and circumstances of the case observed and found no grounds for interim relief to be made out at this stage, thus, the court disposed of the plea. Accordingly, the court the petition seeking to quash of the ECIR and summons for hearing on May 07.

The counsel, Advocates Mr. Siddharth Luthra and Mr. Siddharth Agarwal, Sr. Advs. with Mr. Ayush Agarwal, Mr. Udhav Sinha, Mr. Amar Gahlot, Ms. Srishty Jaura, Mr. Nalin Bajaj, Ms. Purvi Garg and Mr. Prashant Singh appeared for the Petitioner. The counsel, Advocates Mr. Zoheb Hossain, Special Counsel for E.D. with Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Abhigiya represented the respondent.

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Legally Speaking

Delhi High Court ceases mandate of unilaterally appointed arbitrator under general conditions of contract

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The Delhi High Court, in the case Chabbras Associates vs M/s Hscc (India) Ltd and Anr., observed and rejected the contention presented by the Respondent that the unilateral appointment of the arbitrator made in accordance with the contract cannot be challenged, and the only option available to the petitioner is to challenge the mandate of the arbitrator.

The single bench of Justice Dinesh Kumar Sharma observed and emphasized that the unilateral appointment of an arbitrator as stipulated in Clause 25 of the GCC was inherently and blatantly unlawful.

Facts of the Case:

Therefore, the Petitioner approached the Delhi High Court, seeking arbitrator appointment but was directed to exhaust dispute resolution mechanisms in the work agreement or GCC. The Petitioner sought resolution from Respondent No.2, the appealing authority, who rejected the claims on June 14, 2023. The Petitioner, having exhausted all remedies, formally requested the appointment of a fair, neutral, and unbiased arbitrator as per Clause 25 of GCC.

On the other hand, Respondent no.2 unilaterally appointed a Sole Arbitrator without the Petitioner’s concurrence. Further, the Petitioner argued that this appointment violated principles of neutrality, independence, and impartiality.

The respondent argued before the court that the arbitrator’s appointment aligned with the arbitration agreement and since the Petitioner did not challenge the mandate, the petition should be dismissed.

Observations Made by High Court:

The High Court observed and held that it is a well-established legal principle that an arbitration agreement allowing only one party the exclusive right to appoint an arbitrator is inherently flawed and contrary to legislative intent.

The court also referred to the Supreme Court decision in the case Perkins Eastman Architect DPC and Anr. vs. HSCC, wherein the High Court held that the unilateral appointment of an arbitrator is invalid. It firmly held that the provision in Clause 25 of the GCC, empowering unilateral appointment, is vitiated.

The court, while rejecting the contentions of the respondent that the appointment aligned with the contract and challenging the arbitrator’s mandate was the only recourse, held that the unilateral appointment, as per Clause 25 of GCC, was legally flawed. The court stressed that allowing such illegality to persist merely because the petition was filed under Section 11 of the Arbitration Act, and not under Section 14 and Section 15, was not acceptable.

The High Court, considering the facts and circumstances of the case, held that the arbitrator’s mandate shall cease to operate. The court appointed Justice Vipin Sanghi, Former Chief Justice, Uttarakhand High Court, as the sole arbitrator to adjudicate the disputes between the parties.

Advocate Ms. Krishna Parkhani appeared for the Petitioner, while Advocates Mr. Harshit Agarwal, Mr. Kamal Kumar, and Mr. Baldev Singh represented the Respondent no.1 and respondent no.2.

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