Important Legal Issues and Court decisions on Service Tax
April, 10th 2009
The validity of Service tax has been challenged in various courts of India, who have in their various decisions have upheld the legality of the levy. Few important decisions in this regard are given below.
The Gujarat High Court in the case of Addition Advertising vs. Union of India (1998 (98) ELT 14) has held that levy of tax on advertising service is not unconstitutional. It was held that this is not a tax on any profession, trade, calling or employment, but in respect of service rendered. If there is no service, there is no tax. It was further held that ‘the tax is not on advertisement’ but on the services rendered with reference to the advertisement and there is a clear distinction between the advertisement service and advertisement.
In another case of M/s. Laghu Udyog Bharati v/s. UOI (1999 (89) ELT 247) the petitioners challenged the Government’s decision to shift the burden of duty liability to the service receivers in case of Goods Transport Operators and Clearing & Forwarding Agents. In this case, the Hon’ble Supreme Court upheld the contention of petitioners and held that the relevant provisions of Service Tax Rules were ultra vires the Finance Act, 1994.
The Hon’ble Supreme Court while deciding the case, observed as follows :-
“The service tax levied by reason of services which are offered. The imposition is on the person rendering the service. Of course, it may be indirect tax, it may be possible that the same is passed on to the customer but as far as the levy and assessment is concerned, it is the person rendering the service who alone can be regarded as an assessee and not the customer. This is the only way in which the provision can be read harmoniously.
The Hon’ble Apex Court further opined that “The charge of tax is on the value of services and it is only the person who is providing service can be regarded as an assessee. The rules, therefore, cannot be so framed which do not carry out the purpose of the Chapter (Statute) and cannot be in conflict with the same.”
A number of trade bodies and individual service providers have challenged the levy of service tax by the Union Government under the residuary entry No.97, list I in VIIth Schedule of the Constitution. They contended that the service tax is nothing but a tax on professions, which is specifically listed, in the State list. Therefore, the Union Government is not empowered to levy service tax on professional services. Additionally, the levy has also been challenged on the grounds of hostile discrimination vis-à-vis other services and/or the service providers within the same category. The Institute of Architects and certain representative bodies of Chartered Accountants have been in the forefront of this litigation. However, this challenge has not found favour with the courts.
The Gujarat High Court in its judgement dt.27.12.2000 (in SCA No.469/1999 and 7220/1999) and the Mumbai High Court in the judgement dt. 22.02.2001 (in the W/P no. 142/1999 and 1174/2000) have held that the tax on profession (which is in the State list) is a tax on the privilege of carrying on such profession. Therefore, such a tax is irrespective of the fact whether professional does or does not render professional service for remuneration. Whereas the service tax is a levy, which has to be paid each time a professional renders services for remuneration. Thus, professional tax and service tax are different in pith and substance. Further, the legislature is competent to identify and reasonably discriminate between various services and service providers for the purposes of taxation. Therefore, there is no ground to challenge the levy on the grounds of discrimination. The Madras High Court have also taken the same view in a plethora of petitions pending before them.
A number of trade bodies and individual service providers have challenged the levy of service tax by the Union Government under the residuary entry no. 97, list I in Seventh Schedule of the Constitution. They contended that the service tax nothing but a tax on professions, which is specifically listed, in the State list. Therefore, the Union Government is not empowered to levy service tax on professional services. Additionally, the levy has also been challenged on the grounds of hostile discrimination vis-à-vis other services and/or the service providers within the same category. The Institute of Architects and certain representative bodies of Chartered Accountants have been in the forefront of this litigation.
Considering the importance of early resolution of these disputes, the Directorate actively pursued such cases pending in Ahmedabad, Mumbai and Chennai High Courts have upheld the constitutional validity of the service tax law provisions contained in the Chapter V of the Finance Act, 1994 as amended and the Rules framed thereunder.

31 new posts sanctioned for MPCB
10 Apr 2009, 0535 hrs IST, TNN
PUNE: Following the recent orders from the Bombay high court (HC), the state government has sanctioned 31 posts of various ranks in the Maharashtra Pollution Control Board (MPCB). Acting on a PIL, the HC directed the state to fill the vacant posts to ensure effective implementation of norms in disposing of bio-medical waste (BMW) across the state. The HC has directed the state to co-operate with the board for expeditious implementation of the norms. Speaking to TOI, Sanjay Khandare, a member secretary of MPCB, said, “The HC order shows how keen the judicial body is on proper compliance of the norms.” We have already initiated the recruitment process, Khandare added. MPCB’s regional officer P K Mirashe said, “The HC ordered the board to strengthen its surveillance system to check violation of BMW disposal rules after the PIL was filed. When we informed the court about insufficient manpower, it directed the state to sanction the posts.” Mirashe said, “With the new manpower being sanctioned, it will be possible to check the rampant violation of the Bio-medical Waste (management and handling) Act, 1998, with renewed vigour and force. It would enhance our surveillance system, which in turn, will lead to surprise raids at BMW-generating units and speedy solving of defaulters’ cases.” The sanctioned posts include those of various grades and ranks, including sub-regional officers, field officers and junior research fellows, among others.

Tree-felling allowed after citizens complained: authority to HC
Express News Service
Posted: Apr 10, 2009 at 0538 hrs IST
Mumbai Procedure for seeking permission to cut trees for redevelopment is faulty, says PIL
The Tree Authority has informed the Bombay High Court that they allowed felling of dead and dangerous trees after receiving complaints from citizens.
Tree officer Vijaykumar Dande states in an affidavit that after several complaints are received from citizens regarding dead/dangerous trees or branches, the Municipal Commissioner, who is the chairman of the Tree Authority, calls for a report. Depending upon the report, the Tree Authority grants permission for cutting off dead and dangerous branches.
The court was hearing a PIL challenging the procedure followed for cutting trees in Mumbai. Awaaz Foundation, an NGO, had alleged that the procedure for seeking permission to cut trees for redevelopment is faulty. The court, during last hearing, had sought figures of number of trees cut in during 2008-09.
Dande’s affidavit states that permission has been granted for chopping off 1,178 trees and felling of 641 dead trees have also been permitted. Further 5,824 trees have been permitted to cut for various developmental projects of government and private properties.
As for planting of trees, the affidavit states that 5,764 trees were planted departmentally by the corporation on roads, playgrounds, recreation grounds, open spaces, hospitals, schools and cemeteries.
Since agencies like MMRDA (Mumbai Metropolitan Region Development Authority) and private parties are directed to plant double the number of trees cut, 11,994 trees were planted in 2008-09, Dande’s affidavit says.
It adds that for 2008-09 fiscal year, a budget of Rs 25 crore had been set aside towards maintenance and planting of trees. However, only a sum of about Rs five crore was spent.
The court questioned why the entire amount was not used.
The Division Bench headed by Chief Justice Swatanter Kumar has now asked the petitioner to send their queries to the Tree Authority which it will have to reply before the next hearing on April 30.
According to petitioner Sumaira Abdulali, the authority is always the last one to know about trees that have been cut and doesn’t follow proper procedure for cutting trees.
It is the responsibility of the authority to maintain greenery in the urban areas. The ‘Tree Cess’ collected as part of the property tax amounting to about Rs 100 crore has accumulated with the authority but is not being used properly, the PIL alleged.
The petition further contends that “there is a clear and direct nexus between the builders and the officials of the BMC and the Tree Authority.”

HC order status quo on construction of overbridge
10 Apr 2009, 0508 hrs IST, TNN
LUCKNOW: The high court has directed the state government and state bridge corporation to maintain status quo on construction of an overbridge being constructed from the irrigation office on Birbal Sahni Marg via Hanuman temple to Nadwa Gate near Daliganj bridge till further hearing. The court has directed the government for filing counter-affidavit within two weeks and posted the matter for next hearing after two weeks. The order was passed by a division bench comprising chief Justice Chandramauli Kumar Prasad and Justice Pradeep Kant on a public interest litigation (PIL) filed by lawyer Jayant Singh Tomar. The bench directed chief standing counsel Devendra Upadhyaya to place before it the entire plan of the government regarding construction of the overbridge. The records were produced and the judges perused the documents, including the noting of an official which stated that the construction of the overbridge be hurried as the chief minister had desired to inaugurate it shortly. The bench said that ordinarily it did not interfere in such matters but since the issue related to the safety of masses, it was necessary to look into the matter. The petitioner pleaded that the construction was the criminal waste of public money. He contended that there was more necessity of overbridge and flyover to ease traffic congestion on IT crossing, Kaisarbagh crossing, Daliganj crossing and Aminabad. But only to gain political mileage and votes of a particular community, the said construction was being made. It was also stated that the authorities did not bother to obtain an NOC from structural engineers and environmentalists.

Shifting IPL hurts national image: PIL
Legal Correspondent
New Delhi: The Supreme Court has been moved for a direction to the Centre to provide adequate security to the Board of Control for Cricket in India for holding the Indian Premier League tournament in the country.
A Bench consisting of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam declined to give an early date for hearing this public interest litigation petition by Harsh Vardhan Surana and Pradeep Aggrawal, and directed that it be listed for April 20.
Counsel for the petitioners said the tournament was to begin on April 18 and shifting the matches to South Africa hurt the country’s prestige and image, and it was also a huge business loss to Indian industry.
Centre fails
He said the government had failed to take steps to stop the tournament going out of India. The CJI told counsel, “For some people election is more important than cricket.”

Supreme Court refuses plea for conducting census on caste lines
New Delhi (PTI): The Supreme Court on Thursday declined to entertain a PIL by the Pattali Makkal Katchi (PMK) seeking a direction to the Centre to conduct census on caste lines saying these are policy matters and courts can neither interfere nor give any directions.
“How can we give such directions?” a Bench comprising Chief Justice K G Balakrishnan and P Sathasivam, said when senior advocate Ravi Verma Kumar, appearing for PMK, said such a census was necessary for identification of Other Backward Classes (OBC).
He said the lists of OBC have not been renewed for the last 10 years and the party has given several representation to the government in this regard.
However, the Bench said these are policy matters and “courts can neither interfere nor give any directions”.
In a lighter vein, the bench said the PMK can try its luck when the next government is formed.
“Wait for the new government. You may be in that,” the Bench said.
The PIL had said “in India, the caste system represents not only a social division but also a political and occupational division of society. Therefore, for planning and development, collection of details about each and every caste and tribe in the country is a must.”

IPL hot but leaves CJI cold
April 9, 2009 by admin
Times Online IPL hot but leaves CJI cold Times of India, India NEW DELHI: The whole country may be going nuts over it but the IPL has left Chief Justice KG Balakrishnan cold. Heading a Bench also comprising Justice P Sathasivam, the CJI could not keep his smile off his face when an advocate petitioner argued that … Shifting of IPL to South Africa challenged in Supreme Court Hindu BCCI may have to shell out higher premium to cover IPL Business Standard IPL coughs up 40% more as terror cover premium Hindustan Times Press Trust of India – eTaiwan News all 193 news articles

Person seeking promotion cannot question the same process:SC
By : Y.Prakash on 07 April 2009
An employee who participates in the selection process for promotion cannot question the very same process merely because he has been unsuccessful in getting promoted, the Supreme Court has said.The apex court, citing a 1995 ruling in the Madan Lal vs State of J&K case, said if a candidate takes a calculated chance and appears in the interview, he cannot, just because the result was not palatable, subsequently contend that the process was unfair.”The appellant having participated in the selection process along with other contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion,” a bench of Justices Lokeshwar Singh Panta and B Sudershan Reddy observed.The apex court passed the ruling while dismissing the plea of an Indian Airlines woman employee K A Nagamani who filed an appeal after she was denied promotion by the selection committee.Nagamani, an Assistant Manager (systems), participated in the selection process for promotion to the post of Deputy Manager (systems) but failed to get promoted.She challenged the selection process as being illegal primarily on the ground that 50 per cent of the marks was prescribed for the interview and the balance 50 per cent on the evaluation of the annual confidential reports.
Source :,

Undue sympathy to criminals would erode public confidence:SC
By : Y.Prakash on 07 April 2009
The Supreme Court has said that undue sympathy shown by courts towards criminals would undermine public confidence in the efficacy of law and promote lawlessness in the country.Undue sympathy to impose inadequate sentence would do more harm to the justice system by undermining the public confidence in the efficacy of law, and society, which could not endure such serious threats for long, it said.”It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed,” a bench of Justices Arijit Pasayat and Mukundakam Sharma observed.The apex court said security and property of the people are an essential function of the state and it could be achieved only through the instrumentality of criminal law.”The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence,” it said.The bench passed the observation while partly setting aside a Punjab and Haryana High Court order which reduced to seven years the 10-year sentence of certain convicted persons in an attempt to murder case.
Source :,

• Alternate Mechanism to be developed to handle Misleading advertisements
The Corporate Affairs Ministry has written to Ministry of Consumer Affairs to work out an alternative mechanism to address the issue of misleading advertisements after the Monopolies and Restrictive Trade Practices Commission (MRTPC) is wound up. The Competition Commission, which will replace the MRTP Act, does not have any power to investigate cases of misleading advertisements. As per the Competition Act, the MRTPC will be wound up 2 years after the Competition Commission becomes fully functional. The MRTPC served as a legal wall against misleading advertisements by identifying the cases of and referring them to the consumer court. This issue will be left untouched if an alternate arrangement is not come up with.

SC stays eviction of South Delhi Club from posh M-Block market
New Delhi (PTI): The Supreme Court on Thursday stayed eviction of the elite South Delhi Club Ltd from a posh South Delhi locality and handing over of the possession to a charitable trust controlled by DLF chairman K P Singh and his family.
A bench headed by Justice B N Agarwal stayed the implementation of the Delhi High Court eviction order against the 44-year-old club in Greater Kailash-I’s M Block market.
It also issued notice to the club and the Lal Chand Public Charitable Trust through its trustees Raghuvendera Singh, K P Singh and his wife Indira, Vice-Chairman Rajiv Singh, Renuka Talwar and Director TC Goyal.
The club members had challenged the January 2009 High Court verdict that asked the club to vacate and hand over possession to the public charitable trust, an arm of DLF, the original developer of the colony.
Senior counsel Ravi Shankar Prasad and Sandeep Narain submitted that the club was developed by DLF in accordance with the sanctioned plans and after a protracted legal battle between the coloniser and the Muncipal Corporation of Delhi.
Now the property vests with the muncipal body, they added.
The High Court had passed eviction orders on the grounds that the club, which has 1,500 members and around 125 employees, had failed to comply with the lease deed condition of paying the lease money between 1996 and 1998.

HC stays state government order
9 Apr 2009, 2127 hrs IST, TNN
ALLAHABAD: A division bench of Allahabad High Court has stayed the order of the state government passed on February 27, 2009 whereby the financial and administrative powers of pramukh, kshetra panchayat, Dhata, Fatehpur were ceased. Passing this order on a petition filed by Raj Karan Singh, a bench comprising Justice VM Sahai and Justice RV Singh has directed that the petitioner shall continue to function as pramukh and respondents shall not interfere in the functioning of the petitioner. Arguing on behalf of petitioner, NK Pandey, assisted by Sudha Pandey had said that the order of the state government was arbitrary and against the provisions of law. The court has asked the state government to file a counter affidavit in this case within a month, fixing May 18, 2009 to hear the case.

HC raps police over probe into BJP office
9 Apr 2009, 0400 hrs IST, TNN
CHENNAI: Rapping the city police for its “supine indifference” in probing a criminal case registered after DMK functionaries and cadres attacked the Bharatiya Janata Party (BJP) office here in September 2007, the Madras high court has asked the police to complete the investigation in a month. The matter relates to a speech delivered by chief minister M Karunanidhi at Erode in 2007 during the Sethusamudram controversy. Responding to his “blasphemous speech,” BJP MP Ramvilas Vedanti announced a reward for anyone who brought the tongue of Karunanidhi. Irate DMK cadres, led by prominent functionaries, held a demonstration near the BJP office here and ransacked the premises. As the local police did not act on the party’s formal complaint, and did not furnish even an acknowledgement receipt, the party filed a direction petition in the high court seeking investigation by an independent agency not under the direct control of the state government. While the BJP counsel A Kumaraguru contended that nothing worthwhile had been done for over 18 months now, the government advocate said the delay was due to a special leave petition pending in the Supreme Court. Justice M Jeyapaul, rejecting the government’s submissions, said that when there was no stay on investigation, the police in all fairness, should have carried the probe to its logical end. He then granted a month’s time for the police to complete the investigation and file a final report. Police need not even wait for a certified copy of the order to commence probe, he clarified.

HC quashes detention of PMK men under NSA
9 Apr 2009, 0401 hrs IST, TNN
CHENNAI: The Madras high court has quashed the detention two Pattali Makkal Katchi (PMK) cadres under the National Security Act, citing procedural lapses. The PMK cares, T Doss and P Rajendran, were detained under the NSA in July last year for their alleged involvement in a bus-burning incident at Tirupur bus stand. While Rajendran was arrested on July 18, 2008, Doss was taken into custody on July 19. According to the Coimbatore district collector, who was the detaining authority, the incident created a flutter in the town, leading to closure of shops and disruption of traffic and public order. After failing to get reprieve before the advisory board, the two filed the present habeas corpus petition in the high court through their counsel K Balu, contending that there were grave lapses in the detention procedures. A division bench comprising Justice D Murugesan and Justice C S Karnan set aside the detention, pointing out that there were several grave discrepancies between the Form 95, which is forwarded by the detaining authority to the jurisdictional magistrate, and the seizure mahazar. The judges also stated that the detenues were not furnished a copy of the arrest memo immediately after their detention and that the denial of this vital document curtailed their right to defend. Noting that the detention order was vitiated by non-application of mind on the part of the Coimbatore district collector, the judges ordered the immediate release of the two PMK functionaries. The high court order assumes significance in the wake of slapping of NSA on BJP leader Varun Gandhi who was arrested for allegedly making hate speeches. Provisions of the NSA are invoked against persons involved in incidents of grave disturbance to public order. During the one-year detention period there is no benefit of bail, and the detenues’ remand need not be extended as in the case of regular undertrial prisoners. The detenues can challenge the detention before an advisory board, which can either uphold or set aside the detention. Its decision is binding on the government. Simultaneously, detenues can also approach the high court for remedy. When contacted, advocate Balu said that a frontline PMK leader J Guru too had been detained under the NSA by the state government last year. Though both the advisory board and the high court upheld Guru’s detention for hate speech,’ the government withdrew the detention, leading to his release. (EOM)

Developer challenges HC panel for SRA schemes
9 Apr 2009, 0006 hrs IST, Swati Deshpande, TNN
MUMBAI: A developer has challenged the constitution of a high-court appointed high-power committee set up in 2007 to tackle disputes surrounding slum rehabilitation schemes, after a dispute arose in the rehabilitation project of a prime Worli plot. The matter, which will be heard on Thursday, before a full bench is of much significance as numerous SRA projects were either stuck or slowed down as grievances piled up before the committee. The petition, which is expected to elicit the interest of other builders and slum residents was filed by D R Patil, chief promoter of Prem Sidha Cooperative Housing Society in Worli. It challenges the government notification of November 2007 that set up the high-power special SRA committee.

HC admits casinos pleas against closing of restaurants
9 Apr 2009, 0325 hrs IST, TNN
PANAJI: The high court of Bombay at Goa on Wednesday admitted the petitions filed by three floating casinos who have complained about their on-board restaurants being sealed by the Food and Drug Administration. The casinos operate in the river Mandovi. A division bench of Justice B P Dharmadhikari and Justice U D Salvi heard the separate petitions filed by Goa Coastal Resorts and Recreation Private Limited, the operators of Pride of Goa, High Street Cruises and Entertainment Limited, operators of Casino Royale and Victor Hotels and Motels Limited, the operators of Arabian Sea King. The casino operators told the court that they were facing difficulties in conducting their business due to the sealing of their restaurants. The FDA had raided the restaurants on board the offshore casino vessels on March 17 and sealed the premises for operating without licences. Subsequently, the casinos were granted permission by the high court on March 24 to make alternate food arrangements for their guests by way of procuring food from licensed caterers.

Sexual abuse by cops alleged, HC orders FIR
9 Apr 2009, 0251 hrs IST, TNN
NEW DELHI: The Delhi High Court has blasted the NCT government for defending Delhi Policemen accused of sexually assaulting four juveniles in custody and ordered that an FIR be registered against them. Justice S Muralidhar threw out the appeal by the state government where it had challenged the directive of Juvenile Justice Board to SHO, Police Station Usmanpur, to lodge an FIR into allegations that four boys were sexually and physically abused. “Today the state stand before this court on behalf of such accused, identifying itself with them. This is a disturbing aspect for which the Court has not received any satisfactory answer. The consequence that will ensure if state’s plea is accepted is that errant policemen will escape prosecution with impunity,” HC noted while ordering that JJB’s directive be complied with and the case be probed by an independent probe agency. In its order, JJB had concluded that there was merit in the complaint of four boys that they were picked up by cops of Usmanpur police station, thrown into the lock up and sexually abused. The JJB noted in its order that even the arrest memos of the case in which the four had been arrested, suffered from overwriting thereby raising suspicions about the time of arrest. The JJB was equally skeptic of claim of the IO of the case that immediately after the arrests, their parents were duly informed and signatures of the accused attested on the statements given by them. According to the police, after a dead body with stab wounds was found in Shastri Park area on October 15, investigations led to the four juveniles who were then arrested and later produced before JJB. But HC found state was trying to shield the cops from any inquiry and wondered what the motive behind state’s appeal was. “Is the state suggesting that no policeman can even be accused of committing a custodial offence? Is it completely identifying itself with this suspects, to the extent it will seek to challenge any order that directs that allegations made against them for committing serious crimes against children should be investigated?” HC observed, coming down heavily on the government for blocking a probe.

HC query to govt on Shahabu case
9 Apr 2009, 0220 hrs IST, TNN
PATNA: The Patna High Court on Wednesday directed the state APP to state on affidavit whether the state government would move the Supreme Court challenging the HC’s single bench order dismissing its criminal revision petition for adding charges in a criminal case against Siwan MP Mohd Shahabuddin for possessing ammunitions prohibited under Arms Act. A single bench presided by Justice Navin Sinha issued the directive while hearing the bail petition of Shahabuddin in the case registered by Hussainganj police station in this regard.

HC slams Apollo for charging poor patients
9 Apr 2009, 0000 hrs IST, TNN
NEW DELHI: In a severe indictment of the city’s Apollo Hospital, a Delhi High Court appointed committee has said the hospital indulged in “unjust enrichment” by charging money from poor patients entitled to free treatment under the lease agreement for land allotted to it by the government at a concessional rate. A report submitted on behalf of the committee by additional solicitor general Amarendra Sharan to HC on Wednesday maintained that the hospital had failed to keep its promise made under the agreement. The clause provides that the hospital will provide free medical, diagnostic and other facilities to not less that 40% of its outdoor patients who are from economically weaker sections. The committee reports that the hospital has made “huge profits” (Rs 1,191,029,385) in the past five years even as it had denied free treatment to the required 40% OPD patients, charged money from so-called free patients and thereby “violated binding covenants”. It adds that instead of the mandatory ratio of 1/3 patients to be admitted for free indoor patients, the number for past five years turns out to be 2.46% and the hospital administration has shown ambulatory patients, who come for a short while, also as indoor patients. “Charging indoor patients the amount which they could have paid to government hospitals for similar treatment is completely unjustified,” the committee concludes. Moreover, as per the lease agreement, the hospital was to keep 33% beds as free beds (200 out of total 600), but the committee’s inspection revealed only 37 beds were placed in free bed category.

Outside’ MBBS grads eligible for PG course here: HC
9 Apr 2009, 0455 hrs IST, TNN
Ahmedabad: In a setback to state government, a division Bench of Gujarat High Court on Wednesday held that its policy of allowing only those MBBS graduates who had completed their HSC from state board, to go on for PG course here, was invalid. As per case details, state government in January this year issued a circular making admission in PG degrees in medicine available to only those who had cleared their class XII exams from this state, in state board schools or CBSE schools. This means, even those students who got admission in state’s medical colleges in 15% All-India Pre-Medical Test (AIPMT) and became doctors in Gujarat’s medical colleges were not eligible to continue further studies with their classmates in Gujarat. Some such students who wanted admission to PG course and who even took entrance exams this year filed petitions in high court through advocate Aspi Kapadia claiming that government’s policy was violative of their fundamental rights. State government argued that students who take admission in 15% all India quota are from outside the state and most of them would return back after completion of PG course. It spent huge amount for their training, but their services are not available for the local populace and non-availability of doctors in PHCs and CHCs and in the medical colleges have also cause considerable prejudice to the state. Moreover, state government also put forth an argument that those coming from other states don’t know Gujarati language and they are not able to understand local dialect. But, court was not convinced with government’s decision to make the universities amend their rules to bar students from outside in PG course. Holding that the move is violative of Articles 14 and 15(1) of the Constitution and also various principles laid down by the Apex Court, a Bench of Chief Justices KS Radhakrishnan and Akil Kureshi observed, “These students along with 85 per cent local ones form a class by themselves. Further classification among themselves on the basis of residence requirement has no reasonable nexus with the object sought to be achieved. By such classification, merit has been sacrificed and the principle of institutional preferences has been given a go-by, which is discriminatory and will not stand test of reasonable classification.”

HC reduces man’s death sentence to lifer in double murder case

Published: April 8,2009

New Delhi, Apr 8 In a reprieve to a man awarded capital punishment for killing two cousins over a business dispute, the Delhi High Court today reduced his sentence to life imprisonment.
A Division Bench of Justices B D Ahmed and P K Bhasin stated the case did not fall in the category of rarest of rare cases and that convict Raminder Singh alias Happy had committed the murder due to the family feud.
The court said the murder was not committed in a diabolic manner and this case did not fall under the category of rarest of rare.
The Bench rejected the submission of the state for confirmation of the death penalty against Raminder for the double murder in October 2002.
According to prosecution, Raminder was running a garment shop in Karol Bagh market. The victims — Gurmeet, 22, and Prabhjot, 16 — were also running a similar business in the same market.
It said that Raminder got annoyed with them after he got the impression that his cousins were trying to poach his clients, resulting in losses to his business.
Infuriated during an argument over the issue, Raminder stabbed them to death at their residence in Tilak Nagar on October 26, 2002.
Source: PTI

Gangrape CaseFIR against BJP leader’s son quashed
Varinder WaliaTribune News Service
Amritsar, April 9The Amritsar (Rural) police has quietly quashed the FIR registered against the son of the district president of the BJP. The former, along with two accomplices, was accused of gangraping two Dalit sisters, one a minor and another a widow, following an inquiry, conducted by former SP Amrik Singh.
Earlier, Ram Sharn Pal, the district president BJP (Rural) had alleged that his son was a victim of a “deep-rooted” conspiracy, hatched by some senior Akali leaders of the Ajnala assembly constituency.
Though Vikram, alias Vickey, son of the BJP leader, Rachhpal, alias Sonu, and Goldi were arrested on January 24, the police entrusted the inquiry to the then SP Amrik Singh, who, after a few days, gave a clean chit to the accused.
Gurmit Singh Chohan, SSP, Amritsar (Rural) confirmed that FIR against Sonu and Goldi had been quashed when they were found “innocent” in the inquiry, conducted by Amrik Singh.
The registration of gangrape charges had given rise to bitterness between the coalition partners, the SAD and the BJP in the last week of January. Senior BJP leaders, including Balbir Punj, in charge of the party’s Punjab affairs, state party chief Rajinder Bhandari, MP Navjot Singh Sidhu, and Manoranjan Kalia, a minister, held a closed-door meeting with Chief Minister Parkash Singh Badal here on January 29 to resolve “differences” between the coalition partners in the district.
The Chief Minister had to assure the senior BJP leaders that the FIR would be quashed. Talking to The Tribune, Ram Sharn Pal claimed that his son was released following submission of an application by the police in the Ajnala court that the case was cancelled in February itself.
The district BJP president alleged that certain Akali leaders had been looking to frame him or a member of his family in some false case due to the tussle during the previous panchayat elections. He said after the Lok Sabha election, he would reveal the names of certain senior leaders of the ruling party who were allegedly instrumental in the registration of a “baseless FIR” against his son.
According to the FIR lodged under Sections 376 and 120-B, IPC (which stand quashed), the three accused were overpowered by the public when they were allegedly gangraping the Dalit sisters.
The FIR was lodged on the complaint of the victims, belonging to Mamo Mahal (Ajnala) village. However, Ram Sharn Pal claimed that both the girls had recorded their statements that his son was not involved in the gangrape.

‘Bring’ business houses, NGOs under RTI Act
Our Correspondent
Srinagar, April 9Expressing dismay over the lack of awareness among people about the Right to Information (RTI) Act, Dr Raja Muzaffar Bhat, convener of the Jammu and Kashmir RTI Movement, said today that government departments, private business houses and non-governmental organisations (NGO) should come under the purview of the RTI Act.
Speaking at a workshop organised here by the RTI movement in collaboration with Actionaid, Raja, while referring to a recent survey carried out by Transparency International, said the state had the dubious distinction of being the most corrupt state in India.
“In our state, the RTI Act, 2004 was full of loopholes and some amendments were proposed to be made in the RTI Act, 2009. We carried out a survey in Budgam and Srinagar districts according to which 98 per cent people don’t know anything about the RTI Act. The case of government employees was no different and 85 per cent of them know nothing about the Act,” he said.
Raja said operational difficulties being faced by people while filing applications for seeking information under the RTI Act should be publicised. He added that the government should strengthen institutions like the State Accountability Commission (SAC) so that bureaucrats and other public servants were made accountable for their actions.
Referring to the enactment of the Act across the globe, Dr Sheikh Ghulam Rasool of the RTI movement said same was introduced first by Sweden, followed by other countries like the USA, Bangladesh and India.
“Participatory democracy is the buzzword in the contemporary world and we want people to adopt this here. Justice has eluded people here with commissions like the SAC and the State Human Rights Commission (SHRC) failing to come to the expectations of people approaching them,” said Rasool.
He said Chief Minister Omar Abdullah had assured the state RTI Act would be made on a par with the Central RTI Act.

HC rejects lifer’s appeal
DS Chauhan
Jammu, April 9The J&K High Court has dismissed the criminal appeal of Balbir Singh filed against his conviction under Section 302, RPC, for the murder of his Platoon Commander Harvinder Thakur, Sub-Inspector, and PA Naidu, Constable of ‘C’ Company.
Appellant Balbir Singh was on duty at the residence of Ghulam Nabi Azad, former Chief Minister, at Hyderpora Bypass, Srinagar, with other personnel of his battalion on January 1, 2001. Balbir Singh opened fire with his SLR on his Platoon Commander Harvinder Thakur and constable P A Naidu, critically injuring the Platoon Commander and killing the constable on the spot.
Thakur too succumbed to injuries while on the way to hospital. The appellant ran away, leaving behind his SLR, but was later arrested. After protracted trial, the appellant was held guilty of committing the murder of Thakur and Naidu and was sentenced to life imprisonment and a fine of Rs 5000 by the Sessions Judge, Budgam.
The appellant’s counsel questioned the impugned judgment in the high court on several counts.
While dismissing the criminal appeal, the high court observed that the evidence led by the prosecution in the case was overwhelming and consisted of those persons of ‘C’ Company of the 87-Bn of the CRPF, who had seen appellant resorting to firing by the SLR issued to him, pursuant to his agitation over short supply and distribution of meat to jawans and altercation with mess commander, killing his Platoon Commander Thakur and fellow constable Naidu, and thereafter running away. For all what has been said above, we are satisfied that the Sessions Judge, Budgam, has properly appreciated the evidence and his findings, judgment of conviction and order of sentence do not call for any interference in the appeal.

SC no to resume CBI probe against VB chief
Legal Correspondent
New Delhi, April 9Ignoring a plea for allowing the CBI to resume its probe against Punjab Vigilance Bureau (VB) chief Sumedh Singh Saini, the Supreme Court today posted for August the final hearing on the state’s plea for rescinding the remarks of the High Court, which had cast aspersions on the Police Department.
A Bench comprising Justices RV Raveendran and HL Dattu acknowledged the importance of the state’s appeal and that the hearing be expedited.
The CBI had registered a case against Saini and other police officials for their alleged involvement in an encounter in 1991, involving Balwant Singh Multani, reportedly an accomplice of Devinder Pal Singh Bhullar, a death row convict in the case relating to the bomb attack on Congress leader MS Bitta.
Senior counsel Dushyant Dave and KK Khurana, appearing for Punjab, strongly opposed the plea for resuming the CBI probe. Senior counsel Colin Gonsalves, who appeared for retired IAS official Darshan Singh Multani, father of Balwant, wanted vacation of the apex court stay on the CBI investigation.

NGOs cite SC order for disabled voters
Statesman News Service KOLKATA, April 9: Members of some city-based NGOs working to uphold the rights of people with physical disability today urged the Election Commission to implement the Supreme Court order instructing them to take steps to help disabled persons exercise their franchise with dignity and secrecy. They alleged that till today the Commission is unable to provide suitable arrangements for the disabled and it will be difficult for them to go upstairs by using temporary ramps that will be set up in the polling booths. A member of a city-based NGO said they had written a letter to the chief secretary as well as the joint chief electoral officer, Mr NK Sahana, who had assured them that except for 150 booths in the state, disabled people can exercise their franchise on the ground floor of the polling booth. They also said that in case a polling booth on a top floor can’t be avoided there should be a provision of carrying the disabled persons by a wheelchair and not stretchers. Moreover, there is a need for Braille stickers to be pasted on Electronic Voting Machines (EVMs) for the physically disabled persons and EVMs should be kept on a 3-ft high table to make it easy for the voter. Ms Kukhu Das, member of the Disability Activists Forum, said very often little concern was shown to a visually handicapped voter at the booth. As little secrecy is maintained in such cases, the need of the hour is to appoint a monitoring agency to look into ways to ensure secret voting.

Delhi High Court serves notice to Chamling over dual ctizenship
Bappaditya PaulGANGTOK, April 9: Acting on a writ petition filed by a Sikkim BJP leader, the Delhi High Court has issued notice to the Sikkim chief minister Mr Pawan Kumar Chamling on his alleged Nepalese citizenship.Mr Justice Ravinder Bhatt of the Delhi High Court issued the notice on Wednesday, fixing a deadline of 17 July for a response. Notice has also been served to the Union government and the Election Commission of India on the matter, seeking their reply by the same date. According to Delhi High Court advocate Mr Balendu Shekhar, the notice has been issued on the basis of a writ petition filed by his client ~ the Sikkim BJP leader Mr Padam Prashad Sharma.In the petition, Mr Sharma alleged that the Sikkim chief minister Mr Pawan Kumar Chamling has acquired Nepalese citizenship in addition to his Indian nationality.To back up his accusation, Mr Sharma enclosed copies of Mr Chamling’s alleged Nepalese Citizenship Certificate issued by the Budhabare Village Development Committee in Jahapa district of eastern Nepal, as well as a Population Certificate issued by the local authorities, and a Nepalese house tax receipt issued in favour of Mr Chamling on 27 April, 2008.“The Nepalese Citizenship Certificate not only includes the name of Mr Chamling, but also of his wife Mrs Tikamaya and sons and daughters Mr Bishal, Bijoy and Ms Shila, as well as that of his daughter-in-law, Mrs Vinita Chamling,” the advocate said. He pleaded: “Under Section 9 of the Citizenship Act, any Indian citizen who voluntarily acquires the citizenship of another country shall cease to be a citizen of India.”Thus, according to Mr Shekhar, the Constitution states that Mr Chamling is not entitled to hold a member seat of the Sikkim Assembly and should be disqualified from continuing as the chief minister of Sikkim and as an MLA.The ruling Sikkim Democratic Front (SDF) has termed the entire issue a “conspiracy to defame Mr Chamling and the SDF.”“Mr Chamling has no Nepalese citizenship and we would steadfastly fight the legal battle in Delhi High Court. At the same time, we will give the BJP a befitting reply (to its conspiracy) by winning all the 32 Assembly seats in Sikkim in the 30 April polls,” SDF spokesperson Mr Bhim Dahal said. Mr Chamling is the president of the SDF, which has been in power in the tiny Northeastern state since 1994.

CBI shifts stand, challenges court’s power
Special Correspondent
NEW DELHI: In a surprise change in its legal stand on an anti-Sikh riot case here involving Congress leader Jagdish Tytler, the CBI on Thursday challenged the power of the trial court hearing the case to decide on its plea for closure of the case against him.
The allegation against Mr. Tytler is that he delivered an inflammatory speech to instigate a mob to attack a gurdwara in Pulbangus, killing 25 Sikhs on November 3, 1984.
When Metropolitan Magistrate Rakesh Pandit took up the CBI charge sheet for hearing in which it opined that there was no evidence on record to prosecute Mr. Tytler, counsel for the agency submitted: “Since the case is triable by a sessions court, the magisterial court did not have the jurisdiction to decide its plea for closure of the case against him and take cognisance of the charges against the other accused, Suresh Kumar.”
The CBI did not raise the jurisdiction issue when the charge sheet was filed in June 2006 and a closure report in September 2007.

Sedition case registered against Vaiko
Special Correspondent
CHENNAI: The Chennai City police have registered a sedition case against MDMK general secretary Vaiko for his speech warning that India would not remain one country if the war against the LTTE in Sri Lanka was not stopped.
The case has been registered under 13 (1) b of the Unlawful Activities (Prevention) Amendment Act, 2004 (advocating, abetting, advising or inciting the commission of any unlawful activity) and also under Section 124 -A and Section 505 (1) (b) of the Indian Penal Code.
Section 124-A relates to sedition (attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law in India).
Section 505 (1) (b) relates to statements conducing to public mischief (making statement with intent to cause fear or alarm to the public whereby any person may be induced to commit an offence against the State or against the public tranquillity).
A senior police officer said that Mr. Vaiko had not only spoken in support of the banned Liberation Tigers of Tamil Eelam, he had also eulogised its leader V. Prabakaran, a proclaimed offender in India. Besides, he had spoken against national unity, integrity and sovereignty.
“We obtained legal opinion before registering the case,” he added.

Advocate of Chota Shakeel’s aide shot dead
Staff Correspondent
MANGALORE: The body of a city-based human rights advocate Naushad Kashimji was found lying in the parking lot of an apartment on Sturrock Road in Falnir area here on Thursday.
Superintendent of Police A.S. Rao said the advocate was shot dead. Two persons might have been involved in shooting him dead, he said.
Mr. Kashimji was an advocate for Raheed Malbari, an aide of Chota Shakeel. Malbari was arrested by police here recently. The advocate is a native of Bhatkal.
Eyewitnesses said that two persons shot at Mr. Kashimji at the street corner outside his house as he was walking out of Sweet Homes apartment. A grievously injured Mr. Kahimji immediately ran into the basement of the ‘Peeye’s Home’ apartment around 50 metres away where he collapsed and died.
The police found four live bullets at the street corner. The police said that the advocate was alone at home on Thursday.
They suspect that aides of Chota Rajan, a rival of Chota Shakeel, might be behind the shooting incident as the lawyer was arguing the case for Rasheed Malbari, who had made an attempt on the life of Chota Rajan in Bangkok several years ago.
Neighbours of Mr. Kashimji told The Hindu that the advocate always used his car while going out of his home. However, on Thursday he walked out giving room for suspicion that someone might have called him out.

Court refuses further remand of Kodnani
Manas Dasgupta
AHMEDABAD: The Ahmedabad Metropolitan Court on Thursday turned down the request of the Special Investigation Team for further remand of the former Gujarat Minister of State for Women’s Welfare, Mayaben Kodnani, and sent her to judicial custody. The court also fixed for April 21 the hearing on Ms. Kodnani’s application for bail.
Ms. Kodnani, along with Vishwa Hindu Parishad leader Jaideep Patel, surrendered before the Supreme Court-appointed SIT on March 27 after the Gujarat High Court cancelled their anticipatory bail granted by the Sessions Court. Both Ms. Kodnani and Mr. Patel were taken on seven days remand by the SIT in connection with the Naroda Gaam massacre, but while Mr. Patel was sent to judicial custody last Saturday, Ms. Kodnani was sent to police custody for one day and then to the SIT custody for four days as the team wanted to question her in connection with the Naroda-Patiya massacre.
Meanwhile, the Ahmedabad Sessions Court on Thursday granted bail to V.S. Gohil, the police inspector in Naroda police station at the time of the massacre in February 2002. Mr. Gohil was among the three police officials to be arrested last month by the SIT in connection with different gruesome incidents of 2002 which it was re-investigating at the behest of the Supreme Court.

Court notice to Defence Secretary, Army Chief
Legal Correspondent
New Delhi: The Supreme Court on Thursday issued notice to Defence Secretary Vijay Singh and Chief of the Army Staff General Deepak Kapoor on a contempt petition that alleged they did not implement the September 9, 2008 order on fixation of higher pension to Major Generals than Brigadiers.
A Bench of Justices Altamas Kabir and Cyriac Joseph, while issuing the notice as to why contempt proceedings should not be initiated against the two alleged contemnors, dispensed with their personal appearance.
Maj. Gen. S.P.S. Vains (retired) and 18 others said in their contempt petition that they initially filed a writ petition in the Punjab and Haryana High Court for a direction to fix the minimum pay scale of Major Generals more than that of the maximum of Brigadiers, which would automatically result in proper fixation of pension and family pension.
The High Court allowed the petition and the apex court, in September 2008, dismissed the Centre’s SLP against this order by slightly modifying the directions of the High Court. The Centre’s review petition was also dismissed.

High Court comes down heavily on police
Special Correspondent
For not taking timely action in cheating case
High Court orders CBI enquiry into the case
Huge money was involved and allegations were serious in nature
CHENNAI: Coming down heavily on the police for not taking timely action in an alleged cheating case against a candidate in the Villupuram Lok Sabha constituency and his associates, the Madras High Court on Thursday ordered an enquiry into it by CBI.
“The reluctance and hesitation on the part of the first respondent (Chennai Police Commissioner), registration of a case soon after the matter was taken up for inquiry by this court and apparent influence of the main accused in crippling the process of investigation due to his relationship with the police officers referred to, would unerringly lead to an irresistible conclusion that the State police had sufficiently protected the IPS officers who are closely related to the main accused”, Justice R. Regupathi said in his 34-page order on a petition.
The Judge said since huge money (Rs.171 crore) was involved and allegations were serious in nature, he was directing the Director, CBI, to depute an officer not below the rank of an IG to conduct preliminary enquiry. Thereafter, the task may be entrusted with an officer not below the rank of a Superintendent of Police.
The CBI should consider the serious allegations made against the police officers concerned and proceed strictly in a proper perspective, for, none was above law and if the theory of influence was allowed to rule over the police administration, then injustice would be rampant defeating the rule of law, sometimes even resulting in deprivation of judicial remedies to the victims, Mr. Justice Regupathi said.
In its petition, Rakindo Developers (P) Ltd., Alwarpet, here, a land developer, said it entered into a memorandum of understanding in December 2007 and January and May 2008 with the proposed seller, S.P. Velayutham, (the VCK candidate in Villupuram Lok Sabha constituency in the coming elections), for purchase of lands and paid Mr. Velayutham Rs.171 crore through cheques. But neither lands were procured for the petitioner, nor the money repaid. A cheque given by Mr. Velayutham for Rs.1.11 crore was honoured while the second one for Rs. 5 crore was returned stating that the drawer’s signature was not legible and two other cheques for Rs.45 crore and Rs.120 crore were dishonoured with the endorsement “payment stopped by the drawer”. Letters and legal notice by petitioners to Mr.Velayutham evoked no response. A complaint was preferred with the Abhiramapuram police in February this year against Mr.Velayutham and three others for having cheated the complainant. However, the police refused to give even an acknowledgement. Later, a complaint was lodged with the police Commissioner. A complaint preferred before the Judicial Magistrate, Alandur, was taken on file.
Mr. Justice Regupathi said he was “of the view that this is a classic case where one can see the reverse activities on the part of the police in going behind the complainant instead of apprehending the main accused, his associates and colluding patrons/relatives.”

Advocates abstain from courts
Special Correspondent
CHENNAI: Advocates abstained from courts on Thursday in protest against the non-implementation of the orders of the High Court suspending two police officers in connection with the incidents on the High Court premises on February 19.
The boycott was in response to a decision taken by the Joint Action Committee (JAC) of advocates here on April 5.
They staged a dharna and took out a procession on the High Court premises to register their protest.

Bench seeks explanation from Fast Track Court Judge
Staff Reporter
MADURAI: The Madras High Court Bench here on Thursday sought explanation from the presiding officer of Fast Track Court-I in Tirunelveli as to why Rs.8.43 lakh disbursed by an insurance company in a motor accident case was not deposited in any bank for more than three years.
A Division Bench comprising Justice P. Murgesen and Justice T. Raja directed the presiding officer of FTC as well as the Principal District Judge to file their replies within two weeks. The order was passed in a writ petition filed by parents of the accident victim who died on December 20, 2001.
Petitioners, M. Veerasamy (68) and V. Prabavathi (60) of Tiruvannamalai said that the FTC-I on January 13, 2005 awarded a compensation of Rs.6.42 lakh for the death of their only son in a road accident. The total quantum was fixed at Rs.8.43 lakh, including interest from the date of filing of claim petition in 2002. The insurance company deposited the entire amount to the credit of the Principal District Judge. As per clause 9 of the decree, the amount should be invested in a nationalised bank for three years. No interim permission was given to the claimants to withdraw even a part of the award.
It was the discretion of the court to permit withdrawal of the amount, either in full or part, depending upon the literacy level of the claimants and other factors. Hence, the petitioners waited for three years and approached the court in October 2008 for withdrawing the amount along with accrued interest.
“To our shock and surprise, we came to know that the first and second respondents have failed to invest the money in any of the nationalised banks contrary to the directions of the first respondent himself in clause 9 of the decree. The failure is clear violation and transgression of the rules in force,” their affidavit read.
Alleging that the petitioners were asked to accept Rs.8.43 lakh sans interest, the petitioner’s counsel N. Srinivasa Raghavan said that the FTC judge, Principal District Judge and the Registrar General of the High Court were under legal obligation to ensure payment of interest.

RTI Act widely employed in southern districts
Staff Reporter
MADURAI: Ever since the inception of Right To Information Act 2005, more than one lakh petitions had been received by the Tamil Nadu State Information Commission, out of which 4,450 cases were taken up by the Commission, said R. Perumalsamy, State Information Commissioner.
Addressing a press conference along with Sarada Nambi Arooran, State Information Commissioner, in the midst of Tamil Nadu State Information Commission’s Madurai enquiry meeting here on Thursday, he said that 437 show cause notices had been served and 11 officials who failed to give proper information were imposed with a fine of Rs. 25,000 each.
The enquiry meeting for Madurai district on Thursday dealt with 30 cases that include cases from neighbouring southern districts.
Referring to the cases, Mr. Perumalsamy said that large numbers of them were related to the departments of Revenue, Police, Education, Health, Electricity Board, Handloom, Registration, Transport, Agriculture, Social Welfare, Hindu Religious and Charitable Endowments. The Information Commission was the highest authority hearing RTI petitions in the State with Public Information Officers and the Appellate Authority in the hierarchy. Seven Information Commissioners were there in the State.
Ms. Sarada said that strengthening of RTI had been given due importance by Chief Minister M. Karunandhi to ensure that public authorities functioned in a transparent and responsible manner while discharging their duties.
There was a manifold increase in the number of petitions received as those received during the year 2006, 2007, 2008 and 2009 was 8,550, 34,954, 44,031 and 11,972 (till March) respectively. However, among all districts in the State, more petitions came from Tirunelveli, Kanyakumari and Tuticorin districts and less number of petitions from Ramanathapuram and Dharmapuri, she said.

PIL petition against overcrowding of prison
Staff Reporter
“The prison accommodates 2,099 people as against its sanctioned strength of 1,252”
MADURAI: A public interest litigation petition has been filed in the Madras High Court Bench here against overcrowding of the Madurai Central Prison. It also sought to lodge HIV positive and mentally affected prisoners in separate cells.
A Division Bench comprising Justice P. Murgesen and Justice T. Raja on Wednesday ordered notice to the Additional Director General of Prisons and his subordinates. The matter was posted for hearing after two weeks.
Petitioner S. Muthukumar, an advocate providing legal aid to the inmates, said that the prison accommodated 2,099 people as against its sanctioned strength of 1,252 persons.
The figure included 1,021 convicts and 705 under trial prisoners.
“Authorities negligent”
“During my legal aid duty, I received representations from several prisoners that the authorities are too negligent over the pathetic condition of the prison getting overcrowded disproportionate to the authorised accommodation,” he said.
His counsel B.N. Raja Mohamed contended that a representation was sent to the ADGP (prisons) as early as August 30, 2008. “But, there was no reply and no improvement was observed. The representation remains abandoned,” he said.

RTI Act: prison officials’ lack of knowledge flayed
R. Ilangovan
SALEM: Lamenting “inadequate” knowledge about provisions of the Right to Information (RTI) Act among senior prison officials, the Tamil Nadu Information Commission has asked the Inspector General of Prisons to arrange for their training covering all provisions of the Act.
Reacting to a reply from the Additional Superintendent of Prisons, Salem Central Prison, to a list of 12 queries about facilities available in the prison sought by human rights activist Poomozhi recently, State Chief Information Commissioner S. Ramakrishnan pointed out that the replies provided by the official did not fall under any provisions of the RTI Act. The Commission sought an explanation from the official and asked the Inspector General (IG) of Prisons to file a reply within 4 weeks.

Child labour case booked against house owner
VISAKHAPATNAM: A case was booked on a house owner under the Child Labour (Prevention) Act, 1986, for employing the nine-year-old girl for household work. The accused, Basha, was not even paying her wages in accordance with the Minimum Wages Act, according to Joint Labour Commissioner M.N. Varahala Reddy. A demand notice was sent to him directing him to pay Rs.20,000 in the name of the victim. The rescued girl was admitted to a hostel run by the Social Welfare Department. ALOs K. Ramakrishna Rao, N. Subrahmanyam and A.C.L. Purushottam conducted the raid on information given by Fourth Town Police.
Man drowned
Tragedy struck a group of holidayers from Hyderabad with the drowning of one of their colleague at sea on Thursday. G.V.S.N. Srinivas, 35, a native of Guntur, Naveen Krishna and four others came to the city on Wednesday and they went to the beach on Thursday. Srinivas and Naveen were swimming when they were dragged into the deep by the strong current. The other colleagues pulled them ashore with great difficulty. They managed to save Naveen but Srinivas died instantaneously, perhaps, due to breathlessness.

State told to plug loopholes in PR Act
Staff Reporter
BANGALORE: The Karnataka High Court on Thursday directed the State Government to plug loopholes in the Panchayati Raj Act relating to reservation of posts to a particular community.
The court passed the order when it was hearing a petition by T.M. Umashankar, M.G. Rajashekaraiah and 13 others of Nelamangala taluk seeking quashing of a notification by the Returning Officer of zilla panchayat sub-division, Nelamangala sub-division, fixing April 15 as the date for holding elections to the post of president of Sompura Gram Panchayat.
The petitioners said they were all members of the Sompura Gram Panchayat. They said the president of the panchayat, who was a Scheduled Caste (SC), had been removed by a vote of no-confidence.
They said the erstwhile president was the only SC candidate in the panchayat and the post too was reserved for a SC. With another election round the corner, the erstwhile president was the only eligible candidate to contest and the nomination of all other members, who belonged to categories other than SC, would be rejected.
Justice Rammohan Reddy agreed with the contentions of the petitioners and said the Act needed to be amended to ensure that in cases where only one person of a reserved category had been elected, the rule would allow a person of another category to take over in case the earlier incumbent was removed.

No anticipatory bail for Kagodu
Special Correspondent
SHIMOGA: Judge of the Fast Track Court S.H. Mittalkod on Thursday rejected the application filed by the former Minister and Congress leader Kagodu Thimmappa seeking anticipatory bail.
A criminal case has been registered against Mr. Thimmappa for violation of the model code of conduct.
His reported inflammatory speech at Sagar town recently stating that the hands of the Hindus who practised “Hindutva” against Dalits and other weaker sections should be cut off not only led to a lot of resentment among people but also attracted the attention of the Election Commission.
Case registered
The police, acting on a private complaint filed against Mr. Thimmappa for his controversial speech, registered a case against him.

HC completes hearing on Gayatri Panda case
CUTTACK: The controversial issue of granting “clean chit” to former Assembly Speaker Mr. Maheswar Mohanty by Orissa Human Rights Commission (OHRC) in sensational Gayatri Panda sexual harassment case is now all set to reach its logical conclusion.
The High Court, adjudicating on a petition challenging OHRC’s soft stand on the matter, concluded hearing of the case on Thursday and reserved its verdict.
The Bench of Justice I. M. Qudusi and Justice B. P. Ray had been hearing the case since six months.
Former assistant lady marshal of the Assembly Gayatri Panda, who had brought sexual harassment allegations against Mohanty in April 2007, had moved the HC urging to quash the August 7, 2007 order of OHRC.
The Commission, after taking suo motto cognizance of the case had exonerated the senior BJD leader observing that there was no credible evidence against the former Speaker.
Ms. Panda’s counsel however contested the OHRC order stating that the same was liable to be quashed as the Commission enquired into the matter following a request by the State government even as the State Women Commission (SWC) had already started probing into the same while a police case on the allegation was still pending in Bhubaneswar Mahila police station.
Sexual harassment
The HC after taking up Ms. Panda’s case had issued notices to Mohanty, State government, NHRC and SWC. After hearing all parties, the Bench has reserved its judgment which is likely to come up soon.
Sexual harassment charges levelled against Mohanty had rocked the State leading to the senior BJD leader’s resignation from the prestigious post of Speaker.
The political shake up was so vigorous that it not only cost Mohanty his post but Debashis Nayak, a minister and a close confidant of Chief Minister Naveen Patnaik was also forced to put in his papers.

HC relief yet again eludes Swain
He is now planning to move the SC
CUTTACK: BJD strongman and four-time MLA Ranendra Pratap Swain, who is now fighting a lost battle to remain in 2009 poll fray, received yet another jolt from the judiciary on Thursday, second time in this week.
The High Court on the day rejected a fresh petition of the former minister who was seeking judiciary intervention into his nomination paper rejection row.
Sources close to Swain informed that the senior leader is now planning to move the Supreme Court after the HC refused to grant him any relief.
After the Chief Election Commission of India rejected his appeal on Wednesday, Swain who had been winning from Athgarh Assembly segment since 1990 approached the HC once again on Thursday seeking to quash the April 6 order of the Returning Officer. The Athgarh RO Mr. Rajesh Prabhakar Patil had rejected Swain’s nomination papers as the latter had not submitted the original party affiliation certificate.
The beleaguered leader had on Monday moved the HC, which in turn asked him to approach the Election Commission of India for redressal of his grievance.
The EC too refused to interfere into the decision of the RO and instead asked Swain to file an election case after the polling process is over.
But without waiting for the election process to over, a disappointed Swain made a fresh appeal before the HC.
But he was unlucky once again when the HC Bench of Justice I.M. Qudusi and Justice Kumari Sanju Panda dismissed his appeal observing that same is not maintainable.

HC suggests CID probe in `kidnap’ case
10 Apr 2009, 0228 hrs IST, Shibu Thomas, TNN
MUMBAI: The Bombay high court on Thursday suggested that the case of a child `allegedly’ kidnapped by his grandfather be handed over to the state CID. “It is an unfortunate case where injustice has been done,” said a division bench of justices Ranjana Desai and Rajesh Ketkar. The court was hearing an application filed by Bandra resident Manpreet Biji (28) whose one-year-old son was `allegedly’ taken away by her father-in-law Tinkusingh Biji in January 2008. Both Tinkusingh and Manpreet’s brother-in-law obtained anticipatory bail from a Nashik court after the police failed to oppose the plea. The court came down heavily on the one-line order passed by the sessions judge as well as the conduct of the police and the prosecutor in the Nashik court. “Anticipatory bail is not to be granted at the drop of a hat. Great circumspection is required before passing such orders,” said the judges. Additional public prosecutor Poornima Kantharia told the HC that the police conducted searches in Ludhiana, Patiala and other places in Punjab. Manpreet had married Nashik resident Nanaksingh Biji in 2006 and had given birth to a son Guruashish on January 9, 2007. Following `alleged’ harassment by her in-laws she had lodged a complaint with the Nashik police.

Shift builder case to ATS: HC
10 Apr 2009, 0135 hrs IST, TNN
MUMBAI: The Bombay high court on Thursday directed the Virar police to transfer its investigation of allegations against three Jogeshwari-based builders in connection with 26/11 to the Anti-Terrorism Squad (ATS). A division bench of Justice Ranjana Desai and Justice Rajesh Ketkar said the court would not interfere in the probe, especially since it was related to the terror attack. At the same time, the judges asked the police to ensure that there was no unnecessary harassment.
The court was hearing an application by the builders who had challenged the summons issued by the Virar police. The builders claimed that they had been abused and harassed by the Manekpur police, which had initially launched the probe. They further claimed that the complaint against them was a fallout of a property deal, which they had entered into in Virar.

Hingora can travel to South Africa: SC
10 Apr 2009, 0134 hrs IST, TNN
NEW DELHI: Sameer Hingora can resume his career in film production, casting aside the phase when he spent nearly seven years in jail after being convicted in the 1993 Mumbai serial blasts case. He was sentenced to imprisonment for nine years. With a promise of “good conduct”, the Supreme Court on Thursday allowed him to go to South Africa to begin shooting for his film, Insurance. His counsel, senior advocate Mukul Rohtagi, said Hingora would need permission in three phases to resume his career but the CBI did not seem too happy about it__additional solicitor-general Gopal Subramaniam expressed distinct discomfort on the grounds that the petitioner was convicted for a “serious charge of conspiracy”. Being informed that Hingora has already sulfilled six-and-a-half years of his nine-year sentence, a bench of Chief Justice K G Balakrishnan and Justice P Sathasivam said the man deserved to get a chance to prove his conduct. Hingora’s counsel Ajay Sharma requested his senior to grant Hingora the permission to visit South Africa, New Zealand as well as Dubai for the shooting of two films, one being Insurance. But the bench said it would first put Hingora under the scanner by allowing him to visit only South Africa from May 22 to June 2 provided he furnished all details of local addresses and telephone numbers in South Africa to STF-CBI. With Hingora’s counsel readily agreeing to this condition, the apex court asked the CBI to give the passport to Hingora, asking him to redeposit it with the agency latest by June 3. Another accused, Yusuf Nulwala, through counsel Hari Shanker K, wanted his application for a passport to be processed. Granting the permission, the CBI asked Nulwala to submit the document with the agency like other accused.

Man sentenced to life for raping daughter-in-law
10 Apr 2009, 1538 hrs IST, PTI
MUMBAI: A 45-year-old man was sentenced to life imprisonment by a court here for raping his daughter-in-law repeatedly for seven days. The 21-year-old victim lived with her labourer husband and her in-laws in Govandi slum. In March 2006, her husband and mother-in-law went out of Mumbai and the victim was left alone with her father-in-law Shrimant Dudhal, a watchman in a slaughter house in suburban Deonar. On March 26, Dudhal raped her and threatened to kill her if she told anyone about the incident. The victim told the court that she was repeatedly raped for seven days. On April 4, 2006, the victim narrated the incident to her neighbours, who then thrashed Dudhal and took him to the police station where a complaint was lodged. Additional Sessions Judge P V Ganediwal sentenced Dudhal to life imprisonment. Additional public prosecutor Usha Kiran Makasare examined five witnesses including the complainant, neighbours, the doctor who examined her and the police. The victim’s husband appeared as a defence witness alleging that his wife had filed a false complaint because she wanted to divorce him as he was poor. He however, admitted that he did not attempt to meet the victim after the incident.

HC adjourns school hearing for 3 weeks
10 Apr 2009, 0232 hrs IST, Anahita Mukherji , TNN
MUMBAI: On Thursday, the Bombay high court heard a petition filed by The Forum for Fairness in Education on behalf of parents of the SSC section of The New Era School, Hughes Road acquired by the Aditya Birla Group over a year ago. The over 70-year-old school offered only the SSC syllabus until it was taken over by the Aditya Birla Group. It now offers the International General Certificate of Secondary Education (IGCSE) curriculum alongside the SSC. Parents of the SSC section took the school to court after the management announced plans to shift the entire SSC section to a seven-storey building at D N Road with no compound, which opens on to the pavement. Arguing on behalf of the school management, advocate Janak Dwarkadas told the court that the school building was badly in need of repair, due to which both the SSC and IGCSE sections would have to be shifted out. Dwarkadas said that, whether the SSC section would be shifted out temporarily or permanently was still under deliberation. “The school needs a directive from the director of education before it can permanently shift the SSC section. In the meantime, the school wants to shift both the SSC and IGCSE sections out of the premises for repairs,” added Dwarkadas. The parents’ advocate, Rahul Thakur, however, said the building is in perfect condition and did not need repair. Chief Justice Swatanter Kumar adjourned the matter for three weeks.

Raze illegal structures, HC tells Lonavla civic body
10 Apr 2009, 0051 hrs IST, TNN
The Bombay high court on Thursday directed the Lonavla Municipal Council (LMC) to demolish 30 illegal structures within three weeks.
The council told the court that it had already demolished 70-odd unauthorised constructions and regularised 97 illegal structures. A fresh application before the HC claimed that one of the illegal structures belonged to Bhupen Chaudhary, the president of LMC.

SC notice on CBI plea in Uphaar case
10 Apr 2009, 0303 hrs IST, TNN
new delhi : The Supreme Court on Thursday put real estate barons Sushil and Gopal Ansal as well as nine other accused in the Uphaar fire tragedy case to notice on a petition filed by CBI seeking enhancement of the “lenient” sentence imposed on them by the Delhi High Court. Appearing for CBI, senior advocate Harish Salve did not have to argue much before a Bench comprising Justices S B Sinha and Mukundakam Sharma as the apex court had on January 30 this year issued notice to the accused on a petition filed by Association of Victims of Uphaar Tragedy (AVUT) seeking enhancement of the sentence of the accused. The Delhi HC had in its December 19, 2008, verdict reduced the sentences awarded by the trial court to the Ansals and other accused. CBI now wants that the trial court’s assessment of the quantum of sentence against the accused was proper and should be maintained. The HC had reduced the sentence of Ansals and another accused from two years to one year, that for four from seven years to two years while acquitting four others. While granting bail to accused Ansal brothers on January 30 on their appeal, the apex court had kept the leash tight on them by suo motu putting a caveat that if it found impeccable evidence about their negligent act leading to the tragedy that snuffed out 59 lives in 1996, it would consider enhancing their sentence.

HC refuses to quash criminal proceedings
10 Apr 2009, 0321 hrs IST, TNN
Bangalore : Two inspectors with the Central Bureau of Investigation (CBI) are in trouble after the high court refused to quash criminal proceedings against them. Inspectors T C Chacko and V Ashok Kumar had approached the HC for quashing of criminal proceedings against them in a Chief Metropolitan Magistrate’s Court. They claimed no sanction had been taken by the Centre to prosecute them. But Justice K Ramanna of the HC said no sanction was needed in the case of a private complaint filed before the court. The incident relates to 2001 when the CBI raided IAS officer Nagambika Devi, in connection with misappropriation of funds in Karwar ZP. A Laxman, a Home Guards member employed in the house, then filed a complaint with RT Nagar police, stating he was thrashed by the two CBI inspectors. The police, however, did not register the complaint, so Lakshman filed a petition in the CMM court. A notice was then sent to Chacko and Ashok Kumar. In the HC, the duo charged Nagambika Devi and her IPS officer husband R P Sharma of instigating Laxman to file the petition. In reply, the court observed that criminal cases pending against Nagambika Devi were of different nature. Also, the court defended the CMM’s view that no sanction was required to investigate cases against the duo. “The complainant should prove the charges against the CBI officers,” the court observed while quashing the petition.

HC seeks photos of DYFI rally
10 Apr 2009, 0358 hrs IST, TNN
KOLKATA: Calcutta High Court on Thursday directed the army to furnish original photographs to prove that court orders had been violated during a DYFI rally at the Maidan on December 20, 2008. It had earlier submitted a report in the court, enclosed with photocopies of photographs, contending that DYFI had flouted the court’s restrictions on rallies at the Maidan. During the day, DYFI filed an affidavit before the division Bench of Justice Bhaskar Bhattacharya and Justice Tapan Dutt, denying all allegations of violating court orders and claiming that the army report contradicted the police affidavit. DYFI counsel Tarun Roy pleaded for original photographs as the ones furnished were not legible.

Stolen court documents recovered
10 Apr 2009, 0511 hrs IST, Asseem Shaikh, TNN
PUNE: Several documents and copies of judgements stolen from the Pune Cantonment court on MG road were sold at a waste paper shop for Rs 160. This startling fact came to light after the arrest of suspects Feroz Salim Shaikh (18) and Mahesh Ovhal (18) on Thursday. “Similar thefts have been reported twice at the district and sessions court in the past. But this is the only case in which the documents have been found intact, said senior police inspector Balkrishna Shinde of the Cantonment police. Shinde said, “I had issued instructions to the staff of the detection branch to round up all scrap vendors, rag pickers and drug addicts who were found loitering in the Camp area between 4 am and 7 am.” According to Shinde, the police had received information that the suspects were drug addicts, but the details were vague. Hence, instructions were issued to keep a tab on the activities of all suspected persons found loitering in Pune Cantonment. A police team led by hawaldar Neminath Katke, police naiks Shivaji Sambare and Rashid Pathan spotted some suspects, who were acting suspiciously, near the Chhatrapati Shivaji market, but they fled on spotting the police. The police team then pursued Shaikh who ran via Wonderland, Naaz chowk and Lal Deval. He was finally overpowered on Moledina road after an hour and brought to the police station for questioning. “Shaikh, during interrogation, confessed about stealing three bundles of documents from the court and he gave details of the waste paper shop where he had sold the documents weighing over 20 kg for Rs 160. The police then recovered the documents from the shop of Moin Ansari in Camp,” Shinde said. Shaikh, who was arrested two years back in a theft case, had also revealed the names of his associates which led to the arrest of Ovhal. However, Shinde refused to names the two other suspects as investigations were still on. When Shaikh was questioned by Shinde, he said, “While I was waiting inside the court premises on early Monday morning, my accomplices uprooted the tin shed of the record room and stole the documents for making a quick buck.” Sub-inspector Majid Shaikh, who is investigating the case, said that the police are on the look out for the remaining suspects. “The court authorities had informed us that 55 documents, including judgements, were stolen.” Shinde further said, “The documents recovered have zero value. However, this is the first time that stolen documents have been found intact on the basis of information given by the suspects.” Judicial magistrate first class Prashant Kale and Abhijit Patankar rushed to the police station and identified the documents. “This is for the first time that the police had called the judicial officers for identifying the documents,” said joint commissioner of police (law and order) Rajendra Sonawane. Sonawane said, “The arrests and recovery of documents are one of the best detection’s ever made by the police in recent times.” He said, “I had personally monitored the investigations and issued guidelines to the policemen for keeping a tab on suspected persons.”

Man gets 7-yr RI for raping cousin
10 Apr 2009, 0137 hrs IST, TNN
CHANDIGARH: Deciding on a five-year-old case, the court of additional district and sessions judge SK Aggarwal handed down seven-year rigorous imprisonment to a man from Colony Number 4 for raping his 15-year-old cousin. The prosecution alleged that on August 8, 2004, the guilty called his cousin over to his house and committed the crime. Though an FIR had been registered soon after, rape charges weren’t initially included in it. It was only after a medical report, which confirmed rape, that the relevant section was added. While public prosecutor Vijay Jhingan pleaded for maximum punishment to the accused, defence counsel had contested that his client was being implicated.

HC order status quo on construction of overbridge
10 Apr 2009, 0508 hrs IST, TNN
LUCKNOW: The high court has directed the state government and state bridge corporation to maintain status quo on construction of an overbridge being constructed from the irrigation office on Birbal Sahni Marg via Hanuman temple to Nadwa Gate near Daliganj bridge till further hearing. The court has directed the government for filing counter-affidavit within two weeks and posted the matter for next hearing after two weeks. The order was passed by a division bench comprising chief Justice Chandramauli Kumar Prasad and Justice Pradeep Kant on a public interest litigation (PIL) filed by lawyer Jayant Singh Tomar. The bench directed chief standing counsel Devendra Upadhyaya to place before it the entire plan of the government regarding construction of the overbridge. The records were produced and the judges perused the documents, including the noting of an official which stated that the construction of the overbridge be hurried as the chief minister had desired to inaugurate it shortly. The bench said that ordinarily it did not interfere in such matters but since the issue related to the safety of masses, it was necessary to look into the matter. The petitioner pleaded that the construction was the criminal waste of public money. He contended that there was more necessity of overbridge and flyover to ease traffic congestion on IT crossing, Kaisarbagh crossing, Daliganj crossing and Aminabad. But only to gain political mileage and votes of a particular community, the said construction was being made. It was also stated that the authorities did not bother to obtain an NOC from structural engineers and environmentalists.

Sunny Deol gets bail in over decade-old case
10 Apr 2009, 1215 hrs IST, PTI
JAIPUR: Bollywood actor Sunny Deol was on Friday granted bail by a railway court in Jaipur in over a decade-old case of allegedly entering a platform without permission and pulling a train’s emergency chain during shooting of a film. In compliance with the Rajasthan High court’s order last week, Deol accompanied by his counsel Suresh Sahani, submitted a personal bond of Rs 25000 and two sureties of the same amount in the railway court before Additional Magistrate (Railway), Jaipur, Pooran Chand Sharma, who granted him bail. The High Court had decreed that Deol could be arrested, if he fails to turn up in the court by April 17. Besides Deol, actress Karishma Kapoor, fight master Tinu Verma and Satish Shah were accused in the 1997 incident. They illegally entered the Narena railway station in Ajmer division for shooting the scene of film ‘Bajrang’ and illegally pulled the chain of a train. According to the complaint, when the train was about to leave the station, unit members pulled the emergency chain and the train had to wait for additional 25 minutes, affecting the service on the sector. Assistant Station Master of the station Sitaram Malakar had then lodged an FIR at the GRP police station Phulera under section 141 of the Railway Act 1989 holding Deol and his co-stars responsible for the delay in departure of the train. Though after the probe, the police had exonerated the stars of any offence but the magistrate did not accept it and had issued non-bailable warrants against Deol and others. On March 24 last, actress Karishma Kapoor was granted bail by the Railway court in the same case.


Razak Jinnesab Karajagi & Ors vs. State of Karnataka dated 2009-04-01

Razak Jinnesab Karajagi & Ors. ….. Appellants
State of Karnataka ….. Respondent

JUDGMENT Lokeshwar Singh Panta, J.

1] Razak Jinnesab Karajagi [A-1], Jinnesab Rajesab Karajagi [A-2], Babulal Jinnesab Karajagi [A-3], Nabilal Jinnesab Karajagi [A-4] – appellants herein, have preferred this appeal under Section 2 [1] [a] of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction] Act, 1970 against the final judgment and order dated 03.09.2001 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 359 of 1996. By the impugned judgment, the High Court has set aside the order of acquittal dated 03.01.1996 of the appellants passed by the learned 1st Additional Sessions Judge, Bijapur, in Sessions Case No. 109 of 1994 under Section 302 read with Section 34 of the Indian Penal Code (for short the “IPC”] under Sections 201 read with Section 34 of the IPC and Section 506 of the IPC of A-2 and as a result thereof, A-1, A-2, A-3 and A-4 have been convicted for the aforesaid offences and sentenced to imprisonment for life under Section 302 read with Section 34 of the IPC and Section 201 read with Section 34 of the IPC. However, no separate sentence has been awarded so far, the offences under Section 201 read with Section 34 of the IPC are concerned and under Section 506 of the IPC, for which A-2 was separately convicted.

2] The prosecution case as unfolded before the trial court was that Allisab Rajesab Karajagi was a resident of Bairawadagi and A-2 is his first cousin. A-1, A-3 and A-4 are the sons of A-2. The daughter of Kashimabi – complainant [PW-1] was married to Allisab Karajagi and out of the wedlock they have got five daughters and two sons. Allisab Karajagi’s parents had died. His only sister was married and living in the State of Maharashtra. Allisab Karajagi was the owner of 4 acres of dry land and one small hut at village Bairawadagi. Allisab Karajagi alongwith his wife and children had gone to Maharashtra with wishful hope of earning more income for the maintenance of the family. He had frequently been going to village Bairawadagi for looking after the agricultural pursuits and harvesting the crops.

3] Bismilla [PW-2] is the daughter of Allisab Karajagi. It was the case of the prosecution that Allisab Karajagi and A-1 to A-4 had some litigation over the pathway leading to their respective lands. It was alleged that in and around 1992, Allisab Karajagi had assaulted A-2 and on account of that incident, the accused persons had entertained enmity with Allisab. During harvesting season of February, 1994, Allisab alongwith his daughter Bismilla [PW-2] went to attend their lands. Kashimabi [PW-1] mother-in-law of Allisab, and her relatives are the residents of village Devarahipparagi, which is situated at a distance of about 10 kms. from the land of Allisab. The land of Allisab is situated near to village Satyal within the limits of village Bairawadagi. Allisab, has constructed a small hut on the land where he used to stay during his visits.

4] It was the prosecution case that on 24.02.1994 at about 4.00 p.m., both PW-1 and PW-2 brought cooked-food for Allisab from the house of PW-1. It was at about 8.00 p.m. when Allisab, PW Kashimabi and PW Bismilla all had taken their food in the field and thereafter went to sleep. PW Kashimabi and PW Bismilla slept near the heap of the crop, whereas Allisab slept near the hut at a distance of about 2 or 3 yards away from PW Kashimabi and PW Bismilla. In the intervening night of 24/25.02.1994 at about 0015 hours, PW-1 and PW-2 on hearing loud cries of Allisab, woke up and heard him uttering “Allah Marare”. PW-1 and PW-2 saw and identified A-1 to A-4 in the moonlit night present near the place where Allisab was sleeping and they witnessed A-1 striking an axe blow on the head of Allisab. It was further alleged that A-2 asked A-3 and A-4 to drag the body of Allisab. A-1 thereafter alleged to have poured petrol on the person of Allisab and A-2 lit a match stick and set Allisab on fire. Having seen the incident, PW-1 and PW-2 rushed to the place of incident and tried to save the life of Allisab, but A-1 and A-2 held threat to their life. Because of fear to their life, PW-1 and PW-2 could not dare to save the life of Allisab from the clutches of the accused persons and they witnessed the incident as mute spectators. No sooner, the accused persons left the place of occurrence, PW-1 and PW-2 tried to extinguish the fire by throwing mud and water on the body of Allisab. Allisab was still alive and uttered “Kya ghat karare Razaak”. He later on succumbed to the injuries in the presence of PW-1 and PW-2 at the spot. PW-1 and PW-2 waited for one hour near the dead body of deceased – Allisab and thereafter they proceeded to village Satyal which is nearer to the land of the deceased and from there they boarded a truck and reached village Devarahipparagi where they narrated the entire incident to Ibrahimsab Modinsab MA Ikhed [PW-5] son of PW-1 and other family members. PW-1 alongwith her son PW-5 and some more persons went to Police Station, Basavanabagewadi, where PW-1 lodged a complaint (Ex. P-1] to Station House Officer – Siddappa Shankrapa Kumbar [PW-13], on the basis of which a Criminal Case No. 34 of 1994 came to be registered on 24.02.1994 at about 10.00 hours against the accused persons under Sections 302 read with Section 34 IPC and Section 201 read with Section 34 IPC.

5] Ramappa [PW-14], at the relevant time was working as CPI, Basavana Bageradi, received information about the crime from PW-13. PW-14 visited the Police Station at 11.00 a.m. on the same day and inspected the documents prepared by Head Constable No. 1427. He took up the investigation in his hands and visited the place of occurrence. He saw the dead body of Allisab lying in the field. The dead body of Allisab was sent to Dr. S.S. Badar [PW-4] – Medical Officer for post-mortem through constable PC No. 704 Y.R. Bhosale [PW-11]. PW-14 conducted spot panchnama marked as Ex. P-8. He seized gunny bags MO- 1 to MO-4 found lying on the spot. He recorded the statements of Bismilla [PW-2], Ibrahimsab Modinsab MA Ikhed [PW-5], Kashipati Basappa Devanaganv [PW-6], Basappa Mallappa Talikoti [PW-7] and Rasulsab Lalesab Karajagi [PW-8]. The accused persons absconded from the scene of occurrence and they could not be arrested by the police. PW-14 instructed his personnel to make search for the accused persons. The Investigating Officer received the post-mortem report (Ext.- P-3] from the doctor. On 13.03.1994, HC-1427, PC-702 produced A-1 and A-2 before him at 7.00 a.m. The Investigating Officer arrested them. On interrogation, A-1 voluntarily made a disclosure statement [Ex.-P-13] in the presence of Mahammadsab Inamsab Chapparbandi [PW-3] and Ibrahimsab Modinsab MA Ikhed [PW-5] and pursuant thereto, A-1 led the police party and the witnesses to the place of recovery wherefrom one axe, one baniyan (underwear), one dhoti were recovered, which were concealed at a hollow place in the cow shed. All the blood-stained articles were taken into possession vide panchnama (Ext.-P-2]. The weapon of offence and the blood stained clothes were marked as MO-7-9. A-3 and A-4 could not be arrested because they got pre-arrest bail. On 06.04.1994, Investigating Officer recorded statement of Namdev Shanker Kadam [PW-9]. On 13.05.1994, he sent seized articles to Chemical Examiner, Bangalore for chemical analysis through HC 1342 – G.A. Sangond [PW-12]. On receipt of the C. E.’s reports Exts. P-15 and P-16 and on completion of the investigation of the case, PW-14 on 16.05.1994 prepared chargesheet against the accused and filed it in the court of JMFC, Basavan Bagewadi under Section 302 read with Section 34 IPC and Section 201 read with Section 34 IPC as well as under Section 506 IPC against A-2. The learned Judicial Magistrate, Basavan Bagewadi, committed the case to the Sessions Judge for trial.

6] Before the learned 1st Additional Sessions Judge, the accused pleaded not guilty to the charges and claimed to be tried. The prosecution, in order to substantiate its case, examined as many as 14 witnesses, out of whom PW-1- Kashimabi, PW-2 – Kum. Bismilla are the eyewitnesses of the incident. In addition to oral evidence, the prosecution produced on record Exts. P-1 to P-16 and MO 1 to MO – 9.

7] The accused in the statements recorded under Section 313 of the Criminal Procedure Code (for short `Cr.P.C’) pleaded denial simpliciter. However, in defence they have not led any evidence. On examination of the oral and documentary evidence produced on record, the learned 1st Additional Sessions Judge by his order dated 03.01.1996 found the accused not guilty for the above-said charged offences, therefore, they were acquitted mainly on the ground of not accepting the evidence of PW-1 and PW-2 eyewitnesses branding them as interested witnesses.

8] Being aggrieved against the order of acquittal, the State of Karnataka preferred appeal before the High Court. The High Court allowed the appeal by the impugned judgment, holding A-1 to A-4 guilty of the charged offences and sentenced them for life under Section 302 read with Section 34 IPC. No separate sentence was imposed upon them for committing the offences under Section 201 read with Section 34 IPC and against A-2 for an offence under Section 506 IPC.

9] Feeling aggrieved thereby and dissatisfied with the judgment of the High Court, A-1 to A-4 have filed this appeal.

10] Mr. Rajesh Mahale, Advocate appearing on behalf of A-1 to A-4, vehemently contended that the judgment of the High Court reversing the order of acquittal passed by the trial court is erroneous in law being against the well-established principles with regard to interference in appeal under Section 378 of the Cr.P.C. He then contended that the trial court on appraisal of the evidence and consideration of circumstances has recorded well-reasoned order which cannot be regarded as preferably wrong or perverse; therefore, the interference by the High Court in the order of acquittal of A-1 to A-4 is wholly unwarranted and unjustified. He then contended that as the evidence of the prosecution is not satisfactory and consistent, therefore, the benefit of doubt has to be given to the accused, but in the present case the High Court has failed to appreciate this basic principle and convicted A-1 to A-4 on surmises and conjectures.

11] Mr. Sanjay R. Hegde, Advocate appearing on behalf of the State, has canvassed correctness of the views taken by the High Court in the impugned judgment. He submitted that the approach of the High Court in re-appreciating the evidence led by the prosecution cannot be found faulty. He then contended that the evidence of the eye-witnesses PW – Kashimabi and PW – Kum. Bismilla is concise, cogent and satisfactory on the point that it was A-1 who assaulted the deceased with a fatal blow of axe on his head and thereafter A-2 poured petrol and set Allisab on fire, as a result thereof, Allisab later on succumbed to the injuries sustained by him.

12] In order to appreciate the rival contentions of the learned counsel for the parties, we have made independent scrutiny of the evidence led by the prosecution to find out whether the High Court’s order of conviction of A-1 to A-4 can be sustained or not.

13] On reappraisal of the entire evidence on record, the High Court has formulated three points for its consideration: [1] Motive, [2] Evidence of the eyewitnesses and [3] Recovery of MO-7. [1] MOTIVE In support of motive, the prosecution has relied upon the evidence of PWs-1 to 5 and PWs 6, 7 and 8. Out of these witnesses, PWs – 7 and 8 have not supported the prosecution case to prove that one day before the day of incident, the witnesses noticed PW-1 and PW-2 carrying food to the field of the deceased. So far as the motive is concerned, however, they have supported PW-1 and PW-2. Admittedly, the appellants and the deceased are close relatives. It has come on the record that there was some civil litigation pending between A-1 to A-4 and the deceased over a pathway leading to their respective lands. It was also proved on record that A- 1 to A-4 on one hand and the deceased on the other hand used to quarrel over this issue. It is the evidence of PW-1, PW-2 and PW-5 the family members of the deceased which was corroborated by PW-6, PW-7 and PW-8 the independent witnesses that about two years before the day of incident, A-2 and deceased had a quarrel over the pathway leading to their respective fields. The defence has failed to impeach the evidence of the independent witnesses on this count. The evidence of the witnesses would go to show that the panchayat of the elders of the village was held, but dispute of the pathway could not be settled and solved by them which finally led the death of the deceased. The High Court relying upon the evidence of PWs – 1, 2, 5, 6, 7 and 8 has concluded that though the prosecution has proved that there was no strong motive attributed to A-1 to A-4, yet A-1 to A-4 had some motive to do away with the life of the deceased who was not residing at the place of the incident and had been cultivating his land from a far of place in the State of Maharashtra where he was living with his family members. [2] EVIDENCE OF THE EYEWITNESSES The case of the prosecution entirely rests upon the evidence of PW-1 and PW-2 – the witnesses of the occurrence. It is the evidence of PW-1 that on the day of the incident at about 4.30 p.m., she alongwith PW-2 – daughter of the deceased carried cooked-food for the accused from village Devarahipparagi to the fields where he had gone for harvesting the seasonal crop. They at about 8.00 or 8.30 p.m. jointly took their dinner and went to sleep. She and PW-2 had slept in front of heap of the crop stacked on the land of the deceased, whereas the deceased slept at a short distance near a hut. In mid-night hours, PW-1 and PW-2 heard loud cries raised by Allisab uttering “Allah Marare”. It is the evidence of PW-1 that on hearing cries, she and PW-2 both woke up and rushed to the nearby place where Allisab was sleeping. They saw A-1 assaulting the deceased with a blow of axe on the head. It is her evidence that when she and PW-2 tried to save the life of the deceased, A-2 threatened them if they would dare to interfere or shout for help, they would meet the same fate. A-2 openly shouted and commanded A-3 and A-4 to drag Allisab. A-3 and A-4 caught hold of the legs of Allisab and dragged him to a short distance. A-1 poured petrol from a can on injured- Allisab, whereas A-2 lit a match stick and threw the burning stick on Allisab with an intention to screen of the crime. She stated that A-1 to A-4 left the place of occurrence holding threats to them not to make any noise lest they would be finished. PW-2 corroborated the evidence of PW-1 in its entirety. She deposed that she saw A-1 striking axe blow on her father’s head. She noticed A-3 and A-4 standing by the side of A-1 and A-2, who held her father’s legs and dragged him to a short distance. It is her categorical statement that A-1 poured petrol on her father, whereas A-2 lit a match stick and threw the burning stick on her father’s body. She corroborated the testimony of PW-1 that A-2 threatened both of them that if they dared to raise any noise they would meet the same fate. After the accused had left the place of occurrence, they went near the deceased and tried to extinguish fire by pouring water and mud on the body of her father. According to her version, Allisab was still alive at that time and before his death he uttered “Tu kya karare Razaak”, and “Tu kya karare Jinne”. Razaak is no other person than A-1 and A-2 is called Jinnesab. She stated that she and PW-1 put some water into the mouth of her father but he could not swallow it because by that time he died. PW-1 and PW-2 deposed that they had seen and recognized the accused in moonlit night as they were not strangers to the witnesses. The prosecution has proved on record that during harvesting season the deceased had been going to village Bairawadagi. It was quite natural for PW-1 – the mother-in-law of the deceased, who belongs to the nearby village, to take food to her son-in-law and grand-daughter who were attending to their agricultural pursuits on the date of incident. It is the evidence of PW-5 son of PW-1 that his mother had been taking food to the deceased for the past about twenty days before the day of incident. The distance between village of PW-1 and the land of the deceased is about 10 kms and on the night of incident after taking food at about 8.00 or 8.30 p.m.; it was not possible and practicable for PW-1 to go back to her home. The High Court found PW-1 and PW-2 most natural and truthful witnesses, whose testimony was not rebutted and shattered by the defence on material aspect of the matter. The trial court rejected the evidence of the eyewitnesses merely on the ground that they are the interested witnesses and their presence on the day and at the place of the incident was held to be doubtful. The evidence of the eye-witnesses as referred to above is quite natural, satisfactory and believable to prove that after the incident due to repeated threats given by A-2 to do away with their life if they dare to make noise, PW-1 and PW-2 for about one hour remained seated by the side of the dead body of the deceased at the place of occurrence and thereafter went to the house of the deceased at Maharashtra. They disclosed the entire incident to the family members of the deceased and other village people. It was but natural that they too have first gone to the village of the deceased and apprised the incident to his family members and the relatives. After narrating the incident to the family members and village people, PW-1 along with PW-5 and other village people immediately went to the Police Station for lodging report of the incident. The eye-witnesses, under these circumstances, could not be expected to rush to the Police Station immediately after the occurrence of the crime or could have first gone to the village of the accused for seeking help from the villagers. It may be noted that the evidence of PW-1 and PW-2 cannot be rejected on the ground that they are relations of the deceased. It is well-settled that if the eyewitness is related to the deceased, his evidence has to be accepted if found to be believable and reliable because he would inter alia be interested in ensuring that the real culprits are punished. Both the eyewitnesses have been subjected to search in cross- examination by the defence, but nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not reliable and truthful witnesses. Therefore, the finding of the trial court disbelieving and discarding the evidence of PW-1 and PW-2 – eyewitnesses on the sole ground of stamping them as interested, partisan and parrot-like witnesses, in our view, is wholly unjustified and not tangible. [3] RECOVERY OF MO – 7 It is the evidence of PW-14 that disclosure statement [Ex.-P-13] was voluntarily made by A-1 and in pursuant thereto, weapon of offence MO-7 was recovered at the instance of A-1. Gunny bag seized from the spot and the blood-stained clothes of the deceased were sent to Forensic Science Laboratory, Bangalore. The report of the FSL, Bangalore, reveals that the presence of petrol was detected from partly burnt clothes of the deceased. On our examination of the judgment of the High Court, we find that the High Court has properly and rightly re-assessed and re-appraised the entire evidence on record and there is no infirmity or perversity in the reasoning record by the learned Judges of the High Court to interfere with the well-reasoned judgment to the extent of holding A-1 and A-2 guilty of the charged offences.

14] There is not an iota of evidence placed on record by the prosecution to prove that A-3 and A-4 had participated in the commission of the crime alongwith A-1 and A-2. PW-1 and PW-2 only stated A-3 and A-4 on the asking of A-2 caught hold of the legs of the deceased and dragged him to a short distance. The allegation levelled by the prosecution against A-3 and A-4 do not attribute any overt act or part played by them in the commission of the crime. The evidence of the prosecution is wholly lacking to hold that A-3 and A-4 had shared a common intention with A-1 and A-2 to cause the murder of Allisab. Similarly for the lack of any tangible, satisfactory or credible evidence, A-3 and A-4 cannot be held liable for causing disappearance of the evidence with intention of screening A-1 and A-2 from legal punishment under Section 201 read with Section 34, IPC. Therefore, the judgment and order of the High Court holding A-3 and A-4 guilty of the charged offences cannot be sustained.

15] No other point has been raised by the parties. We, thus, find no merit and substance in any of the submissions made on behalf of A-1 and A-2.

16] In the facts and circumstances of the case, we are satisfied and convinced that the prosecution has proved its case beyond all reasonable doubt against A-1 and A-2 and the High Court committed no error or perversity in interfering with the trial court’s order of acquittal of A-1 and A-2. However, the judgment of the High Court cannot be sustained against A-3 and A-4.

17] For the reasons above-stated, this appeal is allowed in part to the extent of upholding the conviction and sentence of A-1 and A-2. The conviction of A-3 and A-4 is set aside. A-1 and A-2 are on bail and their bail bonds and surety bonds are cancelled. A-1 and A-2 are directed to surrender within four weeks from the date of this judgment and serve out the remainder of the sentence imposed upon them by the High Court. If A-1 and A-2 fail to surrender as directed, the trial court will take coercive steps against them in order to comply with this order. Bonds furnished by A-3 and A-4 shall stand cancelled.

(Lokeshwar Singh Panta)

(B. Sudershan Reddy)

New Delhi, April 01, 2009.

All India Anna Dravida Munnetra Kazhagam vs. L.K. Tripathi and others dated 2009-04-01
CONTEMPT PETITION (C) NO.262 OF 2007 IN S.L.P. (C) NO.18879 OF 2007
All India Anna Dravida Munnetra Kazhagam … Petitioner
L.K. Tripathi and others … Respondents
CONTEMPT PETITION (C) NO.327 OF 2007 IN S.L.P. (C) NO.18879 OF 2007
J U D G M E N T G.S. Singhvi, J.
Whether respondent Nos.1 to 5 have willfully disobeyed order dated 30.9.2007 passed by this Court in Special Leave Petition (Civil) No.18879 of 2007 and thereby made themselves liable to be proceeded against under the Contempt of Courts Act, 1971 (for short ‘the 1971 Act’) read with Article 129 of the Constitution of India and whether respondent No.6 is guilty of criminal contempt within the meaning of Section 2(c) of the 1971 Act are the questions which arise for determination in this petition filed by All India Anna Dravida Munnetra Kazhagam through its Presidium Chairman Shri E. Madhusudhanan.
Background facts:
2.1 In an apparent bid to pressurize the Central Government to expedite implementation of Sethu Samudram Project, Democratic Progressive Alliance comprising Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, passed a resolution on 24.9.2007 to resort to total cessation of work and closure of shops on 1.10.2007 and to conduct a general meeting of the leaders of all parties on 30.9.2007 at Chennai. The relevant portions of the resolution are extracted below:
“… in order to make understand the fact that the support of the people is only to implement the Sethu Samudram Project expeditiously to the Central Government, it is resolved to conduct t otal cessation of work and closure of shops on the 1st of October, and to conduct a general meeting of the leaders of all parties on the 30th day of September, at Chennai.”
The petitioner challenged the afore-mentioned resolution in Writ Petition No.31435 of 2007 filed before Madras High Court and prayed that the call given by the political parties for organizing bandh in the State of Tamil Nadu either on 1.10.2007 or any other day may be declared as violative of Articles 19 and 21 and the Directive Principles of the State Policy and fundamental duties embodied and enumerated in the Constitution of India. Shri Subramania Swamy of Janta Party, Shri K.R. Ramaswamy @ Traffic Ramaswamy (founder Chairman of the Tamil Nadu Social Workers Association, Chennai) and Shri R. Balasubramanian also filed Writ Petition Nos.31478, 31462 and 31631 of 2007 with similar prayers.
Along with the writ petition, the petitioner filed two miscellaneous petitions with the prayer that a direction be issued to Dravida Munnetra Kazhagam represented by its President M. Karunanidhi (Respondent No.4 in the contempt petition) to deposit a sum of Rs.100 crore with the Chief Secretary, Government of Tamil Nadu on or before 28.9.2007 which could be utilized to compensate the damage caused to the general public and the five political parties be restrained from proceeding with the call for bandh in the State in terms of resolution dated 24.9.2007.
2.4 After hearing counsel for the parties, the High Court admitted the writ
petitions and issued the following directions to the Chief Secretary, Director General
of Police, District Collectors and other officers of the State:
“(i) To ensure that no political party, organization,
association, group or individual can, by organizing ‘bandh/ hartal’ or by force or intimidate, stop or interfere with the road and rail traffic or free movement of the citizens in the State of Tamil Nadu on the day of ‘Bandh’ i.e. 01.10.2007.
(ii) To ensure that the public transport in the State including the Civil Aviation run smoothly on the day of the ‘Bandh’ i.e. 1.10.2007.
(iii) To take appropriate action against the person(s) indulging in stoppage or interference with the road and rail traffic or free movement of the citizens in the State of Tamil Nadu.
(iv) Chief Secretary to the Government shall issue a Press Note to the Print Media and also the Electronic Media on 29/30.9.2007 informing about the preparation made by the Police to deal with the ‘Bandh’ and to make people secured.”
2.5 Feeling dissatisfied with the High Court’s order, the petitioner filed S.L.P.
(C) No.18879 of 2007 in this Court. The same was heard on 30.9.2007. The counsel
representing respondent nos.1 to 3, who volunteered to appear, also made their
submissions. After considering the respective submissions, this Court passed a
detailed order, the relevant portions of which are reproduced below:
“From a bare perusal of the aforesaid decision, it would be clear that neither anybody can give a call for Bandh nor the same can be enforced. The High Court, in the present case, has recorded a, prima facie, finding that, in the present case, the call was given for Bandh and not strike/hartal.
Ordinarily, High Court as well as this Court refrains from passing an interim order the effect of which would be granting the main relief. But in cases where a party approaches court without loss of time, there are no laches on its part, it is not possible to give notices to all the necessary parties and hear them because of paucity of time and in case interim order is not passed in a case like the present one, which, prima facie, in the opinion of court is concluded by judgment of this court, the main case would become infructuous, different considerations would arise and appropriate interim order should be passed. In the present case, apart from the State of Tamil Nadu, out of the political parties, namely, Dravida Munnetra Kazhagam, Indian National Congress, Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, only Dravida Munnetra Kazhagam has appeared before us, whom we have heard at length.
After taking into consideration the entire matter, prima facie, we are also of the view that the call given by the aforesaid political parties is a call for Bandh and not strike/Hartal. Accordingly, we have no option but to issue notices to the non-appearing respondents and pass interim order.
Issue notice.
Until further orders, Respondent Nos.3 to 7 are restrained from proceeding with the call for Bandh in the State of Tamil Nadu on 1st October, 2007 pursuant to resolution dated 24th September, 2007 or any other day.”
2.6 Even before filing of writ petition by the petitioner, the then Chief
Secretary of the State – Shri L.K. Tripathi (respondent no.1 herein) directed that theconcerned officers be asked to take steps necessary for maintaining essential servicesand for providing protection to important offices and establishments apart frommarkets and business places. The instructions given by the Chief Secretary werecirculated vide telefax No.SR.II/50641/2007 dated 27.9.2007, the relevant portions ofwhich are extracted below:-“1. Essential services like Telephone andTelecommunication, water supply, milk distribution, powersupply, fire services, newspapers, hospitals, shall be ensured tofunction and protection given.
2. Provide adequate protection to vital installations such as power stations/grids, sub-stations, important Government buildings, telecommunication and bridges, oil installations, railway bridges, etc.3. Arrange open line patrol with immediate effect.
Arrange for regular supply of milk and other essentials.
Provide adequate protection to the High Court and other Courts.
Action to be taken against anti-social elements and persons indulging in acts of violence and vandalism.
A visible police presence shall be maintained throughout the city.
A visible bandobast outside railway stations, bus depots, main roads, main junctions, hospitals, courts, schools and colleges will be maintained.
Necessary protection to market and business places shall be given.
All police control rooms will be fully activated to follow up incident to take proper stern and timely action.
Ensure that the ‘Hartal’ passes off peacefully.
Collectors may requisition and spare other department vehicles if required by the District Superintendent of Police.
Any incident of law and order and other matters of significance should be informed to Chief Secretary’s Control Room Telephone Nos.26571388 and 26570372, followed by FAX-25677128. Bi-hourly report commencing from 0600 hours on 01.10.2007 about the ‘Hartal’ should be given to Chief Secretary’s Control Room even if there is no incident. First Report should commence from 0600 hours on 01.10.2007.”
2.7 On coming to know of this Court’s order through electronic media,
respondent No.1 directed that telephonic instructions be given to all the Collectors to convene meetings with the respective Superintendents of Police for ensuring that law and order and public tranquility are maintained.
2.8 The Court’s order was officially communicated to respondent no.1 on the
same day i.e., 30.9.2007 at about 10.30 p.m. by fax. The latter immediately forwarded the same to respondent no.2 for taking necessary action. In turn, respondent No.2 directed the concerned police officers that steps should be taken for facilitating unobstructed movement of public transport and maintenance of essential services like water and electricity supply, milk distribution, telephone and telecommunication service, fire service, hospitals and protection be given to Central Government offices, courts, bus stands, railway stations, banks, market places, shops, industrial establishments, etc. These directions were conveyed to Zonal Inspector Generals of Police and Commissioners of Police by Additional Director General of Police (Law and Order) vide fax dated 1.10.2007 which was sent between 11.28 p.m. on 30.9.2007 and 6.30 a.m. on 1.10.2007. The contents of that fax are reproduced below:-
Date 30.09.2007
ADGP (L&O) Chennai – 4.
All Zonal IGPs and COPs
All unit officers are instructed to strictly follow the following instructions,
The Depots Managers of the State Transport Corporation will decide about running the buses subject to availability of crew. Sufficient Bandobust must be provided to all Bus Depots under their jurisdiction.
Anyone who obstructs the movement of Public transport should be picked up.
Bandobust should be provided to all essential services like Hospital, Electricity, Offices, Bus stands and railway stations etc.
Bandobust must be provided to all Central Government offices, Courts and Banks.
Beats and Patrol should be provided to all market places, shops and industrial establishments.
6. All anti-social elements should be picked up.
7. Sufficient Bandobust arrangements should beprovided at the places where Hunger strike isscheduled to be held.
Sd/- D.S.P.C.O.S.R.
For ADGP (L&O) Chennai-4 30.9.2007
C.No.D1/17566/IGP/NZ/2007 DATED 1.10.2007
Sd/- 1.10.2007
For IGP/NZ/CNI-16”
2.9 The Secretary to Government, Public (SC) Department also sent fax
No.SR.II/5064-5/2007 dated 1.10.2007 to all the District Collectors at 11.25 a.m. requiring them to send hourly reports to the Chief Secretary’s Control Room regarding the law and order situation, movement, transport, functioning of essential services, functioning of schools and colleges, opening of shops, hotels and other public utilities, attendance in Government offices etc.
3. On 3.10.2007, the petitioner filed this petition under Article 129 of the
Constitution of India read with the 1971 Act and prayed that the respondents be punished for violation and disobedience of the Court’s order dated 30.9.2007. The gravamen of the petitioner’s allegation is that in complete disregard of the restraint order passed by this Court, the concerned political parties including Dravida Munnetra Kazhagam enforced the bandh in the entire State by ensuring that buses owned by the State Transport Corporation are kept off the road and shops and other business establishments remain closed; that 45,000 private buses were also not allowed to ply on that day; that shops and other business establishments were forcibly closed by the cadres of Dravida Munnetra Kazhagam party and that the State machinery did not take any action to ensure functioning of public transport system and opening of the shops etc. It is also the petitioner’s case that even though 50,000 employees of the State Transport Corporation came forward to carry out their duties but they were prevented from entering the bus depots by the Depot Managers, Supervisor, etc. on the instructions of higher authorities and even the main gates of many bus terminals were closed and locked. To substantiate these allegations, the petitioner has placed on record the photographs collectively marked as Annexure P-5 and the telegrams which are said to have been sent by Shri K.K. Madeswaran, C. Sengottaiyan and M.A. Paneerselvam to Tamil Nadu State Road Transport Corporation, representation made by A.J. Selvaraj, Anna Trade Union Secretary, Radhapuram Taluk. In paragraph 14 of the Contempt Petition, it has been averred that several workers of Dravida Munnetra Kazhagam party moved in various vantage areas of the State with deadly and lethal weapons to ensure that no business or commercial activity was done on 1.10.2007 and whoever opened the shop was forced to down the shutters. It has been further averred that in Chennai, a restaurant at Arterial Mount Road was attacked and looted and many other shops and restaurants were ransacked and eatables were thrown out and bottles were broken, but the police remained mute spectators. In support of these averments, the petitioner placed on record copies of various newspapers. In paragraph 23, a reference has been made to the speech allegedly made by respondent No.6, Shri T.R. Balu, Union Minister for Shipping and Surface Transport, at the venue of the hunger strike on 1.10.2007 and it has been averred that the same was calculated to scandalize judiciary in general and order dated 30.9.2007 in particular. The relevant portions of the speech allegedly made by respondent no.6, which is said to have been published in the newspapers and also telecast on the television channels are extracted below:-“If we want to conduct a Bandh in a democratic manner to ensure speedy implementation of this Project, the Supreme Court is injuncting the same. Are judgments being delivered correctly in the Courts? If that is so, why are higher courts granting stay of orders of lower Courts?
If judges are not making mistakes why are there conflicting judgments? Today there are many complaints against many judges. Corruption charges are appearing everyday. What does that mean? If they were upright yesterday, does it mean that they are not upright now? When was a sitting ever held on a Sunday? Unprecedented things are taking place.
We are expressing our feelings. How many complaints are received against judges? There is provision in law for impeachment of sitting judges. The MPs’ sitting here should also think about it. Nothing wrong about it. Our MPs, including the ministers should know about it. Everyone including the ministers can sign it.”
4. In paragraph 7 of the reply affidavit filed by him, respondent no.1 has averred that after telecast of the news about the restraint order passed by the Court, telephonic instructions were issued to the District Collectors to maintain law and order and public peace. In para 8 of the affidavit, respondent no.1 has averred that immediately on receipt of the Court’s order, a copy thereof was sent to respondent no.2 with suitable instructions to take necessary action and within the available time the police force was mobilized and bandobust was provided to all vital installations, State and Central Government offices, educational institutions, Tamil Nadu State Transport Corporation depots, bus stands, railway stations, airports, markets, places of worship, hospitals, important junctions, business areas and other places where people used to congregate and bandobust was also provided to the industrial establishments for their smooth functioning and pickets were posted at all sensitive places to avert law and order problems. According to respondent No.1, effective patrols and mobiles were organized for ensuring free flow of traffic in the State and open line patrols were deputed for keeping watch on the railway tracks; all the courts including the Madras High Court were given sufficient protection; vehicle checks were organized to prevent the movement of anti-social elements and trouble mongers and rowdy elements were detained under preventive measures. Respondent No.1 has claimed that on 1.10.2007 all the Courts functioned normally and movement of trains and other essential services were maintained without any obstruction. As regards transport services, respondent no.1 has averred that less number of Government transport services operated in the early morning but with the passage of time around 2749 routes were made operational.
In his affidavit, respondent no.2, Shri P. Rajendran, has detailed the steps taken for ensuring presence of police at various important places for maintaining law and order and movement of transport services. He has denied that workers of Dravida Munnetra Kazhagam party had forcibly closed business establishments and shops by wielding lethal and deadly weapons for the purpose of conveying threats to the public.
In his affidavit, respondent no.3 – Shri Debendranath Sarangi has given an account of the steps taken for ensuring normal operation of State Transport Services. In paragraphs 11 of the affidavit, respondent no.3 has averred that senior officers, i.e., Branch Managers and Divisional Managers of various State Transport Undertakings were instructed to ensure normal operation of buses on 1.10.2007. Respondent No.3 has then averred that the officers were on duty on 1.10.2007 and adequate police bandobust was provided at the Depots, but most of the crew did not turn up in the morning on 1.10.2007 and even those who came did not enter the Depot premises, did not sign the duty chart and dispersed after holding demonstration in front of the Depots; that the Branch Managers and Divisional Managers made efforts to operate the bus services with the help of available crew and with the passage of time the number of services substantially increased. Respondent No.3 has denied that the Drivers and Conductors were prevented from carrying out their duties or that the conductors did not issue tickets or that the main gates of bus terminals were closed and locked. He has also denied receipt of any representation or telegram. In para 15 of the affidavit, respondent No.3 has referred to the call given by the trade unions to abstain from work in the wake of decision taken by the political parties and averred that even though the latter withdrew the call for cessation of work, there was no corresponding response from the trade unions due to paucity of time and also due to the fact that most of the workers had left for outside places taking advantage of the impending strike and two days’ holidays. Respondent No.3 has also stated that the crew members who did not attend the duty on 01.10.2007 have not been paid the wages as per the policy “no work no pay”. Respondent No.3 has controverted the petitioner’s assertion that daily collection of the Transport Corporations is over Rs.10 crores. According to him, the average collection of the Transport Corporations is Rs.7.5 crores per day, which is reduced to half on any holiday and less than half in the event of continuous holidays for 3-4 days. According to respondent No.3, total collection on 1.10.2007 was Rs.483 lakhs. Lastly, respondent no.3 has averred that in observance of the order of this Court necessary instructions were given to Managing Directors of all the State Transport Corporations to ply buses and send reply by Fax.
7. Respondent No.4, Shri M. Karunanidhi, has come up with the plea that
initially he was advised to adopt the counter affidavits of respondent nos.1 and 2 and a statement to that effect was made before the Court on 4.8.2008 by the advocate representing the State of Tamil Nadu but, later on, he decided to file a separate counter affidavit. In paragraph 3 of the affidavit, respondent no.4 has given the background in which decision was taken by Democratic Progressive Alliancecomprising major political parties in Tamil Nadu to demonstrate their concern on thedelay in implementation of Sethu Samudram Project by observing cessation of workbetween 6 a.m. to 6 p.m. on 1.10.2007. Respondent No.4 has then averred that on thebasis of reports appearing in the TV news channels and after verifying the facts fromcounsel appearing on behalf of respondent no.3 in the special leave petition, he gave acall at about 1.30 p.m. for withdrawal of resolution dated 24.9.2007 and this wasconveyed to the concerned political parties. According to respondent no.3,instructions were given to the government officials to carry out the Court’s order andensure that the bandh did not take place on 1.10.2007 and the fast undertaken bypolitical parties should not, in any way, affect the general public or hinder theirroutine life. For the sake of convenience, paragraph 7 of the affidavit of respondentno.4 is reproduced below:-“7. The order passed by this Hon’ble Court wascommunicated to the Chief Secretary to Government of TamilNadu by FAX at 10.30 PM by the Registrar of this Court on30.09.2007. Even before the order was officially communicated, itwas flashed in the TV News channels. After verifying withcounsel at New Delhi and without waiting for any formalcommunication from this Hon’ble Court, at about 1.30 PM Iimmediately called for the withdrawal of the resolution dated24.09.2007 passed by the Democratic Progressive Alliance forcessation of work. This was also conveyed to all political parties,which were party to the said Resolution. However, DemocraticProgressive Alliance decided to hold a day long fast on 1st October,2007 to draw attention to the importance of the SethuSamuthiram Project and for early implementation of the same. Imade it clear at that time that the fast was not against the order ofthis Hon’ble Court. I annex an extract from the Hindu newspaper1st October, 2007 reporting this (Annexure –R1). I also gaveinstructions to Government officials to carry out the order of thisHon’ble Court and to ensure that the Bandh did not take place on1st October, 2007, and that the day long fast undertaken bypolitical parties should not in any way affect the general public orhinder their routine life.”
8. Respondent No.5 has taken the stand that at the time of passing of order by this Court, he was in his constituency (Trichy) and on receipt of information about the Court’s order, he instructed respondent no.3 to take steps to maintain normalcy in transport services on 1.10.2007. Respondent No.5 has also stated that he had been continuously monitoring the operation of transport services from Trichy and also made efforts to contact the trade unions and instructed them to direct the workers to report for duty in view of withdrawal of call for cessation of work given by Democratic Progressive Alliance.
In paragraphs 4 and 5 of affidavit dated 26th August, 2008 filed by him, respondent no.6 – Shri T.R. Baalu has resorted to the rhetoric that he has highest respect for the judiciary and he is a strong believer in the independence of the judiciary. In paragraph 7 of the affidavit, respondent no.6 has made a mention of his electoral achievements and averred that the contempt petition has been filed with the sole object of tarnishing his political image in the State and position as Minister in the Central Government. In paragraph 8, respondent no.6 has alleged that by filing petition before this Court, the petitioner which is the main opposition party in the State is trying to indirectly achieve which it could not achieve in the political arena. Respondent No.6 has then given his own interpretation of the term bandh and averred that he did not participate in any activity which can be described as a bandh. In paragraph 11 of the affidavit, respondent no.6 has averred that nothing in the quoted speech constitutes participation in bandh or instigating others to do so and whatever he said was legitimate exercise of freedom of speech. In paragraph 12, respondent no.6 has claimed that the newspaper report regarding his speech is not accurate and words have been put in his mouth which were not uttered by him.
Arguments in the case were heard on 11.11.2008 and concluded on 12.11.2008 qua the alleged contemnor nos.1 to 5. However, the case was adjourned to 10.12.2008 to enable the petitioner to file additional affidavit in relation to respondent no.6 with liberty to the latter to file reply within two weeks. On the next date, i.e., 10.12.2008, the Court considered an application made on behalf of the petitioner for summoning the tapes of the speech allegedly made by respondent no.6 on 1.10.2007 at Chennai and ordered issue of notice to the Resident Managers of Times Now Channel and Jaya T.V. requiring them to produce the tapes and original chips of the speech. Notices were also issued to Dhanya Rajendran and M. Ramasubramanian (reporters) and Manish Dhanani, Y. Jayaprakash and S. Ravikumar (camera persons of Times Now Channel and Jaya T.V. respectively).
In response to the Court’s notice, Shri M. Vasudev Rao, authorised signatory of Times Global Broadcasting Company Limited, which is running Times Now Channel, sent letter dated 16th January, 2009 stating therein that the company is unable to provide the original tapes and news clips of the speech delivered by respondent no.6 because in terms of the Uplinking and Downlinking Guidelines issued by the Ministry of Information & Broadcasting, Government of India, the company maintains a record of the contents uplinked and downlinked by its channel for a period of 90 days from the date of its telecast. After taking note of that letter, the Court allowed further time to the parties to file affidavits.
In furtherance of the liberty given by the Court, the petitioner filed affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, who were working as Reporter, Assistant Camera Person and Senior Sub-Editor respectively with Jaya T.V. on 1.10.2007. In his affidavit, Shri M. Ramasubramanian has claimed that he was deputed to cover the hunger strike organized by DMK and other allied parties on 1.10.2007 in front of the State Guest House, Chepauk, Chennai. He has then averred that he along with Shri Ravikumar (camera person) and Shri Satish (camera assistant) went to cover the events and that he was present at the venue where respondent no.6 made speech and Ravikumar recorded the speech which was in Tamil with sentences/phrases in English. According to Ramasubramanian, speeches of respondent no.6, Shri D. Raja of C.P.I. and Shri K. Veeramani of Dravida Kazhagam only were recorded and the original tapes were handed over to Shri R. Thillai. According to Shri S. Ravikumar, he accompanied by Shri Satish went to the venue of the hunger strike and recorded the speeches made by three persons and, thereafter, original tapes were handed over to Shri R. Thillai. In his affidavit, Shri R. Thillai has stated that Jaya T.V. shoots visuals on cameras using DV tapes and so far the channel has not shifted to the digital format and whenever visuals are brought by the reporting team, the same are ingested into the visual editing system called Avid and, thereafter, the tapes are reused for recording other events. Paragraphs (d), (e) and (f) of the affidavit of Shri R. Thillai, contain the following statements:
“d. It may be noted that the original tapes on which the visuals are recorded upon being ingested into the avid system as aforesaid and after the necessary visuals are taken, are re-used for recording other subsequent events. In the process, the left out visuals of a previous recording are erased since new recordings are made over the same. The tapes are re-cycled in this manner and not retained in view of commercial and operational compulsions.
e. Some of the original recordings are transferred on toseparate DV tapes or DVDs for archival purposes as for example,file shots of certain important events so that they could be used forfuture purposes. The news bulletins, as telecast over the channel,are stored in the DVD format in the library.
f. That the protests organized by the DMK and its allieson 1.10.2007 by way of the hunger strike at Chennai was coveredby the reporting team of Mr. Ramasubramanian and Mr. S.Ravikumar and Camera assistant Satish. They had handed overto me the original tapes containing the events recorded includingthe speech made by Mr. T.R. Baalu, Union Minister for Shippingand of certain other speakers during the afternoon on 1.10.2007.On my instructions, the news branch technicians ingested thecontents of the original tapes containing the events covered including the speech of Mr. T.R. Baalu, into the Avid system. From this, I selected the portions in the speech of Mr. Baalu which were most objectionable and found appropriate to be telecast. Accordingly, the portions were selected and telecast in the news bulletin carried by the channel on 1.10.2007 at 7.30 PM and on 2.10.2007 at 7.30 PM. The portions of the speech as telecast on the news bulletins clearly show the speech made by Mr. T.R. Baalu and the objectionable statements made by him, the translations of which read as follows:
“A Judge is a judge till yesterday. Today there are allegations against him. Every day a list of corruption charges are coming out from Delhi. What does that mean? Is a person who was honest till yesterday dishonest today? The nation has not forgotten the fact that such people are also judges. When has there been [hearing] on a Sunday? Something unprecedented is happening. Why is there a provision for impeachment in the Constitution? Our M.Ps are all sitting here. We should also think about it. There is nothing wrong about it. Our MPs must know about it. Including Ministers. Everybody can sign it.”
The news bulletins as telecast is submitted before this Hon’ble Court in the form of a DVD which is filed as Annexure A/1 to this affidavit.”
In the last paragraph of his affidavit which is again marked as (f), Shri R.
Thillai has stated as under:
“f. That I submit therefore that the original tape
containing the speech of Mr. T.R. Baalu is not available. Nevertheless, the news bulletins telecast by the channel containing the objectionable portions of his speech are presented before this Hon’ble Court.”
13. To the above noted 3 affidavits, respondent no.6 has filed a reply on
21.3.2009. The thrust of his reply is that Jaya T.V. is controlled by AIADMK party on whose behalf the contempt petition has been filed and, therefore, it cannot be treated as an independent media and that failure of the management of Jaya T.V. to produce tapes and original chip of the speech allegedly made by respondent no.6 should be treated as sufficient for rejecting the affidavits. In paragraphs 7 to 12 of the reply, it has been averred that the petitioner has produced before the Court a truncated, edited and doctored version of the telecast made by Jaya T.V. channel, and the same is liable to be discarded because the full and correct version of the speech made by respondent no.6 has been erased and the original tape containing the speech has not been produced.
In the light of 3 affidavits filed on behalf of the petitioner and counter filed by respondent no.6, further arguments were heard on 25.3.2009 and judgment was reserved.
Shri S. Guru Krishna Kumar, learned counsel for the petitioner in S.L.P. (C) No.18879 of 2007 representing the petitioner in Contempt Petition (C) No.262 of 2007 argued that in view of the orders passed by the Division Bench of the Madras High Court and this Court, the call given by Democratic Progressive Alliance for cessation of work must be treated as call for bandh in the State and even though respondent no.4 is said to have made a statement on 30.9.2007 at 1.30 p.m. giving an impression that resolution dated 24.9.2007 was withdrawn, no direction was given by the political establishment to the concerned officers to ensure that the administration moves on and respondent Nos.1 to 3 did not take steps to prevent disruption of normal life in the State. He further argued that the so called withdrawal of the call given by the political parties for cessation of work must be treated as sham because the workers of the party headed by respondent No.4 indulged in physical violence and ensured that bandh is observed throughout the State by forcing closure of shops and commercial/ industrial establishments. Learned counsel relied on the newspaper reports to buttress his submission that the workers of Dravida Munnetra Kazhagam party had, by wielding deadly weapons compelled the shop keepers to down the shutters and general public to remain away from the streets and argued that this should be treated as sufficient for drawing an inference that respondent no.4 had deliberately manipulated violation of the Court’s order. Shri Guru Krishna Kumar emphasized that the business, commercial/industrial establishments could not have remained closed without intimidation and use of force by the outfits of the political parties and argued that respondent no.4 should be held responsible for the acts of his party workers. Learned counsel then argued that by sitting on hunger strike, respondent No.4 and other political parties deliberately violated the Court’s order restraining them to organize bandh because out of fear the schools, colleges, business, commercial and industrial establishments were closed and people refrained from carrying out their normal activities. Learned counsel submitted that if respondent no.4 genuinely wanted to abide by this Court’s order then after making a statement in the afternoon of 30.9.2007 that there will be no cessation of work, he would have given written instructions to respondent nos.1 to 3 to ensure that the public life is not disturbed but instead of doing so respondent no.4 indirectly encouraged the officers to enforce the bandh else there was no reason why majority of buses belonging to seven State Transport Corporations did not ply on 1.10.2007 putting the general public to great inconvenience and acute hardship. Learned counsel referred to the averments contained in paragraphs 10 to 12 of the contempt petition, to show that even as per the statement made by respondent no.1 in an interview given to a television channel during the mid day on 1.10.2007, only 61 of the 18641 buses could be operated on the date of bandh and argued that this should be treated as a clear proof of abject failure of respondent nos.1 to 3 to ensure that the normal life is not affected and the public is not inconvenienced. Learned counsel pointed out that due to the bandh organized by Democratic Progressive Alliance, which was indirectly supported by respondent nos.1 to 3, State Transport Corporations suffered loss to the tune of Rs.10 crores and submitted that all the respondents should be made to compensate the State Transport Corporations. Learned counsel submitted that in a cabinet form of government, the political party in power is responsible for the action and omissions of the administrative officers and, therefore, respondent no.4 should be held guilty of committing contempt of Court. As regards respondent no.6, Shri Guru Krishna Kumar strongly relied on the speech made by the said respondent on 1.10.2007 and argued that he should be held guilty of committing criminal contempt within the meaning of Section 2(c) of the 1971 Act and adequately punished. In support of his arguments, Shri Guru Krishna Kumar relied upon the judgments of this Court in Mohd. Aslam v. Union of India [(1994) 6 SCC 442], M. v. Home Officer [(1993) 3 All ER 537], A. Sanjeevi Naidu v. State of Madras [(1970) 1 SCC 443], Azhar Ali Khan v. Commissioner, Municipal Corporation of Delhi [(1984) 3 SCC 549], Hoshiar Singh v. Gurbachan Singh [1962 (Supp) 3 SCR 127], T.N. Godavarman Thirumulpad v. Ashok Khot [(2006) 5 SCC 1], Aswini Kumar Ghose v. Arabinda Bose [1953 SCR 215] and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar [(1970) 2 SCC 325].
Shri R. Venkataraman, learned counsel appearing on behalf of the petitioner in Contempt Petition No.262 of 2007 argued that respondent nos.1 to 5 are guilty of civil contempt inasmuch as they willfully disobeyed the directions contained in order dated 30.9.2007 passed in Special Leave Petition (Civil) No.18879 of 2007 and ensured that total bandh is organized in the State. Learned counsel further argued that respondent no.6 is guilty of criminal contempt because he scandalized the Court’s order dated 30.9.2007 by making unwarranted remarks against the judiciary in general and particularly against the Bench which passed the restraint order.
Shri Ashok Desai, learned senior counsel appearing for respondent nos.1 and 2 argued that his clients cannot be held guilty of contempt of court because even before formal receipt of the Court’s order at 10.30 p.m. on 30.9.2007, respondent no.1 had issued detailed instructions to all the officers to ensure that general public is not inconvenienced and normal life is not disrupted on account of the call given by the political parties for hartal. Learned senior counsel referred to the instructions contained in telefax issued as per the directions of respondent No.1 and fax sent by Additional Director General of Police (Law & Order) to show that respondent nos.1 and 2 had taken all measures for protection of hospitals, courts, railways, airports, banks, schools, telecom installations, transport services, shops and markets, industrial establishments and for ensuring that essential services like supply of milk and water and movement of trains are maintained without any obstruction and the police force was mobilized to protect the lives and property of the people in addition to Government and private establishments. Shri Desai emphasized that proceedings under the 1971 Act are quasi criminal and argued that respondent nos.1 and 2 cannot be accused of committing contempt within the meaning of Section 2(b) of the 1971 Act because the petitioner has not produced any evidence to show that they willfully disobeyed order dated 30.9.2007. Learned senior counsel submitted that respondent nos.1 and 2 cannot be held guilty of contempt merely because leaders of political parties sat on hunger strike on 1.10.2007 and the business community did not open the shops in view of resolution dated 24.9.2007 passed by Democratic Progressive Alliance for cessation of work. He submitted that the buses of the State Transport Corporations could not be operated in the early part of the day on 1.10.2007 because trade unions affiliated to political parties had decided to abstain from work and large number of employees might have left their stations in view of the call for cessation of work on 1.10.2007 given by the Democratic Progressive Alliance and the coming holidays on 29th and 30th September, 2007 and again on 2nd October, 2007.
18. Shri T.R. Andhyarujina, learned senior counsel appearing for respondent no.4, extensively referred to affidavit dated 22.8.2008 of his client to show that even before receipt of the Court’s order, he had made a statement for withdrawal of resolution dated 24.9.2007 and argued that in the absence of any evidence to show that respondent no.4 had instigated anyone to disrupt the essential services or cause inconvenience to the general public, he cannot be proceeded against under the 1971 Act. Learned counsel submitted that telefax dated 30.9.2007 sent at the instance of respondent no.1 also shows that the administration had taken positive steps to ensure that essential services are not disturbed due to call given by the political parties for cessation of work etc. on 1.10.2007 and the police bandobust was provided for all public and private establishments and effective steps were taken for maintaining transport services.
Dr. A.M. Singhvi, learned senior counsel appearing for respondent nos.3 and 5, argued that the concerned Minister and Secretary had made genuine efforts to ensure that operation of buses by the State Transport Corporations is not jeopardized due to the call given by the Democratic Progressive Alliance for cessation of work or for hunger strike on 1.10.2007 and, therefore, they cannot be held guilty of contempt under Section 2(b) of the 1971 Act. Dr. Singhvi placed before the Court a compilation of fax messages and circulars issued by respondent no.3 and statements containing the details of buses operated by seven State Transport Corporations on 1.10.2007 and collection of revenue to the tune of Rs.4.83 crores and argued that in the absence of any evidence or contemporaneous record to show that respondent nos.3 and 5 were directly responsible for non-operation of bus services for some time, they cannot be hauled up on the allegation of committing contempt of Court. Shri Singhvi emphasized that unless intentional circumspection of the Court’s order or positive attempt to frustrate implementation thereof is proved, the respondents cannot be proceeded under the 1971 Act.
Shri M.N. Rao, senior advocate argued that newspaper reports of the alleged speech made by respondent no.6 on 1.10.2007 at Chennai cannot be relied upon for holding him guilty of contempt of court because the petitioner has not produced primary evidence of the so-called speech. Shri Rao emphasized that newspaper reports merely represent the version given by the correspondent on the basis of his understanding/impression of the speech made by respondent no.6 and the same do not constitute primary evidence of what was actually stated by respondent no.6 warranting initiation of action for criminal contempt. Shri Rao further argued that the tape/CD of the telecast of the speech of respondent no.6 does not represent the true and correct version of what was said and as the original version has been erased and tape has been reused, the allegation made against respondent no.6 is liable to be discarded.
In his rejoinder arguments, Shri S. Guru Krishna Kumar highlighted discrepancies in the fax messages sent by respondent no.3 as also the statement of income produced by Dr. A.M. Singhvi and submitted that these documents appear to have been fabricated after issue of notice by this Court. He then argued that these documents cannot be relied for exonerating respondent nos.1 to 3 of the charge of highly contumacious conduct which resulted in violation of the Court’s order.
We have considered the submissions/arguments of learned counsel for the parties. Section 2(b) and (c) of the 1971 Act which define civil and criminal contempt read as under:
2(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
2(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court ; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”
An analysis of Section 2(b) shows that willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court constitutes civil contempt. If this definition is read with Article 129 of the Constitution of India, it becomes clear that being a Court of record, this Court can punish a person for civil contempt if it is found that he has willfully disobeyed any judgment etc. or violated undertaking given to the Court.
23. The term “wilful” (willfull) has not been defined in the 1971 Act.
Therefore, it will be useful to notice dictionary meaning of the said term. As per The New Oxford Illustrated Dictionary (1980 Edition), the term “willful” means “asserting or disposed to assert one’s own will against instruction, persuasion, etc. obstinately self-willed; deliberate, intentional, showing perversity or self-will”. According to Black’s Law Dictionary, Vol.II (8th Edition) – Willful means “voluntary and intentional, but not necessarily malicious” and willfulness means “the fact or quality of acting purposely or by design; deliberateness; intention; willfulness does not necessarily imply malice, but it involves more than just knowledge; the voluntary, intentional violation or disregard of a known legal duty.” As per the Stroud’s Judicial Dictionary, Vol.5 (4th Edition), wilful disobedience means “the willful disobedience of a SEAMAN or apprentice is ‘wilfully disobeying any lawful command DURING the engagement’: ‘There may be many cases in which desertion or absence without leave, would not amount to willful disobedience, and in these cases the seaman would only be liable to the lesser penalty. Where, however, the seaman deserts or is intentionally absent without leave after the time at which he has been lawfully ordered to be on board, his desertion or absence may amount to ‘wilful disobedience’, and, consequently, that he would be liable to imprisonment. The words ‘during the engagement’ seem to suggest that the contract between the employer and the employed should be taken into account, and that if, having regard to that contract, the order was one which the employed was bound to obey, his disobedience might be dealt with under clause (d)” In Shorter Oxford English Dictionary, the term “willful” has been defined as, “asserting or disposed to assert one’s own will against persuasion, instruction, or command; governed by will without regard to reason; obstinately self-willed or perverse; 2. Willing; consenting; ready to comply with a request, desire, or requirement – 1598. 3. proceeding from the will; done or suffered of one’s own free will or choice; voluntary – 1687. 4. Done on purpose or wittingly; purposed, deliberate, intentional. (Chiefly, now always, in bad sense of a blameworthy action; freq. implying ‘perverse, obstinate’.)
24. In Ashok Paper Kamgar Union v. Dharam Godha and others [(2003) 11 SCC 1], this Court was called upon to decide whether the respondents, i.e., Shri Dharam Godha, Chairman, Nouveau Capital & Finance Ltd., Shri S. Jagadeesan, Joint Secretary, Ministry of Industry, Department of Industrial Policy and Promotion, Government of India, Shri G.S. Kang, Secretary, Department of Industries, Government of Bihar, Shri S.N. Khan, Chairman and Managing Director and Shri R.P. Chabra, Chief General Manager, Rehabilitation Finance Department, Industrial Development Bank of India were guilty of contempt. The facts of the case were that by an order dated 8.7.1996, this Court approved the proposal made by the Government of India for take over of M/s. Ashok Paper Mills by M/s. Nouveau Capital and Finance Ltd. and disposed of the writ petition filed by Ashok Paper Kamgar Union. Later on, by an order dated 1.5.1997, all concerned were directed to participate in implementation of the scheme and the Finance Secretary, Ministry of Finance, Government of India was directed to ensure that the legal requirements are fulfilled and the mill is rehabilitated and both Phases I and II of the Scheme are given effect to. Two more orders were passed by the court in the matter on 31.7.2000 and 1.9.2000. The petitioner alleged that the respondents have failed to comply with the directions given by the Court for implementation of the Scheme and, therefore, they are liable for contempt of court. This court took cognizance of the fact that M/s. Nouveau Capital & Finance Ltd. had failed to pay the consideration of Rs.6 crores; that IDBI had disbursed term loan of Rs.15 crores towards Phase I of revival Scheme; that the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India in cooperation with the Department of Banking obtained sanction for additional term loan of Rs.11 crores from IDBI and a working capital of Rs.9.25 crores from United Bank of India; that NCFL had invested Rs.20 crores towards promotion contribution which was much more than amount contemplated in Phase I of the Scheme and held that respondents cannot be held guilty of contempt. Para 17 of the judgment which contains discussion on the subject reads as under:
“Section 2(b) of the Contempt of Courts Act defines “civil contempt” and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court. “Wilful” means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case. The facts mentioned above show that none of the respondents to the petition can be held to be directly responsible if the Scheme which had been formulated by the Government of India on 28-6-1996 and had been approved by this Court by the order dated 8-7-1996 could not be implemented in letter and spirit as many factors have contributed to the same. The reasons given for non-inclusion of Shri Umadhar Prasad Singh in signing of the agreement appear to be quite plausible. NCFL has undoubtedly not discharged its liability of making payment of its entire liability of Rs.6 crores. However, it has come out with a case that some additional expenditure has been incurred in running the unit. It is not possible to get the complete financial picture only on the basis of the affidavits filed in the present petition. On the material on record, therefore, it is not possible to hold that the charge of having committed contempt of court on account of alleged non-compliance with the orders passed by this Court on 8-7-1996, 1-5-1997 and 31-7-2000 has been established against any one of the respondents.”
[Emphasis added]
25. In Delhi Development Authority v. Skipper Construction [(1995) 3 SCC 507], this Court highlighted distinction between the civil and criminal contempt in the following words:-“Civil contempt is defined under Section 2(b) of the Act. Thus, any wilful disobedience to the order of the court to do or abstain from doing any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked and exercised to enforce obedience to orders of the court.
On the contrary, criminal contempts are criminal in nature. It may include outrages on the Judges in open court, defiant disobedience to the Judges in court, libels on Judges or courts or interfering with the courts of justice or any act which tends to prejudice the courts of justice.”
26. In Kapildeo Prasad Sah and others v. State of Bihar and others [(1999) 7 SCC 569], the Court outlined the object of its contempt jurisdiction in the following words:-“For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court’s order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court’s order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court’s orders and its implications. Disobedience of the court’s order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice.
No person can defy the court’s order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court’s order must allege deliberate or contumacious disobedience of the court’s order.”
[Emphasis added]
27. In the light of the above, we shall now consider whether respondent nos.1 to 5 can be said to have willfully disobeyed order dated 30.9.2007. At the cost of repetition, we consider it necessary to point out that while issuing notice in Special Leave Petition (Civil) No.18879 of 2007, this Court restrained the political parties from proceeding with the call for bandh in the State of Tamil Nadu on 1.10.2007 pursuant to resolution dated 24.9.2007 or any other day. The language of the restraint order is unambiguous. The prohibitive injunction contained therein was explicitly directed against the political parties and not against respondent nos. 1 to 3. The Court did not direct respondent nos. 1 to 3 to act in any particular manner or take certain specific steps to meet the challenge likely to be posed by implementation of the call given by Democratic Progressive Alliance. This was so because the Court could not have presumed that the restraint order passed by it will be disregarded or flouted by the political parties. Therefore, respondent nos.1 to 3 cannot, per se, be held guilty of disobeying or violating the Court’s order dated 30th September, 2007 and punished for committing contempt of court as defined in Section 2(b) of the 1971 Act.
No doubt, the petitioners have repeatedly asserted that the buses of State Transport Corporations and 45000 private buses remained off the road on 1.10.2007 causing serious inconvenience to the general public and loss of revenue to the tune of Rs.10 crores, but their assertion is partly belied by the counter affidavits of respondent nos.1 to 3, wherein all the officers have detailed the reasons for operation of less number of buses in the initial hours on 1.10.2007 and the fact that revenue collection of the day was to the tune of Rs.4.83 crores. In his affidavit, respondent no.1 has categorically averred that during the course of the day 2749 routes were made operational. The affidavits of the official respondents also reveal that despite instructions issued to various functionaries, normal transport services could not be made available on account of the support extended to resolution dated 24.9.2007 by the trade unions affiliated to the political parties and the fact that large number of employees had gone on leave thinking that the services may not operate in the wake of the call given by the political parties and three holidays. This has not been controverted by the petitioners. The photographs produced by petitioner – All India Anna Dravida Munnetra Kazhagam do show empty streets, but the same cannot be made basis for recording a finding of guilt against respondent nos. 1 to 3, more so because the petitioners have not produced any evidence to prima facie establish that the transport services did not at all operate in the State on 1.10.2007 and that too on account of any action or omission on the part of respondent nos. 1 to 3. This being the position, it is not possible to record a finding that respondent nos. 1 to 3 or for that reason respondent no.5 deliberately disobeyed or violated the direction given by this Court.
The petitioners have also not placed on record any evidence to show that despite restraint order passed by the Court on 30.9.2007, the political parties constituting Democratic Progressive Alliance resorted to strike or bandh. They have not even disputed that after coming to know about the Court’s order, respondent no.4 made a statement at 1.30 p.m. withdrawing resolution dated 24.9.2007 which contained a call for cessation of work on 1.10.2007. If, despite statement of respondent no.4, which was made known to the public, the shops and business establishments remained closed and the private transport operators did not consider it proper to operate their services on 1.10.2007, respondent nos.1 to 3 cannot be held to have deliberately disobeyed the Court’s order.
The argument of Shri S. Guru Krishna Kumar that respondent no.4 should be held guilty of contempt because the Government did not issue written instructions to the officers to take steps for maintaining the essential services and to ensure that public life is not disrupted on account of the call for bandh and the workers of his party coerced the people to close the commercial and business establishments is being mentioned only to be rejected. The bald statement contained in the contempt petitions that violence and coercion was resorted to by members of the party headed by respondent no.4 has remained unsubstantiated because except the newspaper reports no material has been produced before the Court giving the names and other relevant particulars of the persons who are said to have indulged in forced closure of shops and business establishments on 1.10.2007 and no other evidence has been produced to show that respondent no.4 had, directly or indirectly, encouraged the members of his party to enforce the call for cessation of work which has been prima facie treated by the Courts as call for bandh. Therefore, respondent no.4 cannot be accused of having engineered violation of the Court’s order.
Insofar as respondent no.6 is concerned, we find that the only material produced by the petitioner in Contempt Petition No. 262 of 2007 is in the form of zerox copies of newspapers and tape of the edited version of speech which is said to have been telecast on Jaya T.V. on 1.10.2007 and 2.10.2007. The petitioner in Contempt Petition No. 327 of 2007 has also produced zerox copies of some newspapers. In his first affidavit, respondent no.6 has claimed that the newspapers have reported something by putting in his mouth which he did not speak. In his second affidavit filed in the form of reply to the affidavits of S/Shri M. Ramasubramanian, S. Ravikumar and R. Thillai, respondent no.6 has alleged that what was telecast on Jaya T.V. was the doctored version of his speech. This being the position, the petitioners were duty bound to produce some primary evidence to prove the contents of the speech made by respondent no.6 scandalizing judiciary in general and this Court’s order dated 30th September, 2007 in particular. The zerox copies of the newspapers in which the contents of speech made by respondent no.6 have been published cannot be relied upon because the petitioners have not filed affidavits of those who covered the meeting held by the political parties in front of Chepauk Guest House on 1.10.2007 and heard the speech made by respondent no.6. If such affidavits had been filed, respondent no.6 could have been called upon to explain his position. Likewise, the original tape containing telecast of the speech made by respondent no.6 has not been made available to the Court.
32. The law on the admissibility of tape recorded versions is well settled. In Ram Singh and others v. Col. Ram Singh [1985 (Supp) SCC 611] Fazal Ali, J with whom Sabyasachi Mukharji, J. agreed, laid down the following tests for determining the admissibility of tape recorded version:
1. The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial.
Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded.
The tape-recorded statement must be relevant.
The recorded cassette must be sealed and must be kept in safe or official custody.
The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.
33. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others [(1976) 2 SCC 17], a three-Judge Bench while considering the question whether the appellant was guilty of promoting feeling of enmity between two sections of the society, examined the question of admissibility of tape recorded speech, referred to the judgment in R. v. Maqsud Ali [(1965) 2 All ER 464] and observed :
“We think that the High Court was quite right in holding that the tape-records of speeches were “documents”, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”
34. We may now notice some judgments in which the Courts have considered the question relating to burden of proof in contempt cases. In Re, Bramblevale Ltd.
[(1969) 3 All ER 1062], Lord Denning observed:
“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. …. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.”
35. In Mrityunjoy Das and another v. Sayed Hasibur Rahman and others
[(2001) 3 SCC 739], the Court referred to a number of judicial precedents including the observations made by Lord Denning in Re, Bramblevale Ltd. and held:
“The common English phrase “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt.”
36. In Chhotu Ram v. Urvashi Gulati and another [(2001) 7 SCC 530], a two-
Judge Bench observed :
“As regards the burden and standard of proof, the common legal phraseology “he who asserts must prove” has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt.”
37. In Anil Ratan Sarkar and others v. Hirak Ghosh and others [(2002) 4 SCC 21], the Court referred to the judgment in Chhotu Ram v. Urvashi Gulati and another (supra) and observed:
“The Contempt of Courts Act, 1971 has been introduced in the statute-book for the purposes of securing a feeling of confidence of the people in general and for due and proper administration of justice in the country – undoubtedly a powerful weapon in the hands of the law courts but that by itself operates as a string of caution and unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the statute.”
38. The judgments on which reliance has been placed by Shri S. Guru
Krishna Kumar do not have any direct bearing on this case. In A. Sanjeevi Naidu’s case, the Court interpreted the provisions of Section 68C of the Motor Vehicles Act, 1939 and held that when a civil servant takes a decision, he does not do it as a delegate of his Minister but on behalf of the Government, though it is always open to a Minister to call for any file in his office and pass order or issue directions to the officers in his Ministry regarding the disposal of Government business generally or as regards any specified case. In Azhar Ali Khan’s case, the Court held that compliance of orders or directions given by Court to Government or its instrumentalities cannot be avoided merely on ground of inability to comply with its own resolution passed in the face of those clear orders or directions. In T.N. Godavarman Thirumulpad’s case it was found that the Minister and Principal Secretary, Department of Forests, Government of Maharashtra have brazenly and willfully flouted the Court’s directions and granted permission to certain sawmills to recommence their operations and, therefore, they were punished under the 1971 Act. In Mohd. Aslam’s case, this Court considered the question whether the State and its ministers can be proceeded against in contempt for failure to obey the judicial pronouncements. The facts of the case were that during the month of July, 1992, land measuring 2.77 acres situated in Ayodhya was acquired by the State Government under Land Acquisition Act, 1894, for developing an amenity for pilgrims at Ayodhya. Writ Petition No.1000 of 1991 was filed under Article 32 of the Constitution before this Court questioning the acquisition proceedings. On 15.11.1991, the Court noted that the Chief Minister of the State has made statements in the meeting of the National Integration Council held on 2.11.1991 against the making of construction at the site and accordingly, resolution was passed by the National Integration Council and directed that no construction be made at the site. However, despite the Court’s order, construction activities were allowed to be undertaken at the site by Sadhus. It was urged on behalf of the respondents that any coercive/preventive action in the matter of construction of the platform would have triggered an adverse reaction endangering the safety of disputed ‘Ram Janma Bhoomi-Babri Masjid’ structure which was situated in immediate vicinity and for whose protection Government stood committed and, therefore, the respondent who was holding the office of the Chief Minister, cannot be held guilty of contempt. While rejecting the plea, this Court relied upon the observations contained in William G. Cooper, Members of the Board of Directors of the Little Rock v. John Aaron [358 US1 : 3 L Ed 2d 5 : 78 S Ct 1401 (1958)] and observed:-“The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. … Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution?
The historic phrase ‘a Government of laws and not of men’ epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic.
Compliance with decisions of this Court, as the constitutional organ of the supreme law of the land, has often, throughout our history, depended on active support by State and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyse the supreme law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years.
Lincoln’s appeal to ‘the better angels of our nature’ failed to avert a fratricidal war. But the compassionate wisdom of Lincoln’s First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.”
Dicey, in his Law of the Constitution, (10th Edn., pp.193-94) said:
When we speak of the ‘rule of law’ as a characteristic of our country, (we mean) not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of State, a military officer, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.”
39. The Court then referred to the reports of Chief Engineer, District
Magistrate and Senior Superintendent of Police and proceeded to observe:-“The next question is whether these activities were carried on by a congregation of Sadhus at the site and not by the State Government and despite Government’s efforts. Apart from a glib suggestion that any attempt to prevent the work would have created a violent situation endangering the safety of the “Ram Janma Bhoomi-Babri Masjid structure” itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidavits of any of the officers as to what reasonable measures the Government took to prevent the inflow of constructional material such as large quantities of cement, mortar, sand, constructional equipment, water-tankers etc. that were necessary for the work. The report of the Expert Committee has indicated that constructional machinery was indispensable having regard to the nature and magnitude of the work carried out. While it is understandable that the prevention of the gathering of Sadhus might have created some resentment, it is un-understandable why large quantities of building materials were allowed to be brought on the land unless it be — and that must be the reasonable presumption — that the Government itself was not too anxious to prevent it. It is not merely positive acts of violation but also surreptitious and indirect aids to circumvention and violation of the orders that are equally impermissible. If reasonable steps are not taken to prevent the violation of the orders of the Court, Government cannot be heard to say that violation of the orders were at the instance of others. The presumption is that the Government intended not to take such preventive steps. In the facts and circumstances of the case, we are unable to persuade ourselves to the view that the Government was helpless and the situation that had developed was in spite of all reasonable steps taken by the Government. Indeed there is no indication that the Government bestirred itself to take any steps, reasonable or otherwise, to prevent large-scale building material getting into the site. The Chief Minister having given a solemn assurance to the National Integration Council and permitted the terms of that assurance to be incorporated as his own undertaking to this Court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he placed before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence. Indeed, if such reasonable steps had been taken he could not be faulted merely because he did not do the best by the standards of others. In this case, we find no explanation at all apart from the fact that the Sadhus had congregated in that place in large number, as to what steps the Government took to prevent the constructional equipment from getting into site. If any reasonable effort had been made and evidence of that placed before Court, it might have been possible for the Court to assess the situation in the light of that explanation to find out whether such steps had been taken. In the absence, we are constrained to hold that the Government failed to take steps to prevent the grossest violation of the order of this Court. We record a finding accordingly.”
40. On the question whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P., the Court held:
“The last question is whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P. It was both.
There is no immunity for any authority of Government, if a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim “Crown can do no wrong” has had its influence, a distinction is made between the Crown as such and the Executive.
In a recent pronouncement of far-reaching impact, the House of Lords in M. v. Home Office observed (as per Lord Templeman):
“My Lords, Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression ‘the Crown’ has two meanings; namely the monarch and the executive. In the seventeenth century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive. Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing his action against the minister who is responsible for the department of State involved, in the present case the Secretary of State for Home Affairs. To enforce the law the courts have power to grant remedies including injunctions against a minister in his official capacity. If the minister has personally broken the law, the litigant can sue the minister, in this case Mr. Kenneth Baker, in his personal capacity. For the purpose of enforcing the law against all persons and institutions, including ministers in their official capacity and in their personal capacity, the courts are armed with coercive powers exercisable in proceedings for contempt of court.
** *
My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend Lord Woolf and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt.”
In the State of Bihar v. Rani Sonabati Kumari this Court approved the following view of Chakravartti, C.J., in Tarafatullah Mandal v. S.N. Maitra:
“I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call for decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation.”
(emphasis supplied)
The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt.”
41. In the case before us fact situation is entirely different. As mentioned above, on coming to know of the restraint order passed by this Court, respondent no.4 made a statement for withdrawal of resolution dated 24.9.2007 vide which call was given by five political parties for cessation of work. It is also borne out from the affidavit of respondent no.1 that on 24.9.2007 itself the said respondent had issued instructions to all the officers to ensure that law and order and essential services are maintained and the general public is not inconvenienced due to the call given by political parties for cessation of work. On 30.9.2007, respondent nos.1 to 3 gave detailed instructions to all the officers to ensure that the public is not put to harassment, the government and private properties are not damaged, supplies of essential services like water, electricity, telecom, railways etc. are not disrupted, supply of milk etc. is maintained and business and other commercial establishments are provided protection. Efforts were also made to ensure that operation of transport services is not affected. Respondent no.5 had monitored operation undertaken by the departmental authorities for restoring normal operation by the State Transport Corporation. It is, thus, evident that respondent nos. 1 to 5 did not disobey the restraint order passed by this Court and respondent nos. 1 to 3 took all the steps necessary for preventing any disruption of public services and inconvenience to the general public. It is a different thing that in the wake of hunger strike by leaders of political parties, the business community did not consider it proper to open shops etc. Therefore, the ratio of Mohd. Aslam’s case and other precedents referred to in that judgment cannot be applied to this case for framing charges against respondent nos.1 to 5 on the premise that they have committed contempt within the meaning of Section 2(b) of the 1971 Act.
Insofar as respondent no.6 is concerned, charge cannot be framed against him with reference to Section 2(c) of 1971 Act because the petitioners have not produced any legally admissible evidence to prove the contents of the speech allegedly made by the said respondent. The judgments in Aswini Kumar Ghose v. Arabinda Bose (supra) and E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (supra) do not have any bearing on this case and, therefore, we do not consider it necessary to deal with the same.
In the result, the contempt petitions are dismissed. However, the parties are left to bear their own costs.
[G.S. SINGHVI] New Delhi, April 01, 2009.


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