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Interlocutory Application

I. A. No. 2255 of 2012 - Pushpa Vs. T.V. Josekutty, 2012 (4) KLT 204 : 2012 (4) KLJ 393 : ILR 2012 (4) Ker. 446

posted Jan 16, 2013, 10:04 PM by Law Kerala   [ updated Jan 16, 2013, 10:07 PM ]

IN THE HIGH COURT OF KERALA AT ERNAKULAM


V. Chitambaresh, J.

Pushpa & Ors. Vs. T.V. Josekutty & Ors.

I. A. No. 2255 of 2012 
in 
C. R. P. No. 59 of 2012

Decided On : 19-Sep-2012
Head Note:-
Code of Civil Procedure, 1908 – Sections 2(2), 115 & 144 – "decree" -  Restitution - Maintainability of the Civil Revision Petition - Is a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (the 'CPC for short) maintainable against an order determining a question of restitution under Section 144 CPC? Can the Civil Revision Petition so filed be permitted to be converted into an Execution First Appeal when it is found not maintainable?
Held:- The case in hand is undoubtedly an appropriate case in as much as the extent of the right of the decree holder and the date on which it accrued to him deserves to be adjudicated. The decree holder contended that he is entitled to re-delivery of the property obtained in execution of the decree in O.S.No.167/1992 and which was in his possession prior to the disposal of A.S.No.514/1995. The legal heirs of the judgment debtor however maintained that the entire decree debt was deposited after the disposal of A.F.A.No.31/2002 to which alone the decree holder was entitled to in the suit for money. These are all matters to be considered at the time of final hearing and I deem it fit and appropriate to grant permission to convert the Civil Revision Petition into an Execution First Appeal as sought.
For Petitioners: Mohammed Nias C.P.

For respondents: R.D. Shenoy, S. Vinod Bhat & Legith T. Kottakkal

O R D E R

1. Is a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (the 'CPC for short) maintainable against an order determining a question of restitution under Section 144 CPC? Can the Civil Revision Petition so filed be permitted to be converted into an Execution First Appeal when it is found not maintainable?

2. The suit for realisation of money due under a demand promissory note in O.S. No. 167 of 1992 on the file of the court of the Subordinate Judge of Kozhikode was decreed by judgment dated 30-09-1993. The decree holder attached the property of the judgment debtor (8 cents of land with a building thereon) in execution and brought it up for sale wherein he himself bid it in auction. The decree holder obtained delivery of the property in E.A. No. 1543 of 2001 in E.P. No. 61 of 1996 in O.S. No. 167 of 1992 and the same was recorded by the execution court on 20-12-2001.

3. The judgment debtor challenged the decree of the trial court in A.S. No. 514 of 1995 which was allowed by judgment dated 23-01-2002 setting aside the decree of the trial court and dismissing the suit. The judgment debtor thereupon applied for re-delivery of the property in E.A. No. 180 of 2002 in E.P. No. 61 of 1996 which was allowed and the factum of re-delivery recorded on 11-04-2002. The verdict in the appeal was however reversed in further appeal in A.F.A. No. 31 of 2002 by the Division Bench of this Court by judgment dated 15.1.2007 restoring the decree of the trial court.

4. The decree holder again applied for delivery of the property in E.A. No. 205 of 2007 in E.P. No. 61 of 1996 under Section 144 CPC against the legal heirs of the judgment debtor who had died in the meanwhile. The decree holder asserted that he is entitled to re-delivery of the property consequent on the reversal of the decree in A.S. No. 514 of 1995 by the judgment in A.F.A.No.31/2002. The execution court by the order dated 30-11-2011 allowed the application and directed delivery of the property to the decree holder which is impugned in this Civil Revision Petition. The legal heirs of the judgment debtor filed the Civil Revision Petition on 01-02-2012 and had obtained an interim stay of further proceedings for re-delivery of the property.

5. Mr. R.D. Shenoy, Senior Advocate on behalf of the decree holder raised a preliminary objection as regards the maintainability of the Civil Revision Petition filed against an order determining a question under Section 144 CPC. The decree holder invited my attention to the definition of 'decree' under Section 2(2) CPC which is as follows:-
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - 
(a) any adjudication from which an appeal lies as an appeal from an order, or 
(b) any order of dismissal for default. 
Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; 
(emphasis supplied)
Thus the inclusive definition of decree takes in the determination of any question under Section 144 CPC pertaining to restitution which necessarily follows that the same" is appealable only. The dictum in Mahijibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai, AIR 1965 SC 1477 also lends support to this conclusion and therefore I sustain the preliminary objection raised.

6. Mr. C.P. Mohammed Nias, Advocate on behalf of the legal heirs of the judgment debtor when confronted with this situation sought permission to convert the Civil Revision Petition into an Execution First Appeal. I.A. No. 2255 of 2012 in C.R.P. No. 59 of 2012 was filed under Section 151 CPC seeking permission to so convert on the ground that such exercise is permissible in appropriate cases. My attention was drawn to The Reliable Water Supply Service Vs. Union of India & Ors., (1972) 4 SCC 168 wherein an order of the High Court converting an appeal into a revision was approved. The decision of this Court in Leela Mathew Vs. Krishnamoorthy, 2002 (3) KLT 417 was also relied on to show that a Second Appeal when found not maintainable was permitted to be converted into a Civil Revision Petition.

7. The question that however arises for consideration in this case is as to whether a Civil Revision Petition when found not maintainable can be permitted to be converted into an Execution First Appeal. This assumes importance since a case filed seeking to invoke a lesser jurisdiction is sought to be converted into a case filed seeking to invoke a larger jurisdiction. The Supreme Court in Essar Constructions Vs. N.P.Rama Krishna Reddy, (2000) 6 SCC 94 held as follows:-
"The application under Section 115 of the Code therefore did not lie. Despite the fact that this issue was neither raised before nor considered by the High Court, we cannot take a blinkered view of the situation in law. Had the issue been raised, it would have been open to the High Court to have converted the revision petition into an appeal." 
(emphasis supplied)
The Supreme Court again in Nawab Shaqafath Ali Khan & Ors. Vs. Nawab Imdad Jah Bahadur & Ors. 2009) 5 SCC 162 held as follows:-
"If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out." 
(emphasis supplied)
8. Thus a note of caution has been added by the Supreme Court to the effect that such jurisdiction could be exercised only in appropriate cases and subject to fulfillment of other conditions. The case in hand is undoubtedly an appropriate case in as much as the extent of the right of the decree holder and the date on which it accrued to him deserves to be adjudicated. The decree holder contended that he is entitled to re-delivery of the property obtained in execution of the decree in O.S. No. 167 of 1992 and which was in his possession prior to the disposal of A.S. No. 514 of 1995. The legal heirs of the judgment debtor however maintained that the entire decree debt was deposited after the disposal of A.F.A. No. 31 of 2002 to which alone the decree holder was entitled to in the suit for money. These are all matters to be considered at the time of final hearing and I deem it fit and appropriate to grant permission to convert the Civil Revision Petition into an Execution First Appeal as sought.

I allow I.A. No. 2255 of 2012 in C.R.P. No. 59 of 2012. The Registry shall re-number the case as an Execution First Appeal and post it according to the roster.

I.A. No. 7 of 2012 - Pravin Gada and Another Vs. Central Bank of India and others

posted Sep 19, 2012, 7:19 PM by Law Kerala   [ updated Sep 19, 2012, 7:20 PM ]

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

K. S. Radhakrishnan and Dipak Misra, JJ.

September 18, 2012

INTERLOCUTORY APPLICATION NOS . 7-9 OF 2012 

IN 

SPECIAL LEAVE PETITION (CIVIL ) NOS . 30894-96 OF 2011

O R D E R 

These are the applications for seeking certain directions in view of the subsequent developments after the order passed on 5.7.2012.

2. We have heard Mr. C.A. Sundaram, learned senior counsel for the petitioners and Mr. Mukul Rohtagi and Mr. Jaideep Gupta, learned senior counsel for the Central Bank of India, respondent No. 1. 

3. Before we advert to order dated 5.7.2012, it is necessitous to refer to order dated 27.3.2012. In the said order, after referring to the order passed by the High Court in W.P. No. 2689 and other connected matters, the interim order passed by this Court on 25.11.2011, recording the contentions of Mr. Sundaram, learned senior counsel for the petitioners and Mr. Jaideep Gupta, learned senior counsel for the Central Bank of India and taking note of the chart produced in respect of the dues of the Central Bank of India, Standard Chartered Bank and Workmen through Official Liquidator, this Court passed the following order:

“It is submitted by Mr. Gupta that in fitness of things and regard being had to the concept of obtaining of the highest price in Court sale, having of auction is the warrant and, therefore, auction should be directed to be held. The learned senior counsel further submitted that the property is likely to fetch much more amount than that has been deposited by the petitioners. Mr. Sundaram, learned senior counsel would contend that the sale had been giveneffect to in the year 2006 on acceptance of 2.5 crores and with the efflux of time if there has been a price rise solely on the said base a public auction should not be directed. Be it noted that at one point of time, a third party had deposited 6 crores to purchase the property but later on he withdrew as the matter was litigated in Court. Having heard learned counsel for the parties and regard being had to the totality of the circumstances, we issue the following directions:- 
(i) The property in question be put to auction by issuing a public advertisement in at least two newspapers one in English and another in Kannada language having wide circulation in the city of Mysore inviting bids for the sale of the property. 
(ii) It shall be mentioned in the advertisements that the reserve price is 3 crores and the same shall be deposited before the Recovery Officer of the DRT to enable one to participate in the bid. 
(iii) Any one who would not deposit the amount would not be permitted to participate in the auction as speculative bids are to be totally avoided. 
(iv) The newspaper publication shall be made within a period of two weeks stipulating that the deposit is a condition precedent for participation in the auction which shall be made before the DRT within a week from the date of publication of the advertisement in the newspaper. 
(v) The auction shall be held within a period of two weeks from the issuance of the advertisement which shall state the specified time and place for the auction. 
(vi) The petitioners without prejudice to the contentions to be raised and dealt with in these Special Leave Petitions shall participate in the bid without the deposit as they have purchased the property in the year 2006. 
(vii) The bid shall not be finalized and the bid sheet shall be produced before this Court in a sealed cover. We reiterate at the cost of repetition that the above arrangements are subject to the result of the final adjudication in these Special Leave Petitions. List the matter after five weeks.” 

4. After the said order was passed two Interlocutory Applications forming Nos. 4-6 of 2012 were filed. This Court, looking at the facts and the contentions raised, passed the following order on the said applications:

“These applications were preferred by the Bank stating that going by the present valuation the property will fetch nearly Rs.10 crore whereas the order stipulates Reserved Price only Rs.3 crores. Hence, the Bank has sought modification of the upset price fixed by the Court.Learned counsel for the Bank also submitted that as per the Debt Recovery Tribunal Act the time stipulated for auction is thirty days whereas the order directs to conduct the auction within two weeks. To this extent the respondent seeks modification of that direction also. Learned counsel on the either side submitted that the auction should go on without any delay. Considering the facts and circumstances of the case we are inclined to dispose of these applications directing the Recovery Officer to go on with the auction within the time limit stipulated in the bid. The question as to whether the upset price has been correctly fixed or not will depend upon the bid amount offered by the bidders in the auction. With the above directions, the I.As are disposed of.” 

5. In the present applications it has been asseverated that in compliance with the order dated 5.7.2012, the Recovery Officer of Debt Recovery Tribunal-I, Mumbai, ordered for publication of the notice in two newspapers which was published on 20.7.2012 calling upon interested parties to give their offer within seven days from the date of publication as directed by this Court vide order dated 27.3.2012. Pursuantto the publication carried in English and Kannada newspapers no other offer whatsoever was received by the Recovery Officer and till 7th only the offer of the petitioners, namely, Praveen Gada and Amarnath Singhla, was received.

6. When the matter was taken up, order dated 30.8.2012 passed in R.P. No. 419 of 2003 was brought to our notice. The said order reads as under:

“As per directions of the Hon’ble Supreme Court vide its orders dated 27.3.2012 & 5.7.2012, advertisement was published fixing reserve price at Rs.3.00 Crores. Only one bid of Shri Pravin Gada & Amarnath Singhla has been received on 07.08.2012 as per public notice. His bid was opened at the scheduled date & time of the auction. He has given offer of Rs. 3 crores. As his participation in auction was without deposit as directed in above orders, there was no question of his depositing EMD. Relevant columns of Bid Sheet were accordingly filled in and signature of the bidder has been obtained. As per the directions, the said bid sheet be submitted to the Hon’ble Supreme Court. Apart from above, 3 offers in closed envelops were received today, but those are not opened & considered in view of thedirections of the Hon’ble Supreme Court as per aforesaid orders. On the date of auction the above 3 closed envelops containing offers have been received. This being new situation arisen at the time of auction, in my opinion it would be appropriate to bring this fact to the kind notice of the Hon’ble Supreme Court. Hence these 3 closed envelops be also submitted to the Hon’ble Supreme Court. As per directions of the Hon’ble Supreme Court, the Bid Sheet at Exh. 154 be submitted to the Hon’ble Supreme Court in a sealed cover.” 

7. The bid sheets were opened before us and we find that an offer amounting to Rs.3,30,00,000/- by Kumar Enterprises, Rs.3,30,00,000/- by Riddisiddhi Bullions Ltd. and Rs.3,30,00,000/- by Krishna Texturisers Pvt. Ltd. were deposited by way of bank drafts on 29.8.2012 and 30.8.2012 respectively.

8. It is submitted by Mr. Sundaram, learned senior counsel for the petitioners that as the said offers were not in accord, the same should not be considered and the petitioners should be treated as the highest bidder in the auction. Mr. Rohtagi and Mr. Gupta, learned senior counsel for the Central Bank ofIndia, per contra, submitted that the price of the property as on today is worth more than Rs.10 crores and the reason for the offerees not coming is that the petitioners are in possession and they have put up a board indicating their name and status. It is urged by them that it is one thing to say that the auction is conducted by virtue of the order passed by this Court and the whole thing is subject to the pendency of the lis but it is another thing to see at the entrance that the board is fixed and the people are not allowed to survey the nature and character of the assets. The photographs of the board that have been put up are filed in Court and we have perused the same. Be it noted, the putting up of the said photographs is not disputed.

9. Regard being had to the facts and circumstances, we are of the considered opinion that there should be a re-auction and we are inclined to modify the conditions incorporated in the earlier order. Keeping in view the totality of circumstances we issue the following directions:-

(i) The property in question be put to auction by issuing a public advertisement within two weeks in at least two newspapers, one in English and another in Kannada language, having wide circulation in the city of Mysore inviting bids for the sale of the property. 
(ii) It shall be mentioned in the advertisement that the reserved price is Rs.5 crores and the same shall be deposited by way of bank drafts drawn on a nationalized bank before the Recovery Officer of the DRT to enable one to participate in the bid. The advertisement shall stipulate that the deposit of the reserved price fixed by this Court is a condition precedent for participation in the auction. 
(iii) It shall be clearly stated in the advertisement that the property would be available for inspection in presence of the Registrar of Civil Court or any equivalent officer nominated by the Principal District and Session Judge, Mysore, and it is so done to avoid the grievance from any quarter that the property was not available for properverification. The inspection by any interested party shall be done within one week from the date of advertisement between 11.00 a.m. to 3.00 p.m. 
(iv) During the entire period of inspection the concerned officer deputed by the learned Principle District and Sessions Judge, Mysore shall see to it that the board that has been fixed is removed from the site so that there can be inspection of the plot without any kind of preconceived notion by the perspective bidders. 
(v) The aforesaid reserved price shall be deposited before the Recovery Officer of the DRT within ten days from the date of the advertisement. Any one who would not deposit the reserved price within the time limit, his bid shall not be considered. 
(vi) The auction shall be held within a period of two weeks from the date of issuance of the advertisement which shall state the specified time and place for the auction. 
(vii) The petitioners without prejudice to the contentions to be raised and dealt with in these Special Leave Petitions shall participate in the auction without the deposit as they have purchased the property in the year 2006. 
(viii) The offerees who have already given the bids shall deposit the balance amount to meet the reserved price before the Recovery Officer of the DRT failing which they shall be ineligible to participate in the bid. 
(ix) After the submission of the bids there shall be a public auction amongst the eligible offerees to get the maximum price. 
(x) The auction shall not be finalized and the bid sheet shall be produced before this Court in a sealed cover for issuance of further directions, if required.

10. We repeat at the cost of repetition that the above arrangements are subject to the result of the final adjudication to the Special Leave Petitions.

11. A copy of the order passed today be sent by fax, e-mail and speed-post to the Principal District Judge, Mysore by the Registry of this Court.

12. List the matters on 1.11.2012.


I.A. No. 4 of 2012 - Sahara India Real Estate Corp. Ltd. & Ors. Vs. Securities & Exchange Board of India & Anr.

posted Sep 17, 2012, 3:58 AM by Law Kerala   [ updated Sep 17, 2012, 3:59 AM ]

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

 

S.H. Kapadia, CJI, D.K. Jain, Surinder Singh Nijjar, Ranjana Prakash Desai and Jagdish Singh Khehar, JJ.

September 11, 2012

I.A. Nos. 4-5, 10, 11, 12-13, 16-17, 18, 19, 20-21, 22-23, 24-25, 26-27, 30-31, 32-33, 34, 35-36, 37-38, 39-40, 41-42, 43-44, 45- 46, 47-48, 49-50, 55-56, 57, 58, 59, 61 and 62 in C.A. No. 9813 of 2011 and C.A. No. 9833 of 2011  with I.A. Nos. 14 and 17 in C.A. No. 733 of 2012 

Head Note:-

Constitution of India, 1950 - Article 19(1)(a) & 21 - Media Reporting - Fair Trial - Free Press - Administration of justice - Doctrine of postponement - Neutralising Technique Any aggrieved person apprehending prejudice can move the competent court seeking the postponement of reporting by media in specific cases and such order will be of short duration subject to the principle of necessity and proportionality.
Contempt of Courts Act, 1971 - Media Reporting - the object of contempt law is not only to punish, it includes the power of the Courts to prevent such acts which interfere, impede or pervert administration of justice.
Constitution of India, 1950 - Article 19(1)(a) & 21 - Media Reporting - Guidelines - Fair Trial - Free Press - Administration of justice - No guidelines can be framed across the board to regulate media reporting of sub-judice matters. 
Constitution of India, 1950 - Article 19(1)(a) & 21 - Media Reporting - Doctrine of postponement - Right to freedom of speech, including media reporting, under the constitution was not an absolute right and was subject to classification and the test of reasonableness. 
Held:- Anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework.  

J U D G M E N T 

S. H. KAPADIA, CJI 

Introduction 

1. Finding an acceptable constitutional balance between free press and administration of justice is a difficult task in every legal system. 

Factual background 

2. Civil Appeal Nos. 9813 and 9833 of 2011 were filed challenging the order dated 18.10.2011 of the Securities Appellate Tribunal whereby the appellants (hereinafter for short Sahara were directed to refund amounts invested with the appellants in certain Optionally Fully Convertible Bonds (OFCD) with interest by a stated date.

3. By order dated 28.11.2011, this Court issued show cause notice to the Securities and Exchange Board of India (SEBI), respondent No. 1 herein, directing Sahara to put on affidavit as to how they intend to secure the liabilities incurred by them to the OFCD holders during the pendency of the Civil Appeals.

4. Pursuant to the aforesaid order dated 28.11.2011, on 4.01.2012, an affidavit was filed by Sahara explaining the manner in which it proposed to secure its liability to OFCD holders during the pendency of the Civil Appeals.

5. On 9.01.2012, both the appeals were admitted for hearing. However, IA No. 3 for interim relief filed by Sahara was kept for hearing on 20.01.2012.

6. On 20.01.2012, it was submitted by the learned counsel for SEBI that what was stated in the affidavit of 4.01.2012 filed by Sahara inter alia setting out as to how the liabilities of Sahara India Real Estate Corporation Ltd. (SIRECL) and Sahara Housing and Investment Corporation (SHICL) were to be secured was insufficient to protect the OFCD holders.

7. This Court then indicated to the learned counsel for Sahara and SEBI that they should attempt, if possible, to reach a consensus with respect to an acceptable security in the form of an unencumbered asset. Accordingly, IA No. 3 got stood over for three weeks for that purpose.

8. On 7.02.2012, the learned counsel for Sahara addressed a personal letter to the learned counsel for SEBI at Chennai enclosing the proposal with details of security to secure repayment of OFCD to investors as pre-condition for stay of the impugned orders dated 23.06.2011 and 18.10.2011 pending hearing of the Civil Appeals together with the Valuation Certificate indicating fair market value of the assets proposed to be offered as security. This was communicated by e-mail from Delhi to Chennai. Later, on the same day, there was also an official communication enclosing the said proposal by the Advocate-on-Record for Sahara to the Advocate-on-Record for SEBI.

9. A day prior to the hearing of IA No. 3 on 10.02.2012, one of the news channels flashed on TV the details of the said proposal which had been communicated only inter parties and which was obviously not meant for public circulation. The concerned television channel also named the valuer who had done the valuation of the assets proposed to be offered as security.

10. On 10.02.2012, there was no information forthcoming from SEBI of either acceptance or rejection of the proposal.

11. The above facts were inter alia brought to the notice of this Court at the hearing of IA No. 3 on 10.02.2012 when Shri F.S. Nariman, learned senior counsel for Sahara orally submitted that disclosure to the Media was by SEBI in breach of confidentiality which was denied by the learned counsel for SEBI. After hearing the learned counsel for the parties, this Court passed the following order:

“We are distressed to note that even without prejudiceproposals sent by learned counsel for the appellants to the learned counsel for SEBI has come on one of the TV channels. Such incidents are increasing by the day. Such reporting not only affects the business sentiments but also interferes in the administration of justice. In the above circumstances, we have requested learned counsel on both sides to make written application to this Court in the form of an I.A. so that appropriate orders could be passed by this Court with regard to reporting of matters, which are sub-judice.” 

12. Pursuant to the aforesaid order, IA Nos. 4 and 5 came to be filed by Sahara. According to Sahara, IA Nos. 4 and 5 raise a question of general public importance. In the said IA Nos. 4 and 5, Sahara stated that the time has come that this Court should give appropriate directions with regard to reporting of matters (in electronic and print media) which are sub judice. In this connection, it has been further stated: It is well settled that it is inappropriate for comments to be made publicly (in the Media or otherwise) on cases (civil and criminal) which are sub judice; this principle has been stated in Section 3 of the Contempt of Courts Act, which defines criminal contempt of court as the doing of an act whatsoever which prejudices or interferes or tends to interfere with the due course of any judicial proceeding or tends to interfere or interfere with or obstruct or tends to interfere or obstruct the administration of justice In the IAs, it has been further stated that whilst there is no fetter on the fair reporting of any matter in court, matters relating to proposal made inter-parties are privileged from public disclosure. That, disclosure and publication of pleadings and other documents on the record of the case by third parties (who are not parties to the proceedings in this court) can (under the rules of this Court) only take place on an application to the court and pursuant to the directions given by the court (see Order XII, Rules 1, 2 and 3 of Supreme Court Rules, 1966). It was further stated that in cases like the present one a thin line has to be drawn between two types of matters; firstly, matters between company, on the one hand, and an authority, on the other hand, and, secondly, matters of public importance and concern. According to Sahara, in the present case, no question of public concern was involved in the telecast of news regarding the proposal made by Sahara on 7.02.2012 by one side to the other in the matter of providing security in an ongoing matter. In the IAs, it has been further stated that this Court has observed in the case of State of Maharashtra v. Rajendra J. Gandhi [(1997) 8 SCC 386] that: A trial by press, electronic media or public agitation is the very antithesis of rule of law Consequently, it has been stated in the IAs by Sahara that this Court should consider giving guidelines as to the manner and extent of publicity which can be given to pleadings/ documents filed in court by one or the other party in a pending proceedings which have not yet been adjudicated upon.

13. Accordingly, vide IA Nos. 4 and 5, Sahara made the following prayers:

“(b) appropriate guidelines be framed with regard to reporting (in the electronic and print media) of matters which are sub-judice in a court including public disclosure of documents forming part of court proceedings. (c) appropriate directions be issued as to the manner and extent of publicity to be given by the print/ electronic media of pleadings/ documents filed in a proceeding in court which is pending and not yet adjudicated upon;” 

14. Vide IA No. 10, SEBI, at the very outset, denied that the alleged disclosure was at its instance or at the instance of its counsel. It further denied that papers furnished by Sahara were passed on by SEBI to the TV Channel. In its IA, SEBI stated that it is a statutory regulatory body and that as a matter of policy SEBI never gives its comments to the media on matters which are under investigation or sub judice. Further, SEBI had no business stakes involved to make such disclosures to the media. However, even according to SEBI, in view of the incident having happened in court, this Court should give appropriate directions or frame such guidelines as may be deemed appropriate.

15. At the very outset, we need to state that since an important question of public importance arose for decision under the above circumstances dealing with the rights of the citizens and the media, we gave notice and hearing to those who had filed the IAs; the question of law being that every citizen has a right to negotiate in confidence inasmuch as he/ she has a right to defend himself or herself. The source of these two rights comes from the common law. They are based on presumptions of confidentiality and innocence. Both, the said presumptions are of equal importance. At one stage, it was submitted before us that this Court has been acting suo motu. We made it clear that Sahara was at liberty to withdraw the IAs at which stage Shri Sidharth Luthra, learned senior counsel stated that Sahara would not like to withdraw its IAs. Even SEBI stated that if Sahara withdraws its IAs, SEBI would insist on its IA being decided. In short, both Sahara and SEBI sought adjudication. Further, on 28.03.2012, learned counsel for Sahara filed a note in the Court citing instances (mostly criminal cases) in which according to him certain aberration qua presumption of innocence has taken place. This Court made it clear that this Court is concerned with the question as to whether guidelines for the media be laid down? If so, whether they should be self-regulatory? Or whether this Court should restate the law or declare the law under Article 141 on balancing of Article 19(1)(a) rights vis-a-vis Article 21, the scope of Article 19(2) in the context of the law regulating contempt of court and the scope of Article 129/ Article 215.

16. Thus, our decision herein is confined to IA Nos. 4, 5 and 10. This clarification is important for the reason that some accused have filed IAs in which they have sought relief on the ground that their trial has been prejudiced on account of excessive media publicity. We express no opinion on the merits of those IAs. 

Constitutionalization of free speech Comparative law: differences between the US and other common-law experiences 

17. Protecting speech is the US approach. The First Amendment does not tolerate any form of restraint. In US, unlike India and Canada which also have written Constitutions, freedom of the press is expressly protected as an absolute right. The US Constitution does not have provisions similar to Section 1 of the Charter Rights under the Canadian Constitution nor is such freedom subject to reasonable restrictions as we have under Article 19(2) of the Indian Constitution. Therefore, in US, any interference with the media freedom to access, report and comment upon ongoing trials is prima facie unlawful. Prior restraints are completely banned. If an irresponsible piece of journalism results in prejudice to the proceedings, the legal system does not provide for sanctions against the parties responsible for the wrongdoings. Thus, restrictive contempt of court laws are generally considered incompatible with the constitutional guarantee of free speech. However, in view of cases, like O.J. Simpson, Courts have evolved procedural devices aimed at neutralizing the effect of prejudicial publicity like change of venue, ordering re-trial, reversal of conviction on appeal (which, for the sake of brevity, is hereinafter referred to as "Neutralizing devices”). It may be stated that even in US as of date, there is no absolute rule against “prior restraintand its necessity has been recognized, albeit in exceptional cases [see Near v. Minnesota, 283 US 697] by the courts evolving neutralizing techniques.

18. In 1993, Chief Justice William Rehnquist observed: Constitutional law is now so firmly grounded in so many countries, it is time that the US Courts begin looking at decisions of other constitutional courts to aid in their own deliberative process.

19. Protecting Justice is the English approach. Fair trials and public confidence in the courts as the proper forum for settlement of disputes as part of the administration of justice, under the common law, were given greater weight than the goals served by unrestrained freedom of the press. As a consequence, the exercise of free speech respecting ongoing court proceedings stood limited. England does not have a written constitution. Freedoms in English law have been largely determined by Parliament and Courts. However, after the judgment of ECHR in the case of Sunday Times v. United Kingdom [(1979) 2 EHRR 245], in the light of which the English Contempt of Courts Act, 1981 (for short "the 1981 Act" stood enacted, a balance is sought to be achieved between fair trial rights and free media rights vide Section 4(2). Freedom of speech (including free press) in US is not restricted as under Article 19(2) of our Constitution or under Section 1 of the Canadian Charter. In England, Parliament is supreme. Absent written constitution, Parliament can by law limit the freedom of speech. The view in England, on interpretation, has been and is even today, even after the Human Rights Act, 1998 that the right of free speech or right to access the courts for the determination of legal rights cannot be excluded, except by clear words of the statute. An important aspect needs to be highlighted. Under Section 4(2) of the 1981 Act, courts are expressly empowered to postpone publication of any report of the proceedings or any part of the proceedings for such period as the court thinks fit for avoiding a substantial risk of prejudice to the administration of justice in those proceedings. Why is such a provision made in the Act of 1981? One of the reasons is that in Section 2 of the 1981 Act, strict liability has been incorporated (except in Section 6 whose scope has led to conflicting decisions on the question of intention). The basis of the strict liability contempt under the 1981 Act is the publication of "prejudicial" material. The definition of publication is also very wide. It is true that the 1981 Act has restricted the strict liability contempt to a fewer circumstances as compared to cases falling under common law. However, contempt is an offence sui generisAt this stage, it is important to note that the strict liability rule is the rule of law whereby a conduct or an act may be treated as contempt of court if it tends to interfere with the course of justice in particular legal proceedings, regardless of intent to do so. Sometimes, fair and accurate reporting of the trial (say a murder trial) would nonetheless give rise to substantial risk of prejudice not in the pending trial but in the later or connected trials. In such cases, there is no other practical means short of postponement orders that is capable of avoiding such risk of prejudice to the later or connected trials. Thus, postponement order not only safeguards fairness of the later or connected trials, it prevents possible contempt. That seems to be the underlying reason behind enactment of Section 4(2) of the 1981 Act. According to Borrie & Lowe on the law of Contempt the extent to which prejudgment by publication of the outcome of a proceedings (referred to by the House of Lords in Sunday Times's case) may still apply in certain cases. In the circumstances to balance the two rights of equal importance, viz., right to freedom of expression and right to a fair trial, that Section 4(2) is put in the 1981 Act. Apart from balancing it makes the media know where they stand in the matters of reporting of court cases. To this extent, the discretion of courts under common law contempt has been reduced to protect the media from getting punished for contempt under strict liability contempt. Of course, if the court's order is violated, contempt action would follow.

20. In the case of Home Office v. Harman [(1983) 1 A.C. 280] the House of Lords found that the counsel for a party was furnished documents by the opposition party during inspection on the specific undertaking that the contents will not be disclosed to the public. However, in violation of the said undertaking, the counsel gave the papers to a third party, who published them. The counsel was held to be in contempt on the principle of equalization of the right of the accused to defend himself/herself in a criminal trial with right to negotiate settlement in confidence. [See also Globe and Mail v. Canada (Procureur geneal ), 2008 QCCA 2516] 

21. The Continental Approach seeks to protect personality. This model is less concerned with the issue of fair trial than with the need for safeguarding privacy, personal dignity and presumption of innocence of trial participants. The underlying assumption of this model is that the media coverage of pending trials might be at odds not only with fairness and impartiality of the proceedings but also with other individual and societal interests. Thus, narrowly focussed prior restraints are provided for, on either a statutory or judicial basis. It is important to note that in the common-law approach the protection of sanctity of legal proceedings as a part of administration of justice is guaranteed by institution of contempt proceedings. According to Article 6(2) of the European Convention of Human Rights, presumption of innocence needs to be protected. The European Courts of Human Rights has ruled on several occasions that the presumption of innocence should be employed as a normative parameter in the matter of balancing the right to a fair trial as against freedom of speech. The German Courts have accordingly underlined the need to balance the presumption of innocence with freedom of expression based on employment of the above normative parameter of presumption of innocence. France and Australia have taken a similar stance. Article 6(2) of the European Convention of Human Rights imposes a positive obligation on the State to take action to protect the presumption of innocence from interference by non-State actors. However, in a catena of decisions, the ECHR has applied the principle of proportionality to prevent imposition of overreaching restrictions on the media. At this stage, we may state, that the said principle of proportionality has been enunciated by this Court in Chintaman Rao v. The State of Madhya Pradesh [ (1950) SCR 759].

22. The Canadian ApproachBefore Section 1 of Canadian Charter of Rights, the balance between fair trial and administration of justice concerns, on the one hand, and freedom of press, on the other hand, showed a clear preference accorded to the former. Since the Charter introduced an express guarantee of freedom of the press and other media of communication the Canadian Courts reformulated the traditional sub judice rule, showing a more tolerant attitude towards trial-related reporting [see judgment of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835 which held that a publication ban should be ordered when such an order is necessary to prevent a serious risk to the proper administration of justice when reasonably alternative measures like postponement of trial or change of venue will not prevent the risk (necessity test); and that salutary effects of the publication bans outweigh the deleterious effects on the rights and interests of the parties and the public, including the effect on the right to free expression and the right of the accused to open trial (i.e. proportionality test)]. The traditional common law rule governing publication bans that there be real and substantial risk of interference with the right to a fair trial emphasized the right to a fair trial over the free expressions interests of those affected by the ban. However, in the context of post-Charter situation, the Canadian Supreme Court has held that when two protected rights come in conflict, Charter principles require a balance to be achieved that fully respects both the rights. The Canadian Courts have, thus, shortened the distance between the US legal experience and the common-law experiences in other countries. It is important to highlight that in Dagenais, the publication ban was sought under common law jurisdiction of the Superior Court and the matter was decided under the common law rule that the Courts of Record have inherent power to defer the publication. In R. v. Mentuck [2001] 3 SCR 442 that Dagenais principle was extended to the presumption of openness and to duty of court to balance the two rights. In both the above cases, Section 2(b) of the Charter which deals with freedom of the press was balanced with Section 1 of the Charter. Under the Canadian Constitution, the Courts of Record (superior courts) have retained the common law discretion to impose such bans provided that the discretion is exercised in accordance with the Charter demands in each individual case.

23. The Australian Approach: The Australian Courts impose publication bans through the exercise of their inherent jurisdiction to regulate their own proceedings. In Australia, contempt laws deal with reporting of court proceedings which interfere with due administration of justice. Contempt laws in Australia embody the concept of sub judice contempt” which relates to the publication of the material that has a tendency to interfere with the pending proceedings.

24. The New Zealand Approach: It recognizes the Open Justice principle. However, the courts have taken the view that the said principle is not absolute. It must be balanced against the object of doing justice. That, the right to freedom of expression must be balanced against other rights including the fundamental public interest in preserving the integrity of justice and the administration of justice. 

Indian Approach to prior restraint 

(i) Judicial decisions 

25. At the outset, it may be stated that the Supreme Court is not only the sentinel of the fundamental rights but also a balancing wheel between the rights, subject to social control. Freedom of expression is one of the most cherished values of a free democratic society. It is indispensable to the operation of a democratic society whose basic postulate is that the government shall be based on the consent of the governed. But, such a consent implies not only that the consent shall be free but also that it shall be grounded on adequate information, discussion and aided by the widest possible dissemination of information and opinions from diverse and antagonistic sources. Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our Constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against, other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in appropriate case one right [say freedom of expression] may have to yield to the other right like right to a fair trial. Further, even Articles 14 and 21 are subject to the test of reasonableness after the judgment of this Court in the case of Maneka Gandhi v. Union of India [(1978) 1 SCC 248]. 

Decisions of the Supreme Court on "prior restraint” 

26. In Brij Bhushan v. State of Delhi [AIR 1950 SC 129], this Court was called upon to balance exercise of freedom of expression and pre-censorship. This Court declared the statutory provision as unconstitutional inasmuch as the restrictions imposed by it were outside Article 19(2), as it then stood. However, this Court did not say that pre-censorship per se is unconstitutional. 

27. In Virendra v. State of Punjab [AIR 1957 SC 896], this Court upheld pre-censorship imposed for a limited period and right of representation to the government against such restraint under Punjab Special Powers (Press) Act, 1956. However, in the same judgment, another provision imposing pre-censorship but without providing for any time limit or right to represent against precensorship was struck down as unconstitutional.

28. In the case of K.A. Abbas v. Union of India [AIR 1971 SC 481], this Court upheld prior restraint on exhibition of motion pictures subject to Government setting up a corrective machinery and an independent Tribunal and reasonable time limit within which the decision had to be taken by the censoring authorities.

29. At this stage, we wish to clarify that the reliance on the above judgments is only to show that prior restraint” per se has not been rejected as constitutionally impermissible. At this stage, we may point out that in the present IAs we are dealing with the concept of prior restraintper se and not with cases of misuse of powers of pre-censorship which were corrected by the Courts [see Binod Rao v. Minocher Rustom Masani reported in 78 Bom LR 125 and C. Vaidya v. D' penha decided by Gujarat High Court in Sp. CA 141 of 1976 on 22.03.1976 (unreported)] 

30. The question of prior restraint arose before this Court in 1988, in the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay (P) Ltd. [AIR 1989 SC 190] in the context of publication in one of the national dailies of certain articles which contained adverse comments on the proposed issue of debentures by a public limited company. The validity of the debenture was sub judice in this Court. Initially, the court granted injunction against the press restraining publication of articles on the legality of the debenture issue. The test formulated was that any preventive injunction against the press must be based on reasonable grounds for keeping the administration of justice unimpairedand that, there must be reasonable ground to believe that the danger apprehended is real and imminent. The Court went by the doctrine propounded by Holmes J of “clear and present danger This Court treated the said doctrine as the basis of balance of convenience test. Later on, the injunction was lifted after subscription to debentures had closed.

31. In the case of Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1], this Court dealt with the power of a court to conduct court proceedings in camera under its inherent powers and also to incidentally prohibit publication of the court proceedings or evidence of the cases outside the court by the media. It may be stated that pen Justiceis the cornerstone of our judicial system. It instills faith in the judicial and legal system. However, the right to open justice is not absolute. It can be restricted by the court in its inherent jurisdiction as done in Mirajkar's case if the necessities of administration of justice so demand [see Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883]. Even in US, the said principle of open justice yields to the said necessities of administration of justice [see: Globe Newspaper Co. v. Superior Court, 457 US 596]. The entire law has been reiterated once again in the judgment of this Court in Mohd. Shahabuddin v. State of Bihar [(2010) 4 SCC 653], affirming judgment of this Court in Mirajkar's case.

32. Thus, the principle of open justice is not absolute. There can be exceptions in the interest of administration of justice. In Mirajkar, the High Court ordered that the deposition of the defence witness should not be reported in the newspapers. This order of the High Court was challenged in this Court under Article 32. This Court held that apart from Section 151 of the Code of Civil Procedure, the High Court had the inherent power to restrain the press from reporting where administration of justice so demanded. This Court held vide para 30 that evidence of the witness need not receive excessive publicity as fear of such publicity may prevent the witness from speaking the truth. That, such orders prohibiting publication for a temporary period during the course of trial are permissible under the inherent powers of the court whenever the court is satisfied that interest of justice so requires. As to whether such a temporary prohibition of publication of court proceedings in the media under the inherent powers of the court can be said to offend Article 19(1)(a) rights [which includes freedom of the press to make such publication], this Court held that an order of a court passed to protect the interest of justice and the administration of justice could not be treated as violative of Article 19(1)(a) [see para 12]. The judgment of this Court in Mirajkar is delivered by a Bench of 9-Judges and is binding on this Court.

33. At this stage, it may be noted that the judgment of the Privy Council in the case of Independent Publishing Co. Ltd. v. AG of Trinidad and Tobago [2005 (1) AC 190] has been doubted by the Court of Appeal in New Zealand in the case of Vincent v. Solicitor General [(2012) NZCA 188 dated 11.5.2012]. In any event, on the inherent powers of the Courts of Record we are bound by the judgment of this Court in Mirajkar. Thus, Courts of Record under Article 129/Article 215 have inherent powers to prohibit publication of court proceedings or the evidence of the witness. The judgments in Reliance Petrochemicals Ltd. and Mirajkar were delivered in civil cases. However, in Mirajkar, this Court held that all Courts which have inherent powers, i.e., the Supreme Court, the High Courts and Civil Courts can issue prior restraint orders or proceedings, prohibitory orders in exceptional circumstances temporarily prohibiting publications of Court proceedings to be made in the media and that such powers do not violate Article 19(1)(a). Further, it is important to note, that, one of the Heads on which Article 19(1)(a) rights can be restricted is in relation to contempt of court under Article 19(2). Article 19(2) preserves common law of contempt as an existing law In fact, the Contempt of Courts Act, 1971 embodies the common law of contempt. At this stage, it is suffice to state that the Constitution framers were fully aware of the Institution of Contempt under the common law which they have preserved as existing lawunder Article 19(2) read with Article 129 and Article 215 of Constitution. The reason being that contempt is an offence sui generis. The Constitution framers were aware that the law of contempt is only one of the ways in which administration of justice is protected, preserved and furthered. That, it is an important adjunct to the criminal process and provides a sanction. Other civil courts have the power under Section 151 of Code of Civil Procedure to pass orders prohibiting publication of court proceedings. In Mirajkar, this Court referred to the principles governing Courts of Record under Article 215 [see para 60]. It was held that the High Court is a Superior Court of Record and that under Article 215 it has all the powers of such a court including the power to punish contempt of itself. At this stage, the word includingin Article 129/Article 215 is to be noted. It may be noted that each of the Articles is in two parts. The first part declares that the Supreme Court or the High Court shall be a Court of Record and shall have all the powers of such a court The second part says “includes the powers to punish for contempt These Articles save the pre-existing powers of the Courts as courts of record and that the power includes the power to punish for contempt [see Delhi Judicial Service Association v. State of Gujarat [(1991) 4 SCC 406] and Supreme Court Bar Association v. Union of India [(1998) 4 SCC 409]. As such a declaration has been made in the Constitution that the said powers cannot be taken away by any law made by the Parliament except to the limited extent mentioned in Article 142(2) in the matter of investigation or punishment of any contempt of itself. If one reads Article 19(2) which refers to law in relation to Contempt of Court with the first part of Article 129 and Article 215, it becomes clear that the power is conferred on the High Court and the Supreme Court to see that the administration of justice is not perverted, prejudiced, obstructed or interfered with To see that the administration of justice is not prejudiced or perverted clearly includes power of the Supreme Court/High Court to prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts. In view of the judgment of this Court in A.K. Gopalan v. Noordeen [(1969) 2 SCC 734], such statements which could be prohibited temporarily would include statements in the media which would prejudice the right to a fair trial of a suspect or accused under Article 21 from the time when the criminal proceedings in a subordinate court are imminent or where suspect is arrested. This Court has held in Ram Autar Shukla v. Arvind Shukla [1995 Supp (2) SCC 130] that the law of contempt is a way to prevent the due process of law from getting perverted. That, the words due course of justicein Section 2 (c) or Section 13 of the 1971 Act are wide enough and are not limited to a particular judicial proceedings. That, the meaning of the words contempt of courtin Article 129 and Article 215 is wider than the definition of criminal contemptin Section 2 (c) of the 1971 Act. Here, we would like to add a caveat. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice [see Nigel Lowe and Brenda SufrinLaw of Contempt (Third Edition)]. Trial by newspaper comes in the category of acts which interferes with the course of justice or due administration of justice [see Nigel Lowe and Brenda Sufrin, of Fourth Edition]. According to Nigel Lowe and Brenda Sufrin [5] and also in the context of second part of Article 129 and Article 215 of the Constitution the object of the contempt law is not only to punish, it includes the power of the Courts to prevent such acts which interfere, impede or pervert administration of justice. Presumption of innocence is held to be a human right. [See : Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294]. If in a given case the appropriate Court finds infringement of such presumption by excessive prejudicial publicity by the newspapers (in general), then under inherent powers, the Courts of Record suo motu or on being approached or on report being filed before it by subordinate court can under its inherent powers under Article 129 or Article 215 pass orders of postponement of publication for a limited period if the applicant is able to demonstrate substantial risk of prejudice to the pending trial and provided he is able to displace the presumption of open Justice and to that extent the burden will be on the applicant who seeks such postponement of offending publication.

34. The above discussion shows that in most jurisdictions there is power in the courts to postpone reporting of judicial proceedings in the interest of administration of justice. Under Article 19(2) of the Constitution, law in relation to contempt of court, is a reasonable restriction. It also satisfies the test laid down in the judgment of this Court in R. Rajagopal v. State of T.N. [(1994) 6 SCC 632]. As stated, in most common law jurisdictions, discretion is given to the courts to evolve neutralizing devices under contempt jurisdiction such as postponement of the trial, re-trials, change of venue and in appropriate cases even to grant acquittals in cases of excessive media prejudicial publicity. The very object behind empowering the courts to devise such methods is to see that the administration of justice is not perverted, prejudiced, obstructed or interfered with. At the same time, there is a presumption of Open Justice under the common law. Therefore, courts have evolved mechanisms such as postponement of publicity to balance presumption of innocence, which is now recognized as a human right in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (supra) vis-a-vis presumption of Open Justice. Such an order of postponement has to be passed only when other alternative measures such as change of venue or postponement of trial are not available. In passing such orders of postponement, courts have to keep in mind the principle of proportionality and the test of necessity. The applicant who seeks order of postponement of publicity must displace the presumption of Open Justice and only in such cases the higher courts shall pass the orders of postponement under Article 129/Article 215 of the Constitution. Such orders of postponement of publicity shall be passed for a limited period and subject to the courts evaluating in each case the necessity to pass such orders not only in the context of administration of justice but also in the context of the rights of the individuals to be protected from prejudicial publicity or mis-information, in other words, where the court is satisfied that Article 21 rights of a person are offended. There is no general law for courts to postpone publicity, either prior to adjudication or during adjudication as it would depend on facts of each case. The necessity for any such order would depend on extent of prejudice, the effect on individuals involved in the case, the over-riding necessity to curb the right to report judicial proceedings conferred on the media under Article 19(1)(a) and the right of the media to challenge the order of postponement. 

(ii) Contempt of Courts Act, 1971 

35. Section 2 defines contempt civil contempt and criminal contempt In the context of contempt on account of publications which are not fair and accurate publication of court proceedings, the relevant provisions are contained in Sections 4 and 7 whereas Section 13 is a general provision which deals with defences. It will be noticed that Section 4 deals with “report of a judicial proceeding A person is not to be treated as guilty of contempt if he has published such a report which is fair and accurate. Section 4 is subject to the provisions of Section 7 which, however, deals with publication of “information" relating to proceedings in chambers Here the emphasis is on nformationwhereas in Section 4, emphasis is on report of a judicial proceeding This distinction between a report of proceedings and information is necessary because Section 7 deals with proceedings in camera where there is no access to the media. In this connection, the provisions of Section 13 have to be borne in mind. The inaccuracy of reporting of court proceedings will be contempt only if it can be said on the facts of a particular case, to amount to substantial interference with the administration of justice. The reason behind Section 4 is to grant a privilege in favour of the person who makes the publication provided it is fair and accurate. This is based on the presumption of open justice in courts. Open justice permits fair and accurate reports of court proceedings to be published. The media has a right to know what is happening in courts and to disseminate the information to the public which enhances the public confidence in the transparency of court proceedings. As stated above, sometimes, fair and accurate reporting of the trial (say a murder trial) would nonetheless give rise to substantial risk of prejudice not in the pending trial but in the later or connected trials. In such cases, there is no other practical means short of postponement orders that is capable of avoiding such risk of prejudice to the later or connected trials. Thus, postponement order not only safeguards fairness of the later or connected trials, it prevents possible contempt by the Media. 

(iii) Order of Postponementof publication- its nature and Object 

36. As stated, in US such orders of postponement are treated as restraints which offend the First Amendment and as stated courts have evolved neutralizing techniques to balance free speech and fair trial whereas in Canada they are justified on the touchstone of Section 1 of the Charter of Rights. What is the position of such Orders under Article 19(1)(a) and under Article 21? 

37. Before examining the provisions of Article 19(1)(a) and Article 21, it may be reiterated, that, the right to freedom of speech and expression, is absolute under the First Amendment in the US Constitution unlike Canada and India where we have the test of justification in the societal interest which saves the law despite infringement of the rights under Article 19(1)(a). In India, we have the test of reasonable restriction in Article 19(2). In the case of Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal [(1995) 2 SCC 161] it has been held that it is true that Article 19(2) does not use the words national interest interest of society or public interest but the several grounds mentioned in Article 19(2) for imposition of restrictions such as security of the State, public order, law in relation to contempt of court, defamation etc. are ultimately referable to societal interest which is another name for public interest[para 189]. It has been further held that, the said grounds in Article 19(2) are conceived in the interest of ensuring and maintaining conditions in which the said right can meaningfully be exercised by the citizens of this country[para 151].

38. In the case of E.M.S. Namboodripad v. T. Narayanan Nambiar [AIR 1970 SC 2015] it has been held that the existence of law containing its own guiding principles, reduces the discretion of the Courts to the minimum. But where the law [i.e. 1971 Act] is silent the Courts have discretion[para 30]. This is more so when the said enactment is required to be interpreted in the light of Article 21. We would like to quote herein below para 6 of the above judgment which reads as under :

“The law of contempt stems from the right of the courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all courts when contempt is committed in facie curaie and by the superior courts on their own behalf or on behalf of courts subordinate to them even if committed outside the courts. Formerly, it was regarded as inherent in the powers of a court of record and now by the Constitution of India, it is a part of the powers of the Supreme Court and the High Courts.” 

39. The question before us is whether such postponement orders constitute restrictions under Article 19(2) as read broadly by this Court in the case of Cricket Association of Bengal (supra)? 

40. As stated, right to freedom of expression under the First Amendment in US is absolute which is not so under Indian Constitution in view of such right getting restricted by the test of reasonableness and in view of the Heads of Restrictions under Article 19(2). Thus, the clash model is more suitable to American Constitution rather than Indian or Canadian jurisprudence, since First Amendment has no equivalent of Article 19(2) or Section 1 of the Canadian Charter. This has led the American Courts, in certain cases, to evolve techniques or methods to be applied in cases where on account of excessive prejudicial publicity, there is usurpation of court's functions. These are techniques such as retrials being ordered, change of venue, ordering acquittals even at the Appellate stage, etc. In our view, orders of postponement of publications/ publicity in appropriate cases, as indicated above, keeping in mind the timing (the stage at which it should be ordered), its duration and the right of appeal to challenge such orders is just a neutralizing device, when no other alternative such as change of venue or postponement of trial is available, evolved by courts as a preventive measure to protect the press from getting prosecuted for contempt and also to prevent administration of justice from getting perverted or prejudiced. 

(iv) Width of the postponement orders 

41. The question is - whether such postponement orders constitute restriction under Article 19(1)(a) and whether such restriction is saved under Article 19(2)? 42. At the outset, we must understand the nature of such orders of postponement. Publicity postponement orders should be seen, in the context of Article 19(1)(a) not being an absolute right. The US clash model based on collision between freedom of expression (including free press) and the right to a fair trial will not apply to Indian Constitution. In certain cases, even accused seeks publicity (not in the pejorative sense) as openness and transparency is the basis of a fair trial in which all the stakeholders who are a party to a litigation including the judges are under scrutiny and at the same time people get to know what is going on inside the court rooms. These aspects come within the scope of Article 19(1) and Article 21. When rights of equal weight clash, Courts have to evolve balancing techniques or measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme and this is what the ostponement orderdoes subject to the parameters, mentioned hereinafter. But, what happens when courts are required to balance important public interests placed side by side. For example, in cases where presumption of open justice has to be balanced with presumption of innocence, which as stated above, is now recognized as a human right. These presumptions existed at the time when the Constitution was framed [existing law under Article 19(2)] and they continue till date not only as part of rule of law under Article 14 but also as an Article 21 right. The constitutional protection in Article 21 which protects the rights of the person for a fair trial is, in law, a valid restriction operating on the right to free speech under Article 19(1)(a), by virtue of force of it being a constitutional provision. Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is "the end and purpose of all laws". However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours nonpublication for a limited period. It is not possible for this Court to enumerate categories of publications amounting to contempt. It would require the courts in each case to see the content and the context of the offending publication. There cannot be any straightjacket formula enumerating such categories. In our view, keeping the above parameters, if the High Court/ Supreme Court (being Courts of Record) pass postponement orders under their inherent jurisdictions, such orders would fall within easonable restrictionsunder Article 19(2) and which would be in conformity with societal interests, as held in the case of Cricket Association of Bengal (supra). In this connection, we must also keep in mind the language of Article 19(1) and Article 19(2). Freedom of press has been read into Article 19(1)(a). After the judgment of this Court in Maneka Gandhi (supra, p. 248), it is now well-settled that test of reasonableness applies not only to Article 19(1) but also to Article 14 and Article 21. For example, right to access courts under Articles 32, 226 or 136 seeking relief against infringement of say Article 21 rights has not been specifically mentioned in Article 14. Yet, this right has been deduced from the words 'equality' before the lawin Article 14. Thus, the test of reasonableness which applies in Article 14 context would equally apply to Article 19(1) rights. Similarly, while judging reasonableness of an enactment even Directive Principles have been taken into consideration by this Court in several cases [see recent judgment of this Court in Society for Un-aided Private Schools of Rajasthan v. U.O.I. 2012 (4) SCALE 272. Similarly, in the case of Dharam Dutt v. Union of India reported in (2004) 1 SCC 712, it has been held that rights not included in Article 19(1)(c) expressly, but which are deduced from the express language of the Article are concomitant rights, the restrictions thereof would not merely be those in Article 19(4)]. Thus, balancing of such rights or equal public interest by order of postponement of publication or publicity in cases in which there is real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial and within the above enumerated parameters of necessity and proportionality would satisfy the test of reasonableness in Articles 14 and 19(2). One cannot say that what is reasonable in the context of Article 14 or Article 21 is not reasonable when it comes to Article 19(1)(a). Ultimately, such orders of postponement are only to balance conflicting public interests or rights in Part III of Constitution. They also satisfy the requirements of justification under Article 14 and Article 21. Further, we must also keep in mind the words of Article 19(2) n relation to contempt of court At the outset, it may be stated that like other freedoms, clause 1(a) of Article 19 refers to the common law right of freedom of expression and does not apply to any right created by the statute (see 5 of Constitution of India by D.D. Basu, 14th edition). The above words “in relation toin Article 19(2) are words of widest amplitude. When the said words are read in relation to contempt of court, it follows that the law of contempt is treated as reasonable restriction as it seeks to prevent administration of justice from getting perverted or prejudiced or interfered with. Secondly, these words show that the expression 'contempt of court' in Article 19(2) indicates that the object behind putting these words in Article 19(2) is to regulate and control administration of justice. Thirdly, if one reads Article 19(2) with the second part of Article 129 or Article 215, it is clear that the contempt action does not exhaust the powers of the Court of Record. The reason being that contempt is an offence sui generis. Common law defines what is the scope of contempt or limits of contempt. Article 142(2) operates only in a limited field. It permits a law to be made restricted to investigations and punishment and does not touch the inherent powers of the Court of Record. Fourthly, in case of criminal contempt, the offending act must constitute interference with administration of justice. Contempt jurisdiction of courts of record forms part of their inherent jurisdiction under Article 129/ Article 215. Superior Courts of Record have inter alia inherent superintendent jurisdiction to punish contempt committed in connection with proceedings before inferior courts. The test is that the publication (actual and not planned publication) must create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. It is important to bear in mind that sometimes even fair and accurate reporting of the trial (say murder trial) could nonetheless give rise to the real and substantial risk of serious prejudiceto the connected trials. In such cases, though rare, there is no other practical means short of postponement orders that is capable of avoiding the real and substantial risk of prejudice to the connected trials. Thus, postponement orders safeguard fairness of the connected trials. The principle underlying postponement orders is that it prevents possible contempt. Of course, before passing postponement orders, Courts should look at the content of the offending publication (as alleged) and its effect. Such postponement orders operate on actual publication. Such orders direct postponement of the publication for a limited period. Thus, if one reads Article 19(2), Article 129/ Article 215 and Article 142(2), it is clear that Courts of Record have all the powers including power to punishwhich means that Courts of Record have the power to postpone publicity in appropriate cases as a preventive measure without disturbing its content. Such measures protect the Media from getting prosecuted or punished for committing contempt and at the same time such neutralizing devices or techniques evolved by the Courts effectuate a balance between conflicting public interests. It is well settled that precedents of this Court under Article 141 and the Comparative Constitutional law helps courts not only to understand the provisions of the Indian Constitution it also helps the Constitutional Courts to evolve principles which as stated by Ronald Dworkin are propositions describing rights [in terms of its content and contours] (See 'taking Rights Seriously' by Ronald Dworkin, 5th Reprint 2010). The postponement orders is, as stated above, a neutralizing device evolved by the courts to balance interests of equal weightage, viz., freedom of expression vis-a-vis freedom of trial, in the context of the law of contempt. One aspect needs to be highlighted. The shadow of the law of contempt hangs over our jurisprudence. The media, in several cases in India, is the only representative of the public to bring to the notice of the court issues of public importance including governance deficit, corruption, drawbacks in the system. Keeping in mind the important role of the media, Courts have evolved several neutralizing techniques including postponement orders subject to the twin tests of necessity and proportionality to be applied in cases where there is real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such orders would also put the Media to notice about possible contempt. However, it would be open to Media to challenge such orders in appropriate proceedings. Contempt is an offence sui generis. Purpose of Contempt Law is not only to punish. Its object is to preserve the sanctity of administration of justice and the integrity of the pending proceeding. Thus, the postponement order is not a punitive measure, but a preventive measure as explained hereinabove. Therefore, in our view, such orders of postponement, in the absence of any other alternative measures such as change of venue or postponement of trial, satisfy the requirement of justification under Article 19(2) and they also help the Courts to balance conflicting societal interests of right to know vis-a-vis another societal interest in fair administration of justice. One more aspect needs to be mentioned. Excessive prejudicial publicity leading to usurpation of functions of the Court not only interferes with administration of justice which is sought to be protected under Article 19(2), it also prejudices or interferes with a particular legal proceedings. In such case, Courts are duty bound under inherent jurisdiction, subject to above parameters, to protect the presumption of innocence which is now recognised by this Court as a human right under Article 21, subject to the applicant proving displacement of such a presumption in appropriate proceedings. Lastly, postponement orders must be integrally connected to the outcome of the proceedings including guilt or innocence of the accused, which would depend on the facts of each case. For aforestated reasons, we hold that subject to above parameters, postponement orders fall under Article 19(2) and they satisfy the test of reasonableness. 

(v) Right to approach the High Court/ Supreme Court 

43. In the light of the law enunciated hereinabove, anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the abovementioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework. 

Maintainability 

44. As stated above, in the present case, we heard various stake holders as an important question of public importance arose for determination. Broadly, on maintainability the following contentions were raised: (i) the proceedings were not maintainable as there is no lis; (ii) there is a difference between law-making and framing of guidelines. That, law can be made only by Parliament. That, guidelines to be framed by the Court, therefore, should be self-regulatory or at the most advisory. (iii) under Article 142, this Court cannot invest courts or any other authority with jurisdiction, adjudicatory or otherwise, which they do not possess.

45. Article 141 uses the phrase 'law' declared by the Supreme Court. It means law made while interpreting the statutes or the Constitution. Such judicial law-making is part of the judicial process. Further under Article 141, law-making through interpretation and expansion of the meanings of open-textured expressions such as law in relation to contempt of court in Article 19(2), equal protection of law freedom of speech and expression and administration of justiceis a legitimate judicial function. According to Ronald Dworkin, arguments of principle are arguments intended to establish an individual right. Principles are propositions that describe rights. [See taking Rights Seriouslyby Ronald Dworkin, 5th Reprint 2010, p. 90]. In this case, this Court is only declaring under Article 141, the constitutional limitations on free speech under Article 19(1)(a), in the context of Article 21. The exercise undertaken by this Court is an exercise of exposition of constitutional limitations under Article 141 read with Article 129/Article 215 in the light of the contentions and large number of authorities referred to by the counsel on Article 19(1)(a), Article 19(2), Article 21, Article 129 and Article 215 as also the law of contempt in sofar as interference with administration of justice under the common law as well as under Section 2(c) of 1971 Act is concerned. What constitutes an offending publication would depend on the decision of the court on case to case basis. Hence, guidelines on reporting cannot be framed across the Board. The shadow of law of contempt hangs over our jurisprudence. This Court is duty bound to clear that shadow under Article 141. The phrase in relation to contempt of courtunder Article 19(2) does not in the least describe the true nature of the offence which consists in interfering with administration of justice; in impending and perverting the course of justice. That is all which is done by this judgment. We have exhaustively referred to the contents of the IAs filed by Sahara and SEBI. As stated above, the right to negotiate and settle in confidence is a right of a citizen and has been equated to a right of the accused to defend himself in a criminal trial. In this case, Sahara has complained to this Court on the basis of breach of confidentiality by the Media. In the circumstances, it cannot be contended that there was no lis. Sahara, therefore, contended that this Court should frame guidelines or give directions which are advisory or self-regulatory whereas SEBI contended that the guidelines/directions should be given by this Court which do not have to be coercive. In the circumstances, constitutional adjudication on the above points was required and it cannot be said that there was no lis between the parties. We reiterate that the exposition of constitutional limitations has been done under Article 141 read with Article 129/Article 215. When the content of rights is considered by this Court, the Court has also to consider the enforcement of the rights as well as the remedies available for such enforcement. In the circumstances, we have expounded the constitutional limitations on free speech under Article 19(1)(a) in the context of Article 21 and under Article 141 read with Article 129/Article 215 which preserves the inherent jurisdiction of the Courts of Record in relation to contempt law. We do not wish to enumerate categories of publication amounting to contempt as the Court(s) has to examine the content and the context on case to case basis. 

Conclusion 

46. Accordingly, IA Nos. 4-5 and 10 are disposed of.

47. For the reasons given above, we do not wish to express any opinion on the merit of the other IAs. Consequently, they are dismissed.


I.A. No. of 2012 - Samaj Parivartana Samudaya & Ors. Vs. State of Karnataka & Ors.

posted Sep 3, 2012, 5:45 PM by Law Kerala   [ updated Sep 3, 2012, 5:59 PM ]

IN THE SUPREME COURT OF INDIA 

CIVIL ORIGINAL JURISDICTION

Aftab Alam, K.S. Radhakrishnan and Swatanter Kumar

September 3, 2012

I.A. NO…………/2012 

IN 

W.P. (CIVIL) NO.562 OF 2009 

[REGARDING: CEC REPORT DATED 27.04.2012 

AND 

CEC REGARDING R & R SCHEME] 

WITH 

I.A. NOS.68 OF 2012 AND 103 OF 2012 IN W.P. (CIVIL) NO.562 OF 2009 

AND 

[REPORT DATED 29TH AUGUST, 2012 OF THE CEC REGARDING IMPLEMENTATION OF THE R&R PLANS, RESUMPTION OF MINING OPERATIONS IN “CATEGORYA” MINING LEASES AND ASSOCIATED ISSUES]

Head Note:-

Mining - Mining Leases and Issues - 18 “Category A” Mines - No mining operation under any of the mining leases shall take place unless all the statutory sanctions, permissions and approvals are subsisting. In case, after the resumption of mining operations in terms of this order any statutory sanction, permission or approval is lapsed or is not renewed in time, the mining operations would remain stopped until the required statutory sanction, permission or approval is duly granted. Similarly, in case the Monitoring Committee finds any slackness in the implementation of the R & R Plan in leasehold area under a mining lease, the Monitoring Committee shall apprise the CEC in that regard and it would be open to the CEC to direct suspension of the mining operations under the concerned mining lease and to report the matter to this Court. 
Mining - Mining Leases and Issues - 18 “Category A” Mines - the permission for resumption of mining operations shall not come in the way, in any manner whatsoever, in any investigation, inquiry or proceedings that may be pending against any of the 18 mining leases covered by this order or that may be instituted against any one of them in future. The report ofinvestigation, inquiry or proceeding in respect of any of the 18 leases should also be submitted before this Court.

O R D E R 

Aftab Alam,J.

1. The Central Empowered Committee has submitted a report dated August 29, 2012 regarding implementation of the R & R Plans, resumption of mining operations in “Category A” mining leases and issues incidental thereto.

2. Heard Mr. Shyam Divan, the learned Amicus Curiae, Mr. Prashant Bhushan, appearing for the applicant in I.A. No.68 of 2012, Mr. Krishnan Venugopal appearing for M/s. R. Parveen Chandra, Mr. C.U. Singh, learned senior counsel appearing for the Association of Indian Mini Blast Furnaces and other learned counsel.

3. The recommendations made in the aforesaid report of the CEC dated August 29, 2012 are accepted subject to any modification that the Court may feel necessary to make later on.

4. At Annexure R-1 to the report, there is a list of 16 “Category A” mining leases in Bellary district and two in Chitradurga district in respect of which the R & R Plans have been approved. One of the 18 “Category A” mines, namely, MEL (ML-2346) (103.81 ha) has all the statutory sanctions, permissions and approvals in place and the rest of the 17 mining leases, according to the CEC, are also likely to get all the statutory sanctions, permissions and approvals within a few months as indicated in the table at pages 15 and 16 of the report. It is also stated in the report that the R & R Plan in respect of the 18 “Category A” mines has been duly approved and its implementation on the ground has also commenced.

5. In light of the recommendation of the CEC, the ban imposed on mining operations in all the mining leases (excepting two mining leases of M/s. NMDC Ltd.) in the districts of Bellary, Tumkur and Chitradurga by orders dated July 29 and August 26, 2011 is lifted in respect of the 18 “Category A” mines as enumerated in Annexure R-1 to the report. Mining operations in those 18 “Category A” may commence to the extent of the permissible annual production as determined by the CEC and as indicated in the table at page Nos.15and 16 of the report. The commencement of the mining operations shall be subject to:

(I) compliance with all the statutory requirements; 
(II) the full satisfaction of the Monitoring Committee, expressed in writing, that steps for implementation of the R & R Plan in the leasehold area are proceeding effectively and meaningfully, and 
(III) a written undertaking by the leaseholders that they would fully abide by the Supplementary Environment Management Plan (SEMP) as applicable to the leasehold area and shall also abide by the Comprehensive Environment Plan for Mining Impact Zone (CEPMIZ) that may be formulated later on and comply with any liabilities, financial or otherwise, that may arise against them under the CEPMIZ. 
(IV) The CEC shall, upon inspection, submit a report to this Court that any or all the stated 18 “Category A” mine owners have fully satisfied the above-mentioned conditions. 

Further, it shall be reported that the mining activity is being carried on strictly within the specified parameters and without any violation. Such report should be filed within one month of leave to commence mining activity by the concerned leaseholder.

6. It is made clear that no mining operation under any of the mining leases shall take place unless all the statutory sanctions, permissions and approvals are subsisting. In case, after the resumption of mining operations in terms of this order any statutory sanction, permission or approval is lapsed or is not renewed in time, the mining operations would remain stopped until the required statutory sanction, permission or approval is duly granted.

7. Similarly, in case the Monitoring Committee finds any slackness in the implementation of the R & R Plan in leasehold area under a mining lease, the Monitoring Committee shall apprise the CEC in that regard and it would be open to the CEC to direct suspension of the mining operations under the concerned mining lease and to report the matter to this Court.

8. Among the 18 “Category A” mines, there are six mining leases to which the general directions given above shall apply subject to further conditions as indicated below.8(i). In the case of mining lease, namely, RBSSN (ML-2576) (31.56 ha), mining operations are stopped in terms of the orders passed by this Court in Jambunathanahalli Temple Case. Further, in the case of this mining lease, if the CEC wishes to re-examine whether it falls in “Category A” or any other category, the directions given above in this order shall apply in the case of this mining lease subject to its retaining its position in “Category A” and further subject to any orders passed by this Court in Jambunathanahalli Temple Case. 8(ii). In the case of three other mining leases, namely, Kariganur Minerals (ML-2075/1799) (199.43 ha), RBSSN (ML-2524) (76.09), RBSSN Beneficiation Plant, mining operations are stopped in terms of an order passed by this Court in Jambunathanahalli Temple Case. Therefore, the above directions shall apply to these three mining leases subject to the further orders passed by this Court in Jambunathanahalli Temple Case. 8(iii). In mining lease, namely, RMML (Dalmia) (ML-2010) (331.ha), an order to maintain status quo has been passed by this Court in SLP(C) No.32226/2009. Therefore, the above directions shall applyto this mining lease subject to any further order passed by this Court in SLP(C) No.32226/2009. 8(iv). In mining lease, namely, MML-Timmappanagudi (ML-2605) (136.97 ha), the general directions given above, shall apply subject to the leaseholder abiding by the conditions stipulated in the CEC report, as indicated in the table at of the report.

9. Among the 18 “Category A” mining leases M/s. R. Parveen Chandra (ML No.2294) is cited as an accused in a criminal case registered as PCR No.4/2011, re-numbered as Special CC 171/2011. Needless to say that the investigation of the case shall proceed in accordance with law and the permission for resumption of mining operations shall have no effect on the pending investigation. 9(i). It is made clear that the permission for resumption of mining operations shall not come in the way, in any manner whatsoever, in any investigation, inquiry or proceedings that may be pending against any of the 18 mining leases covered by this order or that may be instituted against any one of them in future. The report ofinvestigation, inquiry or proceeding in respect of any of the 18 leases should also be submitted before this Court.

10. The interlocutory applications relating to the opening up of “Category A” mines are disposed of.

11. Put up the report of the Central Empowered Committee dated February 3, 2012 at an early date to expedite framing of the Comprehensive Environment Plan for Mining Impact Zone and matters related thereto.


I.A. No. 4 of 2012 - NOIDA Authority Vs. Mange Ram Sharma, AIR 2012 SC 2115 : (2012) 7 SCC 65 : JT 2012 (5) SC 32 : 2012 (5) SCALE 180

posted Aug 25, 2012, 2:14 AM by Law Kerala   [ updated Aug 25, 2012, 2:32 AM ]

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

  

SWATANTER KUMAR AND RANJANA PRAKASH DESAI, JJ.

MAY 4, 2012

I.A. No. 4 OF 2012 

IN 

CIVIL APPEAL NO. 10535 OF 2011 

Chairman & Chief Executive Officer, NOIDA & Anr. … Appellants 

Versus 

Mange Ram Sharma (D) through LRs. & Anr. … Respondents 

And 

Dr. Anupama Bisaria & Ors. … Applicants 

ALONG 

WITH 

I.A. No. 5 OF 2012 

IN 

CIVIL APPEAL NO.10535 OF 2011 

Chairman & Chief Executive Officer, NOIDA & Anr. … Appellants 

Versus 

Mange Ram Sharma (D) through LRs. & Anr. … Respondents 

And 

Dr. A.C. Bisaria & Ors. … Applicants 

ALONG WITH 

I.A. No.6 OF 2012 

IN 

CIVIL APPEAL NO.10535 OF 2011 

Chairman & Chief Executive Officer, NOIDA & Anr. … Appellants 

Versus 

Mange Ram Sharma (D) through LRs. & Anr. … Respondents 

And 

M/s. Shivalik Medical Centre P. Limited through its Director, Dr. Ravi Mohta. & Ors. … Applicants 

ALONG WITH 

I.A. No. 48 of 2012 

IN 

CIVIL APPEAL NO . 6962 OF 2005 

R.K. Mittal & Ors. … Appellants 

Versus 

State of U.P. & Ors. … Respondents 

And 

Dr. Birendra KumarTripathi & Anr. … Applicants 

ALONG WITH 

I.A. No. 50 of 2012 

IN 

CIVIL APPEAL NO . 6962 OF 2005 

R.K. Mittal & Ors. … Appellants 

Versus 

State of U.P. & Ors. … Respondents 

And 

Dr. Rashmi Gupta & Ors. … Applicants 

ALONG WITH 

I.A. No. 53 of 2012 

IN 

CIVIL APPEAL NO . 6962 OF 2005 

R.K. Mittal & Ors. … Appellants 

Versus 

State of U.P. & Ors. … Respondents 

And 

Dr. Atul Kaushik & Anr. … Applicants 

Head Note:-

Town Planning - Nursing Home - Residential Area - Alternate Land - Local Government - Misuse of land/premises - NOIDA can be directed to make a provision under this policy for allotment of land/premises to nursing homes and invite applications for allotment of land for the same. The NOIDA has given precedence, under their previous Schemes for allotment, to such applicants who are running nursing homes of more than 10 beds and less than 30 beds and the same would apply under this direction. They shall be given land/premises at reasonable rates as may be determined by the competent authority in NOIDA. This exercise of inviting applications and allotting such land/premises should be completed within three months from today. The applicants have stated that their nursing homes have already been closed, but we make it absolutely clear that no nursing home shall run from a residential area henceforth. 
Town Planning - Nursing Home - Individual doctors - Residential Area - Individual doctors would not be entitled to any benefit under the Scheme that the NODIA will declare under this order. A clinic simplicitor can be run by a doctor within such area as already specified, of his or her residence. This clinic would mean one as per the bye-laws. To put the matters beyond ambiguity, we clarify that the doctor can have his clinic with a table, a bed to examine the patient and such facilities which may be necessary to provide first aid. A dentist may have a dental chair in his clinic. Under this head, neither a polyclinic nor a nursing home can be run in the residential area. 
Town Planning - Nursing Home - Individual doctors - Residential Area - No doctor would be permitted to run a polyclinic or a nursing home in the garb of a clinic. Therefore, the question of keeping the patients in the clinic overnight would not arise. The purpose of permitting a clinic is strictly in accordance with the directions of this court as already issued as well as the bye-laws. The doctors will be permitted to run a clinic to provide personal service to the outdoor patients and nothing more. The doctors would be permitted to conduct professional practice, by the resident doctor alone, within the scope of the directions already issued by this court.

ORDER

1. By judgment and order dated 5/12/2011, this Court disposed of Civil Appeal No.10535 of 2011 and issued following directions:

“(1) That banking or nursing homes or any other commercial activity is not permitted in Sector 19 and for that matter, in any sector, in the development area earmarked for “residential use”. 
(2) That the 21 banks and the nursing homes, which are operating in Sector 19 or any other residential sector, shall close their activity forthwith, stop misuse and put the premises to residential use alone, within two months from the date of pronouncement of this judgment. 
(3) That lessees of the plots shall ensure that the occupant banks, nursing homes, companies or persons carrying on any commercial activity in the residential sector should stop such activity and shift the same to the appropriate sectors i.e. commercial, commercial pockets in industrial/institutional area and specified pockets for commercial use within the residential sector, strictly earmarked for that activity in the development plan, the Regulations and provisions of the Act. 
(4) That the Development Authority shall consider the request for allotment of alternative spaces to the banks and the persons carrying on other commercial activities, with priority and expeditiousness. 
(5) That the doctors, lawyers and architects can use 30% of the area on the ground floor in their premises in residential sector for running their clinics/offices. 
(6) That for such use, the lawyers, architects and doctors shall be liable to pay such charges as may be determined by the Development Authority in accordance with law and after granting an opportunity of being heard. The affected parties would be at liberty to raise objections before the Development Authority that no charges are payable for such users as per the law in force. 
(7) In the event the lessee or the occupant fails to stop the offending activity and/or shift to alternate premises within the time granted in this judgment, the Development Authority shall seal the premises and proceed to cancel the lease deed without any further delay, where it has not already cancelled the lease deed. 
(8) Wherever the Development Authority has already passed the orders canceling the lease deeds, such orders shall be kept in abeyance for a period of two months from today. In the event the misuse is not stopped within a period of two months in terms of this judgment, then besides sealing of the premises, these orders of cancellation shall stand automatically revived and would come into force without further reference to any court. In the event the misuse is completely stopped in all respects, the orders passed by the authorities shall stand quashed and the property would stand restored to the lessees. 
(9) These orders shall apply to all cases, where the order of termination of lease has been passed by the Development Authority irrespective of whether the same has been quashed and/or writs of the lessees dismissed by any court of competent jurisdiction and even if such judgment is in appeal before this Court. 
(10) The orders in terms of this judgment shall be passed by an officer not below the rank of Commissioner. This order shall be passed after giving an opportunity to the parties of beingheard by such officer. This direction shall relate only to the determination of charges, if any, payable by the lessee or occupant for the period when the commercial activity was being carried on in the premises in question.” 

2. On 23/1/2012, it was pointed out to us that 30% of the ground floor area permitted to be used under Direction (5) above is contrary to the bye-laws and master plan of NOIDA. It was urged before us that the expression ‘ground floor’ used in the same clause may be clarified as ‘any floor’ because somebody may be having a two-storeyed house and may himself be living on the first floor only. In the circumstances, we modified Direction (5) quoted above and clarified that 25% of the permissible FAR is allowed to be used for their professional purposes by doctors, lawyers and architects. We also modified paragraphs 54 and 55 of our judgment as follows:

“That the doctors, lawyers and architects can use 25 per cent of the permissible FAR of any floor in their premises in the residential sector but only for running their personal office or personal clinic in its restricted sense as clarified in the judgment.”

3. By the said order dated 23/1/2012, we have issued the following further directions:

“(i) The NOIDA Authorities shall, within one week from today, issue a final notice to all the owners of the residences requiring them to stop use of the premises for banking or any other commercial activity and requiring them to shift from the residential areas. 
(ii) The NOIDA Authority shall also issue an advertisement stating therein the premises which can be offered to the banks as per the policy of the NOIDA Authority. This policy shall clearly state the terms and conditions for allotment and the manner in which the allotment of the alternative site/land would be made to the banks and/or other commercial activities in appropriate sectors i.e. commercial, institutional or industrial-commercial. We make it clear that such policy should be fair and transparent. 
(iii) Within one week thereafter the banks and other persons carrying on the commercial activities shall respond to the advertisement given by the NOIDA Authority or the circular issued by them. Their allotment should be finalized immediately thereafter. 
(iv) The entire process should be completed within six weeks from today. After six weeks the NOIDA Authority shall be entitled to cancel the lease deed as well as take other permissible steps in accordance with law to prevent commercial users in the residential sectors. We also make it clear that the NOIDA Authority willbe at liberty to consider the request of the nursing homes, clinics or other commercial activities carrying on the residential areas for allotment of an alternative site in accordance with its policy, if any. The NOIDA Authority shall be entitled to fix present day rates or impose such other terms and conditions as is considered appropriate by them. This we leave to the discretion of the authorities concerned. 
(v) Any branches that have opened in NOIDA after the pronouncement of the judgment of this Court shall not be entitled to any of the benefits of the judgment and this order. 
(vi) We make it clear that the directions contained in this order should be complied with by all concerned and within the time stipulated. In the event of default, this court shall be compelled to take proceedings under the Contempt of Courts Act, 1971 against the erring or defaulting officers/officials.” 

4. In the abovementioned applications, some applications have been filed by the doctors, who were running nursing homes in the residential areas with a prayer that they should be provided alternate land/premises by NOIDA, as it has been done in the case of banks as per the judgment of this court. It is averred in these applications that Dr. Rashmi Gupta and others were running nursing homes in the residential areas with differing capacity, which have now been closed. They areprepared to pay the reasonable cost of land/premises which the NOIDA may now allot to them for running their nursing homes. There are other applications also with similar prayers. As we had heard the applicants as intervenors/impleaders, their applications for intervention do not survive for consideration any further.

5. As far as formulation of Scheme by the NOIDA for allotting the land/premises to such applicants is concerned, the stand of the NOIDA is that it had already taken out a Scheme especially for nursing homes. However, no applicant applied for allotment of such land and thus, the NOIDA had not allotted any plot to the persons running nursing homes in the residential areas.

6. The NOIDA Master Plan, 2031, in Chapter 7, deals with Use Zones and Use Premises Designated. Under Serial No.87 of Chapter 7.30, while referring to Clause 5.22, it has been stated that a premises having medical facilities for indoor and outdoor patients having upto 30 beds is a nursing home andwould be managed by a doctor on commercial basis. A clinic is stated to be a premises with facilities for treatment of outdoor patients by a doctor. In case of a polyclinic, it shall be managed by a group of doctors.

7. After hearing learned counsel appearing for different parties, we are of the view that NOIDA can be directed to make a provision under this policy for allotment of land/premises to nursing homes and invite applications for allotment of land for the same. The NOIDA has given precedence, under their previous Schemes for allotment, to such applicants who are running nursing homes of more than 10 beds and less than 30 beds and the same would apply under this direction. They shall be given land/premises at reasonable rates as may be determined by the competent authority in NOIDA. This exercise of inviting applications and allotting such land/premises should be completed within three months from today. The applicants have stated that their nursing homes have already been closed, but we make it absolutely clear that no nursing rome shall run from a residential area henceforth.

8. Coming to the applications made by individual doctors, we direct that individual doctors would not be entitled to any benefit under the Scheme that the NODIA will declare under this order. A clinic simplicitor can be run by a doctor within such area as already specified, of his or her residence. This clinic would mean one as per the bye-laws. To put the matters beyond ambiguity, we clarify that the doctor can have his clinic with a table, a bed to examine the patient and such facilities which may be necessary to provide first aid. A dentist may have a dental chair in his clinic. Under this head, neither a polyclinic nor a nursing home can be run in the residential area.

9. We also direct that no doctor would be permitted to run a polyclinic or a nursing home in the garb of a clinic. Therefore, the question of keeping the patients in the clinic overnight would not arise. The purpose of permitting a clinic is strictly in accordance with the directions of this court as already issued as well as the bye-laws. The doctors will be permittedto run a clinic to provide personal service to the outdoor patients and nothing more. The doctors would be permitted to conduct professional practice, by the resident doctor alone, within the scope of the directions already issued by this court.

10. We have heard the applicants, at length. There is no occasion for this court to review/alter its judgment dated 5/12/2011 and further order dated 23/1/2012. Consequently, the applications for intervention and impleadment do not survive.


I.A. No. 4 of 2012 - Avishek Goenka Vs. Union of India, (2012) 8 SCC 441 : JT 2012 (7) SC 172 : 2012 (7) SCALE 97

posted Aug 7, 2012, 12:09 AM by Law Kerala   [ updated Oct 4, 2012, 2:09 AM ]

IN THE SUPREME COURT OF INDIA 

CIVIL ORIGINAL JURISDICTION

A.K. Patnaik and Swatanter Kumar, JJ.

August 3, 2012

IA NOS . 4 , 5 , IA NOS . 6-8 , IA . NOS . 9-11 , 12 , 13 , 14 AND 15 

IN 

WRIT PETITION (CIVIL ) NO.265 OF 2011 

Head Note:-

Motor Vehicles Rules, 1989 - Rule 100 - No material including films of any VLT can be pasted on the safety glasses of the car and this law is required to be enforced without demur and delay.
Motor Vehicles Rules, 1989 - Rule 100 - Supreme Court Rules, 1966 - Order XVIII, Rule 5 - Application for impleadment - Interpretation of Statutes - Enforcement of law, if causes any inconvenience, is no ground for rendering a provision on the statute book to be unenforceable. Individual inconvenience cannot be a ground for giving the law a different interpretation.
J U D G M E N T

Swatanter Kumar , J .

1. The applications for impleadment and intervention are allowed subject to just exceptions. All applications for placing documents on record are also allowed.

2. I.A. No. 5 of 2012 has been filed by the Dealers and Distributors of tinted films in Writ Petition (Civil) No. 265 of 2011 under Order XVIII, Rule 5 of the Supreme Court Rules, 1966 against the dismissal of two interim applications, i.e., seeking permission to file application for impleadment and application for modification by the Registrar of this Court vide his Order dated 16th May, 2012.

3. The learned Registrar vide the impugned order noticed that application for impleadment was not maintainable inasmuch as the writ petition in which the application was filed has already been disposed of. In regard to the application for modification, according to the applicants, the petitioner suppressed various aspects of the matter and misled the court in passing the order and the same order was therefore, liable to be modified. Dealing with this contention, the learned Registrar, while referring to the judgment of this Court in Delhi Administration v. Gurdip Singh Uban and Ors. [(2000) 7 SCC 269] held that the application, in fact, was an application for review and not for modification. Thus, he declined to receive the application and registered the same in accordance with the Rules of the Supreme Court.

4. We hardly find any error of law in the Order of the Registrar under appeal, but we consider it entirely unnecessary to deliberate upon this issue in any further detail, since, we have permitted the applicants to address the Court on merits of the application. Keeping in view the fact that a number of other applications have been filed for clarification and modification of the judgment of this Court dated 27th April, 2012, without commenting upon the merit or otherwise of the present appeal, we would deal only with the application for modification or clarification filed by these applicants along with others.

5. I.A. No. 15 has been filed by the International Window Film Association. I.A. No. 4 has been filed on behalf of Vipul Gambhir.

6. An unnumbered I.A. of 2012 is filed by 3M India Ltd. Another unnumbered I.A. has been filed on behalf of the dealers and distributors of the tinted films.

7. I.A. No. 3 of 2012, an application on behalf of the petitioner to appear in person, is allowed.

8. I.A. No. 7 of 2012 has been filed on behalf of M/s. Garware Polyester Ltd. I.A. No. 10 of 2012 is an application filed by M/s. Car Owners and Consumer Association.

9. Another unnumbered I.A. has been filed on behalf of M/s. Gras Impex Pvt. Ltd. All these applications have been filed by various applicants seeking clarification and/or modification ofthe judgment of this Court dated 27th April, 2012 on various grounds.

10. The petitioner has filed I.A. No. 11 of 2012 by way of a common reply to the grounds taken in all these applications and has also placed certain documents on record. The various applicants above-named have sought modification/clarification of the judgment of this Court dated 27th April, 2012 principally and with emphasis on the following grounds :

1) That the applicants were not parties to the writ petition and were not aware of the proceedings before this Court. Thus, their submissions could not be considered by the Court, hence the judgment of the Court requires modification. 
2) The applicants have placed material and reports on record that the use of films or even black films is permissible scientifically and in law. 
3) It is contended that Rule 100(2) uses the expression ‘maintained’ which implies that safety glasses, including the wind screen, can be maintained with requisite VLT percentage even by use of black films. 
4) Lastly, it is contended that para 27 of the judgment needs modification by substituting the words ‘use of black films of any VLT percentage’ by the words ‘use of black films of impermissible VLT percentage”.

11. We must notice at the very threshold that in the main Writ Petition no. 265 of 2011 and even in the present applications, there is no challenge to Rule 100 of the Motor Vehicles Rules, 1989 (for short, ‘the Rules’). This Court vide its judgment dated 27th April, 2012, has interpreted the said Rule de hors the other factors. Once this Court interprets a provision of law, the law so declared would be the law of the land in terms of Article 141 of the Constitution of India. The law so declared is binding on all and must be enforced in terms thereof. Having interpreted the Rule to mean that it is the safety glasses alone with requisite VLT that can be fixed in a vehicle, it is not for this Court to change the language of the said Rule. It would, primarily, be a legislative function and no role herein, is to be performed by this Court.

12. In the applications before us, as already noticed, some grounds have been taken to demonstrate that some other interpretation of the provision was possible. These grounds, firstly, are not grounds of law. They are primarily the grounds of inconvenience. Enforcement of law, if causes any inconvenience, is no ground for rendering a provision on the statute book to be unenforceable. The challenge to the legislative act can be raised on very limited grounds and certainly not the ones raised in the present application. In fact, all the learned counsel appearing for various applicants fairly conceded that they were not raising any challenge to Rule 100 of the Rules. Once that position is accepted, we see no reason to alter the interpretation given by us to the said Rule in our judgment dated 27th April, 2012.

13. Still, we will proceed to discuss the contentions raised. The judgment dated 27th April, 2012 was passed in a Public Interest Litigation and the orders passed by this Court would be operative in rem. It was neither expected of the Court nor is it the requirement of law that the Court should have issued notice to every shopkeeper selling the films, every distributor distributing the films and every manufacturer manufacturing the films. But, in any case, this was a widely covered matter by the Press. It was incumbent upon the applicants to approach the Court, if they wanted to be heard at that stage. The writ petition was instituted on 6th May, 2011 and the judgment in the case was pronounced after hearing all concerned, including the UnionGovernment, on 27th April, 2012, nearly after a year. Hence, this ground raised by the applicants requires noticing only for being rejected.

14. Not only the present judgment but even the previous judgments of this Court, in the cases referred to in the judgment dated 27th April, 2012, in some detail have never permitted use of films on the glasses. What the Court permitted was tinted glasses with requisite VLT. Thus, the view of this Court has been consistent and does not require any clarification or modification.

15. Equally, without substance and merit is the submission that the expression ‘maintained’ used in Rule 100 would imply that subsequent to manufacturing, the car can be maintained by use of films with requisite VLT of 70 per cent and 50 per cent respectively. In the judgment, after discussing the scheme of the Act, the Rules framed thereunder and Rule 100 read in conjunction with Indian Standard No.2553 Part II of 1992, this court took the view that the Rule does not permit use of any other material except the safety glass ‘manufactured as per the requirements of law’. Rule 100 categorically states that ‘safety glass’ is the glass which is to be manufactured as per the specification and requirements of explanation to Rule 100(1). It is only the safety glasses alone that can be used by the manufacturer of the vehicle. The requisite VLT has to be 70 per cent and 50 per cent of the screen and side windows respectively, without external aid of any kind of material, including the films pasted on the safety glasses. The use of film on the glass would change the very concept and requirements of safety glass in accordance with law. The expression ‘maintained’ has to be construed to say that, what is required to be manufactured in accordance with law should be continued to be maintained as such. ‘Maintenance’ has to be construed ejusdem generis to manufacture and cannot be interpreted in a manner that alterations to motor vehicles in violation of the specific rules have been impliedly permitted under the language of the Rule itself. The basic features and requirements of safety glass are not subject to any alteration. If the interpretation given by the applicants is accepted, it would frustrate the very purpose of enacting Rule 100 and would also hurt the safety requirements of a motor vehicle as required under the Act. Number of Rules have been discussed in the judgment dated 27th April, 2012 to demonstrate that these Rules are required to be strictly construed otherwise they would lead to disastrous results and would frustrate the very purpose of enacting such law.

16. Now, we may come to the last contention that para 27 of the judgment needs modification as noticed above. Para 27 of the judgment reads as under:

“27. For the reasons afore-stated, we prohibit the use of black films of any VLT percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country. The Home Secretary, Director General/Commissioner of Police of the respective States/Centre shall ensure compliance with this direction. The directions contained in this judgment shall become operative and enforceable with effect from 4th May, 2012.” 

17. According to the applicant, the expression ‘we prohibit the use of black film of any VLT percentage or any other material upon safety glasses’ should be substituted by ‘we prohibit the use of black films of impermissible VLT percentage or any other material upon the safety glasses’. The suggestion of the applicants would be in complete violation of the substantive part of the judgment. We have already noticed that it is not the extent of VLT percentage of films which is objectionable under the Rules but it is the very use of black films or any other material, which is impermissible to be used on the safety glasses. Once the prescribed specifications do not contemplate use of any other material except what is specified in the Explanation to Rule 100(1), then the use of any such material by implication cannot be permitted. Quando aliquid prohibetur ex directo, prohibetur et per obliquum. If we substitute the plain language in para 27, it would render the entire judgment ineffective and contradictory in terms. Having already held that no material, including the films, can be used on the safety glasses, there is no occasion for us to accept this contention as well.

18. The manufacturer and distributors have placed certain material before us, including some photographs and reports of the American Cancer Society, to show that mostly skin cancer is caused by too much exposure to ultra-violet rays. From these photographs, attempt is made to show that in the day time when the films are pasted upon the safety glasses, still the face and the body of the occupant of the car is visible from outside. It is also stated that certain amendments were proposed in the Code of Virginia relating to the use of sun shading and tinting films, on the motor vehicles. Relying upon the material relating to America, it is stated that there are large number of cancer cases in USA and the framers of the law have amended the provisions or are in the process of amending the provisions. This itself shows that it is a case of change in law and not one of improper interpretation, which is not the function of this Court.

19. To counter this, the petitioner has filed a detailed reply supported by various documents. This shows that tinted glasses have been banned in a number of countries and it is not permissible to use such glasses on the windows of the vehicle. Annexure A1 and A3 have been placed on record in relation to New South Wales, Australia, Afghanistan and some other countries. He has also placed on record a complete research article on the cancer scenario in India with future perspective which has specifically compared India as a developing country with developed countries like USA and has found that cancer is much less in India despite the fact that most of the Indian population is exposed to ultra-violet rays for the larger part of the day for earning their livelihood for their daily works, business and other activities.

20. This controversy arising from the submissions founded on factual matrix does not, in our opinion, call for any determination before this Court. As already noticed, the Court has interpreted Rule 100 as it exists on the statute book. The environment, atmosphere and geographical conditions of each country are different. The level of tolerance and likelihood of exposure to a disease through sun rays or otherwise are subjective matters incapable of being examined objectively in judicial sense. The Courts are neither required to venture upon such determination nor would it be advisable.

21. It cannot be disputed and is a matter of common knowledge that there are a large number of preventive measures that can be taken by a person who needs to protect himself from the ultraviolet rays. Use of creams, sun-shed and other amenities would be beneficial for the individual alleged to be intolerable to sun rays. It does not require change of a permanent character in the motor vehicle, that too, in utter violation of the provisions of the statute. Suffice it to note that the reliance placed upon the literature before us is misconceived and misdirected. The interpretation of law is not founded on a single circumstance, particularly when such circumstance is so very individualistic. The Court is not expected to go into individual cases while dealing with interpretation of law. It is a settled canon of interpretative jurisprudence that hardship of few cannot be the basis for determining the validity of any statute. The law must be interpreted and applied on its plain language. (Ref. Saurabh Chaudri & Ors. v. Union of India & Ors. [AIR 2004 SC 361].

22. In IA 4, a similar request is made. We are not dealing with individual cases and individual inconvenience cannot be a ground for giving the law a different interpretation.

23. The petitioner argued with some vehemence that despite a clear direction of this Court, the appellate authority has utterly failed in enforcing the law. According to him, in majority of the vehicles in the NCT Delhi and the surrounding districts of UP, like Ghaziabad, Noida as well as towns of Haryana surrounding Delhi, law is violated with impunity. All safety glasses are posted either with Jet black films or light coloured films. He has referred to two instances, one of rape in Ghaziabad and the other of kidnapping, where the cars involved in the commission of the crime had black films. He has also stated that as per the press reports, the vehicles which are involved in hit and run cases are also vehicles with black films posted on the safety glasses.

24. We are really not emphasizing on the security threat to the society at large by use of black films but it is a clear violation of law. In terms of Rule 100, no material including films of any VLT can be pasted on the safety glasses of the car and this law is required to be enforced without demur and delay. Thus, we pass the following orders :

1) All the applications filed for clarification and modification are dismissed, however, without any order as to costs. 
2) All the Director Generals of Police/Commissioners of Police are hereby again directed to ensure complete compliance of the judgment of this Court in its true spirit and substance. They shall not permit pasting of any material, including films of any VLT, on the safety glasses of any vehicle. 
3) We reiterate that the police authorities shall not only challan the offenders but ensure that the black or any other films or material pasted on the safety glasses are removed forthwith. 
4) We make it clear at this stage that we would not initiate any proceedings against the Director Generals of Police/Commissioners of Police of the respective States/Union Territories but issue a clear warning that in the event of non-compliance of the judgment of this Courtnow, and upon it being brought to the notice of this Court, the Court shall be compelled to take appropriate action under the provisions of the Contempt of Courts Act, 1971 without any further notice to the said officers. We do express a pious hope that the high responsible officers of the police cadre like Director General/Commissioner of Police would not permit such a situation to arise and would now ensure compliance of the judgment without default, demur and delay. 
5) Copies of this judgment be sent to all concerned by the Registry including the Chief Secretaries of the respective States forthwith.

I.A. No. 61 of 2012 - Research Foundation for Science Vs. Union of India, (2012) 7 SCC 764 : JT 2012 (7) SC 212 : 2012 (7) SCALE 17

posted Jul 31, 2012, 6:22 AM by Law Kerala   [ updated Sep 11, 2012, 5:44 AM ]

IN THE SUPREME COURT OF INDIA 

CIVIL ORIGINAL JURISDICTION

ALTAMAS KABIR AND J. CHELAMESWAR, JJ.

Dated: 30th July, 2012.

I.A . NOS. 61 & 62 OF 2012 

IN 

WRIT PETITION (C) No. 657 of 1995 

Head Note:-

Environmental Law - Basel Convention - Clean and pollution free maritime environment - toxic and hazardous material the concerned authorities shall strictly comply with the norms laid down in the Basel Convention or any other subsequent provisions that may be adopted by the Central Government in aid of a clean and pollution free maritime environment, before permitting entry of any vessel suspected to be carrying toxic and hazardous material into Indian territorial waters.

O R D E R 

ALTAMA S KABIR , J .

1. On 6th July, 2012, Writ Petition (Civil) No.657 of 1995 filed by the Research Foundation for Science, Technology and Natural Resources Policy was disposed of by this Court. I.A. No.61 of 2012 which had been filed by M/s Best Oasis Ltd. on 9th May, 2012, and I.A. No.62 of 2012 filed by Gopal Krishna on 18th June, 2012, were heard separately since in the said applications relief was prayed for in respect of a specific ship named “Oriental Nicety” (formerly known as Exxon Valdez), which had entered into Indian territorial waters and had sought the permission of the Gujarat Pollution Control Board and the Gujarat Maritime Board to allow the ship to beach for the purpose of dismantling. Such relief would, of course, be subject to compliance with all the formalities as required by the judgments and orders passed by this Court on 14th October, 2003, 6th September, 2007 and 11th September, 2007 in the Writ Petition. The Applicant, M/s Best Oasis Ltd. is the purchaser of the said ship. 

2. Another prayer was for a direction to the above-mentioned Authorities and the Atomic Energy Regulatory Board to inspect the ship and to permit it to enter into Indian territorial waters and allow it to anchor in Indian waters, which has been rendered redundant, since, as submitted by Ms. Hemantika Wahi, learned Standing Counsel for the State of Gujarat, the said stages have already been completed and the ships is anchored outside Alang Port.

3. After the application had been filed, the Union of India in its Ministry of Environment and Forests, and the Gujarat Maritime Board, were directed to file their respective responses thereto.

4. Appearing on behalf of the Union of India in its Ministry of Environment and Forests, Mr. Ashok Bhan, learned Senior Advocate, submitted that an affidavit had been affirmed by Shri M. Subbarao, Director, Ministry of Environment and Forests, in which it had been disclosed that a Technical Expert Committee (TEC) had been appointed pursuant to the directions contained in the order dated 6th September, 2007, passed by this Court in the Writ Petition. The said Committee Report dealt in great detail with the hazards associated with the ship breaking industry, occupational and health issues, social welfare activities of workers, occupational hazards associated with breaking of different categories of ships of special concern, handling of hazardous material and the role and responsibilities of various defaulters. Mr. Bhan submitted that the said Report also focused on ships of special concern in assessment of hazardous wastes and potentially hazardous materials. It was urged that a definite procedure for anchoring, beaching and breaking of ships had been laid down in the Report of the Committee which is applicable to ship-breaking activities in all the coastal States of India. In fact, it was pointed out by Mr. Bhan that the procedures recommended by the Committee were already in force and in terms of the order dated 6th September, 2007, the Report of the Committee is to remain in force until a comprehensive Report, incorporating the recommendations of the Committee, was formulated. In addition, Mr. Bhan submitted that in compliance with this Court’s order dated 14th October, 2003, the Union of India, in its Ministry of Steel, has constituted an Inter-Ministerial Standing Monitoring Committee to periodically review the status of implementation of the recommendations of the Technical Expert Committee.

5. Mr. Bhan submitted that the provisions of the Basel Convention relating to the disposal of hazardous wastes are being strictly followed and as far as the present ship is concerned, it was for the Gujarat Maritime Board, which is the concerned local authority to take a decision for anchoring and subsequent beaching and dismantling of the ship, in strict compliance with the directions contained in the order passed by this Court on 6th September, 2007.

6. Mr. Bhan also referred to an affidavit affirmed on behalf of the Ministry of Shipping, in which it was stated that for permitting a vessel to anchor, inspection is to be carried out by the State Maritime Board in consultation with the State Pollution Control Board and Customs Department. In the affidavit, it has been specifically averred that an inspection of the vessel had been carried out by the Gujarat Maritime Board and it was found that the ship had been converted from an oil tanker to a bulk carrier in 2008 and there was no sign of any hazardous/toxic substance on board. It was also stated in the affidavit that the Board had given its “no objection” for beaching of the ship and the Ministry of Shipping, therefore, had no say in the matter.

7. Appearing for the Gujarat Pollution Control Board, Gandhinagar, Ms. Hemantika Wahi submitted that in keeping with the directions contained in the order passed by this Court on 6th September, 2007, an Inter-Ministerial Committee and Standing Monitoring Committee to review the status of implementation of the directions of this Court from time to time, had been constituted. However, as a matter of precaution, the Gujarat Pollution Control Board had not recommended that permission be granted to the vessel in question to anchor, until further orders were passed by this Court in the pending Writ Petition. Ms. Wahi submitted that in the order dated 6th September, 2007, this Court had recommended the formulation of a comprehensive code to govern the procedure to be adopted to allow ships to enter into Indian territorial waters and to beach at any of the ports in India for the purpose of dismantling. However, till such code came into force, the officials of the Gujarat Maritime Board, the concerned State Pollution Control Board, officials of the Customs Department, National Institute of Occupational Health and the Atomic Energy Regulatory Board, could oversee the arrangements. Ms. Wahi submitted that the application for recommendation for anchoring could be decided in view of the aforesaid order dated 6th September, 2007, and the TEC Report which had been accepted by this Court vide the said order, with liberty to file a response to the application at a later stage, if required.

8. Ms. Wahi then referred to the affidavit affirmed on behalf of the Gujarat Maritime Board by Capt. Sudhir Chadha, Port Officer, Ship Recycling Yard, in the Gujarat Maritime Board at Alang. Ms. Wahi submitted that in terms of the directions given on 25th June, 2012, on the application of M/s Best Oasis Ltd., the Gujarat Maritime Board instructed the company to bring the vessel to the Port area of Alang for inspection. Ms. Wahi submitted that when the vessel arrived outside the Port area of Alang on 30th June, 2012, officers of all concerned departments, including the Gujarat Maritime Board, the Gujarat Pollution Control Board, Customs Department, Explosives Department, Atomic Energy Regulatory Board, went on board the ship to inspect and ascertain that there was no hazardous/toxic substance on it. Ms. Wahi submitted that upon inspection, nothing hazardous or toxic was discovered on the vessel, which was found to be in conformity with the documents submitted for desk review. The Gujarat Maritime Board, therefore, certified that the ship was fit for breaking/dismantling and beaching permission would be given after following the procedure laid down by TEC and approved by this Court in its order dated 6th September, 2007.

9. The recommendations of the Gujarat Maritime Board and the Gujarat Pollution Control Board to allow the vessel to beach at Alang was hotly contested by Mr. Sanjay Parikh, learned Advocate appearing for the Petitioner, Research Foundation for Science, Technology and Natural Resources Policy. Mr. Parikh urged that while disposing of the Writ Petition on 6th July, 2012, this Court had directed the Union of India and the Respondents concerned to follow the procedure which had been laid down in the Basel Convention in the matter of ship-breaking, which often generated large quantities of toxic waste. Mr. Parikh submitted that none of the safeguards which had been put in place by the Basel Convention had been complied with or followed in permitting the Oriental Nicety to enter into Indian territorial waters. Mr. Parikh submitted that under the Basel Convention, the country of export of the ship was required to inform the country of import of the movement of the ship in question and that it was non-hazardous and non-toxic. Mr. Parikh submitted that in the instant case such intimation was neither given nor was the ship certified to be free from hazardous and toxic substances.

10. It was also urged that the owners of the vessel were required to obtain clearance from the Government of India to bring the ship into Indian territorial waters, which was dependent upon the availability of landfill facilities, as also facilities for beaching. Mr. Parikh submitted that it is only after completion of the aforesaid requirements, that the ship could be allowed entry into Indian territorial waters and to beach at any of the ship-breaking yards at any of the Ports designated for such purpose. Mr. Parikh submitted that in the absence of proper compliance with the norms laid down in the Basel Convention, the vessel ought not to have been permitted to enter into Indian territorial waters or the Port area at Alang by the Gujarat Pollution Control Board and the Gujarat Maritime Board. Mr. Parikh further submitted that now the vessel had been permitted to enter the Alang Ship-breaking Yard, further steps to dismantle the ship should not be permitted, without definite steps being taken to ensure that there were no hazardous substances on board the ship or that the ship itself was not a hazardous object.

11. Mr. Parikh further submitted that if during the dismantling of the ship any toxic or hazardous materials were found on board the ship or was found to be an integral part of the ship, adequate precautionary measures should be taken immediately to neutralize the same either by incineration or by creating adequate landfills for disposal of such waste.

12. We have carefully considered the submissions made on behalf of the respective parties in the light of the submissions made on behalf of Applicant, M/s Best Oasis Ltd., the owner of the vessel in question, that huge demurrage charges are being incurred by the ship owner each day. We are of the view that once clearance has been given by the State Pollution Control Board, State Maritime Board as well as the Atomic Energy Regulatory Board for the vessel to beach for the purpose of dismantling, it has to be presumed that the ship is free from all hazardous or toxic substances, except for such substances such as asbestos, thermocol or electronic equipment, which may be a part of the ship’s superstructure and can be exposed only at the time of actual dismantling of the ship. The reports have been submitted on the basis of actual inspection carried out on board by the abovementioned authorities, which also include the Customs authorities. The Atomic Energy Regulatory Board has come up with suggestions regarding the removal of certain items of the ship during its dismantling. The suggestions are reasonable and look to balance the equities between the parties.

13. We, therefore, dispose of the two IAs which we have taken up for hearing and direct the concerned authorities to allow the ship in question to beach and to permit the ship owner to proceed with the dismantling of the ship, after complying with all the requirements of the Gujarat Maritime Board, the Gujarat Pollution Control Board and Atomic Energy Regulatory Board. It is made clear that if any toxic wastes embedded in the ship structure are discovered during its dismantling, the concerned authorities shall take immediate steps for their disposal at the cost of the owner of the vessel, M/s Best Oasis Ltd., or its nominee or nominees.

14. Before parting with the matter, we would like to emphasize that in all future cases of a similar nature, the concerned authorities shall strictly comply with the norms laid down in the Basel Convention or any other subsequent provisions that may be adopted by the Central Government in aid of a clean and pollution free maritime environment, before permitting entry of any vessel suspected to be carrying toxic and hazardous material into Indian territorial waters.

15. There will be no order as to costs.


I.A. No. 5 of 2012 - Supreme Court Bar Association Vs. B.D. Kaushik, (2012) 8 SCC 589 : JT 2012 (6) SC 575 : 2012 (6) SCALE 556

posted Jul 21, 2012, 11:06 PM by Law Kerala   [ updated Oct 25, 2012, 10:19 PM ]

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

ALTAMAS KABIR & J. CHELAMESWAR, JJ.

Supreme Court Bar Association & Ors. 

Vs. 

B.D. Kaushik

Dated : July 20, 2012

I.A . NO. 5 OF 2012 

IN 

I.A . NO. 1 OF 2011 

IN 

CIVIL APPEAL NOS.3401 & 3402 OF 2003  

Head Note:-

Supreme Court Bar Association Rules - Rule 18 - The Members of the Implementation Committee are directed to take expeditious steps in finalizing the Voters’ List of members of the SCBA entitled to cast their votes in the election of Office Bearers of the SCBA, and, thereafter, to set the programme for the election of the Office Bearers and conduct the same as expeditiously as possible. Till then, the arrangement with regard to the management of the SCBA, as is existing, shall continue.

J U D G M E N T 

ALTAMA S KABIR , J .

1. I.A.No.5 of 2012 has been filed on behalf of the Supreme Court Bar Association (SCBA) in Civil Appeal Nos.3401 and 3402 of 2003 which were disposed of by this Court on 7th May, 2012, with various directions. In fact, this application arises out of the said directions.

2. The aforesaid appeals had been filed on behalf of the Supreme Court Bar Association and its then Honorary Secretary, Mr. Ashok Arora, and Ms. Sunita B. Rao, Coordinator, Implementation Committee of the Supreme Court Bar Association, against an interim order passed by the Civil Judge on 5th April, 2003, on an application for injunction filed in Civil Suit Nos.100 and 101 of 2003. In the said appeals various questions were raised regarding the administration of the Supreme Court Bar Association. One of the questions raised was with regard to the amendment of Rule 18 of the SCBA Rules governing the eligibility of the members of the SCBA to contest the elections to be elected and to elect the Office Bearers of the Association. After an extensive hearing, the appeals weredisposed of by a detailed judgment with various directions, on the basis of the principle of “One Bar One Vote” projected by the learned Advocates who appeared in the matter.

3. While disposing of the said appeals the Hon’ble Judges noticed that there were many Advocates, admitted as members of the SCBA, who did not practise regularly in the Supreme Court and were members of other Bar Associations and that the majority of them made their presence felt only during elections for the Office Bearers of the SCBA. This Court was, therefore, called upon to devise a mechanism by which those members of the SCBA who practised regularly in this Court could be identified as members who could be entitled to vote to elect the Office Bearers of the SCBA, and those who would not be entitled, while retaining their membership. After considering the matter at length, Their Lordships came to the conclusion that inorder to identify those advocates who practised regularly in the Supreme Court, the criteria adopted by this Court for allotment of Chambers, as explained in Vinay Balchandra Joshi Vs. Registrar General of Supreme Court of India [(1998) 7 SCC 461], should be adopted for the purpose of identifying the members who would be entitled to vote to elect the Office Bearers of the SCBA. Their Lordships, accordingly, directed that the criteria adopted in Vinay Balchandr a Joshi’s case (supra), should be adopted by the SCBA and its Office Bearers to identify those advocates who practised regularly in the Supreme Court. A further direction was given that the Office Bearers of the SCBA or a small Committee to be appointed by the SCBA, consisting of three Senior Advocates, should take steps to identify the regular practitioners in the manner indicated in the order, and, thereafter, to prepare a list of members regularly practising in this Court and another separate list of membersnot regularly practising in this Court and a third list of temporary members of the SCBA. These lists were directed to be posted on the SCBA website and also on the SCBA Notice Board. It was also directed that a letter should be sent by the SCBA to each member, informing him about the status of his membership, on or before February 28, 2012. Any aggrieved member would be entitled to make a representation to the Committee within 15 days from the date of receipt of the letter from the SCBA, and if a request was made to be heard in person, the representation was to be heard by the Committee and a decision thereupon was to be rendered in the time specified therein. The decision of the Committee was to be communicated to the member concerned and the same was to be final, conclusive and binding on the member of the SCBA. Thereafter, a final list of advocates regularly practising in this Court was to be displayed by the SCBA.

4. Several other directions were also given as to what was to be done after the final list of the regular practitioners was made ready and published. The Court also found that the amendment made in Rule 18 of the SCBA Rules was legal and valid and that no right of the Advocates had been infringed by such amendment.

5. In keeping with the suggestions made on behalf of the SCBA and the recommendations of the Court, Mr. K.K. Venugopal, Mr. P.P. Rao, and Mr. Ranjit Kumar, all Senior Advocates, practising in the Supreme Court, were appointed as the members of the Implementation Committee. After their appointment, the members of the Implementation Committee issued a questionnaire on 2nd January, 2012, which was forwarded to all the members of the SCBA, to be filled up and returned to the office of the SCBA for the purposes indicated in the judgment itself. The questionnaire was meant for Senior Advocates,Advocates-on-Record and Non-Advocates-on-Record. The same was prepared in keeping with the procedure followed in Vinay Balchandra Joshi’s case (supra). Thereafter, the Implementation Committee held a meeting on 11th January, 2012 and adopted the following resolutions :

“2. In view of the directions of the Supreme Court of India, in its judgment in SCBA Vs. B.D. Kaushik, to the effect that “the Committee of the SCBA to be appointed is hereby directed to prepare a list of regular members practising in this Court……”, the following categories of members of SCBA, in addition to the list of members already approved by the Implementation Committee, are entitled to vote at, and contest, the election of the office bearers of the SCBA as ‘regular members practising in this Court’: 
(i) All Advocates on Record who have filed cases during the calendar year 2011.  
(ii) All Senior Advocates designated as Senior Advocates by the Supreme Court of India, who are resident in Delhi and attending the Supreme Court of India. 
(iii) All members who subscribed to any of the cause lists of the Supreme Courtof India during the calendar year 2011. 
(iv) All members who have been members of the SCBA for the last 25 years, commencing 01.01.1986, and have been paying subscription to the SCBA regularly, in each one of the 25 years. 
3. The list of such members who are eligible to vote and contest elections will be put up on the SCBA notice board for the information of all members and will also be circulated in the usual manner including circulation with the daily cause list. Copies of this list will also be available at the reception desk in Library I. 
4. The persons whose names figure in this list need not reply to the questionnaire issued earlier.” 

6. At a further meeting of the Implementation Committee held on 15th January, 2012, certain other resolutions were adopted identifying some of the members of the SCBA who were not required to fill up the questionnaire, except to indicate the category under which they claimed to be regular members practising in the Supreme Court.

7. Thereafter, certain incidents took place to which we need not refer in these proceedings. However, certain disputes arose between the members of the Supreme Bar Association regarding the criteria laid down by the Implementation Committee for identification of members who are regularly practising in the Supreme Court. As a consequence, Interlocutory Application No.5 came to be filed on behalf of the Supreme Court Bar Association seeking clarification and directions in regard to the criteria evolved by the Implementation Committee.

8. The said application was heard in the presence of the members of the SCBA and the Implementation Committee and certain suggestions were made which we feel need to be taken into consideration by the Implementation Committee while identifying the members of the SCBA who were regularly practising in the Supreme Court for the purpose of determining their eligibility to vote to elect the OfficeBearers of the SCBA. In fact, certain suggestions were made with regard to criteria evolved by the Implementation Committee.

9. The first criteria laid down by the Implementation Committee that all the members of the SCBA who had 50 appearances and/or 20 filings in a year, should be considered to be regular practitioners in the Supreme Court, was duly accepted. A suggestion was also made to include advocates who have been continuously representing the State Governments or the Union Government before the Supreme Court for at least three years and have a minimum of 50 appearances for such Government, in the category of regular practitioners with right to vote. Another suggestion was made to include Advocates, who were Government Standing Counsel or counsel appearing for the Government in the Supreme Court and all Advocates-on-Record in the said category. It wasalso suggested that non-Advocates-on-Record who were in the panel of Amicus Curiae, approved by the Supreme Court Registry, and members who are working as Mediators in the Supreme Court Mediation Centre, be also included in this category. The said suggestions were found to be sound and were accepted.

10. The next suggestion of the Implementation Committee was with regard to the inclusion of all Senior Advocates of the Supreme Court, who are resident in Delhi and attending the Supreme Court. It was rightly pointed out that in view of the close proximity of the satellite townships, which had grown up around Delhi, such Senior Advocates who resided in Noida, Gurgaon, Faridabad and Ghaziabad, should also be included in this category. The said suggestion is sound and is accepted.

11. Yet another criteria for identification of regular practitioners in the Supreme Court as suggested by the Implementation Committee was that all members of the SCBA who had attended the Supreme Court at least 90 days in the calendar year 2011, as established by the database showing the use of proximity cards maintained by the Registrar of the Supreme Court, could also be included in the list of regular practitioners. It was felt that instead of attendance of 90 days, the same should be reduced to 60 days, which suggestion is duly accepted. As a supplement to the above, it is also accepted that appearances before the Chamber Judge, as also before the Registrar’s Courts, in the years 2009 and 2010, will be counted towards the total number of appearances.

12. One of the suggestions made by the Implementation Committee with regard to the directions contained in the judgment delivered inthe Civil Appeals regarding publication of details of the Voters’ List on the website, showing the different categories of members of the SCBA who were recognized as regular practitioners and those who were not, was also taken up for consideration. It was felt that such publication could adversely affect the learned Advocates who were not shown to be regular practitioners in the Supreme Court. It was generally felt that the publication on the website should not be resorted to and individual members should be informed of their status either by E-mail or through SMS on their mobile phones. The objection has merit and is allowed and such publication need not be effected.

13. It was specifically felt that allotment of Chambers, other than in the Supreme Court, should not be made a criteria for identifying members who were regular practitioners in the Supreme Court and the said decision was also considered and accepted.

14. It was lastly indicated that persons who had contested elections to the Executive Committee of any Court annexed Bar Association, other than the SCBA, during any of the years from 2007 to 2012, could not be allowed to vote to elect the Office Bearers of the SCBA on the “One Bar One Vote” principle, or to attend the General Body meetings of the SCBA. The same would also include a person who had cast his vote in any election to the Executive Committee of any Court annexed Bar Association, other than the SCBA, for the abovementioned years. The said suggestion is also accepted and approved.

15. I.A. No.5 filed in the disposed of Appeals is, therefore, disposed of with a direction to the Members of the Implementation Committee to modify the criteria suggested by it in the light of the above suggestions, which have been accepted in this order, for the purpose of identifying members ofthe SCBA, who are regular practitioners in the Supreme Court, for the purposes indicated in the judgment dated 26th September, 2011.

16. The Members of the Implementation Committee are directed to take expeditious steps in finalizing the Voters’ List of members of the SCBA entitled to cast their votes in the election of Office Bearers of the SCBA, and, thereafter, to set the programme for the election of the Office Bearers and conduct the same as expeditiously as possible. Till then, the arrangement with regard to the management of the SCBA, as is existing, shall continue.


I.A. No. of 2012 - Samaj Parivartan Samudaya Vs. State of Karnataka, 2012 (2) KLT SN 124 : (2012) 7 SCC 407 : JT 2012 (5) SC 291 : 2012 (5) SCALE 525

posted May 11, 2012, 6:07 AM by Law Kerala   [ updated Aug 27, 2012, 2:15 AM ]

 IN THE SUPREME COURT OF INDIA 

CIVIL ORIGINAL JURISDICTION

S.H. Kapadia, CJI., Aftab Alam and Swatanter Kumar, JJ.

May 11, 2012

IA NO . OF 2012 

IN 

WRIT PETITION (CIVIL ) NO . 562 OF 2009  

Head Note:-

CBI Investigation - Recommendations made by the Central Empowered Committee - The CBI shall complete its investigation and submit a Report to the Court of competent jurisdiction with a copy of the Report to be placed on the file of the Court within three months.

O R D E R 

Swatanter Kumar , J .

1. By this order we will deal with and dispose of, the recommendations made by the Central Empowered Committee (for short, ‘CEC’) in its report dated 20th April, 2012. Since we have heard the affected parties, the petitioners and the learned Amicus Curiae, we shall summarize the contentions of the learned counsel for the respective parties. The learned counsel appearing for the affected parties contended: 

a. CEC has submitted its report without providing them an opportunity of being heard. 
b. CEC has exceeded its jurisdiction and enlarged the scope of the enquiry beyond the reference made by the Court. Thus, the Court should not accept any of the recommendations made by the CEC. 
c. In relation to the alleged irregularities and illegalities pointed out in the report of the CEC, even where criminality is involved or criminal offences are suspected, the matters are sub judice before the Court of competent jurisdiction. Thus, this Court should not pass any orders for transferring the investigation of such offences to the Central Bureau of Investigation (for short ‘CBI’) as it would seriously prejudice their interests.

2. In order to deal with these contentions, it is necessary for this Court to briefly refer to the background of these cases, which has resulted in the filing of the unnumbered IA in Writ Petition No. 562/2009 and the peculiar facts and circumstances in which the CEC has made its recommendations. 

3. Concerned with the rampant pilferage and illegal extraction of natural wealth and resources, particularly iron ore, and the environmental degradation and disaster that may result from unchecked intrusion into the forest areas, this Court felt compelled to intervene. Vide its order dated 9th September, 2002 in T.N. Godavarman Thirumalpad v. Union of India & Ors. [W.P.(C) No. 202 of 1995], this Court constituted the CEC to examine and monitor the various activities infringing the laws protecting the environment and also the preventive or punitive steps that may be required to be taken to protect the environment. In addition to this general concern for the environment, the order of this Court dated 9th September, 2002, this Court noted violations of its Orders and directed that the CEC shall monitor implementation of all orders of the Court and shall place before it any unresolved cases of non-compliance, including in respect of the encroachments, removals, implementations of working plans, compensatory afforestation, plantations and other conservation issues. In furtherance to the said order, the Government framed a notification in terms of Section 33 of the Environment Protection Act, 1996. The CEC constituted by this Court was proposed to be converted into a Statutory Committee. The draft notification for the same was also placed before this Court on 9th September, 2002. After approval, the Court directed that a formal notification will be issued within a week and the functions and responsibilities given to the CEC were to be exercised by the said Statutory Committee. In fact, this Notification was issued on 17th September, 2002.

4. It may be noticed here that, it was in furtherance to the order of the Government of Andhra Pradesh vide G.O.M No. 467, Home (SCA) Dept. dated 17th November, 2009, supplemented by Notification No. 228/61/2009-AVD-11 dated 1st December, 2009 issued by the Central Government, that the CBI was directed to register a case against the Obulapuram Mining Company (OMC). Earlier the CBI had registered a case against the OMC on 7th December, 2009 and started the probe. This probably came to be stayed by the High Court vide its order dated 12th December, 2009 which stay was vacated by another order of that Court on 16th December, 2010 paving the way for a full-fledged probe. As a result of vacation of the stay, the CBI continued its investigation.

5. The CBI also filed a charge-sheet in a special court against the OMC, in an illegal mining case falling within the State of Karnataka, charging the accused under Sections 120B, 409, 420, 468 and Section 471 of the Indian Penal Code, 1860 (for short ‘IPC’) read with the provisions of the Prevention of Corruption Act, 1988. The case against the OMC for illegal mining was under investigation in respect of the areas of Obulapuram and Malangapudi villages of Anantpur district in the State of Andhra Pradesh and in the rest of the State of Andhra Pradesh.

6. Further, the State of Andhra Pradesh vide its G.O. Rt. No. 723 dated 25th November, 2009, issued by the Industrial and Commercial Department, suspended the mining operations and also the transportation of mineral material by OMC and even other implicated companies, on the basis of the findings of a High Level Committee, headed by the Principal Chief Conservator of Forests, Hyderabad and the Report of the CEC submitted to this Court in I.A. No. 2/2009 in Writ Petition (Civil) No. 201 of 2009, a copy of which was forwarded to the State Government. This was challenged before the High Court of Andhra Pradesh which, vide judgment dated 26th February, 2010, set aside the notification and allowed the writ petitions, while holding that the G.O. issued by the Government suffered from a jurisdictional error and was in violation of the principles of natural justice. Against the said judgment of the High Court, the Government of Andhra Pradesh filed a Special Leave Petition, SLP(C) No. 7366-7367 of 2010 on different grounds.

7. Samaj Parivartan Samuday, a registered society, filed petition under Article 32 of the Constitution of India stating that the illegal mining in the States of Andhra Pradesh and Karnataka was still going on in full swing. Such illegal mining and transportation of illegally mined minerals were being done in connivance with the officials, politicians and even Ministers of State. There was a complete lack of action on the part of the Ministry of Environment and Forests on the one hand and the States of Andhra Pradesh and Karnataka, on the other. It was averred that there was complete breakdown of the official machinery, thereby allowing such blatant illegalities to take place. This inaction and callousness on the part of the Central and the State Governments and failure on their part to control the illegal mining has allowed large-scale destruction, both of forest and non-forest lands and has adversely affected the livelihood of the people. It thus, has filed WP (C) 562 of 2009 and has prayed for issuance of a writ of mandamus or any other appropriate writ, order or direction to the respective State Governments and to the Union of India, to stop all mining and related activities in the forest areas of these two States. It further sought that the orders passed by this Court in the W.P.(C) No. 202 of 1995 be carried out and the provisions of the Forest Conservation Act, 1980 be implemented. It also prayed for cancelling of the ‘raising contracts’ or sub-lease executed by the Government of Karnataka in favour of the various private individuals and allowing back-door entry into the mining activity in those areas. The most significant prayer in this petition was that after stopping of the mining activity, a systematic survey of both the inter-state border between the States of Andhra Pradesh and Karnataka and mine lease areas along the border be conducted and proper Relief and Rehabilitation Programmes (for short ‘RR Programmes’) be implemented.

8. All the above cases, i.e., W.P.(C) No. 202/1995, 562/2009 and SLP(C) No. 7366-7367/2010, relate to protection of environment, forest areas, stoppage of illegal mining and cancellation of illegal sub-leasing and contracts executed by any State Government in favour of the third parties, to the extent such contracts are invalid and improper. The latter cases, Writ Petition (Civil) No. 562 of 2009 and SLP(C) Nos. 7366-7367 of 2010 concern the Bellary Forest Reserve. Further, there were serious allegations raised in these petitions as to how and the manner in which the leases were executed and mining permits were granted or renewed for carrying out the mining activities stated in the petition.

9. The CEC was required to submit quarterly reports, which it has been submitting and with the passage of time, large irregularities and illegalities coupled with criminality were brought to the notice of this Court. The CEC, in discharge of its functions and responsibilities, was examining the matters, in both the States of Andhra Pradesh and Karnataka. These violations have come to the surface as a result of enquiries conducted by the CEC, regarding illegal mining and mining beyond their leased areas by these companies. It was pointed by the CEC with specific reference to these companies that there was not only illegal extraction of iron ore but the minerals was being also extracted beyond the leased area specified in the lease deeds. Further, there was unchecked export of iron ore from the border areas of the two States, Andhra Pradesh and Karnataka. This related to the quantum, quality and transportation of ore as well.

10. While passing an order of complete ban on mining activity in these areas vide order dated 29th July, 2011 this Court sought submissions on the market requirement for mined ore and vide order dated 5th August, 2011 permitted only M/s. National Minerals Development Corporation Ltd. (for short “NMDC”) to carry out very limited mining activity, so that the economic interest of the country and of the states does not suffer irretrievably. This Court has also directed the CEC to examine all aspects of the mining activity and report on various measures that are required to be taken for RR Programmes. Limited mining activity, thus, was permitted to be carried on in the area with the clear direction that the RR Programmes shall be simultaneously commenced and it is only after such RR Programmes are satisfactorily put into motion and the CEC makes a suggestion in this regard, that the mining activity would be permitted. Vide order dated 23rd September, 2011, this Court accepted various recommendations of the CEC and noticed that prima facie it appears that at the relevant time, there existed linkage between the alleged illegal mining in the Bellary Reserve Forest, falling in the District Anantpur in Andhra Pradesh and the illegalities in respect of grant/renewal of mining leases and deviations from sanctioned mine sketch in the Bellary District in Karnataka. The Court also noted that illegally extracted iron ore belonging to one M/s. Associated Mining Company (for short “AMC”) was apparently routed through the nearest Port in Vishakhapatnam, through district Anantpur in Andhra Pradesh. Thus, the Court felt that the CBI should examine the alleged illegalities. Vide the same order, this Court required the CBI to additionally present a status report of investigations which the CBI had undertaken in respect of OMC in Andhra Pradesh under FIR No. 17A/2009-CBI(Hyderabad). It was also reported that there was massive illegal mining by third parties in the mining lease No. 1111 of one M/s. National Minerals Development Corporation (NMDC). It was suspected that one M/s. Deccan Mining Syndicate (for short “DMS”) was involved in such activities and no action had been taken on the complaints of NMDC. Some other directions were also issued including directions for further inquiry by the CEC and the CEC was required to put up a comprehensive report before this Court. 

11. In the meanwhile, an application was filed by the petitioners of writ petition No.562 of 2011 which remained un-numbered. The prayer in this application was to extend the scope of investigation by the CBI relating to illegal mining and other allied activities which the politicians and major corporate groups including M/s. Jindal Group and M/s. Adanis were indulging in, within the State of Karnataka. They also prayed that both the States should also be directed demarcate the inter-state boundaries, particularly, in the mining area.

12. After examining the issues raised in the IA, the earlier orders of this Court and based on the meetings held by the CEC on 20th March, 2012 and 11th April, 2012, respectively, the CEC identified the issues as follows:

i) The alleged serious illegalities/ irregularities and undue favour in respect of (a) the land purchased by the close relatives of the then Chief Minister, Karnataka for 0.40 crore in the year 2006 and subsequently sold to M/s South West Mining Limited in the year 2010 for Rs.20.00 crores and (b) donation of Rs.20.00 crore received by Prerna Education Society from M/s South West Mining Limited. 
ii) the alleged illegal export of iron ore from Belekeri Port and associated issues; 
iii) alleged export from Krishapatnam and Chennai Port after exports were banned by the State of Karnataka; and iv) transfer of senior police officers on deputation to Lokayukta, Karnataka.” 

13. The CEC filed two comprehensive reports before this Court, one dated 20th April, 2012 and other dated 27th April, 2012, both in Writ Petition (Civil) No. 562 of 2011.

14. Out of the above issues indicated, the CEC dealt with issue No. 1 in the Report dated 20th April, 2012, while issue Nos. 2 to 4 were dealt with in the Report dated 27th April, 2012. On issue No. 1, after summarizing the facts and its observations during its enquiry, the CEC pointed out illegalities, irregularities and instances of misuse of public office committed for the benefit of the close relatives of the then Chief Minister, State of Karnataka. It made the following recommendations :

“15. Keeping in view the above facts and circumstances the CEC is of the considered view that the purchase of the above said land notified for acquisition for public purpose, its de-notification from acquisition, permission granted for conversion from agriculture to non-agricultural (residential) purpose and subsequent sale to M/s South West Mining Limited prima facie involves serious violations of the relevant Acts and procedural lapses and prima facie misuse of office by the then Chief Minister, Karnataka thereby enabling his close relatives to make windfall profits and raises grave issues relating to undue favour, ethics and morality. Considering the above and taking into consideration the massive illegalities and illegal mining which have been found to have taken place in Karnataka and the allegations made against the Jindal Group as being receipient of large quantities of illegally mined material and undue favour being shown to them in respect of the mining lease of M/s MML it is RECOMMENDED that a detailed investigation may be directed to be carried out in the matter by an independent investigating agency such as the Central Bureau of Investigation (CBI) and to take follow up action. This agency may be asked to delve into the matter in depth and in a time bound manner. This agency may also be directed to investigate into other similar cases, if any, of lands de-notified from acquisition by the Bangalore Development Authority and the illegalities / irregularities / procedural lapses, if any, and to take follow up action. 
16. The Prerna Education Society set up by the close relatives of the then Chief Minister, Karnataka has during March, 2010 vide two cheques of Rs.5.0 crores each received a donation of Rs.10 crores from M/s South West Mining Limited, a Jindal Group Company. In this context, it is of interest to note that during the year 2009-2010 the net profit (after tax) of the said Company was only Rs.5,73 crores. Looking into the details of the other donations made by the said Company or by the other Jindal Group Companies to any other Trust / Society not owned, managed or controlled by the Jindal Group. After considering that a number of allegations, with supporting documents, have been made in the Report dated 27th July, 2011 of Karnataka Lokayukta regarding the M/s. JSW Steel Limited having received large quantities of illegal mineral and alleged undue favour shown to it in respect of the extraction / supply of iron ore by / to it from the mining lease of M/s MML, it is RECOMMENDED that this Hon’ble Court may consider directing the investigating agency such as CBI to also look into the linkages, if any, between the above said donation of Rs.10 crores made by M/s South West Mining Limited and the alleged receipt of illegal mineral by M/s JSW Steel Limited and the alleged undue favour shown to it in respect of the mining lease of M/s MML. 
17. The CEC has filed its Report dated 28th March, 2012 wherein the representation filed by the petitioner against Mr. R. Parveen Chandra (ML 2661) has been dealt with (refer para 6(ii), -13 of the CEC Report dated 28th March, 2012). In the said representation it has been alleged that Mr. Parveen Chandra the lessee of ML No.2661 has made two payments, one of Rs.2.50 crores to M/s Bhagat Homes Private Limited and the other of Rs.3.5 crores to M/s Dhavalagir Property Developers Private Limited as a quid pro quo for allotment of the said mining lease. It is RECOMMENDED that this Hon’ble Court may consider directing the investigating agency such as CBI to investigate the payments made by the above said lessee to these two companies whose Directions / shareholders are the close relatives of the then Chief Minister, Karnataka and whether there was any link between such payments and grant of mining lease to Mr. Parveen Chandra.” 

15. When we heard the parties to the lis and even permitted the affected parties as interveners, the hearing had been restricted to the Report of the CEC dated 20th April, 2012. Therefore, presently, we are passing directions only in relation to that Report, while postponing the hearing of the second Report which is dated 27th April, 2012.

16. In the backdrop of the above events of the case, reference to certain relevant provisions of the Criminal Procedure Code, 1973 (Cr.P.C.) can now be appropriately made, before we proceed to deal with the above noticed contentions.

17. The machinery of criminal investigation is set into motion by the registration of a First Information Report (FIR), by the specified police officer of a jurisdictional police station or otherwise. The CBI, in terms of its manual has adopted a procedure of conducting limited pre-investigation inquiry as well. In both the cases, the registration of the FIR is essential. A police investigation may start with the registration of the FIR while in other cases (CBI, etc.), an inquiry may lead to the registration of an FIR and thereafter regular investigation may begin in accordance with the provisions of the CrPC. Section 154 of the CrPC places an obligation upon the authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in-charge of a police station. A police officer is authorised to investigate such cases without order of a Magistrate, though, in terms of Section 156(3) Cr.P.C. the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of the CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature of a pre-emptory reminder or intimation to police, to exercise their plenary power of investigation under that Section. This would result in a police report under Section 173, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 CrPC, or to adopt the above procedure. [Ref. Gopal Das Sindhi & Ors. v. State of Assam & Anr. [AIR 1961 SC 986]; Mohd. Yusuf v. Smt. Afaq Jahan & Anr. [AIR 2006 SC 705]; and Mona Panwar v. High Court of Judicature of Allahabad Through its Registrar & Ors. [(2011) 3 SCC 496].

18. Once the investigation is conducted in accordance with the provisions of the CrPC, a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) CrPC open with nonobstante language that nothing in the provisions of Section 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-Section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. {Ref., Hemant Dhasmana v. Central Bureau of Investigation & Anr. [(2001) 7 SCC 536]}. This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made. It has been held in Shri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandha Maharaj v. State of Andhra Pradesh and Ors. [JT 1999 (4) SC 537] that the casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all potential accused to be afforded with the opportunity of being heard.

19. While the trial Court does not have inherent powers like those of the High Court under Section 482 of the CrPC or the Supreme Court under Article 136 of the Constitution of India, such that it may order for complete reinvestigation or fresh investigation of a case before it, however, it has substantial powers in exercise of discretionary jurisdiction under Sections 311 and 391 of CrPC. In cases where cognizance has been taken and where a substantial portion of investigation/trial have already been completed and where a direction for further examination would have the effect of delaying the trial, if the trial court is of the opinion that the case has been made out for alteration of charge etc., it may exercise such powers without directing further investigation. {Ref. Sasi Thomas v. State & Ors. [(2006) 12 SCC 421]}. Still in another case, taking the aid of the doctrine of implied power, this Court has also stated that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such statutory power effective. Therefore, absence of statutory provision empowering Magistrate to direct registration of an FIR would not be of any consequence and the Magistrate would nevertheless be competent to direct registration of an FIR. {Ref. Sakiri Vasu v. State of Uttar Pradesh & Ors. [(2008) 2 SCC 409]}.

20. Thus, the CrPC leaves clear scope for conducting of further inquiry and filing of a supplementary charge sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-Sections (2) to (6) of Section 173 CrPC to the Court.

21. To put it aptly, further investigation by the investigating agency, after presentation of a challan (charge sheet in terms of Section 173 CrPC) is permissible in any case impliedly but in no event is impermissible. 

22. A person who complains of commission of a cognizable offence has been provided with two options under Indian Criminal jurisprudence. Firstly, he can lodge the police report which would be proceeded upon as afore-noticed and secondly, he could file a complaint under Section 200 CrPC, whereupon the Magistrate shall follow the procedure provided under Sections 200 to 203 or 204 to 210 under Chapter XV and XVI of the CrPC.

23. In the former case, it is upon the police report that the entire investigation is conducted by the investigating agency and the onus to establish commission of the alleged offence beyond reasonable doubt is entirely on the prosecution. In a complaint case, the complainant is burdened with the onus of establishing the offence and he has to lead evidence before the Court to establish the guilt of the accused. The rule of establishing the charges beyond reasonable doubt is applicable to a complaint case as well.

24. The important feature that we must notice for the purpose of the present case is that even on a complaint case, in terms of Section 202, the Magistrate can refer the complaint to investigation by the police and call for the report first, deferring the hearing of the complaint till then. Section 210 CrPC is another significant provision with regard to the powers of the Court where investigation on the same subject matter is pending. It provides that in a complaint case where any enquiry or trial is pending before the Court and in relation to same offence and investigation by the Police is in progress which is the subject matter of the enquiry or trial before the Court, the Magistrate shall stay the proceedings and await the report of the investigating agency. Upon presentation of the report, both the cases on a Police report and case instituted on a complaint shall be tried as if both were instituted on a Police report and if the report relates to none of the accused in the complaint it shall proceed with the enquiry/trial which had been stayed by it. The section proceeds on the basis that a complaint case and case instituted on a police report for the commission of the same offence can proceed simultaneously and the Court would await the Police report before it proceeds with the complaint in such cases. The purpose again is to try these cases together, if they are in relation to the same offence with the intent to provide a fair and effective trial. The powers of the trial court are very wide and the legislative intent of providing a fair trial and presumption of innocence in favour of the accused is the essence of the criminal justice system.

25. The Court is vested with very wide powers in order to equip it adequately to be able to do complete justice. Where the investigating agency has submitted the charge sheet before the court of competent jurisdiction, but it has failed to bring all the culprits to book, the Court is empowered under Section 319 Cr.P.C. to proceed against other persons who are not arrayed as accused in the chargesheet itself. The Court can summon such suspected persons and try them as accused in the case, provided the Court is satisfied of involvement of such persons in commission of the crime from the record and evidence before it.

26. We have referred to these provisions and the scope of the power of the criminal court, in view of the argument extended that there are certain complaints filed by private persons or that the matters are pending before the court and resultantly this Court would be not competent in law to direct the CBI to conduct investigation of those aspects. We may notice that the investigation of a case or filing chargesheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the Court. Sometimes and particularly in the matters of the present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as accused, might be involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and ensure that the guilty are punished. At this stage, we may appropriately refer to the judgment of this Court in the case of Nirmal Singh Kahlon v. State of Punjab & Ors. [(2009) 1 SCC 441] wherein an investigation was being conducted into wrongful appointments to Panchayat and other posts by the Police Department of the State. However, later on, these were converted into a public interest litigation regarding larger corruption charges. The matter was sought to be referred for investigation to a specialised agency like CBI. The plea taken was that the Special Judge was already seized of the case as charge sheet had been filed before that Court, and the question of referring the matter for investigation did not arise. The High Court in directing investigation by the CBI had exceeded its jurisdiction and assumed the jurisdiction of the Special Judge. The plea of prejudice was also raised. While rejecting these arguments, the appeals were dismissed and this Court issued a direction to the CBI to investigate and file the charge sheet before the Court having appropriate jurisdiction over the investigation. The reasoning of the Court can be examined from paragraph 63 to 65 of the said judgment, which reads as under:

“63. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3-4-2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr Rao that the monitoring of an investigation comes to an end after the charge-sheet is filed, as has been held by this Court in Vineet Narain and M.C. Mehta (Taj Corridor Scam) v. Union of India, loses all significance. 
64. Moreover, it was not a case where the High Court had assumed a jurisdiction in regard to the same offence in respect whereof the Special Judge had taken cognizance pursuant to the charge-sheet filed. The charge-sheet was not filed in the FIR which was lodged on the intervention of the High Court. 
65. As the offences were distinct and different, the High Court never assumed the jurisdiction of the Special Judge to direct reinvestigation as was urged or otherwise.” 

27. Now, we shall proceed to examine the merit of the contentions raised before us. We may deal with the submissions (a) and (b), together, as they are intrinsically inter-related.

28. The CEC had submitted the Report dated 20th April, 2012 and it has been stated in the Report that opportunity of being heard had been granted to the affected parties. However, the contention before us is that while the CEC heard other parties, it had not heard various companies like M/s. South West Mining Ltd. and M/s. JSW Steel Ltd. Firstly, the CEC is not vested with any investigative powers under the orders of this Court, or under the relevant notifications, in the manner as understood under the CrPC. The CEC is not conducting a regular inquiry or investigation with the object of filing chargesheet as contemplated under Section 173 CrPC. Their primary function and responsibility is to report to the Court on various matters relating to collusion in illegal and irregular activities that are being carried on by various persons affecting the ecology, environment and reserved forests of the relevant areas. While submitting such reports in accordance with the directions of this Court, the CEC is required to collect such facts. In other words, it has acted like a fact finding inquiry. The CEC is not discharging quasi-judicial or even administrative functions, with a view to determine any rights of the parties. It was not expected of the CEC to give notice to the companies involved in such illegalities or irregularities, as it was not determining any of their rights. It was simpliciter reporting matters to the Court as per the ground realities primarily with regard to environment and illegal mining for appropriate directions. It had made different recommendations with regard to prevention and prosecution of environmentally harmful and illegal activities carried on in collusion with government officers or otherwise. We are of the considered view that no prejudice has been caused to the intervenor/affected parties by non-grant of opportunity of hearing by the CEC. In any case, this Court has heard them and is considering the issues independently.

29. As far as the challenge to the enlargement of jurisdiction by the CEC beyond the reference made by the Court, is concerned, the said contention is again without any substance. We have referred to the various orders of this Court. The ambit and scope of proceedings before this Court, pending in the above writ petition and civil appeal, clearly show that the Court is exercising a very wide jurisdiction in the national interest, to ensure that there is no further degradation of the environment or damage to the forests and so that illegal mining and exports are stopped. The orders are comprehensive enough to not only give leverage to the CEC to examine any ancillary matters, but in fact, place an obligation on the CEC to report to this Court without exception and correctly, all matters that can have a bearing on the issues involved in all these petitions in both the States of Karnataka and Andhra Pradesh. Thus, we reject this contention also.

30. Contention (c) is advanced on the premise that all matters stated by the CEC are sub-judice before one or the other competent Court or investigating agency and, thus, this Court has no jurisdiction to direct investigation by the CBI. In any case, it is argued that such directions would cause them serious prejudice.

31. This argument is misplaced in law and is misconceived on facts. Firstly, all the facts that had been brought on record by the CEC are not directly sub-judice, in their entirety, before a competent forum or investigating agency.

32. In relation to issue 1(a) raised by the CEC which also but partially is the subject matter of PCR No. 2 of 2011 pending before the Additional City Civil and Sessions Judge, Bangalore under the Prevention of Corruption Act. The Court took cognizance and summoned the accused to face the trial, writ against the same is pending in the High Court. It primarily relates to the improper de-notification of the land, which had been under acquisition but possession whereof was not taken. This land was purchased by the family members of the then Chief Minister for a consideration of Rs.40 lacs and was sold after de-notification for a sum of Rs.20 crores to South West Mining Ltd. after de-notification. For this purpose, office of the Chief Minister and other higher Government Officials were used. While the earlier part of above-noted violations is covered under PCR No. 2 of 2011, the transactions of purchase sale and other attendant circumstances are beyond the scope of the said pending case which refers only to the decision of de-notification. It appears that the entire gamut or the complete facts stated by the CEC and supported by documents are not the matter subjudice before the Trial Court. Similarly, issue 1 (b) relates to the donation of Rs.20 crores received by Prerna Education Society from M/s. South West Mining Ltd. The society is stated to be belonging to the members of the family of the Chief Minister Shri Yeddyurappa. The written submissions filed on behalf of M/s. South West Mining Ltd., do not reflect that issue 1(a) and (b) of the CEC report under consideration are directly and in their entirety are the subject matter of any investigations in progress and proceedings pending before any competent forum. These are merely informatory facts, supported by relevant and authentic documents, highlighted by the CEC in its report for consideration of the Court. A suspect has no indefeasible right of being heard prior to initiation of the investigation, particularly by the investigating agency. Even, in fact, the scheme of the Code of Criminal Procedure does not admit of grant of any such opportunity. There is no provision in the CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. The CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialized agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners.

33. In the case of Narmada Bai v. State of Gujarat & Ors. [(2011) 5 SCC 79], this Court was concerned with a case where the State Government had objected to the transfer of investigation to CBI of the case of a murder of a witness to a fake encounter. The CBI had already investigated the case of fake encounter and submitted a charge sheet against high police officials. This Court analyzed the entire law on the subject and cited with approval the judgment of the Court in the case of Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200]. In that case, the Court had declared the law that in appropriate cases, the Court is empowered to hand over investigation to an independent agency like CBI even when the charge-sheet had been submitted. In the case of Narmada Bai, the Court had observed that there was a situation which upon analysis of the allegations it appeared that abduction of Sohrabuddin and Kausarbi thei their subsequent murder as well as the murder of the witnesses are one series of facts and was connected together as to form the same transaction under Section 220 of the Code of Criminal Procedure and it was considered appropriate to transfer the investigation of the subsequent case also to CBI.

34. If we analyse the abovestated principles of law and apply the same to the facts of the present case, then the Court cannot rule out the possibility that all these acts and transactions may be so inter-connected that they would ultimately form one composite transaction making it imperative for the Court to direct complete and comprehensive investigation by a single investigating agency. The need to so direct is, inter alia, for the following considerations:

(a) The report of the CEC has brought new facts, subsequent events and unquestionable documents on record to substantiate its recommendations. 
(b) The subsequent facts, inquiry and resultant suspicion, therefore, are the circumstances for directing further and specialized investigation. 
(c) The scope and ambit of present investigation is much wider than the investigations/proceedings pending before the Court/investigating agencies. 
(d) Various acts and transactions prima facie appear to be part of a same comprehensive transaction. 
(e) The requirement of just, fair and proper investigation would demand investigation by a specialized agency keeping in view the dimensions of the transactions, the extent of money involved and manipulations alleged.

35. To give an example to emphasize that this is a case requiring further investigation and is fit to be transferred to the specialized investigating agency, we may mention that the South West Mining Ltd. was initially found to be a front company of JSW Steels Ltd. Thereafter all transactions were examined and the improper purchase of land and donations made by them came to light. These facts appear to be inherently interlinked. Despite that and intentionally, we are not dealing with the factual matrix of the case or the documents on record, in any detail or even discussing the merits of the case in relation to the controversies raised before us so as to avoid any prejudice to the rights of the affected parties before the courts in various proceedings and investigation including the proposed investigation.

36. Now, we shall proceed on the assumption that the illegalities, irregularities and offences alleged to have been committed by the affected parties are the subject matter, even in their entirety, of previous investigation cases, sub-judice before various Courts including the writ jurisdiction of the High Court. It is a settled position of law that an investigating agency is empowered to conduct further investigation after institution of a charge-sheet before the Court of competent jurisdiction. A magistrate is competent to direct further investigation in terms of Section 173(8) Cr.P.C. in the case instituted on a police report. Similarly, the Magistrate has powers under Section 202 Cr.P.C. to direct police investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that Section. The provisions of Section 210 Cr.P.C. use the expression ‘shall’ requiring the Magistrate to stay the proceedings of inquiry and trial before him in the event in a similar subject matter, an investigation is found to be in progress. All these provisions clearly indicate the legislative scheme under the Cr.P.C. that initiation of an investigation and filing of a chargesheet do not completely debar further or wider investigation by the investigating agency or police, or even by a specialized investigation agency. Significantly, it requires to be noticed that when the court is to ensure fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in an inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time, the Court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. It is the inherent duty of the Court and any lapse in this regard would tantamount to error of jurisdiction.

37. In the case of Rama Chaudhary v. State of Bihar [(2009) 6 SCC 346], this Court was considering the scope of Sections 173(8), 173(2) and 319 of the CrPC in relation to directing further investigation. The accused raised a contention that in that case, report had been filed, charges had been framed and nearly 21 witnesses had been examined and at that stage, in furtherance to investigation taken thereafter, if a supplementary charge-sheet is filed and witnesses are permitted to be summoned, it will cause serious prejudice to the rights of the accused. It was contended that the Court has no jurisdiction to do so. The Trial Court permitted summoning and examination of the summoned witnesses in furtherance to the supplementary report. The order of the Trial Court was upheld by the High Court. While dismissing the special leave petition, a Bench of this Court observed :

14. Sub-section (1) of Section 173 CrPC makes it clear that every investigation shall be completed without unnecessary delay. Sub-section (2) mandates that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government mentioning the name of the parties, nature of information, name of the persons who appear to be acquainted with the circumstances of the case and further particulars such as the name of the offences that have been committed, arrest of the accused and details about his release with or without sureties. 
15. Among the other sub-sections, we are very much concerned about sub-section (8) of Section 173 which reads as under: 
“173. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” 
A mere reading of the above provision makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. 
16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the chargesheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. 
18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report and not a fresh report regarding the “further” evidence obtained during such investigation. 
19. As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of the investigating agency for further investigation should not be tied down on the ground of mere delay. In other words “[t]he mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.” 

38. Reference can also be made to the judgment of this Court in the case of National Human Rights Commission v. State of Gujarat & Ors. [(2009) 6 SCC 342], wherein the Court was dealing with different cases pending in relation to the communal riots in the State of Gujarat and the trial in one of the cases was at the concluding stage. In the meanwhile, in another FIR filed in relation to a similar occurrence, further investigation was being conducted and was bound to have a bearing even on the pending cases. The Court, while permitting inquiry/investigation, including further investigation, completed stayed the proceedings in the Trial Court as well and held as under :

10. We make it clear that SIT shall be free to work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation. Needless to say the sole object of the criminal justice system is to ensure that a person who is guilty of an offence is punished. 
11. Mr K.T.S. Tulsi, learned Senior Counsel had submitted that in some cases the alleged victims themselves say that wrong persons have been included by the police officials as accused and the real culprits are sheltered. He, therefore, suggested that trial should go on, notwithstanding the inquiry/ investigation including further investigation as directed by us. We find that the course would not be appropriate because if the trial continues and fresh evidence/materials surface, it would require almost a de novo trial which would be not desirable.” 

39. We do not find any necessity to multiply the precedents on this issue. It is a settled principle of law that the object of every investigation is to arrive at the truth by conducting a fair, unbiased and proper investigation.

40. Referring to the plea of prejudice taken up by the affected parties before us, we are unable to see any element of prejudice being caused to the affected parties if the CBI is permitted to investigate the entire matter. The plea taken by the interveners before us is that M/s. JSW Steels Ltd. is a bona fide purchaser of iron ore from the open market and they have been affected by the unilateral actions of one M/s. Mysore Minerals Ltd. They state that they have no statutory liability to check origin of iron ore or to maintain Form 27. According to M/s. JSW Steels Ltd., they are already co-operating with the CBI in the investigation directed by the Supreme Court. As far as M/s. South West Mining Ltd. is concerned, it has stated that it is the purchaser of the land for bona fide consideration and genuine purpose. The land has been converted to commercial use and that is why Rs.20 crores were paid as consideration. They further claimed that they had Rs.23.96 crores of pre-tax profit and, therefore, they were in a position to make the donation which they had made. Not only they, but other companies affiliated to Jindal Group have also made similar contributions. It is not for us to examine whether the stand taken by the intervener companies is correct or not. It requires to be investigated and an investigation per se would help them to clear their position, rather than subjecting them to face multifarious litigations, investigations and economic burden. Having heard them, we are unable to find any prejudice to parties if further or wider investigation is directed by this Court. The direction of further investigation is based upon documents and facts brought to light by the CEC as a result of examination conducted in the course of its primary function relating to inquiry into environmental violations and illegal mining activity. If the proceedings are permitted to continue and finally investigations reveal that a case which requires to be tried in accordance with law exists, then the interveners would have to face proceedings all over again. So, it is in their own interest that the specialized agency is permitted to investigate and bring out the true facts before the Court of competent jurisdiction.

41. We must notice that the criminal offences are primarily offences against the State and secondarily against the victim. In this case, if the investigation by specialized agency finds that the suspect persons have committed offences with or without involvement of persons in power, still such violation undoubtedly would have been a great loss to the environmental and natural resources and would hurt both the State and national economy. We cannot expect an ordinary complainant to carry the burden of proving such complex offences before the Court of competent jurisdiction by himself and at his own cost. Doing so would be a travesty of the criminal justice system. 

42. It was ever and shall always remain the statutory the obligation of the State to prove offences against the violators of law. If a private citizen has initiated the proceedings before the competent court, it will not absolve the State of discharging its obligation under the provisions of the CrPC and the obligations of Rule of Law. The Court cannot countenance an approach of this kind where the State can be permitted to escape its liability only on the ground that multifarious complaints or investigations have been initiated by private persons or bodies other than the State. In our considered view, it enhances the primary and legal duty of the State to ensure proper, fair and unbiased investigation.

43. The facts of the present case reveal an unfortunate state of affairs which has prevailed for a considerable time in the mentioned districts of both the States of Andhra Pradesh and Karnataka. The CEC has recommended, and the complainant and petitioners have also highlighted, a complete failure of the State machinery in relation to controlling and protecting the environment, forests and minerals from being illegally mined and exploited. 

44. Wherever and whenever the State fails to perform its duties, the Court shall step in to ensure that Rule of Law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes. This Court expressed its concern about the rampant pilferage and illegal extraction of natural wealth and resources, particularly, iron ore, as also the environmental degradation and disaster that may result from unchecked intrusion into the forest areas. This Court, vide its order dated 29th July, 2011 invoked the precautionary principle, which is the essence of Article 21 of the Constitution of India as per the dictum of this Court in the case of M.C. Mehta v. Union of India [(2009) 6 SCC 142], and had consequently issued a ban on illegal mining. The Court also directed Relief and Rehabilitation Programmes to be carried out in contiguous stages to promote inter-generational equity and the regeneration of the forest reserves. This is the ethos of the approach consistently taken by this Court, but this aspect primarily deals with the future concerns. In respect of the past actions, the only option is to examine in depth the huge monetary transactions which were effected at the cost of national wealth, natural resources, and to punish the offenders for their illegal, irregular activities. The protection of these resources was, and is the constitutional duty of the State and its instrumentalities and thus, the Court should adopt a holistic approach and direct comprehensive and specialized investigation into such events of the past.

45. Compelled by the above circumstances and keeping in mind the clear position of law supra, we thus direct; 

a) The issues specified at point 1(a) and 1(b) of the CEC Report dated 20th April, 2012 are hereby referred for investigation by the Central Bureau of Investigation. 
b) All the proceedings in relation to these items, if pending before any Court, shall remain stayed till further orders of this Court. The CBI shall complete its investigation and submit a Report to the Court of competent jurisdiction with a copy of the Report to be placed on the file of this Court within three months. 
c) The Report submitted by the CEC and the documents annexed thereto shall be treated as ‘informant’s information to the investigating agency’ by the CBI. 
d) The CBI shall undertake investigation in a most fair, proper and unbiased manner uninfluenced by the stature of the persons and the political or corporate clout, involved in the present case. It will be open to the CBI to examine and inspect the records of any connected matter pending before any investigating agency or any court. 
e) The competent authority shall constitute the special investigating team, headed by an officer not below the rank of Additional Director General of Police/Additional Commissioner forthwith. 
f) Any investigation being conducted by any agency other than CBI shall also not progress any further, restricted to the items stated in clause (a) above, except with the leave of the Court. The CBI shall complete its investigation uninfluenced by any order, inquiry or investigation that is pending on the date of passing of this order. 
g) This order is being passed without prejudice to the rights and contentions of any of the parties to the lis, as well as in any other proceedings pending before courts of competent jurisdiction and the investigating agencies. 
h) All pleas raised on merits are kept open. 
i) We direct all the parties, the Government of the States of Andhra Pradesh, Karnataka and all other government departments of that and/or any other State, to fully cooperate and provide required information to CBI.

46. With the above directions, we accept the recommendation of the CEC to the extent as afore-stated.

47. Let the matter stand over to 3rd August, 2012 for consideration of the Report dated 27th April, 2012 filed by the CEC.


I.A. No. 4332 of 2012 - V.S. Achuthanandan Vs. State of Kerala, 2012 (2) KLT 709

posted May 11, 2012, 2:33 AM by Law Kerala   [ updated Jun 3, 2012, 1:19 AM ]

IN THE HIGH COURT OF KERALA AT ERNAKULAM



Manjula Chellur, Ag. C.J. & V. Chitambaresh, JJ.

I.A. No. 4332 of 2012

 Dated this the 2nd day of May, 2012

Head Note:-

Kerala High Court Rules, 1971 - Rule 85 read with 128 - Criminal Procedure Code, 1973 - Section 173 - Status reports and the case diary etc. filed in sealed covers are not part of the records of the writ petition and they are only intended for reference in order to convince the Court that the investigation is under progress. Under the above circumstances, the petitioner is not entitled for copies of the final report and also accompanying documents. Once they enter the public domain as required under Section 173 Cr.P.C, the parties are at liberty to approach the jurisdictional Magistrate concerned, seeking copies of the documents or the report and the jurisdictional Magistrate can decide such application, if any, filed in accordance with the procedure contemplated.

For Petitioner:-

  • Shekar Naphade  (Sr. Advocate)
  • Rajendra Sachaar (Sr. Advocate)
  • D. Anil Kumar

For Respondents:-

  • K.P. Dandapani (Advocate General)
  • P. Chandrasekharan Pillai

O R D E R


Manjula Chellur. Ag.C.J.


1. This interim application is filed by the petitioner in the above case.


2. Originally in the writ petition, the petitioner sought for writ of mandamus directing the State of Kerala to hand over investigation of Crime No. 59 of 2011 of Kozhikode Town Police Station to Central Bureau of Investigation (CBI). By interim order dated 27-09-2011, the High Court in the above matter decided to monitor the progress of the investigation of the case.


3. The Special Investigation Team (hereinafter referred to as "SIT") filed a report after completion of the investigation. The report submitted by the SIT is kept in a sealed cover. According to the petitioner, as it forms part of the records of the High Court, Rule 85 read with 128 of Kerala High Court Rules provides entitlement of the petitioner to inspect the same and obtain copies of the said documents. In the absence of the records in question, not falling within the ambit of Rule 90 of the High Court Rules, the petitioner is entitled for copy of the records i.e., the report which would enable the petitioner to assist the High Court to a larger interest in arriving at a conclusion whether a fair and impartial investigation has been conducted by the SIT or not.


4. The main writ petition is filed as a public interest litigation to find out the truth of the allegations contained in FIR No. 59 of 2011 of the said police station. When once SIT files formal, report under Section 173 Cr.P.C before the competent Magistrate Court, there is no more secrecy attached to the report, therefore, the petition deserves to be allowed is the contention of the petitioner.


5. According to the petitioner, large number of influential people are involved and the charges levelled against them are more serious, therefore, the scrutiny of the report in the light of the accompanying documents is highly essential to prevent miscarriage of justice, therefore, the petitioner seeks copies of the report and also the accompanying documents.


6. Per contra, the first respondent has filed counter affidavit through one Mr.Jaison K Abraham, member of Special SIT in Cr. No. 59 of 2011.


7. During the pendency of the above writ petition, when the above interim application came to be filed, according to the respondent-State, two sealed covers were submitted to the Court on 22-12-2011. In one cover, action taken report is submitted and the other cover contains original case diary pertaining to the above said crime. The case was posted to several dates and on 06-03-2012, the petitioner sought for copy of the report and the accompanying documents. But the High Court directed the petitioner to file an application and accordingly, the present application is filed. According to the first respondent-State, the petition is neither maintainable nor the relief sought are sustainable on account of various reasons and facts which would be narrated hereinafter.


8. The Code of Criminal Procedure prescribes submission of final report on completion of investigation under Section 173 Cr.P.C. Except communicating the action taken by the Investigating Officer to the informant, no other duty is cast on the Investigating Officer. Under Sub-section 5 of Section 173 Cr.P.C, it is within the option of the Investigating Officer to furnish copies of all or any of the documents to the accused. Other than this provision, there is no prescription for supply of either copeis of the documents or copy of the report to a third party. The petitioner being a third party, is not entitled to have copies of the records or the documents is the contention of the State.


9. So far as submission of the case diary and the report before the Court, it was only for the purpose of reference and scrutiny by the Court. As a matter of fact, submission of these documents in sealed covers cannot be treated as 'filing' of those documents before the Court as contemplated under the Rules, therefore, the petitioner being an outsider cannot seek for copies of the records and the accompanying documents. After filing the final report before the Magistrate, then such documents becomes part of records. They are not public documents, therefore, the application deserves to be dismissed is the contention of the first respondent-State.


10. The first respondent further contends petitioner has no locus standi to file the above petition and none of the Rules relied upon by the petitioner, i.e., Rules 85 and 128 of the Kerala High Court Rules are applicable to the facts of the present case and placing reliance is nothing but misconception.


11. Reading of the High Court Rules along with Rule 173 of Cr.P.C would only manifestly clarify the position that the petitioner cannot seek for copies of the report and documents as they are not filed or in the custody of the Court in the normal course, is the contention of the State.


12. Reading of Rule 90 refers to various items and the provisions speaks about the document which specifically forms part of the record and it has no reference as to which does not form the part of the records.


13. In the absence of any of the documents now sought for being part of the records, the interim application itself is unsustainable and they seek for dismissal of the same.


14. Learned Senior Counsel Sri. Shekar Naphade arguing for the petitioner vehemently contended that the present report is either a document under Section 164 Cr.P.C or a report under Section 173 Cr.P.C. According to the learned Senior Counsel, provisions of Rule 90 of the Kerala High Court Rules does not take in its fold any of the documents now sought for by the petitioner, therefore, there is no impediment for issuing copies of the report and the accompanying documents.


15. As the allegations are against 21 important Government officials and when high profile persons are involved, unless the petitioner knows what the report and the accompanying documents contain, he will not be able to assist the Court properly. When larger public interest is involved and when public accountability is the controversy, the application deserves to be allowed. By placing reliance on paragraphs 65, 69, 70, 71 & 72 in the judgment reported in (AIR 1982 SC 149), he prays for allowing the interim application.


16. As against this, the learned Advocate General appearing for the State, took us through the prayer in the writ petition and para 8 of the counter. He also referred to a portion of the interim order dated 27-09-2011 at paragraphs 5, 6, 7, 8 and 9. According to the learned Advocate General, the petitioner being not a complainant, not an accused, not a witness, how he could seek or claim copies of the report of the investigation and the accompanying documents? The only grievance in the writ petition seems to be that investigation is not proceeded properly, therefore, the matter has to be referred to investigation by CBI. When the investigation is done by the investigation team which was constituted by the petitioner himself during his tenure as the Chief Minister, now he cannot suspect the competency of the investigation team. Therefore, he contends that apart from the petitioner having no lucus standi to file the present application, the very Rules does not provide for issuance of copies of the documents as none of the documents are filed as part of the record in the writ petition. With these averments, placing reliance on 1994 (2) KLT 1017, 1992 (4) SCC 305, 1997 (1) KLT 55, 2010 (4) SCC 513, 2005(2) KLT 380, the learned Advocate General seeks for dismissal of the application.


17. In reply, the learned Senior Counsel arguing for the petitioner referred to Article 215 of the Constitution to contend as the Rules are framed by virtue of Article 215 of the Constitution and when the Rules provide for inspection and issuance of copies, the Court has to follow the said Rules and none of the decision relied upon by the learned Advocate General has any relevancy on the controversy in issue as the controversy is whether investigation is fair or not and not for issuance of copies of documents.


18. With these arguments at our command, we have gone through the relevant Rules as well as Section 173 Cr.P.C.


19. It is not in dispute formant No. 9 referred to above, is the formant in which copies of the documents have to be sought for. When the above writ petition came to be filed on 27-09-2011, the Bench expressed at paragraphs 6 & 7 with reference to the SIT as under:

"6. It may not be out of place to mention that this entire episode has generated a great deal of public debate on the functioning of various constitutional organs in the State of Kerala and more than one writ petition was filed seeking various reliefs touching some aspects of the episode or the other (the details of which are may not be necessary for the present). 

7. It is also not out of place to mention that the petitioner herein is none other than the former Chief Minister of the State of Kerala. The Special Investigation Team mentioned above was constituted while the petitioner was heading the Government of the State of Kerala.

20. It is not in dispute that the Officers in the SIT continue to be the same Officers right from the beginning till the end of the investigation. At para 11, the Bench observed as under:

11. In the circumstances, though we do not see any reason at this juncture to opine that the investigation is not progressing, we deem it appropriate that the progress of the case is required to be monitored by this Court. We may also place on record that during the course of hearing today the learned Advocate General made a statement that the investigation in the above mentioned case would be completed in the next 90 days and the final report under Section 173 Cr.P.C would be filed before the appropriate Court.

21. Subsequently, on 22-12-2011, the present Bench at para 3 noticing the progress in investigation proceeded to say as under:

3. As on today, we note in all 129 witnesses were examined as against examination of 84 witnesses as on 27-09-2011. We also note that, in all 104 documents are seized as on today as against 56 documents that came to be seized on 27-09-2011. as per the memo filed by the Government Pleader and the statement of the Special Investigating Officer, only 5% of the investigation is to be completed, as 95% of the investigation is completed. According to him, 15 more witnesses from various parts of the State have to be examined and more documents have to be seized.

22. At para 4, importance given to the investigation in question as submitted by the learned Advocate General is reflected, which reads as under:

4. As per the submission of the learned Advocate General and also the details given in the Action Taken Report, we note that till 24-11-2011, the Special Investigating Officer was holding the charge of the Thamarassery Sub Division and he was also in charge of this Special Investigation, therefore, he was finding it difficult to attend to both the duties. As he is relieved of the duties of Thamarassery Sub Division, he can concentrate on the Special Investigation entrusted to him. This is also evident from the progress made in the investigation as per the list of dates and details of investigation.

23. Subsequently, final report was filed and it is relevant to mention that this Court felt it appropriate that the progress of the case was required to be monitored by the High Court.


24. So far as the investigation being handed over to CBI, it is the subject matter of the writ petition. So far as the present interim application, controversy is whether copy of the report and the accompanying documents could be given to the petitioner or not.


25. In the case of Balakrishna Pillai Vs. State of Kerala reported in 1994(2) KLT 1017, while referring to Sections 238 & 239 Cr.P.C, this Court held that these two provisions are a complete code in the matter of the procedure to be followed. It further held the question of any third party being permitted to take part in the proceedings while the Court considers the material on record in order to ascertain whether a charge should be framed or the accused should be discharged, does not arise.


26. While referring to S.P.Gupta's case reported in AIR 1982 SC 149, the Apex Court observed that the Court must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others.


27. We have gone through the judgments referred to by both the sides. We are not considering the merits of the writ petition in this IA. We are only concerned with the relief sought in the interim application whether copies of final report and accompanying documents could be furnished to the petitioner at this stage.

Section 173 Cr.P.C reads as under:  

Report of Police officer on completion of investigation.-- 

(1) Every investigation under this Chapter shall be completed without unnecessary delay. 

(2) (i) as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- 

(a) the names of the parties; 

(b) the nature of the information; 

(c) The names of the persons who appear to be acquainted with the circumstances of the case; 

(d) whether any offence appears to have been committed and, if so, by whom; 

(e) whether the accused has been arrested; 

(f) whether he has been released on his bond and, if so, whether with or without sureties; 

(g) whether he has been forwarded in custody under section 170. 

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any by whom the information relating to the commission of the offence was first given. 

(3) Whether a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. 

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. 

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- 

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; 

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witness. 

(6) If the police officer is of opinion that any part of any such statement is not relevant to the sub-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. 

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). 

(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub ­section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed 

(9) and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

28. The final report has to be filed by the Investigating Officer after completion of the investigation. Once the final report is filed before the jurisdictional Magistrate who has jurisdiction to take cognizance of the offence, the entire report and the accompanying documents enters public domain. It is for the Magistrate concerned to consider whether to have copies of such report and documents supplied to such person who could be an accused, a witness, complainant etc. Depending upon the locus standi of the applicant, how his presence is relevant for the purpose of proceeding with the case, the concerned Magistrate can decide whether copies of such documents could be given to him or not. As of a right, the accused does have a right to have copy of the entire charge sheet.


29. Now, the question is whether the petitioner is entitled to have the copies of the final report and accompanying documents?


30. Apparently, the investigation is completed.

Rule 85 of Kerala High Court Rules reads as under:  

"85. Application for search:- A person desiring to make a search of the records of the Court for the purpose either of inspection or of obtaining copies of records, shall submit an application for the same as in Form No.8. 

Form No.8 

(Rule 85) 

Form of Application for search of public records 

To, 

The Registrar, High Court of Kerala, 

Ernakulam. 

Name and Address applicant in full

Description of record as far as of possible

Purpose of which inspection or copy is required

Date 

Signature of Applicant


31. This provides filing an application for search of records of the Court either for inspection or for obtaining copies of the records.


32. Rule 128 of the Kerala High Court Rules, which specifically provides for filing an application for certified copies in format No. 9, reads as under:

128. Application for copies:- (1) Any person entitled to obtain a copy of any proceeding or document filed in or in the custody of the Court may present an application therefor as in Form No.9 setting out the name of the applicant, his position in the proceeding, if he is a party thereto and the description of the document of which copy is required. 

(2) Issue of Carbon or Photostat Copies:- Any party to the proceeding may, immediately after the judgment or order is pronounced, apply orally to the Court for a carbon copy or Photostat copy thereof and if the Court so directs, a carbon copy or a Photostat copy duly certified, will be issued to the party on his making an application for an urgent copy under Rule 136 accompanied by the charges required by Rule 138:) 

Provided that in cases where the State Government or the Central Government is a party, a carbon copy/Photostat copy may be issued to the State Government or the Central Government, as the case may be, by the office free of cost on receipt of a written requisition in Form 9A for the same which shall be entered and dealt within a separate register. 

(3) Copies of Judges' minutes or of correspondence and other papers, not strictly judicial, will be granted only under the orders of the Court.

Form No.9

(Rule 128)

Copy of Application Form

To, 

The Registrar, 

High Court of Kerala, 

Ernakulam. 

Sir, 

Please furnish me with certified copies of the documents mentioned herein.

SI.No.

No. of case

Pending or finally disposed of

Date of disposal

Description of document

Number of copies required


Date, 20........' 

*The description of the document applied for should be clearly given. 

Counsel for appellant/respondent 

90. Prohibition regarding certain items: - Nothing in these rules shall entitle any person to inspect:- 

(i) the Judges notes or minutes; 

(ii) correspondence confidential or not strictly judicial; 

(iii) autograph judgments; and 

(iv) registers of the Court.

33. Reading of all the three Rules would indicate that they refer to documents which specifically form part of the records of the Court. In order to become part of the records of the Court, the documents have to be filed or have to be in the custody of the Court in the usual course of business. As a matter of fact, so far as the final report and case diary or accompanying documents now submitted in sealed covers, the same need not be filed before the Court so far as the merit of the case is concerned. Para 11 of the order dated 27-09-2011 specifically refers to the fact that the Court wanted to monitor the progress of the investigation in order to appreciate the stand of the petitioner that the investigation was not progressing properly. In that context, as per the directions of the Court, the status report was filed from time to time. From 23-09-2011 onwards, status reports were submitted.


34. If the status report was part of the court record in the above writ petition, there was no need for the Investigating Officer to file it in a sealed cover. Reading of the entire order sheet dated 27-09-2011 would indicate that the status report from time to time was filed in sealed covers only to substantiate before the Court that the SIT was making progress in the investigation. It was never intended to be part of the records. Rules 85, 90 and 128 of the Kerala High Court Rules, refer only to documents which are part of the records. Therefore, status reports and the case diary etc. filed in sealed covers are not part of the records of the writ petition and they are only intended for reference in order to convince the Court that the investigation is under progress.


35. Under the above circumstances, the petitioner is not entitled for copies of the final report and also accompanying documents. Once they enter the public domain as required under Section 173 Cr.P.C, the parties are at liberty to approach the jurisdictional Magistrate concerned, seeking copies of the documents or the report and the jurisdictional Magistrate can decide such application, if any, filed in accordance with the procedure contemplated.


With these observations, the interlocutory application is dismissed.


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