In the case of Mr. Arvind Kejriwal & Anr. v. State NCT OF Delhi, (CRL.M.C. 1867/2020), Delhi HC has set aside an order of the trial court, in which the court did not give permission to Delhi cm Kejriwal and Minister Manish Sisodia to have access to some extremely crucial documents without following the procedure under CrPC in the chief secretary assault case. The matter was heard by a single judge bench of Justice Suresh Kumar Kait.

An application under 207 of CrPC was filed regarding supply of certain documents including a copy of the statement of the witness (VK Jain). The trail court set the application aside and said that as claimed by the prosecution about the copy of the statement of the witness cannot be provided and it was not recorded under 161 CrPC on the alleged date in the application.

 A revision application was filed before the trial court but even that was disposed “it was a record of oral examination by the IO and was noted in the case diary, it could not constitute a statement under Section 161”.  It could be used by the court however, as an aid during the trial.

Senior Adv. N. Hariharan, who appeared on behalf of the petitioner, submitted that the impugned order stated that VK Jain was examined and the statement is being withheld to help the case of the prosecution.

It was submitted that“…they are trying to conceal/withheld the crucial part of evidence which is against the principle of ‘Criminal Jurisprudence’ and in violation of the basic principle of natural justice, free and fair trial. A plain reading of Section 207 CrPC makes it amply clear that under this provision the accused is entitled to have right to take the complete copy of the chargesheet and other documents in regarding of the case from the prosecution”.

Furthermore, it was also contended that a joint reading of section 173(5), first proviso of 207 and 173(6), leaves no scope of doubt about the fact that it is the duty of the police officer to forward all the statements mentioned under section 173(5) to the magistrate. The discretion of withholding the evidence with the magistrate.

Senior Adv. Sidharth Luthra, who appeared on behalf of the respondent no.2/complainant, submitted that on 21^st February, VK Jain was called for examination but no statement was recorded. Further he contended that it was a typographical error and the fact that was referred by the petitioner was for 22^nd sept.

He further argued that “under Section 173(5) and (6) and Section 207, what is to be supplied to an accused are the specified documents and no more. It is what the Prosecution proposes to rely upon what can be supplied and the accused cannot seek supply of a document which they have produced and which the Prosecution does not choose to rely upon”.

“It was also submitted by Luthra that records of the Case Diary could not be sought due to the bar imposed by Section 172(3). Multiple cases such as State of NCT of Delhi v. Ravi Kant Sharma (2007) and Sunita Devi v. State of Bihar & Anr. (2005) relied upon to buttress this submission. It was further argued that it was not obligatory on part of the police officer to record any statement made to him and he may do so if he feels it necessary.”

Luthra concluded his arguments by citing the 41^st Law Commission Report, where they justified the wide discretion which was granted to the police officer to record only those statements, which may aid the prosecution.

The court observed that VK Jain was called on 21^st February, and was examined by 21.02.2018 and was examined by the IO which was later on recorded in the case diary. It was recorded in the case diary that the witness was examined in depth and a report was prepared thereafter.

Justice Kait then refers to Section 161 of the Code and the case of Ashutosh Verma v. CBI (2014) to observe that even at the stage of scrutiny of documents unde Section 207, the Court shall supply all the documents to the accused, even if the same is not relied upon by the Prosecution.

“Further observed that the accused can ask for the documents that withheld his defence and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused”.

The court was in consonance with Hariharan’s arguments which state that it is the duty of the police officer to forward to all the statements to the magistrate. “It cannot be disputed that the duty of the investigating agency is to do free and fair investigation by bringing to the notice of the Court all the evidences collected during the investigation without pick and choose the one which does not support them.”

The judgement concluded with an observation on the issue of source of document and states that if the evidence is relevant, it is admissible irrespective of how it is obtained. Finding merits in the present plea, the Court set aside the impugned order of the Trial Court.

Court held that “Consequently, the Trial Court is directed to consider the statement dated 21.02.2018 of VK Jain, which is part of ‘Case Diary’ and placed on record by the accused, at the time of passing the order on Charge.”

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In the case of Ajit Kumar v. The State of Bihar, (Criminal Appeal (DB) No. 888 of 2018), the Patna High Court releases the accused who was sentenced to death by the Trial court for the commission of crimes like murder and rape, on the ground that the Trial Court’s approach which had adopted was “casual and perfunctory in nature, unmindful of the consequences of the decision which when implemented becomes irrevocable and irreversible”.

The facts of the case start on a very grievous note. The accused Ajit Kumar and Vishal Kumar enticed and kidnapped the prosecutrix (hereinafter referred to as ‘the deceased’), who was a minor girl, from the guardianship of her parents residing in Village Pipra (Bihar) and took her first to Patna (Bihar) and then to Vadodara (Gujarat) where she was subjected to gang rape and burnt to death. The accused Ajit Kumar stood convicted for committing an offence punishable under Sections 363, 366A, 120B, 302, 376(D) of the Indian Penal Code and Section 6(g) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act, 2012). Thus seeing the nature of an offence under Section 302 I.P.C., the accused was sentenced to be hanged by the neck till his death. The Trial Court stated that no separate sentence about the other crimes stands passed. Thus the accused moved the High Court of Patna in appeal.

The judges in the case held that the principles over which Judicial decision had been developed over the years. These principles are “rarest of the rare cases, Judicial discretion on sentencing must be accompanied by application of judicial mind, and governed by rule of law, the judgment must be supported by special reasons,  Balancing of aggravating and mitigating circumstances, Weightage to every relevant circumstance relating to the crime and the criminal, Residual doubt becomes a mitigating circumstance, more so, for cases based on circumstantial evidence, Judicial approach must be cautious, circumspect and careful. Court must exercise prudence, and each court from Sessions court to the Supreme Court – must peruse and analyze facts of the case at hand and reach independent conclusion, Sessions court, in particular, must rigorously apply the rarest of rare case principle, Principle of retribution,   Doctrine of rehabilitation, and The court must not be an oracle of the public opinion and recognize limits to judicial power.”

The court finally held that “What is the basis of his conclusion of the case being the rarest of rare cases is not discussed. What are the special reasons for grant of capital punishment; whether there were any mitigating circumstances; what was the mental state, motive, or the brutality of the crime were never thought of much less considered by the learned trial judge. The approach adopted is casual and perfunctory in nature, unmindful of the consequences of the decision which when implemented becomes irrevocable and irreversible.”

“We are unable to persuade ourselves to agree with the Trial Judge, either on the sentence of awarding death penalty or applying the principles of sentencing. The sentence for each one of the offences was required to be pronounced which, perhaps Trial Judge forgot to do so.”

“The Death Reference is answered accordingly. For all the aforesaid reasons, we allow the appeal filed by accused Ajit Kumar and set aside the judgment of conviction dated 25th June 2018 and order of sentence dated 30^th June 2018 passed in Manjhagarh P.S. Case No.67 of 2017 (C.I.S. no.177 of 2017) by the learned 1st Additional Sessions Judge, Gopalganj (Bihar).”

“The accused Ajit Kumar is in jail. He be released forthwith unless required in any other case. Registrar (List) shall ensure the communication of the judgment to all concerned, also by an electronic mode. Equally, learned counsel for the State is directed to do so.”

Thus the accused was released.

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In the case of Manikandan versus State of Kerala [CRL.A.No 478 of 2016], the trial court convicted four men for murdering Raveendran and Gopalakrishnan. They were said to be CPI(M) sympathizers and were murdered by the opposition party while returning from a marriage reception party. The high court reiterated that the gravity of crime by itself cannot be made a factor to uphold the conviction while acquitting 4 RSS workers in a political murder case.

The court observed that the opinion of the doctor has to be taken into consideration while relying on the lengthy statement as that of the deceased. The physical as well as mental condition of the patient has to be noted so that it would be of great help while cross examination of the medical officer takes place. In the present case since the condition of the injured and deceased was not recorded, it is quiet inevitable to believe that the deceased was neither in any condition to write any lengthy statement as presented in the court nor was his conditions recorded by the medical practitioner nor did the police got the recorded statement verified by the doctor treating him.

 “So without an expert opinion by a Doctor about the condition of the patient, it is highly unsafe for a court of law to accept such a lengthy statement as that of the deceased person. That is more so because the person who alleged to have recorded the statement itself disowned the handwriting and stated that it has been written by a constable accompanied him and he cannot name the person also.”

Relying on the case of Hari Singh and Anr. v. State of M.P. [2019 (8) SCC 677: 2019 KHC 6947], “wherein while dealing with admissibility of dying declaration it has been held that where the condition of the injured was serious and his blood pressure was not recordable, without getting the opinion of the doctor that patient was in a fit condition for making statement, his statement should not have been recorded. That was also a case in which the investigating officer recorded the statement of the victim under Section 161 Cr.P.C. After the death of the victim it was attempted to be proved as a dying declaration.”

The court quoted some parts of section 32 of the Indian Evidence Act which deals with the statements of the persons who cannot be called as witnesses. “Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be nature of the proceeding in which the cause of his death comes into question.”

“So dying declaration is a statement made by a person as to cause of his death or as to any of the circumstances of the transactions which resulted in his death.”

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In the case of State of Kerala vs. Union of India [ W.P(C). No.6823 OF 2019], the bench comprising Justices Vinod Chandran and CS Dias observed that there is utterly no valid ground in the challenge against privatization which is the declared policy of the Union Government. In furtherance of the policy of the Central Government to bring in Public Private Participation, these writ petitions were filed at various intervals over a period of one year essentially pointing on the leasing out of Thiruvananthapuram International Airport as carried out by Airport Authority of India.

 The challenge by the State’s opposing the leasing out of the Airport was primarily on four aspects: (1) promissory estoppel and legitimate expectation (2) arbitrariness in awarding the tender to the Adani Group who has no prior experience in developing and managing an Airport, (3) the financial requirements in the RFP being tailor made to suit the Adani Group and (4) the AAI Act having not permitted any cross-subsidization, by way of utilization of the income generated from one Airport to augment the facilities of another.

“A wealth of decisions, spanning over a large period, were placed before us. We specifically refer to Silpi Construction Contractors v. Union of India [2019 (11) Scale 592] which referred to a number of the afore-cited decisions in paragraphs 7 to 18, which we need not reiterate.

The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal.”

“Keeping in mind the caution of self-imposed restraint; while examining such matters having commercial overtones, that interference is possible on judicial review only if the exercise is found to be arbitrary, irrational, malafide or vitiated by bias or for overwhelming public interest, we proceed to consider the submissions made.”

In the present case too, the opposition made is against the tender floated by the AAI, a statutory authority to bring in private participation for the operation and management of an airport; in services not involving air traffic service and watch and ward at airports. The lease of the Airport for such purposes is permitted statutorily by Section 12A of the AAI Act, with the previous approval of the Central Government. The Private Public Participation which is a policy of the Union Government, statutorily recognised with respect to the Airports; is not questioned in the writ petitions.

“The question raised is only whether the AAI acting within the confines of Section 12A, is able to satisfy the mandate of public interest or the interest of better management, in leasing out the Airports. The State had bid under the RFP an attempt to participate in a commercial venture. There is no question arising as to the relationship between the Union Government and the State in the federal set up, as envisaged in the Constitution of India.”

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In the case of Navin Chandra Dhoundiyal v. State of Uttarakhand and Ors. (CIVIL APPEAL NO. 3493/2020), the Supreme Court had underlined the aspect while ruling that long-standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from.

The facts, in this case, initiates with the common question which arises for decision is as to the correct interpretation of a condition in the respondent-University’s statutes regarding the date of superannuation of its teachers. All the appellants, in this case, are working as Professors in various disciplines, in the respondent Kumaun University (hereafter “the University”). By the order dated 21.12.2019  they all were aggrieved. It sets out their respective dates of retirement (which were the last dates in the months they attained the age of superannuation, i.e. 65 years). The appellants thus, relied on Statute No. 16.24 of the University, applicable to them. They contended that they were entitled to continue beyond the last date of the month in which each of them attained the age of superannuation, till the “30th of June following” in terms of that provision.

 The appellants were aggrieved by the office order dated 21.12.2019 and approached the Uttarakhand High Court in writ proceedings. They had stated that they were entitled to continue in service, on extension up to the end of June, 2021. They had relied on a previous judgment of the Division Bench of the High Court – Dr. Indu Singh v State of Uttarakhand (2017 SCC Online 1527).  In that judgment, the Division Bench had, on an interpretation of the relevant provisions (which were worded identically to Statute No. 16.24 as in this case) held that those who retire after 30th June are “entitled to continue till the end of the academic year”. The Division Bench placed emphasis and importance on the legislative intent “to cater to the supreme need to not adversely affect the academic activities of the institution and to safeguard the interest of the students.” The impugned judgment rejected the appellants’ writ petition, thus they upheld that Indu Singh could not be considered as a binding authority. It was also held that Statute No. 16.24 applies to the teachers of the university.

The judges, in this case, had held that “ This court is of the opinion that on a plain interpretation of Statute No. 16.24, including the proviso in question, it is clearly apparent that firstly each teacher attains the age of superannuation on completing 65 years {Statute No. 16.24 (1)}. Secondly, no teacher who attains the age of superannuation has a right or entitlement to reemployment; in fact, the opening expression “No teacher” appears to rule out reemployment of superannuated teachers {Statute No. 16.24 (2)}. Thirdly, and importantly the proviso {to Statute 16.24 (2)} carves out an exception to the main provision, inasmuch as it provides that a teacher whose “date of superannuation does not fall on June 30, shall continue in service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.”

“ This court no doubt held that a teacher could not continue as principal; yet, it decisively ruled that “There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years.” In this court’s opinion, such a categorical expression about a pari materia norm was decisive enough for the court to have found itself compelled to follow. Yet, the impugned judgment- with respect, characterized the expression in S.K. Rath11 as obiter. The Division Bench, in this court’s view, erred on this score.”

“The issue appears to have lingered and different benches of the Allahabad High Court, in view of the differences in phraseology of rules and statutes of various institutions, seem to have expressed divergent views in the State of Uttar Pradesh. Ultimately, this led to a reference which was answered by a Full Bench, authored by Justice D.Y. Chandrachud12 by the judgment reported as State Of U.P. v Ramesh Chandra Tiwari ((2015 (6) ADJ 579).”

“ The above analysis would show that the view of the Uttarakhand High Court, as also the Allahabad High Court (now settled by the full bench decision) consistently have been that teachers superannuating are to be treated as re-employed or allowed to continue, in the larger interest of the pupils, has prevailed. If the view that found acceptance with the impugned judgment were to prevail, there would be avoidable disruption in teaching; the likely delay in filling vacancies caused mid-session cannot but be to the detriment of the students. That apart, this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding, appropriate measures could have been taken, putting all the concerned parties to notice, through amendments. In the absence of any such move, the departure from the prevailing understanding through a discordant judgment, as the impugned judgment is, injects uncertainty. Long ago, this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey v Sant Prasad Tewari & Ors (1973 (2) SCR 835)in the following words:

“In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties v. Poole Corpn.(1958 [Ch] 574), there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision.”

“This court is consequently of the opinion that the impugned judgment is in error. The very object and intent of the proviso to Statute No.16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid-session. Therefore, the view in Indu Singh15, dealing with an identical statute, was correctly interpreted; the other decisions which dealt with Statute No.16.24 [Professor Sri Krishna Khandelwal and Binod Kumar Singh (supra)] too were correctly decided.”

“For the foregoing reasons, the impugned judgment and orders of the High Court are set aside. The appellants are entitled, consequently, to continue till the end of the following June on re-employment. If any of them has been superannuated, he or she shall be issued with orders of reinstatement, with full salary for the period they were out of employment, and allowed to continue till the following June, on re-employment basis. The appeals are allowed without any order as to cost.”

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