In the case of Kiran Gupta Vs State Election Commission & Ors. [Letters Patent Appeal No.139 of 2020 in Civil Writ Jurisdiction Case No.19109 of 2019] Patna High Court held that the foreign national does not become an Indian citizen on marriage with a citizen under the Act.

The appellant, Kiran Gupta, was born and brought up in Nepal. In 2003, she solemnized her marriage and after that started permanently residing with him in India as his wife. After her marriage, she, (a) got her name entered into the voters list prepared in the year 2008 for elections to the Assembly of Bihar; (b)in her name she has (i) an account with a bank in India, (ii) a Pan Card issued by the Income Tax Department, and (iii) an Aadhaar Card; (c) names of her children born out of the wedlock are registered in India under the Registration of Births and Deaths Act, 1969 and the respective Rules framed thereunder; (d) pursued her higher education in India; (e) purchased an immovable property in India, vide sale deed. The sale stands recorded with an entry of mutation in her name for which also she paid fee/rent to the Government of Bihar; and (g) relinquished her Nepali Citizenship in February 2016. The issue of her nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat. The respondent challenged her election on the ground of disqualification which she entailed under sub-section 1(a) of Section 136 of the Bihar Panchayat Raj Act, 2006. The State Election Commission, set aside her election, which action she challenged by way of a writ petition. The Court held the appellant to have voluntarily relinquished her Citizenship of Nepal in February 2016, and as such not being a citizen of India, entailed disqualification under the Panchayat Act.

Court observed while referring the case of Rajani Kumari Versus State Election Commission &Ors. (2019) 4 PLJR 673 where it was held that, “The State Election Commission was empowered to set aside the appellant’s election under Section 136 (1) of the Panchayat Act. The State Election Commission shall entertain and consider the ‘disqualification’ issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission either suo-moto or by any other person, the Commission shall at the first instance enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute, the Commission shall proceed to consider the same on the basis of unimpeachable materials.”

Court further observed that, “The object of the Citizenship Act is to provide for the acquisition and determination of Indian Citizenship. Section 5 of the Citizenship Act deals with such persons who seek Citizenship by registration. In National Human Rights Commission Versus State of Arunachal Pradesh and another, (1996) 1 SCC 742, the Apex Court clarified that a person can be registered as a Citizen of India only if he satisfies the requirement contained in Section 5. The appellant did not ever file for registration of citizenship. An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act.”

Court held that, “Aadhaar Act, 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder. Hence, the appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship. Also, mutating name in the register is only proof of ownership of property and is silent on the status of Citizenship of person to whom property is transferred.”

Click to read judgement

In the case of Bikramjit Singh Vs State of Punjab [Criminal Appeal No 667/2020] Supreme Court held that the Scheme of the NIA Act is that offences under the enactments contained to the Schedule to the Act are now to be tried exclusively by Special Courts set up under that Act.

Two young boys came to the Satsang on a Pulsar Motor Cycle without number plate. The above young men threw a Hand Grenade on the Sangat, injuring 22 persons seriously, out of which three persons died. Pursuant to this F.I.R, the Punjab State Police apprehended the Appellant. After 90 days in custody, an application for default bail was made to the Sub-Divisional Judicial Magistrate, Ajnala which was dismissed on the ground that the learned Sub-Divisional Judicial Magistrate had, by an order dated in Feb 2019, already extended time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967 (UAPA). However, this Order was challenged by way of a revision petition by the Appellant and his co-accused by which the learned Additional Sessions Judge being the Special Court set up under the National Investigation Agency Act, 2008 held that, “Therefore, in view of the said notification as well as the case laws referred by the Ld Counsel for revision petitioner, only this court being special designated court was competent to pass an order on any application moved u/s 45(D) (2) Unlawful Activities (Prevention) Act 1967. It means, Ilaqa Magistrate was not competent to pass any order on any such application. In case the same has been filed and passed i.e. without its jurisdiction.”

Further a charge sheet was filed before the learned Special Judge after police investigation, in which Sections 302, 307, 452, 427, 341, 34 of the Indian Penal Code read with Section 25 of the Arms Act, 1959, Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and Sections 13, 16, 18, 18-B and 20 of the Unlawful Activities (Prevention) Act, 1967 were invoked for offences that were committed pursuant to investigation of the FIR lodged. High Court, after setting out Section 167 of the Code of Criminal Procedure, 1973 and some of the provisions of the UAPA and NIA Act, then arrived at the following conclusion, “The Judge, Exclusive Court has recorded a well-reasoned finding that mere fact that sanction has not been granted so far, is no ground to grant concession of bail, as it is rightly held that besides the offence committed under the UAP Act, the accused is also facing the trial for committing the offence under Sections 302, 307, 452, 341, 427, 34,IPC read with Section 25/54/59 of Arms Act and Sections 3,4, 5, & 6 of Explosive Act, for which no sanction is required to prosecute the petitioner.

The appellants assailed the High Court judgment on both counts – Firstly, that the exclusive jurisdiction to extend time vested only in the Special Court and not in the Ilaqa Magistrate, despite the fact that it was the State Police Agency that investigated these offences. Secondly, he also argued, relying upon a number of judgments, that the Appellant’s right to default bail was not extinguished by the filing of the charge sheet, as was incorrectly held by the High Court.

Court held that, “Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if ‘the Court’ is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days. ‘The Court’, when read with the extended definition contained in Section 2(1)(d) of the UAPA, now speaks of the Special Court constituted under Section 22 of the NIA Act. What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences. This becomes even clearer on a reading of Section 16 of the NIA Act which makes it clear that the Special Court may take cognizance of an offence without the accused being committed to it for trial upon receipt of a complaint of facts or upon a police report of such facts”.

Court further observed that, “It has already been seen that once the maximum period for investigation of an offence is over, under the first proviso (a) to Section 167(2), the accused shall be released on bail, this being an indefeasible right granted by the Code. The extent of this indefeasible right has been the subject matter of a number of judgments. A conspectus of decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete.”

Click to read judgement

In the case of Parul Prasad v. State of Bihar & Ors., (Civil Writ Jurisdiction Case No.5609 of 2020), the Patna HC had held that the role of Civil society in a democracy cannot be understated to address the miseries brought about by the pandemic, but however a coordinated effort of all functionaries is paramount.

The two issues, in this case, can be narrowed down to :

1. “Whether guidelines of the NITI Aayog to the Chief Secretaries of the State governments are in nature of advisory communication or did it make it mandatory on the State government to engage CSOs/NGOs/voluntary organizations into the realm of relief operations?
2. Whether the civil society organizations have a right to be involved in relief operations during the times of crisis and disaster management, for ensuring the reach of relief to each needy person, especially in light of the Covid-19 response strategies issued by the international organizations, including the WHO and endorsed by the United Nations?”

The facts of the case were on April 22, 2020, Learned advocate Ms. Parul Prasad, by way of the present Public Interest Litigation, brought to the Court’s notice, the issue of the rights of Civil Society Organizations (CSOs) and Non-Government Organizations (NGOs) which were trying to aid and supplement the efforts of the State in providing relief to the needy during the pandemic.  The petitioner had submitted that due to the abrupt size and population of the State of Bihar, even with the State government’s continued efforts, the NGOs and The CSOs were unable to reach each and every person who was in need. Therefore it was initiated in the interest of the rights of the persons in need that a large number of voluntary organizations, CSOs, and NGOs who were genuinely interested in helping the needy and were in a privileged position to do so.

The petitioner submitted that the NGOs and CSOs were working under Corporate Social Responsibility (CSR) or foreign funding, and hence were bound by the mandatory requirement of transparency and accountability on where are how the funds are being utilized. Thus this required the presence of the volunteers to understand where the goods and foods were distributed and money was utilized. However, the district administration of Bihar refused lockdown travel passes to organizations and had requested them to deposit the relief goods at allotted stores, which would then be distributed by the State authorities.

Reference was given to the case of “In the case of Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154, (Para 27), the Hon’ble Apex Court held that guidelines by their very nature did not fall into the category of legislation, direct, subordinate or ancillary and therefore were advisory in nature.”

The court in this case had held that, “In the light of the above, we direct for the State to consider, enforcing, to the extent possible:

(i)  Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance, which, in turn, would  enable citizens, achieve and fulfil the Constitutional goal of social justice.

(ii)  Allow CSOs and NGOs to conduct relief operations, including in the form of distribution of food and other materials, in the State. The civil Society forms the fourth institution in a democracy. They cannot be indefinitely excluded from relief operations in times of crisis. Where concerted efforts by the State are necessary, CSOs and NGOs be included within the folds of the State operations.

(iii)  Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.

(iv)  Strive to form policies which allow CSOs and NGOs to work in direct partnership with the State, especially socioeconomic welfare policies, such as those directed towards child education and nutrition, juvenile justice, women rights, transgender rights etc.

(v)  Formulate SOPs, guidelines and codes of conduct to be adopted by the State as well as CSOs and NGOs in their performance of welfare and relief operations. Accountability of all institutions is essential. This will also ensure meaningful participative governance.

(vi) Leverage the information and knowledge-bases of CSOs and NGOs. These organizations are a source of valuable knowledge and expertise on social issues, that can enhance the quality of decision making and relief operations conducted by the State. Their expertise would help identify the most vulnerable groups and areas that need immediate attention.

(vii) Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts (childcare, environment, education, health, women rights, transgender rights, etc) and involve them in relevant projects.

(viii) Conduct regular consultations at every stage of relief work, with relevant CSOs and NGOs working at the ground level and are versed with the needs of the people. These consultations could be used as a forum for feedback and opinions to ensure the welfare of the people best.

(ix) Create a website/other online platforms for interaction with non-state actors, and as a forum for data and information sharing with the various stakeholders.

(x)  Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

(xi) Further we do suggest, hope and expect, that the State itself makes optimum use of all the aid and assistance being extended by all organizations, and by engaging them, to ensure that relief reaches to the maximum number of persons, including in the farthest corners of the State of Bihar.

We highly appreciate the assistance rendered by the petitioner, Ms. Parul Prasad, a practising advocate of this Court, in highlighting a contemporary issue of vital importance and significance.  Accordingly, the present petition is disposed of. Interlocutory Application, if any, shall stand disposed of.”

Click here to read the judgment

In the case of Parvez Noordin Lokhandwalla Vs State of Maharashtra [Criminal Appeal No. 648 of 2020] Supreme Court held that the conditions which a court imposes for the grant of bail have to balance the public interest in the enforcement of criminal justice with the rights of the accused.

A private complaint was filed in January 2014 by Mehraj Rajabali Merchant in the court of the JMFC Thane alleging that the appellant has fabricated a Power of Attorney by forging the signature of his brother, Shalin Lokhandawalla. The appellant and the co-accused, Arun Fatehpuria, had preferred an application for grant of anticipatory bail before the Sessions Court Thane, which granted interim protection from arrest to both the accused. However, the interim order protecting the appellant was cancelled because the counsel representing the appellant withdrew the application on his behalf.

The appellant is an Indian citizen and holds an Indian passport. He holds a Green Card, enabling him to reside in the US. He has resided in the US since 1985. However, between last five years, the appellant visited India on sixteen occasions. The appellant arrived in India in January 2020. He was arrested on 21 February 2020 at the point of departure in Mumbai in pursuance of a look-out notice which appears to have been issued on the basis of the FIR.

The High Court declined to permit the appellant to travel to the US for a period of eight weeks. The appellant sought the leave of the High Court to do so since as a Green Card holder, it was mandatory for him to return to the US within a stipulated period of his departure from that country, failing which the conditions for revalidation of the Green Card would not be fulfilled. The High Court declined to relax the conditions imposed by it for the grant of interim bail on the ground that an FIR has been registered against the appellant. The appeal raised an interesting issue about the interface between the fundamental right to travel abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail.

The Appellant submitted that he would undertake to come to India on every hearing of the criminal cases before the concerned courts and he has no intention to evade the process of law. The respondent-state submitted that the conduct of the appellant has been improper as on the grant of anticipatory bail by the Sessions Court in 2018, the appellant left for the US, without seeking permission, though as a matter of fact, he returned subsequently to India on several occasions until 2020, when he was arrested. It was urged that the appellant has not complied with the conditions on which he was granted interim bail for eight weeks and he ought to have, but has not, surrendered after the period was over.

Court referred the case of Dataram Singh v State of Uttar Pradesh [(2018) 3 SCC 22] where it was held that, “The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”

Court held that, “Having regard to the genesis of the dispute as well as the issue as to whether the appellant is likely to flee from justice if he were to be permitted to travel to the US, we find, on the basis of the previous record of the appellant, that there is no reason or justification to deny him the permission which has been sought to travel to the US for eight weeks. The appellant is an Indian citizen and holds an Indian passport. While it is true that an FIR has been lodged against the appellant, that, in our view, should not in itself prevent him from travelling to the US, where he is a resident since 1985, particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green Card if the appellant were not permitted to travel. On the return of the appellant after eight weeks and if it becomes necessary for him to travel to the US, the appellant shall apply to the concerned court for permission to travel and any such application shall be considered on its own merits by the competent court. The appellant shall travel only upon the grant of permission and subject to the terms imposed. The passport of the appellant shall be handed over to the appellant to facilitate his travel, subject to the condition that he shall deposit it with the investigating officer immediately on his return.”

Click to read judgement

In the case of Dhruv Jakhar Vs Union of India & Ors. [W.P. (C) 5622/2020] Hon’ble Justice Rajiv Sahai and Justice Asha Menon advised the father of the petitioner to allow his son the freedom to choose his life path and allow him to blossom forth in whatever he so chooses, which is certainly not the Indian Army.

The petitioner joined the Indian Military Academy for his Pre-Commissioning Training to join the Indian Army as a Commissioned Officer but the petitioner was subjected to ragging and as a result had to be admitted to a hospital. The grievance of the petitioner is also with regard to the conduct of the Honour Code Committee proceedings. According to him, it was illegally constituted from 08 GC Members from the same Battalion, whereas, as per the Rules, they were supposed to be from different Battalions to ensure transparency and prevent miscarriage of justice. Secondly, this Honour Code Committee was attended by the Coy Cdr against whom the petitioner had complained. Further, a Major from the Manekshaw Battalion was nominated as the Presiding Officer of the Honour Code Committee and indirectly exercised influence on the Junior Officers. The petitioner further claimed that on account of the fear exerted by the Coy Cdr who used to start shouting at the petitioner whenever he started to speak in front of the Honour Code Committee.

Court observed that, “The Honour Code Committee has been properly constituted and proceedings fairly conducted and decision taken fairly. The petitioner had claimed that the Honour Code Committee had comprised of GCs from the same Battalion. However, the records that were maintained contemporaneously show that the members of the Honour Code Committee were drawn from three other Coys. The Coy Cdr Lt.Col. Yuvraj Malik was not involved in the proceedings. His presence has been noticed only during the questioning/evidence recording.”

Court further ennunciated that, “The explanation offered by the petitioner for failure in the three Physical Tests may appear plausible but for the fact that the records reveal that the fundamental cause of failure was the obesity of the petitioner. The petitioner has not been able to clear the ‘toe-touch’ and other Physical Tests despite opportunities during the mandatory and compensatory attempts and even in the Commandant’s Review attempt. This would also show that the petitioner has been granted fair opportunity to clear his Physical Tests. Despite counselling in this regard, the petitioner seems to have not taken adequate measures to reduce his weight. By no means were his instructors acting with bias or vindictiveness if they expected a cadet to withstand rigorous physical challenges.”

Court held that, “The records reveal that the petitioner was finding it difficult to settle into the regimented and highly disciplined lifestyle at the IMA. The petitioner used to absent himself from training and special and critical events by malingering or reporting sick. It was this absentee and lying about the reasons for such actions that led to several of the punishments as also the Honour Code Committee being constituted against him. Repeatedly he was found disregarding the chain of command and punishments did not seem to bring about the desired result.”

Click to read judgement