The Uttarakhand High Court passed a judgement on 1^st of August, 2022 in the case of Kamini Verma vs State of Uttarakhand and others (WP(S/B) No.204 OF 2020) and the case was presided over by THE CHIEF JUSTICE SHRI VIPIN SANGHI AND JUSTICE SHRI RAMESH CHANDRA KHULBE

FACTS OF THE CASE

Facts of the case are that the petitioner was initially appointed on 24.09.1984 as Assistant Teacher, Government Girls Inter College, Kotdwar. Before her retirement, a charge-sheet was issued against her. The petitioner denied all the charges, the petitioner retired as Principal, Girls Inter College, Namjala, Pithoragarh. After her retirement, an inquiry was set up nominating one – Bhupinder Singh Negi as the inquiry office

The petitioner remained present before the Inquiry. She was supplied with the copy of the charge- sheet (a questionnaire and documents)., the petitioner sought information about status of the inquiry against her. In reply to the said application, a note-sheet was provided in which the inquiry report was mentioned. The petitioner, vide her explanation had mentioned that none of the charges were made out against her and her entire retiral dues had wrongly been withheld. Again, a show-cause notice was issued against the petitioner.

 The show-cause notice was again duly replied through registered post. When her retiral benefits were wrongly withheld, she filed a writ- petition WPSB No.399 of 2019, “Kamini Verma Vs. State of Uttarakhand”. The said writ-petition was disposed of on 29.08.2019 with the direction to finalise the payment of retiral benefits as well as to conclude the disciplinary inquiry within two months.

Since, no compliance of order dated 29.08.2019 was being made by the respondent authority, accordingly, the petitioner preferred Contempt Petition No.71 of 2020, “Kamini Verma Vs. R. Meenakshi Sundaram and Others”. In reply, the respondent no.1 issued a letter dated 09.06.2020 to the writ-petitioner wherein it has been mentioned that the inquiry officer has found that the petitioner belongs to OBC but she has been promoted under SC quota while many senior teachers are still working on the post of Principal. Consequently, the promotion order dated 26.07.2013 relating to the petitioner was cancelled. Accordingly, the recovery order of Rs.13,33,688/- has been issued vide letter dated 08.07.2020. Hence, the present writ-petition was preferred.

JUDGEMENT

In the order court cites Shyam Babu Varma and others v. Union of India and others (1994) 2 SCC 521, the Apex Court, while dealing with a similar situation, held out that since the petitioner received higher pay scale not due to fault or his own, it shall not be just and proper to recover the salary already paid to him.

It is well settled principle of jurisprudence that the proceedings qua a delinquent employee must be just, fair and reasonable, and negation thereof offend Articles 14 & 21 of the Constitution of India. It is also well settled law that principle of natural justice is an integral part of Article 14 of the Constitution. No decision prejudicial to a party should be taken without affording an opportunity of being heard along with supplying the material, which is the basis for the decision. The inquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The failure to supply copy of proceedings to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice

Accordingly, the present writ-petition is allowed and the impugned order 09.06.2020 (Annexure-12) as well as the order dated 08.07.2020 (Annexure-13) are hereby quashed and set aside

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The Uttarakhand High Court passed a judgement on 13^th of December, 2022 in the case of Kanchan Verma vs State of Uttarakhand (Criminal Appeal No. 334 of 2012) and the case was presided over by THE HON’BLE SRI SANJAYA KUMAR MISHRA AND THE HON’BLE SRI ALOK KUMAR VERMA

FACTS OF THE CASE

Kanchan Verma, the appellant-accused, lodged a First Information Report that on 04.02.2008 at around 7.30 p.m., he was going to his house from his shop ‘Verma Jewellers’ along with his friend and artisan Proveer (deceased) on a motorcycle. They went to the house of Parvej Ansari (PW1). After talking to him (Parvej Ansari) for ten minutes, he was going to his house with his artisan Proveer. Proveer was sitting behind on the motorcycle. When they reached Ramnagar Ashram near Veerbhadra Road, a red coloured motorcycle, Hero Honda CD 100, came from behind and asked him to stop. He (Kanchan Verma) accelerated his motorcycle. The person sitting behind on that motorcycle fired, which hit Proveer. He (Kanchan Verma) stopped his motorcycle. The person sitting on that motorcycle opened the dikki of his motorcycle and took out a bag from it, which contained gold jewellery and cash. They took his mobile phone. After that, both the miscreants fled towards the barrage on their motorcycle. He (Kanchan Verma) ran to Gali No. 10 and told the people present there about the incident. Proveer was taken to the hospital in Uma Shankar’s (PW3) vehicle, where he was declared brought dead.

During the investigation, Kanchan Verma’s mobile phone was put on surveillance. Then, it was known that his mobile phone was being used by one Netrapal. Netrapal (PW5) informed that the said phone was being used by his son Sanjay. According to Sanjay (PW6), the said mobile phone was given to him by his friend Sudhir, the present appellant, for Rs. 500/-, but later he returned that mobile phone to Sudhir. On 06.03.2008, the appellants-Sudhir, Rupesh Tyagi and Amit Sharma were arrested by the police. At that time, the appellant Sudhir was searched. During the search, a mobile phone of Kanchan Verma and two five hundred rupees notes were recovered from him. He confessed that the said note belonged to Kanchan Verma. The confessional statement of the appellants-Sudhir and Rupesh Tyagi led to the recovery of a tamancha from the appellant-Rupesh Tyagi, in which a hollow cartridge was stuck and a tamancha was recovered from the appellant- Sudhir. These tamanchas were recovered from the bushes at the instance of these appellants. The recovered tamancha from the appellant- Rupesh Tyagi was sent to the Forensic Science Laboratory for ballistics examinations. One bullet was found in the dead body during the post-mortem examination. The said bullet was also sent to the Forensic Science Laboratory. However, the said bullet was not examined. During the investigation, the appellant- Amit Sharma said that Kanchan Verma was involved in this conspiracy. The District Magistrate, Dehradun had given sanction under Section 25 of the Arms Act, 1959. After completion of the investigation, the Investigating Officer filed the charge-sheet. The case was committed to the Court of Session.

JUDGEMENT

The court accept the case of the appellants. Accordingly, all the five Criminal Appeals and the Jail Appeal are allowed. The impugned judgment of the conviction and the sentence dated 11.09.2012, passed by the learned 1st Additional Sessions Judge, Rishikesh, District Dehradun are set aside. The appellant – Kanchan Verma is acquitted of the offence punishable under Section 302 IPC read with Section 34 IPC. The appellant – Rupesh Tyagi is acquitted of the charge under Section 302 IPC and of the charge under Section 25 Arms Act, 1959. The appellant – Sudhir is acquitted of the charge under Section 302 IPC read with Section 34 IPC and of the charge under Section 25 of the Arms Act, 1959. The appellant – Amit Sharma is acquitted of the charge under Section 302 IPC read with Section 120B IPC.

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the Uttarakhand high court passed a judgement on 24^th September 2022 in the case Bharathi v. State of Uttarakhand (Writ Petition (Criminal) No.924 of 2021) the case was presided over by the honorable Mr. Justice Ravindra Maithani

FACTS OF THE CASE

The petitioner, on 03.03.2021, lodged a report under Sections 323, 504, 345 IPC and Section 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) against her husband Pravesh Kumar, which was lodged on 03.03.2021 at 11:55 PM at reporting Police Chowki Kundeshwari, Thana Kashipur. Pursuant to this FIR, on 04.03.2021, Pravesh Kumar was arrested and lodged at Police Station. An entry was made to this effect in GD Report No. 30, at reporting Police Chowki Kundeshwari, Thana Kashipur. The report reveals that Pravesh Kumar was hale and hearty and he had no injuries. Pravesh Kumar was remanded to judicial custody on 05.03.2021 by the court of Additional District Judge/FTC/Special Judge, POCSO, Udham Singh Nagar. The remand sheet does not note any injury on his person. On 05.03.2021 at 04:29 PM, Pravesh Kumar was lodged at Sub-Jail Haldwani. Entry was made in jail register at SL. No. 24. When he entered into Sub- Jail, Haldwani, he was also examined for COVID-19 and the report was “Negative”. On the same day, in the hospital of Sub-Jail, Haldwani, Pravesh Kumar was examined, but no injury was noted in his person. It was noted that he was “chronic alcoholic”. On 06.03.2021, in the hospital of Sub-Jail, Haldwani, in its OPD register at SL No. 164 an entry was made that Pravesh Kumar suddenly fell down on the ground and he was referred to Base Hospital, Haldwani. In the Base Hospital, Haldwani, Pravesh Kumar was taken, where in OPD Register at SL No. 29, it was recorded that he was brought dead. His post mortem was conducted. There were ten injuries on his person.

The petitioner was informed about the death of her husband. She noticed injuries on the person of her husband. The injuries were not explained to her. According to the petitioner, on 13.03.2021, a Rahul Shrivastav telephoned her and informed that on 06.03.2021 at about 02:00 PM Pravesh Kumar (hereinafter referred to as, “the deceased”) was quite upset in the Sub-Jail, Haldwani and was making a lot of noise. Therefore, he was beaten up by danda, patta, kicks and fists by Devendra Prasad Yadav, Head Constable, Kriti Nainwal, Devendra Rawat and Harish, all Guards of Sub-Jail, Haldwani. Due to this beating, the deceased fell down. Rahul Shrivastav had told that he was present in Sub-Jail, Haldwani on that date. Thereafter, the petitioner approached Police Station Haldwani to lodge the report, but it was not lodged. She approached Senior Superintendent of Police (for short, SSP), Nainital and other high ranking official, but FIR was not lodged.

Petitioner thereafter, moved an application to the Secretary, District Legal Services Authority (for short, “DLSA”), Nainital giving details as to how her husband died in judicial custody, who killed him and how the petitioner came to know about it. The Secretary, DLSA forwarded the application of the petitioner to SSP on 22.03.2021 for taking necessary action at the earliest. Instead of lodging an FIR, the SSP, Nainital got an inquiry conducted by Circle Officer Police, Haldwani and thereafter, informed the Secretary, DLSA that since Magisterial inquiry is underway, any further action may be taken only after the perusal of the Magisterial inquiry. This communication was made on 05.04.2021.The petitioner again approached the Magistrate of competent jurisdiction under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short, “the Code”) and an order was passed. It is thereafter, FIR No. 261 of 2021, under Section 302 IPC at Police Station Haldwani has been lodged against four named Guards of Sub-Jail, Haldwani. The petitioner seeks transfer of the investigation to CBI.

JUDGEMENT

This Court makes these observations to infer that the apprehension in the mind of the petitioner is not baseless. The petitioner has reason to believe that he may not get a fair investigation at the hands of police. Is it “ties of brotherhood” that the matter was not promptly lodged? Is it “ties of brotherhood” that instead of lodging FIR, SSP Nainital ordered for inquiry by CO Haldwani? Is it “ties of brotherhood” that CO Haldwani concluded after enquiry that the statement of eye witness Rahul Srivastava does not find corroboration? Is it “ties of brotherhood” that CO Haldwani while recording its conclusion, even did not examine the doctor who conducted post mortem and noted the injury?

Having considered the manner in which police proceeded in the case, this Court finds that it is a case in which definitely investigation should be transferred to CBI. The Court would also like to observe that it is a case where accountability of the Senior Police Officer may also be required to be fixed administratively. The written words in the Judgments of the Courts and the provisions of right to life, as enshrined in the Indian Constitution, will remain dead letter, if action against erring police officers is not taken by the administration. Hence, this Court also proposes to make recommendation with regard to SSP Nainital, Circle Officer Haldwani and the Guards who are posted at Sub- Jail Haldwani so as to ensure fair investigation.

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the Uttarakhand high court passed a judgement on 1^st April 2021 in the case Rajesh sah and others v. state of Uttarakhand (writ petition no. 170 of 2018) the case was presided over by the Honorable Mr. Justice Sharad Kumar Sharma

FACTS OF THE CASE

The petitioners are the owner of 21.061 hectares of land, which was claimed to be situated at village Chakmoti Bagh, Tehsil, Nainital. In the proceedings, which was held under the Forest Act, before the Forest Settlement Officer; as defined under Sub Section (2) of Section 2 of the Act, there has been a specific case of the petitioners that they have been recorded in the revenue records, as owner of the land and in support thereto, the petitioners had placed on record the Khatauni of the land pertaining to 1420 to 1425 fasli and under the strength of which the petitioners contends that since they being the recorded owners of the property in question, they would be entitled for to be paid with the adequate compensation, as was to be determined by the Forest Settlement Officer, under the provisions of The Indian Forest Act, 1927 as provided under Section 11 of the Act.

 A notification being Notification No.6119/14-2-93-4(14) 92 dated 25.06.1993; was issued by the respondent State by invoking the provisions contained under Section 4 of the Indian Forest Act of 1927, intending for the declaration of land as a reserved forest, which included the land of the petitioners, as to be a part of acquired reserve forest. As a consequence of intention of the State to declare the land as to be a reserve forest and which was inclusive of the land, which was recorded with the petitioners, the Forest Settlement Officer by invoking the provisions contained under Section 6 of the Indian Forest Act, 1927 had issued a proclamation, and had invited the objections from the land owners by issuing a notification to the said effect on 10.07.1995. As a consequence of the notification, which was issued under Section 6 of the Act, soliciting an objection from the petitioners, as against the proposal of the State under Section 4, for declaration of reserve forest, in pursuance to the notification, which was issued under Section 4 of the Act, on 25.06.1993, admittedly, the records shows that the petitioners did file their objection, before the Forest Settlement Officer and as a consequence of it, it was instituted which was registered as Case No.37 of 1995-1996, with regard to the aforesaid acquisition proceedings for declaration of reserve forest, of the land of the petitioners, as referred above and for proceeding further for commutation as per Section 16 of the Forest Act, 1927

JUDGEMENT OF THE CASE

The logic for it is that if the Constitution of India is taken into consideration, particularly that as the provisions initially, which existed under Article 19(1)(f), where the right to property was contained and contemplated, under the Constitution and it was later, on omitted by the Constitution’s 44th Amendment Act, 1978, and it, stood protected by the provisions contained under Article 300 A, which was too was introduced and inserted by Chapter IV of the Constitution by its 44th Amendment Act, 1978, which provided that an owner of the property, which is a fact, not disputed in the present case, that it was vested with the petitioners, in an eventuality, if any interference over his estates, are required to be made, it could be made only, as per the authority of law and that is why the deprivation of a land belonging to the petitioners in order to bring the Act within the ambit of the provisions contained Article 300 A, the State has, had to have its recourse under Section 4, to be read with Section 6 of the Forest Act of 1927. Meaning thereby, the declaration of the land belonging to the petitioners, as recorded in the Khatauni, as a reserve forest, was as per the due process of law provided under Article 300-A of the Constitution. Consequently, for the reasons aforesaid writ petition fails and is dismissed.

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