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In the case of Saravanan Vs State represented by the Inspector of Police [Arising from S.L.P. (Criminal) Nos.43864387/ 2020] Hon’ble Supreme Court held that the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days.

The appellant was arrested and remanded to the judicial custody for the offences punishable under Section 420 of the IPC. The appellant filed an application before the learned Judicial Magistrate seeking bail under Section 437 Cr.P.C. The wife of the appellant filed an affidavit before the learned Magistrate and assured to pay Seven Lakhs of the alleged amount of Rupees Fifteen lakhs Sixty Seven thousand Three hundred thirty eight only. The learned Magistrate released the appellant on bail on the condition to deposit Rupees Seven Lakh in the court and after release pay the remaining amount.

Feeling aggrieved and dissatisfied with condition of the order passed by the learned Magistrate releasing the appellant on bail, the appellant approached the High Court. The High Court dismissed the said application with liberty to the appellant to approach the Magistrate Court for any modification and observed that if any modification is required, the same may be considered by the Magistrate. Thereafter, the appellant filed an application before the learned Sessions Court to release the appellant on default bail/statutory bail under Section 167(2), Cr.P.C. The appellant was arrested and remanded for more than 101 days and the investigation was not completed and the police had not filed the final report within the period provided under Section 167 Cr.P.C. The said application came to be dismissed by the learned Sessions Court on the ground that earlier when the appellant applied for regular bail and which was allowed on condition to deposit money in the Court and the same had not been complied with, and despite the liberty reserved by the High Court to approach the Magistrate Court for modification of the conditions, instead of doing so, the appellant had filed an application for default bail/statutory bail under Section 167(2), Cr.P.C., therefore, the learned Sessions Court dismissed the said application.

Feeling aggrieved, the appellant approached the High Court and prayed to release the appellant on default bail/statutory bail. It was the case on behalf of the appellant that non-deposit of any amount which was required to be deposited pursuant to the order passed by the learned Magistrate, imposed while releasing the appellant on regular bail under Section 437, Cr.P.C., shall not come in the way of the appellant in getting default bail/statutory bail under Section 167(2), Cr.P.C. High Court had imposed the condition that the appellant shall deposit a sum of Rs.8,00,000/before the learned Magistrate.

It was submitted by the appellant that as observed by this Court in catena of decisions, the scheme of Code of Criminal Procedure delineates that provisions of Section 167 Cr.P.C. give due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days, as may be applicable, an accused cannot be detained by the Police. It was submitted that the conditions imposed by the High Court while releasing the appellant on default bail/statutory bail are against the scheme of Section 167, Cr. P.C.

Court observed that, “We are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs.8,00,000/while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs.7,00,000/.”

Court held that, “Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no charge-sheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed.”

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In the case of Mahasemam Trust v. Union of India & Ors.,(W.P.(MD)No.8037 of 2020 and W.M.P.(MD)Nos.7469 & 9960 of 2020), the Madras High Court had held that the  credit rating agencies cannot be considered as discharging public function or public duty. The judge in this case was Hon’ble Justice G.R.Swaminathan.

The facts of the case are that the writ petitioner is a registered public trust. It basically focuses on activities like  micro-financing women Self Help Groups. It is a Non-Banking Finance Company (NBFC).   The petitioner is a client of the third respondent which is a credit rating agency.  The rating agency has downgraded the petitioner’s bank loans’ rating to ‘IND  BB+’ from ‘IND BBB-‘.  Various term loans are availed by the petitioners from various banks and had fixed ambitious targets for the  coming year. The petitioner’s track record of repayment is claimed to be very good. Following Covid-19 pandemic outbreak, the  Reserve Bank of India has announced moratorium for the period  upto 31st May, 2020 vide Circular dated 27.03.2020. Following the, the petitioner has also granted the benefit of moratorium  to all the joint liability Self Help Groups, in order to enable them  to tide over the economic fallout arising out of the pandemic  disruption. According to the petitioner, the third respondent has downgraded the petitioner’s rating disregarding the said Circular.  Since this will have direct impact or bearing on the capacity of the petitioner to raise loans from the banking institutions, this writ petition came  to be filed.  

The court had held that, “The learned Senior Counsel first took me through the  statutory scheme set out in the Securities and Exchange Board of  India(Credit Rating Agencies) Regulations, 1999. As per Clause 2(f) of the Regulations, the petitioner qualifies as a client since  their securities are rated by the third respondent/Credit Rating  Agency.  His core argument is that the Credit Rating Agencies  discharge public functions and therefore they are clearly  amenable to Writ jurisdiction. Though the dispute between the  parties may appear to be contractual in nature, in substance, it  throws up questions of public law. No ouster clause in the rating  agreement can resist the jurisdictional reach of this Court under  Article 226 of the Constitution of India.  The petitioner is based in  Madurai.   Substantial part of the cause of action arose within the  territorial jurisdiction of this Court.  This Court does have the  territorial jurisdiction to deal with the issue. The learned Senior Counsel also seriously faulted the stand taken by the learned  Standing counsel for the Reserve Bank of India as well as the  Securities and Exchange Board of India before this Court.  He took  me through the contents of the Circular dated 27.03.2020 issued  by the Reserve Bank of India and that of the Circular dated  30.03.2020 issued by the Securities and Exchange Board of India.”

“According to the learned Senior Counsel, even a bare textual reading of these two circulars can lead to only one conclusion,  namely, that the events that have taken place during the moratorium period cannot be factored into the rating process. The learned Senior Counsel placed reliance on quite a few case laws.”

“Rating is an exercise that is carried out by financial  analysts and professionals.  Writ Court should not assume  jurisdiction in matters which are better handled by experts.  It is  not as if the petitioner is without remedy.  There is provision for  in-house appeal.  It is certainly not akin to appealing from caesar  to caesar’s wife.   In any event, in view of clause 29(2)(c), the  petitioner can definitely complain before SEBI against the  impugned action of the third respondent.”

“Rating exercise is all about capturing the “as is  condition” of the signified. Rating is expressed through signs and symbols to the world at large.  Ironically the effect is far from symbolic.  It is real.  Semiotics is the academic discipline devoted to the study of symbols and signs and their meaning.   Ferdinand d Saussure wrote that one characteristic of the symbol is that it is  never wholly arbitrary.   Symbol should correctly signify.   There should be nothing misleading about it.  A symbol in order to carry abiding credibility and lasting value should satisfy the test of truth function.  It is like a Thermometer. The instrument should read the body temperature correctly.  If I am running a temperature of 101 degree Fahrenheit, the thermometer should indicate it exactly and not as 100.   Credit Rating indicates the fiscal health of the person or the institution concerned. It is one thing to say that notwithstanding the actual position, ameliorative relief must be provided. It is one thing to say that loans should be provided notwithstanding the downgrading. But it would be a completely different matter to say that rating should not reflect the actual state of affairs.  Any remedial treatment must be preceded by correct diagnosis. Proper diagnosis can be made only if the symptoms are read correctly.  If the patient is going to insist that the symptoms should be disregarded, then there can be no proper diagnosis, not to speak of the resulting treatment.”

“Since I have held that a) the third respondent is a  private body and not a “State” within the meaning of Article 12 of  the Constitution  b) by rating its clients, the third respondent is  not discharging any public function  c) the subject matter involves analysis by financial experts d) and the petitioner is having  effective alternative remedies,  I dismiss this writ petition as not  maintainable.    I make it clear that I have not gone into the merits of the matter.  The petitioner is at liberty to avail the in-house remedy available to them or move Securities and Exchange Board of India(SEBI) directly by filing a complaint against the third  respondent.  Whatever remedy that the petitioner may avail, the same shall be attended to with utmost expedition. All the other contentions and remedies of the petitioner are left open. No costs. Consequently, connected miscellaneous petitions are closed.”

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In the case of Babul Supriyo Vs State of West Bengal & Anr. [CRR 903 of 2017 with I.A No: CRAN 2 of 2017] Calcutta High Court held that it is expected from a representative of the people that he must be courteous in his behaviour, dignified in his manners and cautious on his words spoken by him.

In the wake of a political turmoil after arrest of a leader of opposition party in Lok Sabha, a national debate was held and telecast by a national channel, NDTV 24 X 7. In the said national debate the petitioner, an elected MP in course of such debate, when the opposite party was opposing the petitioner’s contention, he made a comment, “Mohua, are you on Mohua?”

According to the opposite party the said comment was derogatory alluding of the intoxicating liquor called Mohua which is drunk in many tribal areas in India. She also alleged that the petitioner made such comment at the fag-end of the programme. The opposite party could not raise any protest against the said remark. However, the anchor of the programme immediately reprimanded the petitioner and asked him not to make any personal remark in course of debate.

According to the opposite party such remark made by the petitioner against her caused great offence and distress and was clearly a violation of Section 509 of the Indian Penal Code. The said comment was patently untrue, false and made to maliciously defame her. The opposite party accordingly lodged an FIR against the petitioner and petitioner was arrested. The petitioner had filed an application under Section 482 of the Code of Criminal Procedure praying for quashing of the charge-sheet.

The petitioner made his submission in support of quashing of the charge-sheet on the following grounds-

1. The statement made in the FIR by opposite party No.2 does not disclose an offence under Section 509 of the Indian Penal Code.
2. The statement made by the petitioner in course of a debate in the wake of a political turmoil as a result of arrest of the leader of opposition party in Parliament was an ‘accidental slip’ of words. The petitioner had no mens-rea.
3. Even assuming that the action of the petitioner was deliberate, the words ‘Mohua, are you on Mohua?’ did not amount to insult modesty of a women.
4. Inviting this Court to read out the entire transcription of the programme, it was contended that the petitioner wanted to mean if the opposite party was in her senses.
5. It was urged on behalf of the petitioner that in order to establish the offence, it is necessary to show that the modesty of a particular woman has been insulted by a spoken word, gesture or physical act. The word modesty has not been defined anywhere under the statute.

The opposite party-respondent submitted that-

1. Code of Criminal Procedure (Code) clearly makes detailed provision for discharging the accused by the Magistrate on consideration of police report and the documents under Section 173 of the Code by the learned Magistrate. When there is a clear provision in the Code, the petitioner cannot take recourse of Section 482 of the Code. Thus, the instant revision, is misconceived and liable to be dismissed.
2. It was pointed out, that after the comment was made by the petitioner to the opposite party, his twitter account was full of obscene, sexist remark against the petitioner.
3. When a lady of political repute who represented majority mass of people of her constituency, was castigated publicly saying that she was under influence of liquor, such utterance, especially to a lady, is a sexist comment which insulted the modesty.
4. Whenever there is assault on femininity or like quality accompanying it, it is insult on modesty within the meaning of Section 509 or ‘outraging modesty’ within the meaning of Section 354 of the Indian Penal Code.

The Hon’ble Supreme Court observed that, “On careful reading of the judicial pronouncement by the Hon’ble Supreme Court in various cases, it is found that the test for ascertaining if modesty has been outraging or not lies on determination of the question as to whether the act by the accused is capable of shocking the sense of decency of the woman. The sense of decency of the woman, if considered to explain the term ‘modesty’ within the meaning of Section 354 is her sex. Similarly, where a woman is made to feel ashamed of her sexual dignity, i.e, lowering the sexual honour of a woman in her own eyes, she feels insulted within the meaning of Section 509 of the Indian Penal Code.”

Court held that, “The petitioner, it is already stated, at the relevant point of time was a Member of Parliament. He took solemn oath to bear faith and allegiance to the constitution. By making such defamatory statement to a woman, the petitioner prima facie, not only humiliated dignity and honour of a woman, but also violated his constitutional oath. If doubt is raised in the mind of people from the utterances made by the petitioner that the at the relevant point of time she was drunken and intoxicated, this would of course an act of imputation intending to harm the reputation of the opposite party and such deliberate utterance made by the petitioner was defamatory statement within the meaning of Section 499 of the Indian Penal Code.”

Court further explained that, “In the instant case, the complainant has not made any complaint before the jurisdictional magistrate. Moreover, even where the FIR contained the allegation under Section 500 of the Code of Criminal Procedure, police did not take permission of investigation of the allegation which discloses a non-cognizable case under Section 500 of the Indian Penal Code of the jurisdictional magistrate. For the reason aforesaid there is no other alternative but to hold that the charge-sheet does not disclose commission of any offence under Section 509 of the Indian Penal Code against the accused. Secondly, the allegations in the FIR constitute only a non-cognizable offence under Section 500 of the Code of Criminal Procedure and no investigation is permitted by police officer, unless a Magistrate has issued an order for the same. However, the opposite party is at liberty to take any action, according to law, against the petitioner before the appropriate forum.”

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In the case of Hospitality Association of Mudumalai Vs In Defence of Environment And Animals and Ors. [Civil Appeal Nos.3438-3439 OF 2020] Supreme Court held that it is undeniable that the State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17A ‘Forest’ and 17B ‘Protection of wild animals and birds’ in the concurrent list and the power of the State Government under the Wildlife Act to notify Sanctuaries and other protected areas.

The appellant is the Hospitality Association of Mudumalai, registered under the Tamil Nadu Societies Registration Act, 1975, situated in the Nilgiris District of Tamil Nadu. The members of this association have established resorts/guest houses in the Nilgiris forest area. The other appellants are either the owners of the resorts/guest houses or the owners of the lands in and around the Nilgiris forest area. Some of them have built dwelling houses on their lands, some of them have encroached upon government lands and put up constructions thereon and some of them are cultivating the said lands.

Tamil Nadu Government had notified an ‘Elephant Corridor’ in the Sigur Plateau of Nilgiris District and has further directed resort owners and other private land owners to vacate and hand over the vacant possession of the lands falling within the notified elephant corridor to the District Collector, Nilgiris within three months from the date of the judgment of High Court which upheld the validity of the notification. The main activities under this project include the following:

1. Ecological restoration of existing natural habitats and migratory routes of elephants;
2. Development of scientific management planning for conservation of elephant habitats and viable elephant populations in India;
3. Promotion of measures for mitigation of human-elephant conflict in crucial habitats;
4. Moderating impact of human and domestic livestock activities in crucial elephant habitats;
5. Strengthening of measures for protection of wild elephants from poachers and unnatural causes of death;
6. Research on elephant management related issues;
7. Public conservation education and awareness programmes about elephants;
8. Eco-development of elephant habitats; and
9. Provision of improved veterinary care for elephants.

During this period, an organization called ‘In Defence of Environment and Animals’, filed a Writ of Mandamus directing the official respondents therein to keep the elephant corridors free from encroachment and to prevent any other disturbances to the free movement of elephants and other animals. It was the specific case of the petitioner therein that the elephant corridor was being disturbed by some encroachers and builders. Due to mushrooming of resorts, elephant corridors were either closed or becoming narrow. It was further contended that the Forest Department had not taken any stringent action to evict the encroachers from the elephant corridor. High Court passed an interim direction to the District Collector, Nilgiris to file a status report showing the steps taken to remove the encroachers from the lands falling under the elephant corridor. Certain other writ petitions were filed by the Schedule Tribes and other Traditional Forest Dwellers contending that they were not encroachers and that they had a right to occupy the land in question under the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

The appellants argued that the appellants’ lands do not fall within an elephant corridor and that the area notified under the impugned G.O. does not fall within any scientifically recognized elephant corridor and seeks to cover areas which are not traversed by elephants. It is further contended that the identification of elephant corridors is a scientific process and that the impugned G.O., which was issued in pursuance of the recommendations of the Expert Committee appointed by the High Court, was erroneous and untenable in law. The resort owners claim that they run small resorts which are compatible with the environment and are essentially for tourists who want to be close to nature and wildlife. It is also asserted that these resorts help tourists acquire sensitivity towards animals and the environment, while preventing any exploitation or damage by their presence.

Supreme Court observed that, “Elephant corridors allow elephants to continue their nomadic mode of survival, despite shrinking forest cover, by facilitating travel between distinct forest habitats. Corridors are narrow and linear patches of forest which establish and facilitate connectivity across habitats. In the context of today’s world, where habitat fragmentation has become increasingly common, these corridors play a crucial role in sustaining wildlife by reducing the impact of habitat isolations. In their absence, elephants would be unable to move freely, which would in turn affect many other animal species and the ecosystem balance of several wild habitats would be unalterably upset. It would also eventually lead to the local extinction of elephants, a species which is widely revered in our country and across the world. To secure wild elephants’ future, it is essential that we ensure their uninterrupted movement between different forest habitats. For this, elephant corridors must be protected.”

Court held that, “the long-term survival of the species depends on maintaining viable habitats and connecting corridors which maintain variance in the species’ gene pool and avoid other risks associated with habitat fragmentation and isolation of species.”

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In the case of Raghunath (D) By Lrs. v. Radha Mohan (D) Thr. Lrs. &Ors, (CIVIL APPEAL NO. 1442 OF 2016), the Supreme Court had held that the right of pre-emption is a very weak right and it would not be appropriate or permissible to adopt legal reasoning that would make such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right of pre-emption over the subject immovable property. The judges, in this case, were Justice Sanjay Kishan Kaul, Aniruddha Bose & Krishna Murari.

The facts of the case primarily focus on the question of whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-Emption Act, 1966, or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963. This question arises in such a  proceeding in a situation where the original plaintiff sought to enforce such right after three sale transactions which had taken place in the past involving the subject immovable property in the years 1945, 1946, and 1966. On 5^th November that year, the last transaction was effected., after the 1966 Act had become operational.  The factum of the plaintiff’s entitlement otherwise claims the right of pre-emption in terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In the suit out of which this appeal arises, the plaintiff’s suit for pre-emption over a transaction effected on 21st January 1974 was resisted on the ground of being barred by limitation.

Thus in this case first and foremost it was felt necessary by the court to decide the nature of the pre-emptive rights. On this behalf, the court had discussed the right of pre-emption in a recent judgment in Barasat Eye Hospital & Ors. v. Kaustabh Mondal,(2019) SCC Online SC 1351.

The court held that the “We have given our thoughtful consideration to the aforesaid issue and in order to determine the same, we had, at the inception itself, set out the judgment in Barasat Eye Hospital case (supra).  We have, thus, referred to the earlier judicial view in para 10 of the judgment extracted aforesaid. The historical perspective of the right of pre-emption shows that it owes its originination to the advent of the Mohammedan rule, based on customs, which came to be accepted in various courts largely located in the north of India.  The pre-emptor has been held by the judicial pronouncements to have two rights.  Firstly, the inherent or primary right, which is the right to the offer of a thing about to be sold and the secondary or remedial right to follow the thing sold.  It is a secondary right, which is simply a right of substitution in place of the original vendee.  The pre-emptor is bound to show that he not only has a right as good as that of the vendee, but it is superior to that of the vendee; And that too at the time when the pre-emptor exercises his right.  In our view, it is relevant to note this observation and we once again emphasise that the right is a “very weak right” and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right.”

“In our view, it would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a plaintiff every time there is a subsequent transaction or sale once the plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction.”

“We suppose that the aforesaid answers the dilemma, i.e. whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time. We opine that it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property. We also wonder what really remains of this right of pre-emption after so many years in the facts of this case when the purchaser has been enjoying it for more than four decades!”

“The result is the impugned order is set aside and the order of the trial court dated 01.02.1988 and the first appellate court dated 30.03.1989 are upheld. As the original plaintiff has not challenged the sale effected by him on 5th November, 1966, the suit of respondent No. 1 (original plaintiff, now represented by his legal representatives) is thus barred by limitation. This puts an end to the legal battle which began 45 years ago!”

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