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Power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament was opined by the Supreme Court while reversing the judgment of Bombay High Court in the case of State of Maharashtra vs. Keshao Vishwanath Sonone [Civil Appeal no. 4096 of 2020] by the bench comprising of Hon’ble Justice Ashok Bhushan, Justice R. Subhash Reddy and Justice MR Shah.

In the above stated case, Bombay HC had given the judgment that “Gond Gowari” tribe was completely extinct before 1911 and no trace of it was found either in the Maratha Country of C.P and Berar or in the State of Madhya Pradesh prior to 1956 and there did not exist any tribe as “Gond Gowari” as 28th item in entry no.18 of the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra and it was “Gowari” community alone shown as “Gond Gowari”. SC observed that the HC had referred on the constitutional bench judgment of B.Basavalingappa vs. D. Munichinnappa and Ors, [AIR 1965 SC 1269]. Appeal was then being filed in the Supreme Court in against of the judgment passed by HC by State of Maharashtra.

There were few issues raised in the argument regarding the decision of the High Court such as:

• Whether the ratio of the judgment in Basavalingappa vs. D. Munichinnappa, permits the High Court to take evidence to find out whether ‘Gowari’ are ‘Gond Gowari’?
• Whether High court had powers to give the judgment regarding tribe conflict?

Supreme Court analyzed the issues and gave the judgment that “Gond Gowari tribe had been extinct before 1911 is not supported by the materials which were on record before the High Court” and “The caste ‘Gowari’ is not the same as ‘Gond Gowari’. The High Court could not have granted declaration of caste ‘Gowari’ as ‘Gond Gowari’”.

While giving the final judgment, Supreme Court stated that the power to include or exclude or amend and alter the presidential order has not been given to the courts and is only been vested to the Parliament and further included that “Courts should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order”.

Therefore, the Supreme Court held that a High Court cannot look into the evidences to find out and decide that a particular tribe is part of Scheduled Tribe which is included in the Constitution (Scheduled Tribes) Order, 1950.

Hence, the caste ‘Gowari’ and ‘Gond Gowari’ are two distinct and separate castes, and set aside the Bombay High Court judgment that had held that the “Gowari” community cannot be denied benefits of a Scheduled Tribe status.

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A five-year delay in filing the FIR and discrepancies noted in witness testimonies gave the benefit of doubt to a man charged with rape. This decision was taken by the Sikkim High Court in the case of Makraj Limboo vs. State of Sikkim [Cr.A.No. 17 of 2019] led by the single bench of Hon’ble Justice Bhaskar Raj Pradhan.

In the above cited case, Victim had lodged a FIR in 2018 alleging that she was being raped twice by the appellant in 2013, in result of which she got pregnant and had to abort her child. She further alleged that appellant had made false promises of marrying her post- abortion but brutally raped her again after the miscarriage/abortion. As a result, Fast-track court of Sikkim had convicted the appellant and sentenced him for Rigorous imprisonment of 7 years and fine U/s 376(1) of Indian Penal Code. But senior counsel of the appellant argued that victim filed the complaint because appellant didn’t marry her and not because she was raped. Delay of 5 years in filing the FIR couldn’t be explained properly by the victim. The Court was also apprised that the victim was diagnosed with acute and transient psychotic disorder, schizophrenia like with associated stress, following the termination of the pregnancy.

When the verdict of the trial court was being challenged, High Court stated that there are chances that the evidence of the rape must have lost in the span of 5 years. High court stated that “Rape is a violent offence. Penetration is a sine qua non. Due to the inordinate delay, medical evidence like injuries would have healed and material evidence would be lost”.

While giving the judgment, HC cited the reasons that although the evidence lead to grave suspicion that appellant must have raped the victim but it wouldn’t be judicially prudent to convict the appellant on suspicion alone. And in fact, none of what the victim had said was corroborated even by her family members. HC court stated that there was enough evidence to give rise to a grave suspicion that the man had raped the victim, but it was not enough to prudentially convict him, as the victim’s statement was not sufficiently corroborated.

HC said “The victim’s version of rape is not corroborated, so is her version of pregnancy and abortion and in some cases, the sole testimony of a rape victim can be relied upon, if it is safe, reliable and worthy of acceptance to convict the accused”. However, it was emphasized that the burden would still remain to prove the case beyond reasonable doubt. HC later added that “The possibility of a relationship gone sour cannot be ruled out”.

And therefore, the accused was being acquitted from the charges of rape by extending him the “Benefit of doubt”.

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“Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him.” The Jammu and Kashmir High Court presided over by J. S. Dhar laid down this ratio in the case of Suraj Kumar Vs. Union of India, [Bail Application No. 259/2020].

The brief facts of this case are that police intercepted a black vehicle and then later checked the entire vehicle. The Police recovered a black plastic bag which contained around 500 grams of “charas” in it. They driver of the car i.e. the Appellant was arrested.  After investigation, a charge-sheet under Section 8 and 20 of the NDPS Act was filed against the Appellant. The Appellant filed a bail application in the Trial Court but it was rejected. Hence, the present Appeal.

The Appellant stated that the quantity obtained was “intermediate” quantity as per the act and that there was no chance that he could tamper the investigation. Further, he is ready to abide by the terms and conditions laid down by the Court for grant of bail.

The Court first clarified that a Superior Court can always entertain an application if it is rejected by an inferior court as laid down in the case of Gurcharan Singh & Ors vs. State (Delhi Administration), AIR 1978 SC 179. Further, the court elaborated on the grant of bail in non-bailable offences and stated that, “The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on (…) grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences- Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions.”

The Court while deciding upon the case was of the opinion that “The observation of learned trial court, while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affects the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established.” It further stated that, “Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner has been arrested on 26.09.2020 and since then, he is in custody and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail.”

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Abuse of the process of court cannot be permitted, the court observed that the Petitioner’s contention have earlier been considered in the previous order and the current petition would again lead to investigation of the similar facts which cannot be permitted. Hence the division bench refused to entertain re-litigation of the same issue. The Delhi High Court presided over by J. R. Sahai & J. A. Menon laid down this ratio in the case of H.C. Ram Naresh Vs. Union of India, [W.P.(C) 10853/2020].  

The facts of the case are that a Petitioner filed a petition before the Court seeking directions from the court to the Indo-Tibetan border police for consideration of a third medical report apart from apart from earlier medical reports of the medical board and appeal medical board of the ITPB which diagnosed the petitioner with alcohol dependence syndrome. The petition was considered by the Delhi high court which granted the relief to the petitioner; however, the petitioner filed another writ petition before the court regarding the same issue.

The court heard the petitioner’s argument but observed that it had already considered the contentions in the previous petition. The respondents submitted before the court that they would comply with the previous court orders and consider the third medical report before taking any steps against the petitioner regarding the disciplinary proceedings.

The Division bench of the Court observed that the new writ petition filed has sought similar relief finding flaws in the previous order. The Court was of the opinion that if such re-litigation is permitted it would be an abuse to the process of law.  The Court further stated that, “The petitioner, earlier found to be suffering from Alcohol Dependence Syndrome, now appears to be suffering from Litigation Dependence Syndrome.”

The Court further stated that, “The petitioner cannot be permitted to frustrate the action if any, liable to be taken against him, in this manner and it is high time that such attempts are put to a stop. If we entertain this petition at this interim stage of the action, if any, to be taken by the respondents against the petitioner, the same will again defer the decision, if any, to be taken against the petitioner.”

Lastly, the court refused from interfering in any proceedings and provide an advantage to the petitioner. The Court directed the Petitioner that if any proceedings were prejudicial then he would have departmental remedies available to him and if he further remains dissatisfied he can approach the court again under Article 226 of the Constitution.

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Amendments made in the year 2014 to Section 164(2) and 2018 amendment to proviso to Section 167(1)(a) of the Companies Act, 2013 are prospective in nature and a retrospective application would be anomalous, absurd, unreasonable and could potentially ruin the economy. The Sections deals with the disqualification of director of a company for not filing financial statements for a continuous period of three years and/or balance sheet within thirty days of the date of the Annual General Meeting. This ratio was laid down by the Calcutta High Court presided over by J. S. Bhattacharya in the case of Naresh Kumar Poddar Vs. Union of India, [W.P.O. No. 439 of 2019].

The director of a private company was disqualified by a 2017 notification for the period between November 2016 and October 2021. Hence, he filed a Petition in the High Court stating that the notice was not applicable to him as the amendment is prospective and nit retrospective. He further alleged that The impugned notice disqualifying the petitioner for five years from November 1, 2016 to October 31, 2021 is premature and untenable at law.

The High Court after analyzing the Section and Amendments was of the opinion that the disqualification of a director through a retrospective application of an amendment was patently penal in nature and this has violated the fundament right under Article 19(g) of the Constitution which is a right to practice any profession or occupation, trade or business.

The Court with consequences of the retrospective application was of the opinion that, “If retroactive effect is given thereto, and would entail the directors suffering a grievous violation of their fundamental right under Article 19(1)(g) of the Constitution without any possibility of the directors, or anyone for that matter, having been able to predict such consequence on the relevant date, that is, the date of such default. In such a factual scenario, it cannot be argued by reasonable prudence that a retroactive effect ought to be given to the amendment-in-question. This is an irreconcilable anomaly that would befall the directors if retrospective/retroactive effect is given to the amendments-in-question, not justiciable even by applying Article 19(6) of the Constitution.”

The Court further assessing the overall impact upon the economy and trade of the nation if such retrospective application is permitted stated that, “…there might be ‘Black Swan’ situations, for example, economic recession and debilitating pandemics, which would throw off business and commerce out of gear for considerable periods of time, having little or no effect on robust or anti- fragile (Courtesy: Nassim Nicholas Taleb for the terms ‘Black Swan’ and ‘anti-fragile’) large operators but ruining the credibility and goodwill of small companies, completely veering them off course … This, coupled with the automatic disqualification envisaged in the 2014 and 2018 amendments to the 2013 Act, is sufficient to ruin the economy as a whole which, somewhat counter-intuitively, is detrimental to the growth of the economy. Thus, attributing retrospective/retroactive effect to the said amendments would run contradictory to the purpose of public good. The simplistic approach of merely identifying non-performers in an attempt to provide a fillip to commerce, by a pseudo-streamlining of the economy, loses teeth in the broader perspective discussed above.”

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