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Ashwini Upadhyay Ruling Deciphered, Special Courts Can Try Sitting & Former Legislators, Not Just Current Offenses: Delhi High Court

 

Case Title: Manjinder Singh Sirsa vs State of NCT of Delhi and Anr.

Case No: CRL.M.C. 9128/2023 & CRL.M.A. 34100/2023

Decided on: 08.01.2024

CORAM: Hon’ble Ms. Justice Swarna Kanta Sharma

 

 Facts of the Case

In an effort to reform elections, the Supreme Court issued several directives in the case of Ashwini Kumar Upadhyay v. Union of India, W.P. (C) 699/2016, including establishing Special Courts in various states to expedite trials for criminal cases involving MPs/MLAs. One such court was set up in Delhi in February 2018. However, on November 9, 2023, the Court further directed these Special Courts to prioritize cases against current MPs/MLAs.

The petitioner, a former MLA in Delhi, argues that this new directive doesn’t apply to him since he ceased being an MLA in February 2020, before the updated directions were issued. He further claims the criminal complaint against him pertains to events after he left office, therefore exceeding the Special Court’s jurisdiction.

Despite appearing in court through counsel due to being out of the country, the petitioner’s attempt to quash the complaint and summoning order through CrPC Section 482 and subsequent revision were unsuccessful. He then sought to return or transfer the complaint based on jurisdictional grounds, but this request was also dismissed. This dismissal prompted the petitioner to file the present petition.

The petitioner maintains that he shouldn’t face trial in the Special Court meant for current MPs/MLAs because he is no longer one and the alleged offenses occurred after his term ended. The court’s decision on this petition will determine the venue and potential consequences for the petitioner’s upcoming trial.

Legal provision

Section 482 of CrPC –

Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Issues

  • Whether the Special courts, constituted for the purpose of trying cases relating to MLAs/MPs, will have jurisdiction to try the petitioner?
  • Whether the directions contained in the judgment of Hon’ble Apex Court apply to cases, registered after a person ceases to be an MP/MLA?

Court decision and analysis

Hon’ble Apex Court had sought details from the Government of India, as rightly observed by the learned ACMM, regarding cases which are lodged against the present or former legislators, between the period from 2014 and 2017. Thereafter, the Hon’ble Apex Court had passed certain directions for the effective disposal of criminal cases against sitting and former legislators, in 2018. The Hon’ble Apex Court had directed the High Courts to provide information about the pending cases against MPs/MLAs in a prescribed format, in 2020. Thereafter, after the matter was again taken up by the petitioner, it was clarified that the pendency of the case of Ashwini Kumar Upadhyay, would not come in the expeditious disposal of the case relating to the elected representatives i.e. either sitting or former. Hon’ble Apex Court nowhere has observed that the Special Courts shall try only those offenses where the accused was a sitting MP/MLA, at the time of the commission of offence.

On the basis of the aforementioned orders, Court arrived to the conclusion that the Special Courts were constituted for dealing with cases against the legislators i.e. MPs or MLAs, whether sitting or former.

In the light of the directions issued by the Apex Court contained in the case of Ashwini Kumar Upadhyay and applying it to the facts of the present case, the court was of the opinion that the Special Court constituted to deal with cases against MPs/MLAs, have no jurisdiction to try the present complaint case.

Accordingly, the present petition along with pending application stood dismissed.

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Written by- Bhawana Bahety

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Analysis of the constitutional provision of Article 122 with regards to suspension of members of parliament

Introduction :

During the winter session of the parliament, more than 145 members of the parliament were suspended on account of opposition to the central government between December 14 and December 21, 2023.  This firstly causes a functional calamity in the parliament and also affects the roles and responsibilities of the MPs. The suspended members are barred from entering the chambers of parliament, including the lobby and gallery. They are also restricted from participating in sittings of Parliamentary Committees. Any notice or business listed under their name will not be under operational conditions during the suspension[1]. Some claim the suspension is a consequence of the Opposition’s demand for a statement in parliament by the government over the security breach[2].

In total, over 100 MPs from the Lok Sabha were suspended and over 46 from the Rajya Sabha. This marks as the highest number of suspensions in the parliament. Crucial bills have been passed at this time of suspension including the telecommunications bill and the criminal law reform bills[3].

The power to suspend :

It is within the authority of both Houses of Parliament to punish disobedient members in order to maintain their uninterrupted operations. This authority is granted in order to make sure the Houses run well and to punish those who cause chaos.

As a general rule, the Presiding officer, i.e the Speaker of both the houses should maintain peace and order so that the House can function smoothly. To ensure that, he/she has the right to withdraw a member from the house.

In the Lok Sabha, The Rules of Procedure and Conduct of Business in Lok Sabha provides for the provisions relating to suspension, withdrawal and reprimand from lok sabha due to unruly behaviour[4].

  • Rule 373, the speaker can direct a member to withdraw immediately from the house in case of any misconduct. The members who are ordered to withdraw remain absent for a day’s sitting.
  • Rule 374 provides for the speaker to call out the members who disregard the authority of the chair or abuses the rules. Such members will be suspended for a period not exceeding the session.
  • Rule 374A was added in 2001 which states that if any member through their actions or causes any gross violation will be automatically suspended by the speaker for a period of either 5 consecutive sittings or the remainder of the session, whichever is less.

According to the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha)[5], the members of the Rajya Sabha will be suspended through the procedure mentioned in the following procedure :

  • Rule 255 states that the presiding officer can invoke the suspension of the MP. The chairman can suspend if in his opinion is behaving through misconduct or is causing disorder.
  • Rule 256 provides that the chairman can suspend a member from the service of the Council for a period not exceeding the remainder of the session.

Constitutional validity of suspension of MPs :

The true essence of Indian Democracy is the feature of separation of powers. This means, the executive, legislature and judiciary are its own bodies and either of them can interfere. The roles of these bodies cannot be interchanged or taken upon.

However, the constitution of India provides for the Judicial Review, which allows the judiciary to look into any reform and suggest the government. Similarly, the constitution also ensures that the powers of the bodies are not overlapped under Article 122.

It states that:

  1. Courts not to inquire into proceedings of Parliament

(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers  

The Supreme Court in various instances have upheld the validity of the proceedings of the parliament on the ground that it is permissible under Article 122. Article 122 set the foundation principle to not overlap the functions of the judiciary and the legislature.

Article 122 acts as an immunity to the Parliament and a restriction on the judiciary.

Judicial Pronouncements

In the case of Ramdas Athawale v Union of India[6], the hon’ble Supreme Court held that Under Article 122(2),  the decision of the Speaker in whom powers are vested to regulate the procedure and the conduct of business is final and binding on every Member of the House. The facts of the case was that the speaker adjourned the house and resumed the meeting after a while. The court found that the irregularity of proceedings was not established.

The court also found that, “The courts cannot go into the lawfulness of the proceedings of the Houses of Parliament. The Constitution aims at maintaining a fine balance between the legislature, executive and judiciary. The object of the constitutional scheme is to ensure that each of the constitutional organs function within their respective assigned sphere”. The same principle was followed in the case of Satish Chandra v Speaker, Lok Sabha[7] where the court held that it is well used in the language of Article 122 that the courts cannot interfere with the proceedings of the parliament.

In the Allahabad High Court, the question arose in the case of Naveen Gupta V Union of India[8] was whether the votes given by lok sabha members were valid or not. The court stated that, the ability to answer such question is beyond the scope and control of the judiciary and judicial review presented by the constitution.

The court opined that:

“ In our opinion, these are not matters for judicial review in view of the specific provision in Article 122(1) of the Constitution”

Article 212 of the Constitution provides for the same rules of court interference in the matters of state legislature. The Hon’ble supreme court in M. S. M. Sharma v. Dr. Shree Krishna Sinha[9] held that the validity of proceedings inside the state legislature on the grounds of not following proper procedure cannot be challenged in court. The court stated that, the state legislature has its special jurisdiction, and no court can interfere into that. Furthermore, in the case of Kihoto Holloahan, stated that the state legislature has the same immunity from mere irregularities of procedure.

 The Supreme Court in the landmark case of Raja Ram Pal V Hon’ble Speaker Lok Sabha and Ors[10] laid down the twin test to contemplate Article 122 of the Constitution. The test was that unless there is illegality in the proceedings, the court would not interfere. The court stated that irregularities in procedure and unconstitutionality of the proceedings would be accepted as the text only mention the illegality of the proceeding to be barred.

It stated that “ Any attempt to read a limitation into Article 122 so as to restrict the court’s jurisdiction to examination of the Parliament’s procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the constitutional text. Applying the principle of “expressio unius est exclusio alterius” (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of “irregularity of procedure” does not make taboo judicial review on findings of illegality or unconstitutionality”

In another landmark case of Indira Nehru Gandhi v Raj Narain, it was held that the constitution ensures that there is adequate separation of powers as it is upto the legislature’s hand to decide their own proceedings. The ambit of the court would go to the extent of ensuring proper procedure has been established and if there are irregularities, such shouldn’t be illegal in nature.

In the recent case of Rojer Mathew (S) v. South Indian Bank Ltd[11], the court agreed with the previous interpretation of Article 122 as providing immunity to the legislature. It stated that India is governed by constitutional supremacy and judicial review is part of the basic structure of the constitution. It quoted :

“Any exclusion of judicial review has to be understood in the context in which it has been mandated under a specific provision of the constitution. Hence the provisions contained in article 122 which protect an alleged irregularity of procedure in the proceedings in Parliament being questioned cannot extend to a substantive illegality or a violation of a constitutional mandate.”

Conclusion :

In a country like India where democracy prevails from time to time, it is challenging to shun down the voices of MPs. However, the arbitrariness and the power vested upon the speaker of the houses creates a dynamic view for the definition of democracy. Although the aspect of suspension cannot be questioned by the judiciary, it is yet to be clarified whether the same is legal or not. As per the rules of the houses, the speaker has unprecedented power to suspend or withdraw any member he wishes to. The main conflict of interest among such thought is that the suspension can be purely based on the speaker’s opinion and thoughts. This on the outlook seems arbitrary and unreasonable. However, it is clear that the Court’s scope on challenging such is beyond the powers mentioned in the Constitution.

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Written by- Sanjana Ravichandran

[1] Sounak Mukhopadhyay, 141 Opposition Mps Suspended So Far : Are They Allowed To Enter Parliament? Check List Of Restriction, LIVEMINT (Dec 20, 2023) https://www.livemint.com/news/india/141-opposition-mps-suspended-so-far-are-they-allowed-to-enter-parliament-check-list-of-restrictions-11703057026922.html

[2] DHNS, Parliament, Democracy in suspension, DECCANHERALD (Dec 20,2023) https://www.deccanherald.com/opinion/editorial/parliament-democracy-in-suspension-2818157

[3] PRS Legislative Research, Winter Session Snapshot: Record Number of Lok Sabha MPs Suspended; No Bills Sent to Committees, THEWIRE (Dec 23, 2023) https://thewire.in/government/winter-session-snapshot-record-number-of-lok-sabha-mps-suspended-no-bills-sent-to-committees

[4] Rules of Procedure and Conduct of Business in Lok Sabha, 15th edition, https://eparlib.nic.in/bitstream/123456789/66/1/Rules_Procedure_LokSabha.pdf

[5] Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), 9th edition https://cms.rajyasabha.nic.in/UploadedFiles/LegislativeSection/LegislativeRules/English_2052022english_3092021rules_pro.pdf

[6] (2010) 4 SCC 1

[7] (2014) SCC 2 178

[8] (1999) ALR 36 328

[9] AIR 1960 SC 1186

[10] (2007) SCC 3 184

[11] 2019 SCC ONLINE SC 1456

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Court cant direct to reject plaint to return it to another court due to lack of jurisdiction : Bombay HC

TITLE : Shreem Electric Limited V Transformers and Rectifiers

CORAM : Hon’ble justice Sandeep V. Marne

DATE :  12th December, 2023

CITATION : Appeal No. 14843 of 2019

FACTS

The order passed by the District court was in challenge for rejection of a Plaint under Order 7 Rule 11 of the CPC. The plaintiff is a manufacturing and supplying unit involved in supplying Turn Key Projects for power stations. The defendant is engaged in power distribution and manufacturing transformers and alleged the petitioners of refusal to fulfill obligations arising from purchase orders. The petitioners initiated a commercial suit against the defendant. The defendant filed an application seeking rejection of plaint under Order 7 Rule 11 of CPC claiming the absence of cause of action and jurisdiction. The district court had returned the plaint to Ahmedabad while maintaining that the plaint cannot be rejected.

LAWS INVOLVED

Order 7 Rule 11 of CPC states that the plaint will be rejected on the following grounds :

  • Where there is no cause of action
  • Where the relief claimed is undervalued and has not been revised upon courts order.
  • Where there is a wrong stamp paper for relief claimed under a properly valued plaint.
  • Where the suit appears to be barred by law
  • Where the plaint is filed in duplicates or fails to comply with the provisions of Rule 9

ISSUES

  1. Whether the return of the plaint to Ahmedabad was justified by the district court?

JUDGEMENT

The court analysed that the district court came to the conclusion that there is a cause of action for filing the suit and has proceeded to reject the Defendant’s application. It was observed that the district court did not give a finding that the court lacked jurisdiction. It stated that just because there is a pending suit in another court, the need to tie the same would be set aside. The court therefore set aside the orders of the District Court.

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Written by- Sanjana Ravichandran

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The Calcutta High Court refused to quash legal proceedings against a tour operator accused of misusing booking funds, citing evidence of potential criminal breach of trust

Title: Ashish Kumar Vs. State of West Bengal & Anr.

Decided on: 19th, October 2023

Writ C No. – CRR 197 of 2023

CORAM: The Hon’ble Justice Partha Sarathi Chatterjee.

INTRODUCTION

 In this case Ashish Kumar attempted to have criminal charges brought under Sections 406 and 420 of the Indian Penal Code set aside. Dr. Swapnil Jaiswal filed a complaint at the start of the case alleging that Ashish Kumar had defaulted on payment for a tour package.

Ashish’s request was denied by the court, which decided that more research and a trial were necessary because the charges suggested possible offenses. This case highlights the necessity of differentiating between civil and criminal cases as well as establishing a sufficient basis for filing criminal charges.

FACTS OF THE CASE

A group of travellers made a reservation for a tour package with Ashish Kumar, who is said to have taken money but failed to pay hotel owners and taxi drivers. Ashish was the subject of a criminal complaint brought under IPC Sections 406 and 420. Ashish’s request to have the case dismissed was denied, so the court case could go forward.

COURTS ANALYSIS AND DECISION 

The case of Ashish Kumar, who was accused of taking money for a tour package but not paying hotel owners and taxi drivers as agreed, was examined by the court. The court determined that the accusations of cheating and breach of trust could be crimes if they were to be believed at face value. Consequently, it denied Ashish Kumar’s application to stop the proceedings, enabling the legal matter to continue.

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Written by- Kusuma R

Calcutta Hc 2

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Jurisdiction For A Wrong Done Is Not Only Where The Wrong Is Done But Also Where The Impact Of The Wrong Is Felt: High Court Of Kerala

Citation: FAO NO. 331 OF 2011

Coram: THE HONOURABLE MR.JUSTICE BASANT BALAJI

Decided on: 3RD DAY OF OCTOBER 2023

Introduction:

The plaintiff in O.S. No. 100 of 2004 on the files of the Sub- Judge, Nedumangad is the appellant and the respondents were the defendants therein, this suit filed claiming compensation of Rs.3,00,000/- together with future interest at the rate of 18 % p.a from the defendants and their assets. The judgement is regarding which court having territorial jurisdiction to decide.

Facts:

The plaintiff is the mother of the deceased Nisamol who passed away on 02.06.2001 in New Delhi at the residences of defendants, having no means of her own other than 4 cents of property and has small building thereon. plaintiff is a chronic heart patient cannot work to earn her livelihood. She has a son who is blind and invalid.

deceased Nisamol was the only earning member of the family. The family members of the deceased are the defendants in the case. Nisamol was taken to Delhi on 05.12.2000 as 2 of the defendants proposed to look after her because of extreme poverty of plantiff.

On 02.06.2001, the plaintiff that her daughter was ill and admitted to a hospital in Delhi. The plaintiff was taken to Delhi by Air on that day. Later the plaintiff was informed that Nisamol died due to blood cancer. body of Nisamol was taken back to the native place and buried at the graveyard.

The plaintiff suspected that the death of the daughter was due to the ill treatment of defendants, Though a notice was issued to the defendants to pay compensation, they were not amenable, so the suit was filed.

The defendant contended that Nisamol was taken as a maidservant to work as a babysitter for their one and half-year-old baby, on the representation of the plaintiff to take her as a domestic servant. The salary was fixed at Rs.1,000/- per month, and the amount was being regularly sent by cheque to the bank of the plaintiff. plaintiff was told that Nisamol was having ailments of bleeding through her nose, and therefore, she was treated at AIIMS, New Delhi.

But on 02.06.2001 it was found that Nisamol was hanging. The matter was informed to the police, and postmortem examination was conducted by the Forensic Department of AIIMS and the dead body was taken back by Air, and the 1st defendant had incurred an expenditure of Rs.1.5 Lakh for that. The Delhi Police submitted a report finding it as a suicide case.

The learned Sub Judge, after considering the oral testimony as well as the documents produced, concluded that, the Court has no territorial jurisdiction to entertain the suit. Therefore, the plaint was returned to present before the proper court. According to the counsel for the appellant, the suit can be filed for claiming compensation for the wrongs done to the person or the movable property not only at the place the wrongs was done on the defendant resides but at the place where the effect of the wrong is felt.

Court’s Judgement and Analysis:

The wrong done cannot be construed to mean only the act which was done and should also take in the effect of the act, In a suit for compensation for wrong done, mere injury or wrong done without anything more would not suffice to sustain claim of compensation. The wrong done cannot be interpreted in a narrow sense but has to be understood in the broader amplitude.

It takes in both the act and effect to put it differently, the death of the plaintiff’s daughter might have happened in Delhi, but its effect is felt by the plaintiff within the local jurisdiction of the Sub-Court, Nedumangad. It is pleaded by the plaintiff that her family was solely relying on the income of the plaintiff’s daughter.

for the reason stated above and also relying on dictum laid by this Court in Ayyappan Pillai (Supra) . Court decided that the Sub-Court, Nedumangad, is having the territorial jurisdiction to try the suit since the wrong done has to be interpreted in the broader sense and the wrong done. Therefore the order passed by learned sub judge is set aside.

Sub Judge, Nedumangad is directed to try the suit, and therefore, the appellant is given liberty to present the plaint before the said court. Since, the suit is of the year 2004, there would be a further direction to the Sub Judge, Nedumangad, to dispose of the suit as far as possible and at any rate, within a period of four months

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Written by- Sushant Kumar Sharma

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