0

Judicial Review Under Article 227: Deletion of Framed Issues and Recall of Witness for Cross-Examination: Delhi High Court

Blog, Delhi High Court , ,

Judicial Review Under Article 227: Deletion of Framed Issues and Recall of Witness for Cross-Examination: Delhi High Court

Case title: Ritu Kumar vs Tarun Chander Malik & ANR
Case no.: CM(M) 1926 OF 2023, CM APPL. 60265 OF 2023
Dated on: 14TH May 2024
Quorum: Hon’ble Ms. Justice Shalinder Kaur.

FACTS OF THE CASE
This petition filed under Article 227 of the Constitution of India impugns the order dated 05.09.2023 passed by the court of the Additional District Judge-01, Patiala House Courts, New Delhi in CS No.442/2014 in the suit titled as ―Tarun Chander Malik vs Ritu Kumar‖. The petitioner is the defendant no.1, the respondent no.1 is the plaintiff & respondent no. 2 is the defendant no. 2 before the learned ADJ in the aforementioned suit. The petitioner is aggrieved that vide the impugned order dated 05.09.2023, the learned ADJ has suo moto deleted issues no.4, 5 & 7 which were originally framed by the learned trial court vide order dated 14.05.2015. The petitioner is further aggrieved as his application dated 31.05.2023 under Section 151 of the Code of Civil Procedure, 1908 (hereinafter ―CPC), to recall the plaintiff/respondent no.1 for cross examination qua the new documents produced on the direction of the court by the respondent no. 1, was disallowed. One may start the recital of the facts with the suit for possession filed by respondent no. 1 for recovery of possession of suit property admeasuring 7246 sq. ft. at 68, Janpath, New Delhi – 110001 (hereinafter referred as ‗suit property‘), which is in the possession of the petitioner. Respondent no. 1 averred that petitioner is the biological eldersister of the respondent no. 1 and respondent no. 2 is the husband of petitioner who is a proforma party. Respondent no. 1 at the age of about 1.5 years was given in adoption to late Sh. Tara Chand Malik and his wife Smt. Bhagwanti, after the adoption ceremony and on execution of duly registered deed of adoption dated 04.02.1968. Late Sh. Tara Chand Malik was the paternal uncle of late Sh. Ram Nath Malik, father of respondent no. 1 and petitioner, who owned the suit property and bequeathed it in favour of respondent no. 1 vide Will dated 16.08.1968 qua which probate certificate dated 02/28.08.1969 was granted. Sh. T.C. Malik was issueless.
Petitioner and the respondent no.1 moved applications under Section 151 of the CPC and both the applications were listed for arguments on 05.09.2023. The learned ADJ, with regard to the application of the petitioner under Section 151 of the CPC, seeking to recall respondent no.1 for further cross examination, dismissed the same Further, the application moved by the respondent no.1 under Section 151 of the CPC for closing defendants evidence was disposed off by the learned ADJ, while granting 3 effective opportunities, subject to payment of costs imposed earlier.The petitioner contested the civil suit and filed the written statement. The biological relationship between respondent no. 1 and petitioner was not disputed, however, the petitioner refuted that respondent no. 1 was given in adoption to late Sh. Tara Chand Malik. It is the case of the petitioner that one room in the suit property is in possession of the petitioner being the owner, in accordance with the oral family settlement arrived in the year 1993.

CONTENTIONS OF THE APPELLANT
The learned counsel for Petitioner submitted that the learned ADJ passed the impugned order, deleting the previously framed issues which were framed under identical facts and circumstances of the case without following the prescribed procedure under Order XIV Rule 5 of the CPC. The deletion of these issues, primarily based on irrational findings have led to the rejection of the petitioner‘s application under Section 151 of the CPC. Moreso, because of impugned order, the petitioner has been rendered practically defenceless by deletion of the pivotal issues forming the backbone of the dispute involving determination of rights of the parties. The Learned Counsel contended that the matter of adoption serves as the corner stone of respondent no.1‘s suit, and the dispute between the parties cannot be resolved unless the court adjudicates on the adoption issue. The petitioner has asserted that the denial of the opportunity to present evidence regarding the issues is resulting in significant prejudice to the petitioner‘s interests and is impeding the equitable adjudication of the matter between the parties. The Learned Counsel further argued that it is an established legal principle that probate is granted without delving into the specific contents of the Will. The Probate Court lacks jurisdiction to decide matters pertaining to the ownership of the properties in question or to determine whether said properties, as bequeathed in the Will, were ancestral assets or personal acquisitions of the testator. Additionally, the Counsel asserted that a conveyance deed holds no relevance in establishing the validity of an adoption or determining ownership rights. Moreso, while passing the order allowing the application of petitioner under Order XI Rule 14 CPC, the learned Trial Court observed that Will of Smt. Bhagwati is necessary to decide the issue of adoption.

CONTENTIONS OF THE RESPONDENTS
The respondent submitted that the Endlaw raised the plea that the impugned order is justified and cannot be faulted with as the learned ADJ has exercised its jurisdiction within the framework of law by suo moto deleting the issues. The moment it came to the notice of the learned ADJ that certain issues were superfluous and would waste the precious time of the court by letting parties to lead evidence, it suo moto deleted the said issues. The learned counsel submitted that it is not disputed that the court can Suo moto delete or add issues. The Learned Counsel for the respondents further placed reliance on “K.K Velusamy vs. N Palanisamy” (2011) 11 SCC 275, where the precise nature and scope of Section 151 of the CPC was dealt with and clarified. the argument of the petitioner that PW1 is to be confronted with the additional documents. It is submitted that the petitioner had raised a limited plea to production of documents which has been allowed by the learned Trial Court but these documents could not be put to PW1 as the respondents never had a chance to rebut the documents and if a further cross examination of PW1 is permitted, it would prejudice the claims of the respondents.

Issues
1. Whether the suit property is self-acquired property of the deceased Sh. Tara Chand Malik or HUF property?
2. Whether the plaintiff was adopted son of late Sh. Tara Chand Malik and his wife Smt. Bhagwanti Devi?
3. Whether the suit is bad for misjoinder of necessary parties?

LEGAL PROVISIONS
Section 151 CPC: It gives inherent powers to the court to do justice.
Order XIV Rule 5 of the CPC: The Court at any time before passing a decree, frame an additional issues on such terms as it deems fit as may be necessary for determining the matters in controversy between the parties.
Article 227 of Indian Constitution: Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction
Order XI Rule 14 CPC: It allows the court to order the production of documents if they relate to any matter in question in the suit.

COURT’S ANALYSIS AND JUDGEMENT
The present petition, the petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India which delineates a crucial aspect of judicial oversight over subordinate courts and tribunals, as interpreted through various legal precedents. The Article confers upon the High Court‘s the power of superintendence to ensure that the subordinate bodies operate within the confines of their authority. This power is not meant for mere error correction but rather to rectify grave violations of law or fundamental principles of justice. Courts exercising supervisory jurisdiction under Article 227 must refrain from functioning as appellate bodies. The High Court’s intervention is warranted only in instances of serious dereliction of duty or when a finding is so blatantly erroneous that it results in a miscarriage of justice. The scope of this jurisdiction prohibits the High Court from delving into factual assessments or re-evaluating evidence unless there is a clear departure from legal principles or a blatant abuse of power. The essence of Article 227 lies not in reviewing the correctness of orders but in ensuring that the exercise of jurisdiction by subordinate courts aligns with legal norms, thus upholding the integrity of the judicial process. The “framing of issues” refers to the process where the presiding judge in a civil trial formulates specific points or questions based on the pleadings and documents submitted by the parties involved. The judge’s role is to meticulously review the allegations, defences, and relevant evidence presented by each party before determining the precise issues that need to be addressed and resolved during the trial. The expectation placed on court during this stage is that it exercises due diligence and careful consideration in analysing the pleadings and documents. By doing so, it ensures that the issues framed accurately reflect the disputed aspects of the case and encompass all pertinent legal and factual matters requiring adjudication. This thorough examination helps in promoting fairness, clarity, and efficiency in the trial process. In essence, the framing of issues serves as a roadmap for the trial, guiding the parties and the court in focusing their arguments, presenting evidence, and ultimately reaching a just resolution. It is a pivotal procedural step aimed at facilitating a structured and meaningful adjudication of the dispute before the court. Order XIV Rule 5 of the CPC delineates power of the court to amend and strike out issues. A plain reading of the provision makes it clear that a court can at any point of time before passing a decree, amend issues and permits the court to strike out any issue. The issues can be re casted as the court deems fit and as may be necessary for determining the controversy between the parties. The grievance of the petitioner is that the learned Trial Court had already exercised its jurisdiction on 14.05.2015, when the issues came to be framed by it. Neither side had raised any objection to the issues which were framed and the evidence has been led by the respondents on the said issues. It was submitted that the learned Trial Court erred in deleting the issues without any basis which is impermissible in law. The other document is a probate order dated 02.08.1969, as the Will already stands probated, the consequences of the probate of Will would be considered by court at an appropriate stage for which further evidence of the parties is not required. Hence, there is no infirmity in the order passed by learned Trial Court while dismissing the application of petitioner under Section 151 CPC to re-summon respondent no. 1 for further cross-examination. Having considered the above, the impugned order to the extent of issues nos. 4 & 5 having been deleted by the learned Trial Court is set aside. The judgments relied upon by the parties are decided on their own facts and are distinguishable from the facts of the present case. The petition along with pending application is disposed of.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – HARIRAGHAVA JP

Click here to read the judgement

0

Supreme Court Directs Bombay High Court to Scrutinize Legality of Advocates’ Filed ‘Minutes of Order’

blog , , , , , , ,

Case title: Ajay Ishwar Ghute and Ors V. Meher K. Patel and Ors

Case no: Civil appeal No. 4786 of 2024

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case: 
An Arbitration Petition was filed under the Arbitration and Conciliation Act, 1996 before single judge of Bombay High court wherein consent terms were filed in the arbitration petition preferred by the first respondent. In terms of the consent terms the learned single judge recorded that the process of handing over the possession of the suit property by the respondents to the first respondents as commenced. The disputes were related to lands of Parsi Dairy Farm. The seventh respondent filed an interim application after two years of filing the consent terms by stating that High court had directed the Police to give police protection to the parties for completing the process of handing over possession. A compound wall was to be constructed in terms of the consent terms, which according, to the seventh respondent could not be done as local persons obstructed the work. The learned single judge of the Bombay High court disposed the interim application by directing Police/Tahasildar/ Collector/ Gram Panchayat office and all other Government authorities to offer assistance to construct a wall to safeguard the suit property. The persons who had obstructed the construction of the wall were not part to the arbitration proceedings/ interim application. An application was filed to Deputy Superintendent of Land Records by first respondent and five others for measuring the land who vide later dated 20.11.2021 informed the first respondent that several persons have objected, in writing, in carrying out the survey. Hence, holding an enquiry was necessary. First and second respondent filed a writ petition under Article 226 of the constitution for non-compliance with the orders of the Arbitration Petition regarding survey and construction of compound wall. The persons who raised objections were not impleaded in the Writ Petition. The Division Bench on 09.03.2022 ordered the Superintendent of Police to be present. The Superintendent of Police filed an affidavit stating that local tribals have gathered an impression that they were attempted to be illegally dispossessed and they insisted that the lands be demarcated before constructing the compound wall. The District Superintendent of Land Records vide an affidavit stated that there are certain persons to whom the petitioners and others have sold small portions of land and if a compound wall is constructed the third parties are likely to get landlocked. The Division bench without noticing the contentions of the above Government officers, instead of directing impleadment of the affected parties passed an order in terms of ‘Minutes of order’ dated 16.03.2022, for issuing a direction to survey authorities to carry out demarcation of the boundary and to direct the police to provide protection for constructing the compound wall.

Contentions of the appellant: 
Of the thirty review petitioners Nos. 7-18 were shown as interveners in the “Minutes of order” though they had not engaged any advocate. The said interveners never met the advocate who is shown to have signed ‘Minutes of order’ on their behalf. The appellants had rights in respect of several properties which were likely to be adversely affected by the construction of the compound wall. The principles of Natural justice were not followed before permitting the construction of the compound wall. The impugned order based on ‘Minutes of order’ is completely illegal and vitiated by the non-joinder of the necessary parties.

Contentions of the respondent: 
The compound wall had been built in such a manner that no person was landlocked or in any manner inconvenienced. The owners of the adjacent lands continue to enjoy unhindered and unfettered access to their respective land.

Legal provisions:

Article 226- Writ Jurisdiction of High Court.

Issue:

Whether the High court was justified in passing a order while exercising Writ Jurisdiction under Article 226 of the constitution of India permitting the first and second respondent to construct a compound wall under police protection in terms of “Minutes of Order”?

Court’s analysis and judgement: 
The court summarised conclusions regarding the concept of Minutes of order as follows: 
a) The practice of filing ‘Minutes of order’ prevails in Bombay High court the object of which is to assist the court. 
b) An order passed in terms of ‘Minutes of order’ is not a consent order. It is an order in invitum. 
c) The Courts to apply its mind as to whether parties likely to be affected by an order in terms ‘Minutes of order’ have been impleaded to the proceedings and whether such order is lawful? If the court finds that all parties are not impleaded the court to defer passing of the order till all the necessary parties are impleaded. 
d) If the court is of the view that an order made in terms of ‘Minutes of order’ will not be lawful court should decline to pass order in terms of ‘Minutes of order’.  
Findings on the facts of the case- 
It was the duty of the Court to call 1st and 2nd respondent to implead persons who were likely to be affected by the construction of the compound wall. The Division Bench of the High court failed to make an enquiry as to whether the third parties will be affected by the construction of the compound wall. Hence, order dated 16.03.2022 in terms of ‘Minutes of order’ is entirely illegal and must be set aside. The writ Petition to be remanded to the High court. After remand, High court must decide who are the necessary parties to the petition in case of failure of 1st and 2nd respondents to implead the necessary parties the High court is within its power to dismiss the Writ Petition and pass an order of restoration of status quo ante by directing demolition of the compound wall.

“PRIME LEGAL is a full-service law firm that has won a national award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer”.

Judgement reviewed by- Parvathy P.V.

Click here to read the judgement

0

Fraud under Section 23(1) of Senior Citizens Act Limited to Violation of Transferor’s Upkeep Condition, Cannot Extend to Civil Law Fraud: Karnataka High Court

Blog , , , , , ,

Case title: Jayashankar and the Assistant Commissioner and Ors. 

Case no: Writ appeal No. 339 of 2023 (GM-RES)

Dated on: 24th April, 2024

Quorum: Hon’ble Justice Mr. N.V. Anjaria and Hon’ble Mr. Justice Krishna S Dixit.

Facts of the case: 
Under Section 4 of the Karnataka High Court Act, 1961 the writ appeal was directed against a judgement and order of a learned counsel dated on 03.03.2023 passed in a writ petition No. 12226 of 2020, dismissing the petition. There was an order passed under 23(1) of the maintenance and welfare of parents and senior citizens Act, 2007. The tribunal had declared that the registered gift deed dated 28.01.2014 was liable to be treated as cancelled as the transfer of property was void. The complainant K.V Nanjappa aged nearly hundred stated that the ancestral property is being partitioned but the complainant has retained one house, certain sites and 5acres of land. It was stated that the younger son of the complainant Jayashankar took the complainant to the Taluka office by misrepresentation saying that his presence is needed for a pension case and instead he got registered the document from the complainant in his favour. The complainant recently learned that his younger son Jayashankar had gotten the property registered without his knowledge. The complainant stated that he did not execute such gift deed to his son. The Tribunal declared that the registered Gift Deed dated 28.01.20214 to be cancelled as transfer of the property is void. The Original Petition was filed under Section 4 of the Karnataka High Court 1961 to set aside the Order dated 06.01.2014 passed by the President of the Maintenance and Welfare of Parents and Senior Citizens Tribunal. On Appeal, the Learned Single Judge observed that the Gift Deed was unequivocal and the property was gifted provided the Appellant took care of the father. The Petitioner was found to be not taking care and hence the condition of the Gift Deed was breached and the said finding by the Assistant Commissioner under the Maintenance and Welfare of Parents and Senior Citizens Act,2007 was based on the admission of the Appellant that his father is not residing with him. This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, 1961, to set aside the impugned Order dated 03.03.2023 passed by the Learned Single Judge in WP 12226 of 2020.

Contentions of the appellant:

The single Judge overlooked the aspect that while providing the gift deed and transfer thereunder, the Competent Authority came to the conclusion that Gift Deed was acted upon by fraud. However, there was no evidence before the Authority that the Gift deed was executed by fraud. After death of the Complainant, it came to light that the father had executed a Will and that the Respondents were not happy with the Will and lodged Complaint under Section 379,420,447,448,465,468,471 and 506 of IPC. Apart from the same the Respondents also filed OS 70/2019 to declare the registered Will as null and void. All these material aspects were disregarded by the learned single Judge to confirm the judgment and order of the Tribunal.

Issues:

Whether the Competent Authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has passed order by going beyond the purview of Section 23 (1) of the Act?

Legal provisions:

Section 23 (1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007: Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 empowers a senior citizen to approach the Maintenance Tribunal to declare a certain specific transfer of property, by way of gift or otherwise, after the commencement of the MWPSCA, as void, if in case the transfer of property was premised on the condition that the transferee shall provide for the basic amenities and physical needs of the transferor; and after the transfer got effected such transferee refused or failed to provide for such basic amenities and physical needs.

Section 379- Theft imprisonment for three years with fine or both.
Section 420- deals with act of cheating.
Section 447- criminal trespass.
Section 448- house trespass.
Section 465- punishment for forgery.
Section 468- forgery.
Section 471- using a forged document as genuine.
Section 506- punishment for criminal intimidation.

Courts analysis and judgement:

The Supreme Court in Sudhesh Chhikara Vs Ramti Devi held that for attracting Section 23(1) two conditions must be fulfilled (a) The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and (b) The transferee refuses or fails to provide such amenities and physical needs to the transferor. If both the conditions are fulfilled then by legal fiction the transfer shall be deemed to have been made by fraud or coercion or undue influence and the transfer shall become voidable. The facts suggests that an obligation was there on the Appellant to take care of the Complainant father and on such condition the gift deed was executed. The said condition was breached, as per the finding of the Competent Authority and the learned single judge as well. The Appellant admitted that father was not residing with him. The Complainant had to stay at the elder son’s house. The condition of treating the Gift Deed void was satisfied and hence there is no error in the order of the single judge for confirming the Order of the Tribunal by treating the gift deed as cancelled. However, the Tribunal while ordering cancellation of the gift deed cast doubt on the execution of the Gift Deed for the reason that while executing Gift Deed the Complainant has put thumb impression on the document but at the time of filing the complaint, he has put his signature which creates serious doubts about the consent and knowledge of the Complaint with regard to execution of the Gift Deed. The aforesaid finding by the Tribunal is unwarranted and further the Tribunal has gone beyond the operational purview of Section 23 (1). The section treats the transfer of the property in a particular manner to be deemed to have been made by fraud or coercion upon breach of condition of taking care and providing basic amenities i.e; the idea of fraud or coercion in section 23 (1) is in reference to breach of condition I.e; providing basic amenities and physical needs to the senior citizen. The words fraud and coercion could not be enlarged to normal concept of fraud or coercion in civil law. To establish fraud, evidence is required to prove the facts of fraud. Tribunal is neither a civil court nor the power exercised by the Tribunal is under the provisions of the Civil Court. The powers granted under the Act is to provide effective recourse in law or maintenance and welfare of parents and senior citizens and to guarantee and recognize them their rights. The Tribunal misdirected itself in law in making observations on paragraph 13 of the Order by suggesting that the gift deed was fraudulently obtained from the complainant. The findings are beyond powers and jurisdiction of the Tribunal. Accordingly, the observations in paragraph 13 of the Order of Tribunal are not sustained and are set aside. The Judgment and order of the learned single judge is modified to the said extent and rest of the part is confirmed. Accordingly, the Writ appeal is dismissed subject to the observations and findings and modifications.

“PRIME LEGAL is a full-service law firm that has won a national award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer”.


Judgement reviewed by- Parvathy P.V.

Click here to read the judgement

0

Supreme Court Directs Implementation of Standard Operating Procedure for Filing Paper Books.

Blog , , , , , , , ,

Case title: Anjumol V.A. and Ors V. Kerala Public Service Commission and Ors.

Case no: petition (s) for special leave to appeal (C) No. 13242/2021

Dated on: 16.04.24

Quorum: Hon’ble Mr. Justice J.K. Maheshwari and Hon’ble Mr. Justice Sanjay Karol.

Facts of the case:

The Petition(s) for Special Leave to Appeal (C) No. 13242/2021 is arising from final. Judgment and Order dated 04-06-2019 passed by the Hon’ble High Court of Kerala at Ernakulum) in OPKAT No. 62/2017.

Court’s  Analysis and Judgement 

The Hon’ble Supreme Court, while hearing the above case, has perceived various practical difficulties both on miscellaneous or non-miscellaneous days and some of them are as mentioned herein below:

(i) The Orders passed during the proceedings are not attached to the paper books;

(ii) In Service matters, the counsels for the Petitioner are not attaching the relevant Service Rules with Appendix in the SLP paper book or the same is not referred in the pleadings. The Rules, sometimes, are filed in piecemeal with Applications or with additional documents, due to which matters are postponed. This causes financial burden upon the parties and further results in delay in adjudication;

(iii) Counter Affidavits are sometimes attached to the main SLP paper book without flagging, inviting attention and sometimes as separate paper book which requires unnecessary search and wastage of time by the Judges;

(iv) Upon directions and after filing the convenience compilation, the same is not sent to the residential offices of the Judges either in hard copy or by way of email and even during the hearing;

(v) The IA number is not properly exhibited on its face. The Applications are not attached date wise, with paper books. This causes inconvenience to the Judges;

(vi) Other ancillary issues in various paper books is also causing difficulty in day to day court functioning.

In view of the above, the Secretary General and the Registry Officers, in particular the Registrar (Judicial) shall prepare a Standard Operating Procedure (SOP) for properly maintaining the SLP paper books and also to eliminate the difficulties mentioned above. The SOP is to be notified after seeking appropriate orders from the Hon’ble Chief Justice of India. The due compliance shall be made as expeditiously as possible for efficient functioning of the court. Learned counsel for the parties were heard the hearing is concluded. The Learned State Counsel and the Counsels for Respondents are granted two weeks’ time to file affidavit clarifying how many persons have been appointed along with their qualifications and the status of the Petitioners in the present Special Leave petition.

“PRIME LEGAL is a full-service law firm that has won a national award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer”.

Judgement reviewed by- Parvathy P.V.


Click here to read the judgement

 

0

Bail Refused to Defendant Charged Under UAPA for Supporting ISIS Ideology and Organizing Illegal Weapons: Delhi High Court

blog , , , , , , , , , , ,

Case title: Jamsheed Zahoor Paul v. State of NCT of Delhi

Case no: CRL.A. 51/2024

Dated on: 24th April, 2024

Quorum: Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr. Justice Manoj Jain

Facts of the case:

Special Cell (New Delhi Range), Lodhi Colony received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir and would come at Netaji Subhash Park, near Lal Quila (Red Fort), Delhi on 07.09.2018 to proceed to Kashmir. Both the aforesaid named suspects were found moving towards Lal Qila. Search of the appellant yielded recovery of one pistol, containing five live cartridges in its magazine. From the possession of Parvaiz Rashid Lone (A-1) also, one pistol was recovered. These were seized. The police tracked them. They were found to be juvenile in conflict with law (JCL) and, therefore, separate report was prepared against them, which was filed before concerned Juvenile Justice Board (JJB). During investigation, both the accused divulged that they were propagating ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Though, initially, FIR had been registered for commission of offence under Section 25 Arms Act, after detailed investigation and on the basis of the incriminating material collected during investigation, penal provisions of Section 18 & 20 of Unlawful Activities (Prevention) Act (UAPA) were added. Both the accused were accordingly charge-sheeted for commission of offences under Section 25 Arms Act and for Sections 18 & 20 of UAPA. Main charge-sheet was submitted on 28.02.2019. Appellant had earlier also moved one application seeking bail which was dismissed and it was withdrawn on 06.06.2019. He moved another bail application which, too, was dismissed on 01.05.2020, feeling aggrieved, he preferred Criminal Appeal 345/2021 which was, however, not pressed and resultantly, the same was dismissed by this court on 31.01.2022 charges were framed on 25.04.2022. It was thereafter only that the appellant moved another bail application which also did not find favour and was dismissed by the learned trial court. When Appellant was interrogated, he revealed names of various cadres of ISIS (J&KModule) with whom he was in touch through social media, Black Berry Messenger (BBM) and Facebook etc. Some of such cadres of ISIS had already been shot dead in encounter. The mobile phones, recovered from both the accused, were sent to CERT-In for retrieval of data and its forensic analysis. Such analysis indicated that they both were not only involved in procuring sophisticated weapons for banned terrorist organization but also shared information about the movement of Army to other terrorists in Kashmir. Role, involvement and complicity of the appellant also stood exposed whose profile picture on BBM contained four terrorists, two of whom carrying AK-47 Rifles.

Contentions of the appellant:

According, to the learned counsel for appellant, allegations on record, even if those are taken on their face value, do not show commission of any offence under Section 18 & 20 of UAPA and at best, without admitting anything, it can be said to be a case of recovery of arms. It is contended that though the charges have been ascertained by the learned Trial Court and these have not been assailed so far, it is still legally permissible for the appellant to seek bail and to demonstrate that the bar provided under Section 43D (5) of UAPA does not stand attracted. There is no material to show that appellant had indulged into any unlawful or terrorist act, much less attribution of any overt act on his part. The entire case of prosecution is dependent upon the disclosure statements of the accused persons and these statements have no evidentiary value, being inadmissible in law. There is nothing to indicate that any message or BBM chat retrieved from the electronic device of the appellant had any potential to indicate that he was in contact with any terrorist. Appellant could not be branded as “terrorist‟ or a “person involved in terrorist act” merely on the basis of the recovery of a pistol and, therefore, invocation of draconian provision of UAPA is totally mis-founded and unwarranted. There is nothing to indicate that the appellant was a member of ISIS or their purported fronts. There is nothing to suggest that he was radicalized and was associated or was otherwise furthering the activities of ISIS. Merely because there was some BBM Chat retrieved from the electronic devise of his co-accused, appellant could not have been held to be a co-conspirator. Mere framing of charge does not create any embargo against grant of bail as the consideration for framing the charge is different from the one required for grant of bail. At the stage of consideration of bail, Court is merely required to undertake surface-level analysis of probative value of the evidence in order to satisfy test of “prima facie true” and if such analysis is carried out, it would clearly go on to show that there is no admissible evidence on record indicating commission of offences under Section 18 & 20 of UAPA. Appellant has undergone incarceration for more than five and half years and the trial is not likely to conclude any time soon and, therefore, his fundamental right as enshrined under Article 21 of the Constitution of India has been seriously jeopardized, entitling him to be released on bail on that count alone.

Contention of the respondent:

There are serious allegations against the appellant and the learned Trial Court has already come to a definite conclusion that there is a prima facie case against him for offences under Section 18 & 20 UAPA. According to the respondents, there are following clearcut allegations and if all these allegations are read conjunctively, it would clearly reveal his complicity qua offences under Section 18 & 20 UAPA. One loaded pistol was recovered from his possession and he disclosed that he had purchased the same from four juveniles. Such fact was found to be correct as the police was able to reach those juveniles and they were apprehended and admitted that weapons in question had been sold by them to the accused persons, in lieu of money. Appellant was found in possession of two electronic devices and when the data was retrieved, it was found that he was found using Black Berry Messenger for communicating with his associates. His BBM ID was deciphered and the profile picture of Black Berry Messenger depicted four terrorists holding AK47 rifles and pistols in their hands. Appellant and his co-accused had procured illicit arms and had come to Delhi together and were to leave for Kashmir together in furtherance of their conspiracy. BBM chats retrieved from the electronic devices from his co-accused clearly suggested that there was incriminating communication of precarious nature between him and Adil Thokar. Appellant had, on the directions of Omar @ Umar Iban Nazir, met one Abdullah Basith. Such Abdullah Basith was later arrested by NIA and the fact of there being a meeting between them was confirmed and substantiated by NIA. Motive of such meeting was to procure weapons for terrorist activity and the record of Shaka Guest House confirmed his such visit. appellant with his co-accused not only conspired to commit terrorist act but also procured weapons and in pursuit of their abominable objective for perpetuating terror, they both, on the direction of Adil Thokar and Umar Iban Nazir, arranged weapons through JCLs and came to Delhi via flight and even sent the images of recovered pistol to their handlers through BBM. The BBM chats from the electronic device of his coaccused clearly indicated that he was even discussing about the movement of Army in Kashmir which clearly exposes their nefarious design.

Legal Provisions:

Section 18 & 20 of UAPA- Punishment for Organizing Terrorist Camps-Anyone who engages in conspiracies, preparations, or attempts to organize a terrorist camp or provides encouragement, advice, or instigation for such activities shall be subject to imprisonment. The term of imprisonment shall not be less than five years, but it may extend to life imprisonment. Additionally, a fine may also be imposed. Punishment for Being a Member of a Terrorist Gang or Organization If an individual knowingly becomes a member of a terrorist gang, organization, or supports such entities, they shall be liable for punishment. The imprisonment term shall not be less than five years, but it may extend to life imprisonment. Furthermore, they may also be fined. Section 43D(5) of UAPA- makes it virtually hard to grant a bail.Section 10 of Evidence Act- pertains to the admissibility of evidence in cases involving conspiracy.

Issue:

  1. Whether in view of the fact that charges have already been framed and such charges have not been challenged by the appellant, whether bail plea can be considered and whether the court can go on to opine that there are no reasonable grounds for believing the accusation to be prima facie true?
  2. What should be the level of scrutiny for believing the same? Whether the appellant has been able to show that there is no prima facie case against him? Whether despite such statutory bar being in place and when prima facie is found to be made out, bail can still be granted in order to safeguard his fundamental rights.

Court analysis and Judgement:

The Hon’ble Supreme Court in Gurwinder Singh vs. State of Punjab & Anr. 2024 SCC On-Line SC 109, the impact of Section 43D (5) of UAPA was delineated and it was observed that the conventional idea in bail jurisprudence – bail is the rule and jail is the exception – does not find any place in UAPA. It further observed that exercise of general power to grant bail under UAPA is severely restrictive in scope. It went on to hold that in view of said statutory bar contained under Section 43D (5) of UAPA, if the
offences fall under Chapter IV and/or Chapter VI of UAPA and there are reasonable grounds for believing that the accusation is prima facie true, bail must be rejected as a rule. Gurwinder Singh (supra) also discussed National Investigation Agency v. Zahoor Ahmad Shah Watali: 2019 SCC On-Line SC 461 which lays down elaborate guidelines about the approach that the Courts must partake in, while considering bail application under UAPA. In context of the meaning attributable to “prima facie true‟, it observed that material collected by the investigating agency, on the face of it, must show the complicity of the accused in relation to the offence and must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. It also observed that at the stage of giving reasons for grant or rejection of bail, the elaborate examination or dissection of evidence was not required and the Court is merely expected to record a finding on the basis of broad probabilities. Thus, once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. Therefore, in such a situation, the task of any such accused becomes much more onerous and challenging as it is never going to be easy for anyone to satisfy that the same set of material, which compelled the court to frame charges on the basis of strong prima facie case, would persuade it to hold to the contrary, by declaring that such accusation was not prima facie true. Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive. Moreover, in view of specific observations made in National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) as elaborated in Gurwinder Singh (supra), Court can always consider such bail application, even after framing of charges, the rider being the onus on accused would be much more rigorous in such a situation. The first two facets stand answered accordingly. As per allegations appearing on record and facts and circumstances placed before the court, the appellant was continuously in touch with his co-accused, travelling with him and arranging weapons. He was in touch with militants as well and met one of them in Delhi. Conspiracy, as the cliché goes, is hatched in secrecy and very rarely, there would be any visible evidence suggesting clear-cut conspiracy. On most of the occasions, conspiracy has to be inferred by connecting dots from bunch of circumstances. Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of coconspirator to be relevant as against the others. Such action or statement can even be used for proving the existence of conspiracy. Thus, at this stage, appellant does not seem to be in any position to wriggle out of the statutory bar contained in proviso of Section 43D (5) of UAPA as there are clear-cut allegations which go on to indicate that accusation against him is prima facie true. This observation is based on broad probabilities and surface analysis of material collected by respondent. Each case has to be evaluated in the backdrop of its factual background. Moreover, in view of our forgoing discussion and material on record, the appellant seems part of conspiracy and when a full-fledged trial is already underway, we would refrain from embarking upon a mini-trial to dissect each circumstance, threadbare. The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind. In Arup Bhuyan v. State of Assam, (2023) 8 SCC 745, it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Moreover, the factum of connection and association with any banned outfit has to be inferred from the attendant circumstances and the activities of the person concerned. There will never be a tangible piece of evidence or any kind of documentary proof in this regard, particularly once any such organization is banned. Learned counsel for the appellant has prayed that accused has already undergone incarceration for more than 5 ½ years and trial is not likely to conclude in near future. It is argued that he was just 19 years of age when he was arrested and at that time, he was at an important threshold of his educational and professional career. It is argued that though case is already at the stage of trial and the prosecution has examined nine out of cited twenty-seven witnesses, there is no likelihood of case getting disposed of in near future and, therefore, on the strength of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it is prayed that despite the aforesaid statutory bar, Constitution Court can always grant bail so that the right of speedy trial and that of life and liberty do not stand defeated.
Thus, as per K.A. Najeeb (supra), despite the above statutory restriction contained in UAPA, the Constitutional Courts can consider grant of bail on the ground of violation of Part-III of the Constitution. However, in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there is nothing which may indicate that prosecution is acting in a manner which is detrimental to his fundamental rights as provided under Part-III of the Constitution of India. Trial Court Record does not suggest any deliberate attempt on the part of prosecution to slow down the trial and, therefore, at this juncture, merely because of the above incarceration period, the accused does not become entitled to bail. The learned trial court has already observed that it, being already conscious about such fundamental right of the accused, was taking up the matter diligently by giving shortest possible dates. Therefore, there is no further requirement of passing any further direction in this regard. 

“PRIME LEGAL is a full-service law firm that has won a national award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer”.

Judgement reviewed by- Parvathy P.V

Click here to read the judgement

1 2 3 … 6