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In Absence Of This Relevant Material Offence Under Section 11 Of P.C. Act Can’t Be Established: High Court Of Bombay

Title: Anil Goel v Union of India & Anr.

Citation: Criminal Revision Application No.183 Of 2023

Coram: Justice Bharati Dangre

Decided On: 25th OCTOBER, 2023

Introduction:

F.I.R.No.RC/18(A)/2015 dated 18/12/2015 is lodged by the CBI, ACB, Cochin for the offences punishable under Sections 7, 12, & 13(2) read with 13(1)(a) & (d) of the Prevention of Corruption Act, 1988. A primary charge-sheet was fled against the other accused persons named in the F.I.R. , leaving out the Applicant and even during the course of investigation from 2015 to 2019, he was never arrested. On 31/07/2019, C.B.I. fled the supplementary charge- sheet against the Applicant, accusing of committing an offence under Section 11 of the P.C. Act.

Facts:

The allegation levelled against him is that, while functioning as Chief Commissioner of Income Tax (CCIT) from the period between 01/01/2014 to 31/12/2015, he occupied a flat (guesthouse) belonging to M/s Heera Constructions, without payment of any rent. t is a claim of the C.B.I. that as M/s Heera Constructions fell within the assessment jurisdiction of the Applicant, the act of staying in the flat, without payment of rent, constitutes the offence under Section 11 of the P.C. Act.

The investigation had revealed that Heera Constructions had taken the subject flat used by it as guesthouse on lease from another private person. On being taken on lease, the lease rent was paid by it. The Applicant is alleged to have stayed in the Apartment, free of cost, by abusing the offcial position, as Chief Commissioner of Income Tax, Thiruvananthapuram. It is alleged that rent of Rs.4,40,000/- was paid by M/s Heera Constructions Pvt. Ltd. to the owner of the Apartment.

It is alleged that Heera Builders paid rent of Rs.20,000/- per month for the period from February 2014 to January 2015 (12 months) and Rs.25,000/- per month from February 2015 to September 2015 (8 months) i.e. Heera Builders paid total rent of Rs.4.4 lakhs to Mrs.Nanma Jayan for the stay of the Applicant in the flat.

The Applicant moved an application for his release on bail, post fling of the charge-sheet on the ground that, he was never arrested during investigation and the same is allowed by the Special Court for C.B.I. at Greater Bombay on 19/09/2022.

The Applicant came to Thiruvananthapuram as CCIT and his sub-ordinate i.e. the ITO showed him the flat, which he was to occupy. Apparently, he did not make any inquiries, unaware about the ownership of the flat or it’s possession. Counsel contended that if it is the allegation that he continued to reside free of cost, then why no notice was ever issued and in fact, the charge-sheet disclose that the service charge, as directed to be paid, was borne by the Applicant from January 2014 to November 2015.

Court’s Analysis and Judgement:

From reading Section 11 of P.C. Act it is evident that the act of a public servant, accepting or obtaining or attempting to obtain, either for himself or for any other person, any “valuable thing”, without consideration or for an inadequate consideration, from any person whom he knows to have been or to be likely to be concerned in any proceeding or business transacted or about to be transacted by the public servant or has any connect with his offcial position, then such an act would amount to an offence under Section 11.

But, In absence of this relevant material in the charge-sheet, which would constitute as a ground for presuming that the Applicant has committed the offence, the charge must be considered to be groundless, which is a same thing as saying that there is no ground for framing the charge.

Applicant occupied the flat, but has failed to pay the rent and this act is sufficient to make out a prima facie offence under Section 11 read with Section 12 of the P.C. Act though Accused No.2-Sarath was refused sanction and he was not charge-sheeted and, hence, the offence under Sections 34 and 120-B of the IPC is not made out. In absence of establishing that the flat has been enjoyed free of cost and it has a connect with the duty to be discharged by the Applicant in relation to the assessee, merely because a assessee fall within his jurisdiction, it cannot be said that the ingredients of Section 11 are made out. Hence the order dated 13/02/2023 was set aside by the court and the Applicant is discharged from Special Case No.751 of 2022.

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Written by- Sushant Kumar

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“Estoppel Denied: Court Upholds Ineligibility Criteria, Dismisses Writ Petition for District Judge Post”

Title: Trupti Mayee Patra vs. Registrar, Examination, Orissa High Court

Citation: W.P.(C) No. 35020 Of 2023

Coram: MR. JUSTICE D.DASH, MR. JUSTICE G. SATAPATHY

Decided on: 3-11-23

Introduction:

This case involves a writ petition presented through a hybrid arrangement (virtual/physical) mode. The petitioner seeks the extraordinary jurisdiction of the court under Articles 226 and 227 of the Constitution of India. The primary relief sought is a direction to the Opposite Party to include the petitioner in the list of eligible candidates for participating in the recruitment examination for the position of District Judge from the Bar, 2023. The specific demand is for the issuance of a fresh list to address the petitioner’s inclusion in the said examination

Facts:

The petitioner, initially enrolled as an advocate with the Orissa State Bar Council, practiced from 2004 to 2014. Subsequently, she joined as a Junior Clerk in the office of District & Sessions Judge, Malkangiri, surrendered her license in 2016, and later became an Assistant Public Prosecutor from March 13, 2018. The petitioner applied for the post of District Judge from the Bar in 2020, 2021, and 2022 but was unsuccessful.

In 2023, the High Court of Orissa issued an advertisement for the same post. The petitioner applied, but her eligibility was questioned, and she was found ineligible due to the requirement of seven years of continuous Bar practice. The respondent argues that the petitioner does not meet this criterion. The petitioner contends that having been allowed to sit for the examination in previous years, she should not be disqualified this time. The court notes the petitioner’s active practice from 2004 to 2014 but finds that she lacks seven years of continuous practice preceding her application.

The case revolves around the eligibility criteria outlined in Article 233 of Chapter-VI (subordinate Courts) of the Constitution of India, specifically Clause 2, governing the appointment of District Judges. The court has to determine whether the petitioner fulfils the necessary criteria for eligibility in the recruitment examination for the post of District Judge from the Bar.

Court analysis & judgement:

In this judgment, the court addresses the petitioner’s plea for inclusion in the eligibility list for the recruitment examination to the post of District Judge from the Bar. The petitioner relies on the principle of estoppel, arguing that having been allowed to appear in the examination in previous years, she should not be disqualified this time. The court dismisses this argument, emphasizing that the inadvertent allowance of a person to appear in an examination earlier, who was not eligible, does not confer a right to appear when the necessary eligibility criteria are not met. The court distinguishes the relied-upon decisions in Basanta Kumar Mohanty and N. Murugesan, stating that they are not applicable to the present case due to different contexts and statutory bars.

The judgment refers to the eligibility criteria stated in the advertisement by the High Court of Orissa, which requires candidates to have at least seven years of practice as an advocate as of April 1, 2023. The court concludes that the petitioner does not meet this criterion, rendering her ineligible for the examination.

The court cites the decisions of the Apex Court in Deepak Aggarwal and Dheeraj Mor, applying them to the present case. It asserts that the petitioner’s lack of continuous practice for seven years makes her ineligible. Consequently, the court upholds the decision of the Opposite Party (OP) to consider the petitioner ineligible for the post of District Judge, stating that it does not require interference. As a result, the writ petition is dismissed as devoid of merit, with no order as to costs.

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Legal Precision Prevails: Court’s Rigorous Analysis Leads to Quashing of Charges in Favor of Petitioners

Title: Ashutosh Tiwari, Kamlesh Shukla vs The State of M.P & Vikas Khare

Citation: MISC. CRIMINAL CASE No. 6138 of 2010

Coram: HON’BLE JUSTICE VISHAL DHAGAT

Decided on: 6-11-2023

Introduction:

The petitioners have filed a petition under Section 482 of the Criminal Procedure Code (Cr.P.C) seeking the quashing of proceedings in complaint case No. 218/2010. This case is currently pending before the Chief Judicial Magistrate in Shahdol. The counsel for the petitioners highlights that a stay over the proceedings was initially granted by the court on July 7, 2010, until the next date of hearing. Subsequently, this stay was continued on March 15, 2013, and May 2, 2014. However, after the latter date, the case was not listed before the court. The council requests a hearing for the case, emphasising that it has been pending before the court since 2010.

Facts:

The facts of the case are such that, The petitioners are seeking to quash proceedings in complaint case No.218/2010, where they are accused of offences under Section 294, 506(II) of IPC, and 3(1)(x) of SC & ST (POA) Act. The petitioner’s counsel argues that no offence is made out, emphasising that the alleged abusive remarks occurred in a school staff room, which is not a public place. They contend that the remarks don’t fall under Section 3(1)(x) of the Act as it requires a place within public view.

Furthermore, the defence asserts that Section 294 of IPC, which deals with obscene acts or utterances, applies only to public places. The government advocate argues that the staff room can be considered a public place as other teachers were present during the alleged incident. Respondent No.2, the complainant, is not actively pursuing the case, leading to the court proceeding ex parte.

The relevant sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Section 3(1)(x)), and the Indian Penal Code (Sections 294 and 503) are invoked in this case. The crux of the matter lies in whether the staff room is deemed a public place and if the alleged acts and utterances fulfil the legal criteria for the stated offences.

Court analysis and order:

The judgment in this case reflects the court’s consideration of the arguments presented by both the petitioners and the government advocate. Here is an analysis of the judgment: The court carefully examines the definitions provided in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Section 3(1)(x)), and the Indian Penal Code (Section 294 and 503). It emphasizes that for an offence under Section 3(1)(x) of the SC & ST (POA) Act, the act must occur in public view. The court addresses the crucial point of whether the staff room qualifies as a public place, asserting that the staff room is not within public view. Emphasis is placed on the restricted access to the staff room, stating that the common public or citizens cannot enter without school permission. The court extends its analysis to Section 294 of the IPC, highlighting that the alleged abuses did not take place in a public location, reiterating that the staff room does not qualify as a public place.

The judgment scrutinizes the complainant’s statement and notes the absence of any mention of alarm caused by the alleged threats. It concludes that an offence under Section 506 of IPC is not established. Based on the considerations above, the court allows the petition filed by the petitioners under Section 482 of Cr.P.C. The court quashes the proceedings in complaint Case No.218/2010 against the petitioners, involving charges under Section 294, 506(II) of IPC & 3(1)(x) of SC & ST (POA) Act.

The petition filed by the petitioners is allowed and disposed of. The judgment concludes by mentioning the issuance of a certified copy as per the rules. In summary, the court’s decision rests on the interpretation of relevant legal provisions and a meticulous examination of the circumstances surrounding the alleged offences. The finding is in favour of the petitioners, leading to the quashing of the proceedings.

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 Written By: Gauri Joshi

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Caste-Based Reservations and Affirmative Action: A Legal Outlook

Abstract

Caste-based reservations and affirmative action policies have been pivotal in addressing historical social inequalities in countries like India. This article provides a legal overview of the topic, focusing on the Indian context as a case study. Examining the constitutional framework, landmark Supreme Court judgments, and ongoing debates, the article explores the delicate balance between rectifying historical injustices and promoting meritocracy. As reservations evolve to include economic criteria and confront intersectionality, the legal landscape continues to shape the contours of affirmative action, necessitating ongoing dialogue and nuanced perspectives.

Introduction:

Caste-based reservations and affirmative action policies have been the subject of significant legal discourse and societal debate in many countries, particularly in the context of addressing historical social inequalities. This brief legal article aims to provide an overview of the legal aspects surrounding caste-based reservations and affirmative action. Caste-based reservations and affirmative action are social policies aimed at addressing historical inequalities and promoting inclusivity. Particularly prominent in countries like India, these measures involve preferential treatment for historically marginalized communities. Rooted in constitutional frameworks, the legal aspects surrounding these policies play a crucial role in shaping social dynamics and opportunities. This brief explores the legal landscape and societal implications of caste-based reservations and affirmative action.

Legal Framework in India:

In India, the Constitution provides for affirmative action measures through various provisions, most notably Articles 15(4) and 16(4), which empower the state to make special provisions for the advancement of socially and educationally backward classes. The concept of reservations was initially introduced to uplift the Scheduled Castes (SCs) and Scheduled Tribes (STs) who had historically faced social discrimination.

Over time, the scope of reservations expanded to include Other Backward Classes (OBCs) as well, as per the recommendations of the Mandal Commission. However, the implementation of reservations has faced legal challenges, with arguments centred around issues of equality, meritocracy, and the perpetuation of caste-based identities[1].

Legal Challenges and Supreme Court Judgments:

The Indian judiciary has played a crucial role in shaping the contours of caste-based reservations. Several landmark judgments have addressed the constitutional validity of reservation policies. In the case of Indra Sawhney v. Union of India (1992), the Supreme Court upheld the constitutional validity of reservations but imposed a cap of 50%, emphasizing the need to balance the interests of the reserved and unreserved categories.

The ‘creamy layer’ concept, introduced through subsequent judgments, aimed to exclude economically advanced individuals within reserved categories from the benefits of reservations, addressing concerns related to perpetuating social and economic disparities. The Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%.[2]

The Indian judiciary has significantly influenced the landscape of caste-based reservations through landmark judgments. In the pivotal case of Indra Sawhney v. Union of India (1992), the Supreme Court affirmed the constitutional validity of reservations while imposing a crucial limitation by capping it at 50%. This cap underscored the Court’s emphasis on striking a balance between the interests of reserved and unreserved categories.[3]

Subsequent judgments introduced the innovative ‘creamy layer’ concept, a mechanism designed to exclude economically affluent individuals within reserved categories from reservation benefits. This concept directly addresses concerns about perpetuating social and economic disparities within these communities. As a result, the judiciary has played a key role in refining reservation policies, ensuring they align with constitutional principles and promote a more equitable distribution of opportunities.

Ongoing Debates and Emerging Challenges:

While caste-based reservations have undoubtedly contributed to social upliftment, ongoing debates focus on the need for a more nuanced and dynamic approach. Critics argue that a static reservation system may perpetuate caste identities and hinder merit-based selection processes. Proponents, on the other hand, emphasize the historical injustices faced by certain communities and the continuing need for affirmative action.

The emergence of new challenges, such as intersectionality and the inclusion of economically backward sections, adds complexity to the debate. Striking a balance between rectifying historical injustices and promoting a meritocratic society remains a persistent challenge for policymakers and the judiciary. In the realm of caste-based reservations, the undeniable positive impact on social upliftment is countered by ongoing debates calling for a more nuanced and dynamic approach. Critics argue that a static reservation system risk perpetuating caste identities and potentially hindering merit-based selection processes. On the opposing side, proponents underscore the historical injustices faced by specific communities, asserting the ongoing necessity for affirmative action.

Adding complexity to the discourse are emerging challenges, such as the consideration of intersectionality and the inclusion of economically backward sections within the reservation framework. Achieving a delicate equilibrium between rectifying historical injustices and fostering a meritocratic society stands as a persistent challenge for both policymakers and the judiciary. As the dialogue unfolds, the need for a comprehensive and adaptable approach to affirmative action becomes increasingly apparent in navigating these intricate issues.

Conclusion:

Caste-based reservations and affirmative action are complex issues with far-reaching legal implications. While the legal framework in India acknowledges the need for affirmative measures, ongoing debates and legal challenges underscore the evolving nature of this issue. Achieving a delicate balance between social justice and meritocracy requires continual dialogue and a nuanced understanding of the diverse factors at play. Caste-based reservations and affirmative action, critical for addressing historical inequalities, pose complex challenges with profound legal implications. In India, the legal framework recognizes the imperative for affirmative measures, yet ongoing debates and legal challenges highlight the dynamic nature of this issue. Caste only cannot be the basis for reservation.[4]

Striking a delicate balance between social justice and meritocracy demands sustained dialogue and a nuanced understanding of diverse factors. Navigating this evolving landscape necessitates ongoing legal and societal discourse to ensure effective, fair, and adaptive policies.

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 falls 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.”

Written By: Gauri Joshi

[1] SCC Online

[2] Indian Kanoon- Indra Sawhney Etc. Etc vs Union Of India And Others

[3] Indian Express

[4] Case Mine

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“Courts Uphold Melsanthi Selection in Sabarimala: Petition Dismissed Amidst Scrutiny of Draw of Lots Process”

Title: MADHUSOODANAN NAMBOOTHIRI vs. STATE OF KERALA & ORS.

Citation: WP(C) NO. 35545 OF 2023

Coram: HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

Decided on: 9-11-23

Introduction:

In this case, the petitioner, who is a devotee of Lord Ayyappa and associated with the Sabarimala Sree Dharma Sastha Temple, has filed a writ petition under Article 226 of the Constitution of India. The petition challenges the selection of the 5th respondent as Melsanthi (chief priest) of the Sabarimala Temple for the year 1199 ME (2023-24). The case appears to involve a dispute related to the appointment or selection of the chief priest at the Sabarimala Temple, and the petitioner is seeking legal intervention to challenge and rectify the selection process. The specific grounds on which the petitioner challenges the selection and the details of the Ext.P2 list of candidates are not provided in the brief introduction.

Facts:

In this case, the petitioner, a devotee of Lord Ayyappa of Sabarimala Sree Dharma Sastha Temple, has filed a writ petition challenging the selection of the 5th respondent as Melsanthi (chief priest) of the temple for the year 1199 ME (2023-24). The petitioner seeks a writ of mandamus commanding the Travancore Devaswom Board and the Devaswom Commissioner to conduct the draw of lots for the selection of Melsanthi afresh, based on a specified list of candidates. The court took cognizance of the matter and, on November 1, 2023, viewed video clippings from ‘Asianet News’ regarding the draw of lots conducted in front of the Sanctum Sanctorum of Sabarimala Sree Dharma Sastha Temple on October 18, 2023. The court noted that the learned Standing Counsel for the Travancore Devaswom Board needed time to check if the CCTV footage of the draw of lots was available.

On November 2, 2023, the court viewed CCTV footage from the camera installed in the Sopanam of Sabarimala Sree Dharma Sastha Temple. The court directed the learned Standing Counsel to provide a copy of the video to the petitioner’s counsel on WhatsApp. It was observed that the statement of facts in the writ petition lacked specific allegations against the 5th respondent.

On November 3, 2023, the court issued notice on admission to the 5th respondent, and the notice was ordered to be served by a special messenger, returnable by November 7, 2023. On the said date, the 5th respondent entered appearance through counsel.

The court, after hearing arguments from various parties on November 8, 2023, noted that the petitioner argued for a detailed inquiry to determine if any foul play or irregularities occurred during the draw of lots. The petitioner contended that the selection of the 5th respondent was suspicious and should be canceled. The learned Standing Counsel for the Travancore Devaswom Board and the Senior Government Pleader supported the need for a fair and transparent process for drawing lots, considering the upcoming festival. The Senior Counsel for the 5th respondent argued that the writ petition lacked specific allegations against the 5th respondent to vitiate his selection.

The case seems to revolve around allegations of irregularities or impropriety in the draw of lots for selecting the Melsanthi of Sabarimala Sree Dharma Sastha Temple, and the court is considering the need for a detailed inquiry into these allegations. The petitioner contends that the selection process was suspicious, while the respondents argue for a fair and transparent process.

Court analysis and judgement:

In the case described, the court considered a writ petition challenging the selection of the 5th respondent as Melsanthi (chief priest) of Sabarimala Sree Dharma Sastha Temple for the year 1199 ME (2023-24). The petitioner raised concerns about the process of drawing lots for the selection and alleged impropriety by the Special Commissioner. The court noted that the paper containing the name of the 5th respondent and the one with the writing ‘Melsanthi’ were folded and rolled by the Special Commissioner with fingers but without using both palms, unlike the procedure followed for other candidates. The court also addressed the issue of returning the paper with the writing ‘Melsanthi’ before putting it in the second pot, explaining it as a standard practice. The court observed that both pots were shaken twice before and after entrusting them to the Melsanthi and Special Commissioner, causing some of the lots to unfold partially. The draw of lots was conducted by a small child considered a representative of the deity in the presence of the Observer appointed by the court, Board officials, and pilgrims.

After considering the pleadings, materials on record, video clippings, and CCTV footage, the court found no reason to interfere with the selection of the 5th respondent. The court rejected the challenge against the selection, even though it acknowledged that the first relief sought in the writ petition was not properly worded. The court also noted the presence of a large number of persons during the draw of lots, emphasizing that entry to the ‘Sopanam enclosure’ during such events should be limited to specific individuals, including the Special Commissioner, President of the Travancore Devaswom Board, Devaswom Commissioner, and the court-appointed Observer.

In conclusion, the court dismissed the writ petition, upholding the selection of the 5th respondent as Melsanthi, and issued directions regarding the regulation of entry to the ‘Sopanam enclosure’ during the draw of lots.

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