Monthly Archives: March 2014

SC pulls up Bengal for failure to protect rape victim’s rights: 28 March 2014

The court had taken a suo motu cognizance of the newspaper report which said that a 20-year-old woman in West Bengal’s Birbhum district was gang raped on dictates of the community panchayat as punishment for having relationship with a man from a different community.

The Supreme  Friday said that government failed to protect the fundamental rights of a village woman who was gang raped on the dictates of a community  over her relationship with a man from another community.

“Such offences are resultant of the state’s incapacity or inability to protect the fundamental rights of its citizens,” said a bench of Chief Justice P.Sathasivam, Justice S.A.Bobde and Justice N.V.Ramana in their judgment.

The court’s observation came as it awarded the victim compensation of Rs.5 lakh, over and above the amount of Rs. 50,000 that has already been announced by the state government.

Speaking for the bench, Chief Justice P.Sathasivam said that the “state is duty bound to protect the fundamental rights of its citizens and an inherent aspect of article 21 of the constitution would be the freedom of choice in marriage”.

The court said this while answering in affirmative the question whether the state police machinery could have possibly prevented the said occurrence.

“Ultimately, the question which ought to be considered and assessed by this court is whether the state police machinery could have possibly prevented the said occurrence. The response is certainly a ‘yes'”, said Chief Justice Sathasivam authoring the judgment.

“The crimes”, the court said, “are not only in contravention of domestic laws, but are also a direct breach of the obligations under the international law. India has ratified various international conventions and treaties, which oblige the protection of women from any kind of discrimination.”

However, “women of all classes are still suffering from discrimination even in this contemporary society. It will be wrong to blame only on the attitude of the people. Such crimes can certainly be prevented if the state police machinery work in a more organized and dedicated manner”.

Thus, the court said, “we implore upon the state machinery to work in harmony with each other to safeguard the rights of women in our country. As per the law enunciated – if the information discloses commission of a cognizable offence, the police officers are duty bound to register the same”.

Likewise, the court said all hospitals, public or private, whether run by the central government, the state government, local bodies or any other person, are statutorily obligated to provide the first-aid or medical treatment, free of cost, to the victims of any offence

The court had taken a suo motu cognizance of the newspaper report which said that a 20-year-old woman in West Bengal’s Birbhum district was gang raped on dictates of the community panchayat as punishment for having relationship with a man from a different community.

The incident on the intervening night of Jan 20/21, 2014 in of Subalpur village in Birbhum. The court took suo motu cognizance on Jan 24.

Holding that such crimes could only be curbed by long term societal changes, education and upliftment of women and sensitisation of police force on women-related issues, the court said: “No compensation can be adequate nor can it be of any respite for the victim but as the state has failed in protecting such serious violation of a victim’s fundamental right, the state is duty bound to provide compensation, which may help in the victim’s rehabilitation.”

http://www.business-standard.com/article/news-ians/sc-pulls-up-bengal-for-failure-to-protect-rape-victim-s-rights-114032800870_1.html

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SCI Judgment: SUO MOTU WRIT PETITION (CRIMINAL) NO. 24 OF 2014 In Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014

REPORTABLE  . . MARCH 28, 2014 Judgment
P. SATHASIVAM, CJI, SHARAD ARVIND BOBDE & N.V. RAMANA
IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

SUO MOTU WRIT PETITION (CRIMINAL) NO. 24 OF 2014

In Re: Indian Woman says gang-raped on orders of Village
Court published in Business & Financial News dated
23.01.2014

J U D G M E N T

P.Sathasivam, CJI.
1) This Court, based on the news item published in the
Business and Financial News dated 23.01.2014 relating to the
gang-rape of a 20 year old woman of Subalpur Village, P.S.
Labpur, District Birbhum, State of West Bengal on the
intervening night of 20/21.01.2014 on the orders of
community panchayat as punishment for having relationship
with a man from a different community, by order dated
24.01.2014, took suo motu action and directed the District
Judge, Birbhum District, West Bengal to inspect the place of occurrence and submit a report to this Court within a period
of one week from that date.
2) Pursuant to the direction dated 24.01.2014, the District
Judge, Birbhum District, West Bengal along with the Chief
Judicial Magistrate inspected the place in question and
submitted a Report to this Court. However, this Court, on
31.01.2014, after noticing that there was no information in the
Report as to the steps taken by the police against the persons
concerned, directed the Chief Secretary, West Bengal to
submit a detailed report in this regard within a period of two
weeks. On the same day, Mr. Sidharth Luthra, learned
Additional Solicitor General was requested to assist the Court
as amicus in the matter.
3) Pursuant to the aforesaid direction, the Chief Secretary
submitted a detailed report dated 10.02.2014 and the copies of
the same were provided to the parties. On 14.02.2014, this
Court directed the State to place on record the First
Information Report (FIR), Case Diaries, Result of the
investigation/Police Report under Section 173 of the Code of Criminal Procedure, 1973 (in short ‘the Code’), statements
recorded under Section 161 of the Code, Forensic Opinion,
Report of vaginal swab/other medical tests etc., conducted on
the victim on the next date of hearing.
4) After having gathered all the requisite material, on
13.03.2014, we heard learned amicus as well as Mr. Anip
Sachthey, learned counsel for the State of West Bengal
extensively and reserved the matter.
Discussion:
5) Mr. Sidharth Luthra, learned amicus having perused and
scrutinized all the materials on record in his submissions had
highlighted three aspects viz. (i) issues concerning the
investigation; (ii) prevention of recurring of such crimes; and
(iii) Victim compensation; and invited this Court to consider
the same.
Issues concerning the investigation:
6) Certain relevant issues pertaining to investigation were
raised by learned amicus. Primarily, Mr. Luthra stated that although the FIR has been scribed by one Anirban Mondal, a
resident of Labpur, Birbhum District, West Bengal, there is no
basis as to how Anirban Mondal came to the Police Station
and there is also no justification for his presence there.
Further, he stressed on the point that Section 154 of the Code
requires such FIR to be recorded by a woman police officer or a
woman officer and, in addition, as per the latest amendment
dated 03.02.2013, a woman officer should record the
statements under Section 161 of the Code. While highlighting
the relevant provisions, he also submitted that there was no
occasion for Deputy Superintendent of Police to re-record the
statements on 26.01.2014, 27.01.2014 and 29.01.2014 and
that too in gist which would lead to possible contradictions
being derived during cross-examinations. He also drew our
attention to the statement of the victim under Section 164 of
the Code. He pointed out that mobile details have not been
obtained. He also brought to our notice that if the Salishi
(meeting) is relatable to a village, then the presence of persons
of neighbouring villages i.e., Bikramur and Rajarampur is not explained. Moreover, he submitted that there is variance in
the version of the FIR and the Report of the Judicial Officer as
to the holding of the meeting (Salishi) on the point whether it
was held in the night of 20.01.2014 as per the FIR or the next
morning as per the Judicial Officer’s report, which is one of
the pertinent issues to be looked into. He also submitted that
the offence of extortion under Section 385 of the Indian Penal
Code, 1860 (in short ‘the IPC’) and related offences have not
been invoked. Similarly, offence of criminal intimidation
under Section 506 IPC and grievous hurt under Section 325
IPC have not been invoked. Furthermore, Sections 354A and
354B ought to have been considered by the investigating
agency. He further pointed out the discrepancy in the name of
accused Ram Soren mentioned in the FIR and in the Report of
the Judicial Officer which refers to Bhayek Soren which needs
to be explained. He also submitted that the electronic
documents (e-mail) need to be duly certified under Section 65A
of the Indian Evidence Act, 1872. Finally, he pointed out that the aspect as to whether there was a larger conspiracy must
also be seen.
7) Mr. Anip Sachthey, learned counsel for the State assured
this Court that the deficiency, if any, in the investigation, as
suggested by learned amicus, would be looked into and
rectified. The above statement is hereby recorded.
Prevention of recurring of such crimes:
8) Violence against women is a recurring crime across the
globe and India is no exception in this regard. The case at
hand is the epitome of aggression against a woman and it is
shocking that even with rapid modernization such crime
persists in our society. Keeping in view this dreadful increase
in crime against women, the Code of Criminal Procedure has
been specifically amended by recent amendment dated
03.02.2013 in order to advance the safeguards for women in
such circumstances which are as under:-
“154. Information in cognizable cases.—
(1) x x x

Provided that if the information is given by the woman
against whom an offence under Section 326A, Section 326B,
Section 354, Section 354A, Section 354B, Section 354C,
Section 354D, Section 376, Section 376A, Section 376B,
Section 376C, Section 376D, Section 376E, or Section 509 of
the Indian Penal Code is alleged to have been committed or
attempted, then such information shall be recorded, by a
woman police officer or any woman officer:
Provided further that:–
(a) in the event that the person against whom an offence
under Section 354, Section 354A, Section 354B, Section
354C, Section 354D, Section 376, Section 376A, Section
376B, Section 376C, Section 376D, Section 376E, or Section
509 of the Indian Penal Code is alleged to have been
committed or attempted, is temporarily or permanently
mentally or physically disabled, then such information shall
be recorded by a police officer, at the residence of the
person seeking to report such offence or at a convenient
place of such person’s choice, in the presence of an
interpreter or a special educator, as the case may be;
(2) x x x
(3) x x x”
“161.—Examination of witnesses by police:-
(1) x x x
(2) x x x
(3) x x x
Provided further that the statement of a woman against
whom an offence under Section 354, Section 354A, Section
354B, Section 354C, Section 354D, Section 376, Section
376A, Section 376B, Section 376C, Section 376D, Section
376E, or Section 509 of the Indian Penal Code is alleged to
have been committed or attempted shall be recorded, by a
woman police officer or any woman officer.”
“164.—Recording of confessions and statements.—
5A In cases punishable under Section 354, Section 354A,
Section 354B, Section 354C, Section 354D, sub-Section (1) or sub-Section (2) of Section 376, Section 376A, Section
376B, Section 376C, Section 376D, Section 376E, or Section
509 of the Indian Penal Code, the Judicial Magistrate shall
record the statement of the person against whom such
offence has been committed in the manner prescribed in
sub-Section (5), as soon as the commission of the offence is
brought to the notice of the police:”

“164 A. Medical examination of the victim of rape.- (1)
Where, during the stage when an offence of committing rape
or attempt to commit rape is under investigation, it is
proposed to get the person of the woman with whom rape is
alleged or attempted to have been committed or attempted,
examined by a medical expert, such examination shall be
conducted by a registered medical practitioner employed in a
hospital run by the Government or a local authority and in
the absence of such a practitioner, by any other registered
medical practitioner, with the consent of such woman or of a
person competent to give such consent on her behalf and
such woman shall be sent to such registered medical
practitioner within twenty-four hours from the time of
receiving the information relating to the commission of such
offence.

(2) The registered medical practitioner, to whom such woman
is sent shall, without delay, examine her person and prepare
a report of his examination giving the following particulars,
namely:–
(i) the name and address of the woman and of the person by
whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the
woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman; (v)
general mental condition of the woman; and (vi) other
material particulars in reasonable detail,
(3) The report shall state precisely the reasons for each
conclusion arrived at.
(4) The report shall specifically record that the consent of the
woman or of the person competent, to give such consent on
her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the
examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay
forward the report to the investigating officer who shall
forward it to the Magistrate referred to in section 173 as part
of the documents referred to in clause (a) of sub-section (5)
of that section.
(7) Nothing in this section shall be construed as rendering
lawful any examination without the consent of the woman or
of any person competent to give such consent on her behalf.
Explanation–For the purposes of this section, “examination”
and “registered medical practitioner” shall have the same
meanings as in section 53.”
9) The courts and the police officialss are required to be
vigilant in upholding these rights of the victims of crime as the
effective implementation of these provisions lies in their hands.
In fact, the recurrence of such crimes has been taken note of
by this Court in few instances and seriously condemned in the
ensuing manner.
10) In Lata Singh vs. State of U.P. and Ors., (2006) 5 SCC
475, this Court, in paras 17 and 18, held as under:
“17. The caste system is a curse on the nation and the
sooner it is destroyed the better. In fact, it is dividing the
nation at a time when we have to be united to face the
challenges before the nation unitedly. Hence, inter-caste
marriages are in fact in the national interest as they will
result in destroying the caste system. However, disturbing
news are coming from several parts of the country that
young men and women who undergo inter-caste marriage,
are threatened with violence, or violence is actually
committed on them. In our opinion, such acts of violence or
threats or harassment are wholly illegal and those who
commit them must be severely punished. This is a free and
democratic country, and once a person becomes a major he

…………….. Page 9 …. missing; as we are to copy & paste …. 

barbarism and feudal mentality. Moreover, these acts take
the law into their own hands, and amount to kangaroo
courts, which are wholly illegal.

13. Hence, we direct the administrative and police officials to
take strong measures to prevent such atrocious acts. If any
such incidents happen, apart from instituting criminal
proceedings against those responsible for such atrocities, the
State Government is directed to immediately suspend the
District Magistrate/Collector and SSP/SPs of the district as
well as other officials concerned and charge-sheet them and
proceed against them departmentally if they do not (1)
prevent the incident if it has not already occurred but they
have knowledge of it in advance, or (2) if it has occurred,
they do not promptly apprehend the culprits and others
involved and institute criminal proceedings against them, as
in our opinion they will be deemed to be directly or indirectly
accountable in this connection.”
12) Likewise, the Law Commission of India, in its 242nd
Report on Prevention of Interference with the Freedom of
Matrimonial Alliances (in the name of Honour and Tradition)
had suggested that:
“11.1 In order to keep a check on the high-handed and
unwarranted interference by the caste assemblies or
panchayats with sagotra, inter-caste or inter-religious
marriages, which are otherwise lawful, this legislation has
been proposed so as to prevent the acts endangering the
liberty of the couple married or intending to marry and their
family members. It is considered necessary that there should
be a threshold bar against the congregation or assembly for
the purpose of disapproving such marriage / intended
marriage and the conduct of the young couple. The members
gathering for such purpose, i.e., for condemning the
marriage with a view to take necessary consequential action,
are to be treated as members of unlawful assembly for which
a mandatory minimum punishment has been prescribed.

11.2 So also the acts of endangerment of liberty including
social boycott, harassment, etc. of the couple or their family
members are treated as offences punishable with mandatory
minimum sentence. The acts of criminal intimidation by
members of unlawful assembly or others acting at their
instance or otherwise are also made punishable with
mandatory minimum sentence.

11.3 A presumption that a person participating in an
unlawful assembly shall be presumed to have also intended
to commit or abet the commission of offences under the
proposed Bill is provided for in Section 6.

11.4 Power to prohibit the unlawful assemblies and to take
preventive measures are conferred on the Sub-Divisional /
District Magistrate. Further, a SDM/DM is enjoined to
receive a request or information from any person seeking
protection from the assembly of persons or members of any
family who are likely to or who have been objecting to the
lawful marriage.

11.5 The provisions of this proposed Bill are without
prejudice to the provisions of Indian Penal Code. Care has
been taken, as far as possible, to see that there is no
overlapping with the provisions of the general penal law. In
other words, the criminal acts other than those specifically
falling under the proposed Bill are punishable under the
general penal law.

11.6 The offence will be tried by a Court of Session in the
district and the offences are cognizable, non-bailable and
non-compoundable.

11.7 Accordingly, the Prohibition of Interference with the
Freedom of Matrimonial Alliances Bill 20 has been prepared
in order to effectively check the existing social malady.”

13) It is further pertinent to mention that the issue relating
to the role of Khap Panchayats is pending before this Court in
Shakti Vahini vs. Union of India and Others in W.P. (C) No.
231 of 2010.

14) Ultimately, the question which ought to consider and
assess by this Court is whether the State Police Machinery
could have possibly prevented the said occurrence. The
response is certainly a ‘yes’. The State is duty bound to protect
the Fundamental Rights of its citizens; and an inherent aspect
of Article 21 of the Constitution would be the freedom of choice
in marriage. Such offences are resultant of the States
incapacity or inability to protect the Fundamental Rights of its
citizens.
15) In a report by the Commission of Inquiry, headed by a
former Judge of the Delhi High Court Justice Usha Mehra
(Retd.), (at pg. 86), it was seen (although in the context of the
NCR) that police officers seldom visit villages; it was suggested
that a Police Officer must visit a village on every alternate days
to “instill a sense of security and confidence amongst the
citizens of the society and to check the depredations of
criminal elements.”
16) As a long-term measure to curb such crimes, a larger
societal change is required via education and awareness.

Government will have to formulate and implement policies in
order to uplift the socio-economic condition of women,
sensitization of the Police and other concerned parties towards
the need for gender equality and it must be done with focus in
areas where statistically there is higher percentage of crimes
against women.
Victim Compensation:
17) No compensation can be adequate nor can it be of any
respite for the victim but as the State has failed in protecting
such serious violation of a victim’s fundamental right, the
State is duty bound to provide compensation, which may help
in the victim’s rehabilitation. The humiliation or the reputation
that is snuffed out cannot be recompensed but then monetary
compensation will at least provide some solace.
18) In 2009, a new Section 357A was introduced in the Code
which casts a responsibility on the State Governments to
formulate Schemes for compensation to the victims of crime in
coordination with the Central Government whereas,

previously, Section 357 ruled the field which was not
mandatory in nature and only the offender can be directed to
pay compensation to the victim under this Section. Under the
new Section 357A, the onus is put on the District Legal Service
Authority or State Legal Service Authority to determine the
quantum of compensation in each case. However, no rigid
formula can be evolved as to have a uniform amount, it should
vary in facts and circumstances of each case. In the case of
State of Rajasthan vs. Sanyam, Lodha, (2011) 13 SCC 262,
this Court held that the failure to grant uniform ex-gratia relief
is not arbitrary or unconstitutional. It was held that the
quantum may depend on facts of each case.
19) Learned amicus also advocated for awarding interim
compensation to the victim by relying upon judicial
precedents. The concept of the payment of interim
compensation has been recognized by this Court in
Bodhisattwa Gautam vs. Miss Subhra Chakraborty, (1996)
1 SCC 490. It referred to Delhi Domestic Working Women’s
Forum vs. Union of India and others to reiterate the centrality of compensation as a remedial measure in case of
rape victims. It was observed as under:-
“If the Court trying an offence of rape has jurisdiction to
award the compensation at the final stage, there is no reason
to deny to the Court the right to award interim compensation
which should also be provided in the Scheme.”
20) This Court, in P. Rathinam vs. State of Gujarat, (1994)
SCC (Crl) 1163, which pertained to rape of a tribal woman in
police custody awarded an interim compensation of Rs.
50,000/- to be paid by the State Government. Likewise, this
Court, in Railway Board vs. Chandrima Das, (2000) 2 SCC
465, upheld the High Court’s direction to pay Rs. 10 lacs as
compensation to the victim, who was a Bangladeshi National.
Further, this Court in SLP (Crl.) No. 5019/2012 titled as
Satya Pal Anand vs. State of M.P., vide order dated
05.08.2013, enhanced the interim relief granted by the State
Government from Rs. 2 lacs to 10 lacs each to two girl victims.
21) The Supreme Court of Bangladesh in The State vs. Md.
Moinul Haque and Ors. (2001) 21 BLD 465 has interestingly
observed that “victims of rape should be compensated by
giving them half of the property of the rapist(s) as compensation in order to rehabilitate them in the society.” If
not adopting this liberal reasoning, we should at least be in a
position to provide substantial compensation to the victims.
22) Nevertheless, the obligation of the State does not
extinguish on payment of compensation, rehabilitation of
victim is also of paramount importance. The mental trauma
that the victim suffers due to the commission of such heinous
crime, rehabilitation becomes a must in each and every case.
Mr. Anip Sachthey, learned counsel for the State submitted a
report by Mr. Sanjay Mitra, Chief Secretary, dated 11.03.2014
on the rehabilitation measures rendered to the victim. The
report is as follows:-
“GOVERNMENT OF WEST BENGAL
HOME DEPARTMENT
Report on the Rehabilitation Measures
Reference: Suo Motu Writ Petition No. 24 of 2014
Subject: PS Labpur, District Birbhum, West Bengal Case No.
14/2014 dated 22.01.2014 under section 376D/341/506
IPC.
In compliance with the order passed by the Hon’ble
Supreme Court during the hearing of the aforesaid case on
4th March, 2014, the undersigned has reviewed the progress
of rehabilitation measures taken by the State Government agencies. The progress in the matter is placed hereunder for
kind perusal.
1. A Government Order has been issued sanctioning an
amount of Rs.50,000/- to the victim under the Victim
Compensation Scheme of the State Government. It is
assured that the amount will be drawn and disbursed
to the victim within a week.
2. Adequate legal aid has been provided to the victim.
3. ‘Patta’ in respect of allotment of a plot of land under ‘Nijo
Griha Nijo Bhumi Scheme’ of the State Government
has been issued in favour of the mother of the victim.
4. Construction of residential house out of the fund under
the scheme ‘Amar Thikana’ in favour of the mother of
victim has been completed.
5. Widow pension for the months of January, February and
March, 2014 has been disbursed to the mother of the
victim.
6. Installation of a tube well near the residential house of
the mother of the victim has been completed.
7. Construction of sanitary latrine under TSC Fund has
been completed.
8. The victim has been enrolled under the Social Security
Scheme for Construction Worker.
9. Antyodaya Anna Yojna Card has been issued in favour of
the victim and her mother.
10. Relief and Government relief articles have been
provided to the victim and her family.
The State Government has taken all possible
administrative action to provide necessary assistance to
the victim which would help her in rehabilitation and
reintegration.

(Sanjay Mitra)
Chief Secretary”

23) The report of the Chief Secretary indicates the steps
taken by the State Government including the compensation
awarded. Nevertheless, considering the facts and
circumstances of this case, we are of the view that the victim
should be given a compensation of at least Rs. 5 lakhs for
rehabilitation by the State. We, accordingly, direct the
Respondent No. 1 (State of West Bengal through Chief
Secretary) to make a payment of Rs. 5 lakhs, in addition to the
already sanctioned amount of Rs. 50,000, within one month
from today. Besides, we also have some reservation
regarding the benefits being given in the name of mother of the
victim, when the victim herself is a major (i.e. aged about 20
years). Thus, in our considered view, it would be appropriate
and beneficial to the victim if the compensation and other
benefits are directly given to her and accordingly we order so.
24) Further, we also wish to clarify that according to Section
357B, the compensation payable by the State Government
under Section 357A shall be in addition to the payment of fine
to the victim under Section 326A or Section 376D of the IPC.

25) Also, no details have been given as to the measures taken
for security and safety of the victim and her family. Merely
providing interim measure for their stay may protect them for
the time being but long term rehabilitation is needed as they
are all material witnesses and likely to be socially ostracized.
Consequently, we direct the Circle Officer of the area to
inspect the victim’s place on day-to-day basis.

Conclusion:
26) The crimes, as noted above, are not only in contravention
of domestic laws, but are also a direct breach of the
obligations under the International law. India has ratified
various international conventions and treaties, which oblige
the protection of women from any kind of discrimination.
However, women of all classes are still suffering from
discrimination even in this contemporary society. It will be
wrong to blame only on the attitude of the people. Such crimes
can certainly be prevented if the state police machinery work in a more organized and dedicated manner. Thus, we implore
upon the State machinery to work in harmony with each other
to safeguard the rights of women in our country. As per the
law enunciated in Lalita Kumari vs. Govt. of U.P & Ors
2013 (13) SCALE 559, registration of FIR is mandatory under
Section 154 of the Code, if the information discloses
commission of a cognizable offence and the Police officers are
duty bound to register the same.
27) Likewise, all hospitals, public or private, whether run by
the Central Government, the State Government, local bodies or
any other person, are statutorily obligated under Section 357C
to provide the first-aid or medical treatment, free of cost, to the
victims of any offence covered under Sections 326A, 376,
376A, 376B, 376C, 376D or Section 376E of the IPC.
28) We appreciate the able assistance rendered by Mr.
Sidharth Luthra, learned ASG, who is appointed as amicus
curiae to represent the cause of the victim in the present case.

29) With the above directions, we dispose of the suo motu
petition.
……….…………………………CJI.
(P. SATHASIVAM)

………….…………………………J.
(SHARAD ARVIND BOBDE)

………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
MARCH 28, 2014.

http://sci.nic.in/outtoday/WR24.pdf

 

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SCI Judgment in ” ORDER Dated 28/03/2014: S.L.P(C)No.25027 OF 2013 BOARD OF CONTROL FOR CRICKET VS CRICKET ASSOCIATION OF BIHAR & ORS ”

SLP(C) NO.25027 of 2013

ITEM NO.55 COURT NO.5 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).25027/2013
(From the judgement and order dated 30/07/2013 in PIL No.55/2013
of The HIGH COURT OF JUDICATURE AT BOMBAY)
BOARD OF CONTROL FOR CRICKET Petitioner(s)
VERSUS
CRICKET AASOCIATION OF BIHAR & ORS. Respondent(s)
(With application for urging additional grounds, permission to
file additional documents, prayer for interim relief and office
report)
WITH SLP(C) NO. 26633 of 2013
[CRICKET ASSOCIATION OF BIHAR V. BOARD OF CONTROL FOR CRICKET IN
INDIA & ORS.]
(With application for amendment of the petition, directions,
intervention prayer for interim relief and office report)
Date: 28/03/2014 These Petitions were called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE A.K. PATNAIK
HON’BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
For Petitioner/
Applicant Ms. Harish N. Salve, Sr. Adv.
Mr. Gagan Gupta, Adv.
Mr. Chandrashekhar Verma, Adv.
In SLP 25027 Mr. C.A. Sundaram, Sr. Adv.
Ms. Radha Rangaswamy, Adv.
Ms. Rohini Musa, Adv.
Mr. P.R. Raman, Adv.
Ms. Akhila Kaushik, Adv.
Ms. S.P. Arthi, Adv.
For Applicant (s)SLP(C) NO.25027 of 2013

in IA 5 Mr. Maninder Singh, Sr. Adv.
Mr. Tejveer Singh, Adv.
Mr. Gaurav Sharma, Adv.
For Respondent(s)
For BCCI Mr. C.A. Sundaram, Sr. Adv.
Ms. Radha Rangaswamy, Adv.
Ms. Rohini Musa, Adv.
Mr. P.R. Raman, Adv.
Ms. Akhila Kaushik,
Ms. S.P. Arthi, Adv.
For RR 2 Mr. Sandeep Sethi, Adv.
Mr. Hari Shankar K., Adv.
Mr. Aditya Verma, Adv.
Mr. Anshuman Upadhyay, Adv.
For RR 3 Mr. Mukul Rohatgi, Sr. Adv.
Mr. S. Ganesh, Sr. Adv,.
Mr. T.K. Bhaskar, Adv.
Mr. K. Harishankar, Adv.
Ms. Lakshmi Shankar, Adv.
Mr. Aditya Verma, Adv.
Mr. Anshuman Upadhyay, Adv.
Mr. Vikas Singh Jangra, Adv.
For RR 4 Mr. Vikash Singh, Sr. Adv.
Mr. Anish Dayal, Adv.
Mr. Siddharth Vaid, Adv.
Mr. Anshuman Srivastava, Adv.
Ms. Tamali Wad, Adv.
For RR in 25027
– CAB Mr. Harish N. Salve, Sr. Adv.
Mr. Gagan Gupta, Adv.
Mr. Chandrashekhar Verma, Adv.
Mr. T.R. Andhiyarujina, Sr. Adv.
Mr. Mukul Rohatgi, Sr. Adv.
Mr. Amol Chitale, Adv.
Ms. Pragya Baghel, Adv.
Mr. Shomik, Adv.
UPON hearing counsel the Court made the following

O R D E R

Leave granted.
These two civil appeals arise out of PILSLP(C) NO.25027 of 2013 Petition No.55 of 2013 filed in the Bombay High Court by the Cricket Association of Bihar. In the PIL before the Bombay High Court, serious allegations of betting and spot fixing in IPL 2013 have been made against Mr. Gurunath Meiyappan as the alleged Team Principal of Chennai Super Kings and also allegations of betting have been made against the Part-Team Owner of IPL Franchisee – Rajasthan Royals.
The team owner of Chennai Super Kings is India Cements Limited of which Mr. N. Srinivasan, the President of the Board of Control for Cricket in
India [for short ‘the BCCI’], is the Managing Director and Mr. Gurunath Meiyappan is the son-in-law of Mr. N. Srinivasan.

We have heard these matters in part and posted these matters for further hearing to 16th April, 2014 and it will take some more days after 16th April,
2014 for hearing to be completed and for judgment to be delivered.

Mr. N. Srinivasan, the President of the BCCI, has made a written offer through his counsel that till investigation into which the allegations against him is completed he will not discharge any of the functions of the President of the BCCI.

SLP(C) NO.25027 of 2013

Mr. Harish N. Salve, learned Senior Counsel appearing for the Cricket Association of Bihar, however, submitted that no further investigation
into the allegations against Mr. Srinivasan is necessary as the findings of the IPL Probe Committee appointed by this Court and the materials relied on
by the said Committee for the findings are sufficient for this Court to remove Mr. Srinivasan from the post of the President of BCCI as prayed in the PIL filed before the Bombay High Court.
As we are yet to hear all the parties in these matters, we cannot at this stage form any opinion and pass orders on the basis of such opinion for removal of Mr. Srinivasan from the post of the President of the BCCI.
The IPL 2014 is, however, scheduled to commence on 16th April, 2014 and we have to pass interim orders to ensure that all those who love cricket
continue to watch cricket in IPL 2014 and the matches are played by the players in accordance with the IPL Rules.
Considering the fact that Mr. Sunil Gavaskar was a cricket player of great repute and eminence, a captain of the Indian Cricket team for a long period
and has a wide experience in cricket relatedSLP(C) NO.25027 of 2013
activities and of men and matters, we appoint him, as an interim measure, to function as and exercise the powers of the President of the BCCI in relation
to the IPL, 2014 till we hear and deliver the judgment in these matters. We make it clear that with regard to all other matters of BCCI, the senior most Vice-President of the BCCI, Mr. Shiv Lal Yadav, will discharge the functions of the President of the BCCI.

We also direct that till we deliver the judgment, none of the employees of India Cement Limited or its associate companies (except cricket players or commentators) will perform any of the duties assigned to them by the BCCI and the Interim President, Mr. Sunil Gavaskar, will have power to engage the services of such persons on whom he has confidence for work in connection with the IPL 2014.

We also direct that it is for Mr. Gavaskar to decide as to whether Mr. Sundar Raman, Chief IPL Operator would continue in the IPL, 2014 or some other arrangement has to be made in his place. In case of any difficulty, Mr. Gavaskar may apply to this Court for appropriate orders.

Mr. Gavaskar will not work as a Commentator during this period as an Interim President of theSLP(C) NO.25027 of 2013 BCCI in relation to IPL matters and he will be adequately compensated for his loss of income for this period by the BCCI. The compensation amount will be determined after the Court resumes hearing on 16th April, 2014. We make it clear that we have not passed any
order preventing any player or any team from participating in the IPL Tournament 2014.

List for further hearing on 16th April, 2014 on the top of the Board.

[KALYANI GUPTA]
COURT MASTER
[SHARDA KAPOOR]
COURT MASTER

http://sci.nic.in/outtoday/sc250272013.pdf

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JUSTICE LODHA TO BE NEXT CJI on April 26, 2014: 30 March 2014

NEW DELHI : Jodhpur-born Justice R M Lodha, the seniormost judge of the Supreme Court, will be the next Chief Justice of India, the 41st, to succeed Chief Justice P Sathasivam on his retirement on April 26.

Justice Lodha, whose father S K Mal Lodha, was also a judge of the Rajasthan High Court, however, will have a short tenure of only five months as he turns 65, the retirement age for the Apex Court judges, on September 27. He will be succeeded by the Karnataka-born Justice H L Dattu who will have the term as the CJI up to December 2, 2015. Both had joined the Supreme Court on the same date on December 17, 2008.

Besides CJI Sathasivam and Justice Lodha, nine of the 30 Supreme Court judges will be retiring this year and they include Justice A K Patnaik, who headed the forest bench, on June 2 and Justide Surinder Singh Nijjar on the same bench four days later on June 6.

Other judges retiring this year are: Ms Gyas Sudha Misra (Apr 27), K S Panicker Radhakrishnan (May 14), Balbir Singh Chauhan (July 1), Chandramauli Kumar Prasad (July 14) and Ms Ranjana Prakash Desai (Oct 29).

Justice Lodha, whose name has been recommended for elevation by CJI Sathasivam, had become a judge in the Rajasthan High Court on January 31, 1994 and shifted to the Bombay High Court 16 days later to spend the next 13 years there as a judge before retransfer to the Rajasthan High Court in February 2007. He was sworn in as the Chief Justice of the Patna High Court on May 13, 2008.

His landmark judgments included no government approval needed by CBI for probing and prosecuting the senior bureaucrats in the cases of corruption monitored by the court, and ban on over-the-counter sale of acid at retail shops and compensation of Rs 3 lakh to each acid attack victim. Justice Lodha also headed a 3-member panel that probed the allegations of a law interm against a former Supreme Court judge A K Ganguly and indicted him for the “unwelcome behaviour.” The report resulted in Justice Ganguly resign as the chairman of the West Bengal Human Rights Commission.

Justice Dattu, who will succeed Justice Lodha, had become a judge of the Karnataka High Court in December 1995. He became the Chief Justice of the Chhattisgarh High Court in February 2007 and moved in the same capacity to the Kerala High Court in May 2007.

….  | 

http://freepressjournal.in/justice-lodha-to-be-next-cji/

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SCI: Cal HC Justice B.P. Banerjee Vs Jyoti Basu: Site Forefeited:

Supreme Court of India: Un-Holy Nerxus of Cal HC Judge With W.B. CM: for a Plot of Land ‘During hearing of WP against WB Govt”!
Crux: Since the issue involves in the present controversy will have far reaching impact on the quality of judiciary, we are tempted to put it on record which we thought it to be a good guidance to achieve the purity of Administration of Justice. Every human being has his own ambition in life. To have an ambition is virtue. Generally speaking, it is a cherished desire to achieve something in life. There is nothing wrong in a Judge to have ambition to achieve something, but if the ambition to achieve is likely to cause compromise with his divine judicial duty, better not to pursue it. Because if a judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be tendency to compromise between his divine duty and his personal interest. There will be conflict in between interest and duty. This is what exactly has happened in this case. With due respect to the learned Judge, Justice B.P. Banerjee, he has mis-used his divine judicial duty as liveries to accomplish his personal ends. He has betrayed the trust reposed in him by the people. To say the least, this is bad. The matter could have been different if the learned Judge got allotment from the Chief Minister’s quota simpliciter like any other citizen.
Author: Sema
Bench: S Variava, H Sema

CASE NO.:

Appeal (civil) 6707 of 1999

PETITIONER:

Tarak Singh & Anr.

RESPONDENT:

Jyoti Basu & Ors.

DATE OF JUDGMENT: 19/11/2004

BENCH:

S.N. VARIAVA & H.K. SEMA

JUDGMENT:

J U D G M E N T

WITH

WRIT PETITION ( C ) NO. 216 OF 1999

Dipak K. Ghosh

Versus

State of West Bengal & Ors.

SEMA,J.

PREFACE

1. “My son, do not forget my law, but let your heart keep my commands. Let not justice and truth forsake you, bind them around your neck, write them on the tablet of your heart.”

2. Writ Petition No. 216/1999 has been filed by a public spirited person in the form of Public Interest Litigation (PIL) inter-alia challenging the allotment of Government land in Salt Lake City, Calcutta from the discretionary quota of the Chief Minister. A writ in the nature of mandamus was specifically prayed for quashing of the allotments of Government Land, stated to be made unconstitutionally, illegally, arbitrarily, whimsically, capriciously with malafide motive and in clandestine manner and/or in colourable and arrogant exercise of power, being violative of Article 14 of the Constitution.

3. In the original petition, the allottees of the land were not arrayed as party respondents. I.A. No. 2 was filed for impleadment of respondent Nos. 8 to 38. However, by our order dated 13.11.2003, we allowed only the impleadment of respondent No. 24  Justice B.P. Banerjee as party respondent. The order reads: “Mr. A.K. Ganguli, learned senior counsel started his arguments at 10.35 A.M. and

concluded at 11.15 A.M.

Application to join Justice B.P. Banerjee (retired) as a party respondent to the Writ Petition is allowed. Reply, if any, be filed within six weeks from the date of service. I.A. No. 2 stands disposed of with no further or other order.

The High Court of Calcutta to forward to this Court papers and proceedings in CO No.

7553(W) of 1986 titled Bidhannagar (Salt Lake) Welfare Association and Ors. Vs. State of West Bengal and Others including all order sheets. The High Court to also inform this Court whether CO No. 15381 of 1984 has been disposed of and if not at what stage it is. The Government to produce all relevant files pertaining to the allotment of a plot to Justice B.P. Banerjee (retired) and to state on affidavit whether there is any policy decision regarding allotment of plots to Judges, if so, to produce that policy decision.

List these matters after eight weeks”

4. Pursuant to the aforesaid order, respondent No. 24 filed two counter affidavits  first affidavit on 16th January, 2004 and supplementary affidavit on 16th April, 2004, which we shall be dealing with at an appropriate time.

5. The documents produced and the order passed thereunder would clearly establish an unholy nexus between duty and interest.

6. C.O. No. 7553(W) of 1986 titled Bidhannagar (Salt Lake) Welfare Association & Ors. Vs. State of West Bengal and Ors. was listed before Justice B.P. Banerjee on 20.6.1986, when he passed the following order:

“Let the affidavit in opposition be filed within two weeks from date; reply thereto, if any one week thereafter. Let this matter come up for hearing four weeks hence. Until for the orders there will be an order to the extent that if any allotment is made on the basis of the deviation made from the Master Plan the same shall abide by the result of the application.”

7. On the same day, i.e. on 20.6.1986, Justice Banerjee made an application before the Chief Minister for allotment of a plot of land in Salt Lake City. It is not clear whether the application was made before he took cognizance of the matter or after. If made before he should have recused himself from the case. If he dealt with the matter first he should not have made the application. But, instead, the learned Judge kept the matter with him, pursued it and passed subsequent orders till the allotment order was made in his favour from the discretionary quota of the Chief Minister and even thereafter.

On 8.6.1987 following order was passed: “Let the main matters appear in the list as for orders on Thursday next at 3 p.m. In the meantime there will be an interim order as follows:

No further allotment of any land in the Salt Lake City Area will be made without the leave of this Court.

Petitioners are directed to serve a copy of the writ appeal along with the copy of the above

application and a plain copy of this order upon the Learned Advocate General forthwith.

Let a plain copy of this order, duly counter signed by an Officer of this Court be given to the Learned Advocate for the parties.”

On 11.6.1987 following order was passed: “Let the main writ application come up for hearing on June 17, 1987 at 2 p.m. In the meantime the interim order passed on June 8, 1987 is varied to the extent that the said order will not prevent the Chief Minister to make allotment of plot in Salt Lake City Area from its own Quota according to his own discretion.

Let the plain copy of this order duly

countersigned by an Officer of this Court be given to the Learned Advocates for the parties appearing.”

On 17.6. 1987 following order was passed. “Let the application for taking additional ground and acceptance of additional evidence filed in Court today be kept in record. Let the affidavit in opposition, if any, to the said application affirmed by Sudhir Chandra De on June 16, 1987, if any, be filed within three weeks from date, reply if any, one week thereafter and let the application come up for hearing on July 16, 1987 at 2 p.m.” (emphasis supplied)

8. No hearing had taken place on 16.7.1987 as ordered. No order was also passed in the order sheet, on the other hand Justice B.P. Banerjee again wrote a letter to the Chief Minister. The letter dated 16th July, 1987 is reproduced in extenso:-

“Hon’ble Mr. Justice

Bhagabati Prasad Banerjee

Dated the 16th July, 1987

To

Shri Jyoti Basu

Hon’ble Chief Minister

Of the State of West Bengal

Writers’ Building,

Calcutta

Dear Sir,

This is to inform you that I have no landed property in the State of West Bengal or

elsewhere and I am in dirth of accommodation. I have not applied for allotment of any land as yet. I shall be happy if you kindly allot me a suitable plot of land measuring about 4 to 5 cottahs in Salt Lake City from the reserved quota under your disposal.

Thanking you,

Yours faithfully,

Sd/-

Bhagabati Prasad Mukherjee

C.C.

Mr. Naranaryan Gupta

Bar-at-Law

Advocate General

State of West Bengal”

 

9. It will be noticed that the deponent has not referred to his application dated 16th July, 1987 addressed to the Chief Minister in his first counter affidavit. He has sought to explain this in his supplementary affidavit that his omission to mention about his application of 16.7.86 (it is dated 16.7.87) in his earlier affidavits is bonafide as he did not have a copy of the application in his file. Such a defence from a person, no other than the Judge of the High Court, is unacceptable. Learned Judge would remember the petition filed by him on 20.6.86 but not 16th July, 1987. Be that as it may, the letter dated 16th July, 1987, which is available on record sent by the Government in file No. SL(AL)/SP-1049/87, is admitted. This letter has great significance. It was followed by an order of allotment passed by the Chief Minister on 24.7.1987, in favour of Justice B.P. Banerjee.

10. Pursuant to our order dated 13.11.2003 and subsequent orders, the High Court has furnished the necessary informations, including the Cause Lists pertaining to CO No. 7553(W) of 1986. It is revealed from the Cause Lists and the record, submitted by the High Court, that the case was listed before Justice B.P. Banerjee after 16.7.1987 on 20.7.1987, 22.7.1987, 23.7.1987, 24.7.1987, 27.7.1987, 28.7.1987, 29.7.1987, 30.7.1987, 11.8.1987, 21.8.1987, 24.8.1987, 25.8.1987, 26.8.1987 and 27.8.1987. The High Court further clarified that on all these dates the matter was listed before Court No. 9, which was presided over by Justice B.P. Banerjee and it was kept as part-heard. The High Court record also disclosed that the matter was kept part-heard throughout till the Judge retired in 1998.

11. Curiously enough, on 24.7.1987, the Chief Minister passed an order allotting a plot of land in favour of Justice B.P. Banerjee from his discretionary quota in Salt Lake City, in which the name of Justice Banerjee appeared at Sl. No. 1, and on the same day also the matter was listed before Justice Banerjee. Formal allotment of plot of land bearing No. FD-429 measuring 4 Cottahs in Salt Lake City, Calcutta was made on 16.10.1987 and till his retirement in 1998, the matter was kept by Justice B.P. Banerjee.

12. The facts, as recited aforesaid, speak for themselves. The facts speak volumes that the learned Judge has misused his judicial function as liveries to obtain personal interest is clearly discernable.

13. We will now proceed to deal with the counter filed by respondent no. 24  Justice Banerjee. As already noticed, respondent no. 24 filed two counter affidavits  first affidavit on 16th January, 2004 and supplementary affidavit on 16th April, 2004. The defence of respondent No. 24 is detailed in paragraph 9 of the counter affidavit filed on 16.1.2004. To appreciate the controversy in proper perspective, paragraph 9 of the counter affidavit is quoted in extenso:

“It is submitted that there was no nexus between the orders dated 8.6.87 and 11.6.87 and the allotment made in favour of this deponent on 14.10.87. It was merely an accident or a mere coincidence that the allotment was made by the Government after the order dated 11.6.1987. This deponent had been making his

representations much earlier, one year earlier to the Central Government through the Ministry of Law requested the Chief Minister to take necessary steps to solve the residential problem of this deponent. This deponent was not aware that my allotment of plot was made first after the order dated 11.6.87 and as alleged by the applicant. It is reported that a large number of allotments were made at about the same time. There had been allotments of hundreds of plots under the discretionary quota for special allotment of plot both prior to 11.6.87 and subsequent thereto. However, for the reasons best known to the petitioner, the Writ petitioner has challenged only the allotments made after 11.6.87 leaving aside hundreds of allotments made under the same quota and in the same fashion prior to 11.6.87. The State Government had already given out that Judges of the High Court were recognized class of persons who were allotted plots of the Salt Lake involving the discretionary quota from 1981. This deponent accepted the allotment as other High Court and Supreme Court Judges had already been allotted plots on similar reasons all of them had applied for and accepted allotments of plots in their favour. All the Judges have constructed their houses like this deponent and are living there.”

14. The fallacy of the defence is that there was no nexus between the order dated 8.6.1987, 11.6.1987 and the allotment made in favour of respondent No. 24 on 14.10.1987 (actually it is 16.10.1987). It can never be and could not be termed as coincidence. The matter was pending before the learned Judge upto 27.7.1987, as disclosed from the Cause Lists sent by the High Court. As noticed above, he has not mentioned his letter dated 16.7.1987, addressed to the Chief Minister. The Chief Minister passed an order on 24.7.1987 allotting a plot in favour of Justice B.P. Banerjee, on which date also the matter was pending before him. He has not explained this. The matter was listed before him on 16.7.1987 but no order was passed on this date, instead he had written a letter to the Chief Minister for allotment of plot of land and the order was passed by the Chief Minister in his favour on 24.7.1987. Therefore, by no stretch of imagination it can be termed as coincidence. There is undoubtedly an unholy nexus in between the passing of the judicial order and granting order of allotment.

15. In the supplementary affidavit filed on 16.4.2004, respondent No. 24 has stated that writ petition being CO No. 7553(W) of 1986 was never kept by him as part-heard. Paragraphs 9.1 and 9.2 of the counter affidavit are reproduced:

“9.1 The deponent never kept the Writ Petition being C.O. No. 7553(W) of 1986 as part

heard, so that the matter could not be taken up by any other Court. The Ld. Single

Judge in the case of Tarak Singh V/s. Jyoti Basu has erroneously recorded the

submission of the counsel for Mr. Tarak

Singh, that the deponent had kept the

matter part heard. The said submission is contrary to the facts as also the records of the case.

9.2 It is submitted that when C.O. No.

7553(W) of 1986 came up for hearing on

17.6.1987, the matter was adjourned since Misc. Applications were moved for taking additional Grounds and additional

evidences. The deponent issued directions for filing affidavits as usual and listed the said applications for hearing on 16.7.1987. However, the said matter did not come up for hearing on the same date or thereafter.” (Emphasis supplied)

16. Undoubtedly, the averments in the aforesaid two paragraphs are contrary to the Report sent by the High Court, as referred above. The deponent admitted that the matter was listed for hearing on 16.7.1987. His averments, that the matter did not come up for hearing on the same date or thereafter, are false to the knowledge of the deponent. Learned counsel for the petitioner, therefore, urged that the false affidavit, filed by respondent No. 24, clearly amounts to criminal contempt. We may not pursue this contention of the learned counsel for the petitioner further, in view of the order that we propose to pass. We, however, agree with the learned counsel for the petitioner that the averments made in paragraphs 9.1 and 9.2 are contrary to the record produced by the High Court.

17. In the aforesaid circumstances, Mr. A.K. Ganguli, learned Senior counsel appearing for respondent No. 24, submitted that CO No. 7553(W) of 1986 which was listed for hearing before respondent No. 24 on 20.6.1986 was not concerned with the allotment of land under the discretionary quota of the Govt./ Chief Minister. It was in regard to violation of the Master Plan and therefore, there was no nexus between the order passed by the learned Judge and the allotment made in his favour.

18. We are unable to countenance with the submission of Mr. Ganguli. In the first place, the application for injunction arising out of CO No. 7553(W) of 1986 was in respect of illegal, clandestine purported allotment of plots in Salt Lake. All the more reasons, the conduct of the learned Judge becomes more murkier when on the same date he applied for a plot of land in the Salt Lake City and injuncted further allotment of any land in the Salt Lake City by an order dated 8.6.1987 but by subsequent order dated 11.6.1987 allowed the Chief Minister to make allotment of plot in Salt Lake City Area from its own Quota according to his own discretion.

19. Mr. Ganguli further argued that no order/ proceeding, sent by the High Court, would indicate that the matter was taken up for hearing on 17.6.1987 and the order sheet dated 17.6.1987 does not show any direction to keep the matter as part-heard. This submission is also contrary to the records, namely, the Cause Lists sent by the High Court. The matter was ordered to be listed for hearing on 16.7.1987 was admitted by him. However, no order was passed on that day for the reasons best known to the learned Judge. The Cause Lists, submitted by the High Court, would show that from 20.7.1987 till 27.8.1987, it was kept part-heard and the file of the case was kept with respondent No. 24, till he retired in 1998.

20. It is also contended by Mr. Ganguli that a large number of Judges of High Court and Supreme Court have also been allotted plots in Salt Lake City under the discretionary quota of the Chief Minister and it will be unfair to single out respondent No. 24 for meting out a different treatment. At the time of hearing of this writ petition, we requested the learned Senior counsel to inform us whether any other Judge or Judges obtained the allotment order from the discretionary quota of the Chief Minister by compromising his judicial duties, we would also proceed against such allottee. He, however, was unable to receive any instructions in this behalf. It is trite, unequals cannot be treated equally.

21. It must be grasped that judicial discipline  is self discipline. The responsibility is self responsibility. Judicial discipline is an inbuilt mechanism inherent in the system itself. Because of the position that we occupied and the enormous power we wield, no other authority can impose a discipline on us. All the more reasons Judges exercise self discipline of high standards. The character of a Judge is being tested by the power he wields. Abraham Lincoln once said, “Nearly all men can stand adversity, but if you want to test a man’s character give him power”. Justice delivery system like any other system in every walk of life will fail and crumble down, in the absence of integrity.

22. Again, like any other organ of the State, judiciary is also manned by human beings  but the function of judiciary is distinctly different from other organs of the State  in the sense its function is divine. Today, judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors failed people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields, a Judge is being judged with more stricter than others. Integrity is the hall-mark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that temple of justice do not crack from inside, which will lead to catastrophe in the justice delivery system resulting in the failure of Public Confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside.

23.     Since the issue involves in the present controversy will have far reaching impact on the quality of judiciary, we are tempted to put it on record which we thought it to be a good guidance to achieve the purity of Administration of Justice. Every human being has his own ambition in life. To have an ambition is virtue. Generally speaking, it is a cherished desire to achieve something in life. There is nothing wrong in a Judge to have ambition to achieve something, but if the ambition to achieve is likely to cause compromise with his divine judicial duty, better not to pursue it. Because if a judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be tendency to compromise between his divine duty and his personal interest. There will be conflict in between interest and duty. This is what exactly has happened in this case. With due respect to the learned Judge, Justice B.P. Banerjee, he has mis-used his divine judicial duty as liveries to accomplish his personal ends. He has betrayed the trust reposed in him by the people. To say the least, this is bad. The matter could have been different if the learned Judge got allotment from the Chief Minister’s quota simpliciter like any other citizen.

24.   In the back-drop of the facts and circumstances, as recited above, we are of the view that the conduct of the learned Judge is beyond condonable limits. We are aware that the order, we propose to pass, no doubt is painful, but we have to perform a painful duty to instill public confidence in the Judiciary. It is a case where a private interest is pitted against a public interest. It is now well-settled principle of law that in such cases the latter must prevail over the former. Consequently, the order dated 24.7.1987 passed by the Chief Minister and the formal allotment order dated 16.10.1987 allotting plot No. FD 429 measuring 4 Cottahs in Salt Lake City in favour of respondent No. 24  Justice B.P. Banerjee are hereby quashed and cancelled. The plot shall stand vested with the Government.

25. In the course of hearing of this petition we had requested the learned Senior counsel, appearing for respondent No. 24, to let us know the expenditure incurred by respondent No. 24 in constructing the house over the said plot of land. Mr. Ganguli has filed the expenditure statement. The details of the expenditure submitted are as follows:

“Cost of the land paid on 16.11.1987 Rs. 41,006.10 Cost of Construction upto 1994 Rs. 7,65,228.61 Total Rs. 8,06,234.71

Annual value of the Building Qtr.3/92 Rs. 8,097.00 Onwards (determined by Bidhannagar

Municipality formerly Bidhannagar

Notified Area Authority)

Municipal Tax (quarterly) Rs. 432.00”

26. The question now to be considered is with regard to the price of the house on the plot of land. We give the following directions: (i.) The Government may appoint a Govt. Valuer and after assessing the cost of construction, at the prevailing rate at the time of construction, (cost of land will not be included), offer the said price to respondent No. 24 and the Govt. may take over the building. In this event the Government should give to respondent No. 24 one year’s time to vacate, provided respondent No. 24 and all family members and persons residing in the bungalow file an undertaking in this Court within 8 weeks from today, that they will hand over to the Government vacant and peaceful possession at the end of one year.

(ii.) Alternatively, if respondent No. 24 feels that he should receive the prevalent market value for the bungalow, he may so intimate the Government. The Government may then put the house along with the land for public auction by advertising the same in two national dailies and one local daily, if any, widely circulated in the area and offer to sell the house to the highest bidder. (iii.) In the case, as in clause (ii.), there would be two separate bids  one for the house and the other for the land. In respect of the house the reserve price should be fixed which shall not be less than the market value of a bungalow of this type at present rates. Such valuation to be fixed by the Government Valuer. The value to be based on vacant possession being delivered to the purchaser.

(iv.) The price of the house fetched in the auction sale be paid to Justice B.P. Banerjee and he must within a week of receipt of the price hand over vacant and peaceful possession to the purchaser. If not delivered, the Government to ensure eviction and delivery of possession to the purchaser.

(v.) The process of the aforesaid directions shall be completed within six months from the date of receipt of this order.

(vi.) The Chief Secretary of the Government of West Bengal shall send the compliance report within the period stipulated.

(vii.) We clarify that respondent No. 24 or his relations shall not be allowed to bid in the auction sale.

27. The net result is that the Writ Petition No. 216/1999 against respondent No. 24 is allowed and is dismissed qua other respondents. C.A. No. 6707/1999 is dismissed. Rule is discharged.

28. We clarify that dismissal of the Writ Petition against other respondents should not be misunderstood as approval of the policy decision of the Government with regard to the allotment of land by the Chief Minister from his discretionary quota. Parties are asked to bear their own costs.

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SC judge rejects hint of bias in murder case: CJI sent Pen Drive nails Justice Patnaik; refutes claim that he was a friend of the accused and would be favourably disposed towards him: 22 March 2014

The ongoing trial in the murder of a Mumbai developer generated ripples in the Supreme Court after a judge put on record the assertion that he was not a friend of the main accused in the case.

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The case has now been transferred to a bench led by Justice C K Prasad.

Justice A K Patnaik took the unusual step after a pen drive was sent to Chief Justice of India P Sathasivam, which contained a purported conversation between two men, one of whom is heard making the claim that Justice Patnaik was a friend of the accused and would, therefore, be favourably disposed towards him.

“To put the record straight, A K Patnaik J. is not a friend of Suresh Bijlani, nor does A K Patnaik J. know Suresh Bijlani (the petitioner),” stated an order passed by a bench of Justices Patnaik and F M Ibrahim Kalifulla recently.

Bijlani is accused in the February 16, 2013 murder of real estate developer Sunil Lahoria, 50, outside his office in Vashi in Navi Mumbai. The daylight killing by two motorcycle-borne assailants was captured on CCTV camera.

In December 2013, Bombay High Court rejected Bijlani’s plea for bail, noting that the son of the slain developer, Sandeep Lahoria, apprehended a threat to his life from his father’s killers.

Bijlani moved the Supreme Court, which last month rejected his plea for regular bail, but granted him a month’s temporary bail so that he could be with his octogenarian father who was in need of surgery.

When Sandeep Lahoria moved an application for cancelling Bijlani’s temporary bail, Justice Patnaik opted to tread a bold path. The court rejected Lahoria’s plea, and Justice Patnaik also explicitly recorded his rejection of the idea that he might be soft on Bijlani because of their alleged friendship.

Justice Patnaik acted after the Supreme Court Registry brought to the notice of the bench the pen drive that had been sent to CJI Sathasivam. The pen drive allegedly carried the recording of a purported conversation between Bijlani’s lawyer and Sandeep, in which the former is heard saying that Justice Patnaik was friends with Bijlani, and they, therefore, expected propitious orders from his bench.

The pen drive was sent to the CJI by Sandeep.

While dictating the order, Justice Patnaik, however, transferred the case to another bench.

“…As Sandeep appears to have an apprehension that justice may not be done in a bench in which one of us (Justice A K Patnaik) is a party, henceforth, this matter be placed before some other bench to be decided by Hon’ble the Chief Justice,” the court said.

The matter was subsequently mentioned before the CJI, and the case has now been transferred to a bench led by Justice C K Prasad.

……………..

Written by Utkarsh Anand | New Delhi | March 22, 2014 9:04 am

http://indianexpress.com/article/india/india-others/dont-know-accused-sc-judge-rejects-hint-of-bias-in-murder-case/

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Lawyers boycott HC over demand of abolition of Lucknow bench: 20 March 2014

Advocates of the Allahabad High Court today boycotted judicial work to press the demand for “abolition” of the Lucknow Bench which said should be restored to the status of a revenue court.

Members of the High Court Bar Association led by its president Kandarp Narayan Mishra sat in front of the HC main gate as soon as it was reopened after a three-day-holiday on account of the festival of Holi.

The lawyers raised slogans and distributed copies of a memorandum demanding “abolition of the Lucknow Bench, shifting of all cases pending there to the Main Bench at Allahabad and restoring the original status of the Lucknow Bench which was meant to be a revenue court for disposing cases falling in the jurisdiction of commissionerates of Lucknow and Faizabad”.

The sudden demand by advocates is believed to be a reaction to the persistent demand for setting up a separate Bench in western region which would rob the legal practitioners here of a sizeable clientele from that prosperous but crime-infested region.

Meanwhile, the HCBA president Mishra said that judicial work is likely to remain suspended at the High Court as well as other judicial bodies here and in other parts of the state following a call for protest given by UP Bar Council against alleged “anti-lawyers” provisions of the Contempt of Court Act.

……………. Press Trust of India  |  <news:geo_locations>Allahabad 

March 20, 2014 Last Updated at 21:20 IST

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