The Supreme Court Justice Indira Banerjee recuses herself from hearing the plea filed by a Judicial Officer challenging the Madras High Court order which had rejected his plea seeking revocation of suspension order and for enhanced allowance during the suspension period. 

The matter was listed for Wednesday before the Bench of Justices Uday Umesh Lalit, Indira Banerjee and Ajay Rastogi which has directed to list the matter before the bench where Justice Indira Banerjee not a member and ordered to list this matter next week.

The petition has been filed by G. Raja who is facing several charges including of moral turpitude, involving his connivance with his brother to undertake commercial activities while still in service, assets and funds grossly disproportionate to the petitioner’s known sources of income and the like. He has been suspended pursuant to a notice dated December 30, 2019.

Also Read: Allahabad High Court directs Uttar Pradesh govt to reply in two weeks on defects in assistant teacher recruitment examination

The High Court had observed that, “it has to be accepted that a person facing serious charges involving moral turpitude should not be allowed to resume work pending the inquiry into his conduct.”

The High Court had further observed that though the petitioner is free to urge to increase his subsistence allowance and seek early conclusion of the disciplinary proceedings, but he cannot cite such grounds either for his suspension to be revoked or to be reinstated honourably. It is totally the employers call to ensure to enhance allowance during suspension and expeditious disciplinary proceedings.

Aggrieved by the order passed by the High Court the petitioner has approached the Apex court through the present SLP.

In a landmark judgment, the Court held that confession to officers under the Act is not admissible as evidence during trial and infringes on the Constitution. This will have ramifications for the Rhea Chakraborty case as well as others.

By Rahul Shyam Bhandari

ON October 29, 2020, the Supreme Court passed a significant judgment in Toofan Singh vs State of Tamil Nadu, under the NDPS Act (Narcotic Drugs and Psychotropic Substances Act, 1985). It ruled that officers authorised to investigate NDPS cases are “police officers” for the purpose of Section 25 of the Evidence Act and hence confessional statements made to them are not admissible in law for the purpose of conviction.

Section 25 of the Evidence Act bars admission of any confession made to a police officer. The 308 page judgment consists of both majority (2) and minority views (1). The Constitution Bench was answering two broad issues referred to it by a division bench. First was whether an officer investigating a matter under the NDPS Act would qualify as a police officer and second, whether a statement recorded by an investigating officer under Section 67 of the Act can be treated as a confessional statement even if the officer is not treated as a police officer.

Answering this, the majority bench of Justices RF Nariman and Navin Sinha gave an intriguing insight into Article 20 (3) and the Right to Privacy. The right against self incrimination in Article 20 (3) means that no person accused of an offence can be compelled to speak against himself. This right has been recognised in various constitutional verdicts, wherein it was held that this protection can extend to any compulsory process for production of evidentiary documents too. This is a principle which is a fundamental canon of the British system of criminal jurisprudence and has been adopted by the American system too.

The right of privacy was also considered by the Bench which has been already recognised as a fundamental right under Article 21 of the Constitution in the KS Puttaswamy case wherein in the words of Justice Nariman, this right includes Right to move freely meaning thereby no restriction to move or reside in any part of India, Informational Privacy and Privacy of choice.

It has been held that the NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21. Then it goes on to discuss confessions under Section 25 of the Evidence Act and various safeguards provided under both the CrPC and NDPS Act. The Bench then noted “that given the stringent provisions of NDPS Act, one has to keep in mind the fact that severer the punishment, the greater the care taken to see that the safeguards provided in the statue are scrupulously followed”.

Relevant provisions of the NDPS which were tested were Sections 53 and 67. Section 53 deals with the powers of the central and state governments to invest any officer from the department of excise, narcotics, revenue intelligence, customs, etc, with powers of an officer in charge of a police station for the investigation of offences under the Act. Section 67 deals with the power to call for information by an authorised officer for the purpose of the inquiry.

The bench remarked: “If a police officer, properly so called to investigate an offence under the NDPS Act, all the safeguards contained in Sections 161 to 164 of CrPc would be available to the accused, but if the same police officer or designated officer under Section 42 were to record confessional statements under Section 67 of NDPS Act, these safeguards would be thrown into the winds’’.

While answering the next crucial question about whether an officer designated under Section 53 of the NDPS Act can be said to be a police officer, the majority view considered all the previous constitutional bench judgments starting from Barkat Ram case, Raja Ram Jaiswal, Romesh Chandra and Badku Joti Savant. Thus, it was held that “where limited powers of investigation are given to officers primarily for some purpose other than prevention and detection of crime, such persons cannot be said to be police officers under Section 25 of the Evidence Act. However, police officer doesn’t have to be a police officer in the narrow sense and broad view has been always accepted namely that a person who is not a police officer properly so called is invested with all the powers of investigation, which culminates in the filing of a police report, such officers can be termed as a police officer with the meaning of Section 25 of Evidence Act as when they prevent and detect crime, they are also in a position to extort confessions achieving their object”.

Following this, the previous decision of the division bench in Raj Kumar Karwal which had concluded that a designated officer under the NDPS Act cannot be said to be a police officer under Section 25 of the Evidence Act was overruled primarily because NDPS Act cannot be taken as merely an Act to regulate drugs, then unlike revenue statutes and the Railway Act, all offences are cognisable and most importantly, Section 53 of the Act unlike other statutes, doesn’t provide any limitation upon the powers of officers to investigate, including the power to file a charge sheet.

Another judgment which has been overruled is Kanhaiyalal where the conviction was based solely on the basis of a confessional statement under Section 67 of the NDPS Act. The majority view goes on to compare other similar acts like POTA and TADA where though confessional statements can be made a basis of conviction, there are several safeguards before the confession is admitted. Thus, it was held that to convict a person under NDPS on the basis of a statement made to officers without any safeguards would be a direct infringement of Articles 14, 20(3) and 21 of the Constitution.

Read Also: Transfer of Judges: A policy that needs revision

There is also the minority view where Justice Indira Banerjee said that officers under the NDPS are not police officers for the purpose of Section 25 of the Evidence Act as they don’t enjoy the power of filing a final report. Therefore, confession made under Section 67 cannot be rejected for the purpose of trial. And even if so, the question of a person being a police officer has to be decided by a larger bench of five judges. She further said that a penal act such as NDPS has to be construed liberally keeping in view the objective of the Act and socio-economic crimes.

The contradictions with the majority view were as follows:

• Firstly it was held that police officers have more power than officers under the NDPS Act as the latter don’t exercise all powers of a police officer, including the power to file a report under Section 173 CrPC. The NDPS Act doesn’t even contain a provision for filing a report. Provisions of CrPC are not applicable here.
• The powers of NDPS officers are not for prevention of crime generally. They are concerned with detection and prevention of trafficking of drugs. Hence, the judgments in Raj Kumar Karwal and Kanhaiyalal doesn’t require reconsideration.
• Section 25 of the Evidence Act doesn’t make any difference between cognisable and non-cognisable evidence, so it should not affect admissibility of evidence under the NDPS Act. The judgment further says that substantial compliance should be treated as sufficient for the procedural requirements under the NDPS Act since it’s largely a crime against society.
• The provisions of entry, search and arrest would not violate the right of privacy and rules. Concerning Article 20 (3), it has been stated that immunity under it does not extend to compulsory production of documents or material objects nor does it prevent the accused from voluntarily offering the statement. And a presumption is to be drawn in favour of the legislature.

The majority judgment will have ramifications on prospective and pending cases. For instance, in the Rhea Chakraborty case, the narcotics department is said to be relying on her confessional statements, and this has been used to confront others. But with the effect of the confessional statement being taken away by this decision, a monumental task lies ahead for the narcotics department to bring corroborative evidence in each and every case to charge someone as an accused under the Act.

Not only this, the judgment could affect cases under the Prevention of Money Laundering Act where, at times, confessional statements made to a director or deputy officer appointed by the centre are made the basis to provisionally attach the property of the accused till the culmination of the trial unless that attachment is set aside by appellate forums. Though generally, the attachment of property is mandated only after filing of a report under Section 173 CrPC, in the light of this judgment, it would still be a test to see whether even for a provisional period, the property of the accused can be attached on such basis.

Meanwhile, there is no doubt that this judgment is a progressive one for protection of the rights of an accused.

Read Also: Baghjan fire reveals oilfield didn’t have environmental clearance

—The writer is Advocate on Record, Supreme Court

Lead Picture: UNI

New Delhi (ILNS): The Supreme Court has granted a two-week interim bail to Sukesh Chandrashekhar, alleged middleman in the AIADMK’s ‘two leaves’ symbol matter. The bench of Justices DY Chandrachud and Indira Banerjee granted the interim bail on ground of his father’s illness.

Chandrashekhar was arrested for allegedly taking money from AIADMK leader TTV Dhinakaran to bribe the ECI officials to get the AIADMK’s ‘two leaves’ symbol for the Sasikala faction in a by-election to the R K Nagar Assembly seat in Tamil Nadu.

He has filed the petition challenging the Delhi High Court order wherein it had dismissed his regular bail application in March this year. In a relief he has sought ‘interim bail’ for two weeks on ground of his father’s illness.

The petitioner in the instant case had filed the bail application before the Delhi High Court in connection with FIR No. 0056/2017 under section 8 of the Prevention of Corruption Act, 1988 registered with the PS Crime Branch, Delhi.

Read Also: United Breweries in Supreme Court, challenging Karnataka High Court’s order dismissing winding up of company
 
The Delhi Justice Vibhu Bakhru had dismissed the bail application and observed:

“There was high likelihood of the petitioner trying to influence the trial. This was in the context of the serious allegations made against the petitioner. It is alleged that a forged identity card of a Member of Parliament and a forged sticker of a Member of Parliament affixed to the car, was found. It is also alleged that the petitioner had sought to impersonate himself as the PA to the Law Minister as well as a Judge of the Supreme Court, to try and influence the learned Special Judge, PC Act.”

-ILNS

New Delhi: The Supreme Court has observed that the lathi is an identity of the people living in the villages. It cannot be called a weapon of attack. 

A three-judge bench of Justices R.F. Nariman, Navin Sinha and Indira Banerjee made this observation while considering an appeal filed by Jagat Ram, who was convicted under Section 302 of Indian Penal Code for murder. 

In a land dispute the accused, Jagat Ram, had struck the head of a person with his lathi.  The victim died in hospital two days later from the injury. The trial court convicted the accused under Section 302 of Indian Penal Code for murder. The High Court sustained conviction under Section 302 IPC on the view that Jagat Ram had assaulted the deceased in a sudden heat of passion arising due to a land dispute.

The court said in the present case the question that will always remain is whether the attack was done with the intention of killing? Did the person attacking know that this attack can kill someone? 

The Supreme Court also commented that something can be decided about one’s intention only by looking at the reality related to the case, the nature of the attack and its mode, number of blows and wounds etc.

The apex court observed:

In light of these observations the court allowed the appeal and alter the conviction of the appellant from Section 302 IPC to Section 304 Part II, IPC. 

Read Also: Appointment of judges: Let’s be transparent

The court has also ordered the release of the accused, considering the duration of his stay in jail as a punishment.

Read the judgment here;

-India Legal Bureau

In a split verdict for which elaborate reasons were given, a larger apex court bench will decide whether family courts can hear Muslim women’s maintenance pleas

By Prof Upendra Baxi

It is not unusual for a two-judge Supreme Court bench to disagree and refer the matter to the chief justice of India (CJI) for a larger bench. But it is unusual to find an elaborately reasoned discourse for the referral. This is precisely what Justices Banumathi and Indira Banerjee accomplish in Rana Nahid  (June 18, 2020). Both are senior Justices and known for their perspicacious decision-making. And the difference of opinion here was based on the basic issues of jurisdiction and justice. Unlike the spat some time ago between Justices ES Venkataramiah and DA Desai (where the former left the Court in a huff), this was no ego tussle for either of the present Justices.

Banumathi, J. and Indira Banerjee, J. differed on whether family courts had any jurisdiction to convert the application under Section 125 of the CrPC into an application under Section 3 of the 1986 Act for Muslim Women and to decide the same. The difference of opinion did not pertain to the finding of Justice Banumathi that Daniel Latifi (2001) did not “authoritatively decide” the issue of the family court jurisdiction; the issue here was whether a strict rather than purposive interpretation should govern.

Justice Banumathi reasoned, first, that Section 7 of the Family Courts Act, l984, creates a complete code. It endows the family court to “have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation”. And the explanation refers to all suits that are filed relating to  (a) “decree of nullity of marriage…or restitution of conjugal rights or judicial separation or dissolution of marriage”; (b) “…proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person”;(c) “with respect to the property of the parties or of either of them”; (d) “for an order or injunction in circumstances arising out of a marital relationship”; (e) “a declaration as to the legitimacy of any person”; (f) “a suit or proceeding for maintenance”.

Second, the expression “conferred on it” [(Section 7(2)(b)] “speaks of conferment of the jurisdiction on the Family Court by an enactment”. Conferral of jurisdiction must be explicit and specific: not “be assumed or deemed” and the Muslim Women’s Protection Act does “not confer any jurisdiction on the Family Court”. Accordingly, “the Family Court cannot entertain the application of divorced Muslim woman under Sections 3 and 4 of the Muslim Women’s Protection Act, 1986”.

Justice Banerjee was unable to agree with this approach. First, she was convinced because explanation (f) is a complete answer to any argument urging that matters of maintenance are not within the jurisdiction of the family court. To reiterate, that clause specifically refers to “any suit or proceeding for maintenance, which would include an application under Section 3 of the 1986 Act for Muslim Women”.

Second, it is also true that Justice Banerjee holds that the “…Family Courts Act is a secular statute, which applies to matters contemplated therein, irrespective of the religion of the litigating parties”. To exclude jurisdiction on the ground of religion is thus an anathema to the Act.

Third, dwelling on the distinctive features of family courts (paras 11-28), she finds that “it was never the intention of the 1986 Act to deprive divorced Muslim Women from the litigant friendly procedures of the Family Courts Act and denude Family Courts of jurisdiction to decide applications for maintenance of divorced Muslim women” (emphases added).

Fourth, quoting Lord Denning [in Seaford Court Estates Ltd (1949)], that a “judge must not alter the material of which the act is woven, but he can and should iron out the creases”, Justice Banerjee is able to say that in appropriate cases “in discharging its interpretative function, the court can even correct obvious drafting errors”. But she is quick to add: “Of course in this case, this Court has not added, omitted or substituted anything”. Rather, it “has only given a purposive interpretation to the expression Subordinate Civil Court in Section 7 of the Family Courts Act to include the Court of a Magistrate empowered to entertain proceedings for maintenance under the1986 Act for Muslim Women, which are in essence and substance, civil proceedings”. Incidentally, it must be noted that the provision penalising non-compliance with maintenance does not transform an essentially civil law into a criminal one.

On a standard reading of the referral decision, no further comment is necessary. Nor does the CJI need to make history in arriving at any decision by listening to any professorial advice! But by its own general jurisprudence, the decision to constitute a larger bench must not be taken “mechanically and without due care”, a standard the apex court has painstakingly but routinely affirmed in developing Indian administrative law.

This reference raises an interesting constitutional conundrum. Does the CJI have a constitutional obligation to comply with it, or does there exist any discretion to refer the matter back to the bench for the reasons given? One of the central reasons would be the right to “speedy trial and right of access to justice” as a fundamental right, which the apex court has invented and reiterated. Another reason (though it may rarely arise) is when the referring bench’s reasons are constitutionally infirm. I do not deny (who can?) the importance of judicial discourse on jurisdiction raised in Rana Nahid but a suspicion lingers at the threshold: Was Justice Banumathi’s decision per incuriam? Did she not ignore the statutory imperative of explanation (f) of Section 7 of the Family Courts Act?

Narrowly, and strictly, the indictment of per incuriam can best be laid on a demonstration of judicial inadvertence to a binding law. And the better view is that a marked difference between the two justices on approaches to constitutional interpretation does not attract this indictment (as Dr Puneeth Puttiah of the JNU also tells me in a personal communication). This advice would also militate against any reading of Justice Banerjee’s discourse as suggestive of such an indictment.

No doubt, Justice Banumathi’s policy advice for legislative drafting is precious: do not confer jurisdiction by implication, do so quite explicitly.  But stressing its importance does not displace a statutory imperative. Further, there is no judicial bar to read an implicit indictment, when appropriate and necessary. This is exactly what Justice Indira Banerjee did. Is “ironing the creases”, especially in the service of basic human rights enunciations declaring women’s rights as human rights, impermissible at the bar of constitutional law or common law?

Further, there is nothing to prevent the CJI from seeking the advice of the collegium on the practice of referral to a larger bench as an important matter of constitutional justice and also of good practices in the administration of justice in an arrears-ridden appellate system.  Should the CJI insist that judicial duty to decide cases or that referrals to a larger bench should be made only in the “rarest of rare situations?”

Finally, it is constitutionally perplexing that the judicial discourse here seems to foreground a delay of nine years in hearing as normal; the bench seems not concerned with the fate of appellant 2, a woman who was denied enhancement of child maintenance by the Rajasthan High Court. And no one seems concerned with further delays which will have to occur by this reference! Not only does the first appellant wife remain liable to any revision of the maintenance award of Rs 1 lakh, but appellant No 2 must await enhancement of the minimum support amount of Rs 2,000 per month, limited, however, till the child’s attainment of puberty.

Are women’s or child rights and human justice thus secured till the apex judicial oracle speaks after some more years? Why?

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer