Project 39A invites submissions to The P39A Criminal Law Blog focuses on contemporary criminal law and criminal justice issues.
The blog provides a platform for academic engagement with criminal justice issues, seeking to trigger nuanced and interdisciplinary engagement with the structural barriers and harsh realities of the criminal justice system in India. We also encourage perspectives through various disciplines, including sociology, psychology, anthropology and science. We particularly encourage students (across disciplines) to submit relevant pieces.
Word Limit
The blog currently accepts short-form posts between 1200-1500 words and long-form posts between 2200-2500 words in English. We accept co-authored submissions.
Guidelines
All posts must be original and unpublished works of the author/s. All posts will be subject to a plagiarism check.
On publication of an original article on the blog, the author cannot publish the same article or a substantially similar article in any other publication or any other platform without prior approval from Project 39A. All such re-publication shall explicitly acknowledge that the article was first published on the Project 39A Criminal Law Blog.
All sources must be hyperlinked in the text of the blog. Please do not use footnotes.
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On the occasion of the 50th anniversary of the Kesavananda Bharati Judgement, NUJS, in collaboration with Nani A. Palkhivala Memorial Trust and supported by Tata Group, presents Nani A Palkhivala Memorial Essay Competition.
Theme
Application of Basic Structure Doctrine to Contemporary Issues
Sub-themes
1. Scope of Judicial Review 2. Powers of Promulgating Ordinances
Prize money under each sub-theme of the Essay Competition
Winner: 75,000 INR
Runners-up: 50,000 INR
2nd Runner up: 25,000 INR
Timeline
April 24, 2023: Launch of the Essay Competition & Opening of Registration.
May 24, 2023: Deadline for Registration for the Essay Competition.
July 31, 2023: Deadline for Submission for the Essay Competition.
October 2023: Announcement of Results.
November2023: Conclave @WBNUJS.
NUJS shall host a Nani A. Palkhivala Memorial Conclave where select participants can present their essays before distinguished guests. The NUJS Law Review shall publish selected entries in a special edition.
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
Deloitte India (Mumbai/Delhi) is hiring for their Risk Advisory Team.
Location
Mumbai and Delhi
Experience Required
Candidates with experience in:
Legal compliance
Statutory compliance
Regulatory compliance
Legal audit
Labour laws
Environment laws
Application Procedure
Only you have relevant experience & are interested. Kindly share your profiles at crfernandes@deloitte.com with the subject line âRisk Advisory(Legal Compliance) Applicationâ Your name.â
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
Law Firm dealing in matters of Civil and Criminal nature including Matrimonial Disputes, Consumer Disputes, Criminal Complaints, RERA Complaints and Compliances all over Delhi -NCR including Chandigarh, Panchkula, Jaipur, Noida.
Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.
An individual or organization has a legal entitlement known as the “right to sue” that enables them to initiate a lawsuit against another individual or organization in a court of law. This right is considered fundamental since it allows them to pursue legal action and seek remedy or recourse for any perceived harm or wrongdoing caused by the other party. Typically, the right to sue is granted to individuals or organizations who are capable of demonstrating that they have suffered legal harm or damages resulting from the actions or omissions of another party. Such circumstances may include but are not limited to a breach of contract, personal injury, property damage, or infringement of intellectual property rights, among others. It is essential to note that the right to sue is subject to legal constraints or limitations, and may not be an absolute right. Furthermore, the process of initiating legal proceedings can be intricate, requiring the guidance of legal experts to navigate it effectively.
It is crucial to acknowledge that the right to sue is not an unrestricted right, as there may be legal limitations or restrictions on the individuals or entities who can initiate legal proceedings and the situations in which they can do so. Moreover, the process of commencing a lawsuit can be intricate and costly and may necessitate the guidance of legal experts to navigate it competently.
Right to Appeal
The legal entitlement of a party to challenge a lower court or tribunal’s decision in a higher or appellate court is known as the right to appeal. This right permits parties to contest the factual or legal conclusions reached by a lower court or tribunal and seek a different outcome.
Under Article 21 of the Constitution of India[1], which guarantees the right to life and personal liberty, the right to appeal is recognized in India. It is a fundamental component of the Indian legal system and is intended to ensure equitable and impartial administration of justice.
The procedure for filing an appeal in India is dependent on the type of case and the court or tribunal involved. Generally, a written petition outlining the grounds for the appeal must be submitted within a specified timeframe after the lower court’s decision. The higher court then assesses the evidence and legal arguments presented by both parties before reaching a decision. The right to appeal is accessible at various levels of the Indian judiciary system, from district courts to the Supreme Court of India. Both civil and criminal cases can be appealed, and the appellate court may either uphold, modify, or reverse the lower court’s decision.
Scope of Right to Appeal in Statutory Law
The right to appeal is not an inherent right and is only granted through specific statutes. It is considered a substantive right, rather than merely procedural. This right is conferred upon the litigant from the beginning of the case, although it is exercised only when an unfavourable judgment is pronounced. Consequently, the law that applies to the right to appeal is the one that was in force at the time the lawsuit was filed, not the law that applies at the time of decision or when the appeal is filed. These vested rights can only be taken away by a subsequent statute if it explicitly provides for it.
It is important to note that as this right is created by statute, the statute can impose conditions for its exercise. The forum of appeal may also be altered by the statute, and the litigant does not have the right to choose the forum for appeal. As Justice Khanna once stated, the right of appeal is a product of statute, and there is no reason why the legislature cannot impose conditions for exercising this right as long as those conditions are not excessively restrictive to the point of rendering the right almost meaningless.
Historical Overview
The Indian legal system has evolved to recognize two fundamental rights, namely the right to sue and the right to appeal. These rights have been shaped by diverse legal traditions and cultures, and their historical development in India is a topic of great significance.
The right to access justice, commonly referred to as the right to sue, has been an integral facet of the Indian legal system since ancient times. In ancient India, justice was founded upon the principle of dharma, which denotes righteousness, and it was the responsibility of the king to ensure that justice was dispensed impartially. During this period, individuals were granted the right to approach the king or local courts to seek redressal.
Subsequently, during British rule in India, a formal legal system was introduced, and the English legal system became prevalent. This system placed great emphasis on the right to sue and the right to a fair trial. Consequently, the Indian Civil Procedure Code (CPC) was enacted in 1908, which laid down the procedural framework for filing a civil suit in India. The code ensured that every individual was entitled to the right to sue, and could approach a court of law to seek justice.
The notion of the right to appeal gradually developed during the period of British governance in India. Under their rule, the appellate system was introduced, permitting litigants to challenge a lower court’s decision by appealing to a higher court. In 1898, the Criminal Procedure Code (CrPC) was passed, recognizing the right to appeal in criminal cases. This legislation allowed accused individuals to appeal their conviction or sentencing from a lower court to a higher court.
Following India’s independence in 1947, significant changes were made to the country’s legal system. In 1950, the Constitution of India was enacted, enshrining the right to access justice as a fundamental right. Furthermore, the Constitution established the Supreme Court as the highest court in the nation, providing the right to appeal to it. Additionally, the Constitution conferred the authority on high courts to hear appeals from subordinate courts.
Throughout the years, the Indian legal system has been subject to diverse influences from various legal traditions and cultures. The ancient Hindu legal system, which was predominant in India, prioritized the fundamental right to access justice and provided for the amicable resolution of conflicts through mediation and arbitration. Meanwhile, the Islamic legal system, which emerged during the Mughal era, accentuated the significance of a just and fair trial process and guaranteed the right to appeal. These legal traditions have left a profound impact on the Indian legal system and continue to shape its development to this day.
Legal Frameworks
Right to Suit
In India, individuals have the right to initiate legal action against another person or entity in a court of law, which is commonly known as the right to sue. This right is enshrined in the Indian Constitution, which ensures that every citizen has access to justice as per Article 39A[2]. The Indian legal system provides for various types of civil suits, including breach of contract, recovery of money, specific performance, and injunctions, among others. The Code of Civil Procedure, 1908[3] governs the process of initiating a civil suit.
Initiating a Suit: Parties, Framing, and Institution
The process of initiating a civil case involves two parties, the plaintiff and the defendant, as per Order 1 which deals with Parties to suit. The plaintiff is responsible for bringing the case against the defendant, who is the other party that must provide a defence against the allegations made by the plaintiff in civil court.
Once the parties to the suit are recognized, the next step is to frame the suit as provided under Order 2. This involves the plaintiff approaching the civil court with their suit, which is referred to as the Frame of Suit. Framing of suit indicates that a legal action has been brought by one party against another. According to Rule 2 of Order 2, the plaintiff must include their entire claim in the suit, which serves as the cause of action against the defendant. The framed suit needs to be instituted before the civil court, but the question of who the institution is answered by Order 3 of the Code.
Agents and Pleaders
Order 3 of the Code of 1908 deals with recognized agents and leaders, who are essential for the plaintiff to institute a suit framed before the civil court. The plaintiff requires the help of a legal professional or pleader who has expertise in the field of law to take the framed suit before the court on their behalf. Rule 2 and Rule 4 of Order 3 respectively provide guidelines for recognizing agents and pleaders. Once a recognized agent or pleader is hired, it becomes their responsibility to institute the suit before the civil court on behalf of the plaintiff. This brings us to Order 4 of the Code, which discusses the proper institution of suits. To institute a suit, the plaintiff needs to present a plaint before the court, the meaning of which is explained under Order 7 of the Code of Civil Procedure, 1908.
It is crucial to note that compliance with sub-rules (1) and (2) of Rule 1 of Order 4 is mandatory for the proper institution of the suit. Sub-rule (1) requires the presentation of a plaint to institute a suit before the court of law. Sub-rule (2) provides that no plaint as provided in the previous rule can escape the rules provided under Orders 6 and 7 of the Code.
Right to appeal
As per Section 96 of the CPC, an aggrieved party to any decree passed by a court while exercising its original jurisdiction has the right to appeal to a higher authority designated for this purpose, except in cases where any statute makes an exception. This grants the aggrieved party at least one right of appeal.
However, Sections 97, 98, and 102 of the CPC specify certain conditions under which no further appeal is allowed, therefore limiting the right of appeal to a single opportunity.
It is important to note that no person has the right to appeal against a decision unless they are a party to the suit, unless they have been granted special leave of the court. The question of whether a person is adversely affected by the decision or suit is a factual matter that needs to be determined on a case-by-case basis.
The case of Garikapati Veeraya v. Subbiah Chaudhary[4] established that the right to appeal to the Federal Court that existed prior to the establishment of the Supreme Court still remained valid. The court recognized the shift in the judicial system from the Federal Court to the Supreme Court but emphasized the preservation of the right to appeal that was created under the old law. It should be noted, however, that the continuation of this right is subject to the provisions of the Constitution.
Appeals and Conversions under CPC
The Code of Civil Procedure, 1908 provides for various types of appeals and their maintainability. Under Section 96 of the CPC[5], a regular first appeal may or may not be maintainable against certain adjudications, as indicated by a combined reading of Sections 2(2), 2(9), and 96 of the CPC. A first appeal lies from a decree passed by any court exercising original jurisdiction to the authorized appellate courts, except where expressly prohibited.
Furthermore, Section 100 of the CPC[6] provides for a second appeal under this code. A decree passed in the first appeal by a subordinate court can be appealed to the High Court unless there are provisions indicating otherwise. However, the scope of exercise of jurisdiction under this section is limited to a substantial question of law framed at the time of admission of appeal or otherwise.
Regarding the conversion of an appeal into a revision, the court’s inherent powers allow it to pass orders that may be required to meet the ends of justice, as held in the case of Bahori v. Vidya Ram[7]. In the absence of a specific provision in the CPC for converting an appeal to a revision or vice versa, Section 151[8] governs the court’s exercise of power. The conversion is allowed, as long as the proper procedure was followed during the filing of the original appeal or revision. However, the only precondition to such conversion is that due procedure is adhered to during the filing of the original appeal/revision.
Who has the right to appeal under Section 96 of the CPC?
Section 96 of the CPC provides that a regular first appeal can be preferred by any party to the suit who has been adversely affected by the decree. This includes the legal representatives of the deceased party under Section 146. Additionally, a transferee of the interest of such a party, whose name is entered on the record of the suit, may also appeal. In the event of an order in execution setting aside the sale on the basis of fraud, the purchaser at auction has the right to file an appeal.
However, no person other than a party to the suit is entitled to appeal under Section 96 unless special leave is granted by the appellate Court. This means that a person who is not a party to the suit can only prefer an appeal from a decree or order if they are bound, aggrieved or prejudicially affected by it and if special leave of the appellate Court is granted.
Who is barred from appealing?
A party who has waived their right to appeal a judgment is precluded from filing an appeal at a later stage. The principles of estoppel may also apply where a party has accepted the provisions of a judgment and has acknowledged it as final and binding. The doctrine of estoppel prevents such a party from appealing the same judgment in a higher forum. Scrutton L.J. has expressed the view that a party cannot simultaneously accept the benefits of a judgment and then appeal against it as being unfavourable.
Role and Standards of Review in Indian Appellate Courts
Appellate courts in the Indian legal system are higher courts that review and revise the decisions of lower courts, including district courts and tribunals. These courts include the High Courts, the highest courts in each state or union territory, and the Supreme Court of India, the highest court in the country.
Appellate courts use two standards of review when examining lower court decisions: one for questions of fact and one for questions of law. The standard of review on questions of fact is deferential to the lower court’s decision and will only be overturned if the findings of fact are clearly erroneous or not supported by evidence. The standard of review on questions of law, on the other hand, is less deferential and will closely examine the legal reasoning and interpretation used by the lower court, often applying its own interpretation of the law.
In criminal cases, the standard of review is higher due to the higher stakes and severe consequences of an erroneous decision. The decisions of appellate courts have significant implications for the parties involved and for the development of the law in India. Overall, the role of appellate courts in the Indian legal system is to ensure the fair administration of justice by reviewing and correcting lower court decisions.
Conclusion
To conclude, the right to sue and appeal in India represent fundamental pillars of the legal system, enabling access to justice for all citizens. These rights are duly recognized by the Indian Constitution, and the procedures for initiating legal action are regulated by the relevant statutes and rules. The Supreme Court of India has provided crucial interpretations of these rights, ensuring that they align with the principles of natural justice and the fundamental right to access justice. By having these rights in place, individuals in India can seek legal remedies in cases of disputes or breaches of the law, contributing to the promotion of a just and equitable society.
Endnotes:
Article 21 of the Indian Constitution
Article 39A of the Indian Constitution
Code of Criminal Procedure (India), Act No. 2, 1974
Garikapati Veeraya v. Subbiah Chaudhary, (1979) 1 SCC 16.
Civil Procedure Code § 96 (India).
Code of Civil Procedure, Act No. 5, 1908, §100, India Code (2019)
Bahori v. Vidya Ram, (1978) 1 SCC 1.
Civil Procedure Code, § 151 (India).
Civil Procedure Code, § 146 (India).
This article was authored by Sohini Chakraborty, a first-year law student at RGNUL Patiala.
Adjudicating the matter of life imprisonment on a rarest of rare cases of a man raping his 9-year-old daughter, the Delhi High Court on Tuesday held that the term âlife imprisonmentâ is synonymous with a convict spending the rest of their life imprisoned for whatever they have been convicted for. Liberal remissions to diminish the sentence of the life imprisonmentgranted to the convict in the present case would in factuality, be nothing short of a travesty ofjustice. Judges who wield the sword of justice should not hesitate to wield that sword with the utmost severity to the full and to the end if the seriousness of the offence so requires, as thisCourt noted in Madan Gopal Kakkad Vs. Naval Dubey and another.
FACTS
In the matter at hand, the appellant was tried for raping his own 9-year-old daughter in August 2012. In accordance with the same, the Sessions Court (Special Fast-track Court) hadheld the appellant guilty of the same in 2013 and had adjudicated the appellant for lifeimprisonment under Sections 376, 377 7 506 of the IPC. Additionally, the appellant was alsonot granted clemency by the State until and unless he had served at least 20 years ofimprisonment. On appeal, a Division Bench of the High Court of Delhi further upheld theprevious courtâs judgement in 2017. As a last resort, this special leave petition was filedunder Article 136 of the Constitution. This appeal was filed to merely discuss the magnitude of the sentence imposed on the convicted person, and not to elaborate on the conviction.
JUDGEMENT
Upon giving due regard to the facts and law in the above-mentioned case, it is contended bythe Honâble High Court that the appellant is liable for serving at least 30 years ofimprisonment upon taking into account remissions His lengthy incarceration would not only guarantee that he received his just rewards but would also give his daughter more time and maturity to calm down and move on with her life, even if her father is released. Owing to the amendments leading to the inclusion of the new sections 376(2)(f) and 376(3) in the IPC in 2013, the legal recourse adopted by the Sessions Fast-track Court had been wrong in technicality since the newer provisions would not have been applicable as the present case had been instituted in 2012. But owing to the gravity and severity of this case, the monstrosityimposed by the father on his own daughter led to the High Court deciding the present case. The appeal therefore has been dismissed and the appellant/convicted has been directed to payhis dues accordingly.
In the recent judgement of YOGESH NAVINCHANDRA RAVANI v. NANJIBHAI SAGRAMBHAI CHAUDHARY & ORS, an appeal is filed by the appellant challenging the final judgement of the High Court of Gujarat at Ahmedabad whereby the High Court passed strictures against the appellant and restored the second appeal to its original number and status.
FACTUAL BACKGROUND:
One Jesangbhai Kachrabhai Parmar (hereinafter referred to as “original plaintiff”) had filed a suit before the Additional Senior Civil Judge, Mehsana challenging the sale deed dated 14 September 2000 which was executed by Nanjibhai Sagrambhai Chaudhary in favour of Sureshbhai Hirabhai Chaudhary with respect of suit property. The said suit was dismissed by the Additional Civil Judge and this order was passed on 12 June 2008. But it is to be noted that the original plaintiff had died on 31 December 2006 i.e. during the pendency of the suit. Therefore, a further suit is presented by his legal representatives (“LRs” for short).
The first appeal was filed by the LRs of the original plaintiff including the appellant- Lalitbhai Jesangbhai Parmar who is the son of the original plaintiff. This appeal was filed before the Additional District Judge. It was dismissed vide judgment and order dated 23 July 2015.
Thereafter, a second appeal was filed in the High Court by the LRs of the original plaintiff including the appellant. In this appeal, it was displayed that all the LRs of the original plaintiff are appellants. It is to be noted that this appeal was preferred by Vitthalbhai Maganbhai Parmar who was the Power of Attorney holder of the original plaintiff. It was executed in his favour before the death of the original plaintiff. Another Power of Attorney was also executed in his favour by the appellant i.e. Lalitbhai Jesangbhai Parmar. The appellant was Power of Attorney holder only for him and not for other LRs of the original plaintiff on whose behalf the appeal was preferred. Furthermore, the Vakalatnama was not signed by other LRs of the original plaintiff.
The High Court after recognising the said discrepancy raised office objections as to whether the Vakalatnama had been signed by all the appellants or not. In spite of repeated opportunities, these objections were not removed. Therefore, the second appeal was dismissed by High Court on 27 November 2015. Thereafter the application was filed for restoration of the second appeal wherein it was stated that the Power of Attorney holder i.e. Vitthalbhai Maganbhai Parmar had informed the registry of the High Court about his inability to obtain an authority letter from all the LRs of the original plaintiff. Thereby, their transposition as defendants were requested. The HC allowed the said application and restored the second appeal.
The appellant on coming to know about the filing of the second appeal by his Power of Attorney holder cancelled the Power of Attorney through public notice because this appeal was filed without his knowledge or instruction. Furthermore, he engaged Yogesh Navinchandra Ravani, an advocate, to file a pursis for withdrawal of the second appeal. The High Court considered the said pursis and permitted the withdrawal of the second appeal.
However, even after the cancellation of Power of Attorney, Vitthalbhai Maganbhai Parmar filed a Misc. Civil Application in HC for review of its order and consequent restoration of the second appeal. He also seeks condonation of delay. The HC allowed this application and restored the second appeal to its original number and status. In addition to it, costs were imposed upon the appellant- Lalitbhai Jesangbhai Parmar and strictures were passed against the appellant- Yogesh Navinchandra Ravani for his conduct as an advocate while seeking withdrawal of the second appeal.
Hence the present appeal was filed in the Supreme Court challenging the final judgement or order of the High Court.
PETITIONERâS CONTENTIONS:
â˘Â The learned counsel for the appellant submits that application filed by Vitthalbhai Maganbhai Parmar was not maintainable because the Power of Attorney executed in favour of him stood cancelled via Public Notice.
â˘Â The learned counsel further submits that the application for review which was filed using earlier Power of Attorney could not have been filed as on the death of the original plaintiff he had no authority to continue with the proceedings.
â˘Â It was further stated that once the appellant had filed an application for transposing of the other LRs as defendants and once the HC had allowed the said application, he became the dominus litis.
â˘Â It is submitted that the strictures passed by HC against the appellant- Yogesh Navinchandra Ravani who was only a lawyer appearing on the behalf of appellant, were totally unwarranted and uncalled for.
 â˘Â Therefore, it was urged that the second appeal should not be restored and the strictures passed against the appellant- Yogesh Navinchandra Ravani should be cancelled by this court.
RESPONDENTâS CONTENTIONS:
â˘Â The respondent no. 5 to 7 has filed their reply stating that they had not executed any Power of Attorney in favour of said Vitthalbhai Maganbhai Parmar.
 â˘Â Therefore, this reply was used by the appellants and through this they submitted that they also did not intend to challenge the order passed by the Additional District Judge.
JUDGEMENT:
The Supreme Court after considering the facts and contentions of both the parties held that the application filed by said Vitthalbhai Maganbhai Parmar was not tenable as the Power of Attorney executed in his favour by the appellant- Lalitbhai Jesangbhai Parmar stood cancelled by issuing public notice. The position of the appellant- Lalitbhai Jesangbhai Parmar being a dominus litis, has a right to withdraw the second appeal. After the withdrawal of the such appeal, an application for restoration of said appeal filed by the Power of Attorney holder whose Power of Attorney stood cancelled was not at all tenable.
The Apex Court further stated that the observations made by High Court against appellant- Yogesh were totally unwarranted and uncalled for. Thereby it was held that the decision and order passed by High Court is not sustainable in law. The same is quashed and set aside.
This is the second application under Section 439 read with Section 436A of the Code of Criminal Procedure, 1973 seeking regular bail in case FIR No. 166/2015, dated 16.11.2015, recorded at P.S. Crime Branch under Sections 3 and 9 of the Official Secrets Act, 1923. The initial application filed on behalf of the current applicant was rejected as withdrawn by a coordinate bench of this Court on February 31, 2018, with an instruction to the learned trial Court to expedite the trial.
FACTS
P.S. Crime Branch obtained classified information on alleged anti-national acts supported by Pakistan-based intelligence operatives. The operation in question was handled by an Indian. Information about the deployment of the Indian Army and the Border Security Force (“BSF”) in Jammu and Kashmir and passed it on to people across the border, threatening national security. The mobile phone numbers involved were intercepted, and the names of two people engaged – Kafaitullah Khan and Abdul Rasheed surfaced. Kafaitullah Khan lived in Rajouri and Abdul Rasheed served in the BSF. It was found that Abdul Rasheed gave classified material to Kafaitullah Khan in exchange for money, who then gave it to Pakistan intelligence operatives.
Kafaitullah Khan came across his close friend Mohammad Saber, i.e., the present applicant, who was a primary school teacher. In confidence, Kafaitullah Khan told the applicant about his meeting with the aforesaid Pakistan intelligence officer and the task assigned to him. He agreed to the task by taking some money. Kafaitullah Khan got in touch with an ex-serviceman, Munawar, through the present applicant. Farid Khan had passed on some documents to Munawar, which were then passed on to Faizal-ur-Rehman through the present applicant. Mobile phones were recovered from Kafaitullah Khan, Abdul Rasheed, Munawar Ahmed Mir, Farid Khan and the present applicant. The Call Detail Records showed that the accused were in touch. Bank account details of all the accused persons were obtained from the concerned banksand it was found that Rs. 10,000/- were deposited in the account of the applicant.
The found documents pertaining to the Indian Army were forwarded to the appropriate authorities for examination. It was discovered that the aforementioned documents were classified in nature. Following the completion of the investigation, the first chargesheet in the current case against Abdul Rasheed Khan, Munawar Ahmed Mir, Farid Ahmed, Kafaitullah Khan, and the present application was filed on February 23, 2016.
APPEALANTâS SIDE
The applicant, according to learned counsel acting on his behalf, was detained on December 5, 2015, and has been in judicial detention for more than 7 years. It was also claimed that he had been imprisoned for more than half the maximum time permitted for the crimes he was accused of committing. As a result, the petitioner is eligible to be released on bail under Section 436A of the CrPC. It was further submitted that the applicant was not named in the FIR and the allegations against him are solely on the basis of the disclosure of Kafaitullah Khan and Abdul Rasheed. Learned counsel for the application testified that no incriminating material had been obtained from the applicant’s possession or from his domicile. Furthermore, no incriminating evidence was discovered on his laptop or camera. It was submitted that the prosecution has not been able to connect the Rs. 10,000/- transferred to the bank account of the applicant with any of the allegations made against him. Learned counsel further submitted that there is no evidence on record which shows that the data alleged to be transmitted was passed on by the applicant.
JUDGEMENT
In view of the facts and circumstances of the present case, the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- along with two sureties of the like amount, one of which should be a relative of the applicant, to the satisfaction of the learned Trial Court/Link Court, further subject to some conditions.
In the recent case of Ruksana v. Jawahar Lal Nehru University, a writ petition was filed, in the Honâble Court for the violation of Articles 14 & 15 of the Indian Constitution, by the petitioner i.e. Ruksana.Â
FACTS:
The petitioner i.e. Ruksana belongs to the OBC category. She applied for admission to the Ph.D course of “Social Exclusion & Inclusive Policy” at JNU for the academic year 2021-22. There were a total of 8 seats for the said course out of which only 2 are reserved for the OBC category. For admission in the said course, a computer-based test (CBT) was conducted by National Testing Agency. The petitioner took the test and secured Rank-08 in the OBC category. Therefore she was not selected for the course.
But at the same time, Mr Shahid C. who secured Rank-07 in the OBC category was selected for the Ph.D course. He blocked his seat but had failed to submit his documents and certificates before 19.01.2022 which was the last date of admission according to the petitioner. Mr Shahid C. also via an email to the respondent university on 15.02.2022 requested the cancellation of the seat blocked by him.
Therefore, the petitioner is of the view that the vacant seat should have been offered to the petitioner as she was the next candidate on the merit list. Petitioner relied on clause 6.3 of the Admission Policy & Procedure 2021-22 notified by the JNU which provides that seats that remained vacant could be offered to the candidates next in the merit list.
PETITIONERâS CONTENTIONS:
â˘Â The learned counsel for the petitioner submits that through the texts received by Mr Shahid C., it is evident that the last date for submitting documents and certificates was 19.01.2022 and in the event of the failure to submit requisite documents by 19.01.2022 the admission will be deemed as cancelled.
â˘Â He further contended that Mr Shahid C. had failed to submit the required documents by 19.01.2022, therefore, his admission will be deemed as cancelled. He also submits that Mr Shahid C. had also conveyed his intention to the respondent university to cancel his admission through an email.
â˘Â The learned counsel, therefore, urged that seat should have been offered to the petitioner due to the vacancy created.
â˘Â The learned counsel further submits that the last date for admission according to the timetable was 20.02.2021 but the fifth and final list was issued by the university on 28.01.2022 i.e. much later than the deadline. It clearly shows that the university itself did not adhere to the last date of admission.
â˘Â He further contended that the date of admission written on the Semester Registration Card of Mr Saddam Hussain is 04.03.2022 which is much later than the deadline for admission. The learned counsel, therefore, submits that the respondent had the discretion in deciding whether candidates were to be admitted or not after the last date.
RESPONDENTâS CONTENTIONS:
â˘Â The learned counsel for the respondent submits that Mr Shahid C. was pursuing M. Phil from Pondicherry University but at the same time, he had blocked a seat for Ph.D. in JNU. But a student cannot be registered in two regular courses at the same time.
â˘Â The council draws the attention of the court to the circulars dated 24.12.2022 which provided that the students pursuing M. Phil from other universities had to submit the dissertation in their respective universities on or before 31.01.2022 and simultaneously had to submit a certificate with the JNU for confirming their admission in Ph.D. program.Â
â˘Â The counsel further submits that Mr Shahid C. kept the seat blocked till the final merit list i.e. on 28.01.2022 and accordingly, no vacant seat was available which could be offered to the petitioner.â˘Â The learned counsel further submits that the cancellation of admission by Mr Shahid C. on 15.02.2022 was of no use to the petitioner as the admission process was already closed by then.
â˘Â As far as the date on the registration card of Mr Saddam Hussain was concerned, it was submitted that he had already blocked his seat in Ph.D. program in the first merit list itself. Further, due to Covid, the semester started late and the date mentioned in the registration card is the date on which the same was generated at the school/centre level.
â˘Â Therefore it was urged by the respondent university that they had acted in the four corners of the admission policy and the petitioner had no right to seek admission when there was no vacant seat available till the last merit list.
JUDGEMENT:
The Honâble court while deciding the case, referred to clause 6.3 of the Admission Policy & Procedure 2021-22 which makes it clear that only such seats which are vacant before the deadline for admission, shall be offered to the eligible candidates next in the merit list. But in the present case, Mr Shahid C. had blocked his seat till 15.02.2022 which was much later than the deadline for admission i.e. 28.01.2022. Therefore the seat in the Ph.D. program was not vacant till the admission process continued and the same could not be offered to the petitioner contrary to the mandate of clause 6.3 of the Admission Policy & Procedure, 2021-22.
The court thus held that as there was no vacant available, the petitioner cannot claim the right to admission against the said seat and no mandamus can be issued directing the respondent institute to grant admission to the petitioner contrary to the approved timeline.
The question in the present writ petition is whether the past service rendered by the petitioner as a Civil Judge can be counted for the purpose of calculating the qualifying service viz. ten years as Civil Judge, for appointment to the Delhi Higher Judicial Serviceby promotion on the basis of merit through Limited Departmental Competitive Examination (‘LDCE’).
FACTS:
The petitioner joined the HCS as a Civil Judge on June 27, 2012. Following that, the petitioner successfully completed the Delhi Judicial Service. Examination, 2015, and joined the Delhi Judicial Service (‘DJS’) through the proper process, i.e., after being discharged from the post of Civil Judge (Junior Division)-cum-Judicial Magistrate. Upon her request, the petitioner was exempted from mandatory induction training and was given the benefit of her HCS service for the limited purpose of being exempted from training in the DJS, carry forward of leave, Leave Travel Concession and pay protection. In a letter, the petitioner sought that the Court enable her to appear for the LDCE 2022 for promotion to the DHJS by including her previous service with the HCS towards the required service of ten years as a Civil Judge. The petitioner’s request was heard by the Court’s Examination Committee and later rejected.
PETITIONERâS CONTENTION:
According to the learned counsel, the petitioner was initially appointed in the HCS on June 6, 2012. He stressed that the petitioner’s remuneration in both HCS and DJS was the same. As a result, he claims, the petitioner made a lateral entry into DJS. He stated that the provision making Civil Judges with ten years of qualifying service eligible for promotion in the 10% LDCE quota for DHJS came into effect only on April 19, 2022, as a result of a Supreme Court of India judicial order in All India Judges Association Vs. UOI & Ors. He contended that the competent authority had not considered the above judgment of the Supreme Court. He stressed that the Government of India had issued an O.M. dated September 1, 1998, for all its workers to count past service for the fulfilment of qualifying service for promotion in the new department. He contended that the interpretation of O.M. is no longer res integra because it has been interpreted by the Supreme Court in accordance with the petitioner’s claim in Renu Mullick vs. Union of India, (1994) 1 SCC 373.
RESPONDENTâS CONTENTION:
The learned counsel submitted that the judicial officers nominated to HCS and DJS are subject to distinct service rules and are overseen by different High Courts, and so the terms of service of people subject to various rules cannot be equated as a matter of right.He submitted that Rule 2(e) of the DJS Rules categorically defines the word âserviceâ as the âDelhi Judicial Serviceâ and there is nothing in the DJS Rules which states that the service rendered as a judicial officer in another State is to be counted for calculating the qualifying service. He contended that the benefits of carry forward of leave, LTC, and pay protection, all of which fall within the monetary genre, were granted to the petitioner in accordance with the guidelines provided in O.M. dated 17th August 2016 of the Government of India. He also contended that the petitioner’s entire case violates the well-established legal concept that the fundamental qualification for a position is completely determined by the employer.
JUDGEMENT:
The High Court stated that there is no merit in the present writ petition. Accordingly, the present writ petition along with applications stands dismissed but with no order as to cost.
