About the Institution

Alliance University is a Private University established in Karnataka by the State Act No.34 of year 2010. The University is jointly recognized by the University Grants Commission (UGC), New Delhi, Bar Council of India (BCI) and the All India Council for Technical Education (AICTE), New Delhi. Alliance University with a vibrant and picturesque campus in Bengaluru, one of the fastest growing cities in India, offers more than 20 undergraduate and postgraduate majors to approximately 7000 students of diverse backgrounds.

About the MUN

Alliance School of Law, Bangalore is organizing its first online edition of Alliance University Model United Nations (AUMUN) on 24^th and 25^th July, 2021.

The aim of organizing AUMUN is to facilitate meaningful debate on international issues by inculcating the quintessential skills of critical thinking, research and eloquence in all participants. AUMUN presents an enriching platform for peer interaction and exchange of ideas. Overall, our purpose is to aid the participants in holistic development of their personality.

AUMUN Committees

General Assembly 1 – The Disarmament and International Security Committee
General Assembly 6 – Legal
Lok Sabha
Fédération Internationale de Football Association (FIFA)

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Applications are invited from all school and college students (from Class VIII onwards).

Registration Details

Registration Fee is Rs. 350/- per Delegate.

No extra fees for Group Delegations

For Registration Links and Payment, Visit- https://www.alliance.edu.in/aumun-2021/

Last Date for Registration is July 19, 2021.

Awards & Certificates

E-Certificates for participation to all delegates.

E-Certificates for all Winners.

Gift Vouchers upto Rs. 2,500/- per Committee

Platform– ZOOM

Contact Information

For any queries, please email us at amunc@alliance.edu.in

Student Co-ordinators:

Arkadeep Pal, Director General : +91 97314 45903, parkadeepllb18@law.alliance.edu.in

Paarth Samdani, Secretary General : +91 80075 04772, spaarthllb18@law.alliance.edu.in

Varun Nair: +91 98194 42209, nvarunllb18@law.alliance.edu.in

URL: https://www.alliance.edu.in/aumun-2021/

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Magistrate quashed 2 deportation orders passed by a Magistrate concerning a foreign resident, the High Court of Telangana observed that under the Code of Criminal Procedure a magistrate does not have the power to order the deportation of foreign residents in case of violation of the Foreigners Act.

Further, it was said that “Learned Magistrate has to confine his findings concerning either acquittal or conviction of accused therein under Section 248 of the Cr.P.C., Learned Magistrate is not having the power to order the deportation of any foreign citizen for any violation.”

The applicant, who had come to India on an employment visa from the Ivory Coast had approached the High Court, the plea sought quashing of the deportation orders by which the Magistrate had directed the jail authorities to release him forthwith after acquitted him in the criminal cases filed against him.

It was thus held by the High Court of Telangana, the case of the petitioner that the Magistrate while pronouncing judgment under Section 248 of Cr.P.C. does not have the power to order the deportation of foreign resident for any kind of violation.

-Report by Muskan Chanda

On May 31, 2021, the Supreme Court of India raised a slew of questions in its order while hearing the suo-motu case related to Covid Management in India. In the said order, the Court criticized the Centre’s Covid vaccination policy and described it as prima facie arbitrary and irrational.

The bench of Justice DY Chandrachud also asked the Central Government to provide the details and information about how Rs. 35,000 crore, which was earmarked especially for procurement and supply of vaccines, has been spent so far and for the Centre to present all the relevant and important documents regarding the covid vaccination policy in front of the court.

The Union Government has stated that as per the projected midyear population of India for 2020, the total population aged 18 years and above is approximately 94 crore, and the administration of 2 doses to each citizen would require an estimated 188 crore vaccine doses.

In a 380-page affidavit, the Centre stated that it expects to procure the estimated requirement of around 188 crore doses from at least 5 manufacturers by the end of the year. It also stated that a poor person and a millionaire are equally entitled to get the Covid vaccine for free and that necessary actions are being taken to ensure the safe, accessible, and effective administration of vaccines. It further contended that along with the two major vaccines of the country, Covishield, and Covaxin, another Russian Coronavirus vaccine named Sputnik V has received Emergency Use Authorisation by the DCGI, India. Some other domestic vaccines from Biological E and Zydus Cadila are also in the final stages of clinical trials and once approved, will further increase the availability of vaccines.

The court, in its order dated 31.05.2021, also asked for the reasons behind the involvement of private hospitals in the process of administering vaccines. To this, the government stated that according to the statistics, almost 55% of the population gets medical care from private hospitals and the remaining 45% gets health care services from government-run hospitals. It argued that private hospitals have a wider range to vaccinate people and also lessens the stress on government facilities during a time of crisis.

The Health Ministry Of India on 26th June informed that Zydus Cadila, an Indian pharmaceutical company, will soon complete clinical trials for the vaccine against Covid-19 for citizens in the age bracket of 12-18 years and that the doses will most likely be available from July end or August.

-Report by Anuj Dhar

The Jharkhand High Court, while hearing a bail application in a sexual assault of a minor case, gravely criticized the investigating authority and the officers of the case for defiance of judicial orders.

The victim, who shall remain nameless, was a 13-year-old minor girl who was sexually assaulted by the petitioner and the victim had neither been made a charge sheet witness nor was presented before the court, despite judicial orders which instructed them to do the same.

The learned counsel representing the petitioner submitted that the victim of the case was not a charge sheet witness and had not even been examined yet. He further stated that despite several letters written to the Superintendent of Police, Sahebganj, and the DIG, Dumka, the petitioner is rotting in custody for more than 3 years and the victim is not being examined.

The court stated that it is really surprising why the Investigating officer has not made the victim a charge sheet witness, despite the case being registered under POCSO Act and the victim is a 13-year-old minor girl. Further, the court found that the Trial Court has sent several letters to the Superintendent of Police and also to the Director-General of Police, Jharkhand asking to produce the victim in front of court but the said letters yielded no response and no actions were taken.

The court concluded that prima facie the acts of the Investigating officers and authorities cannot be said to be bonafide since leaving out the main person as a witness in the charge sheet and continuous defiance of court orders are bound to arise questions and suspicions. The court feels that the officers, by not responding to judicial orders, have committed contempt of Court.

The court ultimately stated that an affidavit should be filed by the Director-General of Police, Jharkhand personally within 3 weeks after making proper inquiry and verification.

-Report by Anuj Dhar

Introduction

PIL means litigation filed for the protection of “Public Interest”, like Pollution, Terrorism, Road safety, Constructional hazards, etc. Any matter where the interest of the public at large is affected is often redressed by filing a Public Interest Litigation. The expression ‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it had been designed to supply representation to previously unrepresented like the poor, the racial minorities, unorganized consumers, citizens who were hooked into the environmental issues, etc.

Public interest litigation is the power given to the general public by courts. The person filing the petition must convince the court that the petition is being filed for public interest and not for personal reasons.

The court itself may take suo moto cognizance of the cases may commence on the petition of any public-spirited person.

Some of the matters which are considered under PIL are:

Bonded Labour matters
Neglected Children
Non-payment of minimum wages to workers and exploitation of workers.
Atrocities on women
Environmental pollution and disturbance of ecological balance
Food adulteration
Maintenance of heritage and culture

Origin and Evolution of PIL in India

The concept of public interest litigation was introduced for the first time in India by Justice Krishna Iyer, in 1976 in the case of Mumbai Kamagar Sabha v. Abdul Thai.

The first-ever reported case of Public Interest Litigation was Hussainara Khatoon v. the State of Bihar (1979) that focused on the inhumane conditions of prisons and under trials, which led to the acquittal of about 40,000 under trials prisoners.

The right to speedy justice emerged as a fundamental right that was not given to those prisoners. A similar set pattern was adopted in later cases.

A new period of Public Interest Litigation Movement was started by Justice P.N. Bhagwati in the case of SP Gupta v. Union of India.

Some of the landmark judgments on PIL were:

Indian Banks’ Association, Bombay & Ors. v. M/s Devkala Consultancy Service and Ors.
M.C Mehta v. Union of India.
Vishaka v. the State of Rajasthan.

Facts Responsible for the Growth of PIL in India

The character of the Indian Constitution: India features a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.

The liberal interpretation of locus standi also means that any person can apply to the court on the behalf of the people who are financially or physically unable to return before they are helped. Judges themselves have in some cases initiated suo moto action supporting newspaper articles or letters received.

Although social and economic rights given within the Indian Constitution under Part IV aren’t legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable, for instance, the “right to life” in Article 21 has been expanded to include the right to free legal aid, right to live with dignity, right to education, etc.

Judicial innovations to assist the poor and marginalized: In the Bandhua Mukti Morcha case, the Supreme Court put the burden of proof on the respondent stating it might treat every case of forced labor as a case of bondage unless proven otherwise by the employer. Similarly, in the case of Asiad Workers, Justice P.N. Bhagwati held that anyone getting a wage can approach the Supreme Court directly without going to the labor commissioner and lower courts.

In PIL cases where the petitioner isn’t in a position to supply all the required evidence, either because it’s voluminous or because the parties are weak socially or economically, courts have appointed commissions to gather information on facts and present it before the bench.

Drawbacks Related to Public Interest Litigation

A PIL may give rise to the matter of “competing rights”. When the Court orders the closure of a polluting industry, the rights and interests of the workmen are also being violated as their only source of livelihood is being snatched away from them and this may not be taken into account by the court.

It’s for the reason that people can misuse and file frivolous PILs motivated by personal and selfish reasons or malice, the Courts have reiterated time and again that PIL isn’t “personal interest litigation” for corporate, personal, and political gains. This results in the overburdening of the courts.

In the process of solving socio-economic issues or a drug related to the protection of the environment, the judiciary may in certain cases exercise judicial overreach through the PILs.

There is an inordinate delay within the disposal of PIL cases especially matters involving the poor and disadvantaged. This defeats the entire purpose of speedy justice and dilutes the importance of judgment.

Conclusion

Public Interest Litigation has departed from the normal system of litigation and caused a system that involves initiating an action to enforce the interest of the general public at large. Over the years it’s become a potent tool for the poor, illiterate and underprivileged to possess access to the Courts and seek judicial redress by filing an application under Article 226 to the Supreme Court and Article 32 to the Supreme Court.

Therefore, PIL has democratized access to justice by relaxing the rule of locus standi. Thus, any public-spirited person or social activist or group can now approach the Court on behalf of a particular group or class of persons, especially the oppressed and marginalized. The main reason why PIL has flourished in India is that the Constitution of India through its Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework to manage the relationship between the state and the citizens and also between citizens.

The accountability of the government towards the rights and interests of the poor and disadvantaged has increased in PIL within the country. The relaxation of the normal rule of locus standi enables a person to approach the Court and represent those that are socio-economically disadvantaged and unable to get redressal. Therefore, PIL has been a crucial tool in bringing about social change; upholding the Rule of Law enshrined under Article 14, and thereby creating a fragile balance between law and justice.

Bibliography

Anasuya Mukherjee, Public Interest Litigation- Genesis, and Evolution, https://lawcirca.com/public-interest-litigation-genesis-and-evolution/.
Public Interest Litigation, https://www.drishtiias.com/to-the-points/Paper2/public-interest-litigation.
Rachit Garg, All you need to know about Public Interest Litigation (PIL), https://blog.ipleaders.in/need-know-public-interest-litigation-pil/.

This article is written by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Case Number

Criminal Appeal No. 71 of 2012

Bench

Hon’ble Justices Ranjan Gogoi, L. Nageswara Rao, Sanjay Kishan Kaul

Date of Judgment

09 April 2019

Relevant Section

Section 177 (CrPc), Section 178 (CrPc), Section 179 (CrPc), 498A (IPC)

Facts of the Case

Marriage of petitioner and respondent: December, 1997

In December of 1997, the petitioner, who had her parents’ home in Deoria, Uttar Pradesh, married respondent no.2, who used to dwell in Mau with his family. Sufficient cash and dowry articles were given at the time of marriage, but the accused persons were not content and began harassing and maltreating the petitioner in her Sasural on account of a demand for Rs. 2 lacs in cash and a car. She told her father about it as well. Her father traveled to Mau and attempted to reason with the accused, who were resolute in their demand.

Petitioner gave birth to a child: 12 May, 1998

The petitioner gave birth to a son on 12.5.1998, who is now 7 years old. The petitioner’s harassment continued even after the birth of a son. When she became pregnant again, the accused admitted her to Dr. Saxena’s Ladies Clinic in Mau and forcibly terminated her.

Petitioner thrown out of Matrimonial home (Mau): July 2002

The petitioner was ejected from her matrimonial home in July 2002, and the accused individuals kept the male kid with them. Her father drove her to Deoria and tried unsuccessfully to appease the accused.

Petitioner went back to her matrimonial house: 14 April 2005

The accused persons, accompanied by certain Mau responsible persons, came to the petitioner’s house in Deoria on 14.4.2005 at about 4:00 p.m. for a compromise and expressed their desire to take the petitioner with them. After some hesitation, the petitioner returned to her sasural, but when she arrived, she discovered that a stranger woman was also living with the accused’s family, and upon more investigation, it was discovered that she was the petitioner’s husband’s second wife. When the petitioner objected, the accused beat her, locked her in a room, and forced her to sign blank papers.

Petitioner again turned out of Matrimonial house:27 May 2005

On 27.5.2005, the petitioner was kicked out of their house after signing divorce papers. The petitioner travelled to Deoria and told her father everything that had happened.

Petitioner lodged an F.I.R at Police Station Kotwali, Deoria: 17 September 2005

On September 17, 2005, petitioner filed an F.I.R. against respondent at Police Station Kotwali, Deoria, alleging violations of Sections 498A, 494, 313, and 504 of the Indian Penal Code.

Issues Raised

Rupali Devi vs. the State of Rajasthan has set a precedent for determining whether a woman forced to leave her matrimonial home due to acts of cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to seek refuge with her parents or other family members.

Judgment

The Hon’ble Supreme Court concluded that Section 178 offers an exception to the “ordinary rule” engrafted in Section 177 by allowing courts in another local area to take cognizance of the offense. In addition, if an offense committed in one locality is repeated in another, the courts in the latter location are competent to hear the case. If an offense is committed in another jurisdiction as a result of the consequences of a criminal act, the court in that jurisdiction is likewise competent to take cognizance under Section 179. As a result, if an offense is committed in part in one location and part in another, the exception to the “ordinary rule” would be attracted if the offense is a continuing offense or if the consequences of a criminal act result in an offense being committed at a different location, and the courts within whose jurisdiction the criminal act is committed would lose exclusive jurisdiction to try the offense.

The Supreme Court accepted the appeal and overturned the High Court’s acquittal. It found the respondent guilty of the offense punishable under Section 498A of the Indian Penal Code and held that the courts in the location where the wife seeks refuge after fleeing or being driven from the matrimonial home due to acts of cruelty committed by the husband or his relatives also have jurisdiction to hear a complaint alleging commission of offenses under Section 498A of the Indian Penal Code.

Critical Analysis

It is to be commended that the Supreme Court has said explicitly that women can file criminal charges related to cruelty from the location where they have sought refuge after leaving or being pushed out of their matrimonial home. The Supreme Court ruled that Section 498A of the Indian Penal Code (IPC) covers both the wife’s mental and physical health. Even if a wife leaves her matrimonial home and returns to her parental home, the acts performed by the husband in the matrimonial home that constitute cruelty within the meaning of Section 498A can have negative consequences for her mental health in the parental home.

This Supreme Court ruling was necessary to prevent the rising number of cases of cruelty and domestic abuse directed at women, which result in suicides or serious injuries. The vulnerable women who are habitually beaten and tortured by their husbands and husband’s family members would be protected by the Hon’ble court’s decision.

This case analysis is written by Sanjana Suman student of Amity Law School, Amity University Jharkhand Ranchi.

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Every day in our life, we come across various news items in which someone has been charged with a crime (s). The main question that any legal enthusiast has when they come into these is if the accused or those who will be brought before courts for trial have any fundamental rights or protection. To deal with the same Article 20 was introduced in the Indian Constitution. The article comprises 3 clauses. First, the essence of these regulations is that no one shall be convicted for any offense other than those that violate the law in effect at the time of the offense and that no punishment should be imposed that is greater than that which existed at the time the conduct was committed. Second, no one could be found guilty and punished for the same crime more than once. Third, no one should be forced to furnish evidence or information that could be used against them in an inept judicial tribunal’s trial. Article 20 of the Indian Constitution is one of the few that cannot be ignored, even in an emergency. As a result, it is regarded as a cornerstone of the Indian Constitution.

Article 20(1)

The first portion of Article 20(1) bans criminal laws from being applied retroactively if a new offense has been formed. Such laws that create new offenses cannot be applied retroactively to punish someone for something they did previously. Thus, criminal laws that create new offenses cannot be applied retroactively, as this would be a violation of Article 21 as well as a violation of the principles of reasonableness, justice, equity, and good conscience, as well as arbitrary legislation. If a criminal statute doubles the penalty for an already-existing crime, it cannot be enforced retrospectively since it would be illogical, arbitrary, unjust, and immoral. If the offense is abolished or the punishment is lowered by a subsequent law, and the law is applied retrospectively, the accused who committed the offense earlier will profit from the new law. If, on the other hand, such advantageous legislation was not applied retroactively, the accused can undoubtedly claim the benefit of the new law, and the court, after condemning him, can grant him a new trial. This is called the doctrine of beneficial construction.

Article 20(2)

Jeopardy signifies hazard or trouble in the literal sense, but in criminal law, it means punishment. No one may be prosecuted and punished more than once for the same offense. It will be a superfluous and disproportionate restriction on the accused’s life and personal liberty, as well as irrational, unjust, arbitrary, and contrary to good conscience. The accused must show that he was previously prosecuted and punished in a judicial or quasi-judicial action for the same offense. The ban of Article 20(2) of the Indian Constitution does not apply if the accused has already been prosecuted and acquitted. It is critical that he was previously convicted and sentenced in a court or quasi-judicial action. Article 20(2) will not apply if the previous proceeding was not judicial or quasi-judicial, but rather a departmental proceeding.

Article 20(3)

According to Article 20(3), the accused cannot be forced to testify against himself. The protection is provided at all levels, including the trial stage, and it is available against both mental and physical compulsion. It should be mentioned that the protection is only for personal knowledge. It does not include physical manifestations such as a thumb impression, my watch, or a blood sample, for example. In-State of Bombay v Kathi Kalu Oghad it was held that if some facts are visible then the protection as provided under Article 20(3) will not apply. The protection is not only with regard to the compulsion but also with respect to any kind of mental coercion; it only applies to facts or information based on the accused’s personal knowledge. In another case of Nandini Satpathy v P L Dani , it was held that the prohibitive breadth of Article 20(3) emerges at the very beginning of an investigation, and protection is accessible at all phases of the investigation, inquiry, and trial. As a result, protection is accessible at both the section 161 and section 313 and 315 stages of the CrPC. Article 20(3) exclusively protects the accused in a case, not the witnesses.

If we examine all of the articles in Article 20 of the Indian Constitution, we may deduce that these clauses, namely Article 20(1), Article 20(2), and Article 20(3), reflect the protection of condemned persons from excessive legislative, judicial, and executive measures, respectively. These protections are also available to all persons, including Indians and foreigners, and thus form the cornerstone of the Indian Constitution, guaranteeing basic human rights to those who have been convicted or suspected of crimes. Its availability even when an emergency is declared under Article 352 of the Indian Constitution is what distinguishes it and makes it so crucial for the execution of democratic duties.

This article is authored by Vanshika Samir, a first-year student at the Rajiv Gandhi National University of Law, Punjab.

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Position – Content creator & Social Media Manager
Vacancy – 3

Eligibility – Open to all.
Minimum period of internship- 2 months (extendable)

Application procedure –

Send your cv and cover letter via mail at paritriptafoundation@gmail.com mentioning why your application should be accepted. Keep subject of the mail as “Application for the post of Content creator Intern”

Required Skill Set:

Should be able to work independently.
Should be well versed with online tools like canva & adobe etc.
Excellent interpersonal communication skills both verbal and written.
Must be an active social media user and well versed with social media functioning.
Should be adaptive in nature and comfortable in connecting with people via calls, messages and mails
Added advantage if prior experience in handling social media pages/creating social media content.
Should have good research skills.

Work Includes:

a) Designing short videos, images, GIFs etc for our projects.
b) Handle social media platforms such as twitter, linkdin, Instagram,facebook and youtube.
c) Keep the social media platform updated on daily basis by posting the created content based on the projects of the NGO.
d) Provide innovative idea for the website and its blog.
e) Suggest innovative ways to create engaging posts.
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Case Number

Civil Miscellaneous Petition No. 4939 of 1983, in Writ Petition No. 4676 of 1978

Equivalent Citations

1981 AIR 2198, 1982 SCR (1)1077, 1982 SCC (1) 71, 1981 SCALE (3) 1707

Bench

V.D. Tulzapurkar, D.A. Desai, A.P. Sen

Date of Judgment

3 November, 1981

Relevant Act/ Sections

The Wakf Act, 1995

Article 32 of the Constitution of India, 1949

Section 144 of the Code of Criminal Procedure, 1973

Section 5 of the Code of Criminal Procedure, 1973

Facts of the Case:

In Mohalla Doshipura of Varanasi City, there are two sects of Mohammedan-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the Moharram but in a different manner. The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practiced by the men-folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marcia, doing Matam (wailing), and taking out processions with Tabut Tazia, Alama, Zuljinha, etc. For performing these religious rites, practices, and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them.

Tazia at Doshipura is a unique Tazia in the whole country, being made of fine wood carvings, about 15 ft. in height, having five floors, and decorated with gold and silver and would be of the value of not less than Rs. 3 lakhs. According to the petitioners, the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the Moharram and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place. The aforesaid religious faith and the performance of the rites, practices, observances, and functions detailed above constitute their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution and the members of the Shia community of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial.

From the year 1960 onwards the Sunnis, who were in majority and were able to muster the support of local politicians and the police, started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec. 144 Cr. P.C. but in abuse of the power thereunder started placing undue restrictions on the members of the Shia community in the performance of their religious functions and ceremonies. Thus, during the period 1960-66 the Executive power under sec. 144 Cr. P.C. came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari, other structures, and the appurtenant plots on the occasion of the Barawafat; sometimes restraints were also placed on the Sunnis. During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of Moharram, Chehulam, Pacha, and Barawafats under section 144 were issued by the district authorities. In subsequent years also similar orders were passed sometimes placing restrictions on one community and sometimes on the other, sometimes permitting certain observances on terms and conditions during the stated hours. More often than not under the pretext of imminent danger to peace and tranquillity both the communities were completely prohibited from carrying out their religious functions and ceremonies under such orders.

Procedural History

In the year 1973 on the occasion of Barawafat the City Magistrate, Varanasi by his order dated 12th April 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots, and Sunnis were illegally permitted to observe Barawafat on Plot No. 602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April 1963 from 9 A.M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No. 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots. This Writ Petition and the connected criminal cases (being Criminal Revision and a Criminal Reference against similar earlier orders u./sec. 144 Cr.P.C.) were heard and disposed of by the High Court by a common judgment delivered on August 8, 1975.

Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time, the High Court felt that where a situation arose year after year making it necessary to take action u./sec. 144 Cr.P.C. it would be a proper exercise of its discretion to interfere with the impugned order if found to be illegal or improper, so that the Magistrate may not be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec. 144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide-lines to the Magistrates in the exercise of their discretionary power under sec. 144.

On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court’s decision in earlier litigation and quashed the City Magistrate’s order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases.

Against this common judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl. As. Nos. 432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of by this Court by a Common judgment dated 6-12-1976 and this Court held that the High Court should not have pronounced any view on the impugned orders under sec.144 when those orders had ceased to be operative and that the High Court should not have given findings on rights, title and property depending on disputed questions of facts in a writ petition the judgment and findings of the High Court were set aside and parties were relegated to have their rights agitated or settled in a civil suit.

Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No. 36 of 1977 in Civil Appeal No.941 of 1976 which was dismissed by this Court on 16th December 1977.

Issues before the Court:

Whether an Order made under Section 144 Criminal Procedure Code is judicial or quasi-judicial order or whether it is passed in exercise of executive power in performance of executive function amenable to writ jurisdiction under Article 32 of the Constitution
Whether the petitioners could be said to have made out any ground for challenging the impugned order passed by the City Magistrate, Varanasi on 24th November 1979 prohibiting both Shia and Sunni communities from holding their Majlises and imposing other restrictions on the occasion of the celebration of Moharram festival at the Baradari in Mohalla Doshipura.
Whether the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of the petitioners’ legal rights to perform their religious ceremonies and functions on the plots and structures in question
Whether the petitioners have succeeded in proving their subsisting entitlement to the customary rights claimed by them.

Ratio of the Case

The question of whether an order under Section144 Criminal Procedure Code is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided in the instant case by reference to the new Criminal Procedure Code, 1973 and not by reference to the old Criminal Procedure Code, 1898.
The position under the 1898 Code, wherein separation between the judicial functions and executive or administrative functions of Magistrates did not obtain, was quite different and the power to act in urgent cases of nuisance and apprehended danger to public tranquillity under Section144 of the Code had been conferred on “District Magistrates, Chief Presidency Magistrates, Sub-Divisional Magistrates, or other Magistrates specially empowered by the State Government”
The position under the new Criminal Procedure Code 1973 is entirely different whereunder the scheme of separation of judicial functions from executive functions of the Magistrates, as recommended by the Law Commission has been implemented to a great extent.
If certain sections of the present Code are compared with the equivalent sections in the Old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates.
The order under sec. 144 Cr.P.C. 1973 is amenable to writ jurisdiction under Article 32, the same being in the exercise of executive power in the performance of the executive function.
The challenge to this order was incorporated in the writ petition by way of an amendment that had been allowed by the Court.
Since however, that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity.
Without setting out verbatim the provisions of sec. 144 of the 1973 Code, we might briefly indicate the nature of power thereunder and what it authorizes the executive magistracy to do, and in what circumstances.
In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable, a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may, by a written order stating the material facts of the case, direct a particular individual, or persons residing in a particular place or area, or the public generally when frequenting or visiting a particular place or area,
- (i) to abstain from a certain act or
- (ii) to take certain order with respect to certain property in his possession or under his management, if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person lawfully employed, or danger to human life, health or safety, or a disturbance of public tranquillity, or a riot or an affray.
As stated earlier sub-sec. (2) authorizes the issuance of such an order ex-parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under sub-sec. (5) the executive magistrate, either on his own motion or on the application of the person aggrieved after giving him a hearing, may rescind or alter his original order.
Under sub-section (4) no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months.
The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions, and annoyances with a view to secure the public weal by maintaining public peace and tranquillity.
Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.
The Magistrate’s action should be directed against the wrong-doer rather than the wronged.
Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on the consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant.
They are basing their customary rights on two foundations, namely, decisions of competent Civil Courts adjudicating these rights in their favor and registration of Shia Wakfs concerning the plots and structures for the performance of these practices and functions under secs. 5 and 38 of the U.P. Muslim Wakfs Act, 1936
This is a clear case of an existing or established entitlement to the customary rights in favor of the Shias’ community to perform their religious ceremonies and functions over the plots and structures in question under the decree of competent Civil Court for the enforcement of which the instant Writ Petition has been filed.
It seems to us quite clear having regard to the six properties being specifically asked to be entered in the list of Shia Waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia Waqfs by the Chief or Provincial Commissioner for Waqfs and the Notification under s. 5(1)
When these plots and structures, particularly these three plots were being registered as Shia Waqfs under the U.P. Muslim Waqfs Act 1936 by the Shia Board and Sanads of Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a Lease on 20.4.1952 did not raise any objection to such registration. The Shias customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title.

Final Decision:

The Court held that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi has established their existing customary rights to perform their religious rites, practices, observances, ceremonies, and functions minus the recitation and utterance of Tabarra (detailed in the writ petition) over the Plots and structures in question and respondents 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4, particularly the executive magistracy of Varanasi is directed if action under section 144 Cr. P.C. is required to be taken, to issue their orders under the said provision having regard to the principles and the guidelines indicated on that behalf in this judgment. The writ petition is thus allowed but each party will bear its own costs.

This case law analysis is written by Prateek Chandgothia, a first-year BA LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab.

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In Lahore High Court

Case No.

AIR 1928 Lah 609

Equivalent Citation:

(1928)ILR9LAH701

Decided on

2nd April 1928

Bench

Sir Shadi Lal; Justice Broadway; Justice Harrison; Justice Tek Chand; Dalip Singh.

Facts of the Case-

In this case, defendant 1 negotiated to sell a parcel of property to the plaintiff while still a child and fraudulently concealing his age He was given Rs. 17,500/- as payment, the plaintiffs had paid Rs. 8,000 in cash to the Sub-Registrar, and the remaining Rs. 9,500 was secured by a promissory note due on demand. The plaintiffs claimed that defendant 1 was lawfully paid Rs. 17,500 since the promissory note for Rs. 9,500 in his favor was discharged by another promissory note issued by the plaintiff in favor of the defendant’s brother-in-law Muhammad Hussain at the request of the defendant 1, that the plaintiffs had paid Rs. 5,500 of the Rs. 9,500 to Muhammad Hussain and were willing to pay the remainder. After receiving money the Defendant 1 had refused to give ownership of the property, and the plaintiffs requested that possession of the property sold be handed to them, or that a decree for Rs. 17,500, the consideration money, be issued together with interest or damages deriving from breach of contract at the rate of 1% per mensem, totaling to Rs. 1,050, i.e., for Rs. 19,000 in total, might be passed against defendant 1’s other property.

Issues before the Hon’ble Court-

Whether a juvenile who has convinced a person to sign into a contract by fraudulently claiming himself to be a major is barred from arguing his minority to escape the contract.
Whether a party who, as a minor, entered into a contract by making a false representation about his age, whether as a defendant or plaintiff, can decline to fulfill the contract while retaining the advantage he may have gained from it in a future dispute.

Judgment-

Prior to 1903, there was considerable doubt over a minor’s competence to enter into a contract, as to whether a minor’s contract was invalid or voidable.
However, all doubt on the subject has been removed by their Lordships’ Privy Council’s decision in Mohori Bibee v. Dharmodas Ghose, which declares that a person who is incompetent to contract due to infancy, as defined by Section 11 of the Contract Act, cannot make a contract within the meaning of the Act. The transaction entered into is not legal.
The law of estoppel is a universal law that applies to all people, but the law of contract pertaining to the ability to engage in a contract is focused on a specific object, because it is a well-established concept that when the legislature expresses a general-purpose as well as a special intention that is incompatible with the general one, the particular intention is deemed an exception to the general one: according to Best, C.J. in Churchill v. Crease
The rule against applying the theory of estoppel to a contract invalid on the basis of childhood has been adopted in India, not only by the Calcutta High Court, but also by the High Courts of Madras, Allahabad, and Patna. However, a Division Bench of the Lahore High Court agreed with the Bombay High Court in Wasinda Ram v. Sim Rant.
In Mohoree Bibee v. Dharmodas Ghose, an appeal from the Calcutta High Court’s decision in Brahma Datt v. Dhurmo Dass Ghose, their Lordships abstained from expressing a view and disposed of the matter by making the following observation: The lower courts appear to have determined that this provision (S. 115) does not apply to babies, but their Lordships do not believe it is essential to address that issue at this time. They believe it is obvious that the section does not apply in a case like this one, where the statement relied on is made to a person who is aware of the true facts and is not deceived by the false statement.
The balance of court authority in India is decisively in favor of the rule that if an infant had convinced a person to contract with him by the false representation that he was of full age, he is not estopped from pleading his immaturity in avoidance of the contract and, despite Section 115, The Evidence Act is broad in scope, and the court held that it must be read in conjunction with the Contract Act, which declares a transaction carried into by a minor invalid.
As a result, the answer to the first question posed is negative.
Second, an infant’s fraudulent assertion that he was of full age gives rise to equitable responsibility. While absolving him of the contract’s implications, the Court may, in the exercise of its equitable power, return the parties to the position they were prior to the date of the contract (Doctrine of Restitution).
In Stocke v. Wilson, a baby who had received furniture from the plaintiff by fraudulently claiming to be of age and had sold some of it for £ 30 was ordered to pay this sum to the plaintiff as part of the remedy given.
The answer to the second issue is that, while an infant is not accountable under the contract, he may be forced in equity to repay the advantage he got by lying about his age.
In dissent, Harrison J. stated that a minor who entered into a contract by making a false representation about his age, though not liable under the contract, may be required in equity to return the benefit he received by making a false representation about his age, whether he is a defendant or a plaintiff.

The case analysis is done Mudit Jain, currently pursuing B.B.A.LL.B.(H) from Indore Institute of Law.

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