Author: LEXPEEPS editor

A civil appeal has been preferred before the court of District Judge, Mathura, against a civil court order dismissing the suit for removal of Masjid Idgah, allegedly built on the land of Shrikrishna Janam Bhoomi. The Appellants have submitted that the Civil Judge was wrong in dismissing their suit an as much as they are worshippers of Lord Shri Krishna and they have right to assert their right to religion guaranteed by Article 25 of the Constitution to have Darshan and perform puja at the actual birth of place of Lord Krishna which is at present beneath the structural illegally raised by Muslims.

“It is the right and duty of the worshippers to make every endeavor to bring back the lost property of the deity and to take every step for the safety and proper management of the temple and the deities’ property”, it is submitted. The appeal is filed through Advocates Hari Shankar Jain, Vishnu Shankar Jain and Pankaj Kumar Verma. The matter is likely to beard at 2PM today. The Civil court in Mathura on September 30 refused to admit the civil suit on the ground that if suit is registered a large number of worshippers may come to the court.

Disputing this reasoning of the court, the Appellants have submitted that a suit cannot be rejected on the ground that several others may also approach the court. They pointed out that the court below “failed to take notice of the provisions of the order 1 rule 8 CPC and that the court in the appropriate case has power to treat any suit as representative suit when the interest of numerous persons are involved.”

The civil court had also remarked that the appellants herein do not have a Right to sue. Challenging this finding, they have submitted, “The question regarding the right to sue cannot be decided in a summary manner. At the time of admission of suit the court cannot decide the suit suo motto the question of right to sue. Even the court below did not call upon the counsel for the plaintiffs to address on the point of locus standi.”

It was further submitted that they had chosen to file the suit as the trust was not functioning and it had taken no action to recover the property belonging to the deity. The memo of appeal states, “the suit has been filed by the deity through next friend and deity has right to be represented through next friend in case the manager , she bait or persons in charge of affair are negligent in performance of their duty or in case when their action is hostile to the interest of deity and devotees.”

The original suit was been filed in the name of Bhagwan ShriKrishna Virjman, through next friend Ranjana Agnihotri. The list of Petitioners also included six devotees.

The Plea sought “removal of encroachment and superstructure illegally raised by Committee of Management of alleged Trust Masjid Idgah with the consent of Sunni central board of waqf…at katra keshav dev. city Mathura belonging to deity Shree Krishna Virjman.”

The first Petitioner i.e. the deity himself was described as minor, juristic person who can sue and be sued through she bait and in his absence through next friend. The second plaintiff was Shree Krishna Janambhoomi- the place of birth of Lord Krishna, which as per the Plaintiffs has special significance in religious scriptures as well as under Hindu Law. The other plaintiffs were the devotees.

It was alleged that in 1968, the Society Shree Janamasthan Seva Sangh entered into a compromise with the Committee of Management of Trust Masjid Idgah, conceding a considerable portion of property belonging to the deity to the latter. Disputing the legality of this compromise, the Plaintiffs had submitted:

“That it is relevant to mention that Shree Krishna Janamsthan Seva Sangh has no proprietary or ownership right in the property of Katra Keshavdev which stood vested in the deity and the trust.”

It was further contended:

“The original karagar i.e. the birth place of Lord Krishna lies beneath the construction raised by Committee of Management i.e. Trust Masjid Idgah. The true fact will come out before the court after excavation.”

The appeal discloses that the Civil Judge mentioned that compromise had been entered into between Trust Masjid Idgah and Krishna Janamsthan Trust whereas the plaintiffs had clearly stated in the plaint that the compromise was made between Shri Krishna Janamsthan Sewa Sangh and Trust Masjid Idgah ; and Shri Krishna Janamsthan Trust was not party to the compromise and it had not filed the suit.

Therefore, the impugned judgment is stated to be based upon wrong assumption of fact and suffering from non-application of mind. The array of Defendants in his matter include the Sunni Central Board of  Waqf, which is alleged to have granted approval to the committee of management trust masjid idgah to enter into a compromise with Shree Krishna Janamsthan Seva Sangh, giving away some of the deity land for building the Mosque.

Further , the Committee of Management of Trust masjid Idgah is alleged to have put super structure and encroached upon the land of Katra Keshav Dev. without any authority of law and in utter violation of decree of the Court.

Furthermore, Shree Krishna Janamsthan Trust was arrayed as an opposite party, as it was contended that the trust has remained non-functional since 1958 and it has “failed to protect, manage and save the property of the deity.”

The Appellant- Plaintiffs have emphasized that the suit was filed for the “welfare and benefit” of the deity and the devoted at large and further classified that they had not prayed for handling over management of property to them but have prayed  that encroachment be removed and property be handed over to Shri Krishna Janambhoomi Trust .

In a writ petition made by the three doctors seeking relief, in representative capacity on behalf of 92 other doctors, stating that list of placements for mandatory public service was “arbitrary prepared” without bearing in mind a binding decision of a co- ordinate Bench of the High Court as well as ignoring the merits of the respective candidates. In view of the pandemic, the government requested for placement of the successful doctors to complete the period of service in terms of the bond executed by them. A list of doctors has been published on 23^rd September, 2020, whereby the doctors named therein have been directed to report at the hospitals/ colleges mentioned against their names. They were to be sought setting aside of the list as well as for direction on the state to display all the available seats meant for candidates, who executed bonds, and to allow such candidates to fill up their preferences , which would lead to their selection in accordance with merit as was followed till the academic year 2019-20. It was noted that the interim prayers made in the writ petition were also substantially the same, except that instead of setting aside of the list, stay of operation thereof has been prayed for. In the case of Deoraj Vs. State of Maharastra reported that “situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself. It was stated that the court grant the interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice.

It was also to be appeared that there was a time period of 9.5 months to be remaining before the completion of their mandatory service. Therefore, refusal to grant interim relief, as claimed, may not render the writ petition infructuous. As per , in these difficult times of the pandemic, people in the rural areas need adequate medical treatment and we are of the prime facie opinion that doctors like the petitioners and the others should regard the call for service to be rendered as a call for joining ‘national duty’, so as to reach out to the distressed and the needy.

Thus the court observed that the “grant of interim relief as claimed would cause more prejudice to the respondents than refusal to grant interim relief would cause to the petitioners” and directed the petitioners and all doctors to report to their duties respectively by October 13, 2020.

REPORT BY-

HARPREET

The Madras High Court on Thursday directed the Inspector General of Police to monitor the investigation into allegations of a 22 year old migrant laborers having been gang raped at Palladam in tiruppur district. Justices N.Kirubakaran and P. Velmurugam issued the direction following an application moved by advocate A.P Suryaprakasam who also sought provision of food, shelter, medical aid and monetary compensation to the survivor.

Referring to the Hathras gang rap incident in Uttar Pradesh and other similar crimes, the senior judge in the division bench expressed anguish over many incidents of rape and gang rape being reported in the spiritual land. The judge referred to a study, which claimed that the statistics were so alarming that ir accounted to one woman or girl getting raped in the country every 15 minutes and said: “It is very unfortunate. There’s no security for women.”

The sub-application seeking assistance to the Palladam rape survivors was filed in a habeas corpus petition that was already pending in the court. In the HCP, the court had sought details regarding the protection provided to migrant labourers by the centre and the state government. After Justice Velmurugan insisted that the State government should ensure that migrant laborers do not get exploited by employers, the bench passed an order directing the government to disclose steps taken in that direction.

Mr. Suryaprakasam told the court that, apart from numerous problems such as meager pay and lack of access to even basic amenities, women migrant laborers also end up beinf easy targets for sexual predators who indulge in brutal acts.

Finding force in his submission, the judge directed the police to ensure that the culprits in the Palladam rape case were brought to book. They also ordered payment of compensation to her under victim compensation scheme.

The court has dismissed the appeal against Madhya Pradesh High Court judgement upholding their conviction under Section 148, 302 read with Section 149 of the Indian Penal Code, 1860. Karulal, Amra, Kachru, Surattram and Bhagirath were accused of murder of one Madhavji. The evidence against the accused who were charged under Section 148, 302 read with Section 149 IPC was considered. On evaluating the evidence, the learned Trial Court found that the six accused ( including lal who died), being armed with lethal weapons, illegally assembled in order to attack the deceased Madhavji, while adverting to the eyewitness PW3 and PW12, the court highlighted the third eyewitness (PW11) who was not related. The trial court also discussed the slight inconsistency in the evidence of PW3 and noted that his examination in chief and cross examination was conducted after long gap of one and a half years. The learned trial court Judge noted that DR. Shrivastav has merely accepted that injuries could be sustained through a fall from some height. But it was then specifically recorded by the learned judge that the Doctor never stated that the injuried were the result of accidental fall. In fact the defence never suggested that the injuries were not the result of the violent attack by the accused on the person of Madhavji. Accordingly , it was concluded that the injuries on the vital parts were inflicted by the accused in furtherance of their common objective.

On the evaluation of the evidence of the eyewitnesses and the post mortem report, the defence plea of false implication was found to be untrue. It was then held that the accused persons had intentionally caused the fatal injuries on the deceased Madhavji and accordingly they were convicted under Section 302 read with 149 IPC and were sentenced to life imprisonment.

The bench, while addressing the contentions made by the accused, where precedents were briefly discussed and has considered the law on evidentiary value of a related witness by reffering to the decisions in Dalip Singh & Ors. Vs State of Punjab , Khurshid Ahmed Vs. State of Jammu and Kashmir. The court noted that, being related to the deceased does not necessarily mean that they will falsely implicate innocent persons. The court stated that an unrelated witness had deposed supporting the testimony of related witnesses in this case.

It was submitted that few of the witnesses has not supported the prosecution case and were declared to be hostile. But there are enough material evidence and trustworthy testimonies which clearly support the case against the accused. The bench observed that the above precedents make it amply clear that the testimony of the related witness, if found to be truthful , can be the basis of conviction and have every reason to believe that PW3 and PW12 were immediately present at the spot and indentified the accused with various deadly weapons in their hands.

Thus court observed that the five persons accused of murder of Madhavji with having the common intention and upholding their conviction under Section 148, 302 read with Section 149 of the Indian Penal Code .

Introduction

The Allahabad High Court Bench on Saturday directed that the Bar Council does not have the jurisdiction to usurp the power for constitution of an Elders Committee under the Bye-laws of a Bar Association. The Bench consisted Justices Sunita Agarwal and Ajay Bhanot.

A writ petition was filed by the Meerut Bar Association against re-constitution of its Elders Committee by the Bar Council of UP. The Council Chairman expelled two members of the Committee, while another member was removed from the Committee without giving any reason.

The Council Chairman had re-constituted the Committee and directed it to hold elections to the Bar Association by 29 June 2020.

Court’s View

The Court held that the Elders Committee is a “permanent statutory committee” and any dispute relating to its constitution can only be raised either before it or the General Body of the Bar Association.

The Court held that the Elders Committee being a statutory permanent body constituted under the Bye-laws could not have been replaced by the Chairman of the Bar Council of UP on its own. The order impugned does not record that any notice was issued to the members of the Elders Committee who have been replaced, though the Bar Council of India was bereft of power to do so.

The Court termed the Elders Committee constituted by the Council Chairman as “incompetent to interfere in the affairs of the Association” and clarified that under the Bye-laws, in so far as the elections of the office bearers or constitution of the committees of the registered Association, any dispute relating to the office bearers of the Association elected under Clause 16 of the Bye-laws, by whatsoever name it may be called, can only be raised before the prescribed authority under Section 25 of the Societies Registration Act.

Hence it was held that the Bar Council of UP under Section 21of the Advocates Act has only the power to decide any dispute between the parties (Advocates) regarding their inter-se seniority, taking into consideration of their date of enrollment with the Bar Council. In the instant case, no such dispute as raised before the Bar Council of UP.

Key Highlights

• Case name: Meerut Bar Association & Anr. v. Bar Council of UP & Ors.
• Case No.: Writ C No. 13067/2020.
• Counsel: Senior Advocate Anoop Trivedi and Advocate Vivek Saran for Petitioners; Advocate Swetashwa Agarwal for Respondents.

With several rape cases coming to light in the country, the Ministry of Home Affairs has issued advisory to states on dealing with crimes against women. The directive comes amid criticism of Uttar Pradesh police for its handling of the Hathras case. The police has drawn flak for allegedly intimidating the kin of the deceased, refusing to hand over the body of the victim to the family, and collecting forensic 11 days after the crime.it said that the government has taken steps to strengthen legislative provisions to deal with incidents of sexual offences against women and girls.

As per the order of the Union government, all the states are required to register an FIR, collection of evidence for forensic examination and use of Sexual Assault Evidence Collection kit, completion of investigation in sexual assault cases in two months, use of National Database on Sexual Offenders for identifying and tracking repeat sexual offenders act. In case the crime is committed outside the jurisdiction of a police station, the victim can file a “Zero FIR”.

The Ministry issued the advisory on Friday after a 19 year old Dalit girl was allegedly gang-raped by four men in Uttar Pradesh’s Hathras leading to her death. As similar crimes were reported in Jharkhand and Rajasthan and other states leading to protest and political outcry, in sake of that the Ministry took the step to issue the fresh advisory.

In the advisory guidelines, it referred to its May 16, 2019 advisory on a “failure to record information under sub-section (1) of Section 154 of CrPC punishable under 166A of the Indian Penal Code. The MHA took reference of its another advisory dated December 5,2019 regarding timely and proactive action by the police in cases of crimes against women.

The ministry also had recently distributed SAEC kits to states for better investigation of sexual crimes through forensic evidence. The advisor stated that the failure of the police to comply with these mandatory provisions may not augur well for the delivery of criminal justice in the country, in the context of women’s safety and against those who are disregarding these rules “Strict action’ is warned .

CLAT 2020 exam, an entrance test for the 22 National Law Universities for admissions to LLB, LLB 5YEAR integrated and LLM, courses is scheduled to start at 2 PM today. A bench headed by Justice Ashok Bhushan said, “In fact of the present case, we are of the view that the student Deepansh Tripathi should be permitted to take his CLAT examination on September 28, 2020 in a separate isolation room to be provided by his Centre Superintendent.”

The bench also comprising Justices R Subhash Reddy and M R Shah said that the student shall ensure that a download copy of this order should be presented before his Centre Superintendent as early as possible by any other non-symptomatic person.

“On such order being produced, the Centre Superintendent shall provide a separate room for applicant to appear in the examination. Applicant shall enter into the center after other candidates take entry and shall first leave the examination center,” it said. The top court said the Centre Superintendent may also request the Chief Medical officer of the District or Superintendent, Government Hospital to provide medical staff to render necessary assistance.

The student has contended that although as per the admit card issued to him, COVID 19 symptomatic candidates will be allocated to isolated room, instructions have been issued by Consortium of  NLUs that candidates who have been tested positive and are under medical surveillance or in isolation will not be permitted to take the CLAT 2020 examination. The bench recorded that the student has already received admit card showing his center as “ION Digital Zone IDZ Chitoura Road, Bhartiya Vidya Mandir Shiksha Samiti” at Gwalior in Madhya Pradesh.

In his intervention application filed by the student, he said that he is aspiring to clear the CLAT exam and is holding a volid admit card for the CLAT Exam. “however he is presently in isolation due to his being suspected COVID Positive. He is otherwise fine and is fully ready and prepared to give the CLAT 2020 examination scheduled to take place on September 28”, he has said in his application

On September 21, the top court had directed that for conduct of CLAT2020 examination on September 28, taking all precautions and care for health of the students after following the Standard Operating Procedures of the Ministry of Health and Family Welfare and Ministry of Human Resources Development. The plea of Tripathi had sought clarification of the September 21 judgment on CLAT and order to the consortium with regard to denial to appear in entrance examination to aspirants suffering from Covid 19 by not providing isolations rooms at the exam centers.

As per the latest order of the CLAT Consortium, the candidates who have positive for COVID 19 and are under surveillance will not be permitted to take the CLAT 2020 examination scheduled to be held on 28 September 2020.

Introduction

On Thursday, the Allahabad High Court Bench dismissed the habeas corpus writ petition filed on behalf of the Hathras victim’s family against alleged illegal detention by the UP Government. The Bench consisted of Justices Pritinker Diwaker and Prakash Padia. Allahabad High Court Dismissed Habeas Corpus Writ Petition against alleged Detention of Hathras Victim’s Family.

Petitioner’s plea

• A writ petition was filed on the behalf of victim’s family through Surender Kumar, who claimed to be the General Secretary of the Akhil Bharatiya Valmiki Mahapanchayat, allegedly based on instructions given by the family over telephone, via WhatsApp. However, the state Government disputed this position and submitted that details of Mr. Kumar are subjected to verification.
• It was alleged that the immediate family of the deceased victim have been illegally detained in their own homes by the UP Government.
• It was further alleged that the family has been “gheraoed” at its own home since September 14, the date of the incident and only her brother was allowed to accompany her at the hospital in Agra. On September 28, when she was being moved to Delhi, the Government allowed two more members of the family to visit her.
• It was also disclosed that the family was not given custody of the victim’s corpse and they remained forcefully confined in their homestead land and continue to remain as such.
• It was also alleged that the family was prevented from even meeting or communicating freely, hence violating their Fundamental Right to freedom of Speech and Expression as well as the right to receive information under Art. 19(1) (a) of the Constitution.

State’s Contention

• The State argued that the writ petition is not maintainable as the matter is already sub-judice before the Supreme Court.
• It was claimed that when the victim’s family was informed about filing of the present petition, they had categorically stated that they did not authorize any one to file such petition.
• It was also contended that pursuant to the direction given by the Hon’ble Apex Court, adequate protection and security has been provided to family members of the deceased victim-girl, including petitioners 1 to 6 and even personal guards have been deployed to ensure their safety. CCTV cameras have been installed near the house of the deceased victim-girl so that unwarranted and unsocial elements may not enter in the premises.

Court’s Decision

The Bench observed that the Apex Court is already seized with this matter in Satyama Dubey & Ors. V. Union of India & Ors. and thus, it shall not be proper for the High Court to entertain this petition. The Court stated,

“Undisputedly, the Hon’ble Apex Court is in seisin of the entire case and the matter is being taken as a Public Interest Litigation by the Hon’ble Apex Court. State of UP has already been directed to file affidavit clarifying its stands.

In the aforesaid facts and circumstances of the case, judicial propriety demands that it will not br proper for this Court to entertain the present petition on merits, especially when security has been provided to petitioners 1 to 6 and other family members of the deceased victim-girl on the observation made by the Hon’ble Apex Court and also on the basis of the directions issued by the Lucknow Bench of this Court on 01.10.2020 in a Suo Motu Petition.”

The Bench clarified that if the family has any grievance, then they shall be at liberty to file appropriate petition/ application before the Apex Court.

The Kerala High Court has quashed a petition filed challenging the appointment Justice G. Sasidharan as Chairman of Kerala State Commission for Backward Classes. The petitioner, S. Subramaniam had approached the High Court arguing that Justice Sasidharan was appointed to the post of Upa Lok Ayukta, and therefore is disqualified from being appointed as a Chairman of the Backward Classes Commission. The plea cited provisions of Kerala Lok Ayukta Act, 1999 which states that, on ceasing to hold office, the Lok Ayukta or an Upa- Lok Ayukta shall not be eligible for further employment to any office of profit under the Government or in any authority. It was stated that government retains the power to remove a person from the office, upon the conditions stated therein and further stated that the Chairperson and members of the Commission are public servants and they are deemed to be public servants within the meaning of Section 21 of the Indian Penal Code, 1860. The kerala Lok Ayukta Act, 1999 is an Act to make provision for the appointment and functions of certain authorities for making enquiries into any action relatable to matters specified in List II or List III of the seventh schedule to the Constitution of India taken by or on behalf of the government of kerala or certain public authorities. The kerala State Commsion for Backward Classes Act, 1993 is an Act to constitution for Backward Classes other than the Scheduled Castes and Scheduled tribes and to provide for matters connected therewith or incidental thereto.

The bench while dismissing the plea, reasoned that when the advice of the commission is binding on the government cannot be said to be under the control of the government.

“merely because, sub – section (3) of Section 3 in the Kerala State Commission for Backward Classes Act, 1993, provides for removal of persons from the Office of Members, for the reasons stated there under, that by itself cannot be said that the government have a control over the Backward Class Commission. The government of Kerala appointed the justice sasidharan who suffered from disqualification as the Chairman of the Kerala State Commission for backward Classes.

Thus, when the advice of the Commission is binding on the Government , the Commission cannot be said to be under the control of the Government .

The Special leave petition challenging the judgment of the Lucknow Bench of the Allahabad high Court, filed by Keshav Ram and Ram Kuber was dismissed, albeit in the case of co-accused Satya Deo@ Bhoorey notice was issued on the plea of juvenility. The impugned judgment had confirmed the conviction of  Keshav Ram, Ram Kuber and Satya Deo by the trial court for the offence under section 302 read with section 34 of the Indian Penal code, 1860 and the order of sentence directing them to undergo imprisonment for life. Leave was granted in the case of Satya Deo and the trial court was directed to conduct an inquiry to ascertain if Satya Deo was a juvenile on the date of occurrence on the basis of material which would be placed on record.

Pursuant to the directions, the First Additional District and sessions Judge, Bahraich, Uttar Pradesh has conducted an inquiry and submitted the report. As per report, the date of birth of Satya Deol is 15.4.1965. Accordingly, he was 16 years 7 months and 26 days of age on the date of commission of the offence. The report relies on the Transfer Certificate issued by Ram Narayan Singh Inter College, ramnagar Khajuri, bahraich and the Admission Register of Primary School which documents were proved by Sh. Krishn Deo, Clerk at ram Narayan Singh Inter College, ramnagar Khajuri, Bahraich and Smt. Anupam Singh, in –charge head-mistress of Primary School, Pairi, respectively. Further, Satya Deo had appeared in class 10 examination and his date of birth as recorded in the gazette relating to this exam.

The report states that the complainant had died and consequently notice was served on the heirs of the complainant, who did not appear before the First additional district and session’s judge, bahraich. The prosecution had not led any evidence. The date of birth of Satya Deo is undisputed and not challenged before us. Notwithstanding this finding, the First additional district and sessions judge Bahraich has observed that the Satya Deo was not a juvenile as per the Juvenile Justice Act, 1986 as he was more than 16 years of age on the date of commission of offence.

The conundrum is in light of the definition of juvenile under the act which was below sixteen years in case of a boy and below eighteen years in case of girl on the date of boy or girl is brought for first appearance before the court or the competent authority whereas the 2000 Act as noticed does not distinguish between a boy or a girl and a person under a age of eighteen years is a juvenile. Further, under the 200 Act the age on the date of commission of the offence if the determine factor.

It is thus well settled that in terms of Section 20 of the 2000 Act, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceeding pending in the court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty the court would not pass an order of sentence against him but the juvenile would be referred to the board for appropriate orders under the 2000 Act.

Following the aforesaid ratio and the legal position elucidated above, while we uphold the conviction of Satya Deo, we would set aside the sentence of life imprisonment. We could remit the matter to the jurisdiction of the board for passing appropriate order under section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and affirmative or negative comments either way on the direction under section 15 pf the 2000 act.

Jail authorities were directed to produce satya deo before the Board within seven days from the date of receipt of a copy of this judgment. The Board shall then pass appropriate order regarding detention and custody and proceed thereafter to pass order under the 2000 Act. The appeal filed filed by Satya Deo was partly allowed in the aforesaid terms and all the pending applications are disposed of.