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Month: May 2020

Dr N Ramesh Kumar IAS Vs State of AP on 29 May 2020

Posted on May 30, 2020 by ShadesOfKnife

In this elaborate judgment, AP High Court set-aside the Ordinance 5 of 2020 via which the incumbent YSRCP Government has reduced the tenure of the State Election Commissioner Sri N Ramesh Kumar which is violative of Article 243K(2) and on many other grounds. It also quashed many subsequent GOs in relation to this mess up.

Some of the juicy paragraphs follow

From Para 76,

76. After hearing the learned Counsel representing the respective parties on both sides, it is seen from the record that the appointment of Mr.A as SEC vide notification dated 30.01.2016 has been ordered to be ceased on account of issuance of impugned ordinance and by the consequential notifications simultaneously Mr.B has been appointed as SEC by the Governor. Therefore, considering the arguments so advanced by the Counsel representing the parties, in our considered opinion, following questions arises for consideration:

1) What are the Constitutional provisions governing the appointment of the SEC in contra-distinction to the provisions governing appointment of the CEC; and whether the expressions ‘Conditions of service’ and ‘Tenure of office’ specified in Article 243K(2) of the Constitution include ‘Appointment’?
2) What is the statutory friction with respect to SEC in the APPR Act, the Andhra Pradesh Municipalities Act, 1965 (for short, ‘the APMC Act’) and the Greater Hyderabad Municipal Corporation Act, 1955 (for short, ‘the GHMC Act’)?
3) Whether the power exercised by the Council of Ministers extending aid and advice to the Governor in promulgation of Ordinance prescribing pre-qualification and manner of appointment of SEC constitute fraud; and the State Legislature is having competence to make any law in this regard?
4) Whether in the facts of the case, any circumstances exist for satisfaction of the Governor, to take immediate action to promulgate the impugned Ordinance and issuance of consequential notifications, or is it actuated by oblique reasons and on extraneous grounds?
5) Whether the term ‘ceased to hold office’ as per Subsection (5) of Section 200 of the APPR Act in the Ordinance may lead to removal of Mr.A, SEC, and is it permissible ignoring immunity prescribed under the Constitution?
6) Whether the appointment of Mr.A made for a tenure of five years as SEC, may confer any vested right to continue him upto such term amidst promulgation of the impugned Ordinance?
7) Whether the petitioners in the PILs and the other writ petitions have locus standi to maintain the petitions challenging the impugned Ordinance and consequential notifications along with the writ petition filed by the aggrieved person?

From Paras 185 and 186,

185. This Court, vide order 14.11.2019, observed that respondent No.3 therein (Principal Secretary, Panchayat Raj Department) has violated the constitutional mandate and previous directions of the Court by taking lame excuses, and also observed that the Election Commission failed to exercise the power conferred on it as per the judgment of Hon’ble the Supreme Court in Kishansing Tomar (supra), however, directed the Chief Secretary of the State to file her affidavit on all the issues on or before 20.11.2019 and accordingly, the counter-affidavits have been filed. On 21.11.2019, this Court gave a direction to the State Government to finalize the reservations for conducting elections of the three tier system i.e., Gram Panchayats, Mandal Parishads and Zilla Parishads on or before 03.01.2020. After the said order and on fixing the date, the State Government vide G.O.Ms.No.176, PR & RD, dated 28.12.2019 decided the percentage of reservations for conducting the elections. On issuance of the said G.O., issue of inappropriate reservation cropped up and various petitions were filed vide W.P.(PIL) No.2 of 2020 and batch, in which stay was not granted by this High Court. In the said scenario, the petitioners have approached Hon’ble the Supreme Court by filing Special Leave Petition (Civil) Diary No: 1314 of 2020 which was disposed vide order dated 15.01.2020 granting stay and requesting the High Court to decide the matter within four weeks. Thus, all those matters were taken up and decided on 02.03.2020, declaring the percentage of reservations for Backward Classes as ultra vires.
186. The respondents, criticising the functioning of the Election Commission, filed the judgments of S.Fakruddin (supra), Channala Ramachandra Rao (supra) and Prakasam District Sarpanchas Association (supra), raising objection in the counter affidavit that functioning of the Election Commission was questioned by the Court. After going through those judgments, in
our view, there is no stricture regarding misbehaviour or incapacity of the SEC and that too, against Mr.A. As discussed above, not conducting elections in time is not alone a fault of the SEC, in fact, the State Government is also equally responsible. In this view of the matter, we are not in agreement to the defence as taken by the respondents that the Court has criticised the functioning of the present SEC.

From Para 187, (Directions passed to transfer/suspend concerned Police officials who did not control the violence during nominations phase)

187. After the orders passed in W.P(PIL).No.2 of 2020 and batch, on 02.03.2020, the election notification could be issued on 07.03.2020 and  09.03.2020. As per the schedule of elections for MPTCs and ZPTCs, in the first phase, nomination forms were submitted by the candidates. In that process, the SEC apprehended indulgence of the ruling party, because some persons of opposition party were not allowed to fill up the forms to contest the election, due to which violence has been reported and percentage of unanimous election enormously increased. In the previous elections of 2013, the percentage of unanimous election was 2% for MPTC seats and 0.09% for ZPTC seats, which is increased to 24% and 19% respectively in the year 2020, while in the constituency of the Chief Minister, 79% MPTC seats and 76% ZPTC seats declared unanimous. The SEC Mr.A has smelt unfairness with the connivance of the administration and police, however, directed to transfer some Collectors, Superintendents of Police, Deputy Superintendents of Police, and also to suspend one Circle Inspector, but those orders were not complied by the State Government. In the meantime, as per the advisory issued by the World Health Organization on 11.03.2020, Mr.A suspended the elections, postponing it for a period of six weeks or until further orders vide Notification dated 15.03.2020. The said order became a root cause to entire litigation. The State Government, being aggrieved, challenged it before Hon’ble the Supreme Court by filing W.P.(C) No.437 of 2020. The said writ petition was dismissed vide order dated 18.03.2020 with observations that Model Code of Conduct during this period shall not remain in operation and directed that while resuming the process of election, due consultation be made with the State Government, giving liberty to State to continue public welfare activities.

From Para 188, (Personal attacks on SEC; All fit for nothing bozos… LOL. Chief Secretary Ms Neelam couldn’t dispute the above blabberings as the bozos made them publicly on TV channels. Probably, hoped no one can question them. Bozos…)

188. In the meantime, the Chief Minister of Andhra Pradesh, the Speaker of Legislative Assembly, Members of Parliament and Members of Legislative Assembly belonging to the ruling party made various allegations and casted personal aspersions on SEC. Some of the statements and the documents filed along with I.As, are relevant and those are re-produced as thus:

  1. The statement of the Chief Minister (paper clipping):
    “He (SEC) lost his discernment and is reading out the order written by someone else. We did not appoint the State Election Commissioner. Chandrababu Naidu (TDP President and former Chief Minister) appointed a person belonging to his community. Under the pretext of corona virus, he has indefinitely postponed the local body elections. The SEC had neither discussed the matter with the Chief Secretary nor the officials of the Health Department. Only then it can save its reputation and respect. Mr.Naidu may have bestowed upon him the post. Both may belong to the same community. But is it justified to show such discrimination. On one hand, Mr.Kumar citing discretionary powers, postponed the elections indefinitely and on the other transferred the District Collectors and SPs of Guntur and Chittoor. He also transferred the Macherla C.I. How can he transfer the Collectors and SPs unilaterally? Does he have more powers than an elected government? If so, the SEC can rule the State. The police have discharged their duties with utmost sincerity. They have even booked attempt to murder cases. We have brought the SEC issue to the notice of the Governor. The matter will be scaled up to the next level if the State Election Commissioner does not mend his ways.”
  2. The statement of the Speaker of the Legislative Assembly, Mr.Thammineni Seetharam (video clipping):
    “The SEC should be immediately sacked. The President and Governor must interfere. If the Election Commissioner transfers Collectors, Circle Inspectors and SPs, then what the Government do? For what purpose we people are here? Is it for taking donkeys? I clearly stated my opinion. I am not going to sustain any loss in whichever manner anyone receives my words.”
  3. The Minister of Transport and I & PR, Perni Neni said that the SEC has not taken fair decision. The decision taken for postponing the election is not proper. They shall approach all forums to revert the decision taken by the SEC and he is acting on the instructions of the former Chief Minister affecting the fair process of election, therefore, they should fight and face it.
  4. In his statement, the Member of Parliament, RajyaSabha, Mr.Vijayasai Reddy has named the SEC, Mr.A in the name of the former Chief Minister, who is assassinating the constitutional bodies and democracy.
  5. The Minister of Agriculture said that the SEC is connected with TDP and he is taking the system into his hands and acting biased.

From Para 199, (Moving of File to Governor’s office to appoint Mr.B in place of Mr.A just by forwarding biodata; Fattu Bozos moved file of Mr.B first and then moved file for removal of Mr.A – LOL)

199. Referring to the appointment of Mr.B as SEC, File No.4 was moved. As per notings of paragraph No.7 of the File, it was submitted to the Governor through the Chief Secretary, the Minister of PR & RD and the Chief Minister, duly recommending suitable person for appointment as SEC for a tenure of three (3) years, and a draft G.O. format for appointment of SEC with blank name of new person to be appointed as SEC was submitted for approval at 3.29 p.m. on 10.04.2020. On the same day, at 4.02 p.m., the Chief Minister submitted the bio-data of Mr.B to appoint him as SEC. The said proposal was approved and digitally signed by the Governor at 8.54 a.m., on 11.4.2020. Thus, it is clear that the movement of file for removal of Mr.A as SEC i.e., File No.3 was initiated subsequent to processing File No.4 for appointment of new SEC. It is also to be noted that the CV of Mr.B proposing to appoint him as new SEC was submitted by the Chief Minister at 4.02 p.m., prior to it, keeping his name blank, file was processed at 3.29 p.m. on 10.4.2020. While File No.2 relates to issuance of the Rules in consequence of promulgation of the Ordinance vide G.O.Ms.No.617, dated 10.04.2020.

From Para 207, (Overruled judgments being used by ahem Senior Advocates representing State LOL)

207. On the other hand, learned counsel for the respondents have relied upon the judgment of K. Nagaraj (supra), in particular para Nos.31, 32, 33 and 34 of the case, in which the judgments of A.K. Roy (supra) and R.K. Garg (supra) have been considered along with the judgment of High Court of A.P. v. V.V.S. Krishnamurthy137. In the said case, the question arose on the ground of non-application of mind in hurry, which shows arbitrary
character. But, in the present case, the situation is entirely converse with respect to legislative competence and due to oblique reason to bring the Ordinance to the effect, to which it was brought. Therefore, the said judgment is of no help to the respondents. The judgment of T.Venkata Reddy (supra) has also been cited by the respondent-State and the intervener but the said judgment has been overruled in the case of Krishna Kumar Singh (supra). Therefore, reliance on an overruled judgment is of no avail to the respondents. Learned Senior Counsel appearing for Mr.B has relied upon the judgment of Pradhan Sangh Kshettra Samiti (supra). But it is relating to the delimitation of the village territories in which the power of the Governor has been specified. However, the said judgment is also of no help to the case of Mr.B.

From Para 208 (Colourable Legislation; Not Colourful)

208. On the issue of colourable legislation, learned counsel for the petitioners relied upon the judgment of K.C. Gajapathi Narayan Deo (supra), in which Hon’ble Apex Court has made it clear that the doctrine of colourable legislation does not involve any question of mala fide on the part of the Legislature but this doctrine revolves around the question of competency of a particular Legislature to enact a particular law. Reliance has also been placed by the learned counsel for the petitioners on the judgment of Hon’ble the Supreme Court in Sonapur Tea Company Ltd. (supra), in which the judgment of K.C. Gajapathi Narayan Deo has been referred in the context of colourable legislation. On the other hand, learned Advocate General placed heavy reliance on the judgment of Hon’ble the Supreme Court in R.S. Joshi (supra), wherein at para 16, it is inter alia stated that the colourable legislation would not mean tainted with bad faith or evil motive. In the jurisprudence of power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the Constitution, are the expressions which merely mean that the Legislature is incompetent to enact a particular law although the label of competency is stuck on it, and then it is colourable legislation. However, in the present case, in view of the discussion made hereinabove, the State Legislature does not have the competence to bring the law on the point of appointment and eligibility of SEC, and the issue of tenure does not qualify the test of class legislation specified in Article 14 of the Constitution. In addition thereto, the statements of the Chief Minister and other Ministers, which are on record, and remain undisputed, and in the manner in which the department has processed the file to promulgate the impugned Ordinance, through Council of Ministers and signed by the same persons, indicate that they have decided to remove Mr.A, due to not having connivance, however, brought narcissist Ordinance to remove him and to bring the person of their choice. Therefore, the promulgation of Ordinance is actuated by oblique reason and on extraneous grounds.

From Paras 213, 214 and 216 (Charade of Electoral Reforms)

213. The aforesaid circumstances clearly reveal that upto 07.03.2020 and 09.03.2020, at the time of declaration of the Election Notification, there was no point regarding electoral reforms. The issue arose only on issuance of notification on 15.03.2020, suspending the election notification and postponing the elections, and when the State Government remained unsuccessful before Hon’ble the Supreme Court in challenging the said notification. The SEC projected the unprecedented events and acts of the ruling party to the Central Government, which is controverted by other side. The statements of the Council of Ministers to sack Mr.A are on record. Thereafter, on the basis of two or three complaints, the entire action has been taken in the name of electoral reforms and promulgated the impugned Ordinance, making amendment to Section 200 of the APPR Act.

214. Looking to the aforesaid events, in our considered opinion, there is no public interest or constitutional necessity exist to take immediate action by the Governor for promulgation of Ordinance. In the manner the events took place, it indicates the desirability of the State Government to bring the Ordinance in the name of electoral reforms to remove the incumbent SEC, Mr.A and the power so exercised by the Governor under Article 213 of the Constitution cannot be said to be based on the satisfaction of the circumstances exist which may render it necessary for him to take immediate action. It is not out of place to mention here that when there is a complaint made by the SEC against the State Government to the Union of India, which is controverted by other side, it may be a ground to the State Government to refer the issue, as required under the proviso to Article 243K(2) of the Constitution, for removal of the SEC on the ground of proved misbehaviour or incapacity through impeachment, as per the procedure prescribed. But, in the present case, the State Government has resorted to promulgation of the impugned Ordinance, changing the pre-eligibility for appointment and tenure, to remove the SEC. As discussed hereinabove, in the matter of appointment and determining pre-eligibility for appointment, the State Government does not have power to bring any Ordinance, therefore, it is a fraud on power under the Constitution. In fact, the action has been taken merely on the desirability of the State Government, without there being any public interest or constitutional necessity warranting exercise of the power for promulgation of the impugned Ordinance.

215. —–

216. In view of the above discussion, we hold that the power so exercised by the Governor under Article 213 of the Constitution in promulgating the impugned Ordinance is not based on the satisfaction of the circumstances exist which may render it necessary for him to take immediate action in public interest or in constitutional necessity, but it is actuated by oblique reasons and on extraneous grounds.

From Paras 243 and 244 (Entire plot of the Govt revealed by Court)

243. In the said context, it is not out of place to mention the facts of this case, in which Mr.A was appointed validly under the provisions of the enactment and the Rules in exercise of the power under Article 243K of the Constitution vide G.O.Ms.No.11, dated 30.01.2016 for a period of five  years. Prior to elapse of the said period, on account of non-observance of the directions of the State Government by Mr.A, the Council of Ministers have decided to bring the Ordinance during the recess of the sessions of the Assembly and the Council, whereby the pre-qualification has been changed for appointment, which is not their domain and the tenure has also been introduced contrary to the constitutional spirit and the Report of the Task Force Committee in the name of Electoral Reforms without having any urgency. Simultaneously, with an intent to remove Mr.A, on the request made by the Chief Minister, Mr.B is appointed, who was a Judge of Madras High Court, retired in the year 2006 and appointed at the age of 77 years after 15 years of retirement, at present, practicing as a Senior Advocate in Supreme Court as per his Bio-data. In the said facts, the judgment of Kailash Chand Mahajan(supra) is not relevant.

244. It is not out of place to take a judicial notice of the fact that as of now twenty-two (22) Chief Election Commissioners of India were appointed under Article 324 of the Constitution have attained superannuation since Independence and none of them have worked above the age of 65 years. Therefore, removing of Mr.A and appointing Mr.B at the age of 77 years, how far, fair and reasonable and falls within the electoral reforms is not appealable to us. On the point of age, in the judgment of S.R. Balasubramaniyan (supra), which is a case of age of State Election Commissioner, the Division Bench of Madras High Court said that amendment of age of retirement after appointment was not found permissible. Any of the act of the State must be in consonance to the spirit of the Constitution and the Legislative intent, otherwise such an act cannot be recognized under the law.

From Paras 253, 254 and 269 (In Interpretation of Statutes to decide retrospective or Prospective applicability)

253. In the facts of the present case, another relevant aspect of the matter is that the appointment of Mr.A as SEC was in the year 2016 for a fixed tenure of five years, which shall come to an end on 31.03.2021. In the meantime, the amendment has been made in a substantive law specifying the eligibility for appointment and tenure. At the time of his appointment as SEC under 243K(1) of the Constitution, the tenure prescribed in the Old  Rules, 1994 was five years. However, by the impugned Ordinance and the New Rules, 2020, the said tenure has been reduced to three years extendable further for three years on re-consideration. Simultaneously, on the issue of eligibility for appointment would be as a Judge of High Court in place of the post not less than the rankof Principal Secretary to the Government. Thus, by adding these qualifications, the word ‘cessation’ used in the context, have itsapplicability retrospectively or prospectively is required to be examined.

254. It is a settled law that any amendment to the provision of any statute may not be given retrospective effect and such amendment is deemed to be prospective. The analogy behind was that statute cannot take away the vested right or subsisting right of any person by such amendment. However, the intention of the amending provision and the provision existed already in the statute may be determinative factor to understand the same. Simultaneously, at the time of interpreting the statute there may be two views, one is ‘the law looks forward, not backward’ based on the maxim ‘Lex prospicit non respicit’, which means ‘the laws are generally deemed or presumed not to have retroactive’; another Maxim is ‘Lex De Futuro, Judex De Praeterito’ means‘law provides for the future’. Thus, the law deals substantive right of the parties brought ex post facto may be prospective, but in case of procedural law conflicting views may be possible. Another legal maxim ‘Nova Constitution Futuris formam imponere debet non praeteritis,’ which means new law ought to regulatewhat is to follow, not the past. The said view has been elaborated in a judgment of Monnet Ispat and Energy Limited v. Union of India and others145. In the said case, the Apex Court has held that the principle indicator is until and unless there is an express provision in the statute indicating retrospective applicability of the said statute, otherwise it would be prospective.

****

269. Considering the legal position above, unless the later enactment which supersedes an earlier one expressly or impliedly puts an end to an earlier state of law, the rights of the party accruing under the superseded enactment cannot be taken away. In this regard, as per the law laid down in the cases of State of Orissa v. M.A. Tulloch and Co.151and Dayawati v. Inderjit152 are also relevant and on the same issue, which must be followed.

From Paras 281, 284 and 289, (On the point of curtailing the tenure of SEC)

281. Removal of the SEC following the procedure prescribed in the proviso to Sub-section (3) of Section 200 of the Old APPR Act will sufficiently take long time and to obviate such delay, the State appears to have been exercised power reducing tenure which was not a part of conditions of service and amended the Act by issuing the impugned Ordinance. As discussed in the earlier paragraphs, cessation of office is nothing but termination from the office, which takes away the valuable right accrued on the constitutional authority appointed under Article 243K of the Constitution. Even if a part of repeal to the provisions is re-enacted by substituting the words ‘Judge of the High Court’ in the place of ‘not less in rank than that of Principal Secretary to the Government’, that will have no impact, unless such provision is given retrospective effect. But, because of Sub-section (5) of Section 200 of the APPR Act by way of the impugned Ordinance, the incumbent in the office is deemed to have been ceased to hold the office and made certain consequential amendments to the notification governing the service conditions and tenure of the SEC.

*****

284. The conspectus of the discussion made hereinabove makes it clear that ‘cease to hold an office’ is amounting to ‘termination and removal’ from the said office. Once, it is governed by a proviso specified in the Constitution, bringing a Law by way of an amendment, specifying the words ‘any person appointed as State Election Commissioner and holding office as such shall cease to hold office’ is apparently violative of proviso to Article 243K(2) and it does not qualify the test of Article 14 of the Constitution. Therefore, we hold that the term ‘ceased to hold office’ in Subsection (5) of Section 200 of the APPR Act in the impugned Ordinance is having the effect of removal of Mr.A as SEC and the said removal is not permissible in view of the immunity prescribed under proviso to Clause (2) of Article 243K of the Constitution.

******

289. From the above, it is clear that the tenure of the SEC so prescribed for a period of five year can only be curtailed by way of impeachment, following the procedure as noted above, in case the SEC is required to be removed prior to the completion of tenure so prescribed. Without following the said procedure, passing an order by the Secretary to the Government, in consequence of the impugned Ordinance, directing cessation of the office of Mr.A is contrary to the law and such order of the Secretary itself is void ab initio and invalidate the action of the State Government.

From Para 291, (On Vested Interest to SEC)

291. In the present case and as per the discussion made hereinabove, it is clear that a ‘vested right’ is accrued to Mr.A to continue upto five years, which is not against public interest andconvenience in fact. Further, by virtue of the judgments of Hon’ble the Supreme Court in Kishansing Tomar (supra), MohinderSingh Gill (supra) and T.N. Seshan (supra), the SEC has a indefeasible right to continue for conduct of free and fair elections, which is a duty casted on him, and he can only be removed by wayof impeachment as per the procedure as discussed hereinabove. Thus, his removal by an order of Principal Secretary, though he isholding constitutional post, is unconstitutional and illegal.

From Paras 296 and 297 (On not passing the test of reasonable classification u/A 14)

296. As per the discussion made hereinabove, relying upon the judgments of Hon’ble the Supreme Court in Budhan Choudhary (supra) and D.S.Reddy (supra), the promulgation of the impugned Ordinance does not qualify the test of class legislation as specified in Article 14 of the Constitution of India.
297. In view of the above discussion, the appointment of Mr.A as SEC which was for five years cannot be taken away, that too, by an order of the Secretary of the Department without having signature of the Governor on the File, as discussed in Question No.4. Further, it is categorically clear that the power has been exercised with oblique reasons and on extraneous grounds and the exercise of such power is fraud on the Constitution. In that view of the matter, the right accrued to Mr.A cannot be taken away by virtue of an illegal promulgation of Ordinance. The discontinuation of Mr.A can only be possible by way of removal on the basis of proved misbehaviour and by following the procedure established by law, looking to the immunity so prescribed to Mr.A. Therefore, the entire action taken by the State, taking away the vested right of Mr.A, is illegal and unconstitutional.

From Paras 302 (On the point of Locus for Petitioner to file PIL)

302. Before adverting the said question, first of all, the judgments cited by the parties are required to be referred. The judgment of the Apex Court in S.P. Gupta (supra), was referred by the petitioners as well as the respondents. In the said judgment, the issue of Locus Standi and Judicial Review has been taken into consideration and said that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority, contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest, can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice. Thereby, the Court has held that the Public Interest litigation is liberalising the rule of locus standi. If there is a wrong, it can be invoked.

From Para 308, (Framing of Rules to file a PIL)

308. Lastly, the counsel for the respondents cited the judgment in Balwant Singh Chaufal (supra). The said judgment has been relied on by the petitioners also. In the said case, the Court framed guidelines relating to PIL. Those guidelines are reproduced as under:
“181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Courts must encourage genuine and bona fide PIL and effectively discourage a and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.”

From Para 316 (Conclusive Summary of the Judgment)

CONCLUSION :
316. On an earnest consideration of the factual and legal aspects in Question Nos.1 to 7 framed, discussed and answered, the conclusion of this Judgment is as follows:
316.1) The appointment of the State Election Commissioner can be made by the Governor under his discretionary power under Article 243K(1) of the Constitution of India.
316.2) The expression ‘conditions of service and tenure of office’ in Article 243K(2) of the Constitution do not include ‘appointment’. On appointment and holding the post of the State Election Commissioner, the conditions of service and tenure of office may be as per any Law made by the State Legislature or as determined by the Rules made by the Governor.
316.3) The State Government may have power only with respect to make Legislation in terms of ‘conditions of service and tenure of office’. For appointment of State Election Commissioner, the State Legislature does not have power to propose or prescribe the pre-eligibility and manner of the appointment by the aid and advice of Council of Ministers to promulgate an Ordinance in this regard.
316.4) The State Election Commissioner appointed in exercise of powers under Section 200 of the A.P.Panchayat Raj Act, 1994 cannot function for
superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities and the Municipal
Corporations. The appointment must be made by the Governor in exercise of the power under Article 243K of the Constitution of India.
316.5) The State Government is required to re-visit the definitions of Section 2(39) and 2(40) and provisions of Section 200 of the A.P.Panchayat Raj Act, 1994 and to take necessary decision in accordance with the spirit of the Constitution as expeditiously as possible.
316.6) The satisfaction as recorded by the Governor in exercise of the power under Article 213(1) of the Constitution of India in the facts of the present case is not in the existing circumstances which render it necessary for him to take immediate action. The power so exercised is actuated by oblique reasons and on extraneous grounds, without having any material for the satisfaction of the Governor.
316.7) The promulgated Ordinance No.5 of 2020 dated 10.04.2020 is hereby set-aside and as it is actuated by fraud on power and does not qualify the test of rationality and reasonableness specified in Article 14 of the Constitution of India. Consequent thereto, the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules, 2020 notified vide G.O.Ms.No.617 dated 10.04.2020 are also set-aside.
316.8) In as much as the appointment of Dr.N.Ramesh Kumar (Mr.A) as State Election Commissioner is made for a tenure of five years vide  G.O.Ms.No.11 dated 30.01.2016 from the date of his assumption of office, he is having vested right which cannot be taken away without completion of the tenure for which he was appointed. Sub-section (5) of Section 200 of the A.P.Panchayat Raj Act, 1994 introduced by Ordinance No.5 of 2020 dated 10.04.2020 cannot take away his subsisting right. The cessation to hold the office by Dr.N.Ramesh Kumar (Mr.A) as State Election Commissioner as directed by way of Notification vide G.O.Ms.No.618 dated 10.04.2020 is not in accordance with law as the State Election Commissioner can only be removed by following the procedure as prescribed under proviso to Article 243K(2) of the Constitution of India.
316.9) The petitions filed by the other petitioners and the PILs challenging the Ordinance, the consequential Notifications notifying the New Rules, 2020 are maintainable in view of the discussion made in Question No.7.

From Para 318 (Direction to State Govt to restore the position of SEC)

318. The Respondent-State is directed to restore the position of Dr.N.Ramesh Kumar as State Election Commissioner and allow him to continue in the office until completion of the tenure as notified vide G.O.Ms.No.11 dated 30.01.2016. He is also entitled for all consequential benefits.

 

Dr N Ramesh Kumar IAS Vs State of AP on 29 May 2020

Since this Judgment was not complied with by the State Government (as well as Supreme Court denied to give stay on High Court Judgment), Ramesh Kumar initiated Contempt proceedings against Chief Secretary and others here.


A complete indexed and mess-wise segregated collection of reprimands received by this incumbent State Government of YSRC Party are here.

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Catena of Landmark Judgments Referred/Cited to Doctrine of Colourable Legislation - Exceeding the Power Entrusted with Dr N Ramesh Kumar IAS Vs State of AP Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order Reprimands or Setbacks to YCP Govt of Andhra Pradesh Retrospectively Valid Law | Leave a comment

Suryadevara Venkata Rao Vs State of AP on 22 May 2020

Posted on May 29, 2020 by ShadesOfKnife

This is detailed Judgment from AP High Court the GO concerning painting of Panchayat Buildings in YSRCP flag colors is quashed. Also, it asked Registry to book Principal Secretary, Panchayat Raj Department, the Chief Secretary to the Government Neelam Sawhney, and the Commissioner, Panchayat Raj & Rural Development, under Contempt of Court proceedings.

24. In view of the discussion made hereinabove, we allow this petition, set aside G.O.Ms.No.623 dated 23.04.2020, holding that adding of three
colours of the YSRC party flag, viz., Green, Blue and White, in lieu of agrarian nature of the State to paint the Gram Panchayat buildings, is in gross violation of the directions issued vide order dated 10.03.2020 in W.P.(PIL).Nos.177 of 2019 and 18 of 2020, confirmed in S.L.P.(C) Nos.6384-6385 of 2020 vide order dated 23.03.2020. In the facts of the case, the petitioner is also entitled for the costs quantified at Rs.10,000/- (Rupees Ten Thousand only). All the pending miscellaneous applications shall stand closed.

Suryadevara Venkata Rao Vs State of AP on 22 May 2020

The Interim Order passed was here. The State Government lost the Appeal at Supreme Court here.


A complete indexed and mess-wise segregated collection of reprimands received by this incumbent State Government of YSRC Party are here.

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged Guidelines on Colour combination theme for painting of Gram Panchayat Buildings Suryadevara Venkata Rao Vs State of AP | Leave a comment

Kanti Bhadra Shah and Anr Vs State of West Bengal on 5 January 2000

Posted on May 24, 2020 by ShadesOfKnife

Supreme held as follows which shows the importance of filing a Discharge petition u/s 239 CrPC (or 227/245 CrPC, as the case may be) since without such petition, Magistrate is free to skip applying his/her judicial mind on the said sections and proceed with charge framing, unrestricted and he/she is not bound to record reasons for charge framing.

We wish to point out that if the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion, upon consideration of the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned.

And then,

If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stage in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Kanti Bhadra Shah and Anr Vs State of West Bengal on 5 January 2000

Citations: [2000 SLT 1 133], [2000 RCR CRI 1 407], [2000 CRLJ 0 746], [2000 SCC 1 722], [2000 SUPREME 1 6], [2000 AIR SC 522], [2000 AIR SC 0 52], [2000 JT 1 13], [2000 CALCRILR 0 151], [2000 CRIMES 1 96], [2000 CCR 1 72], [2000 KERLT 1 795], [2000 RCR CRIMINAL 1 407], [2000 SCALE 1 19], [2000 SCC CR 303], [2000 SCJ 3 77], [2000 SRJ 2 112], [2000 ALD CRI 1 421], [2000 CRLR 173], [2000 MLJ CRI 1 243], [2000 MAHLR 2 534], [2000 SCC CRI 303], [2000 CRI LJ 746]

Other Source links: https://indiankanoon.org/doc/1735113/ or https://www.casemine.com/judgement/in/5609ad74e4b01497114117a5


Index of Discharge Judgments u/s 239 are here.

 

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 239 - Discharge Kanti Bhadra Shah and Anr Vs State of West Bengal Landmark Case | Leave a comment

Tummala Ramesh and Ors Vs UOI and Ors on 23 April 2020

Posted on May 23, 2020 by ShadesOfKnife

In this set of cases, petitioners raised voice against destruction of Mangrove forests in Kakinada which have been protecting the city from the onslaught of sea currents/waves. The following are various orders issued by AP High Court.

On 23 April 2020,

Tummala Ramesh and Ors Vs UOI and Ors on 23 April 2020

On 04 May 2020,

Tummala Ramesh and Ors Vs UOI and Ors on 04 May 2020

On 11 May 2020,

Tummala Ramesh and Ors Vs UOI and Ors on 11 May 2020

 


A complete indexed and mess-wise segregated collection of reprimands received by this incumbent State Government of YSRC Party are here.

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged Destruction of Mangrove Forests of Kakinada Public Interest Litigation Reprimands or Setbacks to YCP Govt of Andhra Pradesh Tummala Ramesh and Ors Vs UOI and Ors Work-In-Progress Article | Leave a comment

In Re. Corona Virus – COVID-19 PANDEMIC Vs State of Andhra Pradesh and UOI on 26 March 2020

Posted on May 22, 2020 by ShadesOfKnife

AP High Court had issued the following directions in regards to functioning of judiciary in Andhra Pradesh during COVID-19.

(i). All the cases in which interim orders were passed by the High Court, District Courts, Civil Courts, Family Courts, Labour Courts, Industrial and other Tribunals, functioning in the State of Andhra Pradesh, over which the High Court has the power of superintendence and the stay has expired two weeks prior or are due to expire within a period of one month, shall continue to operate for a further period of one month from today. It is made clear here that interim orders which are having a limited duration shall continue to operate until further orders;
(ii). In criminal matters where bail/suspension has been granted by the Court either anticipatory or regular for a limited period, which are likely to expire within one month from today, shall be automatically extended for a further period of one month from today;
(iii). In the matters in which demolition, dispossession, eviction, auction is in question, in those cases, if limited stay is granted, it be treated to be extended for one month or otherwise, the instrumentalities shall not proceed for the above until one month from today;
(iv). In the matters of tenders, if they have not been finalized, they shall not be given effect to for a period of one month and the process may be made after expiry of the lock-down period.
(v). As this Court feels that the citizens are not in a position to reach the Court on account of lock-down of the boundaries and surveillance by the Police, however, for redressal of their grievance, we have been developing a URL, which shall be notified by Registrar General. Publishing URL in the official website of the High Court for e-filing to Advocates is only with regard to genuine grievances.They may submit their petitions by way of e-mail, viz., [email protected] on the same lines till then.On submission of the petitions, the Government may submit their objections and they shall be considered for the purpose of interim relief by the High Court through the Benches constituted by the Chief Justice, by way of Video Conference and if necessary opportunity of personal hearing may be offered on demand. Otherwise, interim relief may be considered on the facts and circumstances of the case;
(vi). The State Government is directed to ensure and provide all necessary equipment like N-95 masks, sterile medical gloves, starch apparels, personal protection equipment and all other necessary things to the Doctors in the dispensaries and other Paramedical staff, thereby they may be in a position to provide medical aid to the citizens;
(vii). The issue regarding entry on boundaries of the State of Andhra Pradesh is concerned, it is directed that no mass gathering shall be allowed by the authorities of both the States. The officers of both the States shall follow National Protocol or otherwise looking to the peculiar situation in which the citizens of the State of Andhra Pradesh have been left over by the Telangana State, to go to their homes, taking due steps for quarantine process, by staying at their homes through such undertaking, on necessary tests, the National Protocol shall be observed by them. In any case, care of females with children and pregnant women must be undertaken by the authorities with humanity; however, officers of both the States shall observe National Protocol applying exceptional circumstances with due care.
(viii). As per the resolution of the committee formulated by the Supreme Court, dated 26.03.2020, it is directed that the convicts or under-trial offenders for the offences to which maximum sentence prescribed is not more than (7) years, may be released on interim bail on furnishing adequate bail bonds if they are not second offenders and also not offenders under Section 376 of IPC and POCSO Act, for a period of one month. For the purpose of bail bond, it is however directed that the Principal District and Sessions Judge shall assign the Judicial Magistrate to reach the District Jails on being asked by the Superintendent of the Central Jail of his area, for furnishing/accepting adequate bail bonds to the satisfaction of the Magistrate, for their release to a limited period. The undertaking shall be taken from them for having quarantine for 14 days at their home under the surveillance of the Doctor with the help of the Police.
(ix). Violation of conditions would entail cancellation of the interim bail/suspension and such persons who violate the conditions may be taken to custody immediately;
(x). As stated by the Director of Social Welfare, Ms.Kritika Shukla, that limited number of inmates are in the remand homes, however, due care and caution be taken for social distancing to those children in the remand homes. The said social distancing must be maintained in the CCIs., and SAAs., in the State.
(xi). In the case of health checkup, the State shall protect the confidentiality regarding patients and the poor patients shall not be discriminated with others. It is further to direct that marginalised and poor must have access to healthcare and they should be provided adequate food facilities; thereby they should not sleep with empty stomach in the night;
(xii). Essential items may be made available to the citizens as specified in the circular issued by the Ministry of Home Affairs dated 24.03.2020 specifying the protocol to those vendors;
(xiii). The Police, Doctors, paramedical staff and other persons engaged in these days may be provided adequate facilities on account of rendering emergent services by them.
(xiv). Because of the fact that flights, trains have been stopped and the road transportation has also been checked due to lock-down, but in the State of Andhra Pradesh, there is a coastal area, where ships are coming to the ports, however, due care and caution as directed by the Central Government must be taken by the authorities in the ports at Visakhapatnam, Kakinada, Machilipatnam, Kalingapatnam and other sea ports and the port authorities are directed to take special measures in this regard in coordination with the State authorities.

In Re. Corona Virus – COVID-19 PANDEMIC Vs State of Andhra Pradesh and UOI on 26 March 2020

On 20 April 2020,

Directions given above were extended until 31 May 2020.

In Re. Corona Virus – COVID-19 PANDEMIC Vs State of Andhra Pradesh and UOI on 20 April 2020

 

On 24 April 2020,

Permission was given for a certain tenders to be finalized.

In Re. Corona Virus – COVID-19 PANDEMIC Vs State of Andhra Pradesh and UOI on 24 April 2020

 

On 29 May 2020,

Further extension of Interim Order Passed in March 2020.

In Re. Corona Virus – COVID-19 PANDEMIC Vs State of Andhra Pradesh and UOI on 29 May 2020

Citations: [

Other Source links:

 

Posted in High Court of Andhra Pradesh Judgment or Order or Notification | Tagged In Re. Corona Virus – COVID-19 PANDEMIC Vs State of Andhra Pradesh and UOI Work-In-Progress Article | Leave a comment

Om Wati and Anr Vs State Thro Delhi Admn and Ors on 19 March 2001

Posted on May 21, 2020 by ShadesOfKnife

Since there was prima facie opinion formed by the Trial court in framing the charges on the accused persons, Apex Court held that High Court was not correct in interfering into the Trial Court Order.

Om Wati and Anr Vs State Thro Delhi Admn and Ors on 19 March 2001

Citations: [2001 ACR SC 2 1038], [2001 AIR SC 1507], [2001 ALD CRI 1 663], [2001 CRI LJ 1723], [2001 CRIMES SC 2 59], [2001 JT SC 3 585], [2001 LW CRL 2 687], [2001 PLJR 3 4], [2001 SCALE 2 505], [2001 SCC 4 333], [2001 SCR 2 482], [2001 UC 1 551], [2001 CRLJ 1723], [2001 SCC CR 685], [2001 SUPREME 2 423], [2001 SLT 2 796], [2001 SCJ 2 528], [2001 SRJ 4 308], [2001 CCR 2 43], [2001 RENTCR 2 255], [2001 KLT SN 2 89], [2001 AIR SC 1230], [2001 BOMCR CRI SC 730], [2001 SCC CRI 685]

Other Source links: https://indiankanoon.org/doc/1931219/ or https://www.casemine.com/judgement/in/5609ad9ae4b0149711411d3b


Index of Discharge Judgments u/s 227 are here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Abuse Or Misuse of Process of Court CrPC 227 - Discharge Evidence Act 32 - Cases in which statement of relevant fact by person who is dead or cannot be found etc is relevant Landmark Case Non Application or Exercise of Judicial Mind Om Wati and Anr Vs State Thro Delhi Admn and Ors Work-In-Progress Article | Leave a comment

Arnab Ranjan Goswami Vs UOI and Ors on 19 May 2020

Posted on May 21, 2020 by ShadesOfKnife

Justice Dr Dhananjaya Y Chandrachud, gave this Judgment.

From Para 26,

26. At this stage, it is necessary to note that the attention of Mr Kapil Sibal and Dr Singhvi, learned Senior Counsel was specifically drawn to the fact that the FIRs which were filed in various states by persons professing allegiance to the INC appear, prima facie, to be reproductions of the same language and content. Responding to this, Mr Sibal fairly stated that in the exercise of the jurisdiction under Article 32, this Court may well quash all the other FIRs and allow the investigation into the FIR which has been transferred to the NM Joshi Marg Police Station in Mumbai to proceed in accordance with law. Mr Sibal has also urged that there cannot be any dispute in regard to the legal position that a complaint in regard to the offence of defamation can only be at the behest of the person who is aggrieved. Consequently, the FIR which has been presently under investigation at the NM Joshi Marg Police Station in Mumbai would not cover any offence under Section 499 of the IPC.

 

Arnab Ranjan Goswami Vs UOI and Ors on 19 May 2020

 


Citations: [

Other Source links:

 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Arnab Ranjan Goswami Vs UOI and Ors Article 32 - Remedies for enforcement of rights conferred by this Part Avoid Multiplicity Of Litigation Catena of Landmark Judgments Referred/Cited to IPC 499 - Defamation Work-In-Progress Article | Leave a comment

Kali Ram Vs State of Himachal Pradesh on 24 September 1973

Posted on May 19, 2020 by ShadesOfKnife

In this landmark judgment, Justice Hans Raj Khanna, held the following valuable principles.

From Para 23,

23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade v. State of Maharashtra 1973 2 SCC 793 to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.

From Para 25,

25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by report to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh 1974 3 SCC 227 a criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.

Kali Ram Vs State of Himachal Pradesh on 24 September 1973

Citations: [1975 MLJ CRI 1 313], [1973 CRLR 705], [1974 CRLJ 0 1], [1973 SCC CRI 0 1048], [1974 ILR HP 3 575], [1974 CAR 1], [1973 SCC 2 808], [1973 AIR SC 0 2773], [1973 SCC CR 0 1048], [1974 CRI LJ 1], [1973 AIR SC 773], [1974 SCR 1 722]

Other Source links: https://indiankanoon.org/doc/1072474/ or https://www.casemine.com/judgement/in/5609ab92e4b014971140cc9d

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Benefit of Doubt - View Favourable to Accused Burden of Proof shifts to Accused after initial burden has been discharged by the prosecution HR Khanna Judgment Innocent Until Found Guilty Kali Ram Vs State of Himachal Pradesh Landmark Case Legal Procedure Explained - Interpretation of Statutes Presumption of Innocence Reportable Judgement or Order Two Views Possible - Supicion Vs Grave Suspicion | Leave a comment

Harikumar Vs State of Karnataka on 22 October 1993

Posted on May 19, 2020 by ShadesOfKnife

The 3-judge bench of Karnataka High Court held that Section 8A of Dowry Prohibition Act 1961 is constitutionally valid and the burden of proof laid on the accused in offences under this Act carry onus on the Prosecution to discharge their duty to establish their case based on foundational facts relevant and only then the proof of burden shifts to accused.

From Paras 4-8,

4. It is true that if Section 8-A of the Act, is read literally, an impression is gathered therefrom that once an accused is prosecuted and charged for the offences under Sections 3 and 4 of the Act, then the entire burden is on him to show that he had not committed any offence and the prosecution may not be required to prove anything else except placing implicit reliance on the contents of the charge framed against the accused. But, on a closer scrutiny, such first-hand impression about the Section gets dispelled. It has to be kept in view that Section deals with burden of proving innocence in given cases. Therefore the Section,in substance, creates a Rule of Evidence and deals with casting of burden of proof in certain cases on the accused. A close reading of the Section shows that merely because the accused is charged with offences under Section 3 or Section 4 of the Act, the initial burden which is always on the prosecution to prove basic ingredients of the Sections for bringing home the charges to the accused will not get displaced or dispensed with. Section 8-A will have to be read with Section 2, which defines the term dowry. When so read, it becomes clear that when an accused is charged of an offence of giving or taking or abetting in giving or taking any dowry, under Section 3, the following ingredients of the offence will have to be established before a competent Criminal Court before which the accused is prosecuted.
i) any property or valuable security must be proved to have been given or taken by the accused pursuant to an agreement or otherwise; or
ii) the accused must be shown to have abetted such giving or taking of any property or valuable security;
iii) such giving or taking of any property or valuable security either directly or indirectly or its abetment must be done by any party to the marriage vis-a-vis the other party to the marriage; or;
iv) such giving or taking of any property or valuable security either directly or indirectly or its abetment is done by the parents of either party to a marriage or by any other person, for the benefit of either party to the marriage or any other person;
v) such property or valuable security is given or taken at or before or at any time after the marriage;
vi) such property or valuable security must be given in connection with the marriage of said parties.
5. Now it is obvious that before any offence can be brought home to the accused under Section 3 read with Section 2 of the Act, the aforesaid ingredients have to be established. So far as Section 8A is concerned, all that it mandates is that the burden of proof that he has not committed such an offence is on the accused. Meaning thereby, that it will be for the accused to show that he had not taken or given or abetted in giving or taking any property or valuable security in connection with the marriage of the said parties. He will have to show that last ingredient of the offence being ingredient No. (vi), is not established.The only burden cast on the accused is to prove that he had not committed offence of giving or taking or abetting the giving or taking of dowry as contemplated by Section 3 of the Act. It is not as if he has also to prove that he has not taken or given or abetted in giving or taking any property or valuable security or that he has not taken or given or abetted in giving or taking any property or valuable security or that he has to disprove all the ingredients (i) to (vi). As per Section 8A, once prosecution establishes beyond reasonable doubt the basic ingredients (i) to (v), burden shifts on the accused to prove that the last one is not established viz., that he had not taken or given or abetted in giving or taking any property or valuable security in connection with the marriage of the said parties. The Section, of necessity, will have to be read down as aforesaid.
6. Similarly, for the purpose of proving an offence under Section 4, Section 8A will have to be read with Sections 4 and 2 of the Act. On a conjoint reading of these provisions, it becomes clear that before any offence under Section 4 is brought home to an accused, the following facts will have to be established:
(1) The accused must be shown to have demanded directly or indirectly from the parents or other relatives or guardian of a bride or bridegroom, as the case may be;
(2) Any property or valuable security to be given by one party to the marriage to the other party to the marriage; or
(3) Any property or valuable security to be given by parents of either party to the marriage or by any other person, to either party to the marriage or to any other person;
(4) Such demand should be made at or before or any time after the marriage;
(5) Such demand for any property or valuable security must be in connection with the marriage of the said parties.
Before any offence under Section 4 is brought home to the accused, all the aforesaid ingredients must be established. So far as the first four ingredients are concerned, they will have to be established as basic facts by the prosecution and only when the burden would shift to the accused to show that he had not demanded directly or indirectly any property or valuable security in connection with the marriage of the said parties. The burden of proving non-existence of last ingredient rests on the accused as per Section8A of the Act. But the initial burden to establish beyond reasonable doubt the aforesaid ingredients (1) to (4) will rest on the prosecution. Once these basic ingredients are established by the prosecution, the burden would shift on the accused to show that such demand if any by him was not in connection with the marriage of the said parties. Meaning thereby, that he had not demanded any dowry from the parents or other relatives or guardian of a bride or bridegroom, as the case may be. Thus burden will shift on him only to establish that the last ingredient is not proved. Section 8-A, in its operation, will have to be read down in the light of Sections 2, 3 and 4 of the Act. Once it is so read down, the challenge to the said Section on the anvil of Articles 14, 20(3) and 21 of the Constitution of India, would not survive. However, as the learned Advocate for the appellant has sought to challenge the Constitutional validity of Section 8-A on the anvil of Articles 14, 20(3) and 21 of the Constitution, we may now deal with these challenges.

From Para 9,

9. As we have discussed earlier, if Section 8-A is read down as aforesaid, then there would remain no substance in what the learned Advocate submits. Once it is read down as indicated hereinabove, then the challenge to this Section on the anvil of Article 14 of the Constitution of India, would not survive. The prosecution will have to lead in the first instance evidence to prove the basic ingredients of the offences under Sections 3 and 4. Once the prosecution proves them beyond reasonable doubt, then only the burden is shifted on the accused under Section 8A of the Act. Thus, the initial burden will rest on the prosecution to bring home the basic ingredients of the Sections and that will never shift on the accused under Section 8A of the Act. The Section so read down, would represent only a rule of evidence and nothing more. Even the objects and reasons for introducing Section 8-A to which we have made reference earlier, clearly indicate the legislative intent that the Section is to serve only as a rule of evidence by casting on the accused the burden of proving that he had not taken or given or abetted in taking or giving of dowry or that he had not demanded either directly or indirectly any dowry.

Harikumar Vs State of Karnataka on 22 October 1993

Citations: [1995 ALT CRI 1 25], [1993 ILR KAR 3035], [1994 DMC 1 356], [1995 CRIMES 1 573], [1994 KARLJ 3 335], [1994 KANTLJ 3 335], [1993 SCC ONLINE KAR 240], [1994 KANT LJ 3 335], [1993 HLR 2 672]

Other Source links:
https://indiankanoon.org/doc/1973279/
https://www.casemine.com/judgement/in/56093aeee4b0149711228334

What exactly is Section 8A of dowry prohibition act


Index of Dowry related Judgments is here.

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged 3-Judge (Full) Bench Decision Article 14 - Equality before law Article 20(3) - Right to Remain Silent Article 21 - Protection of life and personal liberty Constitutional Validity DP Act 8A - Burden of proof in certain cases Evidence Act 113A - Presumption as to abetment of suicide by a married woman Harikumar Vs State of Karnataka Landmark Case Legal Procedure Explained - Interpretation of Statutes Legislative Intent must be Respect while Interpreting Statutes Rule of Evidence | Leave a comment

Amarjit Kaur and Ors Vs Jaswinder Kaur and Ors on 15 May 2020

Posted on May 18, 2020 by ShadesOfKnife

Taking cue from Geeta Mehrotra judgment here, Punjab High Court has quashed proceedings on relatives living far away in Canada taking a ground that no specific allegation are in the complaint.

Amarjit Kaur and Ors Vs Jaswinder Kaur and Ors on 15 May 2020

Citations: [2]

Other Source links: https://indiankanoon.org/doc/12422589/

Posted in High Court of Punjab & Haryana Judgment or Order or Notification | Tagged 1-Judge Bench Decision Amarjit Kaur and Ors Vs Jaswinder Kaur and Ors CrPC 482 - Quash CrPC 482 - Saving of inherent powers of High Court CrPC 482 – Criminal Proceeding Quashed CrPC 482 – IPC 498A Quashed Discourage Roping In All Relatives Of In-Laws Or Distant Relatives Geeta Mehrotra and Anr Vs State Of U.P. and Anr IPC 498a - Not Made Out Against Parents or Relatives Legal Terrorism Order Quashed | Leave a comment

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14 May

🇷🇺🇲🇾PUTIN'S ROYAL RIDDLE: HOW DID MALAYSIA'S PM CRACK THE CODE?

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