criminal procedure code - investigation - transfer of investigation of all First Information Reports lodged against the petitioner and other members of GJM, to any independent investigation agency = In case of faulty investigation, where an accused has been wrongly roped in, he has right to seek all remedies before Court of Law for further investigation and a Court of Law is able to marshall all evidence and capable of discerning truth from evidence on record. Although as a principle, there is no fetter on an accused to move a Court of Law for transfer of investigation, but on the facts of this case as noted above, we do not think it to be a fit case where this Court may exercise jurisdiction under Article 32 to transfer the cases enmass to an independent agency.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 182 OF 2017
BIMAL GURUNG … PETITIONER
VERSUS
UNION OF INDIA & ORS. … RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
The petitioner, the President of Gorkha Janmukti
Morcha (hereinafter referred to as “GJM”), has filed
this Writ Petition under Article 32 of the
Constitution of India praying for transfer of
investigation of all First Information Reports
lodged against the petitioner and other members of
GJM, to any independent investigation agency. In
the Writ Petition, following prayers have been made
by the petitioner:-
“A. Transfer the investigation of all
the FIRs lodged against the present
Petitioner and other members of the GJM,
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details of which are provided in Annexure
P-4, from the West Bengal Police to any
independent investigation agency like the
NIA. CBI or any other independent
investigation agency which is not under
the control of the Government of West
Bengal; and
B.Transfer the investigation of all the
current FIRs lodged against the present
Petitioner and other members of the GJM,
from the West Bengal Police to any
independent investigation agency like the
NIA, CBI or any other independent
investigation agency which is not under
the control of the Government of West
Bengal; and
C.Issue a writ of Mandamus or any other
Writ, Order or direction in the nature of
Mandamus, directing that any future
FIRs/complaints filed against the present
Petitioner and other members of the GJM,
which pertains to the ongoing agitation
in the State of West Bengal, be
transferred to and investigated by the
said independent investigation agency;
and
D. Grant anticipatory bail and protection
against any coercive steps to the present
Petitioner in the FIRs registered by the
West Bengal Police, details of which are
provided in ANNEXURE P-4, during the
course of such investigation by the said
independent investigation agency; and
E.Grant anticipatory bail and protection
against any coercive steps to the present
Petitioner in all FIRs registered by the
West Bengal Police, during the course of
such investigation by the said
independent investigation agency, and
F.Grant police protection to the present
Petitioner, provided by any independent
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police force which is not under the
control of the State of West Bengal, at
the expense of the present Petitioner;
and
G.Pass such further or other orders as
this Hon'ble Court may deem fit and
proper.
AND FOR THIS ACT OF KINDNESS THE
PETITIONER AS IN DUTY BOUND SHALL EVER
PRAY”
2. The petitioner’s case in the writ petition is
that GJM led by the petitioner, has been at the
forefront of the Gorkhaland agitation since 2007.
GJM is a registered political party, which has also
participated in the municipal elections, elections
of autonomous body of GTA (Gorkhaland Territorial
Administration), Lok Sabha elections and West Bengal
assembly elections. On 18.07.2011, A Tripartite
accord was signed between the State of West Bengal,
Ministry of Home Affairs, Government of India and
Gorkha Janmukti Morcha for setting up an autonomous
body (Gorkhaland Territorial Administration –
“GTA”), empowered with administrative, financial and
executive powers with regard to various subjects.
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The Gorkhaland Territorial Administration Act, 2011
was enacted to provide for the establishment of a
Gorkhaland Territorial Administration for the region
comprising the three sub-divisions, Darjeeling,
Kalimpong, Kurseong and some mouzas of Siliguri subdivision
in the district of Darjeeling and for
certain matters incidental thereto. The
petitioner’s case is that on 15.05.2017, Hon’ble
Minister of Education, Government of West Bengal in
a press conference stated that Bengali would be
compulsory in all schools in West Bengal. The
Gorkhas viewed this as an encroachment on their
language, i.e. Nepali/Gorkhali. A Facebook post
dated 16.05.2017 made by the Chief Minister of West
Bengal has also been referred to, which mentions
that one of the three languages would have to be
Bengali. The above has been stated to be beginning
of protest carried on by different associations of
Gorkhas and the GJM.
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3. On 30.05.2017, GJM claimed to convene an indoor
meeting of various intellectuals to assess their
views. Petitioner claims that several persons have
been wrongfully booked under Sections 120-B, 153A,
505 and 34 Indian Penal Code (hereinafter referred
to as “I.P.C.”). Petitioner alleged that further
FIRs have been lodged against the petitioner and
other GJM members on 06.06.2017 and thereafter.
Petitioner in the writ petition has pleaded that
there are around 300 FIRs, which has been registered
against the members and supporters of GJM. In
Annexure P-4, the petitioner has given a list of
available FIRs against Bimal Gurung and others
detailing 112 FIRs, out of which in 31 FIRs, the
petitioner- Bimal Gurung is named. The FIRs relates
to various offences under I.P.C.; Prevention of
Destruction of Public Property Act; Arms Act; the
Unlawful Activities (Prevention) Act, 1967; Indian
Explosives Act; WBMPO Act and National Highways Act.
In different FIRs, offences ranged from offences
under Sections 121, 121A, 143, 148, 149, 153A, 186,
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189, 323, 324,325, 326, 307, 332, 333, 353 and 302
I.P.C.

4. Petitioner’s case further is that false FIRs
have been lodged against the petitioner and his
supporters. Petitioner further alleged that on
17.06.2017, the West Bengal police opened fire at
GJM supporters and members, causing death of
innocent GJM supporters. On 27.06.2017, GJM party
members withdraw from the GTA Act. Petitioner and
all the other members have unilaterally resigned
from the GTA. On 03.07.2017, petitioner on behalf
of GJM has written to the Home Minister, Government
of India demanding a CBI inquiry into the death of
three persons caused on 17.06.2017. The petitioner
also wrote to National Human Rights Commission on
03.07.2017. The petitioner in the writ petition has
referred to various FIRs lodged in June, July &
August, 2017. Petitioner has further stated that on
18.08.2017, blast occurred in Darjeeling town, in
which again the police arraigned the petitioner for
this crime and filed an F.I.R. No. 182 of 2017
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against petitioner and other GJM leaders.
Petitioner’s case is that different FIRs were lodged
in identical wording to that of F.I.R. No. 182 of
2017. Petitioner further refers to death of one
Dawa Bhutia, GJM supporter on 01.09.2017, who died
in a shoot out. Petitioner’s case is that Sikkim
Police has registered a case against S.P. Kalimpong
in the above respect. On 20.09.2017, the Chief
Minister of West Bengal has reconstituted the Board
of Administrators of the Gorkhaland Territorial
Administration and nominated Shri Binoy Tamang as
its Chairperson simply because he sided with the
State Government. Binoy Tamang was a close
associate of petitioner, who was also co-accused in
several cases along with the petitioner. On
26.09.2017, Hon’ble Home Minister, Government of
India appealed to withdraw the bandh. Consequently,
the Bandh was called off. Reference to Writ
Petition (Crl.) No. 148/2017 by Mr. Roshan Giri,
General Secretary of GJM was also made, where
intervention of this Court was asked for to
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investigate the extra judicial killings of 10
supporters of the movement by GJM by the State
Police, where this Court has issued notice on
06.10.2017.
5. Petitioner also referred to raid dated
13.10.2017 by West Bengal Police accompanied by
large number of Central Forces at Patleybas and
Limbu busty areas of Darjeeling, where recovery of
AK-47 rifles was falsely shown by the police. On
the aforesaid facts, the petitioner sought the
transfer of investigation of all cases to an
independent investigating agency. Petitioner’s case
is that in the light of recent stand off between the
State of West Bengal and the members of GJM and
agitation in West Bengal over the issue of a
separate State for Gorkhaland, many prominent
leaders and members of the GJM are being falsely
implicated in frivolous cases and there is an
imminent threat to their safety and life, thereby
violating fundamental right guaranteed under Article
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21 of the Constitution of India. The State
Government and the State Police have dealt with
absolute highhandedness to quell the democratic and
peaceful agitation by illegally executing Gorkhaland
members and activists and injuring over 200
supporters.
6. The petitioner is directly named in 31 FIRs.
There is a genuine fear of bias and prejudice
against petitioner and all members of GJM and the
investigation being carried out against the members
of GJM is clearly politically motivated and directed
by the Government of West Bengal. The language in
FIR No. 182 of 2017 dated 19.08.2017 and another FIR
No. 8 of 2017 dated 24.08.2017 lodged at another
police station, which is 44 Kms away narrated two
different incidents of alleged blasts. However, the
language used in both these FIRs is identical
clearly indicating that a draft has been circulated
to the police directing them to register FIRs
relating to blasts. Writ petitioner pleads that 11
members and supporters of GJM have been killed. On
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the aforesaid facts and grounds, prayers as noted
above have been made in the writ petition.
7. This Court issued notice in the Writ Petition on
20.112017 and directed that in the meantime no
coercive steps shall be taken against the
petitioner. The State of West Bengal filed an
application to recall the order dated 20.11.2017
referring to 53 cases pending against Bimal Gurung
and 24 under trial cases. The reply to the
aforesaid I.A. has been filed by the petitioner
dated 23.11.2017. Rejoinder Affidavit on behalf of
respondent Nos. 2 to 9 in reply to the counter
affidavit filed by the petitioner in I.A. No. 125288
of 2017 has also been filed. A detailed counter
affidavit has been filed by the State of West Bengal
to which a rejoinder affidavit has also been filed.
8. In the counter affidavit, the State has come up
with the case that in several cases, warrant of
arrests have been issued against the petitioner by
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the Courts of learned CJM, Darjeeling. A
proclamation has also been issued under Section 82
Cr.P.C. against the petitioner. The petitioner is
wanted in large number of cases and to avoid his
arrest, he has filed the writ petition under Article
32 and has not appeared. In the counter affidavit,
it is stated that there are 56 criminal cases, in
which petitioner is named. The cases relates to
FIRs filed in May, 2017 to October, 2017. A detail
of said cases have been mentioned at page Nos. 139
to 145 of the counter affidavit in Table 1. In
Table 2, at Page 145 of the counter affidavit, there
is mention of 22 under trial cases against the
petitioner – Bimal Gurung, which relates to cases
lodged against him from the year 2007 to 2013. In
Para 7 of the counter affidavit, the State has
further given details of 47 cases, which relates to
the First Information Reports lodged against the
petitioner in June to October, 2017. In 47 cases,
charge sheets has also been filed against the
petitioner after completing the investigation in
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which prima facie material is claimed to have been
found against the petitioner. Charge Sheet in
reference to Sadar P.S. Case No. 213/2017 dated
13.10.2017 under Sections 121/121A/153A/323/120B/
307/302 I.P.C. read with Section 25(i)(a)/27/35 of
Arms Act and Section 3/4, Explosives Act have been
referred to in which charge sheet and supplementary
charge sheet has been filed.
9. The respondent’s case in the writ petition is
that in the year 2007, Gorkha Janmukti Morcha (GJM)
led by Shri Bimal Gurung started the agitation for
Gorkhaland State, which ended in year 2011 after
constitution of Gorkhaland Territorial
Administration Act. Agitation has been launched by
GJM led by Bimal Gurung, since the month of
May/June, 2017 by stoking the passion of common
public on the alleged language issue. In the counter
affidavit, it has been claimed that GJM protested
against the alleged imposition of Bengali language
on the hill by the State Government, though, there
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was no notification by the Government to that
effect. The GJM led by the petitioner continued
with their agitational program which took the shape
of violent agitation on 08.06.2017 when GJM party,
led by petitioner-Bimal Gurung staged violent
demonstrations in front of Bhanu Bhawan, Darjeeling,
where State Cabinet, led by Chief Minister was
holding a meeting. The mob breached the first
barricade and proceeded towards the second. They
threw stones and bombs. A few supporters of GJM
also fired upon the police. To disperse the
unlawful assembly the police had to resort to
various measures. 7 police vehicles, a police
assistant booth, private vehicles and NBSTC bus was
burnt and many police personnel including PSO to the
ADG, North Bengal were injured. On 15.06.2017, on
receipt of specific information, Police party raided
party office of GJM at Patleybash, Darjeeling, where
two improvised fire arms, gun powder and other
incriminating articles were seized. Police parties
were attacked by supporters of GJM on several
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occasions, reports of which instances were lodged to
control the rampant mob. The District Magistrate,
Darjeeling had requisitioned Army on 08.06.2017 for
aid to civil authority in view of local disturbances
in order to prevent loss of life and property of
residents and visitors. Army aid in that phase
continued till 24.06.2017. Again Army was
requisitioned on 08.07.2017 in Darjeeling and
Jorbunglow PS areas for the same purpose. Further
Army Aid was requisitioned again on 18.07.2017 in
Darjeeling, Jorbunglow, Kurseong and Mirik Police
Station. Further, during this period, additional
contingent of 11 companies of CAPF were deployed in
the hills in addition to 4 companies of CAPF already
deployed in the area to bring the law and order
situation under control.
10. On 13.10.2017, the police, on receipt of
specific information, raided a place situated in the
forest on the banks of Choti Rangit River, where
during the raid the petitioner-Bimal Gurung and his
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team opened fire at the police team by reason of
such attack on police, S.I. Amitava Mallick
sustained bullet injuries and died. During the
raid, police seized 09 AK-47 rifles, Gelatin Sticks,
detonators and 1800 live ammunitions. The details
of articles which were seized on such raid have been
detailed in para 24(hh) at Page Nos. 50 to 56 of
counter-affidavit. During investigation, it could
be learnt that this place in the midst of forest,
was used as arm training camp for the henchmen of
Bimal Gurung. The GJM has declared complete bandh
in June, 2017 and during the entire period, which
bandh continued for 104 days, the police, CAPF and
Army had acted with utmost restraint and have used
force only in order to protect lives and properties
of public and Government. Due to the violent attack
by the GJM supporters two police personnel have died
and 119 police personnel sustained injuries. During
this period, violent agitators burnt 76 vehicles
including 25 police vehicles and vandalized 37
vehicles including 17 police vehicles. Apart from
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that they committed arson in 168
buildings/properties including 20 police
buildings/properties. In addition, they vandalized
31 buildings/properties including 05 police
properties. During the entire period of bandh, all
schools and colleges were closed for 104 days. Tea
Gardens in the hills were also closed leading to the
loss of livelihood of thousands of tea estate
labourers. Bandh adversely affected the world
famous tea industry of Darjeeling. The band also
adversely affected the thriving tourism industry of
Darjeeling. A total of 371 No. of cases of attack
on police, unlawful assembly, arson, rioting, bomb
explosion, use of firearms etc. has been registered
in Darjeeling, Kalimpong and Alipurduar districts.
Out of 371 cases, petitioner is named as accused in
56 cases. Out of 371 cases, 145 number of cases,
have been started on suo moto action by the police
whereas other cases have been started on the
complaints of other victims.
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11. Series of bomb blast have also been alleged in
the counter affidavit, accusing petitioner and other
supporters of GJM, with regard to which, several
FIRs have been lodged. The GJM supporters have
indulged in large scale violence causing damage to
private and public property. Cases have been
registered against the petitioner, supporters and
other miscreants of attack on police, arson, rioting
etc. The petitioner is not entitled for the relief
as claimed in the writ petition. Allegation that
police has registered cases falsely on the
petitioner and his supporters is denied.
Allegations that recovery of arms and ammunitions
were recovery of those arms, which were planted by
the police is also vehemently denied. The State has
also referred to orders passed by Calcutta High
Court in Writ Petition No. 15306 of 2017 where the
High Court has issued various directions on
16.06.2017, 07.07.2017, 11.07.2017 and 14.07.2017.
12. The State case is that even the High Court in
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its order has noted that situation in Darjeeling and
Kalimpong districts is deteriorating rapidly day by
day. Insurgency and the violent agitations are
continuing unabated. The High Court itself has
directed the Central Government to deploy four more
companies of CRPF, which was deployed by the Central
Government as was noticed by the High Court
subsequently on 19.07.2017. The State consistently
denied any extra judicial killings of supporters
requiring any investigation. It is further denied
that any perverse steps have been taken by the State
Agencies in order to quell the so called democratic
and alleged peaceful movement. It is pleaded that
present petition being based on incorrect fact, full
of suppression of material facts, no relief should
be granted. It is the petitioner who has been for a
long time evading process of law by not cooperating
with any investigation by police authorities and not
appearing before the trial court. In the counter
affidavit, the respondents have annexed various
photographs capturing damage to public and private
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properties, photographs referring to particular
cases have also been brought on record along with
the counter affidavit.
13. Petitioner has filed a rejoinder affidavit again
reiterating the prayer for independent
investigation. Petitioner’s case is that petitioner
is a well known political leader and he is being
persecuted by the State and its agencies. The
petitioner was provided police protection prior to
June, 2017. The petitioner further pleads that
cases against the petitioner originating prior to
2017 should be withdrawn as per GTA Act, 2011. He
has also referred to clause 29 of Tripartite
agreement entered in the year 2011. Petitioner’s
case is that all cases registered post May, 2017 are
lodged with an intention to pressurize and threaten
the members of GJM and to quell the legitimate
political movement of the Gorkha people, who are
seeking a separate State to protect their identity,
existence and interests. The Government of West
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Bengal has dealt with absolute high handedness to
quell the democratic and peaceful agitation. Almost
all cases are registered by the State Police, by
taking suo-moto cognizance of fabricated instances,
simply to bring the petitioner in custody and quell
the legitimate political movement. The
investigations are over and some of the FIRs and
charge sheets have been filed, which have been also
annexed in the counter affidavit, which clearly
shows that conspiracy to charge the petitioner in
all those cases are present since from beginning and
no real investigation has actually taken place. The
weapons recovered are sealed and stamped packets,
which weapons were merely planted by the police from
some malkhana. Cases registered of bomb blasts
under the Unlawful Activities (Prevention) Act are
all false and were registered when the petitioner
was discharged from the trial court from the murder
of one Mr. Madan Tamang on 17.08.2017. Execution of
Dawa Bhutia, by illegally entering into the State of
Sikkim. On 01.09.2017, the West Bengal Police, led
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by Superintendent of Police, Mr. Yadav, Kalimpong
went deep inside at Namchi, Sikkim and shot one
person named Dawa Bhutia, without any provocation,
against which a FIR has been registered by Namchi
Police Station against police personnel headed by
S.P., Kalimpong. Death of certain supporters of GJM
has also been mentioned in the rejoinder affidavit
and name of 11 persons have been given, who died
allegedly by various police actions. Petitioner
further stated that respondents have continued to
commit atrocities on innocent supporters of GJM. It
is further alleged that police officials are picking
and choosing the supporters of the petitioner and
threatening them to surrender and change their
allegiance to a leader sponsored by the State
Government.
14. We have heard Shri P.S. Patwalia, learned senior
counsel for the petitioner, Shri Kapil Sibal,
learned senior counsel, Dr. A.M. Singhvi, learned
senior counsel, Shri Rakesh Dwivedi, learned senior
counsel and Shri Kalyan Banerjee, learned senior
22
counsel have been heard for the respondents. Learned
Attorney General has appeared for the Union of
India.
15. Shri P.S. Patwalia, learned senior counsel
appearing for the petitioner submits that the
petitioner who is President and Leader of GJM Party
has been carrying out only democratic and peaceful
agitation in support of the long standing demand of
separate State of Gorkhaland. It is submitted that
Education Minister and Chief Minister of State of
West Bengal announced that Bengali shall be a
compulsory language in the entire State of West
Bengal. He submits that meeting was convened on
30.05.2017 by the intellectual and literary persons
for exchange of ideas with regard to which FIR was
lodged without any provocation. He further submits
that demonstration and agitation with regard to
which FIRs have been lodged against the petitioner
and other members of GJM which were false and
without any reason and only to persecute the
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petitioner and other members of the party. He
submits that in the Police firing several members of
the GJM have been killed whereas FIRs have been
lodged against the petitioner and other members of
the Party for killing of their own supporters which
is unbelievable and false. He submits that FIR
No.182 of 2017 pertaining to bomb blast and several
other subsequent FIRs were lodged with word to word
similarity which indicates that FIRs have been
lodged in mechanical manner with only intent to rope
in petitioner and other members. The West Bengal
Police at the instance of the Government was lodging
different FIRs alleging commission of different
offences only to quell the democratic and peaceful
demonstration of the petitioner and his Party. It is
submitted that alleged recovery of huge arms and
ammunitions are false and bogus. It was well planted
recovery of AK-47, arms and ammunitions and for
which blame has been made on petitioner and other
Party members. The petitioner submits that neither
fair investigation is being conducted by the Police
24
of West Bengal nor the petitioner has any hope of
any fair investigation in large number of cases. The
reports have been hurriedly filed which also
indicates the shoddy manner in which investigation
was conducted. It is submitted that the cases where
Police personnel have been made accused on killing
of a person, investigation by CID has not yet been
completed. It is submitted that mere fact that
charge-sheet has been filed in some cases and the
trial has commenced is no ground for denying to
transfer the investigation. He submits that this
Court has already held that mere filing of chargesheet
and commencing of trial is no ground to refuse
in entrusting the investigation to an independent
agency.
16. Learned counsel for the petitioner submits that
the investigation of all the FIRs be transferred to
any independent agency including NIA, CBI on which
West Bengal Government has no control for a fair and
correct investigation. He submits that peaceful and
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democratic demonstration cannot be curbed in the
manner in which State of West Bengal is doing.
17. Learned counsel for the petitioner in support of
his submission has placed reliance on the judgments
of this Court in State of West Bengal and others vs.
Committee for Protection of Democratic Rights, West
Bengal and others, (2010) 3 SCC 571, Sanjiv Kumar
vs. Union of India and others, (2005) 5 SCC 510,
Dharam Pal vs. State of Haryana and others, (2016) 4
SCC 160 and Mithilesh Kumar Singh vs. State of
Rajasthan and others, (2015) 9 SCC 795.
18. Shri Kapil Sibal and Dr. Abhishek Manu Singhvi,
learned senior counsel appearing for the State of
West Bengal refuting the submission of learned
counsel appearing for the petitioner contend that
present is not a case where this Court may exercise
jurisdiction under Article 32 for granting relief as
claimed in the writ petition. It is submitted that
the petitioner has sought for transfer of
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investigation of FIRs lodged against him and other
members of GJM as well. This petition is neither a
representative nor a PIL so that the petitioner can
espouse the cause of all members of the GJM who are
culpable or liable to be prosecuted. The
petitioner's prayer that any future FIRs/complaints
may also be transferred, is also a prayer which
cannot be considered. It is incumbent upon the
petitioner to identify the cases which need to be
transferred and make out grounds for transfer of
each of such cases. The prayer seeking transfer of
all the FIRs enmass including future FIRs is not
maintainable. The primary contention of the
petitioner is that the allegations against him are
false and that he is not culpable in any of the
cases registered against him. For such allegations,
the petitioner has full opportunity to raise all
legal and factual defences and has remedies
available under the Criminal Procedure Code. The
petitioner cannot be allowed to bypass the
provisions of the Cr.P.C. and entire procedure.
27
19. It is further submitted that the most of the
cases where investigation has been transferred by
this Court are the cases which were filed at the
instance of the victims and not by the accused. The
reason for such indulgence is that the accused has
sufficient opportunity of representation, whereas
the victim does not have any, hence, it is to
safeguard the victim's cause that courts have to
step in to ensure fair investigation and trial.
Further, the petitioner cannot seek transfer of
investigation in cases where charge-sheet has
already been filed and trial has commenced. The
allegations of bias against the entire State
machinery are unfounded and unsubstantiated. The
petitioner has not made out any allegation against
the judicial machinery available in the State. The
cases against the petitioner are serious in nature
and the instant writ petition has been filed solely
to scuttle investigation against the petitioner.
The submission of the petitioner that certain FIRs
28
are identical in word by word, in no manner, is to
dilute the seriousness of the allegations for which
FIR has been registered.
20. It is submitted that whenever the power has been
exercised by this Court or by the High Court for the
transfer of investigation to a Central Agency it was
based on the facts of each case. Looking into the
facts of the present case, where not only there is
serious threat to law and order and the public order
by violent acts life and property has also been
damaged. Distrust on whole State machinery and
judicial system cannot be accepted. It is the
responsibility of the State to maintain the law and
order and to protect the lives and properties of the
citizens. A State cannot abdicate its obligation to
quell the violent agitation and to take appropriate
action permitted under law.
21. Shri Rakesh Dwivedi, learned senior counsel,
appearing for the Director General of Police, adopts
29
the submission raised by Shri Kapil Sibal and Dr.
A.M. Singhvi, and he submits that Police officers
and authorities are taking action as per law and the
allegation that there is any bias on the part of the
Police authorities towards the petitioner is
unfounded. There have been cases registered against
the petitioner even before starting of the agitation
from May, 2017. The petitioner and his supporters by
violent agitation had made the entire area stand
still causing loss of lives and properties of the
residents.
22. Learned Attorney General appearing for the Union
of India submits that Union of India has rendered
all necessary help as per the request of the State
for providing Central Forces to the State for
maintaining peace. Learned Attorney General submits
that Union Government is always ready to comply with
any direction issued by this Court in this regard.
23. We have considered the submissions of the
learned counsel for the parties and perused the
30
records.
24. Before we advert to the facts of the present
case and prayers made in the writ petition, it is
useful to recall necessary principles as enumerated
by this Court while exercising jurisdiction by this
Court under Article 32 or the High Court under
Article 226 for transferring investigation of a
criminal case to a Central Agency. The Constitution
Bench of this Court in State of West Bengal (supra)
has authoritatively laid down that the High Court
under Article 226 and this Court under Article 32
can issue direction to CBI to investigate a
cognizable offence within the State without consent
of that State. The Constitution Bench also in the
above context has held that although this Court has
implied power and jurisdiction to direct for the
transfer to CBI to investigate a cognizable offence
but also has obligation to exercise the said power
with great caution which must be exercised
sparingly, cautiously and in exceptional situations.
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In paragraph 70 with regard to exercise of such
power following has been laid down by the
Constitution Bench:
“70. Before parting with the case, we
deem it necessary to emphasise that
despite wide powers conferred by Articles
32 and 226 of the Constitution, while
passing any order, the Courts must bear
in mind certain self-imposed limitations
on the exercise of these constitutional
powers. The very plenitude of the power
under the said articles requires great
caution in its exercise. Insofar as the
question of issuing a direction to CBI to
conduct investigation in a case is
concerned, although no inflexible
guidelines can be laid down to decide
whether or not such power should be
exercised but time and again it has been
reiterated that such an order is not to
be passed as a matter of routine or
merely because a party has levelled some
allegations against the local police.
This extraordinary power must be
exercised sparingly, cautiously and in
exceptional situations where it becomes
necessary to provide credibility and
instil confidence in investigations or
where the incident may have national and
international ramifications or where such
an order may be necessary for doing
complete justice and enforcing the
fundamental rights. Otherwise CBI would
be flooded with a large number of cases
and with limited resources, may find it
difficult to properly investigate even
serious cases and in the process lose its
credibility and purpose with
unsatisfactory investigations.”
32
25. The two-Judge Bench of this Court in Dharam Pal
vs. State of Haryana and others (supra) while
referring to the principles for transferring
investigation has laid down following in paragraphs
18, 19 and 24:
“18. A three-Judge Bench in K.V.
Rajendran v. Supt. of Police reiterating
the said principle stated that: (SCC p.
485, para 13)
“13. … the power of transferring
such investigation must be in rare
and exceptional cases where the
court finds it necessary in order
to do justice between the parties
and to instil confidence in the
public mind, or where investigation
by the State police lacks
credibility and it is necessary for
having ‘a fair, honest and complete
investigation’, and particularly,
when it is imperative to retain
public confidence in the impartial
working of the State agencies.”
19. The Court, after referring to earlier
decisions, has laid down as follows:
(K.V. Rajendran case, SCC p. 487, para
17)
“17. In view of the above, the law
can be summarised to the effect
that the Court could exercise its
constitutional powers for
transferring an investigation from
33
the State investigating agency to
any other independent investigating
agency like CBI only in rare and
exceptional cases. Such as where
high officials of State authorities
are involved, or the accusation
itself is against the top officials
of the investigating agency thereby
allowing them to influence the
investigation, and further that it
is so necessary to do justice and
to instil confidence in the
investigation or where the
investigation is prima facie found
to be tainted/biased.”
24. Be it noted here that the
constitutional courts can direct for
further investigation or investigation by
some other investigating agency. The
purpose is, there has to be a fair
investigation and a fair trial. The fair
trial may be quite difficult unless there
is a fair investigation. We are
absolutely conscious that direction for
further investigation by another agency
has to be very sparingly issued but the
facts depicted in this case compel us to
exercise the said power. We are disposed
to think that purpose of justice commands
that the cause of the victim, the husband
of the deceased, deserves to be answered
so that miscarriage of justice is
avoided. Therefore, in this case the
stage of the case cannot be the governing
factor.”
26. The law is thus well settled that power of
transferring investigation to other investigating
34
agency must be exercised in rare and exceptional
cases where the Court finds it necessary in order to
do justice between the parties to instil confidence
in the public mind, or where investigation by the
State Police lacks credibility. Such power has to be
exercised in rare and exceptional cases. In K.V.
Rajendran vs. Superintendent of Police, CBCID South
Zone, Of Police, (2013) 12 SCC 480, this Court has
noted few circumstances where the Court could
exercise its constitutional power to transfer of
investigation from State Police to CBI such as: (i)
where high officials of State authorities are
involved, or (ii) where the accusation itself is
against the top officials of the investigating
agency thereby allowing them to influence the
investigation, or (iii)where investigation prima
facie is found to be tainted/biased.
27. Before we apply the above principles laid down
by this Court to find out whether the facts of the
35
present case are rare and exceptional where this
Court has to exercise power under Article 32 to
transfer enmass cases to other agency, we need to
advert what is the nature and extent of democratic
and peaceful demonstration as protected by our
Constitution violation of which may raise violation
of fundamental rights of a person.
28. Article 19 of the Constitution of India
guarantees some of most important fundamental rights
to the citizens. Article 19 protects important
attributes of personal liberty. Right to freedom of
speech and expression as guaranteed under
Article 19(1)(a) and the right to assemble peaceably
and without arms as protected by Article 19(1)(b)
are the rights which in reference to the present
case have importance. The right of freedom of speech
and expression coupled with right to assemble
peaceably and without arms are rights expression of
which are reflected in carrying demonstration on
several occasions. Freedom to air once view is the
36
life line of any democratic institution. The word
freedom of speech must be broadly construed to
include right to circulate once view by word or
mouth or through audio visual instrument. Right of
public speech is one form of expression which is
also a part of freedom of speech and expression.
Demonstrations are also a mode of expression of the
rights guaranteed under Article 19(1)(a).
Demonstrations whether political, religious or
social or other demonstrations which create public,
disturbances or operate as nuisances, or create or
manifestly threaten some tangible public or private
mischief, are not covered by protection under
Article 19(1). A demonstration might take the form
of an assembly and even then the intention is to
convey to the person or authority to whom the
communication is intended the feelings of the group
which assembles. From the very nature of things a
demonstration may take various forms; “it may be
noisy and disorderly”, for instance stone-throwing
by a crowd may be cited as an example of a violent
37
and disorderly demonstration and this would not
obviously be within Article 19(1)(a) or (b). We in
the present case are concerned with the
demonstrations and the bandh call given by GJM.
29. A full Bench of the Kerala High Court in Bharat
Kumar Vs. State of Kerala & Ors., AIR 1997 Ker. 291
had occasion to consider fundamental rights and
bandh given by political parties. The Kerala High
Court while describing call for bandh held that call
for a bandh is distinct and different from call for
a general strike or the call for hartal. The
intention of the callers of the bandh is to ensure
that no activity either public or private is carried
on that day. The full Bench considered different
aspects of bandh in reference to fundamental rights
of other persons under Article 19(1). In paragraph
17 full Bench of Kerala High Court laid down
following:
"No political party or organisation can
claim that it is entitled to paralyse the
industry and commerce in the entire State
or nation and is entitled to prevent the
38
citizens not in sympathy with its
viewpoint, from exercising their
fundamental rights or from performing
their duties for their own benefit or for
the benefit of the State or the nation.
Such a claim would be unreasonable and
could not be accepted as a legitimate
exercise of a fundamental right by a
political party or those comprising it.
The claim for relief by the petitioners
in these original petitions will have to
be considered in this background.”
30. An appeal was filed against the said judgment
before this Court. A three-Judge Bench of this Court
in The Communist Party of India (M) vs. Bharat Kumar
& Ors., (1998) 1 SCC 201, affirmed the judgment of
the Kerala High Court. While affirming the judgment
following was laid down in paragraph 3:
“3. On a perusal of the impugned judgment
of the High Court‡, referring to which
learned counsel for the appellant pointed
out certain portions, particularly in
paras 13 and 18 including the operative
part in support of their submissions, we
find that the judgment does not call for
any interference. We are satisfied that
the distinction drawn by the High Court
between a “Bandh” and a call for general
strike or “Hartal” is well made out with
reference to the effect of a “Bandh” on
the fundamental rights of other citizens.
There cannot be any doubt that the
fundamental rights of the people as a
whole cannot be subservient to the claim
39
of fundamental right of an individual or
only a section of the people. It is on
the basis of this distinction that the
High Court has rightly concluded that
there cannot be any right to call or
enforce a “Bandh” which interferes with
the exercise of the fundamental freedoms
of other citizens, in addition to causing
national loss in many ways. We may also
add that the reasoning given by the High
Court, particularly those in paragraphs
12, 13 and 17 for the ultimate conclusion
and directions in paragraph 18 is correct
with which we are in agreement. We may
also observe that the High Court has
drawn a very appropriate distinction
between a “Bandh” on the one hand and a
call for general strike or “Hartal” on
the other. We are in agreement with the
view taken by the High Court.”
31. The two-Judge Bench of this Court in James
Martin vs. State of Kerala, (2004) 2 SCC 203, which
was a case where in reference to Bharat bandh call
sponsored by political parties, appellant was
prosecuted for the offence under Section 304 Part I,
326 and 324 read with Section 34 IPC and 25-B(1) of
Arms Act, 1959 and was convicted. While dealing with
the case this Court made the following pertinent
observations:
“24. Before we part with the case, it
needs to be noted that in the name of
40
hartal or bandh or strike no person has
any right to cause inconvenience to any
other person or to cause in any manner a
threat or apprehension of risk to life,
liberty and property of any citizen or
destruction of life and property, and the
least to any government or public
property. It is high time that the
authorities concerned take serious note
of this requirement while dealing with
those who destroy public property in the
name of strike, hartal or bandh. Those
who at times may have even genuine
demands to make should not lose sight of
the overall situation eluding control and
reaching unmanageable bounds endangering
life, liberty and property of citizens
and public, enabling anti-social forces
to gain control resulting in all-around
destruction with counterproductive
results at the expense of public order
and public peace. No person has any right
to destroy another’s property in the
guise of bandh or hartal or strike,
irrespective of the proclaimed
reasonableness of the cause or the
question whether there is or was any
legal sanction for the same. The case at
hand is one which led to the destruction
of property and loss of lives, because of
irresponsible and illegal acts of some in
the name of bandh or hartal or strike.”
32. A two-Judge Bench of this Court in Anita Thakur
and others vs. Government of Jammu and Kashmir and
others, (2016) 15 SCC 525 in which one of us Dr.
A.K. Sikri was a member had occasion to consider
41
Article 19 in reference to a protest march organised
by a group of people. While dealing with the
demonstration under Article 19(1)(a) and (b)
following was laid down in paragraph 12:
“12. We can appreciate that holding
peaceful demonstration in order to air
their grievances and to see that their
voice is heard in the relevant quarters
is the right of the people. Such a right
can be traced to the fundamental freedom
that is guaranteed under Articles 19(1)
(a), 19(1)(b) and 19(1)(c) of the
Constitution. Article 19(1)(a) confers
freedom of speech to the citizens of this
country and, thus, this provision ensures
that the petitioners could raise slogan,
albeit in a peaceful and orderly manner,
without using offensive language. Article
19(1)(b) confers the right to assemble
and, thus, guarantees that all citizens
have the right to assemble peacefully and
without arms. Right to move freely given
under Article 19(1)(d), again, ensures
that the petitioners could take out
peaceful march. The “right to assemble”
is beautifully captured in an eloquent
statement that “an unarmed, peaceful
protest procession in the land of “salt
satyagraha”, fast-unto-death and “do or
die” is no jural anathema”. It hardly
needs elaboration that a distinguishing
feature of any democracy is the space
offered for legitimate dissent. One
cherished and valuable aspect of
political life in India is a tradition to
express grievances through direct action
or peaceful protest. Organised, nonviolent
protest marches were a key weapon
42
in the struggle for Independence, and the
right to peaceful protest is now
recognised as a fundamental right in the
Constitution.”
33. This Court, however, noticed that more often
than not, such protestors take to hooliganism,
vandlism and even destroy public/private property.
Following observations have been made in paragraph
16:
“16. Before adverting to the issue at
hand, we would like to make some general
remarks about the manner in which these
demonstrations are taking shape. Recent
happenings show an unfortunate trend
where such demonstrations and protests
are on increase. There are all kinds of
protests: on social issues, on political
issues and on demands of various sections
of the society of varied kinds. It is
also becoming a common ground that
religious, ethnic, regional language,
caste and class divisions are frequently
exploited to foment violence whenever
mass demonstrations or dharnas, etc. take
place. It is unfortunate that more often
than not, such protestors take to
hooliganism, vandalism and even destroy
public/private property. In the process,
when police tries to control, the
protestors/mob violently target policemen
as well. Unruly groups and violent
demonstrations are so common that people
have come to see them as an appendage of
Indian democracy. All these situations
frequently result in police using force.
43
This in turn exacerbates public anger
against the police. In Kashmir itself
there have been numerous instances where
separatist groups have provoked violence.
In this scenario, task of the police and
law-enforcing agencies becomes more
difficult and delicate. In curbing such
violence or dispersing unlawful
assemblies, police has to accomplish its
task with utmost care, deftness and
precision. Thus, on the one hand, law and
order needs to be restored and at the
same time, it is also to be ensured that
unnecessary force or the force beyond
what is absolutely essential is not used.
Policemen are required to undergo special
training to deal with these situations.
Many times the situations turn ugly or go
out of control because of lack of
sufficient training to the police
personnel to deal with violence and
challenges to their authority. There are
various documents in the form of police
manual and even international covenants
proscribing use of unnecessary force and
mandating that force should only be used
when it is absolutely necessary. Even
when used, it should be minimum and
proportional to the situation and its use
to be discontinued as soon as the danger
to life and property subsides.”
34. From the above, it is clear that Article 19(1)
(a) and (b) gives constitutional right to all
citizens freedom of speech and expression which
includes carrying out public demonstration also but
public demonstration when becomes violent and
44
damages the public and private properties and harm
lives of people it goes beyond fundamental rights
guaranteed under Article 19(1) and becomes an
offence punishable under law.
35. Before any further discussion we record a note
of caution. In the present case we are not called
upon to express any opinion as to whether
allegations made in FIRs which have been lodged
against the petitioner and other supporters of GJM
are true or false. The issue is as to whether, as
prayed by the petitioner, investigation in such
cases are required to be transferred to a central
investigate agency. Thus our observations are only
in reference to answer the prayer made in the writ
petition. Our observation is not to be treated as
any expression of opinion on the allegations made in
FIRs. We do not express any opinion either in favour
or against the petitioner with regard to the
allegations made in various FIRs. Our observations
shall not influence any investigating agency or any
45
Court which happen to deal with the criminal cases
which are referred to in the writ petition.
36. Reference has been made to the various orders of
the High Court which were passed by the Calcutta
High Court in Writ Petition No.15306(W) of 2017. The
grievance raised in the said writ petition was that
Gorkha Janmukti Morcha (GJM) has organised a bandh
since 9th June, 2017 which has paralysed the working
in the hill area, more specially in Darjeeling.
Referring to the order dated 07.08.2017, the High
Court has made directions to the State to take
necessary action similar to earlier directions in
respect of the functioning of essential services due
to the illegal and disruption measures adopted by
the GJM. It is sufficient to refer to order dated
14.07.2017 where the Calcutta High Court noticed the
following:
"The State Government and the Central
Government have filed their respective
affidavits. The affidavit on behalf of
the Central Bureau of Investigation (in
short, the C.B.I.) has not been filed as
yet.
46
The situation in Darjeeling and
Kalimpong districts is deteriorating
rapidly day by day. Insurgency and the
violent agitations are continuing
unabated. The life and properties of the
general public are in danger.
xxx xxx xxx
The situation in Darjeeling and
Kalimpong districts has escalated since
the agitation started on 8th June, 2017.
Despite our earlier orders directing both
the State and the Central Governments to
ensure that peace and normalcy are
restored in the aforesaid two districts,
it is apparent that the endeavour on the
part of the State Government and the
Central Government is wanting. Otherwise
had the Governments worked together, by
now the situation could have been brought
under control. This one-upmanship of the
Central Government and the State
Government is causing harm to the people
of the two districts of Darjeeling and
Kalimpong. Public property, power
installations have become casualties in
the large-scale arson and agitation.”
37. The above order indicates that situations in
districts of Darjeeling and Kalimpong were
deteriorating and insurgency and violent agitations
were continuing unabated. The protest no longer
remained peaceful and democratic. The allegations
made of the offences with regard to which various
47
FIRs have been lodged can not be rejected as false
and concocted as contended by the petitioner. On the
record there is sufficient material to indicate the
severe damage to live and property.
38. Learned counsel for the respondent has rightly
contended that it cannot be imagined that State
Police of West Bengal itself has destructed the
property including Police vehicles only for the
purpose of foisting cases against the petitioner and
its supporters. Deaths of several persons which
included Police personnel is admitted to by both the
parties. More than 300 cases have been filed with
regard to which FIRs have been lodged after May,
2017.
39. As noted above, the petitioner's prayer is to
transfer the investigation of all the FIRs lodged
against the petitioner and other members of GJM as
per Annexure P4. Annexure P4 contains details of 112
cases in which petitioner is named in 31 cases. The
48
offences alleged in the cases are serious offences
including offences under Section 121, 121A, 153A and
offences under Unlawful Act, 1967 as well as
offences under Section 307, 302 IPC etc. Transfer of
investigation of such large number of cases enmass
is neither practicable nor justified. The
jurisdiction under Article 226 and Article 32 with
regard to transfer of investigation of cases has to
be exercised on facts of each and every case. There
are no grounds available in the aforesaid 112 cases
so as this Court may exercise jurisdiction under
Article 32 for transfer of investigation in all
cases.
40. The petitioner is named only in 31 cases but a
large number of accused are involved in all the
cases in Annexure P4. From the counter-affidavit
further details have been brought on record which
indicate that in 56 cases petitioner is accused and
there are total 371 cases which have been registered
after May, 2017 regarding various subversive
49
activities. We, however, clarify that in principle
when transfer of one case is permissible, number of
cases may not be an impediment in transfer of more
than one case. Even if only those cases are to be
taken into consideration where petitioner is named
accused, there are no such special grounds made out
in the writ petition on which even those cases be
considered for transferring the investigation.
41. The present case is a case where the petitioner
as Leader of GJM is a spare heading an agitation
against the State demanding a separate State-hood.
The State is obliged to maintain law and order and
to protect live and property of the citizens. It
has to take necessary steps to contain such
agitation and restore the peace. The cases lodged in
the FIR submitted at the instance of the Police or
other complainants can not be discarded on the
specious pleas that they have been lodged due to
bias of the State and with the intent to persecute
the petitioner. The “State” is a political unit
50
vested with constitutional duties and obligations.
The Governor of the State formally represent the
State in whom the executive Power of the State is
vested and exercised by him either directly or
through officers subordinate to him in accordance
with the Constitution of India. Under List II,
Entry I of Seventh Schedule of the Constitution,
“Public order” is a subject allocated to the State.
All legislative and executive powers in reference to
Public order is thus vested in the State. There is
a Council Of Ministers with the Chief Minister as
the head to aid and advise the Governor in the
exercise of his functions, except in so far as he is
by or under the Constitution required to exercise
his functions or any of them in his discretion. The
State functions through its various organs
consisting of different personnels and authorities .
State functionaries have their own rights and
obligations entrusted to them under different
Statutes governing the field. The Code of Criminal
Procedure is one of such Statutes, which govern the
51
law relating to criminal procedure. The authorities
and police officers, who are entrusted different
obligations and functions under the Code of Criminal
Procedure, has to act as ordained by the Code of
Criminal Procedure. It is an obligation of the
police officers to register a First Information
Report when they receive any information regarding
commission of a cognizable offence. For recording
such offences, they are neither required to await
any instructions from any authority or State nor
they have to abdicate their obligation to register
F.I.R. as required by Cr.P.C. The Constitution
Bench of this Court in Lalita Kumari Vs. Government
of Uttar Pradesh & Ors., (2014) 2 SCC 1 has
elaborately considered the obligation to register an
F.I.R. when information of cognizable offence is
received by a police personnel. Following are the
relevant observations made by the Constitution Bench
speaking through Justice P. Sathasivam that “When a
cognizable offence takes place before the eyes of
police personnel, he is not to await any information
52
or any other source for registering a F.I.R., it is
his obligation and duty to register a F.I.R.”.
Thus, F.I.R. registered at the instance of police
leading serious offences involving petitioner and
supporters of GJM, cannot be discarded on the plea
that it was police, who has roped in the petitioner
and other supporters by lodging the F.I.R. No bias
or mala fide has been pleaded against any individual
State functionary or police officer nor any such
person has been impleaded in the writ petition so as
to consider the allegation of bias. It is very easy
to make allegations of bias against a person but it
is difficult to substantiate the same. In the
present case, neither there are any pleading nor any
material to come to a conclusion that State
functionaries including police functionaries are
biased against the petitioner. Thus, the
allegations of the bias made against the State and
police functionaries had to be rejected and
petitioner cannot be permitted in saying that the
FIRs lodged against him are result of a bias of the
53
State or police personnels. In Para 83 of the
Constitution Bench Judgment in Lalita Kumari Vs.
Government of Uttar Pradesh & Ors. (supra),
following observations were made:-
“83. In terms of the language used in
Section 154 of the Code, the police is
duty-bound to proceed to conduct
investigation into a cognizable offence
even without receiving information (i.e.
FIR) about commission of such an offence,
if the officer in charge of the police
station otherwise suspects the commission
of such an offence. The legislative
intent is therefore quite clear i.e. to
ensure that every cognizable offence is
promptly investigated in accordance with
law. This being the legal position, there
is no reason that there should be any
discretion or option left with the police
to register or not to register an FIR
when information is given about the
commission of a cognizable offence. Every
cognizable offence must be investigated
promptly in accordance with law and all
information provided under Section 154 of
the Code about the commission of a
cognizable offence must be registered as
an FIR so as to initiate an offence. The
requirement of Section 154 of the Code is
only that the report must disclose the
commission of a cognizable offence and
that is sufficient to set the
investigating machinery into action.”
42. One of the submissions raised by the petitioner
is that the mere fact that in certain cases the
54
charge-sheet has been submitted and no investigation
pending can also be transferred. Petitioner has
relied on the judgment of Dharam Pal vs. State of
Haryana (supra) where this Court had held that the
commencement of a trial and examination of some
witnesses cannot be an absolute impediment for
exercising the constitutional power vested in the
High Court and this Court to ensure a fair and just
investigation. In paragraph 25 of the judgment
following has been stated:
"25. We may further elucidate. The power
to order fresh, de novo or
reinvestigation being vested with the
constitutional courts, the commencement
of a trial and examination of some
witnesses cannot be an absolute
impediment for exercising the said
constitutional power which is meant to
ensure a fair and just investigation. I
can never be forgotten that as the great
ocean has only one test, the test of
salt, so does justice has one flavour,
the flavour of answering to the distress
of the people without any
discrimination....”
43. As per law laid down by this Court in the above
case when the power can be exercised even after the
55
commencement of the trial there cannot be any fetter
to the power of this Court in transferring the
investigation even after the filing of the chargesheet
but in view of the facts and reasons as stated
above present is not a case where this Court may
exercise jurisdiction under Article 32 to transfer
the investigation in large number of cases enmass
registered against the petitioner and other members
of the GJM. A judgment on which reliance has been
placed by the petitioner is judgment of Mithilesh
Kumar Singh vs. State of Rajasthan (supra). The
above case was a case where daughter of the
petitioner died by falling from four storied College
Hostel. Petitioner came with the case that
investigation conducted by the local police was not
fair and the version put up by the police that the
girl committed suicide is not correct. In the above
context this Court held that a trial based on a
partisan, motivated, one-sided, or biased
investigation can hardly be fair. In paragraphs 11
and 12 following has been laid down:
56
"11. Such being the importance of fair
and proper investigation, this Court has
in numerous cases arising out of several
distinctly different fact situations
exercised its power of transferring
investigation from the
State/jurisdictional police to the
Central Bureau of Investigation under the
Delhi Police Establishment Act. There was
mercifully no challenge to the power of
this Court to direct such a transfer and
in my opinion rightly so as the question
whether this Court has the jurisdiction
to direct transfer stands authoritatively
settled by the Constitution Bench of this
Court in State of W.B v. Committee for
Protection of Democratic Rights (2010 3
SCC 571).
12. Even so the availability of power and
its exercise are two distinct matters.
This Court does not direct transfer of
investigation just for the asking nor is
transfer directed only to satisfy the ego
or vindicate the prestige of a party
interested in such investigation. The
decision whether transfer should or
should not be ordered rests on the
Court's satisfaction whether the facts
and circumstances of a given case demand
such an order. No hard-and-fast rule has
been or can possibly be prescribed for
universal application to all cases. Each
case will obviously depend upon its own
facts. What is important is that the
Court while exercising its jurisdiction
to direct transfer remains sensitive to
the principle that transfers are not
ordered just because a party seeks to
lead the investigator to a given
conclusion. It is only when there is a
reasonable apprehension about justice
57
becoming a victim because of shabby or
partisan investigation that the Court may
step in and exercise its extraordinary
powers. The sensibility of the victims of
the crime or their next of kin is not
wholly irrelevant in such situations.
After all transfer of investigation to an
outside agency does not imply that the
transferee agency will necessarily, much
less falsely implicate anyone in the
commission of the crime. That is
particularly so when transfer is ordered
to an outside agency perceived to be
independent of influences, pressures and
pulls that are commonplace when State
Police investigates matters of some
significance. The confidence of the party
seeking transfer in the outside agency in
such cases itself rests on the
independence of that agency from such or
similar other considerations. It follows
that unless the Court sees any design
behind the prayer for transfer, the same
must be seen as an attempt only to ensure
that the truth is discovered. The
hallmark of a transfer is the perceived
independence of the transferee more than
any other consideration. Discovery of
truth is the ultimate purpose of any
investigation and who can do it better
than an agency that is independent.”
44. The above was a case where writ petition was
filed under Article 32 by the victim who is the
father of the deceased and the Court was satisfied
that circumstances as pleaded by the petitioner
required investigation by the independent agency
58
like CBI. The said case was on its own facts and
does not help the petitioner in the present case.
45. Judgment of Sanjiv Kumar vs. Om Prakash
Chautala (supra) was again a case filed by Sanjiv
Kumar who was a whistle-blower alleging large-scale
corruption and tampering of records in filling up of
about 4000 posts of JBT teachers in State of
Haryana. The writ petition filed by Sanjiv Kumar
being W.P.(Crl.)No.93 of 2003 was disposed of by
this Court directing the complaint to be
investigated by CBI. There were certain cases which
were under the investigation against the petitioner
himself which were also entrusted to the CBI. The
said case was on its own facts one does not lend
support to the petitioner.
46. Most of the cases which were cited before us by
the parties are the cases where this Court exercised
jurisdiction under Article 32 in transferring the
investigation at the instance of the victims. For a
59
victim the investigation in a case is of much
significance. In the event, a proper investigation
is not carried out and relevant evidence which would
have been collected by due care and caution, is not
collected, the victim is sure not to get justice on
such faulty investigation. In case of faulty
investigation, where an accused has been wrongly
roped in, he has right to seek all remedies before
Court of Law for further investigation and a Court
of Law is able to marshall all evidence and capable
of discerning truth from evidence on record.
Although as a principle, there is no fetter on an
accused to move a Court of Law for transfer of
investigation, but on the facts of this case as
noted above, we do not think it to be a fit case
where this Court may exercise jurisdiction under
Article 32 to transfer the cases enmass to an
independent agency. The present case cannot be said
to be a case of individual's persecution by the
State authority.
47. In view of the foregoing discussion, we are of
60
the view that the petitioner is not entitled for any
relief. The writ petition is dismissed.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 16, 2018.
61
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 201 OF 2017
GANGA MALIK                    … PETITIONER
VERSUS
UNION OF INDIA & ORS.       … RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
The petitioner's case in this writ petition is that
her   son,   Amitava   Malik,   Sub­Inspector   of   Police   was
killed on 13.10.2017 when Police party which consisted
of Amitava Malik proceeded to arrest several accused who
were   camping   at   south   bank   of   river     Chhota   Rangeet,
P.S. Sadar, Dajeeling. While chasing the miscreants the
Police personnel were fired upon in which Amitava Malik
son of the petitioner died. The petitioner in this writ
petition has prayed for the following relief:
a) Issue a  writ  of  mandamus  or  any  other
appropriate   writ   order   or   direction   to   the
respondents   to   ensure   that   the   petitioner
and her family's life is protected;
b) Issue a  writ  of  mandamus  or  any  other
appropriate   writ   order   or   direction   to
respondent   No.2,   State   of   West   Bengal   to
62
expeditiously conclude the trial in Sadar PS
Case   No.213   dated   13.10.2017   preferably
within   a   time   bound   manner   and   punish   the
culprits;
c) Issue a  writ  of  mandamus  or  any  other
appropriate   writ   order   or   direction   to   the
respondent   to   pay   compensation   to   the
petitioner   for   the   irreparable   loss   of
losing her son which cannot be quantified in
monetary terms.
2. Petitioner in the writ petition has stated that Case
No.213   has   already   been   registered   in   P.S.   Sadar   in
which charge­sheet has also been submitted and trial is
going   on.   In   so   far   as   trial   of   criminal   case   is
concerned the law shall take its own course. In so far
as other reliefs, we are of the view that it is open for
the   petitioner   to   approach   respondent   No.2   for
appropriate relief.
3. By granting the aforesaid liberty to the petitioner,
the writ petition is dismissed.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 16, 2018.

Money lending laws = corporate laws - whether the amendments made to the Karnataka Money Lenders Act, 1961 and the Karnataka Pawn Brokers Act, 1961 in the year 1998 providing that the security deposit furnished by the money lenders and pawn brokers in terms of Sections 7-A and 4-A of the Acts respectively shall not carry interest, is constitutional, legal and valid. = we are clearly of the view that the impugned provisions prohibiting payment of interest on the amount of security deposits cannot be said to be arbitrary or violative of Article 14 of the Constitution of India. In view of the above discussion it is held as follows :- (i) Section 7-A & 7-B of the M.L. Act and 4-A & 4-B of the P.B. Act are valid from the date of their enactment; (ii) That the provisions making these amendments retrospective from 1985 are illegal and invalid.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5793 OF 2008
The State of Karnataka & Ors. …. Appellant(s)
Versus
The Karnataka Pawn Brokers Assn. & Ors. … Respondent(s)

With
CIVIL APPEAL NOS. 2874-2878 OF 2018
(Arising out of SLP© Nos. 8652-8656 of 2012)
J U D G M E N T
Deepak Gupta J.
Leave granted in SLP(C) Nos. 8652-8656 of 2012.
2. The main issue raised in these appeals is whether the
amendments made to the Karnataka Money Lenders Act, 1961 and
the Karnataka Pawn Brokers Act, 1961 in the year 1998 providing
1
that the security deposit furnished by the money lenders and pawn
brokers in terms of Sections 7-A and 4-A of the Acts respectively
shall not carry interest, is constitutional, legal and valid.
Background
3. The State of Karnataka enacted the Karnataka Money Lenders
Act, 1961 (for short the M.L. Act) with a view to regulate and control
the transactions of money lending in the State. Section 5 of the
M.L. Act makes it obligatory for any person carrying on the
business of money lending to procure licence before carrying on the
business of money lending.
4. The State of Karnataka simultaneously enacted the Karnataka
Pawn Brokers Act, 1961 (for short the P.B Act) to regulate and
control the business of pawn brokers. Section 3 of the P.B. Act
makes it obligatory for every person desirous of carrying on the
business as a pawn broker to conduct his business only after he
obtains a licence in accordance with the provisions of the Act.
5. The main business of both money lenders and pawn brokers is
to advance or lend money to individuals who approach them for
loans. The only difference is that a pawn broker is authorized to
2
accept valuable articles like gold, gold ornaments etc. as pledge for
security of the payment.
6. In the year 1985, amendments were brought out to both the
Acts. Section 7-A & 7-B were introduced in the M.L. Act and
corresponding Sections 4-A & 4-B were introduced in the P.B. Act.
These amendments provided that the persons desirous of obtaining
a licence had to deposit a security and the rate of security was fixed
slab-wise in relation to the extent of business carried on by the
licensee. These amendments were challenged by a large number of
pawn brokers and money lenders. A Division Bench of the
Karnataka High Court in Manakchand Motilal vs. State of
Karnataka1 upheld the validity of Sections 7-A & 7-B of the M.L.
Act and Sections 4-A & 4-B of the P.B. Act. It would be pertinent to
mention that in this case one of the grounds raised to challenge the
validity of the aforesaid provisions was that there is no provision for
payment of interest on the security amount. The Division Bench
relying upon the judgment of this Court in Jagdamba Paper
Industries (P) Ltd. vs. Haryana State Electricity Board2
 held
1 I.L.R 1991 KAR 1928
2 (1983) 4 SCC 508
3
that the money lenders / pawn brokers were entitled to interest on
the security deposits at the prevailing rate of interest payable by the
scheduled banks on a fixed deposit for a period of one year. The
State Government was also directed to make proper rules in this
behalf. The relevant portion of the judgment reads as follows :-
“16.…..It is true that the Sections do not make a
provision for giving interest but at the same time the
Sections do not prohibit the payment of interest. If the
Sections prohibited the payment of interest, such a
provision would be arbitrary and therefore there would
have been force in the contention of the petitioners
that the provisions were violative of Article 14 on the
ground that it is arbitrary, for, Article 14 strikes at
arbitrariness in State action. (See: E.P. ROYAPPA v.
STATE OF TAMIL NADU, and MANEKA GANDHI v.
UNION OF INDIA). Further, there would have been
also force in the contention of the petitioners that such
a provision which compelled them to deposit
considerable amount in cash with the Government
without any provision for payment of interest was an
unreasonable restriction on their fundamental right to
carry on business guaranteed under Article 19(1)(g) of
the Constitution, It is indisputable that by such
deposit not only the petitioners lose the opportunity of
earning profit on the said amount but the value of the
money also goes down as years pass and thereby the
petitioners would be forced to incur losses instead of
earning profit out of the money, which they would
have invested in their business, but for the
compulsion to deposit a portion of it in the
Government. Therefore, it appears to us that in the
absence of any prohibition in the provisions of the Act
regarding payment of interest, in view of Article 14, the
Government while making Rules for the purposes of
4
the Act under Section 44 of the Money Lenders Act
and Section 22 of the Pawn Brokers Act has not only
the power but also a duty to provide for payment of
interest. As far as the rate of interest is concerned, in
our opinion, as the deposit prescribed under Section
7A of the Money Lenders Act and Section 4A of the
Pawn Brokers Act is for a period of one year, as the
duration of the licence on, each occasion being one
year, the Government should pay interest on the
amount of security deposit made by a licensee at the
rate at which the interest is paid by any Scheduled
Bank on a fixed deposit for one year.”
No appeal was filed by the State of Karnataka against this
judgment. However, the money lenders and pawn brokers filed an
SLP which was dismissed. It appears that thereafter the State
framed certain rules pursuant to the directions of the Division
Bench of the Karnataka High Court. These Rules were also
challenged by the money lenders/pawn brokers. It appears that the
High Court of Karnataka approved some portions of the Rules but,
at the same time, directed that the Rules be reframed in compliance
with the earlier judgment.
7. Thereafter, the State of Karnataka enacted the Karnataka
Money Lenders (Amendment) Act, 1998 and a similar amendment
was also made to the P.B. Act. In this case we are not concerned
5
with the other amendments. We are restricting our discussion only
to sub-section 3 of Section 7-A and 4-A of the M.L. Act and the P.B.
Act respectively. Sub-section 3 of Section 7-A and 4-A of the M.L.
and the P.B. Acts, after amendment, read as follows:
“Section 7-A. Conditions of licence.-
xxx xxx xxx
xxx xxx xxx
(3) For the purposes of sub-section(2), the amount of
the security payable in a year by a licensee shall be
determined on the basis of the [the amount invested
by him in the business during the previous year [and
such security deposit shall not carry any
interest:]”
3
“Section 4-A. Conditions of licence.-
xxx xxx xxx
xxx xxx xxx
(3) For the purposes of sub-section(2), the amount of
the security payable by a licensee in a year shall be
determined on the basis of the [the amount invested
by him in the business during the previous year] [and
such security deposit shall not carry any
interest]:”4
The highlighted parts of the above Sections were introduced by the
amendments of 1998 but were deemed to be inserted from
31.05.1985 making it retrospective in application.
3 Introduced vide Act No.14 of 1998
4 Introduced vide Act No.9 of 1998
6
8. The association of pawn brokers and money lenders filed writ
petitions in the High Court of Karnataka challenging the
constitutional validity of these amendments. The learned Single
Judge dismissed the writ petitions. However, the Division Bench
allowed the writ petitions and held that though all other
amendments made to Sections 7-A and 7-B of the M.L. Act and
Sections 4-A and 4-B of the P.B. Act are constitutionally valid and
legal, the provisions providing for non-payment of interest on
security deposits were held to be constitutionally bad and were
accordingly set aside.
9. The Division Bench held that as far as interest is concerned,
in the earlier judgment in Manakchand Motilal’s case, the
Karnataka High Court had held that the money lenders and pawn
brokers were entitled to interest on the amount of deposit and the
said judgment had become final since the SLP against the same was
dismissed. The Division Bench further held that the judgment of
the Apex Court in Ferro Alloys Corpn. Ltd. vs. A.P. State
Electricity Board5
 was not applicable and was wrongly relied
upon by the learned Single Judge. It was also observed that the
5 1993 Supp (4) SCC 136
7
High Court in Manakchand Motilal’s case (supra) had clearly held
that in case there was a provision for non-payment of interest then
such provision would be un-constitutional. It was further held that
the State Government could not nullify the judgment of the High
Court in Manakchand Motilal’s case by way of subsequent
amendment.
10. In the appeal filed by the State of Karnataka , Shri Devadatt
Kamath, learned AAG, has raised the following issues :-
(i) Business of money lending or pawn broking is an usurious
business and, therefore, the State wanted to frame a policy to
discourage the business of money lending and pawn broking and
hence stringent conditions have been laid down including the
condition that no interest would be payable on the security. He
also contends that nobody is forced to do the business of money
lending or pawn broking and if persons want to obtain licence then
they will have to submit the security deposits in terms of the Acts.
(ii) The amendments of 1998 are in the nature of validating Acts.
He submits that the State of Karnataka is fully competent to enact
such a provision and, therefore, the State was within its powers to
8
make the amendments to effectively negate the judgment in
Manakchand Motilal’s case (supra).
(iii) The observations made in Manakchand Motilal’s case
(supra) were in the nature of obiter and were not called for in the
facts of the said case.
(iv) Lastly, that there is no fundamental right or legal right to
claim interest and the State is legally competent to enact a
provision that no interest shall be paid on the amount of security
deposited.
11. On the other hand Mr. Gurukrishna Kumar, learned senior
counsel appearing for the respondents contended that the matter
inter-se parties was settled by the judgment rendered in
Manakchand Motilal’s case (supra). He also contended that the
statute cannot nullify the mandamus issued in the earlier judgment
without removing the basis of the judgment. He further contended
that the judicial decisions which have become final, cannot be set
at naught by the legislature. The main contention was that both
under law and equity a person whose money, which is property, is
kept by another, is entitled to compensation by way of interest for
9
the period for which the money has been retained by the other
party. He, therefore, submitted that the provisions prohibiting the
payment of interest are arbitrary and liable to be set aside.
12. The following points arise for decision:-
(i) What is the scope, ambit and effect of the judgment of
the Karnataka High Court in Manakchand Motilal’s case (supra)?;
(ii) Whether the amendments brought into Section 7-A and
4-A of the M.L. Act and the P.B. Act respectively providing that
security deposit would not carry any interest is contrary to the
judgment in Manakchand Motilal’s case (supra) and the State was
not competent to introduce such amendments; and
(iii) Whether the provisions providing that no interest is
payable are arbitrary and hence violative of Article 14 of the
Constitution of India.
Issue No.1
13. As far as the first issue is concerned, at the outset, we may
note that the main issue raised in Manakchand Motilal’s case
(supra) was with regard to the validity of Section 7-A and 4-A of the
10
M.L. Act and the P.B. Act respectively, in so far as they made a
provision for deposit of security as a pre-requisite to the grant of
licence. At that time, there was no provision with regard to the
payment of interest. The Court held that the State Government was
entitled to introduce a condition for payment of deposit. The Court,
however, felt that for the provision to be constitutionally valid, the
deposit must carry interest. We have quoted the relevant portion of
the judgment in Manakchand Motilial’s case in the earlier part of
this judgment. The Division Bench noticed that the Acts do not
have any provision for payment of interest and observed that, at the
same time, there was also no prohibition for the payment
of interest.
14. In our view, the observations that if there was a provision
prohibiting payment of interest, the same would be arbitrary and
hence illegal, were not necessary in the fact situation of
Manakchand Motilal’s case (supra). As observed by the High
Court itself, there was no provision prohibiting the payment of
interest. Therefore, the observations in this behalf were not called
for and were hypothetical and in the nature of obiter. We may also
11
point out that there was no discussion on the issue as to whether a
provision providing that no interest would be payable on the
security deposit would be legally valid or not? A passing
observation has no doubt been made that there would have been
force in the contention of the money-lenders and pawn brokers that
the provisions would be violative of Article 14 of the Constitution
but this, in our opinion, was not the ratio decidendi of the case.
15. It would also be apposite to mention that after making the
aforesaid observation, the Division Bench again noted that in the
absence of any prohibition in the provisions of the Acts, regarding
payment of interest, in view of Article 14, the Government while
making rules must provide for payment of interest. This itself was a
clear indicator that the Court decided the issue in Manakchand
Motilal’s case (supra) mainly on the ground that there was no
provision prohibiting the payment of interest. We are, therefore, of
the considered view that the observation made in Manakchand
Motilal’s case (supra) that a provision prohibiting payment of
interest would be arbitrary and violative of Article 14 of the
12
Constitution of India was a passing observation in the nature of
obiter not arising for decision in the said case.
Issue No.2
16. The second issue is whether the effect of the judgment in
Manakchand Motilal’s case (supra) can be undone by bringing out
amendments in question. A large number of authorities have been
cited in this regard. We may refer to a few of them.
17. In Shri Prithvi Cotton Mills Ltd. and Another vs. Broach
Borough Municipality and Others 6
, a Constitution Bench of this
Court, dealing with the question of validity of a validation Act
passed with a view to get over the judgment of this Court, held that
even it has competence, the Legislature cannot merely pass a law
that a decision of this Court shall not bind. This Court held as
follows :-
“4.…….Granted legislative competence, it is not
sufficient to declare merely that the decision of the
Court shall not bind for that is tantamount to
reversing the decision in exercise of judicial power
which the Legislature does not possess or exercise. A
court’s decision must always bind unless the
conditions on which it is based are so fundamentally
altered that the decision could not have been given in
the altered circumstances…….”
6 1969(2) SCC 283
13
18. In the matter of Cauvery Water Disputes Tribunal, Re7
 a
Constitution Bench of this Court after referring to a large number of
authorities held as follows :-
“76.The principle which emerges from these authorities
is that the legislature can change the basis on which a
decision is given by the Court and thus change the law
in general, which will affect a class of persons and
events at large. It cannot, however, set aside an
individual decision inter parties and affect their rights
and liabilities alone. Such an act on the part of the
legislature amounts to exercising the judicial power of
the State and to functioning as an appellate court or
tribunal.”
19. In S.R. Bhagwat and Others vs. State of Mysore 8
, a
three-Judge Bench was dealing with a case where the petitioners
were held entitled to certain promotions and service benefits from a
particular date. Even though these benefits were given to them the
State did not give them the monetary benefits and, in fact, passed a
law which had the effect of denying the monetary benefits due to
the petitioners, in terms of the judgments earlier passed in their
7 1993 Supp.(1) SCC 96(II)
8 (1995) 6 SCC 16
14
favour. After dealing with the entire law on the subject this Court
held as follows :-
“12. It is now well settled by a catena of decisions of
this Court that a binding judicial pronouncement
between the parties cannot be made ineffective with the
aid of any legislative power by enacting a provision
which in substance overrules such judgment and is not
in the realm of a legislative enactment which displaces
the basis or foundation of the judgment and uniformly
applies to a class of persons concerned with the entire
subject sought to be covered by such an enactment
having retrospective effect………
xxx xxx xxx
xxx xxx xxx
15. We may note at the very outset that in the present
case the High Court had not struck down any
legislation which was sought to be re-enacted after
removing any defect retrospectively by the impugned
provisions. This is a case where on interpretation of
existing law, the High Court had given certain benefits
to the petitioners. That order of mandamus was sought
to be nullified by the enactment of the impugned
provisions in a new statute. This in our view would be
clearly impermissible legislative exercise.”
20. In State of Tamil Nadu vs. State of Kerala and Another 9
,
the Constitution Bench of this Court again dealt with the question
as to whether the Legislature could set at naught the decision of the
9 (2014) 12 SCC 696
15
superior courts. After referring to a large number of judgments, this
Court laid down the following principles:-
(i) that the doctrine of separation of powers is an entrenched
principle in the Constitution of India even though there is no specific
provision in the Constitution;
(ii) Independence of Courts from Executive and Legislature is
fundamental to the rule of law and one of the basic tenets of the
Indian Constitution;
(iii) the doctrine of separation of powers between the three organs
of the State – Legislature, Executive and the Judiciary is a
consequence of principles of equality enshrined in Article 14 of the
Constitution of India. Consequently, a law can be set aside on the
ground that it breaches the doctrine of separation of powers since
that would amount to negation of equality under Article 14 of the
Constitution of India;
(iv) the High Courts and the Supreme Court are empowered by the
Constitution of India to determine whether a law made by the
Parliament or State Legislature is void;
16
(v) the doctrine of separation of powers applies to the final
judgments of the courts. The Legislature cannot declare any
decision of a court of law to be void or of no effect. It can, however,
pass an amending Act to remedy the defects pointed out by a court
of law or on coming to know of it aliunde;
(vi) if the Legislature has the power and competence to make a
validating law it can make the law retrospective;
(vii) even where the law is enacted by the Legislature appears
within its competence but if in substance it is shown as an attempt
to interfere with the judicial process, such law can be invalidated
being in breach of the doctrine of separation of powers.
21. The same principle has been reiterated in Cheviti Venkanna
Yadav vs. State of Telangana and Others10 in the following
terms:-
“30.……The legislature has the power to enact laws
including the power to retrospectively amend laws and
thereby remove causes of ineffectiveness or invalidity.
When a law is enacted with retrospective effect, it is not
considered as an encroachment upon judicial power
when the legislature does not directly overrule or reverse
a judicial dictum. The legislature cannot, by way of an
enactment, declare a decision of the court as erroneous
or a nullity, but can amend the statute or the provision
so as to make it applicable to the past……”
10 (2017) 1 SCC 283
17
22. On analysis of the aforesaid judgments it can be said that the
Legislature has the power to enact validating laws including the
power to amend laws with retrospective effect. However, this can be
done to remove causes of invalidity. When such a law is passed the
Legislature basically corrects the errors which have been pointed
out in a judicial pronouncement. Resultantly, it amends the law,
by removing the mistakes committed in the earlier legislation, the
effect of which is to remove the basis and foundation of the
judgment. If this is done, the same does not amount to statutory
overruling.
23. However, the Legislature cannot set at naught the judgments
which have been pronounced by amending the law not for the
purpose of making corrections or removing anomalies but to bring
in new provisions which did not exist earlier. The Legislature may
have the power to remove the basis or foundation of the judicial
pronouncement but the Legislature cannot overturn or set aside the
judgment, that too retrospectively by introducing a new provision.
The legislature is bound by the mandamus issued by the Court. A
18
judicial pronouncement is always binding unless the very
fundamentals on which it is based are altered and the decision
could not have been given in the altered circumstances. The
Legislature cannot, by way of introducing an amendment, overturn
a judicial pronouncement and declare it to be wrong or a nullity.
What the Legislature can do is to amend the provisions of the
statute to remove the basis of the judgment.
24. Applying these principles to the present case it is apparent
that when the decision was rendered in Manakchand Motilal’s
case (supra) there was no provision providing for payment of
interest or prohibiting payment of interest. The Court had observed
that even if such a provision prohibiting payment of interest had
been there in the statute such provision would be illegal. Therefore,
there was no error pointed out by the Court which could have been
corrected by the State Legislature. As pointed out above, the State,
in fact, first tried to implement the judgment by framing rules
providing for payment of interest. Later, it incorporated the
contentious provisions prohibiting payment of interest. These
amendments did not in any way alter the basis of the judgment.
19
25. Therefore, the State, in so far as it has made the amended
provisions retrospective, has attempted to nullify the writ of
mandamus issued by the Court in favour of the respondents. This
mandamus could not have been set at naught by making the
provisions retrospective. This would be a direct breach of the
doctrine of separation of powers as laid down in State of Tamil
Nadu (supra). We are clearly of the view that the State Legislature
could not have nullified the judgment passed in Manakchand
Motilal’s case (supra) by retrospectively amending the Acts.
Therefore, the validating Acts in so far as they are retrospective, are
held to be illegal.
26. However, since we have clearly held that the observations
made in Manakchand Motilal’s case (supra) that if the provision
prohibits payment of interest then such a provision would be
violative of Article 14 of the Constitution, is obiter, the issue
whether such an amendment is valid or not will have to be decided
on its own merits.
20
Issue No.3
27. To decide this issue we must first understand the concept of
interest. It has been repeatedly held that interest is basically
compensation for the use or retention of money. In Halsbury’s
Laws of England, Fourth Edition, Volume 32, interest has been
defined as follows:-
“127. Interest in general. Interest is the return or
compensation for the use or retention by one person of
a sum of money belonging to or owed to another.
Interest accrues from day to day even if payable only
at intervals, and is, therefore, apportionable in respect
of time between persons entitled in succession to the
principal.”
According to Law Lexicon, by P. Ramanathan Aiyar 3rd Edition
(2005) (page 2402) Vol 2:
“Interest” means the time value of the funds or money
involved, which, unless otherwise agreed, is calculated
at the rate and on the basis customarily accepted by
the banking community for the funds of money
involved.”
In WORDS AND PHRASES permanent editions, Vol 22-page
148, Interest means :-
i) “Interest” is compensation for loss of use of
principal. Jersey City v. Zink, 44 A.2d 825, 828, 133
N.J. Law 437”
21
ii) “Interest” means compensation for the use or
forbearance of money. Commissioner of Internal
Revenue v. Meyer, CCA, 139 F.2d 256,259”
Black’s Law Dictionary, Sixth Edition (page 812) defines
‘Interest’ as:-
“For use of money. Interest is the compensation
allowed by law or fixed by the parties for the use or
forbearance of borrowed money. Jones V. Kansas Gas
& Electric Co.222 Kan. 390, 565, P.2d 597, 604.”

28. There is no manner of doubt that normally a person would be
entitled to interest for the period he is deprived of the use of money
and the same is used by the person with whom the money is lying.
The issue that arises for determination is whether a provision
providing for non-payment of interest is so inequitable that it can
be termed to be arbitrary and held to be violative of Article 14 of the
Constitution of India.
29. The respondents have referred to the recommendations made
by the Law Commission of India in its 63rd Report. In Para 7.9 of
the Report it was noted that in case of security deposits, if a
demand for interest is not made, interest is not recoverable. This
observation is based on the decision of the Nagpur High Court in
22
Sheikh Mehtab S/o Sheikh Farid Mussalman vs. Dharamrao
Bhujangrao11. The Law Commission felt that in view of the fact
that deposits are often taken for performance of contractual or
statutory obligations it would be fair that interest from the date of
deposit should be allowed on such deposits. Despite the
recommendation of the Law Commission no statutory provision was
introduced making it obligatory on the part of any authority to pay
interest on deposits.
30. Though various judgments have been cited, we are of the view
that only two are required to be considered. The first is the
judgment relied upon by the Division Bench of the Karnataka High
Court in Jagdamba Paper Industries (P) Ltd. (supra). We may
note that the said judgment does not lay down any proposition of
law because the direction for payment of interest has been issued
with the agreement of the parties. This Court in the above
judgment had observed that the respondent should pay interest and
the respondent agreed to do so. This cannot be termed as a
judgment laying down law that in every case of deposit, interest
must be paid.
11 AIR (31) 1944 Nagpur 330
23
31. The second important judgment is Ferro Alloys Corpn. Ltd.
(supra). Various issues were raised in this case but we are
concerned only with that portion of the judgment which deals with
the payment of interest on the security deposits, deposited by the
consumers. In this case, this Court dealt with the regulations
framed by various electricity boards.
32. There were two types of cases before the Supreme Court. The
regulation of some boards provided for payment of very low rate of
interest. The regulation of some boards did not provide for payment
of interest on security deposit at all. The issue before the Apex
Court was whether the consumers were entitled to interest on the
security deposit.
33. Dealing with the question whether the interest on the security
deposits is payable in equity or under common law, this Court
observed as follows :-
“129. Strictly speaking, the word “interest” would
apply only to two cases where there is a relationship of
debtor and creditor. A lender of money who allows the
borrower to use certain funds deprives himself of the
use of those funds. He does so because he charges
interest which may be described as a kind of rent for
the use of the funds. For example, a bank or a lender
lending out money on payment of interest. In this
24
case, as already noted, there is no relationship of
debtor and creditor.”
Thereafter, the Court also held as follows :-
“132. The argument of Mr. G. Ramaswamy, learned
counsel, that the deposit does not contemplate
appropriation is not correct because in the nature of
contract it is liable to be appropriated for the
satisfaction of any amount liable to be paid by the
consumer to the Board for violation of any conditions
of supply in the context of wide-scale theft of energy,
tampering with the meters and such other methods
adopted by the consumers. Therefore, the said
consumption security deposit serves not only to secure
the interest of the Board for any such violation but
should serve as a deterrent on the consumer in
discharging his obligations towards the Board.”
The Court clearly held that there was no equitable right to claim
interest.
34. This Court also considered the question as to whether the
stipulation that no interest is payable on the securities furnished
would be un-constitutional and arbitrary, and held as follows:-
“143. In the light of the above discussion, we hold
that the clause not providing for interest is neither
arbitrary nor palpably unreasonable, nor even
unconscionable. In holding so we have regard to the
following:
1. The consumer made the security deposit in
consideration of the performance of his obligation for
obtaining the service which is essential to him.
25
2. The electricity supply is made to the consumers
on credit as has been noted above.
3. The billing time taken by the Board is to the
advantage of the consumer.
4. Public revenues are blocked in generation,
transmission and distribution of electricity for the
purpose of supply. The Board pays interest on the
loans borrowed by the Board. This is in order to
perform public service. On those payments made by
the Board it gets no interest from the consumers.
5. The Board needs back its blocked money to carry
out public service with reasonable recompense.
6. The Board is not essentially a commercial
organisation to which the consumer has furnished the
security to earn interest thereon.”
35. It would also be pertinent to notice that in Ferro Alloys
Corpn. Ltd. (supra) after referring to the judgment in Jagdamba
Paper Industries (P) Ltd. (supra), it was observed by this Court
that Jagdamba’s case did not decide the issue of payment of
interest.
36. After going through the judgments in Jagdamba’s and
Ferro Alloys’s case, we are of the view that the High Court erred in
relying upon the judgment in Jagdamba’s case which, in fact, had
not decided this issue at all. In Ferro Alloys’s case this Court had
clearly held that the provision providing that no interest is payable
was neither arbitrary nor unreasonable.
26
37. We may now deal with the contention whether a condition
providing that no interest is payable for security amount deposited
by the money lenders or pawn brokers is unreasonable. This Court
in M/s Fatehchand Himmatlal and Others vs. State of
Maharashtra12 held that even if it be accepted that money lending
is a trade then also restrictions can be placed upon it. The
following observations are relevant :-
“29……..Money-lending and trade financing are
indubitably “trade” in the broad rubric, but our
concern here is blinkered by a specific pattern of tragic
operations with no heroes but only anti-heroes and
victims.
xxx xxx xxx
xxx xxx xxx
38.…….These are weaker sections for whom
constitutional concern is shown because institutional
credit instrumentalities have ignored them. Money
lending may be ancillary to commercial activity and
benignant in its effects, but money-lending may also
be ghastly when it facilitates no flow of trade, no
movement of commerce, no promotion of intercourse,
no servicing of business, but merely stagnates rural
economy, strangulates the borrowing community and
turns malignant in its repercussions. The former may
surely be trade, but the latter — the law may well say
— is not trade. In this view, we are more inclined to
the view that this narrow, deleterious pattern of
money- lending cannot be classed as “trade”….”
12 (1977) 2 SCC 670
27
38. Thereafter this Court observed as follows :_
“42.Maybe, some stray money-lenders may be good
souls and to stigmatise the lovely and unlovely is
simplistic betise. But the legislature cannot easily
make meticulous exceptions and has to proceed on
broad categorisations, not singular individualisations.
So viewed, pragmatics overrule punctilious and
unconscionable money-lenders fall into a defined
group…..
xxx xxx xxx
44.Every cause claims its martyr and if the law,
necessitated by practical considerations, makes
generalisations which hurt a few, it cannot be helped
by the Court……”
39. We must also remember that the businesses of money lending
and pawn broking are usurious businesses and the Government
may rightly impose onerous conditions to restrict or even
discourage people from entering into such businesses. We are not
comparing these businesses with the liquor business but the
observations of the Kerala High Court in Monarch Investments St.
Thomas Road, Trichur and Ors. vs. State of Kerala & Ors.
13
are relevant:-
“8.Broadly stated, money lending is business. But
it has to be remembered that money lenders usually
charged heavy interest, impose very onerous
conditions for the grant of loans, and the poor debtor
may, in almost all cases be compelled to sell his
13 AIR (1989) KER.177
28
produce or part with his land. Money lending as a
business thus forms part of a pernicious trade
requiring greater monetary regulation and control than
those imposed on the normal trade or business……..”
“9.Money-lenders whether described as belonging
to a “narrow noxious category” or “as oppressive and
back breaking”, whether there are honest money
lenders or unscrupulous money-lenders form a special
class whose business require greater statutory control
and supervision and whose “freedom to fleece” has to
be restrained in public interest………”
40. It is thus apparent that the courts have frowned upon the
“trade” of money lending. The profession of money lending, may be
a trade, but onerous restrictions may be placed on such trade
which is definitely usurious. These onerous restrictions would be
reasonable keeping in view the nature of the trade. The Legislature
in its wisdom can decide whether it should make it more difficult for
people to engage in the business of money lending and pawn
broking.
41. A money lender or a pawn broker applies for licence to do this
business knowing fully well that the security that he shall deposit
shall not earn any interest. He with open eyes accepts the
condition which is part of the Acts. Nobody forces a person to
29
engage in the trade of money lending or pawn broking. Therefore,
the impugned provisions cannot be held to be unreasonable.
42. Lastly, we have to consider the submission as to whether a
provision providing that no interest is payable on the security
deposit is so arbitrary, as to make it unconstitutional.
43. In Independent Thought vs. Union of India and Anr.
14
this Court held that arbitrariness must be writ large to make it
un-constitutional. Whether the interest should be paid or not is a
matter which parties decide amongst themselves. Supposing, there
is a contract providing that no interest will be paid on the amount
advanced; can it be said that such a clause in the contract is so
arbitrary that the contract becomes void or becomes inoperative.
We do not think so. If we make reference to every day transactions,
banks do not pay interest on current account. Supposing, a
person’s money lies in the current account for 3-4 years he cannot
claim interest only on the ground that the bank would have utilized
this money for commercial purposes. There are various instances
where schools, other educational institutions, clubs, societies ask
for refundable deposits on which no interest is payable. These are
14 (2017) 10 SCC 800
30
accepted to be normal routine practices because these bodies are
not engaged in commercial activities. Even a pawn broker pays no
interest on the value of the security pledged with him.
44. Contracts providing for non-payment of interest on earnest
money and security deposits have been considered in the context of
the Arbitration Acts. The Courts have held that in view of the
agreement entered into between the parties, the arbitrator cannot
award interest prior to the date of passing of the award. In fact,
this Court has clearly held that the arbitrator cannot award
pendente lite interest15. Though these authorities do not directly
deal with the issue with which we are concerned, it is obvious that
in all these cases, the Court has not construed the provision of the
contract providing for non-payment of interest to be void. The said
provision has, in fact, been legally enforced. We may, however,
note that under the Arbitration Act of 1940, this Court held that the
arbitrator could award pendente lite interest16 but under the
Arbitration and Conciliation Act, 1996 the arbitrator cannot award
interest prior to the date of award17. The clause for non-payment of
15 Sri Chittaranjan Maity v. Union of India, (2017) 9 SCC 611
16 Secretary, Irrigation Department, Government of Orissa & Ors. v. G.C.
Roy, (1992) 1 SCC 508
17 Sayeed Ahmed & Company v. State of Uttar Pradesh & Ors., (2009) 12
SCC 26, Sree Kamatchi Amman Constructions v. Divisional Railway Manager (Works), Palghat
31
interest has not been held void in any case. Therefore, we are
clearly of the view that the impugned provisions prohibiting
payment of interest on the amount of security deposits cannot be
said to be arbitrary or violative of Article 14 of the Constitution of
India.
45. In view of the above discussion it is held as follows :-
(i) Section 7-A & 7-B of the M.L. Act and 4-A & 4-B of the P.B.
Act are valid from the date of their enactment;
(ii) That the provisions making these amendments retrospective
from 1985 are illegal and invalid.
46. In view of the above discussion the appeals are partly allowed
and the judgment of the High Court of the Karnataka is set aside in
the aforesaid terms. Pending application(s), if any, stand(s)
disposed of.
....................................J.
(MADAN B. LOKUR)
....................................J.
(DEEPAK GUPTA)
New Delhi
March 15, 2018
& Ors., (2010) 8 SCC 767, Union of India v. Bright Power Projects (India) Pvt. Ltd., (2015) 9
SCC 695
32

corporate laws - Apex court stayed the orders = challenge to the provisions of Rule 3(3)(1)(b) of the PCPNDT Rules,1996= Before the Delhi High Court, there was a challenge to the provisions of Rule 3(3)(1)(b) of the PCPNDT Rules,1996 and Rule 6 of the Six Months Training Rules as amended by a notification dated 9 January 2014. Rule 3.3(1)(b), which was in challenge reads as follows: “3.3(1) Any person having adequate space and being or employing…. (a)… (b)…a Sonologist, Imaging Specialist, Radiologist or Registered Medical Practitioner having Post Graduate degree or diploma or six months training duly imparted in the manner prescribed in the “the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014.” = The Delhi High Court has inter alia held that it was unable to find any provision in the PCPNDT Act empowering any of the bodies constituted under the law or even the Central government to prescribe qualifications for practicing medicine with the aid of an ultrasound imaging equipment or to prescribe the nature and content of the curriculum or duration of the qualification. = we are of the view that the judgment of the Delhi High Court needs to be stayed during the pendency of these proceedings. The judgment of the High Court squarely impinges upon the directions issued by this Court in Voluntary Health Association of Punjab. We direct in consequence that the judgment of this Court in Voluntary Health Association of Punjab shall be strictly enforced by all states and union territories untrammelled by any order of any High Court or any other court.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A Nos. 13-15 of 2017
IN
SPECIAL LEAVE PETITION (C) Nos. 16657-16659 OF 2016
UNION OF INDIA ..Petitioner
VERSUS
INDIAN RADIOLOGICAL AND IMAGING ..Respondents
ASSOCIATION AND ORS. ETC. ETC.
O R D E R
1 We have heard learned counsel for the contesting parties and considered
the written submissions tendered, for the purpose of evaluating the grant of
interim relief.
2
2 In Voluntary Health Association of Punjab v Union of India1
, this Court
by a judgment dated 8 November 2016 issued comprehensive directions for the
purpose of effective implementation of the provisions of the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 19942
. The
directions issued by this Court are extracted below:
“33. Keeping in view the deliberations made from time to time and
regard being had to the purpose of the Act and the far reaching
impact of the problem, we think it appropriate to issue the
following directions in addition to the directions issued in the
earlier order:-
(a) All the States and the Union Territories in India shall maintain
a centralized database of civil registration records from all
registration units so that information can be made available
from the website regarding the number of boys and girls being
born.
(b) The information that shall be displayed on the website shall
contain the birth information for each District, Municipality,
Corporation or Gram Panchayat so that a visual comparison of
boys and girls born can be immediately seen.
(c) The statutory authorities if not constituted as envisaged under
the Act shall be constituted forthwith and the competent
authorities shall take steps for the reconstitution of the
statutory bodies so that they can become immediately
functional after expiry of the term. That apart, they shall meet
regularly so that the provisions of the Act can be implemented
in reality and the effectiveness of the legislation is felt and
realized in the society.
(d) The provisions contained in Sections 22 and 23 shall be strictly
adhered to. Section 23(2) shall be duly complied with and it
shall be reported by the authorities so that the State Medical
Council takes necessary action after the intimation is given
under the said provision. The Appropriate Authorities who have
been appointed under Section 17(1) and 17(2) shall be
imparted periodical training to carry out the functions as
required under various provisions of the Act.
(e) If there has been violation of any of the provisions of the Act or
the Rules, proper action has to be taken by the authorities

1 Writ Petition (c) No. 349 of 2006
2 PCPNDT Act
3
under the Act so that the legally inapposite acts are
immediately curbed.
(f) The Courts which deal with the complaints under the Act shall
be fast tracked and the concerned High Courts shall issue
appropriate directions in that regard.
(g) The judicial officers who are to deal with these cases under the
Act shall be periodically imparted training in the Judicial
Academies or Training Institutes, as the case may be, so that
they can be sensitive and develop the requisite sensitivity as
projected in the objects and reasons of the Act and its various
provisions and in view of the need of the society.
(h) The Director of Prosecution or, if the said post is not there, the
Legal Remembrancer or the Law Secretary shall take stock of
things with regard to the lodging of prosecution so that the
purpose of the Act is subserved.
(I) The Courts that deal with the complaints under the Act shall
deal with the matters in promptitude and submit the quarterly
report to the High Courts through the concerned Sessions and
District Judge.
(j) The learned Chief Justices of each of the High Courts in the
country are requested to constitute a Committee of three
Judges that can periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the
Act as well as the social awareness shall be undertaken as per
the direction No.9.8 in the order dated March 4, 2013 passed
in Voluntary Health Association of Punjab (supra).
(l) The State Legal Services Authorities of the States shall give
emphasis on this campaign during the spread of legal aid and
involve the para-legal volunteers.
(m) The Union of India and the States shall see to it that
appropriate directions are issued to the authorities of All India
Radio and Doordarshan functioning in various States to give
wide publicity pertaining to the saving of the girl child and the
grave dangers the society shall face because of female
foeticide.
(n) All the appropriate authorities including the States and districts
notified under the Act shall submit quarterly progress report to
the Government of India through the State Government and
maintain Form H for keeping the information of all registrations
readily available as per sub-rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Preconception
and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) (Six Months Training) Rules, 2014 forthwith 
4
considering that the training provided therein is imperative for
realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive
schemes for the girl child, the States that have not framed such
schemes, may introduce such schemes.”(Emphasis supplied)
3 The PCPNDT Act was enacted by Parliament, as its Preamble indicates,
to prohibit sex-selection, and to regulate pre-natal diagnostic techniques so as
to prevent their misuse for sex determination. The Preamble reads thus:
“An Act to provide for the regulation of the use of pre-natal
diagnostic techniques for the purpose of detecting genetic or
metabolic disorders or chromosomal abnormalities or certain
congenital malformations or sex linked disorders and for the
prevention of the misuse of such techniques for the purpose of
pre-natal sex determination leading to female foeticide; and,
for matters connected there with or incidental thereto.”
4 The intent of Parliament in enacting the law is clarified in the Statement
of Objects and Reasons which accompanied the introduction of the Bill. Insofar
as it is material to the present controversy, the Statement of Objects and
Reasons reads thus:
“Introduction:
In the recent past Pre-natal Diagnostic Centres sprang up in
the urban areas of the country using pre-natal diagnostic
techniques for determination of sex of the foetus. Such centres
became very popular and their growth was tremendous as the
female child is not welcomed with open arms in most of the
Indian families. The result was that such centres became
centres of female foeticide. Such abuse of the technique is
against the female sex and affects the dignity and status of
women. Various Organisation working for the welfare and uplift
of the women raised their heads against such an abuse.”
Statement of Objects and Reasons
It is proposed to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female foeticide.
5
Such abuse of techniques is determination against the female
sex and affects the dignity and status of women. A legislation
is required to regulate the use of such techniques and to
provide deterrent punishment to stop such inhuman act.
The Bill, inter alia provides for:-
(i) prohibition of the misuse of pre-natal diagnostic techniques for
determination of sex of foetus, leading to female foeticide;
(ii) prohibition of advertisement of pre-natal diagnostic techniques
for detection or determination of sex;
(iii) permission and regulation of the use of pre-natal diagnostic
techniques for the purpose of detection of specific genetic
abnormalities or disorders;
(iv) permitting the use of such techniques only under certain
conditions by the registered institutions; and
(v) punishment for violation of the provisions of the proposed
legislation.
2. The Bill seeks to achieve the above objectives.”
5 The comprehensive directions issued by this Court in its decision in
Voluntary Health Association of Punjab (Supra) must be read as integral to
the enforcement of a law which has been enacted by Parliament to curb a grave
social evil and to render the statutory provisions truly effective to curb the
mischief which was sought to be addressed by enacting the law. More
specifically, in its judgment dated 8 November 2016, this Court has required the
states and the Union territories to implement the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training)
Rules, 2014 forthwith. The decision explains that the provision for training
required under the above subordinate legislation, is imperative to realise the
objects and purposes of the Act.
6
6 The impact of the directions which have been issued by this Court is
negated by a judgment rendered by a Division Bench of the Delhi High Court
on 17 February 2016 in a batch of cases including Indian Radiological and
Imaging Association (IRIA) v Union of India3
, Indian Medical Association v
Union of India4 and Sonological Society of India v Union of India5
. Before
the Delhi High Court, there was a challenge to the provisions of Rule 3(3)(1)(b)
of the PCPNDT Rules,1996 and Rule 6 of the Six Months Training Rules as
amended by a notification dated 9 January 2014. Rule 3.3(1)(b), which was in
challenge reads as follows:
“3.3(1) Any person having adequate space and being or
employing….
(a)…
(b)…a Sonologist, Imaging Specialist, Radiologist or
Registered Medical Practitioner having Post Graduate degree
or diploma or six months training duly imparted in the manner
prescribed in the “the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) (Six Months
Training) Rules, 2014.”
Rule 6 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) (Six Months Training) Rules, 2014 is in the following terms:
“6. Eligibility for training.-
(1)Any registered medical practitioner shall be eligible for
undertaking the said six months training.
(2) The existing registered medical practitioners, who are
conducting ultrasound procedures in a Genetic Clinic or
Ultrasound Clinic or Imaging Centre on the basis of one year
experience or six months training are exempted from
undertaking the said training provided they are able to qualify
the competency based assessment specified in Schedule II
and in case of failure to clear the said competency based
exam, they shall be required to undertake the complete six

3 Writ Petition (C) No. 6968 of 2011
4 Writ Petition (C) No. 2721 of 2014
5 Writ Petition (C) No. 3184 of 2014
7
months training, as provided under these rules, for the purpose
of renewal of registrations.”
Rule 6(2) provides for an exemption to existing registered medical practitioners
conducting ultrasound procedures in a genetic or ultrasound clinic or imaging
centre subject to qualifying in the competency based assessment.
7 The Delhi High Court has inter alia held that it was unable to find any
provision in the PCPNDT Act empowering any of the bodies constituted under
the law or even the Central government to prescribe qualifications for practicing
medicine with the aid of an ultrasound imaging equipment or to prescribe the
nature and content of the curriculum or duration of the qualification. While
disposing of the batch of writ petitions, the Delhi High Court has issued the
following directions:
(i) “that Section 2(p) of the PNDT Act defining a
Sonologist or Imaging Specialist, is bad to the extent it
includes persons possessing a postgraduate
qualification in ultrasonography or imaging techniques
– because there is no such qualification recognized by
MCI and the PNDT Act does not empower the statutory
bodies constituted thereunder or the Central
Government to devise and coin new qualification;
(ii) We hold that all places including vehicles where
ultrasound machine or imaging machine or scanner or
other equipment capable of determining sex of the
foetus or has the potential of detection of sex during
pregnancy or selection of sex before conception,
require registration under the Act;
(iii) However, if the person seeking registration (a) makes
a declaration in the form to be prescribed by the Central
Supervisory Board to the effect that the said machine
8
or equipment is not intended for conducting pre-natal
diagnostic procedures; (b) gives an undertaking to not
use or allow the use of the same for pre-natal
diagnostic procedures; and, (c) has a “silent observer”
or any other equipment installed on the ultrasound
machines, as may be prescribed by the Central
Supervisory Board, capable of storing images of each
sonography tests done therewith, such person would
be exempt from complying with the provisions of the
Act and the Rules with respect to Genetic Clinics,
Genetic Laboratory or Genetic Counselling Centres;
(iv) If however for any technical reasons, the Central
Supervisory Board is of the view that such “silent
observer” cannot be installed or would not serve the
purpose, then the Central Supervisory Board would
prescribe other conditions which such registrant would
require to fulfil, to remain exempt as aforesaid;
(v) However, such registrants would otherwise remain
bound by the prohibitory and penal provisions of the
Act and would further remain liable to give inspection
of the “silent observer” or other such equipment and
their places, from time to time and in such manner as
may be prescribed by the Central Supervisory Board;
and
(vi) Rule 3(3)(1)(b) of the PNDT Rules (as it stands after
the amendment with effect from 9th January, 2014) is
ultra vires the PNDT Act to the extent it requires a
person desirous of setting up a Genetic Clinic /
Ultrasound Clinic / Imaging Centre to undergo six
months training imparted in the manner prescribed in
the Six Months Training Rules.”
8 Prima facie, the High Court has erred in its finding that there is an
absence of statutory power. Sub-section 1 of Section 32 of the PCPNDT Act
confers rule making power upon Central Government for “carrying out the
provisions of the Act”. Illustratively, sub Section 2 of Section 32 stipulates that
the rules may provide for:
9
“(i) the minimum qualifications for persons employed at a
registered Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic under clause (1) of section 3.”
The above provision refers to minimum qualifications required of persons
employed at registered genetic counselling centres, genetic laboratories or
genetic clinics under Section 3(2). Hence, it would be necessary to understand
the import of Section 3 which reads thus:
“3. Regulation of Genetic Counselling Centres, Genetic
Laboratories and Genetic Clinics.-
On and from the commencement of this Act,--
(1) no Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic unless registered under this Act, shall conduct
or associate with, or help in, conducting activities relating to
pre-natal diagnostic techniques;
(2) no Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic shall employ or cause to be employed any
person who does not possess the prescribed qualifications;
(3) no medical geneticist, gynaecologist, paediatrician,
registered medical practitioner or any other person shall
conduct or cause to be conducted or aid in conducting by
himself or through any other person, any pre-natal diagnostic
techniques at a place other than a place registered under this
Act.”
The expression ‘genetic counselling centre’ has been defined in Section 2(c) as
follows:
“(c) "Genetic Counselling Centre" means an institute, hospital,
nursing home or any place, by whatever name called, which
provides for genetic counselling to patients”
The expression ‘genetic laboratory’ is defined in Section 2(e) as follows:
(e) "Genetic Laboratory" means a laboratory and includes a
place where facilities are provided for conducting analysis or
tests of samples received from Genetic Clinic for pre-natal
diagnostic test”
10
The expression ‘genetic clinic’ is defined in Section 2(d) as follows:
“(d) "Genetic Clinic" means a clinic, institute, hospital, nursing
home or any place, by whatever name called, which is used for
conducting pre-natal diagnostic procedures”
Under Section 2(d), ‘genetic clinic’ is defined with reference to the place which
is used for conducting pre-natal diagnostic procedures. ‘Genetic laboratory’ in
Section 2(e) includes a place where facilities are provided for conducting
analysis or tests of samples received from a genetic clinic for a pre-natal
diagnostic test.
The expression ‘pre-natal diagnostic procedures’ is defined in Section 2(i) as
follows:
“(i) "pre-natal diagnostic procedures" means all gynaecological
or obstetrical or medical procedures such as ultrasonography
foetoscopy, taking or removing samples of amniotic fluid,
chorionic villi, blood or any tissue of a pregnant woman for
being sent to a Genetic Laboratory or Genetic Clinic for
conducting pre-natal diagnostic test”
Both Sections 2(i) and Section 2(k) contain a specific reference to
ultrasonography. The expression ‘sonologist or imaging specialist’ is defined in
Section 2(p) as follows:
“(p) sonologist or imaging specialist” means a person who
possesses any one of the medical qualifications recognised
under the Indian Medical Council Act, 1956 (105 of 1956) or
who possesses a post-graduate qualification in
ultrasonography or imaging techniques or radiology”
Section 4 provides thus:
“4. Regulation of pre-natal diagnostic techniques.- On and from
the commencement of this Act,--
11
(1) no place including a registered Genetic Counselling Centre
or Genetic Laboratory or Genetic Clinic shall be used or caused
to be used by any person for conducting pre-natal diagnostic
techniques except for the purposes specified in clause (2) and
after satisfying any of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall be conducted
except for the purposes of detection of any of the following
abnormalities, namely:--
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be
specified by the Central Supervisory Board;
[(3) no pre-natal diagnostic techniques shall be used or
conducted unless the person qualified to do so is satisfied that
any of the following conditions are fulfilled, namely:--
(i) age of the pregnant woman is above thirty-five
years;
(ii) the pregnant woman has undergone two or more
spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as drugs, radiation,
infection or chemicals;
(iv) the pregnant woman or her spouse has a family
history of mental retardation or physical deformities
such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the
Central Supervisory Board;
Provided that the person conducting ultrasonography on a
pregnant woman shall keep complete record thereof in the clinic
in such manner, as may be prescribed, and any deficiency or
inaccuracy found therein shall amount to contravention of the
provisions of section 5 or section 6 unless contrary is proved by
the person conducting such ultrasonography;
(4) no person including a relative or husband of the pregnant
woman shall seek or encourage the conduct of any pre-natal
diagnostic techniques on her except for the purpose specified
in clause (2).
(5) no person including a relative or husband of a woman shall
seek or encourage the conduct of any sex-selection technique
on her or him or both.]”
Section 4(2) specifies exceptional situations in which a pre-natal diagnostic test
may be conducted to detect certain specified abnormalities. Section 4(3)
12
provides that no pre-natal diagnostic test shall be used or conducted unless the
person qualified to do so, is satisfied for reasons to be recorded in writing that
specific conditions (which have been laid down) are fulfilled. Section 5(2)
contains a prohibition on the disclosure to a pregnant woman or to a relative of
the sex of the foetus. Section 6 contains a prohibition on the determination of
sex and on sex selection.
9 Prima facie, these provisions indicate that Parliament has conferred upon
the Central government rule making authority to specify minimum qualification
for persons to be employed at genetic counselling centres, laboratories and
clinics. Specification of qualifications, in our view, should be read in a purposive
sense which will fulfil the object of the law. Even on a plain and natural
construction of the words used by Parliament, specification of qualifications
must necessarily comprehend the power to prescribe training. The rationale for
this is that the training would sensitize the person concerned to the salutary
object and purpose of the legislation which has been enacted by Parliament to
deal with a serious social evil and be conscious of the misuse of sex-selection
tests. Pre-natal diagnostic procedures are susceptible to grave misuse.
10 Parliament which has the unquestioned authority and legislative
competence to frame the law considered it necessary to empower the Central
government to frame rules to govern the qualifications of persons employed in
13
genetic counselling centres, laboratories and clinics. The wisdom of the
legislature in adopting the policy cannot be substituted by the court in the
exercise of the power of judicial review. Prima facie the judgment of the Delhi
High Court has trenched upon an area of legislative policy. Judicial review
cannot extend to reappreciating the efficacy of a legislative policy adopted in a
law which has been enacted by the competent legislature. Both the Indian
Medical Council Act, 1956 and the PCPNDT Act are enacted by Parliament.
Parliament has the legislative competence to do so. The Training Rules 2014
were made by the Central Government in exercise of the power conferred by
Parliament. Prima facie, the rules are neither ultra vires the parent legislation
nor do they suffer from manifest arbitrariness.
11 For the reasons that we have indicated, we are of the view that the
judgment of the Delhi High Court needs to be stayed during the pendency of
these proceedings. The judgment of the High Court squarely impinges upon the
directions issued by this Court in Voluntary Health Association of Punjab.
We direct in consequence that the judgment of this Court in Voluntary Health
Association of Punjab shall be strictly enforced by all states and union
territories untrammelled by any order of any High Court or any other court. 
14
12 Pending final disposal, there shall be a stay of the operation of the
judgment and order of the Delhi High Court dated 17 February 2016. The
interlocutory applications are disposed of accordingly.

 .............................................CJI
 [DIPAK MISRA]
 .................................................J
 [A M KHANWILKAR]
 ...…............................................J
 [Dr D Y CHANDRACHUD]
New Delhi;
March 14, 2018.