LAW FOR ALL

Thursday, October 8, 2020

compassionate appointment = claim of entitlement to compassionate appointment on account of the demise of his father late Shri Ranglal Shrivas, who was working as a Driver in the Tribal Welfare Department, Bhind, Madhya Pradesh, since 6.6.1984 till he passed away on 11.12.2009, i.e., over a period of almost 23 years.

compassionate appointment = claim of entitlement to compassionate appointment on account of the demise of his father late Shri Ranglal Shrivas, who was working as a Driver in the Tribal Welfare Department, Bhind, Madhya Pradesh, since 6.6.1984 till he passed away on 11.12.2009, i.e., over a period of almost 23 years.

We, however, are of the view that we can provide some succor to the respondent in view of the Circular dated 21.3.2017, the relevant portion of which reads as under: “2. In this regard, it is clarified that the compassionate appointment for the employees of Workcharge and Contingency Fund is in force also w.e.f. 31.08.2016. And the cases pending before this date, will be decided only in accordance with the directions issued for compassionate appointment on 29.09.2014, i.e., they will be eligible only for compassionate grant and not the compassionate appointment. The proceedings be ensured accordingly.”

The aforesaid Circular records that pending cases will be decided 15 in accordance with the directions issued for compassionate appointment on 29.9.2014. The present case is really not a pending case before the authority, but a pending lis before this Court.

We are, thus, of the view that it would be appropriate to use our powers under Article 142 of the Constitution of India to do complete justice between the parties by increasing the amount from Rs. 1,00,000/- to Rs. 2,00,000/- as aforesaid. We, in fact, adopted a similar approach in Punjab State Power Corporation Limited & Ors. v. Nirval Singh. 5 29. It appears from the documents on record that possibly a sum of Rs. 1,00,000/- was deposited by the respondent with the State Bank of India in an interest-bearing deposit in 2016, and the amount would possibly be lying in the same deposit. This would have been pursuant to the impugned order. We, thus, direct that this FDR be released to the respondent and that this amount, along with interest which would accrue to the benefit of the respondent, apart from the additional amount of Rs. 1,00,000/-, we have found as payable to the respondent which should be so paid within a period of two (2) months from today, failing which it will carry interest @ 12 per cent per annum (simple interest) till the date of payment.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8564 OF 2015

STATE OF MADHYA PRADESH & ORS. …APPELLANTS

Versus

AMIT SHRIVAS …RESPONDENT

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The respondent raises a claim of entitlement to compassionate

appointment on account of the demise of his father late Shri Ranglal

Shrivas, who was working as a Driver in the Tribal Welfare Department,

Bhind, Madhya Pradesh, since 6.6.1984 till he passed away on

11.12.2009, i.e., over a period of almost 23 years.

2. The claim of the respondent was predicated on the nature of

employment of his late father, who was initially appointed as a workcharged employee. On 12.3.1987, he was made permanent and was paid

salary at a regular pay-scale. The benefits of revision of pay and

krammonati (promotion) were also extended to him from time to time.

On the demise of late Shri Ranglal Shrivas, he left behind an ailing wife,

a son (i.e., the respondent herein) and three daughters and is stated to

have been the sole breadwinner for his family. The family, thus, faced

undue economic hardship. A Pension Payment Order (‘PPO’) under the

Madhya Pradesh Civil Pension Rules, 1976 was issued in favour of the

family on account of his having worked from 12.3.1987 to 11.12.2009 on

the basis of his last pay-scale and grade pay. In view of the economic

hardship, the respondent filed an application seeking the benefit of

compassionate appointment.

3. The request of compassionate appointment was, however, rejected

by the third appellant vide order dated 19.8.2010. Reliance was placed on

the Policy in force for compassionate appointment dated 18.8.2008,

issued by the General Administration Department Ministry, Madhya

Pradesh Government. This policy pertains to when a Government servant

dies while in service, and if such an employee is earning a salary from

the work-charge/contingency fund at the time of his/her demise, then

there was no provision for the grant of such appointment. In this behalf,

reliance was placed on Clause 12.1 of the Policy, which provided for a

compassionate grant of Rs.1,00,000/- to the nominated dependent of such

an employee, and in this case, the same was sanctioned to the wife of the

deceased. It would be appropriate to reproduce the relevant clause as

under:

“12. Provisions for work charge/contingency and daily wager

employees

12.1 When employees receiving salary from work

charge/contingency fund and daily wager employee die, they

would not be eligible for the compassionate appointment; however

Rs.1 lakh in one installment in the name of compassionate grant

shall be given to the dependent member of the family nominated

by them. The amount of gratuity shall not be included in it. The

payment of this amount shall be given from the salary head under

the head of work charge/contingency of the concerned

department.”

4. The respondent, being aggrieved by the aforesaid order dated

19.8.2010, filed WP No. 3542/2012 before the High Court of Madhya

Pradesh, Gwalior Bench. The Madhya Pradesh (Work Charged and

Contingency Paid Employees) Pension Rules, 1979 (hereinafter referred

to as the ‘Pension Rules’), more specifically Rule 2(c), was relied upon.

This Rule stipulates that any contingency paid employee or work-charged

employee who has completed 15 years or more of service on or after

1.1.1974, as a permanent employee. It would be relevant to reproduce

the definition of work-charged employee and permanent employee as set

out in Rules 2(b) & 2(c) of the Pension Rules as under:

“2. Definitions. — In these rules, unless the context otherwise

requires, -

xxxx xxxx xxxx xxxx xxxx

(b) “Work-Charged employee” means a person employed upon the

actual execution, as distinct from general supervision of a specified

work or upon subordinate supervision of the departmental labour,

store, running and repairs of electrical equipment and machinery in

connection with such work, excluding the daily paid labour and

muster-roll employee employed on the work;

a work-charged employee who has completed fifteen years of

service or more on or after the 1st January, 1974.”

5. It is not in dispute that the father of the respondent had completed

more than 15 years of service at the time of his demise and was, thus, a

permanent employee. Thus, the respondent claimed entitlement to

compassionate appointment being eligible for a Class IV post as per

Policy of 18.8.2008 and sought the quashing of the impugned decision

dated 19.8.2010.

6. The writ petition was opposed by the appellants on the ground that

the father of the respondent had been appointed on contingency basis as

per requirement of work as a driver. Such appointment was with the

condition that his service may be terminated with one month’s notice and

that his salary would be released from the contingency fund. In this

behalf reliance was placed on his appointment order dated 5.6.1987, but

strangely neither of the parties placed any appointment letter/order on

record. The factum of the wife of the deceased having already received

Rs. 1,00,000/- as relief in terms of the Policy was emphasised.

7. The writ petition was allowed by the learned Single Judge of the

High Court vide order dated 19.7.2013, relying upon an earlier judgment

dealing with the issue of an employee, who had been serving for more

than 15 years and who was, thus, found to qualify for the status of a

permanent employee. This relied upon order was sustained in a writ

appeal and an SLP against this was also dismissed.1

On the issue of the

applicability of Clause 12.1 of the Policy reproduced hereinabove, it was

opined that the same would apply to such employees who had not

attained permanency, i.e., once an employee becomes permanent under

the Pension Rules, Clause 12.1 was held as inapplicable for

1 Shahjad Khan v. State of Madhya Pradesh & Ors. (WP No. 2731/2010, WA No.

110/2013 and SLP (C) No. 5859/2014)

compassionate appointment.

8. The fact that the appellants had even granted krammonati to the

late father of the respondent was also taken as the supportive reasoning.

The appellants were directed to consider the case of the respondent for

compassionate appointment in terms thereof. Aggrieved by the same, the

appellants preferred Writ Appeal No. 583/2013, inter alia, on the ground

that the respondent was not entitled to compassionate appointment and he

was not a regular Government employee within the meaning of Rule 2(b)

of the Madhya Pradesh Civil Service Conduct Rules, 1965, which reads

as under:

“2. Definitions. - In these rules, unless the context otherwise

requires,-

xxxx xxxx xxxx xxxx xxxx

(b) "Government servant" means any person appointed to any civil

service or post in connection with the affairs of the State of

Madhya Pradesh.

Explanation. - A Government servant whose services are placed at

the disposal of a company, corporation, organisation or local

authority by the Government shall, for the purpose of these rules,

be deemed to be a Government servant serving under the

Government notwithstanding that his salary is drawn from sources

other than from the Consolidated Fund of the State.”

9. The emphasis of the appellants was also on the principle that a

compassionate appointment is not an inherent right but a prerogative of

the State, which can only be granted as per the concerned policy

formulated and enforced at the relevant time. Since Clause 12.1 of the

Policy did not provide for compassionate appointment to workcharge/contingency fund and daily wager employees, the monetary

benefit as admissible therein had already been granted. The difference

between a regular and a permanent employee was emphasised and

additionally, it was pleaded that even the Rs. 1,00,000/- paid had not been

directed to be refunded.

10. The writ appeal was dismissed by the Division Bench of the High

Court vide impugned order dated 2.1.2014, primarily predicated on the

reasoning that the late father of the respondent was a permanent

employee as per the Pension Rules. Insofar as grant of amount of Rs.

1,00,000/- was concerned, it was directed to be returned to the appellants

in the event of the respondent gaining compassionate appointment.

11. It appears that the appellants were in the process of filing an SLP

and, thus, on 12.2.2014, appellant No. 3 accepted the respondent’s claim

for compassionate appointment, but subject to the conditions that the

amount of Rs. 1,00,000/- should be returned, that such appointment

would be dependent on the availability of a vacancy/post, that the posting

offered be compulsorily accepted, and lastly, if an SLP/appeal is filed,

then the outcome of the same will be binding. The SLP was filed on

12.7.2014 and after condonation of delay, notice was issued and the

operation of the impugned judgment was stayed vide order dated

6.2.2015. Leave was granted on 12.10.2015 and the interim order was

made absolute. Thus, till date the respondent has not got the benefit of

compassionate appointment.

12. We have heard the learned counsels for the parties.

13. In our opinion, the only issue which has to be examined is whether

the late father of the respondent who admittedly was employed as a

work-charged/contingency employee in the Tribal Welfare Department

was entitled to the compassionate appointment as per the existing policy

on the date of his demise.

14. It is trite to say that there cannot be any inherent right to

compassionate appointment but rather, it is a right based on certain

criteria, especially to provide succor to a needy family. This has to be in

terms of the applicable policy as existing on the date of demise, unless a

subsequent policy is made applicable retrospectively.2

15. Insofar as providing succor is concerned, unfortunately, since the

demise of the late father of the respondent, 11 years have passed and

really speaking, the aspect of providing succor to the family immediately

does not survive. We have still examined the matter in the conspectus of

the applicable policy. It is not in question that the Policy prevailing was

one dated 18.8.2008. Clause 12.1 clearly proscribes workcharge/contingency fund and daily wager employees from compassionate

appointment. The gravamen of the submission of the respondent is based

on the classification of his late father as a permanent employee on

account of having worked for more than 15 years and the consequent

regularisation of his service.

16. In our view, the aforesaid plea misses the point of distinction

between a work-charged employee, a permanent employee and a regular

employee. The late father of the respondent was undoubtedly a workcharged employee and it is nobody’s case that he has not been paid out of

work-charged/contingency fund. He attained the status of a permanent

employee on account of having completed 15 years of service, which

2 State of Gujarat & Ors. v. Arvindkumar T. Tiwari & Anr., (2012) 9 SCC 545

entitled him to certain benefits including pension and krammonati. This

will, however, not ipso facto give him the status of a regular employee.

17. In the aforesaid behalf, an analogy can be drawn with the Madhya

Pradesh Industrial Employment (Standing Orders) Rules, 1963, under

which employees can be classified as permanent, permanent seasonal,

probationers, badlis, apprentices, temporary and fixed-term employment

employees. A work-charged contingency employee can also be classified

under any of the aforementioned categories and under the said Standing

Orders, the classification as permanent can be granted even on the

completion of 6 months service in a clear vacancy.

18. We are not required to labour much on the aforesaid issue and

really speaking this issue is no more res integra in view of the judgment

of this Court in Ram Naresh Rawat v. Ashwini Ray & Ors.,

which

opined that a ‘permanent’ classification does not amount to

regularisation. The case dealt with the aforesaid Standing Orders and it

has been observed in paras 24, 26 & 27 as under:

“24. It is, thus, somewhat puzzling as to whether the employee, on

getting the designation of “permanent employee” can be treated as

“regular” employee. This answer does not flow from the reading of

the Standing Orders Act and Rules. In common parlance, normally,

3 (2017) 3 SCC 436

a person who is known as “permanent employee” would be treated

as a regular employee but it does not appear to be exactly that kind

of situation in the instant case when we find that merely after

completing six months' service an employee gets right to be treated

as “permanent employee”. Moreover, this Court has, as would be

noticed now, drawn a distinction between “permanent employee”

and “regular employee”.

xxxx xxxx xxxx xxxx xxxx

26. From the aforesaid, it follows that though a “permanent

employee” has right to receive pay in the graded pay-scale, at the

same time, he would be getting only minimum of the said payscale with no increments. It is only the regularisation in service

which would entail grant of increments etc. in the pay-scale.

27. In view of the aforesaid, we do not find any substance in the

contentions raised by the petitioners in these contempt petitions.

We are conscious of the fact that in some cases, on earlier

occasions, the State Government while fixing the pay scale,

granted increments as well. However, if some persons are given

the benefit wrongly, that cannot form the basis of claiming the

same relief. It is trite that right to equality under Article 14 is not in

negative terms (See Indian Council of Agricultural Research &

Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766]”

19. The conclusion to be drawn from the aforesaid is that attaining the

status of permanent employee would entitle one only to a minimum of

the pay-scale without any increments. It is this aspect which was sought

to be emphasised by learned counsel for the respondent to contend that

this would not apply, because in the present case, krammonati and

increments were given. However, we may note that in the order dated

7.2.2002 granting the benefit of monetary krammonati to employees,

including the respondent’s father, it was specified that the same would

not affect the posts of such employees.

20. The moot point, thus, is that having been granted increments, could

a person be said to have reached the status of a regular employee? In

order to answer this question, we may note that while considering this

aspect in the aforesaid judgment, it was specifically opined that even “if

some persons are given the benefit wrongly, that cannot form the basis of

claiming the same relief. It is trite that right to equality under Article 14

is not in the negative terms.” We say so, not with the objective of giving

a licence to the appellants to withdraw any of the benefits, which are

already granted, and we make this unequivocally clear. However, we

cannot at the same time make a conclusion that the status acquired is that

of a regular employee upon having achieved the status of a permanent

employee in service.

21. Thus, the classification of the late father of the respondent as a

permanent employee, and this distinction between a ‘permanent’ status

and a ‘regular’ status appears to have been lost sight of in the impugned

judgments.

22. We may also notice the reliance placed by learned counsel for the

respondent on certain other cases where orders similar in nature were

passed by the High Court and an SLP against one of these orders was

dismissed, but then we have already observed that this will not give a

right for perpetuating something which is not permissible in law.

23. We had the occasion of examining the issue of compassion

appointment in a recent judgment in Indian Bank & Ors. v. Promila &

Anr.

We may usefully refer to paras 3, 4, & 5 as under:

“3. There has been some confusion as to the scheme applicable

and, thus, this Court directed the scheme prevalent, on the date of

the death, to be placed before this Court for consideration, as the

High Court appears to have dealt with a scheme which was of a

subsequent date. The need for this also arose on account of the

legal position being settled by the judgment of this Court in Canara

Bank & Anr. v. M. Mahesh Kumar, (2015) 7 SCC 412, qua what

would be the cut-off date for application of such scheme.

4. It is trite to emphasise, based on numerous judicial

pronouncements of this Court, that compassionate appointment is

not an alternative to the normal course of appointment, and that

4 (2020) 2 SCC 729

there is no inherent right to seek compassionate appointment. The

objective is only to provide solace and succour to the family in

difficult times and, thus, the relevancy is at that stage of time when

the employee passes away.

5. An aspect examined by this judgment is as to whether a claim

for compassionate employment under a scheme of a particular year

could be decided based on a subsequent scheme that came into

force much after the claim. The answer to this has been

emphatically in the negative. It has also been observed that the

grant of family pension and payment of terminal benefits cannot be

treated as a substitute for providing employment assistance. The

crucial aspect is to turn to the scheme itself to consider as to what

are the provisions made in the scheme for such compassionate

appointment.”

24. We are, thus, unable to give any relief to the respondent, much as

we would have liked under the circumstances, but are constrained by the

legal position. The family of the late employee has already been paid the

entitlement as per applicable policy.

25. We may, however, notice a subsequent development arising from

certain additional documents placed on record pertaining to the

amendment to the policy of 18.8.2008 vide Circular dated 29.9.2014. In

terms of this Circular, the compassionate grant amount was increased

from Rs. 1,00,000/- to Rs. 2,00,000/-. Another Circular was issued on

31.8.2016, through which, a decision was taken that the dependents of

deceased employees drawing a salary from the workcharged/contingency fund would be entitled to compassionate

appointment, but it was clarified vide Circular dated 21.3.2017 that

pending cases before the date of the 31.8.2016 Circular would be decided

only in terms of the amended Policy dated 29.9.2014. That being the

position, this last Circular also does not come to the aid of the respondent

as it would amount to making the policy retrospectively applicable, while

the Circular says to the contrary.

26. We, however, are of the view that we can provide some succor to

the respondent in view of the Circular dated 21.3.2017, the relevant

portion of which reads as under:

“2. In this regard, it is clarified that the compassionate appointment

for the employees of Workcharge and Contingency Fund is in force

also w.e.f. 31.08.2016. And the cases pending before this date, will

be decided only in accordance with the directions issued for

compassionate appointment on 29.09.2014, i.e., they will be

eligible only for compassionate grant and not the compassionate

appointment. The proceedings be ensured accordingly.”

27. The aforesaid Circular records that pending cases will be decided

in accordance with the directions issued for compassionate appointment

on 29.9.2014. The present case is really not a pending case before the

authority, but a pending lis before this Court.

28. We are, thus, of the view that it would be appropriate to use our

powers under Article 142 of the Constitution of India to do complete

justice between the parties by increasing the amount from Rs. 1,00,000/-

to Rs. 2,00,000/- as aforesaid. We, in fact, adopted a similar approach in

Punjab State Power Corporation Limited & Ors. v. Nirval Singh.

29. It appears from the documents on record that possibly a sum of Rs.

1,00,000/- was deposited by the respondent with the State Bank of India

in an interest-bearing deposit in 2016, and the amount would possibly be

lying in the same deposit. This would have been pursuant to the

impugned order. We, thus, direct that this FDR be released to the

respondent and that this amount, along with interest which would accrue

to the benefit of the respondent, apart from the additional amount of Rs.

1,00,000/-, we have found as payable to the respondent which should be

so paid within a period of two (2) months from today, failing which it

will carry interest @ 12 per cent per annum (simple interest) till the date

5 (2019) 6 SCC 774

of payment.

30. The appeal is accordingly allowed leaving the parties to bear their

own costs.

...……………………………J.

[Sanjay Kishan Kaul]

...……………………………J.

[Aniruddha Bose]

...……………………………J.

[Krishna Murari]

New Delhi.

September 29, 2020.

conditional premature release, subject to their continuing good conduct. - petitioners be released on probation in terms of Section 2 of the UP Prisoners Release on Probation Act, 1938

seems to us that the petitioners’ action of kidnapping was nothing but a fanciful attempt to procure easy money, for which they have learnt a painful life lesson. Given their age, their case ought to be viewed through a prism of positivity. They retain the ability to reintegrate with society and can spend many years leading a peaceful, disciplined, and normal human life. Such a hopeful expectation is further concritised by their conduct in jail. It is revealed from the additional affidavit dated 05.09.2020 filed by Anita @ Varnika (wife of Vikky) that during the course of his incarceration in jail he has pursued as many as eight distancelearning courses, which include (i) passing his Intermediate Examination, (ii) learning computer hardware, (iii) obtaining a degree in Bachelor of Arts; as well as numerous certificates in (iv) food and nutrition, (v) human rights, (vi) environmental studies. Vikky’s conduct shines as a bright light of hope and redemption for many other incarcerated prisoners. Compounded by their roots and familial obligations, we believe it is extremely unlikely that the petitioners would commit any act which could shatter or shame their familial dreams. In the present case, considering how the petitioners have served nearly two decades of incarceration and have thus suffered the consequences of their actions; a balance between individual and societal welfare can be struck by granting the petitioners conditional premature release, subject to their continuing good conduct.

This would both ensure that liberty of the petitioners is not curtailed, nor that there is any increased threat to society. Suffice to say that this order is not irreversible and can always be recalled in the event of any future misconduct or breach by the petitioners.

CONCLUSION

For the reasons stated above, the Special Leave Petitions are disposed of with a direction that the petitioners be released on probation in terms of Section 2 of the UP Prisoners Release on Probation Act, 1938 within a period of two weeks. The respondentState shall be at liberty to impose conditions as it may deem fit to balance public safety with individual liberty.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO. 7369 of 2019

Satish @ Sabbe ..... Petitioner(s)

VERSUS

The State of Uttar Pradesh .....Respondent(s)

WITH

SPECIAL LEAVE PETITION (CRL.) NO. 8326 of 2019

JUDGMENT

Surya Kant, J:

1. These petitions, which were heard through video conferencing,

have been filed by Satish and Vikky @ Vikendra alias Virendra,

seeking special leave to appeal against a common order dated

28.04.2017 of the Allahabad High Court through which their appeal

against conviction under Section 364A of the Indian Penal Code,

1860 (hereinafter, “IPC”) and consequential sentence of life

imprisonment, was turned down.

Page | 1

FACTS

2. The undisputable facts of the case are that on the evening of

12.06.2002, when one Vishal Sarawat (the victim) was on his way to

meet a friend, he was stopped by an acquaintance Ramvir Rana who

asked him for a lift to his house. The unsuspecting victim walked into

Ramvir’s house where he was threatened with a pistol and forcibly

administered tablets by the present petitioners and one Ashok. Vishal

was subsequently coerced to write a letter dated 04.07.2002 to his

father, seeking a ransom of Rs 2 crores. In the meanwhile, the victim’s

father Nepal Singh (the complainant) filed a missing report with the

police regarding his son. Vikky telephoned the victim’s father on

10.07.2002, pretending to be one ‘Shekhar’. He exhorted him to seek

help of Ramvir as an intermediary and cautioned him against

approaching the police. After a series of correspondences, the ransom

was renegotiated to Rs 32 lakhs, which was physically brought by the

complainant to Ramvir’s home on 14.07.2002. Both the petitioners

were present in the house, with Vikky having counted the ransom

money. Upon assurance that his son would be safely sent back home

by that evening, the complainant passed on information to the police

who immediately raided the house. Ramvir was arrested, Vishal was

rescued and Rs.31.70 lakhs were recovered. Although the police

witnessed them talking to Ramvir and Vishal (victim); Ashok, Satish

Page | 2

and Vikky managed to escape from the spot. They were, however,

subsequently arrested on 16.07.2002 and charged for the offence of

kidnapping for ransom.

3. The case was, after investigation, committed to the Additional

Sessions Judge, Fast Track Court – I, Ghaziabad. Eleven witnesses

deposed on behalf of the prosecution, which included the victim,

complainant, bystanders, and various police officers. In addition, one

witness was called by the Court itself. Incriminating voice recordings,

Call Detail Records, seized ransom money, and a revolver recovered at

the instance of Vikky were also brought on record. The accused denied

all charges and examined three defence witnesses.

4. Placing reliance on a wealth of electronic evidence, the trial

Court held that the charge under Section 364A IPC had been proved

beyond reasonable doubt against all accused, and additionally charge

under Section 25 of the Arms Act, 1959 was also held to have been

established against Ashok and Vikky. Life imprisonment and fine of Rs

10,000 (or six months imprisonment in lieu thereof) was awarded to

each accused for the crime of kidnapping for ransom, besides

concurrent sentence of two years to Vikky and Ashok under the Arms

Act.

5. All four accused appealed against their convictions before the

Page | 3

Allahabad High Court. After a detailed reappreciation of evidence and

discussion of various case laws, the High Court found as a matter of

fact that all elements required to constitute the offence of kidnapping

for ransom, have been proved beyond doubt. But the High Court

observed that failure to record disclosure statement under Section 27

of the Evidence Act, 1872 was fatal in proving recovery of the revolver.

The High Court thus dismissed the appeals and confirmed the

sentence of life imprisonment under Section 364A of IPC, but

conviction under Section 25 of the Arms Act was set aside.

PRESENT PROCEEDINGS

6. The aggrieved petitioners, Vikky and Satish, have filed separate

Special Leave Petitions before us, which have been heard at

considerable length. On 06.09.2019, this Court tacitly declined to

interfere with their conviction for kidnapping, and accordingly

refrained from granting leave to appeal. However, limited notice was

issued to the respondentState, calling upon them to furnish details

regarding the petitioners’ entitlement to premature release. The

aforementioned order reads as follows:

“Limited notice be issued to the respondentState of Uttar Pradesh to

know whether the petitioner is entitled for premature release from

the prison as per the Jail Manual”

7. Separate counteraffidavits have consequently been filed by the

Page | 4

respondentState on 18.12.2019, interalia, informing that Satish’s

proposal for premature release under Section 2 of the UP Prisoners

Release on Probation Act, 1938 was still under consideration; whereas

that of Vikky was duly considered and rejected by a Committee headed

by the District Magistrate, Ghaziabad on 26.02.2018.

8. Nevertheless, keeping in mind the longperiod of incarceration

undergone by the petitioners and infirmities in consideration of their

prayers for premature release as highlighted by their counsels, this

Court on 08.06.2020 directed fresh consideration of their cases for

premature release and passed the following order:

“Taking into consideration the submissions made by the learned

counsel appearing for the parties, we direct the learned counsel

appearing for the State of U.P. to consider the case of

the petitioner (Satish @ Sabbe) in Special Leave Petition (Crl.)

No.7369 of 2019, which is stated to be pending before the State, as

also the case of the petitioner (Vikky Alias Vikendra Alias

Virendra) in Special Leave Petition (Crl.) No.8326 of 2019, which

was earlier rejected by the said State, for their premature release as

per the Jail Manual, within a period of four weeks from today and

place the orders before this Court.”

9. It was brought to the notice of this Court on the next date of

hearing that the respondentState had, without due application of

mind, passed an unreasoned Order dated 13.07.2020 rejecting

premature release of Satish based on an earlier evaluation conducted

Page | 5

on 29.01.2018. This was contended to be in contravention of the

directions issued by this Court as well as on a misconceived notion of

individual dignity. Similar allegations of evasive compliance and

mechanical rejection of Vikky’s case for premature release vide

Government Order dated 29.07.2020, despite his long incarceration

and good conduct, were reiterated. Restricting their prayer(s) in terms

of the order dated 06.09.2019 of this Court, learned counsel(s) for

Satish and Vikky have cited some judgments, and relied upon various

remission guidelines; to substantiate their plea to setaside the Orders

rejecting petitioner’s prayer for premature release.

10. Finding that earlier orders directing fresh consideration of

petitioners’ cases for premature release had not been faithfully

complied with, this Court on 25.08.2020, once more directed the

respondentState to consider both cases afresh and pass appropriate

reasoned orders within a week. Since the petitioner’s prayer for

premature release has again been declined vide Government Orders

dated 01.09.2020, hence learned counsel for the parties have been

heard on the aforestated limited issue.

CONTENTIONS OF PARTIES

11. Over the course of the final hearing on 08.09.2020, it has been

submitted by learned State counsel that the Probation Board

Page | 6

considered afresh Satish’s case and has refused probation for the

reasons that – first, the crime is heinous, second, petitioner is hardly

5354 years old and can repeat the crime, third, informant has serious

apprehensions against his release, and fourth, governmental

authorities have adversely commented upon his release considering its

direct adverse effect on the society. Likewise, for Vikky, on grounds of

his age of 43 years, healthy physical condition, apprehensions of

informant and nature of crime; his mercy petition had not been

recommended.

12. Counsel for the petitioners have very eruditely controverted the

rationale and reasons embodied in both the Government Orders. It

was argued that although the impugned orders have been purportedly

passed under the Jail Manual and UP Prisoners Release on Probation

Act, 1938; but, the mandatory factors of ‘antecedents’ and ‘conduct in

prison’ have totally been overlooked, and instead various extraneous

factors have been relied upon to justify the mechanical action. They

urged that no attempt was made to meet the petitioners to ascertain

their proclivity for committing crimes in the future, thus evidencing

nonapplication of mind. The lengthy imprisonment, lack of

antecedents and good conduct in jail were again underscored by

counsel for the petitioners to drive home their prayers for premature

release.

Page | 7

ANALYSIS

13. Whilst it is undoubtedly true that society has a right to lead a

peaceful and fearless life, without freeroaming criminals creating

havoc in the lives of ordinary peaceloving citizens. But equally strong

is the foundation of reformative theory which propounds that a

civilised society cannot be achieved only through punitive attitudes

and vindictiveness; and that instead public harmony, brotherhood and

mutual acceptability ought to be fostered. Thus, firsttime offenders

ought to be liberally accorded a chance to repent their past and lookforward to a bright future.1

14. The Constitution of India through Articles 72 and 161, embody

these reformative principles by allowing the President of India and the

Governor of a State to suspend, remit or commute sentences of

convicts. Further, Section 432 of the Code of Criminal Procedure,

1973 (“CrPC”) streamlines such powers by laying down procedure and

preconditions for release. The only embargo under Section 433A of

CrPC is against the release of persons sentenced to life imprisonment

till they have served at least fourteen years of their actual sentence.

15. The UP Prisoners Release on Probation Act, 1938 also lays down

the principles upon which such decisions to release on probation are

required to be taken. Its Section 2 says that:

Maru Ram v. Union of India, 1981 (1) SCC 107.

Page | 8

“2. Power of Government to release by licence on conditions

imposed by them – Notwithstanding anything contained in Section

401 of the Code of Criminal Procedure, 1898 (Act V of 1898), where

a person is confined in prison under a sentence of imprisonment and

it appears to the State Government from his antecedents and

his conduct in the prison that he is likely to abstain from

crime and lead a peaceable life, if he is released from prison,

the State Government may by licence permit him to be released on

condition that he be placed under the supervision or authority of a

Government Officer or of a person professing the same religion as

the prisoner, or such secular institution or such society belonging to

the same religion as the prisoner as may be recognized by the State

Government for this purpose, provided such other person, institution

or society is willing to take charge of him.”

[emphasis supplied]

16. It is no doubt trite law that no convict can claim remission as a

matter of right.2

However, in the present case, the circumstances are

different. What had been sought and directed by this Court through

repeated orders was not premature release itself, but due application

of mind and a reasoned decision by executive authorities in terms of

existing provisions regarding premature release. Clearly, once a law

has been made by the appropriate legislature, then it is not open for

executive authorities to surreptitiously subvert its mandate. Where the

authorities are found to have failed to discharge their statutory

obligations despite judicial directions, it would then not be

inappropriate for a Constitutional Court while exercising its powers of

Swamy Sahraddanada v. State of Karnataka, (2008) 13 SCC 767.

Page | 9

judicial review to assume such task onto itself and direct compliance

through a writ of mandamus.

17. A perusal of the Government Orders displays that the statutory

mandate on premature release has been completely overlooked. The

threefactor evaluation of (i) antecedents (ii) conduct during

incarceration and (iii) likelihood to abstain from crime, under Section

2 of the UP Prisoners Release on Probation Act, 1938, have been given

a complete goby. These refusals are not based on facts or evidence,

and are vague, cursory, and merely unsubstantiated opinions of state

authorities.

18. It would be gainsaid that length of the sentence or the gravity of

the original crime can’t be the sole basis for refusing premature

release. Any assessment regarding predilection to commit crime upon

release must be based on antecedents as well as conduct of the

prisoner while in jail, and not merely on his age or apprehensions of

the victims and witnesses.3

As per the State’s own affidavit, the

conduct of both petitioners has been more than satisfactory. They

have no material criminal antecedents, and have served almost 16

years in jail (22 years including remission). Although being about 54

and 43 years old, they still have substantial years of life remaining,

but that doesn’t prove that they retain a propensity for committing

Zahid Hussain v. State of West Bengal, 2001 (3) SCC 750.

Page | 10

offences. The respondentState’s repeated and circuitous reliance on

age does nothing but defeat the purpose of remission and probation,

despite the petitioners having met all statutory requirements for

premature release.

19. Indeed, the petitioners’ case is squarely covered by the ratio laid

down by this Court in Shor v. State of Uttar Pradesh4

, which has

later been followed in Munna v. State of Uttar Pradesh5

, the relevant

extract of which is reproduced as under:

“A reading of the order dated 22.01.2018 shows that the Joint

Secretary, Government of U.P. has failed to apply his mind to the

conditions of Section 2 of the U.P. Act. Merely repeating the fact

that the crime is heinous and that release of such a person

would send a negative message against the justice system in

the society are factors de hors Section 2. Conduct in prison

has not been referred to at all and the Senior Superintendent

of Police and the District Magistrate confirming that the

prisoner is not “incapacitated” from committing the crime is

not tantamount to stating that he is likely to abstain from

crime and lead a peaceable life if released from prison. Also

having regard to the long incarceration of 29 years (approx.) without

remission, we do not wish to drive the petitioner to a further

proceeding challenging the order dated 22.01.2018 when we find

that the order has been passed mechanically and without

application of mind to Section 2 of the U.P. Act.”

[emphasis supplied]

2020 SCC OnLine SC 626, ¶ 6.

Order dated 21.08.2020 in WP (Crl) 4 of 2020.

Page | 11

20. It seems to us that the petitioners’ action of kidnapping was

nothing but a fanciful attempt to procure easy money, for which they

have learnt a painful life lesson. Given their age, their case ought to be

viewed through a prism of positivity. They retain the ability to reintegrate with society and can spend many years leading a peaceful,

disciplined, and normal human life. Such a hopeful expectation is

further concritised by their conduct in jail. It is revealed from the

additional affidavit dated 05.09.2020 filed by Anita @ Varnika (wife of

Vikky) that during the course of his incarceration in jail he has

pursued as many as eight distancelearning courses, which include (i)

passing his Intermediate Examination, (ii) learning computer

hardware, (iii) obtaining a degree in Bachelor of Arts; as well as

numerous certificates in (iv) food and nutrition, (v) human rights, (vi)

environmental studies. Vikky’s conduct shines as a bright light of

hope and redemption for many other incarcerated prisoners.

Compounded by their roots and familial obligations, we believe it is

extremely unlikely that the petitioners would commit any act which

could shatter or shame their familial dreams.

21. In the present case, considering how the petitioners have served

nearly two decades of incarceration and have thus suffered the

consequences of their actions; a balance between individual and

societal welfare can be struck by granting the petitioners conditional

Page | 12

premature release, subject to their continuing good conduct. This

would both ensure that liberty of the petitioners is not curtailed, nor

that there is any increased threat to society. Suffice to say that this

order is not irreversible and can always be recalled in the event of any

future misconduct or breach by the petitioners.

CONCLUSION

22. For the reasons stated above, the Special Leave Petitions are

disposed of with a direction that the petitioners be released on

probation in terms of Section 2 of the UP Prisoners Release on

Probation Act, 1938 within a period of two weeks. The respondentState shall be at liberty to impose conditions as it may deem fit to

balance public safety with individual liberty.

…………………………….. J.

(N.V. RAMANA)

…………………………… J.

(SURYA KANT)

…………………………...J.

(HRISHIKESH ROY)

NEW DELHI

DATED : 30.09.2020

Page | 13

interesting issues about the interface between the fundamental right to travel abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail

interesting issues about the interface between the fundamental right to travel abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail

whether the appellant is likely to flee from justice if he were to be permitted to travel to the US, we find, on the basis of the previous record of the appellant, that there is no reason or justification to deny him the permission which has been sought to travel to the US for eight weeks. The appellant is an Indian citizen and holds an Indian passport. While it is true that an FIR has been lodged against the appellant, that, in our view, should not in itself prevent him from travelling to the US, where he is a resident since 1985, particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green Card if the appellant were not permitted to travel. The record indicates the large amount of litigation between the family of the appellant and the complainant. Notwithstanding or perhaps because of this, the appellant has frequently travelled between the US and India even after the filing of the complaint and the FIR. We accordingly are of the view that the application for modification was incorrectly rejected by the High Court and the appellant ought to have been allowed to travel 13 Writ Petition Urgent 2 of 2020 19 to the US for a period of eight weeks. We accordingly permit the appellant to do so, subject to his furnishing an undertaking to this Court before the date of travel that he will return to India after the expiry of a period of eight weeks and that he shall be available on all dates of hearing before the court of criminal jurisdiction, unless specifically exempted from personal appearance. The undertaking shall be filed in this court before the appellant undertakes travel. On the return of the appellant after eight weeks and if it becomes necessary for him to travel to the US, the appellant shall apply to the concerned court for permission to travel and any such application shall be considered on its own merits by the competent court. The appellant shall travel only upon the grant of permission and subject to the terms imposed. The passport of the appellant shall be handed over to the appellant to facilitate his travel, subject to the condition that he shall deposit it with the investigating officer immediately on his return.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 648 of 2020

(Arising out of SLP(Crl) No 3420 of 2020)

Parvez Noordin Lokhandwalla ...Appellant(s)

Versus

State of Maharashtra & Anr. ...Respondent(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud

1 Leave granted.

2 This appeal arises from a judgment and order of a Single Judge of the High Court of

Judicature at Bombay1 dated 23 July 2020. The High Court, by its order which is in

appeal, declined to modify its earlier order dated 19 May 2020 so as to permit the

appellant to travel to the US for a period of eight weeks from 25 July 2020 to 6

September 2020. The appellant sought the leave of the High Court to do so since as

a Green Card holder, it was mandatory for him to return to the US within a stipulated

period of his departure from that country, failing which the conditions for

revalidation of the Green Card would not be fulfilled. The High Court declined to

relax the conditions imposed by it for the grant of interim bail on the ground that an

FIR has been registered against the appellant. Though the period during which the

appellant sought to travel abroad has lapsed, the cause survives. The appeal raises

interesting issues about the interface between the fundamental right to travel

1 “High Court”

abroad and its curtailment under a judicial order as an incident to regulate

conditions governing the grant of bail.

3. The genesis of the present case arises from a private complaint which was filed in

January 2014 by Mehraj Rajabali Merchant in the court of the JMFC Thane alleging

that the appellant has fabricated a Power of Attorney dated 19 December 2011 by

forging the signature of his brother, Shalin Lokhandawalla. On 10 April 2014, the

JMFC passed an order, by which he directed an investigation under Section 156(3)

of the Code of Criminal Procedure 19732

in terms of the following directions:

“1. The Kapurbavdi police station is directed to register the

crime and investigate into the matter.

2. Further it is hereby directed to submit the report before the

court for taking action, if any, u/s.340 of Cr.P.C.”

4 A First Information Report was registered against the appellant on 22 April 2014 in

which the appellant is alleged to be involved in offences punishable under Sections

420, 467, 468, 469, 470, 471 and 474 of the Indian Penal Code 18603

read with the

provisions of Section 34.

5 The appellant and the co-accused, Arun Fatehpuria, had preferred an application

for grant of anticipatory bail before the Sessions Court Thane, which granted interim

protection from arrest to both the accused on 17 February 2018. On 16 April 2018,

the Sessions Court at Thane confirmed the interim order and granted anticipatory

bail to the co-accused, Arun Fatehpuria, primarily on the basis that the allegations in

the complaint depend largely on documentary material, rendering custodial

interrogation unnecessary. However, the interim order protecting the appellant was

“CrPC”

“IPC”

cancelled because the counsel representing the appellant withdrew the

application on his behalf.

6 The appellant is an Indian citizen and holds an Indian passport. He holds a Green

Card, enabling him to reside in the US. He has resided in the US since 1985. However,

between 10 March 2015 and 10 January 2020, the appellant visited India on sixteen

occasions, details of which have been filed on an affidavit dated 7 August 2020 in

these proceedings. A tabulated chart (Annexure P-3 to the affidavit) contains

details of his travel history, and is extracted below:

“Sr.

No.

Arrival Date Departure Date

1. 10/3/2015 Mumbai Mumbai

2. 19/03/2015 Mumbai

3. 21/4/2015 Mumbai

4. 22/4/2015 Mumbai

5. 7/5/2015 Mumbai

6. 10/5/2015 New Delhi

7. 21/8/2015 Mumbai

8. 24/8/2015 Mumbai

9. 3/2/2016 New Delhi

10. 11/2/2016 New Delhi

11. 14/2/2016 New Delhi

12. 24/2/2016 New Delhi

13. 24/6/2016 Mumbai

14. 28/7/2016 Mumbai

15. 10/2/2017 New Delhi

16. 4/5/2017 Mumbai

17. 10/7/2017 Mumbai

18. 15/7/2017 Mumbai

19. 24/7/2017 Mumbai

20. 9/8/2017 Mumbai

21. 19/10/2017 Mumbai

22. 3/11/2017 Mumbai

23. 11/11/2017 India (City not

known)

24. 26/2/2018 Mumbai

25. 1/6/2018 Mumbai

26. 10/7/2018 India (City not

known)

27. 26/9/2018 Mumbai

28. 26/10/2018 Mumbai

29. 22/11/2018 Mumbai

30. 14/12/2018 Mumbai

31. 4/4/2019 Mumbai

32. 22/5/2019 Mumbai

33. 10/1/2020 Mumbai

7 The appellant arrived in India on 10 January 2020. He was arrested on 21 February

2020 at the point of departure in Mumbai in pursuance of a look-out notice which

appears to have been issued on the basis of the FIR dated 22 April 2014. An

application for bail was filed before the Sessions Court in the first week of March

2020 but was rejected on 4 May 2020. On 23 April 2020, the appellant filed an

application for bail before the High Court of Judicature at Bombay. The High Court,

by its order dated 19 May 2020, granted temporary bail to the appellant, subject to

the following conditions:

“a) The applicant be released on temporary bail for a period of

eight weeks in C.R. No.I-156 of 2014 registered with

Kapurbavadi Police Station, Thane on his furnishing P.R. Bond

of Rs.25,000/- with one or more sureties to make up the

amount.

b) Till the procedure for furnishing sureties is completed, the

applicant is permitted to furnish cash bail.

c) Before his actual release from jail, the Applicant is directed

to surrender his Passport and/or Green Card issued by the

United States of America with the Investigating Agency, if

not earlier seized by it or other Government Authorities.

d) After his release from jail, the applicant is directed not to

leave jurisdiction of Thane Police Commissionerate without

prior permission of the trial Court.

e) Place the Application for regular bail before the regular

Court after normal functioning of the Court begins.”

8 On 10 June 2020, the appellant filed an IA before the High Court seeking permission

to visit the US for a period of eight weeks. The High Court was hearing only urgent

applications during the course of the lock down occasioned by the outbreak of

Covid-19. The Registry of the High Court informed him on 15 June 2020 that no

urgency was found in the praecipe for urgent listing. The appellant filed fresh

praecipes for urgent listing on 17 June 2020 and 19 June 2020. On 26 June 2020, a

Single Judge (Justice S. K. Shinde) expressed his inability to take up the IA for

relaxation of the conditions attached to the grant of interim bail since the order

dated 19 May 2020 had been passed by Justice A. S. Gadkari. The contention of

the appellant, it may be noted, has been that under the conditions prescribed by

the US Immigration and Nationality Act 1952, he has to return for a short period for

revalidating the Green Card. Among them are the following:

“(C) An alien lawfully admitted for permanent residence in

the United States shall not be regarded as seeking an

admission into the United States for purposes of the

immigration laws unless the alien-

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a

continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having

departed the United States,

(iv) has departed from the United States while

under legal process seeking removal of the

alien from the United States, including removal

proceedings under this chapter and

extradition proceedings,

(v) has committed an offense identified in section

1182(a)(2) of this title, unless since such offense

the alien has been granted relief under section

1182(h) or 1229b(a) of this title, or is attempting

to enter at a time or place other than as

designated by immigration officers or has not

been admitted to the United States after

inspection and authorization by an immigration

officer.”

9 The High Court, by its order dated 26 June 2020, rejected the application for

considering his prayer for relaxing the conditions attaching to the grant of interim

bail following which the appellant moved this Court4

. By an order dated 13 July

2020, this Court requested the High Court to take up the IA filed by the appellant

seeking permission to travel to the US, at an early date. This Court, in its order dated

13 July 2020, noted the submission of the learned counsel for the appellant in

paragraph 2 of its order and then issued the following directions:

“2. Mr Subhash Jha, learned counsel appearing on behalf

of the petitioner, submitted that in the event that the

petitioner is unable to arrive in the US by 29 July 2020, he will

not be in a position to retain his Green Card as he is required

to return to the US within 180 days of his departure and his

status will then be that of an alien seeking entry into the US.

3. Since the interim application which has been filed by the

petitioner is pending before the High Court, we request the

High Court to take it up at an early date having regard to

the timeline which has been set out in the submissions which

have been recorded above. We clarify that since the interim

application is still pending before the High Court, we have

not expressed any view on the merits of the matter. The

observations contained in the order declining to entertain

the praecipe shall not come in the way of the disposal of

the interim application. The Special Leave Petition is

4 SLP (Crl) No 3034 of 2020

accordingly disposed of.

4. The Registry of the Bombay High Court may obtain, if

required, administrative directions of the Hon'ble Chief

Justice for the assignment of the interim application.”

10 In pursuance of the order of this Court, the High Court heard the IA and has

declined to grant permission to the appellant to visit the US for a period of eight

weeks, by its order dated 23 July 2020.

11 Mr. Subhash Jha, learned counsel appearing on behalf of the appellant submits that:

(i) The appellant is a resident of the US since 1985; holds a Green Card since

2010 and has not violated any provision of law in the US;

(ii) The appellant and the members of his family have been involved in a long

drawn out litigation against the complainant, both of a civil and criminal

nature;

(iii) In the private complaint that was instituted by the complainant in January

2014, the co-accused was granted anticipatory bail by the Sessions Judge,

Thane on the ground that the complaint essentially turns upon documents;

(iv) Between 2015 and 2020, the appellant has visited India on as many as sixteen

occasions;

(v) The family of the appellant, which includes him, his brother Shalin and two

sisters, jointly owns properties at Thane and Panvel worth more than Rs 100

crores and the appellant is the only member of the family who is looking after

the litigation;

(vi) Far from being a fugitive from justice, the appellant has consistently travelled

to India and the mere filing of the private complaint and the registration of

an FIR should not preclude him from travelling to the US, failing which he

would incur serious consequences of the invalidation of his Green Card;

(vii) While the court which grants bail under Section 439 of the Code of Criminal

Procedure 1973 can impose conditions which ensure the presence of the

accused to face trial, the conditions must balance the liberty of the accused

and not result in the arbitrary deprivation of the right to livelihood; and

(viii) The order of the JMFC dated 10 April 2014 has been passed as a matter of

routine course without application of mind and has been misused by the

police machinery to harass and arrest the appellant at the behest of an

adversary.

12 Mr Jha further submitted that the appellant would undertake to come to India on

every hearing of the criminal cases before the concerned courts and he has no

intention to evade the process of law. Mr. Jha has stated that in pursuance of the

notice issued by this court, the complainant has been served.

13 On the other hand, Mr. Sachin Patil, learned counsel appearing on behalf of the

State of Maharashtra, who appeared in pursuance of the notice issued by this Court

on 29 July 2020, submitted that the conduct of the appellant has been improper. Mr.

Patil stated that, on the grant of anticipatory bail by the Sessions Court in 2018, the

appellant left for the US, without seeking permission, though as a matter of fact, he

returned subsequently to India on several occasions until 2020, when he was

arrested. It was urged that the appellant has not complied with the conditions on

which he was granted interim bail for eight weeks and he ought to have, but has

not, surrendered after the period was over. Mr. Patil submitted that since the

appellant is facing a criminal trial, the Court may expedite the course of the trial, but

not permit him to leave for the US at this stage; there being no guarantee of his

return.

14 The language of Section 437(3) of the CrPC which uses the expression “any

condition… otherwise in the interest of justice” has been construed in several

decisions of this court. Though the competent court is empowered to exercise its

discretion to impose “any condition” for the grant of bail under Sections 437 (3) and

439 (1) (a) of the CrPC, the discretion of the court has to be guided by the need to

facilitate the administration of justice, secure the presence of the accused and

ensure that the liberty of the accused is not misused to impede the investigation,

overawe the witnesses or obstruct the course of justice. Several decisions of this

Court have dwelt on the nature of the conditions which can legitimately be

imposed both in the context of bail and anticipatory bail.

15 In Kunal Kumar Tiwari v The State of Bihar5

, the appellant who was alleged to have

committed offences under Sections 498-A, 341, 323, 379 and 506, read with Section

34 IPC and Sections 3 and 4 of the Dowry Prohibition Act 1961 was denied

anticipatory bail by the High Court. However, the High Court directed that if the

appellant was willing to treat his wife with dignity and care but she refuses to live

with him or both parties prefer to obtain a divorce by mutual consent, the court

below would release the appellant on provisional bail. The trial court was permitted

to confirm the provisional bail after one year and was directed to monitor the

relationship between the parties, who would appear before it every three months.

This Court, while holding that the conditions imposed by the High Court on grant of

(2018) 16 SCC 74

bail were onerous and arbitrary, observed:

“9. …Sub-clause (c) of Section 437(3) allows Courts to

impose such conditions in the interest of justice. We

are aware that palpably such wordings are capable

of accepting broader meaning. But such conditions

cannot be arbitrary, fanciful or extend beyond the

ends of the provision. The phrase 'interest of justice' as

used under the Sub-clause (c) of Section 437(3)

means "good administration of justice" or "advancing

the trial process" and inclusion of broader meaning

should be shunned because of purposive

interpretation.

10. … from the perusal of the impugned order it is clear that

the court exceeded its jurisdiction in imposing such

arbitrary conditions. Some of the conditions imposed

are highly onerous and are absurd. Such onerous

anticipatory bail conditions are alien and cannot be

sustained in the eyes of law. The conditions imposed

appear to have no nexus with the good

administration of justice or advancing the trial process,

rather it is an over-zealous exercise in utter disregard

to the very purpose of the criminal justice system. In

view of the above, the impugned order passed by

the High Court is set aside and the interim protection

granted to the Petitioner by this Court… is made

absolute.”

16 In Dataram Singh v State of Uttar Pradesh6

, this Court observed that:

“7. ….The grant or refusal of bail is entirely within the discretion of

the judge hearing the matter and though that discretion is

unfettered, it must be exercised judiciously and in a humane

manner and compassionately. Also, conditions for the grant of bail

ought not to be so strict as to be incapable of compliance,

thereby making the grant of bail illusory.”

17 In Sumit Mehta v. State (NCT of Delhi)7

, in the context of conditions under Section

438 (2) of the CrPC, this Court observed that a balance has to be struck between

the rights of the accused and the enforcement of the criminal justice system while

(2018) 3 SCC 22

(2013) 15 SCC 570

imposing conditions on the grant of bail:

“11. While exercising power Under Section 438 of the Code, the

Court is duty bound to strike a balance between the individual's

right to personal freedom and the right of investigation of the

police. For the same, while granting relief under Section 438(1),

appropriate conditions can be imposed Under Section 438(2) so as

to ensure an uninterrupted investigation. The object of putting such

conditions should be to avoid the possibility of the person

hampering the investigation. Thus, any condition, which has no

reference to the fairness or propriety of the investigation or trial,

cannot be countenanced as permissible under the law. So, the

discretion of the Court while imposing conditions must be exercised

with utmost restraint.”

This Court also discussed the scope of the discretion of the court to impose “any condition”

on the grant of bail and observed:

“15. The words "any condition" used in the provision should not be

regarded as conferring absolute power on a Court of law to

impose any condition that it chooses to impose. Any condition has

to be interpreted as a reasonable condition acceptable in the

facts permissible in the circumstance and effective in the

pragmatic sense and should not defeat the order of grant of bail.”

18 In Barun Chandra Thakur v. Ryan Augustine Pinto8

, this Court restored a condition

mandating that the respondent seek prior permission from a competent court for

travel abroad. The condition, which was originally imposed by the High Court while

granting anticipatory bail was subsequently deleted by it. This Court made the

following observations with respect to imposing restrictions on the accused’s right to

travel:

“9. ….There could be no gainsaying to that the right to travel

abroad is a valuable one and an integral part of the right to

personal liberty. Equally, however, the pre-condition of securing

prior permission before travelling abroad is a crucial ingredient

which undoubtedly was engrafted as a condition for the grant of

anticipatory-bail in this case. ……At best, the condition for seeking

8 Criminal Appeal No. 1618 of 2019 (Arising out of SLP (Crl.) No. 9873 of 2019), order dated 21 October 2019.

permission before travelling abroad could have been regulated,

not deleted altogether.”

19 This Court has passed multiple orders previously allowing an accused enlarged on

bail to travel abroad. In Ganpati Ramnath v State of Bihar9

, this Court allowed an

accused-applicant to travel abroad for medical treatment, modifying its earlier bail

order, noting that the applicant had travelled abroad on the ground of medical

necessity on six occasions with the permission of the court and had returned. In K.

Mohammed v The State of Kerala10, this Court allowed the accused-appellant to

travel abroad to meet in the exigencies of a family situation. In Tarun Trikha v State

of West Bengal11, this Court allowed the accused-petitioner to travel to Indonesia in

connection with his employment and to return once the work was completed. In

Pitam Pradhan v State of A P12,this Court while granting anticipatory bail, permitted

the petitioner to travel abroad noting that his job required him to travel abroad at

frequent intervals and may lose his employment if he were not permitted to travel

abroad.

20. Having heard the learned counsel appearing on behalf of the appellant and the

learned counsel for the State of Maharashtra, it is necessary for the Court to notice

at the outset that a large amount of litigation is pending between the appellant

and the complainant, Mehraj Rajabali Merchant. The appellant has furnished

details of the litigation between the parties as well as of the criminal prosecutions, in

his affidavit dated 7 August 2020. This has been summarised in a tabular statement:

9 Crlmp. Nos. 6304 & 6305/2017 in Criminal Appeal Nos. 1187/2004, order dated 4 May 2017.

10 Criminal Appeal Nos. 547/2012, order dated 2 March 2020.

11 Special Leave to Appeal Crl. Nos. 4643/2015, order dated 29 May 2015.

12 Special Leave to Appeal (Crl) No(s).9664/2013, order dated 26 February 2014.

“I. Cases initiated by Merchants

(Disposed)

Sr.No. Court & Case Parties Disposal

Date

1. Civil SD. Court,

Thane

RCS/200577/2005

Ms. Lokhandwala

Weigh Bridge Vs. M/s

Asam Transport

Disposed

2. 4th Civil Judge

JMFC, Thane

RCC/420380/2010

Firdaus Rajabali

Merchant Vs. Farida

Firoz Lokhandwala

08/10/2010

3. 1st C J Magistrate,

Thane

CR.MA/300998/2013

Firdaus Rajabali

Merchant Vs. Parvez

Noor Lokhandwala

03/01/2014

4. 4th Joint Civil Judge

Sr. Division, Thane

RCS/201541/2001

Firoz Pirbhai

Lokhandwala Vs

Nooruddin Pirbhai

Lokhandwala

16/09/2016

5. Add. Dist. Judge,

Thane

Civil MA/286/2019

Mehraj Rajabali

Merchant Vs.

1. Parvez Noor

Lokhandwala

2. Farida Noor

Lokhandwala

3. Faizmin Amin

Hussain

4. Dinaz Akbar

5. Shalin Noor

Lokhandwala

6. Arun Fathepuria

7. Firadaus Rajabali

Merchant

8. Municipal Comr.

of Thane

25/01/2020

II. Cases initiated by Lokhandwallas

(Disposed)

Sr.No. Court & Case Parties Disposal Date

1. 4th Civil Judge S D,

Thane

RCS/200143/2011

Parvez Noor.

Lokhandwala Vs

Firdaus Rajabali

Merchant

07/01/2013

2. Dist & Session

Court, Thane

Shalin Noor.

Lokhandwala Vs.

11/08/2015

Civil

MA/100012/2008

Hindustan Petroleum

3. 2nd Joint Civil

Judge SD, Thane

RCS/201901/2012

Farida Noor.

Lokhandwala Vs.

Farida Firoz

Lokhandwala

22/01/2019

4. 4th Joint Civil

Judge SD, Thane

Sp.

Case/200905/2012

Farida Noor.

Lokhandwala Vs.

Farida Firoz

Lokhandwala

13/09/2019

III. Cases initiated by Merchants (Active)

Sr.

No.

Court & Case Parties Stage Next date

1. 2nd Joint Judge, Sr.

Division, Thane

Sp.

Case/200393/2010

Firdaus Rajabali

Merchant Vs.

Farida Firoz

Lokhandwala

Argument 3.8.2020

2. 2nd Civil Judge,

JD, JMFC, Thane –

Misc. Cr.

Application

799/2017

Firdaus Rajabali

Merchant Vs.

1. Parvez N.

Lokhandwala

2. Farida N.

Lokhandwala

Order 10.8.2020

3. 8th Dist. Judge

MCA/10/2020

Mehraj Rajabali

Merchant Vs.

1. Parvez Noor.

Lokhandwala

2. Farida Noor.

Lokhandwala

3. Faizmin Amin

Husain

4. Dinaz Akbar

5. Shalin Noor.

Lokhandwala

6. Arun

Fatehpuria

7. Firdaus

Rajabali

Merchant

8. Thane

Municipal

Corp.

Commissioner

Notice

Unready

19.08.2020

4. 5th Court Joint

Civil Judge Sr.

Mehraj Rajabali

Merchant Vs.

File of Stay 19.8.2020

Div., Thane

Civil

MA/200687/2015

1. Parvez Noor.

Lokhandwala

2. Farida Noor.

Lokhandwala

3. Faizmin Amin

Husain

4. Dinaz Akbar

5. Shalin Noor.

Lokhandwala

6. Arun

Fatehpuria

7. Firdaus

Rajabali

Merchants

8. Thane

Municipal

Corp.

Commissioner

9. Ganesh

Hanuman

Autee

10. Sanjay Salvi

11. Amarjit

Singh Dhri

5. Civil Judge Senior

Division, Thane

Civil

MA/200404/2015

Farida Firoz

Lokhandwala

Vs. Farida Noor.

Lokhandwala

Notice 19.8.2020

6. 5th Court Joint

Civil Judge, Sr.

Div, Thane

RCS/200566/2013

Mehraj Rajabali

Merchant Vs.

Parvez

Nooruddin

Lokhandwala

Evidence 3.9.2020

7. 3rd Joint Civil

Judge Sr. Division,

Thane

Sp.

Case/424/2017

Mehraj Rajabali

Merchant Vs.

Parvez Noor

Lokhandwala

Summons 17/09/2020

IV.Cases initiated by Lokhandwallas (Active)

Sr.

No.

Court & Case Parties Stage Next date

1. 4th Joint Civil

Judge Sr. Division,

Thane

Farida Noor.

Lokhandwala

Vs. Farida

Argument 19/08/2020

Civil

MA/200315/2015

Firoz

Lokhandwala

2. 1st CJM, Thane

Cri M.A./91/2014

Farida N.

Lokhandwalla

Vs. Firdaus

Rajabali

Merchant &

Ors.

Arg on Exh.

Unready

24/09/2020

V. Misc Cases

Sr.

No.

Court & Case Parties Stage Next date

1. Supreme Court

SLP (CRL) No.

3420/2020

SLP (CRL)

No.3034/2020

Parvez N.

Lokhandwalla

Vs. State of

Maharashtra

Argument 12/08/2020

(tentative)

2. High Court

LD/VC/BA/24/2020

Parvez N.

Lokhandwalla

Vs. State of

Maharashtra

Argument Praecipe

circulated

06/08/2020

(tentative)

3. High Court

ASDB-LD-VC

No.102 of 2020

along with

WP/891/2018

Parvez N.

Lokhandwalla

Vs. State of

Maharashtra &

Ors

Amendment

carried out

Seeking

circulation

21 The private complaint which is the genesis of the present proceedings was instituted

in January 2014. The gravamen of the allegation is that the appellant has forged

and fabricated the Power of Attorney of 19 December 2011 of his brother Shalin. Mr.

Jha submits that, as a matter of fact, the Power of Attorney has not been used at

any point; his brother was present in India at the time when conveyance was

entered into; and that his brother has never raised any objection. However, we are

not inclined to go into these factual aspects at the present stage. It would suffice to

note that the co-accused was granted bail by the Sessions Judge Thane on 16 April

2018. We are called upon to decide only whether the appellant should be

permitted to travel to the US for eight weeks. In evaluating this issue, we must have

regard to the nature of the allegations, the conduct of the appellant and above all,

the need to ensure that he does not pose a risk of evading the prosecution. The

details which have been furnished to the Court by the appellant, indicate that he

has regularly travelled between the US and India on as many as sixteen occasions

between 2015 and 2020. He has maintained a close contact with India. The view of

the High Court that he has no contact with India is contrary to the material on

record. The lodging of an FIR should not in the facts of the present case be a bar on

the travel of the appellant to the US for eight weeks to attend to the business of

revalidating his Green Card. The conditions which a court imposes for the grant of

bail – in this case temporary bail – have to balance the public interest in the

enforcement of criminal justice with the rights of the accused. The human right to

dignity and the protection of constitutional safeguards should not become illusory

by the imposition of conditions which are disproportionate to the need to secure the

presence of the accused, the proper course of investigation and eventually to

ensure a fair trial. The conditions which are imposed by the court must bear a

proportional relationship to the purpose of imposing the conditions. The nature of

the risk which is posed by the grant of permission as sought in this case must be

carefully evaluated in each case.

22 Mr. Sachin Patil submitted that the appellant was granted temporary bail for a

period of eight weeks by the High Court, by its order dated 19 May 2020, and the

appellant has neither furnished surety nor he has surrendered after the expiry of the

period of eight weeks.

23 As far as the furnishing of sureties is concerned, Mr. Jha stated, on instructions, that

the directions of the High Court have been complied with. In regard to the

surrender of the appellant, the Court has been apprised of the fact that as a result

of the lock down occasioned by the outbreak of Covid-19, the High Court on the

judicial side passed successive orders13 on 26 March 2020, 15 April 2020 and 15 June

2020 extending its interim orders. In the meantime, to establish his bona fides, the

appellant states that he had moved the High Court in successive praecipes for early

hearing, while instituting an IA for modification of the conditions imposed on 19 May

2020 and, eventually, it was on the direction of this Court that the High Court passed

the impugned order.

24 Having regard to the genesis of the dispute as well as the issue as to whether the

appellant is likely to flee from justice if he were to be permitted to travel to the US,

we find, on the basis of the previous record of the appellant, that there is no reason

or justification to deny him the permission which has been sought to travel to the US

for eight weeks. The appellant is an Indian citizen and holds an Indian passport.

While it is true that an FIR has been lodged against the appellant, that, in our view,

should not in itself prevent him from travelling to the US, where he is a resident since

1985, particularly when it has been drawn to the attention of the High Court and this

Court that serious consequences would ensue in terms of the invalidation of the

Green Card if the appellant were not permitted to travel. The record indicates the

large amount of litigation between the family of the appellant and the complainant.

Notwithstanding or perhaps because of this, the appellant has frequently travelled

between the US and India even after the filing of the complaint and the FIR. We

accordingly are of the view that the application for modification was incorrectly

rejected by the High Court and the appellant ought to have been allowed to travel

13 Writ Petition Urgent 2 of 2020

to the US for a period of eight weeks. We accordingly permit the appellant to do so,

subject to his furnishing an undertaking to this Court before the date of travel that he

will return to India after the expiry of a period of eight weeks and that he shall be

available on all dates of hearing before the court of criminal jurisdiction, unless

specifically exempted from personal appearance. The undertaking shall be filed in

this court before the appellant undertakes travel. On the return of the appellant

after eight weeks and if it becomes necessary for him to travel to the US, the

appellant shall apply to the concerned court for permission to travel and any such

application shall be considered on its own merits by the competent court. The

appellant shall travel only upon the grant of permission and subject to the terms

imposed. The passport of the appellant shall be handed over to the appellant to

facilitate his travel, subject to the condition that he shall deposit it with the

investigating officer immediately on his return.

25 Accordingly, the order of the High Court dated 23 July 2020 shall stand set aside and

the appeal shall stand disposed of in terms of the above directions.

…………...…...….......………………........J.

[Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.

[Indira Banerjee]

New Delhi;

October 01, 2020

-S-

Wednesday, October 7, 2020

the persons opposing the Citizenship Amendment Act and the National Register of Citizens, the details of which were yet to be propounded, had 2 adopted a method of protest which resulted in the closure of the Kalindi KunjShaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.

Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.

the persons opposing the Citizenship Amendment Act and the National Register of Citizens, the details of which were yet to be propounded, had 2 adopted a method of protest which resulted in the closure of the Kalindi KunjShaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.

Furthermore, we live in the age of technology and the internet where social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication. Technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses. The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often-leaderless aspirations and evade usual restrictions of censorship; however, the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments, which often see parallel conversations running with no constructive outcome evident. Both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks - as has been opined by the interlocutors and caused inconvenience of commuters. 11 19. We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3282 OF 2020

AMIT SAHNI …APPELLANT

Versus

COMMISSIONER OF POLICE & ORS. …RESPONDENTS

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Our country made tryst with destiny on the midnight hour of 15th August

1947, shedding the colonial yoke. Despite the pain and turbulence of the partition,

the best of the legal and political minds assembled together in the Constituent

Assembly to give us one of the most elaborate and modern Constitutions.

2. One of the bedrocks of the Constitution of India is the separation of powers

between the Legislature, the Executive and the Judiciary. It is the function of the

Legislature to legislate, of the Executive to implement the legislation, and of the

Judiciary to test the constitutional validity of the legislation, if a challenge is so

laid.

3. The Legislature, in its wisdom, enacted the Citizenship (Amendment) Act,

2019, which has its share of supporters and opponents. The Legislature performed

its task. A section of the society, aggrieved by this legislative amendment, has filed

petitions before this Court under Article 32 of the Constitution of India, assailing

the constitutionality and legality of this amendment, which is pending

consideration. There is no stay of the legislation for the purpose of record.

4. There have been protests against this legislation in Delhi and in different

parts of the country. We had noted in our order dated 17.02.2020 that despite the

law facing a constitutional challenge before this Court, that by itself will not take

away the right to protest of the persons who feel aggrieved by the legislation. We,

however, simultaneously noted that the question was where and how the protest

can be carried on, without public ways being affected.

5. The aforesaid was in the context of a petition which was originally filed

before the Delhi High Court, as Writ Petition (Civil) No. 429/2020, which was

disposed of on the very first day, i.e., on 14.01.2020. The grievance made in the

petition was that the persons opposing the Citizenship Amendment Act and the

National Register of Citizens, the details of which were yet to be propounded, had

adopted a method of protest which resulted in the closure of the Kalindi KunjShaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was

submitted that the public roads could not be permitted to be encroached upon in

this manner and, thus, a direction be issued to clear the same.

6. The High Court directed the respondent authorities to look into the

grievances ventilated by the petitioner in the writ petition in accordance with the

law, rules, regulations and Government policies, but simultaneously, it asked the

respondent authorities to keep in mind the larger public interest as well as the

maintenance of the law and order. It was also emphasised that the respondents had

all the powers, jurisdiction and authority to control traffic wherever protests or

agitations were going on, in the larger public interest. In such a situation, it was

observed that no specific writ, order or direction can be issued as to how to handle

the agitation or protest, or even the place of protest and traffic, as the same would

be determined based on the ground reality and the wisdom of the police, especially

where situations may keep changing every 10 minutes.

7. However, since the situation remained the same, the petitioner therein filed

the present appeal by way of a Special Leave Petition against this order of the High

Court.

8. We may note that intervention applications were also filed by parties

claiming to have the best interests of the agitators in mind, or rather having

sympathy for them. In our order dated 17.02.2020, we had put to the learned

counsel of one of these applicants our concern that there may be persons of

different points of view who may tomorrow seek to emulate this protest and such a

scenario would only lead to a chaotic situation. Such kind of protests were, thus,

required to cease on public ways everywhere.

9. In our endeavour of pursuing an out of the box solution, we had considered

it appropriate to appoint two interlocutors - Mr. Sanjay R. Hegde, learned senior

counsel who was present in Court and Ms. Sadhana Ramachandran, who is a

mediator trainer, to meet the protestors at the site. The interlocutors made

appreciable effort and submitted a report before this court, which was taken note of

by us on 24.02.2020. We had perused the report and found that the nature of

demands was very wide and that it did look difficult to find a middle path towards

at least facilitating the opening of the blocked public way. However, unfortunate

developments in other parts of Delhi required us to adjourn the proceedings.

10. We had the benefit of a second report received on 22.03.2020 and perused

the same. We believe that the interlocutors had done their best, but their efforts

could not fructify into success, although the number of people at protest site had

eventually diminished. The report suggested that the views reflected in private

conversations with the protestors were somewhat different from the public

statements made to the media and to the protesting crowd in attendance. While the

women protestors had sat in protest inside the tent, there was a huge periphery

comprising mainly of male protestors, volunteers and bystanders who all seemed to

have a stake in the continuance of the blockade of the road. Even after the arrival

of the pandemic, when a visit was made to the site on 20.03.2020, it was found that

there were about 35-40 takhts inside the tent and each takht had 2-3 women

occupying the space, resulting in a rough estimate of about 75-100 women inside

the tent, as well as 200 or more outside the tent having a connection with the

protest. While the tent was occupying half of the carriageway, the remaining half

of the carriageway had been blocked by creating facilities such as a library, a large

model of India Gate and a big metallic three-dimensional map of India located

upon a very strong metal scaffolding and was anchored by heavy stones making its

removal very difficult. It appeared that an absence of leadership guiding the protest

and the presence of various groups of protesters had resulted in many influencers

who were acting possibly at cross-purposes with each other. Thus, the Shaheen

Bagh protest perhaps no longer remained the sole and empowering voice of

women, who also appeared to no longer have the ability to call off the protest

themselves. There was also the possibility of the protestors not fully realising the

ramifications of the pandemic, coupled with a general unwillingness to relocate to

another site.

11. We are conscious that we chartered a different path and thought of an out of

the box solution towards an effort which can loosely be called a mediation.

However, this did not produce a solution. But then, we have no regrets as we are of

the view that it is better to try and fail, than not to try at all!

12. The hand of God subsequently intervened and overtook the situation as not

only our country, but also the world grappled with the Coronavirus pandemic. This

pandemic, by its very definition, required coordination across the country and even

beyond the borders of our country. This resulted in repeated appeals of the

desirability of seclusion as a method to fight the disease. Greater wisdom prevailed

over the protestors at the Shaheen Bagh site and the site was cleared, albeit with

some police action to remove the aforementioned structures. The pandemic has,

however, not seen its end and we are still battling with the same. Thus, really

speaking, the reliefs in the present proceedings have worked themselves out.

13. We, however, pen down a few more lines for clarity on the subject on account

of its wider ramifications. Learned counsel for the applicants Mr. Mehmood

Pracha has sought to canvass that there was an absolute right of peaceful protest,

both in respect of space and numbers. He submitted that the right under Article

19(1)(a) and 19(1)(b) of the Constitution of India are only circumscribed by the

provisions of Clauses (2) & (3), and the only applicable aspect would be ‘public

order’, but such restriction must be reasonable in character. On the other hand, the

appellant herein sought to contend that such a situation should be avoided in the

future and some norms may be laid down.

14. Mr. Tushar Mehta, learned Solicitor General referred to judicial

pronouncements to rebut the case sought to be made out by the applicants. In

Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr.,

a challenge

was made to the rules framed by the Commissioner of Police, Ahmedabad, by the

powers conferred under Section 33(1)(o) of the Bombay Police Act, 1951. One of

these rules required prior permission to be taken for the holding of public

meetings. The Supreme Court opined that the State can only make regulations in

aid of the right of assembly of each citizen and can only impose reasonable

restrictions in the interests of public order. With regard to whether or not these

rules violated Article 19(1)(b) of the Constitution of India, it was held that while

the State cannot impose any unreasonable restrictions, a right to hold meetings on

public streets was subject to the control of the appropriate authority regarding the

time and place of the meeting and subject to considerations of public order.

However, as the rule requiring prior permission of the concerned authority did not

1 (1973) 1 SCC 227

contain any guidance as to when such permission to hold a public meeting may be

refused, it was found that the same conferred arbitrary powers and gave an

unguided discretion to the concerned authority, and this was accordingly held to be

ultra vires Article 19(1)(b) of the Constitution.

15. In Mazdoor Kisan Shakti Sangathan v. Union of India & Anr.,

this Court

was concerned with regulating the aspect of demonstrations in the earmarked space

by the concerned authorities at Jantar Mantar. The judgment endeavoured to

emphasise on the principle of balancing the interests of the residents in the area

vis-à-vis the interests of protestors to hold demonstrations at Jantar Mantar. The

concerned police authority was directed to devise a proper mechanism for the

limited use of the Jantar Mantar area for peaceful protests and demonstrations and

to lay down parameters for the same. With regard to the orders being passed under

Section 144 of the Code of Criminal Procedure, 1973 prohibiting activities like

holding public meetings, processions, etc. in areas in and around the Parliament

area, the Court noted that the tenor and language of such orders indicated that the

concerned authority was to examine every request and take a decision as to

whether it should or should not allow the proposed demonstration, public meeting

etc., keeping in view its likely effect, namely, whether it would cause any

obstruction to traffic, danger to human safety or disturbance to public tranquility,

2 (2018) 17 SCC 324

etc. However, as such orders were repeatedly being passed, the same were held to

amount to create a situation of perpetuity, and also amounted to what would be

equivalent to the “banning” of public meetings, demonstrations, etc. The police and

other concerned authorities were accordingly directed to formulate proper and

requisite guidelines for regulating protests in and around the area.

16. India, as we know it today, traces its foundation back to when the seeds of

protest during our freedom struggle were sown deep, to eventually flower into a

democracy. What must be kept in mind, however, is that the erstwhile mode and

manner of dissent against colonial rule cannot be equated with dissent in a selfruled democracy. Our Constitutional scheme comes with the right to protest and

express dissent, but with an obligation towards certain duties. Article 19, one of the

cornerstones of the Constitution of India, confers upon its citizens two treasured

rights, i.e., the right to freedom of speech and expression under Article 19(1)(a)

and the right to assemble peacefully without arms under Article 19(1)(b). These

rights, in cohesion, enable every citizen to assemble peacefully and protest against

the actions or inactions of the State. The same must be respected and encouraged

by the State, for the strength of a democracy such as ours lies in the same. These

rights are subject to reasonable restrictions, which, inter alia, pertain to the

interests of the sovereignty and integrity of India and public order, and to the

regulation by the concerned police authorities in this regard.3

Additionally, as was

discussed in the Mazdoor Kisan Shakti Sangathan case, each fundamental right, be

it of an individual or of a class, does not exist in isolation and has to be balanced

with every other contrasting right. It was in this respect, that in this case, an

attempt was made by us to reach a solution where the rights of protestors were to

be balanced with that of commuters.

17. However, while appreciating the existence of the right to peaceful protest

against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter

Lippmann, who said “In a democracy, the opposition is not only tolerated as

constitutional, but must be maintained because it is indispensable”), we have to

make it unequivocally clear that public ways and public spaces cannot be occupied

in such a manner and that too indefinitely. Democracy and dissent go hand in hand,

but then the demonstrations expressing dissent have to be in designated places

alone. The present case was not even one of protests taking place in an

undesignated area, but was a blockage of a public way which caused grave

inconvenience to commuters. We cannot accept the plea of the applicants that an

indeterminable number of people can assemble whenever they choose to protest.

Justice K.K. Mathew in the Himat Lal case4

had eloquently observed that “Streets

and public parks exist primarily for other purposes and the social interest

3 See In re Ramlila Maidan Incident, (2012) 5 SCC 1

4 (supra)

promoted by untrammeled exercise of freedom of utterance and assembly in public

street must yield to social interest which prohibition and regulation of speech are

designed to protect. But there is a constitutional difference between reasonable

regulation and arbitrary exclusion.”

18. Furthermore, we live in the age of technology and the internet where social

movements around the world have swiftly integrated digital connectivity into their

toolkit; be it for organising, publicity or effective communication. Technology,

however, in a near paradoxical manner, works to both empower digitally fuelled

movements and at the same time, contributes to their apparent weaknesses. The

ability to scale up quickly, for example, using digital infrastructure has empowered

movements to embrace their often-leaderless aspirations and evade usual

restrictions of censorship; however, the flip side to this is that social media

channels are often fraught with danger and can lead to the creation of highly

polarised environments, which often see parallel conversations running with no

constructive outcome evident. Both these scenarios were witnessed in Shaheen

Bagh, which started out as a protest against the Citizenship Amendment Act,

gained momentum across cities to become a movement of solidarity for the women

and their cause, but came with its fair share of chinks - as has been opined by the

interlocutors and caused inconvenience of commuters.

19. We have, thus, no hesitation in concluding that such kind of occupation of

public ways, whether at the site in question or anywhere else for protests is not

acceptable and the administration ought to take action to keep the areas clear of

encroachments or obstructions.

20. We are also of the view that the High Court should have monitored the

matter rather than disposing of the Writ Petition and creating a fluid situation. No

doubt, it is the responsibility of the respondent authorities to take suitable action,

but then such suitable action should produce results. In what manner the

administration should act is their responsibility and they should not hide behind the

court orders or seek support therefrom for carrying out their administrative

functions. The courts adjudicate the legality of the actions and are not meant to

give shoulder to the administration to fire their guns from. Unfortunately, despite a

lapse of a considerable period of time, there was neither any negotiations nor any

action by the administration, thus warranting our intervention.

21. We only hope that such a situation does not arise in the future and protests

are subject to the legal position as enunciated above, with some sympathy and

dialogue, but are not permitted to get out of hand.

22. We, accordingly, close these proceedings, once again expressing our

appreciation of the difficult roles played by the interlocutors.

23. The Civil Appeal stands disposed of, leaving the parties to bear their own

costs.

…………………………….J.

[SANJAY KISHAN KAUL]

…………………………….J.

[ANIRUDDHA BOSE]

…………………………….J.

[KRISHNA MURARI]

NEW DELHI.

OCTOBER 07, 2020.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, October 8, 2020

conditional premature release, subject to their continuing good conduct. - petitioners be released on probation in terms of Section 2 of the UP Prisoners Release on Probation Act, 1938

interesting issues about the interface between the fundamental right to travel abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail

Wednesday, October 7, 2020