Justice Dinesh Maheshwari

Abhorrent Nature of Crime Alone Cannot Be Decisive Factor to Award Death Sentence: SC

Commuting the death sentence awarded to a man convicted of raping and killing a minor, the court asked judges to also consider the mitigating factors in favour of life imprisonment.

New Delhi: The Supreme Court on Wednesday said the abhorrent nature of the crime alone cannot be the decisive factor for awarding the death sentence, asking judges to also consider the mitigating factors in favour of life imprisonment.

Delivering a judgment that may set a significant precedent, the top court commuted the death sentence awarded to a man for raping and murdering a seven-year-old girl to life imprisonment. “It cannot be said that there is no probability of the convict being reformed and rehabilitated,” the bench of Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar said.

According to The Hindu, Justice Maheshwari, who authored the judgment, referred to the “evolution of the principles of penology”, which had grown to accommodate the philosophy of “preservation of human life”.

The judge said though capital punishment serves as a deterrent and is sometimes handed out as a “response to the society’s call for appropriate punishment in appropriate cases”, the principles of penology have “evolved to balance the other obligations of the society, i.e., of preserving the human life” unless “termination thereof is inevitable and is to serve the other societal causes and collective conscience of society”, according to The Hindu.

The verdict says there exist other options, such as life imprisonment without remission or premature release.

The apex court, while upholding the man’s conviction for the offences including that of murder and rape under the Indian Penal Code and the provisions of the Protection of Children from Sexual Offences (POCSO) Act, said the convict shall not be entitled to premature release or remission before undergoing actual imprisonment for 30 years.

The bench delivered its verdict on the appeal against the October 2017 judgment of the Allahabad high court which had confirmed the death sentence awarded to the convict by the trial court.

The trial court had in December 2016 convicted the man for several offences and sentenced him to death for the offence under section 302 (murder) of the IPC.

The appellant was about 33-34 old at the time of the commission of the crime in 2015. Looking at the overall facts and circumstances, the Supreme Court said it would be “just and proper to award the punishment of imprisonment for life to the appellant for the offence under section 302 IPC while providing for actual imprisonment for a minimum period of 30 years”.

In its 98-page judgment, the bench noted that the appellant was accused of enticing a seven-year-old girl to accompany him on the pretext of picking fruits and thereafter raped her. The appellant had murdered her and dumped the body near a bridge on a riverbank.

The bench said both the trial court as also the high court had taken the abhorrent nature of the crime alone to be the decisive factor for awarding death sentence in the case.

“In other words, the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature,” it said.

The apex court said the heinous nature of the crime, like that in this case, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience.

It said at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family as well as unblemished jail conduct.

“When all these factors are added together and it is also visualised that there is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category,” it said.

“Putting it differently, when the appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated,” the bench said.

It said even when the case is taken to be not falling in the category of ‘rarest of rare’, the impact of the offences committed on the conscience of the society as a whole cannot be ignored.

While observing that the appellant was rightly convicted by the trial court and his conviction was rightly maintained by the high court, the bench said the sentence awarded, being of termination of natural life, requires closer scrutiny concerning the statutory requirements of section 354(3) of the CrPC as also the principles enunciated by the apex court.

Also Read: Seven Reasons Why We Shouldn’t Demand the Death Penalty for Rape

Referring to an earlier judgment delivered by the apex court on an appeal against conviction and death sentence awarded for rape and murder of a two-and-a-half-year-old girl, the bench noted that in that matter, a table of 67 cases decided by the Supreme Court over the past 40 years was perused.

The bench noted it was observed that when the offences were of sections 376 (rape) and 302 (murder) of the IPC and the age of the victim was under 16 years, capital punishment was confirmed in 15, but in three, it was later on commuted to life in review.

“It could readily be seen that while this court has found it justified to have capital punishment on the statute to serve as a deterrent as also in due response to the society’s call for appropriate punishment in appropriate cases but at the same time, the principles of penology have evolved to balance the other obligations of the society, i.e., of preserving the human life, be it of accused unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society,” it said.

Dealing with the case, the bench observed it is proved beyond doubt that the hapless child met with her gruesome end after having been treated inhumanely and having been subjected to sexual assault.

It noted that the victim was last seen in the company of the appellant and he has failed to satisfactorily explain his whereabouts and his knowledge of the location of the dead body.

The death sentence awarded to the appellant for the offence under section 302 IPC is commuted into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 (thirty) years, the bench said, while partly allowing the appeal filed by the convict.

(With PTI inputs)

SC Permits Resumption of Bullock Cart Race In Maharashtra

The SC was hearing a plea filed by Maharashtra which had sought that a ban on bullock cart race in the state should be lifted as the same is going on in states like Tamil Nadu and Karnataka.

New Delhi: The Supreme Court on Thursday allowed the resumption of bullock cart race in Maharashtra, which has been prohibited in the state since 2017.

The apex court observed that validity of the amended provisions of the Prevention of Cruelty to Animals Act, 1960 and the rules framed by Maharashtra, which provided for bullock cart race in the state, would operate during the pendency of the petitions as the entire matter has been referred to a constitution bench.

A three-judge bench headed by Justice A.M. Khanwilkar noted that no interim relief was granted earlier by the top court on the petitions challenging the validity of similar state amendment of Tamil Nadu and Karnataka where such races are going on.

“Same dispensation must apply to the amended provisions as applicable to the state of Maharashtra, which are similar to the amendment carried out in the other two states,” said the bench, also comprising Justices Dinesh Maheshwari and C T Ravikumar.

The apex court was hearing an application filed by the Maharashtra government which had sought that a ban on bullock cart race in the state should be lifted as the same is going on in states like Tamil Nadu and Karnataka.

The Maharashtra government had said that there is a prohibition on bullock cart race in the state as the Bombay high court, in its interim order, had refused to lift the ban in 2017, while there is no stay on the Acts concerned of the other two states.

In its order, the bench observed that the pleas challenging the validity of the state amendment of Tamil Nadu and Karnataka in this regard were fully heard by the apex court earlier and the issue was later referred to a constitution bench, but no interim relief was granted by the court.

“The validity of the amended provision of the Prevention of Cruelty to Animals Act, 1960 and the rules framed there under by the state of Maharashtra would operate during the pendency of the writ petition, as the entire matter has been referred to the constitution bench, including to consider the question as to whether the similar amended Act of the state of Tamil Nadu overcomes the defects pointed out in the two judgements of this court,” the bench said.

The top court said that this matter be heard along with the petitions pertaining to the states of Tamil Nadu and Karnataka.

It said that prayer for interim reliefs in the petition stand answered and need not be renewed before the top court unless there is change in circumstance.

Also read: More than Reclaiming a Rural Sport, the Jallikattu Protest is Symbol of Tamil Self-Assertion

“It will be open to the parties to request the Chief Justice for listing of the main matters referred to the constitution bench,” it said.

During the hearing, senior advocate Mukul Rohatgi, appearing for Maharashtra, told the bench that in 2017 Maharashtra had come with amendments to permit bullock cart race.

He said the rules were challenged in the high court which had stayed the operation of the rules by which the state wanted to hold bullock cart race under strict regulations.

Rohatgi said similar amendments were done in Tamil Nadu and Karnataka and when the matter came to the apex court, no bar was put on such race in those two states.

He said Maharashtra should be allowed to conduct bullock cart races in accordance with the 2017 rules.

While arguing the matter on Wednesday, Rohatgi had referred to an earlier order of the apex court, which had referred the pleas related to ‘Jallikattu’ to a five-judge constitution bench which would decide if the bull-taming sport fell under cultural rights or perpetuated cruelty to animals.

Jallikattu, also known as ‘eruthazhuvuthal‘, is a bull-taming sport played in Tamil Nadu as part of the Pongal harvest festival.

One of the advocates appearing in the matter had earlier told the apex court that bullock cart race was banned in Maharashtra on the grounds of cruelty to the animal.

(PTI)

Central Vista: SC Dismisses Plea Challenging Change In Land Use Of Plot

A bench headed by Justice A.M. Khanwilkar said that sufficient explanation has been offered by authorities concerned which justify the change in land use of the plot.

New Delhi: The Supreme Court on Tuesday dismissed a plea challenging the change in land use of a plot where the new official residence of the vice president will come up as part of the ambitious Central Vista project in Lutyens’ Delhi.

A bench headed by Justice A.M. Khanwilkar said that sufficient explanation has been offered by authorities concerned which justify the change in land use of the plot.

According to Livelaw, the petitioner’s counsel Shiv Shikhil Suri argued that the change of open green area to residential area is against public interest. About six acres of green area is proposed to be taken over, he submitted.

However, the bench responded saying, “They say that the area is proposed to be made into residential area for Vice President…it is a policy decision. How is it illegal? What are the malafides?”

“Assuming the plot was used for recreational area in the post, is it not open for the authorities to change for the holistic development of the area,” Justice Khanwilkar asked

“We find no reason to examine the matter further and therefore put a quietus to the entire controversy by dismissing this petition,” the bench, also comprising Justices Dinesh Maheshwari and C.T. Ravikumar, said.

The Central Vista revamp, announced in September 2019 envisages a new triangular Parliament building, with a seating capacity for 900 to 1,200 MPs, that is to be constructed by August 2022 when the country will celebrate its 75th Independence Day.

The common Central Secretariat is to be built by 2024 under the project that covers a three-km stretch from Rashtrapati Bhavan to India Gate in the national capital.

The apex court was hearing a petition challenging the change in land use of plot number one from recreational area to residential.

(with inputs from PTI)

Supreme Court Slams ‘Inordinate Delay’ by Government Authorities in Filing Appeals

The bench said a preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by.

New Delhi: The Supreme Court has deprecated the inordinate delays by government authorities in filing appeals before it and said they must pay for wastage of judicial time and such costs can be recovered from officers responsible.

A bench headed by Justice S.K Kaul said the apex court cannot be a place for the governments to walk in when they choose to ignore the period of limitation prescribed in the statute.

We have raised the issue that if the government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for government authorities because of their gross incompetence. That is not so, said the bench, also comprising Justice Dinesh Maheshwari.

Till the statute subsists, the appeals/petitions have to be filed as per the statues prescribed, the bench said in its order while dealing with an appeal filed by Madhya Pradesh after a delay of 663 days.

The top court noted the explanation given in the application for condonation of delay which stated that it was due to unavailability of documents and process of arranging them and also that in bureaucratic process works, it is inadvertent that delay occurs.

We are constrained to pen down a detailed order as it appears that all our counselling to government and government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the governments to walk in when they choose to ignore the period of limitation prescribed, it said.

The bench said a preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by.

If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the court in an appropriate case to condone the delay, it said.

The bench noted that such approach is being adopted and the object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest court has dismissed the appeal.

It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement, it said.

The purpose of coming to this court is not to obtain such certificates and if the government suffers losses, it is time when the concerned officer responsible for the same bears the consequences, the bench noted.

Also read: SC Appoints Justice Madan B. Lokur as One-Man Panel to Help Prevent Stubble Burning

The top court said no action is taken against the officers, who sit on the files and do nothing, and it is presumed that the court would condone the delay.

We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the government or state authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible, the bench said.

It noted in its order that no doubt, some leeway is given for government inefficiencies but the sad part is that authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the government.

The bench, which dismissed the appeal on the ground of delay, imposed a cost of Rs 25,000 on Madhya Pradesh and said it be deposited within four weeks with the Mediation and Conciliation Project Committee.

The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this court within the said period of time, it said.

The bench made it clear that if its order is not complied within time, it would be constrained to initiate contempt proceedings against the chief secretary of the state.

Riots: Delhi Assembly Panel Acting Against Facebook Without Jurisdiction, Centre Tells SC

Solicitor General Tushar Mehta submitted that “public order and police are not within the domain of the Delhi Legislative Assembly.”

New Delhi: The Centre Thursday told the Supreme Court that proceedings of the Delhi Assembly’s Peace and Harmony committee, which has summoned Facebook India VP and MD Ajit Mohan to appear as a witness in connection with the north-east Delhi riots, is without jurisdiction as the issue pertained to law and order.

Solicitor General Tushar Mehta submitted before a bench of Justices S.K. Kaul and Dinesh Maheshwari that “public order and police are not within the domain of the Delhi Legislative Assembly and therefore this proceeding is without jurisdiction.

The apex court, which said that its September 23, 2020, order asking the assembly’s panel not to take any coercive action against Mohan, would continue.

The bench, which posted the matter for arguments on December 2, 2020, was hearing a petition filed by Mohan and Facebook against the summons issued by the committee.

The plea filed by Mohan, Facebook India Online Services Pvt. Ltd and Facebook Inc. has contended that the committee lacks the power to summon or hold petitioners in breach of its privileges for failing to appear and it was exceeding its constitutional limits.

They have challenged the September 10 and 18, 2020, notices issued by the committee that sought Mohan’s presence before the panel which is probing the Delhi riots in February and FB’s role in the spread of alleged hate speeches.

The Delhi assembly has recently told the top court that no coercive action has been taken against Mohan and he was only summoned by its Peace and Harmony committee to appear as a witness in connection with north-east Delhi riots.

During the hearing conducted on Thursday through video-conferencing, senior advocate A.M. Singhvi, appearing for the Delhi Legislative Assembly, said that Mohan has been called as a witness only.

Senior advocate Harish Salve, appearing for the petitioner, raised question over the jurisdiction of the committee and said that Mohan is not willing to appear before it.

Allegations are being made that Facebook has promoted disharmony in Delhi. Facebook does not write anything. It provides a platform, Salve said, adding that Facebook is regulated by a central law.

The bench, after hearing the submissions, said the prima facie issue is regarding the jurisdiction and power of Delhi assembly.

Also read: Amidst Report of Facebook ‘Network’ Influencing Delhi Polls, FB Skips Assembly Panel Hearing

The apex court said that affidavits, if any, be filed by October 31, 2020, and the matter would be heard on December 2, 2020.

In an affidavit filed recently in the top court, the Delhi Assembly has said that Mohan has not been issued any summons for breach of privilege.

It has said, No coercive action has been taken against petitioner number 1 (Mohan) and none was intended if he merely attended and participated in the proceedings as a witness. It is also important to note that the proceedings are being conducted in the most transparent manner with the live broadcast and therefore there is no question of any apprehension in respect of the proceedings either by the Petitioner No. 1 or anyone else.

There is no notice to the Petitioner No.1 (Mohan) asking him to appear before this Committee of Respondent No.1 (Assembly) for a breach of privilege or contempt of the Committee. It has not been alleged at any time by the Committee of Respondent No.1 that the Petitioner has already committed a breach of privilege, the affidavit has said.

It added that there is no occasion for the Committee to report to the Speaker about Mohan having committed any breach of privilege.

It said that the procedure for breach of privilege is separate and that stage had not as yet been reached and even the mention of it was made for the first time in a communication dated September 18, 2020, in light of the refusal of Mohan pursuant to validly issued summons September 10, 2020.

It said that the Peace and Harmony committee of the assembly had received multiple complaints/representations addressed to its chairman Raghav Chadha, underscoring the alleged instances of inaction/inability on the part of social media platform-Facebook to enforce its policies against inflammatory and hateful contents.

Gujarat Violence: SC to Hear Zakia Jafri’s Plea Against Clean Chit to Modi on April 14

Ehsan Jafri, an MP, was among the 68 people killed at Gulberg Society on February 28, 2002.

New Delhi: Saying the matter had been adjourned many times and it will have to hear it someday, the Supreme Court on Tuesday fixed April 14 for hearing a plea by Zakia Jafri, wife of slain MP Ehsan Jafri, challenging the Special Investigation Team’s (SIT) clean chit to then Gujarat chief minister Narendra Modi in the 2002 violence.

A bench comprising Justices A.M. Khanwilkar and Dinesh Maheshwari posted the matter for hearing in April after Zakia’s counsel sought an adjournment and urged the court to post it after the Holi vacation.

When advocate Aparna Bhat, appearing for Zakia, told the court that the issue in the matter is contentious, the bench said, “It has been adjourned so many times, whatever it is, we will have to hear it someday. Take one date and make sure you all are available.”

Zakia had filed a petition in the apex court in 2018 challenging the Gujarat high court’s October 5, 2017 order rejecting her plea against the decision of the SIT.

Ehsan Jafri was among the 68 people killed at Gulberg Society on February 28, 2002, a day after the S-6 Coach of the Sabarmati Express was burnt at Godhra killing 59 people and triggering violence in Gujarat.

On February 8, 2012, the SIT filed a closure report giving a clean chit to Modi and 63 others, including senior government officials, saying there was “no prosecutable evidence” against them.

Amid Controversy, Justices Maheshwari and Khanna Sworn In as SC Judges

Chief Justice Ranjan Gogoi administered the oath of office in court number 1 of the apex court.

New Delhi: Justices Dinesh Maheshwari and Sanjiv Khanna were sworn in as Supreme Court judges on Friday.

Chief Justice of India Ranjan Gogoi administered the oath of office to Justices Maheshwari and Khanna during the swearing-in ceremony held in court number 1 of the apex court.

The sanctioned strength of judges in the Supreme Court is 31. With the swearing-in of the two justices, it is now 28.

While Justice Maheshwari was the chief justice of the Karnataka high court, Justice Khanna was a judge in the Delhi high court.

The government had on Wednesday notified the appointment of justices Maheshwari and Khanna.

The five-member Supreme Court collegium, comprising CJI Gogoi and justices A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra, had on January 10 recommended the elevation of Justices Maheshwari and Khanna to the apex court.

Also Read: Amid Collegium Row, Centre Elevates Justices Sanjiv Khanna, Dinesh Maheshwari to SC

The chief justices of the Rajasthan and Delhi high courts, Justices Pradeep Nandrajog and Rajendra Menon respectively, were considered by the collegium on December 12, 2018 for elevation, but the deliberation remained inconclusive. One of the members of the collegium, Justice M.B. Lokur, retired on December 30, 2018.

His place in the collegium was taken by Justice Arun Mishra.

The new collegium, on January 10, ignored the prospect of elevation of justices Nandrajog and Menon.

The Bar Council of India (BCI) on Wednesday protested the collegium’s recommendation to elevate Justice Khanna by superseding several other judges and termed the decision “whimsical and arbitrary”.

Before the BCI’s protest, Supreme Court judge Sanjay Kishan Kaul also wrote a note to the CJI and the collegium’s other members for ignoring the seniority of justices Nandrajog and Menon.

Sources said Justice Kaul was of the view that a wrong signal would be sent if the two chief justices, who were senior to Justice Khanna, were not elevated as apex court judges.