Legal Case: Writ Petition No. 52 of 1962 - Supreme Court of India, Study notes of Integrated Case Studies

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COMPILATION OF SELECTED CASES

ON ARTICLE 142

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TEAM PROBONO INDIA

MARCH 2022

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“An Unjust Law is

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March 2022

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PREFACE “A judge is not a legislator in general but highlights how the judge does legislate new law in close cases to fill gaps between existing rules.”

- Benjamin Cardozo Resting on the same principle Article 142 is demarcated as the enforcement of decrees and orders of Supreme Court in the exercise of its jurisdiction as is essential for doing complete justice. Article 142 of the Constitution of India is supplementary in nature and cannot replace the substantive provisions, though they are not limited by the substantive provisions in the statute. It is an authority that gives preference to equity over law. It is a justice-oriented approach as contrary to the firm rigors of the law. These powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject. It is a problem solver in the nebulous areas, but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by the supreme court while making an order under Article 142. The extra ordinary powers under the article were brought about to bridge the gap created by an insufficient law so as to meet the ends of justice, grant of which is met out by passing an ‘enforceable decree or order’ by the Hon’ble Supreme Court. The very fact that the power is conferred only to SC and no one else, is itself an assurance that it will be used with due restraint and circumspection. It is necessary for the SC to provide strong and cogent reasons for exercising this discretionary jurisdiction as such powers are meant to be exercised in order to further the needs of justice. This power shall always be used judiciously to protect against the injustice that is conspicuous before the eyes of the court. It is a tool which must be used for avoid miscarriage of justice. I specially thank Dr. Kalpeshkumar Gupta for initiating this project and guiding the talented volunteers. With his tremendous support and encouragement, this project has been successfully completed. His zeal and enthusiasm kept us all together through the entire journey. The whole team would like to thank him for providing this opportunity.

ABBREVIATIONS ADV. Advocate ADR Alternative Dispute Resolution AGA Additional Government Advocate AIR All India Reporter AIIMS All Indian Institute of Medical Sciences ANR. Another ART., ARTS Article, Articles BCI Bar Council of India CCI Child Care Institutions CJI Chief Justice of India CL., CLS Clause, Clauses C.O. Constitution Order COI Constitution of India CPC Civil Procedure Code Crl Criminal CrPC Criminal Procedure Code CRL. REV. P. Criminal Review Petition DLSA District Legal Services Authority DSLSA Delhi State Legal Services Authority DPSP Directive Principles of State Policy FIR First Information Report GO Government Order GNCTD Government of National Capital Territory of Delhi GOVT. Government HC High Court Hon’ble Honorable IPC Indian Penal Code Ins. Inserted J. Justice No. Number

NOC No Objection Certificate Ors. Others PIL Public Interest Litigation PM Prime Minister Pt. Part Re. Reply Rep. Repealed Retd. Retired S.C. Supreme Court S.C.C. Supreme Court Cases Subs. Substituted Sch. Schedule S.C.R. Supreme Court Reporter Sec., ss Section, Sections SLP Special Leave Petition UOI Union of India U. P. Uttar Pradesh V. Versus WP Writ Petition Yrs. Years

Monica Kumar and Ors. V. State of U.P. and Ors. (AIR 2008 SC 2781) Quashing Criminal Proceedings under Article 142

Neeti Malviya V. Rakesh Malviya (2010 6 SCC 413) Exercising power under Article 142 to grant divorce

University of Kerala V. Councils of Principals of Colleges Kerala and Ors. (2011 14 SCC 357) Power of Supreme Court to intervene in Students’ Union Elections

Shahid Balva V. Union Of India ((2014) 2 SCC 687) Investigation under 2G Spectrum case and Article 142

BCCI

V.

Cricket Association of Bihar ((2015) 3 SCC 251) BCCI and Article 142 86

State of Tamil Nadu and Ors. V. V. K. Balu and Ors. (MANU/SC/1602/2016) Ban of Liquor on highways 95

R. Srinivas Kumar V. R. Sametha (2019 9 SCC 409) Dissolution of Marriage under Article 142

M. Siddiqui (D) Thr. Lrs. V. Mahant Surash Das and Ors. (2020 1 SCC 1) Babri Masjid - Ram Janma Bhoomi Case

Munish Kakkar V. Nidhi Kakkar (AIR 2020 SC 111) Irretrievable breakdown of marriage as a ground for divorce

Ramgopal and Anr. V. State of M.P. (2021 SCC OnLine SC 834) Quashing of Criminal Proceedings when the offenses are of private nature.

Ramawatar V. State of Madhya Pradesh (2021 SCC OnLine SC 966) Criminal Appeal for quashing Criminal Proceedings

Jatin Agarwal V. State of Telangana and Anr. (Criminal Appeal No. 456 of 2022, SC) Quashing of rape charge invoking Article 142

A. G. Perarivalan V. State, through Superintendent of Police CBI/SIT/MMDA, Chennai. Tamil Nadu and Anr. (Criminal Appeal No. 833, 834, 835 of 2022 , SC) Power of Supreme Court to grant pardon and set liberty forthwith 137

Naman Verma V. The Director, The Indian Institute of Technology, Bombay & Ors. (Civil Appeal No. 3886 of 2022, SC) Power of the Supreme Court to protect the Candidature

2 Legal Provisions Involved : Code of Criminal Procedure, 1973 - Section 307; Indian Penal Code, 1860 - Section 80, 300, 302, 304 ; Indian Evidence Act, 1872 - Section 103, Case Summary Prepared By : Urmi Shah, Gujarat National Law University, Gandhinagar

2. BRIEF FACTS OF THE CASE

• The accused, Nanavati, at the time of the alleged murder was second in command of the Indian Naval Ship Mysore. He married Sylvia in 1949 and had three children. Since the time of marriage, the couple was living in different places due to the exigencies of service of Nanavati. Finally, they shifted to Bombay. Same city in which deceased Ahuja was doing business of automobile and living with his sister. Ahuja was unmarried and was about 34 years of age at the time of his death.
• In the year 1956 Agniks who were common friend of Nanavati’s and Ahuja’s introduced Ahuja and his sister to Nanavati’s. Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and Sylvia, which culminated in illicit intimacy between them.
• At noon on April 27, 1959, when they were sitting in the sitting room for the lunch to be served, the accused put his arm around his wife affectionately, to which she seemed to go tense and unresponsive. After lunch, when he questioned her about her fidelity, she shook her head to indicate that she was unfaithful to him. He guessed that her paramour was Ahuja.
• As Sylvia did not even indicate clearly whether Ahuja would marry her and look after the children, he decided to settle the matter with him. Sylvia pleaded with him not go to Ahuja's house, as he might shoot him. Thereafter, he drove his wife, two of his children and a neighbor’s child in his car to a cinema, dropped them there and promised to come and pick them up at 6 P.M. when the show ended.
• He then drove his car to his ship, as he wanted to get medicine for his sick dog, he represented to the authorities in the ship that he wanted to draw a revolver and six rounds from the stores of the ship as he was going to drive alone to Ahmednagar by night, though the real purpose was to shoot himself. On receiving the revolver and six cartridges he put it inside a brown envelope.

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• Then he drove his car to Ahuja's office, and not finding him there, he drove to Ahuja's flat, rang the doorbell, and, when it was opened by a servant, walked to Ahuja's bed- room, went into the bed-room and shut the door. The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children. The deceased retorted, "Am I to marry every woman I sleep with?" The accused became enraged, put the envelope containing the revolver on a cabinet nearby,
• After altercation two shots were heard from which Ahuja died. After this Nanavati headed straight to confess to the Provost Marshal of the Western Naval Command and later turned himself over to the Deputy Commissioner of Police.
• The jury found him not guilty of murder which did not find favor with the Session Judge and he referred the case to Bombay High Court. The Bombay High Court dismissed the Jury’s decision and convicted Nanavati under section 302 and 304 Part 1 of IPC. So, the accused made an appeal before the SC and at the same time, he made an application to the governor under Art. 161.

3. ISSUES INVOLVED IN THIS CASE

I. Whether Nanavati shot Ahuja in the “heat of the moment” or whether it was a premeditated murder which will determine the conviction of Nanavati? II. Whether session court judge was correct in not agreeing with jury’s verdict and referring the case to High Court of Bombay? III. Whether the Special Leave Petition can be engaged without fulfilling the solicitation under Article 142 of the Indian Constitution [Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.]? IV. Whether the Pardoning force of Governor and Special Leave Petition can be moved together?

4. ARGUMENTS OF THE PARTIES

Petitioner The contention put forth by the counsel of Nanavati was that after hearing Sylvia’s confession, Nanavati wanted to kill himself, but Sylvia managed to calm him down. Sylvia did not tell him whether Ahuja wanted to marry her or not, he intended to find it out himself. So, he dropped his wife and two children at the cinema hall and drove his car to his ship, as he wanted

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5. LEGAL ASPECTS INVOLVED IN THE CASE

Indian Penal Code, 1860 ● Section 80 - Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. ● Section 300 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. ● Section 302 - Punishment for murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. ● Section 304 - Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intentions to cause death, to cause such bodily injury as is likely to cause death. Code of Criminal Procedure, 1973 ● Section 307 : If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of jurors, on all or any of the charges on which any accused person had been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case in respect of such accused person to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed, and in such case, if the accused is further charged under the provisions such charge as if such verdict had been one of conviction. Article 142 of Constitution of India ● Article 142 of Constitution of India deals with Enforcement of decrees and orders of the Supreme Court. It states that the Apex Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing “complete justice” in any case pending before it.

6 Article 161 of Constitution of India ● Article 161 grants the governor the power to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence”. The governor can do so for any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

6. JUDGEMENT IN BRIEF

Decision regarding Article 142 and Article 161 of Constitution of India The SLP was dismissed by the Supreme Court, by majority, holding that the appellant’s SLP could not be listed for hearing unless he surrenders under Article 142 (as per the judgement of HC). The appellant has made SLP and an application of pardoning power to the governor. The governor reduced his sentence. The SC held that SLP and pardoning power cannot operate together both are different. If SLP is filed then the power of governor in such condition will be ceased. Further court held that the Article 142 and 161 are different in nature. The two Articles are reconcilable and should be reconciled. The rule of statutory coexistence stated that it is sometimes found that the two-statute conflict, as their objective are different and language of each is restricted to its own object or subject, so they run parallel and never meet. No rule of construction can require that when the words of a statute convey the clear meaning, it shall be necessary to introduce another part of the statute which speak with less perspicuity and of which the word may be capable of such construction as by possibility to diminish the efficacy of the other provision of the Act. Under Article 142 unless the order of lower court doesn’t follow SC may not entertain the SLP and in Article 145 court has all power to make the Law to give justice. Decision regarding High Court’s power [Section 307 of CrPC] Judged by its historical background and properly construed, Section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than Section 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by virtue of the Code is essentially different from its appellate jurisdiction under other provisions of the code. The words "for the ends of justice"