‘In our view, the Single Judge ought to have first set out the brief facts of the case with a view to understand the factual matrix of the case.’

 “Now, what I want is Facts”, this is how Charles Dickens starts his novel ‘Hard Times’.

On Monday, the Supreme Court bench headed by Justice Abhay Manohar Sapre set aside four orders passed by the Allahabad High Court in different criminal petitions as those did not contain ‘facts’ of the case.

The bench, also comprising of Justice Indu Malhotra, observed that the high court in these orders has not even referred to the facts of the case, and it only quotes the decisions of the Supreme Court.

“We find that the Single Judge has only quoted the principles of law laid down by this Court in several decisions relating to powers of the High Court to interfere in the cases filed under Section 482 of the Code from Para 2 to the concluding para but has failed to even refer to the facts of the case with a view to appreciate the factual controversy, such as, what is the nature of the complaint/FIR filed against the appellants, the allegations on which it is filed, who filed it, the grounds on which the complaint/FIR/proceedings is challenged by the appellants, why such grounds are not made out under Section 482 of the Code etc. We are, therefore, at a loss to know the factual matrix of the case much less to appreciate except to read the legal principles laid down by this Court in several decisions,” remarked the bench.

The court observed that the single bench of the high court ought to have first set out the brief facts of the case with a view to understand the factual matrix of the case and then examined the challenge made to the proceedings in the light of the principles of law laid down by this court and then recorded his finding as to on what basis and reasons a case is made out for any interference or not.

“This is the least that is required in every order to support the conclusion reached for disposal of the case. It enables the Higher Court to examine the question as to whether the reasoning given by the Court below is factually and legally sustainable,” it said.

The bench then remanded the case to the high court for deciding it afresh.

Last year also, the apex court had set aside a Rajasthan High Court judgment which did not set out even the factual controversy nor dealt with the submissions urged by the parties before it and nor did it examine the issues in the context of relevant provisions of the Act that governed the controversy.

In another instance, the Supreme Court bench headed by Justice Sapre found fault with Madhya Pradesh High Court order which started with the narration of facts of the case but contained no reason for its decision.

The Supreme Court on Tuesday required the High Courts of Bihar and Kerala to dispose of on a priority basis pending criminal matters in which existing or former legislators are implicated and to this end, designate as many Sessions and Magistrate’s courts in each district as Special Courts as it may be deem necessary.

The bench Chief Justice Ranjan Gogoi and Justices S. K. Kaul and K. M. Joseph was hearing the plea filed by advocate and BJP leader Ashwani Kumar Upadhyay to provide adequate infrastructure for setting up Special Courts to decide criminal cases against people’s representatives, public servants and members of the judiciary.

Pointing out that there are 4122 cases pending against current (2324) and former (1675) MPs and MLAs, amicus curiae Vijay Hansaria had suggested that one particular court at Sessions and Magisterial level in each district, to try criminal cases involving legislators, be nominated.

These Special Courts, he said, should hear the cases on a day to day basis, without grant of adjournment, except in rare and exceptional cases, and for reasons to be recorded. Additionally, he has also recommended the cases to be tackled on the basis of the cases to be tackled on the basis of a hierarchy, with cases involving offences punishable with imprisonment for life or capital punishment against sitting MPs and MLAs being taken up first.

Furthermore, he has suggested that each Special Court be ordered to submit a monthly status report to the respective high court. He has also requested that high courts be directed to furnish updated information on the progress made on the cases after four months to the Supreme Court as well as to him.

“Considering the facts and circumstances of the case, in our considered view, in the interest of justice proviso to Section 27(b)(ii) of the Act can be invoked and the sentence of imprisonment of one year imposed upon the respondent is reduced to three months.”

The Supreme Court has reduced the sentence of one-year imprisonment to three months to a medical shop owner who stored certain drugs without a valid drug licence taking into account his plea that he was not aware that he has to obtain such a licence for sale of drugs.

The bench comprising Justice R. Banumathi and Justice Indira Banerjee restored the conviction of an accused under Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940, by setting aside the high court judgment that had set it aside.

Under Section 18(c) of the Drugs and Cosmetics Act, the licence is required for sale of any drug. Under Section 18(c) of the Act, stocking or storing of drugs for sale cannot be done without a licence. The accused was charged for having stored drugs for sale without a licence.

The bench observed that as the accused had stocked the drugs and was selling the same without a licence, there was a violation of Section 18(c) of the Act which is punishable under Section 27(b)(ii) of the Act. It also noted that the accused had admitted the contraventions by stating that he was not aware of the procedure to obtain the licence and had apologised for the mistake and requested to issue the licence.

Taking this into account, the bench said: “Insofar as the sentence of imprisonment, the offence under Section 18(c) of the Act punishable under Section 27(b)(ii) of the Act which prescribes minimum sentence of imprisonment for one year and minimum fine of rupees five thousand. As per proviso to Section 27(b)(ii) of the Act, for any adequate and special reasons to be recorded in the judgment, court may impose the sentence of imprisonment for a term less than one year and a fine of less than five thousand only. In this case, the offence was committed in the year 2008, about ten years back. The respondent was not having any prior conviction under the Act. As pointed out earlier, in his statement, respondent had stated that he was not aware that he has to obtain a licence for sale of drugs. Considering the facts and circumstances of the case, in our considered view, in the interest of justice proviso to Section 27(b)(ii) of the Act can be invoked and the sentence of imprisonment of one year imposed upon the respondent is reduced to three months.”

The Supreme Court Tuesday allowed the Income Tax Department to reopen the tax assessment of top Congress leaders Rahul and Sonia Gandhi for 2011-12 in connection with the National Herald case.

The apex court, however, restrained the I-T department from implementing its order in the proceedings against Rahul, who is the Congress president, and his mother Sonia till the pendency of the matter before the court.

The court also said it was not expressing any opinion on the merits of the pleas filed by Rahul and Sonia Gandhi in the case

The tax matter is related to the National Herald case in which the Congress leaders are also facing criminal proceedings.

A bench headed by Justice A K Sikri posted the matter for further hearing on January 8 next year.

Solicitor General Tushar Mehta, appearing for the I-T department, said the court should not restrain it from implementing the assessment orders against the Gandhis and others.

He said the court should hear the matter and pass appropriate orders.

The Gandhis and senior Congress leader Oscar Fernandes have challenged the Delhi High Court's September 10 verdict by which their plea against the re-opening of their tax assessments for 2011-12 was dismissed.

(This story has not been edited by LiveLaw and is from PTI feed)

The Supreme Court on Tuesday asserted that an order of acquittal cannot be interfered with on the ground that a different view was possible on the basis of evidence available on record.

A bench comprising Justice L. Nageswara Rao and Justice R. Subhash Reddy asserted, “Interference with an order of acquittal is not permissible on the ground that a different view is possible. If the acquittal is justified on a probable view taken by the trial court, it should not be interfered with.”

The court was hearing appeals challenging a judgment passed by the Patna High Court, which had reversed the order of acquittal of the appellants, holding them guilty of murder.

The reasons given by the trial court for the appellants’ acquittal included delay in lodging the FIR, untrustworthy eye witnesses, improbability of identification of the accused, non- examination of independent witnesses, previous enmity between the accused and the witnesses, non-production of important prosecution witnesses and improper investigation of the case.

The high court had, however, opined that apart from minor inconsistencies, the evidence of the eye witnesses was reliable, and that the delay in filing the FIR was not fatal to the prosecution case.

On an overall consideration of the case, the Apex Court agreed with the trial court instead, and opined that the high court ought not to have interfered with the trial court’s verdict. It explained, “Though the High Court was aware of the well-settled principles of law in matters relating to appeals against acquittals, it failed to apply the same in their proper perspective…

“…The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted.”

The court further pointed out that the high court had failed to take note of the fact that presumption of innocence in favour of the appellants had been strengthened by an order of acquittal.

The appeals were therefore allowed, and the high court judgment was set aside.

Read the Judgment here

“Before parting, we cannot resist observing that having rightly formed an opinion to remand the case to the First Appellate Court, there was no need for the High Court to devote 60 pages in writing the impugned order.”

Brevity being a virtue, it must be observed as far as possible while expressing an opinion, remarked a Supreme Court bench while disposing of an appeal against a 60-page ‘remand order’ by the Himachal Pradesh High Court.

The high court, in its order, had included facts in detail and it also reproduced observations made in several judgments and finally remanded the matter to the court below. It had directed the first appellate court to decide the first appeal and cross objection afresh on merits in accordance with law.

The bench comprising Justice Abhay Manohar Sapre and Justice Indu Malhotra upheld the order of remand made by the high court.

The bench, noticing the contents of the order, said: “Before parting, we cannot resist observing that having rightly formed an opinion to remand the case to the First Appellate Court, there was no need for the High Court to devote 60 pages in writing the impugned order. In our view, it was not required.”

The court opined that the examination could be confined only to the issue of remand and not beyond it.  At the same time, there was no need to cite several decisions and that too in detail.  Brevity being a virtue, it must be observed as far as possible while expressing an opinion, it added.

“In the present case, arbitration proceedings commenced way back in 2013, much prior to coming into force of the amended Act and therefore, provisions of the Amended Act cannot be invoked.”

The Supreme Court has reiterated that any challenge to the arbitrator appointed should be raised before the arbitrator himself under Section 13 of the Arbitration and Conciliation Act 1996, in the first instance and thereafter under Section 34 of the Act.

The bench comprising Justice R. Banumathi and Justice Indira Banerjee was considering high court order that held that the appointment of arbitrator could not be challenged by way of an application under Section 11(6) of the Act.

 SP Singla Constructions Pvt. Ltd. raised a dispute and requested for the appointment of an arbitrator. The arbitrator (Superintendent Engineer) entered upon a reference on 11.11.2013. After several adjournments at the instance of the contractor, arbitration proceedings were terminated by the arbitrator under Section 25(a) of the Act.

Thereafter, the contractor filed a petition before the high court under Section 11(6) of the 1996 Act praying for the appointment of an independent arbitrator. The high court dismissed the plea holding that any party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement by other party/parties, his remedy would be by way of a petition under Section 13 of the Act, and, thereafter while challenging the award under Section 34 of the Act.

This order was assailed before the apex court raising the issue whether in the light of the agreement between the parties in Clause (65) of the general conditions of the contract, the contractor can challenge the appointment of the Superintendent Engineer, Arbitration Circle, as an arbitrator to resolve the dispute between the parties.

It was contended that the wordings in Clause (65) “that the agreement is subject to any statutory modification or re-enactment thereof and the rules made thereunder and for the time being shall apply to the arbitration proceeding under this clause” would certainly attract Section 12(5) of the Act as amended with effect from 23.10.2015, which bars appointment of a departmental arbitrator.

Senior Advocate Maninder Singh also relied on Delhi High Court judgment in Ratna Infrastructure Projects Pvt. Ltd. v. Meja Urja Nigam Private Limited wherein interpreting the similar words in a contract, the Delhi High Court had held that those words satisfy the requirement of Section 26 (amended Act of 2015) of there being an agreement between the parties that the Act as amended with effect from 23.10.2015 will apply.

2015 amendment can’t have retrospective operation

But the bench rejected this contention and said: “We are not inclined to go into the merits of this contention of the appellant nor examine the correctness or otherwise of the above view taken by the Delhi High Court in Ratna Infrastructure Projects case; suffice it to note that as per Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 the provisions of the Amended Act, 2015 shall not apply to the arbitral proceedings commenced in accordance with the provisions of Section 21 of the Principal Act before the commencement of the Amendment Act unless the parties otherwise agree. In the facts and circumstances of the present case, the proviso in clause (65) of the general conditions of the contract cannot be taken to be the agreement between the parties so as to apply the provisions of the amended Act. As per Section 26 of the Act, the provisions of the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after the date of commencement of the Amendment Act, 2015 (w.e.f. 23.10.2015). In the present case, arbitration proceedings commenced way back in 2013, much prior to coming into force of the amended Act and therefore, provisions of the Amended Act cannot be invoked.”

Agreeing with the high court view that petition under Section 11 would not be maintainable, the bench observed: “In the present case, the Arbitrator has been appointed as per clause (65) of the agreement and as per the provisions of law. Once, the appointment of an arbitrator is made at the instance of the government; the arbitration agreement could not have been invoked for the second time.”

However, the bench noticed that the arbitrator could have issued a notice warning the contractor that no adjournment would be granted under any circumstances. The bench then set aside the proceedings of the arbitrator terminating the arbitral proceedings and directed the Chief Engineer, Himachal Pradesh Public Works Department, to appoint an arbitrator in terms of Clause (65) of the agreement.

Read the Judgment Here

The Supreme Court has granted interim protection from arrest to a ‘rape’ accused who later married the victim.

Jaigopal Saiyam was accused of kidnapping a girl and committing rape on her repeatedly. He had approached the Madhya Pradesh High Court seeking anticipatory bail on the ground that he married with the prosecutrix and they were living together.

Rejecting his bail plea, the high court had agreed with the public prosecutor who resisted the plea contending that merely on the ground that he has married with the prosecutrix, he cannot be treated liberally.

A special leave petition filed against this order came for admission before the bench comprising of Justice Banumathi and Justice Indira Banerjee.

Hearing the counsel, the bench ordered: “The petitioner is said to have got married the prosecutrix. Issue notice. There shall be interim protection from arrest to the petitioner, until further orders from this Court.”

Soft Approach?

It is pertinent to recollect that, in July 2015, the Supreme Court had pronounced a judgment in which it categorically observed that in a case of rape or attempt of rape, the concept of compromise under no circumstances can really be thought of.

“Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error,” it was observed in State of MP vs. Madanlal. 

Even after this judgment, some high courts have even quashed rape cases recording the factum of marriage between rape accused and victim. Some others have reduced the sentence imposed on the accused to period already undergone.

The Supreme Court, on Tuesday, slapped a fine of Rs. 1 lakh on five States—Andhra Pradesh, Odisha, Arunachal Pradesh, Meghalaya and Jammu and Kashmir, and Rs. 2 lakh on the Government of NCT of Delhi in a matter related to the implementation of the mid-day meal scheme in schools.

These States had failed to create an online link, along with a chart, meant for monitoring the implementation and hygiene of mid-day meal scheme in government-run schools.

The direction was issued by a bench comprising Justice MB Lokur, Justice Deepak Gupta and Justice Hemant Gupta on a plea filed by NGO ‘Antarrashtriya Manav Adhikaar Nigraani Parishad’.

The PIL, filed in 2013, has claimed that while over 12 lakh government-run and aided schools across the country provide children with lunch everyday, “they are constantly exposed to the risk of food poisoning and related health hazards due to a lack of mid-day meal infrastructure and proper monitoring of the scheme”.

In view of this petition, the Apex Court had, on March 23 last year, directed the State governments and Union Territories to upload information, including the total number of students getting the benefit of the mid-day meal scheme, within three months on their websites.

During the hearing on Tuesday, the court asserted that the midway day meal scheme is not being taken “seriously” by several States. The observation was made after the court noted that many of the States have not supplied data to it on the same, and that it has been alleged that the benefit of the scheme is not reaching the children as food grain keeps disappearing.

Visibly miffed at the lack of cooperation by the States, the court observed, “We have been trying to get the States to render assistance and to upload all the data so that necessary corrective steps can be taken from time to time. In spite of several of our orders, there has been little or no co-operation from some of the States.”

It further noted that on October 26, the States of Andhra Pradesh, Arunachal Pradesh, Meghalaya and Odisha had assured it that they will comply with the requirements of the scheme and will provide it with a functioning link to such website. They had, however, failed to do so.

This, the court said, left it with no option, but to impose costs of Rs. 1 lakh on these States, asserting, “More than a month has gone by and there has been absolutely no progress made by these States. Since the States have not supplied the necessary links or the details which are required for effective implementation of the Scheme, we have been left with no option but to impose costs for this totally unnecessary adjournment and for effectively denying benefits to the children of their States to which they are entitled.”

As for the State of Jammu and Kashmir, the court noted that while a link had been provided, it is not working.

“We do not see the value of a link that does not work,” the court then observed, imposing a fine of Rs. 1 lakh on Jammu and Kashmir government as well.

As regards the NCT of Delhi, the court noted that no one was present on its behalf on the last date of hearing, and that no information had been made available on Tuesday as well. It therefore ordered, “We, therefore, impose costs of Rs.2,00,000/- (Rupees Two lacs only) to be deposited with the Supreme Court Legal Services Committee within four weeks from today for juvenile Justice issues.”

The matter will next be heard after four weeks.

Read the Order here

“The above observation in the impugned judgment be deemed to have been effaced from the record for all purposes in terms of this order, to which both the parties have no objection. We order accordingly.”

The Supreme Court on Monday ordered that the observation made by the Uttarakhand High Court restraining political parties from criticizing Electronic Voting Machines (EVMs) used in elections to state assemblies would be deemed to have been effaced from the record for all purposes.

The Uttarakhand High Court, criticizing the tendency to question the credibility of the Election Commission of India by leveling ‘unsubstantial allegations’ vis-à-vis electronic voting machines, had restrained all political parties and non-governmental organisations (NGOs) and individuals from criticizing the use of EVMs in the elections to the state assemblies even by approaching the electronic media, press, radio, Facebook, Twitter etc., till the decision of the election petitions filed in that regard.

The high court had dismissed a PIL filed by a Congress party leader observing that the uncalled-for criticism of the functioning of the Election Commission has a deleterious effect on its functioning and the same may result in lowering its morale.

The apex court bench comprising Justice AM Khanwilkar and Justice Hemant Gupta, while considering the SLP filed against this order, observed that it agrees with the high court, thus dismissing the plea.

The Election Commission of India expressed no objection to efface the following observation made by the high court: “We, however, in the larger public interest restrain all the recognized National Political Parties, recognized State Political Parties, other political parties, Non-governmental Organizations (NGOs) and individuals from criticizing the use of EVMs in the recently conducted elections of the State Assemblies even by approaching the Electronic Media, Press, Radio, Facebook, Tweeter etc. till the decision of the election petitions.”

The apex court bench observed: “The above observation in the impugned judgment be deemed to have been effaced from the record for all purposes in terms of this order, to which both the parties have no objection. We order accordingly.”

Read the Order Here

The Allahabad High Court, on Monday, came down heavily on a lawyer, Ranjana Agnihotri, who, it said, was making orchestrated attempts at maligning the judges of the bench hearing her matter.

The lawyer had played an audio clip during the hearing of a case filed by her father and being handled by her, soon after the bench hearing it expressed reservations over the maintainability of the petition. This clip contained allegations that one of the judges on the bench, Justice Vikram Nath, had been compromised.

However, having concluded that this was just an unscrupulous tactic to get the matter released from the bench, the bench comprising Justice Nath and Justice Rajesh Singh Chauhan now observed,

“She is a Lawyer and part of the judicial system. Still she did not realize the effect and aftermath of her conduct by making an orchestrated attempt of maligning the Judges of the Bench. She has a standing of 22 years but still she had the courage and audacity to try all efforts to, somehow or the other, get the matter released from this Bench which had expressed an adverse opinion in the matter.”

The court in fact opined that this was a fit case for lodging a criminal case or initiating criminal contempt proceedings against the erring lawyer-litigant. It, however, refrained from doing so, on account of intervention of senior lawyers, including the Chairman, Elders' Committee, Oudh Bar Association.

Nevertheless, it directed the Registry to send a copy of the order to (i) the President, Oudh Bar Association for appropriate action; (ii) the Chairman of the U.P. Bar Council for taking appropriate action; and (iii) the Registrar General at Allahabad and Senior Registrar at Lucknow for placing the order before the Committee dealing with the Advocates on Roll, for appropriate action.

The dispute related to a land situated in Lucknow and recorded in the name of the deceased petitioner- Rajendra Kant Agnihotri, Ms. Agnihotri’s father.

The then Tehsildar Rajesh Kumar Shukla (one of the respondents) had initiated an enquiry regarding the genuineness of the record entries, as he had received complaints that the land belonged to the Gram Sabha and that Mr. Agnihotri had fraudulently gotten it recorded in his name. The inquiry report submitted by Mr. Shukla confirmed such suspicions.

A writ petition was then filed by Mr. Agnihotri before the Lucknow bench of the court, demanding quashing of this report as well as the notice issued to him pursuant to the report.

The petition was initially taken up in April, 2008 and was adjourned several times over a period of nine years. Thereafter, in May, 2017, the court was informed that an application under Clause 14 of the United Provinces High Courts (Amalgamation) Order, 1948 had been moved by now wheelchair driven Mr. Shukla, for transferring the case to Allahabad.

As per the order, when the matter was being deliberated upon on August 14 this year, Ms. Agnihotri stood up at least five times to address the court, which then allowed her to express herself.

With the court’s permission, she went on to play an audio recording on her phone, in the presence of 25 to 30 lawyers and the court staff. The recording was a conversation between Ms. Agnihotri and another lawyer, Mr. Rahul Srivastava, who was informing her of an overheard conversation between Mr. Shukla and another lawyer, Mr. Digvijay Nath Dubey.

In the recording, Mr. Srivastava was heard saying that Mr. Shukla claimed to have already won over Justice Nath. Taking note of this recording, the court directed Ms. Agnihotri to provide a transcript of the conversation, and the audio-clip on a pen-drive, along with an application, so that appropriate orders could be passed for a CBI inquiry into the matter.

Ms. Agnihotri, however, then prayed that CBI inquiry may not be ordered, but demanded that the matter be not heard by the same bench.

After reaching the Chamber, the court felt that instead of waiting till the next day, the mobile phone carrying the conversation may be taken into custody by the Senior Registrar or the security in-charge of the Lucknow Bench.

Accordingly, the court called for Ms. Agnihotri, as well as Senior Advocates and the Chairman and Members of the Elders Committee, which was in-charge of the Oudh Bar Association. In the meantime, several other judges also arrived, and were all informed about the developments in the case.

However, when Ms. Agnihotri was directed to play the audio recording again, she made several excuses, and was also caught recording the conversation going on in the chambers at that time. While she did tender an unconditional apology later, the court had already been left utterly miffed at the entire episode.

It, therefore, detailed the incident in its order, “so that neither Ms. Ranjana Agnihotri, Advocate nor any other Lawyer, who are part of the system, try to play truant and mischief with the system, bringing it a bad name and an attempt to lower the majesty of the Court by falsely maligning the Judges.”

The order also emphasised on Ms. Agnihotri’s intention behind the entire charade, asserting that this was just her attempt at making sure that the same bench does not hear her case.

“This is a glaring case where an unscrupulous litigant who is also an Advocate has tried all efforts to ensure that the matter may not be heard by a Bench which had expressed its reservations about the maintainability of the petition, so that the matter may be carried to some other Court, where the party may have a chance to get some favourable orders or to continue Bench hunting, till such time a favourable one is found. The petitioners are enjoying the interim order for the last more than ten years. Their entire attempt is to somehow keep the case pending, by hook or by crook,” it observed.

Lastly, the bench was faced with the dilemma between choosing to hear the matter or releasing it.

“We are in a fix. If we release the matter, the petitioner succeeds in her game and that too at the cost of maligning Members of the Bench. If we proceed to hear the matter and decide it either way, the decision would be called biased, impacted by the incident,” it observed.

The court, however, decided to release the matter, but not without requesting the Chief Justice to consider the transfer of all applications to Allahabad High Court for disposal. In doing so, the bench recorded its firm belief that “similar kind of attempts may again be made against Hon'ble Judges”.

Read the Order Here

The Supreme Court on Wednesday came down heavily on the West Bengal government and the Calcutta High Court for their lax approach towards the severely-inadequate judicial infrastructure in the state.

In pursuance of the court’s order at the previous hearing on November 29, the Chief Secretary, the Finance Secretary and the Judicial Secretary of the state government were present personally in the court.

“The affidavit (on behalf of the government) is a skillfully drafted one. It is said that 75 court halls and 39 residential accommodations (as against the requirement of 420 and 630 respectively, as set out by the High Court in its affidavit) are under construction, that the budgetary allocation for the same will not lapse at the end of the year and will be carried over, and that should further funds be required, the demands would be welcome...”, remarked Chief Justice Ranjan Gogoi.

“Out of these 75 + 39, the administrative approval has been granted for only 23. 14 projects are to be completed by December 31, 2019, 7 by 2020 and 1 by 2021. This deadline of December 2021 is of-course not acceptable”, continued the Chief Justice.

When asked how many of the said 23 approved projects and the 14 sought to be ready by end of 2019 are court halls and how many are residences, the state officials replied obscurely, saying “most probably fifty percent”, admitting that the exact break-up was not available.

“We want you to disclose! The time of conference is over! We have gone to the highest authority in state, the Chief Secretary, and he is unable to tell us?”, reprimanded the Chief Justice.

“And this is just the tip of the iceberg. When will you meet the requirement of 630 and 420? It is the Constitutional responsibility of the state to provide for infrastructure. We have undertaken to fill the vacancies and the recruitment processes have been initiated. But where will the judges sit and work?”

When Chief Justice Gogoi inquired as to what percentage of construction has been completed in respect of the projects which are underway, the officers were unable to provide a satisfactory response to that either.

“If the construction was being progressing at the requisite pace, there would be no need to carry forward the budgetary allocation. It should be used within the year”, observed Justice S. K. Kaul.

Next, the Chief Justice rebuked the High Court for being in “deep slumber” and failing to submit the proposals in respect of all of the 630 residences and 420 court halls-

“The State says that after the proposal comes, the approval will be communicated within 2 months and then the funds will be released in a phased manner from April, 2019. How can you blame the state government when you have not forwarded a single proposal despite knowing the requirement? And This requirement did not emerge one fine day, but arose over a period of time! For years, the state has no proposals and then suddenly, it will have 1000+!”

“What you have in mind today will materialize after 7 years. What should the judges do for 7 years? And what about the additional requirements that arise in this while?”

When assurances of a “concrete proposal” were advanced on behalf of the state, the Chief Justice commented,

“What concrete proposal will you come up with? Tell us? we will not take up any other case today...Things which were to be done with utmost speed will be done 7 years hence? Unless judges have houses to stay, how will they work? No landlord would even like to give a place to them...We don’t decide the policy, you do. But tell us what it is?”

When a further assurance that the “state is fully committed to providing adequate infrastructure to the judiciary” were made, the Chief Justice pointed out its hollowness in a lighter vein, “can you say anything else? Can you say that the government is not committed?”

The bench, also comprising Justice K. M. Joseph, then granted one hour’s time to the state officers to find out the details as to the numbers asked for and to discuss.

The Supreme Court, on Wednesday, reiterated that high courts cannot adjudicate upon affidavits or disputed questions of fact while hearing petitions under Article 226 of the Constitution of India, except in the “rarest of cases”.

A bench comprising Justice R. Banumathi and Justice Indira Banerjee asserted, “ It is well settled that proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor re-appreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. 

The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case.”

The court observed that even in cases where the high court does find an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give an opportunity to the concerned authority to rectify the error.

“It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error,” it added.

The court was hearing appeals challenging a judgment passed by the Patna High Court in last year, directing the Indian Oil Corporation (IOC) to allot the Kisan Seva Kendra (Retail Outlet) dealership retail outlet in issue to one Prakash Chandra Chaudhary.

Originally, it was one Sanjay Kumar Jha who had been awarded the dealership for the outlet to be located within one kilometre from Giriyama Chowk, Giriyama in Katihar District in Bihar. This was then challenged by Mr. Chaudhary, who had lost the opportunity to Mr. Jha by a few points.

This petition was allowed by a Single Judge of Patna High Court, who directed IOC to grant dealership of the Giriyama retail outlet to Mr. Chaudhary instead. An appeal against this judgment was rejected by the Division Bench of the High Court.

However, the Supreme Court now noted that the Single Judge proceeded on the “erroneous notion” that, as per the advertisement, the only requirement for the Giriyama retail outlet was that it should be in Giriyama within one kilometre, on a particular well-defined road.

The Single Judge had further observed that the report of the Circle Officer and the District Magistrate to the effect that Mr. Chaudhary’s land was not in Giriyama was “erroneous” and “collusive” to favour Mr. Jha instead.

The Single Judge’s approach was, however, not approved by the Apex Court, which asserted that under Article 226, the high court cannot adjudicate upon affidavits or disputed questions of fact.

“It is well settled that in proceedings under Article 226 of the Constitution of India the High Court does not adjudicate, upon affidavits, disputed questions of fact. In arriving at the finding that the land offered by respondent Prakash Chandra Chaudhary was located within Giriyama Mauza of Falka Block the learned Single Bench embarked upon adjudication of a hotly disputed factual issue, which the High Court, while exercising its writ jurisdiction, does not do,” it observed.

The appeals were therefore allowed and the impugned judgement was set aside, with the court asserting that the high court could not have decided on questions of fact.

Read the Judgment Here

The Supreme Court collegium has resolved to recommend elevation of eight advocates as judges of High Courts of Gujarat, Jharkhand, Calcutta and Gauhati.

The collegium comprising Chief Justice of India Ranjan Gogoi, Justice MB Lokur and Justice AK Sikri made the following recommendations:

Gujarat High Court

Bhargav Dhirenbhai Karia Megha Bhupendra Jani Sangeeta Kamalsingh Vishen

Jharkhand High Court

Sanjay Kumar Dwivedi Deepak Roshan

The collegium had before it, the candidature of three more advocates—Bhawesh Kumar, Sadhna Kumar and Sudhir Kumar Sharma. It, however, opined that the proposal for their elevation deserved to be remitted to the Chief Justice of the High Court.

Calcutta High Court

Tirthankar Ghosh Hiranmay Bhattacharyya

Apart from consulting colleagues conversant with the affairs of the Calcutta High Court, the Supreme Court collegium also gathered “fresh inputs from reliable sources” to consider their suitability, and finally recommended them.

Gauhati High Court

Manish Choudhury

The collegium was also considering the candidature of a Judicial Officer, Ms. Selina Begum. It, however, decided to remit the proposal to the Chief Justice of the High Court.

All the above names were first considered by the Supreme Court Collegium in April and  it was decided to defer the proposals.

‘The Union of India, as well as States and Union Territories, shall enforce the Witness Protection Scheme, 2018 in letter and spirit.’

The Supreme Court on Wednesday approved the Witness Protection Scheme, 2018, prepared by Union of India and has directed it and all states and union territories to enforce the same in letter and spirit.

The bench comprising Justice AK Sikri and Justice S Abdul Nazeer held that the said scheme shall be the ‘law’ under Article 141/142 of the Constitution till the enactment of suitable parliamentary and/or state legislations on the subject and also directed that vulnerable witness deposition complexes shall be set up by the states and union territories within a period of one year, i.e., by the end of the year 2019.

The Union of India had placed on record this scheme in response to a public interest litigation seeking protection for witnesses in rape cases involving self-styled preacher Asaram Bapu.

Witness Protection Scheme, 2018

The bench noted that the essential features of the Witness Protection Scheme, 2018, include identifying categories of threat perceptions, preparation of a “Threat Analysis Report” by the head of the police, types of protection measures like ensuring that the witness and accused do not come face to face during investigation etc. protection of identity, change of identity, relocation of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records, recovery of expenses etc.

The scheme formulated by the Home Ministry categorizes witnesses into three types:

1. Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.
2. Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.
3. Where the threat is moderate and extends to harassment or intimidation of the witness or his family member's, reputation or property, during the investigation/trial or thereafter.

These witnesses can file application for seeking protection order before the competent authority of the concerned district where the offence is committed. This competent authority will be chaired by District and Sessions Judge, with head of the police in the district as member and head of the prosecution in the district as its member secretary.

The authority, when it receives an application, has to call for a Threat Analysis Report from the ACP/DSP in charge of the concerned Police Sub-Division. The scheme also mentions about types of protection measures that can be ordered, based on the Threat Analysis Report and hearing conducted in this regard by the competent authority. The authority is also empowered to order identity protection, change of identity and relocation of witnesses. The entire scheme has been reproduced in the judgment (Page 23-36).

Beneficial and benevolent scheme which is aimed at strengthening criminal justice system in this country

Giving its imprimatur to the scheme, the court said: “Since it is beneficial and benevolent scheme which is aimed at strengthening the criminal justice system in this country, which shall in turn ensure not only access to justice but also advance the cause the justice itself, all the States and Union Territories also accepted that suitable directions can be passed by the court to enforce the said Scheme as a mandate of the court till the enactment of a statute by the Legislatures.”

The bench also observed that there is a paramount need to have witness protection regime, in a statutory form. It also emphasized on the need to create Vulnerable Witness Deposition Complexes. “One of the main reasons behind establishing these Vulnerable Witness Deposition Complexes was that a large percentage of acquittals in criminal cases is due to witnesses turning hostile and giving false testimonies, mostly due to lack of protection for them and their families, especially in case of women and children,” it added.

Attorney General K. K. Venugopal on Wednesday countered each of the grounds raised by the petitioners in challenging the propriety of the October 23 order of the Central government sending CBI Director Alok Kumar Verma on leave.

It has been the case of the petitioners, being Verma and NGO Common Cause, that in passing the impugned order, the government of India was only influenced by an identical order of the CVC and that it was not an independent decision; that a transfer of the CBI Director could not have been validly effected without the previous consent of the Selection Committee as per section 4B of the DSPE Act; and that the power of superintendence of the Central government under section 4(2) of the DSPE Act could not authorise the direction to divest the CBI Director of his powers and functions.

Dealing with the question as to whether the decision of the Central government was without any application of an independent mind and merely piggybacking the CVC order of the same date, the AG drew the attention of the bench headed by Chief Justice Ranjan Gogoi to the impugned order of the Union of India.

He sought to drive in that the government was and is concerned and conscious that nothing should be allowed to erode the faith of the nation and that of the stakeholders in the investigations conducted by the CBI. Further, the dispute between the Director and the Special Director had become a subject of critical and negative public debate, pulling down the reputation of the institution itself, as a result of which public confidence in the independent investigating agency was being eroded.

The government had noted that the CVC has undertaken an inquiry into the allegations and counter-allegations, which must be ensured to be neutral and uninfluenced. Having carefully evaluated and closely examined the materials available to the government, and the order of the CVC and after a consideration of the issues that have arisen and which may arise in the course of inquiry and the possibility of the proceedings to be initiated at the behest of the Central government, the government was satisfied that an “extraordinary and unprecedented situation” has arisen, warranting the exercise of its powers of superintendence under section 4(2) of the DSPE.

“The CVC had taken the decision (of divesting Verma of the charge of CBI) as the Cabinet Secretary had forwarded (Special Director Rakesh Asthana’s) complaint against Verma to it to inquire. All other matters would be for the Union of India to take care of under S.4(2). The Central government was very concerned as to what is happening in the CBI, that two of its topmost officials are fighting. And instead of keeping it quiet, they have gone public with their feud and this has resulted in the news channels having a field day, exposing the CBI to ridicule. And this was the premier investigating agency, to which investigations were assigned by Courts when the parties lost faith in the local police!”

When Justice K. M. Joseph asked if there is any evidence of the CBI Director having gone public, the AG asserted that it is a matter of public knowledge, that there is a ‘Telegraph’ publication, and a broadcast by India Today Live TV as early as in July- “all of us were watching on TV. Their pictures were splashed everywhere”

Next, the AG submitted that it was wholly unjustified to claim that Verma has been ‘transferred’ as he continues to “be at the same place, hold the same status and designation, use the same bungalow, car, etc”- “if one asks who the CBI Director is, the answer continues to be Alok Verma. What has happened is that his powers and functions have been withdrawn so that the inquiry against him can continue unhampered”

He relied on the 2001 apex court judgment in V. Jagannadha Rao v. State of AP to suggest that a ‘transfer’ must be from one place to another and cannot be in respect of the same post at the same place. Consequently, the need for the previous consent under section 4B does not arise.

He reiterated that the Selection Committee under Section 4A of the DSPE does not appoint the Director but makes a recommendation to the Cabinet Committee on Appointments, which is the Central government. It is the government which makes a choice from the panel of two-three candidates so recommended and affects the final appointment. He argued that the power to appoint includes the power to suspend or dismiss under section 16 of the General Clauses Act.

“As to the future of the candidate, the powers rest with the appointing authority. The exception is made by Vineet Narain in view of the minimum 2 years’ tenure, making any transfer subject to the approval of the selection committee. But that is only for a limited purpose and for other purposes, the appointing authority is self sufficient”, assured the AG.

Indicating State of Bihar v. J. A. C. Saldanha (1979), he juxtaposed the power of superintendence of the Central government over the CBI, as under section 4(2) of the DSPE, with the scope and ambit of the power conferred by section 3 of the Police Act, 1861 on the State Government for superintendence over the entire police force of the State.

“In Saldanha’s case, the Supreme Court has observed that ‘the power of superintendence would comprehend the authority to give directions to perform the duty in a certain manner, to refrain from performing one of the other duty (as in Verma’s case, the AG supplied), to direct some one else to perform the duty (as the Central government acted in vesting interim charge of the CBI to Mr. M. Nageshwar Rao, he added) and no inhibition or limitation can be read in this power unless the section conferring such power prescribes one’...”.

“So far as the Centre is concerned, it acted within jurisdiction. In fact, instead of taking an action in July itself, it was only in October that it intervened. And if it had not done so, God knows where this fight would have ended. It was Absolutely essential and incumbent for the government to step in”, insisted the AG.

Justice Joseph quizzed Mr. Venugopal on the jurisdictions of the CVC and the government in view of sub-section (1) of the said section 4 according to the former the power of superintendence over the CBI in respect of investigations of offences under the Prevention of Corruption Act.

“Please look at the order (of the Central government) as a whole. The government was compelled to interfere on October 23, after almost four months had passed since July...it was watching in amazement as to what the topmost Officers of the topmost agency were doing. It also affected the government of India! There were a large number of allegations, some of which could come under 4(1) and most under 4(2). The government’s real worry was that what was happening, the CBI being ridiculed and that it had to be prevented. We were applying our mind to only the consolidation of allegations and the impact of their disclosure in public domain. Your Lordships are dissecting this aspect- that this is under 4(1), this is under 4(2)...the government was looking at it in totality, with the sole objective to protect the institution against disgrace...”, the AG concluded.

‘Though we have noticed above that the possibility of reform of the accused is not completely precluded, we nevertheless share the concerns of the Trial Court and the High Court regarding the lack of remorse on behalf of the appellant and the possibility of reoffending.’

While commuting a death sentence awarded to a rape and murder accused, the Supreme Court has observed that lack of remorse by him after committing the crime and during the hearing does not in any way indicate that there is no scope of his reform.

The bench comprising Justice NV Ramana, Justice Mohan M Shantanagoudar and Justice Hemant Gupta was considering an appeal filed by Viran Gyanlal Rajput who was sentenced to death by the trial court, for kidnapping, rape and murder of a 13-year-old girl and causing the disappearance of evidence. The Bombay High Court had confirmed the death sentence dismissing his appeal.

The bench disagreed with the contentions raised by Senior Advocate V Giri, challenging the conviction recorded in this case.

On sentence, it said: “Undoubtedly, the Courts were correct in giving weight to the dastardly nature and manner of the crime, i.e. kidnapping a girl of the tender age of 13 years, taking her to a secluded area and committing the act of rape and subsequently murdering her by strangulation and burying her body in a field, having disrobed her completely, and also in giving weight to the youth and helplessness of the victim, and to the fact that the appellant proceeded to target her to satisfy his lust.”

However, the bench said, though the crime committed is of an abominable nature, it cannot be said to be of such a brutal, depraved, heinous or diabolical nature so as to fall into the category of the rarest of rare cases and invite punishment with death. “We also find ourselves unable to agree with the view of the Courts that the appellant is such a menace to society that he cannot be allowed to stay alive,” it added.

The court also took note of his young age and lack of criminal antecedents, and said: “Although the Trial Court noted his lack of remorse during the hearing, and the High Court noted his lack of remorse after committing the crime, as he was found calmly wandering around the locality, this does not in any way indicate that there is no scope of reform for the appellant.”

Commuting the death sentence to life imprisonment without remission for 20 years, the bench added: “Moreover, though we have noticed above that the possibility of reform of the accused is not completely precluded, we nevertheless share the concerns of the Trial Court and the High Court regarding the lack of remorse on behalf of the appellant and the possibility of reoffending. In such a situation, we deem it fit to restrict the right of the appellant to claim remission in his sentence of life imprisonment for a period of 20 years.”

In his turn, Solicitor General Tushar Mehta pointed out the “inherent fallacies in the petitioners’ contentions on law, dehors the facts of this case”, keeping in mind the scheme of the CVC and DSPE Acts, the status and tenure of the CBI director and their interplay.

Drawing the attention of the bench to the 1997 Jain Hawala case, he explained that the reason for which the Apex court saw it necessary for the CBI Director to have a minimum tenure of two years, regardless of the date of his superannuation was to ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.

He submitted that the CVC has power of superintendence over the CBI in respect of investigations into corruption cases by virtue of section 4(1) of the DSPE and section 8(1)(a) of the CVC Act, and clause (b) of sub-section (1) of this section 8 confers an additional power to issue directions for a more effective exercise of this power of superintendence.

“The only curtailment of the power of the CVC is found in the Proviso to this clause (b) which restrains it from issuing such directions which require the CBI to investigate or dispose off any case in a particular manner”, advanced the SG.

“Further, 8(1)(c) is a power of investigation of the CVC into instances of corruption by Central government employees, which can be invoked upon a reference by the government...8(1)(d) empowers the CVC to inquire into or investigate officials of the All-India Services where there is a complaint against them under the Prevention of Corruption Act...”, continued Mr. Mehta.

“The All-India Services Act (of 1951) defines the ‘All-India Services’ as including the IAS and the IPS. So where a person is a member of either service, then the CVC would have jurisdiction over them. The CBI Director remains a member of the IPS for all purposes, with the exceptions that the date of superannuation would not apply to him, his functional autonomy cannot be taken away and that he cannot be transferred without the consent of the Selection Committee”, he elaborated.

The SG further relayed that in view of section 11 of the CVC Act, the powers of the CVC, when it initiates an inquiry, are not merely administrative in nature, but it would have “all the powers of a civil court trying a suit under the C. P. C.”

Besides, section 14 of the CVC Act requires the Commission to place an annual report before the President of India as to the work done by the Commission, with a separate part on the functioning of the CBI, which the President causes to be laid before the Parliament.

“So not only did the CVC have the jurisdiction (to direct the divestiture of CBI Director Alok Kumar Verma pending the inquiry into the corruption allegations against him), but it would have been answerable to the Parliament if it had not so acted!”, asserted the SG.

The hearing shall resume on Thursday.

“This state of affairs is throttling the functioning of the RTI Act which is not good for democracy as the main purpose behind passing the RTI Act was to ensure transparency in the system,” submitted Advocate Prashant Bhushan

The Supreme Court has directed Union of India and states of West Bengal, Andhra Pradesh, Odisha, Telangana, Maharashtra, Gujarat, Kerala and Karnataka to file their status report indicating the steps which have been taken for filling up of vacant posts in Central and State Information Commissions.

The bench comprising Justice AK Sikri and Justice S Abdul Nazeer, while considering a PIL filed by Anjali Bhardwaj, also directed these states to explain within a week the manner in which these posts are sought to be filled.

Advocate Prashant Bhushan, who appeared for Bhardwaj, brought to the notice of the court, through a chart, the status of vacancies in Information Commissions in the country.

The chart contains status of vacancies, as on date of filing of PIL, as per affidavit, and as on 2 December. It stated that Central Information Commission as of now is functioning with only three commissioners, and eight vacancies, including that of Chief Information Commissioner, are to be filled up.  Details about the vacancies with regard to various State Information Commissions are also given in the chart.

Advocate Bhushan contended that not only in the Central Information Commission, but also in the State Information Commissions posts are lying vacant and no effective steps are taken in filling of these vacancies.

“This state of affairs is throttling the functioning of the RTI Act which is not good for democracy as the main purpose behind passing the RTI Act was to ensure transparency in the system,” he submitted before the court.

The bench then directed the Union and concerned states to file status report and posted the matter on 13 December.

The Supreme Court confirmed the judgment of Bombay High Court which had set aside direction issued by the Competition Commission of India(CCI) to probe Jio's allegation of cartelization by telecom service providers Idea, Airtel and Vodafone. Yesterday, a bench of Justices A K Sikri and Ashok Bhushan dismissed the appeals filed by CCI and Reliance Jio against the Bombay High Court's judgment.

Jio had approached CCI in November 2016 alleging that Idea, Airtel and Vodafone had entered into anti-competitive agreement to deny Point of Interconnection(POI) services to Jio during its test phase and after its commercial launch in September 2016(Without sufficient POIs it is not possible for subscribers of one service provider to make calls to subscribers of another service provider). It was also alleged that these companies were denying mobile number portability requests to customers who wanted to switch to Jio. The Cellular Operators Association of India(COAI) was also alleged to be facilitating the cartel arrangement between Idea, Airtel and Vodafone to oust the new entrant Jio.

The CCI issued order under Section 26(1) of the Competition Act directing the Director General to probe into the allegations, after prima facie finding that Jio was subjected to anti-competitive practises, with a 3:2 majority in a 5 member bench. The dissenting members opined that facts before the Commission were insufficient to support conclusions of anti-competitive practises. The Bombay High Court set aside this order, accepting the contention of other telecos that CCI had no jurisdiction to deal with the matter unless the issues are settled by authorities under the TRAI Act. It was challenging this conclusion of Bombay HC that CCI and Jio approached the SC.

The SC held that allegations, in effect, pertained to violations of Interconnect Agreements and obligations under TRAI Regulations by Idea, Airtel and Vodafone against Jio, which fell with the specialized domain of TRAI(Telecom Regulatory Authority of India). Therefore, without TRAI examining the issue first using its domain expertise, CCI should not venture to deal with it.

" since the matter pertains to the telecom sector which is specifically regulated by the TRAI Act, balance is maintained by permitting TRAI in the first instance to deal with and decide the jurisdictional aspects which can be more competently handled by it. Once that exercise is done and there are findings returned by the TRAI which lead to the prima facie conclusion that the IDOs(Incumbent Dominant Operators) have indulged in anti-competitive practices, the CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion", held the judgment authored by Justice Bhushan.

The appellants argued in SC that Competition Act and TRAI Act are not exclusive to each other and that they operate in their respective fields. While TRAI's jurisdiction pertains to violation of license conditions and Regulations by telecos, CCI's jurisdiction pertains to anti-competitive practises adopted by telecos in the relevant market of telecommunication.

The defence of other telecos was that they had provided required POIs to Jio, and that Jio was providing free service to millions of users under the guise of testing which led to choking of POIs. It was further contended by them that due to the free service provided by Jio, a substantial imbalance in voice traffic had occurred for which the existing operators were not adequately compensated under the Interconnection Usage Charges regulations (IUC) in place. Also, during the test phase of Jio, there was no obligation to provide interconnect services in terms of TRAI Regulations.

The SC noted that the obligation to provide interconnectivity flowed from the conditions of unified license granted to telecos, and also the interconnect agreements entered into by the telecos as per Telecommunication Interconnection (Reference Interconnect Offer) Regulations, 2002. Therefore, the dispute essentially touched upon compliance of obligations under TRAI Act and Regulations by telecos. Also, to examine the merits of the claims made by the telecos, sectoral expertise of TRAI was called for. It also noted that TRAI was already seized of the matter on a complaint by Jio, when the CCI order was issued.

"TRAI,being a specialised sectoral regulator and also armed with sufficient power to ensure fair, non-discriminatory and competitive market in the telecom sector, is better suited to decide the aforesaid issues", the Court observed.

The Court agreed with the conclusion of HC that till the jurisdictional issues are straightened and answered by the TRAI which would bring on record findings on the aforesaid aspects, the CCI is ill-equipped to proceed in the matter

"Having regard to the aforesaid nature of jurisdiction conferred upon an expert regulator pertaining to this specific sector, the High Court is right in concluding that the concepts of “subscriber”, “test period”, “reasonable demand”, “test phase and commercial phase rights and obligations”, “reciprocal obligations of service providers” or “breaches of any contract and/or practice”, arising out of TRAI Act and the policy so declared, are the matters within the jurisdiction of the Authority/TDSAT under the TRAI Act only. Only when the jurisdictional facts in the present matter as mentioned in this judgment particularly in paras 56 and 82 above are  determined by the TRAI against the IDOs, the next question would arise as to whether it was a result of any concerted agreement between the IDOs and COAI supported theIDOs in that endeavour. It would be at that stage the CCI can go into the question as to whether violation of the provisions of TRAI Act amounts to ‘abuse of dominance’ or ‘anti-competitive agreements’. That also follows from the reading of Sections 21 and 21A of the Competition Act, as argued by the respondents"

Allowing CCI to intervene at this juncture would mean that it has to return findings on issues which are falling within domain of TRAI. This may lead to both authorities having conflicting views.

However, the Court did not agree with the respondents' contention that TRAI has sole jurisdiction to deal with the issue, to the exclusion of CCI, as matter pertained to telecom market.  The anti-competitive aspects relating to conduct of telecom companies can be certainly examined by the CCI, and consequences under Competition Act will flow in case of violations. Both the authorities retain their jurisdiction over their respective fields. But, to strike a balance in this dispute, it is necessary that CCI act only after jurisdictional facts are determined by TRAI.