THE LATEST JUDGMENT OF KERALA HIGH COURT (SANIL NARAYANAN VS. STATE) IS ILLEGAL AND NOT BINDING
- Gauhati High Court judgment of vaccination is binding and Kerala High Court judgment is illegal, per-incuriam, null and void, vitiated.
- The Kerala High Court can recall its judgment
1.There are two sets of judgments, one set of judgments specifically prohibit any vaccine mandate and consider any condition imposed by Government as illegal, unconstitutional and null and void.
These judgments are;
i) Registrar General Vs. State of Meghalaya 2021 SCC OnLineMegh 130
ii) Re Dinthar Incident Vs. State of Mizoram 2021 SCC OnLineGau 1313
iii) Madan Mili Vs. UOI 2021 SCC OnLineGau 1503
iv) OsbertKhaling Vs. State of Manipur 2021 SCC OnLine Mani 234
The other set consists of two judgments from State of Kerala, which say that the state can put conditions of vaccinations upon citizens:
i) Halvi K.S. Vs. Union of India in W.P. (C) No. 16614 of 2021 [Judgment dated 17.09.2021]
ii) Sanil Narayan Vs. State in W.P. (C) No. 21120 of 2021 [Judgment dated 20.10.2021]
DOWNLOAD THE JUDGMENT HERE:
2. Now the question arises as to which of these judgments are binding and which are not.In view of Central Government’s policy and settled law,the judgments which prohibit vaccine mandates are binding and other judgments which support mandatory vaccination or discrimination on the basis of vaccination status, are illegal, per-incuriam, null & void and are not binding.
3. The judgment passed by theKerala High Court is not binding because it does not follow the guidelines of Supreme Court in Pradeep Mehta’s case (2008) 14 SCC 283 and ignores the ratio laid down by the Gauhati, Meghalaya and Manipur High Court.
Secondly, the Kerala High Court also failed to appreciate the provisions of section 38(1), 39(a) of Disaster Management Act, 2005 which mandates that the State Authority cannot work against the Guidelines given by the National Authority i.e. Central Government.
Hence the Kerala Government’s mandate for vaccination and discrimination of unvaccinated people is against the Central Government’s policy decisions that vaccination is voluntary and not mandatory. Central Government has also made it clear that there can be no discrimination on the basis of vaccination status. In fact the concerned officials of Kerala Government should be liable for punishment under section 51(b) & 55 of Disaster Management Act, 2005. But the Kerala High Court did not considered this aspect.
Thirdly, Kerala High Court has also failed to consider the provisions of Article 7 of the International Covenant on Civil and Political Rights (ICCPR) & Universal Declaration on Bioethics & Human Rights, 2005.
Therefore, the judgment of Kerala High Court has no precedentry value and is not binding in view of law laid down by the Supreme Court in Mamleshwar Prasad (1975) 2 SCC 232,ThotaSesharathamma v. ThotaManikyamma [(1992) 4 SCC 312, Narmada BachaoAndolan, (2011) 7 SCC 639, SiddharamMhetre (2011) 1 SCC 694.
THE REASONS ARE GIVEN BELOW:-
4.The decisions given by the Gauhati, Meghalaya, Manipur High Court are based on following factual and legal position:
i) Central Government’s policy is that the vaccine is not mandatory and there can be no condition or discrimination based on the vaccination status of a person;
ii) When vaccinated person is also likely to get infection from corona, they can also be a super-spreader like the unvaccinated people, there is no reason for discriminating between vaccinated and unvaccinated. The discrimination by the state authority is not based on the intelligent differentia. Such discrimination is violative of Article 14, 21 of the constitution of India.
iii) Any restriction can be brought only by amending the judicious Act passed in parliament.Restriction cannot be brought by the authorities by issuing circulars and rules by the State authorities. Arbitrary circulars and executive orders must be quashed.
iv) In OsbertKhaling Vs. State of Manipur2021 SCC OnLine Mani 234,the court also considered and appreciated the choice of a person to not to get vaccinated in pandemic.
“8…. Restraining people who are yet to get vaccinated from opening institutions, organizations, factories, shops, etc., or denying them their livelihood by linking their employment, be it NREGA job card holders or workers in Government or private projects, to their getting vaccinated would be illegal on the part of the State, if not unconstitutional. Such a measure would also trample upon the freedom of the individual to get vaccinated or choose not to do so.”
5.The judgment given by the Division Bench of Hon’ble Guwahati High Court. In Re: Dinthar Incident Aizawl Vs. State of Mizoram 2021 SCC OnLineGau 1313, is passed after hearing Union of India. Said judgments are not challenged by the Union of India and therefore they are binding on Union of India. Since the law of constitutional mandate is decided in the said judgment, therefore it is binding on all the authorities in India.
6.In Maharashtra Govt., through G. B. Gore Vs. RajaramPadamwar2011 SCC OnLineBom 2021, it is ruled that if any officer including a Judge refuses to follow the judgement of other High Court ,then such authority shall face action.
As per Supreme Court judgments in Pradip Mehta vs. Commissioner of Income Tax, Ahmedabad (2008) 14 SCC 283, the Kerala and all other High Courts in India are bound to refer and explain the ratio laid down by the Gauhati, Meghalaya and Manipur High Court.
7.However in the judgment passed by the Kerala High Court on 20.10.2021 in the case of Sunil Narayan Vs. State (supra), the legal and factual position as decided in Dinthar’s case (supra),is neither referred to nor analyzed and therefore Kerala High Court judgments are vitiated, per-incuriam and null & void.
8.The Kerala High Court has also ignored the mandatory provisions of Article 7 of International Covenant on Civil & Political Rights and Universal Declaration of Bioethics and Human Rights 2005.
Article 7 of ICCPR;
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
The Articles of ICCPR are binding in India and are followed by the Supreme Court of India.
The provisions of Universal Declaration on Bioethics & Human Rights, 2005(UDBHR) reads thus;
“Article 3: Human dignity and human rights
- Human dignity, human rights and fundamental freedoms are to be fully respected.
2.The interests and welfare of the individual should have priority over the sole interest ofscience or society.
Article 6: Consent
1.Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.”
9. In Pradeep Mehta Vs. Commissioner of Income Tax, Ahmedabad (2008) 14 SCC 283,it is ruled by the Hon’ble Supreme Court as under;
“View taken by other High Court though not binding but should be referred and reasons should be mentioned for not following said ratio – Another High Court would be within its right to differ with the said view. But, in all fairness, the High Court should record its dissent with reasons therefore. Thus, the judgment of the other High Court, though not binding, have persuasive value which should be taken note of and dissented from by recording its own reasons.”[Para 24]
10. In Medical Council of India Vs. G.C.R.G. Memorial Trust and Ors. (2018) 12 SCC 564, it is ruled as under;
“The judicial propriety requires judicial discipline. Judge cannot think in terms of “what pleases the Prince has the force of law”. Frankly speaking, the law does not allow so, for law has to be observed by requisite respect for law.
A Judge should abandon his passion. He must constantly remind himself that he has a singular master “duty to truth” and such truth is to be arrived at within the legal parameters. No heroism, no rhetorics.
A Judge even when he is free, is still not wholly free; he is not to innovate at pleasure; he is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness; he is to draw inspiration from consecrated principles.
11. In Sundarjas K. BhatijaVs. Collector, Thane, Maharashtra (1989) 3 SCC 396, it is ruled as under;
“Constitution of India, Art.141- PRECEDENTS – Judges are bound by precedents and procedure – When law is clear and settled then Judges cannot use their discretion – They could use their discretion only when there is no declared principle to be found, no rule and no authority. It is a subversion of judicial process not to follow this procedure – it is the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Sub-ordinate courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute- One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench.”
12. In State Bank of Travancore Vs. Mathew 2018 (3) SCC 85, it is ruled as under;
- It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law.
18.We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Anr. MANU/SC/0639/1997 : 1997 (6) SCC 450, observing:
32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position.Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tetendency stops.”
13. In Dwarikesh Sugar Industries vs. Prem Heavy Engineering Works (P) ltd. (1997) 6 SCC 450, it is further ruled as under;
“29. ….The observation of the High Court that reference to judicial decisions will not be of much importance was clearly a method adopted by it in avoiding to follow and apply the law as laid down by this Court.”
14. Ignorance of basic arguments and factual position and passing the order on irrelevant or less important points makes such judgments null & void and vitiated. [Harshit Agarwal Vs. Union of India (2021) 2 SCC 710, Vijay Shekhar Vs. Union of India (2004) 4 SCC 666]
14.1. The Kerala High Court in its judgments ignored the precedents of Guwahati, Meghalaya and Manipur High Court and also the following crucial facts;
(i) Policy of Central Government that vaccine is not mandatory and no rule can be brought by any authority to discriminate on the basis of vaccination status.
(ii) The fact that vaccines are no guarantee that you will not get Corona. The outbreaks in Kerala and increase in hospitalization of vaccinated people in various parts of country and across the word proves that vaccination of entire population is not going to serve any public good.
(iii) The State’s authorityhas no power to violate the fundamental rights of the citizen. It can only be done by a law made by the parliament. It is the duty of the High Court to see whether the Act applied by the state is arbitrary and discriminatory.
(iv) The safest persons in the present situation are the covid-19 cured or who have anti-bodies developed due to their coming in contact with Sars-covi-2 virus and their immunity is 13 times better than that of fully vaccinated.
Giving vaccines to such person will cause no benefit but much harm to them. It is also a misuse of public money. All the domain experts of India and Dr. Sanjeev Rai of AIIMS have made written representation to Hon’ble Prime Minister in this regard.
(v) There are more than 67% people who have developed antibodies and hence state authority should explain as to why they are hell bent on only vaccination.
(vi) Mass vaccination is doing no public good.It has no guarantee of protection from corona. On the other hand, it is misappropriation of public money, property and resources to run the agenda/program which is beneficial only to vaccine companies.
(vii) There are many other effective and harmless medicines.
14.2. Hon’ble Supreme Court in its two landmark judgments has made it clear that if any court passes an order in ignorance of material facts, statutory rules or binding judgments such judgment is null & void, vitiated and per- incuriam.
14.2.1. In Harshit Agarwal vs. UOI (2021) 2 SCC 710, it is ruled that if irrelevant considerations are taken into account for reaching the decision or relevant considerations have been ignored, the decision stands vitiated as the decision maker has misdirected himself in law. Court has ruled as under;
“10. Judicial review of administrative action is permissible on grounds of illegality, irrationality and procedural impropriety. An administrative decision is flawed if it is illegal. A decision is illegal if it pursues an objective other than that for which the power to make the decision was conferred [De Smith’s Judicial Review, (6th Edn., p. 225)] . There is no unfettered discretion in public law [Food Corpn. of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71]. Discretion conferred on an authority has to be necessarily exercised only for the purpose provided in a statute. The discretion exercised by the decision maker is subject to judicial scrutiny if a purpose other than a specified purpose is pursued. If the authority pursues unauthorised purposes, its decision is rendered illegal. If irrelevant considerations are taken into account for reaching the decision or relevant considerations have been ignored, the decision stands vitiated as the decision maker has misdirected himself in law. It is useful to refer to R. v. Vestry of St. Pancras [R. v. Vestry of St. Pancras, (1890) LR 24 QBD 371 (CA)] in which it was held: (QBD pp. 375-76)
“… If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.”
14.2.2. InVijay Shekhar vs. UOI (2004) 4 SCC 666, it is ruled as under;
“9. This Court in Express Newspapers Pvt. Ltd. &Ors. v. Union of India &Ors. (AIR 1986 SC 872) at para 118 has held thus :
“Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, (1964) 4 SCR 733 : (AIR 1964 SC 733). A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an ‘alien’ purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, ‘that there is a condition implied in this as well as in other instruments which create powers, namely, that the power shall be used bona fide for the purpose for which they are conferred’. It was said by Warrngton, C.J. in Short v. Poole Corporation, (1926) 1 Ch 66 that :
“No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.”
In Lazarus Estates Ltd. V. Beasley, (1956) 2 QB 702 at Pp. 712-13 Lord Denning, LJ.said :
“No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”
See also, in Lazarus case at p.722 per Lord Parker, C.J. :
“‘Fraud’ vitiates all transactions known to the law of however high a degree of solemnity.”
All these three English decisions have been cited with approval by this Court in Pratap Singh’s case.”
14.2.3.Hon’ble Supreme Court in the case of Union of India v. Essel Mining & Industries Ltd., (2005) 6 SCC 675, it is ruled as under;
“4. We find that though the High Court referred to various statutes relating to the mining activities e.g. the Mining Act, etc. it did not indicate any reason as to why it was of the view that the authority issuing the notification lacked statutory power to issue the notification. Though the judgment runs to several pages, after noticing the rival submissions, the High Court in a very cryptic manner, disposed of the writ petition coming to the aforesaid view. It is not the number of pages in a judgment which is relevant. It is on the other hand, the sufficiency of reasons indicated to justify the conclusions. We may only add here that paras 28 and 29 of the judgment which are supposed to contain the conclusions are not only confusing, but also make little sense. They, to quote the immortal words of Lord Sumner in R. v. Nat Bell Liquors Ltd. [(1922) 2 AC 128 : 127 LT 437 (PC)] “speak only with the inscrutable face of a sphinx”. It is “unspeaking order” as classically described by Lord Cairns, IC in Overseers of the Poor of Walsall Overseers v. London & NWR Co. [(1878) 4 AC 30 : 39 LT 453 (HL)] In the fitness of things, therefore, the High Court should rehear the writ petition and dispose of the same by a reasoned order.”
14.2.4.In the case of Bharat Heavy Electricals Ltd. v. M. Chandrasekhar Reddy, (2005) 2 SCC 481, it is ruled as under;
“14. With respect, we are unable to agree with these findings of the High Court. In our opinion, there is no such thing as unlimited jurisdiction vested with any judicial or quasi-judicial forum. An unfettered discretion is a sworn enemy of the constitutional guarantee against discrimination. An unlimited jurisdiction leads to unreasonableness. No authority, be it administrative or judicial has any power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons there of.
- In our opinion by no stretch of imagination either the extenuating circumstances recorded by the Labour Court or the exercise of its discretion could be termed either as reasonable or judicious. In our opinion even the learned Single Judge and the Division Bench erroneously held that the Labour Court had unlimited jurisdiction under Section 11-A of the Act.”
- LawPoint #:- PER-INCURIAM JUDGMENTS HAVE NO BINDING EFFECT. A JUDGMENT WHICH IS PASSED IN IGNORANCE OF EARLIER PRECEDENT OR PROVISIONS OF ACT OR STATUTORY RULES.
15.1. That the Kerala High Court not only ignored the legal and factual position laid down by Gauhati High Court but also ignored the provisions of section 38(1), 39(a) of Disaster Management Act, 2005, which mandates that the rules and law made by state authority should be in line with the Central Government’s policy. State authority cannot make any law which is inconsistent with the law and policies framed by the National Authority.
Section 38(1) reads thus;
“Subject to the provisions of this Act, each State Government shall take all measures specified in the guidelines laid down by the National Authority and such further measures as it deems necessary or expedient, for the purpose of disaster management.”
Section 39 reads thus;
“Responsibilities of departments of the State Government. —It shall be the responsibility of every department of the Government of a State to—
(a) take measures necessary for prevention of disasters, mitigation, preparedness and capacity-building in accordance with the guidelines laid down by the National Authority and the State Authority;”
15.2. Hon’ble Supreme Court made it clear that if any court including Supreme has passed any judgment by ignoring binding judgments or obligatory authority or statutory rules then the judgments which is in ignorance is called as per-incuriam and not binding upon any authority.
15.3. In Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232, it is ruled as under;
“7. Certainty of the law, consistency of rulings and comity of courts — all flowering from the same principle — converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.”
15.4. In State of M.P. v. Narmada BachaoAndolan, (2011) 7 SCC 639, it is ruled as under;
“67. Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”
15.5. In ThotaSesharathamma v. ThotaManikyamma [(1992) 4 SCC 312, a two-Judge Bench of Hon’ble Supreme Court held that the three-Judge Bench decision in Karmi v. Amru [(1972) 4 SCC 86] was per incuriam and observed as under;
“10. … It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor is there any mention of the earlier decision in Badri Prasad v. Kanso Devi [(1969) 2 SCC 586] . The decision in Karmi [(1972) 4 SCC 86] cannot be considered as an authority on the ambit and scope of Sections 14(1) and (2) of the Act.”
15.6. In SiddharamSatlingappaMhetre v. State of Maharashtra, (2011) 1 SCC 694, it is ruled as under;
129.Lord Goddard, C.J. in Huddersfield Police Authority v. Watson [1947 KB 842 : (1947) 2 All ER 193 (DC)] observed that where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered per incuriam.
130.This Court in Govt. of A.P. v. B. Satyanarayana Rao [(2000) 4 SCC 262 : 2000 SCC (L&S) 486] observed as under : (SCC p. 264, para 8)
“8. … The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.”
- Law on Recall of a judgment:-
16.1. In State of Orissa vs. MamtaMahanty (2011) 3 SCC 436, it is ruled as under;
“37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot Validate an action which was not lawful as its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order……. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same.Whiledealing with a similar issue, this Court in Hotel Balaji&Ors.v. State of A.P. ., AIR 1993 SC 1048observed as under:
“…..To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience.
16.2. In Indian Bank vs. Satyam Fibers (1996) 5 SSC 550, it is ruled as under;
‘‘Section 151 C.P.C. – Power of Court to recall its judgment or order – where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order-The judiciary in India also possesses inherent power to recall its judgment or order.
16.3. In Ravindra Narayan JoglekarVs. Encon Exports Pvt. Ltd 2008 ALL MR (Cri.) 2032,itis ruled as under;
“In case the order passed by the court is patently contrary to the provisions oflaw, the same cannot be allowed to remain in force as it can result in greatprejudice and irreparable loss to the parties – No amount of technicalities canabstain the High Court from exercising its plenary jurisdiction to do theneedful to wreck the wicked wrong.”
16.4. See also:-i)New India Assurance (2019) SCC OnLine SC 1786.
ii)Davinder Pal Singh Bhullar (2011) 14 SCC 770.
- Consequences against any Judge not following the mandatory judgments and acting against the law.
17.1. If any Judge, despite showing him the binding precedents, disrespects these and deliberately acts against the mandates of the law and refuses to respect and follow the binding judgments, then such Judge has to face three fold actions:-
(a) Contempt action before Supreme Court for wilful disregard and defiance of the binding judgments. Any citizen can file the contempt petition in Supreme Court. In a similar case High Court Judge C.S. Karnan was sentenced to six months imprisonment [Re: C.S. Karnan (2017) 7 SCC 1, Prabha Sharma (2017) 11 SCC 77,Baradkanata Mishra (1973) 1 SCC 446, Re: M. P. Dwivedi AIR 1996 SC 2299,Spencer & Com. Ltd. (1995) 1 SCC 259,Somabhai Patel (2001) 5 SCC 65]
(b) Prosecution under section 219, 166, 218, 409, 109, 302 120(B)of I.P.C.
Sanction to prosecute High Court & Supreme Court Judge can be taken from Hon’ble President of India. It can be filed online on President of India’s portal.
When offences against any Judge are regarding involvement in conspiracy and abating murder of citizen etc. then it is not a part of official duty and no sanction required to prosecute such Judges. [Raman Lal 2001Cri. L.J. 800,Govinda Mehta AIR (1971) 3 SCC 329, ShameetMukharjee2003 SCC OnLine Del 821, Justice Nirma Yadav 2011 SCC OnLine P&H 1541, Jagat Patel 2016 SCC OnLineGuj 4517].
Copy of complaint filed in a similar case against Justice Aniruddha Bose, CJI N. V. Ramannacan be downloaded from following.
(c) Such Judge should also facedepartmental action of transfer, suspension,dismissal from service or withdrawal of judicial work as per ‘In – House – Procedure’[Add. District Judge & Sessions Judge ‘X’ (2015) 4 SCC 91, K.K. Dhawan (1993) 2 SCC 56, Umesh Chandra2006 (5) AWC 45 19,Somabhai Patel (2001) 5 SCC 65]
Supreme Court had withdrawn the work from Justice C.S. Karnan, Justice S.H. Shukla etc.
- Case Laws on applicability of section 218 to Judges who passes any order to save the culprit offences of the state.
18.1. Section 219, 218, 166 etc., of IPC reads thus;
219. Public servant in judicial proceeding corruptly making report, etc., contrary to law —Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture.—Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
166. Public servant disobeying law, with intent to cause injury to any person.—Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. Illustration A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section
18.2.CASE LAWS IN SECTION 218 OF IPC:-
18.2.1. The section is concerned with bringing erring public servants to book for falsifying the public records in their charge. The essence of the offence under section 218 is intent to cause loss or injury to any public or person or thereby save any person from legal punishment or save any property from forfeiture or any other charge, BirajaProsad Rao Vs. Nagendra Nath, (1985) 1 Crimes 446 (Ori.)
18.2.2. ACTUAL COMMISSION OF OFFENCE NOT NECESSARY:
The actual guilt or innocence of the alleged offender is immaterial if the accused believes him guilty and intends to screen him,HurdutSurma, (1967) 8 WR (Cr.) 68.
18.2.3. The question is not whether the accused will be able to accomplish the object he had in view, but whether he made the entries in question with the intention to cause or knowing it to be likely that he will thereby cause loss and injury. The fact that the accused conceived a foolish plan of injuring in retaliation of the disgrace inflicted upon him by his arrest is no ground for exculpating him from the offence, NarapareddiSeshareddi, In Re, AIR 1938 Mad 595.
18.2.4.Where the accused increased the marks of particular persons for pecuniary benefits during the course of preparing final record for appointment as physical education teacher, it was held that the offence alleged is clearly made out, Rakesh Kumar Chhabra Vs. State of H.P., 2012 Cr.L.J. 354(HP)
18.2.5. For the purpose of an offence punishable under section 218, the actual guilt or otherwise of the offender alleged as sought to be screened from punishment is immaterial. It is quite sufficient that the commission of a cognizable offence has been brought to the notice of the accused officially and that in order to screen the offender that accused prepared the record in a manner which he knew to be incorrect, Moti Ram Vs. Emperor, AIR 1925 Lah 461.
18.2.6.The Supreme Court has held that, if a police officer has made a false entry in his diary and manipulated other records with a view to save the accused was subsequently acquitted of the offence cannot make it any less an offence under this section, Maulud Ahmad Vs. State of U.P.,(1964) 2 Cr.L.J. 71 (SC).
18.2.7.Where it was proved that, the accused’s intention in making a false report was to stave off the discovery of the previous fraud and save himself or the actual perpetrator of that fraud from legal punishment, it was held that he was guilty of this offence, Girdhari Lal,(1886) 8 All 633.