Slp With Affidavit Aadhaar Bail Challenge

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7 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO__________OF 2018 (WITH PRAYER FOR INTERIM RELIEF) (ARISING FROM THE IMPUGNED JUDGMENT AND FINAL ORDER DATED 05.01.2018 PASSED BY THE HIGH COURT OF CHHATTISGARH AT BILASPUR, IN M.CR.C. NO. 3957 OF 2017) BETWEEN:

Peeyush Bhatia

POSITION OF PARTIES In the Trial Court

In the High Court

In this Court

Not a party

Not a Party

Petitioner

Advocate R/o- H.No. 77 Street No. 1, Anand Nagar, Junwani, Bhilai, Dist.-Durg, Chhattisgarh. VERSUS 1. State of Chhattisgarh Through Through: The

Prosecution Contesting Contesting Agency Respondent Respondent no. 1

District Magistrate, Durg, District- Durg, Chhattisgarh. 2.Ved Prakash Prakash Gupta @ Gudda S/o Rajendra Prasad Gupta Aged About 46 Years R/o Polsai Para, Durg, Tahsil And District Durg, Chhattisgarh.

TO

Accused

Applicant

Performa Respondent no. 2

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8 THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE SUPREME COURT OF INDIA THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA AGAINST THE IMPUGNED JUDGMENT AND FINAL ORDER DATED 05.01.2018 PASSED BY THE HIGH COURT OF CHHATTISGARH AT BILASPUR, IN M.CR.C. NO. 3957 OF 2017. MOST RESPECTFULLY SHOWETH 1. This Special Leave Petition arises from impugned judgment & final order dated 05.01.2018 passed by the High Court of Chhattisgarh at Bilaspur, in M.CR.C. No. 3957 of 2017 whereby the Hon’ble High Court apart from granting bail to accused person in the matter concerned, has made it mandatory to obtain Aadhar Cards of accused persons and sureties

before

issuing

release

warrant

of

a

prisoner/accused in State of Chhattisgarh. 2. QUESTIONS OF LAW A. Whether the Hon'ble High Court was justified in issuing guidelines in state of Chhattisgarh directing for mandatory submission of Aadhar Cards of the accused and surety before issuing release warrants? B. Whether the Hon'ble High Court was justified in expanding the objects of ‘THE AADHAAR (TARGETED DELIVERY OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016’?

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9 C. Whether the Hon'ble High Court has misconstrued the judgment rendered by this Hon'ble Court in Binoy Viswam v. Union of India and Others (2017) 7 SCC 59 the challenge in which was specifically confined to provisions of Income Tax Act 1961? D. Whether the Hon'ble High Court failed to appreciate that there are already numerous instances of violations of rights of prisoners who are languishing in jail for want of sureties and the directions passed in the impugned judgment will makes more regressive conditions for release of prisoners? E. Whether the Hon'ble High Court was justified in issuing such mandatory directions in spite of the fact that constitutional validity of THE AADHAAR (TARGETED DELIVERY

OF

FINANCIAL

AND

OTHER

SUBSIDIES,

BENEFITS AND SERVICES) ACT, 2016 is sub-judice before the constitutional bench of this Hon'ble Court? F. Whether the Hon'ble High Court was justified in issuing mandatory guidelines for verification of Aadhar of accused and sureties on hand of executives and further grant of seven days’ time period for such verification wherein admittedly there is no machinery established for same?

3.

DECLARATION IN TERMS OF RULE 2(2) The Petitioner states that no other petition seeking leave to Appeal has been filed by the petitioner against the

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10 impugned final judgment and order. No writ appeal lies against impugned judgment. 4.

DECLARATION IN TERMS OF RULE 4: The Annexures P-1 to P- 2 produced along with Special Leave

Petition

are

true

copies

of

the

pleadings/documents which formed part of the records of the case in the Court/ Tribunal below against whose order the leave to appeal is sought for in this petition. 5.

The present special leave to appeal is sought on the following amongst others: GROUNDS I. Because the portion of the impugned judgment and final order issuing guidelines to the learned trail courts for obtaining Aadhar cards from the accused and sureties before issuing release warrant is perverse in law. Petitioner herein is only aggrieved from that portion of the impugned judgment and prayer is limited to setting aside of the guidelines issued by the Hon'ble High Court with regard to obtaining of Aadhar. Petitioner herein staunchly supports all the reforms positively being directed by the Hon'ble Courts for better administration of justice. II. Because the Hon'ble High Court has committed a grave error in law by issuing guidelines for mandatory submission of Aadhar Cards of accused and sureties before issuing release warrant in State of Chhattisgarh.

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11 III. Because the Hon'ble High Court failed to appreciate that challenge to the constitutional validity of the basis of Aadhar card i.e. THE AADHAAR (TARGETED DELIVERY OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016 is already sub-judice before the Constitutional bench of this Hon'ble Court and as such any such mandatory verifications for release of a prisoner is not justified. IV. Because the Hon'ble High Court failed to appreciate that there are thousands of prisoners and common persons who have been not been enrolled for Aadhar card and as such any mandatory verification of Aadhar card before release will violate their constitutional and statutory rights. V. Because the Hon'ble High Court has mis-construed the judgment of this Hon'ble Court passed in Binoy Viswam v. Union of India and Others (2017) 7 SCC 59 wherein there was challenge to the amendment in the Income Tax Act 1961, more so, this Hon'ble Court has partially stayed the provision by which the rights of the individuals were curbed retrospectively in want of Aadhar card. VI. BECAUSE the Hon'ble High Court has committed grave error in directing mandatory submission of Aadhar card of the accused and sureties of prisoners.

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12 VII. BECAUSE neither the legislature has intended for any such use of Aadhar Card in the ‘THE AADHAAR (TARGETED DELIVERY OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016 nor there is any judicial or other impartial body established under any law for such verification of Aadhar Cards of accused persons and sureties as directed by the Hon'ble High Court. VIII. Because the Hon'ble High Court has gravelly overstepped in issuing such mandatory guidelines imposing a new and un-reasonable condition on prisoners for coming out on bail. This will gravely hamper the rights of the prisoners who are languishing in jails and there Aadhar card has not been prepared till date. IX.

BECAUSE the Hon’ble High Court has ignored the situation of inability of verification of Aadhar where the person is old and handicapped whose biometrics cannot be accessed.

X. BECAUSE the Hon’ble High Court guideline would create a chaos in the state of Chhattisgarh, where there is no mechanism or a statutory body for verification of Aadhar Cards of the prisoners and sureties. XI. BEACAUSE the guidelines issued by the Hon'ble High Court is rather regressive than progressive in nature.

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13 XII. Because the mandatory requirement of Aadhar will violate the precious rights of the person confined who hasn’t enrolled for Aadhar Scheme. 6.

GROUNDS FOR INTERIM RELIEF: A. Along with the grounds raised in support of the present

special

leave

petition,

it

is

respectfully

submitted that if the guidelines directed in the impugned judgment are not stayed, it will create a serious violations of the rights of the prisoners across the state of Chhattisgarh. B. That the guidelines issued by the Hon'ble High Court in the impugned judgment is also contrary to the established principles of law. 7.

MAIN PRAYER: In aforesaid facts & circumstances, it is most respectfully prayed that YOUR LORDSHIPS may graciously be pleased to:i)

Grant Special Leave to Appeal against the final order dated 05.01.2018 passed by the High Court of Chhattisgarh at Bilaspur, in MCRC. No. 3957 of 2017; and

ii)

Pass such other order or orders as the nature and circumstances of the case may deem fit.

8.

PRAYER FOR INTERIM RELIEF:

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14 In aforesaid facts & circumstances, it is most respectfully prayed that YOUR LORDSHIPS may graciously be pleased to:i)

Grant ad-interim stay on the portion of impugned judgment and final order which issues guidelines with regard to obtaining of Aadhar cards of accused and sureties for issuance of release warrants and further related direction in State of Chhattisgarh;

ii)

Pass such other order or orders as the nature and circumstances of the case may deem fit.

AND FOR THIS ACT OF KINDNESS THE PETITIONER SHALL EVER PRAY AS DUTY BOUND DRAWN BY MANOHAR PRATAP [ADVOCATE] Drawn on: 11.01.2018 Filed on: 12.01.2018

FILED BY MANJU JETLEY ADVOCATE FOR PETITIONER

IN THE SUPREME COURT OF INDIA CRIMINAL APPPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL) NO._______ OF 2018 IN THE MATTER OF: PEEYUSH BHATIA

.…PETITIONER

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15 VERSUS STATE OF CHHATTISGARH & ANR

…RESPONDENT

CERTIFICATE Certified that the Special Leave Petition is confined only to the pleadings before the High Court whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents/ annexures attached to the Special Leave Petition are necessary to answer the question of law raised in the petition or to make out grounds urged in the Special Leave Petition for consideration of this Hon’ble Court. This certificate is given on the basis of the instruction given by the petitioner whose affidavit is filed in support of the Special Leave Petition. FILED ON: 12.01.2018 NEW DELHI FILED BY MANJU JETLEY ADVOCATE FOR THE PETITIONER

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRIMINAL) NO.______OF 2018 IN THE MATTER OF: PEEYUSH BHATIA

…Petitioner

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16 Versus STATE OF CHHATTISGARH & ANR. AFFIDAVIT

…Respondents

I, Peeyush Bhatia, aged 25 years, S/o- S K Bhatia, R/o- H.No. 77 Street No. 1, Anand Nagar, Junwani, Bhilai, Dist.-Durg, Chhattisgarh presently at New Delhi do hereby solemnly affirm and state as under:1.

That I am petitioner in the abovementioned Petition, and as such I am aware of the facts and circumstances of the case, hence entitled to swear this affidavit.

2.

That the contents of the accompanying Special Leave Petition consisting in paragraph 1 to 8 from pages 7 to 17 accompanied with Synopsis and List of Dates at Pages B to M and CRLMPs has been read over to me in vernacular language I say that same are true and correct to the best of my knowledge, belief and nothing material information has been concealed therefrom.

3.

That the Annexures P-1 to P- 2 are true/translated copies of their respective originals.

4.

That no other Special Leave Petition against the order impugned has been filed by the Petitioner before this Hon’ble Court. DEPONENT VERIFICATION: I, the above name deponent do hereby verify that the

contents of the above affidavit are true and correct to the best

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17 of my knowledge, belief and nothing material information has been concealed therefrom. No part it is false. Verified at New Delhi on this 12th day of January, 2018

DEPONENT