Category: Legal Articles

SC Reiterates That Section 50 NDPS Act Applicable Only In The Case Of Personal Search

Posted on | by Sanjeev Sirohi | Leave a Comment on SC Reiterates That Section 50 NDPS Act Applicable Only In The Case Of Personal Search

In a well-worded, well-drafted, well-articulated, well-reasoned and well-analysed judgment titled Jeet Ram vs. Narcotics Control Bureau, Chandigarh in Case No.: Criminal Appeal No. 688 of 2013 in exercise of its criminal appellate jurisdiction delivered as recently as on September 15, 2020, a three Judge Bench of the Apex Court has laid down in no uncertain terms that Section 50 of the NDPS Act is applicable only in the case of personal search. This the Supreme Court has reiterated unambiguously while affirming the conviction of an accused who was a temple priest. Very rightly so!

To start with, the ball is set rolling in para 1 of this latest, landmark and laudable judgment authored by Justice R Subhash Reddy for himself, Justice Ashok Bhushan and Justice MR Shah wherein it is observed that, “This appeal is filed by the sole accused, in Sessions Trial No. 7-5/2002 of 2001 on the file of Sessions Judge, Shimla, aggrieved by the judgment of conviction dated 11.12.2012 and further order of sentencing the appellant, dated 31.12.2012, passed by the High Court of Himachal Pradesh, Shimla in criminal Appeal No. 493 of 2003.”

To be sure, it is then revealed in para 2 that, “The appellant-accused was tried for a charge punishable under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). The Sessions Judge, Shimla by judgment dated 30.06.2003 acquitted the accused by recording a finding that the case of prosecution was not free from doubt and there were many infirmities in the case of the prosecution to hold that the accused was found to be in possession of charas, as alleged by the prosecution.”

To put it succinctly, it is then stated in para 3 that, “The case as put forth by the prosecution, briefly stated, is as under:

On 18.06.2001 the Intelligence Officer in the Narcotics Control Bureau (NCB), Chandigarh, by name – R.P. Singh (PW-4) was proceeding to Theog from Shimla. He was travelling along with PW-3 – O.P. Bhatt and other officials. In the transit they stopped at the dhaba to have meals which was near the Nangala Devi temple. When they ordered meals and tea and were waiting for the food to be served, the Intelligence Officer could smell the odour of charas. In the meanwhile, the Zonal Director of NCB, Chandigarh, by name – Rakesh Goyal, who was examined as PW-1 also reached the said dhaba. Then they have questioned the appellant-accused about the smell of charas and on such questioning he became nervous. As such there was increase of suspicion of the NCB officials. On asking the owner of the dhaba, he disclosed his name to be Jeet Ram and on further questioning he tried to run away. Then he was apprehended and taken to the counter of the dhaba. Just below the counter of the dhaba a gunny bag was found. When asked, appellant has replied – there is nothing in it. Then notice under Section 50 of the NDPS Act was given to the accused and appellant has consented to search the same by the NCB officials. Thereafter the bag was searched and the officers have found 13 Kg of charas. The charas was divided into two portions of 6 ½ Kg each and two packets were made which were marked as ‘X’ and ‘Y’ respectively. From each of these packets, two samples of 25 grams were drawn. The samples drawn from the packet – Mark ‘X’ – were marked as ‘X1’ and ‘X2’ and the samples drawn from packet – Mark ‘Y’ – were marked as ‘Y1’ and ‘Y2’. Thereafter all the four samples were sealed in a polythene bag by heat sealing process and were put in paper envelopes and seal with paper seals, signed by NCB officials as well as the appellant-accused Jeet Ram. On each sample seal no. 6 of NCB was affixed on all the four corners and the bulk charas in packets ‘X’ and ‘Y’  was sealed in paper parcels with six seals each. The seals were handed over to PW-1 and all the samples and the parcels were signed by NCB officials and accused. Further, in the statement recorded as contemplated under Section 67 of the NDPS Act, the appellant has admitted that for various reasons he was indulged in the trade of charas to increase his income. Thereafter a Panchnama was drawn which was signed by the appellant and he was arrested on 19.06.2001. The two samples of ‘X1’ and ‘Y1’ along with a letter were sent through PW-2 Hayat Singh to Chemical Analyst for analysis, who has vide his report opined that both the samples were of charas. On the said basis, the appellant-accused was charged and challaned for the offence under Section 20 of the NDPS Act.”

To put things in perspective, it is then stated in para 4 that, “When the charge is denied by the appellant-accused, he was tried for the aforesaid offence before the Sessions Judge, Shimla. To prove the guilt of the appellant, the prosecution has examined four witnesses in all, in support of its case. On behalf of the accused oral evidence was let in to show that the dhaba in question was not being run by him and he was employed as a priest in the nearby temple. After considering the oral and documentary evidence on record, the trial court by judgment dated 30.06.2003 acquitted the appellant-accused mainly on the grounds that – the prosecution case was not supported by any independent witness; the prosecution has failed to show that the seized charas was recovered from the dhaba of the appellant-accused and further there is no evidence to show that the appellant-accused was found in possession of the charas, as pleaded by the prosecution; there was non compliance of Section 50 of the NDPS Act; as the samples was handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying the same to the Central Laboratory at Delhi and these seals remained with the Director, as such the chances of tampering could not be ruled out and also on the ground that the case of the prosecution was unnatural and improbable.”

As it turned out, para 5 then states that, “Aggrieved by the judgment of the trial court, the NCB, Chandigarh has filed appeal as contemplated under Section 36-B of the NDPS Act read with Section 378 of the Code of Criminal Procedure before the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 493 of 2003. The High Court by reappreciating the evidence on record has come to conclusion that the prosecution has proved its case beyond reasonable doubt and also has proved that 13 Kg of charas was recovered from the possession of the appellant-accused, who was managing the dhaba in question, and set aside the judgment of the trial court and ordered conviction of the appellant for offence punishable under Section 20 of the NDPS Act. By further hearing the appellant, order dated 31.12.2012 was passed sentencing the appellant-accused to undergo rigorous imprisonment for 15 years and to pay fine of Rs. 2,00,000/- and in default, to undergo further imprisonment of one year. Aggrieved by the conviction recorded and sentence imposed by the High Court, this appeal is filed by the accused.”

Truth be told, the Bench then observes in para 9 that, “Having heard the learned counsel on both sides and on perusal of the record, we do not find any substance in any of the contentions advanced by the learned counsel for the appellant, except the submission on the quantum of sentence.”

Most significantly, the Bench then very rightly points out in para 10 that, “It is mainly contended by learned counsel for the appellant that the High Court/appellate Court was not justified in interfering with the judgment of acquittal passed by the trial court merely because another view is possible. As noted earlier, in support of his argument that merely because another view is possible, same is no ground to interfere with the judgment of acquittal by the appellate court, the learned counsel has relied on judgments of this Court in the case of Union of India v Bal Mukund & Ors. (2009) 12 SCC 161; Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210 and Rangaiah v. State of Karnataka (2008) 16 SCC 737. To counter the said submission, the learned Additional Solicitor General Sri Aman Lekhi has submitted that it is always open to the appellate court to review the evidence on record upon which order of acquittal is founded and if it comes to conclusion that the order passed by the trial court is erroneous and unreasonable, it is always open for the appellate court to interfere with the order of acquittal. It is contended that the view taken by the trial court is not a possible view having regard to evidence on record. Such erroneous finding can be corrected by the appellate court. In support of his argument, the learned Additional Solicitor General has placed reliance on the judgments of this Court in the case of Sanwat Singh & Ors. v. State of Rajasthan (1961) 3 SCR 120; Damodarprasad Chandrikaprasad v. State of Maharashtra (1972) 1 SCC 107 and Vinod Kumar v. State of Haryana (2015) 3 SCC 138. Though the ratio laid down in the judgments relied on by the learned counsel for the appellant is that the appellate court would not interfere with the judgment of acquittal only because another view is possible but at the same time whether the findings recorded by the trial court in support of acquittal are valid or not is a matter which is to be considered with reference to facts of each case and evidence on record. On close scrutiny of the depositions of the witnesses examined on behalf of the prosecution as well as on behalf of the accused, we are of the view that the findings recorded by the trial court are contrary to evidence on record and view taken by the trial court was not possible at all, as such the High Court rightly interfered with the same and recorded its own findings to convict the appellant. The trial court acquitted the appellant mainly on the ground that prosecution case was not supported by independent witnesses; conscious possession was not proved; non-compliance of Section 50 of the NDPS Act; proper procedure was not followed in sending the samples for examination and the case of the prosecution was unnatural and improbable. As rightly held by the High Court, this Court in the case of State of H.P. v. Pawan Kumar (2005) 4 SCC 350 has held that Section 50 of the NDPS Act is applicable only in the case of personal search, as such, there is no basis for the findings recorded by the trial court that there was non-compliance of provision under Section 50 of the NDPS Act. Even with regard to the finding of the trial court that the case of the prosecution was not supported by independent witnesses, it is clear from the evidence on record that the incident had happened at about 10:30 p.m. in a dhaba which is away from the village site and all other persons who are found in the dhaba were the servants of the accused.  It is also clear from the evidence on record that Suresh Kumar and Attar Singh examined on behalf of the appellant are closely related to the accused, as such, they could not be said to be independent witnesses. Pappu was the only other person who is none other than the servant of the dhaba and we cannot expect such a person to be a witness against his own master. Dealing with the issue of conscious possession, it is to be noticed that dhaba is constructed on the land which belongs to Kaushalya Devi who is none other than the wife of the accused. Further in deposition PW-4 has stated that when the accused was questioned as to who was the owner of the dhaba, he claimed to be the owner. The case of the prosecution was found to be unnatural and improbable by the trial court only on the ground that 13 Kg of charas was lying in open in a gunny bag. The trial court found that it is not believable that any person would keep such a huge quantity of charas in open condition. It is clear from the evidence of prosecution witnesses that the officials of NCB got information that trafficking of charas was going on in the area in question. Two police parties had left for Theog – one party headed by PW-4 B.P. Singh started earlier and second party headed by PW-1 Rakesh Goyal left a little later from Shimla. Thus the depositions of PW-4 R.P. Singh; PW-3 O.P. Bhat; PW-1 Rakesh Goyal and PW-2 Hayat Singh are consistent and trustworthy and cannot be said to be unnatural and improbable. Further it is also to be noted that the trial court has held that seal with which samples and remaining bulk of charas was sealed and handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying to Central Laboratory at Delhi and since the seals remained with the Director, the chances of tampering could not be ruled out. In this regard, it is to be noticed, as rightly held by the High Court, that the trial court totally lost sight of the fact that on 19.06.2001 JMIC, Theog had also appended his signatures on the samples as well as bulk parcels and, therefore, there was no chance of tampering of the samples. Further, there was no such suggestion of tampering either put to PW-1 Rakesh Goyal or to PW-2 Hayat Singh.”

Briefly stated, the key point of para 11 is that, “For the aforesaid reasons, we are of the clear view that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to evidence on record were rightly set aside by the High Court. As submitted by the learned Additional Solicitor General appearing for the prosecution, it is always open to the appellate court to reappreciate the evidence, on which the order of acquittal is founded, and appellate courts are vested with the powers to review and come to their own conclusion. The judgments in the case of Sanwat Singh; Damodarprasad Chandrikaprasad and Vinod Kumar also support the case of the respondent. For the aforesaid reasons, we reject the submission made by the learned counsel for the appellant. Even with regard to the plea of the appellant that the evidence on record on behalf of the prosecution is not sufficient enough to hold that the appellant-accused was in conscious possession of the seized material, also cannot be accepted. It is clear from the evidence on record that the appellant was on the counter of the dhaba which was constructed on the land owned by his wife near the temple and the charas was found in the counter of the dhaba in a gunny bag. The facts of the case show that accused not only had direct physical control over charas, he had the knowledge of its presence and character. In the statement recorded under Section 313 of Code of Criminal Procedure, though the appellant has referred to Brij Lal and Mantu in support of a version, contrary to that presented by prosecution but he has not chosen to examine either Brij Lal or Mantu. No defence witness has deposed to the chain of events, as has been stated by the appellant in the statement under Section 313 , Cr.PC. It is also fairly well settled that where accused offers false answers in examination under Section 313 Cr.PC, same also can be used against him. Further onus was on the appellant to explain the possession and in absence of the same being discharged, presumption under Section 54 of the NDPS Act also will kick in.”

Be it noted, it is then observed in para 12 that, “For the aforesaid reasons, we are of the view that the judgment of the High Court does not suffer from any infirmity so as to interfere with the judgment of conviction.”

Finally, while adding a rider, it is then held in the last para 13 that, “At the same time we find force in the submission of the learned counsel for the appellant in sentencing the appellant for 15 years rigorous imprisonment with a fine of Rs. 2,00,000/-. Having regard to peculiar facts and circumstances of the case and in view of the fact that the incident occurred in the year 2001 and as the appellant claimed to be a priest in the temple, who is now aged about 65 years, we deem it appropriate that it is a fit case to modify the sentence imposed on the appellant. Accordingly, the sentence awarded on the appellant is reduced to a period of 10 (ten) years, while maintaining the conviction and the penalty as imposed by the High Court. The order of sentence dated 31.12.2012 passed by the High Court stands modified. The appeal is partly allowed to the extent indicated above.”

All said and done, it may well be said that with a lot of painstaking efforts this latest, landmark and extremely laudable judgment has been absolutely right in inferring the logical conclusion and by citing the relevant case laws along with cogent arguments! All the courts of our country in similar such cases must always strictly adhere to the guidelines which have been laid down in this notable case and the reasoning adopted to reach the conclusion that we see here! There can be no denying or disputing as held by a three Judge Bench of the Apex Court in this case that, “Section 50 NDPS Act is applicable only in the case of personal search!”

Sanjeev Sirohi

Any Attempt To Vilify A Religious Community Must Be Viewed With Grave Disfavour: SC In Sudarshan TV Case

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“What has been happening does not do credit to our democratic system. India is a melting pot of civilizations, cultures and values, etc. Any attempt to vilify a community must be viewed with great disfavour by this court, which is the custodian of constitutional right. Its duty to enforce constitutional value demands nothing less. Every single person who applies to take the UPSC exam goes through the same selection process and the insinuation that one community was trying to infiltrate civil services  does great disservice to the nation.”

Who else can say such invaluable, intellectual and priceless words other than the eminent, distinguished and a senior Judge of the Supreme Court – Justice Dr DY Chandrachud whose every judgment is worth studying hundred times. I have just no hesitation to say that if the Ayodhya verdict has acquired a semblance of approval from people across religious lines, it was only because of Justice Dr DY Chandrachud who many reported in media was the one who really authored this most historic judgment with consummate ease which ended the more than 500 year old vexed dispute between Hindus and Muslims most peacefully! He is known to express his views always in the most outspoken, elegant and effective manner with cogent arguments being visible clearly in his learned judgments!                               On a personal note, I very strongly feel that India cannot be ever complete without Muslims. Just like Hindus, Muslims too form an integral part of India which cannot be ever denied! If Hindus and Muslims had stayed united firmly in 1947, leave alone the ‘Britishers’ even “God” could not have ensured the partition of India and we would have by now been the most powerful country in the world!

This “England” which was ruling us never wanted India to stay united and so it right from the start had sowed the seeds of hatred, distrust, division, discord and we have to blame ourselves that is “the people” and “the leaders” of those times for getting biased, trapped in their “most dirty game” and agreeing to the ‘horrible’ partition of India on the most “shameless, senseless and stupid” ground of religion due to which Pakistan came into existence even though Maulana Abul Kalam Azad, Khan Abdul Ghaffar Khan, Maulana Hasrat Mohani and many other Muslim leaders were deadly against partition of India on the ground of religion! It cannot be denied or disputed that this partition made a mockery of our freedom struggle as no true Indian ever wanted the partition of India on the basis of religion but “dirty politics” masterminded by “Britishers” with their “Indian agents” in India stole the show and India was thus partitioned most wrongly!

Needless to say, there has to be zero tolerance for hatred of any kind. This is exactly what the three Judge Bench of the Supreme Court comprising of Justice Dr DY Chandrachud, Justice Indu Malhotra and Justice KM Joseph have sought to convey by this latest, landmark and extremely laudable judgment titled Firoz Iqbal Khan vs Union of India & Ors in Writ Petition(s) (Civil) No.(s). 956/2020 delivered on September 15, 2020 even though the case is yet to finally conclude. The petition was filed by advocate Firoz Iqbal Khan who submitted that the programme on Sudarshan TV contained statements which were derogatory about the entry of Muslims into the civil services. Senior advocate Anoop Chaudhari for petitioner Firoz Iqbal Khan said that, “The show was blatantly communal and had become a focal point of hate speech.” The Apex Court by this leading judgment has restrained Sudarshan News from broadcasting remaining episodes of a show that has claimed to “expose” the “infiltration of Muslims” in the civil services. Very rightly so!

To start with, the ball is set rolling by first and foremost pointing in this notable judgment that, “Applications for interventions are allowed. On 28th August 2020, the writ petition under Article 32 of the Constitution was moved for urgent directions since the telecast of a programme titled “Bindas Bol” was to take place at 8 pm on Sudarshan news, the news channel of the fifth respondent. The petitioner relied on the transcript of a promotional clip of forty-nine seconds. The contention was that the clip contains statements which are derogatory of the entry of Muslims in the civil service. The Court declined to issue a pre-broadcast interlocutory injunction, furnishing the following reasons in paragraph 8 of the order:-

“8. At this stage, we have desisted from imposing a pre-broadcast interlocutory injunction on the basis of an unverified transcript of a forty nine second clip. The Court has to be circumspect in imposing a prior restraint on publication or the airing of views. We note that under statutory provisions, competent authorities are vested with powers to ensure compliance with law, including provisions of the criminal law intended to ensure social harmony and the peaceful coexistence of all communities.”

Several interlocutory applications have been moved before this Court including I.A. Nos. 91132, 91134, 91167, 91171, 91135, 91136 and 90940 of 2020.”

Be it noted, the Apex Court points out rightly that, “Since the order of this Court dated 28 August 2020, certain developments have taken place. On the same day as the previous order of this Court, a Single Judge of the Delhi High Court restrained the fifth respondent from broadcasting the proposed programme and directed the Ministry of Information and Broadcasting to consider whether there was a violation of the Programme Code under the provisions of the Cable Television Networks (Regulation) Act, 1995. A communication was addressed on 09 September 2020 by the Union Government to the fifth respondent to ensure that the broadcast of the programme is consistent with the provisions of the Programme Code. Since then, episodes of the programme based on the same theme have been broadcast on 11, 12, 13 and 14 September 2020. The remaining episodes comprising of a total of ten episodes are to be broadcast between 15 to 20 September 2020.”

To put things in perspective, the Bench then points out the petitioner’s version that, “On behalf of the petitioners, it has been submitted that the content of the episodes which have been telecast constitutes hate speech directed against the Muslim community. It has been submitted that the telecasts vilify the community by portraying it to be involved in act of terror or, as it is labelled, “jehad” in infiltrating the civil services of the nation. Hence, it has been submitted that the restraint which was observed by this Court in declining to issue an order of injunction on 28 August 2020 would warrant a change. It has been submitted that the circumstances which weighed this Court in declining to order a pre-broadcast injunction have substantially been altered. For one thing, it has been emphasized that in the course of the telecast, palpably false statements have been made in connection with the Muslim community, including among them the statements that:

(i)                         While the upper age limit for Hindus in the civil services examination is 32 years, the age limit for Muslims is 35 years; and

(ii)                      While six attempts are made available for Hindus to appear for the civil services examination, Muslims are entitled to nine attempts.

Screenshots of the programme which have been aired between 11 and 14 September, 2020 have been placed on record together with transcripts. It has been submitted that a carefully orchestrated attempt has been made to target the Muslim Community as being involved in a conspiracy to infiltrate the civil services.”

Most significantly, the Bench then very rightly underscores that, “The Court is presently seized with the hearing of the writ petition which will continue on the next available date of listing which is 17 September 2020. In the meantime, the issue is whether a pre-broadcast injunction should be issued in respect of the remaining episodes of the programme. At this stage, prima facie, it does appear to the Court that the intent, object and purpose of the episodes which have been telecast is to vilify the Muslim community. An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services. Several statements in the episodes, which have been drawn to the attention of the Court are not just palpably erroneous but have been made in wanton disregard of the truth. There is no relaxation either in the age limit or in the number of attempts available to the Muslim community in the civil services. The drift, tenor and content of the episodes is to bring the community into public hatred and disrepute. The Court is duty bound to ensure compliance with the salutary principles of the Programme Code. The Programme Code has been formulated under Rule 6 of the Cable and Television Networks (Regulation) Rules and has statutory force and effect. Rule 6(1)(c), inter alia, stipulates that no programme should be carried which “contains attack on religions or communities or visuals or words contemptuous of religious groups or which promotes communal attitudes”. Under Rule 6(1)(d), the Programme Code should not, inter alia, contain anything which is defamatory, false or reflective of “half-truths and suggestive of innuendos”. A breach of the Programme Code is subject to sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1995. The edifice of a democratic society committed to the rule of law under a regime of constitutional rights, values and duties is founded on the co-existence of communities. India is a melting pot of civilizations, cultures and values, etc. Any attempt to vilify a community must be viewed with great disfavour by this court, which is the custodian of constitutional right. Its duty to enforce constitutional value demands nothing less.”

Finally, the Bench then holds that, “Conscious, therefore, as we are of the previous order dated 28 August 2020 declining to issue a pre-broadcast injunction, we are of the view that there has been a change of circumstances, at least, prima facie, on the basis of the record which has emerged before this Court. On 28 August 2020, the Court was truly in the realm of a pre-broadcast injunction when even the first programme was to be aired. Since then, episodes have been aired between 11 and 14 September 2020 which indicate the content, tenor and object of the telecast in question. The remaining episodes admittedly will be in the same vein. On the basis of what has been aired, we are of the view that it will be necessary to interdict any further telecast. Consequently, we direct that pending further orders of this Court, the fifth respondent shall stand injuncted from making any further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 either under the same or any other title or caption. List on 17 September 2020.”

Truth be told, Justice Dr DY Chandrachud very rightly points out that, “This is not a freedom of speech issue. When you say students of Jamia are part of a conspiracy to infiltrate civil services, that is not permissible. You cannot target one community and brand them in a particular manner. As the Supreme Court of the nation, we cannot allow you to say that Muslims are infiltrating the civil services. You cannot say that the journalist has absolute freedom in doing this.” Advocate Shadan Farasat who appeared for the petitioner very rightly said that the show had vilified the image of Muslims in civil services. He rightly asked that, “How does one respond to a statement that Muslims should not be in civil services?” The Apex Court too was particularly miffed at this when it said that, “Look at this programme how rabid is this programme that one community is entering into civil services. Can such programmes be allowed in a free society? Your client is doing a disservice to the nation and is not accepting India as a melting pot of diverse culture. Your client needs to exercise his freedom with caution. We are not suggesting some kind of censorship on media but there should be some kind of self-regulation in media.”

No doubt, the Apex Court certainly has a valid point when it restrained Sudarshan TV from telecasting two episodes of “Bindas Bol” programme which are scheduled for Tuesday and Wednesday saying it prima facie appears to vilify the Muslim community. This no true Indian can ever accept under any circumstances just like no true Indian can ever justify what the fugitive Dr Zakir Naik preached and whose Peace TV channel is banned in India as he justified violent terrorism against non Muslims and who is now based in Malaysia! Similarly Solicitor General Tushar Mehta too rightly pointed out that, “Some channels were raising the bogey of “Hindu Terror” some time ago.”

To incite hatred or contempt against any religion cannot be ever justified under any circumstances! Justice KM Joseph also made it clear that, “Press freedom is not absolute and is in no way greater than that of the citizens.” No denying it!

Sanjeev Sirohi

Petitioner Fails To Explain Any Reason For Leaving Husband : Punjab and Haryana High Court

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Imposes Rs 25K Costs On Wife For Frivolous Plea For Protection From Husband and In-Laws

Let me not hesitate to begin by first and foremost stating that I very strongly feel that the time is ripe now for making many radical changes in our penal laws and treating woman on the same platform as man and as is repeatedly demanded most strenuously by many reputed woman organizations also not just in our country alone but all over the world! Just like adultery has been decriminalized unlike earlier when men alone was punishable for imprisonment of upto five years similarly laws must be so amended so as to treat women on par with men in all respects! There can be no denying or disputing it!

No doubt, there is now also a dire need to ensure that if a woman makes false accusations against any men then she is not allowed to get away scot free. She must also be made to pay just like men for her crime of making false accusations against any men whether he is her husband or a friend or a stranger! Not just this, I also very strongly feel that there must be a minimum of two years  imprisonment and maximum of five years imprisonment for anyone whether he/she is a man or a woman who makes false allegations against anyone without substantiating it due to which the reputation of that person affected on whom allegation is made suffers irreparably!

To start with, in a latest, landmark and laudable judgment titled Babita and another Vs State of Haryana and others in CRWP-6765-2020 delivered on September 3, 2020 by Justice Manoj Bajaj of Punjab and Haryana High Court, a cost of Rs 25,000 has been imposed on a woman for failing to explain why she had left her husband against whom she had approached the Court apprehending threat to her life. She failed to give any sound and valid reason for leaving her husband and for apprehending threat to her life. This alone explains why the Punjab and Haryana High Court took strong exception to it and imposed a cost of Rs 25000 on her for doing so!

At the outset, this noteworthy judgment begins by first and foremost pointing out in the opening para that, “By means of this writ petition, the petitioners have prayed for a writ of mandamus by way of directions to the official respondents to protect their life and liberty as they apprehend danger at the hands of private respondent Nos. 5 to 12.”

While elaborating on the facts of the case, it is then pointed out in the next para that, “Briefly, the facts as pleaded in the writ petition are that Babita (petitioner No. 1) was married to Manish (respondent No. 5) in the year 2008 and two children were born out of this wedlock. Petitioner No. 1 was dealt with cruelty by her husband and other members of her in-laws family. She gathered courage ten days back and left the matrimonial home with the help of petitioner No. 2. According to the pleadings, the petitioner No. 1 left the house as per her own will and is living at different places in the District Jhajjar. The petitioners apprehended that the private respondents would cause harm to them, therefore, they had given representations to official respondent Nos. 1 to 3 (Annexures P-1 to P-3) respectively. However, the representations have not been looked into so far and therefore, they have approached this Court for protection of their life and liberty.”

As it turned out, what is next illustrated in the new para of this significant judgment is this: “Learned counsel for the petitioners contend that the life of the petitioner No. 1 had become miserable in her matrimonial home and therefore, there were compelling circumstances for her to leave the company of her husband. It is pointed out that the private respondent Nos. 5 to 12 may cause harm to her and petitioner No. 2, who rendered his help. He prays that the appropriate directions be issued to the official respondents to provide protection to the petitioners.”

More significantly, Justice Manoj Bajaj without mincing any words took potshots at the way the petitions was drafted and said that, “After hearing learned counsel for the petitioners, this Court finds that the writ petition does not contain any pleading much less narration of a cause of action in favour of petitioner No. 2 for filing petition along with petitioner No. 1. Though the petition is verified by both the petitioners by appending their signatures, but no affidavit in support of the petition has been filed by petitioner No. 2. Apart from this, even in the representations submitted to the official respondents, petitioner No. 2 has not portrayed any grievance. Resultantly, this Court finds that the writ petition on behalf of petitioner No. 2 is without any valid cause of action and therefore, qua him, the petition is dismissed on this ground.”
While not finding much substance in the claims made by petitioner No. 1, the Court then points out that, “Considering the pleadings and submissions of learned counsel, this Court finds that petitioner No. 1 also does not deserve any concession, particularly when she  has failed to explain any reason for leaving the company of her husband. Besides, the petitioner No. 1 has given the address of her matrimonial home in the petition, but has claimed that she is residing at different places in district Jhajjar.”

More damningly and most significantly, it is then pointed out by the Court in simple and straight language without mincing any words that, “During the course of hearing, it is not disputed by learned counsel that no complaint has ever been made by petitioner No. 1 either against the husband or any of the other family members of the in-laws. Admittedly, the marriage is 12 years old and the children are also residing with the father. It does not appeal to prudence that after leaving the matrimonial home, the petitioner No. 1 has not contacted her parents, but chose to live alone at District Jhajjar. Except for the bald allegation that respondent No. 5 treated the petitioner No. 1 with cruelty, no supportive material has been placed on record by her. This Court finds that not only the petition for protection is founded on frivolous grounds, but it also amounts to abuse of the process of law. Apparently, the petitioner has not approached the Court with clean hands and has deliberately suppressed the material facts, therefore, this Court finds that she deserves to be saddled with costs.”

As a corollary, Justice Manoj Bajaj of the Punjab and Haryana High Court then finally concludes by observing directly and diligently that, “In view of the above, this Court does not find any reason to exercise the extra ordinary writ jurisdiction and the petition is dismissed with costs of Rs 25,000/- to be borne by petitioner No. 1. It is ordered that the costs be deposited in Bar Council of Punjab and Haryana, COVID-19 Relief Fund, within four weeks from today. Chief Judicial Magistrate, Rohtak shall ensure the recovery and deposits of the costs.”

To sum up, the long and short of this noteworthy judgment is that woman too now must be very cautious before approaching the Courts for relief in any particular case. It goes without saying that now woman must also ensure that she too just like men has approached the court with clean hands. She should no longer hope that like the past, she will immediately get an order in her favour just because she is a woman and normally it is seen that the courts always sympathizes with woman!

But times have changed now and the approach of the courts have also changed substantially! This latest verdict by none other than the Punjab and Haryana High Court is the biggest proof to substantiate this that a woman can no longer hope that she will promptly get relief from courts as courts now very carefully go deep into the concerned case and examine it from very close quarters and only after weighing the pros and cons pronounces its final decision! Now courts don’t hesitate to promptly impose court on the woman if it finds that there is no merit in her allegations, she just attempts to hoodwink the court and the precious time of the court has been wasted on utterly frivolous grounds having no merit at all!

So, without doubt, it is in the own best interest of a woman that she deeply examines all the allegations that she makes and finds it fully genuine and sustainable in any court. If she neglects here then she will have to cough up a huge amount as we see in this leading case.   There can be no denying it!

Sanjeev Sirohi

BMC’s Action At Kangana Ranaut’s Residence In Bandra Prima Facie Does Not Appear To Be Bona Fide And Smacks Of Mala Fides: Bombay HC

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   In a well-worded, well-analysed, well-justified and well-reasoned judgment titled Kangana Ranaut vs Municipal Corporation of Gr. Mumbai & Ors in Writ Petition (L) No. 3011 of 2020, a two Judge Division Bench of the Bombay High Court comprising of Justice SJ Kathawalla and Justice RI Chagla remarkably and rightly while restraining the Municipal Corporation of Greater Mumbai from carrying out any further demolition at Kangana Ranaut’s residence in Bandra could not restrain themselves from observing that if the Corporation acted with similar swiftness about the numerous unauthorized constructions in the city, this city would have been a completely different place to live in. Bombay High Court was absolutely shell shocked to see the astronomical speed with which the demolition work was carried out. It also noted that the civic body started the demolition work within 24 hours of giving the notice seeking a reply when the 33 year old actor Kangana Ranaut was not even in the State.

In this context, the former Maharashtra Chief Minister Devendra Fadnavis too jumped in the fray and did not hesitate to come out in full support of Kangana Ranaut who he felt was being selectively witch hunted because of her taking a strong stand against the Shiv Sena led State government in Maharashtra on a host of issues including the Sushant Singh Rajput death case. Fadnavis minced no words to condemn BMC’s move to demolish parts of Kangana’s office and raised serious question marks about why the Maharashtra government was not demolishing underworld don Dawood Ibrahim ‘s house located in Mumbai who is absconding ever since the March 12, 1993 serial bomb blasts in Mumbai which left about 257 dead and about 800 injured? Fadnavis further said that the Maharashtra government feels that our fight is not with Corona but with Kangana!

While narrating the key points and brief background of this notable case, the ball is set rolling by first and foremost observing in para 1 that, “The above Writ Petition is not on Board. The Associate of this Court has today at 11.30 a.m., placed before us a Praecipe along with an unaffirmed copy of the Writ Petition on behalf of the Petitioner, stating therein that as a result of a fall-out with certain influential people operating in the Administration and the Government, she has received a Notice dated 7th September, 2020 under Section 354A of the Mumbai Municipal Corporation Act, 1888 (‘the Act’) from the Executive Engineer, H/West Ward of the Municipal Corporation of Greater Mumbai (‘MCGM’) claiming that he has been satisfied that the Petitioner has unlawfully commenced, undertaken or carried out erection of building/erection of work, as described in the Schedule to the said notice. The said Notice further calls upon the Petitioner to produce documentary evidence proving authorization of the unauthorized work mentioned in the Notice; to stop the erection of the said building/execution of the said work forthwith and to produce permission, if any, obtained from the MCGM, within 24 hours from the service of the Notice. The Notice also provides that if the Petitioner fails to produce within 24 hours, the permission of MCGM to carry out the said works, MCGM shall under Section 354A of the Act, without any further notice, cause the said building or work to be pulled down at the risks and cost of the Petitioner.”

Furthermore, para 2 then says that, “It is further stated in the Praecipe that since 24 hours have elapsed, the Corporation is seeking to demolish the Petitioner’s residence today itself and therefore, the Court should restrain the Corporation from demolishing the premises of the Petitioner, who is currently out of Maharashtra and is expected to be in Mumbai today.”

As it turned out, it is then stated in para 3 that, “In view of the urgency and also in view of the fact that the Corporation has filed a caveat in this Court, the matter was directed to be placed at 12.30 p.m. today and the Advocate for the petitioner was asked to give notice to the MCGM.”

To put things in perspective, it is then pointed out in para 4 that, “Before we record as to what transpired before us at 12.30 p.m., we feel it necessary to set out a few facts in the matter:

4.1 The Petitioner is in use, occupation and possession of Bungalow No. 5, Chetak Row House, 41, Nargis Dutt Road, Pali Hill, Bandra (W), Mumbai – 400050 (‘the said Premises’).

4.2 On 8th September, 2020 at 10.03 a.m., MCGM pasted a Notice dated 7th September, 2020 on the outer door of the said Premises. The Notice under Section 354A of the Act, was addressed to the Petitioner by the Executive Engineer, H/W Ward, stating that the Executive Engineer is satisfied that the Petitioner has unlawfully commenced/is carrying out the erection of work described in the Schedule to the said Notice at the said Premises.”

Briefly stated, para 4.3 then mentions a long list of works observed “beyond approved” BCC Plan bearing No. CE/4349/BSIL/AH/dated 07.03.1979. It also directs petitioner to produce documentary evidence showing authorization of above mentioned works. It also directs petitioner to stop the erection of the said building/execution of the said work forthwith. It also further directs petitioner to produce permission approved by the competent authority in favour of erection of the building or execution of the work within 24 hours from the service of this notice and then warns that if petitioner fails to stop the execution of work forthwith or if stopped and fail to produce permission within 24 hours, then under Section 354(A) and in exercise of powers and function conferred upon me as aforesaid without any further notice cause the said building or work to be removed or pull down at petitioner’s risk and cost. It also pointed out that further note that you and /or any person directing/carrying out such erection/work shall be removed by Police Officer from the place where the building is being erected or work is being executed. It then noted: “And that any material, machinery, equipment, device or articles used in process of erection of building or execution of work will be caused to be removed without any further notice at your risk and cost. Lastly observed that, “Sketch (Not to the Scale).”

As a corollary, it is then stated in para 4.4 that, “The sketch shown in the Notice is extremely unclear and the ‘unauthorized’ works cannot at all be seen in this sketch.” This is a very important observation as the Bombay High Court says explicitly that the sketch is extremely unclear and in addition the ‘unauthorized’ works about which so much of brouhaha was made by the BMC cannot at all be seen in this sketch!

What then ensues is stated in para 4.5 that, “The Advocate for the Petitioner immediately served a Reply-Letter dated 8th September, 2020 to the Executive Engineer (B&F) H/W Ward and recorded therein that the allegations made by the MCGM in the said Notice are false and the same shall be forthwith dealt with by the Petitioner, who is expected to arrive in Mumbai on 9th September, 2020 and requested for a minimum of 7 days to respond and address the concern raised in the said Notice. By the said Reply-Letter, MCGM was called upon not to misuse its dominant position “to cause prejudice to the Petitioner with any hidden agenda coupled with ulterior motives”.”

Going ahead, para 4.6 then discloses that, “On 8th September, 2020, the MCGM filed its Caveat before this Court under Section 148-A of the Code of Civil Procedure, recording therein that the Petitioner is likely to file a Writ Petition before this Court challenging the Notice dated 7th September, 2020 issued by the MCGM to the Petitioner, pertaining to the said Premises and “LET NOTHING BE DONE in the above mentioned matter unless prior notice is given to the Corporation”. The MCGM also filed the Vakalatnama of its Advocate along with the said Caveat.”

Significantly, it is then stated in para 5 that, “The matter was called out at 12.30 p.m. However, for the first ten minutes, none appeared for the MCGM despite notice being served on them by the Petitioner’s Advocate. In the meantime, the Advocate for the Petitioner informed the Court that today morning at around 11.00 a.m., the MCGM moved its entire machinery and in the presence of several police officers, started carrying out the job of demolition by use of heavy machines and by now 40% of the said Premises is already demolished by the MCGM. Thereafter, an in-house Advocate of the MCGM appeared and informed the Court that they do not have a copy of the Writ Petition. The Advocate for the Petitioner informed the Court that a copy of the Writ Petition has been served on the MCGM. This Court inquired from the Advocate for the MCGM whether she at least had a copy of the impugned Notice issued by the Corporation to the Petitioner. The answer given was in the negative. When this Court inquired as to who is instructing her in the matter, she informed the Court that none of the Officers of the MCGM are present with her. Since the Court was of the view that the MCGM is trying to waste the time of the Court and in the meantime complete the demolition of the said Premises, the Advocate for MCGM was orally instructed by the Court to forthwith inform the Municipal Commissioner that the Court has directed the MCGM to forthwith stop the demolition work, in the light of today’s hearing pending before the Court. Since no clear assurance was coming from the Advocate that the Municipal Commissioner was so informed, the Court Associate at our instance tried to call up the Municipal Commissioner, whose cellphone was continuously switched-off. Ten minutes thereafter, the in-house Advocate for the Corporation informed the Court that the directions of this Court were conveyed to the Municipal Commissioner. About 15 minutes thereafter, Shri Sakhare, Senior Advocate, for MCGM appeared before the Court through video conferencing. In response to a query by the Court, he informed the Court that he too is not having a copy of the Writ Petition as well as copy of the impugned Notice and that the offices of the Corporation are not with him since he is appearing from his residence.”

More significantly, the Bench then without mincing any words lampoons in para 6 holding that, “We find the above conduct of the MCGM highly deplorable, more so since the MCGM was well aware that a Writ Petition would be filed by the Petitioner before this Court at any time, and an application seeking urgent orders will be moved by the Petitioner and MCGM had therefore filed a Caveat before this Court. We, therefore, informed Senior Advocate Shri Sakhare that such conduct on the part of the MCGM is totally unacceptable to the Court. However, Shri Sakhare immediately arranged to bring the Assistant Municipal Commissioner as well as the Executive Engineer (B&F) of H/W Ward of MCGM online to answer the queries raised by the Court.”

What’s more, it is then disclosed in para 7 that, “In response to the queries put to the Assistant Municipal Commissioner, H/W Ward as well as the Executive Engineer, they have informed the Court as follows:

7.1 That on 5th September, 2020 i.e. Saturday, the Building Mukadam whilst he was in the H/West Ward, noticed some work going on in the said Premises and also certain debris lying outside the said Premises.

7.2 The Mukadam informed about the same to the Assistant Engineer (B&F) of the MCGM.

7.3 The Assistant Engineer (B&F) of the MCGM, who is the Field Officer, informed about the same to the Designated Officer, (B&F), who is the Executive Engineer of H/W Ward of the Corporation.

7.4 The Executive Engineer along with others visited the said Premises on 7th September, 2020 at 11.00 a.m. (Monday), where Shri Nikhil Surve, Manager of the premises was also present. After Shri Nikhil Surve took permission from Ms. Rangoli, sister of the Petitioner over the phone, the Executive Engineer and others were given access to the said Premises. The Executive Engineer and others inspected the said Premises and prepared inspection notes, inspection report and also notice under Section 354A, addressed to the Petitioner, on the same day i.e. 7th September, 2020, and pasted the Notice on the outer door of the said Premises on 8th September, 2020 (Tuesday) at 10.03 a.m.

7.5 Exactly after 24 hours, MCGM started the demolition work, which is stopped few minutes back in view of the oral directions of this Court.”

Most significantly, it is then clearly and convincingly enunciated in para 8 that, “Section 354A of the Act (which is invoked by the MCGM by issuing the impugned Notice dated 7th September, 2020), sets out the ‘power of Commissioner to stop erection of building or work commenced or carried on unlawfully.’ From the works set out in the Notice, it is clear beyond any doubt that the works which are ‘unauthorised’ have not come up overnight. However, all of a sudden, the Corporation appears to have overnight woken up from its slumber, issued Notice to the Petitioner, that too when she is out of the State, directing her to respond within 24 hours, and not granting her any further time, despite written request, and proceeding to demolish the said Premises upon completion of 24 hours. Though the manner in which the MCGM has proceeded to commence demolition work of the said Premises, prima facie does not appear to be bonafide and smacks of malafide, we are giving an opportunity to the MCGM to explain its stand/conduct on Affidavit by 3.00 p.m. tomorrow.”

While rapping the MCGM on its knuckles, the Bench then also makes it a point to also say the unpalatable truth in simple, straight and suave language in para 9 that, “We cannot help but mention here that if the MCGM would act with similar swiftness qua the numerous unauthorized constructions in this City, the City would be a completely different place to live in.”

Finally, we then see that the Division Bench of Bombay High Court clearly, categorically and convincingly holds in para 10 that, “In the circumstances, we pass the following Order:

(i)                         We allow the Petitioner to carry out the necessary amendments to the Petition;

(ii)                      We direct the MCGM to file its affidavit in Reply by 3.00 p.m. tomorrow.

(iii)                   In the meantime, the MCGM is restrained from carrying out any further demolition qua the said Premises mentioned in the impugned Notice.

(iv)                   Stand over to 10th September, 2020 at 3.00 p.m.

No doubt, the MCGM and the Maharashtra State Government must seriously introspect after going through this latest, landmark and extremely laudable judgment by a two Judge Division Bench of the Bombay High Court in detail. No elected government nor the MCGM can ever dare to say goodbye to the “due process of law” and equality as enshrined in our Constitution under Article 14 which talks about equality and equal protection of law for all the citizens of India! Kangana Ranaut is a famous Indian actress with an impeccable reputation and the MCGM and the State Government should not have acted with undue haste in demolishing her residence in Bandra in Greater Mumbai.

On the contrary, the illegal houses like that of dreaded gangster Dawood Ibrahim along with others which the Courts have also sanctioned to be demolished must be promptly demolished by BMC and they should too not be given a long rope under any circumstances as most unfortunately we have been seeing till now as was pointed out even by former Maharashtra CM Devendra Fadnavis and even the Bombay High Court too has pointed this out most emphatically in this leading case also! Petty politics should not be allowed to triumph over our national interests under any circumstances as it gives a bad name to our country and severely damages the reputation of our country beyond repair where the high and the mighty are able to easily mould the law as per their own whims and fancies! There can be no denying or disputing it!

Sanjeev Sirohi

Lathi Linked To Village’s Identity, Not A Weapon Of Assault Simpliciter: SC

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          In a fresh, favourable and fine ruling titled Jugut Ram vs. The State of Chhattisgarh in Criminal Appeal No. 616 of 2020 (Arising out of SLP(Crl.) No. 7416 of 2018) in exercise of its criminal appellate jurisdiction delivered by a three Judge Bench of the Apex Court on September 16, 2020, it was made absolutely clear that the fact that a lathi is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. The deceased in this notable case died a day after the accused assaulted him with a lathi on the head. The subsequent chain of events shall be discussed later.

To start with, this latest, landmark and laudable judgment authored by Justice Navin Sinha for himself, Justice RF Nariman and Justice Indira Banerjee sets the ball rolling after granting leave in para 1 by observing in para 2 that, “The appellant avails his conviction under Section 302 of the Indian Penal Code (in short, “IPC”) and the consequent sentence of life imprisonment, upheld by the High Court.”

On the one hand, it is pointed in para 3 that, “Ms. Namita Sharma, learned counsel for the appellant, submits that all the four witnesses are related to the deceased. The two independent witnesses were not examined. The serological report with regard to the blood group of the deceased matching that alleged to have been found on the lathi have not been established. The recovery of the lathi has not been properly proved. The deceased did not die immediately, but succumbed to the injuries in the hospital. The assault was at spur of the moment with no premeditation. The appellant had also suffered injuries.”

On the other hand, it is then pointed in para 4 that, “Learned counsel for the State, Sri Sourav Roy opposing the appeal submits that the deceased was in possession of the field. The appellant was the aggressor. The deceased succumbed on the spot. The intention to cause death is apparent from the assault made on the head, a sensitive part of the human body. The appellant  cannot urge to have acted in self defence as he was the aggressor. He relies on State of A.P. vs. S. Rayappa, (2006) 4 SCC 512 and Laltu Ghosh vs. State of West Bengal (2019) 15 SCC 344, to contend that the evidence of related witnesses cannot be discarded.”

As a corollary, the Bench then holds in para 5 that, “We have heard learned counsel for the parties at length. There existed a civil land dispute between the parties. The occurrence is stated to have taken place on 23.11.2001 at about 02:00 P.M. while the deceased was harvesting crops. The appellant assaulted him with a lathi on the head. The deceased expired in the hospital the next day at about 07:45 P.M. The post mortem report proved by the Doctor, P.W. 13 found two contusions on the left and right parietal portion and fracture on the left parietal bone opining it to be dangerous to life. Other injured witnesses have confirmed that the appellant also suffered injuries in the occurrence.”

Frankly speaking, it is then disclosed in para 6 that, “The High Court on appreciation of evidence has come to the conclusion that the assault was not premeditated but had taken place in a heat of passion due to a land dispute. If the appellant had the intention, nothing prevented him from further assaulting the deceased. Nonetheless it maintained the sentence of the appellant under Section 302, IPC because death had taken place pursuant to the assault by him.”

Most significantly and most remarkably, it is then clearly and convincingly held in para 7 that, “A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question of fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh vs. The State of Punjab 1958 SCR 1495, which stand well established. Suffice it to notice from precedents that in Joseph vs. State of Kerala (1995) SCC (Crl.) 165, the appellant dealt two blows on the head of the deceased. The deceased died two days later. The post mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone extended up to the temporal bone. The High Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased. This Court observed as follows:

“3. …….The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years RI.”

While citing the relevant case law, it is then noted in para 8 that, “In Chamru Budhwa vs. State of Madhya Pradesh, AIR 1954 SC 652, the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was medically opined sufficient in the ordinary course to cause death. Conviction under Section 302, IPC followed. This court observed as follows:

“5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Indian Penal Code.

6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Indian Penal Code and will be sentenced to seven years’ rigorous imprisonment.””

On a similar vein, while citing the other relevant case laws pertaining to lathi are then discussed in para 9 which states that, “In Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635, the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death. Holding that the assault was made on the spur of the moment without premeditation  the conviction was altered from one under Section 302 to Section 304 Part II and a sentence of seven years was handed. Similarly in Mohd. Shakeel vs. State of A.P. (2007) 3 SCC 119, the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Section 302 IPC to 304 Part II, the appellant was sentenced to the period undergone since 1999.”

Be it noted, it is then observed in para 10 that, “We do not consider that Laltu Ghosh (supra) and S. Rayappa (supra), with regard to credibility of related witnesses, have any relevance to the issue in question being decided by us.”

As it turned out, it is then held in para 11 that, “We accordingly alter the conviction of the appellant from Section 302 IPC to Section 304 Part II, IPC. The appellant is in custody since 2004. He has already undergone the maximum period of sentence prescribed under the same. The appellant is, therefore, directed to be set at liberty forthwith unless wanted in any other case.” Finally, the last para 12 envisages that, “The appeal is allowed.”

To sum up, the bottomline of this noteworthy judgment is that lathi is linked to a villager’s identity and although it is also capable of being used as a weapon of assault, it is certainly not a weapon of assault simpliciter. This alone explains why the Bench altered the conviction of the accused from Section 302 IPC to Section 304 Part II IPC. This resulted in the early release of the appellant. Very rightly so!

Sanjeev Sirohi

Kerala HC Issues Some Future Guidelines For Maintaining Rape Victim Anonymity In Cases Filed Before It

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In a fresh and significant development, the Kerala High Court has just recently on September 9, 2020 in a latest, landmark and extremely laudable judgment titled X vs State of Kerala in Case No. : Crl. MC No. 3463 of 2020 issued some future guidelines for maintaining rape victim’s anonymity in the matters instituted before it. Justice PB Suresh Kumar who authored this recent, remarkable and righteous judgment while considering a petition arising out of a bail order passed by POCSO Court had observed that in several matters instituted before the High Court the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. This most condemnable and dangerous tendency has to be reined in and this is exactly what this brilliant, bold and balanced judgment seeks to do!

To start with, the ball is set rolling first and foremost in the introductory part as mentioned in para 1 which states that, “This is a proceedings challenging Annexure-4 order passed by the Special Court for Trial of Offences under the Protection of Children from Sexual Offences Act, Thalassery, in terms of which the sole accused in Crime No. 94 of 2020 of Panoor Police Station renumbered as Crime No. 33 of 2020 of CBCID, Kasaragode was enlarged on bail.”

While dwelling on the facts of the case, it is then enjoined upon in para 2 that, “The petitioner is the mother of the victim in the case. The victim is aged about 10 years. The second respondent who is the accused in the case is a teacher in the school where the victim is pursuing her studies. The accusation in the case is that the accused committed sexual assault on the victim girl on several occasions in between 15.01.2020 and 02.02.2020 at the bathroom of the school. The case was, therefore, registered for offences punishable under Sections 376(2)(f), 376AB and 354B of the Indian Penal Code (the IPC) and Sections 5(f), 5(l) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).”

Moving on, it is then illustrated in para 3 that, “The accused, on his arrest, moved the Special Court for bail on a few occasions and all the applications preferred by him in this regard have been dismissed. The accused, thereupon, moved this court for bail, and this court also declined bail to the accused in terms of Annexure – 3 order. Later, since the final report in the case has not been filed despite the accused being in custody for 90 days, the accused filed Crl.M.C.No.890 of 2020 before the Special Court for bail under Section 167(2) of the Code of Criminal Procedure (the Code). When the said application was pending, the final report in the case has been filed alleging commission of offences punishable under Sections 323 and 324 of the IPC and Sections 75 and 82 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Annexure – 6 is the final report. It is, however, stated in Annexure – 6 final report that the investigation in the case as regards the remaining offences is yet to be completed, and as and when the investigation is completed, supplemental final report would be filed in the matter. When the final report was filed, the accused filed Crl.M.C.No.1559 of 2020 in the pending proceedings, praying for orders to treat the proceedings as one instituted under Section 439 of the Code. In the meanwhile, the investigating officer in the case filed an application seeking permission of the court for conducting further investigation in the matter under Section 173(8) of the Code and the Special Court allowed the said application. The Special Court took the view that insofar as the investigation in the case has not been completed despite the accused being in custody for 90 days, the accused is entitled to bail, and accordingly he was enlarged on bail in terms of Annexure – 4 order. As noted, the petitioner is aggrieved by Annexure – 4 order.”

But the petitioner’s arguments failed to impress the Kerala High Court.  The accused was found to be entitled to bail under Section 167(2) of the Code. The Criminal M.C. was found to be without merits and the same was accordingly dismissed!

Most significantly and most remarkably, the Kerala High Court in its final order without mincing any words goes on to observe that, “It is observed that in several matters instituted before this court where victim anonymity is to be maintained, the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. It is also observed that though documents revealing the identity of the victim are produced in sealed covers in the light of the decision of the Apex Court in Nipun Saxena and another v. Union of India and others, (2019) 2 SCC 703, there is no system in place to maintain victim anonymity, once the sealed covers are opened by the court. In the case on hand, it is observed that the opened cover containing the documents were sent back to the section and brought back from the section to the court on the subsequent hearing dates. It is also observed that there is no system in place for disposal of the documents produced in sealed covers, after the final disposal of the case. Similarly, it is observed that the registry is insisting copies of the documents revealing the identity of the victims to be given to the opposite parties in the matter. There is no system in place to maintain victim anonymity in such situations. Needless to say, the procedure in place to maintain victim anonymity is against the spirit of Section 228A of the Indian Penal Code, Sections 24(5), 33(7) and 37 of the Protection of Children from Sexual Offences Act, 2012, and the decision of the Apex Court in Nipun Saxena. In the circumstances, the following directions are issued for future guidelines for maintaining victim anonymity in the matters instituted before this court:

1.  The criteria for deciding the identity of the victim shall include the identity of the family of the victim, the school/college of the victim, the place of work of the victim, the relatives of the victim, the neighbourhood of the victim and all other information from which the identity of the victim would be revealed.

2.  In all proceedings instituted by or on behalf of the victim and against them, documents in which the identity of the victim is disclosed, either required in terms of the rules of the court or produced by the parties concerned to substantiate their case, shall be insisted to be filed in a sealed cover.

3.  The registry shall designate an officer for the proper custody of documents produced in, sealed covers in cases where victim anonymity is to be maintained and shall provide to that officer necessary infrastructure for keeping custody of the documents. Such officer shall be bound by the highest standards of confidentiality.

4.  After the matter is numbered, registry shall forward the documents received in sealed covers in a self-sealing bag/envelope of appropriate size preferably one having a provision for tamper proof seal as well, or in other similar tamper proof bag/envelope, after affixing on it a label indicating the particulars of the case under the signature of the Filing Scrutiny Officer concerned to the designated officer for custody and that officer shall ensure that the documents are made available to the court as and when the matters are listed for hearing.

5.  If the self-sealing bag/envelope in which the documents are kept is opened by the court for perusal of the documents, after the purposes of the court, the same shall be kept in a fresh self-sealing bag/envelope and returned to the designated officer, after affixing on the same a new label indicating the particulars of the case under the signature of the Court Officer concerned. If the self-sealing bag/envelope is opened subsequently by the court, the same procedure directed herein-above shall be repeated.

6.  The parties producing documents disclosing the identity of the victims need not have to keep or give copies of the same to the opposite parties and they need only refer to such documents in their pleadings.

7.  If the lawyers appearing against the victims require/need to peruse the documents in the sealed covers, they shall peruse the same with the permission of the court and if they are permitted by the court to peruse the documents, the documents shall be preserved in the same manner indicated in the preceding directions.

8.  These directions shall be in force until replaced by the Honourable the Chief Justice by appropriate practice instructions.

To sum up, the key point of this well-articulated, well-reasoned and well-drafted judgment are the various guidelines that have been just enumerated above that are imperative for maintaining the rape victim anonymity in cases filed before it. All these guidelines must be followed sincerely and strictly by all the concerned courts in letter and spirit. It brooks just no argument and no delay anymore now!

Sanjeev Sirohi

Criminal Prosecution On Same Allegations Cannot Continue If Exoneration In Departmental Proceedings Is On Merits: SC

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In a latest, landmark and laudable judgment titled Ashoo Surendranath Tiwari vs Deputy Superintendent Of Police, EOW, CBI & Anr. in Criminal Appeal No. 575 of 2020 (arising out of SLP (Crl.) No. 5422 of 2015), the Supreme Court has held explicitly, effectively and elegantly that in a case of exoneration in departmental proceedings on merits and where the allegation is found to be not sustainable at all and the person is held innocent then criminal prosecution on the same set of facts and circumstances cannot be allowed to continue. The three Judge Bench headed by Justice RF Nariman observed clearly, categorically and cogently that standard of proof in a departmental proceeding being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. Very rightly so!

To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice RF Nariman for himself, Justice Navin Sinha and Justice Indira Banerjee wherein it is observed that, “We have heard Mr Subhash Jha, learned counsel appearing for the appellant and Mr Vikramjit Banerjee, learned ASG appearing on behalf of the respondent.”

While narrating the facts of the case, it is then stated in para 3 that, “This case arises out of an FIR that was registered on 09.12.2009 as regards a MSME Receivable Finance Scheme operated by the Small Industries Development Bank of India (SIDBI). It was found that since some vendors were complaining of delay in getting their payments, SIDBI in consultation with Tata Motors Limited, advised the vendors of Tata Motors Limited to furnish RTGS details for remittance of funds. It was found that for making payments in RTGS for various purchases made by Tata Motors Limited from one Ranflex India Pvt. Ltd. (hereinafter referred to as “vendor”), 12 payments amounting to Rs. 1,64,17,551/- (Rupees one crore sixty four lakhs seventeen thousand five hundred fifty one only) were made through RTGS by SIDBI in the vendor’s account with Federal Bank, Thriupporur. Ultimately, SIDBI was informed by the vendor that it has an account with Central Bank, Bangalore and not with Federal Bank, Thriupporur. On account of this diversion of funds, an FIR was lodged in which a number of accused persons were arrested. We are concerned with the role of the appellant who is Accused no. 9 in the aforesaid FIR.”

While continuing in the same vein, it is then brought out in para 4 that, “A charge-sheet was then filed on 26.07.2011 in the Court of Special Judge, CBI cases in which it was alleged that the appellant had received an email on 25.05.2009 containing the RTGS details for the account with Federal Bank, Thrippour, which he then forwarded to Accused No. 5 (Muthukumar) who is said to be the kingpin involved in this crime and is since absconding. Apparently, based on Muthukumar’s approval, the appellant then signed various cheques which were forwarded to other accounts.”

To be sure, it is then further brought out in para 5 that, “By an order dated 27.06.2012 passed by the learned Special Judge, CBI (ACB), Pune, it was found that since no sanction was taken under the Prevention of Corruption Act, offences under that Act cannot, therefore, be proceeded with against this accused and he was discharged to that extent. So far as sanction under Section 197 of the Cr.P.C. is concerned, the Special Judge came to the conclusion that there was no need for sanction in the facts of this case. Finding that there was a prima facie case made out against the appellant, the Special Judge refused to discharge the appellant from the offences under the IPC.”

Briefly stated, it is then disclosed in para 6 that, “By the impugned judgment dated 11.07.2014, the High Court agreed with the learned Special Judge that there was no need for sanction under Section 197 Cr.P.C. The High Court then considered an Order of the Central Vigilance Commission (CVC) dated 22.12.2011 which went into the facts of the case in great detail and concurrent with the Competent Authority that on merit no sanction ought to be accorded and no offence under the Penal Code was in fact made out.” It is further pointed out in this same para that though this report was heavily relied upon before the High Court, the High Court had brushed it aside.

Needless to say, it is then further pointed out in this same para 6 that, “A reading of this Report shows that, at the highest, the appellant may be negligent without any criminal culpability. In fact, the positive finding of the CVC that the appellant appears to be a victim of Muthukumar’s plot is of some importance.”

Most significantly, the key point that is then mentioned in para 7 is that, “A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt.” The relevant case law cited in para 7 first is that of P.S. Rajya vs State of Bihar, (1996) 9 SCC 1. The other relevant case law cited is that of Radheshyam Kejriwal vs State of West Bengal and Another (2011) 3 SCC 581. It is then pointed out that, “After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows:-

‘38. The ratio which can be culled out from these decisions can broadly be stated as follows:-

(i)                         Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii)                      Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii)                   Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv)                   The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v)                      Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi)                   The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of binding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii)                In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.’

Finally, the last important point made in para 7 is that it is pointed out in simple and straight language that, “From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated.”

Now regarding this latest, landmark and laudable judgment, it is then held in the last relevant para 8 that, “Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22.12.2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code.”

To conclude, the three-Judge Bench of the Apex Court set aside the judgment of the High Court and that of the Special Judge and gave reasons also which we have already discussed above citing the relevant case laws. Para 38(vii) is very important and sums up the essence of this latest ruling which has been discussed threadbare already above! There can be no denying or disputing it!

Sanjeev Sirohi

Duty Of State Is To Save Lives Of Those Infected With Covid; Non-Availability Of ICU Ventilators Cannot Be A Reason For Denying Admission: Bombay HC In Suo Motu Case

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  At a time when Maharashtra is among the worst affected State in whole of India with most number of persons suffering from Covid, the Bombay High Court has commendably, courageously and correctly in a suo motu case titled Court On Its Own Motion Vs. Union Of India Through Its Secretary And Others on September 10, 2020 in a Suo Motu Public Interest Litigation No. 4 Of 2020 taken suo motu cognizance of safety issues faced by the general public due to the non-availability of ventilators and oxygenated beds for Coronavirus patients with moderate and severe conditions in order to reduce the death rate in Nagpur. If the courts will not speak up for the people then who else will? What can one expect from politicians who are at present too busy with several other petty issues which they consider far more important? This bold, brilliant and brave initiative taken by a Division Bench of Justice RK Deshpande and Justice PV Ganediwala of the Nagpur Bench of Bombay High Court has to be applauded, appreciated and admired in no uncertain terms!

Coming straight to the nub of the matter, it is first and foremost pointed out in para 3 of this latest, landmark and extremely laudable judgment that, “The main issue which requires our immediate attention is of making the ventilators and oxygenated beds available to the patients of moderate and severe conditions so as to reduce the death rate. The people are required to travel from one Hospital to another with serious patients and for want of accommodation, the newspaper report shows that the deaths are occurring. We must note with regret that for want of medical aid, the people are falling prey to Corona Virus. We, therefore, thought that without going into the legal niceties, an immediate arrangement can be worked out to reduce the death rate. Hence, we try to work out the solution.”

No doubt, this burning issue directly affects the common person. It cannot be allowed to lie unattended and unaddressed for a long time. So it was in the fitness of things that the Bombay High Court decided to address it promptly which is the crying need of the hour also! No denying it!

Without mincing any words, the Bench then also makes it a point to say in simple, suave and straight language in para 4 that, “It is not the case of the parties including the Municipal Commissioner, Nagpur; the Collector, Nagpur, the Deans of GMCH and IGMC, Nagpur that the infrastructure facilities namely, ICU, Ventilator beds or oxygenated beds are not available, of course, this cannot be the reason for the State and it is the duty of the State to make all such infrastructural and medical facilities available to save the life of people who are affected or are likely to be affected by Corona Virus.”

Most commendably, what is even more heartening to note is that it is then also made clear in para 5 that, “The problem of non-availability of the medical and para-medical staff can also not be a problem to deny the admission in the Hospital to the patients. Even private Doctors are under obligation to provide the treatment. The preservation of human life is of paramount importance. Once the life is lost, it cannot be restored. Every Doctor whether he is in Government or Semi-Government Hospitals or private professional is under obligation to extend his services with due expertise for protecting the life. Even private Doctors cannot refuse to render their services during pandemic in all such Hospitals where they are called or their services are needed. Similar is the position in respect of para-medical staff. It is the obligation on the State to secure adequate para-medical staff from all such sources as are available and non-availability of it cannot be countenance.”

Be it noted, it is then pointed out in para 6 that, “Fortunately, Dr Archana Kothari, the President of Indian Medical Association and Dr. Anup Marar, the Director of Orange City Hospital and Convenor of Hospitals Association have joined us in this matter on their own, showing willingness to tackle the problem. They have, however, expressed the difficulties of the Doctors who are 65 years of age and above or are suffering from co-morbidities to take responsibility of providing treatment by personally attending the patients in various Hospitals or Dedicated Covid Health Centres (DHCs).”

To put things in perspective, the Bench then points out in para 7 that, “We find that there is a classification of patients in different categories – broadly, it is in three categories of mild, moderate and severe. These are further classified as asymptomatic positive patient, symptomatic patient with co-morbidity, symptomatic patient with pneumonia without hypoxia, symptomatic patient with pneumonia with hypoxia and symptomatic patient with pneumonia with hypoxia with sepsis/shock/organ failure. From the affidavit filed by the Dean GMC, we find that there is a set treatment which is provided to different categories of patients of Covid-19 with such variations to be made by the consulting Doctors keeping in view the specific issue relating to the patients. The investigations are also by and large fixed.”

Frankly speaking, it is then conceded in para 8 that, “So far as Doctors of 65 years of age and onwards with co-morbidities, it may be possible keeping in view the experience which they possessed in the profession, to provide guidance in respect of investigation and treatment to be administered to a particular patient through various means of communication like personal contact on cell phone, sending of reports through Whatsapp in pdf or looking the condition of the patient through Video Call and also conducting the conference. We have seen and experienced also that the Doctors who are infected with Covid-19, are managing and administering the patients in the Hospitals while they are in home isolation. It does not seem to be a difficult task to manage the patient by the Doctors.”

Needless to say, it is then rightly advised in para 9 that, “The services of the Ayush Doctors or PG students or students in Super Speciality can be utilized and they can work under the guidance and instructions from the senior Doctors through various communication systems pointed out earlier.”

No doubt, the Bench then feels relaxed to point out in para 10 that, “We are assured by Dr. Archana Kothari, the President, IMA and Dr. Anup Marar, the Convenor of Private Hospital Association that within a day they shall provide a list of private Doctors in different age group, who can provide their services either by personally attending the patients or through various communication systems. Such list shall contain addresses and contact number of Doctors.”

Furthermore, the Bench also makes it known in para 11 that, “We are informed and it is placed on record that the Collector, Nagpur, has in exercise of its statutory powers constituted a Task Force consisting a team of 12 Doctors. Upon receipt of a list from the IMA and Hospitals Association, the Municipal Commissioner shall in consultation with the Task Force assign the duties and responsibilities to the Doctors in various Hospitals and DCHCs to take the responsibility of treating the patients. This shall be done within a period of 24 hours upon receipt of the list by the Municipal Commissioner who shall communicate the duties and responsibilities along with the Centres and Hospitals to the concerned Doctors from the list. Shri Radhakrishnan, the Municipal Commissioner submits that presently if this arrangement is made, the problem can be tackled.”

Not stopping here, the Bench then also discloses in para 12 that, “We are assured by the Collector to make available the para-medical staff in the concerned Hospitals and DCHCs. The question of payment to these Doctors and para-medical staff can be considered by the appropriate authorities. However, it can be settled subsequently also and this shall not be a condition precedent to render the services by the Doctors or para-medical staff. We expect all the Doctors and para-medical staff assigned with the duties and the place of work shall discharge their obligation with promptitude and that this Court does not receive any complaint in respect of “no response” from any such member.”

Simply put, the Bench then candidly points out in para 13 that, “The judges and the lawyers have made themselves available 24 x 7 to serve the causes in pandemic situation and there would be nothing wrong to expect the medical and para-medical staff to be available 24 x 7 in this pandemic situation. We want all the Doctors and para-medical staff to rise on the occasion of severity in recognition of our observations in para 31 and 32 of the decision in the case of Citizen Forum for Equality in LD-VC-PIL No. 12 of 2020, decided on 01.06.2020, as under:

8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasized and reiterated with gradually increasing emphasis of that position. A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.  ……..

14. It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life. It could not be disputed that inspite of development economical, political and cultural still citizens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospital (run or managed by the State) public authority or a private persons or a medical professional doing only private practice he is always called upon to rush to help such an injured persons and to do all that is within his power to save life. So far as this duty of a medical professional is concerned its duty coupled with human instinct, it needs no decision nor any code of ethics nor any rule of law. …….

15. Medical profession is a very respectable profession. Doctor is looked upon by common man as the only hope when a person is hanging between life and death but they avoid their duty to help a person when he is facing death when they know that it is a medico-legal case. To know the response of the medical profession the Medical Council of India and also the All India Medical Association were put to notice and were requested to put up their cases.”

Most significantly, the Bench then very rightly holds in para 15 that, “We do not want a situation to occur where the patients are required to travel from one Hospital to another to secure the position in ICU, ventilated beds or oxygenated beds or due to non-availability of the services of medical and paramedical staff. If any patient requires medical assistance and approaches any Hospital or DCHC where such facility is not available for any reason whatsoever, such Hospitals or DCHCs should immediately make necessary enquiry and help the patient to reach to the proper destination. It shall be the duty of the Municipal Commissioner and the Task Force to see that all the Hospitals and DCHCs should provide the information and contact numbers of the Hospitals where such facilities can be easily made available and the patients are not required to travel from pillar to post. We have seen the affidavit of the Municipal Commissioner and we find that such responsibility is shouldered by the Municipal Commissioner. We also expect the task Force to spring in action to supervise the infrastructural facilities and man power in the Hospitals and DCHCs.”

For the sake of clarity, the Bench then holds in para 16 that, “We make it clear that there should be no prohibition for the patients of COVID-19 to have consultation with the Doctor of their choice who can visit and examine the patient anywhere in any Hospital or DCHC and advice investigation and medication. This will reduce the responsibilities of others.”

To summarize, the Bombay High Court Nagpur Bench in a suo motu case correctly, courageously and commendably very rightly points out that it is the duty of the State to save the lives of those infected with Covid and non-availability of ICU ventilators cannot be a reason for denying admission! Very rightly so! The Bench will further hear on this on 15.09.2020 for further direction as pointed in para 17! We have to keep our fingers crossed till then!

Sanjeev Sirohi

Writ Petition Not Maintainable Against Judicial Order Passed By High Court: SC

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In a well-reasoned, well-analysed, well-drafted and well-articulated judgment titled Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs Transferred Case (Criminal) No. 1 of 2020 delivered on September 3, 2020, the Supreme Court has held that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. It held that, “Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226.” Very rightly so!

To start with, a two Judge Bench of Apex Court comprising of Justice DY Chandrachud and Justice KM Joseph sets the ball rolling by first and foremost observing in para 1 wherein it is pointed out that, “The petitioner instituted a writ petition (Writ Petition 44237 of 2018) under Article 226 of the Constitution seeking to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the High Court of Karnataka in the exercise of the criminal revisional jurisdiction. The relief which was sought in the writ petition was that the judgment of a Single Judge of the High Court dated 31 July 2018 in Criminal Revision Petition 282 of 2018 “may be declared void/disabled/recalled”. For convenience of reference, the prayers in the writ petition are extracted below:

“1. The Writ may be permitted.

2. Judgment dt 31.7.2018 passed in Crl RP 282/2018 may be declared void/disabled/recalled to protect rights and secure probity in public life.

3. De novo/Fresh – Free hearing may be recommended before a higher/full Bench”.”

To put things in perspective, it is then revealed in para 2 that, “The writ petition before the High Court has been transferred to this Court on 13 December 2019 under Article 139A of the Constitution in Transfer Petition (Criminal) No. 342 of 2019. The order of transfer reads thus:

“Having heard the petitioner-in-person and the learned counsel appearing for the respondents and gone through this transfer petition filed under Article 139A of the Constitution of India and considering the facts and circumstances of the case, we deem it fit and proper to transfer W.P. No. 44237/2018 titled as “Neelam Manmohan Attavar Vs. Manmohan Attavar (D) through LRs” from the High Court of Karnataka to this Court.

We order accordingly.

The Registry is directed to immediately transmit a copy of this order to the High Court forthwith.””

While elaborating in detail the sequence of events, it is then stated in para 3 that, “The proceedings which have culminated in the institution of a writ petition under Article 226 of the Constitution before the High Court need to be summarized briefly at this stage. The petitioner instituted proceedings (Criminal Misc – Petition No. 179 of 2013 renumbered as Criminal Misc Petition No. 139 of 2015) under Section 12 of the Protection of Women from Domestic Violence Act 2005 (Act). On 30 July 2015, the petition was dismissed by the Metropolitan Magistrate, Traffic Court-II, Bengaluru. On 5 November 2015, in an appeal (Criminal Appeal No. 1070 of 2015) arising out of the dismissal of the proceedings, the interim relief seeking residence and expenses was initially refused by the Additional Sessions Judge, Bengaluru. Subsequently, on 19 September 2016 in a petition (Writ Petition No. 49153 of 2016) under Article 226 filed by the petitioner, the Single Judge recognised a right of residence to the petitioner in a house situated at Bengaluru and, on 24 October 2016, directed the withdrawal of the appeal to the High Court. These orders of the High Court became the subject matter of proceedings before this Court in Civil Appeal Nos. 2500 and 2502 of 2017. On 14 July 2017, this Court set aside the orders passed by the High Court in regard to residence and for the withdrawal of the appeal to itself. On 17 August 2017, this Court also dismissed a petition seeking a review of its judgment dated 14 July 2017. As a consequence of the judgment rendered by this Court, the appeal filed by the petitioner before the Additional City Civil and Sessions Judge was heard on merits and was eventually dismissed by an order dated 17 February 2018. The petitioner carried the matter in revision (Criminal Revision Petition No. 282 of 2018) which was dismissed by the High Court on 31 July 2018. Challenging the order of the High Court, the petitioner filed a writ petition under Article 226 of the Constitution. The writ petition has been transferred to this Court under Article 139A by an order of this Court dated 13 December 2019.”

While narrating the petitioner’s version, it is then pointed out in para 4 that, “The petitioner who has appeared in person has submitted that the writ petition under Article 226 is maintainable on the ground that the order dated 31 July 2018 of the High Court is void ab initio. Elaborating her submissions, the petitioner has urged that the order has not been written by the Judge of the High Court. Moreover, the petitioner submits that the High Court, while disposing of the criminal revision, has not exercised its jurisdiction in a manner consistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. On merits, the petitioner has assailed the correctness of the findings of the High Court, which affirmed the judgment of the appellate court and held that the original respondent with whom the petitioner claims to have entered into a relationship ‘in the nature of marriage’ had a subsisting marriage, and hence such an alleged relationship could not have been legitimately recognized in law. The petitioner has challenged this finding of the High Court, together with the other findings to the effect that (i) there was no shared household; and (ii) there was no proof of marriage. The petitioner challenges these findings on the ground that they are erroneous.”

Furthermore, while continuing in the same vein, it is then further pointed out in para 5 that, “The petitioner has further submitted that in order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”

Be it noted, it is then pointed out in para 8 that, “The original respondent has died on 12 December 2017. His Legal Representatives have been impleaded as parties to the writ petition.”

Most significantly, it is then held clearly and convincingly in para 9 that, “Having heard the petitioner who appears in person and Mr. Balaji Srinivasan, learned counsel appearing on behalf of the Legal Representatives of the original respondent, we are of the view that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”

What’s more, it is then held in para 10 that, “In the present case, the order dated 31 July 2018 is amenable to the jurisdiction of this court under Article 136 of the Constitution. Though the petitioner has attempted to urge the merits of her grievances against the order of the High Court in these proceedings, we are not inclined to express any opinion on them, so as not to preclude the rights and remedies which are open to the petitioner in the form of a petition under Article 136 of the Constitution. Though the order of the High Court was passed on 31 July 2018, the petitioner who has appeared in person had initially instituted a writ petition under Article 226 which, as we have noted earlier, was transferred to this Court on 13 December 2019. Should the petitioner choose to espouse the remedy which is available under Article 136 of the Constitution, it would be open to her to explain the delay which has been occasioned on the ground that she was pursuing a remedy which has, by this order, been found to be not maintainable. We, thus, leave open specifically all the rights and contentions of the petitioner in a substantive challenge to the judgment of the High Court dated 31 July 2018 in proceedings under Article 136 of the Constitution.”

As it turned out, it is then made palpably clear in para 11 that, “Before concluding, it would be necessary for the Court to record that having regard to the fact that the petitioner appears in person, the Court had indicated to her that an amicus curiae may be appointed to assist her in preparing the case without obviously, any involvement of financial expenditure on her part. The petitioner has declined legal assistance stating that she is competent to pursue her own rights and remedies.”

Finally, it is then held in the last significant para 12 that, “For the above reasons, while we have come to the conclusion that the writ petition under Article 226 of the Constitution was not maintainable for assailing the judgment of the Single Judge of the High Court dated 31 July 2018, we expressly leave open the rights and remedies available to the petitioner, including by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge of the High Court of Karnataka in proceedings before this Court. We, therefore, decline to entertain the substantive petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated 31 July 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.”

The larger point that is made in this noteworthy judgment delivered just recently on September 3, 2020 is as stated in the beginning: A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. All the litigants must always keep this in mind. There can be no denying or disputing it!

Sanjeev Sirohi

Kerala HC Issues General Directions For Investigation And Trial In POCSO Cases

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In a righteous, remarkable and recent decision, the Kerala High Court in Abhishek K.A. @ Bhanu vs. State of Kerala in Case No. : CRL.A. No. 1087 of 2019 has as recently as on September 9, 2020 issued general directions to be followed by the Investigating authorities and Trial Courts while dealing with POCSO crimes and cases. Justice PB Suresh Kumar who authored this latest, landmark and extremely laudable judgment minced no words to state upright that lack of professionalism is writ large in the investigations in the POCSO cases. This generated the dire need for the issuance of general directions for investigation and trial in POCSO cases. The needful was done by the Kerala High court in this noteworthy judgment!

For the sake of brevity, it would be wise to straightaway discuss the general directions issued by the Kerala High Court in this case which has made this decision so landmark. It is stated in para 14 that, “On a careful appraisal of the situations prevailing in the State as regards implementation of the provisions of the POCSO Act revealed from the large number of cases arising under the statute, I am of the view that the system in place needs to be improved radically, and the same would not be possible without the interference of this court. In the aforesaid circumstances, the following general directions are issued in exercise of the power of this court under Articles 226 and 227 of the Constitution of India, with a view to protect the children involved in the cases from the risk of secondary victimization and to make the justice delivery under the statute effective and meaningful:

1.  The State Government shall take immediate steps to make the One-Stop Support Centres directed to be established by the Apex Court in Nipun Saxena, operational. The State Government shall thereafter establish in a time bound manner as many One-Stop Support Centres needed in the State, so that victims of cases arising under the POCSO Act need not go anywhere else for the purposes of the POCSO Act.

2.  The State Government shall appoint a Nodal Officer at the appropriate level, within two months from the date of receipt of a copy of the judgment; to coordinate the activities of the various Government Departments towards implementation of the provisions of the POCSO Act, and that officer shall identify and resolve the issues that impede the proper implementation of the POCSO Act in the State in the manner in which it is conceived. That officer shall also be the one point contact for all stakeholders to place before the Government the various issues that impede the implementation of the statute to be tackled by the Government.

3.  The Nodal Officer so appointed shall be responsible for coordinating the training of the various stakeholders including the Police personnel in juvenile justice principles, to ensure consistency in their approach.

4.  The Registrar (Subordinate Judiciary) of this Court shall, in coordination with the Nodal Officer of the State Government and the Kerala Judicial Academy, impart to the Presiding Officers of the Special Courts training in juvenile justice principles from the best available resources, including the training of UNICEF.

5.  The State Government shall consider whether the Child Protection Officers and Child Welfare Officers in the Police force could be formed into a separate cadre, so that they would function as Child Protection Officers and Child Welfare Officers wherever they are transferred and if it is not possible, ensure that Child Protection Officers and Child Welfare Officers are posted in every police station after appropriate training.

6.  The State Government shall take immediate steps to fill up the vacancies in the Forensic Science Laboratories in the State to ensure that shortage of man power in the Laboratories is not hampering investigations and trials of the cases arising under the POCSO Act.

7.  The State Government shall take appropriate steps forthwith to ensure that competent among the eligible aspirants for appointment as Special Public Prosecutor are appointed to that post.

8.  The Director General of Prosecution and the State Public Prosecutor shall ensure that the Special Public Prosecutors conducting prosecution in cases arising under the POCSO Act are imparted proper training either directly or in co-operation with the Kerala Judicial Academy.

9.  The State Police Chief shall designate a woman IPS officer in every district, to oversee and ensure that the investigations of cases arising under the POCSO Act are conducted strictly adhering to the provisions contained in the POCSO Act and the Rules made thereunder and having due regard to the guidelines formulated under Section 39 of the POCSO Act. If a woman IPS Officer is not available in a district, the State Police Chief would be free to designate one of the available IPS officers for the said purpose.

10. The IPS officers so designated shall ensure that investigation of the cases arising under the POCSO Act are conducted only by the officers who are trained in Juvenile Justice Principles.

11. The IPS officers so designated shall ensure that statements of the children involved in the cases are taken only by trained officers, adhering to the guidelines prepared by the State Government in this regard.

12. The IPS officers so designated shall ensure that statements of the children involved in the cases are taken only when they are physically and psychologically fit to give statements.

13. The Magistrate or Police Officer recording the statements of the children involved in the cases shall, wherever possible, ensure that the audio and video of the same are recorded, as provided for under Section 26(4) of the POCSO Act.

14. The IPS officer so designated shall ensure that evidence to prove the sexual abuse through physical as well as behavioural indicators are also collected in every case, having due regard to the guidelines formulated by the State Government in this regard.

15. The IPS officer so designated shall ensure that the experts in the field of Psychology and Psychiatry are cited as witnesses in cases where the behavioural indicators of the child need to be explained.

16. The IPS officer so designated shall ensure that the investigating officers are not swayed by any sort of pressures from any corner, whatsoever, including media.

17. The IPS officer so designated shall ensure that the medical evidence collected by the investigating officers in the cases are consistent with the statement of the children and if not, take necessary steps to conduct further probe as to the inconsistency.

18. The IPS officer so designated shall ensure, before filing the final report in every case, that satisfactory evidence is collected to arrive at the conclusion as to the guilt or innocence of the accused, and if the case is built solely on the statement of the child, ensure also that the statement of the child is one voluntarily given, if necessary, by examining the audio/video recording of the statement and shall, if necessary, obtain the opinions of Psychologists, Psychiatrists and other experts in the field to ensure the correctness of the statements.

19. The Kerala State Legal Services Authority shall prepare a separate panel of experienced advocates having sufficient standing to represent child victims of sexual abuse cases to advise their family/guardians as to their rights and for rendering necessary legal aid to them in the various proceedings in respect of the child.

20. As and when the first information report concerning an offence under the POCSO Act is furnished to the Special Court, the Special Court shall give a communication to the District Legal Services Authority concerned and the District Legal Services Authority shall provide a lawyer to the family or the guardian of the child forthwith, if the family or the guardian of the child are unable to afford a lawyer.

21. The lawyer engaged by the family or the guardian of the child, or the lawyer provided by the Legal Services Authority to the family or guardian of the child, as the case may be, shall be at liberty to move the Legal Services Authority for the various benefits to which the child is entitled to, including the benefits in terms of the guidelines issued by the Government under Section 39 of the POCSO Act.

22. The lawyer engaged by the family or the guardian of the child, or the lawyer provided by the Legal Services Authority to the family or guardian of the child as the case may be, shall be at liberty to move the Special Court for appropriate directions for interim compensation, after the registration of the first information report, as provided for under Rule 9 of the Protection of Children from Sexual Offences Rules, 2020, and if interim compensation is ordered by the Special Court, the same shall be forthwith paid to child by the Legal Services Authority.

23. The lawyer engaged by the family or the guardian of the child, or the lawyer provided by the Legal Services Authority to the family or guardian of the child, as the case may be, shall be at liberty to move the Special Court for appropriate directions regarding the investigation of the case in accordance with the decisions of the Apex Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and Vinubhai Haribai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346.

24. The State Government shall take necessary steps forthwith to enable the Kerala State Legal Services Authority to draw and disburse the compensation payable to the victims in cases arising under the POCSO Act, in terms of the provisions of the Kerala Victim Compensation Scheme 2017 by considering the requests made by the Legal Services Authority in this regard, or by providing advance amount to them, and shall ensure that no victim is made to wait for the compensation ordered to be paid by the Special Court, especially for meeting an urgent need.

25. The Special Courts shall ensure that the trial in the cases arising under the POCSO Act is conducted having due regard to the guidelines prescribed by the State Government under Section 39 of the POCSO Act.

26. The Nodal Officer directed to be appointed by the Government in terms of this order shall file a report in this matter once in three months, until relieved from that obligation, indicating the various steps taken in compliance with the directions in this order, notwithstanding the disposal of the criminal appeal, and the criminal appeal would be deemed to be pending for the said limited purpose. The Nodal Officer would also be free to seek appropriate modification of this order, if situations warrant.

27. The registry shall communicate this order to the Special Courts in the State, the Judicial Magistrates in the State empowered to record the statements of the witnesses, the Director General of Prosecution and the State Public Prosecutor, the Kerala State Legal Services Authority and to the Kerala Judicial Academy.

Most significantly, it goes without saying that these invaluable general directions for investigation and trial in POCSO cases must be implemented forthwith in letter and spirit. It will ensure that children’s legal rights are protected and properly given effect to by which the concerned child would benefit immensely! It brooks no more delay! There can be no denying it! All the lawyers, Judges, law students and those having an interest in law must read these invaluable general directions as it will enable them to have a better understanding on this key subject!

As it turned out, the Kerala High Court thus dismissed the appeal that the accused in this case had filed against his conviction and sentence for his worst sexual acts against a boy of 11 years. The Kerala High Court noted in its judgment that it is explicit from the materials on record that the prosecution has proved the guilt of the accused under Sections 5(l) and 5(m) read with Section 6 of the POCSO Act, beyond reasonable doubt. Very rightly so!

Sanjeev Sirohi