Further hearing needed in 2009 contempt case against Prashant Bhushan and journalist Tarun Tejpal : SC

 The Supreme Court on Monday said further hearing was required in the 2009 criminal contempt case against activist-lawyer Prashant Bhushan and journalist Tarun Tejpal to examine whether comments on corruption against judges per se amounted to contempt or not.

A bench headed by Justice Arun Mishra and comprising justices B R Gavai and Krishna Murari posted the matter for hearing on August 17.

The top court had in November 2009 issued contempt notice to Bhushan and Tejpal for allegedly casting aspersions on some sitting and former top court judges in an interview to a news magazine. Tejpal was then editor of the magazine.

On August 4, the apex court had made clear to Bhushan and Tejpal that it would hear the case against them, if it does not accept their explanation” or “apology in the matter.

The apex court had on August 4 said that the court has not received the explanation/apology submitted by Bhushan and Tejpal so far and would pronounce its order on whether to accept them or not.

Explanation/apology submitted by Prashant Bhushan/Respondent No.1 and Tarun Tejpal/Respondent No.2, have not been received so far. In case we do not accept the explanation/apology, we will hear the matter. We reserve the order, the bench had said in its last week order.

During the brief hearing conducted through video-conferencing last week, the bench had said it does not want to curtail the freedom of speech and expression but for the contempt there is a thin line.

On July 22, the top court had issued notice to Bhushan in a separate suo motu contempt proceedings initiated against him for his alleged derogatory tweets against the judiciary, saying his statements prima facie “brought the administration of justice in disrepute”.

The apex court had on August 5 reserved its verdict on the contempt case against Bhushan.

Begging Before Someone To Stand As Surety Comes At Cost Of Pride, Accused Shall Be Allowed To Furnish Cash Deposits For Getting Bail: HP HC

In a well-balanced, well-reasoned, well-analysed and well-articulated judgment, the Himachal Pradesh High Court in Abhishek Kumar Singh vs. State of Himachal Pradesh in Cr.MP(M) No. 1017 of 2020 delivered on July 30, 2020 has made it absolutely clear that even accused has a right to live with dignity. It also made it very clear that begging or pestering before someone to stand as a surety comes at the cost of pride and so the Courts while granting bail should give a choice to the accused to either furnish surety bonds or give a cash deposit. Very rightly so!

To start with, Justice Anoop Chitkara of Himachal Pradesh High Court who authored this latest, landmark and laudable judgment sets the ball rolling by first and foremost observing in para 1 that, “The petitioner, a permanent resident of West Bengal, who is under incarceration for more than six months for committing a white-collar crime, has come up before this Court, seeking regular bail.”

While elaborating on the FIR lodged, it is then pointed out in para 2 that, “Based on a complaint, the police arrested the petitioner on 10th January 2020, in FIR No. 68 of 2019, dated 25.08.2019, registered under Sections 420, 120-B of Indian Penal Code, 1860 (IPC), in Police Station Nirmand, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offences.”

In hindsight, it is then pointed out in para 3 that, “Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 23.3.2020, Ld. Additional Sessions Judge, Kinnaur at Rampur Bushehar, HP, dismissed the petition, primarily because the amount involved is enormous and there is possibility of tampering the evidence.”

For the sake of clarity, it is then pointed out in para 4 that, “I have read the status report(s) and heard counsel for the parties, as well as Ld. Amicus Curiae.”

More seriously, while dwelling on the facts of the case, it is then noted in para 5 that, “Briefly, the allegations against the petitioner are that he made phone calls from various numbers to the complainant, befooled him to share one-time passwords (OTPs) received by him, and subsequently withdrew Rs. 9,87,000/- from his bank accounts.” Also, while mentioning about his previous criminal history, it is then stated in para 6 that, “As per status report, the petitioner has a similar case registered against him.”

Be it noted, it is then observed in para 15 that, “While deciding bail, the Courts cannot discuss the evidence threadbare. The difference between the order of bail and a final verdict is similar to a sketch and a painting. However, some sketches would be detailed and paintings with a few strokes.”

Interestingly enough, it is then laid bare in para 16 that, “The Police have recovered an amount of Rs. 78,000/- and after that, the accused is in judicial custody for the last more than six months.”

Crucially, it is then also made clear in para 17 that, “Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. The nature of the offence also does not restrict bail. Suffice it to say that due to the reasons mentioned above, this Court believes that further incarceration of the accused during the trial is neither warranted nor will achieve any significant purpose.”

Needless to say, it is then enunciated in para 18 that, “Without commenting on the merits of the case, the fact that the investigation is almost complete and the accused is in jail for a considerable period, coupled with the on going situation due to the Covid-19 pandemic, would make out a case for bail.”

To be sure, it is then stipulated in para 19 that, “The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions.”

Quite ostensibly, it is then rightly observed in para 20 that, “Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”

While explaining the drawbacks of bonds and simultaneously dwelling on the benefits of monetary bail, it is then envisaged in para 24 that, “It is beyond cavil that the sole purpose of a bond is to ensure presence of accused to attend the trial. In rapidly changing times, people travel more, covering long distances. It exposes them to the risk of being arraigned as accused in locations far away from native places. With unique identity details, monetary bail is even better. It would also address the unethical system of unscrupulous stock sureties, throwing them out of questionable practices.”

It would be pertinent to note that it is then palpably made clear in para 25 that, “Even the Legislature was aware of the menace of stock sureties and with a view to curb it, the Parliament, vide amendment of 2005, inserted S. 441-A CrPC, 1973 which read as follows:

441-A. Declaration by sureties. – Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.”

While applauding the legislature, it is then  brought out in para 26 that, “In its farsightedness, the legislature kept provision for the situations when an accused does not find any surety or none is ready to stand surety for him, by incorporating S. 445 of CrPC, 1973, which reads as under:

S. 445. Deposit instead of recognizance. – When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond.”

While continuing in the same vein to further enhance the argument to do away with the sureties bond, it is then stated in para 27 that, “The world is passing through the 4th technological revolution, with future unfolding before us and entering the internet of things. The database of AADHAR, PAN, and Passports ensures individuals’ identity, obsoleting the identification through sureties.”

Going forward, it is then brought out in para 28 that, “Siddhant Maniktala, in his paper ‘Relevance of sureties in criminal jurisprudence when every person in India has an identity’, (Supremo Amicus, Volume 17), writes, Aadhaar may replace surety bond as a means of getting bail because his identity has been established and with the personal data secured with the UIDAI, it will not be difficult to track down the accused in case of his fleeing from justice. It seems much important and a much crucial reform to liberalise bail laws in India. After the introduction of Aadhar, solely generated by UIDAI, (Unique Identification Authority of India) which is a unique identification proof of an individual, the need of surety for granting bail becomes debatable.”

More crucially, it is then rightly underscored in para 29 that, “The right to life guaranteed by Article 21 of India’s Constitution includes the right to live with dignity. Begging or pestering before someone to stand as a surety, comes at the cost of pride.”

No doubt, it is then  rightly maintained in para 38 that, “The purpose of a cash bond is not to enrich the State’s coffers but to secure the accused’s presence. An Advocate is an officer of the Court and a vigilant watcher of the interest of her client. Owing allegiance to the Constitution of India and being a professional, it’s her onerous duty to apprise the accused of the existence of the provision of a cash deposit in the statute.”

Truth be told, it is then conceded in para 39 that, “We are already late in encouraging deposits in place of sureties. Cash surety improves the possibility of the accused’s attendance because she is aware that her money is safe and accruing interest on ED. It is further likely to motivate her not to default even once, in contrast to the handing over of cash to stock sureties, with hardly any assurance of its refund.”

Most crucially, it is then very rightly underscored in para 40 that, “Given the advent of online identification, the pragmatic approach is that while granting bail with sureties, the Court should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another, impliedly informing the accused of the existence of her right under S. 445 of Code of Criminal Procedure, 1973. Choosing between sureties and deposits, accused is the Queen and let her be.”

Equally significant if not more is what is then stated in para 43 that, “The Court has a formidable task of performing the tight rope locomotion by embarking on determination of the cash surety in consonance with the accused’s monetary status. It should not be such as to precipitate the misery on the poor accused and deprives her of personal liberty despite being admitted to bail.”

In conclusion, the long and short of this noteworthy judgment is that the surety system of securing bail comes at a great cost of pride of the accused who has to beg before someone to make him/her ready to stand as surety. A more feasible and far better option would be to allow accused to furnish cash deposits for securing bail! Also, it should be left on the accused as to what option he/she wants to exercise to secure bail! Very rightly so!

Sanjeev Sirohi

No Interference With Government Conclusion That Use Of Social Media By Army Personnel Enables Enemies To Gain Edge: Delhi High Court

While dismissing a petition challenging the ban on army officers using social media, the Delhi High Court in Lt Col PK Choudhary Vs Union of India & Ors. in W.P.(C) No. 4181/2020 delivered via video conferencing on August 5, 2020 has observed in no uncertain terms that the scope of judicial review over matters concerning defence and security is limited. We thus see that the Delhi High Court declined to interfere with the government conclusion that use of social media by army personnel enables enemies to gain edge. Very rightly so!

To start with, this extremely laudable, latest and landmark judgment authored by Mr Justice Rajiv Sahai Endlaw for himself and Ms Justice Asha Menon first and foremost sets the ball rolling in para 1 by observing that, “The petitioner, a Lieutenant Colonel with the Indian Army, has filed this petition seeking a writ of mandamus directing the respondents (i) Union of India, (ii) Director General of Military Intelligence, and (iii) Chief of the Army Staff to withdraw their policy dated 6th June, 2020 to the extent that it bans the petitioner and other members of the Indian Army from using social networking platforms like Facebook and Instagram and to the extent it orders the petitioner and other members of the Indian Army to delete their accounts from social networking platforms like Facebook and Instagram; declaration is also sought that the respondent no. 2 Director General of Military Intelligence is not empowered under the Constitution of India or under any other law, to modify, amend or abrogate the fundamental rights of the petitioner and other members of the Armed Forces.”

While elaborating further, it is then observed in para 2 that, “The petition came up before us first on 14th July, 2020. It was found that though the petitioner had pleaded that on 9th July, 2020, the policy aforesaid was circulated to the members of the Indian Army but the policy had not been produced before the Court. It was the plea and contention of the counsel for the petitioner that the petitioner, as a responsible officer, to maintain confidentiality, had not annexed the policy, which is for restricted circulation, to the petition or reproduced the contents thereof in the petition. Being of the view that the counsels should be heard only after we have had an occasion to peruse the policy and if the documents prescribing the policy did not record the reasons therefor, the documents containing the reasons for the policy, we directed the counsel for respondents, appearing on advance notice on 14th July, 2020 to circulate in a sealed cover the policy and/or the documents containing the reasons therefor and deferred the hearing to 21st July, 2020.”

To put things in perspective, it is then pointed out in para 17 that, “We find it to be a fit case to apply the law as discussed in the paragraph before the preceding paragraph. Even if there is any error in the respondents issuing the impugned policy and direction, without complying with the procedure prescribed in Section 21 of the Army Act, considering that the issue has an element of urgency and concerns the safety and security of the entire country, we do not deem it necessary to, for the grievance of the petitioner only, render an adjudication on the questions urged and which may require us to refer to the documents and materials shown to us in confidence. What has also weighed in our mind is, that any interpretation given by us in the facts of the present case, of Section 21 of the Army Act, Defence Regulations and army orders, may be prejudicial to the personnel of the armed forces in a case with better facts. The counsel for the petitioner also has in response to the question posed to him not been able to give any explanation, why we should not in our discretion refuse to adjudicate the question urged of violation of fundamental rights of the petitioner of speech and expression without in accordance with law. In fact, save for stating that Facebook and Twitter are more convenient, no answer was forthcoming to, why the filial and other social needs of the petitioner cannot be fulfilled by other means of communication cited by the ASG, which are still available to the petitioner. It was suggested that the petitioner cannot explore other people whose contacts are not known to him. In this context we may record that we find the petitioner, on Facebook and Twitter, following and being followed by a large number of persons from other fields and making comments on their posts/tweets and qua which the ASG said, is breach of earlier advisories/Regulations.”

While citing the relevant case laws, it is then envisaged in para 18 that, “Supreme Court, in People’s Union for Civil Liberties Vs. Union of India (2004) 2 SCC 476 was concerned with writ petitions seeking disclosure of information relating to purported safety violations and defects in various nuclear installations and power plants across the country. It was held that (i) the jurisdiction of the Courts in such matters is very limited; (ii) the Court will not normally exercise its power of judicial review in such matters unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practices; (iii) the order can be set aside if it is held to be beyond the limits for which the power has been conferred upon the authorities by the legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required thereunder, no such case had been made out in the facts of that case; (iv) the State must have the prerogative of preventing evidence being given on matters that would be contrary to public interest and, (v) when any claim of privilege is made by the State in respect of any document, the question whether the documents belong to the privileged class, is first to be decided by the Court; the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question; the claim of immunity and privilege has to be based on public interest.  Again, in State of N.C.T. of Delhi Vs. Sanjeev (2005) 5 SCC 181, it was held that (a) the present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troops, entering into international treaty etc.; the distinctive features of some of these recent cases signify the willingness of the Court to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised; (b) the administrative action is subject to control by judicial review on the grounds of illegality, irrationality and procedural impropriety; (c) if the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous; (d) if a power is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated; and, (e) judicial review can be limited in the case of national security. Again, in Ex-Armymen’s Protection Services Pvt. Ltd. Vs. Union of India (2014) 5 SCC 409, it was held that (i) the decision on whether the requirements of national security outweigh the duty of fairness on a particular case is for the government and not for the Courts; the government alone have access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security; (ii) those who are responsible for the national security must be the sole judges of what the national security requires and it is undesirable that such matter should be made the subject matter of evidence in a Court of law or otherwise discussed in public; (iii) what is in the interest of national security is not a question of law – it is a matter of policy and it is not for the Court to decide whether something is in interest of State or not; and, (iv) once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party. The same was followed in Digi Cable Network (India) Pvt. Ltd. Vs. Union of India (2019) 4 SCC 451.”

While explaining the reasons behind denying the petitioner what he wanted, it is then stated in para 22 that, “It is also in the light of the aforesaid judgments that we have herein observed that we do not deem it appropriate to exercise the discretion vested in us as aforesaid in exercise of powers under Article 226, to not entertain the petition and not adjudicate the issues raised. Had we, on perusal of the impugned policy which itself is a restricted document or the supporting material thereof found the same to be suffering from the vice of non-application of mind or being not based on any material on record or being without proper deliberations, we would have certainly proceeded to answer the legal issue raised by the petitioner, of the ban being imposed on the petitioner and others similarly placed as the petitioner without complying with Article 33 of the Constitution and Section 21 of the Army Act. However, once we are satisfied on the aforesaid parameters and find other means of communication to be still available to the petitioner and the ban being with respect to certain social networking websites only and more so, once we have found the petitioner himself to have been posting tweets which according to the ASG are in violation of the policy earlier in force qua use of social media, we do not deem it apposite to at the instance of the petitioner to go into the questions urged. Rather, we do not appreciate the pleadings of the petitioner as a senior officer in the Army, of army personnel being treated as slaves and the government not trusting its army.”

Most significantly, it is then held in para 23 that, “We may also notice that warfare and inter-country rivalries and animosities today are not confined to accession of territory and destruction of installations and infrastructure of enemy countries but also extend to influencing and affecting the economies and political stability of enemy country including by inciting civil unrest and disturbance and influencing the political will of the citizens of the enemy country. In such a scenario, if the government, after complete assessment, has concluded that permitting of certain social networking websites by personnel of its defence forces is enabling the enemy countries to gain an edge, the Courts would be loath to interfere.”

To summarise, the Delhi High Court Bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon made it clear by this notable judgment that the Government has the power to ban use of social media by army personnel when it feels that this will give enemies an edge as we see here also! The Delhi High Court also took a serious note of the submission of the Centre that army officers were posting pictures and details of their posting locations in social media which can easily convey a full picture to an expert espionage eye. Thus we see that the Delhi High Court clearly and convincingly ruled while dismissing petitioner’s claim that no case for interference is made out! Very rightly so!

Sanjeev Sirohi

MP HC Asks Person Accused Of Outraging Modesty Of Neighbour To Request Her To Tie The Rakhi With A Promise To Protect Her As Bail Condition

    In a first of its kind, the Indore Bench of Madhya Pradesh High Court just recently on 30 July, 2020 in a latest case titled Vikram Vs The State of Madhya Pradesh in Case No. – MCRC-23350-2020 released a person who was apprehended for outraging the modesty of a woman on bail. The unique condition that was imposed for releasing him on bail was that he visits the house of the complainant and requests her to tie the Rakhi band to him “with the promise to protect her to the best of his ability for all times to come”! This is what gave a lot of prominence to this case. The case was heard through video conferencing.

To start with, this notable judgment authored by Justice Rohit Arya of Indore Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost observing that, “This is the first application under Section 439 of Cr.P.C., for grant of bail filed on behalf of the applicant. The applicant is in custody since 02/06/2020 in connection with crime No. 133/2020 registered at Police Station Bhatpachlana, District – Ujjain for the offence punishable under Sections 452, 354(A), 354, 323 and 506 of IPC.”

To put things in perspective, it is then pointed out in this judgment that, “As per the prosecution story, on 20/04/2020 at about 2 : 30 am, the applicant as a neighbor has entered the house of the complainant and caught hold of hand of the complainant attempting to outrage her modesty. Accordingly, case has been registered. Investigation is complete. Challan has been filed.”

On the contrary, the judgment then mention the applicant’s version stating that, “Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the crime. Investigation is complete. Challan has been filed. He is no more required for further custodial interrogation. The applicant is in custody since 02/06/2020. It is further submitted that as a matter of fact, the applicant had asked the husband of the complainant to return back the outstanding loan amount against him, which was advanced by the applicant during the lockdown period. The complainant’s husband had taken exception thereto and as a sequel to the demand, filed the instant false case against the present applicant. Besides, the applicant is a married person and cannot think of entering the house of the neighbour to outrage the modesty of a women/complainant. The family is on the verge of starvation due to his jail incarceration. Further jail incarceration shall jeopardise the life of the family members. Due to prevailing Covid-19 situation, trial is not likely to conclude early in the near future. Under such circumstances, the applicant deserves to be enlarged on bail on such terms and conditions, Hon’ble Court deems fit and proper.”

As a corollary, what then ensues is stated thus: “Per contra, learned Panel Lawyer opposes the bail application supporting the order impugned. It is submitted that even if, this Court is inclined to grant bail to the applicant, certain stringent conditions are imposed.”

Most significantly, it is then pointed out further in this judgment that, “Upon hearing learned counsel for the parties, without commenting upon the rival contention so advanced, but regard being had to the fact that the applicant has already suffered jail incarceration for more than two months, he is no more required for further custodial interrogation, therefore, he is held entitled for enlargement on bail. Consequently, the application of the applicant filed under Section 439 of the Cr.P.C. is hereby allowed. It is directed that the applicant be released on bail, on furnishing personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand only)  with one solvent surety in the like amount to the satisfaction of the trial Court, on the condition that he shall remain present before the Court concerned during trial and also comply with the conditions enumerated under Section 437(3) of Cr.P.C., with following further conditions:

(i)  the applicant along with his wife shall visit the house of the complainant with Rakhi thread/band on 03 August, 2020 at 11:00 am with a box of sweets and request the complainant to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- (Rs. Eleven Thousand Only) to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant-Vishal for purchase of clothes and sweets.

The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry.

The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.

(ii)                      the applicant shall furnish a written undertaking with his complete residential details that he shall abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from time to time in the matter of maintaining social distancing, physical distancing, hygiene etc., to avoid proliferation of Novel Corona virus (COVID-19);

(iii)                   the applicant shall install Aarogya Sethu App (if not already installed) in his mobile phone;

(iv)                   the applicant shall not tamper with the evidence whatsoever in any manner or induce or threat any person acquainted with the facts of the case;

(v)                      the applicant shall cooperate during trial and will not seek unnecessary adjournments during trial;

(vi)                   the applicant shall not leave India or the area without previous permission of the trial Court/Investigating Officer, as the case may be;

(vii)                the concerned jail authorities are directed that before releasing the applicant, the medical examination of the applicant be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action including the isolation/quarantine or any further test required be undertaken immediately. If not, the applicant shall be released on bail in terms of the conditions imposed in this order and shall also be given pass or permit for movement to reach his place of residence;

Going ahead, it is then also pointed out in this judgment that, “In the event of violation of any of the terms and conditions of the order by the applicant, the prosecution is at liberty to seek cancellation of the bail granted to the applicant. Learned Panel Lawyer is directed to send an e-copy of this order to all the concerned including the concerned Station House Officer of the police station for information and necessary action. Registry is directed to send an e-copy of this order to the Court concerned for necessary compliance.”

Finally and before concluding, it is then held in the last para that, “It is made clear that this e-copy order be treated as Certified copy in terms of the advisories issued by the High Court from time to time.”

To conclude, it may be very rightly recalled that earlier the Madhya Pradesh High Court had directed few accused to register themselves as “COVID-19 Warriors” and work in the “COVID-19 Disaster Management”, as per directions of the concerned District Magistrate, as a pre-condition for bail. Similarly there have been some other such unique cases also. This latest judgment by Justice Rohit Arya of Madhya Pradesh High Court of releasing an accused on bail on condition of offering the woman to tie him rakhi is certainly unique and gives an opportunity to the accused to reform himself on a very light punishment due to which it is rightly in the headlines also!

Sanjeev Sirohi

Merely Because DNA Report Does Not Establish Paternity Is No Ground For Release On Bail : Bombay HC Rejects Plea Of Accused In Gangrape Of Minor

 In a well-balanced, well-analysed, well-worded and well-reasoned judgment delivered by a woman Judge named Justice Bharati Dangre of the Bombay High Court in a latest, landmark and laudable judgment titled Vaibhav Bhanudas Ubale Vs The State of Maharashtra in LD VC Dist Bail Application No. 34 of 2020 delivered just recently on July 24, 2020 has very rightly held that merely because the DNA report of a child born after a gang rape does not establish paternity of the accused, it does not mean that the accused can be released on bail. She thus rejected the bail application filed by one Vaibhav Ubale who is accused of raping a minor girl along with two others. A heinous and ghastly offence like gang rape cannot be taken lightly under any circumstances!

To start with, the ball is set rolling in para 1 where it is first and foremost observed that, “The applicant has been arrested in relation to FIR No. 194 of 2018 for the offences punishable under Section 376 of the IPC and Section 3, 4, 5(G), 5(J)(II), 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”). On investigation, charge-sheet vide no. 60 of 2019 has been filed in the Court of District and Special Judge, Pune on 25th September 2019. The accused has been charged under Section 376(d) of IPC along with two other accused persons and also the relevant provisions of the POCSO Act.”

As it turned out, it is then mentioned in this same para 1 ahead about the applicant’s defence that, “The submission of the learned counsel for the applicant has been roped into the said offence without any rhyme and reason. The counsel placed heavy reliance on the DNA report of the child born out of the alleged act of sexual assault which do not trace the applicant as the father of the baby girl. The DNA report according to the learned counsel, sufficiently absolve the applicant of the act of sexual assault on the prosecutrix and since the charge-sheet is now filed, according to the applicant, a case is made out for grant of bail.”

To put things in perspective, it is then mentioned in para 2 that, “With the assistance of the learned counsel for the applicant, I have perused the charge-sheet which has been uploaded and also placed on record in physical form. The charge-sheet consists of a statement of the prosecutrix dated 9th November 2018. The said statement is elaborate one and runs into 4 pages. The said statement is recorded after the prosecutrix delivered a baby girl on 6th November 2018 and since her age at the time of the pregnancy was found to be below 18 years, the Koregaon Park Police station official had made inquiries with her mother. The statement was given by the prosecutrix in presence of her mother and member of the Women Vigilance Committee, Gulshan Arif Shaikh.”

While dwelling on the background and facts, it is then enunciated in para 3 that, “The prosecutrix had narrated her woes and stated that she and her mother were residing separately from her father on account of the frequent fights between the couple. Her mother was incurring the expenditure of the household by doing petty household work in the nearby area. The prosecutrix was pursuing her education in Morris High School Wadgaon Sheri when she was acquainted with one girl Shraddha. She happened to meet her again till both took admission in the same college in XI standard. She also became acquainted with another friend Apurva and it is these two girls who have stated in their statement to the police making reference to the date on which the incident took place.”

While continuing in the same vein and delving deeper, it is then stated in para 4 that, “When the prosecutrix was undergoing her 12th Board examination in February-March 2018 and while her last paper was of subject Geography and the prosecutrix with her two friends were studying together at Shraddha’s house, shew as introduced to the applicant who was residing in the same locality. On the 3rd day, when she was introduced to the applicant, her friends took her to his house. For some reason, the other two female friends left her alone in the company of the applicant and the applicant took advantage of the situation. His two male friends in a pre-planned manner arrived in his house with some drinking and eating stuff. The applicant offered the prosecutrix some drink like Thumbs up, which contained some substance which made her feel sleepy and dizzy. The applicant asked the prosecutrix to rest in the bed-room while her friends returned. It is then alleged that the applicant and his two friends committed rape on her. The prosecutrix had narrated the entire incident in great detail which include the specification about the location of the flat of the applicant and the clandestine manner in which the three friends arrived in his flat. Pertinent to note that this description completely matches with the spot panchnama which forms part of the charge-sheet.”

Be it noted, it is then observed in para 5 that, “Fearing the outcome of the act, the prosecutrix did not reveal the incident or the fact that she was pregnant, to her mother. It was only when she had pain in her stomach on 5.12.2018, her mother took her to the hospital and it was revealed to her that the prosecutrix is pregnant. When the police had arrived, the prosecutrix stated that the mother and the daughter were hesitant to report the incident to police and register an offence. However, one of the police personnel which she has described as ‘Sheikh’ tutored her to give a particular statement and on his instructions, she gave her first statement on 6.11.2018 where she implicated one Sony Tapkir and reported of an incident where she accompanied him in a car and where he established physical relation with her. According to the victim’s statement, she gave the earlier statement on the dictate of Shri Shaikh and even told her mother of the same incident. However, subsequently, she gave a detailed statement on 9.11.2018 in form of a supplementary statement on the basis of which FIR has been filed and charge-sheet has also been presented to the Special Court. The statement of two friends of the prosecutrix, support her version to the extent that they went to flat of the applicant but what happened inside the flat is not known to them. The prosecutrix was below 18 yrs of age at the time when the incident took place. She delivered a baby girl which has been forwarded to an orphanage and is leading her life there. The charge-sheet contain sufficient material against the applicant.”

Finally and perhaps most significantly, it is then held in para 6 that, “The case against the applicant is serious one of committing gang rape by three persons and taking advantage of a situation of a poor helpless victim girl. The applicant has indulged into an act of rape. The mere fact that the DNA report do not support the paternity is not a ground to release the applicant at this stage. There is every likelihood that he will pressurize the victim girl once being released on bail. The fact that he is a young boy itself is not sufficient to release him on bail, in light of the material collected by the investigating agency against him. No case for his release on bail is made out. The application is rejected.”

In conclusion, it must well be said that Justice Bharati Dangre of Bombay High Court has very rightly rejected the bail application of the applicant. Not just this, she has also very rightly given right reasons for doing so. She has rightly ruled that merely because DNA report of a child born after gang rape does not establish paternity of the accused, it cannot be construed to mean that the accused can be released on bail as a matter of right!

It is imperative to state here that in heinous crimes like gang rape, bail should not be given at the drop of a hat! A Judge must always in such cases of gang rape exercise his/her mind to the fullest and only then after weighing all the options should an opinion be formed as it will have a direct bearing on the case and the rape victim would be directly affected by it! Justice Bharati Dangre in this leading case too has also very rightly voiced her serious apprehensions about the applicant misusing his position once out on bail and harassing the victim girl. We see so many cases where the accused after getting bail have even burnt alive the rape victim and so in such cases there should be no question of extending bail to the accused as that could directly endanger the life of the rape victim as also her family! There can be no denying or disputing it!

Sanjeev Sirohi

Lawyers Of West UP Once Again Compelled To Go On Strike

 

             It is a national tragedy that at a time when the whole nation is rejoicing over the bhumi poojan of Shri Ram temple in Ayodhya, the lawyers of 26 districts of West UP once again are on strike on August 4, 2020 in protest against the gruesome, dastardly and ghastly murder of a fellow lawyer named Dharmendra Chaudhary from Bulandshahr just recently! This eminent and senior lawyer named Dharmendra Chaudhary had been missing for the past eight days and ultimately his decomposed body was recovered from a marble godown in Khurja area on night of July 31, 2020! In last few years West UP in particular along with UP have witnessed many murders of lawyers and this explains why even UP Bar Council too had earlier called for boycott of work!

It is a national tragedy that West UP accounts for more than 57% of the total pending cases of UP and still both High Court at Allahabad and a single bench just 200 km away at Lucknow are both in Eastern UP and West UP along with Purvanchal and Bundelkhand have been left high and dry!

It is a national tragedy that lawyers of West UP have been demanding a high court bench since independence but as the first PM Jawaharlal Nehru had vowed that not a single bench would be allowed anywhere in any part of UP except at Lucknow which he created on July 1, 1948, we see no PM has till date ever dared to defy the verbal diktat of Pandit Nehru! It is a national tragedy that when the  Chief Minister of UP in 1955 had recommended a high court bench in Meerut, the then PM Jawaharlal Nehru fired him and said that not a single bench can ever be allowed at any place other than the one at Lucknow which is just 200 km away from Allahabad and the people of West UP and hilly areas (now part of Uttarakhand which is a separate state since 2000) have no option but to travel all the way to Allahabad! This alone explains why the people of hilly areas started agitating vigorously for a separate state and ultimately achieved it after lot of violent protests and demonstrations!

It is a national tragedy that when the late former PM Mrs Indira Gandhi got the recommendations from Justice Jaswant Singh Commission which she had herself appointed in late 1970s of creating a high court bench in Aurangabad in Maharashtra which already had 2 benches, at Jalpaiguri in West Bengal which already had a bench at Port Blair in Andaman and Nicobar and for Madurai in Tamil Nadu she gave the approval and they were created later but regarding the landmark recommendation given to create 3 high court benches at Agra, Nainital and Dehradun, she decided that not a single bench of high court would be created as her father never wanted this to happen! Rajiv Gandhi too continued this tradition even though hew as in favour of bench in West UP but old leaders reminded him of Nehru’s words! It is a national tragedy that when many UP Congress CM like late ND Tiwari among others strongly recommended the high court bench for West UP, it was again not accepted!

It is a national tragedy that as Opposition leader former PM late Atal Bihari Vajpayee had vociferously demanded the creation of a high court bench in West UP in 1986 but when he became PM in 1999 till 2003, he too decided to honour Nehruji’s word of not allowing a single bench anywhere except Lucknow! It is a national tragedy that as PM Dr Manmohan Singh decided to create 2 more benches for just 4 and 8 districts of Karnataka at Dharwad and Gulbarga and where the population of entire state is just 6 crore and which already had a bench at Hubli and where pending cases are just about 1 lakh but not a single for UP where pending cases are more than 10 lakhs and West UP alone has more than 5 lakhs and population at 9 crore which is more than Karnataka and here again Nehru’s words were given effect of not allowing a single bench anywhere in UP except Lucknow even though Dr Manmohan had repeatedly assured the delegation of lawyers from West UP of allowing a bench to be created here!

It is a national tragedy that things did not change even under incumbent PM Narendra Modi also and he too decided to follow what Pandit Nehruji always wanted and decided to create one more bench of high court at Kolhapur for just 6 districts taking the tally of benches in Maharashtra to 4 but not a single bench for West UP! No wonder, Maharashtra tops in the state index list for speedy justice and UP figures in the bottom!

It is a national tragedy that criminals are ruling the roost and making the headlines in UP. No wonder, the former UN Secretary General had termed UP as “rape and crime capital” of India! The latest incident pertains to kidnapping cum murder of a 28 year-old technician named Sanjeet Yadav who worked in a private lab. What is worse is that criminals even took 30 lakh rupees from the deceased Sanjeet Yadav’s family as the family allege after cops told them to do so and still they murdered him most mercilessly! Prior to this we saw how a journalist Vikram Joshi was brutally killed right in front of his two daughters in Ghaziabad’s Vijay Nagar again in West UP! In Meerut again in West UP, a mother and a daughter are brutally killed! The list of such criminal acts are endless! It is a national tragedy that there is no fear of law in West UP among criminals still there is not a single high court bench here!

It is a national tragedy that the lawyers of West UP have been on strike uninterruptedly every Saturday since May 1981  till now which means for more than 39 years against denying West UP even a single bench of high court still no action! It is a national tragedy that the more than 9 crore people of West UP have to perforce travel more than 700 km on an average all the way to Allahabad to get justice as the elected representatives have only made tall promises but never cared to implement it thus blindly following what Nehruji had said!

It is a national disgrace that UP which has maximum pending cases in India among all the states which is more than 10 states put together has just one high court bench and that too just 200 km away from Allahabad where high court itself is located at Lucknow and nowhere else! It is a national disgrace that UP which is among the largest States, has maximum population – more than 23 crore, maximum districts – 75, maximum constituencies,  maximum MPs – 80, maximum MLAs – 404, maximum PM including Narendra Modi who represents Varanasi as an MP, maximum pending cases – more than 10 lakh and here too West UP accounts for more than half of pending cases as noted by Justice Jaswant Commission about 57%, maximum Judges both in High Court – 160 and also in lower courts, maximum vacancies of Judges, maximum members in UP Bar Council and which is the largest Bar Council in the world yet the former Chairman of UP Bar Council – Darvesh Yadav who was first woman to get appointed to this post was murdered right in court premises in Agra again in West UP, maximum poverty, maximum villages more than one lakh, maximum fake encounters killings, maximum custody killings, maximum dowry cases, maximum bride burning cases, maximum cases of human rights violations, maximum robberies, maximum dacoities, maximum undertrials, maximum cases of crime, loot, arson and riots and here too West UP tops with Saharanpur riots, Meerut riots, Muzaffarnagar riots tarnishing our international reputation to the extent that former UN Secretary General Ban ki Moon termed UP as “crime and rape capital” of India and what not yet Centre till now from 1948 when a bench was created in Lucknow which is so close to Allahabad is not prepared to create even a single bench for not just West UP but for entire UP! It is a national disgrace that UP sends maximum MPs to Lok Sabha – 80, maximum MPs to Rajya Sabha – 30, maximum MLAs to State Assembly – 404 MLAs and maximum members to State Legislative Council – 100 MLAs and what not yet has least benches just one! It is a national disgrace that Centre along with political leaders from many parties are pompously celebrating the bhumi poojan of Lord Ram temple in Ayodhya knowing fully well that Lord Ram always stood for justice yet believe firmly that Nehruji’s conviction for just one bench for whole of UP must be followed always as the best tribute to him!

It is a national disgrace that the High Courts and Benches of 8 states are nearer to West UP as compared to Allahabad High Court and even Lahore High Court in Pakistan is nearer to West UP than Allahabad? How long will Centre ignore that Allahabad High Court is the biggest court in whole of Asia with  maximum Judges and also among the oldest courts which completed its 150 years on March 17, 2016 yet has just one bench only? How long will Nehruji’s name be invoked to oppose the creation of a bench in West UP or in any hook and corner of UP except at Lucknow which Nehruji himself created in 1948! If Lucknow is capital then so is Bhopal of Madhya Pradesh, Raipur of Chhattisgarh, Dehradun of Uttarakhand, Trivandrum of Kerala, Dispur of Assam, Bhubaneshwar of Orissa etc then why all these capitals have been denied a high court or even a bench?

Why when former CJI Ranjan Gogoi while deciding on a PIL brought by a woman lawyer KL Chitra for a high court bench in West UP fully appreciated the reasons for setting up a high court bench in West UP but added that it is for Centre to take a decision and yet even after 74 years of independence if Centre fails to act not just for West UP but for whole of UP should Supreme Court not take suo motu action and order for more benches not just in West UP but also in different parts like Jhansi in Bundelkhand, Gorakhpur in Purvanchal and other needy places? Why Supreme Court never acts on this? It must act now most decisively as this serious issue directly concerns the judiciary! Why Bar Council of India never speaks a word on this? No more dilly-dallying now!

Sanjeev Sirohi

Lord Ram Always Stood For Justice And Fairness In His Life

Who can deny that Lord Ram always stood for justice and fairness in his life? Lord Ram did not fight shy to even sacrifice his life for the cause of justice and for satisfying what his people thought was right! Lord Ram always wanted that justice must be available to the “poorest of the poor”! He was not happy to see even a single person being unhappy in his kingdom!

But see what is happening in UP since independence in 1947 till 2020? UP has just one high court bench at Lucknow located just 200 km away from Allahabad where high court itself is located leaving West UP which is more than 700 to 800 km away from Allahabad where high court is located as also Bundelkhand and Purvanchal high and dry with only Eastern UP enjoying the facility of having both high court and a single bench! Is this is what Lord Ram ever wanted? You answer! Why can’t a high court bench be created at Ayodhya from whom people of all religions can benefit equally without any discrimination whatsoever?

It is a national tragedy that the lawyers of West UP have been on strike uninterruptedly every Saturday since May 1981  till now which means for more than 39 years against denying West UP even a single bench of high court still no action! It is a national tragedy that lawyers of West UP have even gone on strike for 6 months as was seen in 2001 from July to December, for 3 to 4 months as we saw in 2014-2015 and apart from this many times on other occasions too still no bench! It is a national tragedy that the more than 9 crore people of West UP have to perforce travel more than 700 km on an average all the way to Allahabad to get justice as the elected representatives have only made tall promises but never cared to implement it!

It is a national tragedy that at a time when the whole nation is rejoicing over the bhumi poojan of Shri Ram temple in Ayodhya, the lawyers of 26 districts of West UP once again are on strike on August 4, 2020 in protest against the gruesome, dastardly and ghastly murder of a fellow lawyer named Dharmendra Chaudhary from Bulandshahr in West UP just recently! This eminent and senior lawyer named Dharmendra Chaudhary had been missing for the past eight days and ultimately his decomposed body was recovered from a marble godown in Khurja area on night of July 31, 2020! In last few years West UP in particular along with UP have witnessed many murders of lawyers and this explains why even UP Bar Council too had earlier called for boycott of work!

It is a national disgrace that UP which has maximum pending cases in India among all the states which is more than 10 states put together has just one high court bench and that too just 200 km away from Allahabad where high court itself is located at Lucknow and nowhere else! It is a national disgrace that UP which is among the largest States, has maximum population – more than 23 crore, maximum districts – 75, maximum constituencies,  maximum MPs – 80, maximum MLAs – 404, maximum PM including Narendra Modi who represents Varanasi as an MP, maximum pending cases – more than 10 lakh and here too West UP accounts for more than half of pending cases as noted by Justice Jaswant Commission about 57%, maximum Judges both in High Court – 160 and also in lower courts, maximum vacancies of Judges, maximum members in UP Bar Council and which is the largest Bar Council in the world yet the former Chairman of UP Bar Council – Darvesh Yadav who was first woman to get appointed to this post was murdered right in court premises in Agra again in West UP, maximum poverty, maximum villages more than one lakh, maximum fake encounters killings, maximum custody killings, maximum dowry cases, maximum bride burning cases, maximum cases of human rights violations, maximum robberies, maximum dacoities, maximum undertrials, maximum cases of crime, loot, arson and riots and here too West UP tops with Saharanpur riots, Meerut riots, Muzaffarnagar riots tarnishing our international reputation to the extent that former UN Secretary General Ban ki Moon termed UP as “crime and rape capital” of India and what not yet Centre till now from 1948 when a bench was created in Lucknow which is so close to Allahabad is not prepared to create even a single bench for not just West UP but for entire UP! It is a national disgrace that UP sends maximum MPs to Lok Sabha – 80, maximum MPs to Rajya Sabha – 30, maximum MLAs to State Assembly – 404 MLAs and maximum members to State Legislative Council – 100 MLAs and what not yet has least benches just one! It is a national disgrace that Centre along with political leaders from many parties are pompously celebrating the bhumi poojan of Lord Ram temple in Ayodhya knowing fully well that Lord Ram always stood for justice yet believe firmly that Nehruji’s conviction for just one bench for whole of UP must be followed always as the best tribute to him!

It is a national disgrace that the High Courts and Benches of 8 states are nearer to West UP as compared to Allahabad High Court and even Lahore High Court in Pakistan is nearer to West UP than Allahabad? How long will Centre ignore that Allahabad High Court is the biggest court in whole of Asia with  maximum Judges and also among the oldest courts which completed its 150 years on March 17, 2016 yet has just one bench only? How long will Nehruji’s name be invoked to oppose the creation of a bench in West UP or in any hook and corner of UP except at Lucknow which Nehruji himself created in 1948! If Lucknow is capital then so is Bhopal of Madhya Pradesh, Raipur of Chhattisgarh, Dehradun of Uttarakhand, Trivandrum of Kerala, Dispur of Assam, Bhubaneshwar of Orissa etc then why all these capitals have been denied a high court or even a bench?

It is a national tragedy that as Opposition leader former PM late Atal Bihari Vajpayee had vociferously demanded the creation of a high court bench in West UP in 1986 but when he became PM in 1999 till 2003, he too decided to honour Nehruji’s word of not allowing a single bench anywhere except Lucknow! It is a national tragedy that as PM Dr Manmohan Singh decided to create 2 more benches for just 4 and 8 districts of Karnataka at Dharwad and Gulbarga and where the population of entire state is just 6 crore and which already had a bench at Hubli and where pending cases are just about 1 lakh but not a single for UP where pending cases are more than 10 lakhs and West UP alone has more than 5 lakhs and population at 9 crore which is more than Karnataka and here again Nehru’s words were given effect of not allowing a single bench anywhere in UP except Lucknow even though Dr Manmohan had repeatedly assured the delegation of lawyers from West UP of allowing a bench to be created here!

It is a national tragedy that things did not change even under incumbent PM Narendra Modi also and he too decided to follow what Pandit Nehruji always wanted and decided to create one more bench of high court at Kolhapur for just 6 districts taking the tally of benches in Maharashtra to 4 but not a single bench for West UP! No wonder, Maharashtra tops in the state index list for speedy justice and UP figures in the bottom!

It is a national tragedy that criminals are ruling the roost and making the headlines in UP. No wonder, the former UN Secretary General had termed UP as “rape and crime capital” of India! The latest incident pertains to kidnapping cum murder of a 28 year-old technician named Sanjeet Yadav who worked in a private lab. What is worse is that criminals even took 30 lakh rupees from the deceased Sanjeet Yadav’s family as the family allege after cops told them to do so and still they murdered him most mercilessly! Prior to this we saw how a journalist Vikram Joshi was brutally killed right in front of his two daughters in Ghaziabad’s Vijay Nagar again in West UP! In Meerut again in West UP, a mother and a daughter are brutally killed! The list of such criminal acts are endless! It is a national tragedy that there is no fear of law in West UP among criminals still there is not a single high court bench here!

It cannot be denied that Yogi Adityanath had raised the demand for a high court bench for Gorakhpur in 1998 right inside Parliament but even now as he completes more than three years as CM of UP, he is unable to create even a single bench even in Gorakhpur leave alone West UP! For just 3 lakh population of Andaman and Nicobar islands a high court bench is approved at Port Blair and similarly for small states like Sikkim with just 6 lakh population and less than 100 cases pending, high court itself is approved but no action for West UP! Manipur, Meghalaya and Tripura had population of less than 30 lakh yet high court created but not a single bench is being approved for more than 9 crore people living in West UP!

The population of West UP is more than all the states except Maharashtra, Bihar and UP of which it itself forms a part and here too areawise West UP is bigger than Bihar yet has no bench leave alone high court! Why inspite of “bandh call” given by lawyers and traders all over West UP time and again due to which heavy loss is incurred running into crores and crores of rupees but still Centre miserably failed to take any action in addressing this humongous problem once and for all by creating a single bench anywhere where it wants? Why Satyapal Singh who is BJP MP from Baghpat and former Union Minister and former Mumbai Police Commissioner very strongly demanded right inside Parliament the creation of 5 high court benches at Meerut, Agra, Gorakhpur, Jhansi and Varanasi but Centre is not prepared to set up even a single bench in any part of UP even as it completes 3 years and is about to complete 4 years in office? Many other MPs from West UP have raised the same old demand many times but Centre is in just no mood to relent! Why?

Why when former CJI Ranjan Gogoi while deciding on a PIL brought by a woman lawyer KL Chitra for a high court bench in West UP fully appreciated the reasons for setting up a high court bench in West UP but added that it is for Centre to take a decision and yet even after 74 years of independence if Centre fails to act not just for West UP but for whole of UP should Supreme Court not take suo motu action and order for more benches not just in West UP but also in different parts like Jhansi in Bundelkhand, Gorakhpur in Purvanchal and other needy places? Why Supreme Court never acts on this? It must act now most decisively as this serious issue directly concerns the judiciary!

Why Bar Council of India never speaks a word on this? Why all political parties have never acted to create more benches in UP when they can act to create benches in other much smaller states and where pending cases are much lower as compared to UP? If people have to wait for decades to get justice then will Lord Ram temple in Ayodhya serve its true purpose? How can Ram Rajya be brought in UP without creating more benches? Just offering “Swaha”, “Swaha” on occasion of some special puja won’t help ameliorate the law and order situation in UP! Prompt action is needed now on creating more benches in UP!   There should be no more dilly-dallying now any more on this burning issue!

Sanjeev Sirohi

Delhi HC Rejects Scriptwriters Plea For Injunction On Release Of Film Lootcase On Hotstar

In a latest, landmark and laudable judgment titled Vinay Vats v. Fox Star Studios India Pvt. Ltd. & Anr. in I.A. 6351/2020 in CS(COMM) 291/2020 delivered on July 30, 2020, the Delhi High Court has reaffirmed that there can be no copyright in an idea/theme. While holding thus, it refused to pass an injunction order, restraining the release of Film ‘Lootcase’ on Hotstar hours before its scheduled release on July 31, 2020. The Delhi High Court was hearing the plea of Indian writer and Director, Vinay Vats claiming that the film had “substantial similarities” with his script titled “Tukkaa Fitt” and even though his film could not be released, Vats had strongly relied on its trailer so released in the year 2016. But his plea was rejected!

To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed by Justice C Hari Shankar of Delhi High Court that, “By this application, the plaintiff seeks a restraint from release of a film “Lootcase” slated to be released tomorrow, i.e. 31st July, 2020.” It is then stated in para 2 that, “The plaintiff claims to be the author and, consequently, the first copyright owner, of a script for a film titled “Tukkaa Fitt”. The script was written in 2010-2011, and was registered with the Film Writer’s Association, Mumbai on 14th March, 2011.”

To say the least, para 3 then states that, “It is further asserted, in the plaint, that the plaintiff was approached by the Director of M/s AAP Entertainment Limited, in 2011, for permission to utilize the script of the plaintiff and make a motion picture “Tukkaa Fitt”. The plaintiff agreed, whereupon Mr. Premal Parekh of M/s AAP Entertainment Limited, took over as producers of the proposed film “Tukaa Fitt”.”

What ensued next is stated in para 4 that, “Thereafter, it appears that disputes arose between the plaintiff and the said producers, which came to be settled by the Disputes Settlement Committee of the Film Writer’s Association, Mumbai on 21st September, 2011.”

Furthermore, it is then pointed out in para 5 that, “It is further averred, in the plaint, that the production of the film “Tukkaa Fitt” was completed in November 2012 but that, as the producer of the film, unfortunately, died, the release of the film was halted. That position, it is stated, continues till date and the film “Tukkaa Fitt” is yet to be released.”

Notwithstanding to what has been stated, it is then brought out in para 6 that, “Despite this fact, it is asserted in the plaint that as the trailer of the film “Tukkaa Fitt” was released on You Tube and other public media platforms in March, 2011, the work of the plaintiff has been in the public domain since then.”

Be it noted, para 7 then envisages that, “It is further asserted, in the plaint, that on 18th July, 2020, the plaintiff’s assistant informed the plaintiff of the imminent release of the film “Lootcase”, tomorrow, i.e. 31st July, 2020. The plaintiff claims, that on getting to know this fact, he viewed the trailer of the film “Lootcase” and was shocked to find substantial similarities between the plot of the said film “Lootcase” and his script. A tabular statement of the said similarities, has been set out in para 13 of the plaint.”

Needless to say, it is then aptly noted in para 8 that, “It is on this foundation that the plaintiff seeks an interim injunction, restraining release of the film “Lootcase”, to be released tomorrow, i.e. 31st July, 2020.”

After hearing the lawyers, it is then observed in para 15 that, “Having heard learned Counsel at length, I am unable to convince myself that any case for grant of interim relief can be said to exist.”

More significantly, the Delhi High Court then minces no words in para 17 to lay down explicitly, elegantly and effectively that, “It is clear, from a reading of very first principle, set out in the aforesaid paragraph, there is no copyright in any idea, subject, matter, theme or plot, and violation of copyright is confined to the form, manner and arrangement and the expression of the idea by the author of the copyright at work. In the present case, there is no earlier film, based on the script of the plaintiff, which could form the basis of a claim to copyright. The plaintiff as Mr. Neeraj Kishan Kaul correctly points out, bases his cause of action on a script, which never came in the public domain, and public knowledge of which is being sought to be attributed on the basis of a trailer, for a film which never saw the light of day. The cause of action, on the basis whereof the plaintiff premises his case, therefore, essentially remained inchoate. The trailer was not made by the plaintiff and the makers of the trailer have not ventilated any claim for violation of copyright. It is prima facie questionable, in the circumstances, whether any claim of copyright can be laid by the present plaintiff at all, in such circumstances.”

Equally significant if not more is what is then stated in para 19 that, “On its face, the plot essentially revolves around a suitcase, carrying money, being lost, and various persons, including gangsters chasing to get hold of it. The plot idea is as old as the hills, and, without meaning any disrespect to the ingenuity of the plaintiff as a scriptwriter, it can hardly be said, prima facie, that the script of the plaintiff’s screenplay – which has been placed on record but the details of which this Court, for obvious reasons, deems it appropriate not to reveal – can lay claim to any such novelty as could be said to have been filched by the defendant. In fact, a comparison of the salient features of upcoming “Lootcase”, as manifested from the aforesaid trailer, vis-à-vis plaintiff’s script, reveal that there are considerable features in the plaintiff’s script which are missing in the trailer, and there are certain elements of the story as reflected in the trailer, which are not to be found in the script of the plaintiff. The mere fact that certain plot points, between the plaintiff’s script and the story of the upcoming film “Lootcase” as reflected in the trailer released on You Tube, may be common, cannot be the basis to lay a claim to copyright, as the plaintiff has chosen to do. The plot points, on which the plaintiff relies, such as persons losing bags of money, claiming the same and such bags being sought by members of the underworld, are plot points, which may figure in more than one cinematographic film and cannot, therefore, be said to be the exclusive province of the plaintiff. That apart, no copyright exists in a mere idea, plot or theme, as authoritatively held in R.G. Anand Vs. M/s Delux Films 1978 (4) SCC 118.”

Be it noted, it is then observed in para 20 that, “There is yet another reason as to why I am not inclined to accede to the prayer of the plaintiff for grant of ad interim injunction. Mr. Aggarwal has acknowledged that, at the very least, the trailer of the film “Lootcase” was released on 16th July, 2020. I may note, in this context, that Mr. Neeraj Kishan Kaul contests this statement and submits that the promos of his client’s film “Lootcase” had been in the public domain since June, 2019. Either which way, there is no justification for the plaintiff having approached this Court on the eve of the release of the film “Lootcase”, which is slated to be released tomorrow, i.e. 31st July, 2020 and seeking injunction against such release. It is further submitted by Mr Kaul, that the story of the film has been covered in the print as well as electronic media since September, 2019.”

To be sure, it is then made abundantly clear in para 21 that, “This case, therefore, appears, prima facie, to constitute yet another example of the misuse of the judicial process”.

Going ahead, it is then held in para 22 that, “In view of the above discussions, there is no case, whatsoever, for grant of any interim injunction, staying the release of the film “Lootcase”, twenty-four hours before it is due for release.” Finally, it is then held in the last para 23 that, “The application is dismissed.”

All said and done, this extremely laudable, landmark and latest judgment by Justice C Hari Shankar of the Delhi High Court makes it absolutely clear that there can be no copyright in an ideas/theme. Therefore, it also refused to pass an injunction order as prayed by the plaintiff just shortly before the film “Lootcase” was to be released on 31st July, 2020! Very rightly so! Also, it cannot be ignored that the promos of the film “Lootcase” had already been in public domain since June 2019 and thus the plaintiff who himself belonged to the film industry could not feign ignorance of the same! This alone explains why the Delhi High Court was of the view that the case appeared to be another example of “misuse of the judicial process”! No denying it!

Sanjeev Sirohi

Give Highest Priority To Pregnant Women, Then To Senior Citizens And Thereafter to The VVIPs: MP High Court To Railways

In a well-balanced, well-reasoned, well-analysed and well-worded judgment, a two Judge Bench of the Principal Bench at Jabalpur of Madhya Pradesh High Court comprising of Justice Sanjay Yadav and Justice Atul Sreedharan in its judgment titled In Reference v. Union of India in Writ Petition No. 25097/2019 delivered just recently on July 27, 2020 asked Indian Railways to consider re-prioritising the lower berth allotment by giving the highest priority to pregnant women, then to senior citizens and thereafter to the VVIPs. It must be mentioned here that the said suggestion that was put forth by this two Judge Bench came in the PIL that was registered suo-motu by the MP High Court “to consider certain measures regarding railway journeys in the interest of the public at large”! This makes it all the more special and must be commended in no uncertain terms!

To start with, this notable judgment authored by Justice Atul Sreedharan for himself and Justice Sanjay Yadav sets the ball rolling by first and foremost observing in the opening para that, “This Public Interest Litigation (PIL) has been registered suo-motu by this Court to consider certain measures regarding railway journeys in the interest of the public at large. The PIL owes its genesis to a train journey undertaken by a Judge of this Court while he was travelling from Gwalior to Jabalpur on an official visit. When the train reached the Katni-Murwara station, the Judge got off the train for a cup of tea and suddenly, the train started pulling out from the platform without blowing its horn. The Judge was put to great inconvenience and the accompanying hazard of boarding the running train. The incident made the brother Judge put forth three suggestions to the Indian Railways which if implemented would go a long way to ensure passenger comfort during the journey.”

Be it noted, it is then envisaged in para 2 that, “The Indian Railways is the largest State-owned railways in the world. It is the single largest employer and has more than 1.4 million (fourteen lakh) employees working for it (larger than the Indian Army which has 1.2 million personnel). It plies 7421 freight trains daily, moving three million tons of freight. It also runs 12617 passenger trains transporting about 23 million people every day over a 66000 Kms rail network.

The three-suggestions put forth by the Judge of this Court are as follows:

(1)         “It would be in the interest of the public at large that some light signal/sound be fixed on each bogie enabling the passengers outside the train to be alert prior to departure of train with a view to avoid mishappening/accident.

(2)         If the website/app is updated by displaying the position of the seats/berths to be allotted at the time of making reservation, that would be more convenient and suitable for the public in general.

(3)         The size/number of doors of the bogies should be increased or in the alternative, duration of stoppage of the trains should be increased from two minute to at least five minute, to make the people smooth and easy while boarding or getting off the train.””

While lambasting the nonchalant approach of the railways, the Bench then holds in para 3 that, “The reply filed by the Respondent Indian Railways is most apologetic and regretful for the inconvenience caused to the Judge. As regards the first suggestion the Respondent has replied that the train does not move without at least two whistles and without a display of the green/amber signal on the platform in front of each train. It is further stated that perhaps the Judge may not have heard the whistle/horn of the engine on account of the loud ambient sound on the platform. The Respondent says that further instructions have been issued to the staff concerned that greater caution and care should be taken to ensure that the horn of the engine is loud and audible and that the same is accompanied by repeated announcements on the platform through the public address system and also the video displays regarding the departure of the train.”

To say the least, it is then made clear in para 4 that, “As regards the suggestion that light signals or hooters being fixed on the coaches is concerned, the Respondent in the reply has stated that modification of the coach requires a policy decision and design approval of affecting thousands of trains all over the country and that it would not be possible to switch over to a new system of signaling overnight or even over months. Respondent further says that the system has been developed by a highly specialized body of experts. However, the Respondents undertake to ensure greater display of the green/yellow signals and efficient, loud and repeated blowing of the horn before the train departs from the station.”

Now coming to the second suggestion, it is stipulated in para 5 that, “As regards the second suggestion put forth by the Judge with regard to information relating to vacant position of seats/berths, similar to what is shown on the websites and mobile applications of the airline services operating in the country, the Respondent state that though berths which are vacant for allotment are not displayed on the official website of the railways, a comparison with the airlines would not be an accurate assessment of the problem. The Respondent has stated that there can be no effective comparison between the airlines and the Indian Railways as the number of passenger trains running on an average day in India are over 12,000. It is further submitted by the Respondent that lakhs of passengers travel each day and so it is not physically possible to demonstrate which seats are vacant with the present IT infrastructure. The IT experts associated with the railways have stated that providing information relating to vacant berths and their position in the coach is presently not possible. Under the circumstances, the Respondent states that updating the website and the mobile application for displaying the position of seats/berths to be allotted at the time of drawing reservation is again a policy decision and involves major changes and hence has huge financial implications and therefore unviable.”

Furthermore, it is then stated in para 6 that, “The Respondent while answering the issue of granting lower berths to senior citizens has stated that in the priority list of the railways, the VVIPs like ministers, Supreme Court/High Court judges etc., fall very high and they have to be allotted the lower berths. After the VVIPs are accommodated, priorities are given to pregnant women and senior citizens. The Respondent has expressed their inability to manage to the extent that each and every person should be given the lower berth. However, they state that the best efforts are being made to ensure that senior citizens do get the lower berth. The Respondent also states that design of the railway coaches are being made in such a manner that in future it shall be convenient for every person to climb up to the upper berth also however, some inconvenience while travelling is inevitable and therefore regretted.”

Coming to the third suggestion, it is stated in para 7 that, “As regards the third suggestion relating to widening the doors or increasing the stoppage time of the trains at the stations, the Respondent states that it will not be possible to widen the size of the doors because it will decrease the passenger carrying capacity of the coach and will also compromise the safety of the passenger. It further says that any modification in the passenger coaches contains lot of public expenditure, trials and experiments. As regards the stoppage of a train at a particular station, the Respondent submits that the stop of the train at each station is widely published through railway timetables, announcements, notice board and display board etc. Increasing the stoppage of a train, according to the Respondent, would further delay the train in reaching its destination and that the fixing of the halting time at the stations is based upon an assessment by the Respondent with regard to the number of passengers alighting and boarding a particular train at the station. In other words, an indiscriminate extension of time would be counterproductive to the running of trains as it would cause delays and disrupt the time schedule of the trains in reaching their destinations.”

More significantly, it is then stated in para 8 that, “Having heard the submissions of the learned Amicus Curiae and the learned counsel for the Respondent, we are satisfied with the reply given by the Respondent. The suggestions that were put forth to the Respondent have been considered by the Respondent and they have expressed their inability for the reasons stated hereinabove. This Court cannot force the Respondent to incur expenses which the Respondent does not consider as economically viable and also on account of the large number of trains on which the said measures would have to be implemented which makes the proposals difficult, almost impossible to implement. The suggestions put forth are aspects relating to policy decisions of the Respondent and entailing huge expenditure. This court cannot pass a judicial order in matters which would interfere with aspects of policy relating to the Respondent Indian Railways for which this court lacks the technical expertise to appreciate the difficulties that would be faced by the railways in giving effect to the suggestions.”

Finally and perhaps most significantly, the Bench then minces no words to make it clear in para 9 that, “However, as regards the prioritisation of berth allotment is concerned, the Respondent Indian Railways is requested to consider re-prioritising the berth allotment by giving the highest priority to pregnant women, then to senior citizens and thereafter to the VVIPs. As far as VVIP’s/Officials being given a priority in reservation of seat/berth is concerned, the rationale of officials being given a priority is understandable as they are required to travel at short notice for their official duties. However, as regards the priority of allocation of the lower berth is concerned, the same as it exists on date is unpragmatic. Pregnant women are most vulnerable on account of their medical condition and it would cause them great inconvenience in occupying the middle or upper berth. Thus, the dictates of reason and the fulfillment of a welfare state demands that they be given the highest priority along with passengers suffering from terminal illness or life threatening ailments like cancer and those who are physically or mentally challenged, be considered as priority No. 1 for allotment of the lower berth. The senior citizen who on account of their advanced age and attendant medical issues should be considered as priority No. 2 and lastly, the VVIP’s who are usually serving state functionaries are invariably those blessed with better health and so be considered at priority No. 3. With the above direction to seriously re-consider the prioritisation of allotment of the lower berth in trains, the petition is finally disposed of.”

No doubt, the long and short of this latest, landmark and laudable judgment is stated in para 9 stated above. Indian Railways must now implement the directions given by the two Judge Bench of the Madhya Pradesh High Court at Jabalpur. It brooks no delay anymore!

Sanjeev Sirohi

Once Accused Makes A Plausible Defence Under Section 313 CrPC, Burden Is On The Prosecution To Negate It : Supreme Court

 

                                 In a recent, remarkable and righteous decision delivered on July 28, 2020, the Apex Court in Parminder Kaur @ P.P. Kaur @ Soni vs State of Punjab in Criminal Appeal No. 283 of 2011 has made it abundantly clear that once a plausible version has been put forth by the defence at the examination stage of Section 313 of the Cr. PC, then it is for the prosecution to negate such a defence plea. It was further reiterated by the top court that failure of the trial court to fairly apply its mind and consider the defence could endanger the conviction itself. Very rightly so!

To start with, this notable judgment authored by Justice Surya Kant for himself, Justice NV Ramana and Justice Krishna Murari sets the ball rolling in para 1 by first and foremost observing that, “The present Criminal Appeal has been preferred by Parminder Kaur, impugning the judgment dated 30.11.2009 of the High Court of Punjab and Haryana through which her challenge to a judgment dated 27.02.1999 passed by the Additional Sessions Judge, Barnala was turned down, thereby confirming her conviction of three years rigorous imprisonment and fine of Rs 2000 under Sections 366A and 506 of the Indian Penal Code, 1860 (“IPC”).”

While dwelling on the facts and case history, it is then elaborated in para 2 that, “The prosecution story, as recorded in the FIR at around noon on 24.02.1996, was that the appellant was a single lady living with her child, mother and a young boy as her tenant in the neighbourhood of the prosecutrix’s house.[The name of the prosecutrix/victim has been withheld, in compliance with the ratio in Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551]. About a week prior to registration of the police complaint, the appellant called the prosecutrix to her house and tried to entice her to indulge in illicit intercourse with the rich tenant boy in return for clothes and trips from him. The appellant at about 6.00 A.M. on 19.02.1996 allegedly pushed the visiting prosecutrix into the room occupied by the tenant boy and bolted it from the outside. It was only on hearing the prosecutrix’s screams that after five minutes the door was unlocked, with her father (Hari Singh, PW-2), Bhan Singh and Karnail Singh standing outside. Swiftly, the boy ran out of the room and successfully escaped. Upon the prosecutrix emerging from the room, her father protested and expressed his dismay to the by-standing appellant. Scared for their reputation, the prosecutrix and her father returned to their home without reporting the matter to anyone, except the prosecutrix’s mother. However, on 24.02.1996 at 7.00 A.M., the appellant caught hold of the prosecutrix outside her house and threatened to kill her brother if anyone was informed of the matter. The prosecutrix was able to escape the appellant’s clutches and worried at this high-handedness, proceeded with her father towards the police station to report these two incidents and lodged a complaint.”

As it turned out, para 6 then holds that, “Accordingly, the trial Court held that the appellant had intentionally induced the prosecutrix to perform illicit intercourse with her male tenant, and that she had also criminally intimidated the prosecutrix by threatening her family member. Noting the large number of dependents that the appellant had to support as a single lady, and considering the lack of commission of any assault or rape against the prosecutrix, the appellant was concurrently sentenced to three years rigorous imprisonment and fine of Rs. 2,000 (or further six months rigorous imprisonment in lieu thereof) under Section 366A, and one year rigorous imprisonment and fine of Rs. 1,000 (or further three months rigorous imprisonment in lieu thereof) under Section 506 of IPC.”

As a consequence, what then followed is stated in para 7 that, “The aggrieved appellant approached the High Court which too refused to interfere with the order of contention. While dismissing the appeal, the High Court observed that the statement of the accused under Section 313 CrPC appeared to be an after-thought, and that in the absence of any evidence proving enmity between the parties it was impossible that anyone would falsely implicate a woman in such like offence. The minority of the prosecutrix was noted as having been proved, and the testimonies of PW1 and PW2 were held to be impeccable and corroborating each other completely. Similar to the trial Court, the High Court also explained away the delay in registration of FIR as a result of family reputation put at stake in matter of sexual offence cases. Other omissions in the form of non-examination of Bhan Singh and Hari Singh and failure to catch or trace the identity of the male tenant were deemed insignificant and immaterial.”

Analysis

I.                 Sweeping generalisations and superficial analysis

Without sparing any punches, the Bench then minces no words to point out in para 10 that, “Having heard learned counsel for the parties at considerable length through video conferencing, we find from the impugned orders that the Courts below failed in making the desired attempt to delve deep into the factual matrix of this case. Many aspects, as discussed hereunder, have completely been ignored or only dealt with hastily. Further, the reasoning is generic and is premised upon generalisations which may not be necessarily true always. It is indisputable that parents would not ordinarily endanger the reputation of their minor daughter merely to falsely implicate their opponents, but such clichés ought not to be the sole basis of dismissing reasonable doubts created and/or defences set out by the accused.”

While continuing in the same vein, the Bench then notes in para 11 that, “Similarly, the five-day delay in registration of the FIR, in the facts and circumstances of this case, gains importance as the father of the victim is an eye-witness to a part of the occurrence. It is difficult to appreciate that a father would await a second incident to happen before moving the law into motion. Sweeping assumptions concerning delays in registration of FIRs for sexual offences, send a problematic signal to society and create opportunities for abuse by miscreants. Instead, the facts of each individual case and the behaviour of the parties involved ought to be analysed by courts before reaching a conclusion on the reason and effect of delay in registration of FIR. In the facts of the present case, neither is Section 366A by itself a sexual offence in the strict sense nor do the inactions of the prosecutrix or her father inspire confidence on genuineness of the prosecution story. No steps were taken to avail of medical examination of the victim, nor was the Panchayat or any social forum approached for any form of redress till the occurrence of the second alleged incident.”

What’s more, the Bench then goes on to elaborate in para 12 that, “Further, it is beyond comprehension that the prosecutrix’s father and his two male associates failed to stop the tenant boy who was allegedly about to commit a sexual offence with the minor victim and neither did they later make any attempt to even register a complaint against him. Strangely, the prosecution has acquiesced to such disappearance of the boy from the scene. Still further, the father of the prosecutrix merely registered his protest to the appellant on the scene, instead of reacting instinctively and approaching police authorities when faced with possible trafficking of his daughter. This conduct of belatedly proceeding against only the prosecutrix creates a lurking suspicion against the prosecution case and it may not be totally improbable to infer that it was a malicious attempt at the behest of Bhola Singh to falsely implicate a weak rape victim and stifle her ability to seek justice.”

II. Shoddy investigation and prosecution

In a damning indictment of the police, it is then pointed out in para 13 while also highlighting the shoddy investigation and prosecution that, “The original record elucidates the lack of serious effort on part of either the investigation agency or the prosecutor to bring home the appellant’s guilt. Save for the initiative of the prosecutrix and her father to register the complaint, no substantive evidence has been gathered by the police. Despite the male tenant having been residing with the appellant allegedly for many months, the police were unable to even discover his name, let alone his antecedents or location. Further, DW-1 casts an impressionable doubt on the existence of the boy in the first place. This is further buttressed by the fact that PW-1 and PW-2 differed in their physical description of the boy’s age, clothing and his whereabouts. If the boy was indeed a tenant and if he did live there for months, it is highly mootable that he couldn’t have been traced.”

To be sure, it is then put forth in para 15 that, “Non-examination of Bhan Singh and Karnail Singh is also a noticeable lapse, given the gaps in the prosecution story. It appears that no serious attempt was made to get them examined to resolve the contradictions in the testimonies of PW-1 and PW-2. Such lack of examination of material independent witnesses, adversely affects the case of the prosecution.”

Furthermore, it is then pointed out in para 14 that, “The spot map prepared by PW-3 also has glaring omissions. The location of Bhan Singh’s house and the place where the appellant allegedly threatened the prosecutrix on 24.02.1996 are not even marked. Letters which the prosecutrix alleged in her examination-in-chief and police complaint that the appellant got written from her, have not been produced during trial. These could have shed light on the relationship between the accused, prosecutrix and the male tenant prior to the incident. It is the duty of the prosecution to lead the best evidence in its possession, and failure to do so ought to lead to an adverse inference.(Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541).”

III. Gross Mis-appreciation of conflicting testimonies

To put things in perspective, it is then envisaged in para 16 that, “Ordinarily, the Supreme Court ought not to re-appreciate evidence. However, where the courts below have dealt with the material-on-record in a cavalier or mechanical manner which is likely to cause gross injustice, then this Court in such exceptional circumstances may justifiably re-appraise the evidence to advance the cause of justice. There is no gainsaying that such re-assessment ought not to take place routinely and ought not to become substitution of an otherwise plausible view taken by the Courts below.”

Needless to say, it is then held in para 17 that, “The trial Court has summarily disregarded the contradictions highlighted by the defence side, on the premise that such contradictions had no material bearing and that there was no reason to disbelieve the prosecutrix. The High Court too has opined that PW-1 and PW-2 have completely corroborated each other and their testimonies were impeccable. These reasons, in our considered opinion, are not only contrary to the record but they also lead to an impermissible reversal of the burden of proof imposed in criminal trials. There are numerous clear contradictions between the testimonies of these two star-witnesses, which we find fatal to the prosecution case.”

IV. Failure to refute Section 313 CrPC statement

Most significantly, it is then rightly underscored in para 21 that, “Under the Code of Criminal Procedure, 1973 after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial Court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself (Reena Hazarika v. State of Assam, (2019) 13 SCC 289). Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities. (M. Abbas v. State of Kerala, (2001) 10 SCC 103). Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defense plea.”

V. Charge of criminal intimidation

In short, the key point of para 25 is that, “Given the facts of this case where the common testimony of PW-1 on both charges has been doubted, it would be unwise to rely upon it as the sole piece of evidence to convict the appellant for criminal intimidation without any other corroboration.”

Truth be told, it is then held in para 22 that, “In the case at hand, the alternate version given by the appellant could not be lightly brushed aside. Her two-part defence, put succinctly, was that first there was no male tenant at all and no one except for her child and mother lived with her, and second, that she was being falsely implicated as vengeance for filing a rape complaint against Bhola Singh with whom the prosecutrix’s father used to work.”

Conclusion

Finally, it is then held in the last para 26 that, “We are thus of the considered view that the prosecution has failed to discharge its burden of proving the guilt of the appellant under Section 366A and 506 of the IPC beyond reasonable doubt. Thus, for the reasons aforesaid, the appeal is allowed and the conviction and sentence awarded by the Courts below are set aside. The appellant is acquitted and consequently set free.”

No doubt, it is a well balanced, well worded and well reasoned order by a three Judge Bench of the Apex Court. It rightly espoused that once an accused makes a plausible defence in his Section 313 CrPC statement, the burden is on the prosecution to negate it. If prosecution fails then the benefit of doubt will go to the defence as we see here. Very rightly so!

Sanjeev Sirohi