Bail – If Case Diary And Other Materials Disclose Prima Facie Case Then Bar Under Proviso To Section 43D(5) Of UAPA Will Be Attracted: Chhattisgarh HC

It is imperative to mention right at the outset that in a latest ruling, the Chhattisgarh High Court has as recently as on December 20, 2019 in Abhay Nayak v. State of Chhattisgarh in CRA No. 1213 of 2019 held quite explicitly that on reading the case diary or any other material placed on record, if a prima facie case is made out against the accused, then the proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 will get attracted and the accused shall not be enlarged on bail. This is primarily because doing anything which goes against the supreme national interests and foments terrorism in any manner cannot be lightly dismissed. It has to be taken most seriously and this alone explains why in such cases bail is not granted!

To start with, this notable judgment authored by Justice Prashant Kumar Mishra for himself and Justice Gautam Chourdiya sets the ball rolling by first and foremost observing in para 1 that, “These three connected appeals under Section 21 (4) of the National Investigation Agency Act, 2008 (for short ‘the NIA Act’) would call in question three separate orders passed by the trial Court (NIA Court) rejecting the appellant’s prayer for his release on bail under Section 439 of the Cr.P.C.”

To recapitulate, it is then pointed out in para 3 that, “The prosecution case, in brief, is that on 28-1-2017 an information was received by the concerned police that on the road between village Bastanar-Dankapara towards village Kandoli a banner has been put on along with pamphlets containing anti national contents. On receipt of the information the team of a Kodenar police led by the Station House Officer reached to the place and found a banner and anti national contents and few naxal pamphlets written in English propagating naxal movement. When the near by places were searched the police team found an explosive like material and few wires, which were further dug out with proper security. On this search a 7 kg Tiffin Bomb with 20 meters long wire and pamphlets were found. The pamphlets were having signature of ‘Vikalp’ as Spokesperson, Dandakaranya Special Zonal Committee CPI (Maoist) and Abhya as Spokesperson, Central Committee CPI (Maoist). This organisation has been banned by the Government of Chhattisgarh. Dehati Nalsi was recorded and on return the subject crime was registered at Police Station Kodenar primarily under Section 120-B of the IPC; Sections 4 & 5 of the Explosive Substances Act, 1908; and Sections 38 & 39 (2) of the Unlawful Activities (Prevention) Act.”

To be sure, para 4 then states that, “During further investigation, it came to the knowledge that the Police Station Darbha has also registered Cr. No.7/2017 and seized pamphlets and literatures containing propagation of naxal movement. The Investigating Officer found email ID and mobile number written over the seized articles, which were further investigated on which one person named ‘Abhay Nayak, R/o Bangalore’ was suspected as a person who has committed the offence.”

Going forward, it is then elaborated upon in para 5 that, “When the police team went to Bangalore (Karnataka) it got information that the appellant is not available in the country, but is travelling abroad with unknown location. Thereafter, Bastar Police issued Look Out Circular. The Immigration Bureau, New Delhi, informed the Superintendent of Police, Bastar that the appellant has been taken into custody. He was enquired by Bastar Police at Delhi and thereafter, upon his consent, Laptop, Mobile, Hard Disk, Pen Drive, etc. were recovered and brought to Bastar for further investigation. In his confessional statement the appellant admitted that for propagating naxal activities he acts as a Blogger and Spokesman via its Blog and Social Media sites i.e. Twitter, Google+, Yahoo, etc. to increase urban naxal cadre and influence urban youths. The appellant was arrested on 1-6-2018 and his residence was searched. The appellant was thereafter searched for two other offences.”

After hearing both the sides, it is then observed in para 10 that, “A perusal of the material available in the case diaries would reveal that the hand written diary seized from the residence of the appellant containing objectionable and anti national contents about the Indian Police and Para Military Force was sent to the State Examiner of Questioned Document, Government of Chhattisgarh (Hand Writing Expert) on 23-6-2018. The Hand Writing Expert’s report received by the police on 30-6-2018 mentions that all the writings have been written by one and the same person. Diary also reveals that when the appellant’s blog was data analysed by the Cyber Police Team of Bastar, the appellant was found to have officially created ‘CPI Maoist Naxalite’ blog and continued blogging on the site. Thereafter, he wrote his blogs as ‘abhay naxal revolution’, to hide his overtly and expressly Maoist connection. The appellant was also found to use fake ID number, proxy server and TOR to run his blog, which he did to hide his identity from the Government surveillance. The blog posts and proxies have been annexed with the return filed by the State.”

What’s more, it is then also pointed out in para 11 that, “Record also contains material that on thorough examination of appellant’s e-mail ID, after seeking permission from the Special Court, Jagdalpur, various folders with naxal contents and anti national contents including press release, propaganda and audio video attachments having anti national and provocative contents were found. Mail from superior naxal cadres like Vikalp and Gudsa Usendi and connection with RDF (Revolutionary Democratic Front) and other anti national organization was also found. The scrutiny also revealed that the appellant is working with Rona Wilson, G.N. Saibaba, etc.”

Not stopping here, it is then more damningly also pointed out in para 12 that, “The data analysis also found that the appellant tried to contact other naxal sympathizers including foreigners and journalists for arranging interview with superior naxal cadres either directly or through virtual media. He has been visiting foreign countries for last one year to promote the naxal ideology and improve naxal movement in India. The investigating police have also found that appellant’s blog post ‘naxalrevolution.blogpost.com’ is a mirror website of ‘naxalrevolution-lal salam’, which is totally a Maoist social networking platform.”

More significantly, the Chhattisgarh High Court Bench comprising of Justice Prashant Kumar Mishra and Justice Gautam Chourdiya then rightly holds that, “The law is, thus settled that while considering the prayer for grant of bail the material collected by the prosecution thus far need not be discarded nor its admissibility or otherwise is to be considered at this stage. If the case diary and other materials disclosed that the accusation against the accused is, prima facie, true, the bar under the proviso to sub-section (5) of Section 43D of the Unlawful Activities (Prevention) Act, 1967 would be attracted.”

Moving on, it is then observed in para 16 that, “In the case at hand, there is material collected by the Investigating Officer which furnishes reasonable ground for believing that the accusation against the appellant is, prima facie, true. Thus, no case for inferring with the trial Court’s order is made out.”

Finally, this commendable and laudable judgment concludes in para 17 wherein it is observed that, “As a sequel, all the criminal appeals, sands substratum, are liable to be and are hereby dismissed.” Very rightly so!

No doubt, it is a very well written judgment and a well concluded judgment. It rightly placed reliance on National Investigation Agency v Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Apex Court had observed that, “The totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analyzing individual pieces of evidence or circumstance.” Support to Naxal movement which is a violent and committed to  terrorism in order to overthrow democracy in India cannot be justified under any circumstances! The UAPA Act rightly ensures that those accused of promoting Naxal ideology are not granted bail! This is what the Chhattisgarh High Court too has ensured in this latest, landmark and extremely laudable case also! Very rightly so! Naxal violence brooks no tolerance and there has to be no compromise on this at any cost and under no circumstances!

Sanjeev Sirohi

People Have Right To Criticize Dispensation Running The Country, Being Legislature, Executive Or Judiciary: Calcutta HC

                                  It is most pleasing, most refreshing and most heartening to note that the Calcutta High Court just recently on December 3, 2019 in a notable judgment titled Sanmay Banerjee Vs. State of West Bengal and others in W.P. No. 21526(W) of 2019 in exercise of Constitutional writ jurisdiction on the appellate side has very rightly in no uncertain terms held most categorically, clearly and convincingly that people have every right to criticize dispensation running the country, being legislature, executive or judiciary! It held that, “It is not clear at all as to how the criticism of the State Government and its functionaries and a Member of Parliament could be deemed to be publication of a statement likely to cause fear or alarm to the public at all, let alone whereby such person may be induced to commit an offence against the State or against the public tranquility.” Very rightly so!

To start with, Justice Sabyasachi Bhattacharyya of the Calcutta High Court who authored this noteworthy and highly commendable judgment sets the ball rolling by first and foremost observing that, “The petitioner claims to be a freelance journalist and a whistleblower, who runs two vernacular newspapers and You Tube channels. It is the contention of the petitioner that due to his exposure of corruption in political quarters, he has earned the wrath of the ruling party and has been constantly subjected to threats. The cause of action of the present writ petition arose when the petitioner was allegedly picked up around 7.30-7.45 p.m. on October 17, 2019 without any prior notice, by the Officer-in-Charge of the Khardah Police Station, along with hoodlums of the local ruling party, and was subjected to tremendous torture within the precincts of the Khardah Police Station and mercilessly beaten up the petitioner against all established norms of human rights. Ultimately, the petitioner was taken into custody by the Purulia District Cyber Crime Police Station at around 4.30 a.m. and purportedly arrested in connection with Purulia District Cyber Crime Police Station Case No. 2 of 2019 dated September 23, 2019 under Sections 465/469/500/504/505(1)(b) of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”),  read with Section 66 of the Information Technology Act, 2000 (hereinafter referred to as “the IT Act”).”

To recapitulate, it is then pointed out that, “During interrogation, the petitioner was allegedly asked to admit that he had manipulated and manufactured documents, including some forged appointment letter issued by the West Bengal Board of Primary Education. The Inspector-in-Charge of the Khardah Police Station, it is alleged took the lead role in perpetuating torture upon the petitioner, which will easily be revealed from the CCTV footage of the Khardah Police Station of the relevant date. Although the petitioner was produced ultimately before the Chief Judicial Magistrate, Purulia on October 18, 2019, the bail application of the petitioner was rejected and October 20, 2019 was fixed as the date for production of the petitioner. On the latter date, the Chief Judicial Magistrate granted bail to the petitioner. According to the petitioner, he had to be admitted to a hospital under acute mental and physical condition after his release on bail and had to be treated in the hospital till November 3, 2019.”

After listening both sides, the Calcutta High Court then observes that, “The first feature of the present case, which defies logic, is that the complainant, on the basis of whose allegations the FIR-in-question was registered, was in no way connected with the alleged offences, nor the victim of any of those. The complainant was an Assistant Public Prosecutor of the State in the Raghunathpur Court.”

Needless to say, it is then pointed out that, “A bare perusal of the offences with which the petitioner was charged shows that all offences under the IPC were non-cognizable offences, apart from Section 469 of the IPC, which was cognizable but bailable. As such, the police could not, of its own, commence investigation on any of such allegations. That apart, a bare perusal of the sections mentioned in the FIR reveals that those do not stand a moment’s scrutiny, at least on the complaint of the Assistant Public Prosecutor, who was in no way connected with the matter.”

Be it noted, it is then stated that, “The first charge slapped on the petitioner was under Section 465 of the IPC, which pertains to commission of forgery. The next offence alleged, under Section 469 of the IPC, pertains to forgery being committed, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose.”

Furthermore, the Calcutta High Court then states quite the ostensible saying “It is evident that, by merely viewing the You Tube channels-in-question, the complainant could not have any idea about whether the document shown therein were forged or forged for the purpose of harming the reputation of anybody. The complaint lodged does not indicate any basis whatsoever for the wild apprehension of the complainants that such documents were forged.”

What’s more, it is then pointed out that, “As far as Section 500 of the IPC is concerned, the same relates to defamation of another and is even compoundable by the person defamed, if she/he agreed to have the charge dropped against the accused. Section 504 of the IPC provides about intentional insult with the intent to provoke breach of the peace. Such insult has to be intentional, giving provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence.”

What is really baffling is now stated by the Calcutta High Court that, “Pertaining to both the aforesaid sections, being Sections 500 and 504, the persons against whom the defamation or the insults were allegedly committed, have not come up with any allegation whatsoever in that regard. It begs explanation as to how the Assistant Public Prosecutor of the Raghunathpur Court could have an inkling of an idea as to whether the statements were perceived to be defamatory by the recipients of such alleged defamatory statements or insults, or would cause the victims of the acts to break public peace or commit any other offence. No basis for such bald allegation has also been disclosed in the complaint.”

To be sure, it is then clarified that, “Next taking into consideration Section 505(1)(b) of the IPC, which is one of the other provisions under which the investigation was apparently started by the police, the same relates to publication or circulation of any statement, rumour or report with intent to cause, or likely to cause fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.”

What seems quite incomprehensible is now stated by the Court that, “It is not clear at all as to how the criticism of the State Government and its functionaries and a Member of Parliament could be deemed to be publication of a statement likely to cause fear or alarm to the public at all, let alone whereby such person may be induced to commit an offence against the State or against the public tranquility.

While clearing the air on “State” and “Government”, it is then observed that, “In this context, it has to be noted that there is a common misconception of identifying the ‘State’ with the ‘Government’. This may be a fallout of the failure of the Indian polity to implement the Constitutional vision as to separation of powers between the three wings of the Government, in particular among the Legislature and the Executive. ‘State’, as commonly understood, is a body or association of people which comprises a polity and is an independent political entity having sovereignty. There may be different forms of governance in running the State. However, unlike the political fiction of a ‘State’, generally having geographical boundaries, a Government is a dispensation which runs the bureaucratic administration of the State at a particular point of time and cannot be identified with the State itself.”

While pointing out the most fundamental difference, it is then stated that, “Particularly in a multi-party democracy like India, it is often seen that the ideologies of political parties in control of the State machinery acquire pre-dominance over the actual will of the public, although on paper elected representatives of the people run the Government. As such, it would be an infinitely risky proposition to equate the State with the Government in power, since that would be the very antithesis of a democracy.”

Most importantly, the Calcutta High Court then minces no words to state unambiguously that, “The people always have a right to criticize the dispensation running the administration of the country, being the Government or the Executive. Even the Judiciary and the Legislature are not exempt from fair criticism. That is what the freedom of speech and expression, as enshrined in the Constitution, is all about.”

But it is also added further in the same vein that, “However, to say that transmission made in a website channel, making certain allegations against some persons, who happen to be Ministers or Members of Parliament, does not and cannot tantamount to a publication or circulation of a statement instigating people to commit an offence against the ‘State’, or against the ‘public tranquility’. Such allegations are of personal nature and, if aggrieved, the persons concerned could very well have approached the police authorities with legitimate complaints. In the absence of any such complaint by the said persons, it would be attributing to the said functionaries of the Government or a Member of Parliament the sovereignty associated with the concept of ‘State’, which was never contemplated by the framers of the Constitution or law-makers.

Having said this, it is then underscored that, “In fact, it is criticism which helps in good governance and keeps a leash on public functionaries, providing a touchstone for the Executive to test the worth of their public endeavours.”

Doubtless, it is then rightly held that, “In such view of the matter, the inclusion of Section 505(1)(b) of the IPC in the FIR is ex facie not maintainable.”

No doubt, it is also very rightly held that, “No ingredients in the acts of the petitioner, as alleged in the complaint and FIR, satisfies the criteria of Sections 500 and 504 of the IPC. As such, there is no basis to the allegations of defamation or intentional insult, as envisaged in Sections 500 and 504, in the complaint, on the basis of which the police started investigation.”

Adding further weight to the above, it is then held while pooh-poohing the ground of a valid FIR that, “Taking into account Sections 465 and 469, the question of the complainant having direct knowledge or even indirect information about any forgery being committed, merely on perusal of a video clipping on a social media, is incredible to even the most gullible among us. Such allegations are baseless, in so far as they relate to forgery of documents which the complainant did not even have the scope of going through. The complaint did not even disclose any basis of the complainant’s source of knowledge or reasons for apprehension, as to the documents shown on the petitioner’s social media channels being forged. Hence, all the offences under the IPC, on which investigation was started against the petitioner, were ex facie baseless and could not be the ground of a valid First Information Report.”

What also cannot be easily brushed aside is that the Calcutta High Court while rapping the knuckles of the police clearly, categorically and convincingly held that, “It was the choice of the petitioner, for the time being at least, not to take such action against the Judicial Magistrate, which does not ipso facto absolve the police authorities from their illegal action in detaining the petitioner on frivolous grounds, that too on the complaint of a person who, on the face of it, could not have any direct knowledge of the allegations made, more so since the allegations were baseless on the face of it and were not even maintainable against the petitioner in the context of the petitioner’s actions, on the basis of which such offences were alleged.”

More damningly, the Court further holds that, “Moreover, the action of the police in the present case appears to be patently mala fide and reeks of political rather than legal motivation, in view of all the persons who were alleged to be victims of the petitioner’s act in the complaint belonging to the present ruling dispensation of the state and the complaint being lodged by an Assistant Public Prosecutor of the Raghunathpur court, who ought not to be affected in any manner with, or even any basis of knowledge of, the offences alleged, particularly those of forgery, unless the complainant perceived an allegiance owned by him to his political nominators.”

In essence, this latest, landmark and extremely laudable judgment serves to send out a very loud and clear message to one and all especially those sitting in power that people have every right to criticize dispensation running the country, being legislature, executive or judiciary! This is what makes this judgment so special! The Calcutta High Court rightly came to the rescue of the journalist named Sanmay Mukherjee and restrained the State authorities from taking any action against him in connection to a forgery and defamation case as there was no substance in those allegations! The contention of Sanmay that the police action was in complete violation of the law of the land as laid down by the Supreme Court in the landmark case of Arnesh Kumar v State of Bihar & Anr., (2014) 8 SCC 273, as he was not given any notice under Section 41A of CrPC which police was supposed to give! Very rightly so!

Sanjeev Sirohi

Gujarat HC Confirms Death Sentence To Man Accused Of Rape And Murder Of 3.5 Year Old Girl

                                     Nothing on earth can be more cowardly, more dastardly and more ghastly crime than rape followed by murder of 3.5 year old girl! Yet how many times do we listen that such rapists cum killers are hanged in India? Our legal and criminal justice system is so excruciatingly slow that it is the worst form of injustice and yet we see that it is repeatedly justified in the name of “due process of law”. What is worse is that such rapists cum killers or gang rapists cum gang killers enjoy first review petition, then curative petition and then finally mercy petitions and many decades disappear yet the decision finally of hanging the culprits does not come! In last 40 years I have not heard any gang rapist being hanged and just 3 rapists-cum-killers have been hanged in last 40 years! Should we be proud of it?

Why can’t review petition, curative petition, mercy petition be disposed of within a definite time frame? Who are the legal giants in Supreme Court and in legal profession who don’t want this to happen? Who are the law makers in Parliament who don’t want this to happen? Should a small coterie of vested elements be allowed to hold the whole criminal justice system of our nation to ransom?

Just High Court or Supreme Court awarding death penalty will not send a loud and strong message to all rapists cum killers that they will not be spared! It is when they are actually hanged that the right message will percolate down the masses that no one can take law for granted in India! Why can’t our law be amended in this direction accordingly? Why can’t mandatory death penalty be inserted within a fixed time frame?

Why can’t the “discretion bomb” in the form of “may” be totally removed from IPC in Sections pertaining to rape to award mandatory death penalty especially for gang rape and rape of minors as was underscored also by none other than the President of India – Ram Nath Kovind? Why are our law makers totally insensitive on this count? Why some law makers inspite of facing rape charges are allowed to continue as MP and MLAs? Why should they not be debarred till they are finally exonerated? Why no strict parameters are framed for them even though for becoming a Judge or IAS or any other government service there are similar strict parameters? Our law makers need to work upon it now as it is high time!

None other than the Supreme Court itself had itself said in an order recently on December 18, 2018 that it is “time to take stock” if the Nirbhaya case is the best the country’s law enforcement and judiciary could do to bring the guilty to justice for crimes committed against women. A Bench led by CJI Sharad A Bobde had said that there was no let down in the atrocities against women. The latest data from National Crime Records Bureau shows 32,559 rape cases were registered in 2017 alone. In the 18-page order, the Apex Court said that the rising crime graph was despite sweeping amendments made to criminal law, especially anti-rape laws, in 2013 and 2018. It acknowledged that, “Delay in recent times has created agitation, anxiety and unrest in the minds of the people.”

Needless to say, the Bench of Apex Court also comprising of Justice BR Gavai and Justice Surya Kant further observed that, “The Nirbhaya case is not an isolated case where it has taken so long to reach a finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage…We are, therefore, of the view that it is necessary to take stock of the implementations of provisions of criminal law, including amendments relating to rape cases and other sexual offences.” It is good to see that even the top court now felt it necessary to take stock of the rapid increase in cases of crime against women and girl child.

Coming back to this latest case, the Gujarat High Court has in Anil Surendra Singh Yadav Vs State of Gujarat in R/Criminal Appeal No. 1973 of 2019 with R/Criminal Confirmation Case No. 2 of 2019 delivered on December 27, 2019 has very rightly held that such crimes do not only reflect the abusive facet of human conduct but also shock the collective conscience of the society. There has to be zero tolerance for such horrifying crimes where a minor is first raped and then killed! No wonder, the Gujarat High Court too has very rightly confirmed the death sentence awarded to a man accused of rape and murder of a three and a half year girl!

To start with, we see that this latest, landmark and extremely laudable judgment authored by Justice Bela M Trivedi and Justice AC Rao sets the ball rolling by first and foremost pointing out in para 1 that, “Both the proceedings arise out of the self-same judgment and order dated 31.7.2019 passed by the Additional Sessions Judge and Special Judge (POCSO), Surat (hereinafter referred to as “the Special Court) in Special POCSO Case No. 223 of 2018, whereby the Special Court has convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of IPC and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”), and has sentenced him to death penalty for the offence under Sections 302, 376AB of IPC and has awarded different punishments of different durations and directed to make payment of fine for the said offences. The Special Court has acquitted the accused for the offences under the Atrocities Act. The Special Court has not imposed separate punishment for the offence under Sections 3, 4, 5(a), 5(r) and 6 in view of Section 42 of POCSO Act. The appellant-accused has preferred the appeal under Section 374 of Cr.P.C., against the said judgment and order of the conviction and sentence, which has been registered as Criminal Appeal No. 1973 of 2019, whereas the Special Court has submitted the proceedings to the High Court for confirmation of sentence of death penalty imposed by it in view of Section 366 and Section 368 of Cr.P.C., which has been registered as Confirmation Case No. 2 of 2019.”

To recapitulate, the case of the prosecution is then described in detail in para 2 wherein it is stated that, “The case as unfolded by the prosecution before the Special Court was that the appellant/accused was residing in a room situated on the ground floor of the house owned by one Shyam Narayan Pandey, situated on the plot No. 44 at Someshwar Work Society, Surat, and the complainant was staying along with his family on the 1st floor of the said house as the tenant. The appellant on 14.10.2018 between 20.00 to 20.30 hours kidnapped the minor daughter (hereinafter referred to as “the victim”) aged about 3 years 6 months of the complainant Narayan Uttam Umale, who belonged to the Scheduled Caste. The appellant thereafter took the victim to his room and committed rape on her and killed her by throttling. The appellant thereafter with the intention to destroy the evidence put the body of the victim in a gunny bag in his room. He thereafter locked his room from outside and fled away. The complainant fervently searched his daughter in the society, but she was not found and therefore, he lodged a complaint at Limbayat Police Station, Surat on 15.10.2018 at about 1.15 hours, which was registered as CR-I No. 209 of 2018 at the said police station. The Investigating Officer thereafter made inquiry and search at the said society. Since the room of the accused was found locked, he broke open the lock of the said room in presence of the panch witnesses, from where the corpse of the victim was found in a gunny bag in a decayed and decomposed condition. The complaint thereafter was registered for the offences under Sections 302, 363, 366, 376AB, 377 and 201 of IPC and under Sections 3(A), 4, 5(a), 5(r) and 6 of the POCSO Act and under Section  3(2) (5), Section (3)(2) (5-A) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act (hereinafter referred to as “the Atrocity Act”). The case was investigated by the Investigating Officers at Surat as well as at the native place of the accused at Bihar. After collecting sufficient evidence against the accused, the charge-sheet was filed by the ACP Mr. Parmar before the Special Court, which was registered as Special POCSO Case No. 223 of 2018.”

To put it succinctly, it is then very rightly held in para 51 after analyzing the whole case that, “In the instant case, if the Court has to draw a balance-sheet of the aggravating circumstances and mitigating circumstances to strike a just balance as propounded by the Supreme Court, the Court is of the opinion that the scale of justice tilts against the appellant/accused. The aggravating circumstances proved beyond reasonable doubt like the acts of the accused in kidnapping a young girl of 3 ½ years, committing rape on her in her absolutely helpless and unprotected condition, and then murdering her in a brutal manner by strangulating her and then putting her in a gunny bag, fleeing away to his native place at Bihar, leaving the dead body in the locked house to decay and decompose, with no repentance or remorse after the commission of crime overweigh the mitigating circumstances like no criminal antecedents of the accused or no evidence to suggest that he cannot be reformed. The plea that the case being based on circumstantial evidence be treated as a mitigating circumstance is also unsustainable, when the Court has found that the prosecution by it is unimpeachable, trustworthy, cogent and credible evidence has proved the guilt of the accused beyond reasonable doubt.”

Most significantly, it is then further most rightly held in para 52 that, “The abhorrent and atrocious nature of crime committed by the appellant/accused in diabolical manner, on the defenseless unprotected girl of 3 ½ years, without any remorse, has left the Court with no option but to consider the case as the “rarest of rare case” for awarding the punishment of death penalty. Such crimes do not only reflect the abusive facet of human conduct but also shock collective conscience of the society. The latest legislative wisdom shown by the legislature by amending Section 6 of the POCSO Act and by incorporating the punishment of death penalty for the offence of “aggravated penetrative sexual assault” on the child below 12 years reinforces the desirability of the capital punishment for the heinous crimes. Of course, the said amendment has been carried out recently and could not be made applicable to the present case, as the offence was committed prior to the amendment. Nonetheless, considering the rising crime rate particularly of the heinous nature of crimes against the young girls, and in response to the society’s cry for justice against the criminals and to have deterrence in the society, the culpability of the appellant/accused deserves to be awarded extreme penalty. The Court, therefore, is of the opinion that the death penalty awarded to the accused by the Special Court deserves to be confirmed.”

As a consequence, what follows finally is stated in para 53 that, “In that view of the matter the judgment and order dated 31.7.2019 passed by the Additional Sessions Judge and Special Judge (POCSO), Surat in Special POCSO Case No. 223 of 2018 of conviction for the offence under Section 363, 376AB, 377, 302 and 201 of IPC and under Section 3(a), 4, 5® and 6 of the POCSO Act, and of the sentence of death penalty for the offence under Section 302 and 376AB of IPC is confirmed. The other punishments imposed by the Special Court for the other offences are also confirmed. The appeal being Criminal Appeal No. 1973 of 2019 stands dismissed. The Confirmation Case No. 2 of 2019 stands disposed of accordingly.”

It is high time and now our law makers must wake up from their deepest slumber and do the dire needful to check the growing incidents of rape of minors followed by brutal murder! The “rarest of rare” doctrine must be kicked out in such cases of ghastly crimes against minor girls! There should be no “may” and there should be no “or”!

Only and only death penalty for not just rape cum murder of minors but also for rape of minors! Nothing else! All “discretion bombs” in IPC must be defused right now if the alarming rise in crimes against women have to be checked and their cases must be decided at the earliest and there should ideally be no mercy or review or curative petition for those involved in the ghastly crime and at the most if they are not abolished then they must be decided within the shortest possible term!

Only then will death penalty serve as a strong and potent deterrent for others! We rarely see death by hanging of rapists in our country and this is the real reason why rapists feel most emboldened and especially when they note that in about 40 years just one poor Dhananjoy Chatterjee is hanged on circumstantial evidence alone and as senior Supreme Court advocate Colin Gonsalves pointed out that his petition was drafted by prisoners of Tihar jail which was nothing but the biggest “miscarriage of justice”! Why other rapists cum murderers and gang rapists cum murderers not hanged even when there is direct evidence against them? Supreme Court must now ensure that they too are hanged because if this does not happen even now people will talk more and more loudly that “Law favours the rich and influential rapists cum murderers and even Supreme Court does nothing on this score” which should never be the case and will be the biggest national tragedy as people will lose faith in the criminal justice system of our nation! Can we really afford this?

Sanjeev Sirohi

Judicial Process Should Not Be An Instrument Of Oppression Or Needless Harassment: Allahabad High Court

 

While striking the right chord, the Allahabad High Court in a significant development has very rightly in Ranvijay Singh & Ors v State of UP & Anr in Case No. 284/2013 and Application u/s 482 cautioned the courts to be circumspect and judicious in exercising the discretion and issuing process. While cautioning so the Allahabad High Court has quashed the summoning order passed against the editorial staff of a newspaper in connection with a defamation case. Very rightly so!

To start with, this noteworthy and commendable order which was reserved on November 13, 2019 and delivered on December 20, 2019 by Justice Dinesh Kumar Singh of Allahabad High Court sets the ball rolling in para 1 wherein it is observed that, “This petition under Section 482 CrPC has been filed by the petitioners, who were working as Group Editor, Local Editor and Press Reporter, Sahara India Mass Communication, Lucknow, impugning the order of summoning dated 23rd February, 2010, under Sections 499, 500, 501 and 502 IPC passed by the Additional Chief Judicial Magistrate, Court No. 32, Lucknow in Criminal Complaint Case No. 2211 of 2010 ‘Ramveer Upadhaiya Vs. Jaibrat Roy and others’ instituted by the respondent no. 2. Further prayer has been made to quash the complaint itself.”

To be sure, para 2 then points out that, “The respondent no. 2, at the relevant point of time, was the Minister in the State Cabinet, Department of Energy. A news item was published on page 11 of the Rashtrya Sahara, Daily Hindi Newspaper on 11th September, 2009.” In this same para the offending news item is then described in detail.

Needless to say, para 3 then states the background of the case by stating that, “The basis of the aforesaid news item was a letter  dated 12th September, 2008 written by Mr. Krishna Gopal, Special Secretary, Confidential Department. This letter was sent on behalf of the Chief Minister to Mr. J.N. Chamber, Principal Secretary, Energy (Electricity Department), and subsequent reminder letter dated 22nd July, 2009 sent by Mr. Krishna Gopal, Special Secretary to Mr. Navneet Sehgal, Secretary, Department of Energy, Government of Uttar Pradesh, asking for inquiry report on the charge of demanding Rupees Ten Lakhs from the Chief Engineer, on refusal transferring him, and putting him under suspension. Copies of the letters dated 12th September, 2008 and 22nd July, 2009 as well as the alleged complaint made by Mr. R.K. Kashyap on 3rd August, 2008 to the Chief Minister, Government of U.P. having been placed on record as Annexure-5 to the petition.”

To put things in perspective, para 4 then illustrates explaining that, “Mr. R.K. Kashyap was working as Chief Engineer, Western Electricity Disturbing Corporation, Meerut. In the aforesaid complaint, it was alleged that the respondent no. 2, the Minister, Energy Department, had demanded Rupees Ten Lakhs as bribe from him to remain on the post. It was also alleged that the respondent no. 2 had told him that substantial part of the said amount would go to the Chief Minister. It was further alleged that similar amount of Rupees Ten Lakhs, as a bribe, was demanded from Mr. K.N. Upadhyay, Superintending Engineer – M.M., working under his subordination, and this amount was paid by Mr. K.N. Upadhyay to the Minister. It was further alleged that similar amount of Rupees Ten Lakhs, as a bribe, was demanded from Mr. K.N. Upadhyay, Superintending Engineer – M.M., working under his subordination, and this amount was paid by Mr. K.N. Upadhyay to the Minister. It was further alleged that since the complainant was an honest officer, he could not give the bribe amount as demanded by the Minister and, therefore, firstly he was transferred to Lucknow, and thereafter, he was placed under suspension on false charges. Copies of the aforesaid letter were sent to the President and Prime Minister besides news channels and newspapers.”

As it turned out, para 5 then discloses that, “A news item with photograph of the Minister, relating to charge of demanding bribe money of Rupees Ten Lakhs from the Chief Engineer, was published on 10th September, 2009 in Daily Hindi Newspaper ‘Deshbandhu’ had already been published before the offending news item was published in ‘Rashtriya Sahara’ on 11.09.2009. In the aforesaid news item published in ‘Deshbandhu’, it was also stated that one M.L.A. Mr. Anil Kumar Singh Yadav, belonging to Samajwadi Party, had also sent letters to the Prime Minister and Chief Minister, and demanded action against the Minister. He also demanded C.B.I. inquiry into the matter of corruption by the respondent no. 2. The said news item also contained statement of Congress Spokesperson, Mr. Akhilesh Pratap Singh and Chief Spokesperson of B.J.P., Mr. Hridaya Narain Dixit.”

What’s more, para 6 then reveals that, “Mr. O.P. Rai, Information Officer, sent letter dated 15th October, 2009 to the News Editor, Rashtriya Sahara, Lucknow, requesting on behalf of the complainant to publish contradiction of the news published on 11th September, 2009 in Rashtriya Sahara, stating therein that the Chief Engineer, Mr. R.K. Kashyap had written letter dated 16th March, 2009 to Chairman and Managing Director of Power Corporation, Shakti Bhawan, Lucknow, mentioning therein that he had not given any complaint against the Minister to the Chief Minister. The rebuttal/contradiction to the news item, as requested by Mr. O.P. Rai on behalf of the respondent no. 2, was published in the Daily Hindi Rashtriya Sahara on 22nd October, 2009 on the same page.”

While continuing in the same vein, it is then pointed out in para 7 that, “Despite the aforesaid publication of the rebuttal/contradiction, as desired on behalf of the complainant, the complaint in question was filed on 2nd February, 2010. After the statements under Sections 200 and 202 CrPC were recorded, the learned Magistrate, after taking cognizance on the complaint, had summoned the petitioners vide order of summoning dated 23rd February, 2010.”

Going forward, it is then envisaged in the next para 8 that, “The allegations in the complaint, in short, are that the accused, including the petitioners, had colluded with each other, and published the aforesaid news item, with an intention to malign and denigrate the image and reputation of the complainant-respondent no. 2 as well as the State of Government in the eyes of public in general. The alleged complaint by Mr. R.K. Kashyap, Chief Engineer was false, which would be evident from the letter dated 4th February, 2009 written by Mr. R.K. Kashyap, addressed to the Chairman and Managing Director of the U.P, Power Corporation, Lucknow, stating therein that he had not made any complaint of corruption against the respondent no. 2, and he had also given his specimen signatures in Hindi and English both. It was also stated in the complaint that Mr. R.K. Kashyap sent a letter dated 16th March, 2009 stating therein that the respondent no. 2 was not responsible in any manner in his suspension etc; and specifically denied that he had made any complaint against him. It was further stated that the allegation of bribery against the respondent no. 2 was totally false, baseless, and he never tried to harass anyone, including Mr. R.K. Kashyap. Mr. R.K. Kashyap was placed under suspension by the competent Authority for valid reasons. It was also alleged that the complainant had good reputation in the Government as well as public at large, and news item was published to defame him, Power Corporation, and the State Government.”

After hearing both sides and going through the petition, the Bench then observes in para 9 that, “Heard Mr. Janardhan Singh, learned counsel representing the petitioners, Mr. Manoj Kumar Dwivedi, learned counsel representing respondent no. 2 as well as learned Additional Government Advocate representing respondent no. 1-State, and perused the petitions, including the Annexures attached therewith.”

Briefly stated, it is then enunciated in para 13 that, “Freedom of speech and expression in a country governed by rule of law and written Constitution is paramount importance to give vibrancy to the democracy. The Supreme Court in Subramanian Swamy Vs. Union of India (supra) in paragraphs 98 to 120 has dealt with the significance of freedom of speech and expression in a constitutional democracy and also taken note of the judgments of the Supreme Court and the foreign judgments on this point. The freedom of speech and expression has been elevated by the Supreme Court, regard being made to the democratic and constitutional goals as enshrined in the Constitution. It is prime duty of the press to expose the Government and its functionaries, if they indulge in mis-governance or acts against the law and constitutional principles. If the press finds itself being cycled by the threat of prosecution, it cannot perform its duty, and it will have a chilling effect on the very right of free speech and freedom as guaranteed under Article 19(1)(a) of the Constitution.”

To put it succinctly, it is then stated in para 14 that, “It has to be seen, whether the petitioners would be said to have requisite mens rea in defaming the complainant while publishing the offending news item in Rashtriya Sahara Newspaper on 11th September, 2009, and whether they have taken due care and caution in publishing news item, and thereafter the rebuttal on 22nd October, 2009 on the same page, on behalf of the respondent no. 2. For the offence of criminal defamation, the burden is on the Magistrate to scrutinize the complaint on all aspects, and he is required to satisfy himself that the ingredients of Section 499 IPC are satisfied. The Magistrate must apply his judicial mind on the complaint, and facts of the case, before taking cognizance and issuing process, summoning the accused.”

Be it noted, para 16 stipulates that, “The second aspect in the present case, which is required to be considered, is whether the complaint, on behalf of the respondent no. 2, who was the Minister in the State Cabinet of Uttar Pradesh, was maintainable in view of provisions of the Section 199(2) CrPC.”

It would be imperative to now mention that para 17 then observes that, “To decide the first issue, it would be required to take note of the facts that before the offending news item was published on 11th September, 2009 in ‘Rashtriya Sahara’ Hindi Daily, ‘Deshbandhu’ Hindi Daily had already carried out the story along with photograph of the complainant/Minister. The news item published in ‘Rashtriya Sahara’ was based on two letters. The first letter dated 12th September, 2008 written by Mr. Krishna Gopal, Special Secretary, Confidential Department sent on behalf of Chief Minister to the Principal Secretary, Department of Energy and, subsequent reminder dated 22nd July, 2009 sent to the Secretary, Department of Energy, demanding inquiry report in respect of demand of bribe of Rupees Ten Lakhs from the Chief Engineer, and on his refusal to pay, transferring him and putting him under suspension. If the news item is closely scrutinized, there is no imputation, which has been made by the petitioners against the respondent no. 2. The news item was factually based on the two letters. If there is no imputation, it cannot be said that the offence of defamation has been committed by the accused. In the complaint it has not been alleged that these two letters are forged. If these two letters are not denied, the news item cannot, in any manner, be said to be defamatory. Further, on behalf of respondent no. 2, the rebuttal was published in the newspaper on the same page in equal prominence.”

More importantly, para 18 then envisages that, “It is also important to note that it was not for the first time that the respondent no. 2 was in news, earlier a three page report regarding corruption by him was published in the news magazine ‘Akhir Kab Tak’ which showed the misconduct of the Minister. If having come to know the two letters written from the office of the Chief Minister regarding the inquiry on allegation of demand of bribe of Rupees Ten Lakhs and for non-payment, harassment of the Chief Engineer, had the news item not been published, the newspaper would have failed in its duty. I, therefore, find that the news item was not offending at all and, therefore, the Magistrate ought not to have taken the cognizance and summon the petitioners as accused.”

Moving on, it is then elaborated upon in para 19 stating that, “Regarding second aspect, it is specifically provided under Section 199(2) CrPC that in respect of the Minister etc. the complaint can be filed through a Public Prosecutor in the Court of Session. Here, the respondent no. 2 was a Minister in the State Cabinet of Uttar Pradesh, and since, the complaint was filed by him in the Court of learned Magistrate, the Magistrate ought to have considered whether the complaint was maintainable before him or not. In my view the complaint was not maintainable before the Magistrate as there is specific provision that the complaint should be filed through a Public Prosecutor in the Court of Session, if defamation is alleged in respect of performance of the public duty by the person mentioned in Section 199(2) CrPC. In the present case, the news item was published with respect to his functioning as the Minister of Energy in State Government, the complaint could have been filed only through a Public Prosecutor, after taking sanction as prescribed.”

  Most importantly, para 20 then minces no words in holding that, “It is well settled that the judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising the discretion and only after taking all the relevant facts and circumstances into consideration should issue the process. The judicial process should not be an instrument in hands of the private complainant as vendetta to harass the person. The criminal law should not be set into motion as a matter of course as held in the case of Pepsi Foods Ltd. And another Vs. Special Judicial Magistrate & others, (1998) 5 SCC 749.”

Finally, it is then held in the last concluding para 21 that, “Considering all aspects, and the facts and circumstances of the case, the present petition is allowed. Consequently Case No. 2211 of 2010 ‘Ramveer Upadhaiya Vs. Jaibrat Roy and others’ instituted by the respondent no. 2, including the order of summoning dated 23rd February, 2010, under Sections 499, 500, 501 and 503 IPC passed by the Additional Chief Judicial Magistrate, Court No. 32, Lucknow are quashed.”

To conclude, Justice Dinesh Kumar Singh of Allahabad High Court in this latest, landmark and laudable judgment very rightly sends out a loud and clear message that judicial process should not be an instrument of oppression or needless harassment. It also makes it clear that no private person should be allowed to use judicial process as an instrument of vendetta in their hand to harass any other person! Very rightly so!

Sanjeev Sirohi

 

 

 

Wife Not Entitled To Maintenance If Allegation Of Adultery Is Proved Against Her: Bombay HC

As anticipated, in yet another major ruling titled Sanjivani Ramchandra Kondalkar vs 1. Ramchandra Bhimrao Kondalkar 2. State of Maharashtra in Criminal Writ Petition No. 2547 of 2016 with Criminal Writ Petition No. 2546 of 2016, the Bombay High Court just recently on December 18, 2019 has once again reiterated what even the Supreme Court has time and again reiterated that if allegations of adultery are proved against the wife in a marriage, she is not entitled to maintenance. A wife is entitled to claim maintenance only if she is able to prove that all the allegations of adultery are wrong. A wife cannot maintain relation with some other man and yet claim maintenance from her husband! Very rightly so!

To start with, the ball is set rolling in para 1 of this commendable judgment authored by Justice Nitin W Sambre wherein it is observed that, “Both these Petitions are filed by the wife, questioning the order of denial of maintenance.” We thus see that it is the wife who is the aggrieved party. It is the wife who has called into question the order of denial of maintenance to her and challenged it.

To recapitulate, before moving to para 2, we need to further state that para 1 further observes that, “The un-disputed facts would be noted as under”. Now coming to para 2, it lays bare the basic facts stating that, “The parties to the Petition married on 6.5.1980 whereas the Petitioner was divorced by the Respondent in a Hindu Marriage Petition No. 252 of 1996 preferred under Section 13 of the Hindu Marriage Act, 1956 on 27.4.2000 on the ground of adultery. I am informed that the aforesaid Judgment was subjected to challenge in an Appeal however, the Appeal failed as the delay was not condoned.”

While delving deeper after stating the basic facts, it is then envisaged in para 3 that, “In the aforesaid background, the Petitioner-wife moved an application for enhancement of maintenance from Rs. 150/- and Rs. 25/- to the son which was allowed by the impugned order dated 12.8.2010. The learned Magistrate enhanced the maintenance amount to Rs. 500/- and Rs. 400/- to the wife and son respectively, whereas, the Application for cancellation of the maintenance moved by the husband, pursuant to the provisions of Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 came to be rejected. As such, the husband preferred a Criminal Revision Application No. 204 of 2010. The aforesaid Revision came to be allowed vide the impugned judgment dated 13.7.2015 by the learned Additional Sessions Judge, Sangli. As such these Petitions.”

To put things in perspective, it is then pointed out in para 4 that, “As far as Writ Petition No. 2547 of 2016 is concerned, the same is preferred by the Petitioner-wife questioning the Judgment dated 13.7.2015 wherein the Judgment dated 12.8.2010 passed by the learned Magistrate, rejecting the application for cancellation of maintenance amount, came to be allowed.”

While continuing in the same vein, the Bench then puts forth the contention raised by the Petitioner-wife in para 5 that, “Learned counsel for the Petitioner-wife would urge that, even if the Petitioner is a divorcee, having regard to the provisions of Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 she is entitled for maintenance as she continues, to be a woman, within the meaning of Sub-section (4) of Section 125 of the Act.”

Going forward, para 6 then further goes on to illustrate that, “He would draw support from the Judgments of the Apex Court in VANAMALA VS H.M. RANGANATHA BHATTA reported in 1995 DGLS (SC) 722 and ROHTAS SINGH VS RAMENDRI reported in 2000 DGLS (SC) 450 so as to support his aforesaid contentions. The sum and substance of the submission is even if there is a decree of divorce passed on the allegation of adultery, still bar under Sub-section (4) of Section 125 of the Act, will not be attracted, as even after divorce, she ceases to have the status of a wife but, she continues to be a woman.”

On the contrary, what is then pointed out by the Bench in para 7 is this: “Per contra the aforesaid submissions, learned counsel for the Respondent submits that the divorce proceedings initiated by the Respondent-husband came to be allowed, as the allegation of adultery was proved against the Petitioner-wife. According to him, in view of the statutory embargo under Sub-section (4) of Section 125 of the Act, the Court below has rightly held that the Petitioner is not entitled for maintenance.” Adultery is a very serious charge and has to be taken most seriously! This is what we see that the Court has done here also!

After noting in para 8 that, “Considered rival submissions”, it is then enunciated by the Bombay High Court in para 9 that, “Learned counsel for the Petitioner has tried to rely on the judgments of the Apex Court in VANAMALA and ROHTAS SINGH supra so as to claim the status of the Petitioner-wife as that of a woman continues, inspite of the divorce ordered on 27.4.2000. The fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under Sub-section (4) of section 125 of the Act. If the allegation of adultery are proved against such a women or inspite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance.”

To be sure, it is then pointed out in para 10 that, “As far as factual matrix of the aforesaid case, namely VANAMALA and ROHTASH SINGH is concerned, both these cases are based on identifying and recognizing the right of a woman who was divorced not on the ground of proved adultery.”

Most importantly, it is then very rightly concluded by the Bombay High Court in para 11 after considering all the crucial facts of the case that, “In the aforesaid background, both these Judgments will be hardly of any assistance to the Petitioner. Considering the expressed embargo on the right of the Petitioner, to claim maintenance particularly, divorce was ordered on 27.4.2000 based on the allegation of adultery, the Court below has rightly held that the Petitioner-wife is not entitled for maintenance.” Very rightly so! There can be no denying or disputing it!

Moving on, it is then held by the Bombay High Court in para 12 that, “In the aforesaid background, no case for interference is made out. Both these Petitions lack merit.” Finally, it is then held in the last para 13 that, “Dismissed.” In other words, the Bombay High Court was not convinced of the contentions raised by the Petitioner-wife. Earlier also in the lower courts her claim was rejected as has already been pointed out in detail above.

In sum, the Bombay High Court has very rightly concluded in this latest, landmark and extremely laudable judgment that wife is not entitled to maintenance if allegations of adultery is proved against her. What is important to note here is that the Bombay High Court has also made it clear that just allegations of adultery by the husband are not enough. Those allegations must certainly be proved against her. If they are proved as have been proved in this noteworthy case only then the women will be denied maintenance as she will be held not entitled to do so as we have seen in this latest case also! Very rightly so!

Sanjeev Sirohi

Judicial Officers Being Made Scapegoats And Penalized By Inconvenient Transfers And Otherwise: Supreme Court

 

It is a matter of grave concern that none other than the Supreme Court of India has just recently on November 15, 2019 in ‘The Hon’ble High Court At Calcutta vs Mintu Mallick & Anr’ in Special Leave Petition (Civil) No. 24840/2019 while exercising its civil appellate jurisdiction has expressed its grave concern about disturbing trend of making judicial officers scapegoats. This was held by a Bench of Justice Indira Banerjee and Justice BR Gavai while upholding the Calcutta High Court judgment reinstating a judicial officer who was compulsorily retired from service. Very rightly so!

To start with, the ball is set rolling in this notable judgment by first and foremost pointing out that, “We find no grounds to interfere with the impugned judgment and order passed by the High Court except to the extent that costs of Rs 1,00,000/- (Rupees one lakh only) has been awarded to the respondent officer. The said costs are set aside.”

To recapitulate, it is then disclosed that, “The Respondent No.1, a Railway Magistrate, entitled to the use of an official car, was constrained to avail suburban local train services operated by the Eastern Railways on 5th May, 2007 so that he was not late for Court, as his official car had not reported for duty within time. To his chagrin, the local train was 15 to 20 minutes late. Waiting at the station for a train can be both tedious and boring.”

To put things in perspective, it is then pointed out that, “The Magistrate got drawn into a conversation with commuters waiting at the station. He heard that the train was always late on account of unscheduled halts after departure from the previous station, somewhere midway, to offload goods carried in the train illegally.”

As it turned out, the Bench then points out that, “In his idealistic exuberance as Railway Magistrate he felt he could not shut his eyes to unlawful activities within his jurisdiction, by a group of Railway employees, in connivance with each other, and thus sprang into action. He assumed the role of a righteous ‘Don Quixote’ zealously fighting perceived wrong, and in the process he stirred up a hornets’ nest, which led to his suspension, disciplinary proceedings and an order of compulsory retirement, which has, in our considered opinion, very rightly been set aside by the Division Bench of the Calcutta High Court.”

Going forward, it is then stated that, “The Railway Magistrate was accused of travelling in the Motorman’s cabin on more occasions than one, though it seems incredible that an officer entitled to an official car should opt to habitually travel by local train. In any case, there is no evidence of his travel in a Motorman’s cabin except on the solitary occasion on 5th May, 2007.”

To be sure, the Bench then holds that, “The Magistrate’s explanation for boarding the Motorman’s cabin was that, he did so to make enquiries into the alleged illegal carriage of goods in the local suburban train and consequential delay in running of the train, due to unscheduled halts on the route, to offload those goods. The Magistrate apparently perceived his action to be within the legitimate scope and ambit of the powers of a Railway Magistrate, inter alia, under Section 190 (1)(c) of the Criminal Procedure Code, to take cognizance of any offence, upon information received from any persons other than a Police Officer, or upon his own knowledge of commission of such offence.”

Needless to say, the Bench then clarified that, “It is not necessary for us to examine the scope of the powers of a Magistrate under Section 190(1) of the Code of Criminal Procedure. The question is whether the Magistrate’s understanding of his powers as Railway Magistrate under Section 190(1)(c) read with the relevant provisions of the Indian Railways Act was so absurd as to warrant his removal from service.”

What’s more, the Bench then notes that, “The report of the preliminary enquiry makes it apparent that what triggered off the woes of this Magistrate was, agitation by a section of Railway employees, irked by the detention of one of their peers, resulting in disruption of train services for a few hours.”

Moving on, it is then observed by the Bench that, “The Magistrate had requested the police to secure the presence of the Motorman and the Guard in Court for questioning. Neither the Motorman nor the Guard, nor any other person on the train in question was arrested. Nor is there any evidence of the Magistrate ordering the arrest of any of them. However, some railway employees started agitating, and one of the railway employees was later detained for his misbehaviour in court. The filthy abusive language that this railway employee allegedly used in Open Court against the Magistrate is not repeated.”

As a follow up, we then see that the Bench states what is quite ostensible that, “The High Court sprung into action against the Judicial Officer and suspended him immediately, within a day or two. The Respondent was suspended on the following grounds:-

(i)                         Travelling in the Motorman’s cabin from Lake Gardens too Sealdah Railway Station on 5th May 2007 and travelling in similar fashion in the past without having valid pass to enter the Motorman’s cabin.

(ii)                      Requiring reasons for the late running of trains and obtaining a report on late running of the trains from the Motorman and the Guard of the local train concerned.

(iii)                   Demonstration of the railway employees after the Driver and the Guard were taken first to Thana and thereafter to the Court pursuant to verbal order of the Magistrate.

(iv)                   Enquiry by the Registrar (Vigilance & Protocol) which prima facie established that there had been violent demonstration by the Railway employees resulting in total disruption of train services because of the unauthorized activities on the part of the Magistrate.

(v)                      The manner in which the Magistrate had travelled in the Motorman’s cabin without valid authority and pass and the way he had called for a report about the late running of the trains despite having no such authority, resulting in demonstration by the railway employees and disruption of train services in the Sealdah Division till 3.45 p.m. on 5th May, 2007 seemingly amounted to gross mis-conduct and misbehaviour unbecoming of a Judicial Officer.

(vi)                   The High Court was prima facie satisfied that a Disciplinary Proceeding be initiated against the Magistrate for such misconduct, and that the Magistrate be placed under suspension with immediate effect.”

Truth be told, it is then disclosed that, “A Memorandum of Charges was duly issued to the Magistrate, by the Registrar General of the High Court, to which he submitted a reply. The crux of his defence was that he had entered the Motorman’s cabin to make investigation in exercise of his statutory powers as Magistrate. He denied having entered the Motorman’s cabin forcibly. On the other hand it was his case that the Motorman courteously allowed him into the cabin, when he disclosed his identity, and cooperated with him, but made a volte-face when the questions put to the Motorman became uncomfortable.”

To say the least, the Bench then notes that, “In his reply the Magistrate also categorically denied having committed any misconduct. He denied having given any verbal instructions to the Police for detention of the Motorman, Guard or any other person of the train, verbally or otherwise. The Magistrate in his reply vividly narrated the humiliation which he had to go through in open Court when a railway employee who was not even on the train hurled abuses at him in the filthiest language which this Court refrains from repeating for the sake of decorum.”

No wonder, what followed next is then narrated by the Bench as: “The order of suspension was revoked on 16th December, 2009, that is after about 2½ years, since the enquiry could not be completed. Almost a year after the revocation of suspension, an Inquiring Authority was appointed on 14th September 2010. Various witnesses were examined and a report was ultimately submitted as late as on 7th January, 2013.”

While continuing in the same vein, it is then observed that, “On 7th March, 2013, a copy of the Inquiry Report was furnished to the Magistrate who duly submitted his comments thereto. On 23rd July 2013, the Administrative Committee of the High Court decided to impose punishment of compulsory retirement upon the Magistrate and on 30th July, 2013 the decision of the Administrative Committee was ratified by the Full Court by circulation. The decision of the Full Court was communicated to the Principal Secretary, Judicial Department on 8th August, 2013 for issuance of necessary orders and on 29th August, 2013 the order of punishment was passed.”

As a corollary, we then see that the Bench notes that, “On 4th September 2013, the Respondent No. 1 preferred an appeal under Rule 16 of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007. On receipt of the appeal, the Hon’ble Governor of West Bengal forwarded the Memorandum of Appeal filed by the Respondent No. 1 to the same High Court for its opinion. On 15th January 2014, the opinion of the High Court was forwarded to the Hon’ble Governor, who on 22nd January 2014 rejected the appeal, after which the Magistrate approached the High Court on its judicial side under Article 226 of the Constitution of India.”

To put it succinctly, the Bench goes on to add that, “The Registrar (Vigilance and Protocol) who conducted the preliminary inquiry, on the basis of which action was initiated against the Magistrate as also the Inquiring Authority embarked upon detailed examination of the scope and ambit of the powers of a Railway Magistrate and/or the legality of his action of making an enquiry himself by entering the Motorman’s cabin and requisitioning the presence of the Motorman and the Guard in his Court. The Inquiring Authority as also the Registrar (Vigilance and Protocol) misdirected themselves by exceeding the scope of their task of making a factual inquiry, oblivious of the established principle that an error of judgment in itself does not constitute misconduct.”

In a serious observation, the Bench then observes that, “The learned Single Bench appears to have been swayed by the allegations against the Magistrate which were not even substantial in the inquiry. There is no evidence that the Magistrate  forcibly boarded the Motorman’s cabin. There is also no evidence of the Magistrate having given any instructions to the Police to arrest the Motorman or the Guard of the train in question. The demonstration may have been violent or spontaneous as observed by the Single Judge, but was it justified, having regard to the facts proved? The Single Judge missed the real issue which was whether there was any deliberate culpability on the part of the Magistrate.”

What appears quite ostensible is then pointed out by observing that, “It appears from the judgment of the Single Judge that the Single Judge was swayed by the fact that the appeal of the petitioner had been rejected. The Single Judge completely overlooked the fact that there was, in effect and substance, no appeal, for an appeal from the decision of the High Court was rejected on the basis of the opinion of the same High Court.”

While elaborating further, the Bench then enunciates that, “The learned Single Judge dismissed the writ petition and upheld the order of punishment imposed on the Magistrate observing that his act of unauthorized entry into the Motorman’s cabin especially in the background of the fact that he had done the same on previous occasions, his interrogation of the Motorman in the name of the judicial inquiry and subsequent ordering of his detention/arrest (which is incorrect factually), independently and collectively amounted to offences which were patently illegal in nature.”

Not stopping here, the Bench further minces no words to hold that, “The Learned Single Judge completely overlooked the fact that there was no evidence of any unauthorized entry into the Motorman’s cabin on any previous occasion. There was also no evidence that the Magistrate had ordered the detention or arrest of the Motorman. The inquiry reveals that the Motorman and the Guard were never in fact detained or arrested. The detention was of a railway employee who had disrupted court proceedings and abused the Magistrate in open Court using the filthiest language.”

However, the Bench then also goes on to add in the same vein that, “The learned Single Judge rightly observed that a Court can interfere with an order of compulsory retirement when it fails the test of reasonableness. The question is, whether an order of compulsory retirement can be held to clear the test of reasonableness, when all that is established in the inquiry is that the Magistrate had boarded the Motorman’s cabin on one solitary occasion to make an inquiry, may be in excess of the powers conferred upon him. The illegality of the action was discussed at length, but whether there was any dishonest or wrongful intent, culpability or malafide on the part of the Magistrate was totally overlooked. There is no finding against the Magistrate of mala fides, any motive or ill intent.”

Most importantly, the Bench then very rightly maintains that, “It is a disturbing trend nowadays that Judicial Officers are made scapegoats and penalized whether by inconvenient transfers or otherwise, whenever there are agitations/demonstrations against the Judicial Officers whether by Advocates or others, irrespective of the extent of the fault or responsibility of the Judicial Officers concerned. In this case, it is patently clear that action against the Judicial Magistrate had been prompted by the agitation of Railway employees and disruption of services. No one examined whether there was any justification for the disruption of services by the Railway employees for requiring information from two of them or for the detention of a third employee, a rank outsider to the investigation by the Railway Magistrate, for hurling abuses at the Magistrate in open Court and threatening him.”

Making no mistake, the Bench then rightly holds that, “It is well settled that an error of judgment does not per se constitute misconduct. If the Railway Magistrate had acted bona fide but exercised his powers erroneously based on his perception of the powers of a Judicial Railway Magistrate, he could not have been held to have committed mis-conduct.”

In a right move, the Bench further also rightly noted that West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007 are completely silent as to which is the authority competent under the rules to impose penalty on a Judicial Officer. While underscoring the need for the amendment of the 2007 Rules the Bench then also holds that  it is doubtful whether the Registrar General was at all the Competent Authority to draw up the charges.

Furthermore, the Bench also rightly held that, “It is also not clear if the High Court had examined and approved Memorandum of Charges independently applying its mind. Be that as it may, Rule 16 and particularly 16(3) is patently invalid, for reasons  discussed in the judgment of the Division Bench under appeal.”

Finally, this notable judgment is then concluded by holding that, “The High Court is requested to consider recommending amendment of the 2007 Rules, particularly Rule 16 which is ex facie invalid, in that, an appeal made to the Governor has to be referred to the High Court for opinion. In other words, the High Court takes a decision and an appeal therefrom must be decided on the basis of the opinion of the same High Court, which is absurd. With the aforesaid directions, the instants special leave petition is disposed of.”

All said and done, this latest, landmark and laudable judgment serves to send the right message to all the High Courts that judicial officers should not be made scapegoats and compulsorily retired from service at the drop of a hat. The Supreme Court set aside the One Lakh cost that was imposed by the Division Bench of the High Court on appeal being filed by the High Court but upheld the judgment reinstating Mintu Mallick who was a judicial officer and who was compulsorily retired from service! Very rightly so! The serious concern expressed by the Apex Court about the disturbing trend of making judicial officers scapegoats must be checked now by the High Courts so that the reputation of judicial officers remain intact which is the bedrock for the smooth functioning of the lower judiciary! There can be no denying it!

Sanjeev Sirohi

Seeking Financial Assistance Can Also Constitute Demand For Dowry: Supreme Court

                                          It must be stated forthright that the demand of money for any purpose from the wife can be termed as demand for dowry. The husband would be liable in such cases for demanding dowry even though it may not seem like dowry! This is what the Supreme Court has yet once again reiterated in its latest judgment delivered on December 17, 2019. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment titled Jatinder Kumar vs State of Haryana in Criminal Appeal No. 1850 of 2010 authored by Justice Aniruddha Bose for himself and Justice Deepak Gupta wherein it is observed in para 1  that, “The appellant has been found to be guilty by the High Court of Punjab & Haryana at Chandigarh, which finding affirms the judgment of the Trial Court convicting him for commission of offences under the provisions of Sections 304-B and 498-A of the Indian Penal Code 1860. The offences were related to suicidal death of his wife, Meenakshi. The High Court, however, set aside his conviction under Section 306 of the Code by the Trial Court. The appellant was charged for subjecting his deceased wife Meenakshi to cruelty or harassment in connection with demand for dowry coupled with cruelty during the subsistence of her marriage during her stay in her matrimonial home at Mullana in the Ambala district, Haryana. Charge was also framed against him for abetting Meenakshi’s suicide. She had committed suicide in the night of 20th September 1991. Her marriage with the appellant was solemnised on 7th March 1991. On 20th September 1991, the deceased victim had come to her parental home to attend “pagree ceremony” of a relative and ultimately returned to her matrimonial home along with the appellant on that very evening. The mother and two brothers of the appellant were also implicated with the same charges and convicted by the Trial Court. The High Court, however, acquitted them.”

To put things in perspective, it is then pointed out in para 2 that, “The father of the deceased, Som Prakash (PW-1) received a message on that very night from another relative of his, Parveen Kumar (PW-4) that his daughter, Meenakshi had been taken to the Civil Hospital, Ambala. She was found dead in the said hospital. The cause of death was consumption of aluminium phosphide. In early morning of 21st September 1991 (2.30 A.M.), father of the deceased (PW-1) lodged the First Information Report. On the basis of statement of P.W.1 recorded  by the SHO/SI of Police Station Mullana, Kewal Krishan (P.W.7), said First Information Report was registered. The P.W.1 implicated, along with the appellant, his mother, two brothers Atul Mittal and Anil Kumar of subjecting the victim to various types of torture for not bringing sufficient dowry. In his statement, as recorded, he said that before marriage, Anil Kumar, along with the appellant, made the demand of Rs.1,00,000/- for purchasing a Maruti vehicle. He has also stated in his deposition that he spent a sum of Rs.2,50,000/- in marriage ceremony of his daughter. He also stated in his deposition that taunting of her daughter continued for bringing insufficient dowry. Moreover, on certain occasions of bereavement in the family, PW-1 stated in his examination-in-chief, that Meenakshi was not allowed to visit her parental home and on other occasions, his relations were not allowed to meet her in the matrimonial home either. Further demand of dowry was made, according to him, to help the appellant in respect of his clinic, in response to which PW-1 gave Rs.20,000/- to his daughter for her well-being. The statement forming the basis of F.I.R. broadly corresponds to the deposition of PW-1 and there has been no major contradiction or discrepancy between the version of the P.W.1 concerning the antecedents and circumstances of Meenakshi’s death in the F.I.R. statement and P.W.1’s witness statement.”

As it turned out, para 3 then observes that, “Charges were framed under Sections 306, 406, 304-B and 498-A of the Code before the Trial Court against all the persons arraigned as accused in the F.I.R., following charge-sheet submitted by the police on completion of investigation. Altogether seven witnesses were examined by the prosecution, of which four were witnesses of fact. All of these four, however, were near or distant relatives of the deceased. The father of the deceased deposed as PW-1 whereas her paternal uncle, Bharat Bhushan was examined and he deposed as PW-2. We have already referred to Parveen Kumar, who appears to be a relative of the deceased and also the mediator in the marriage. He was examined as PW-4 and one Rajat Kumar, maternal cousin of the deceased, deposed as PW-5. There were two police witnesses, Jeet Ram (PW-3) and Kewal Krishan, the Investigating Officer who deposed as PW-7. PW-6 was Dr. Tarsem Kumar Monga, the Medical Officer of Civil Hospital, Ambala Cantonment who had conducted post mortem of the deceased along with two other doctors, P.S. Ahuja and Mrs Rozy Aneja. The PW-6 confirmed death of Meenakshi on account of aluminium phosphide poisoning.”

Truth be told, it is then observed in para 4 that, “So far as the judgment of conviction of the Trial Court is concerned, not much came out from the depositions of the two police witnesses, except that PW-7 stated that dowry articles were produced before him by Bimla Wanti, mother of the appellant. The Trial Court, primarily relying on the depositions of PW-1, PW-2 and PW-4 convicted all the four persons finding them guilty of offences under Sections 304-B, 306 and 498A of the 1860 Code and awarded sentence of rigorous imprisonment for a period of 10 years to each one of them under Section 304-B and four years rigorous imprisonment under Section 306 of the Code. No separate sentence was awarded under Section 498-A because of sentence having been passed against the accused for major offence under Section 304-B of the Code. Fine of Rs.1,000/- was imposed on each one of them on both counts with direction of six months additional rigorous imprisonment in the event of failure to pay the fine. As we have already narrated, the High Court however acquitted the mother and two brothers of the appellant and set aside the judgment of their conviction and order of sentence. Conviction of the appellant under Section 306 of the 1860 Code was set aside but conviction and sentence on other counts were sustained. This is the judgment which is under appeal before us, instituted by the appellant-convict.”

Needless to say, the Apex Court Bench conceded in para 7 that the view of the Apex Court reflected in Appasaheb & Anr. Vs. State of Maharashtra (2007) 9 SCC 721 that seeking financial assistance would not per se constitute demand for dowry has been rejected by a later judgment of a three-Judge Bench of this Court in the case of Rajinder Singh vs. State of Punjab (2015) 6 SCC 477. Upon considering the case of Appasaheb (supra) and certain other authorities, it was held in the case of Rajinder Singh (supra):-

“20. Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case followed by the judgment of Vipin Jaiswal do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.””

Going forward, the Bench then observes in para 8 that, “It was also held in the Rajinder Singh (supra) that the Rajinder Singh (supra) that the expression “soon” is not to be construed as synonymous with “immediate”. The observation of the three-Judge Bench on this point is:-

“23. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word “soon” does not mean “immediate”. A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under section 304B.””

Most importantly, it is then held in para 9 that, “So far as present appeal is concerned, the depositions of the prosecution witnesses about torture and demand for dowry made by the appellant have been believed by the Trial Court as also the High Court. Barring the stray remark by P.W.2, both P.W.1 and P.W.2 have narrated facts which would constitute demand for dowry as also inflicting cruelty and torture upon the deceased victim. Such consistent stand of these two witnesses cannot be said to have been overshadowed by the above-referred stray statement of P.W.2 which is not in tune with rest of his deposition. As regards the appellant, it is a finding on fact upon proper appreciation of evidence. We do not find any major contradiction in the statements made by P.W.1 and P.W.2 on demand for dowry and subjecting the deceased victim to cruelty. They stuck by their statements in cross-examination. From their depositions, a link can be established between such acts of the appellant and death of the deceased victim. Once these factors are proved, presumption rests on the accused under Section 113-B of the Indian Evidence Act, 1872. The appellant in his statement made in response to his examination under Section 313 of the Code of Criminal Procedure, 1973 attributed suicide of the victim to depression on account of several of her relatives deaths within a short spell of time. Though the factum of several deaths in her family has been established, there is no corroboration of such a depressive state of mind of the deceased. The other defence of the appellant is that she was a modern urban lady and could not adjust to the life style of Mullana, a small town where her matrimonial home was situated. But both the Trial Court and the High Court rejected this defence. We find no reason to reappreciate evidence on this aspect. Father of the deceased, as also P.W.2 have proved the demand for dowry. This version has run consistently from the statement forming the basis of F.I.R. to deposition stage and we do not think the Trial Court and High Court had come to such conclusion in a perverse manner.”

Finally, it is then held in the last para 11 that, “We are not testing the legality of acquittal of the co-accused persons in this appeal. On the basis of the evidence on record, we are satisfied that the judgment and order of conviction and sentence was rightly confirmed by the High Court so far as the appellant is concerned. The factors which the High Court found for convicting the appellant, in our opinion, establishes guilt of the appellant beyond reasonable doubt. We find no reason to interfere with the judgment and order under appeal. The appeal is dismissed. We are apprised that appellant, at present, is on bail. The appellant’s bail bond stands cancelled. Let the appellant surrender before the Trial Court within four weeks from date and undergo rest of the sentence.” Very rightly so!

In conclusion, it may well be said that this latest, landmark and extremely laudable judgment has once again reiterated that seeking financial assistance can also constitute demand for dowry. This commendable judgment very rightly quotes the three-Judge Bench ruling of the Apex Court in Rajinder Singh vs State of Punjab (2015) 6 SCC 477 as has been mentioned above also! So no wonder that the appellant’s appeal was dismissed!

Sanjeev Sirohi

SC Takes Suo Motu Case To Assess The Working Of System In Sexual Offences

It is most heartening and most refreshing to learn that in a welcome development, the Supreme Court on December 18, 2019  has registered a suo motu petition in “In Re : Assessment Of The Criminal Justice System In Response To Sexual Offences” in SMW (Crl.) No(s). 04 of 2019. We all know fully well that there is a growing resentment and fuelling public anger against the rapid increase in rape, gang rape and murder cases of women and now even the Supreme Court has decided to go deep into it and act decisively to check the spiralling rise in such cases of sexual crimes against women! This alone explains why it has now decided to pursue it relentlessly!

To start with, the Bench of Apex Court comprising of Chief Justice of India Sharad Arvind Bobde, Justice BR Gavai and Justice Surya Kant sets the ball rolling by first and foremost observing in para 1 that, “Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, the statistics would reveal that desired results could not be achieved. As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.”

Truth be told, it is then conceded in para 2 that, “The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.”

To be sure, it is then pointed out in para 3 that, “We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.”

While explaining about the criminal law being set in motion, it is then elucidated in para 4 that, “The criminal law is set into motion by registration of the FIR. Section 154 of the Cr.P.C. provides about the information in cognizable cases and in effect registration of First Information Reports. The first Proviso to the sub-Section (1) of Section 154 inserted by the Amendment Act of 2013 and subsequently amended by the Amendment Act of 2018, provides for registration of First Information Report in cases of rape and sexual offences by a woman police officer or any woman officer. It is further provided that if the victim is temporarily or permanently mentally or physically disabled, the first information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of a special educator or an interpreter and the recording of such information may be videographed. It is also provided that the police officer shall get the statement of such person recorded by a Judicial Magistrate under Section 164, as soon as possible.”

No less significant is what is then stated in para 5 that, “As law laid down in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the police is duty bound to register the offence based upon the information given by the victim/information in case of cognizable offence. In addition to this, the statements of the victim under Section 161 are required to be recorded by a woman police officer or any woman officer. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?

(2)         In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?

(3)         Whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?

(4)         Whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?

(5)         Whether the police department of states or union territories have issued any circular to make provision of videography of the recording ofg statements and depository of the same?

(6)         Whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?”

What’s more, it is then envisaged in para 6 that, “By the Amendment Act of 2013, a new provision of Section 166A made the failure of a public servant to record any information of such offences, as prescribed, under sub-Section 1 of Section 154 of the Cr.P.C., a punishable offence, prescribing both rigorous imprisonment and fine for the guilty. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether any case has been registered under the Section 166A of IPC against any public servant?

(2)         Whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?”

Now regarding medical treatment, it is then pointed out in para 7 that, “Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial. Amendments in this regard have been inserted by the Amendment Acts of 2013 and 2018, whereby the newly introduced Section 357C of Cr.P.C. has sought to fix liability on medical institutions, both public or private to provide medical treatment free of cost to the victims of such offences as prescribed together with a duty to inform the police of such incident. Failure to comply with the above provision has also been made an offence punishable under Section 166B of IPC. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?

(2)         Whether any case has been registered against any person under Section 166B of IPC?”

Furthermore, it is then stated in para 8 that, “The manner in which the medical report of the victim is prepared is also a matter of concern. The Amendment Act of 2013 has inserted a new provision, i.e. Section 164A in this regard, which provides for the manner of medical examination as well as the guidelines for preparation of medical report. Other than the above information, many a times valuable information in consonance with the definition of rape as amended by the Act of 2013 are not supplied.”

Be it noted, it is then observed in para 9 that, “Also, vide the Amendment Act of 2013, Section 53A was inserted in the Evidence Act, 1872. It provides that the evidence of character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent. The effect of above provision is that previous sexual experience and in effect the habituation to sexual intercourse is now irrelevant for the purpose of medical examination. Still, we come across the medical opinion such as “the victim is habitual of sexual intercourse” and the opinion suggesting possibility of consent on the basis of her previous sexual exposure.” Para 10 then states that, “The Ministry of Health and family Welfare, Government of India had prepared “Guidelines & Protocols: Medico-legal care for survivors/victims of sexual violence”.”

It is then lamented in para 11 that, “The Ministry of Women and Child Development has designed a Medical Kit for examination of the victim and the accused in cases of rape. The Union Government and the State Government have not provided this medical kit to all the Primary Health Centers or Community Health Centers. This Medico Forensic Kit is essential for collection of Medical/DNA evidence.” The needful correction must be done in this regard and medical kit must be provided as underscored in para 11.

More importantly, it is then rightly underscored in para 12 that, “Further, Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman. In the case of Lillu alias Rajesh and Anr. V. State of Haryana, (2013) 14 SCC 643 it was observed as follows:-

“In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

Thus we consider it appropriate to call for status report with regard to the following:-

(1)         Whether the Medical Opinion in the cases relating to rape and similar offences is being given in compliance with the mandate of Section 164A of Cr.P.C.?

(2)         Whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?

(3)         Whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?

(4)         Whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?

(5)         Whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?

(6)         Whether the medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?

(7)         Whether lady medical practitioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?”

It merits no reiteration that the Per-Vaginum examination must be done away with right now and similarly the practice of giving opinion on previous sexual experience of the victim must also be done away with!

On a different note, it is then envisaged in para 13 that, “Forensic examination and report play an important role during the investigation as well as trial for linking the culprit with the crime. With the advancement of the DNA science and its accuracy, the sampling for the purpose of Forensic examination and expeditious reports after due examination are vital to the just adjudication of the case. The sampling for the purpose of DNA test as well as other forensic tests like forensic odontology is essential in cases relating to rape.”

Needless to state, it would be imperative to now mention that para 14 then enumerates that, “In relation to the examination of the accused, Section 53A of Cr.P.C. provides for timely examination and guidance for preparation of medical report. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether there is any Standard Operating Procedure (SOP) or Protocol for taking samples for Forensic DNA, Forensic odontology and other forensics for Medical Practitioners?

(2)         Whether there are adequate number of equipped Forensic Laboratories at least one at every Division Level to conduct forensic DNA and Forensic odontology analysis regionally?

(3)         Subject to availability , whether Central Government has notified sufficient number of Government scientific expert other than already specified under Section 293 of Cr.P.C.?”

On the role of police in such cases of crime against women, para 15 then illustrates holding that, “Section 173 (1A) Cr.P.C. provides that the investigation in relation to an offence under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the police officer in charge of the Police Station. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?

(2)         Whether sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?”

Moving on, it is then explicitly held in para 16 that, “Sub-Section (5A) of Section 164, Cr.P.C. provides for recording of statement of the victim by the Court. Other than recording of statements under Section 164, for the purpose of recording of statements during the trial, Section 119 of Evidence Act provides for assistance of an interpreter or a special educator in recording the statement of the witness unable to speak but capable to give evidence in any other manner. It further provides that such statement shall be video graphed. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police?

(2)         Whether the Magistrate Courts or the trial courts have the availability of the interpreter or special educator in each Districts?

(3)         Whether the Magistrate Courts or the trial Courts have the facility of videography of the statements and depository of the same in the Courts?”

Going forward, it is then observed in para 17 that, “Section 26 clause (a)(iii) of Cr.P.C. provides for trial of such offences to be conducted by a Court presided over by a woman judge, as far as practicable. Further, Second proviso to sub-Section 327(2) of Cr.P.C. also mandates that in camera trial shall be conducted, as far as practicable, by a woman Judge or Magistrate. It must be noted that the insertion of the above proviso has a very important object and the rider of “as far as practicable” cannot be used to overcome the mandate in ordinary manner.”

Importantly, it is then held in para 18 that, “The need for speedy trial of the cases relating to offence of rape has been emphasized again and again by this Court. The proviso to sub-Section (1) of Section 309 mandates that the inquiry of trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge-sheet. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether trial of cases relating to rape cases are being conducted by Courts presided over by a woman?

(2)         Whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?

(3)         Whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?

(4)         Whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?

(5)         Whether sufficient number of special Courts have been established to deal exclusively with the cases of rape and other sexual offences?”

More importantly, it is crucial to note that it is then observed in para 19 that, “Under Section 230 of Cr.P.C., a trial programme is generally prepared on the application of the prosecution. This Court in the case of State of Kerala v. Rasheed, AIR 2019 SC 721 has held as followings:-

“The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:

i. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;

ii. the case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;

iii. the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;

iv. testimony of witnesses deposing on the same subject matter must be proximately scheduled;

v. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case calendar;

vi. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross examination of each witness, or set of witnesses;

vii. while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolute necessary;

ix. in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.”

Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether case-calendar as envisaged in the Rasheed case is being prepared by the Trial Courts keeping in mind the time line of two months mandated by Section 309 of Cr.P.C.?

(2)         Whether the attendance of the witnesses is being ensured by the Prosecution to ensure the examination of witnesses on the fixed dates?

(3)         Whether any guidelines have been issued by Bar Councils or Associations urging the Advocates to assist the Court in completion of trial within the stipulated period?

(4)         Whether special exclusive permanent trial courts have been created in the state to deal with cases relating to rape and sexual assaults?

(5)         Whether any High Court has constituted Special Bench for expeditious hearing of appeal in these cases?”

While dwelling on witness protection, it is then elaborated upon in para 20 stating that, “The protection of witness during the investigation and trial is essential in cases of this sensitive nature. Many a times the accused live in proximity of the victim. The possibility of  tampering with evidence and pressurizing the witness affects fair trial. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?

(2)         Whether police protection is being provided to the victim during investigation and trial of the offence?

(3)         Whether there are special waiting room in the Court premises for victim/witnesses of cases relating to offence rape?

(4)         Whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?”

As it turned out, it is then mentioned in para 21 that, “Section 357A(2) Cr.P.C. provides for award of compensation to the victims. The District Legal Service Authority or the State Legal Service Authority are bound to decide as to the quantum of compensation to the victim on the recommendation of the Court. By the order of the Court in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India, the National Legal Services Authority, New Delhi had prepared a Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018. This scheme has been circulated among all states for necessary actions. The Scheme comprehensively provides for the rehabilitation and compensation for the victims of Rape.”

Most importantly, for the rape victims it is laid down in para 22 that, “As the victim goes through a mental trauma and requires immediate counseling, legal aid and medical, social and in some cases, economic rehabilitation. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Whether Courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases?

(2)         Whether the amount of interim or final compensation is being provided to the victims in time bound manner?

(3)         Whether the above-mentioned Scheme of 2018 or suitably amended Scheme, has been implemented by the states for rehabilitation of victims of rape?

(4)         Whether the SLSA or NLSA has formulated any scheme for social, medical and economic rehabilitation of the victim?

(5)         Whether any state has prepared a policy with regard to the counselling of the victim and medical, social and in some cases, economic rehabilitation of the victim?

(6)         Whether there are any counselling/rehabilitation centres in existence for the victims of rape?”

It would be imperative to now mention that para 23 then holds that, “In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created, and it is important to inform ourselves how far has the purpose of setting up the fund been achieved. Thus, we consider it appropriate to call for status report with regard to the following:-

(1)         Utilization of the Nirbhaya Fund by Central or State Government(s) for the purposes envisioned?”

To say the least, para 24 then states that, “Let the matter be registered as Suo Motu Writ Petition Criminal with the caption “Assessment of the Criminal Justice System in response to Sexual Offences”.”

While continuing in the same vein, para 25 then states that, “In order to collate all the information and status and provide a holistic view of implementation of provisions of law and to suggest measures for making the criminal justice system more efficacious and responsive towards the offence of rape and other sexual offences, we request Shri Sidharth Luthra, Senior Advocate to assist the Court as Amicus Curiae in the matter.” This is certainly a step in the right direction!

Not stopping here, para 26 then states that, “The learned Solicitor General is requested to extend all co-operation to the Amicus Curiae in this regard.” Finally, it is then held in the last para 27 that, “The Secretary General, Supreme Court of India shall also extend co-operation in respect of calling for information and status reports from the Chief Secretary and the Director General of Police of all the States, the Registrar General of all the High Courts and other functionaries, as may be required. Let the matter be listed on 07.02.2020.”

On a concluding note, it is a very positive and laudable initiative taken by the highest court of India that is the Supreme Court. If corrective measures are taken even now there is no reason to doubt why the alarming increase in rape cases cannot be checked substantially. What all steps have been mentioned above need to be implemented and what all lacunae also have been mentioned need to be addressed! This menace cannot be allowed to linger on indefinitely and has to be addressed head on without any further delay now! No denying or disputing it!

Sanjeev Sirohi

A Brief Analysis Of CAA And Its Impact On Citizens

“To protest is the democratic right of the people of India. No one can stop us from doing so. However, it is important that it is controlled. Keeping our emotions in control is the most important part.”

–        Shahi Imam of Jama Masjid Syed Ahmed Bukhari

No doubt, Syed Ahmed Bukhari has rightly called on the people of the country to exercise restraint and keep their emotions under control while demonstrating. Even those who are protesting against CAA have the right to protest peacefully but not the right to hold the nation to ransom! He also very rightly urged the people, including the youth, to not be provoked by nefarious elements.

He also explained the difference between the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC), saying they are two different things. We all saw in different news channels that many people who were protesting did not had even the elementary knowledge of CAA but were protesting vehemently just on the provocation of leaders from different political parties! This is what I find most hurting that some parties are trying to fish in troubled waters and make huge political capital from it without caring a damn for the disastrous consequence it would have on the unity and integrity of our country!

It is heartening to note that Syed Ahmed Bukhari has sought to allay all the unfounded fears of Muslims by reiterating what Amit Shah who is Union Home Minister and Narendra Modi who is Prime Minister have been repeatedly saying that, “The CAA is for those people who came to India from Pakistan, Afghanistan and Bangladesh before December 31, 2014. They will be granted citizenship and it will not affect the Muslims living in India. The Muslim refugees who came to India from Pakistan, Afghanistan and Bangladesh will not get Indian citizenship. It has nothing to do with the Muslims living in India.” Bukhari further clarified that, “While the CAA has become a law, NRC has been only announced. It has not become a law yet.” I am sure that what Bukhari has said will help remove the misgivings among Muslims about CAA and calm the huge tension which had cropped up after few leaders incited them by spreading wrong rumours about CAA!

Needless to say, Bukhari’s comments are very significant as it came in the backdrop of anti-CAA protests which turned violent in northeast Delhi’s Seelampur area, forcing the police to use tear gas shells to disperse the protesters, who torched two buses. The police also stopped vehicular movement on the road, which connects Seelampur with Jafrabad, due to demonstration. The protest in Seelampur came days after clashed between police and protesters in Jamia  Millia Islamia over the citizenship law.

To be sure, the Citizenship (Amendment) Act 2019 seeks to primarily amend the definition of illegal immigrant for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh, who have lived in India without documentation. It must be understood that the CAA grants citizenship to non-Muslims of Pakistan, Afghanistan and Bangladesh who fled religious persecution and arrived in India before December 31, 2014. They will be granted fast track Indian citizenship in six years. So far 12 years of residence has been the standard eligibility requirement for naturalisation.

It must be borne in mind that in the aftermath of most unfortunate partition on the “most stupid” and “most senseless” ground of religion as insisted by Muslim League and Mohammad Ali Jinnah and the horrifying communal riots that followed, Prime Minister Jawaharlal Nehru of India and Prime Minister Liaquat Ali Khan of Pakistan signed a treaty, also known as the Delhi Agreement, on security and rights of minorities in their respective countries. India had constitutional guarantees for rights of minorities and Pakistan had a similar provision in the Objectives Resolution adopted by its Constituent Assembly. Amit Shah claims strongly that India has kept its end of the bargain while Pakistan openly mocked at it by ensuring that Hindus and Sikhs are either killed or harassed or forcibly converted!

To say the least, it is this wrong that the new law seeks to correct. We all know fully well how Hindus, Sikhs among others have been forcefully converted in Pakistan, their temples and gurudwaras plundered and vandalized and this alone explains why their population stands hugely decimated! Can anyone deny this?

Why US, UN, UK and other European countries who keep lecturing India on human rights and secularism among other things never said anything on this nor ever took any step to ensure that no terror training camps are set up in Pakistan for being used to kill Hindus and other minorities? What is worse is that USA directly funded terror groups as was acknowledged recently by Pakistan PM Imran Khan admitting that 40,000 terrorists are active and earlier even by former Pakistani Army Chief and President – Gen Pervez Musharraf who said that it was only after attack on New York on World Trade Centre that US turned against us!

It cannot be denied that Amit Shah certainly has a very valid point when he points out rightly that India was wrongly partitioned by Congress on the flimsy basis of religion. Why UN, US and UK justified partition of India terming it as “biggest secular act” instead of disallowing the partition of India on the most flimsy ground of religion? What sort of secularism was partition on basis of religion?

Was Khan Abdul Ghaffar Khan not in his senses when he said to Jawaharlal Nehru that, “Nehru what have you done? You have made me a foreigner in my own country by agreeing to the partition of India on the ground of religion! Should I feel proud of it?” Why Congress buckled for partition when Maulana Abul Kalam Azad, Maulana Hasrat Mohani and many other Muslim Congress leaders didn’t want the partition of India on the ground of religion? Why were the disastrous consequences of partition not thought out?

Who can deny that Afghanistan, Pakistan and Bangladesh are all Muslim countries where Islamic law prevails and where people belonging to other religions have been constantly exterminated and tortured and humiliated to most degrading extent? Who can deny that even the Buddha’s statues were not spared in Afghanistan and other places? So where will they go if not to India which is their mother country as earlier under British India and even earlier Pakistan, Afghanistan and even Bangladesh all formed part of India?

As it turns out, parties like the Congress among others are opposing this CAA on the ground that it leaves out Muslims and violates Article 14 which guarantees equality. Many parties like Congress feel very strongly that Shias are most persecuted in Pakistan among others and they too must be allowed to come in India. We cannot deny that Sunni terror groups which have got direct patronage from Pakistani Army and ISI keep attacking Shia shrines and keep killing them also in huge numbers in Pakistan as we keep reading also time and again!

Is this not the biggest slap on the face of Mohammad Ali Jinnah who was himself a Shia  and who was the founding father of Pakistan? All Shias must concede now unequivocally that partition was an act of betrayal by Jinnah! What purpose has partition served if even those from Jinnah’s Shia groups have to seek refuge in India? Why US, UK, UN and European countries among others never took any step to check the unabated cycle of deadly violence in Pakistan against Shias, Hindus, Sikhs among others?

If Shias are compelled to take refuge in India then Pakistan must be also integrated with India and all political parties must acknowledge that partition on basis of religion was the biggest stupidity that was allowed to happen right under the nose of Congress which called the shots in 1947 when India was partitioned! Why Congress never admits that they themselves were responsible for partition along with Jinnah, UK, US and UN who never wanted to see a united and strong India once the Britishers left India? Why they keep blaming VD Savarkar foolishly who had just no role to play in 1947 when India was partitioned? How long will Congress shy away from owning up its past mistakes and Himalayan blunders like the partition of India on the most absurd ground of religion?

Why US, UN, UK and European countries always maintained that India should remain quiet even if Hindus, Sikhs and other minority groups are killed most brutally not just in Pakistan, Bangladesh and Afghanistan but even in India in Jammu and Kashmir? Why they also insist that India must talk always to Pakistan and tolerate terror training camps operating from Pakistan and no action should be taken against dreaded terror groups like Taliban who has still not been declared a terror organization? Why they congratulate India when ‘Ramzan ka ceasefire’ is declared most stupidly and most shamelessly wherein all action is halted against terror groups and Pakistani Army giving them a free hand to kill our people and soldiers most brutally by beheading their heads as has happened also many times when they send their special trained commandos termed as “BAT” (Border Action Team) so that they can then play with head like football and why Muslims in India and parties speaking on their behalf also never say a word when Ramzan is identified with terror groups and “Ramzan ka ceasefire” is declared which I consider as the biggest insult of Islam and Muslims on earth? Why a deafening silence on it?

My best friend Sageer Khan had way back in 1993 said that, “India is the most tolerant country in the world. Muslims enjoy maximum independence in India alone and must always be happy and proud of it. In Pakistan they are discriminated against and Muslims from India are called ‘Mohajjirs’ and are still discriminated against and treated as second grade citizens. Similarly Balochis, Sindhis, Shias among others are all discriminated against in Pakistan. In India, Nehru banned Hindus from marrying more than one individual both male and female even though earlier they could marry as many as they liked but he did not touch Muslims and we still enjoy polygamy with full freedom! But see how tolerant Hindus are that no one ever said a word but if this had been done with Muslims we would have started screaming and yelling all over that our religion is in danger! Muslims must develop more tolerance for Hindus just like they have for us. Hindus never claim Mecca or Medina as temple sites! Why Muslims claim all those sacred Hindu sites like Ayodhya, Kashi and Mathura which Hindus hold sacred since lakhs of years on the plea that Babur or Aurangzeb built it? Who was Babur? He was just an invader and nothing else! How can Babur or Aurangzeb be preferred over Lord Ram? What if Hindus also demand temple in Mecca and Medina? We have not allowed any temple anywhere not just in Mecca or Medina but also in any other part of Saudi Arabia or any other Gulf country. Not a single mosque should ever be built in Ayodhya, Kashi and Mathura and Centre must declare them as “Hindu sites” and develop them just like Mecca and Medina.”

In a big relief to Centre, the Supreme Court has refused to stay the CAA, 2019 and has just issued a notice to the Centre on a clutch of 59 petitions challenging the amendments and said  it would hear the matter on January 22. Also, a Bench of Chief Justice of India Sharad Arvind Bobde and Justice BR Gavai and Justice Surya Kant also instructed Attorney General KK Venugopal to ask the government to publicise the provisions of the Act through the media to remove any confusion. The Bench of Apex Court thus declined to oblige some of the petitioners lawyers who pressed for a stay!

It is high time and now India must tell US, UN, UK and European countries to just simply mind their own business and stop meddling in India’s internal affairs which we are quite capable of sorting out ourselves! Why they never said anything when Hindus, Sikhs and other minorities were repeatedly killed in Pakistan, Afghanistan and Bangladesh? With what face do they lecture us when it is countries like US and UK who have always armed Pakistan to the teeth and have also trained even dreaded terrorists like Osama bin Laden helping  him to establish most dreaded terror organization Al Qaeda and had always given them long rope in regularly carrying out a deadly proxy war against us by sending terrorists to attack India regularly?

Don’t they feel ashamed? Why when Pakistani Army crushes locals in PoK, Sind, Balochistan and other parts does UN feel that Pakistan deserves more aid and more help? What is their logic behind it?

Can anyone explain? It is simple that countries like US, UK, China among others who constitute the permanent members of UN Security Council never want India to prosper and want that India should always be painted in a corner and Pakistan even if it threatens to nuke India time and again as their PM Imran Khan did right from the UN platform has to be still dealt with most humbly, most courteously and most politely! This is the real beauty of UN, US, UK and other European countries!

Should we still care for them? Certainly not. But yes, Muslims must be assured that they are not going to be affected at all and this the government is certainly doing! Centre has even said that Muslims too who are persecuted could be allowed in India once their bona fide claims are established as we saw in case of famous singer Adnan Sami!

What is most baffling is that Pakistan is most miffed at this? Why is Pakistan unhappy? Does Pakistan wants that Muslims from Pakistan should also settle down in India as Pakistan does not offer them much opportunities and minority groups like Shias, Ahmadiyas among others are unwanted?

This is exactly what those in India who are opposing CAA are demanding most vociferously! Then why don’t they concede that India is the best place for Muslims to live in as was admired by my best friend Sageer Khan way back in 1993 and stop painting a grim picture of India from every platform that they get to speak from? They must take a definite stand on this as they just can’t have it both ways!

In conclusion, Indian Muslims are not at all affected by CAA. This has been clarified by none other than the Shahi Imam of Jama Masjid as was pointed out in the beginning itself! This is what is my analysis also on it although I am yet to dwell on National Register of Citizens (NRC) and which is yet to take a final shape! So I will refrain from commenting on NRC!

All the violence that we are witnessing has been given a political colour by various political parties for gaining maximum political capital from it! This is what I find most reprehensible! It cannot be justified under any circumstances by anyone! How can burning of property or burning of buses or burning of railway stations be ever justified? Justifying it will be the surest recipe to unmitigated disaster and  complete anarchy!

It merits no reiteration that partition cannot be undone. But certainly those who have suffered from it must be provided maximum relief which is exactly what the Centre is doing most effectively for which it must certainly be applauded and not condemned! No way!

Sanjeev Sirohi

Intoxication Not A Mitigating Factor When Accused Was Not In A Highly Inebriated Condition: SC

                                     It has been most rightly remarked by the Supreme Court most recently on December 13, 2019 in a latest, landmark and extremely laudable judgment titled Suraj Jagannath Jadhav vs State of Maharashtra in Criminal Appeal No. 1885 of 2019 that, “Mere intoxication is not a mitigating factor factor when accused was not in a highly inebriated condition”. This was held so while clearly rejecting the contention of the accused that he was under the influence of liquor and threw matchstick on his deceased wife and set her ablaze  and therefore his condition was such that he could not understand what he was doing! There can be no reason to justify an unlawful act and that too of such a horrifying nature as burning one’s own wife!

To start with, this noteworthy judgment authored by Justice MR Shah for himself and Justice Ashok Bhushan set the ball rolling in para 1 wherein it was observed that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.10.2018 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 723 of 2013, by which the High Court has dismissed the said appeal preferred by the appellant herein-original accused and has confirmed the judgment and order of conviction passed by the learned Trial Court convicting the accused for the offence punishable under Section 302 of the IPC, the original accused has preferred the present appeal.

As it turned out, para 2 then states that, “At the outset, it is required to be noted that the only submission made by the learned counsel appearing on behalf of the appellant-original accused is that the death of the deceased can be said to be a culpable homicide not amounting to murder and the case would fall under Exception 4 to Section 300 IPC and therefore the case would be under Section 304 Part II IPC. Even this Court has issued the notice in the present appeal limited to the nature of offence.”

While elaborating further on this pale defence, para 3 then states that, “Shri Sushil Karanjkar, learned counsel appearing on behalf of the appellant-original accused has vehemently submitted that, as such, there was no intention on the part of the accused to kill his wife. It is submitted that at the time when the unfortunate incident had taken place, the accused was under the influence of liquor and therefore his condition was such that he could not understand what he was doing. It is further submitted by the learned counsel appearing on behalf of the appellant-original accused that even thereafter the appellant tried to save the deceased and poured water to save her and, while doing so, even the appellant-original accused also sustained the injuries. Therefore, relying upon the decision of this Court in the case of Kalu Ram v. State of Rajasthan (2000) 10 SCC 324, it is prayed to alter the conviction from Section 302 IPC to Section 304 Part II IPC.”

For the sake of brevity, let us now have a glimpse of the key findings of the Apex Court Bench. To start with, it is observed in para 5 that, “Heard the learned counsel appearing on behalf of the respective parties at length. As observed hereinabove, in the present appeal, the sole question which is posed for consideration of this Court is, whether, in the facts and circumstances of the case, the case would fall under Exception 4 to Section 300 IPC or Section 300 fourthly and, therefore, whether Section 302 IPC shall be attracted or the case may fall under Section 304 Part II IPC?”

More significantly, it is then disclosed in para 5.1 that, “It is the case on behalf of the appellant-original accused that as at the time when the incident took place, the accused was drunk and under the influence of liquor and he had no intention to cause death of the deceased-wife and that even subsequently the accused tried to save the deceased and poured the water on her and therefore the case would fall under Exception 4 to Section 300 IPC and, therefore the conviction is to be altered from Section 302 of the IPC to Section 304 Part II IPC, having relied upon the decision of this Court in the case of Kalu Ram (supra). However, it is required to be noted that, in the present case, the appellant-accused poured the kerosene on the deceased when she was trying to run out of the house to save herself and was trying to open the latch of the door of the house, the accused threw the match stick on her person and set her ablaze. Nothing is on record that the accused was in a highly inebriated stage. Even looking to the conversation which took place between the deceased and the accused, so stated in the dying declaration given by the deceased, it can safely be said that the accused was in very much conscious condition when the incident took place. He was very much in the senses and was conscious about what he was doing. Therefore, the accused was fully conscious of the fact that if kerosene is poured and matchstick is lit and put on the body, a person might die due to burns. Therefore, the case would fall under Section 300 fourthly and Exception 4 to Section 300 IPC shall not be applicable.”

Finally and most importantly, it is then held in para 7 that, “Applying the law laid down by this Court in the cases of Bhagwan (supra) and Santosh (supra) to the facts of the case on hand and the manner in which the accused poured the kerosene on the deceased and thereafter when she was trying to run away from the room to save her, the accused came from behind and threw a match-stick and set her ablaze, we are of the opinion that the death of the deceased was a culpable homicide amounting to murder and Section 300 fourthly shall be applicable and not Exception 4 to Section 300 IPC as submitted on behalf of the accused. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court convicting the accused for the offence punishable under Section 302 of the IPC.” Lastly, it is then held in the last para 8 that, “In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed.” Very rightly so!

In conclusion, the Apex Court Bench has very rightly convicted the accused as he was fully conscious of what he was doing while he threw a  match-stick and set her wife ablaze. The intoxication was not so much that he could not understand what he was doing. So he was not given the benefit of doubt. Very rightly so!

Sanjeev Sirohi