Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Chaudhary J., upheld and modified the Judgment given by Trial Court on grounds of the accused being found guilty of the offence under Section 354, 506 and 509 of Penal Code, 1860.

The facts in a nutshell are that the informant was chased by the accused while she used to go for tuitions at a computer center. He used to wait for her at the bus stand and chase her, make illicit comments, ask her to marry him by showing her money, convincing her to be in an illicit relationship with him. The informant refused and asked him to behave himself but to no avail as he still kept doing the same and threatened to kill her.

Later, the informant confided in her family regarding the set of events and the father and brother caught the accused red-handed and registered an FIR against him under Sections 354, 506 and 509 of Penal Code, 1860. He was tried in the trial court and sentenced to imprisonment plus fine. Hence, the instant revision application was filed for the intervention of the High Court and the order of conviction to be set aside.

Counsel for the petitioner Ashish Kumar submitted that no case under Section 354 can be made out as the petitioner never held the informants hand and hence the charges are false and the ingredients of the section are not satisfied and hence the offence cannot be made out in the eyes of law. He further submitted that accused has been convicted based on the examination of two witnesses which is not sufficient for a fair trial as the two witnesses were the informant and her brother who are highly interested witnesses in the present case. The counsel further prayed the court to take a lenient view on the point of conviction as the age of the accused on the date of conviction was 42 years and his present age is 52 years, hence the sentence is liable to be looked into and modified by the court. He has also argued that when the FIR was registered the act of holding hand/ touching the informant was not mentioned which was added later in the prosecution case and therefore the accused has been falsely implicated in the present case.

Counsel, Pankaj Kumar prayed for no interference as there was no inconsistency in the finding of the facts, the examination of the witnesses, or appreciation of the evidence, thereby being no illegality or perversity in the impugned judgment.

The Court after hearing both sides relied on a Judgment of the Supreme Court titled State of Punjab v. Major Singh, AIR 1967 SC 63 held that the act of physical touching in the present case does not affect the order of conviction as other basic ingredients of Sections 354, 506 and 509 of IPC is clearly made out. It also held that the argument that the act of touch was not made out during filing of FIR but later in the prosecution case stands no ground as FIR is not an encyclopedia of the entire prosecution case.

In view of the above, the sentence is modified and criminal revision application disposed off. [Shyam Gupta v. State of Jharkhand, 2020 SCC OnLine Jhar 718, decided on 07-08-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division bench of Ramesh Singh and Raj Beer, JJ., directed the Senior Superintendent of police to file a personal affidavit with regard to an explanation on how an FIR was filed under Section 66A of the Information Technology (Amendment) Act, 2008?

Som Veer, Counsel for the petitioner submitted that the present FIR had been registered against the accused respondent’s 4 to 6 for an offence under Sections 66A and 67B Information Technology (Amendment) Act, 2008 along with Sections 294, 500, 504, 506 and 509 of Penal Code, 1860.

In Supreme Court’s decision in Shreya Singhal v. UOI, (2015) 5 SCC 1, FIR under Section 66A of the Information Technology (Amendment) Act, 2008 cannot be registered as the same had been declared to be ultra vires.

High Court directed the Senior Superintendent of Police, Mathura to file a personal affidavit explaining how the FIR had been registered under Section 66A of the Information Technology (Amendment) Act, 2008.

Matter to be heard on 26-08-2020. [Mohan Singh v. State of U.P., 2020 SCC OnLine All 920, decided on 31-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ, and A.S. Gadkari, JJ., deferred the hearing for PIL’s filed in view of the unnatural death of Sushant Singh Rajput, a film actor.

In the present two Public Interest Litigations, it has been sought that CBI should be entrusted with the investigation into the unnatural death of a film actor, Sushant Singh Rajput.

Advocate General for the State, A.A. Kumbhakoni informed the Court that a petition with similar relief was moved before the Supreme Court, but the same was dismissed.

The petitioner on being asked for the copy of the petition stated answered in negative and added that the Supreme Court while dismissing the petition granted liberty to approach this Court.

Another significant point that the Court noted was the Supreme Court’s order dated 5-08-2020 wherein a status report has been called for from the State of Maharashtra in regard to the stage of investigation by Mumbai Police.

Hence, the Advocate General for the State states that the Court may not pass any order on the present petition and may await the Supreme Court’s decision.

Additional Solicitor General, Anil Singh submitted that on acceptance of the request of the deceased father, the CBI has already registered an FIR, inter alia, under Section 306 of the Penal Code, 1860. He has also questioned the approach of the Mumbai Police in quarantining an IPS officer of the Bihar cadre, who had come to Mumbai for the purpose of ascertaining facts, although four other officers of Bihar Police who had earlier visited Mumbai were not meted out such treatment.

Hence in view of the above stated, Court while deferring the hearing till 21-08-2020, stated that CBI has registered an FIR and it would not be appropriate, at this stage, to express any opinion either way.

It would be just and proper to await the orders of the Supreme Court in the pending Transfer Petition, referred to above. [Priyanka Tibrewal v. UOI, 2020 SCC OnLine Bom 848, decided on 07-08-2020]


Also Read:

Sushant Singh Rajput death case| SC asks Mumbai Police to submit status of investigation so far; says truth must come out

Case BriefsSupreme Court

Supreme Court: After Solicitor General Tushar Mehta submitted before the bench of AM Khanwilkar and Dinesh Maheshwari that as of today only ten petitioners in the Tablighi Jamaat case have decided to contest the criminal cases pending against them and are not willing to exercise the option of plea bargaining, the Bench directed that the criminal cases concerning these ten petitioners pending in different Trial Courts in the NCT of Delhi be brought before the same Court i.e. to the Chief Metropolitan Magistrate, South-East Delhi, Saket Court Complex, Saket, so that all the cases can be disposed of expeditiously. It further directed the said Court to dispose of all the cases expeditiously preferably within eight weeks from today.

SG also submitted before the Court that  if the concerned petitioners tender apology, as envisaged by the Madras High Court in the concerned criminal case, the said petitioners can be permitted to leave India despite the pendency of the criminal case but subject to such orders that may be passed by the concerned Trial Court.

He also told that Court that the look out notices issued against the petitioner(s) before this Court stand withdrawn and that the concerned petitioner(s) will be free to leave India subject to any other pending proceedings including order passed by the Court requiring his/her presence in the stated proceedings.

The Court has listed the matter after 8 weeks.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions. They defied COVID-19 lockdown norms as were imposed by the Government. In the norms, religious places were ordered for closure, yet the petitioners allegedly stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

Madras High Court had, in it’s June 12 order said that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

“Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.”

[Maulana Ala Hadrami v. Union of India, 2020 SCC OnLine SC 629, order dated 06.08.2020]


ALSO READ

Madras HC | Tablighi Jamaat | Foreigners who attended congregation not criminals: HC grants bail and allows return of foreigners to native country


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Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Bibek Chaudhari and Soumen Sen, JJ., addressed a matter wherein a reporter published a story on witnessing the police personnel bribing a truck driver and further driving negligent get hold of the truck resulting in the death of a person.

Petitioner a reporter of ETV Bharat made a news report stating, inter alia that some police personnel was collecting bribe from a truck loaded with sand and while chasing the truck, the vehicle owned by the police department was being driven in a rash and negligent manner.

The result of the rash and negligent driving caused the death of a person.

Above was the prima facie reason for lodging a complaint against the petitioner.

Bench on perusal of the materials on record stated that, it is a fundamental right of a press reporter to publish any news, which may not be palatable to the administration.

In order to stifle and muzzle the voice of the reporter this case has been registered against the petitioner.

Court also noted the fact that the police have taken cognizance of the report which prima facie discloses the offences committed by its own personnel.

Hence, in view of the above, Police Superintendent of the District concerned has been directed to initiate enquiry regarding registration of the FIR against the ETV reporter and to investigate about the collection of money by the police personnel, the incident of which has been published by the reporter and to take appropriate action against the offenders.

Therefore, the petitioner shall be released on bail. [Avishek Dutta Roy, In Re., 2020 SCC OnLine Cal 1319, decided on 30-07-2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilanthiraiyan, J., allowed a criminal petition and quashed proceedings in the criminal case filed against the petitioner protesting against Citizenship Amendment Act.

Case of the prosecution

Petitioner along with other accused persons protested in the public road against the implementation of the Citizenship Amendment Act and further demanded the central government to withdraw the said Citizenship Amendment Act without getting prior permission from the authority concerned.

Police filed an FIR on the basis of the above-stated allegation under Sections 143 and 188 of Penal Code, 1860.

Petitioner’s counsel submitted that the Supreme Court of India has held that right to freely assemble and also right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in proportional manner through a fair and non-arbitrary procedure provided in Article 19 of the Constitution of India.

Bench observed that the petitioner along with other persons protested against the implementation of Citizenship Amendment Act and demanded the Central Government to withdraw the same. The protest was conducted on a public road without getting prior permission from the authority concerned.

Thus, on the basis of the above-stated respondent police had levelled charges under Sections 143 and 188 IPC.

Further the Court also noted the fact that no one was examined to substantiate the charges against the petitioner except for the official witnesses.

Only question for consideration is that whether the registration of case under Sections 143, 188 IPC, registered by the respondent is permissible under law or not?

Court referred to Section 195(1)(a)of the Criminal Procedure Code, 1973 for the above stated question, which talks about:

Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

Referring to the above, Court stated that

it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance.

Thus, while quashing the proceedings against the petitioner, Court stated that, FIR had been registered by the respondent police for the offences under Sections 143 and 188 IPC. He is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the offences under Section 188 of IPC. Further, the complaint does not even state as to how the protest formed by the petitioner and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed. [Shamsul Huda Bakavi v. State, 2020 SCC OnLine Mad 1298 , decided on 26-06-2020]

Hot Off The PressNews

Publication of news items regarding government girls shelter home, Kanpur by unknown media institutions

Press Council of India Chairman Justice Chandramauli Kumar Prasad has noted with concern filing of FIR against unknown media institutions on publication of news item about Government Girl Shelter Home, Kanpur, Uttar Pradesh.

Taking suo-motu cognizance of the matter, a reply statement on fact of the case has been called for from the Government of Uttar Pradesh.


Press Council of India

[Press Release dt. 25-06-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Saumitra Daya Singh, JJ., granted partial relief to the petitioners booked for violating social distancing norms while distributing food packets.

Petitioners sought quashing of the First Information Report registered for offences under Section 188 and 269 Penal Code, 1860.

The allegation in the FIR is that the protocol of social distancing has not been followed by the crowd of 8-10 people who were at a public place and the petitioners against whom the FIR has been filed were members of the said crowd.

Bench on noting the above facts and circumstances, stated that it does not find any allegation of an untoward incident happening.

Further the Court added that, there is no doubt that the denizens of the city are under obligation to follow the protocol of social distancing in collective fight of the country with pandemic Covid-19. Every person is responsible to be aware of the protocol and see that other follow it strictly.

However, in Court’s opinion, restraining the said persons who for some reason violated the protocol of social distancing may further aggravate the Corona crisis.

“Create awareness and consciousness amongst people rather than putting them in jails or lockups which are already over crowded.”

Petitioners stand is that they were distributing the food packets amongst the poor persons in the locality during the lockdown and in the course of the said distribution suddenly some people were collected on the spot.

Thus, Court held that the petitioners should be granted one opportunity to mend themselves and in therefore they shall file an undertaking stating that they will follow all norms and protocol of COVID-19 and will not breach them in future.

“petitioners shall not be arrested in the aforesaid case till submission of the police report under Section 173(2) Cr.P.C. provided they cooperate with the investigation.”

In view of the above, petition was disposed of. [Munna v. State of U.P., 2020 SCC OnLine All 810 , decided on 19-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: C. Hari Shankar, J., granted an ad-interim injunction and restrained police from making any investigation against Ganga Ram Hospital in an FIR filed against the hospital by the Delhi Government.

Ganga Ram Hospital — Petitioner sought interim stay of all proceedings consequent to FIR alleging commission of offence under Section 188 of Penal Code, 1860.

Background

Petitioner submitted that a reading of guidelines issued on 18th May, 2020 by ICMR revealed that it was only by the said guidelines that a specific requirement was incorporate, to the effect that all testing of COVID-19 suspected cases, whether symptomatic or asymptomatic were to be conducted by “real -time RT-PCR test only”.

On April, 20th, 2020, GNCTD issued an Order wherein following was informed:

GNCTD had created a COVID App, in which all Government/private COVID testing labs and COVID hospitals were required to fill the requisite data, to ensure proper follow-up of COVID-19 cases.

The Order required all concerned government/private hospitals to get the requisite data filled on the COVID App immediately on regular basis to supplement efforts for checking the spread of COVID-19, and also directed all government/private labs to update the COVID App on regular and immediate basis, after submission of each and every sample for testing.

On April, 30th, 2020, an Order was issued by GNCTD, wherein concern was expressed with regard to the pendency of test samples sent by districts in hospitals to various labs for COVID-19 testing, multiplicity in reports, resulting in difficulties and reconciliation of data and assessment of the number of people getting infected with COVID-19 virus.

Fulcrum of Controversy

RT-PCR App is the fulcrum of controversy in the present matter. This app was aimed at streamlining data flow of tested persons, reducing data entry at labs, speeding up declaration of results and enabling data flow of suspected cases into the system for further action at the district level.

Specimen Referral Form and the above-stated app are similar except for the fact that the app is an electronic version of the said form.

Standing Counsel, Rahul Mehra was also unable to pick out the difference between the RT-PCR app and Specimen Referral Form.

Further on 7th May, 2020 it was issued by Nursing Home Cell of the Directorate General of Health Services, GNCTD (DGHS) that no manual Sample Requisition Form will be accepted and private lab concerned would receive samples only after conforming that the details had been entered on the RT-PCR App.

Show Cause Notice to Ganga Ram Hospital

Petitioner was issued — with following of the ICMR testing protocol for testing of asymptomatic patients.

On 3rd June, 2020, an Order was issued by the DGHS observing that, in apparent disobedience of the office order dated 6th May, 2020, proscribing use of manual/physical SRFs at sample collection centres with effect from 8th May, 2020 and usage, instead of the RT-PCR App, petitioner was still not using the said App.

Petitioner was directed to explain, within two days, why it had not started using the RT-PCR App. The petitioner was also directed to stop RT-PCR sampling of COVID-19 suspects/contact cases, with immediate effect.

Petitioner informed the Court that it had identified a Data Entry Operator, for registration of the RT-PCR App as well as nine phlebotomists, whose details were annexed. Once the Data Entry Operator was registered, the petitioner undertook to enter all past entries in the RT-PCR App and to ensure compliance, with the said requirement, in future.

On 5th June, 2020 an FIR was registered against the petitioner from the office of the Deputy Secretary, health, GNCTD, alleging commission of offence under Section 188 IPC (Disobedience to order duly promulgated by public servant).

Why has the present petition been filed?

By the present petition, petitioner prays for quashing of the above-stated FIR, issuance of an appropriate write, Quashing of the Order wherein the petitioner has been prohibited from conducting RT-PCR sampling for COVID-19 suspects/contact cases, has become infructuous, as the said order has been withdrawn and the petitioner has been permitted to conduct sampling.

R. Suri and Sidharth Luthra, Senior Counsel for the petitioner and Rahul mehra, Senior Standing Counsel (Criminal) for GNCTD/State.

Decision 

Bench stated that the only allegation in the impugned FIR was clearly in violation by the petitioner with regard to the orders requiring collection of samples for COVID-19 testing, to be done only through RT-PCR App.

Further the Court stated that, there is no reference in the FIR, to this infraction, on the part of the petitioner,  in collecting samples through the RT-PCR app, having caused or obstruction, annoyance or injury, or risk of obstruction, annoyance, or injury, to any person lawfully employed, or having caused, or attempted to cause, danger to human life, health or safety, or riot or affray.

Disobedience of an order, promulgated by a public servant, is, clearly, by itself not an offence under Section 188 of the IPC.

Consequently, it has to be held that the allegations in the FIR do not disclose the commission of a cognizable offence.

An FIR need not be an encyclopaedia or contain, within it, all minute factual details, regarding the incident, which is alleged to amount to an offence. Even so, the facts, stated in the FIR, and the allegations contained therein, must disclose the commission of a cognizable offence. Else, the very registration of the FIR would be unjustified.

In Court’s opinion, the impugned FIR did not allege any impediment to human health, or loss to human life, having resulted as a consequence of the default, on the part of the petitioner, in complying with the requirement of using the RT-PCR App.

Court is aware of the fact that Regulation 18 of the 2020 COVID Regulations contains a warning, to the effect that any person/institution/organization found violating any provision of the said Regulations would be deemed to have committed an offence punishable under Section 188 of the IPC.

In the present case, violation, by the petitioner is alleged, not directly of the 2020 COVID Regulations, but of governmental Office Orders, issued thereunder.

“…criminal process cannot be initiated, against an institution, merely on the ground that such violation has taken place, sans any allegation that it has led to one of the consequences statutorily engrafted in Section 188 of the IPC.”

Thus, in view of the above terms, an ad-interim injunction, restraining the Police from investigating, consequent in the impugned FIR seems to be justified.

Petitioner-hospital is a frontliner in the war against COVID-19 pandemic.

Balance of convenience would also be in favour of interdicting, for the present, any investigation, consequent to the impugned FIR. As and when the present petition is finally decided, if it is found that no case, for quashing the impugned FIR, or the investigation following thereupon, is made out, the Police could always resume its investigation.

Hence, the stay application was allowed. [Ganga Ram Hospital v. State, 2020 SCC OnLine Del 662 , decided on 22-06-2020]

COVID 19Hot Off The PressNews

The National Human Rights Commission has taken suo motu cognizance of media reports that fifty-seven minor girls have tested positive for the novel coronavirus at a state-run children’s Shelter Home in Kanpur district of Uttar Pradesh. Five of them have been found pregnant and one HIV positive. Reportedly, the girls were exhibiting symptoms of COVID 19 for some time but there was delay in taking them to the hospital for tests.

The Commission has observed that the contents of the media report, if true, are enough to prima facie believe that the public servants have failed to provide safeguard to the victim girls and, apparently, were negligent in protecting their right to life, liberty and dignity in the custody of the State .

Accordingly, it has issued a notice to the Chief Secretary, Government of Uttar Pradesh calling for a detailed report in the matter including health status of all the girls, their medical treatment and counselling provided to the girls by the authorities. The State Government is expected to order an inquiry into the matter from an independent agency. It is also expected to review health status of the female inmates lodged in shelter homes, across the State and issue suitable directives that such incidents do not recur in future.

A notice has also been issued to the Director General of Police, Uttar Pradesh calling for a report regarding registration of FIR in this matter and status of investigation. The response is expected within 4 weeks from both the authorities.

According to the media reports, the girls at the shelter home had been exhibiting Covid-19 symptoms for a few days, and the local administration had informed the State health department about it only last Friday on 19th June,2020.

Reportedly, the Kanpur District Magistrate has said that there were seven pregnant girls living in the home, and five of them tested positive for Covid-19. He has said that these girls were already pregnant when they were brought to the shelter home on the recommendation of the Child Welfare committees in different districts, and investigation under the Protection of Children from Sexual Offences Act is going on in all these cases.

The Senior Superintendent of Police, Kanpur has reportedly stated that two of the girls had come from Agra and Kannauj in December 2019. The SSP said all the girls found Covid-positive are being treated at the Kanpur Medical College. The shelter home has been sealed, and its staff quarantined.


NHRC

[Press Release dt. 22-06-2020]

Hot Off The PressNews

The Editors Guild of India is deeply concerned over the registration of a First Information Report (FIR) at Varanasi’s Ramnagar police station against Scroll Executive Editor Supriya Sharma and its Chief Editor over a report published from Varanasi’s Domari village. The FIR was filed on June 13 under Sections 269 (negligent act likely to spread infection of disease danger­ous to life) and 501 (printing or engraving matter known to be defamatory) of the Indian Penal Code (IPC) as also under the Scheduled Castes and Tribes (Prevention of Atrocities) Act (SC/ST Act). This followed a complaint by Mala Devi, who was quoted by Supriya Sharma in her report, published on Scroll.in on June 8.

The Guild has also noted the reported statement from Scroll.in saying that it stood by the article in question. The statement also clarified that it had interviewed Mala Devi in Domari village, Varanasi, Uttar Pradesh, on June 5, 2020 and that her statements had been reported accurately in the article titled, “In Varanasi village adopted by Prime Minister Modi, people went hungry during the lockdown.”

In view of the categorical statement from Scroll.in, the Guild is of the view that the use of the various Sections of the IPC and the SC/ST Act are an overreaction and will seriously undermine freedom of the media.

The use of criminal provisions of the law against journalists has now become an unhealthy and despicable trend that has no place in any vibrant democracy. It needs to be resisted as well as eliminated. The Guild respects all laws of the land as also the right of Mala Devi to defend herself against any acts of injustice. But it also finds the flagrant misuse of such laws unjustifiable and reprehensible. Worse, the increasing frequency of such misuse of laws by the authorities is tantamount to shooting the messenger and destroying a key pillar of India’s democracy.


Editors Guild of India

Statement Issued dt. 19-06-2020

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., while addressing a petition with regard to release of Tablighis, stated that,

Covid-19 should teach us to care for each other rather than use the arsenal of law.

Petitioners who are foreign nationals were arrested by respondent police on the ground that they had engaged in religious activities in breach of visa conditions.

They defied COVID-19 lockdown norms as were imposed by the Government.

In the norms, religious places were ordered for closure, yet the petitioners stayed inside the mosques in groups by defying the norms laid down by the Government.

Thus, in view of the above stated reasons, FIRs were lodged against the petitioners for committing offences under Section 13 and 14 of the Foreigners Act, 2014, Sections 188, 269, 270, 271 and 278 of IPC, Section 3 of Epidemic Diseases Act 1897, Section 58(4), 134, 135 of the Tamil Nadu Public Health Act, 1939 and Section 51(b) of the Disaster Management Act, 2005.

There are accusations that its puritanical and revivalist project prepares the ground for islamic radicalization.

Court’s opinion on “Tablighis”

[Categorization can have serious pitfalls]

Bench recorded,

Prof. Upendra Baxi’s remark in his recent essay on “Exodus Constitutionalism” published by The India Forum that “there is, also, no such thing as ‘migrants’ but only persons and groups with distinctively (and often disturbingly) different needs and abilities…”

The above stated helped the Court to see the petitioners as “30 individuals” instead of collectively thingifying them as “Tablighis”.

Justicing has to be an individualized exercise.

Further the Court added that, there are scores of foreign Tablighis who are presently in detention. They hail from different countries. Some of them are women. Quite a few are senior citizens. They are normal human beings. They are now stuck in alien surroundings.

The petitioners came to India propelled by a sense of religious idealism. But their mission went awry.

The stated petitioners are eager to return back to their families and are also willing to admit through affidavits that they had violated the visa conditions and were willing to undertake that they will not enter India for the next ten years.

Entitled to bail?

Offences which the petitioners are alleged to have committed are not akin to those offences for which there are limitations for grant of bail.

The Bench states that there cannot be any objection for granting bail to the petitioners.

Continued incarceration of the petitioners will not serve any purpose. Since the petitioners are foreigners, it would obviously be difficult for them to arrange local sureties.

Thus, petitioners shall be released on their own bond.

Right to return to native country

Bench stated that the petitioners had come to India to serve the cause of their religion. Circumstances suddenly turned adverse and landed them in prison. They have spent more than 70 days in what are truly difficult conditions.

Merely because the petitioners have contravened the visa conditions, they cannot be seen as criminals.

Court feeling sensitive to the petitioners’ misery in the present COVID-19 times, posed a question, whether it is acting beyond jurisdiction?

To the above, bench stated,

The Hon’ble Chief Justice has allotted the subject of Criminal Original Petition-Bail, Anticipatory Bail Petitions, Criminal Appeal and Criminal Revision Petitions to be dealt with by me. But, in view of my being a Judge of the High Court, I certainly have the inherent power to make such orders as may be necessary to secure the ends of justice.

Failure to respond to the petitioners’ existential horror would amount to judicial abdication.

Of course, the petitioners having violated the visa conditions cannot demand that they must be allowed to return as a matter of right. But then, the authorities cannot arbitrarily deny the said request.

Unjust, Unreasonable and Unfair

Petitioners are willing to bear the cost of transportation. They will coordinate with their embassies and consulates and arrange their return. All that the respondents need to do is to play a facilitatory role. Instead of doing so, if the respondents insist on detaining the petitioners and prosecuting them, it can only be characterized as unreasonable, unjust and unfair.

Thus, in view of the above, Court issues following directions:

  • Petitioners are granted bail.
  • After the petitioners are released on bail, it is open to the authorities to require the petitioners to stay at the special camp earmarked under Section 3(2)(e) r/w 4(2) of the Foreigners Act, 1946.
  • If the petitioners execute appropriate affidavits expressing their regret for having violated the visa conditions, proceedings against them shall be concluded by filing final reports recording the same.
  • It is for the petitioners to coordinate with their respective embassies/consulates and arrange their return to their respective nations. Government of Tamil Nadu or the Government of India will only play a facilitatory role.

[Md Kameual Islam v. State, 2020 SCC OnLine Mad 1171 , decided on 12-06-2020]

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., stayed the investigation against the television anchor and journalist Vinod Dua, alleged for spreading rumours and misinformation about the sensitive issue of Delhi Riots and causing hatred and ill-will between the different communities through his web cast on You Tube.

Who filed the present petition?

The petition was filed by Vinod Dua — Journalist and Television Anchor praying for quashing of an FIR registered under Sections 290/505/505(2) of the Penal Code, 1860. Petitioner sought investigation into the said registration of the FIR, as also for violation of his fundamental rights.

Genesis of the matter

Petitioner has a webcast on HW News Network on the YouTube Platform named “The Vinod Dua Show”.

Petitioner’s Stand

Senior Counsel, Vikas Singh submitted that the webcast was made on 11.03.2020 and ran for approximately 12 minutes, comprising two parts, each addressing a different current affairs issue. About 08 minutes of the webcast was in relation to the politics of government formation in the State of Madhya Pradesh in the context of some recent happenings.

As per the allegations contained in FIR, the above mentioned part of the webcast is not subject matter of the FIR.

Second part of about 4 minutes was in relation to the riots that happened in the North-East part of Delhi in February, 2020 and the complainant’s grievance appears to be with what was said in relation to the riots; and that was the subject matter of the complaint made and the FIR registered against the petitioner.

Petitioner’s Counsel relied on the following Supreme Court Judgments:

FIR

FIR records that the petitioner is spreading rumours and misinformation about the sensitive issue of Delhi Riots, which are resulting into causing hatred and ill-will between the different communities.

Respondent’s Stand

Counsel, Piyush Singhal on behalf of respondent 1 submitted that the notice has been issued to YouTube and petitioner has so far not even called for investigation.

Respondent 2’s counsel’s Anil Soni, Ajay Digpaul and Satya Ranjan Swain argued against granting interim relief to the petitioner on the following basis:

  • ingredients of Section 505(2) IPC are made-out on the basis of the allegations in the complaint and in the FIR
  • narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, amounts to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes, which is an offence punishable under Section 505(2), and which is both cognizable and non-bailable;
  • What is stated in the offending narration is merely the petitioner’s ‘opinion’ and not based on any ‘fact’, and that only rumour has been fostered to create enmity;
  • there is no legal basis or precedent for staying investigation or proceedings in an FIR

On Prima Facie view, following aspects emerge:

  • Substantial unexplained delay in filing of the complaint and registration of the FIR: Delay of almost 3 months
  • Petitioner learned about the registration of FIR through social media
  • what the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast ; and to that extent no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR
  • there is no allegation that any adverse consequences, in terms of enmity, hatred or ill-will, much less any violence or breach of peace, occurred as a consequence of the webcast
  • ingredients and gravamen of the offence under section 505(2) do not seem to be made-out as required per Manzar Sayeed Khan Judgment.

Thus, it prima facie appears that the registration of the FIR requires to be examined on the touchstone of the law.

Though petitioner has already been granted an interim protection by Additional Sessions Judge, this Court is of the view that further investigation or proceedings pursuant to the FIR would cause unwarranted and unjustified harassment to the petitioner.

Investigation in the matter arising from the subject FIR is stayed, till the next date of hearing.

Matter to be listed on 23-07-2020. [Vinod Dua v. State (Govt. of NCT of Delhi), 2020 SCC OnLine Del 644 , decided on 10-06-2020]

Hot Off The PressNews

Editors Guild of India is concerned by growing tendency among police in various states to take cognisance of frivolous charges against journalists and convert them into an FIR

The Editors Guild of India is deeply concerned by the growing tendency among police in various states to take cognisance of frivolous charges against journalists and convert them into a First Information Report (FIR).

The latest instance is of the Delhi Police’s FIR against veteran journalist Vinod Dua, based on a complaint by Naveen Kumar, who has been identified as a spokesperson of the Bharatiya Janata Party. The accusations are a brazen attack on his right to free speech and fair comment. An FIR based on this is an instrument of harassment setting off a process that is itself a punishment.

The Guild unequivocally condemns this practice and urges the police to respect Constitutionally guaranteed freedoms rather than behave in a manner that raises questions on its independence.


Editors Guild of India

[Statement dt. 08-06-2020]

Case BriefsSupreme Court

Supreme Court: The bench Dr DY Chandrachud and MR Shah, JJ has refused to transfer to CBI the criminal cases lodged against Republic TV Editor in-Chief Arnab Goswami for alleged defamatory news show telecast on April 21 in connection with the Palghar mob-lynching case. It also quashed all FIRs against Arnab Goswami except one which was filed in Nagpur and which has been transferred to Mumbai via order dated 24.04.2020. The Court, however, held,

“The petitioner would be at liberty to pursue such remedies as are available in law under the CrPC before the competent forum. Any such application shall be considered on its own merits by the competent court”

The Court further directed that the protection granted to the Goswami on 24 April 2020 against coercive steps be extended for a period of three weeks to enable him to pursue the remedies available in law. It also asked the CP, Mumbai to consider the request of Goswami for the provision of security at his residence and business establishment in Mumbai, in accordance with law.

“Based on the threat perception, police protection may be provided if it is considered appropriate and for the period during which the threat perception continues.”

Factual Background

Goswami had attacked Sonia Gandhi in one of his shows on Republic TV and had claimed that she had orchestrated the Palghar lynching in Maharashtra, where 3 Hindu religious leaders, who were on their way to Silvassa on April 16, were lynched by local residents on the suspicion that they were thieves. He questioned Sonia Gandhi’s silence over the incident and asked if she would have been quiet if Muslim or Christian religious leaders would have been lynched instead of Hindu leaders.

After the incident was given a communal angle, Maharashtra Home Minister Anil Deshmukh shared the list of 101 people taken into custody in connection with the lynching, and said none of those arrested were Muslim.Goswami later attacked Congress for orchestrating an attack on him and his wife in Mumbai after they were returning from work.

On refusing to transfer the matter to CBI

On the scope of power to transfer the case to CBI, the  no inflexible guidelines are laid down, the notion that such a transfer is an “extraordinary power” to be used “sparingly” and “in exceptional circumstances” comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation.

“An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency.”

The Court considered the fact that Goswami had requested for and consented to the transfer of the investigation of the FIR from the Police Station Sadar, District Nagpur City to the NM Joshi Marg Police Station in Mumbai. He did so because an earlier FIR lodged by him at that police station was under investigation. The Court was irked by the fact that Goswami now sought to preempt an investigation by the Mumbai police on untenable grounds.

Grounds on which transfer was sought

    1. The length of the interrogation which took place on 27 April 2020;
    2. The nature of the inquiries which were addressed to the Petitioner and the CFO and the questions addressed during interrogation;
    3. The allegations leveled by the petitioner against the failure of the State government to adequately probe the incident at Palghar involving an alleged lynching of two persons in the presence of police and forest department personnel;
    4. Allegations which have been made by the petitioner on 28 April 2020 in regard to CP, Mumbai; and
    5. Tweets on the social media by activists of the INC and the interview by the complainant to a representative of R Bharat.

Noticing that as long as the investigation does not violate any provision of law, the investigation agency is vested with the discretion in directing the course of investigation, which includes determining the nature of the questions and the manner of interrogation, the Court said,

“The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation”

It was noticed that though an individual under investigation has a legitimate expectation of a fair process which accords with law,

“The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI.”

On quashment of all but one FIR

The Court stated that the filing of multiple FIRs arising out of the same telecast of the show hosted by the petitioner is an abuse of the process and impermissible. Hence, stating that it has not gone into the merits of any of the FIRs, the Court directed,

“No other FIR or, as the case may be, complaint shall be initiated or pursued in any other forum in respect of the same cause of action emanating from the broadcast on 21 April 2020 by the petitioner on R Bharat.”

It, further, clarified that any other FIRs or complaints in respect of the same cause of action emanating from the broadcast on 21 April 2020, other than the FIRs or complaints quashed by the Court, are also not maintainable.

On non-quashment of FIR transferred to Mumbai from Nagpur

The Court noticed that the FIR which is now under investigation at the NM Joshi Marg Police Station in Mumbai does not and cannot cover any alleged act of criminal defamation.

It, hence, said that it would be inappropriate for the court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR under investigation at the NM Joshi Marg Police Station in Mumbai considering that the checks and balances to ensure the protection of the Goswami’s liberty are governed by the CrPC.

It further took note of the fact that despite the liberty being granted to Goswami on 24 April 2020, he did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. Stating that Goswami has an equally efficacious remedy available before the High Court, the Court said that he must be relegated to the pursuit of the remedies available under the CrPC.

It, however, clarified,

“We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court.”

[Arnab Ranjan Goswami v. Union of India, 2020 SCC OnLine SC 462 , decided on 19.05.2020]


Also read: 

SC grants 3 weeks protection from arrest to Arnab Goswami; stays all but one FIR

Verdict reserved; Goswami’s interim protection extended till the delivery of judgment

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has reserved it’s judgment in the petition filed by Republic TV editor Arnab Goswami, challenging the FIRs registered against him in various parts of the country for alleged defamation of Congress President Sonia Gandhi. While doing so, it directed,

“Until the judgment is pronounced by this Court, the protection which was granted to the petitioner in paragraph 13(iv) of the order dated 24 April 2020 shall continue to remain in operation.”

On April 24, 2020, the Court had granted 3 weeks of interim protection and no coercive action against the petitioner, Arnab Goswami and had further directed,

“For a period of three weeks, the petitioner shall be protected against any coercive steps arising out of and in relation to the above FIR arising out of the telecast which took place on 21 April 2020.”

Resultantly, the Court had stayed all FIRs against Arnab Goswami except one which was filed in Nagpur and which has now been transferred to Mumbai

Factual background

Goswami had attacked Sonia Gandhi in one of his shows on Republic TV and had claimed that she had orchestrated the Palghar lynching in Maharashtra, where 3 Hindu religious leaders, who were on their way to Silvassa on April 16, were lynched by local residents on the suspicion that they were thieves. He questioned Sonia Gandhi’s silence over the incident and asked if she would have been quite if Muslim or Christian religious leaders would have been lynched instead of Hindu leaders.

After the incident was given a communal angle, Maharashtra Home Minister Anil Deshmukh shared the list of 101 people taken into custody in connection with the lynching, and said none of those arrested were Muslim. Goswami later attacked Congress for orchestrating an attack on him and his wife in Mumbai after they were returning from work.

[Arnab Ranjan Goswami v. Union of India, 2020 SCC OnLine SC 450 , order dated 11.05.2020]

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and Sanjiv Khanna, JJ, on Friday, granted protection to activist lawyer Prashant Bhushan from any coercive action in an FIR lodged against him at Rajkot in Gujarat for allegedly hurting religious sentiments of the Hindus. In the proceedings conducted through video conferencing, the Court issued notice to the Gujarat Police and listed Bhushan’s plea after two weeks.

“In the meantime, no coercive action be taken against the petitioner in First Information Report No. 11209052200180 lodged on 12th April 2020 under Sections 295A/505(1)(b), 34 and 120B of the IPC registered at the Police Station Bhaktinagar, Rajkot, Gujarat.

The FIR was lodged by former Army personnel Jaidev Rajnikant Joshi at Rajkot alleging that Bhushan hurt religious sentiments of Hindus by tweeting against re-telecast of the Ramayana and the Mahabharata serials on DD during the coronavirus lockdown in the country.

While granting interim relief and protection to Bhushan, the apex court said,

“anybody can watch anything on TV” and questioned as to how one can ask people not to watch a particular programme.”

Senior advocate Dushyant Dave, appearing for Bhushan, sought quashing of the FIR lodged against the activist lawyer and sought interim protection against any coercive measure for the time being. He said he was not on the issue of as to what people should watch on TV, but was arguing against registration of the FIR.

In his complaint, Joshi had accused Bhushan of using word ‘opium’ for Ramayana and Mahabharata in a tweet on March 28 which hurt the sentiments of many Hindu people.

Bhushan had tweeted

“As crores starve & walk hundreds of miles home due to forced lockdown, our heartless ministers celebrate consuming & feeding the opium of Ramayana & Mahabharata to the people.”

Bhushan had filed the plea on Thursday and it was listed a day after the bench.

[Prashant Bhushan v. Jaidev Rajnikant Joshi, Writ Petition(s)(Criminal) No(s). 131/2020, order dated 01.05.2020]

(With inputs from PTI)

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and V.G. Bisht, JJ. refused to quash the FIR and criminal proceedings against the petitioner, a rape accused, despite settlement between the petitioner and the victim.

The matter related to alleged sexual assault and exploitation of the victim by the petitioner. The victim was a TV actress working in Delhi who was lured by the petitioner, a restaurant owner from Mumbai. It was alleged that the petitioner made promises of marriage to the victim and called her from Delhi to Mumbai. He also said he will get work for her. The petitioner arranged for the victim’s accommodation in Mumbai and it is alleged that on the pretext of marriage, the petitioner made physical relation with the victim against her will. It was also alleged that the victim got pregnant but had to undergo abortion despite resistance as the petitioner allegedly put a gun to her head and forced her to abort the pregnancy. Subsequently, the victim came to know that the petitioner is already married. After this, she filed an FIR against the petitioner and a criminal case was registered.

The petitioner also filed a cross complaint against the victim addressed to the Police Commissioner, Mumbai, in which the victim filed an affidavit in reply that as per advice of their elders, the petitioner and the victim have decided to amicably settle the dispute between them and move on in their careers.

Vishal Kanade and Satyaprakash Sharma instructed by  Shakuntala Sharma counsel for the petitioner, and Abhinav Chandrachud instructed by Prem Kumar R. Pandey, counsel for the victim jointly submitted that the FIR as also the chargesheet against the petitioner may be quashed. Per contra, S.D. Shinde, the Additional Public Prosecutor vehemently opposed the quashing of FIR on the ground that the alleged offences are serious and heinous offences.      

Relying on the Supreme Court decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303 and State of M.P. v. Laxmi Narayan, (2019) 5 SCC 688, the High Court was of the opinion that the FIR and the chargesheet could not be quashed on the basis of alleged settlement and consent terms arrived at between the parties for the following reasons:

(i) The alleged offences are serious in nature and in particular, offence punishable under Section 376 of the IPC is heinous.

(ii) The petitioner told the victim that he was unmarried and wished to marry the victim, when in fact he was already married.

(iii) The petitioner sexually abused the victim by promising her that he will give her a job in the film industry.

(iv) There is serious allegation that the victim conceived from the petitioner, and he compelled the victim for abortion at the gunpoint.

The petitioner than advanced arguments on merits. He submitted that there was inordinate delay in lodging the FIR. Further, the victim was a consenting party and therefore the ingredients of Section 375 IPC were not attracted. On this point also, the Court declined to quash the FIR against the petitioner as it thought fit that the merits could not be dealt with in a summary manner and need to go to trial.

The Court observed that: “It prima facie appears that the consent given by the 2nd respondent [victim] for quashing the FIR and charge-sheet is not free from coercion, inasmuch as, it is stated in the said affidavit filed by the 2nd respondent that the petitioner’s wife also filed complaint against the 2nd respondent for the offence punishable under Section 452 IPC.”

It was further observed: “The alleged offences are not individual in nature and quashing of the impugned FIR, chargesheet and pending proceedings on the basis of alleged settlement or on merits is not possible since the alleged offences are not individual in nature and outcome of present proceedings will have impact on Society.”

As far as the issue of inordinate delay in lodging the FIR was concerned, the Court said that adjudication of issue of delay is a mixed question of fact and law and therefore that will have to be considered at the trial.

The petition to quash the FIR and the chargesheet was accordingly dismissed. [Chirag Sundarlal Gupta v. State of Maharashtra, 2020 SCC OnLine Bom 627, decided on 13-3-2020] 

Case BriefsSupreme Court

Supreme Court: In the petition filed by Republic TV editor Arnab Goswami, challenging the FIRs registered against him in various parts of the country for alleged defamation of Congress President Sonia Gandhi, the bench of Dr. DY Chandrachud and MR Shah, JJ has granted 3 weeks of interim protection and no coercive action against the petitioner, Arnab Goswami. He can move an anticipatory bail application in three weeks

“For a period of three weeks, the petitioner shall be protected against any coercive steps arising out of and in relation to the above FIR arising out of the telecast which took place on 21 April 2020.”

Resultantly, the Court stayed all FIRs against Arnab Goswami except one which was filed in Nagpur and which has now been transferred to Mumbai.

“further proceedings shall remain stayed, pending further orders of this Court, in respect of any other FIR or, as the case may be, criminal complaint which has been filed or which may be filed hereafter, with respect to the same incident”

Directing Mumbai Police Commissioner to provide security to Arnab Goswami and Republic TV, the Court said,

“In addition to the personal security provided to the petitioner, if a request is made by the petitioner to the Commissioner of Police, Mumbai for providing adequate security at the residence of the petitioner or at the studio of Republic TV in Mumbai, such a request shall be expeditiously considered and, based on the threat perception, police protection shall be provided, if considered appropriate and for the period during which the threat perception continues.”

The Court kept the following considerations kept in mind while granting the abovementioned relief to Arnab Goswami:

  • The need to ensure that the criminal process does not assume the character of a vexatious exercise by the institution of multifarious complaints founded on the same cause in multiple States;
  • The need for the law to protect journalistic freedom within the ambit of Article 19(1)(a) of the Constitution;
  • The requirement that recourse be taken to the remedies available to every citizen in accordance with the Code of Criminal Procedure 1973;
  • Ensuring that in order to enable the citizen to pursue legal remedies, a protection of personal liberty against coercive steps be granted for a limited duration in the meantime;
  • The investigation of an FIR should be allowed to take place in accordance with law without this Court deploying its jurisdiction under Article 32 to obstruct the due process of law; and
  • Assuaging the apprehension of the petitioner of 7 a threat to his safety and the safety of his business establishment.

During the hearing, Senior Advocate Kapil Sibal, appearing for Maharashtra, told the Court

“You are creating communal violence by citing such statements, if FIRs have been registered, how can you quash it at this stage? Let the people be investigated, what is wrong in it?”

Advocate Vivek Tankha, appearing for Chhattisgarh Government, sought for a restraint order on Arnab Goswami from making such statements.

Justice Chandrachud said,

“Speaking for myself I believe there should be no restraint on the media. I am averse to imposing any restrictions on media”.

Goswami had attacked Sonia Gandhi in one of his shows on Republic TV and had claimed that she had orchestrated the Palghar lynching in Maharashtra, where 3 Hindu religious leaders, who were on their way to Silvassa on April 16, were lynched by local residents on the suspicion that they were thieves. He questioned Sonia Gandhi’s silence over the incident and asked if she would have been quite if Muslim or Christian religious leaders would have been lynched instead of Hindu leaders.

After the incident was given a communal angle, Maharashtra Home Minister Anil Deshmukh shared the list of 101 people taken into custody in connection with the lynching, and said none of those arrested were MuslimGoswami later attacked Congress for orchestrating an attack on him and his wife in Mumbai after they were returning from work.

[Arnab Ranjan Goswami v. Union of India, WRIT PETITION(CRIMINAL) Diary No(s).11006/2020, order dated 24.04.2020]