Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by Aakash Choudhary (‘petitioner’) seeking anticipatory bail, as FIR was registered against him and Gaurav Singh /co-accused under Sections 308, 323, 341 read with 34 Penal Code, 1860 (‘IPC’), Justice Talwant Singh granted bail on the ground that the CCTV footage, prima facie does not support the allegations mentioned in the FIR, as far as the present applicants are concerned keeping in view that the applicants are ready to join the investigation.

The applicant claimed that the present FIR is a counter blast to the applicant’s FIR registered at PS Sarita Vihar, Delhi, registered under the influence of one Mr. Brahm Singh, who is the aggressor and husband of a local municipal councilor.

The Court opined that that the only reliable piece of evidence, which gives a clear picture of the incident is the CCTV footage of the entire incident, which was captured in a CCTV installed near the ground.

The Court noted that the altercation started on a very minor issue when the complainant stopped a tractor trolly for ferrying certain material to the park where they were going to host a Kabaddi tournament. On this minor issue, the incident escalated to a free for all fight, which resulted in injuries on both sides and rival groups have lodged the FIRs against other groups, alleging the facts, which best suited to them, without realizing that the entire incident was captured in a CCTV camera.

The Court further noted that the investigating agency is required to investigate the entire incident on the basis of scientific evidence, without relying upon exaggerated allegations made in both the FIRs and to conclude the investigation and take further action.

The Court directed the area DCP to ensure that an independent investigation is conducted into the incident and take steps as per law, without getting influenced by the stature or political background of any of the parties and to supervise the progress of the investigation at regular intervals and review the progress made so far.

But the Court made a very interesting observation while dealing with this matter. The Court remarked

“It has been noticed that in the bail applications, apart from stating the facts, elaborate extracts from judgements have been made part of the pleadings. The learned drafting counsel is requested to adhere to the basic principles of pleading and state only facts and the legal provisions applicable along with the grounds on which the bail has been sought. As far as the citations are concerned, the counsels are at liberty to cite all relevant judgements at the time of the arguments. There is no need to attach copies of the judgements with the pleadings, which results in making the pleadings too bulky.”

The Court granted anticipatory bail, subject to the following conditions:

(i) They shall join the investigation as and when called by the IO and fully cooperate in the same.

(ii) They shall not contact, coerce or threaten the complainant and the witnesses in the present case;

(iii) They shall share their Mobile Numbers with the IO within one week of the date of this order and keep the mobile location on at all times;

(iv) They shall not leave the country without permission from the learned Trial Court.

[Aakash Choudhary v. The State of NCT of Delhi, Bail Application No. 2479 of 2022, decided on 15-09-2022]


Advocates who appeared in this case :

For petitioner- Mr. Ramesh Gupta, Sr. Advocate with Mr. Ravi Kumar, Mr. Rohit Pratap Singh, Mr. Gagandeep and Mr. Shailender Singh, Advocates

For State- Mr. N.S. Bajwa, APP. Mr. Kirti Uppal, Sr. Adv. with Mr. Himanshu Bidhuri, Ms. Riya Gulati and Mr. Chandan Sinha, Advocates for R-2.


*Arunima Bose, Editorial Assistant has put this report together.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant applications seeking to set aside the orders passed by the Special Judge (Designated Court for UAPA cases under NIA Act) Anantnag, granting bail to the respondents; the Ali Mohammad Magrey and Md. Akram Chowdhary, JJ., observed that offering of funeral prayers of a killed militant by the public at large, even if it was done at the instance of the respondents who are the elderly people of their village, cannot be construed to be anti-national activity of such a magnitude so as to deprive them of their personal liberty as guaranteed under Art. 21 of the Constitution.

Facts and Legal Trajectory of the Case: On 20.11.2021, Police Station Devsar received an information through reliable sources that Mudasir Jamal Wagay, who was an active militant, got killed during encounter with the security forces. After the news spread in the village, a person Mohammad Yousuf Ganai called forth the villagers to perform “Gaibana Namazi-Jinaza” (funeral prayers in absentia) for the slain militant.

Upon Yousouf Ganai’s call, the Imam of Masjid Sharif, Javid Ahmad Shah offered the prayers and during Jinaza the sentiments of the persons who were part of the said assembly, allegedly got incited and there were calls to continue struggle till freedom.

Based on this information, a case was registered at Police Station Devsar and the investigation was set in motion. During the investigation, ten accused persons including respondents were found involved in the case who were accordingly arrested for their involvement in the commission of offence under the provisions of Unlawful Activities (Prevention) Act, 1967.

The Special Judge of the Designated Court did not express any opinion as to the merits of the case and while keeping in mind the nature of accusations, severity of punishment, the larger mandate of Art. 21 and reformative theory of punishment, granted bail to the respondents.

Observations and Decision: Perusing the facts of the case, the Division Bench noted that the legislative policy under Section 43-D (5) of UA(P) Act is that no person accused of an offence punishable under Chapters IV and VI of the UAPA shall be released on bail, if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Both the Chapters deal with the accusation vis-a-vis terrorist activities.

The Bench referred to Union of India v. K.A. Najeeb, (2021) 3 SCC 713, wherein it was observed that unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre­condition under the UAPA. Instead, Section 43­-D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well­ settled considerations like gravity of the offence, possibility of tampering with evidence etc.

The Court pointed out that personal liberty is the most precious right guaranteed under the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law.

It was further observed by the Court that personal liberty may be curtailed where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and adduce evidence in his defense.

With the above-stated observations, the Division Bench noted that nothing incriminating has been found against the respondents during investigations, thus the Designated Court was right in its observations made in the impugned order granting bail to the respondent and the order does not need to be interfered with, by the High Court. “No individual can be deprived of his fundamental right of liberty guaranteed under Art. 21 of Constitution”.

[Union Territory of J&K v. Javid Ahmad Shah, 2022 SCC OnLine J&K 714, decided on 01-09-2022]


Advocates who appeared in this case :

M.A.Chashoo, AAG, Advocate, for the Appellant;

None, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Sanjay Dhar, J. dismissed a petition which was filed challenging FIR registered under Sections 153, 353 Ranbir Penal Code, 1989 and 13 of Unlawful Activities (Prevention) Act, 1967 (ULA(P) Act).

Petitioner was working as Assistant Professor, Geography, at Government Degree College and it was averred that the petitioner is an RTI activist and has filed many RTI applications for advancing the interests of the society so that public funds are utilized in a better manner. In January, 2017 he had filed a writ petition before the High Court calling into question the illegal extraction of minerals wherein an interim direction was passed by this Court and as a consequence of this, District Magistrate, Kulgam, asked Principal, Government Degree College, Kulgam, to enquire into the activities of the petitioner and in the report nothing adverse was found against the him. It was further averred that the petitioner filed an RTI application seeking information regarding recruitment of Rahbar-e-Khel in the year 2018. According to the petitioner, all the aforesaid activities irked the respondents, as a consequence whereof, the impugned FIR came to be lodged against him.

Respondents, on the other hand, submitted that the petitioner was indulging in criminal activities and he has been misusing and abusing the freedom of expression by taking aid of social media. According to respondents, the activities of the petitioner have the effect of motivating the students of the college to disrupt peace and tranquility in the area as he is provoking them to indulge in violence against the State Administration.

The Court, after perusing the case diary, noted that the respondents recorded statements of the witnesses under Section 161 of the Criminal Procedure Code, 1973 (CrPC) and they have also seized the video clips which are alleged to have been uploaded by the petitioner on YouTube where he was trying to motivate the common people towards separatism and was provoking them against the police and security forces as also against district administration. Upon watching the video clips the Court found that in one video petitioner was seen conveying to his audience that the children of Kashmir are being oppressed by the security forces and the army. In yet another video clip, the petitioner was conveying that the army is hampering the movement of the people and it is obstructing the children from going to schools which has led to closure of schools. In yet another video clip, the petitioner was seen pleading cause relating to release of a person who was in custody for indulging in stone pelting and terrorist activities.

Consequently, keeping in mind the material collected by the investigating agency during the investigation of the case, the Court, prima facie, found that the petitioner was provoking or at least intending to provoke his audience to use force or violence against the institutions like the army, the police and the civil administration. promoting enmity between the people living in Kashmir and those living in other parts of the country.

The Court was of the opinion that what offences are exactly established or made out against the petitioner would be known only after the investigation is completed by the respondents and final report is laid before the competent court but at this stage of the investigation, it can safely be stated that the material collected by the investigating agency so far, does disclose commission of cognizable offences against the petitioner.

The Court, relying on Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, 2021 SCC Online SC 315, reiterated that the Supreme Court had clearly stated in this case that High Court should exercise its powers under Section 482 of the CrPC to quash the investigation in an FIR in exceptional circumstances because it is the statutory duty of an investigating agency to take the investigation into an FIR to its logical conclusion.

Thus, the Court dismissed the petition holding that instant case does not fall into the category of cases in which this Court would exercise its powers under Section 482 of the CrPC to quash the proceedings in the impugned FIR.

[Abdul Bari Naik v. State of J&K, 2022 SCC OnLine J&K 666, decided on 29-08-2022]


Advocates who appeared in this case :

P.S. Ahmad, Advocate, for the Petitioner;

Usman Gani, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an application filed by the applicant who is a UP Police official, charged under Section 302, 120-B and 34 Penal Code, 1860 (‘IPC') seeking regular bail on the ground that the applicant was granted interim bail and never misused his liberty, Rajnish Bhatnagar J. denied bail clarifying that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise. The Court also remarked “at the time of grant of interim bail to the petitioner, the merits of the case were not considered.”

The complainant, Ramesh Chand who is father of the deceased alleged that his son aged 25 years who was working as an LIC agent went to the house of Ajay Singh and his friend Sarvesh (‘bail applicant’) regarding policy on 19-07-2018 and went missing. An FIR was registered under Sections 364 and 34 Penal Code, 1860 (‘IPC'). The investigation was conducted and two were arrested, out of which the petitioner is employed in U.P. Police and his co-accused is employed in Reserve Police Forces (‘RPF'). The charges framed in the charge sheet were under Sections 302, 120-B and 34 IPC.

Thus, instant bail application was filed by the petitioner under Section 439 read with section 482 Criminal Procedure Code (‘CrPC').

Counsel for petitioner contended that the petitioner/accused who is on interim bail can be granted regular bail. The State, however, opposed the application by contending that the petitioner, despite being the member of a disciplined force, he, along with the co-accused have committed a heinous offence.

The Court, on perusing the evidence placed on record and examining the witnesses and their statements, noted that the allegations against the petitioner are grave and serious in nature and according to the prosecution, the petitioner who is employed in UP Police has killed and disposed of the body of deceased Prem Kumar aged around 25 years along with his co-accused one of whom namely Ajay Singh is also a constable in RPF.

The Court further noted that that grant of interim bail and grant of regular bail on merits are two different aspects and simply because the petitioner was on interim bail for a certain period of time does not entitle him to grant of regular bail when the facts of the case speak otherwise.

Placing reliance on Satish Jaggi v. State of Chhattisgarh, (2007) 11 SCC 195, the Court dismissed the bail application in view of the nature and gravity of the offence, its impact on society and severity of the punishment of the offence.

[Sarvesh Singh v. State NCT of Delhi, 2022 SCC OnLine Del 2651, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. Gopal Jha and Mr. Umesh Kumar Yadav, Advocates, for the Petitioner;

Mr. Raghuvinder Varma, APP for the State with Inspector Rahul Raushan, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: The appeals were filed by WhatsApp (‘Appellant’) and its parent company Facebook (‘Appellant’) challenging the jurisdiction of Competition Commission of India (‘respondent’) to direct investigation into the 2021 Terms of Service and Privacy Policy of the Appellant on the ground that it violates the provisions of the Competition Act, 2002, when the matters arising from the same issue is pending before Supreme Court. A Division Bench of Satish Chandra Sharma CJ., and Subramonium Prasad J., upheld the impugned judgment as well the direction of respondent as prima facie case was established and as there is no irreconcilable repugnancy between the jurisdiction of either of the authorities.

Brief Background

WhatsApp was originally governed by its own Terms and Privacy Policy of 2012, however after Facebook acquired WhatsApp in 2014, the policy got updated in 2016 (‘2016 Policy’). The 2016 policy informed WhatsApp users about the acquisition and how Facebook would use WhatsApp’s information for its advertisement and products giving a one-time opportunity to WhatsApp users to opt out of Facebook using their information that was shared over WhatsApp. However, users who joined WhatsApp after the 2016 Policy, were not offered this option. The policy was challenged, and the adjudication stands pending before the Supreme Court as we report it.

The policy got updated again in the year 2021 which was again challenged before Delhi high court and Supreme Court pending adjudication, as we report. CCI, thus taking Suo motu cognizance under Section 26(1) of Competition Commission Act, 2002, directed the Director-General, (‘CCI (DG)’) to conduct an investigation to examine the potential abuse of dominance exercised by both the Appellants under Section 4 of Competition Commission Act, 2002. Assailing this, a petition was filed which was rejected by the Single Judge and thus present appeals were filed primarily on the issue as to whether the CCI ought to wait till final adjudication of the issues which are pending before the Supreme Court.

Issue 1: Whether CCI should abstain from exercising its jurisdiction to maintain comity between decisions of different authorities on the same issues?

The issue is regarding overlapping jurisdictions of CCI and Constitutional Courts. Placing reliance on Competition Commission of India v. Bharti Airtel (2019) 2 SCC 521, the Court noted that while the Supreme Court is looking into whether the 2021 Policy is violative of the right to privacy under Article 21 or not, the investigation by CCI is confined to whether the 2021 Policy is in furtherance of the dominant position occupied by WhatsApp and institutes anti-competitive practices. The spheres of operation of both are vastly different. Neither this Court nor the Supreme Court are analyzing the 2021 Policy through the prism of competition law.

Scope and Ambit of Section 26 (1) Competition Act, 2002

Placing reliance on Competition Commission of India v. Steel Authority of India, (2010) 10 SCC 744, the Court noted that the jurisdiction of the CCI under Section 26(1) does not contemplate an adjudicatory function, but merely an administrative one. Thus, the function performed by the CCI under Section 26(1) Competition Act, 2002 would not be affected by the adjudication by the Supreme Court or the present Court while analyzing the potential violation of fundamental rights instigated by the 2021 Policy.

Will the principle of res-judicata apply?

The Court further noted that the 2021 Policy is a substantially modified version of the 2016 Policy inasmuch as the 2016 Policy had an “opt-out” option, which is absent from the 2021 Policy that places its users in a “take-it-or-leave-it” situation. It is the “opt-out” option that primarily led to CCI rendering its conclusion that the 2016 Policy did not violate the Competition Act, 2002. However, in the face of changed circumstances, considering the dominant position occupied by WhatsApp, the investigation proposed to be conducted by CCI does not warrant interference, and res judicata would, thus, not be applicable in the instant case.

Issue 2: Has CCI failed to discern a prima facie case that would entail a direction to the DG to investigate the alleged anti-competitive practices?

Placing reliance on Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, AIR 1960 SC 1352, the Court observed that a prima facie case need not be a case proved to the hilt, but a case which can be said to be established if the evidence which is led in support of the same were to be believed.

In order to reach a conclusion for this issue, it is important to discuss first whether or not the Appellants occupy a dominant position in the relevant geographical market and the relevant product market. Placing reliance on Harshita Chawla v. WhatsApp Inc., 2020 SCC OnLine CCI 32, the Court concluded that given its popularity and wide usage, WhatsApp seems to be dominant. Paragraph 33 of the impugned decision states details which are in stark violation of Section 4(2)(c) and (e) of the Competition Act, 2002. Thus, a prima facie case of violation of provisions of the Competition Act, 2002, has been made out against the Appellants herein that would require an investigation to be initiated by the DG.

Is Facebook a proper party?

The Court found merit in the submission of CCI that one of the key issues with the 2021 Policy is its propensity to share the data of its users with Facebook Inc., the parent company of WhatsApp. Solely for the reason that the policies itself do not emanate out of Facebook Inc., the Appellant cannot hide behind the fact that it is the direct and immediate beneficiary of the data sharing mechanism envisaged by the policies. Thus, Facebook is the entity from which the policy under challenge emanates thus making it proper to be a party to the proceedings.

Thus, the Court did not find it appropriate to scuttle the investigation at a nascent stage. However, it granted liberty to the applicant to take all such steps as required by it, in accordance with law, to impugn the CCI Order.

[WhatsApp LLC v. Competition Commission of India, 2022 SCC OnLine Del 2582, decided on 25-08-2022]


Advocates who appeared in this case :

For LPA 163/2021 & CM APPLs. 15908/2021, 16893/2021, 18800/2021, 18910/2021, 46058/2021, 46059/2021, 46655/2021

Counsel for WHATSAPP LLC: Mr. Harish Salve, Sr. Advocate with Mr. Tejas Karia, Mr. Shashank Mishra, Ms Supritha Prodaturi and Mr. Shashank Mishra, Advocates

For CCI: Mr. N. Venkataraman, ASG with Mr.V. Chandrashekara Bharathi, Ms.Amritha Chandramouli, Mr. S. Ram Narayan, Mr. Samar Bansal, Mr.Madhav Gupta, Mr. Vedant Kapur, Advocates for R-1. Ms Binsy Susan, Ms. Anjali Kumar, Mr. Shyamal Anand and Mr. Vishesh Sharma, Advocates for Meta Platforms Inc. Mr. Parag Tripathi, Sr. Advocate with Mr. Ajit Warrier, Mr. Yaman Verma, Mr. Swati Aggarwal and Ms. Mishika Bajpai, Advocates for Facebook India in CM APPL. 40334/2021.

For LPA 164/2021 & CM APPLs. 15931/2021, 18798/2021, 18912/2021, 40334/2021, 40335/2021, 46656/2021

Counsel for FACEBOOK INC: Mr. Mukul Rohatgi, Sr. Advocate with Ms. Sweta Shroff Chopra, Mr. Gauhar Mirza and Ms. Nitika Dwivedi, Advocates.

For CCI: Mr. Balbir Singh, ASG with Ms. Monica Benjamin, Ms. Anu Sura, Mr. Samar Bansal, Mr. Madhav Gupta, Mr. Vedant Kapur, Advocates for R-1 Mr. Varun Pathak, Mr. Mitali Daryani, Mr. Yash Karunakaran and Ms. Vani Kaushik, Advocates for R-2 Mr. Parag Tripathi, Sr. Advocate with Mr. Ajit Warrier, Mr. Yaman Verma and Ms. Mishika Bajpai, Advocates for Facebook India in CM APPL. 40334/2021.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: After the Technical Committee and the Overseeing Judge submitted their reports in the Pegasus Spyware case, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has listed the matter after four weeks for further hearing.

The Court had, on 27.10.2021, in Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985 appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.

On 18th  July 2021, a consortium of nearly journalistic organizations from around the world, including   one Indian organization, released the results of a long investigative effort indicating the alleged use of the Pegasus software on several private individuals. This investigative effort was based on a list of some   50,000 leaked numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus software. Initially, it was discovered that nearly 300 of these numbers belonged to Indians, many of whom are senior journalists, doctors, political persons, and even some Court staff. At the time of filing of the Writ Petitions, nearly 10 Indians’ devices were allegedly forensically   analyzed   to confirm the presence of the Pegasus software.

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, it eventually decided to step in after the subsequently filed petitions, as well as additional documents filed by others, brought on record certain materials that could not be brushed aside, such as the reports of reputed organizations like Citizen Lab and affidavits of experts.

Additionally, the sheer volume of cross-referenced and crossverified reports from various reputable news organizations across the world along with the reactions of foreign governments and legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may be exercised.

Pegasus| ‘National security cannot be the bugbear that the judiciary shies away from’. Here’s why the initially reluctant Supreme Court finally decided to interfere

[Manohar Lal Sharma v. Union of India, 2022 SCC OnLine SC 1085, order dated 25.08.2022]

For Petitioner(s): Mr. Kapil Sibal, Sr. Adv. Mr. C.U. Singh, Sr. Adv. Mr. Shadan Farasat, AOR Mr. Nizam Pasha, Adv. Ms. Vidusshi, Adv. Mr. Zubin, Adv. Mr. Shourya Dasgupta, Adv. Mr. Bharat Gupta, Adv. Ms. Tanvi Tuhina, Adv. Ms. Hrishika Jain, Adv. Mr. Dhruv Bhatnagar, Adv. Mr. Aman Naqvi, Adv. Mr. Arvind P. Datar, Sr. Adv. Mr. Prateek K Chadha, AOR Mr. Tanmay Singh, Adv. Ms. Anandita Mishra, Adv. Mr. Madhav Khurana, Adv. Ms. Natasha Maheshwari, Adv. Mr. Rahul Unnikrishnan, Adv. Ms. Radhika Dhanotia, Adv. Ms. Ayushi Rajput, Adv. Mr. Rakesh Dwivedi, Sr. Adv. Mr. Prateek K Chadha, AOR Ms. Vrinda Bhandari, Adv. Mr. Eklavya Dwivedi, Adv. Ms. Ayushi Rajput, Adv. Ms. Monika Dwivedi, Adv. Mr. Krishnesh Bapat, Adv. Ms. Radhika Dhanotia, Adv. Mr. Dinesh Dwivedi, Sr. Adv. Mr. Prateek Dwivedi, Adv. Mr. Nishant Singh, Adv. Mr. Prateek K Chadha, AOR Ms. Ayushi Rajput, Adv. Ms. Radhika Dhanotia, Adv. Ms. Vrinda Bhandari, Adv. Mr. Eklavya Dwivedi, Adv. Ms. Monika Dwivedi, Adv. Mr. Krishnesh Bapat, Adv. Mr. Tanmay Singh, Adv. Ms. Anandita Mishra, Adv. Mr. Madhav Khurana, Adv. Ms. Natasha Maheshwari, Adv. Mr. Rahul Unnikrishnan, Adv. Mr. Narendra Mishra, Adv. Mr. V.M. Eashwar, Adv. Mr. Abhimanyu Tewari, AOR Mr. Lzafeer Ahmad B. F., AOR Mr. Shyam Divan, Sr. Adv. Mr. Rahul Narayan, AOR Ms. Samiksha Godiyal, Adv. Ms. Ria Singh Sawney, Adv. Ms. Udayadita Banerjee, Adv. Mr. Govind Manoharan, Adv. Ms. Sugandha Yadav, Adv. Petitioner-in-person Ms. Resmitha R. Chandran, AOR Mr. Biju Joseph, Adv. Mr. Hardik Vashisht, Adv. Mr. Pramod P., Adv. Mr. Mishra Saurabh, AOR Mr. Colin Gonsalves, Sr.Adv. Mr. Sadiq Noor, Adv. Mr. Satya Mitra, AOR

For Respondent(s) Mr. Tushar Mehta, LD SG Mr. K.M. Nataraj, LD ASG Mr. Rajat Nair, Adv. Ms. Kanu Agrawal, Adv. Mr. Ankur Talwar, Adv. Ms. Deepabali Datta, Adv. Mr. Arvind Kumar Sharma, AOR Mr. M.K. Maroria, AOR Ms. Aishwarya Bhati, ASG Ms. Shagun Thakur, Adv. Ms. Poornima Singh, Adv. Mr. Manvendra Sing, Adv. Ms. Manisha Chava, Adv. Mr. Gurmeet Singh Makker, AOR Dr. Abhishek Manu Singhvi, Sr.Adv. Mr. Suhaan Mukerji, Adv. Mr. Amit Bhandari, Adv. Mr. Vishal Prasad, Adv. Mr. Abhishek Manchanda, Adv. Mr. Sayandeep Pahari, Adv. Mr. Tanmay Sinha, Adv. For M/S. Plr Chambers And Co., AOR Mr. Rakesh Dwivedi, Adv. Ms. Preetika Dwivedi, AOR Mr. Abhishek Mohanty, Adv. Mr. Milind Kumar, AOR Mr. Nishe Rajen Shonker, AOR Ms. Anu K.Joy, Adv. Mr. Alim Anvar, Adv. Mr. Rajiv Shankar Dvivedi, AOR Mr. Barun Sinha, Adv. Mr. Sushant Kumar Sarkar, Adv. Mr. Rishabh Jain, Adv. Ms. Arti Dwivedi, Adv. Mr. Ajay Pal, AOR Mr. Avijit Mani Tripathi, Adv. Mr. T.K. Nayak, Adv. Mr. Marbiang Khongwir, Adv.

Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. stayed the investigation in a matter which came up over an artist’s Facebook post containing intimate image of Lord Krishna and Radha.

The writ petitioner, an artist had posted a portrait of Lord Krishna, which had been displayed in the Christie’s, an auction house. The picture is a depiction of an intimate scene between Lord Krishna and Radha, influenced by Geet Govinda which an epic love poem of Jaya Deva. The petitioner contended that the Facebook post within a specified group of artists, namely, ‘Akiyader Adda’ could not be treated as an offence under Section 295A of the Penal Code, 1860 read with Section 67 of the Information Technology Act, 2000. It was submitted that the complaint did not disclose an offence. The complainant had alleged that the post may hurt religious sentiments and incite communal hatred.

The Court noted that the complaint prima facie does not disclose any cognizable offence. It has been legally settled that the provisions of Section 295A of the Penal Code would be attracted when there is an intention to deliberately hurt religious sentiments.

The registration of the FIR, in the prima facie view of the Court, amounted to curtailment of the right to freedom of speech under Article 19(1)(g) of the Constitution of India, and also the liberty of the petitioner. The court further pointed out that the complaint was filed on an apprehension that the post may hurt religious sentiments, although the said picture is available publicly at art galleries and in different illustrated and translated version of Geet Govinda.

Advocate appearing for the State respondents submitted that the FIR was lodged by the Cyber Crime Police Station and the same was forwarded by the Superintendent of Police, on the basis of the order of the Chief Metropolitan Magistrate, Calcutta.

The Court directed that the investigation shall remain stayed for a period of three months and the inspector-in-charge was asked to produce the order of the Metropolitan Magistrate, on the basis of which the investigation was started only after which the decision as to whether this writ petition shall be heard on the facts and law pleaded or the petitioner will be relegated to the appropriate forum under Section 482 of the Criminal Procedure Code, 1973 on perusal of the records to be produced by the investigating officer will be taken.

Matter to be taken up on 01-11-2022.

[Jayarshi Bhattacharya v. State of West Bengal, WPA 9658 of 2020, decided on 03-08-2022]


For petitioner: Advocate Bikash Ranjan Bhattacharya

For State: Advocates Lalit Mohan Mahata, Prasanta Behari Mahata


*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court– G Chandrasekharan, J. ordered further investigation into the case where a man died under suspicious circumstances and alleged negligence on the part of the Police and the Medical Authorities. The Court thus directed the State to pay compensation to the aggrieved family.

A writ petition was filed seeking issuance for further investigation by an independent agency regarding the suspicious death of the petitioner’s husband, N. Arumugam. The petition also seeks direction to the respondents to pay an exemplary compensation of Rs.25,000 to the petitioner, her three children and the aged father-in-law and mother-in-law who have alleged to been deprived of their means to livelihood due to the death of their husband.

The petitioner contended that after the death of the husband, a final report was filed closing the investigation as ‘charge abated.’ The petitioners also apprehended that her husband might have been hit by a heavy vehicle with a possible involvement of a VIP and her husband was deliberately shown as an accused in order to suppress the true manner in which he suffered injuries. The petitioners highlighted that no surgical intervention was made within due time.

Counsel for the petitioner relied on the judgement of Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, where it was held by the Supreme Court that the relief of monetary compensation as exemplary damages under Article 32 of the Constitution or Article 226 of the High Court is a remedy available in public law and is based on strict liability. Further reliance was placed on the judgement of Supreme Court in DK Basu v. State of West Bengal (1997) 1 SCC 416 where it was held that monetary or pecuniary compensation is an appropriate and effective remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants.

It was contended by the respondents that the petitioner’s husband was under the influence of alcohol. It was noted that though he was conscious, he was not able to speak due to his head injury. It was further contended by the respondent that the deceased was mainly responsible for the accident by drunken driving and therefore he was himself shown to be an accused.

Placing reliance on Harish Kumar Khurana v. Joginder Singh, (2021) 10 SCC 291, it was contended that the finding of medical negligence must be based on proper medical evidence on crucial medical aspects. Subsequent reliance was placed on the judgement of Ganesh Nayak v. V. Shamanna, 2022 SCC Online Kar 131 for the proposition that there must be a nexus between the procedure and death of the patient must be established for medical negligence.

The Court noted that the Police Department, especially the Police personnel serving in the Kudimangalam Police Station as well as the Doctors, Nurses and staff members attending the deceased N. Arumugam had violated the fundamental right of the deceased N. Arumugam for competent medical treatment. Therefore, the Court was of the view that the petitioner was entitled for compensation under public law remedy and a Writ of Mandamus could be issued for issuing directions to the first respondent to pay compensation.

The Court directed that there was a need to further investigate the case and relied on the judgement of Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685 where it was observed that the learned Magistrate can order further investigation if the same has been found to be tainted or it is necessary for achieving the ends of justice. Further reliance was placed on the case of Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 to observe that “fair and proper investigation” has dual purpose of ensuring that the investigation remains unbiased and is in accordance with the law.

For determining the scope of compensation, the Court relied on the judgement of National Insurance Company v. Pranay Sethi, (2017) SCC OnLine SC 1270, where the Court had adopted the procedure followed in Motor Vehicle Accident Cases for fixing the compensation and the compensation for the victim of motor vehicle accident was determined.

The Court directed further investigation into the case and directed the first respondent to pay compensation amount of Rs15,00,000 to the petitioner at 6% interest per annum.

[Muthulakshmi vs The Secretary to the Government of Tamil Nadu, 2022 SCC OnLine Mad 3751, decided on 20-7-2022]


Advocates who appeared in this case :

Mr. M. Purushothaman (In both W. Ps’), Advocate, for the Petitioner;

Mr. P. Kumaresan (In both W. Ps’) Additional Advocate General, for the RR 1, 3, 5 & 8;

Mr. Pratap (In both W. Ps’) Government Advocate, for the RR 2, 4, 6 & 7.


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: V Sivagnanam J. directed the State police to add the offences under Sections 417 and 420 Penal Code, 1860 (‘IPC') on allegations that the accused husband has deceived the complainant- ex-wife and made her to marry him, wrongfully displaying that he is competent to consummate marriage.

The petitioner is the complainant whose marriage took place with the first accused took and after the marriage, the complainant found that he is not interested with his wife in the marriage life due to his impotency. Thereafter, the complainant came to know that due to his impotency, he got divorced from his first wife. Pursuant to this, the accused husband left the home on 04-01-2022 and the petitioner made a complaint on 15-02-2022 that got registered on 18-05-2022.

A perusal of the complaint given by the complainant clearly states about the non-disclosure of the impotency of the husband at the time of marriage and he made the complainant to believe that he is a competent person to live ordinary life as husband and wife without disclosing his incapacity and thereby, the accused-husband deceived the complainant and made her to marry him, claiming that he is competent to consummate the marriage. After the alleged deceit came to light, the accused-husband granted divorce to the wife by saying ‘talaq' and went to United States of America.

The case was registered under Sections 498-A and 406 IPC without including Sections 420, 417 and 379 IPC even though the allegation disclosed the fact of cheating committed by the accused persons. Thus, the instant criminal original petition was filed to direct the respondent police to alter the FIR by including Sections 420, 417 and 379 Penal Code, 1860 therein.

Relevant provisions of Penal Code, 1860

Section 417 Punishment for cheating —Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 420 Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Counsel for State submitted that the matter has been referred to the Social Welfare Department, Madurai, for the purpose of conducting a preliminary enquiry. After receiving the report from the Social Welfare Department, Madurai, they are ready to consider the alteration of F.I.R.

Thus, the Court directed the respondent Police to add the offences under Sections 417 and 420 IPC in the case and investigate and file the final report within four months, after receiving the report from the Social Welfare Department, Madurai.

[Irfana Nasreen v. The State, Crl. O P (MD) No. 11840 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

M. Radhakrishnan, Advocate, for the Petitioner;

R. Suresh Kumar, Government Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Rouse Avenue
Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: While granting bail to the applicant Pramond Kumar Bhasin, Ajay Gulati, J. observed that the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though the employee of an NGO Ganga Orthopedic Research and Educational Foundation ‘GOREF’ who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation.

Ajay Gulati J granted bail to Pramod Kumar Bhasin who is a public servant accused and arrested for allegedly extracting bribe from NGO’s / institutions/ missionaries whose applications for renewal of eligibility to receive foreign grants and funds were pending in the FCRA Division, Ministry of Home Affairs. The bail was granted observing various irregularities in the investigation and in light of other accused(s) been granted bail subject to certain conditions.

Facts and legal trajectory:

The applicant is a public servant who was arrested for demanding and accepting bribes from NGOs. Allegedly, as per the FIR, the applicant demanded a bribe of Rs. 2 lakhs for processing the file of an NGO named GOREF, and received Rs. 1.5 lakhs from GOREF via its employee Mr. E. Vageesh, through a Hawala Operator. Additionally, it was also alleged in the FIR that the applicant used to handle all of his ill-gotten money through Hawala operators. In fact, during the alleged handing over of an instalment of a bribe of Rs. 4 lakhs from an alleged Hawala operator named Gajanand Sharma., one of his henchmen, Robin Devdass, was arrested red-handed by the CBI. Further, as alleged in the FIR, the applicant is said to have demanded bribes from several other NGOs as well.

It was detailed in the charge-sheet that an investigation has been conducted regarding the role of the applicant in contacting alleged Hawala operators for the handling of his ill-gotten money and also in accepting an alleged bribe of Rs. 1 lakh from a representative of Srijan Foundation- Swapan Manna, which was delivered to another Hawala operator named Vimal Tawaniya. The alleged Hawala operator Pawan Kumar Sharma was in turn handed over the said bribe by Vimal Tawaniya who is also a listed accused in the FIR

Analysis and findings:

In the Court, the Public Prosecutor for CBI strongly opposed the bail application on the ground that the role of the applicant is very serious in nature, and he is suspected to be the king-pin of the entire conspiracy involving illegal renewals of various NGOs/missionaries to receive foreign funding, for illegal monetary gains under Foreign Contribution (Regulation) Act, 2010 ‘FCRA’

The Court noted that neither the alleged hawala operators, Gajanand Sharma and Vimal Tawaniya nor the representative of Srijan Foundation, Swapan Manna have been arrested although they have been mentioned in the charge sheet along with the present applicant. Further investigation has been kept pending, as per the charge sheet.

The Court observed that although in the FIR, the role of the applicant has been highlighted for demanding bribes from various NGOs and routing the alleged bribe received through Hawala operators, the charge sheet mentions only one such foundation which is Srijan Foundation. Additionally, the charge sheet has not even mentioned the role of the applicant in demanding the alleged bribe from NGO GOREF even though Mr. E. Vageesh, an employee of GOREF who is said to have paid the bribe to the applicant through a Hawala operator, was arrested and subjected to custodial interrogation. The court noted that the role of the applicant regarding the case of NGO GOREF seems to have been completely forgotten by the investigating officer. The court also noted that the applicant has been in custody for a period of over two months as of the day of this hearing.

On a specific query by the Court, the Public Prosecutor for the CBI submitted that he has seized the FCRA files of NGO GOREF and Srijan Foundation. However, the Court observed that there was no explanation provided as to why was the representative of Srijan Foundation and the alleged Hawala operator who was asked to handle the alleged bribe paid by Srijan Foundation, have not even been arrested despite being mentioned in the charge sheet. The Court reiterated the observation that was made while granting bail to E. Vageesh who allegedly paid the bribe to the applicant on behalf of NGO GOREF that the CBI has been adopting double standards in regard to the accused persons having same set of allegations appearing against them.

Thus, the Court concluded that the alleged Hawala operators Pawan Kumar Sharma and Ramanand Pareek who have handled the ill-gotten money of the applicant, and Mr. Anish Selvaraj (private person) who was allegedly working in close conspiracy with the applicant to contact the NGOs who were ready to pay bribes for getting their pending FCRA files expedited, have already been granted bail. Consequently, the bail application was allowed subject to some conditions.

[Pramod Kumar Bhasin v. CBI, 2022 SCC OnLine Dis Crt (Del) 28, decided on 21-07-2022]


Appearance by:  

For Accused: Sumer Singh Boparai, Abhishek Pati, Nikhil Pahwa & Sidhant Saraswat

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The single Bench of Ajit Borthakur, J., has under Section 439 of the Criminal Procedure Code, 1973, granted bail to a college student who was accused, under Sections 10(a)(iv) and 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), of supporting a banned terrorist organization, United Liberation Front of Asom-Independent (ULFA-I) through a Facebook post a The Bench held that the words in the post expressed her feelings without making any reference to any particular organization.

Facts and Submissions made

An FIR was registered against the petitioner for posting on Facebook alleged words “Swadhin Surjyar Dikhe Akou Ekhuj, Akou Korim Rashtra Droh” (One more step towards independent sun, again, we shall do seditious act) and was under judicial custody for 64 days since 18-05-2022.

The petitioner through her counsel submitted that she was a student of B.Sc. and was not involved in the commission of the alleged offences. It was further submitted that her Facebook account got hacked and hence, she did not have any access to it. Therefore, considering the duration of her Judicial Custody, she should be granted bail subject to any conditions.

The Public Prosecutor submitted that through the post the petitioner had threatened the sovereignty of India and had boosted up the unlawful objective of the said banned organization. Therefore, the detention of the petitioner should be continued till the investigation gets completed.

Analysis and Decision

In the light of the above facts and provisions laid under Articles 19(1)(a) and 19(2) of the Constitution of India, and the definition of “unlawful activity” given under Section 2(o) of the UAPA, the Bench observed that the contents of the relevant Facebook post, are in the form of a poetic line, which expressed her feelings without any reference made to a particular organization.

Therefore, the Bench granted bail to the petitioner and opined that further continuation of the judicial custody of the petitioner may not be required in the interest of the ongoing investigation.

[Borshahsri Buragohain v. State of Assam, 2022 SCC OnLine Gau 1095, decided on 21-07-2022]


Advocates who appeared in this case :

A. Dihingia, Advocate, for the Petitioner;

PP, Assam, Advocate, for the Respondent.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Anoop Kumar Mendiratta, J. rejected bail to an accused allegedly kidnapping and raping a minor girl of 14 years. The Court held that merely because sometimes sexual abuse results in tying of knot between the victim and the accused in violation of provisions of law or results in birth of a child, it does not mitigate the act of the petitioner in any manner, since the consent of a minor is immaterial and inconsequential in law.

A complaint was filed by the mother of the victim alleging that some unknown person had kidnapped her daughter of 15 years, missing since 09-07-2019. On investigation, the complainant was charged for offences under Sections 363, 366 and 376 Penal Code, 1860 and Section 4 &6 Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) as the victim was recovered along with her 8-month-old female child from the house of petitioner/accused and was about 1½ months pregnant. The complainant was arrested and thus, the present bail application was filed contending that the victim is wife of the petitioner-accused and is suffering on account of incarceration of the petitioner and he needs to take care of his wife and child.

State submitted that that victim was merely 14 years and 06 months of age, at the time she was lured and kidnapped by the petitioner and the entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and misled the investigating agency on the wrong path despite filing of the Habeas Corpus petition by the mother of the victim.

The Court noted that alleged marriage with a minor as claimed by the petitioner is in violation of the provisions of the Prohibition of Child Marriage Act, 2006.

Placing reliance on Independent Thought v. Union of India, (2017) 10 SC 800 and Jayanti Lal Dabgar v State of Gujarat, (2015) 7 SCC 359 wherein it was observed that sexual intercourse or sexual act by a man, even with his own wife under 15 years of age, has been classified as rape, the Court opined that sexual relationship with minor is prohibited and the law clearly treats them as offences even if the same is based upon alleged consent of a minor.

The Court observed that such incidents of luring a minor and entering into physical relationship, accused thereafter claiming consent of the minor, cannot be treated in a routine manner. Merely because the petitioner has claimed that marriage had been performed with the victim in a temple, the same cannot sanctify the offence as the victim was a minor and under 15 years of age at the time of the incident. The claim of marriage is also yet to be proved on record.

Thus, the Court rejected the bail being devoid of evidence in favour of accused suggesting consent of the parents to take their minor daughter away from their lawful custody along with constantly misleading the Court during investigation and his claim of consent by minor for sexual intercourse being irrelevant.

[Jagbir v. State, 2022 SCC OnLine Del 2159, decided on 22-07-2022]


Advocates who appeared in this case :

Mr. Lokesh Kumar Mishra, Mr. Himanshu Sharma and Mr. Haider Khan, Advocates, for the Petitioner;

Mr. Adhishwar Suri, Advocate for Ms. Supriya Juneja, Advocate for complainant with Complainant in-person, for State.


*Arunima Bose, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Navneet Kumar, J., upheld the conviction of the appellant- accused guilty of killing his wife within a few years of marriage on her failure to fulfill the demands of the dowry. The deceased, Rita Devi, had gone missing from her husband’s home and her body was found in the Sakhua jungle.

This appeal is against the judgment of conviction passed by the Additional Sessions Judge charging the appellant -, for the offences punishable under Sections 304-B, 498-A, and 201 of Penal Code, 1860. For committing an offence under Section 304-B– of IPC, he was sentenced to Rigorous Imprisonment (‘RI’) for 7 years and further sentenced to undergo RI for 3 years and to pay a fine of Rs. 2000 and in case of default in payment of fine, he was further directed to undergo RI for 3 months for the offence punishable under Section 498-A and further sentenced to undergo RI for 3 years and to pay a fine of Rs. 2000 and in the case of default in payment of fine, he was further directed to undergo RI for 3 months for an offense punishable under Section 201 of IPC.

Facts:

The daughter of the informant, Rita Devi, was married to the appellant. Just after the solemnization of marriage, the appellant started demanding a Motorcycle and for that, the victim was assaulted and was subjected to cruelty. The informant also said that just 15 days back from the incident the accused assaulted the victim with respect to the demand of dowry and this assault continued since last 4-5 months continuously. Hearing this when the informant reached the victim’s house to meet the daughter, he found out that there was no one present in the house, and it was locked.

On 26-05-2002, the dead body of the victim was found in midst of the Sakuna jungle. The fardbeyan of the informant was recorded at the site of the incident. It was evident that the death has been caused due to strangulation as there were marks and swelling on the neck. This incident took place within 1 year of her marriage.

The police registered the case and submitted the charge-sheet and the Chief Judicial Magistrate took cognizance, the case was then committed to the court of sessions and after conducting a full-fledged trial passed impugned judgment of conviction and order of sentence which is under challenge in this appeal.

Observations and Analysis:

The Court was convinced with the finding of the Trial Court and upheld the trial court ruling and noted that there were no irregularities in the judgment of conviction and the order of sentence passed by the court.

[Pradeep Kumar Mandal v. State of Jharkhand, 2022 SCC OnLine Jhar 686, decided on 13-06-2022]


Advocates who appeared in this case :

Mr. S.P. Roy, Advocate, for the Appellant;

Mr. Purnendu Sharan, Advocate

Mrs. Nehala Sharmin, A.P.P., Advocate, for the Respondent.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. disposed of a writ petition with certain directions to police authorities in relation to an investigation in lieu of protection of animals.

Petitioners are members of the Kalyani Bar Association. They filed a complaint that a piglet which had been rescued and brought up by them, was forcefully taken away by some miscreants. It was alleged that four unknown persons entered the Court premises in a swift desire and forcefully took away the animal.

It was noted that the entire incident was video-graphed in a mobile phone by a security guard and forwarded to the police. It was further urged that forceful removal of the animal from its familiar surroundings and from the custody of the persons who looked after it, amounted to cruelty and it should have been incorporated in the FIR.

The Court found substance in the contentions of the petitioner and opined that the police authorities ought to have conducted the enquiry with more seriousness. It was further opined that although, the statements of the security guards were recorded under Section 161,Criminal Procedure Code, whether attempts were made to track down the accused persons, do not reflect from the report. The Court dissatisfied by the investigation stated that from the photographs clicked by the security guards, the identity of the miscreants could have been ascertained.

The Court clarified that the paramount consideration in this investigation should be to protect the interest of the animal, apart from protection/security of court compound. Well-being of animals has been statutorily recognized. The right to get protection from unnecessary pain or suffering, is a right guaranteed to the animals under Section 3 and Section 11 of the Prevention of Cruelty to Animals Act, 1960 (PCA Act) read with Article 51-A(g) and (h) of the Constitution of India.

The Court further relied on Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547 where it was observed that freedom from fear and distress are recognized as a right in case of animals. Thus, when the pig was forcefully removed from its surrounding by unknown persons, the rights guaranteed, have been violated.

Consequently, the Court was of the view that Superintendent of Police shall supervise the investigation henceforth and take necessary steps in this regard. It was reiterated that it is to be kept in mind that it is fundamental duty to protect the animals, from cruelty. This is not a case that the civic body had removed the animal, for maintenance of hygiene etc. Further, the police authorities were directed to keep a strict vigil towards the security of the Court compound so that no such incident was repeated.

[Atasi Chakraborty v. State of West Bengal, 2022 SCC OnLine Cal 2021, decided on 15-07-2022]


Advocates who appeared in this case :

Mr Shibaji Kumar Das, Mr Bhaskar Prasad Vaisya, Advocate, for the Petitioner;

Mr Mrinal Kanti Ghosh, Advocate, for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

Patiala House Courts, Delhi
Case BriefsHigh Courts

Patiala House Court, Delhi: Devender Kumar Jangala, J. granted bail to Alt News Co-founder for tweeting the image of a scene in the movie ‘Kisi se na Kehna’ which allegedly hurt religious sentiments and disrespected Lord Hanuman. The bail was granted as the investigation is not pending and thus, custody of the accused contains no merit as bail is the norm and jail is the exception.

A twitter user tagged Delhi Police under a tweet tweeted in the year 2018 by Alt News co-founder Mohammed Zubair wherein the image of a scene in the movie released in year 1983 for ‘unrestricted public exhibition’ by Central Board of Film Certification named ‘Kisi se na Kehna’ was posted along with “Before and After 2014” being written which allegedly pointed towards a political party, because of which the sentiments got hurt. Pursuant to which FIR was filed under Sections 153-A and 295-A Penal Code, 1860 (‘IPC’) and arrest was made. Thus, instant bail application was filed for releasing the accused on bail.

The Court noted that till date the investigating officer has been unable to trace the twitter handle user who registered his disappointment regarding the alleged tweet and thus, statement under Section 161 CrPC has not been recorded either by the offended twitter user. It is also pertinent to mention that alleged offensive tweet being of the year 2018, till date, year being 2022, no other complaint of like nature has been received.

Reliance was placed on Bilal Ahmed v. State of AP, (1997) 7 SCC 431 to emphasize the importance of mens rea for the category of offence alleged in the present case and Amish Devgan v. Union of India, (2021) 1 SCC 1 to observe that the import of Section 295A IPC is to curb speech made with ‘malicious intent‘ and not ‘offensive speech‘.

Thus, keeping in mind that the investigation will happen in accordance with principles laid down in CrPC, the Court noted that all the evidence is documentary in nature and the applicant/accused has already been taken into custody thus recovery has been effected and no useful purpose will be met by keeping the accused behind bars.

In light of principle that bail is the rule and jail is the exception, the Court granted bail to the accused on furnishing bail bond of Rs 50, 000 with one surety in the like amount to the satisfaction of Chief Metropolitan Magistrate subject to following conditions:

  1. Applicant shall furnish to the Investigating Officer SHO, a cell phone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched on at all times.
  2. Applicant shall not tamper with evidence nor otherwise indulge in any or omission that is unlawful or that would prejudice the proceedings in the pending matter.
  3. Applicant shall not leave the country without prior permission of the Court and will surrender his passport with the Investigating Agency within 3 days of his release from bail.
  4. Applicant/ accused shall not repeat the offence and shall ensure that his tweet or re-tweet or any material on social media is not even touching boundaries of the offence punishable under Section 153 A and 295 A IPC.
  5. Applicant/accused will join the investigation as and when called by the SHO/IO to do so.

[State v. Mohammed Zubair, Bail Application 1228 of 2022, decided on 15-07-2022]


Advocates who appeared in this case :

For applicant/ accused- Ms Vrinda Grover, Mr Soutik Banerjee, Ms Mannat Tipnis and Ms. Devika Tulsiani


*Arunima Bose, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Rohit Arya and Milind Ramesh Phadke, JJ. took strong exception to the functioning of the Police force in the State while lambasting the authorities for blatant callousness and failure in tracing an 11-year-old missing minor girl.

The writ petition was filed by an unfortunate father in the year 2017 with the pious hope that this Court in exercise of its extraordinary constitutional jurisdiction shall come to his rescue for tracing her missing minor girl aged about 11 years.

Counsel for the petitioner complained that at some point of time, though there was a breakthrough situation during investigation with the incriminating material found, still the investigation was put to a standstill. It further appeared that despite three SITs constituted to search for the missing corpus, the corpus so far has not been found out. It shows incompetence of such police officials, who were members of the SITs. There was a disclosure of the fact by a person of having raped, killed and buried the body of the missing corpus, but so far no action has been taken against him. The photographs of the minor girl on record reflect how ruthlessly she was beaten black and blue, smashed her face and the whole body looked totally mutilated.

The Court pointed that despite repeated orders callousness on the part of the police force is well evident. The Court while lambasting police officials stated that the height of absurdity on the part of the Police officials is writ large, as despite the said knowledge of demise of the corpus, subsequent reports are being submitted that the missing corpus is being searched.

Affidavit submitted by the DGP was called merely a lip service as no substantial steps have been taken for action against such assailant, who was alleged to have stated about the rape and murder of the deceased missing corpus.

The Court was further surprised to note that so far, no FIR has been lodged to start the investigation on aforesaid disclosure of the fact of the death of the deceased corpus.

We are constrained to observe so, despite repeated orders by this Court, DG Police Madhya Pradesh since the year 2020 has maintained blissful silence for the reasons best known to him. We take strong exception to the functioning of the Police force in the State particularly, in the Guna district relevant to the facts of this case.

The Court observed that Safety and protection of public at large against invasion on their personal liberty and property appears to be seriously jeopardized quoting “There is no one to Police the Police Man in this State”.

The Court called for the presence of the Inspector General of Police on 08-07-2022 for further hearing.

[Ganjendra Singh Chandel v. State of Madhya Pradesh, 2022 SCC OnLine MP 1599, decided on 05-07-2022]


Advocates who appeared in this case :

Shri Anil Kumar Shrivastava, Advocate, for the Petitioner;

Shri M.P.S. Raghuvanshi, Additional Advocate General, for the respondent-State.


*Suchita Shukla, Editorial Assistant has reported this brief.

 

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

“Higher the forum and greater the powers, the greater is the need for restraint”

Jammu and Kashmir and Ladakh High Court: While allowing the instant petition wherein the aggrieved party invoked the jurisdiction of the Court under Section 482 CrPC, seeking to expunge the adverse remarks, observations and directions made by the Additional Sessions Judge, Jammu; the bench of Mohan Lal, J., observed that for proper administration of justices, judges must remember the general principle of highest importance that, derogatory remarks are not to be made against persons, unless such censuring of conduct is absolutely necessary for the case. “The Judge’s Bench is a seat of power and has absolute and unchallengeable control of the court domain, but they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses”.

Facts of the case: The petitioner who is the Dy. Superintendent of Police (HQ), Kishtwar, was handling investigation in several cases filed under the Unlawful Activities Prevention Act and Arms Act. Upon completion of investigation in one of the cases [FIR No. 01/2020], the matter was presented before the Trial Court. In the impugned order dated 02-06-2021, the Additional Sessions Judge, after framing the charges, went on to make certain observations regarding the conduct of investigation into the matter with particular focus on the petitioner. The Judge noted that, “during investigation I/O/petitioner has conducted the investigation in a lethargic and sluggish manner (…) much better investigation could be conducted by even a Head Constable in comparison to I/O (…) I am quite surprised that how Mr. Sunny Gupta, Dy. SP has qualified the administrative examination of the state and become Dy. SP in the police department”.

Aggrieved by the afore-stated remarks, the petitioner knocked on the doors of the High Court.

Contentions:

  • The counsel for the petitioner submitted that the disparaging remarks made by the Trial Court against the petitioner have the potential to demoralize the police officers, who by putting their lives to grave risks, are bursting the militants/terrorists’ network and are investigating the cases under Unlawful Activities Prevention Act.
  • It was argued that though it is right of the courts to make free and fearless comments and observations, but there is corresponding need for maintaining sobriety, moderation and restraint regarding the character, conduct, integrity, credibility etc. of parties or witnesses or others concerned. The Judges and Magistrates must be guided by considerations of justice, fair play and restraint.
  • The petitioner also submitted that, the remarks of the Trial Court regarding the petitioner’s eligibility and professional competency were harsh/disparaging which should not have been made by the Trial Court which was only dealing with a question of charge/discharge of the accused.

Per- contra, the respondents argued that

  • Petitioner had failed to investigate the case in a manner required under law against the accused persons, therefore, the Trial Court correctly recorded that investigation has been conducted in a very perfunctory and unprofessional manner, whereby, IGP Jammu has been directed by the trial court to conduct departmental enquiry against the petitioner,
  • It was contended that the impugned order is in accordance with law and does not suffer from any illegality.

Observations: Perusing the facts, contentions and the disputed remarks, the Court referred to the cases of Niranjan Patnaik v. Sashibhusan Kar, (1986) 2 SCC 569 and Abani Kanta Ray v. State of Orissa, 1995 Supp (4) SCC 169, whereby it was made very clear that, “In expressing their opinions, Judges and Magistrates must be guided by consideration of justice, fair play and restraint, (…) the judges should not normally depart from sobriety, moderation and reserve and harsh or disparaging remarks are not to be made against the parties or authorities unless it is really necessary for the decision of the case as integral part thereof”

  • The Court observed that petitioner as I/O of the case, in his best wisdom, has collected all the material/evidence during the investigation conducted by him and has placed all the relevant evidence before the Trial Court. Therefore, it was the duty of the Trial Court evaluate the presented evidence on the record and to prima-facie come to conclusion whether accused persons can be charged/discharged.
  • The Court pointed out that it was not necessary for the Trial Court to record such harsh/disparaging remarks against the petitioner. “Law is no longer res-integra that the harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before the courts unless heard”.
  • The Court stated that Judicial restraint and discipline are necessary to the orderly administration of justice. “The duty of restraint is humility of function and should be a constant theme of our Judges”.

Decision: Directing that the derogatory remarks made by the Additional Sessions Judge against the petitioner be expunged, the Court held that the Trial Court was supposed to pass/record an order on the charge/discharge of the accused persons, and it was not absolutely necessary for the Sessions Judge to pass any remark regarding the conduct of the petitioner vis-a-vis the conduct of investigation and discharge of the accused.

[Sunny Gupta v. Union Territory of J&K, 2022 SCC OnLine J&K 520, decided on 04-07-2022]


Advocates appearing in the case :

Sunil Sethi, Sr. Advocate with Lawanya Sharma, Advocates, for the Petitioner;

Suneel Malhotra, GA, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Sanjeev Narula J. directed the IIT Delhi Plagiarism Committee to conclude the investigation regarding allegations of plagiarism against its two professors made by a full time Ph.D student at the Department of Management Studies at IIT Delhi.

The Petitioner, Harshal Dilip Kate, joined the full-time Ph.D programme at the Department of Management Studies (DMS) at IIT, Delhi. His concentration was in the area of Corporate Social Responsibility ‘CSR’. Respondent 1 ‘IIT, Delhi’ terminated his registration on account of unsatisfactory performance in two consecutive semesters.

The Petitioner contended that his termination is a result of complaints made by him against his co-guide Dr. Shveta Singh and Chairperson, Student Research Committee Dr. Kanika T. Bhal. He further contended that he participated in several conferences at universities and institutes around the world, which were conducted in online mode, however, this was not appreciated by his co-guide as he did not seek their approval prior to participating in such conferences.

Petitioner further asserted that his co-guide used two of his research proposals for obtaining a Lok Sabha sponsored fellowship for herself worth Rs. 10.80 lacs. The name of the Chairperson of SRC, who was his research supervisor, was mentioned as the Co-Principal Investigator on research proposals for the Lok Sabha fellowship. Ever since Petitioner confronted them i.e., his co-guide and Chairperson of SRC about the issue of plagiarism, they adopted an adversarial attitude towards him and this led to the Petitioner making complaints to the Student Grievance Redressal Committee ‘Respondent 3′ and also Institute Level Plagiarism Committee ‘Respondent 4′.

The Petitioner further informed the Court that the complaints made to the Institute Level Plagiarism Committee are still pending.

The Court thus directed the Institute Level Plagiarism Committee “to conclude the investigation and submit the report to the Court. Further, the report prepared by the Student Grievance Redressal Committee should also be filed with this Court before the next date of hearing, with a copy to the Petitioner.”

[Harshal Dilip Kate v. IIT Delhi, 2022 SCC OnLine Del 1833, decided on 02-06-2022]


Advocates who appeared in this case :

Anshuman and Damini Chawla, Advocate, for the Petitioner;

Arjun Mitra, Advocate, for the Respondent.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, dismissed Zakia Jafris plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State of Gujarat against the minority community.

Brief Background

In February 2002, 59 people were killed after, Kar-sevaks returning from Ayodhya, were allegedly attacked and coaches of Sabarmati Express train were set on fire. As an aftermath, there was unrest and violence all across the State of Gujarat that killed thousands of people. Zakia Jafri, like many others, lost her husband Ehsan Jafri to the 2002 Gujarat riots.

Zakia Jafri, along with Teesta Setalvad, filed a complaint where she mentioned names of 63 persons, who according to her, were involved in larger conspiracy and abetment of the crime resulting in carnage between February, 2002 and May, 2002, that shook the State of Gujarat. This list also mentioned the name of the then Chief Minister of Gujarat and now Prime Minister of India, Narendra Modi. The SIT, in it’s final report dated 08.02.2012, has not found any material indicating larger criminal conspiracy by the persons mentioned in the complaint.

Supreme Court’s Key Observation

  • The riots across the State had taken place spontaneously, immediately after the Godhra Train Carnage. In the investigation done by the SIT in all the nine (9) sets of cases, no material was discovered pointing towards any meeting of minds/conspiracy in the higher echelons of the administration or the political establishment conspired with other persons to cause such riots or for having turned nelson’s eye when the riots had triggered and continued.
  • The testimony of Sanjiv Bhatt, Haren Pandya and R.B. Sreekumar was only to sensationalize and politicize the matters in issue, although, replete with falsehood. For, persons not privy to the stated meeting, where utterances were allegedly made by the then Chief Minister, falsely claimed themselves to be eyewitnesses and after thorough investigation by the SIT, it has become clear that their claim of being present in the meeting was itself false to their knowledge. On such false claim, the structure of larger criminal conspiracy at the highest level has been erected. The same stands collapsed like a house of cards.
  • The inaction or failure of some officials of one section of the State administration cannot pass the muster of hatching of a criminal conspiracy, for which the degree of participation in the planning of commission of an offence of this magnitude must come to the fore in some way. The SIT was not there to enquire into the failures of the State administration, but the remit given to it by the Court was to enquire into the allegations of larger criminal conspiracy (at the highest level).

“Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration.”

  • The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State. The linking of such failures is not enough to entertain a suspicion about hatching of criminal conspiracy at the highest level, which requires a concerted effort of all the persons concerned and more importantly, clear evidence about meeting of the minds to accomplish such design, much less of causing and precipitating mass violence across the State.
  • The offence of conspiracy is independent of other offences. It takes place when there is an agreement to do or cause to be done an illegal act, or an act which may not be illegal but by illegal means. The rationale of conspiracy is that the required objective manifestations of dispositions of criminality is provided by the act of agreement. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they will accomplish the unlawful object of the conspiracy.
  • There is no merit in the argument of the appellant that the SIT had failed to collect the call records of the accused persons, not analyzed the available call records and failed to seize the phones of persons involved. The events had unfolded in the year 2002 and the SIT was constituted only in the year 2008 to look into and enquire into the complaint of appellant, dated 8.6.2006. The SIT due to lapse of time, was not in a position to verify the authenticity of the CDs regarding telephone calls and in any case, the call history by itself would not have been sufficient to suspect commission of any offence, much less of hatching larger criminal conspiracy, which was required to be investigated by the SIT.
  • The act of transfer/posting of officials has been after the unfolding of mass violence across the State. It was obviously an administrative matter to address the expediencies of that situation. The Court failed to understand as to how this circumstance can be reckoned as hatching of criminal conspiracy resulting into mass scale violence across the State aftermath Godhra incident. Such conspiracy ought to have preceded the triggering of mass violence.

Appreciating the SIT officials for the indefatigable work done in the challenging circumstances they had to face and coming out with flying colours unscathed, the Court observed that it appeared that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation.

“As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

[Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, decided on 24.06.2022]


For Petitioner(s) Mr. Kapil Sibal, Sr. Adv. Mr. Mihir Desai, Sr. Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv.

For Respondent(s) Mr. Tushar Mehta, SG Mr. Mukul Rohatgi, Sr. Adv. Mr. Maninder Singh, Sr. Adv. Mr. Kanu Agrawal, Adv. Ms. Devanshi Singh, Adv. Mr. Prabhas Bajaj, Adv. Mr. Pranav Saigal, Adv. Mr. Shantnu Sharma, Adv. Mr. Madhav Sinhal, Adv. Ms. Deepanwita Priyanka, AOR

For Intervenor(s) Mr. Aldanish Rein, AOR


Ed. Note: The judgment that was pronounced by Justice AM Khanwilkar, does not clearly mention which of the three judges on the Bench has authored it.