Case BriefsSupreme Court

   

Supreme Court: The Division Bench of Surya Kant and J.B. Pardiwala*, JJ., contemplated important issues related to disinterment, exhumation and conditions feasible to allow such relief prayed for by appellant. The Court upheld the judgment passed by the High Court of J&K in Union Territory of J&K v. Mohammad Latief Magrey, 2022 SCC OnLine J&K 516 by which the Appeal Court modified the judgment passed by the Single Judge of the High Court in Mohammad Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, and thereby permitted the appellant herein and his family members to perform the Fatiha Khawani (religious rituals/prayers after burial) of the deceased at the graveyard while declining to grant permission to disinter/exhume and shift the body of the deceased for the purpose of religious rituals.

By virtue of Article 136 the appellant (father of the deceased) approached the Supreme Court after being dissatisfied with the order passed by the High Court and prayed for directing the respondents to disinter the body so as to enable the appellant as a father and other family members to perform the prayers/rituals to their satisfaction.

Facts to the extent necessary are that one Mohd Amir Margey, son of the appellant was killed in an encounter between the police and militant in Kashmir. The appellant was informed that his son was a militant and with other associates he was buried in Wadder Payeen graveyard.

Submissions:

The entire contention of the appellant is based on the fact that he has a fundamental right under Article 21 of the Constitution to perform the last rites of his dead son in accordance with the rituals prevailing in Islam. The appellant as a father could not have been deprived of such fundamental right. Hence the exhumation is required.

The respondent vehemently opposed the appeal and contended that authorities have performed the last rites of the deceased as per his religious beliefs and practices and buried the dead body as per the religious customs. It was further contended that it has been more than 8 months from the date of burial of the dead body and as of now the same would have decomposed hence, no purpose would suffice by exhuming the same as the same may lead to adverse public health issues.

Other important contention put forth was that, pursuant to the encounter of terrorist namely Burhan Wani, a disturbing trend of glorification of the deceased terrorists was witnessed in the valley wherein antinational emotions were stoked in the youth and they are instigated against the Indian Republic to join various terror groups hence, exhuming the remains of the deceased, such emotions may be flared and such activities shall be revived which may lead to a further threat to national security and glorification of terrorism.

Questions of law for consideration before the Supreme Court were:

a. Whether the appellant (father of the deceased) can pray for exhumation of the dead body of his son from the graveyard asserting that it is his fundamental right as enshrined under Article 21 of the Constitution to perform the last rites of his slained son?

b. Will it be in the fitness of the things, more particularly, having regard to the fact that the body is now buried past more than eight months to order, exhumation so as to enable the appellant and his family members to perform the rituals as followed in Islam?

c. Assuming for a moment that it is the fundamental right of the father under Article 21 of the Constitution to perform the last rites and rituals of his son with dignity before being buried in a graveyard, should this Court in exercise of its jurisdiction under Article 136(1) of the Constitution disturb the impugned order passed by the High Court at the risk & peril of public order, health etc. and grant the relief of exhumation after almost nine Months?

Analysis:

Exhumation of body: The Court observed that exhumation involves opening up a grave and removing the human remains already buried there. It is controversial even if the intent is usually to rebury the displaced remains elsewhere. Societies and cultures are often reluctant to practice because of public health as it could lead to transmission of disease and it offends the basic moral of ‘rest in peace’.

The Court further referred to Anandhi Simon v. State of Tamil Nadu, 2021 SCC OnLine Mad 1284 where it was stated that the law related to exhumation is only contained in Section 176(3) CrPC and unlike other countries, India has no law on exhumation.

It was held that, “in the instant case, after the deceased was killed in the Hyderpora encounter, the authorities performed the last rites of the deceased with all dignity with the aid of the Auqaf Committee as per the religious beliefs and practices.

Possibility of exhumation and condition of body: It was noted that for exhumation the body should be in a deliverable state otherwise there will be a threat to public health and hygiene. An expert stated that the body start to decompose within 4 min of death and starts to liquify within a month, the putrefaction increases with passage of time. Hence it was observed that, “almost 9 months have passed post burial which is suggestive that the body may not be in a deliverable state. It will be too much at this stage to disinter the body. The dead should not be disturbed and some sanctity should be attached to the grave.

Article 21 vis-a-vis Right to burial: The dead person has the right to dignity hence the dead body must be treated with utmost respect. These rights are not only for the deceased but his family members also have a right to perform the last rites in accordance with the religious traditions.

Scope of Article 25 and 26 of Constitution: Court while examining the right conferred upon the appellant to practice religious belief and managing religious affairs, referred to Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (2016) 2 SCC 725 where it was held that, “a just balance can always be made by holding that the exercise of judicial power to determine essential religious practices, though always available being an inherent power to protect the guarantees under Articles 25 and 26, the exercise thereof must always be restricted and restrained.

Hence, the Court concluded that religious rights are subject to public order, health and morality and cannot be absolute.

Power of Supreme Court under Article 136: The Court while deciding the extent of power to allow such relief claimed by the appellant observed that “principles of law discernible from the aforesaid are that unless, it is shown that exceptional and special circumstances exist; that substantial and grave injustice has been done and the case and question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court would not exercise its overriding powers under Article 136(1) of the Constitution.

Decision: It was observed that it would have been appropriate and in fitness of things to hand over the dead body of the deceased to the family members, however, in such militant encounters the issue is also of national security and if the agency declines such request, the Court must not interfere unless grave injustice has been done. It was concluded that the body was buried with dignity and there is no reason to believe otherwise. The Court held that, “the law does not favour disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed.

Appeal dismissed.

[Mohammad Latief Magrey v. Union Territory of Jammu and Kashmir, 2022 SCC OnLine SC 1203]

Judgment by: Justice J.B. Pardiwala


Advocates who appeared in this case:

Anand Grover, Advocate, for the Appellant;

Ardhendumauli Kumar Prasad, Advocate, for the Respondent.


*Aastha Sharma, Editorial Assistant has put this report together.

Gauhati High Court
Case BriefsHigh Courts

   

Gauhati High Court: While deciding the instant appeal preferred by Ranjan Daimari and 9 others regarding their conviction and sentence of life imprisonment by the Special Court in relation to the horrific 2008 bomb blasts which rocked Assam; the Division Bench of Suman Shyam and Malasri Nandi, JJ., observed that the manner in which the bomb blasts took place, undoubtedly reveal the intention to challenge India’s sovereignty, unity, integrity and cause widespread terror. Observing that the prosecution had successfully established that the blasts were a result of a conspiracy hatched by the 10 appellants, therefore, the Bench, applying the principles laid down in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, held that the order of the Special Judge convicting the appellants does not require any interference from the High Court.

Facts and Legal Trajectory of the Case: On 30-10-2008, 9 powerful bombs exploded in various parts of Assam like Kamrup (Metro), Barpeta, Bongaigaon and Kokrajhar between 11:20 a.m. to 11:30 a.m. In these blasts 88 persons had lost their lives and around 540 persons were critically injured along with extensive damages to movable and immovable properties.

Subsequently FIRs under IPC, UAPA and Explosive Substances Act were lodged. Initially, the responsibility of carrying out investigation these cases was taken up by the CID and Assam Police. However, subsequently, with the consent of the Government of Assam, the investigation was transferred to the Central Bureau of Investigation (CBI). From the investigation conducted, it was revealed that the nine bomb explosions were carried out by the members of the proscribed terrorist organization – National Democratic Front of Bodoland (NDFB) which was formed on 03-12-1986 under the chairmanship of Ranjan Daimari. These bomb blasts were the result of a conspiracy hatched and carried out by the members of the banned NDFB.

Consequently, CBI prepared the charge-sheet against 19 accused persons for commission of offences punishable under Penal Code, 1860 read with provisions of the Explosive Substances Act, 1908 and the Unlawful Activities (Prevention) Act, 1967. The CBI recorded statements of approximately 871 witnesses.

The trial initially commenced in the Sessions Court, Kamrup(M), Guwahati but subsequently, was transferred to the Special Court constituted for the purpose of speedy disposal of the case. During the trial, the prosecution examined almost 650 witnesses. The remaining witnesses could not be examined as some of them were dead or went traceless. On conclusion of trial and after analyzing the evidence available on record, the Special Judge passed the impugned order dated 28-01-2019 convicting the accused/ appellants.

Contentions: The counsel for the appellants argued that there is no evidence available on record to prove that the serial bomb blasts were the outcome of a conspiracy involving the appellants and that the prosecution has failed to lead evidence so as to connect the appellants with the occurrence.

The appellants pointed out that there was an unusual delay in completing the investigation and the trial in this case, thereby leading to serious prejudice to the interest of the appellants. It was further argued that sufficient time was not given to the defense counsel at the trial stage to argue the case. The appellants also contended that the Special Court did not appreciate the evidence adduced by the prosecution correctly.

It was also argued that just because Ranjan Daimari had given unsatisfactory answers to the questions put to him during his examination under Section 313, CrPC, that does not indicate his guilt.

Per contra, the respondents argued that the conviction of the accused was based on the evidence adduced by the prosecution witnesses and not on the statements of the witnesses recorded under Section 164 CrPC as it has been alleged by the appellants’ counsel; those statements, however, had been referred only to corroborate the testimony of the witnesses.

Observations/ Findings: Perusing the facts and contentions of the case, the Division Bench made a detailed analysis of the evidence and witnesses’ statements against all the appellants and the other accused persons, the victims of the bomb blasts and experts. The Court made the following observations-

  • Concerning the argument of delay raised by the appellants, the Court observed that during trial, as many as 5 Public Prosecutors were engaged by the CBI but due to language issues, some of the Public Prosecutors had to be changed, which had also contributed to the delay in concluding the trial and the same was on account of factors that were apparently beyond the control of the prosecution.

  • Concerning NDFB, the Court observed that the organisation came into existence with the professed objective of liberation of Bodoland through the process of secession of the area from India. It was noted that the NDFB had been working in alliance with other armed secessionist organizations of the North East region so as to carry on with the struggle for national liberation of the Indo- Burma region in alliance with likeminded organizations of that region. Which is why the Central Government was of the opinion that the NDFB has continued to indulge in illegal and violent activities intended to disrupt the sovereignty and territorial integrity of India and also to align itself with other unlawful associations like United Liberation Front of Assam (ULFA). Hence, NDFB was declared as an Unlawful Association and the organisation was banned. Furthermore, relying on Section 57 of Evidence Act, 1872, stated that there are cogent materials to prove that at the time of the occurrence of the bomb blasts, NDFB was a banned terrorist organization and an unlawful association within the meaning of the UAPA, 1967.

  • Regarding prosecution/ respondents’ submission that one Anup Kumar Baro was made an approver in the case, the Court noted that there is no material on record to hold the same. The Court further noted that serious doubts arise as to the procedure followed and the circumstances under which the statement of Anup Kumar was recorded, thus, his statement under Section 164 CrPC, cannot be relied upon as his confessional statement.

  • The Court also noted the statements of other accused persons implicating Ranjan Daimari and others. Concerning the statement of Ajay Basumatary, the Court observed that his confessional statement of this accused person appeared to be truthful and voluntary and the procedure prescribed under Section 164 CrPC was also properly followed.

    “The confession of accused Ajay Basumatary not only appears to have a logical sequence but we find that the same was also spontaneous. The confession of this accused also finds due corroboration from the other evidence available on record and there is no non-corroborative factor on record. Therefore, we are of the opinion that there is no valid ground to discard the confessional statement of accused Ajay Basumatary merely because he had subsequently retracted his confession”.

  • After careful and detailed scrutiny of the evidence, the Court noted that the fact that the NDFB was a banned organization and an unlawful association, was cogently established from the testimonies of prosecution witnesses as well as the exhibits. The fact that NDFB was indulging in terrorist activities thus stands established from the evidence adduced by the prosecution.

  • Observing that 9 horrific bomb blasts which took place simultaneously within a span of 10 minutes causing large scale devastation to human lives and properties, has been cogently established from the evidence of the relatives of the victims, injured witnesses, persons who had suffered losses, evidence of the medical officers, ballistic experts etc.

    “The manner in which the serial blasts took off at different places in the State of Assam leaves no room for doubt that the same was the handiwork of some person(s) or organization. Unless there was a concerted effort on the part of a number of people, blasts of this intensity, in multiple locations would not be possible. As such, the fact that the bomb blasts were the outcome of a criminal conspiracy is self-evident and the prosecution has also adduced sufficient evidence to establish the said fact (…) there can be no element of doubt about the fact that the sole purpose behind the blasts was to cause terror and thereby challenge the sovereignty, unity and integrity of the country”.

Conclusion: With the afore-stated observations, the Court stated that the prosecution was able to establish each link in the chain of circumstances to prove that the 9-bomb blast that took place on 30-10-2008 was the outcome of the conspiracy hatched by the appellants. “The appellant/accused persons were in a conspiratorial relationship and have acted in a concerted manner to execute the nine bomb blasts leading to the carnage. There is trustworthy evidence available on record to establish all the links in the chain of circumstances to prove the charge brought against each of those appellant/ accused persons beyond reasonable doubt.

However, concerning some of the appellants namely Onsai Boro, Lokhra Basumatary, Indra Bhramha and Jayanti Brahma, the Court stated that the evidence on record is insufficient to conclude that the charges brought against them have also been proved beyond reasonable doubt.

The Court directed Raju Sarkar and Baisagi Basumatary, who are out on bail, to surrender before the Trial Court.

[Ranjan Daimari v. Central Bureau of Investigation, Case No.: Crl.A./195/2019, decided on 27-09-2022]


Advocates who appeared in this case:

Advocate for the Petitioner: A.K. Bhattacharya, Senior Counsel assisted by M. Saraniya and D.K. Bhattacharya, Counsels;

Respondents- S.C. Keyal, Special Public Prosecutor.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

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.

Case BriefsSupreme Court

Supreme Court: In a big development, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has directed that the infamous gangster/terrorist Abu Salem be released after the completion of 25 years of his sentence in terms of the national commitment as well as the principle based on comity of courts. Salem was convicted on 12.10.2005.

Crucial Facts to understand the decision

  • Abu Salem needs no introduction as he has a history of serious crimes. He has been a part of the crime syndicate and has been tried and convicted for offences under Sections 302, 307, 452, 506(ii) read with Section 120-B of the Penal Code, 1860, read with Sections 5, 27 of the Arms Act, 1959 read with Sections 3(2)(i), 3(2)(ii), 3(5) and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
  • He was also involved in the Bombay Bomb Blasts which resulted into enormous loss of life and loss of properties. He was alleged to have stored, distributed and transported illegally smuggled AK-56 rifles, hand grenades as well as boxes of magazines from the godown in Gujarat to Mumbai in a Maruti van which had specially crafted secret cavities and all this was done after conspiratorial meetings relating to the blasts. In order to evade the penal consequences of his actions, Salem left Mumbai and later entered Portugal under an assumed name on a Pakistani passport, which reflects from where the conspiracy and support may have emanated.
  • Salem having travelled on a fake passport to Portugal was convicted and sentenced on 18.09.2002. The said sentence would have been completed on 18.03.2007 without taking into consideration any remission or commutation or conditional release.
  • Salem served the sentence from 18.09.2002 to 12.10.2005 when he was granted conditional release for the remaining sentence after an assurance given by the Government of India that after his extradition, Salem would not be visited with death penalty or imprisonment for a term beyond 25 years.
  • Salem’s custody was handed over to the Indian authorities on 10.11.2005, the appellant was extradited to India from Portugal on 11.11.2005 and was arrested on 24.11.2005.

Why he needs to be released after completion of 25 years of sentence?

The affidavit of the Union of India through the Home Secretary is clear, at least, to the effect that they will abide by the assurance given by the Government of India to Portugal. Thus, on completion of the period of 25 years of sentence, in compliance of its commitment to the courts in Portugal, it is required that the Government of India advise the President of India to exercise its powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercise powers under Sections 432 and 433 of the Cr.P.C.

Hence, the necessary papers be forwarded within a month of the period of completion of 25 years sentence of Salem.

Why did the Supreme Court gave this judgment 5 years before the completion of 25 years of Salem’s sentence?

The Court found it necessary to make this time bound decision so that it does not result in an unending exercise and, thus, the Government of India must exercise the aforesaid powers or render advice on which the President of India is expected to act, within a month of the period of completion of sentence.

“We say so also to respect the very basis on which the Courts of Portugal observed the principles of comity of courts by recognising that there is a separation of powers in India and, thus, the Courts cannot give any assurance. The corresponding principle of comity of courts, thus, has to be observed such that the Government of India having given the solemn assurance, and having accepted the same before us, is bound to act in terms of the aforesaid. We are, thus, taking a call on this issue now and do not want to leave it to any uncertainty in future. This is of course subject to any aggravating aspect of the appellant.”

Why the plea of set off did not impress the Court?

It was argued before the Court that the set off period should commence from 18.09.2002 when Salem was arrested pursuant to the Red Corner notice, or at worst from 28.03.2003, i.e., the date of the ministerial order when extradition was granted to Salem for various offences.

However, the Court observed that

“It cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country. The criminal law of the land does not have any extra-territorial application. Thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country.”

In the case at hand, Salem was charged with having a fake passport and was convicted of sentence from 18.09.2002. This had nothing to do with the proceedings against him in India. His sentence would have been completed on 18.03.2007 de hors the aspect of remission or commutation. However, he was granted conditional release for the remaining sentence on 12.10.2005.

“The mere fact that there was also a detention order under the Red Corner notice was of no significance. He was again imprisoned from 12.10.2005 till 10.11.2005, i.e. when he was handed over to the Indian authorities. The period till 10.12.2005, when he was serving out the sentence, certainly could not have been counted. That leaves the period of less than a month only, which is really more of an academic exercise.”

Hence, if one looks from the perspective of detention of the case in India, the period commences only on his being detained at Portugal on 12.10.2005, albeit giving him benefit of a little less than one month.

[Abu Salem Abdul Kayyum Ansari v. State of Maharashtra, 2022 SCC OnLine SC 852, decided on 11.07.2022]


*Judgment by: Justice Sanjay Kishan Kaul


Counsels

For Abu Salem: Advocate Rishi Malhotra

For State: ASG K.M. Nataraj

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.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal directed against the decision of the Single Judge Bench in Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433; the Division Bench of Pankaj Mithal, CJ., and Javed Iqbal Wani, J., directed the appellants to allow Mohd. Lateif Magery and his family to perform Fatiha Khawani (religious rituals/prayers after burial) of deceased Mohd. Amir Magrey at the Wadder Payeen graveyard, subject to taking into account the required security measures and COVID-19 guidelines. The Court also upheld the compensation of Rs. 5 Lakhs awarded to the respondents in the afore-stated case.

Facts of the case: The respondent’s son named Mohd Amir Magrey, was amongst four persons who were killed in an encounter between the Police and Militants that took place on 15-11-2021 at Hyderpora area of Budgam, Kashmir. Next day, the respondent received a call from Gool Police Station that his son got killed in an encounter. The respondent upon reaching Saddar, Police Station, Srinagar, was told that his son, was in fact a militant and had got killed along with his two other associates and had been buried by appellants at the Wadder Payeen graveyard. The respondent even met the Lieutenant Governor on 07-12-2021 seeking return of the body of his son, but the meeting yielded no results.

Legal Trajectory: In Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, dated 27-05-2022, the Single Judge Bench of this Court directed the Union Territory to make arrangements for exhumation of the body/remains of the deceased Amir Latief Magrey from the Wadder Payeen graveyard in presence of Mohd. Lateif. The State was also directed to pay to the father compensation of Rs. 5 lakhs for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations and faith.

The decision was appealed in UT of J&K v. Mohd. Latief Magrey, LPA No. 99/2022 thereby which the operation of impugned judgement was stayed by way of an interim relief by the Division Bench. Next date of hearing was set for 28-06-2022.

The stay was challenged by Mohd. Latief in the Supreme Court. Lateif submitted before the Court that he wants to perform the last rites of his deceased son, as per their family’s religious practices at the Wadder Payeen Graveyard. He also sought the alternative relief of payment of compensation of Rs. 5 lakhs as granted by the Single Judge in his decision dated 27-05-2022. The Division Bench of Surya Kant and J.B. Pardiwala, JJ., in Mohd. Lateif Margey v. UT of J&K, Special Leave to Appeal (C) no. 10760/2022, observed that the matter is already slated for hearing in the High Court. The Bench directed the High Court to consider the alternative reliefs sought by Mohd. Lateif within 1 week.

Contentions

  • The respondent stated that the dead body of his deceased son was not handed over to him by appellants for burial as per religious rites and practices, thus, resulting in infringement of rights guaranteed under Art. 21 of the Constitution, as it extends to the right to have a decent burial as per religious ceremonies. The respondent submitted that that right to live with human dignity extends even beyond death and the said dignity has to be given to the dead by providing a proper funeral/burial.
  • The respondent submitted before the Court that his request to hand over the dead body of his son to provide a decent burial was rejected by the appellants citing the reason that the deceased was a militant. The respondent however stated that dead bodies of two other persons, killed in the encounter returned back to their families following relentless protests.
  • The respondent also contended that he has been instrumental in fighting and curbing the militancy in his native place Gool Sangaldan, Ramban, along with Indian Army and in this regard, cited an incident, which took place on 06-08-2005, when he and his wife caught hold of a LeT militant, who had barged into their house and opened indiscriminate firing. It was also submitted that the respondent had been conferred with the State Award for Bravery for the afore-stated incident by the then Government of Jammu and Kashmir in the year 2012. The respondent was also well appreciated by the Indian Army and for the services rendered by him in eradicating the militancy in Gool Sangaldan area.

Per-contra, the appellants argued that-

  • The respondent’s demand to return the body of his deceased son is not fair, because it is not the dead body of an ordinary citizen but of a terrorist having got killed in an encounter with security forces. Return of the dead body would lead to law, order and security problems.
  • The deceased was found to be a terrorist indulging in militant activities by the authorised investigating agency. In terms of previous practice and procedure to avoid larger ramifications and adverse impact upon law-and-order situation, the dead body of deceased was shifted and was buried in accordance with all religious obligations at Wadder Payeen Graveyard, performed in presence of Executive Magistrate, Zachaldara. A proper procedure was followed by appellants while dealing with the dead body of deceased in the matter of his burial.
  • It was submitted that after taking adequate security measures, the dead bodies of other two persons killed in the encounter, were returned to their families, as they were not found to be terrorists.
  • It was submitted that, Mohd. Latief and his family can be allowed to perform Fatiha Khawani (prayers after burial) at the grave of the deceased subject to security measures as may be required to be put in place.

Observations: Perusing the ‘peculiar’ facts of the case and contentions of the parties, the Court observed that, Mohd. Lateif has given up the first relief granted by the Single Judge vis-a-vis exhumation of the remains of his son. The Court rejected the insistence by the counsels of Mohd. Latief regarding exhumation of the remains stating that the last rites of deceased have already been performed while burying him at the Wadder Payeen Graveyard.

The Court also rejected the prayer of the respondent’s counsel that the family members be allowed to see the face of the deceased by opening the grave, on the ground of the advanced stage of decay the body will be in; and also taking into account that the respondent has given up the prayer of exhumation of the dead body.

The Court pointed out that the respondents have been subjected to ‘emotional and sentimental melancholy’ as the authorities deprived them of the right to perform last rites and rituals of deceased admittedly without there being any policy/guideline, which cannot be endorsed by law. The Court also stated that there was no way that the appellants could have overlooked the contribution made by the respondents’ family in fighting terrorism; therefore, the decision to award compensation by the Single Judge was correct.

Decision: Allowing the respondents to perform Fatiha Khawani, the Court directed the appellants to fix a date for the same in consultation with the respondents.

Regarding the direction to pay compensation of Rs. 5 Lakhs, the Court clarified that said compensation shall not form a precedence for future in view of the fact that the same was awarded in relation to the peculiar facts and circumstances of the instant case.

[Union Territory of J&K v. Mohd. 2022 SCC OnLine J&K 516, decided on 01-07-2022]


Advocates who appeared in this case :

D. C. Raina, Advocate General with Asifa Padroo, AAG and Sajad Ashraf GA, Advocates, for the Appellants;

Deepika Singh Rajawat, Advocate with Zarin Ali and Yasmeen Wani, Advocates and T. M. Shamsi, ASGI, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case BriefsSupreme Court

Supreme Court: In an insurance repudiation case the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., held that where the insurance policy expressly defines a term the insurance company cannot rely on Statutory interpretation of the same to repudiate the insurance claim.  

The Court reversed National Consumer Disputes Redressal Commission’s (NCDRC) judgment by which it had held that the insurance company was justified in repudiating the claim.   

Factual Backdrop  

The appellant had taken Standard Fire and Special Perils Policy from the insurance company in respect of his Engineering Workshop and Plant. The total sum assured was Rs.26,00,00,000 under the policy covering the loss on account of fire, lightning, explosion, riots, strike etc.  

As per the claim made by the appellant, after midnight of 22-03-2010, about 50­60 antisocial people with arms and ammunition entered the factory premises of the appellant and caused substantial damage to the factory, machinery, and other equipment. The mob demanded money and jobs for local people. The appellant contended that the object of the incident was to terrorise the management of the appellant and workers in the factory by forcing them to pay a ransom to the miscreants. 

The appellant lodged a regular claim with the insurance company. The surveyor assessed the loss at Rs.89,43,422 while the appellant claimed that the insurance company was liable to make an interim payment of Rs.1.5 crores.   However, the insurance company repudiated the appellant’s claim relying on the Exclusion Clause of the policy regarding loss or damage caused by the acts of terrorism.  

Findings of NCDRC  

Therefore, the appellant approached NCDRC complaining about deficiency in the service offered by the insurance company. By the impugned judgment and order, the NCDRC held that because of the “Terrorism   Damage   Exclusion   Warranty”; i.e., the Exclusion Clause, the insurance company was justified in repudiating the claim of the appellant. The NCDRC held that the damage caused to the factory and equipment of the appellant was due to an act of terrorism. 

Analysis and Findings  

The Exclusion Clause of the policy defined the act of terrorism as—“the actions can be termed as acts of terrorism provided the same are committed for political, religious, ideological or similar purposes.   The words ‘similar purposes’ will have to be construed ejusdem generis.” 

Noticeably, the repudiation of the policy was based on the Preliminary Survey Report, Investigation Report, and the Final Survey Report.   However, the Court noted that the Survey Reports could not throw any light on the question whether there was an act of terrorism, the Investigation Report did not conclusively prove that the persons involved in the incident belonged to Maoist or similar groups. Similarly, the FIR and Closure Report did not refer to acts of terrorism as defined under the Exclusion Clause, rather it showed that the police had registered a case against 105 miscreants who could not be traced. 

Therefore, the Court held that the insurance company had not discharged the burden of bringing the case within the four corners of the Exclusion Clause.  

The insurance company had argued that since the police had invoked Section 17 of the Criminal Law (Amendment) Act, 1908 against the miscreants for unlawful association, the very fact that the provisions of the Amendment Act of 1908 had been applied showed that the loss caused to the appellant was due to a terrorist act. The Court, rejecting the contention of the insurance company held, 

“When the policy itself defines the acts of terrorism in the Exclusion Clause, the terms of the policy being a concluded contract will govern the rights and liabilities of the parties.  Therefore, the parties cannot rely upon the definitions of ‘terrorism’ in various penal statutes since the Exclusion Clause contains an exhaustive definition of acts of terrorism.” 

Conclusion 

Thus, the Court concluded that the NCDRC had committed an error by applying the Exclusion Clause. The policy specifically covered the damage caused by riots or violent means. Hence, the Court held that the decision to repudiate the policy could not be sustained.  

Resultantly, the impugned order was set aside. However, noting that adjudication would have to be made on the quantum of the amount payable to the appellant after appreciating the evidence on record, including the valuation reports, the Court remanded the matter to the NCDRC for reconsideration. Further, relying on the expected damage estimated by the insurance company’s valuer, the Court directed the insurance company to deposit a sum of Rs.89,00,000 with the NCDRC with liberty to the appellant to make an application for withdrawal. 

[Narsingh Ispat Ltd. v. Oriental Insurance Co. Ltd., 2022 SCC OnLine SC 535, decided on 02-05-2022] 


*Judgment by: Justice Abhay S. Oka 


Appearance by:  

For the Appellant: Santosh Kumar, Advocate  

For the Insurance company: Santosh Paul, Senior Advocate  


Kamini Sharma, Editorial Assistant has put this report together  

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising B.R. Gavai and Hima Kohli, JJ., (Vacation Bench) reversed the order of the Gujarat High Court, by which the applicant was denied the benefit of bail under the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC Act). The Court held that existence of more than one charge sheet against the accused is essential for invoking the provisions of GCTOC Act.

Issues Involved

The applicant contended that for invoking the provisions of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC Act) which is analogous to the Maharashtra Control of Organized Crime Act, 1999 (MCOCA), two requirements have to be satisfied, i.e. the activity undertaken is either singly or jointly as a member of an organized crime syndicate or on behalf of such a crime syndicate and that in respect of such an activity, more than one charge-sheet must have been filed in the preceding period of last 10 years.

However, the applicant claimed that in the instant case, the second requirement was not satisfied since the Chart indicating all the crimes registered against the applicant revealed that only FIR 64 of 2021 dated 26-07-2021 was in respect of an activity committed by two members of the syndicate.

Further, to strengthen his case, the applicant submitted that he had already been released on bail in respect of other FIRs and it was only on account of him being implicated in FIR 64 of 2021 under the GCTOC Act, that he was deprived of his liberty.

On the contrary, the State submitted that all the offences alleged in the FIRs which were given in the Chart, were directly or indirectly committed for the benefit of the crime syndicate of which the applicant is a member.

Analysis and Findings

The Court noted that only one offence, i.e., FIR 64 of 2021 was there which had been committed by seven accused out of which two were the members of the syndicate and in respect to offences at Serial Nos. 1 to 4 in the Chart, no members of the syndicate were arrayed as accused.

Considering the provisions of the GCTOC Act, the Court held that the following conditions will have to be fulfilled for invoking the provisions of the GCTOC Act:

  • Such activity should be prohibited by law for the time being in force;
  • Such an activity is a cognizable offence punishable with imprisonment of three years or more;
  • Such activity is undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate;
  • In respect of such activity more than one charge sheet must have been filed before a competent Court; and
  • The charge sheet must have been filed within a preceding period of ten years; and
  • The Courts have taken cognizance of such offences.

However, in the instant case, only one charge sheet was filed in respect of activity which could be said to have been undertaken by the applicant as a member of an organised crime syndicate on behalf of such syndicate.

Conclusion

In the backdrop of above, and considering the factum that the applicant had already been granted bail in respect of crime registered at Serial Nos. 1 to 5, the Court allowed the instant petition. Accordingly, the applicant was directed to be released on bail with the directions to report to the investigating officer every Monday between 10.00 a.m. to 1.00 p.m and not to attempt to influence the witnesses or tamper with the records.[Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 SCC OnLine SC 713, decided on 30-05-2022]


Appearance by:

For Petitioner(s): Mr. Mukul Rohatgi, Adv.

Ms. Diksha Rai, AOR

Mr. Ankit Agarwal, Adv.

For Respondent(s): Ms. Deepanwita Priyanka, AOR


Kamini Sharma, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Anupinder Singh Grewal, J., granted bail to the woman who was in custody along with her barely two years old infant in connection with alleged offence committed under UAPA. The main allegation against the petitioner was with regard to a Facebook post supporting banned organization ‘Sikhs for Justice 2020 Referendum’.

The petitioner approached the Court for seeking regular bail in connection with offences under Sections 307, 438, 427, 148, 149 of Penal Code, 1860 (Sections 121, 121-A, 122, 124-A, 115, 120-B IPC) and Sections 11, 12, 13, 17, 18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) including offences under Sections 25, 54 and 59 of the Arms Act and Section 66-F of the Information Technology Act, 2000.

The contention of the petitioner was that she was not named in the FIR in connection with the main incriminating even, wherein a wine shop had been set on fire and the only allegation against her, as transpired from the statement of a co-accused, that she had posted on her Facebook account about ‘Sikhs for Justice 2020 Referendum’. The petitioner further submitted that besides that social media post there was no allegation that she had participated in any unlawful activity. The petitioner admitted ‘Sikhs for Justice Organisation’ had been banned by the Government of India in July, 2019, however, she contended that the alleged post was made on 31-05-2018, when the organisation was not yet banned.

Considering that the allegations against the petitioner, that she had posted about ‘referendum-2020’ on her Facebook account and there was stated to be an audio recording of the petitioner being in conversation with co-accused, the Bench opined that the authenticity and evidentiary value of the audio would be determined at the trial and there was no reference to any act of violence (overt) which was actually committed by any of the accused in the instant case or that any individual had been harmed.

The petitioner was a lady with three minor children, one of whom was about one year and nine months old and is lodged with her in jail. Noticeably, the petitioner had been in custody for over two years and three months and the trial had come to a standstill as a Coordinate Bench of the Punjab and Haryana High Court had stayed further proceedings and there was no likelihood that the trial will be concluded soon. Further, the petitioner did not has any criminal antecedents and the co-accused Harnam Singh and Nirmal Singh had been granted bail as well.

Following the law as laid down in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, wherein the Supreme Court had held that Article 21 of the Constitution provides right to speedy trial therefore long period of incarceration would be a good ground to grant bail to an under-trial for an offence punishable under the UAPA and the embargo under Section 43-D of the UAPA (whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail )would not negate the powers of the Court to give effect to Article 21 of the Constitution, the Bench allowed the petition and the petitioner was ordered to be released on regular bail.

However, the petitioner was directed to furnish her mobile number to the SHO concerned, to keep the location of her phone on and to appear before the SHO on the first Monday of every month till conclusion of the trial. [Deep Kaur v. State of Punjab, CRM-M-41771 of 2020, decided on 21-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Simranjit Singh, Advocate and Arnav Sood, Advocate

For the State: Amarjit Kaur Khurana, DAG, Punjab

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

The District Magistrate had placed one Muntazir Ahmad Bhat under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State. The case of the petitioner (father of the detenu) was that the detenu was arrested and detained under Section 8 of the J&K Public Safety Act, 1978 on false and flimsy grounds without any justification in terms of the impugned detention order.

The grounds of revealed that the detenu met with various terrorists of banned organisation, as Jaish-e-Mohammad (JeM) under whose influence the detenu developed radical ideology and had worked for their unlawful organization by extending all possible logistic support to the terrorists enabling them to carry out the terrorist attack in the area successfully. The detenu was a close accomplice of active terrorist namely Yasir Ahmad Parray. The detenu along-with the said Yasir Ahmad Parray had purchased a Maruti car in the year 2019 and on the instructions of one terrorist, a foreign original namely Junaid Bhat R/o Pakistan loaded the said Maruti car with IED and exploded it on the road near Arihal Village of District Pulwama by targeting patrolling vehicle of 44 RR and also indulged in indiscriminate firing upon the said army patrolling party with the motive and intention to kill them, resulting into martyrdom of 1 army person and injuries to various army personnel. Further, 1 HE-36 hand grenade was also recovered from the compound of detenue’s house.

Observing that there was a likelihood of the detenu recycling into subversive activities, the Bench opined that it will make difficult for the security forces to maintain the public order and safeguard the security of the State and to return the normalcy in the valley if the detenu is released for detention. The Bench remarked,

 “Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires.”

Further, holding that extremism, radicalism, terrorism have become the most worrying features of the contemporary life, the Bench expressed that though violent behaviour is not new, the contemporary extremism, radicalism, terrorism in its full incarnation have obtained a different character and poses extraordinary threats to civilized world. Hence, to keep a check on the illegal activities of the detenu the Bench dismissed the petition holding it to be devoid of merit. [Muntazir Ahmad Bhat v. UT of J&K, 2021 SCC OnLine J&K 900, decided on 12-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: G. N. Shaheen, Advocate

For the UT of J&K: Mir Suhail, AAG

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist).

It was argued before the Court that though the investigation of the case was later on, transferred to National Investigation Agency (NIA), the NIA did not seek sanction for prosecuting any of the accused for the offence punishable under Section 20. Sanction was sought to prosecute Fasal and Shuaib for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute Shuaib under Section 13.

Hence, in view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, it was noticed that a prima facie case of the accused being involved in the said offence is not made out at this stage.

Material against Fasal

  • Fasal’s cell phone had a video clip with the title “Kashmir bleeding”, as well as portraits of various communist revolutionary leaders, like Che Guvera and Mao Tse Tung, as also portrait of Geelani, a Kashmiri leader. Copies of certain posters were also found.
  • Pdf files extracted showed that it contained material regarding abrogation of Article 370 of the Constitution and various other items.
  • The photographs also showed that he attended protest gathering conducted in October 2019 by Kurdistan Solidarity Network.
  • No incrimination evidence was found in the face book account, e-mail accounts and call details of the accused.

Material against Shuaib

  • On Shuaib’s devices, images of CPI (Maoist) flag, files relating to constitution of central committee of CPI (Maoist), files relating to CPI (Maoist) central committee programme, image of hanging Prime Minister, various newspaper cuttings relating to maoist incidents were found. A book was also seized relating to encounter with PLGA (Maoist) at Agali.
  • During the search of his residence, he shouted slogans, such as inquilab zindabad and maoisim zindabad. He also shouted slogans containing greetings to the brave martyrs who died in an armed encounter between Maoist members and police.
  • No incrimination evidence was found in the face book account, e-mail accounts and call details of the accused.

“Mere” association with a terrorist organization – Implication?

Taking the charge sheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation. However, mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39.

“The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet.”

The Court noticed that at formative young age, Fasal and Shuaib might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) in soft or hard form.

“Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of both in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organization.”

The Court noticed that apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the charge sheet, prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge sheet.

Section 43D vis-à-vis Court’s power to grant bail

While deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds.

“However, the Court while examining the issue of prima facie case as required by sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.”

Further, the stringent restrictions imposed by sub-section(5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution.

Bail to Fasal and Shuaib

Having examined the material against both the accused in the context of sub-section (5) of Section 43D by taking the materials forming part of the charge sheet as it is, the Court was of the opinion that the accusation against both the accused of the commission of offences punishable under Sections 38 and 39 does not appear to be prima facie true.

Factors considered

  • Fasal is taking treatment for a psychological disorder and is also a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed.
  • There is no minimum punishment prescribed for the offences under Sections 38 and 39 of the 1967 Act and the punishment can extend to 10 years or only fine or with both. Hence, depending upon the evidence on record and after consideration of relevant factors, the accused can be let off even on fine.
  • Shuaib has been in custody for more than 570 days.
  • As regards the offence under Section 13 alleged against Shuaib, the maximum punishment is of imprisonment of 5 years or with fine or with both.

Hence,

  • The appeal preferred by Union of India is dismissed and the order granting bail to Fasal is confirmed.
  • The impugned Judgment and Order of the High Court to the extent to which it sets aside the order granting bail to him Shuaib is quashed and set aside and the Special Court’s Order dated 9 th September 2020 granting bail to him is restored. Shuaib to be produced before the Special Court within a maximum period of one week to enable him to complete the bail formalities by furnishing the fresh bonds.

[Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, decided on 28.10.2021]


Counsels

For Accused: Senior Advocates R. Basant, Jayanth Muthuraj

For State: ASG S.V. Raju


*Judgment by: Justice Abhay S. Oka

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and A.S. Bopanna, JJ., expressed that

Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.

The right to shelter does not mean right to government accommodation.

Challenge 

Decision of the Punjab and Haryana High Court has been challenged in the present matter.

Background

Single Bench allowed the petition of a Kashmiri migrant, respondent – Onkar Nath Dhar who shifted to Jammu in the year 1989 or so. He was transferred to the office of the Intelligence Bureau in Delhi. Later, he was transferred to Faridabad, wherein he was allotted a government accommodation. Respondent attained the age of superannuation in the year 2006.

Respondent on making a representation to the appellant was allowed to retain the government accommodation till the circumstances prevailing in Jammu and Kashmir improve and Government makes it possible for him to return to his native place.

An eviction order was passed against Dhar under Public Premises (Eviction of Unauthorised Occupant) Act, 1971, but the same was stayed by the Additional District Judge, Delhi.

Later, the Single Judge Bench relied upon an order passed by this Court in J.L. Koul v. State of J&K, (2010) 1 SCC 371, wherein it was held that it was not possible for Dhar to return to his own State and that due to which eviction order shall be kept in abeyance. The same was affirmed by the Division Bench of Punjab and Haryana High Court.

Analysis, Law and Decision

Supreme Court opined that the High Court Orders were unsustainable.

In view of the plethora of Judgments referred by the Court, Bench affirmed that

Government accommodation could not have been allotted to a person who had demitted office. No exception was carved out even in respect of the persons who held Constitutional posts at one point of time.

Therefore, decision of the Punjab and Haryana High Court was erroneous on the basis of compassion showed to displaced persons on account of terrorist activities in the State.

Further, reasoning its decision, Bench stated that compassion could be shown for accommodating the displaced persons for one or two months but to allow them to retain the Government accommodation already allotted or to allot an alternative accommodation that too with a nominal licence fee defeats the very purpose of the Government accommodation which is meant for serving officers.

If a retired government employee have no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation. 

Right to Shelter?

Elaborating more, the Court stated that the right of shelter is taken care of when alternative Transit accommodation is made available to the migrant to meet out the emergent situation.

Government accommodation is meant for serving officers and officials and not to the retirees as benevolence and distribution of largesse.

Policy of Centre to provide accommodation? | Terrorism in J&K

Answering in negative, Court stated that Centre or State do not have any policy to provide the accommodation to displaced persons on account of terrorism in the State of Jammu and Kashmir.

Adding to the above discussion, Bench held that there is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee.

In view of the decision of J.L. Koul  v. State of J&K, (2010) 1 SCC 371  the Kashmiri migrants are entitled to transit accommodation and if transit accommodation could not be provided then money for residence and expenses.

Dhar and such like persons are not from the poorest section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory.

Concluding the matter, Supreme Court found that the orders of the High Courts were wholly arbitrary and irrational, therefore the present appeal was allowed.

Though, the Court directed respondent-Dhar to hand over vacant physical possession of the premises on or before 31-10-2021, i.e., after 15 years of his attaining the age of superannuation. [Union of India v. Onkar Nath Dhar, 2021 SCC OnLine SC 574, decided on 5-08-2021]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J. heard the instant petition against the impugned order passed by District Magistrate (the detaining authority), by which the petitioner had been detained in preventive detention to preventing him from indulging in the activities which were prejudicial to the security of Union Territory. The Bench expressed,

“Either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority.”

The impugned order had been passed by the detaining authority on the basis of material supplied by the SSP. As per the dossier supplied by the police, the petitioner had connections with one foreign militant namely Maz Bahi and was providing assistance to the militants of banned outfit Hizbul Mujahideen. It had been alleged that the petitioner was instrumental in strengthening militancy network in the area of Rafiabad. For which he had been apprehended in connection with case FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act which is still under investigation.

The detaining authority, on the basis of dossier of activities arrived at satisfaction that the petitioner though under judicial remand, was every likely to indulge in subversive activities if he is admitted to bail, therefore, it was imperative to put him under preventive detention.

The petitioner has assailed the impugned order of detention, inter alia, on the following grounds:

  1. The grounds of detention were vague and indefinite and no prudent man can make an effective representation against these allegations;
  2. At the time of passing of the detention order, the detenue was already in custody in and he had neither applied for bail nor was bail otherwise due to him. The detaining authority despite having knowledge of the custody of the detenue has not spelled out any justified and compelling reasons to detain the petitioner under preventive detention;
  3. That the relevant material, like copy of dossier, FIR, statements under Section 161 and 164-A Cr. P. C, seizure memos etc. which had been relied upon in the grounds of detention, were never supplied to him to enable him to make an effective representation nor he was made aware of his right to make representation against his detention to the detaining authority or the government.

The Bench observed that the petitioner had been detained under preventive detention for his alleged involvement in subversive activities which led to the registration of FIR No.161 of 2019 under Sections 18, 39 of ULA(P) Act and 7/25 Arms Act. In the aforesaid FIR, the petitioner was released on bail by on 06-02-2020, whereas Superintendent of Police, who forwarded the relevant record including dossier and other connected documents to the detaining authority, did not bring the factum of petitioner having been released on bail to the notice of detaining authority. It was because of this omission on the part of Senior Superintendent of Police, the detaining authority had categorically stated in the grounds of the detention that the detenue was under judicial remand and that there was every likelihood of his being admitted to bail. The detaining authority had also noted that there was well-founded apprehension based on report received from field information that the petitioner, if released on bail, would again indulge in subversive activities.

The Bench opined that either there was lapse on the part of police to provide all relevant material to the detaining authority or there was lack of application of mind on the part of detaining authority. The Bench expressed,

“At the time of passing of the detention order, the detaining authority was not aware whether the detenue was in police/judicial custody or he stood released on bail. It cannot be denied that it was a relevant information that was required to be produced before the detaining authority to enable it to derive subjective satisfaction with regard to necessity of placing the petitioner under preventive detention.”

Hence, the non-application of mind by the detaining authority was fatal and affected the root of the detention and, therefore, the Bench held that the impugned order of detention was worthy of being quashed. Accordingly, direction were issued to the respondents to release the detenue from the preventive custody.

[Riyaz Khaliq Parray v. UT of J&K, 2021 SCC OnLine J&K 311, decided on 27-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioner: Adv. Wajid Haseeb

For UT of J&K: AAG Asifa Padroo

Hot Off The PressNews

Court of Appeals (UK): Shamima Begum who left east London in order to join ISIS, has won the legal battle to be allowed to return home to fight the government’s decision to revoke her UK citizenship. Begum left Bethnal Green in London with two teenage friends in 2015 to join Isis, when the terror group was at its height. Four years later, after its territorial defeat, she was found in a Syrian refugee camp, nine months pregnant. Her citizenship was revoked by the Home Office on grounds of security. The Court of Appeals partially overturned an earlier ruling by the Special Immigration Appeals Commission which held that she had not been illegally rendered Stateless while she was in Syria because she was entitled to Bangladeshi citizenship.

The then Home Secretary, Sajid Javid had vehemently argued in the favour of Shamima’s citizenship revocation on the ground that she had the right to become a Bangladeshi citizen, the birth country of her parents. The British security sources have argued time and again that Shamima Begum represents a security risk, and that she was a member of Isis’s morality police: al-Hisba, during which time she had a reputation for strictness and used to carry a Kalashnikov rifle on her person.

Shamima Begum’s lawyers contended that she did not have a fair opportunity to give her side of the story and stripping of her citizenship without a chance to clear her name, is not justice.

Perusing her contentions, Lord Justice Flaux held that, “Notwithstanding the national security concerns about Ms Begum, I have reached the firm conclusion that given that the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns.” 


 Source: The Guardian 

                                                                                                                                                                                  

Cabinet DecisionsLegislation Updates

The Union Cabinet has given ex-post facto approval on an Agreement on Security Cooperation between the Government of the Republic of India and the Government of the Kingdom of Saudi Arabia that was signed on 29-10-2019 during the visit of Hon’ble Prime Minister to Saudi Arabia.

The Agreement aims to improve the effectiveness of both countries in the prevention and suppression of crimes including crime relating to terrorism and its financing and organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with national and international obligations.


Cabinet

[Press Release dt. 24-12-2019]

[Source: PIB]

Hot Off The PressNews

Improving Security Situation in Jammu and Kashmir

Union Minister of State for Home Affairs, Shri G. Kishan Reddy, in a written reply to a question regarding the security situation in Jammu and Kashmir, in Rajya Sabha today, said that the Government has adopted a policy of zero tolerance towards terrorism and security forces are taking effective and continuous action in countering terrorism as a result of which a large number of terrorists have been neutralized in the State of Jammu and Kashmir during the past few years.

The details  of  incidents  of  terrorist  violence,  civilian killed and security personnel killed in Jammu and Kashmir during last year and current year (upto 17th November, 2019) are as under: –

Year Terrorist incidents Civilian Killed Security personnel killed
2018 614 39 91
2019 (upto 17thNovember) 594 37 79

Elaborating on the multi-pronged approach adopted by the Government to contain cross-border infiltration, the Minister said that this includes multi-tiered deployment along the International Border / Line of Control, border fencing, improved intelligence and operational coordination, equipping Security Forces with advanced weapons and taking pro-active action against infiltrators.

Attempts of infiltration in Jammu and Kashmir during last year and current year (upto October, 2019) are as under: –

Year Infiltration attempts Net infiltration
2018 328 143
2019 (upto October) 171 114

The Minister also said that the Government has sanctioned construction of 14,460 bunkers, to mitigate the hardships being faced by people living on IB/LoC, due to cross border firing.

The details of incidents of ceasefire violations/cross border firings, civilians killed and security personnel killed in Jammu and Kashmir during last year and current year (upto October, 2019) are as under: –

Year Incidents of ceasefire violations/cross border firings Civilian Killed Security personnel killed
2018 2140 30 29
2019 (upto October) 2753 15 17

The Minister added that as per the report of the Government of Jammu and Kashmir, since 05-08-2019, no person has died due to police firing in law and order related incidents. He noted that during the same period, 3 security force personnel and 17 civilians have been killed in terror-related incidents while 129 persons got injured.


Ministry of Home Affairs

[Press Release dt. 27-11-2019]

[Source: PIB]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Ajay Rastogi, JJ has set aside the order of the Delhi High Court granting bail to Zahoor Watali, a J&K businessman, in a Terror Funding case.

Factual Background

Zahoor Ahmad Shah Watali is alleged to have been involved in unlawful acts and terror funding in conspiracy with other accused persons. He has allegedly acted as a conduit for transfer of funds received from terrorist Hafiz Muhammad Saeed, ISI, Pakistan High Commission, New Delhi and also from a source in Dubai, to Hurriyat leaders/secessionists/terrorists; and had helped them in waging war against the Government of India by repeated attacks on security forces and Government establishments and by damaging public property including by burning schools etc.

Designated Court’s order rejecting bail

The Court noticed that the accusation against Watali was of being a part of a larger conspiracy to   systematically upturn the establishment to cause secession of J & K from the Union of India.  Keeping in mind the special provisions in Section 43D of the Unlawful Activities (Prevention) Act, 1967 it held,

“In view of the above facts and circumstances, the statements of witnesses/material/documents and other material placed on record by NIA, offences as alleged against the accused are prima facie made out. Therefore, in view of the bar under proviso to Section 43D(5) of UA(P) Act,  the accused’s prayer for bail cannot be granted.”

Delhi High Court’s order granting bail

The High Court granted bail to Watali with riders and said,

“The impugned order dated 8th June, 2018 of the trial Court is accordingly set aside. The Appellant is directed to be released on bail subject to his furnishing a personal bond in the sum of Rs.2 lakhs with two sureties of like amount to the satisfaction of the trial Court”

Factors to be considered in bail application as decided in State of U.P. through CBI Vs. Amarmani Tripathi, (2005) 8 SCC 21

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  • nature and gravity of the charge;
  • severity of the punishment in the event of conviction;
  • danger of the accused absconding or fleeing, if released on bail;
  • character, behaviour, means, position and standing of the accused;
  • likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with;
  • danger of justice being thwarted by grant of bail.

Ruling

According to the bench, the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The bench said that the Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true.

It hence, held,

“A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act.”

[National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 SCC OnLine SC 461, decided on 02.04.2019]

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J has asked the Chief Secretaries and DGPs of all the States and Union Territories to take strong and necessary measures to prevent attacks of Kashmiris and other minorities as an aftermath of the Pulwama Terror Attack. It directed:

“The chief secretaries, the DGPs and the Delhi Police Commissioner are directed to take prompt and necessary action to prevent incidents of threat, assault, social boycott etc against Kashmiris and other minorities.”

The bench sought responses from 10 State Governments, namely, are Jammu and Kashmir, Uttarakhand, Haryana, Uttar Pradesh, Bihar, Meghalaya, Chhattisgarh, West Bengal, Punjab and Maharashtra.

Directing that the police officers who were appointed as nodal officers to deal with incidents of mob killings will now be responsible to deal with cases of alleged assault on Kashmiris, the Court directed the Ministry of Home Affairs to give wide publicity of the nodal officers’ contact details so that those who need help can approach them easily.

The matter will next be heard on February 27.

(Source: ANI)

Cabinet DecisionsLegislation Updates

The Union Cabinet chaired by Prime Minister Narendra Modi has approved the MoU between India and Morocco for setting up of a Joint Working Group (JWG) on Counter-Terrorism.

          Setting up of the JWG on Counter Terrorism by India and Morocco would help cases relating to terrorist attacks. The MoU would, thus be the basis for obtaining/exchanging information on terrorist activities.

[Source: PIB]

Cabinet

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of A.M. Shaffique and P. Somarajan, JJ., decided a criminal appeal filed against the Order of the Special Court (NIA cases) denying bail to the appellant (Accused No. 1), wherein the Court set aside the impugned Order and granted bail to the appellant.

The accused was alleged to indulge in terrorist activities. The wife of the appellant, who was living with him in Saudi Arabia, alleged that she was forced to convert her religion from Hinduism to Islam, and now the appellant was making attempts to take her to Syria to join ISIS terrorist organization. She approached the Court to investigate in the matter. The investigation was launched and the National Investigation Agency (NIA) had recovered laptops from the appellant which contained certain literature regarding Jihad movement, speeches of one Zakhir Naik, and videos of the Syria war, etc. The appellant submitted that there was no evidence to establish his link with any terrorist organization; he was unnecessarily detained in prison. He prayed for grant of bail.

The High Court perused the record and held that as the matter stood then, appellant’s link with any terrorist organization was not established. The Court held that simply because the appellant had seen the matter as mentioned hereinabove, it is not by itself a reason to implicate him as a terrorist, unless there is other evidence to establish the same. The Court further observed, “Many of such videos, speeches, etc. are in public domain. Merely for the reason that one sees such matters, it may not be possible for any person to establish that the accused is involved in terrorism.” In absence of any other material, the Court held that it was a fit case to exercise jurisdiction to grant bail. Accordingly, the appeal was allowed and the appellant was enlarged on bail subject to the conditions imposed. [Muhammed Riyas D.V.P. v. Union of India, 2018 SCC OnLine Ker 1722, decided on 12-04-2018]