Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Abhijit Gangopadhyay and Joymalya Bagchi, JJ. allowed an appeal and set aside the conviction and sentence of a stepfather (hereinafter “appellant”) accused of sexually assaulting his minor daughter.

The appellant had been charged with raping his stepdaughter aged around 13 years twice in duration of 4 weeks. The chargesheet was filed and charges were framed under Section 354 (assault or criminal intent to a woman with intent to outrage her modesty) of the Penal Code, 1860 and under Section 5 and 6 of the Prevention of Children from Sexual Offences Act, 2012. The trial Court convicted the appellant for the offence punishable under Section 5(n) of the POCSO Act and sentenced him to rigorous imprisonment for life and pay a fine of Rs 50,000. Appellant-accused filed an appeal against this order.

The counsels for the appellant  Deep Chaim Kabir and R. Arul Peter argued that the alleged incidents were false as the statements of the victim were highly unreliable and contradictory in nature. The incident of outraging the modesty of the victim was not confirmed by her uncle (prosecution witness) in whose house she allegedly took refuge after the incident. There were a lot of inconsistencies in the statements mentioned by the victim. It was also submitted that seizure of incriminating articles like a used condom and sanitary napkins were from a public place which was accessible to all. No forensic evidence to connect incriminating articles with appellant. 

The learned counsel appearing for the State A.S. Zinu argued that evidence of a minor victim of sexual assault must be treated with due sensitivity and care as the appellant is accused of the heinous crime of rape. Also, he contended that the appellant had fiduciary control over victim and this lead to delay in lodging the FIR. The medical report showed that the victim’s hymen was ruptured which indicated rape. The victim herself pointed out the place where the incident had occurred and incriminating articles were found. Her statements were supported by the testimonies of the witnesses and in view of the statutory presumption under Section 29 of the POCSO Act prosecution’s case was well established.

The Court was of the opinion that the evidence led by the prosecution to establish the primary facts was inconsistent. One part of the prosecution case improbabilities the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, the factual matrix of the case did not call for invocation of statutory presumption under POCSO Act to convict the appellant on charges levelled against him. 

In light of the aforesaid discussion, the Court held that conviction and sentence of appellant under Section 5(n) read with Section 6 of Act was liable to be set aside. The appeal was allowed and appellant was directed to be released from custody upon furnishing a bond to the satisfaction of the learned trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure, 1973. [Subrata Biswas v. State, 2019 SCC OnLine Cal 1815, decided on 11-06-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: A Division Bench of S. Chesiwe and P.E. Molitsoane, JJ. set aside the order of the Magistrate as the proceedings were not in accordance with justice.

This pertinent matter was sent on review by the Acting Senior Magistrate under Section 304(4) of the Criminal Procedure Act, 1977 (CPA) because it was submitted that the Presiding Officer applied the provisions of Section 77(6)(a) of the CPA incorrectly.

Under Section 77(6)(a) if the court which has jurisdiction in terms of Section 75 to try the case, finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court may, if it is of the opinion that it is in the interests of the accused, taking into account the nature of the accused’s incapacity contemplated in sub-section (1), and unless it can be proved on a balance of probabilities that, on the limited evidence available the accused committed the act in question, order that such information or evidence be placed before the court as it deems fit so as to determine whether the accused has committed the act in question.

The facts of the case are that the accused was charged with the offence of assault with intent to cause grievous bodily harm. After he appeared before the Court, he was sent to a 30-day mental evaluation. A panel of Psychiatrists made the following observations: Due to mental illness the accused neither has the ability to understand court proceedings nor to give proper instructions to his defence; the accused was not able to distinguish between right or wrong at the time of the alleged crime; the accused is at risk of repeating a similar offence if left untreated; It is recommended that he receives further care and treatment as a State patient.

In dealing with an enquiry in terms of Section 77(6)(a) the court must first make a finding that the accused is not capable of understanding the proceedings so as to make a proper defence. In this regard, the court may take into account the nature of the incapacity of the accused as contemplated in Section 77(1). If the report compiled under Section 79 is unanimous and uncontested by any of the parties as in this case, the court may determine the matter on the basis of the report without hearing further evidence.

Once the court finds that the accused is not capable of understanding the proceedings so as to mount his defence, the court should then proceed with the second leg of the enquiry, namely, whether on the balance of probabilities the accused committed the act in question. The expression “committed the act in question” was explained in the case of State v. Booi Pedro, 2014 SCC OnLine ZAWCHC 110.

“It has reference to the actus reus element of the offence with which the accused is charged. If the lawmaker had intended the court to enquire into the question whether the accused would probably be convicted of the charged offence if and when he became capable of understanding the proceedings, this would have been said. The use of the words ‘committed the act in question’ points to a more limited enquiry.”

The Acting Senior Magistrate failed to conduct an enquiry and make a finding whether the accused ‘committed the act in question’.

The Act obliges the court upon finding that the accused committed any of the following offences, namely, murder, culpable homicide, rape or compelled rape as contemplated in Sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, or charge involving serious violence or if the court finds it to be in the public interest to order that the accused be detained in a psychiatrist hospital pending the decision of a judge in chambers under Section 47 of the Mental Health Care Act 17 of 2002.

The Court observed that assault with intent to cause grievous bodily harm is not always accompanied by violence. One of the elements of the offence of assault with intent to do grievous bodily harm is proof of ‘intent.’ On the other hand, Section 77(6)(a)(i) envisages a situation where the charge involves, as a matter of fact, serious violence.

Further, the order of the Magistrate detaining the accused at the Grootvlei Correctional Facility or Free State Psychiatrist Hospital in terms of Section 77(6) of the Criminal Procedure Act 51 of 1977 was reviewed and set aside.[State v. Simon Monamotsane, Case No. R264 of 2018, decided on 30-05-2019]

Case BriefsHigh Courts

Kerala High Court: B Sudheendra Kumar J., allowed a bail application and relieved the accused person from the custody. 

In the instant case, the accused persons were charged under Section 143 (Punishment for being member in unlawful assembly), Section 147 (Punishment for rioting), Section 148 (Rioting, armed with deadly weapon), Section 341 (Punishment for wrongful restraint), Section 120-B (Punishment for criminal conspiracy) for involving inflicting injuries on the injured person. One of the accused was involved in using a torch as a weapon to assault the injured. 

The High Court upon considering the facts and circumstances of the case stated that the incident was not pre-meditated. The court also considered the period of detention of the accused persons while granting the bail. The Court noted the fact that the other accused persons in the matter had already been granted bail and the remaining accused were in detention for an extended period of time. It granted bail on condition of executing bonds and also stated that the petitioners shall be observed if they involve themselves in a similar act during the pendency of the trial.[Karthik v. State of Kerala, 2019 SCC OnLine Ker 1990, decided on 26-06-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and R.C. Khube, JJ. entertained an appeal filed against the impugned judgment and order passed by Family Court, which rejected the petition under Section 13 of Hindu Marriage Act, 1955 filed by the appellant.

Facts which gave rise to appeal were that marriage was solemnized in 2010 as per the Hindu rites and rituals. The appellant and respondent were living together after the marriage in appellant’s parental house along with appellant’s mother and child. The appellant contended that soon after, the respondent started to intimidate him for selling the house and shift to Delhi and live separately. It is also alleged by the appellant that the respondent stared to threaten him to commit suicide if her demands were not fulfilled. The appellant-accused respondent of attempting to commit suicide and assaulting his mother because of her unfulfilled demands. The appellant tried to convince the respondent but she refused to fulfill her marital duties, and in 2012, in the absence of the appellant, she left her matrimonial home. After which the appellant filed an application under Section 9, during the hearing the respondent appeared before the Court and made a statement regarding going back to her husband. It was also contended by the appellant, that parties stayed together for some time at Haridwar as per the compromised reached between the parties but even then, the respondent refused to consummate marital relations. And since two years both were living separately.

The learned counsel for the appellant Tapan Singh, submitted that despite of the order of Court the respondent was not fulfilling the marital duties. She treated appellant’s mother with utmost disrespect which amounted to cruelty. He also submitted that the behaviour of the alleged respondent towards appellant is humiliating and disrespectful before other relatives, which also caused mental stress to the respondent. Under the drastic circumstance appellant filed for divorce under Section 13(1)(ia) and (ib) of HMA, 1955, as the respondent deserted him for a period of 2 years.

The learned counsel for the respondent Syed Jafri, submitted that an FIR was lodged against the appellant under Sections 406 and 498-A IPC. Further, a mutual divorce application was rejected by the Family Court since both the parties were unable to arrive at consent. The learned Family Court dismissed the divorce petition filed by the appellant as well the petition filed by the respondent under Section 26 of the Hindu Marriage Act.

The Court rejected the contentions of the appellant for relief under Section 13 (1)(ib) as the period of desertion was not proved beyond the statutory limit for divorce. But the ground of cruelty was considered by the Court and it relied upon the judgment of Delhi High Court in, Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Delhi 135, where it was held that if the wife physically assaults the mother-in-law and abuses her, it will amount to cruelty. It also addressed the issue related to behavior of the respondent towards appellant which was alleged disrespectful, and held, “Disrespectful and disparaging remarks by the respondent wife against the appellant-husband would amount to cruelty under Section 13(1) (i-a) of the Act as laid down in Santana Banerjee v. Sachindra Nath Banerjee, 1989 SCC OnLine Cal 257’’.

The Court considered the facts and circumstances of the case and stated that living separately of the parties for a long time, public insult, an embarrassment to the appellant, agony, and humiliation suffered by the appellant, charging the appellant with false allegations amount to cruelty by the respondent towards her husband. The respondent wife is living separately for the last five years and presently staying at Delhi with a son born from the wedlock of the parties. Held, “relationship between the parties had deteriorated to the extent that there was no possibility of any reconciliation. Their relationship had reached to the point from where there appears no possibility of harmonious conjugal relationships or their being living together as husband and wife and discharging the matrimonial duties. This itself amounts to a cruelty, if allowed to continue.” The appeal was allowed and the marriage was dissolved.[Sheenu Mahendru v. Sangeeta, 2019 SCC OnLine Utt 376, decided on 23-05-2019]

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench comprising of S.H. Vora, J., allowed a petition against the detention orders passed under Gujarat Prevention of Anti Social Activities Act, 1985.

The petition was directed against order of detention passed by the respondent in exercise of powers conferred under Section 3(2) of the said Act by detaining the petitioner under Section 2 (c) of the same due to registration of offences under Sections 454, 457, 380 and 114 IPC that led to breach of public order.

The petitioner agreed that though it may be a breach of law and order but it failed to have any nexus with maintenance of public order as except statement of witnesses, registration of FIR/s and panchnama, there existed no other corroborating material on record which have had affected even the tempo of the society causing threat to the very existence of normal and routine life of people at large.

Referring to Pushker Mukherjee v. State of W.B., 1969 1 SCC 10, the Court concluded that every act of assault or injury to specific persons does not lead to public disorder and hence subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law plus no other relevant penal provisions existed for invoking power under Section 3(2) of the Act. Accordingly, the Court passed release orders for the petitioner. [Vijay Rasikbhai Karsanbhai Thakor v. State of Gujarat,2017 SCC OnLine Guj 2229, order dated 06-09-2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that a six year old girl, studying in a government school in Delhi, has been allegedly raped by a person working as an electrician with the school around 1.30 P.M. on the 8th August, 2017.

The Commission has observed that the contents of the news report, if true, amount to violation of human rights of the victim. Accordingly, it has issued notices to the Chief Secretary, Government of NCT of Delhi and the Commissioner of Police, Delhi calling for a detailed report in the matter within four weeks. The Chief Secretary is expected to inform whether all the guidelines/directions issued by the authorities for the safety of the students are being followed by the schools in Delhi. The Commission has also observed that the incident is reported to have happened in a government school. Being the custodian of the students, the school authorities are responsible for the safety and security of its students, especially the girl students. Prima Facie the incident indicates towards negligence by the school administration.

The NHRC also feels that there should be a State Human Rights Commission in Delhi to deal with such cases of alleged violation of human rights. However, till it comes into existence, it would continue addressing the issues pertaining to the NCT of Delhi. According to the media report, carried on the 10th August, 2018, the incident took place when the victim girl was about to return home, but she was stopped by the accused. The accused also allegedly warned the victim not to tell it to anyone. The victim was medically examined and the reports confirmed that she has been subjected to rape. An FIR in the matter has been registered by the police and the accused has been arrested.

National Human Rights Commission

Case BriefsHigh Courts

Himachal Pradesh High Court: A criminal revision petition filed under Section 320 read with Section 482 CrPC for compounding the criminal case pending against the petitioners was allowed by Single Judge Bench comprising of Tarlok Singh Chauhan, J.

The petitioners were allowed to have assaulted the complainant out of the previous enmity between them. They were tried and sentenced by the trial court under Sections 324 and 477 read with Section 34 IPC. Petitioners filed the present petition submitting that they have entered into an amicable settlement with the complainant. It was further submitted that the parties have buried their differences and disputes; they have good relations and live in peace and harmony; the complainant did not want to prosecute the matter any further.

The parties were present before the High Court and they submitted the deed of settlement by which it was clear that the complainant did not want to pursue the case further. The Court relied on Gian Singh v. State of Punjab; (2012) 10 SCC 303, wherein it was held that the powers of the High Court under Section 482 are wider than the power of a criminal court to compound an offence under Section 320 CrPC. Considering the fact that the offence for which the petitioners were charged cannot be stricto sensu held to be an offence against the State, and also that the parties have settled the suit amicably; the High Court held it to be a fit case to exercise powers under Section 482. Accordingly, the petition was allowed and the matter was ordered to be compounded. [Sunit Singh v. State of H.P,2018 SCC OnLine HP 606, dated 15-05-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: In an appeal filed against the conviction of the appellants by the trial court under Section 307 IPC, a Single Judge Bench comprising of Arvind Singh Chandel, J., altered the conviction from Section 307 to Section 308 IPC.

The appellants were alleged to have assaulted the complainant by causing head injury to him. It was alleged that they had an enmity with the complainant and therefore on the day of the incident, they assaulted him with a danda. The appellants were charged under Section 307 IPC for an attempt to murder. The appellants challenged the decision of the trial court.

The High Court on considering the record found that the enmity between the parties arose out of certain money dispute. The Court found that the assault was made in the crowd. It was observed that if the intention to make the assault had been to commit murder, the appellants would not have committed the assault in a crowd. Further, as was evident from the medical report, only one grievous injury was caused on the head of the complainant. However, according to the medical expert, the injury was not dangerous to life. Had the intention of making the assault been to commit murder, the appellants would have caused more than one injury. In such circumstances, the intention to cause murder, a necessary ingredient to prove the offence under Section 307, was absent. The Court was of the view that the offence committed would fall under Section 308 (attempt to culpable homicide) since the appellants were aware that such injury could cause the death of the complainant. The appeals were partly allowed and the conviction was altered from Section 307 to Section 308. [Devi Singh v.  State of M.P.,2018 SCC OnLine Chh 513, dated 18-5-2018]

Hot Off The PressNews

In an unfortunate incident that took place last night, six NUJS students were groped and brutally assaulted by a mob of goons hired by the government contractor in charge of demolition of the Subhas Sarovar slums. After the students of NUJS Kolkata obtained a stay order of Calcutta High Court on the demotion of slum housing.

Narrating the sequence of events, the Student Juridical Association, NUJS, in it’s official Press Release, said that despite the stay order, the contractors demolished the slums at which point NUJS students went to the contractors with the copy of the Court order. On being confronted, the order was torn up, following which the female students were groped by multiple goons and the male students were grievously assaulted till they were unconscious. Their phones were smashed and destroyed and when they tried to escape, the gates of the area, which is a fenced enclosure, were shut.

Terming the incident as manhandling of collective conscience, the student association wrote:

“we, as the law school fraternity, must stand together against this complete obliteration of the rule of law that we seek to defend and practice. We sincerely hope that in this hour of need, our collective conscience will inspire us to participate in defending and echoing the common ideals of liberty and rule of law that bind us together.”

As per the latest update, the Calcutta High Court has immediately ordered the state for rehabilitation of the evicted slum dwellers within 24 hours and has issued a contempt of court notice against perpetrators.

Last month, the public interest team at Increasing Diversity By Increasing Access (IDIA) comprising of NUJS students had obtained a stay on slum demolitions in Kolkata’s Subhas Sarovar area.

As part of its beautification project, the West Bengal state government planned to demolish the slums in the area, which would render around twenty-two families living there for more than a decade, homeless. Three of the slum dwellers, including octogenarian Shiv Shankar Ray, sought to file a petition before the Calcutta High Court challenging the government’s decision. The petition was drafted by the IDIA team comprising of NUJS students– which received help from pro bono lawyers practising at the High Court.