Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., while dismissing the petition in regard to quashing of FIR and final report that alleges petitioner of being punishable for offence under Section 509 of Penal Code, 1860, referred to the Supreme Court decision of Deputy Inspector General v. Samuthiram, (2013) 1 SCC 598, wherein it was held that,

“…Sexual harassment like eve-teasing of women amounts to violation of rights guaranteed under Article 14, Article 15 as well. We notice in the absence of effective legislation to contain eve-teasing, normally, complaints are registered under Section 294 or Section 509 IPC. …… Eve teasing today has become pernicious, horrid and disgusting practice. ….. More and more girl students, women etc. go to educational institutions, work places etc. and their protection is of extreme importance to a civilized and cultured society.”

Facts of the present case are,

De facto complainant while proceeding to her house was approached by a motorcyclist who invited her to accompany him on his bike and further also made sexual gesture to her with his hand.

Further based on written complaint by the victim, a case was registered by the petitioner, after which on completion of the investigation a final report was filed against the petitioner for an offence punishable under Section 509 of IPC.

The present petition was thus filed under Section 482 CrPC for quashing of FIR & final report registered against the petitioner.

Petitioner’s counsel raised 3 grounds:

  • Allegations made against the petitioner in FIR do not attract the offence punishable under Section 509 IPC
  • Allegations raised in final report do not disclose commission of an offence punishable under Section 509 IPC
  • Acts allegedly committed by petitioner are trivial in nature and they come within the purview of Section 95 of IPC.

“Section 509 IPC provides that whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished.”

Further, it is to be noted that, there is a distinction between an act of merely insulting a woman and act of insulting the modesty of a woman.

To attract Section 509 IPC, merely insulting a woman is not sufficient. Insult to the modesty of a woman is an essential ingredient of an offence punishable under Section 509 IPC. Crux of the offence is the intention to insult the modesty of a woman.

In the case of Rupan Deol Bajaj v. K.P.S Gill, (1995) 6 SCC 194, it was stated that,

 “If the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of decency of a woman, then it can be found that it is an act of insult to the modesty of the woman.”

 In the instant case, petitioner and the victim were not previously acquainted with each other. Therefore it cannot be found that the intention of the petitioner was to give the victim a lift or free ride on the motorcycle, on account of friendship or relationship with her.

Acts allegedly committed by the petitioner amount to an affront to her feminine decency. Invitation made to the victim contained an insinuation that she was a woman of easy virtue who was ready and willing to go with any man during night.

Counsel for the petitioner contended that — intention has to be gathered from the act complained of and the circumstances under which it is committed.

Adding to his contentions, he also stated that if even the alleged acts were committed by the petitioner they were trivial in nature and should come within the purview of Section 95 of IPC. He also relied on the Supreme Court’s decision in Veeda Menezez v. Yusuf Khan, AIR 1966 SC 1773.

Act of affront to the decency and dignity of a woman cannot be considered as trivial in nature.

 It is to be noted that Section 354 IPC prescribes the punishment for outraging the modesty of a woman by an act of assault or use of criminal force. In spite of the existence of the aforesaid provision, legislature has incorporated Section 509 IPC, making punishable even a verbal attack of insulting the modesty of a woman.

Thus, in Court’s opinion, the contentions of the petitioner cannot be accepted and petition stands dismissed. [Abhijeet J.K. v. State of Kerala, 2020 SCC OnLine Ker 703, decided on 20-02-2020]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Divison Bench of Mushir Alam and Qazi Faez Isa, JJ. allowed a petition seeking to set aside lower Court’s direction for deoxyribonucleic acid (DNA) test of a lady.

Respondent herein had filed a suit against the petitioner alleging that she was adopted by his father, late Abdul Qayum and brought up as his own daughter. However, the fact of adoption was concealed from her. In his suit, respondent sought declarations that Laila was not the real daughter of Abdul Qayum and, had no right to his legacy. Further, he filed an application seeking a DNA test to be conducted to determine whether Laila is the daughter of Abdul Qayum. The application did not, as per procedural requirement, cite any provision of law whereunder it was submitted; but the same was allowed. Aggrieved thereby, the instant petition was filed.

Petitioner’s counsel challenged respondent’s locus standi to question the petitioner’s paternity and contended that the suit filed by him was not maintainable under Sections 39 and 42 of the Specific Relief Act, 1877. He also referred to Article 128 of the Qanun-e Shahadat Order, 1984 according to which only a putative father may challenge the paternity of a child.

The Court opined that a declaration in suit can only be made in favour of a person who is entitled to any legal character or right, as to any property, which another is denying. In the instant case, petitioner had neither denied respondent’s legal character nor his right to any property. Reliance in this regard was placed on Abdur Rahman Mobashir v. Amir Ali Shah, PLD 1978 Lahore 113.

Further, Article 128 does not permit a putative brother, viz., respondent herein, to challenge his sister’s paternity. Judgment in Salman Akram Raja v. Government of Punjab, 2013 SCMR 203 was also relied on to hold that a free lady cannot be compelled to give a sample for DNA testing as it would violate her liberty, dignity and privacy guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan.

In view of the above, the impugned order was set aside. [Laila Qayyum v. Fawad Qayum, 2019 SCC OnLine Pak SC 2, Order dated 18-02-2019]

Case BriefsSupreme Court

Life commands self-respect and dignity.

                                        -Dipak Misra, CJ

Supreme Court: The bench comprising of Dipak Misra, CJ and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. awarded a compensation of Rs 50 lakhs to the appellant while disposing of an appeal filed against the judgment of a Division Bench of Kerala High Court whereby the decision of the Single Judge quashing the order of State Government declining to take action against the erring police officers concerned was reversed.

In January 1994, a criminal case was registered against one Mariam Rasheeda, a Maldivian National under Section 14 of the Foreigners Act, 1946 and Paragraph 7 of the Foreigners Order. While being interrogated by Kerala Police and Intelligence Bureau, she made certain confessions which led to registration of another criminal case under Sections 3 and 4 of the Indian Official Secrets Acts, 1923 alleging that certain official secrets and documents of Indian Space Research Organisation (ISRO) had been leaked out by scientists of ISRO. In November 1994, investigation of both the cases was taken over by the Special Investigation Team headed by Respondent 1. Pursuant to this, the appellant –  erstwhile scientist at ISRO – was arrested along with other persons. In December 1994, the investigation was transferred to the Central Bureau of Investigation. After the investigation, the CBI submitted a report before the Chief Judicial Magistrate, Ernakulam, under Section 173(2) CrPC stating that the evidence collected indicated that the allegations of espionage against the scientists at ISRO, including the appellant herein, were not proved and were found to be false. This report was accepted vide court’s order and all the accused were discharged. In June 1996, State of Kerala, being dissatisfied with the CBI report, issued a notification and decided to conduct re-investigation of the case by the State Police. Subsequently, the Supreme Court in K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223 quashed the notification of the State of Kerala for re-investigation holding that the said notification was against good governance and consequently, all accused were freed of charges. Another writ petition was filed before the High Court wherein a Single Judge quashed the order dated 29.06.2011 passed by the State of Kerala whereby the Kerala Government had decided not to take any disciplinary action against the members of the SIT (erring police officers) and consequently remitted the matter to the State of Kerala for reconsideration and passing further orders within three months. The said decision was reversed by a Division Bench vide the order impugned. It was urged by the appellant that the prosecution launched against him by the Kerala police was malicious on account of two reasons. Firstly, the said prosecution had a catastrophic effect on his service career as a leading and renowned scientist at ISRO, thereby smothering his career, lifespan, savings, honour, academic work as well as self-esteem and consequently resulting in total devastation of the peace of his entire family which is an ineffaceable individual loss. Secondly, the irreparable and irremediable loss and setback caused to the technological advancement in Space Research in India.

The Supreme Court, at the outset, observed that to say the least, the delineation by the Division Bench was too simplistic. It was stated that the entire prosecution initiated by the State police was malicious and caused tremendous harassment and immeasurable anguish to the appellant. It wasn’t a case where the accused was kept under custody and, eventually, after trial, he was found not guilty. The State police was dealing with an extremely sensitive case and after arresting the appellant and some others, the State, on its own, transferred the case to CBI. After comprehensive enquiry, the closure report was filed. An argument was advanced by the respondents that the fault should be found with CBI but not with the State police, for it had transferred the case to the CBI. The said submission was noted only to be rejected. The criminal law was set in motion without any basis. It was initiated on some kind of fancy or notion. The liberty and dignity of the appellant which are basic to his human rights were jeopardized as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. According to the Court, such situation invited the public law remedy for grant of compensation for violation of the fundamental right envisaged under Article 21 of the Constitution. In such a situation, it springs to life with immediacy. It is because life commands self-respect and dignity. The Court made references to D.K. Basu v. State of W.B., (1997) 1 SCC 416; Joginder Kumar v. State of U.P., (1994) 4 SCC 260; Kiran Bedi v. Committee of Enquiry, (1989) 1 SCC 494; etc. In the words of the Court, reputation of an individual is an insegregable facet of his right to life with dignity. In the final analysis, the Court held that it can be stated with certitude that the fundamental right of the appellant under Article 21 had been gravely affected. There could be no scintilla of doubt that the appellant, a successful scientist having national reputation, was compelled to undergo immense humiliation. The lackadaisical attitude of the State police to arrest anyone and put him in police custody made the appellant suffer the ignominy. The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. Keeping in view the report of the CBI and the judgment in K. Chandrasekhar, The Court ordered the State to pay Rs 50 lakhs as compensation to the appellant. It was further held that the obtaining factual scenario calls for constitution of a Committee to find out ways and means to take appropriate steps against the erring officials. For the said purpose, the Court constituted a Committee which shall be headed by Justice D.K. Jain, a former Judge of Supreme Court. The Central Government and the State Government were directed to nominate one officer each so that apposite action could be taken. The Committee shall meet at Delhi and function from Delhi. However, it has option to hold meetings at appropriate place in the State of Kerala. The appeal was accordingly disposed of. [S. Nambi Narayanan v. Siby Mathews,2018 SCC OnLine SC 1500, decided on 14-09-2018]

Hot Off The PressNews

On day 30 of the Aadhaar Hearing, Senior Advocate Rakesh Dwivedi continued with his argument probabilistic method that he had begun on Day 29 of the hearing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from Day 30 of the Aadhaar Hearing:

  • Dwivedi: The algorithms which are probabilistic are not all identical. Parliament was conscious of the exclusion that could happen. It was also aware of the digital divide. Hence, provided three alternatives under section 7 of the Aadhaar Act. 2016. There can’t be denial of service. Option to furnish proof of possession of Aadhaar number under section 7 if authentication can’t be done.
  • Chandrachud, J: Does proviso to section 7 apply to third alternative?
  • Dwivedi:
    • Yes, it is applicable in case an individual has applied but has not been assigned Aadhaar number.
    • There is no question of denial. Denial is something that should not happen, ought not to happen. Though some more actions would be required to ensure this.
    • For limited purpose, ration cards are also included. If for some reason, one member of the family is unable to authenticate, any other member of family can come for authentication.
  • Chandrachud, J: Is there is any isolated pocket in country where Aadhaar services have not been able to reach?
  • Dwivedi:
    • In such a case, alternative methods will apply.
    • As of now-pending the judgment, even if someone has not enrolled for Aadhaar, there’s no compulsion under section 7. There’s still time. The third alternative under S. 7 can apply only if the enrolment process has begun.
    • In case of PDS scheme, the central govt. is competent to replace the identification card with which benefit is to be obtained if it thinks that the latter is more reliable. Thus, it can replace the ration card with Aadhaar card.
    • Every institution will have some kind of identification procedures and we will have to follow them. These are regulatory processes.
    • When you identify, it is a matter of dignity. Because you are recognised. We all strive to get recognised. It is a matter of pride.
    • No right is absolute. Regulations are permissible.
  • Chandrachud, J: There should be a choice of identity. If the choice is not there, it is not proportional.
  • Dwivedi: If you have to get benefits from an institution,you should comply with the requirements prescribed by it. Aadhaar is unique and universally applicable. No language barrier like other ID cards.
  • Chandrachud, J: If my biometric are attached to every transaction I undertake, it ceases to be just an identification mark.
  • Dwivedi: Only one finger or one iris is used for authentication. It discloses no information.
  • Chandrachud, J: Fingerprint by itself doesn’t disclose any info. But, when it attaches with all the other information, it forms a wealth of information. There comes the need of data protection.
  • Dwivedi: Data is disaggregated between different REs.
  • Chandrachud, J: In such a case, aggregation of data is all the more possible.
  • Dwivedi: In most cases, authentication is done only once. Eg. PAN. It is for lifetime. For sim cards, it is done only at the time of obtaining it. So, where is this multiplication of authentication from morning to evening coming from? Realistically speaking, there’s no trail of authentication from morning to evening. No real time tracking is done.
  • Shyam Divan interjects: The demo of withdrawing Rs 100 using a thumbprint was shown in the court. That’s tracking.
  • Dwivedi: Where is it provided in law that you need to give thumbprint every time you transact? You only have to link it with your bank account.
  • Shyam Divan: I am asked for my thumb impressions everytime I need to open a Fixed Deposit.
  • Dwivedi: Not everybody is capable of opening FD everyday. It is done only once or twice in a year generally.
  • Dwivedi (On dignity): There are two parts of preamble.
    • “To secure to all its citizens…” and
    • “to promote among them all…”
    • Securing justice is a part of the basic feature of the Constitution. Minimum requirements to enable a man to survive to live is a position duty of the State. And it is for these minimum requirements that the Acts like NFSA, etc. are there.
  • Chandrachud, J: Constitution protects dignity in all its forms.
  • Sikri, J: Food is a part of dignity and so is privacy. When there’s a conflict between the two, it has to be considered which should prevail. But, why can’t we say that there’s no conflict. Both are to be ensured.
  • CJI: The point is when you take fingerprints for Aadhaar, it gets stored in Aadhaar. This is an invasion of right to privacy.
  • Dwivedi: Any system which involves biometrics will require storage of biometrics- either at single point or multiple.
  • CJI: Minimal intrusion with legitimate interests have to be ensured.
  • Dwivedi: Providing services and benefits is to ensure dignity and liberty of individuals. Which is a legitimate interest.

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To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin