Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a PIL seeking extension of facilities to every person with a disability in need of special assistance irrespective of the percentage of disability, the Division Bench of S. Manikumar CJ., and Shaji P. Chaly, J., issued notice to Union Government and the State of Kerala.

The petitioner, a person with 25% learning disability, had approached the Court with an allegation that the disability criteria for the students in need of special assistance in the State Government schools for the SSLC (Secondary School Leaving Certificate) and Higher Secondary Examinations is still 40% or above and that the State Government has not framed any rules for the differently abled students as directed by the High Court in Blessen Baby v. State of Kerala, 2020 SCC OnLine Ker 714.

Noticeably, when the petitioner was studying in Class X, his request for a scribe as per Section 4(2) and 17(i) of the Right of Persons with Disabilities Act, 2016 for the public examination was rejected by the authorities on the ground that the disability should be 40% or above for the assistance of a scribe for the SSLC examination for the year 2020.

While hearing the petitioner, at that time, the Court in Blessen Baby case (supra) had directed the State Government to re-visit the guidelines in vogue issued by the Government of Kerala and to issue fresh guidelines, after taking note of the guidelines issued or to be issued by the Ministry of Social Justice and Empowerment, Union Government in tune with the directions issued by the Supreme Court in Vikash Kumar v. Union Public Service Commission, 2021 SCC Online SC 84.

Pursuant to the directions of the Court, the petitioner had passed his Xth and XIIth standard examinations with the aid of a scribe.

In Avni Prakash v. National Testing Agency (NTA), 2021 SCC OnLine SC 1112, the Supreme Court observed that despite the clarification of the position in law in Vikash Kumar (supra), the law continues to be violated and NTA has continued to restrict the grant of facilities only to Persons with Benchmark Disability (PwBD). To address the hardships faced by the persons with disability, the Supreme Court issued the following directions:

  • “The facility of reservation in terms of Section 32 of the Rights of Persons with Disability (RPwD) Act, 2016 is available to PwBD. Other facilities contemplated by the RPwD Act, 2016 for PwD cannot be so restricted by an administrative order which would be contrary to the provisions of the statute.

  • Individual injustices originating in a wrongful denial of rights and entitlements prescribed under the law cannot be sent into oblivion on the ground that these are a necessary consequence of a competitive examination.

  • Having due regard to the decision of this Court in Vikash Kumar (supra) and the statutory provisions contained in the RPwD Act, 2016, facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;

  • By way of abundant caution, it is clarified that for the purpose of availing of the reservation under Section 32 of the RPwD Act, 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; and

  • The persons working for the first respondent and exam centres like that of the second respondent should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs.”

On the contention of the State that it had already issued guidelines in the matter of extending concession to the candidates with special needs having 40% or more disability, the petitioner submitted that irrespective of the percentage of disability, the benefits of the earlier judgment of the Court may be extended to all the students in need of special assistance in SSLC as well as first year and second year Higher Secondary examinations.

Considering the above, the Court had issued notice to the Union Government and the State of Kerala.

[Blessen Baby v. Union of India, 2022 SCC OnLine Ker 4269, decided on 04-08-2022]


Advocates who appeared in this case :

Mr. Sheji P. Abraham, learned counsel for the petitioner;

S. Manu, learned ASGI, Sri. N. Manoj Kumar, learned State Attorney.


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

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. disposed of a writ petition which was filed by an ailing, retired bank employee alleging that the police authorities have failed to take steps although several complaints were filed alleging indiscriminate use of loudspeakers and microphones by some persons in the locality, in which he resides. Allegation was of noise pollution caused due to blaring music from loudspeakers which do not have sound limiters.

It was submitted that such public nuisance must be prevented by the police.

The Court directed the Inspector-in-Charge to ensure that in the area under his jurisdiction, use of microphones, loudspeakers, all musical equipment’s and instruments, either for private use or for entertainment of the public, as well as at public meetings, should be regulated by the orders passed by the Supreme Court, High Court and National Green Tribunal. The Court emphasized that the guidelines must be followed, and restrictions must be imposed and further, the notification issued by the Principal Secretary to the Govt. of West Bengal, Department of Environment on 29-12- 2009, should be complied with.

The Court further directed that the sound level must be within the permissible limit/range. Loudspeakers, microphones and loud music shall not be allowed between 10:00 p.m. to 6 a.m. and a vigil shall be maintained in the locality to prevent noise pollution in general.

[Tarunmoy Modak v. State of West Bengal, 2022 SCC OnLine Cal 1948, decided on 11-07-2022]


Advocates who appeared in this case :

Ms Riya Das, Advocate, for the Petitioner;

Mr Subhabrata Datta, Mr Banibrata Datta, Advocates, for the State-Respondents;

Mr Debasis Sur, Mr Himadri Shekhar Paul, Mr Anshuman Patra, Advocates, for the Respondent 15.


*Suchita Shukla, Editorial Assistant has reported this brief.

Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: The Division Bench of Aravind Kumar, CJ. and Ashutosh J. Shastri, J. allowed a writ petition which was filed seeking for a direction to fill up the post of Presiding Officer in Debt Recovery Tribunal-I, Ahmedabad contending inter-alia such vacancy violates the legal rights of the petitioner, bankers/lenders, borrowers, guarantors and other stake holders.

Petitioner, an advocate contended that he is a certified Chartered Accountant, Company Secretary and has also undertaken many specialized courses such as Certified Fraud Detection and Forensic Accountant, International Financial Reporting Standards, Concurrent Bank Audit etc. As there was no Presiding Officer posted to DRT-I, petitioner herein had filed a writ petition contending that not only the litigant public but also the advocates are facing utmost difficulty.

The Court noted that Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training Secretariat of the Appointments Committee of the Cabinet had issued a notification whereby decision in respect of appointments approved by the Committee of Cabinet for filling up the posts of Presiding Officers in various Debt Recovery Tribunals including DRT-I at Ahmedabad came to be circulated but said notification has not crystallized by way of appointment being made to DRT-I.

The Court relying on Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 reiterated that Right to speedy justice is enshrined under Article 21 of the Constitution of India. The Court explained that litigants whose matters are before DRT-II would be able to get the relief at the hands of DRT-II, whereas litigants who are similarly placed and seeking reliefs by filing the petition, which is pending before DRT-I, are not able to get the relief namely, their applications or petitions are getting adjourned from time to time for want of Presiding Officer and thereby depriving them of their legitimate right to speedy justice.

The Court pointed out that Additional Solicitor General of India had made statement before this Court on 13-06-2022 that process for filling up the vacancy of the Presiding Officer, DRT-I is under way and shortly it is coming to an end and if necessary, steps would be taken to issue office orders for making in-charge arrangement but the assurance given to this Court has not crystallized by way of any such steps having been taken or order having been issued.

The Court consequently allowed the petition directing the respondent to conclude the process for appointment of the Presiding Officer in DRT-I, Ahmedabad, expeditiously and at any rate within an outer limit of two months. Till such time, the respondent was directed to issue appropriate notification for placing Presiding Officer, DRT-II, Ahmedabad, with additional charge of Presiding Officer, DRT-I, Ahmedabad, forthwith.

[Nipun Praveen Singhvi v. Union of India, 2022 SCC OnLine Guj 828, decided on 21-06-2022]


Advocates who appeared in this case :

Mr Vishal J Dave and Ms Hiralu Mehta, Advocates, for the Applicant; 1

Mr Siddharth Dave, Advocates, for the Opponent 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court (Dharwad Bench): Suraj Govindaraj, J. while deciding a matter regarding handcuffing of an accused during arrest, held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others.

Some disputes had arisen between a law student studying in Shikshan Prasrak Mandals Law College at Raibag (‘the petitioner’) and Babu Annappa regarding a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Due to this, five criminal cases were filed against the petitioner for offences under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. Pursuant to this, the petitioner was arrested by the Respondent 3- Police Sub-Inspector, Ankali Police Station after a non-bailable warrant was issued Thereafter, he was allegedly paraded with handcuffs in Ankali Town and later on was taken in a bus in handcuffs from Ankali to Chikodi Police Station, without being produced before the Court.

Later on, the petitioner’s bail application was rejected, and he was remanded to judicial custody. He appealed the order of conviction which was thereby stayed The petitioner alleged that despite the conviction being stayed, he was repeatedly harassed by the police as they would illegally arrest or detain him, visit his house, and threaten him. Thus, the petitioner filed the present writ petition seeking relief in nature of compensation under Articles 226 and 227 of Constitution of India, for the damage caused to his life and reputation due to illegal detention and illegal handcuffing even prior to the petitioner being proven guilty.

Issues framed by the Court:

1. Whether the accused who is arrested can be handcuffed? If so, under what circumstances?

2. If there is any violation by the Arresting Officer, would the accused be eligible for compensation?

3. On what basis is the compensation required to be determined and paid?

4. Whether the accused suffered damage to his life and reputation or not? If yes, then what amount of compensation should be awarded?

Relevant Statutory Provisions regarding Arrest and Handcuffing

A perusal of Section 46 of the Code of Criminal Procedure, 1973 ‘CrPC’ indicates that a person can be arrested by touching or confining the body of the person to be arrested, unless there is a submission to custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.

Section 49 CrPC indicates that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Therefore, it is the requirement of law that the restraint has to be reasonable and only to the extent that the person does not escape from custody.

Section 220 of Penal Code, 1860 ‘IPC’ indicates that if a person who has legal authority to confine a person, confines such a person contrary to law, he shall be punishable with imprisonment, which may extend to seven years or with fine or with both.

Sections 831, 832, 833, 834 and 835 of the Karnataka Police Manual provide for instructions for using handcuffs. A perusal of the said provisions would indicate that the prisoner should not be normally handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing. In the event of an accused is handcuffed, the facts and reasons for it is required to be recorded in the Station House Dairy.

Analysis and Findings:

Reliance was placed on Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 and Antonio Sebastiao Mervyn Degbertde Piedade Pacheco v. State of Goa 2008 (6) AIR Bom R 585 and observed that normally during arrest an accused cannot be handcuffed. Only under extreme or exceptional circumstances, such as violent tendencies or the possibility of escape, can an accused be handcuffed. Furthermore, there are some requirements to be fulfilled by the authorities in such a case:

  • When an accused is handcuffed, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court.

  • Whenever an accused is produced before the Court of law, it would be required of the Court to enquire if the accused had been handcuffed or not and if handcuffed, to ascertain the reasons recorded by the Arresting Officer on the justifiability on the same.

Thus, the court held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others. The nature of offences and the punishment prescribed for the said offence are not relevant for the matter of handcuffing.

Dealing with the issue regarding compensation, reliance was placed on D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and observed that “if there is a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation”. Thus, in the present case, the State is responsible for compensating the petitioner and the amount of damage is to be calculated on the basis of any evidence and documents produced by the petitioner.

Regarding the third issue, the court held that there are a few considerations that have to be made while awarding the compensation, these considerations are as follows:

  • The court should take into consideration the loss/damage that might have been caused to the person who has been handcuffed.

  • The court should also consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law. Additionally, although the State would be required to pay the compensation, the State would be at liberty to recover the same from the concerned defaulter(s).

Thus, the court observed that “Compensation which is required to be paid as aforesaid being a Public Law Remedy, there cannot be a straitjacket formula which could determine the amount of compensation that has to be paid. Be that as it may. The compensation which is required to be paid is by applying the principles of strict liability.

Lastly, the court held that the evidence provided by the petitioner does not sufficiently prove that the petitioner was paraded in handcuffs and his reputation has been as immensely damaged as he claims. Thus, for the procedural irregularity of handcuffing, the petitioner was awarded Rs. 2 lakhs as compensation as opposed to Rs 25 lakhs which was originally demanded.

[Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133 decided on 10-06-2022]


Advocates who appeared in this case :

Santosh P. Pujari, Advocate, for the Petitioner;

Praveen K. Uppar, Advocate, for the Respondent.

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

In the earlier hearing, the Bench had ordered the concerned State authorities, through the Additional Advocate General, to complete the process of installation of CCTV cameras in the remaining seven (7) Police Stations and report compliance on the next date. The Court found that the State authorities have complied with the directions of this Court insofar as installation of Closed Circuit Television (CCTV) cameras in the Police Stations and also in the Check-Posts within the State of Sikkim.

Coming to the main issue the Additional Advocate General informed the Court that there were at present thirteen (13) missing children and the concerned State authorities were taking steps to trace them out. Amicus – on the other hand – submitted that the concerned authority of the State was required to furnish quarterly reports to the State Legal Services Authority of Sikkim in compliance with the directions of the Supreme Court.

The Court issued the following directions keeping in mind the facts and circumstances of the instant case:

(i) The concerned authority/authorities of the State shall trace out the thirteen (13) missing children as expeditiously as possible and positively within a reasonable timeframe;

(ii) The concerned authority/authorities of the State shall file quarterly reports with the office of the State Legal Services Authority of Sikkim with regard to the status of investigation regarding the thirteen (13) missing children and the steps being taken in order to trace them out. Apart from this, the quarterly reports shall also give full details of any incident of any child going missing in the days to come for which immediate action shall be initiated by the concerned State authority/authorities in accordance with law. We make it clear that even if the missing children are traced, that should not be the culmination of investigation. The process of finding out as to why they actually went missing shall continue till the concerned authority of the State is clearly able to establish the actual reason thereof.

(iii) At any time, in future, if the learned Amicus Curiae is of the opinion that this Court’s jurisdiction in respect of missing children is required to be invoked again, he is at liberty to do so.

[Missing Children, In Re., 2022 SCC OnLine Sikk 27, decided on 07-04-2022]


For Petitioner : Mr Tashi Rapten Barfungpa, Amicus Curiae, Mr Hem Lall Manger

For Respondents 1-7 : Mr Sudesh Joshi, Addl. Advocate General, Mr Thinlay Dorjee Bhutia, Govt. Advocate, Mr Yadev Sharma, Govt. Advocate, Mr Sujan Sunwar, Asst. Govt. Advocate

For Respondent 8 : Mr N. Rai, Sr. Advocate, Ms Tara Devi Chettri


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: S. Muralidhar, CJ. issued directions regarding the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha

The instant petition was filed by a practicing Advocate in the nature of Public Interest Litigation concerned about the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha which are causing encroachment on the public road adjoining the police stations and are also turning to junk on account of neglect over several years. The petitioner sought urgent directions due to the fact that despite the provisions in the Code of Criminal Procedure, 1973 (Cr PC) and the decisions of the Court, including the Supreme Court of India, from time to time, the spirit of law has not been adhered to and this has led to an impossible situation where most police stations in Odisha are left with a large inventory of abandoned vehicles and other materials.

Additional Superintendent of Police, Crime Branch, Odisha disclosed that apart from a large number of vehicles lying for years together in the police station premises, there are other seized items including liquor, arms and ammunitions etc. which are lying at the police malkhana awaiting disposal. It is disclosed by the police that 19,149 vehicles have been seized in motor vehicle accident cases, dacoity cases, cases relating to the transportation of illicit narcotic drugs and psychotropic substances.

The order stated that although in accordance with the provisions of Section 457 Cr PC read with Section 452 Cr PC, some of the vehicles do get released during the pendency of the case, there are still a large number of vehicles which are awaiting disposal pursuant to the orders to be passed by the Courts.

The Court observed that Although there exist statutory provisions in the Cr PC and allied statutes to deal with the problem, and orders have been passed by the Supreme Court for their implementation, very little in actual terms has been done in Odisha to ease the pressure on the police malkhanas and thereby the Courts. This area appears to be by and large a neglected one and warrants immediate attention.

The Court issued following directions

Articles/properties in general

  • Within one week of their seizure, properties seized by the police during investigation or trial are to be produced before the Court concerned;
  • the concerned Court shall expeditiously, and not later than two weeks thereafter, pass an order for its custody in terms of the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore (1977) 4 SCC 358; Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283, and General Insurance Council v. State of A.P. (2010) 6 SCC 768.
  • In any event, no property will be retained in the malkhana of the Court or in the police station longer than a period absolutely necessary for the purposes of the case; if it has to be longer than three months, the Court concerned will record the reasons in an order but on no account will the period of retention exceed six months.
  • In the event the property seized is perishable in nature, or subject to natural decay, or if cannot for any reason be retained, the Court concerned may, after recording such evidence as it thinks necessary, order the said property to be disposed of by way of sale, as the Court considers proper, and the proceeds thereof be kept in a separate account in a nationalized bank subject to orders of the concerned court.

Vehicles

As regards the vehicles, the following directions are issued:

(I) Vehicles involved in an offence may be released either to the rightful owner or any person authorised by the rightful owner after

  • preparing a detailed panchnama;
  • taking digital photographs and a video clip of not more than 1 minute duration of the vehicle from all angles;
  • encrypting both the digital photograph and the video clip with a hashtag with date and time stamp with the hash value being noted in the order passed by the concerned court;
  • preserving the encrypted digital photograph and video clip on a pen drive to be kept in a secure cover in the file and preferably also uploading it simultaneously on a server kept either in the concerned Court premises or in the server of the jurisdictional District Court
  • preparing a valuation report of the vehicle by an approved valuer;
  • obtaining a security bond.

(II)the concerned court will record the statements of the complainant, the accused as well as the person to whom the custody of the vehicle is handed over affirming that the above steps have taken place in their presence.

(III) Subject to compliance with (I) and (II) above, no party shall insist on the production of the vehicle at any subsequent stage of the case. The panchnama, the encrypted digital photograph and video clip along with the valuation report should suffice for the purposes of evidence.

(IV) The Courts should invariably pass orders for return of vehicles and/or accord permission for sale thereof and if in a rare instance such request is refused, then reasons thereof to be recorded in writing should be the general norm rather than the exception.

(V) In the event of the vehicle in question being insured, the concerned Court shall issue notice to the owner and the insurance company prior to disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that he has claimed insurance/released his right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in public auction.

(VI) If a vehicle is not claimed by the accused, owner, or the insurance company or by a third person, it may be ordered to be sold by public auction. 

General directions

The following general directions shall also be adhered to:

  • The concerned Court may impose any other appropriate conditions which it may consider necessary in the facts and circumstances of each case.
  • The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused.
  • If the Court is of the view that evidence in relation to the condition of the vehicle is necessary to be recorded even before its disposal in terms of the directions in paras 9 and 10 above, then such evidence be recorded, in the presence of the parties, forthwith and prior to disposal of the property.
  • Special features of the property in question could be noted in the Court’s order itself in the presence of parties or their counsel. Besides, a mahazar clearly describing the features and dimensions of the movable properties which are the subject matter of trial could be drawn up.
  • If a person to whom the interim custody of the property/vehicle is granted is ultimately found not entitled to it, and is unable to return it, its value shall be recovered by enforcing the bonds and the security taken from such person or recovering the monetary value from him as arrears of land revenue.
  • As regards the directions issued in 16 (I)(c) and (d) is concerned, the Registry of the High Court will communicate to each of the District Judges the detailed Standard Operating Procedure (SoP) that is required to be followed. The directions issued in 16(I) (c) and (d) will become operational as soon as the said SoP is received by the concerned District Judge.
  • Similar directions concerning the encryption of digital photographs and video clips will become effective on receipt of the SOP by District Judge from the registry of the High Court.

[Ashish Ranjan Mohanty v. State of Odisha, 2022 SCC OnLine Ori 510, decided on 31-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ. and P.B. Bajanthri, J., took up a petition which following issues were into consideration:

  1. Is not the State under an obligation to make available all facilities, including blood, to patients who have the disability of Thalassemia?
  2. Is the refusal of blood on account of unavailability to patients suffering from Thalassemia a ground available to the State?
  3. Is the State obligated to pay compensation to the families of the patients suffering from Thalassemia who died due to the non availability of adequate medical facilities?

Petitioners herein were individuals directly or indirectly affected by Thalassemia, and they were all committed to working to better the people suffering from this disease. The petitioners have cited seven real-life instances from where an apparent lack of proper medication and blood has resulted in five fatalities. One common contention of all was the lack of medical resources and other essential equipment for treating Thalassemia patients. Some patients and their relatives have further contended that blood is being sold on the black market. The petitioners contend that each of these instances brings forth a chilling realization for the need to introspect. One issue that all patients face is the non availability of filters in hospitals which is considered indispensable during the treatment of Thalassemia. In addition to the lack of filters in hospitals, there is also a dearth of medicines that are neither available in hospitals nor in medical stores and can only be acquired through Thalassemia Societies.

As per reported statistics, 25% of all cases reported in India are from Bihar and Uttar Pradesh. As per the March of Dimes Global Report on Birth Defects, India has a prevalence of pathological hemoglobinopathies of 1.2 per 1000 live births.

Further, treatment of Thalassemia was part of India 12th Five Year Plan (2012-17) and, in light of its incurable nature, was recognized as a disability under the Right of Persons with Disabilities Act, 2016.

The Government, through the counter affidavit filed by Respondent, highlighted the action taken and further action proposed to be taken. Some of the initiatives which the Government has taken are as follows:-

  • Carrying out awareness, education and screening programmes in the community and schools
  • 2. Establishing labs to carry on screening for hemoglobinopathies.
  • Screening Pregnant Women and their husbands to prevent the birth of children with Thalassemia.
  • Establishing prenatal diagnostic centres in medical colleges.

The Court discussed the International obligations as per the UDHR, International Covenant on Economic Social and Cultural Rights, (1966), UN Convention on Rights of Persons with Disability, World Health Organization Constitution (1946) and reiterated numerous case laws decided by the Supreme Court of India one of them being Vikash Kumar v. Union Public Service Commission, (2021) 5 SCC 370 wherein Dr. Justice D.Y Chandrachud, elaborating upon the concept of “reasonable accommodation” and the Rights of Persons with Disabilities Act, 2016, had stated: “Intrinsic to its realization is recognizing the worth of every person as an equal member of society. Respect for the dignity of others and fostering conditions in which every individual can evolve according to their capacities are key elements of a legal order which protects respects and facilitates individual autonomy… The law does this by imposing a positive obligation on the State to secure the realization of rights. It does so by mandating that the State must create conditions in which the barriers posed by disability can be overcome. The creation of an appropriate environment in which the disabled can pursue the full range of entitlements which are encompassed within human liberty is enforceable at law.”

The Court further elaborating upon the Right to Health under the Constitution discussed the cases of Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42 and National Legal Services Authority v. Union of India, (2014) 5 SCC 438. The Court finally was constrained to direct the formation of an independent committee of doctors to take a survey of all the facilities present in the State, examine their readiness, availability, accessibility and quality, and submit a report on the same to the Chief Secretary, Government of Bihar within four months for taking appropriate action at all levels. Further directions were issued to the State:

  1. A committee comprising (i) Dr Chandra Mohan Kumar, Additional Professor, Paediatrics, AIIMS, Patna, cmkumar@aiimspatna.org (ii) Dr Ravikirti, Additional Professor, General Medicine, AIIMS, Patna, drravikirti@aiimspatna.org (iii) Dr Avinash Kumar Singh, Consultant Haematologist, Paras HMRI, Patna, (iv) Dr Bankim Das, Assistant Professor in Transfusion Medicine, AIIMS, Patna, drbankimd@aiimspatna.org, is constituted with a twofold mandate- (a) They shall inspect all the Institutions offering treatment to patients suffering from Thalassemia for examining their readiness, availability, accessibility and quality. (b) They shall also suggest suitable compensation for the five above named juvenile fatalities as reported by the petitioners. The report so prepared within four months to be submitted to Chief Secretary, Government of Bihar.
  2. The State is to extend all necessary help to this independent committee in the formation of this comprehensive report.
  3. The Chief Secretary, Government of Bihar, upon receipt of such report to take action. He will also take appropriate action concerning the compensation recommended by the Committee formed.
  4. The State must take all possible efforts to ensure that health-related needs, most importantly, as well as others, are met for those suffering from Thalassemia, and for vulnerable groups as a whole.
  5. For the two cases, namely Shubham (aged seven years) and Md. Talha Tanveer (aged three years) highlighted by petitioners, the Government is to appoint an officer to verify the details and provide all the assistance permissible under the law to ensure that the number of fatalities is not increased beyond what has already occurred.
  6. Government to explore the possibilities of appointing a nodal officer per district who shall be responsible for ensuring that needs of people belonging to vulnerable groups have their needs met, and take appropriate steps in that regard.
  7. Blood banks should be set up at the earliest in the two districts, i.e. Sheohar and Supaul, in which they are absent, and constructive steps should be taken to ensure the proper availability of blood throughout the State.
  8. The State to ensure that the second child of Shri Vijendra Yadav, as mentioned in paragraph 14(a) of the petition, is given proper care entitled to as per the authorities mentioned above in this order.
  9. Liberty reserved to the petitioners to move an application afresh if the need so arises subsequently.

[Amit Kumar Agarwal v. Union of India, 2021 SCC OnLine Pat 2777, decided on 01-11-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Petitioner/s:    Mr Vishal Kumar Singh, Advocate

Mr Deepak Kumar Singh, Advocate

Mr Akash Keshav, Advocate

Ms Akanksha Malviya, Advocate

For the Respondent/s: Dr K. N. Singh (ASG)

Mr Kumar Priya Ranjan, CGC

Mr S.D. Yadav, AAG-9

Legislation UpdatesNotifications

The Reserve Bank of India has issued Master Direction on Reserve Bank of India (Market-makers in OTC Derivatives) Directions, 2021 vide notification dated September 16, 2021. These Directions shall be applicable to entities permitted to act as market-maker in OTC derivatives in terms of the Governing Directions. These directions shall come into force on January 03, 2022. The key points of the directions include:

  • It constitutes a policy for the introduction of new OTC derivative products must comprise of the process for evaluation and approval of new products.
  • The due diligence for the introduction of a new product must cover the following aspects of the product:
  1. Objective
  2. Type of targeted client and how the product addresses their need(s)
  3. All risks that a client would potentially face
  4. Pay-off profile
  5. Pricing
  6. Costs and fees, along with analysis of their components, to be incurred by a client; and
  7. Measures necessary to mitigate any conflict of interest
  • The pricing of the product shall be on the basis of the following preferential hierarchy:
  1. Marking the product (or its components) to market
  2. Marking the product (or its components) to a model
  • Market-makers shall deal only in derivative products permitted in terms of the Governing Directions, which have cash instrument(s) and/or permitted derivative(s) as components.
  • Market-makers shall not deal in derivative products containing a derivative instrument as underlying, unless specifically permitted in terms of the Governing Directions, either directly or on a back-to-back basis, which they cannot price independently.

Access the RBI’s Master Directions on Market-makers in OTC Derivatives, 2021, HERE


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Arijit Banerjee and Sanjib Banerjee, JJ., while laying down directions with regard to the Durga Puja Festival, held that all the pandals will be made no-entry zone in view of the pandemic.

The instant matter pertained to the bandobast during the Durga Puja celebrations.

Petitioners concern is with regard to COVID protocol, that the same may not be maintained at the Puja pandals in the State and if free access would be permitted, the distancing norm can never be maintained.

Petitioner apprehended that the breach in the above regard may lead to an uncontrollable spurt in COVID cases across the State.

Adding to the above, the petitioner stated that ideally, strict restrictions on the conduct of Durga Puja should be placed by the State Government to ensure that there was no crowding.

Petitioner claimed that if the pujas were permitted to be low-key affairs, with visitors not being permitted at the public pujas, there may not have been any fear of over-crowding or of the COVID protocol not being maintained.

The doctors have been expressing serious concern regarding what the situation may be after the pujas if such uncontrolled gatherings are allowed and the COVID protocol is not followed.

State submitted that special measures have been put in place. For the said measures, Government Memorandum of September 28, 2020, was referred to wherein all the aspects have been covered.

Volunteers have been asked to be deployed at all pandals ‘for ensuring compliance of norms of physical distancing among visitors”. Also, cultural programmes have been prohibited and inaugurations and immersions directed to be conducted on a low-key.

State also referred to a book released by the Kolkata Police detailing the police arrangements during the Durga Puja and Laxmi Puja, 2020.

When students across disciplines, whether in schools or colleges or engaged in higher studies, have been prevented from attending educational institutions for more than six months and several students stand to lose a year, it is rather incongruous that puja festivities would continue as in the previous years.

Court stated that

the measures that have been announced by the State are well-intentioned, but may only remain a pious wish on paper without any blue-print being chalked out for their implementation on the ground.

Further, adding to the above, State is justified when it complains that any attempt by the court to make the pandals a no-entry zone may not be effective as the crowds will be beyond the no-entry zone anyway.

Court added that the present order should not be seen against the State for the inadequacy of the measures attempted to be put in place, but only as a supplement to ensure the proper implementation of such measures by the limited police personnel, volunteers and other administrative officials and workers.

  • Durga Puja pandals have been made no-entry zones for members of the public.
  • For small pandals, 5-metre zone beyond the extremities of the pandals on all sides and for the larger pandals, a 10-metre zone beyond the extremities of the pandal on all sides will be a part of the no-entry zone.
  • At the smaller pandals, 15 persons will be named in the list who may have access to the no-entry zone at all times. The number will be 25 to 30 in respect of the bigger to the biggest pandals.
  • Police administration is empowered to identify which of the pandals will be regarded as small pandals or big pandals for the restricted zone to be a distance of 5m or 10 m beyond the furthest extremities of the pandals on all sides.
  • Awareness campaigns o be conducted even by the local media in small towns across the State to request people to maintain the distancing norm and not to descend on the streets in hoards as in regular years to celebrate the Durga Puja festival.
  • The lists of personnel to be allowed access within the core puja pandals must be fixed and cannot be a floating list or changed every day.

Bench declined the State’s prayer to stay the operation of the present order. [Ajay Kumar De v. State of West Bengal, 2020 SCC OnLine Cal 1984, decided on 19-10-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Manojit Mandal and Joymalya Bagchi, JJ., in the wake of rising cyber crimes in the present times, issued directions to ensure that the investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.

Allegations, as mentioned in the FIR, pertain to a matrimonial dispute between the petitioner and his wife. Further, it has been alleged that the petitioner with the object of defaming and denigrating the wife had posted objectionable pictures of wife on a social network platform and circulated such materials widely. Offences under Sections 66 E & 67A of IT Act were not added in the FIR, an investigation by Assistant Sub-Inspector of Police in violation of Section 78 of the IT Act was conducted.

Keeping in view the facts and circumstances of the present case and due to lack of materials on record that objectionable pictures were circulated without consent and knowledge of de-facto complainant, the Court was of the opinion that custodial interrogation of accused/petitioner may not be necessary and he may be granted anticipatory bail subject to the conditions as laid down under Section 438(2) of CrPC, 1973.

Further, the High Court felt that there is a crying need to train and familiarise members of the police force in the matter of collection, reception, storage, analysis, and production of electronic evidence. The bench also stated that:

“It is also relevant to note that electronic evidence by its very nature is susceptible to tampering and/or alteration and requires sensitive handling. A breach in the chain of custody or improper preservation of such evidence render it vitiated and such evidence cannot be relied in judicial proceedings. Necessary certification under Section 65D of the Information Technology Act is also a pre-requisite for admissibility of such evidence. Even if such certification is present, reliability of electronic evidence depends on proper collection, preservation and production in court. Any lacuna in that regard would render such evidence vulnerable with regard to its probative value. These factors have come to our notice not only in the present case but also in a number of cases argued before us in recent times.”

For the said purpose, certain directions were issued to ensure that investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.

Following are the directives:

  • Proper training of members of police force in reception, preservation and analysis of electronic evidence.
  • Only the officers who have been trained in accordance to the manner as stated above shall be involved in the investigation of crimes involving offences under IT Act and the offences in which electronic evidence plays a pre-dominant part.
  • Every district shall have a cyber cell comprising of officers with specialised knowledge in the matter of dealing with electronic evidence in order to render assistance to local police.
  • A standard operating procedure regarding preservation, collection, analysis and producing electronic evidence to be submitted by Director General of Police, West Bengal on the next date of hearing.
  • Specialised forensic units to be set up in the State in order to facilitate examination and/or analysis of electronic evidence.

The matter has been posted for further hearing on 11-03-2019. [Subhendu Nath v. State of W.B., 2019 SCC OnLine Cal 242, Order dated 18-02-2019]

Case BriefsHigh Courts

Allahabad High Court: The writ petition was filed before a Division Bench of Abhinava Upadhya and Dr Yogendra Kumar Srivastava, JJ. where order passed by the Tehsildar, Kairana was challenged.

Petitioner alleged that there was a road accident in front of his house due to which two respondents entered into a dispute with the petitioner in consequence of which FIR was filed against the respondents. Later, a complaint before Tehsildar was filed by the respondents against petitioner alleging that petitioner was involved in the construction of the road on land not belonging to him. Accordingly, Tehsildar had issued a direction to SHO, Kairana to check if the alleged road was constructed. Petitioner had submitted that the above complaint was just to harass him.

Petitioner’s main contention was that Tehsildar, an executive authority could not have passed the above order and in case of any grievance by the respondent the correct forum to be approached was the Court of Civil Jurisdiction.

High Court observed that the dispute raised in this petition was of civil nature and Tehsildar had no jurisdiction to issue a direction to the SHO to interfere with the right of petitioner. Therefore, the impugned order was quashed. [Jagmal Singh v. State of U.P., 2019 SCC OnLine All 109, Order dated 29-01-2019]

Case BriefsSupreme Court

“In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.”

-Whittaker Chambers

Supreme Court: A Bench comprising of A.K. Sikri and S. Abdul Nazeer, JJ. disposed of a writ petition while approving the Witness Protection Scheme, 2018 finalised by the Union of India and making certain direction in connection therewith.

There were four petitioners in this matter all of whom were related to cases against self-styled godman Asaram and his son Narayan Sai. The petitioners Witness, father of a murdered witness, father of a child rape victim and a journalist who escaped a murder attempt by goons of Asaram and Narayana Sai and still faces death threats by a jailed sharpshooter. They prayed for a court-monitored SIT or a CBI probe. They stated that the prevailing feeling of fear amongst witnesses in the country seriously impairs the right of the people of this country to live in a free society governed by rule of law.

The Court noted the adversities faced by the witnesses and reproduced the reasons which make witness turn hostile as indicated by the Supreme Court in Ramesh v. State of Haryana, (2017) 1 SCC 529. It was noted that such a situation has created a problem of low conviction in India having serious repercussion on criminal justice itself. Therefore, the protection of witnesses is necessary to enable them to depose fearlessly and truthfully. This would also ensure ‘fair trial’, another concomitant of rule of law.

Earlier too, issues of identity protection and witness protection programme have been raised in various cases including NHRC v. State of Gujarat, (2009) 6 SCC 767; PUCL v. Union of India, (2004) 9 SCC 580; Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158; Sakshi v. Union of India, (2004) 5 SCC 518; Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.

During the pendency of the petition, the Union of India finalised the Witness Protection Scheme, 2018. Its essential features include identifying categories of threat perceptions, preparation of a “Threat Analysis Report” by the Head of Police, types of protection measures like ensuring that the witness and accused do not come face to face during the investigation, etc. The Scheme is the outcome of the efforts put in by the Central Government with due assistance not only from the State Governments as well as Union Territories but other stakeholders including Police personnel, NALSA, and State Legal Services Authorities, High Courts and even civil society.

The Supreme Court after considering various earlier decisions as well as Witness Protection Scheme, 2018 made certain directions which include:

(a) The Witness Protection Scheme, 2018 is approved and shall come into effect forthwith.

(b) Union of India, all States and UTs shall enforce the Scheme in letter and spirit.

(c)The Scheme shall be the ‘law’ under Article 141 and 142 of the Constitution till enactment of suitable legislation on the subject.

(d)Vulnerable Witness Deposition Complexes shall be set up in all district courts in India.

The petition was disposed of in the terms above. [Mahender Chawla v. Union of India,2018 SCC OnLine SC 2679,decided on 05-12-2018]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajiv Sharma, ACJ. and Sharad Kumar Sharma, J., gave directions to ensure safety of school students from the moment they leave their home to when they reach back to the same.

The petitioner has brought before the Court a case of sexual assault committed on a student inside a school van in the State highlighting the barbaric nature of the act, which he assets to have increased with an alarming rate and thus he pleads to look into the matter with sensitivity as safety and security of students was a grave issue. The petitioner has also attached details of the recent crimes committed against the girl child in District Nainital.

The petitioner brought into light the threats attributed towards the parents of the students by a few persons in allegiance with the school administration in order to dissuade them to pursue the matter. Hence it was the responsibility of the School Administration/Management to ensure the safety of every student by taking necessary remedial steps to address this menace.

Accordingly:

  • Every Private School bus shall deploy female staff mandatorily entrusted with the duty to pickup and drop the student safely, information of which shall be communicated to parents through SMS along with GPS in the vehicle to locate its movement.
  • Deploy only those persons who have their roots in the city as drivers and conductors to transport the students.
  • Every transport vehicle was ordered to be fitted with the CCTV live display which should be available with the school along with CCTV cameras in the school premises.
  • Provide students with identity card fitted with electronic chip providing location of the student to the parents through mobile application/ software throughout the State.
  • Verification of the credentials of each and every staff member shall be done by the police.
  • The Senior Superintendent of Police, Nainital was directed to lodge FIR within 48 hours if the school fails with the dereliction of the above directions.

The Court concluded by cautioning the authorities to act with responsibility by complying the above directions failure of which, the court would not hesitate to recommend the cancellation of their affiliation/recognition. [Aklema Parveen v. State of Uttarakhand, 2018 SCC OnLine Utt 860, Order dated 25-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. disposed of a writ petition filed under Article 32 of the Constitution wherein the Court issued various directions concerning the people suffering from leprosy.

The petitioner sought directions to be issued to the Union and the States to conduct periodic national survey for determining new cases relating to detection rate of leprosy and to publish and bring in the public domain the reports of National Sample Survey on Leprosy conducted in 2010-2011 and further to conduct regular and sustainable massive awareness campaigns for the general public to dispel the fear associated with leprosy and support and encourage the people afflicted by the said disease to lead a life of equality and dignity. In the instant writ petition, the petitioner drew attention of the Court to the fact that although leprosy as a disease has been scientifically and medically proven to be curable and manageable with MDT, yet the fact remains that millions of people and their family members still suffer from leprosy and the social, economic and cultural stigma attached to the said disease. This fact reveals the lack of awareness and the prevailing misguided notions in the society pertaining to leprosy. Due to the disability that entails as a result of the disease, the people affected by leprosy suffer additional discrimination in the form of denial of access to health services, education and livelihood options.

Keeping in view the factual matrix in entirety and the submissions advanced by the petitioner, the Court thought it appropriate to issue various directions to the Union and the States, which, inter alia, include:-

  • Periodical national surveys for determining the prevalence rate and new cases detection rate of leprosy;
  • Organizing massive awareness campaigns to increase public awareness about the signs and symptoms of leprosy and the fact that it is perfectly curable by the Multi Drug Therapy (MDT), every year on Leprosy day;
  • MDT drugs to be available free of cost and not to go out of stock at all Primary Health Centers (PHCs);
  • All-year awareness programs about National Leprosy Eradication Program (NLEP);
  • The awareness campaigns must include information that a person affected by leprosy is not required to be sent to any special clinic or hospital or sanatorium and should not be isolated from the family members or the community;
  • Healthcare to leprosy patients, at both Government as well as private medical institutions, must be such that medical officials and representatives desist from any discriminatory behaviour while examining and treating leprosy patients;
  • The possibility of including leprosy education in school curricula should be explored;
  • The Union and the States should endeavour to provide MCR footwear free of cost to all leprosy affected persons in the country;
  • The Union Government may consider framing separate rules for assessing the disability quotient of leprosy affected persons for the purpose of issuing disability certificate in exercise of the power granted under the Rights of Persons with Disabilities Act, 2016; etc.

The writ petition was disposed of in the terms above. [Pankaj Sinha v. Union of India,2018 SCC OnLine SC 1502, decided on 14-09-2018]

Case BriefsHigh Courts

Allahabad High Court: A 2-Judge Bench comprising of Dilip B Bhosale, CJ. and Yashwant Varma, J., dealt with a public interest litigation for giving directions for the purpose of protecting shelter homes as a lot of cases were coming where the shelter homes management were in question.

The matter came for review before the Court for further directions pursuant to the earlier order passed in these proceedings. Additional Advocate General submitted that proposals formulated would help the Court in passing further directions and for formulation of policy for monitoring shelter homes in the State. Court noted that it was directed by the State to the Director, Academy of Management Studies, Lucknow to undertake a social audit of all shelter homes, however, no audit was actually conducted. In another order, a seven-member committee was created to formulate directives for shelter homes in the State. Interim directions were given to District Judges to form monitoring committee for inspection of shelter homes.

The Additional Chief Secretary had brought before the Court that currently there were no codified norms to protect the shelter homes except the ones established or run under the Juvenile Justice (Care and Protection of Children) Act, 2015. Court did not agree with the averments of Additional Chief Secretary and mentioned provisions of Swadhar Greh Scheme framed by the Union Government related to shelter homes.

Last direction to be given was related to installation of CCTV cameras which was contested by the Additional Chief Secretary to have been already installed. With above directions, the Court disposed of this petition. [Abuse of Girls in a Women Shelter Home, Deoria, In re, (PIL) No. 4112 of 2018, order dated 05-09-2018]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench comprising of Rajiv Sharma and Lok Pal Singh, JJ., addressed a petition raising the concern of encroachment over the Gram Panchayat land by unscrupulous people, for which the bench issued directives in order to prevent the said act.

The petition brought a very peculiar and eye-raising concern of encroachment upon various water bodies, grazing land, playground, etc. For the said act of encroachment, State Government is the authority accountable to protect the water bodies as they serve the villagers for multiple purposes. Further, an important point noted by the Court was of the regularization of ‘encroachment’ by the Revenue Courts.

However, on analysing the situation and the importance of these water bodies and Gram Panchayat land towards the entire community and relying upon the Supreme Court cases of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 and Hinchlal Tiwari v. Kamla Devi, 2001 (92) R.D. 689, in which it was clearly laid down that ‘regularization of the encroachment of Gram Panchayat land is impermissible’, directions were issued to the State Government.

Therefore, the Hon’ble Court placed a clear vision to the State Government by issuing mandatory directions for the prevention of the ‘encroachment’ of water bodies as well as Gram Panchayat land, which were as follows:

  • Encroachments from all the village ponds, playgrounds and common grazing land to be removed in 6 months.
  • Illegal entries changing the nature of water bodies and common grazing land to be reversed in the original nature.
  • Fencing around the stated water bodies and common grazing land.
  • Quality of water to be maintained throughout the year.
  • Constitution of a committee in order to identify and locate the water bodies of respective jurisdiction. [Kunwar Pal Singh v. State of Uttarakhand,2018 SCC OnLine Utt 545, decided on 13-06-2018]
Case BriefsHigh Courts

Bombay High Court: In an highly structured and ornate decision concerning the deficiencies of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 placed in the form of a PIL, the Division Bench comprising of A.S. Oka and Riyaz.I.Chagla, JJ., have remarkably given the explanation on the objects of enacting the Trees Act, which clearly is a leading path towards the growth of trees rather than the destruction in urban areas.

The focal point of addressing the present PIL was the challenge placed by the petitioners on the validity of the amendment to the Trees Act. The talked about PIL in this case constitutes two petitions and the authorities involved in them are “Municipal Corporation of Greater Mumbai” and “Municipal Corporation of City of Thane”. The challenge in both the petitions is to the sub-section (6) added in Section 8 of the Trees Act and there is a challenge to the constitutional validity of the said provision on the ground of violation of Articles 14 and 21 of the Constitution of India.

The first and foremost submission posed by the petitioners was that in regard to the constitution of the Tree Authority and the kind of mindless decision making process they have adopted towards granting the felling of trees. Her contention is that the entire process is vitiated by illegality due to which they cannot be allowed to function. The next submission was made in regard to the primary challenge of the PIL which concerns sub-section (6) of Section 8, in which she states that, the said provision is arbitrary in nature and has no nexus with the purpose or object sought to be achieved and it certainly violates Article 14 of the Constitution of India. Along with the mentioned contentions, the other concern was that of the violation of a Fundamental Right of citizen under Article 21 of the Constitution of India due to the manner of exercise of power by the Municipal Commissioner under the above mentioned sub-section.

Further, even in the other writ, petitioner posed a similar issue by challenging his submission to sub-section (6) of Section 8 by stating that intelligible differentia is not present for the classification under the said sub-section which clearly carves the vagueness and ambiguity due to complete absence of guidelines.

Noting all the contentions posed by the petitioners and prioritising the issue by issuing various directions towards the alarming issue of decisions being taken for felling of trees by the authorities acting in an arbitrary manner, the Hon’ble High Court of Bombay has taken care of the issues by limiting the powers of the Municipal Commissioner by making the authorities a little more diligent towards the issue of felling of trees and therefore, allowing the citizens to appeal against such decisions. [Rohit Manohar Joshi v. Tree Authority, Thane; PIL No. 119 of 2017, dated 23.04.2018]

Case BriefsHigh Courts

Calcutta High Court: A Bench comprising of Joymalya Bagchi and Rajarshi Bharadwaj, JJ. issued directions for conducting of investigation and/or trial involving cases of murder and/or rape of minor children or other vulnerable victims, due to the investigation done in an extremely callous manner in the present appeal dealing with the murder and rape of a four year child.

The appellant along with her two minor children, was accused of murder and rape. A complaint was filed by the father of the victim stating that his youngest daughter was found missing while she was playing on the roadside before their house and lodged the complaint for the same at Nabadwip Police Station. Further he searched the house of sardar mondal but his wife Reksona bibi @ Eksona Bibi i.e. the appellant and her sons restrained him from doing so.

Later, P.W.2 saw the appellant with a sack and her sons patrolling in front of the house which she dropped off when asked about. The sack contained the dead body of the victim, following which the F.I.R was filed under Sections 376A/377/302/201/120B/34 of the  Penal Code against her minor sons and the appellant.

Learned Counsel on behalf of the appellant stated that the prosecution case is based on circumstantial evidence and has not been proved beyond doubt. Counsel appearing for the State submitted that the stated circumstances of recovering of the dead body from the appellant were also not explained by the appellant, therefore the conviction needs no interference.

Hon’ble Court observed that the most vital witness of the case did not support the prosecution case and was not declared hostile along with which no cross-examination was also conducted, also when asked about the cause of the death of the victim he sated that he is totally unaware about the cause of the death. Therefore, by scrutnising the statement of the witnesses and all the other circumstances, the Court is bound to hold that the prosecution has not been able to prove its case beyond doubt, which leaves no alternative than to acquit the appellant on the anvil of the benefit of doubt, leaving an unpleasant and brooding thought in one’s mind that the crime remains undetected and the offender goes unpunished.

Therefore, to pre-empt the recurrences in future, certain guidelines were issued for conducting investigation:

· Statement of vital witnesses must be recoded under Section 164 Cr.P.C, when any grave offence like murder and /or rape of minor children happens;

· If any vital evidence which is likely to establish guilt and has been seized, then it should be mandatorily be undergone forensic examination;

· Effective witness protection programme should be conducted so that they do not resile from their previous statements;

· A report should be filed by the public prosecutors by reviewing the manner in which the sensistive cases are being conducted to the Directorate of Prosecution, legal Remembrancer and the Principal Secretary, Home Department for their appraisal and guidance.

[Reksona Bibi @ Eksona v. State of W.B., 2017 SCC OnLine Cal 16185, order dated 29-11-2017]