Canada SC
Case BriefsForeign Courts

[6:3 verdict] Canada Supreme Court: In the recent matter, the Canada Supreme Court, deliberated upon the matter of expanded rape laws that were implemented in 2018 into the Criminal Code to remove barriers that have deterred victims of sexual offences from coming forward. The 9- Judge Bench of the Court comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ, with a ratio of 6: 3, held that the amendments introduced to the criminal code are constitutional and if required by the Judge, to deliberate upon the facts, private documents of a complainant or an accused can be used in a trial for balancing the rights and interests of the accused, the complainant, and the public.

The majority observed that “the right to a fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” nor does it guarantee “perfect justice.” Further it was added that, “the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system”

Facts and contentions of the case

J.J and Shane Reddick were accused of sexual assault in different cases in Colombia and Ontario respectively. The two accused challenged the constitutionality of Sections 278.92 to 278.94 of the Criminal Code (Code), arguing that the Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Canadian Charter of Rights and Freedom (Charter), namely:

  1. the right to silence and the privilege against self-incrimination under ss. 7 and 11(c);
  2. the right to a fair trial under ss. 7 and 11(d); and
  3. the right to make full answer and defence under ss. 7 and 11(d).

In J’s case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appealed that ruling, and J cross-appealed, contesting the constitutionality of the regime in its entirety. In Shane Reddick’s case, complainant S challenged the application judge’s interlocutory constitutional ruling, which effectively prevented her from participating in the record screening process and declared the regime unconstitutional in its entirety. The complainant was granted the right to be added as a party in the record screening process by the Supreme Court.

The Law in question

Criminal Code provisions under Sections 278.92 to 278.94 of the Criminal Code set out a record screening regime to determine the admissibility of records relating to the complainant that is in possession or control of the accused.

The Canadian Charter of Rights and Freedom, under Sections 7 and 11 guarantees the right to silence and the privilege against self-incrimination, the right to a fair trial, and the right to make full answer and defence to the accused.

The Majority Ruling

The opinion of the Court was delivered by Wagner C.J. and Moldaver J in which Karakatsanis, Martin, Kasirer, and Jamal JJ., joined. The majority made the following observations regarding the constitutionality of the “record screening process”-

Admissibility of the record

The majority deliberated that the admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter. The accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has a significant probative value. Therefore, a balance between the rights and interests of the accused, the complainant, and the public is maintained.

The majority based its following observations that the Stage One application process in s. 278.92 is not overbroad. As the definition of “record” in s. 278.1 which supports the constitutionality of s. 278.92 of the Code, includes records that come within the enumerated categories of evidence or contain information of an intimate and highly personal nature of the complainant. Hence such records that meet the admissibility threshold for screening are adduced at a trial.

Therefore, the majority opined, Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under Sections 7 and 11(d) of the Charter.

Participation of Complainant in trial

The majority deliberated that the complainant’s participation provisions in Section 278.94 in the record screening process do not violate the accused’s fair trial rights protected by Sections 7 and 11(d) of the Charter. The Court stated that firstly, the right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system. Secondly, there is no absolute principle that disclosure of defence materials inevitably impairs cross-examination and trial fairness, and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross-examination. Therefore, the participation of complainants is justified because they have a direct interest in records, for which they have a reasonable expectation of privacy, which are adduced in open court, and hence, their contributions are valuable in the trial.

The Dissent

Justice Brown found the record screening process unconstitutional for private records but constitutional for evidence of past sexual activity. He stated that the record screening regime is overbroad as the term ‘record’ under the process is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature.

“The one–sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant’s privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of “record”, combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused’s rights to a lesser extent.”

Justice Rowe agreed with Justice Brown, and explained how to make a decision when sections 7 and 11 of the Charter are brought up at the same time. He stated that accused persons must establish not only the content of the principle of fundamental justice that they allege is violated, but also that it is not outweighed by other considerations. Such an approach undermines the purpose of the broad protection of the right to a fair trial under Section 11 and the purpose of Section 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society.

Justice Côté agreed with Justices Brown and Rowe that the record screening process is unconstitutional and the analytical approach in respect of Section 7 of the Charter respectively. However, he disagreed with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. He stated that adopting a narrow category–based approach to the interpretation of “record” avoids many of the absurd results that inevitably follow from a broad interpretation. A broad interpretation will result in an absurd two–tiered system of admissibility that favours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction between information exchanged orally and information exchanged through electronic means. With respect to “adduce”, given that the record screening regime is focused on physical records rather than on a category of evidence, its plain meaning should be adopted, as it relates directly to the physical record.


With their afore-stated observations the majority concluded that Sections 278.92 to 278.94 of the Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record
applications. Hence, the Court opined that the Crown’s appeal should be allowed, J’s cross-appeal to be dismissed, S’s appeal allowed for participating in the trial and the application judges’ rulings quashed.

[R v. J.J., 2022 SCC OnLine Can SC 3, decided on 30-06-2022]

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., while discussing the scope of Section 311 of the Criminal Procedure Code, 1973 with regard to recalling and cross-examining the witness expressed that,

It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

A petition was filed under Section 482 of the Criminal Procedure Code on behalf of the petitioner seeking setting aside the orders of the lower court whereby the opportunity of the petitioner to cross-examine the witness (PW-1) was closed and an application filed under Section 311 CrPC seeking recall of the said witness was dismissed.

Scope of Section 311 CrPC

 Supreme Court considered the scope of Section 311 CrPC in P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56.

Further, in the decision of Natasha Singh v. CBI, (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd. Omar v. State of W.B., (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, Rajeswar Parasad Misra v. State of W.B., (1966) 1 SCR 178, Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 and T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633, Supreme Court held as under:

  1. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

xxx xxx xxx

  1. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.”

 In the instant case, petitioner had initially sought to cross-examine both the parents of the deceased on one day, however, the prosecution subsequently chose to drop the mother of the deceased from the array of the witnesses.

Petitioner had ample opportunity to cross-examine the witnesses, but he did not utilize the same.

Court cannot lose sight of the fact that a fair trial is the hallmark of criminal procedure. It entails not only the rights of the victims but also the interest of the accused.

High Court while observing the above added that, it is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.

Elaborating more on its observations, Court stated that, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in the interest of justice.

Considering the fact that the petitioner had been charged for the offence punishable under Section 304B IPC and the witness was the father of the deceased, High Court deemed it apposite to grant one opportunity to the petitioner to cross-examine the witness, subject to a cost of Rs 5,000 to be deposited with Delhi State Legal Services Authority.

The matter was fixed before the trial court for 25-2-2022 and the investigating officer shall take appropriate steps to summon the witness and the matter shall be listed before the Trial Court on 14-2-2022.

Further, the Bench added that in case the petitioner does not cross-examine the witness on the date fixed and seeks an adjournment, his right to cross-examine shall stand closed.

In view of the above petition was disposed of.[Krishan Kumar v. State (GNCT) of Delhi, 2022 SCC OnLine Del 215, decided on 21-1-2022]

Advocates before the Court:

For the petitioner: Inderpal Kokhar, Advocate

For the respondent: Hirein Sharma, APP for State

Case BriefsSupreme Court

Supreme Court: In a case where the order of conviction and sentence was passed on the same day, the 3-judge bench of L. Nageswara Rao, BR Gavai and BV Nagarathna, JJ has stressed on the importance of bifurcated hearing for convicting and sentencing and has observed that the same is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence should be provided to the accused by the Trial Court.

The Court was hearing the case the kidnapping, rape and murder of a girl aged 11 years. On 14.04.2017, the victim, along with her parents and two brothers, went to attend a function. While returning, her parents realized that she was missing and upon searching, at about 5:00 AM on the next day, the mother found her daughter lying near a hand-pump. She was in an unconscious condition. According to the inspection report, the body of the deceased was lying in a supine position and on the back side of the head of the deceased, there were multiple small pieces of dry grass, Caltrop and a dry bark of drumstick tree in the hair. Both eyes were closed. There were injury marks on the body and blood was present in the genitalia. The cause of the death was given as asphyxia, neurogenic shock due to neck pressing, severe injuries and bleeding in vagina and anal opening by committing rape forcefully.

While the Supreme Court was in agreement with the concurrent findings that the Appellant was guilty of committing the offences as charged, it observed that,

“It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. It is trite law that an accused is entitled for a fair trial which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day, the object and purpose of Section 235 (2) CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him. A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court.”

The Court also observed that while the Trial Court and the High Court took into consideration the gravity of the crime while imposing death sentence, the mitigating circumstances and the probability of reformation and rehabilitation of the accused were not considered. The Court noticed that,

  • The Appellant was aged 25 years on the date of commission of the offence and belongs to a Scheduled Tribes community, eking his livelihood by doing manual labour.
  • No evidence has been placed by the prosecution on record to show that there is no probability of rehabilitation and reformation of the Appellant and the question of an alternative option to death sentence is foreclosed.
  • The Appellant had no criminal antecedents before the commission of crime for which he has been convicted.
  • There is nothing adverse that has been reported against his conduct in jail.

Therefore, the Court was of the opinion that the death sentence requires to be commuted to life imprisonment. However, taking into account the barbaric and savage manner in which the offences of rape and murder were committed by the Appellant on a hapless 11 year old girl, the Court sentenced the Appellant to life imprisonment for a period of 30 years during which he shall not be granted remission.

[Bhagwani v. Stat eof Madhya Pradesh, 2022 SCC OnLine SC 52, decided on 18.01.2022]

*Judgment by: L. Nageswara Rao


For appellant: Advocate Shri Singh

For State: Deputy Advocate General Ankita Chaudhary

Case BriefsInternational Courts

European Court of Human Rights (ECHR): Chamber composed of Yonko Grozev, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Pere Pastor Vilanova, Jolien Schukking, judges, and Andrea Tamietti, Section Registrar, first time had the occasion to address a case concerning the prosecution of a victim, or potential victim of trafficking.

Crux of the application was that the said applications concerned the prosecution of the (then) minor applicants who were recognised as trafficking victims for criminal offences connected to their work as gardeners in cannabis factories were

Applicant’s principal complaint is that by prosecuting them for criminal offences connected to their work in the cannabis factories the State failed in its duty to protect them as victims of trafficking.

Applicants relied upon Article 26 of the Anti-Trafficking Convention which required the Contracting States to provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities to the extent that they have been compelled to act as they did

Questions to be considered by the Court:

  • Whether, on the facts of the cases at hand, the respondent State complied with its positive obligations under Article 4 of the Convention?

Clear evidence appeared to indicate that the cultivation of cannabis plants was an activity commonly carried out by child trafficking victims. Court stated that the police and subsequently the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that the minors were trafficked.

Hence, a positive obligation to take operational measures to protect the applicants as potential victims of trafficking arose after the minors were discovered.

  • Whether State fulfilled its duty under Article 4 of the Convention to take operational measures to protect minors?

Bench stated that it is well-established that both national and transnational trafficking in human beings, irrespective of whether it is connected with organized crime, falls within the scope of Article 4 of the Convention.

Court made it clear that where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves work voluntarily.

“…prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour.” [Chowdhury v. Greece, No. 21884/15, § 96, 30 March 2017]

Obligation as per Article 4

Article 4 entails a specific positive obligation on the Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (Siliadin v. France, no. 73316/01, §§ 89 and 112, ECHR 2005-VII). In order to comply with this obligation, Member States are required to put in place a legislative and administrative framework to prevent and punish trafficking and to protect victims (see Rantsev, cited above, § 285).

Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking.

Court has considered it relevant that the Anti-Trafficking Convention calls on the Member States to adopt a range of measures to prevent trafficking and to protect the rights of victims. The preventive measures include measures to strengthen coordination at the national level between the various anti-trafficking bodies and to discourage the demand for all forms of exploitation of persons. Protection measures include facilitating the identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery.

Summary of positive obligations under Article 4

(1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking;

(2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and

(3) a procedural obligation to investigate situations of potential trafficking.

“…prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.”

In Court’s opinion, the duty to take operational measures under Article 4 of the Convention has two principal aims:

  • to protect the victim of trafficking from further harm; and
  • to facilitate his or her recovery.

In order for the prosecution of a victim or potential victim of trafficking to demonstrate respect for the freedoms guaranteed by Article 4, his or her early identification is of paramount importance.

Court acknowledged the fact that as children are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include both reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge, and effective deterrence against such serious breaches of personal integrity.

Since, first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. Nevertheless, despite there not being any apparent doubt that he was a minor, neither the police nor the CPS referred him to one of the United Kingdom’s Competent Authorities for an assessment. Instead, he was charged with being concerned in the production of a controlled drug.

Second applicant claimed that the door was locked from the outside and he believed the factory was guarded; that he was not paid for his work; and that he might be killed if he stopped working.

In Court’s view the State did not fulfil its duty under Article 4 of the Convention to take operational measures to protect the first and second applicant either initially, as a potential victim of trafficking and subsequently, as a person recognised by the Competent Authority to be the victim of trafficking.

Applicant’s also complained that they were denied a fair trial within the meaning of Article 6 of the Convention.

To assess Whether there has been a violation of Article 6 § 1 of the Convention, the Court must answer the following questions:

first of all, did the failure to assess whether the applicants were the victims of trafficking before they were charged and convicted of drugs-related offences raise any issue under Article 6 § 1 of the Convention;

secondly, did the applicants waive their rights under that Article by pleading guilty; and finally, were the proceedings as a whole fair?

Court expressed that although victims of trafficking are not immune from prosecution, an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so.

State cannot, therefore, rely on any failings by a legal representative or indeed by the failure of a defendant – especially a minor defendant – to tell the police or his legal representative that he was a victim of trafficking.

CPS 2009 guidance itself states, child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities Consequently, they cannot be required to self-identify or be penalised for failing to do so.

Did the applicants waive their rights under Article 6 of the Convention?

The applicants’ guilty pleas were undoubtedly “unequivocal” and as they were legally represented they were almost certainly made aware that there would be no examination of the merits of their cases if they pleaded guilty. However, in the absence of any assessment of whether they were trafficked and, if so, whether that fact could have any impact on their criminal liability, those pleas were not made “in full awareness of the facts”.

Court did not consider that the applicants waived their rights under Article 6 § 1 of the Convention.

Whether the fairness of the proceedings as a whole was prejudiced?

In respect of both applicants, the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Insofar as any reasons were given, they were not consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention.

Court did not consider that the appeal proceedings cured the defects in the proceedings which led to the applicant’s charging and eventual conviction.

Hence it was concluded that the proceedings as a whole could not be considered “fair”.


Court referred to its finding that there has been a violation of Articles 4 and 6 of the Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking.

The Court had no doubt that the applicants suffered distress on account of the criminal proceedings and faced certain obstacles on account of their criminal records. However, it must also bear in mind that the aforementioned violations were essentially procedural in nature and as such the Court has not had to consider the merits of the decisions to prosecute the applicants.

Therefore each of the applicants was granted a sum of EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.[V.C.L & A.N. v. The United Kingdom, Applications Nos. 77587 of 12 and 74603 of 12, decided on 5-07-2021]

The first applicant, who had been granted legal aid, was represented by Ms Philippa Southwell of Birds Solicitors, a law firm based in London.

The second applicant was represented by the AIRE Centre, a legal charity based in London, and by Professor P. Chandran, a Barrister based in London at 1 Pump Court Chambers.

The Government were represented by their Agent, Mr J. Gaughan of the Foreign and Commonwealth Office.

Case BriefsForeign Courts

Islamabad High Court: The Bench of Athar Minallah, C.J., Aamer Farooq and Miangul Hassan Aurangzeb, JJ., while observing that the right to a fair trial is the foundation of the rule of law and criminal justice system and its essence is to assure to every party that he or she, would be treated fairly and justly by an impartial and independent judicial forum; held that another opportunity should be extended to the Government of India to consider taking appropriate measures to ensure effective compliance with the judgment of the International Court of Justice wherein it had ordered Government of Pakistan to review and reconsider Kulbhushan Jadhav’s conviction and sentence and provide him with consular access. The Court also extended its assurance to Jadhav that his rights, especially that of fair trial is a vital factor while reviewing his sentence.       

Following the decision of the ICJ, the Govt. of Pakistan had promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020 to meet its obligations regarding giving effect to the judgment. As per Attorney General Khalid Javed Khan’s Report, Jadhav had reiterated his earlier stance and has preferred to pursue the remedy of clemency instead of invoking his right under the Ordinance of 2020. Attorney General further reported that the Government of India has been duly informed regarding the proceedings of this Court held on 03-08-2020 in pursuance of which concerned officials gave a detailed briefing to Jadhav regarding his right to avail the statutory remedy provided under the Ordinance of 2020. It was noted that the Govt. of India’s response is awaited.

Perusing the existing the scenario, the Bench observed that, “We are of the opinion that these proceedings and judicial review, on the basis of the judgment of the International Court, may not be meaningful and effective if Commander Jadhav and the Government of India decide not to exercise the course of action highlighted in the judgment of the International Court”. Concluding the Order and fixing the next proceeding on 06-10-2020, the Bench issued following directions to ensure effective review and reconsideration so as to give effect to the judgment of the International Court-

  • Attorney General shall ensure that copy of this order is provided to Jadhav
  • of Pakistan shall once again convey the orders passed in this petition to the Govt. of India to enable the latter to consider taking appropriate measures in order to ensure compliance with the judgment of the ICJ.
  • The Registrar of the Court to send to the learned amici curiae copies of the petition and documents placed on the record, so that they can assist this Court on the status of compliance with the judgment of the ICJ in the event that Jadhav or the Govt. of India decide against availing the remedy provided under the Ordinance of 2020

[Secretary, Ministry of Law and Justice v. Federation of Pakistan, Misc. Petition No. 01 of 2020, decided on 03-09-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Rajeev Singh, J. allowed an application of revision filed for quashing an order passed by Additional Sessions Judge (POCSO Act) under Sections 376, 506, 377 of the Penal Code, 1860 and Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

In the present case, the revisionist Shadaan Ansari being unable to engage a lawyer was provided an amicus curie by the trial court at expense of the state. The prosecution carried out Examination-in-Chief of the witnesses before the trial court. The amicus curie refused to cross examine the witnesses stating that it was not real and effective in this case. The revisionist filed for an application under Section 311 of the Code of Criminal Procedure, 1973 to recall the witnesses for their cross examination but it was rejected by the court with the observation that the Amicus Curiae denied the cross-examination on the advise of the revisionist.

Counsel for the revisionist, Bipin Kumar Tiwari, submitted that the intention of Section 304 of CrPC. is for providing real and effective aid to an accused and it is the duty of the trial court to ensure proper compliance of the requirement as the accused also has the right to fair trial. In support of his submission he placed reliance on Mohd. Hussain & Julfikar Ali v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408. He further submitted that if adequate legal aid has not been provided, it is a violation of Article 21 of the Constitution of India.

Counsel for the State, Aniruddh Kumar Singh, submitted that there is nothing illegal in the order passed by the court in rejecting the recall of witnesses for cross examination as the opportunity for the same was already given to the amicus curiae and it was turned down. He further submitted that it was clear that the trial court while rejecting the impugned order observed that the opportunity to cross examine the witnesses was given to the amicus curie but he denied it on the advice of the revisionist

The Court allowed the application for revision and quashed the impugned order of Additional Sessions Judge. Placing reliance on Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 and Mohd. Hussain v. State (Govt. of NCT) of Delhi, (2012) 2 SCC 584, the Court held that that if the adequate legal aid has not been provided to the accused during the trial, then it is violative of Article 21 of the Constitution of India. 

It was opined that the legal aid provided to the revisionist by the amicus curie was not real and effective, as the amicus curie had denied cross-examination of the witness. In view thereof, the Court set aside the impugned order and ordered the trial court to recall all the prosecution witnesses, and cross-examine them. [Shadaan Ansari v. State of U.P., 2020 SCC OnLine All 19, decided on 14-01-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K.K. Wickremasinghe and K. Priyantha Fernando, JJ., allowed an appeal setting aside the conviction and acquitting the Accused-Appellant from the charge of murder.

The Appellant and the victim (deceased) were husband and wife. Appellant was a serving Brigadier in the Sri Lankan Army, they were sleeping in their room and the victim’s brother (PW 2) was sleeping in another room with the appellant’s son (PW 1). After hearing some unusual noise the PW2 ran to check what had happened on the other hand PW 1 followed the appellant to his room and saw saliva coming out of the mouth of the deceased and blood on her head, she was taken to the hospital where she succumbed to injuries in about 2 hours.

There was no dispute that the shot was fired from the personal weapon of the

Appellant and that the deceased died of that gunshot injury.

The counsels for the appellant Shavindra Fernando PC and Ananda Weerasinghe contended that the deceased had committed suicide by shooting herself and the appellant had tried to grab the weapon while he saw the deceased standing with the gun on her head but he was unsuccessful. After trial, the High Court Judge found the Appellant guilty of the charge and sentenced him to death aggrieved by which the instant appeal was filed. The counsels for the appellant contended that the trial judge had erred in his decision by not considering various important factors like the bullet was fired from a distance of 30 cm away from the head of the deceased and the judgment was based on hearsay evidence and he was denied fair trial. The arguments of both the parties were analyzed again and opinion of expert witnesses was referred to which was unable to prove a case against the appellant and hold him liable for the offence beyond reasonable doubt.

The Court while allowing the appeal set aside the conviction of the appellant and acquitted him on the count of murder explaining that the prosecution had failed to prove the charge beyond reasonable doubt against the Appellant. [Democratic Socialist Republic of Sri Lanka v. Don Chandana Priyantha Rupasinghe, 2019 SCC OnLine SL CA 11, decided on 26-11-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: The Bench of M.M.A. Gaffoor and K.K. Wickremasinghe, JJ. dismissed the appeal of the accused-appellant who was indicted for committing the murder of a fifteen-year-old girl.

The facts of the case were that the deceased was a fifteen-year-old girl living together with the accused as husband and wife however she was not legally married to the accused. On the day of the incident accused came to the house of his mother with the deceased and after sometime went to accused’s house which was in the same compound. After a short while, the accused had come and told his mother and sister who were in the main house about the incident. The deceased was found hanging in the accused’s house. The testimony of the mother and sister against the accused which were well corroborated were taken into account. The postmortem report revealed that death was due to ligature strangulation. Thereafter for his defense, the accused opted to give a dock statement wherein he stated that a person whom he named was responsible for the death of the deceased. Accused further said the same person had told him to surrender to the Police. This position had never been suggested by any of the prosecution witnesses including the investigating Police Officers thus the dock statement made by the accused was considered as an afterthought and thus the Court rejected the same. The High Court convicted the accused. When this matter came up for argument the counsel for the accused took up several defects in the High Court Trial including that a mere non-confession utterance by the appellant had been converted to a confession statement by the State Counsel thereby denying the accused of a fair trial.

The Court after perusing the case record and the submissions made by both Counsel rejected the submissions made by Counsel for the accused with regard to the above defects highlighted as they had no merit. The Court resonated the opinion of Justice Thilakawardena, in AG v. Sandanam Pitchi Mary Theresa, S.C. Appeal No. 79 of 2008, wherein he stated that “Discrepancies that do not go to the root of the matter and assail the basic version of the witness cannot be given too much importance.” The appeal was thus dismissed. [Ambagahagedara Nimal Ratnayake v. Attorney General’s Department, 2019 SCC OnLine SL CA 3, decided on 01-04-2019]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: A Bench of Sanjay Karol, CJ and Arindam Lodh, J. allowed an appeal filed by the appellant-wife against the judgment passed by the Family Judge whereby she was directed to return to her matrimonial home.

The respondent-husband had filed a suit for restitution of conjugal rights under Section 281 of the Mohammedan Law. He stated that the parties got married according to Islamic rites and customs. It was alleged that after a few days, the wife started quarrelling with him and always preferred to live with her parents. It was alleged that she left the matrimonial home in 15-9-2017 without any reason and information and also took away her articles. Efforts were made to bring her back, but she did not return. Hence, he instituted the suit for restitution of conjugal rights. The family court passed the ex-parte impugned order whereby the wife was directed to return to the house of her husband.

R. Purakayastha, Advocate appeared for the wife. According to the memo of appeal, the wife was a very poor lady. After filing her written statement, she prayed for appointing a legal aid counsel. But unfortunately, she prayed for appointing a legal aid counsel. But unfortunately, the Family Judge neither allowed nor rejected her prayer. It was submitted that since she was a lady of little learning she could not take any step with the case.

The High Court observed it as well settled that “justice is not only to be done, but it is manifest to be done.” The wife being a poor woman sought for a legal aid counsel. According to the Court, the Family Judge ought to have afforded all opportunities to he so she could take part in the proceedings before the family court. The Court held it to be a fit case to remand the matter back to the family court for the fair trial of the case. Accordingly, the appeal. was allowed and the impugned judgment was set aside. [Salma Begam v. Saiful Ali, 2019 SCC OnLine Tri 77, decided on 05-03-2019]

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]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of Rohinton F. Nariman and Navin Sinha, JJ. allowed criminal appeal filed against the judgment of Gauhati High Court whereby trial court’s decision convicting the appellant under Section 302 IPC was upheld.

The appellant was accused of murdering her husband. She was convicted by the trial court which was affirmed by the High Court holding that the present was a case of circumstantial evidence. The last seen theory established the presence of the appellant with the deceased at night. She was assailant of the deceased. Aggrieved by the judgment of the High Court, the instant appeal was filed.

The Supreme Court observed that mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. It was noticed that the courts below did not notice defence of the appellant under Section 313 CrPC. It was observed that Section 313 cannot be seen simply as part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313 (2). If the accused takes a defence after the prosecution evidence is closed, under Section 313 (1)(b) the Court is duty bound under Section 313(4) to consider the same. It was held that unfortunately in the instant case, complete non-consideration of the appellant’s defence caused prejudice to her. In facts and circumstances, the Court held that the guilt of the appellant was proved beyond reasonable doubt. Therefore, the appeal was allowed and the appellant was acquitted. [Reena Hazarika v. State of Assam,2018 SCC OnLine SC 2281, decided on 31-10-2018]

Case BriefsForeign Courts

Supreme Court of Pakistan: A 3-Judge Bench comprising of Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ. while hearing a petition against order directing fresh consideration of case, held that fair trial does not envisage recourse to successive remedies one after another against same impugned order on substantially same set of facts seeking substantially similar relief.

Respondent-tenant faced ejectment proceedings filed by appellant-landlord for default in paying rent. A tentative order directing deposition of rent arrears was passed by the Rent Controller but respondent failed to comply with the same and was directed to vacate the premises. However instead of vacating the tenement, the respondent filed an application under Section 12 of the Code of Civil Procedure, 1908 stating that he was paying rent in installments and hence believed that appellant has waived his right to seek eviction. Despite dismissal of this application by Executing Court, respondent filed another application under Section 47 CPC concealing that application under Section 12 CPC on substantially similar facts and grounds had been dismissed. The second application was also dismissed by the Executing Court. But the High Court, in appeal, set aside the dismissal order stating that ouster of respondent from availing his remedy before Executing Court was denial of fair trial. It is against this order, that the instant petition was filed.

The Hon’ble Supreme Court noted that facts and grounds in application under Sections 12 and 47 CPC were substantially same. It observed that the moment one intends to commence a legal action, he must choose to pursue one out of the host of remedies available to him under law. Once this election is made, he is prohibited from instituting another proceeding. This Doctrine of Election is based on principles of waiver of right as contained in Order 2 Rule(2) CPC, principle of estoppel embodied in Article 114 of Qanoon-e-Shahdat Order, 1984 and principle of res judicata articulated under Section 11 CPC.

Relying on its judgment in Fehmida Begum v. Muhammad Khalid, 1992 SCMR 1908 and judgment of the Supreme Court of India in Bihar State Cooperative Union Ltd. v. Uma Shankar Sharan, (1992) 4 SCC 196, the Court held that having exhausted his remedy under Section 12 CPC, respondent could not seek another remedy for the same grievance as it would lead to multiplicity of proceedings and amount to abusing the process of law. Accordingly, the petition was allowed and High Court’s order was set aside. [Trading Corporation of Pakistan v. Devan Sugar Mills Limited, Civil Petition No. 60-K of 2018, decided on 05-09-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. allowed an appeal filed by the appellant-wife challenging an ex-parte order passed by a District Judge under Section 25 of the Guardians and Wards Act, 1890.

Vide the order impugned, custody of the minor girl aged 7 years was ordered to be handed over to the respondent-husband. The grievance of the appellant was that there was no proper service of summons on her and still the trial Judge proceeded ex-parte. As per the record of the trial court, summons were issued against the appellant in the present matter relating to the custody of the minor child. The bailiff visited her house. The appellant was out of station, the summons returned unserved. Trial Judge observed that summons were sent to the appellant but it returned with an endorsement as unserved. Therefore, he proceeded ex-parte against the appellant. Aggrieved by the said order, the appellant filed the instant appeal.

The High Court reiterated that the rule of fair trial is that nobody should be condemned unheard. It was observed that the present was not a case of proper service and the trial judge had no discretion to proceed ex-parte only on the basis of a  finding that notice was returned unserved.The envelope that was returned nowhere showed that the summons were refused by the appellant. The Court also referred to Order V CPC which deals with issue and service of summons. The Court was of the view that this was a child custody matter and the trial Judge was expected to be sensitive to the rights of the parties. The Court further observed, even it is assumed that the envelope returned with an endorsement as not claimed, still it does not mean that it is an endorsement of refusal to accept the service. Furthermore, even if there would have been a refusal to accept the service as per Order V Rule 17 CPC, service by affixing the copy of summons + plaint on the outer door or some other conspicuous part of the house. It was held that as there was no service of summons, the ex-parte order is not tenable and deserved to be set aside. [Jayshri Gajendra Mahajan v. Gajendra Pandit Mahajan,2018 SCC OnLine Bom 2233, dated 07-08-2018]

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: The Order passed by the Chief Judicial Magistrate granting bail to the accused was upheld by a Single Judge Bench comprising of S. Talapatra, J. holding that the grounds for cancellation of bail were not made out in the instant petition.

The petition was filed under Section 439 (2) CrPC for cancellation of bail granted to the accused as he was found suffering from the psychotic disorder. The petitioner contended that the accused had killed his parents and sister, he was not in a fit mental condition; and if he was out on bail, he would do more macabre things.

After considering the entire record, the Court did not find any ground for cancellation of bail. The Court, relying on the decision of the Supreme Court passed in State (Delhi Admn.) v.  Sanjay Gandhi, (1978) 2 SCC 411, observed that the cancellation of bail stands on a different footing from the rejection of bail. The Court held that the following grounds are available for cancellation of a bail already granted:

  • if the accused made an attempt to flee from justice;
  • if he tried to tamper with the evidence;
  • if supervening circumstances show that it would no longer be conducive to a fair trial to allow the accused to retain his freedom during the trial;
  • if the order granting bail was without jurisdiction;
  • if there was a wrongful exercise of power by the Magistrate in granting bail.

The Court held that in the instant case, no such allegation was made. In fact, the accused whose bail was sought to be cancelled was still languishing in jail. The Court found no reason to interfere with the impugned order and the petition was, therefore, dismissed holding it to be sans merit. Moreover, it was gathered that the petitioner required proper medical intervention for which orders were made and directions were given to the appropriate Authority.[Kaushik Halder v.  State of Tripura,2018 SCC OnLine Tri 68, dated 10-05-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of Dipak Misra and Amitava Roy, JJ directed the State of Bihar to transfer M. Shahabuddin, from Siwan Jail, District Siwan to Tihar Jail, Delhi within a week. The said prder of the Court came after the counsel appearing in the matter relating to Journalist Rajdev Ranjan’s murder had argued that Md. Shahabuddin, who was spotted with one of the accused persons who was absconding after the crime, should be transferred from Siwan Jail to Tihar Jail as he has been successfully instrumental in committing the crime while in jail or while he is out from jail even for a minimum period of time. The pending trails against the accused are to take place via video conferencing.

Rejecting the argument that the accused has a right to be tried fairly under Article 21 and his right cannot be scuttled or corroded at the instance of the petitioners, the Court said that the right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. The Court, hence, laid down the following principles regarding right to fair trial:

  • The fair trial which is constitutionally protected as a substantial right under Article 21 of the Constitution and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instill Rule of Law. A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.
  • A wrongful act of an individual cannot derogate the right of fair trial as that interest is closer, especially in criminal trials, to the Rule of Law. An accused cannot be permitted to jettison the basic fundamentals of trial in the name of fair trial.
  • The weighing of balance between the two perspectives in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest.
  • Section 3 of the Transfer of Prisoners Act, 1950 does not create an impediment on the part the court to pass an order of transfer of an accused or a convict from one jail in a State to another prison in another State because it creates a bar on the exercise of power on the executive only.
  • The Court in exercise of power under Article 142 of the Constitution cannot curtail the fundamental rights of the citizens conferred under the Constitution and pass orders in violation of substantive provisions which are based on fundamental policy principles, yet when a case of the present nature arises, it may issue appropriate directions so that criminal trial is conducted in accordance with law. It is the obligation and duty of this Court to ensure free and fair trial.

The transfer was sought as one Chandrakeshwar Prasad had preferred the writ petition under Article 32 of the Constitution of India that his two sons were abducted and murdered for which Md. Shahabuddin was convicted and sentenced to imprisonment for life and that the appeal against the said conviction and sentence is pending before the High Court. He also submitted that his third son was also done to death two days prior to giving evidence in court in respect of trial of his other two brothers. The counsel appearing for the petitioners had, on 24.10.2016, submitted that if such a history-sheeter is allowed to remain in the jail of Siwan Jail, the distress and the agony of the family of the petitioners would know no bound. [Asha Ranjan v. State of Bihar, 2016 SCC OnLine SC 988, decided on 15.02.2017]