Case BriefsHigh Courts

Delhi High Court: The Division Bench of C. Hari Shankar and Subramonium Prasad, JJ., while addressing the matter expressed that:

Within the confines of the law, compassion must inhere in the approach of every court which practices equity.

Petitioner who had joined BSF in 1997 was detected with HIV+ in 2007.

Petitioner’s submission was that he was placed in the Low Medical Category due to which he was not given any promotion and at present, he was posted at the Headquarters, New Delhi since 2017.

Voluntary Retirement due to Transfer Order

He was aggrieved with the order of transfer at Cachar, Assam located on the Indo-Bangladesh Border as travelling to the said destination and discharging duties would be severely deleterious to his health and could also imperil his life, hence he applied for voluntary retirement.

“…rules applicable to the BSF permit BSF personnel to apply for voluntary retirement on 90 days’ notice.”

Petitioner had sought the retirement with effect from 30-09-2021 and also addressed a separate representation on 16th June seeking suspension of the transfer order.

Petition states that till date no decision on has been made on either of the above stated. Instead on 22-06-2021, a movement order was issued, relieving the petitioner of his duties at Delhi and directing him to report at Cachar, Assam on or before 5-07-2021.

In view of the above facts, the petitioner moved this Court.

Analysis, Law and Decision

High Court had queried as to whether the place to which the petitioner was being transferred, conformed to criteria A and B governing the places to which P-3 category personnel would be posted i.e. at which humidity level is less than 75 % round the year and which has access to specialist services nearby.

To the above-stated queries, the only submission of Mr Tiwari was that there happens to be a government hospital within 10 kms of the place to which the petitioner was posted. As to whether the said government hospital has the ART facilities to treat HIV+ patients, Mr Tiwari had no instructions, except to state that it’s a medical college.

Later, however, Mr Tiwari, respondent’s counsel did submit that the Government hospital had the facility to treat the HIV+ Patients, though he was still unaware of whether the required Mega Highly Active Retroviral Therapy facilities are available there.

Court was hoping that a compassionate approach would be adopted by the respondent, nevertheless, the respondents chose to contest the petition.

Bench stated that the MHA guidelines dated 28-09-2017 clearly require that P-3 category BSF personnel be posted at a place that has a humidity level of less than 75 % round the year and has access to specialist services nearby. To merely state that there is a medical college that has ART facility (which, too, is merely a telephonic instruction received during the course of hearing) at a distance of 10 km, in a place such as Assam, can hardly reflect compliance with the mandate of the guidelines.

Justice, it is well settled, has to be tempered with mercy and compassion. Justice to which mercy is alien is no justice at all.

In view of the facts and circumstances, Bench remarked that the petitioner did not insist upon staying in Delhi and very fairly, at the cost of his career agreed to voluntarily retire, hence the insistence of respondent on joining the duty at Cachar, in petitioner’s medical condition cannot be appreciated.

Therefore, petitioner was entitled to a stay of operation of the impugned order transferring him to Cachar as well as the movement order relieving him till the next date of hearing.

High Court noted that the writ petition was not accompanied with an application for stay and the power of the Court to pass appropriate orders, to aid the final order which can be passed by it, stood settled by Supreme Court as far back as in I.T.O. v. Mohd Kunhi, AIR 1969 SC 430.

Matter to be re-notified on 6-09-2021. [Kavendra Singh Siddhu v. Union of India, 2021 SCC OnLine Del 3602, decided on 2-07-2021]


Advocates before the Court:

For the Petitioner: Mr Aditya Hooda, Advocate

For the Respondents: Mr Jivesh Kumar Tiwari, Senior Panel Counsel with Mr Shoumendu Mukherji, GP for Union of India.


About the Bench:

Justice C. Harishankar

He was born in New Delhi on 4th May 1968, Justice C. Hari Shankar completed his schooling from St. Columba’s School and, thereafter, acquired B. Sc. (Hons) in Chemistry from Kirori Mal College and LL.B. from the Campus Law Centre, Delhi University in 1993. He has appeared, as arguing/senior counsel, before several judicial fora, including, but not limited to, the Supreme Court of India, High Courts of Delhi, Calcutta, Gujarat, Bombay, Allahabad, Punjab & Haryana, Madhya Pradesh, Rajasthan, Uttaranchal, Andhra Pradesh, Madras and Himachal Pradesh, the Central Administrative Tribunal, the Customs, Excise and Service Tax Appellate Tribunal, the Appellate Tribunal for Foreign Exchange, the Company Law Board, the AAIFR, the NCDRC, and the National Green Tribunal. His core areas of specialization were indirect taxes, along with allied subjects such as foreign exchange and COFEPOSA, and service law. He was on the Panel of Special Counsel representing the Central Government in the Supreme Court of India, and was also empaneled Counsel for the Directorate General of Anti-Dumping. He was regularly appearing on behalf of the Central Council for Research in Unani Medicine before the CAT and before this Court. On 20th August 2014, he was designated Senior Advocate by the Delhi High Court.

Justice Hari Shankar was appointed permanent Judge of this Court on 15th May 2017.


Justice Subramonium Prasad

Justice Subramonium Prasad graduated in B.Com. (Hons.) from Delhi University. He acquired his LLB degree from Campus Law Centre, Delhi University in the year 1990. Justice Prasad cleared the Advocate-On–Record exam in 1996 and started his independent practice. He became the Standing Counsel for the State of Tamil Nadu in the Supreme Court of India in 2003, a post he held till 2006. He was also the standing counsel for the custodian appointed under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, dealing with cases pertaining to the 1992 stock exchange scam. In October 2012, Justice Prasad was appointed as the Additional Advocate General for the State of Tamil Nadu in the Supreme Court of India. Justice Prasad was designated as a Senior Advocate by the Supreme Court of India in April 2015.

Over his career spanning 28 years, Justice Prasad has worked on several high profile matters, and has been involved in several reported judgements of the Supreme Court on various subjects like Constitutional Law, Tax, Corporate and Commercial Law, Criminal Law, Election Law, Service Law and Inter State River Water Disputes.

Justice Prasad was appointed as an Additional Judge of the Madras High Court on 4.06.2018. He was transferred to Delhi High Court as an Additional Judge on 13.03.2020 and confirmed as a Permanent Judge of the Madras High Court on 17.03.2020.

[Source of information: Delhi High Court website]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., observed that If an HIV positive person is aware of their condition and has unprotected sex, the person can be punished under Section 270 of Penal Code, 1860.

Appellant was convicted by the trial court under Sections 376/313/307 of Penal Code, 1860.

Appellant was found guilty of raping his stepdaughter and since the appellant was found to be infected with Human Immunodeficiency Virus (HIV Positive) and was convicted for an offence punishable under Section 307 of IPC — attempt to murder.

Trial Court also observed that since the appellant was aware that his acts could result in transmitting the potentially lethal disease, he had knowingly committed an act, which if resulted in transmitting of HIV and consequently, the death of the victim from that disease, it would amount to murder.

Analysis, Law and Decision

Conviction for Rape — offence punishable under Section 376 of IPC

Whether there is any doubt that the appellant is guilty of committing an offence punishable under Section 376 IPC?

Considering that the prosecutrix gave varied statements at various points of time and had changed her stand on oath. The testimony of the prosecutrix could not be considered as wholly reliable and the trial court erred in proceeding on the said basis. However, Court also denied accepting that she was a wholly unreliable witness.

Further, in view of the above Court stated that it would be unsafe to rely on the testimony of the prosecutrix without any corroborative evidence and hence solely on her testimony, the appellant cannot be convicted.

Bench made another observation that,

in the instant case, there is unimpeachable corroborative evidence that the petitioner had raped the prosecutrix. The DNA Fingerprints of the Products of Conception and the DNA Fingerprints generated from the blood sample of the petitioner conclusively established that the appellant was the biological father of the abortus.

Repeatedly Raped

It is also material to note that the prosecutrix had in the first instance, when she was brought to the Community Care Centre, reported to the nurse that her stepfather had been repeatedly establishing physical relations with her and had been sexually abusing her in front of her siblings.

Even the medical report recorded:

“Repeated Rape by HIV positive stepfather after the death of mother suffering from HIV/AIDS in Jan 2011. Patient was overdue by one week in April 2011 when she was given an injection to get back her periods back. She bled with clots and pieces. UPT done showing pregnancy positive result.”

High Court concurred with the decision of the trial court that the evidence obtained in the present case clearly established beyond any reasonable doubt that the appellant had engaged in sexual intercourse with prosecutrix without her consent and had committed an offence punishable under Section 376 IPC.

Conviction for causing miscarriage – offence punishable under Section 313 IPC

Whether it is established that the appellant is guilty of committing an offence punishable under Section 313 of the IPC?

Trial Court had held that the appellant was guilty of causing miscarriage to the prosecutrix by administering her pills. It is relevant to note that though the prosecutrix was in Sneh Sadan when she was allegedly administered pills by the appellant and the same was allegedly informed to doctors immediately, no action was taken by any of the doctors in this regard.

Bench stated that there is no material to indicate as to what pills were administered to the prosecutrix. Although three medical doctors were examined, none of them mentioned that in their opinion the prosecutrix‘s miscarriage was induced by the said pills.

Hence, the Court stated that there was no description of the pills allegedly administered to the prosecutrix. There is nothing on record to remotely indicate as to what was the substance that was allegedly administered to the prosecutrix.

Court was of the view that there was insufficient evidence to conclude that the appellant had committed the offence of causing the prosecutrix‘s miscarriage. Therefore, the appellant‘s conviction for committing an offence under Section 313 of the IPC could not be sustained.

Conviction for an attempt to murder – offence punishable under Section 307 IPC

Bench did not concur with the view that the appellant was guilty of an offence punishable under Section 307 IPC for several reasons.

Firstly, that the import of holding so would also mean that any sexual activity by a person infected by HIV is punishable under Section 307 of the IPC, notwithstanding that his or her partner has consented to such sexual activity. This is because the culpable act under Section 307 of the IPC does not cease to be one if the victim of such an act has also consented to the same.

Secondly, the trial court had drawn support for its conclusion by mentioning that several countries prosecute cases of transmission of HIV and non-disclosure of HIV status. However, the court had not examined the specific provisions or the rationale used in various jurisdictions for prosecuting non-disclosure of HIV positive status as general offences.

In cases of actual transmission where an HIV Negative person acquires the said disease as a result of engaging in any sexual activity with an HIV Positive partner, the offender is prosecuted for causing bodily harm.

In certain cases where an HIV Positive person fails to disclose his status and engages in any sexual activity, he/she may be prosecuted for sexual assault as in such cases, the consent of the other person to engage in sexual intercourse is vitiated and the sexual act can be construed as one without consent.

In cases of sexual assault or rape, it is widely accepted that the HIV Positive status of the offender is an aggravating factor to be considered while sentencing the offender.

Thirdly, on a plain reading of Section 307 of IPC, an offence under Section 307 IPC is not made out.

Section 307 of the IPC punishes any act which is done by a person with such intention or knowledge and under the circumstances that by that act cause death, the persons committing such act would be guilty of murder.

Bench observed that clearly, in the facts of the present case, the appellant had not raped the prosecutrix with an intention of causing her death.

According to the prosecution, the appellant was lonely after the death of his wife and he had sexually preyed on his stepdaughter (as allegedly disclosed by him in his disclosure statement).

It is relevant to note that one of the key ingredients of the second, third and fourth limb of Section 300 of the IPC is that the culpable act is so inherently dangerous as is likely to cause death; or is sufficient in the normal course of nature to cause death; or in all probability, it would cause death.

The assumption that penetrative sexual assault would in all probability lead to transmission of the disease, which in all probability would result in the death of a healthy partner is not established. In the facts of the present case, no evidence whatsoever was led to establish the probability of the prosecutrix being transmitted the said disease.

In the given circumstances, the decision of the Trial Court is largely based on surmises and impressions, without analysis of any scientific data to assume that sexual intercourse by an HIV positive patient would in all probability lead to the demise of his partner.

Fourthly, the appellant was medically examined and there is no evidence to indicate that he was a carrier of Herpes Simplex Virus. Thus, there is no evidence that the appellant would have transmitted the said disease to the prosecutrix.

Lastly, this Court is of the view that the Trial Court had erred in proceeding on the basis that provisions of Section 270 of the IPC would not be applicable.

In Supreme Court’s decision of Mr ‘X’ v. Hospital ‘Z’: (1998) 8 SCC 296, a case was considered where the respondent hospital had disclosed that the appellant was HIV positive to his fiancé. As a result of such disclosure, the appellant‘s marriage to his fiancé was called off. Appellant instituted an action to recover damages on the ground that the information regarding his HIV positive status was required to be kept secret under medical ethics and was disclosed illegally. The appellant pleaded that since the hospital had breached its duty to maintain confidentiality, they were liable to pay damages to the appellant.

“…the reasoning that unprotected sexual engagement by an HIV positive person, who is aware of the nature of his disease, can be termed as a negligent act, which he knows is likely to spread the infection of a disease that endangers life and is thus, liable to be punished under Section 270 of the IPC is persuasive and cannot be faulted.”

Court opined that even if the Trial Court was of the view that it would not be apposite to frame charges under Section 270 of the IPC, the same did not necessarily warrant that charges be framed under Section 307 of IPC.

In view of the above, the impugned judgment to the extent that it convicts the appellant for committing an offence punishable under Section 376 of the IPC was upheld.

Punishment for offences under Sections 313 and 307 of IPC was set aside. [Sabhajeet Maurya v. State (NCT of Delhi), 2020 SCC OnLine Del 1525, decided on 26-11-2020]

COVID 19Hot Off The PressNews

The National Human Rights Commission has taken suo motu cognizance of media reports that fifty-seven minor girls have tested positive for the novel coronavirus at a state-run children’s Shelter Home in Kanpur district of Uttar Pradesh. Five of them have been found pregnant and one HIV positive. Reportedly, the girls were exhibiting symptoms of COVID 19 for some time but there was delay in taking them to the hospital for tests.

The Commission has observed that the contents of the media report, if true, are enough to prima facie believe that the public servants have failed to provide safeguard to the victim girls and, apparently, were negligent in protecting their right to life, liberty and dignity in the custody of the State .

Accordingly, it has issued a notice to the Chief Secretary, Government of Uttar Pradesh calling for a detailed report in the matter including health status of all the girls, their medical treatment and counselling provided to the girls by the authorities. The State Government is expected to order an inquiry into the matter from an independent agency. It is also expected to review health status of the female inmates lodged in shelter homes, across the State and issue suitable directives that such incidents do not recur in future.

A notice has also been issued to the Director General of Police, Uttar Pradesh calling for a report regarding registration of FIR in this matter and status of investigation. The response is expected within 4 weeks from both the authorities.

According to the media reports, the girls at the shelter home had been exhibiting Covid-19 symptoms for a few days, and the local administration had informed the State health department about it only last Friday on 19th June,2020.

Reportedly, the Kanpur District Magistrate has said that there were seven pregnant girls living in the home, and five of them tested positive for Covid-19. He has said that these girls were already pregnant when they were brought to the shelter home on the recommendation of the Child Welfare committees in different districts, and investigation under the Protection of Children from Sexual Offences Act is going on in all these cases.

The Senior Superintendent of Police, Kanpur has reportedly stated that two of the girls had come from Agra and Kannauj in December 2019. The SSP said all the girls found Covid-positive are being treated at the Kanpur Medical College. The shelter home has been sealed, and its staff quarantined.


NHRC

[Press Release dt. 22-06-2020]

Case BriefsHigh Courts

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that twenty-four prisoners have tested positive for HIV in the last four months at Gorakhpur District Jail in Uttar Pradesh. They include 21 undertrials and three convicts, including a woman. Reportedly, during the tests conducted by the Uttar Pradesh State AIDS Control Society in 70 jails of the State, 265 prisoners were tested HIV positive till December last year. These cases have been reported from the jails in Bareilly, Allahabad, Gorakhpur, Lucknow, Faizabad, Agra, Meerut, Varanasi and Kanpur.

The Commission has issued notices to the Chief Secretary and IG (Prisons) of Uttar Pradesh calling for detailed reports in the matter within six weeks along with the steps taken to deal with the menace.

It has also observed that the contents of the news report, if true, indicate towards sorry state of affairs in the jails of Uttar Pradesh. Seemingly, there is an urgent need to conduct a probe into the matter to determine the cause of the spread of HIV infection among prisoners. It is also necessary to take immediate preventive measures so that other prisoners do not fall prey to the infection and those, who are suffering are provided necessary medical treatment.

According to the media report, carried on the 28th February, 2018, the jail administration has claimed that the disease did not spread inside the jail and the prisoners were already infected when they arrived. Most of them have been jailed under the Narcotic Drugs and Psychotropic Substances Act. As reported, in the month of October last year, on the initiative of Uttar Pradesh State AIDS Control Society, a camp was started to conduct blood tests on the prisoners to detect HIV in which, more than half of the prisoner lodged in the jail were tested.

National Human Rights Commission