Case BriefsSupreme Court

Supreme Court: Appalled with the arrest of Anuj Jain, the Interim Resolution Professional of the company managing the Yamuna Expressway, in connection with an accident that happened on the expressway that killed seven members of a family, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed his immediate release and has also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against Jain.

Jain was arrested in connection with an FIR that was filed after seven members of a family had died in an accident that happened on the highway. The victims were travelling towards Delhi when an overspeeding oil tanker jumped the divider and rammed into the victims’ vehicle The collision led to the spilling of oil from the tanker, resulting in a massive fire that engulfed both the vehicles.[1]

Shocked to the see the extreme step taken by UP Police to arrest the Interim Resolution Professional, Anuj Jain, working in that capacity pursuant to the order passed by the Court and entrusted with the functioning of the Company, the Court said,

“It is seen that the police official dealing with the case is not familiar with the provision of privilege of interim resolution appointed by the Court, in terms of Section 233 of the Insolvency and Bankruptcy Code.”

State of Uttar Pradesh had submitted before the Court that the Investigating Officer, Bijendra Singh, was of the view that the applicant may leave India at any time to avoid the prosecution and for securing his presence thought it necessary to arrest him from Mumbai.

Taking note of this submission, the Court said that it

“… will examine this aspect of the matter elaborately at appropriate time by treating this application as substantive writ petition filed by the applicant under Article 32 of the Constitution of India and to be numbered accordingly.”

In the meantime, the Court directed the release of Jain and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.

The Court asked the Registrar(Judl.) to personally intimate the office of the concerned Judge and Police Station Beta-II, District Greater Noida, Uttar Pradesh on telephone “to ensure immediate release of the applicant, Mr. Anuj Jain, without imposing any conditions”.

[Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 160, order dated 02.03.2021]


Appearances before the Court by:

For applicant: Senior Advocates Parag Tripathi and Sidharth Luthra

For State: Senior Advocate R.K. Raizada

[1] Yamuna Expressway management firm’s officer held after FIR following fatal accident by Abhishek Anand, India Today, Last Updated: March 2, 2021 13:06 IST

Hot Off The PressNews

The National Human Rights Commission, India has taken suo-motu cognizance of a media report that after 5 years in jail in Agra district of Uttar Pradesh for the crime they didn’t commit, a couple can’t find their two kids, who had been reportedly sent to some orphanage in their absence.

Considering it as a serious issue of human rights violation, the Commission has issued notices to the Chief Secretary and DGP, Uttar Pradesh calling for a detailed report in the matter within four weeks.

The reports should include the enquiry/action taken, if any, against the police officers and the public servants who were responsible to ensure social security to the innocent children of the victim couple.

Issuing the notices, the Commission has observed that the gross negligence committed by a public servant has devastated the entire family. The State authorities including the police and the social welfare authorities of the district Agra have acted in a reckless manner, showing no respect towards the basic human rights.

According to the media reports, carried on the 23-01-2021, the couple was arrested by the police in the year 2015, when a boy aged five years was found murdered and they were named in the case. The Additional District and Sessions Court, while releasing the couple had mentioned in the order that it is unfortunate that innocent people have spent five years behind the bars and the main accused is still free. The Court has reportedly directed the Senior Superintendent of Police to take action against the investigating officer for his negligence. The Court has also recommended re-investigation of the case on the basis of the available evidences, to arrest the actual perpetrator.

It is specifically mentioned in the news report that the then Sub-Inspector, who was working with the investigating officer, had admitted in the Court that he did not even try to find out as to against whom the FIR was registered.

As mentioned in the news report, the victim Narendra Singh, who was earlier working as a teacher, has been asking as to what was the fault of their children, son aged 5 years and daughter aged 3 years. The wife of Narendra Singh, who was also lodged in the jail with her husband, has reportedly written a letter to the Senior Superintendent of Police, Agra to search for their missing children. The couple never met their children after their arrest, and their bail application was rejected by the District Judge in the year 2015. It is also mentioned in the news report that the victim couple could not go further to approach the High Court due to their inability to afford the expenses.


National Human Rights Commission

[Press Release dt. 28-01-2021]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ has held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer. The Court said that

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.”

Discussion on Relevant Provisions of the NDPS Act

  • Section 50 of the NDPS Act provides that when any officer duly authorised under section 42 is about to search any person under the provisions of section 41, 42 or 43, he shall inform the person to be searched in the presence of a Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such person so desires, he shall take such person without unnecessary delay to the nearest Gazetted Officer as mentioned in sub-section 1 of Section 50.
  • As per Section 50 (5), when an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.
  • Section 50 (6) provides that after a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
  • Section 52 of the NDPS Act mandates that any officer arresting a person under Sections 41, 42, 43 or 44 to inform the person arrested of the grounds for such arrest.
  • Sub-section 2 of Section 52 further provides that every person arrested and article seized under warrant issued under sub-section 1 of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
  • As per sub-section 3 of Section 52, every person arrested and article seized under sub-section 2 of Section 41, 42, 43, or 44 shall be forwarded without unnecessary delay to the officer in charge of the nearest police station, or the officer empowered under section 53. That thereafter the investigation is to be conducted by the officer in charge of a police station.
  • Section 53 of the NDPS Act provides that the Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act.
  • Sub-section 2 of Section 53 provides that the State Government, may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act.

Constitution Bench’s observations of the aforesaid provisions

“It appears that the legislature in its wisdom has never thought that the officers authorised to exercise the powers under Sections 41, 42, 43 and 44 cannot be the officer in charge of a police station for the investigation of the offences under the NDPS Act.”

Noticing that other persons authorised by the Central Government or the State Government can be the officer in charge of a police station for the investigation of the offences, the Court said that Section 53 does not speak that all those officers to be authorised to exercise the powers of an officer in charge of a police station for the investigation of the offences under the NDPS Act shall be other than those officers authorised under Sections 41, 42, 43, and 44 of the NDPS Act.

Investigation includes even search and seizure. As the investigation is to be carried out by the officer in charge of a police station and none other and therefore purposely Section 53 authorises the Central Government or the State Government, as the case may be, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act.

Further, Section 42 confers power of entry, search, seizure and arrest without warrant or authorisation to any such officer as mentioned in Section 42 including any such officer of the revenue, drugs control, excise, police or any other department of a State Government or the Central Government, as the case may be, and Section 53 authorises the Central Government to invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government….or any class of such officers with the powers of an officer in charge of a police station for the investigation. Similar powers are with the State Government.

The only change in Sections 42 and 53 is that in Section 42 the word “police” is there, however in Section 53 the word “police” is not there.

“There is an obvious reason as for police such requirement is not warranted as he always can be the officer in charge of a police station as per the definition of an “officer in charge of a police station” as defined under the Cr. P.C.”

It was, therefore, noticed that as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove.

“To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.”

The Court also highlighted that the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the “officer in charge of a police station” other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 as naturally in such a case he would be a proposed accused and therefore he cannot be permitted to investigate and to be a judge in his own cause. However, so far as the investigation against the accused for the offence under the NDPS Act is concerned, the same analogy may not apply for the reasons stated hereinabove.

The Court, hence, concluded that there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice.

Considering the NDPS Act being a special Act with special procedure to be followed under Chapter V, and there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, the Court was of the opinion that there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal.

Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case.

“Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cuminvestigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record.”

[Mukesh v. State (Narcotic Branch of Delhi), 2020 SCC OnLine SC 700, decided on 31.08.2020]

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., while addressing a matter with regard to the Order issued by Delhi Police on 8-07-2020 in respect to the arrests being made in the Delhi Riots matter, made a suggestion that,

“media being the fourth pillar of democracy, news should be clear after verifying the facts so that no prejudice is caused to anyone or hatred is spread among communities in this country.”

Court refused to quash the order issue dby Delhi Police, wherein “arrests of some Hindu youth had led to a degree of resentment among the Hindu community” and therefore, subordinate officers should take due care and precaution while arresting any person.

Petitioners were aggrieved by the issuance of the respondent 4’s order to the investigating officers and teams while the investigation pertaining to the carnage that took place in North East Delhi was still underway.

Indian Express had reported the said order by an Article titled —

‘RESENTMENT IN HINDUS ON ARRESTS, TAKE CARE: SPECIAL CP TO PROBE TEAMS’ on 15-07-2020.

Article pertained to the ongoing investigation, arrests and prosecution by the Delhi Police in cases relating to the carnage in North East Delhi and inter-alia reports that order dated 08-07-2020 addressed to subordinate officers heading probe teams and signed by respondent 4 cites an “intelligence input” about the riot-related arrests of “some Hindu youth from Chand Bagh and Khajuri Khas areas of Northeast Delhi” and goes on to state that arrests of “some Hindu youth” has led to a “degree of resentment among the Hindu community”.

The Order proceeds to direct that “due care and precaution” must be taken while making such arrests.

Adding to the above, it states that “community representatives are alleging that these arrests are made without any evidence and are even insinuating that such arrests are being made for some personal reasons.

The order goes on to name two Muslim men and states: “In the same area, resentment among Hindu community is also reported for alleged police inaction” against the two, “who are alleged to have been involved in mobilizing members of the Muslim community during Delhi riots and anti-CAA protests”.

It has also been stated that direct message has been conveyed to the subordinate officer that due care be taken in case of arresting the Hindu People and no precaution may be taken while arresting the Muslim people.

High court while parting with the decision made it clear that the IOs of the cases shall be dealing in accordance with the law and shall not take into consideration instructions vide order dated 08-07-2020, whereby it was stated that the evidences must be discussed with Special PPs assigned to each case

While issuing any instructions especially in such type of situation, the respondents shall take due care, however, in any eventuality, instructions may be issued within the powers mentioned under Section 36 CrPC.

Bench also noted that the electronic/print media has published some news which was against the letter and spirit of the Order dated 08-07-2020 issued by respondent 4.

Further, the Court also noted that 535 Hindus and 513 Muslims have been charge-sheeted in all cases. Thus, no prejudice has been caused pursuant to letter dated 08.07.2020

Hence, the Court suggested that media being the fourth pillar of democracy, news should be clear after verifying the facts so that no prejudice is caused to anyone or hatred is spread among communities in this country.

Investigating authorities must not create any bias on the basis of any instruction issued by the senior officers which are not recognized under any law.

In view of the above petition was disposed of. [Sahil Parvez v. GNCTD, 2020 SCC OnLine Del 971, decided on 07-08-2020]

Case BriefsCOVID 19High Courts

Tripura High Court: Arindam Lodh, J.,  while terming the doctors as “frontline warriors”, directed the Investigating officer to conduct Test identification parade to ascertain the real offenders responsible for harassing a doctor.

Dr Sangita Chakrobarty was serving as District Health Officer, West Tripura, and was discharging her duties as, in-charge of distribution of COVID-19 patients. Five post-delivery mothers long with their new born babies, who were tested COVID-19 positive, were sent to a COVID Care Centre to ensure maximum safety and were kept under the surveillance of Dr Chakrobarty.

Some of the previously admitted older patients started protesting indiscriminately demanding that they would not allow entry of any new patients in the centre. The protests turned graver shortly and situation worsened. Dr Chakrobarty tried to calm down the protestors, however, they abused her, threw sexually coloured remarks, spat on her face and exhibited more of such uncivilised behaviour. Complaint against these patients was filed by the Director of Health Services, Government of Tripura.

The petitioner was one of the alleged protestors, and therefore, came before the High Court under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail.

The counsel, Raju Datta, for petitioner argued that the name of the petitioner had not been transpired in the complaint, there was no accusation against him, and on this ground alone, the petitioner should be granted anticipatory bail. High Court raised a question before him, whether mere apprehension of arrest attracts the ingredients of Section 438 of CrPC to which Mr Datta, submitted that mere apprehension of an arrest does not attract the ingredients of Section 438 of CrPC for granting anticipatory bail.

Bench looked into the relevant sections of CrPC. and the Epidemic Diseases (Amendment) Ordinance, 2020, to consider the bail application. He further explained the importance of doctors in society and especially during the time of COVID-19 when doctors have become the “first-line defence of the country”.

Adding to the above, Court labelled the protest which took place as “detrimental to the sentiment, safety and security of the Doctors and the entire society of our nation as well as of this state.” Therefore, keeping in mind the objective of the latest Epidemic Ordinance, he directed the Investigating Officer to record the confessional statement of the victim and her supporting staff under Section 164(5) of the CrPC.

Bench directed the Investigating officer to arrange for Test Identification parade to identify the real offenders. [Karnajit De v. State of Tripura,  2020 SCC OnLine Tri 353, decided on 30-07-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., while addressing the matter of Custodial Death of “Jayaraj & Bennicks” appealed the members of media to not conduct “Media Trial” as that may affect the prosecution and accused both.

Petition was filed to direct respondent 1 to submit a report on the death of Bennicks and Jayaraj, accused in Sathankulam and or pass any other order/direction.

No Media Trial

Bench appealed to members of the Print, Visual and Social Media not to misinterpret the proceedings or observations made during the course of hearing with the further appeal, not to conduct media trial as it may affect both the prosecution as well as the accused.

Additional Advocate General for the State submitted that pursuant to the directions of this Court, Anil Kumar, Deputy Superintendent of police, CBCID had taken over the investigation and effected arrest of the following under Sections 302, 342 and 201 IPC:

  • Raghu Ganesh, Sub Inspector of Police
  • Balakrishnan, Sub Inspector of Police
  • Murugan, Head Constable
  • Muthurajan, Gr-I Police Constable
  • Sridhar, Inspector of Police/Station House Officer, Sathankulam Police Station
  • Pauldurai, Special Sub Inspector of Police
  • Samidurai, Head Constable
  • Vail Muthu, Gr-I Police Constable
  • Chelladurai, Gr-I Police Constable
  • Thomas Fransous, Gr-I Police Constable and steps have already been taken to get their police custody before the expiry of initial period of remand of 15 days.

Assistant Solicitor General of India, V. Kathirvelu submitted that CBI had registered two separate cases under Sections 176 (1-a)(i) CrPC and Additional Superintendent of Police, CBI V.K. Shukla had been nominated as investigating officer.

Bench passed the following orders pertaining to the present petition:

CBCID shall filed a status report as to the investigation carried out so far in a sealed cover before this Court on the next date of hearing.

CBI while investigating the cases registered shall take into account, the materials collected by CBCID so far, for the purpose of carrying out the effective and quality investigation and if it feels that custodial interrogation of any of the accused is necessary, it may take appropriate steps.

Investigating Agency either CBCID or CBI, may take immediate step to file applications for getting police custody of the arrested persons, within fifteen days of remand before the jurisdictional Magistrate as contemplated under Section 167 CrPC.

Matter to be listed on 28-07-2020. [Registrar (Judicial) v. State of Tamil Nadu, 2020 SCC OnLine Mad 1332 , decided on 9-07-2020]


Read More:

TN Custodial Deaths | Madras HC directs preservation of clue materials; Issues directions on premise that case be transferred to CBI

TN Custodial Deaths | Madras HC passes slew of directions for conducting of enquiry by the Judicial Magistrate in the brutal killing of father-son duo

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J. allowed this application of bail filed under Section 439 of the Code of Criminal Procedure, 1973.

The petitioners of this application are the accused of Crime No. 81 of 2019. The crime was registered by the Excise Enforcement and Anti Narcotic Drugs Special Squad, Kollam under Sections 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 60(3) of the Abkari Act. The counsel for the applicants contended that it has already been 60 days from the time they were remanded to judicial custody on 12-10-2019 and still the final report has not been laid even after completing the investigation.

Section 20(b)(ii)(B) of the NDPS Act states that if anyone produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis and the quantity involved is lesser than commercial quantity but greater than small quantity then that person shall be punished with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.

After hearing to the counsel for the petitioner, C. Rajendran, and to the counsel for the respondent, Ramesh Chand, Public Prosecutor, the Court held that the applicants have the absolute right to be released on default bail. Hence, the Court granted bail. The applicants were to be released on bail when each of them executes a bond a Rs 1,00,000 with two solvent sureties each for the sum to the satisfaction of the court. Though the Court laid down some conditions:

  1. The applicant will have to appear before the Investigating Officer on every Saturday between 10.00 a.m. and 1.00 p.m. for a period of 2 months.
  2. They cannot intimidate/attempt to influence the witness, or tamper the evidence
  3. Shall not commit any similar offence.
  4. Surrender their passport before the court below or if they do not the same, they shall file an affidavit to the effect within 5 days of their release.
  5. In case of violation, the jurisdictional court will have the power to cancel their bail. [Shafeek v. State of Kerala, 2019 SCC OnLine Ker 5347, decided on 12-12-2019]
Case BriefsHigh Courts

Allahabad High Court: Applicant filed an application under Section 482 of Criminal Procedure Code which was contemplated by Dinesh Kumar Singh, J. where the prayer was to quash the Charges under certain Sections of Penal Code, 1860.

The applicant was charged under Sections 366, 376, 328, 506, 406 of IPC, in which the Chief Judicial Magistrate had taken cognizance. Santosh Yadav, counsel for the applicant argued that the accused was falsely implicated by the respondent-complainant who was the mother of the victim, the main reason cited by the counsel behind such baseless complaint was alleged desire to the victim to marry applicant. The counsel submitted the statements of the complainant and highlighted that she had stated that ‘she suspected the involvement of accused in the instant case.’ Another issue highlighted was alleged kidnapping by the accused-applicant, it was submitted that the victim was never abducted as she herself went to the police station to register the complaint. The attention of the Court was also drawn towards the other statement of the victim, recorded under Section 161 of CrPC. where the allegation of rape had been made upon the accused applicant who after committing rape had given assurance to marry her and subsequently when she asked to marry he committed assault and refused to marry.  In addition to these aforementioned evidences the applicant submitted an injury report, where it was stated that no marks to injury were found on the victim. Lastly, it was submitted by the learned counsel for the applicant that many facts were ignored by the Investigating Officer and the charge-sheet had been submitted in a routine manner, which was nothing but an abuse of the process of Court and in the interest of justice, the charge sheet deserved to be quashed.

Bhaiya Ghanshyam Singh, Advocate General for the state, had vehemently opposed the prayer for quashing of the charge- sheet and had stated that the evidence which was collected by the Investigating Officer cannot be looked into in this Application under Section 482 CrPC as the same will be required during the trial. It was submitted that High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of CrPC. “because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties.”

The Court held that the Investigating Officer had recorded the statements of as many as five witnesses have submitted the charge-sheet. It further opined that “the truthfulness of the statements of the witnesses cannot be scrutinized in Application under Section 482 CrPC” The Court relied upon the Judgment in Anurag Singh v. Chhatisgarh, 2019 SCC OnLine SC 509, where the Supreme Court had held that ‘position of law, was apparent that whether accused wanted to marry the victim right from very beginning or not and whether consent given by victim for sexual intercourse was a free-consent or not, was a subject matter of evidence, which is only possible to be decided after trial.’

Hence, the prayer for quashing the FIR was refused and the application was dismissed.[Kamal Pal v. State of U.P., 2019 SCC OnLine All 3539, decided on 25-09-2019]

Case BriefsHigh Courts

Uttarakhand High Court: Ravindra Maithani, J. has asked the State of Uttarakhand whether an Investigating Officer, by conducting DNA tests, has the right to determine the gender or sex of a transgender person who underwent a gender reassignment surgery.

The petitioner, in this case, had filed an FIR alleging she was raped, but the FIR was registered by the police under Section 377 (unnatural offences) of the Penal Code, 1860. She had identified herself as a female and also claimed that she had undergone gender reassignment surgery and had obtained a certificate declaring that she may be addressed as a “she”. She approached the High Court, contending that she had been harassed by the investigating officers by lodging the FIR as an unnatural offence instead of rape and addressing her as a male.

The Court took into consideration the matter being one of social importance and hence it needs to be observed strictly as it is not only touching the petitioner alone but many others who have faced such an issue. The Court reiterated what has been laid down in the landmark case National Legal Services Authority v. Union of India, (2014) 5 SCC 438, wherein the petitioner’s “right to self-identification of gender” was denied and the Supreme Court rejected the age-old principle laid down in Corbett v. Corbett, (1970) 2 All ER 33 that an individual’s sexual constitution is fixed at birth and cannot be changed. The Hon’ble Supreme Court went on to prefer the “psychological test” instead of “biological test”. It stated “When we examine the rights of transsexual persons, who have undergone SRS, the test to be applied is not the “biological test”, but the “psychological test”, because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person. Seldom people realize the discomfort, distress and psychological trauma, they undergo and many of them undergo “gender dysphoria” which may lead to mental disorder. Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role.”

The Court questioned the acts of Investigating officers and the public servants and stated they have not taken into consideration the Supreme Court judgment. It asked the Home Secretary of the State of Uttarakhand to file an affidavit answering various questions as to how the Investigating Officer had the right to determine the sex or gender of the petitioner how could the Investigating Officer apply the “biological test” instead of the “psychological test” in light of the Supreme Court judgment.[Shilpi Lawrence Elenjikal v. State of Uttarakhand, Writ Petition (Criminal) No. 28 of 2019, decided on 29-04-2019]

Case BriefsHigh Courts

Kerela High Court: The Bench of N. Anil Kumar, J., allowed the bail application of a seventy years old man, filed under Section 439 of Code of Criminal Procedure, 1973.

In the present case, the applicant was alleged of committing unnatural sexual intercourse with a boy aged 13 years and was charged under Section 377 of Penal Code, 1860 and Section 3(a) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. The victim filed the complaint belatedly on 21-03-2019 and the accused was arrested on 22-03-2019, since then he had been in judicial custody. Applicant had asked for the bail on the grounds of his old age and suffering from various illness including cardiac ailments which required regular medication and medical consultation. He also pointed towards the inordinate delay in reporting the matter to the police by the victim indicating the falsity of the allegations, as ground for bail.

The Court in its order granting the bail said, “In view of the fact that the petitioner is a 70-year-old senior citizen and that no purpose will be served by further detaining the applicant in judicial custody, it is just and proper to grant bail to the petitioner after imposing stringent conditions. Further, the petitioner has been in judicial custody since 22-03-2019.” The Court also put several conditions while granting bail such as, the applicant would be executing a bond for Rs 50,000 along with two solvent sureties, he would be appearing before investigating officer on all Mondays and Thursdays on scheduled time for the next three months, he would not be contacting the victim or his family members and would not intimidate the prosecution witnesses and he would surrender his passport and not leave the territory of State without the Court’s permission. In case if he fails to comply with any of these conditions, the Court would be free to cancel his bail order.[Eni v. State of Kerela, 2019 SCC OnLine Ker 1407, Order dated 03-05-2019]

Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of Ranjan Gogoi, CJ and Navin Sinha and KM Joseph, JJ has clarified that  all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal vs. State of Punjab, (2018) SCC Online SC 974 shall continue to be governed by the individual facts of the case, as the said judgment cannot be allowed to become a spring board by an accused   for   being   catapulted   to   acquittal,   irrespective   of   all   other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous.

In the said judgment, the 3-judge bench of Ranjan Gogoi, R. Banumathi and Navin Sinha, JJ was dealing with the question as to whether in a criminal prosecution, it will be in consonance with the principles of justice, fair play and a fair investigation, if the informant and the investigating officer were to be the same person. It had held that:

“To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof.”

When the present matter came before the Court, it noticed the facts of the present case were different from that in the Mohan Lal case. In the present case, it was argued that the conviction must vitiate as the informant is also the investigating officer. Strong reliance was placed on the Mohan Lal verdict. The Court, however, noticed that the facts in Mohan Lal case were indeed extremely telling in so far as the defaults on part of the prosecution was concerned. In the said case, the paramount consideration being to interpret the law so that it operates fairly, the facts of that case did not show any need to visualise what all exceptions must be carved out and provided for.

In relation to the case at hand, the Court said that the facts in the present case were equally telling with regard to the accused. It added:

“There is a history of previous convictions of the appellant also. We cannot be oblivious of the fact that while the law stood nebulous, charge sheets have been submitted, trials in progress or concluded, and appeals pending all of which will necessarily be impacted.”

Stating that criminal jurisprudence mandates balancing the rights of the accused and the prosecution, the bench said:

“Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society — be it the law­abiding citizen or the potential offender. ‘Human rights’ are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole.”

[Varinder Kumar v. State of Himachal Pradesh, 2019 SCC OnLine SC 170, decided on 11.02.2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of  Vipul M. Pancholi, J., allowed the application made for granting an anticipatory bail on the grounds that the applicant was a lady, she was a doctor having two minor children and had cooperated with the investigating officer. 

The facts of the case are that the applicant was booked for the offenses punishable under Sections 419, 420, 423, 465, 467, 468, 470, 471, 474, 477-A, 120-B of the Indian Penal Code for which this application was filed under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail. The counsel for applicant argued that the nature of allegations were such for which custodial interrogation at that stage was not necessary. Additional Public Prosecutor appearing on behalf of the respondent – State opposed grant of anticipatory bail by emphasizing on the gravity of the offence.

The Court allowed the application on the ground that the applicant was a lady; she was a Doctor having two minor children and had cooperated with the investigating officer thus granting her anticipatory bail. [Varsha Madhukar Wagh v. State of Gujarat, 2019 SCC OnLine Guj 127, decided on 22-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Bench of Sanjay Kumar Gupta, J. allowed this petition seeking a direction to the official respondents for reinvestigation because of shoddy, incomplete and unreasoned investigation conducted in a perfunctory manner.

The facts of the case are that the father, brother of the petitioner and the petitioner himself were criminally abused, beaten up and restrained by the accused persons. An FIR was lodged but the police refused to take any actions against the accused persons. It was stated that the Challan in the aforesaid FIR was produced before the Court of Learned Munsiff only under Sections 341/323/34 RPC and only against a few of the respondents and left over the serious offences and rest of the accused persons. The petitioners further contended that the criminal case under the FIR whose challan was presented in the Court of Munsiff required a reinvestigation as the medical record which had been annexed with the petition was not considered by the Investigating Officer during the investigation.

The Court allowed the petition and ordered for further investigation. [Mohd. Arif v. State of J&K, 2018 SCC OnLine J&K 1046, decided on  24-12-2018]

Case BriefsHigh Courts

Tripura High Court: A Bench of Arindam Lodh, J. allowed a petition for quashing of criminal proceedings pending against the petitioner.

The petitioner was arrested with other co-accused in connection with a crime under Sections 364-A, 302 and 201 IPC along with Section 27 of Arms Act. The petitioner through his counsel D. Bhattacharya, Advocate submitted that after investigation, the chargesheet submitted by the Investigating officer did not show his name. Further, that the IO specifically observed that there was no evidence against the petitioner. However, after taking cognizance of the case, the Judicial Magistrate (First class), Sonamura issued an arrest warrant against all the accused including the petitioner. Aggrieved thereby, the present petition was filed.

After carefully perusing the record, the High Court expressed serious dissatisfaction to the conduct of JMFC who did not think it necessary to go through the chargesheet itself. This, according to the court, is unexpected from a Judicial Officer. The JMFC was cautioned that any such mistake in future would draw appropriate action. It was observed, “It is the solemn duty of the court to protect the life and liberty of a citizen and none should be harassed unnecessarily”. The Court was satisfied that the petitioner was discharged by the IO and therefore it allowed the petition by quashing the proceedings pending against the petitioner. [Priyalal Debbarma v. State of Tripura, 2018 SCC OnLine Tri 261, Order dated 05-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of S.P Garg, J held that the sole testimony of the investigating officer cannot be grounds for convicting the accused under the NDPS Act in the absence of other evidence.

In this case, an intelligence officer, Directorate of Revenue Intelligence received a secret information on phone about two persons of certain descriptions who would arrive at a certain bus stop on Wazirabad road at about 9:00 p.m. carrying contraband. The said call was allegedly made at around 5:00 p.m. This information was recorded in writing and placed before senior officers and the complainant was directed to take necessary steps which resulted in the arrest of two persons matching the description given by the anonymous caller with around 6 kg of heroine in their possession. The DRI claims that during the arrest, two public persons joined the raiding team at about 8:30 p.m.

The Court found many discrepancies in the investigation and arrest. The Court questioned the absence of the two public persons during cross-examination. Moreover, the anonymous tip was recorded in a loose sheet of paper. Moreover, the DRI was unable to make a case as to where the accused persons had come from, where they were headed, who they were bringing the contraband for where they got the contraband from. In light of the above-mentioned circumstances surrounding the case, the Court allowed the appeal setting aside the sentence. [Mohammad Burhan v. Directorate of Revenue Intelligence, 2017 SCC OnLine Del 10060, decided on 24.08.2017]