Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah B.V. Nagarathna*, JJ., cancelled the bail order of the High Court against the person accused of killing a person with 54% disability by pinning him to the ground and throttling his neck. Finding the order of the High Court cryptic and casual, de hors coherent reasoning, the Bench invoked the latin maxim “cessante ratione legis cessat ipsa lex” to hold that “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”.

Factual Matrix

The appellant, son of the deceased had assailed the impugned order of the High Court, whereby the respondent-accused was granted bail. The said order was impugned by the appellant on the following grounds:

  1. a) The allegation against the respondent-accused was under section 302 of the IPC with regard to the murder of the deceased Ram Swaroop Khokhar, the father of the informant-appellant who was a disabled person. Thus, the offence alleged against the respondent-accused was of a grave nature.
  2. b) The deceased had been elected in 2015 as the Deputy Sarpanch of Mandha Bhopawaspachar village despite opposition from the accused and his family. Therefore, owing to such political enmity, the accused overpowered the deceased who was suffering from 54% permanent physical impairment of both his legs, pinned him to the ground, sat on him and throttled his neck. As per the post-mortem report, the cause of death was ante-mortem strangulation.
  3. c) That the respondent-accused was a person exercising significant political influence due to which there was great difficulty in registering the FIR against him. Moreover, the accused was arrested only following a protest outside a police station demanding his arrest. Thus, the possibility of the accused threatening or otherwise influencing the witnesses, if on bail, could not be ruled out.
  4. d) That the respondent-accused had earlier preferred applications seeking bail, under section 437 of the CrPC on two occasions and again under section 439 of the CrPC but the same were rejected having regard to the gravity of the offences alleged against the accused.

The appellant alleged that the High Court in a very cryptic order, de hors any reasoning had granted bail to the respondent-accused which deserved to be set aside.

Reasoning given by the High Court

At the outset, the extracted portions were the only portions forming part of the “reasoning” of the High court while granting bail, which read as under:

“I have considered the submissions and perused the challan papers and the post-mortem report, but without expressing any opinion on the merits and demerits of the case, I deem it appropriate to enlarge the accused-petitioner on bail…”

Analysis and Conclusion

Though it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the allegations of the offences by the accused would not have been crystalised as such, however, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.

Ultimately, the Bench held that the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other. As an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum.

Considering the factum of the case along with the established legal principles, the Bench concluded that the High Court had lost sight of the aforesaid material aspects of the case and had, by a very cryptic and casual order, de hors coherent reasoning, granted bail to the accused.

Accordingly, the appeal was allowed, the bail order of the respondent accused was declared cancelled and the respondent was directed to surrender before the concerned jail authorities within a period of two weeks.

[Manoj Kumar Khokhar v. State of Rajasthan, Cr.A. No.36 of 2022, decided on 11-01-2022]


*Judgment by: Justice B.V. Nagarathna


Appearance by:

For the Appellant: Basant R., Senior Counsel

For the Respondent: Aditya Kumar Choudhary, Advocate


Kamini Sharma, Editorial Assistant has put this report together


 

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. dismissed the petition being devoid of merits.

The facts of the case are such that the 1st petitioner is the husband of 2nd respondent. On certain allegations that the petitioners subjected the 2nd respondent to harassment in connection with demand for dowry, FIR was registered in relation to offences punishable under sections 323, 504, 506 and 498-A of IPC and sections 3 and 4 of the Dowry Prohibition Act r/w section 34 of IPC. Investigation was taken up and charge sheet was been filed. This instant petition was filed under Section 482 of CrPC for quashing the charge sheet.

Counsel for the petitioner Mr. Arjun Rego submitted that if the entire charge sheet which is based on statements of witnesses is considered, it can be said that no offence against the petitioners is made out.

The Court observed that though under Section 482 of Cr.P.C. charge sheet can be quashed, the said jurisdiction cannot be invoked for quashing the charge sheet by appreciating the evidence. It is a settled principle that while deciding the petition under Section 482 of Cr.P.C., evidence cannot be appreciated as it lies within the domain of the Trial Court.

The Court held “I do not find any ground to entertain this petition. Accordingly, the petition is dismissed.” [Pradeep Moparthy v. State of Karnataka, Criminal Petition No. 2860 of 2021, decided on 15-12-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For respondent: Mr. Rohith BJ

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of N.V. Ramana, CJ., Surya Kant* and Hima Kohli, JJ., held that the Bank is not the trustee of the money that a customer deposits in a bank and the same is not held by the former on trust for him. The money so deposited becomes a part of the banker’s funds who is under a contractual obligation to pay the sum deposited by a customer to him on demand with the agreed rate of interest. Such a relationship between the customer and the Bank is one of a creditor and a debtor.

Background

The prosecution case was that the Appellant-N. Raghavender, Branch Manager of Sri Rama Grameena Bank along with accused 2 abused their respective position in the Bank and conspired with accused 3-Treasurer of the Nishita Educational Academy and brother-in-law of Appellant, by allowing withdrawal of amounts up to Rs. 10,00,000 from the account of the Academy in spite of availability of requisite funds for such withdrawal.

The prosecution contested that the Appellant, in his capacity as a Branch Manager, issued three loose-leaf cheques and despite withdrawal of the said amount, the debit was deliberately not entered into the ledger book. The endorsement on the third cheque showed the payment in favour of the accused 3; however, the signature on the cheque did not tally with that of accused 3. The Appellant was further accused of prematurely closing two FDRs for a sum of Rs. 10,00,000 and 4,00,000 respectively, and stood in the name of one B. Satyajit Reddy. The case was referred to CBI for offences under Sections 409, 477(A), and 120B Penal Code, 1860 and Section 13(2) read with 13(1)(c) & (d) of the Prevention of Corruption Act, 1988.

The Courts below acquitted all the accused of offences under Section 120B IPC. Further accused 2 and accused 3 were acquitted of all the other charges, while the appellant was held guilty and was convicted and sentenced to five years imprisonment along with various fines.

Observation and Analysis

A. Fraudulent and unlawful withdrawal of Rs. 10 Lakhs from Account No. 282 in the year 1994

Noticeably, the record though clearly revealed that issuance of a loose cheque was a departure from the standard operating procedure followed at the Bank, but no evidence had been led that it was an ‘illegal practice’ as in certain contingencies the Bank could issue loose cheques also. Therefore, the Bench stated,

“Since no explicit prohibition on issuing of loose cheques has been proved, the mere fact that the Appellant issued those loose cheques, is not sufficient to conclude that he acted unlawfully or committed a ‘criminal misconduct’.”

The case of the Prosecution rested heavily on the premise that the three cheques in question were passed even though there weren’t adequate funds in account however, the Auditor and the accountant had testified about there being sufficient funds in account throughout which was corroborate the Current Account Ledger for account in question. Therefore, the Bench held that the Bank did not suffer any loss.

With respect to the charge of ‘deceit’, the depositions of the Auditor and Accountant unveiled that though the relevant entries were missing in the Current Account Ledger, they did find a mention in the Officer’s Cash Scroll and the Cashier Payment Register. Noticing the non-production of these relevant ledgers by the Bank, the Bench was of the view that,

“Since the direct and relevant evidence has been withheld, the benefit of doubt for such failure ought to be accorded to the Appellant.”

Similarly, in order to substantiate the charge under Section 477-A IPC, the primary contention of the Prosecution was that despite passing the three cheques, the Appellant did not make the relevant entries into the Current Account Ledger of the account in other to conceal the withdrawals as there were insufficient funds in the account of the Academy. Rejecting that argument, the Bench noted that the expression ‘intent to defraud’ as given under Section of 477-A, contains two elements, deceit and injury. So far as the second element was concerned, no financial injury was caused to the Bank.

B. Unauthorised premature encashment of the two FDRs belonging to B. Satyajit Reddy

The allegation of premature withdrawal was also accompanied by the averment that despite the premature withdrawal, the interests relating to the two FDRs continued to be deposited into savings account of one B. Satyajit Reddy. Notably, the interest amount was transferred from the joint account of the Appellant and his wife which according to the prosecution was to ‘deceive’ the FDR holder into believing that the FDRs were still alive.

Observing that misappropriation with this dishonest intention is one of the most important ingredients of proof of ‘criminal breach of trust’, the Bench opined that relationship between the customer and the Bank is one of a creditor and a debtor and not of a trustee. Further, relying on the following grounds the Bench stated that there was no fraudulent intention as  no financial loss was caused to B. Satyajit Reddy, since:

  • Satyajit Reddy had made no complaint alleging any loss to him;
  • His written requests dated 22.02.1995 and 24.2.1995 for premature encashment of his FDRs and to deposit the amount in the account of the Academy had gone unrebutted;
  • The payment of interest on those FDRs even after pre-mature closure was made by the Appellant from his personal account and no public fund had been divested for such payment;
  • Satyajit Reddy might or might not have got undue monetary gain but definitely he suffered no loss in any manner.

Findings and Conclusion

In the backdrop of above, the Bench opined that in the absence of any reliable evidence that could unfold a prior meeting of minds, the High Court erred in holding that Appellant and other accused orchestrated the transactions in question to extend an undue benefit to Accused 3. Having held so, the Bench added that the appellant acted brazenly contrary to the norms and internal instructions of the Bank.

“Although he was clever enough to not trespass into the prohibited area(s) of Sections 409, 420 and 477-A IPC, he ran the risk of causing financial loss to the Bank.”

Therefore, the Bench held that the actions of the appellant constituted gross departmental misconduct and were unbecoming of a senior Bank Officer and hence, his dismissal from service of the Bank was fully legitimised and the punishment so awarded, was proportionate to the proven misconduct. The Bench, though acquitted the appellant of all the charges, it stated that acquittal would not entitle him for reinstatement. [N. Raghavender v. State of A.P., 2021 SCC OnLine SC 1232, decided on 13-12-2021]


Kamini Sharma, Editorial Assistant has put this report together


Appearance by:

For the Appellant: Sidharth Luthra, Senior Counsel

For CBI: Jayant K. Sud, Additional Solicitor General


*Judgment by: Justice Surya Kant

Case BriefsHigh Courts

Kerala High Court: Kauser Edappagath, J., reversed the concurrent findings of Lower Courts, whereby the accused was convicted for the offence of rape. The Bench while acquitting the accused, stated,

“Mere statement by the victim in her evidence “the accused hugged and impregnated me” without indication about penetration aspect is not sufficient to attract the offence of rape. Such a vague statement would not be a substitute for the statutory mandate as contained in the Explanation to Section 375.”

Background

The victim and her mother, both illiterate, were working as a coolie. The accused was working at a furniture shop situated near to the house of the victim. Admittedly the victim and the accused got acquainted; they fell in love and eventually, decided to marry. The prosecution case was that one day the accused went to the house of the victim, had sex with her and made her pregnant on false promise of marriage.

Concurrent Findings of Lower Courts

The Trial Court found the accused guilty under Section 376 of IPC, convicted and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/. In appeal, the appellate Court confirmed the conviction and sentence.

The conviction was based mainly on the oral testimonies of the victim and her mother. The only incriminating part in the testimony of victim was that “the accused hugged and impregnated me”. There was no other evidence to suggest penetrative sexual intercourse or that the victim gave birth to a child as alleged. Admittedly no DNA test was conducted to find out the paternity of the child.

Offence of Rape

A reading of S.375 IPC shows that to commit ‘rape’, a man must have ‘sexual intercourse’ with a woman. Though, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding, however, even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. Penetration being an essential ingredient of the offence of rape, there must be proof of actual penetration or at least penile accessing. The only witness who can prove that is the victim. But, even on a plain reading of the evidence of the victim in the instant case, such fact was not revealed. She only stated that the entered the room, hugged and impregnated her.

False Promise to Marry

The appellate court, after adverting to the evidence of the victim and her mother, observed that the consent was obtained by the accused by making a false promise to marry and such consent is non-est in law.

In Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, it was observed that for establishing false promise to marry, two propositions must be established:

  • the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given.
  • the false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 of the IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.”

Therefore, prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from the very inception. The victim had no case at all during evidence that she subjected herself to sex, persuaded or believed by the promise of marriage given by the accused. On the other hand, what was stated in the FI statement was that the accused seduced her though she protested his advances and after the intercourse, he told her not to reveal the incident to anyone and left the house with a promise to marry her. Thus, even according to the prosecution case, the promise of marriage was given after the alleged sexual act and not at the initial stage.

Factual Analysis

Noticeably, on the alleged date of the incident at odd hour, when the accused knocked at the door of victim’s house, she opened it and let the accused in. According to her, thereafter he hugged and made her pregnant. She had no case that she raised alarm when he hugged her. It had also come out in evidence that she did not make any complaint regarding the said incident against the accused to anybody and there was unexplained delay of more than three months in lodging FIS.

The victim had deposed that she and her mother used to sleep together in the same room, she further stated that her mother knew when she switched on the light on the arrival of accused, therefore, the Bench opined,

“The attended circumstances clearly indicated that if at all there was sexual intercourse between the victim and the accused, it was a consensual one, that too with the knowledge of victim’s mother.”

Verdict

In the backdrop of above, the Bench was of the view that the Courts below had committed illegality in holding that the victim gave consent relying upon the false promise of the accused that he would marry her. Accordingly, the conviction and sentence passed by the courts below was set aside and the accused was acquitted. [Ranjith v. State of Kerala, 2021 SCC OnLine Ker 5116, decided on 15-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Accused: Sherly S.A, Legal Aid Counsel

For the State: Sanal P.Raj, Public Prosecutor

Case BriefsHigh Courts

Chhattisgarh High Court: Narendra Kumar Vyas, J., quashed the FIR registered against the petitioner by Respondent 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354(A) IPC and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The facts of the prosecution are such that the petitioner is working as an Assistant Professor in D.P. Vipra College, Bilaspur, filed present writ petition under Article 226 of the Constitution of India for quashing FIR registered against him on the basis of complaint made by respondent 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354 (A) of Penal Code, 1860 i.e. IPC & Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act i.e. “the Act, 1989”. The petitioner also highlighted that a criminal case was registered the petitioner against respondent 4 along with other 33 teaching staff having committed offence of unlawful assembly, criminal intimidation for which Judicial Magistrate 1st  class convicted the accused persons including respondent 4 and imposed fine s well.

Counsel for the petitioner Mr. B P Sharma submitted that being aggrieved by the conviction order, respondent 4 lodged FIR as a counterblast to the criminal proceedings. It was further submitted that the remarks made by petitioner was “Madam yadi aap chutti chahti hain toh mujhe akele mein aakar milein” which cannot be termed as sexually coloured remarks. Hence, no ingredient of offence under Section 354 (A) IPC is made out and the offence under the Act of 1989 was also prima facie not made out.

Counsel for the respondent 4 Mr. Manoj Paranjape submitted that the alleged statement made by the complainant/respondent 4 feel humiliated and caused grievance as such statement felt as an attack to the dignity and modesty of the complainant. It was submitted that it is the feeling perceived by the victim that is of paramount consideration and not what the accused states.

The Court observed that from bare perusal of Section 3(1) (xii) of the Act of 1989, statement of the complainant and other witnesses, it cannot be prima facie established the offence has been committed with racial prejudice and that the petitioner was ever in a position to exploit respondent 4 sexually as petitioner and respondent 4 are working as Assistant Professors in the same college, therefore, it cannot be presumed that the petitioner was in a position to dominate the respondent 4 or to command or control her.

The Court observed that the contents of the complaint cannot be inferred as a sexual coloured remark against respondent 4. The remarks do not fall within the ambit of sexual harassment in order to prosecute the petitioner for commission of offence under Section 354 (A) (iv) IPC.

The Court held

“since the criminal case is going on, therefore it is counter blast on the part of respondent no. 4, as such; adjudication of the proceeding against the petitioner for commission of offence under Section 354 (A) of IPC will be nothing but an abuse.”

The Court held “FIR No. 0036 dated 25.06.2018 registered against the petitioner by Respondent No. 4 at Women Police Station, Bilaspur (C.G.) for commission of offence punishable under Section 354(A) IPC and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, deserves to be and is hereby quashed.” [Manish Tiwari v. State of Chhattisgarh, 2021 SCC OnLine Chh 3799, decided on 01-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and N. J. Jamadar, JJ., granted bail to activist Sudha Bhardwaj after three years detention in Elgar Parishad case. The Bench expressed,

“Once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.”

Factual Backdrop

The applications for bail were filed under section 167(2) of the CrPC read with section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) in National Investigation Agency (NIA) Special Case, arising out of FIR in connection with a programme organized by the members of Kabir Kala Manch under the banner “Elgar Parishad” at  Shanivar Wada, Pune on 31-12-2017. The complainant alleged that the speeches and performances were provocative and had the effect of creating communal disharmony. It was further alleged that the said programme provoked the incidents of violence near Bhima Koregaon, Pune on 01-01-2018, resulting in the loss of life and property and creation of social disharmony. Resultantly, a case was filed against the applicants under sections 120B, 121, 121(A), 124(A), 153A, 505(1)(b), 117, 23 of Penal Code, 1860 and sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40 of UAPA.

The applicants had approached the Court seeking bail on the ground that the Judge, who extended the period for investigation under section 43-D(2) of UAPA and took cognizance of the offences was not legally empowered to grant such extension and take cognizance as he was not designated as a Special Judge either under section 11 or section 22 of the NIA Act.

Series of Events

Initially, the applicant, Ms. Sudha Bhardwaj was directed to be kept under house arrest by the order of Punjab & Haryana High Court. Later on the applicant was remanded to police custody. On 22-11-2018 the Public Prosecutor filed a report seeking extension of period for investigation. On 26-11-2018, the applicant filed an application for bail as 90 days period from the date of applicant’s arrest and production before the Magistrate had expired. The Sessions Judge passed an order on the report of the Public Prosecutor and extended the period of detention by 90 days.

Criminal Application No. 1458 of 2019

Similarly, the applicant 1 to 8 asserted that the UAPA does not contain any provision for the appointment of a Special Judge or for constitution of Special Courts. Thus, the usurpation of the jurisdiction by the Additional Sessions Judges, under a misnomer of Special Judge, was wholly illegal. The applicants contended that once the Special Court was constituted at Pune under section 22 of the NIA Act, only the said Special Court had jurisdiction to extend the period of detention under section 43-D(2) of the UAPA and no other.

Whether the Additional Sessions Judge had the jurisdictional competence?

Noticing that a conjoint reading and harmonious construction of the provisions contained in section 6 and section 10 of the NIA Act lead to a legitimate inference that till the NIA takes up the investigation of the case (necessarily involving a Scheduled Offence), the State Government is not divested of the authority to investigate and prosecute any Scheduled Offence, the Bench opined that in view of the provisions contained in section 13(1) of the NIA Act, if the Scheduled Offence is investigated by the NI Agency, it must be tried only by the Special Court set up by the Central Government under section 11 of the NIA Act. Similarly, even in case where the investigation is carried out by the State Investigation Agency into a Scheduled Offence, the trial shall be held by the Special Court constituted by the State Government under section 22(1) of the NIA Act, if available; and in the absence of such Special Court constituted under section 22(1) of the NIA Act, the trial shall be held before a Court of Session under section 22(3) of the NIA Act. Relying on the Supreme Court’s decision in Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the Bench stated,

“So far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is non- existent”.

Consequently, it was held that so far “extension of time to complete investigation” was concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be “the Court”, as specified in the proviso in Section 43-D(2)(b) of the UAPA. Resultantly, it was held that the Additional Sessions Judge had no jurisdiction to deal with the case at hand.

Pre-trial and Trial Proceedings

Rejecting the submission of the respondents that under section 11 of the NIA Act, the Special Courts are to be constituted for the trial of Scheduled Offences as the Special Courts so constituted are not meant for conduct of pre-trial proceedings; and since the extension of period of detention, pending completion of investigation, is squarely in the realm of investigation, the ordinary criminal Courts are not divested of the jurisdiction to deal with pre-trial proceedings, including the extension of period of detention, the Bench observed, the first proviso in section 43-D(2)(b) expressly confers the power to extend the period of detention of the accused up to 180 days upon the ‘Court’, which in turn is defined in section 2(d) as ‘a criminal court having jurisdiction to try offences’ under the said Act. Hence, the Bench clarified, the legislature has vested the authority to extend the period of detention in the Court which is competent to try the offences under UAPA. The Bench reminded,

“The exercise of the power to extend the period of detention is thus not envisaged as a matter of routine. The Court is expected to apply its mind to the necessity of further detention and extension of period of investigation. This implies that the said power shall be exercised only by the Court which is vested with special jurisdiction by the statute.”

Consequence of order passed by the Court sans Jurisdictional Competence

Having held that the Additional Sessions Judge had no jurisdiction to deal with the instant case, the next question before the Bench was whether the act of taking cognizance of the Scheduled Offences by the Additional Sessions Judge when a Special Court under S. 22 of NIA Act was in existence at Pune entailed the consequence of nullifying the whole proceeding? The Bench stated, Clause (e) of section 460 of the CrPC declares that if any Magistrate, not empowered by law, erroneously in good faith, takes cognizance under clause (a) or clause (b) of sub-section (1) of section 190, his proceedings shall not be set aside merely on the ground of his not being so empowered. In other words,

“The fact that the Additional Sessions Judge took cognizance of the Scheduled Offences, despite the existence of a Special Court at Pune, in the absence of material to demonstrate that there was resultant failure of justice, could not be exalted to such a pedestal as to hold that the very presentment of the charge-sheet by the investigating agency is non-est in the eye of law.”

Hence, the Bench held that the act of taking of cognizance, by the Additional Sessions Judge did not entail the consequence of the vitiation of the entire proceedings as, failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge-sheet was laid, does not entail the consequence of default bail.

Findings of the Court

In M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485, it was held that from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency, “the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent fling of the charge sheet or a report seeking extension of time by the prosecution before the Court; or fling of the charge sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty.” The Bench observed,

“Once, the twin conditions of default in fling the charge-sheet, within the prescribed period, and the action on the part of the accused to avail the right are satisfied, the statutory right under section 167(2) of the Code catapults into a fundamental right as the further detention falls foul of the personal liberty guaranteed under Article 21 of the Constitution.”

Accordingly, the Bench opined that once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.

Decision

Considering the hard facts with regard to the application of Sudha Bharadwaj were: (i) that the period of detention of 90 days (excluding the period of house arrest) expired on 25-01-2019; (ii) no charge-sheet was lodged; (iii) there was no lawful order of extension of period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication; the Bench opined that to deprive the applicant-Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26-11-2018 was premature, would be taking a too technical and formalistic view of the matter. Accordingly, the Bench held that all the requisite conditions to release the applicant-Sudha Bharadwaj on default bail stood fully satisfied.

However, since neither applicants 1 to 5 claimed to have fled an application for default bail under section 167(2) of the Code, after the expiry of initial period of 90 days from the date of their production before the Additional Sessions Judge till the fling of the charge-sheet nor did applicants 6 60 8 availed the right of default bail, by fling an application, within the meaning of section 167(2) of the Code; the Bench held that the those applicants failed to apply for default bail when the right accrued to them.

In the light of the above, the bail application of applicants 1 to 8 was rejected whereas the application preferred by Sudha Bharadwaj was allowed. [Sudha Bharadwaj v. National Investigation Agency, 2021 SCC OnLine Bom 4568, decided on 01-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Dr.Yug Mohit Chaudhary a/w. Ms. Payoshi Roy and Ms. Chandni Chawla for applicant in BA/2024/2021.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah, Ms. Smita Thakur, Mr. Pranav Thakur and Mr. Vishal Gautam for respondent- NIA in APL/2024/2019.

Mr.Sudeep Pasbola a/w. Mr.Barun Kumar, Mr. Karl Rustomkhan and Ms. Susan Abraham i/b Mr. R. Sathyanarayanan for applicants in APL No.1458/2019 and IA/376/2020.

Mr.A.A. Kumbhakoni, Advocate General a/w. Smt. A.S. Pai, PP, Mrs. S.D. Shinde, APP and Mr. Akshay Shinde, “B” Panel Counsel for respondent-State.

Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah and Mr. Pranav Thakur for respondent-NIA in APL/1458/2019.

Case BriefsHigh Courts

Karnataka High Court: H P Sandesh J. allowed the petition and quashed the proceedings initiated against the petitioners.

This petition is filed under Section 482 of Criminal Procedure Code i.e. Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners   for the offences punishable under Section 171H of Penal Code, 1860 i.e. IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.

Counsel for the petitioner Mr. Rajesh G Doddamani submitted that the Act invoked i.e., the Karnataka Open Places (Prevention  of Disfigurement) Act, 1981 is not applicable to  Muddebihal and the said Act is applicable only in respect  of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. It was also submitted that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was taken. Therefore, when non-cognizable offence is invoked, it requires permission from the Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.

Counsel for respondents Mr. Gururaj V Hasilkar submitted that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal  Constituency. The learned counsel also relied upon the  order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in  violation of the same and there is no specific notification  for applying the above Act but election notification is  issued. It is not in dispute that the petitioners herein came to the Tahsildar’s office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.Issue: Whether Karnataka Open Places (Prevention of Disfigurement) Act, 1991 is applicable to Muddebihal or not?

The Court observed that on perusal of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore,  Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal  Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.

But, no such Notification was issued in respect of Muddebihal. Hence, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law.

The Court further observed that Section 171H of IPC deals with illegal payments in connection with an election. But, in the  case on hand, the allegation against the petitioners is  that they came in vehicles with flag of political party and no allegations with regard to illegal payments in  connection with election are found in the complaint.  Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.

The Court having considered the allegation made in the complaint as well as in the charge sheet observed that it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. “….complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings have been initiated.”

The Court held “….very initiation of  proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal and also no ingredients of offence under Section 171H of IPC.”

[Hanmagouda v. State of Karnataka, Criminal petition No. 200377 of 2019, decided on 26-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Kerala High Court: In an infamous case of sexual assault whereby the priest of the St. Sebastian Church had impregnated a minor girl, R. Narayana Pisharadi, J., upheld the conviction of the accused. The Bench, however, reduced the sentence of 20 years rigorous imprisonment awarded to the accused to 10 years rigorous imprisonment.

The appellant, a Vicar of St. Sebastian Church was indicted for committing the offences of penetrative sexual assault and rape on a teenage girl of the parish; consequently, the victim became pregnant and gave birth to a male child on 07-02-2017. The Trial Court convicted and sentenced the appellant for the offences punishable under Section 376(2)(f) of the Penal Code, 1860 and also under Section 3(a) read with Section 4 and Sections 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act, 2012. The Trial Court had sentenced the accused to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.1,00,000.

In the instant appeal, the appellant contended that the sexual intercourse took place with full and unqualified consent of the victim. On cross-examination by the accused, the victim categorically stated that it was with her full consent that the accused made sexual intercourse with her and that she had got no complaint against the accused.

Noticing that the victim girl told the police that her own father had committed rape on her and that the father of her child was her own father, while the medical report had proved the accused was the father of the child and the paternity was admitted by the accused himself, the Bench observed,

“In the instant case, from the very beginning, there has been attempt on the part of the family of the victim to save the accused, who was the vicar of the local church, from the clutches of law.”

Whether the Victim was minor at the time of the incident?

According to the prosecution, the date of birth of the victim was 17-11-1999, following documents had been produced to prove juvenility of the victim at the time of the incident:

  • Extract of the birth register which is kept in the local authority (Ext.P14) and
  • Certified copy of the admission register maintained at the I.J.M Higher Secondary School, Kottiyoor.

Noticing that the age of the victim given in the church was during baptism was 17-11-1999, the Bench stated that the entry regarding the date of birth of the victim shown in the birth register, which was supported by the live birth report prepared at the hospital where the victim was born and also the evidence of the doctor who attended the delivery, proved beyond reasonable doubt that the date of birth of the victim was 17-11-1999 and not 17-11-1997.

Since the accused had made sexual intercourse with the victim in May, 2016 and the victim delivered the child on 07-02-2017, the Bench held that the victim was aged below 18 years and a child as defined under Section 2(d) of the POCSO Act, when the accused had sexual intercourse with her, that is, in May, 2016, therefore, the sexual act between the accused and the victim would not fall under the definition of consensual act. However, noticing that Section 376(2)(f) of IPC is attracted when a person who being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman, the Bench held that merely for the reason that the accused was the priest/vicar of the local church, it could not be found that he had held any position of trust or authority towards the victim.

Verdict

Consequently, the appeal was allowed in part and the Bench passed following orders:

  • Conviction of the accused under Section 376(2)(f) of the IPC was altered to conviction under Section 376(1).
  • Conviction of the accused under Section 3(a) read with Section 4 and under Sections 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act was confirmed.
  • In supersession of the sentence awarded by the Trial Court for different offences, the accused was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000 and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence under Section 5(j)(ii) read with Section 6 of the POCSO Act. [Robin Mathew v. State of Kerala, 2021 SCC OnLine Ker 4720, decided on 01-12-2021]

Appearance by:

Counsel for the Appellant: B.Raman Pillai (Sr.), R.Anil, M.Sunil kumar, K.John Sebastian, Sujesh Menon V.B., T.Anil Kumar, Thomas Abraham (Nilackappillil), E.Vijin Karthik, Thomas Sabu Vadakekut, Manju E.R. and Mahesh Bhanu.S

Counsel for the State: Ambika Devi S, Spl.Gp Atrocities Against Women & Children & Welfare Of W & C, Nandagopal S.Kurup, P.Chandrasekhar, Sandhya Raju, K.K.Mohamed Ravuf, Government Pleader, K.Vidya and Shri.Satheesh V.T.


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., held that passive submission made by the victim under unavoidable circumstances as she had no other option is not consent. While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

The appellant-accused had challenged the judgment of the Trial Court by which the accused was convicted for the offences under Sections 366A and 376 of the Penal Code, 1860 and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The prosecution case was that the victim girl, who was aged 17 years, had eloped with the accused, a bus cleaner in which the victim used to travel often. The victim contended that she was in love with the accused, who had induced her to elope with him and threatened her of committing suicide in front of her house if she did not go with him. The accused took her to Mysore; they stayed in a lodge where the accused committed forcible sexual intercourse with her. The medical report revealed that there was no evidence of recent sexual intercourse but there was evidence of past penetration.

Consent

“True, the victim has admitted that she was in love with the accused and that she knew that eloping with him would create problems. But, it does not mean that it was with her consent that the accused her to Mysore. Her evidence shows that he made a threat that if she did not go with him, he would commit suicide in front of her house.”

Considering the statement of the victim that the accused had forcibly undressed her and that when she cried he closed her mouth with his hand, the Bench opined that the testimony of the victim clearly showed that it was against her will and without her consent that the accused committed sexual intercourse with her. The Bench added,

“Even if it is assumed that, on subsequent occasions, she did not resist the act of the accused, it cannot be found that it was with her consent that the accused had sexual intercourse with her. It can only be found that it was a passive submission made by the victim girl under unavoidable circumstances as she had no other option.”

Although, the prosecution failed to prove that the victim was minor at the time of the incident, the Bench opined that even if it was assumed that the victim was more than 18 years of age, it could not be a ground to hold that she was a consenting party to the sexual intercourse as helplessness in the face of inevitable compulsion could not be considered to be consent as understood in law.

Claim of Juvenility

The accused had produced the extract of the school admission register kept in the school in which the accused first attended, to substantiate his claim of juvenility. According to the said document, the date of birth of the accused was 12-08-1996, hence on the date of the incident the accused had completed seventeen years of age and he was below eighteen years. Therefore, as on the date of the alleged incident, the accused had completed seventeen years of age and he was below eighteen years.

Relying on Raju v. State of Haryana, (2019) 14 SCC 401, wherein the Supreme Court had ordered, “seeing that the appellant has already spent 6 years in imprisonment, whereas the maximum period for which a juvenile may be sent to a special home is only 3 years as per Section 15(1)(g) of the 2000 Act, we direct that the appellant be released from custody forthwith, if he is not required to be detained in connection with any other case.”, the Bench held that since as per Section 15 of the JJ Act, 2000, the maximum punishment that can be imposed upon a juvenile is to direct that he shall be sent to a Special Home for a period not exceeding three years and the accused had already undergone imprisonment for more than six years, the accused need not be directed to appear before the J.J. Board for receiving sentence.

Conclusion

Consequently, the appeal was allowed in part and it was ordered as follows:

  1. Conviction of the accused for the offence punishable under Section 3 read with Section 4 of the POCSO Act was set aside.
  2. Conviction of the accused for the offence punishable under Section 366A of IPC was altered to conviction under Section 366.
  3. Conviction of the accused for the offence punishable under Section 376 of IPC was is affirmed.
  4. The sentence of imprisonment and fine imposed on the accused was set aside.

The accused was directed to be released from custody. [Syam Sivan v. State of Kerala, 2021 SCC OnLine Ker 4307, decided on 17-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Advocate George Renoy, State Brief

For the State: Advocate Ambika Devi S, Spl. PP

Case BriefsHigh Courts

Kerala High Court: Mohammed Nias C.P., J., quashed the proceedings against the petitioner for obstructing a police officer from performing his duty. Rejecting the allegation of obscenity against the petitioner for abusing and using humiliating words against the Police officer, the Bench clarified,

“It is to be noted that the test of obscenity under Section 294 (b) of the Indian Penal Code is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

Facts of the Case

The petitioner was accused of committing offence under Sections 283, 294 (b) of Penal Code, 1860 and under Section 117 (e) and 120 (b) of the Kerala Police Act, 2011. The allegation against the petitioner was that while one Unnikrishnan, Civil Police Officer was pasting a sticker on a car which was parked near the “No Parking Board” as a part of his traffic duty, as the car was causing obstruction to the movement of the vehicles, a man in white shirt came and pushed him, angrily shouted him and threatened the CPO and swirled abuses on another Civil Police Officer, one Madhu who was with him.

It was alleged that the complainant was doing his official duty of affixing stickers on the Car and the petitioner caused obstruction to his duty and insulted the Police officer in public.

The petitioner challenged the final report and all proceedings on the ground that it had been submitted by the Assistant Commissioner of Police (Special Branch) before the Kerala States Human Rights Commission that there was a lapse on the part of the police which resulted in the petitioner acting against the officer, as the Civil Police Officer Madhu was in plain clothes and not in his uniform and he was posting sticker on his car. The petitioner contended that not aware of the fact that it was a civil police officer, he had bonafidely questioned the authority of the person.

Opinion and Analysis

Section 117 (a) of the Act, 2011 speaks of threat, obstruction or assault against the police officer with the manifest intention of preventing such officer from discharging his duties.

Noticing that it was undisputed that the Civil Police Officer was not in his uniform, the Bench opined that there was no question of the petitioner knowing that he was a police officer and as a sequel since there was no such knowledge, there could not be any intention for preventing the police officer from discharging his duties. Hence, the Bench held that no offence was made out under Section 117(e) of the Police Act. With regard to the offences alleged under section 283 IPC as well as 120(b) of the Kerala Police Act, both of which deals with penalty for causing nuisance or obstruction to public by any person in charge of the vehicle, the Bench held that since the petitioner had already remitted the fine imposed for parking the car in a “No Parking Area” no further penalty or punishment was warranted.

Abusive Words v/s Obscenity

Noticeably, the complaint, statements and the final report did not mention exactly as to the words or statement uttered by the petitioner so as to warrant attracting ingredients of offence under Section 294 (b) of the Penal Code, 1860. Hence, the Bench held that absence of words which would involve some lascivious elements arousing sexual thoughts or feelings or words cannot attract the offence under Section 294 (b). As none of the records disclosed the alleged words used by the accused, the Bench stated that mere abusive, humiliating or defamative words by itself cannot attract an offence under Section 294 (b) Penal Code, 1860.

Mandatory for Police Officials to be in Uniform

Emphasising on the necessity of the police force to wear the uniform while in duty, the Bench stated that the uniform of a police man is his direct identification as a policeman in uniform is visible and a citizen immediately knows that he is a police man which will inform that the said individual is in charge of his protection and prevention of offences.

Considering the instances where the Court itself had to remind the police officers to appear in the Court in full uniform in the course of their official duty, the Bench stated that the requirement of the police officer to wear uniform while in duty is to be enforced without exception in compliance with Sections 43 and 44 of the Kerala Police Act which states that the uniform or the vehicles used by the police that it has to be distinctive, exclusive and easily identifiable.

Conclusion and Directions

Opining that the continuance of the proceedings will be a sheer abuse of the process of the court, as no purpose will be served by a trial in the aforesaid circumstances and to secure the ends of justice, the Bench quashed the final report along with the proceedings.

Additionally, the Bench directed the State Police Chief to look into the matter and issue appropriate directions to ensure that the police officers comply with the relevant statutory provisions/guidelines making it mandatory to wear the uniform while on duty except when it is permissible under law to deviate from the said mandatory requirement. The Registry was directed to send a copy the judgment to the State Police Chief for necessary and further to submit an action taken report before the Registry within four months. [Avinash v. State of Kerala, 2021 SCC OnLine Ker 4155, decided on 05-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate Thiyyannoor Ramakrishnan, Advocate Arun Kumar.P and Advocate Ambika Radhakrishnan

For the State of Kerala: Public Prosecutors, A.S. Dheeraj & Smt. Maya M.N.

Case BriefsHigh Courts

Kerala High Court: Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Facts of the Case

The petitioner, a Village Assistant was called to the Police Station in order to identify an accused, against whom a case was registered under Section 353 of IPC and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act.

The grievance of the petitioner was that since that accused was a stranger to him, he could not identify him, and only because of that fact, Police had charge sheeted him under Section 118(a) of the Kerala Police Act alleging that he was under the influence of alcohol at that time.

While the FIR suggested that the petitioner was intoxicated and was unable to control himself and the 161 statements of the witnesses were to the effect that the petitioner challenged the Police and committed rioting inside the Police Station.

Findings of the Court

In order to attract an offence punishable under Section 118(a) of the KP Act, a person should be found in a public place in an intoxicated manner or rioting condition incapable of looking after himself.

The Bench opined that even if it was taken for argument sake that the petitioner had consumed alcohol at that time, the available records did not show that the petitioner was sent to doctor for a clinical examination, or to show that his blood test was conducted to prove that he was intoxicated.

The records show that he was subjected to Alco-quant test using Alcometer. All the witnesses are Police Officers except one Saseendran, who was the accused arrested under the Sand Act, to identify whom the petitioner was called to the Police Station.

The meaning of the word ‘intoxicated’ as given in Advanced Law lexicon by P.Ramanatha Aiyar is that “a man is intoxicated whenever he is so much under the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect.”

The Bench observed, the expression ‘rioting condition’ used in Section 118 (a) would mean that the person was behaving in a way that is violent and/or not in control. While the condition ‘incapable of looking after himself’ envisaged under Section 118 (a) of the KP Act, means weakening of self-control, weakening of self-awareness, and incapacity to know or realize the consequences of the action etc are relevant factors. Similarly, incoherent speech, unsteady gait, staggering etc., and the manner in which he conducts himself towards fellow-men were also relevant factors to hold whether the accused person was in proper control of himself.

Decision

Having observed various terms used against the petitioner with regard to the particular case against him, the Bench held that even if it was taken for argument sake that the petitioner had consumed alcohol, the available facts and materials were not sufficient to suggest that, he was not able to control himself or he committed rioting inside the Police Station causing nuisance.

Moreover, the petitioner had reached Police Station, only because he was asked to be present there. Hence, the petition was allowed and the proceedings against the petitioner were quashed. The petitioner was directed to be discharged. [Salim Kumar B.S. v. State of Kerala,2021 SCC OnLine Ker 4136, decided on 10-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate I.V.Pramod, Advocate K.V.Sasidharan and Advocate Saira Souraj P.

For the Respondent: Devi Shri R., Public Prosecutor

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed an application for anticipatory bail which was filed in connection with FIR registered for the offence under Sections 188, 269, 270, 420 of IPC, Section 3 of the Epidemic Diseases Act, 1897 and Section 51 (b) of the Disaster Management Act, 2005.

Advocate for the applicant submitted that the applicant is not named in the FIR; he has been falsely implicated in this matter at the instance of a co-accused Sandeep; the applicant undertakes that he will co-operate with the Investigating Agency.

Personal liberty under Article 21 of the Constitution of India is very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

The Court directed that in the event of arrest the applicant–accused shall be released on bail on furnishing a personal bond of Rs.30,000/- with two reliable sureties, each in the like amount to the satisfaction of the Investigating Officer/Arresting Officer with the following conditions:-

  • The applicant shall make himself available at the time of interrogation by a police officer as and when requires;
  • The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case.

[Aman Goyal v. State of Uttaranchal, 2021 SCC OnLine Utt 1170, decided on 07-10-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: The Division Bench of Justice R.N. Singh and A. K. Bishnoi, Member (A), settled a case of family pension and retirement dues in favour of widow of the deceased ASI who had committed suicide while in judicial custody. The Bench held,

“When subjective satisfaction of dispensing with the inquiry is not supported by any independent material, dispensing with holding the inquiry would be illegal and if a preliminary inquiry could be conducted, there may not be any reason as to why formal departmental inquiry could not have been initiated against the delinquent.”

The applicant – widow of deceased Satbir Singh, ASI (Exe.) in Delhi Police, had challenged the impugned order whereby the deceased was dismissed from service by the respondents without conducting the regular departmental inquiry.

The deceased was implicated in case under Sections 302 of Penal Code, 1860 read with Sections 25/54/59 of Arms Act, pursuant to which he was placed under suspension w.e.f. 21-01-2019. A preliminary inquiry was conducted by the respondents and taking into account the allegations levelled against the deceased the respondents had dismissed him from service by dispensing with the departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution. Consequently, the deceased committed suicide while in judicial custody.

The applicant contended that though the respondents had heavily relied upon the report of the preliminary inquiry as well as the allegations levelled against the her husband, no copy of the said report was ever served to the deceased and so her husband was deprived of an opportunity to refute the said report, findings in the said preliminary inquiry report and/or the allegations levelled against him in the said FIR, therefore, the impugned order was illegal, bad in the eyes of law and not sustainable.

The Bench noticed that the deceased had 37 years of unblemished service under the respondents and was to retire on attaining the age of superannuation on 31-05-2021. Moreover, keeping in view the facts noted hereinabove, he committed suicide while in judicial custody on 08-06-2019 and whatever the applicant would have got as retirement/terminal benefits had also been taken away in view of the orders passed by the respondents.

Hence, the application was allowed and the impugned orders were set aside. The respondents were directed to grant and release death-cum-retirement dues, viz., family pension, DCRG, leave encashment etc. with all consequential benefits family pension, arrears of family pension and interest on family pension, gratuity, etc. [Santra Devi v. GNCT of Delhi, O.A. No.3170 of 2019, decided on 07-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Applicant: Advocate Sourabh Ahuja

For the GNCT of Delhi: Advocate Sameer Sharma

Case BriefsHigh Courts

Madhya Pradesh High Court: Deepak Kumar Agarwal, J., allowed a bail application which was filed by the applicant for grant of regular bail.

Applicant had been arrested in connection with Crime No.117/2021 for the offence punishable under Sections 376 (2)(cha), 376(3), 506 of IPC and Section 5 (n) / 6(a) and 11/12 of POCSO Act. As per prosecution case, on 28-2-2021, prosecutrix aged about 12 years 13 days along with her family members lodged a report alleging that applicant/accused showed nude video film through his mobile to the prosecutrix and after shutting her mouth took out her slacks and panty, thereafter he took out his own pant and underwear and lied down on her. On seeing her father coming to the spot applicant ran away. The prosecutrix was sent for medical examination. The applicant/accused was arrested on 1-3-2021.

Counsel for the applicant, Mr Arun Barua submitted that neither the prosecutrix nor her parents supported the prosecution case. They were declared hostile. During cross examination nothing came out which supports the prosecution story.

The Court looking at the circumstances was inclined to grant regular bail to the applicant.

The Court further noticed that the Court below had disclosed the name of the prosecutrix, who was a rape victim, in the deposition which was inconsistent with the provision of Section 228A of Indian Penal Code and was in violation of the direction of Supreme Court in the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703. The Court in this regard issued a show cause notice to the effect that why appropriate disciplinary action should not taken against the Presiding Officer.[Mahesh Kushwaha v. State of MP, 2021 SCC OnLine MP 1906 , decided on 05-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Paresh Upadhyay, J., allowed an appeal which was filed against the judgment and order passed by the Special Judge (POCSO) and 3rd Additional Sessions Judge wherein appellant was convicted under Section 376 of the Penal Code, 1860 and Sections 4, 6, 8 and 12 of the Protection of the Children from Sexual Offences Act, 2012 and ordered to undergo sentence of rigorous imprisonment for ten years and fine of Rs 5,000/- was also imposed and in default thereof, to undergo further simple imprisonment.

Advocate for the appellant had submitted that, the appellant and the so-called victim were husband and wife and they had two children from this relationship. It was submitted that, the conviction was unsustainable and the same be quashed and set aside.

The Court found that it was an admitted position that the appellant and victim were in a relationship and that the victim, on her own, had walked out of home with the appellant, they stayed together since then at the house of the appellant, as husband and wife and she had given birth to two children.

The appellant is arrested by the police and was tried before the Special Judge (POCSO) and the Trial Court and was hence convicted.

The Court noted that the “victim” who stated that, she on her own, because of her wish had walked out of home and she started living with the present appellant and with that relation she has given birth to two children and neither the mother nor the father of these two children disown their birth nor paternity and still the father is convicted inter alia under Section 376 of the Indian Penal Code and is ordered to undergo RI for 10 years. The Court allowed the appeal and found that the conviction recorded by the Sessions Court needed to be set aside.

Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society. Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.

[Ashwinbhai v. State of Gujarat, R/Criminal Appeal No. 1089 of 2021, decided on 01-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Appellant: Mr MS Padaliya

For the Respondent: Mr Hardik Soni

Op EdsOP. ED.

Introduction: The brutality faced by the community

India in the 21st century claims to be striving for gender equality and gender neutrality, yet the judiciary still fails to acknowledge and take into consideration “gender neutrality” when it comes to crimes relating to sexual offences. Today, India not only legally recognises the two genders of male and female but has also taken the progressive step towards giving the transgenders a legal recognition and bestowing them with the same fundamental and constitutional rights as the other two genders.

In NALSA v. Union of India[1], the judiciary finally recognised the transgenders and gave them the position of the “third gender”. It is ironical, as the country which is progressive enough to recognise the third gender is still regressive enough to not have gender neutral criminal laws relating to sexual offences. These criminal laws do not even extend to the male gender; therefore, inclusion of the third gender is a far-fetched dream. Fortunately, the transgenders have at last attained constitutional equality. Constitutional equality can be defined as the equal status attained by persons under the Constitution of the country. In the Indian context, Article 14[2] provides for equality before law. No person shall be discriminated on the basis of sex.

Nonetheless, despite having the legal recognition as well as constitutional equality, the treatment of transgenders in the society as well as legally, due to the lack of laws, indicates a violation of their fundamental rights under Articles 14, 15[3] and 21[4] due to the lack of gender neutrality in laws relating to sexual offences.

Moving on, more often than not, we assume that human bodies are clearly either male or female and turn a blind eye to the violence suffered by those who violate the normative understanding of what it means to be a man and a woman[5]. We overlook the plight of the transgender community, which includes hijras and kothis in the Indian context and intersex, a condition in which one’s sexual organs are ambiguous[6]. However, with reformatory movements such as #MeToo and #MenToo, the country saw a rise in the awareness of and need for inclusivity in laws relating to sexual offences, which extended not only to the male gender but also to the third gender.

Furthermore, historically and mythologically, India has witnessed the existence of the transgender community and therefore it cannot be termed as a new or an alien concept. In fact, the Hijra community in India traces their origins to myths in the Ramayana and Mahabharata[7]. It is disappointing to see the lack of inclusivity in the criminal law.

In India, various studies have documented sexual and physical violence against transgender persons[8]. Transgenders have been a victim of sexual offences since ages and yet there is no law in place to help them get justice. These offences include sex trafficking, rape, sodomy, stalking, sexual harassment at workplace and otherwise and so on.

Such offences are committed from the childhood of transgender persons. 971 (44.7%) transgenders were reported facing 2811 incidents of violence i.e., an average of three incidents per person between April and October 2015[9]. The trans community has suffered immensely by being excluded from the definitions of sexual crimes. In research conducted in different parts of India by a Health Resource Center “Swasti”, it was found that four in ten transgender people experience some sought of sexual abuse before the age of 18 and the trauma continues past their childhood[10]. A study by the National Human Rights Commission (NHRC), India found out that 52% of the transgender community faced harassment by their school classmates and 15% from their teachers which resulted in their dropping out from school[11].

It is unfortunate as it is claimed that most sexual offences against transgenders take place when they go to the police seeking help. People’s Union for Civil Liberties — Karnataka studied the cases of human rights violation against transgender persons and the observations were staggering.

“Sexual violence is a constant, pervasive theme in all the narratives collected in our report. Along with subjection to physical violence such as beatings and threats of disfigurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the least, which leads to brutal violence, at the most. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, feel up their breasts, strip them, and in some cases rape them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person.[12]

Currently, any sexual offence committed by anyone irrespective of its severity, that does not fall under the definition of “rape” under Section 375[13], may be filed under Section 377[14] IPC which deals with “unnatural sex”. While this does help in accessing justice to a certain extent, it trivialises the gravity of the offence by not giving it the position of “rape” or the punishments imposed in respect of the same. When we take a look at other criminal law statutes such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)[15] or the Immoral Traffic (Prevention) Act, 1956[16], there are no legal safeguards ensured for the transgenders, who happen to form the majority of victims in such cases.

Nonetheless, there is still a ray of hope as constant efforts are being made by various NGOs across India as well as the Law Commission Reports and Parliament in order to help the community attain equal status and prevent their exploitation. There also exists certain legislations, amendments and precedents passed in light of this which shall be discussed through this paper.

Analysing the position of law

Despite being centuries old, the criminal laws of the country have undergone many amendments and modifications throughout the decades to suit the needs of the changing society. For instance, after Nirbhaya case[17], the Penal Code, 1860[18] was amended in 2013 to widen the scope of hate crimes and sexual offences against women. So far, the Penal Code has been amended 77 times.

The debate on the need for inclusive laws has been going on for almost two decades now with many landmark judgments where the women have misused the pro-women laws or the men have been the victims of such situations. While, the trans community has been subjected to such violence from ages not many had raised their voice against the same until recently. The trans activism in India began around 1999 with the first pride march held in Kolkata. However, it was only after 2009 did the trans activism gain momentum after the landmark judgment delivered in Naz Foundation v. Govt. of NCT of Delhi[19]. 12 years have passed since, and there has been no proposals to bring about gender inclusive law relating to sexual offences yet. One can look at a brief history of the dynamics between the trans community and the Indian legal system thereby walking through the developments made in light of the same while emphasising on the need of gender inclusivity.

I. History and development of laws relating to sexual offences and transgenders

The IPC does not provide for the definition of sexual offences and all sexual offences, except Section 377, are made gender-specific, that is, the victim is always deemed to be a woman while man is seen as the perpetrator[20]. Sexual offences can be defined as range of offences wherein the sexual sanctity and bodily integrity of an individual is interfered with or without his/her consent[21].

In India, criminal laws are heavily influenced by the mindset of the people in the society. The age-old patriarchy deeply rooted in the minds of the people has led to a situation where the man is always the perpetrator and can never be the victim by virtue of his gender.

This has led to the gender-specific rape laws and other laws relating to sexual offences such as the POSH Act, 2013 which is formulated for the protection of women in the workplace.

(a) Rape law in India

Rape law in India before the infamous Mathura rape case[22] was very narrow, regressive and discriminatory against women. For a very long time, the burden of proof in such case was upon the victim, but the same was shifted on the accused after the Mathura rape case[23]. Another demand was to hold in camera proceedings for rape trials and to maintain anonymity of the victim[24]. Accordingly, the rape law was amended to fulfil these recommendations and demands posed by the activists.

The Indian women’s movement has revolved around the agenda of reforms in rape law since the 1980s[25]. Women’s groups have for a long time struggled to broaden the definition of rape[26]. However, it was only after the 2013 amendment did the rape law in India become more accommodative to all forms of non-consensual sexual activity. Nonetheless, the law still lacked gender inclusivity and considered only the women as victims of rape except that of hate crimes. The 2013 amendment also recognised acid attack as a form of hate crime, and the laws pertaining to this was made gender neutral. However, transgenders were still excluded from the laws.

Nonetheless, there did exist legal safeguards for victims of sexual offences that did not fall under the definition of “rape” under Section 375. Such offences could be filed under Section 377 that defines “unnatural sexual offences”:

  1. Unnatural offences. — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

     Explanation. — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[27]

While this provision could act as a legal safeguard, it was also very discriminatory in nature as this provision was transphobic in nature by defining certain consensual acts as “unnatural” merely because it did not fit into the normative acceptable definition of what constituted “natural”. What seems stranger and unfortunate is the fact that the same provision holds good for sexual offences even today, even after the decriminalisation of Section 377. This provision merges a male on male or female on female rape to voluntarily sexual activity between two consenting homosexuals, thereby indicating the regressive nature of this law.

(b) Position of transgenders under the law

Much before the 2018 judgment[28], the AIDS Bhedbhav Virodhi Andolan (ABVA) published a report in 1991[29] revealing the atrocities faced by the transgender community in the nature of sexual violence, exploitation, assault and extortion under the garb of Section 377 IPC recommending that the said law should be repealed[30]. A writ petition was filed in light of the same to declare Section 377 unconstitutional. However, the writ petition was quashed on the grounds of upholding legal morality, majoritarian morality and its declaration as ultra vires the Constitution would go against public morality, public order and decency[31].

Even though this petition was dismissed on technical grounds, it had already ignited the trans community to fight for their rights and demand for their legal safeguards against sexual offences. This activism went on to give rise to another case called Sudesh Jhaku v. K.C.J.[32], where the matter of gender neutrality was first discussed.

(i) In Sudesh Jhaku v. K.C. Jhaku

The issue of gender neutrality of sexual offences first arose in Sudesh Jhaku case in 1996[33] wherein the Delhi High Court insisted on the legislature to articulate gender neutral criminal law[34]. As a consequence of this judgment, the Supreme Court formulated issues that the Law Commission of India had to look into. This further led to the 172nd Law Commission Report[35].

(ii) 172nd Law Commission Report

The 172nd Law Commission Report of 2000 primarily dealt with the review of laws relating to sexual offences and recommended a lot of changes including gender neutrality. However, while an elaborate explanation for Sections 375 and 376[36] was given, the Report had very less to say about Section 377. Nonetheless, it recommended the deletion of this section under the following justification:

“In the light of the change effected by us in Section 375, we are of the opinion that Section 377 deserved to be deleted. After the changes effected by us in the preceding provision (Sections 375 to 376-E[37]), the only content left in Section 377 is having voluntary carnal intercourse with any animal, we may leave such person to their just deserts.[38]

While the deletion of Section 377 was recommended, not much was said about the gender neutrality aspects or the legal safeguards provided to the transgenders. However, the Report did not take shape until 2012, yet the trans community was able to witness the progress in the mindsets of the law-makers and this went on to give rise to another path-breaking judgment in Naz Foundation v. Govt. of NCT of Delhi[39].

(iii) In Naz Foundation v. Govt. of NCT of Delhi

The case of Naz Foundation v. Govt. of NCT of Delhi[40] acted as a major pathbreaker for the transgender community. The Naz Foundation is a non-governmental organisation working on HIV/AIDS and sexual education and health since 1994[41]. The Foundation filed a writ petition challenging the constitutional validity of Section 377 and the matter was heard before the Delhi Hight Court. The Delhi High Court having recognised the growing awareness towards homosexuality and transgenderism decriminalised Section 377 if the said act took place between two consenting individuals. The instant reaction to the judgment was of extreme elation from the sexual minorities across the nation while religious leaders condemned it with equal passion[42]. This ray of hope soon diminished when an appeal against the Naz Foundation was filed before the Supreme Court. On the other hand, prior to this appeal, in the year 2012 a committee was formed to review the rape laws of the country after the heinous Nirbhaya rape case[43]. This Committee was the Verma Committee[44].

(iv) The Verma Committee

The Verma Committee for the very first time heard the hues and cries of the LGBTQA community for the need of gender inclusive laws relating to sexual offences. The community was given a chance to express the lack of inclusivity and legal safeguards in crimes relating to sexual offences.

The Committee recommended retention of the law on rape and in addition making sexual assault a gender-neutral offence, unlike the 172nd Report, by using term “person” instead of “woman” for the purposes of defining victim of rape and sexual assault and retaining the term “man” for the perpetrator and thereby bringing within its scope the transgender community[45].

While this seemed like a huge victory for the trans community, it was only short-lived as although the Criminal Law (Amendment) Ordinance, 2013[46] took a very gender-neutral approach to rape law, the Criminal Law (Amendment) Act, 2013[47] only implemented the recommendations made to make the rape laws more stringent by widening the definition of “rape”. It did not consider the aspect of gender neutrality and retained the gender-specific definitions of these sexual offences. Amidst all this, came another coup de grâce, with the much criticised judgment in Suresh Kumar Koushal v. Naz Foundation[48].

(v) In Suresh Kumar Koushal v. Naz Foundation[49]

Unfortunately, the Supreme Court in this case overruled the judgment of the lower court in Naz Foundation v. Govt. of NCT of Delhi[50] and reinstated Section 377 in the year 2013. The Court held that the law laid down under Section 377 is constitutional and does not infringe the fundamental rights of the LGBTQA community[51]. The legally unsustainable rationale given by the Court was that firstly, the community constitutes a miniscule and negligible part of the population[52]; secondly, the Court cannot declare law ultra vires by relying on the decisions of foreign jurisdictions[53]. The Court further added that criminal law in a country is the reflection of the majoritarian public morality and the Indian society vehemently disapproved homosexuality[54]. While discarding the notions of privacy, the Court held that State interference in this case is justified on the ground of public health, safety and morality[55]. This move of the judiciary was heavily criticised and the trans community gained a lot of traction.

However, the Court did not completely rule out the probability of a reformation to Section 377. The judgment stated that “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.[56]

The decision led to hue and cry and was also criticised for not being in conformity with the International Covenant on Civil and Political Rights (ICCPR)[57], to which India is a signatory. This is when the judiciary had to finally take a stance on the position of transgenders both socially as well as legally. This led to the case of NALSA v. Union of India.[58]

(vi) In NALSA v. Union of India

The judiciary took a stance and granted the legal recognition of a “third gender” to the trans community in NALSA v. Union of India[59] in the year 2014.  The Court held that “person” under Article 14 is not limited to mean a man and a woman but extends to include within its scope of hijras and transgender persons who are neither male nor female[60]. The judgment also highlighted on the lack of legal safeguards for the community by stating that:

  1. 62. … non-recognition of the identity of hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.[61]

The decision directed affirmative action on part of the Central and the State Governments to ensure non-infringement of fundamental rights, public health and social welfare of the community in light of the Yogyakarta Principles[62]. This gave a sense of relief to the LGBTQA community as their human rights were upheld despite the fact that they are insignificant in number. However, the pragmatic reality remained unchanged despite the recognition[63], until 2018 in Navtej Singh Johar v. Union of India.[64]

(vii) In Navtej Singh Johar v. Union of India

The Supreme Court in this case finally decriminalised Section 377 IPC. The law under Section 377 is gender neutral and includes sexual conducts of both heterosexuals and homosexuals; however, the burden of proof has often fallen on the latter only[65]. The Wolfenden Committee[66] in 1957 in its Report concluded that the purpose of criminal law is to preserve public decency and morality and furthered the thesis of J.S. Mill that argued private space must be free from State intervention[67]. This means that criminalising consensual homosexuality within the private space of two consenting, sound adults neither falls under the theoretical nor operational realm of criminal law and therefore must be decriminalised as it is a matter of privacy and private morality. Sexual orientation is an essential attribute of privacy. Discriminating against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.[68] The State cannot demean their existence or control their destiny by making their private sexual conduct a crime[69].

The Constitutional Bench of the Supreme Court unanimously declared Section 377 IPC as unconstitutional to the extent it criminalises consensual sexual conduct between two adults in private, be it between homosexuals, heterosexuals, same sex or transgender sex[70], however, it continues to govern non-consensual sexual acts against adults, minors and acts of bestiality[71]. It stated that such consensual act is “natural” and cannot be termed against the “order of nature”.

After the legitimate recognition of the third gender through the NALSA[72] decision and other legal developments within the community, it was only fair to expect an enactment which would entail and protect the rights of transgenders. This led to the enactment of Transgender Persons (Protection of Rights) Act, 2019[73].

(viii) Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Bill, 2019[74] was first introduced and passed by the Lower House in the year 2016. However, the same was not passed by the Upper House, thereby the position of law coming to a standstill. Nonetheless, the Bill was reintroduced in the year 2019 and was passed by both the Houses along with presidential assent thereby making it an Act. While this Act was heavily criticised due to the lack of consultation from the representatives of the trans community, it also highlighted and brought into light some of the very common issues faced by the transgender, which had not yet been recognised.

The Act recognises the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse. Penalties for these offences vary between six months to two years, and a fine[75].

While this Act did give some relief to the trans-activists as well as the community and stabilised the position of transgenders under the law of the land, India still has a long way to go in terms of inclusivity and protection of transgenders from sexual offences which shall be dealt with later on.

II. Need for inclusivity

While a lot has already been said about the position of law, there does remain a huge grey area wherein the sexual minority of the trans community is threatened. This is due to the lack of inclusivity. For the purpose of this study, the need for inclusive laws will be studied under three particular statutes i.e. (a) Penal Code, 1860 (b) Immoral Traffic (Prevention) Act, 1956[76] (c) POSH Act, 2013.

(a) Position of transgenders under IPC

While a lot has already been discussed about the various recommendations of reports and committees as well as other amendments and judicial pronouncements, Section 377 is still not an adequate solution for the sexual predatory of transgenders. The same will be discussed below.

The purpose behind gender neutrality of sexual offences under the IPC is not to desexualise the offence but to incorporate a holistic understanding of the nature of the offence beyond the lens of gender[77]. While the decriminalisation of Section 377 only extended to consensual acts of homosexuality between two adults and retained the criminalisation of the other non-consensual acts coming under the ambit of “unnatural offences”, the position of law still remains dicey. Additionally, this Section is not wide enough to consider all forms of sexual harassment or assault as any offence filed under this provision would amount to sodomy. It does not cover other forms of sexual offences such as rape, voyeurism, stalking, trafficking among many more which the transgenders are subjected to day in and day out. It must also be noted that most of these offences are also not “unnatural” and hence do not come under the purview of this Section. This analogy is drawn from Justice Verma Committee Report of 2013[78] wherein distinct sexual offences were identified that could have been committed against women and not all sexual offences were included under the umbrella of rape[79].

Along with Section 377, other provisions relating to sexual offences such as Section 354 which deals with all other forms of sexual offences such as stalking, voyeurism, etc. must also be amended to replace the word “any woman” with “any person” so as to ensure the protection of transgenders, in particular the Hijra community who have faced a lot of oppression by not only the society but also the law enforcement agencies due to their gender as well as their economic status which has made them a prey to such acts.

Upon the decriminalisation of consensual sexual conduct between two persons, it becomes imperative to make the other non-consensual sexual conduct, transgender neutral with a separate provision to administer the same and not include all offences under the umbrella of “unnatural offences”. It is important to categorise the offence as it is without dilution of all offences against the transgender community under the umbrella of Section 377[80].

The insistence is on the amendment of the criminal law on sexual offences provided for under IPC and not enactment of a separate gender-neutral legislation for sexual offences which even though seems to be convenient, is not an ideal way[81] as the no new enactment of legislation would have the same gravity and impact as the Penal Code, 1860. Apart from the gender neutrality and transgender inclusiveness of the sexual offence provided for under the IPC, other law governing the criminal domain also have to be amended for holistic recognition of the substantial right of the LGBTQA community[82] such as the POSH Act, 2013.

(b) Position of transgenders under POSH Act, 2013

The need for an enactment to protect women at workplace from sexual harassment arose from the very famous case of Vishaka v. State of Rajasthan[83], where a woman was gang raped by 6 men in her workplace where she was volunteering. Unfortunately, there was no law to protect women from such horrific incidents in the workplace and the Vishaka Guidelines was followed throughout India until 2013, when a law was enacted for the same.

Now, as the name suggests, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[84], is gender specific and is only for the protection of women in workplace. However, it fails to take into consideration that men and transgenders can be victims of workplace sexual harassment too. To talk of transgenders in particular, this community is a sexual minority and is more prone to such assault and harassment than men, due to their gender and more than women due to the lack of laws protecting them.

With the legal recognition of the third gender and the enactment of Transgender Persons (Protection of Rights) Act, 2019, transgenders now have the freedom to work anywhere without any discrimination under the law. However, this does not mean that they would not be subjected to discrimination in the workplace due to the narrow societal and normative understanding of what constitutes “normal”. Transgenders are also subjected to sexual harassment in the workplace due to the male-predominant society that still does not accept the third gender as one of them, who are equally capable of working and earning.

The lack of gender neutrality in the POSH Act has been brought up many times. The reason given for the same by the 239th Parliamentary Standing Committee was that the majority of the victims of such incidents were women and hence it was a remedy provided under Article 15(4) of the Constitution which allows the Parliament to make any special provisions for the educationally or socially backward classes of citizens or SCs and STs. While this is nowhere a reasonable justification for the exclusion of men from the legislation, it certainly acts as a compelling argument to include transgenders in the Act due to their socially backward status. Transgenders have been able to come out of their closets and adapt to the normalcy of being a transgender only recently since all of the legal developments aforementioned. However, they still have a long way to go in order to attain the equal status of a male or a female in the eyes of the society. Therefore, this undoubtedly makes the community a socially backward one and hence they must be included in the Act going by the argument of the Parliament of making special provisions under Article 15(4).

Each person is entitled to right to life and right to live with dignity, and as such statutes that punish sexual offences cannot selectively protect one person[85]. The act of sexual harassment is a violation of a person’s human rights and well as the fundamental right to a dignified life. Therefore, making such crucial laws gender-specific only leads to a more blatant violation of such rights.

However, many companies in India today follow a gender-neutral system of sexual harassment policies such as Taj Group of Hotels and Godrej thereby protecting the safety of all their employees irrespective of their gender. One wishes to witness the same change in the POSH Act, 2013.

(c) Position of Transgenders under Immoral Traffic (Prevention) Act, 1956

It is no news that transgenders are one of the most affected communities when it comes to sex trafficking. The Immoral Traffic (Prevention) Act, 1956 was enacted with the sole purpose of preventing the trafficking of women and children. However, in the year 1986, due to the increasing number of people being trafficked for sexual exploitation an amendment was made to include not only male and female but also those who do not fall into either of the categories. This meant that male and transgenders became criminal subjects while the women became the victims. It failed to understand that transgenders also could become victims of human trafficking.
Furthermore, when the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018[86] was proposed, it heavily affected the trans community as the Bill criminalised the acts of beggary as well as consensual sex work. It stated that anyone undergoing “hormone therapy” would be arrested under the grounds of trafficking.

One should understand, that back in 2016, when the trans community had just gained legal recognition, it was still very difficult specially for the downtrodden and the Hijra community to actually make a living out of the organised sector. Due to decades of abandonment, they were forced to indulge in sex work and beggary. However, the criminalisation of the same meant a huge setback for the community as the Government neither consulted the community nor did they provide any alternative skill development programmes to make such people self-sufficient and contribute to the organised sector. Adding on, it is also a known fact that most of the transgenders undergo hormone therapy for their sex change procedures. The duration of the same would pan over a year or two. Criminalising the same under trafficking is preposterous as well as regressive. While the Bill is proposed out of bona fide, it must also take into consideration the multiple stakeholders of the Bill and propose a law that would be viable to all the stakeholders, as justice to one set of people, should not come at the cost of the other.

Conclusion

While the laws in the three statutes appear regressive and preposterous, one must also consider that the concept of transgenderism is still in its nascent stages and it would take a lot of time and social reconditioning for the society to become more inclusive towards the third gender. Nonetheless, reformations are the need of the hour and one can see that a lot of initiative are being taken up to fast-track the process of gender neutrality in the laws.

In 2020, a public interest litigation (PIL) was filed before the Supreme Court to highlight on the lack of penal provisions to safeguard transgenders from sexual offences, event after 6 years of gaining legal recognition. The plea has been filed by Advocate Reepak Kansal and has made the ministries of law and justice, and social justice and empowerment as parties[87]. This PIL filed stated that “though the Supreme Court in 2014, had granted ‘recognition to the transgender/ third gender as “persons” falling under the ambit of Article 14 of the Indian Constitution’, still they do not have equal protection of law in relation to sexual offences.[88]” The petitioner is filing this petition with respect to equal protection of law to the third gender/transgender from the sexual assault/offences as there is no provision/section in the IPC which may protect the third gender from the sexual assault by male/female or another transgender therefore, an anti-discrimination laws are needed to safeguard the basic citizenship rights of transgender persons,[89] the plea said. The PIL also challenged the constitutional validity of Section 354-A[90] in order to examine its extent and scope. It stated that the provision excluded transgender victims of sexual harassment and that it was ultra vires of Articles 14, 15 and 21 of the Constitution[91]. The same was heard by the Supreme Court, and the Supreme Court has sought reply from the Centre on the same matter. The stance of the Centre is yet to come on this matter.  Nonetheless, efforts are constantly being made to make the laws relating to sexual offences more inclusive and the same must be supported.

To sum it up, the law on rape as well as other sexual offences should have been made gender neutral as now the trans community, like women, belongs to the oppressed and vulnerable class prone to sexual violence and harassment owing to the societal power dynamics[92]. Right to seek protection from sexual assault is a right guaranteed by the Constitution and a crucial pillar to further gender justice and the same cannot be ignored[93]. The gender neutrality of sexual offences reflects a nuanced understanding of the nature and consequences of the sexual offences under the criminal law and recognising that women, men and the transgender community can be both victims and perpetrators of the crime[94].


BBA LLB (Hons.) 3rd year student at Faculty of Law, PES University, e-mail: charvidev01@gmail.com.

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[2] Art. 14, Constitution of India.

[3] <http://www.scconline.com/DocumentLink/9etOajU7>.

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[17] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.

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[19] 2009 SCC OnLine Del 1762.

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[22] Tukaram v. State of Maharashtra, (1979) 2 SCC 143

[23] Tukaram case, (1979) 2 SCC 143 .

[24] Tukaram case, (1979) 2 SCC 143 .

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[26] Sakshi v. Union of India, (2004) 5 SCC 518 .

[27] S. 377, Penal Code, 1860.

[28] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

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[32] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428.

[33] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428.

[34] 1996 SCC OnLine Del 397 : 1998 Cri LJ 2428, para 29.

[35] <http://www.scconline.com/DocumentLink/1935iv62>.

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[39] 2009 SCC OnLine Del 1762.

[40] 2009 SCC OnLine Del 1762.

[41] <http://www.nazindia.org/about.htm>.

[42] Nirnimesh Kumar, Delhi High Court Strikes Down Section 377 of the IPC, The Hindu, 2-7-2009, New Delhi.

[43] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.

[44] <http://www.scconline.com/DocumentLink/Bq5pU80d>.

[45] Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, Economic and Political Weekly (6-5-2019, 12.21 p.m.), <https://www.jstor.org/stable/4411809>.

[46] <http://www.scconline.com/DocumentLink/MLv276UW >.

[47] <http://www.scconline.com/DocumentLink/YZ81TAt0>.

[48] (2014) 1 SCC 1.

[49] (2014) 1 SCC 1.

[50] 2009 SCC OnLine Del 1762.

[51] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

[52] Suresh case, (2014) 1 SCC 1.

[53] Suresh case, (2014) 1 SCC 1.

[54] Rukmini Sen, Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to the “Inclusive” Judgment, NUJS Law Review (13-5-2019, 10.19 a.m.), <http://nujslawreview.org/wp- content/uploads/2016/12/rukmini-sen.pdf>.

[55] Gautam Bhan, Challenging the Limits of Law: Queer Politics and Legal Reform in India in Because I Have a Voice: Queer Politics in India, 468 [Arvind Narrain and Bhan Gautam (eds.), 2005].

[56] Suresh case, (2014) 1 SCC 1.

[57] International Covenant on Civil and Political Rights, 19-12-1966, S. Treaty Doc. No. 95-20, 6 ILM 368 (1967), 999 UNTS 171; Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810 at 71 (1948).

[58] (2014) 5 SCC 438.

[59] (2014) 5 SCC 438.

[60] (2014) 5 SCC 438,

[61] (2014) 5 SCC 438, 487.

[62] Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, International Commission of Jurists (15-5-2019, 17.11 p.m.), <https://www.refworld.org/docid/48244e602.html>.

[63] Tukaram v. State of Maharashtra, (1979) 2 SCC 143

[64] (2018) 10 SCC 1.

[65] Geetanjali Misra, Decriminalizing Homosexuality in India, Taylor and Francis Group (13-5-2019, 14.49 p.m.), <https://www.jstor.org/stable/40647442>.

[66] Wolfenden Committee, Report on Homosexual Offences and Prostitution, (Chairman: Sir John Wolfenden, 1957).

[67] H.L.A. Hart, Law, Liberty and Morality, 88 Stanford University Press (1963).

[68] K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809, para 126.

[69] Justice Kennedy, Lawrence v. Texas, 2003 SCC OnLine US SC 73 :  156 L Ed 2d 508 : 539 US 558, para 18 (2003).

[70] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.

[71] (2018) 1 SCC 791, para 21

[72] (2014) 5 SCC 438.

[73] Transgender Persons (Protection of Rights) Act, 2019.

[74] <http://www.scconline.com/DocumentLink/hyED4Wys>.

[75] <http://www.scconline.com/DocumentLink/87UM7Ym2>.

[76] <http://www.scconline.com/DocumentLink/ucPDKUb8>.

[77] Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Cambridge University Press (3-5-2019, 17.55 p.m.), <https://www.cambridge.org/core/journals/asian-journal- of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape- law/9BC983FB009B7BBDEB78CED0BC5144C0>.

[78] The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013.

[79] <http://www.nazindia.org/about.htm>.

[80] Sakshi Raje, Transgender: The Human Rights, Law Times Journal (11-5-2019, 10.51 a.m.), <http://lawtimesjournal.in/transgender-the-human-rights/>.

[81] (2014) 1 SCC 1.

[82] Animesh Sharma, Section 377: No Jurisprudential Basis, Economic and Political Weekly (14-5-2019, 14.33 p.m.), <https://www.epw.in/journal/2008/46/commentary/Section-377-no- jurisprudential-basis.html?0=ip_login_no_cache%3D7f2e2da6d0d55a917ff3ebc34c05b74e>.

[83] (1997) 6 SCC 241.

[84] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[85] Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Asian Journal of Comparative Law, p. 376 (2016).

[86] <http://www.scconline.com/DocumentLink/27IkNY72>.

[87] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[88] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, The Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[89] SC Seeks Centre’s Reply on PIL for Equal Protection of Law to Transgenders in Sexual Offences, The Indian Express, <https://www.newindianexpress.com/nation/2020/oct/12/sc-seeks-centres-reply-on-pil-for-equal-protection-of-law-to-transgenders-in-sexual-offences-2209251.html>.

[90] <http://www.scconline.com/DocumentLink/rKlU5i88>.

[91] Constitution of India <http://www.scconline.com/DocumentLink/Uei3bEDC>

[92] State Govt. v. Sheodayal Gurudayal, 1954 SCC OnLine MP 100 .

[93] Ministry of Law, Government of India, Committee on Amendments to Criminal Law (Chairperson: Justice J.S. Verma, 2013).

[94] Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, Seattle Journal for Social Justice (6-5-2019, 1.57 a.m.), <https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/>.

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. while holding the reason assigned by the Director-General of Police (DGP) while rejecting the claim of the petitioner to review the order of his suspension bad in law, directed the DGP to reconsider the matter.

The petitioner had preferred this writ petition for quashing the order of the Director-General of Police, Government of Jharkhand, whereby, the revision application preferred against the order passed by the Inspector General of Police had been affirmed.

The petitioner, a Sub-Inspector was alleged to have shot his wife dead and was charged with offences under Section 302 of the Penal Code, 1860 and Section 27 of the Arms Act, 1959. Pursuant to which the petitioner was suspended from service and a show cause notice was issued. Meanwhile, the Trial Court convicted and sentenced the petitioner to undergo life imprisonment in the said case and accordingly, the inquiry report was submitted in the departmental proceeding.

The petitioner assailed the impugned order on the ground that in the departmental proceeding, inquiry report was submitted only on the ground that the petitioner had been convicted by the Trial Court and without adducing any evidence in the departmental proceeding, the inquiry report was submitted without giving him any opportunity, hence, the same was against the principle of natural justice. Moreover, the petitioner was acquitted by the High Court in an appeal against the judgment of the Trial Court.

On the contrary, the State argued that the departmental proceeding and criminal proceeding are two different subjects and parameters of both the proceedings are different. Merely on the ground that the petitioner had been acquitted in the criminal case by the High Court, the case of the petitioner could not be considered for reinstatement.

Noticeably, when the inquiry report was submitted in the departmental proceeding, the petitioner was being treated in Ranchi Institute of Neuro-Psychiatry & Allied Sciences (RINPAS), for mental illness (Schizophrenia), which was why reply to the show-cause had not been received. Considering the stand taken by the State that the Director General of Police had rejected the revision application of the petitioner after acquittal by the High Court, on the ground that the High Court had not directed for reinstatement of the petitioner in service while acquitting the petitioner, the Bench stated that,

“It is well known that the High Court while acquitting the petitioner has decided the criminal case only and the authority concerned has to consider the reinstatement of the petitioner in service while passing a reasoned order.”

From the inquiry report, it transpired that the petitioner was being treated in RINPAS and the inquiry report had been submitted only taking into consideration that the petitioner had been convicted by the Trial Court. Hence, the Bench held that the reason assigned by the Director General of Police while rejecting the claim of the petitioner did not sound good.

In the light of above, the impugned order was quashed and the matter was remitted to the Director General of Police to consider the case of the petitioner afresh and pass a reasoned order.  [Anil Kumar Singh v. State of Jharkhand, W.P. (S) No. 6342 of 2017, decided on 10-09-2020]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Mr. Diwakar Upadhyay, Advocate

For the Respondent-State: Mr. Rahul Kamlesh, A.C. to SC.-VI

Case BriefsHigh Courts

Kerala High Court: Shircy V., J., held that argument that now the victim of rape had attained majority and was living happily with the accused are not valid grounds or justifiable reasons for quashing the criminal proceedings. The Bench remarked,

“When it (rape) is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences.”

The petitioners, accused for the offences punishable under Sections 366A, 376 and 34 of Penal Code, 1860 and Section 4 read with Section 3, Section 6 read with Section 5 and Section 17 read with Section 16 of the Protection of Children from Sexual Offences Act, 2002 (POCSO), had approached the Court for seeking quashment of FIR and other related proceedings.

The case against the petitioners was that they had procured the victim, who was aged only 17 years, from her lawful custody and took her forcibly to the rental house where accused 1 committed rape on her. The petitioners contended that the entire matter had been amicably settled between the parties and the victim did not intend to proceed with the case since they were living together as husband and wife.

Whether criminal proceedings could be quashed in a rape case in view of the compromise arrived at between the parties?

The inherent power given to the High Court under Section 482 CrPC is with the purpose to prevent abuse of process of the court and with the object of advancement of justice which is an exception and not the rule which should be used sparingly with great caution and circumspection.

Reliance was placed by the Court on Gian Singh v. State of Punjab, (2012) 10 SCC 303, wherein the Supreme Court had answered the similar issues stating that, “inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz:

  • to secure the ends of justice, or
  • (ii) to prevent abuse of the process of any court…”

The Delhi High Court held that, “Heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences.”

Terming the offence of rape worse than murder as humiliating and horrifying experience are caused to the victim, the Bench stated when the crime of rape is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences. Accordingly, the Bench stated,

“When the magnitude of the crime is so grave and heinous as such to shock the sense of justice, settlement between the parties and a marriage subsequently between them are not matters for consideration to quash the proceedings in a criminal case.”

Hence, it was held that as the victim was a minor and the provisions of the special Act enacted to protect and save minor children from sexual offences and harassment were also involved, the argument that, now the victim had attained majority and was living happily with petitioner 1 were not valid grounds or justifiable reasons for consideration to quash the criminal proceedings.

Therefore, the compromise and settlement entered between the parties was rejected and the petitioners were directed to stand the test of judicial scrutiny and face the Trial. [Rahul P.R. v. State of Kerala, 2021 SCC OnLine Ker 3348, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioners: Advocate C.A.Chacko, Advocate C.M.Charisma and Advocate Alekh Thomas

For the State of Kerala: P.P. Ajith Murali

Case BriefsHigh Courts

Kerala High Court: Shircy V., J., dismissed the bail application of one Sessy Xavier, the infamous fake lawyer. The Bench stated,

“The illegal activities adopted by her that too before the court of law has to be dealt with an iron hand. If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole Judicial system and would shake the confidence of the public in judicial system.”

Background

The allegation against the petitioner was that the petitioner, who was not a law graduate, had fraudulently approached the Bar Association, Alappuzha with someone else’s enrolment number and secured membership.  She had also submitted applications before the civil courts and thus her name was also included in the panel of Commissioners and was appointed as Commissioner in so many cases. She was also said to have appeared before the Sessions courts for the accused as State brief. Shockingly, she had contested the election of the Bar Association and was elected as an office bearer of the Association.

Thus, apprehending arrest in the case registered against her under Sections 417, 419 and 420 of the IPC, the petitioner had approached the Court seeking anticipatory bail. The definite case of the petitioner was that she never appeared as an Advocate or attended the courts as an Advocate wearing the uniform prescribed for a lawyer. But she joined only as a law intern in the office of an Advocate at Alappuzha.

Eligibility of an Advocate

Section 24 (1) (c) of the Advocates Act, 1961 says that a person who has obtained a degree in law is qualified to be admitted as an Advocate, if he fulfills the conditions narrated therein. Therefore, only a person holding a Law Degree is entitled to get his name enroled in the roll as an Advocate and only after enrolment as an Advocate, one could practise the profession of law as an Advocate as reflected in the Act. Admittedly, this petitioner was not holding a degree in law and so she never enrolled as an Advocate before the Bar Council of Kerala. Rejecting the argument of the petitioner she had only joined the office of a Senior Advocate as law intern, the Bench stated the same appeared to be a false statement as revealed from the records.

Opinion and Analysis

Noticeably, the petitioner never completed her course in LL.B, though she was a student at Law Academy Law College at Thiruvananthapuram for a short period but clandestinely produced the enrolment number of another Advocate and the said number was exhibited by her as her roll number in all her activities as an Advocate before the courts. Hence, prima facie, the petitioner had not only cheated the Bar Association, the District judiciary, the general public, but also the entire judicial system.

“Doubtless that the gravity of the offences alleged against her is grave and serious in nature…The allegations levelled against her are highly serious and sensitive having grave repercussions in the society.”

The held that the Advocates’ first responsibility is towards their clients and then to the courts. So, misrepresenting or presenting as an Advocate before a client and obtaining his/her brief as if she is an Advocate, itself would amount to cheating towards the public. Noticing that she had also functioned as the librarian of the Bar Association and she was in charge of the records of the association, the Bench directed the Bar Associations to cross check and verify with the Bar council before admitting a new member, so that such incidents could be prevented in future. The Bench stated,

“If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole judicial system and would shake the confidence of the public in judicial system.”

Conclusion

Since, application submitted by her for admission before the association was also found missing from the records along with some other applications submitted the investigating agency was directed to go deep into the matters so as to ascertain what were the offences committed by the petitioner apart from the offences she had been booked by the prosecution.

Hence, holding that to probe into those details, definitely custodial interrogation of the petitioner was essential and inevitable, her bail application was dismissed. [Sessy Xavier v. State of Kerala, Bail Appl. No. 5868 of 2021, decided on 17-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: By Adv Roy Chacko

For the State of Kerala: Adv. P.K. Vijayakumar, Sr. Pp Smt. Sreeja V

For Addl. Respondent 3: Adv. B Pramod

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna J. allowed the criminal petition and quashed the impugned order dated 30-07-2016 passed by Additional Civil Judge, Udupi.

The facts of the case are such the wife of respondent 2/complainant borrowed finance from the Karnataka State Finance Corporation (‘the Corporation’) for establishing Sri Durga Printers and Sri Durga Printers Conventional Hall but failed to pay the loan amount on time pursuant to which the property of respondent 2 was brought to sale by way of public auction. The petitioner became the highest bidder of the property and the property was directed to be handed over to him when the complainant made objections to the auction on the ground that the property was worth more than Rs 55/- lakhs had been sold at Rs 29/- lakhs by the Corporation. Thereafter, the complainant registered an FIR against the petitioner alleging that the petitioner had threatened him with life to not interfere with the auction proceedings. Based on the complaint for the alleging offence punishable under Section 506 of the Penal Code, 1860 i.e. IPC, investigation was conducted and ‘B’ report was filed. The petitioner filed a protest petition against acceptance of ‘B’ report under Section 200 of Criminal Procedure Code i.e. Cr. PC. The Magistrate recorded the sworn statement of the complainant and on perusal of the report, directed registration of criminal case against the petitioner for offence punishable under Section 506 of the IPC and summons issued. It is at this stage, the petitioner approached this Court in the subject criminal petition.

Counsel for petitioner Mr K. N. Nitish submitted that the entire allegation against the petitioner would not make out an offence punishable under Section 506 IPC, the petitioner is innocent of the property that was put to auction and because the petitioner purchased the property belonging to the complainant, the complainant to harm the petitioner has registered the criminal case. It was also submitted that the Magistrate while rejecting ‘B’ report and directing registration of the criminal case, did not apply his mind with regard to the offence alleged or the ‘B’ report and has mechanically ordered registration of the criminal case.

Counsel for respondent Ms B.G. Namitha Mahesh submitted that since the Police have conducted investigation and the Court has not accepted the ‘B’ report, it is a matter for trial and the Magistrate at this stage need not apply his mind as everything would be at large in the trial. The petitioner can as well prove his innocence in the trial Court and this Court at this stage should not interfere or interject the criminal trial.

The Court observed that Section 503 IPC, which defines ‘criminal intimidation’ would direct that whoever threatens another person with any injury to his person, reputation or property by an act, he is not legally bound to do and executes certain threats, commits criminal intimidation. Therefore, the intention of the petitioner ought to have been to do any injury to the complainant, his reputation or property. If the complaint is seen qua Section 506 of the IPC, it does not link any action of the petitioner to Section 503 of the IPC, for an offence punishable under Section 506 of the IPC.

The Court further observed that as narrated in the complaint, the property of the complainant was sold by the Corporation for a very less price and the loan was adjusted to the auction money. It is only because the petitioner was the auction purchaser of the property, though, through legal means, the complaint is registered by the complainant. Therefore, there cannot be a better case of giving a criminal colour to a legal act of the Corporation.

The Court relied on judgment Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 wherein it was observed

……a tendency to perjure is very much on the increase and unless by firm action courts do not put their foot down heavily upon such persons the whole judicial process would come to ridicule. We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482, Cr.P.C.”

The Court further observed that merely because a complainant files a protest petition and gives a statement with regard to his protest petition, the Magistrate ought not be swayed away by such protest petition. It is incumbent upon the learned Magistrate to consider ‘B’ report, protest petition and the evidence on record and record his finding as to why he rejects the ‘B’ report and accepts the protest petition. Application of judicious mind by the learned Magistrate while setting the criminal trial in motion, in cases particularly where protest petition is filed against the ‘B’ report by the complainant, becomes sine qua non, failing which, the order taking cognizance notwithstanding the ‘B’ report, becomes a routine exercise. Reasons to be recorded in such circumstances need not be elaborate but must bear application of mind.

The Court thus held The registration of FIR could not have been done by the Police without at the outset referring the matter to the learned Magistrate. This is yet another infirmity in the entire proceedings. Therefore, on the aforesaid reasons with regard to the application of mind on the part of the learned Magistrate and registration of FIR being violative of Section 155 of the Cr.P.C. the entire proceedings stand vitiated.”

[Nagaraj Rao v. State, Criminal Petition No. 8922 of 2017, decided on 17-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.