Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., ordered the release of persons detained for protesting against the controversial Lakshadweep regulation. The Bench stated,

“The most important concern for us is the liberty of the persons who are in custody. They shall not be deprived of the means of access to justice.”

The instant petition was filed espousing the cause of persons detained in connection with a crime registered in Lakshadweep Island. According to the petitioners, though the case registered against them was bailable, they had been remanded by the Executive Magistrate for no reasons. On the contrary, the counsel for the Lakshadweep Island submitted that the SHO and the Executive Magistrate were prepared to release the protestors on bail but they had refused to get released on bail. However, the above submission had been refuted by the counsel for the petitioner, stating that no such attempt had been made by the SHO and the Executive Magistrate.

Opining that the most important concern before the Court was the liberty of the persons who were in custody, the Bench said the protestors should not be deprived of the means of access to justice. In the above backdrop, the Bench directed the CJM, Amini, to take up the case of protestors who were in custody pursuant to registration of the case by SHO of Kilthan Island by 3pm on the day of passing of order itself. The Bench further said that the CJM need not to ask for the physical production of the persons in custody and the same should be held through video conference. The CJM was also directed to release the detainees on execution of self. Additionally, the Executive Magistrate was directed to file a report detailing the persons who had been kept in custody pursuant to registration of the case and date from which they were in custody and the offences under the penal enactments. The Medical Officer of Kilthan Island was directed to examine all persons in regard to their health conditions.[Sayed Mohammed Koya v. U.T. of Lakshadweep, 2021 SCC OnLine Ker 2355, decided on 01-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. R.Rohith

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of led by former CJI SA Bobde, along with AS Bopanna and V. Ramasubramanian, JJ has set aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986

“There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.”

Rajnarain Singh was murdered by the accused, a contract killer and a sharpshooter, in conspiracy with others. In fact, previously, the accused has been prosecuted in fifteen cases for serious offences including murder, attempt to murder and criminal conspiracy.

It was argued before the Supreme Court that the Allahabad High Court granted bail on very liberal terms, such as the execution of a personal bond to the satisfaction of the jail Authorities and the furnishing of sureties within a month of his release. “The High court has simply ignored the antecedents of the accused and the potential to repeat his acts by organising his criminal activities.”

The deceased victim’s wife also contended that the conduct of the accused during the trial has been one of non-cooperation, by not cross examining the witnesses first, then praying for their recall and then threatening witnesses through his henchmen. In fact, the conduct of the accused impelled the Sessions court to direct the police to provide security in the court during the trial and provide security to the witnesses.

Making a strong case, the appellant also argued that the grant of bail in a routine manner to gangsters, has had an adverse effect in the past, upon the law and order situation. The Court was reminded of the case where Vikas Dubey, who was prosecuted in connection with 64 criminal cases which included cases of murders, offences of dacoity, criminal intimidation, extortion and offences under the UP-Gangster Act, etc., was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed and many grievously injured.

Taking note of all the factors concerned, the Court said that the high court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection.

“It is needless to point out that in cases of this nature, it is important that courts do not enlarge an accused on bail with a blinkered vision by just taking into account only the parties before them and the incident in question. It is necessary for courts to consider the impact that release of such persons on bail will have on the witnesses yet to be examined and the innocent members of the family of the victim who might be the next victims.”

[Sudha Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 342, decided on 23.04.2021]

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court failed to  to evaluate even prima facie of the most basic issue thereby refusing bail to the accused, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has reminded the High Courts and District Courts of their duty to ensure human liberty.

In the judgment running into 55-pages, here is what the Court said:

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“Our district judiciary is wrongly referred to as the “subordinate judiciary‘. It may be subordinate in hierarchy, but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them.”

High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency.”

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here

Also read: Anvay Naik Suicide|High Court abdicated it’s duty by failing to make prima facie evaluation of FIR. Here’s why SC granted interim bail to the accused

SC grants interim bail to 3 accused in Anvay Naik suicide case. Calls Bombay HC order erroneous

OP. ED.SCC Journal Section Archives

CNLU_LJ_6_2016_17_1_1.png

(Let noble thoughts come to us from the universe)

Writing in 1859 J.S. Mill in “on liberty” emphasized that ‘the only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm’… In the part which merely concerns himself, his independence is of right absolute over himself, over his own body and mind, the individual is sovereign. Yet whatever mischief arises from their use, is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions.

Content and viability are essential for the assertion of Right in the wider sense. Content includes Ethical assertion which forms the critical importance of certain freedoms viz. freedom from (torture) and correspondingly about need to accept some social obligation to promote or safeguard these freedoms. Viability includes Open impartiality or open and informed scrutiny. Viability in impartial reasoning is central to the vindication of rights even if such reasoning is ambiguous or dissonant as in the case of American declaration, French Declaration, Universal Declaration of Human Rights. The focus is on fresh legislation.

The acceptance of a class of human rights will still leave room for further discussion, disputation and argument that is indeed that nature of discipline. The validity is ultimately dependent on the presumption of the claims of survivability in unobstructed discussion. It is extremely important, as Prof. Sen puts to understand this connection between human rights and public reasoning especially in relation to demands of objectivity.

The universability of human rights relates to the ideas of survivability in unobstructed discussion – open to participation by persons across national boundaries. Partisanship is avoided not so much by taking either a conjunction, or an intersection, of the views respectively held by dominant voices in different societies across the world … but through an interactive process, in particular by examining what would survive in public discussion, given a reasonably free flow of information and uncurbed opportunity to discuss differing points of view.

Read more… 


[This Article was first published in CNLU Law Journal CNLU LJ (6) [2016-17] 1. It has been reproduced with the kind permission of Eastern Book Company]

* Pro-Chancellor-Emeritus/Vice-Chancellor, Chanakya National Law University, Patna.

** Dean & Principal of New Law College, Bharati Vidyapeeth University, Pune.

3 Sardar Bhagat Singh was hanged on midnight of 23rd March 1931, thus advancing it from the dawn of 24th March, 1931. Martyr Bhagat Singh was 23 years at the time where he kissed the noose as it was lowered to his head.

4 Shreya Singhal v. Union of India(2015) 5 SCC 1.

5 AIR 1952 SC 196.

6 AIR 1967 SC 1643.

7 AIR 1952 SC 196.

8 (1973) 4 SCC 225.

9 (2005) 8 SCC 534, 563.

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., addressed a petition where protection was sought of the Court by a couple against threats and harassment by family members.

The Petitioners (a wife and her husband) sought directions upon respondents not to interfere in their married life and also sought the protection of their life and liberty.

Harassment & Threat

Petitioners stated that they are adults and living together as husband and wife out of their own free will. For the said reasons, the respondent and his other family members were angry with them and that there was serious danger to the petitioners’ lives as they were being threatened and harassed.

Age

To substantiate their claim the petitioner-wife submitted her high school certificate as proof that she was a major now and along with that, the petitioner-couple have brought on record the complete online application for registration of their marriage.

Family Honour

Petitioners have an apprehension that the respondents would eliminate them for the honour of the respondent’s family.

Contentions

Standing Counsel for the State submitted that an FIR is already pending against the petitioner-husband when he and the petitioner-wife had eloped and that the petitioner-husband has been charged with having committed an offence under POCSO Act (the petitioner-wife being a minor at that time) and therefore, he ought not be granted protection of the Court.

Petitioners’ counsel submitted that the FIR was lodged when the petitioners had first eloped but now they have entered into wedlock and the petitioner-wife is now major and therefore, the FIR not being recent but of 2018, cannot come in way of their getting married and getting protection by this Court.

Decision

The Bench stated that there is no need to issue any notice to the private respondents and with the consent of the petitioners’ counsel, the petition is disposed of in terms of the Rules of the Court. The Supreme Court in a long line of decisions has settled the law that where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has any authority to interfere with their living together.

Cases for reference:

Gian Devi v. Superintendent, Nari Niketan, Delhi, (1976) 3 SCC 234; Lata Singh v. State of U.P., (2006) 5 SCC 475; and Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396.

Therefore, in view of the facts and circumstances of the case, the Court stated that in case of any disturbance being caused in the peaceful living of the petitioner, they shall approach the police authority concerned.

Petition was partly allowed. [Priya Verma v. State of U.P., 2020 SCC OnLine All 1023, decided on 07-09-2020]

Case BriefsSupreme Court

“While the mountains of Himalayas spell tranquillity, yet blood is shed every day.”

Supreme Court: In a major verdict, the 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain.

“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

Stating that it’s limited scope, in the matter wherein the two sides have shown two different pictures which are diametrically opposite and factually irreconcilable, was to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner, the Court said,

“It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.”

Fundamental rights under part III and restrictions thereof

  • Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.
  • Internet is also a very important tool for trade and commerce. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

Right to access internet as a fundamental right

The Court refused to offer views on the said issue as none of the counsels had argued for declaring the right to access the internet as a fundamental right.

Publication of orders on Internet shut down

The Court noticed that although the Suspension Rules under Section 7 of the Telegraph Act does not provide for publication or notification of the orders, a settled principle of law, and of natural   justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available.

“Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not.

It further added that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.

Restrictions under Section 144 CrPC

“As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”

Explaining the concepts of ‘law and order’, ‘public order’ and ‘security of State’, the Court said that these are distinct legal standards and that the Magistrate must tailor the restrictions depending on the nature of the situation. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.

“If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two   distinct situations.”

Freedom of press

When Anuradha Bhasin argued before the Court that she was not able to publish her newspaper Kashmir Times from 06­08­2019 to 11­10­2019, the Court noticed that no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­serving purpose.”

The Court, however, said that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

Operative order

  1. The J&K State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.
  2. Freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
  3. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
  4. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
  5. The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). Hence, J&K State/competent authorities must review all orders suspending internet services forthwith.
  6. Orders not in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.
  7. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e­banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
  8. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Hence, the power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
  9. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.
  10. While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.
  11. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
  12. The J&K State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above.

The 3-judge bench had reserved the judgment on November 27, 2019 on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

[Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, decided on 10.01.2020]

Hot Off The PressNews

Supreme Court: The 3-judge bench of N V Ramana, R Subhash Reddy, and B R Gavai, JJ has reserved the judgment on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir) with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Case BriefsHigh Courts

Madhya Pradesh High Court: S.A. Dharmadhikari, J. allowed the bail application on the ground that trial was not going to be over in the near future.

A first bail application under Section 439 of the Code of Criminal Procedure, 1973 was filed by the applicant. The applicant was arrested in connection with the offence punishable under Section 34(2) of the M.P. Excise Act. The allegation was that the 54 bulk liters of the country liquors were recovered from the possession of the applicant.

Arvind Sharma, counsel for the applicant submitted that the applicant was falsely implicated in this matter and was in custody since 06-05-2019. It was further submitted that the trial was not going to be finished in the near future. The counsel also submitted that as the applicant was a permanent resident of the Gwalior thus there was no likelihood that he will abscond if released on bail. Thus, prayed for the grant of the bail.

Sanjeev Mishra, Public Prosecutor opposed the application and prayed for the rejection of the grant of the bail.

The Court opined that prolonged pre-trial detention is an anathema to the concept of liberty, this Court is inclined to extend the benefit of bail to the applicant. Thus the bail was granted with the direction to furnish a personal bond.[Shyam Sharma v. State of M.P., 2019 SCC OnLine MP 1606, decided on 15-07-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the subjective satisfaction of the detaining authority under COFEPOSA is not immune from judicial reviewability, the bench of R. Banumathi and AS Bopanna, JJ has held that,

“the court must be conscious that the satisfaction of the detaining authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention.”

The Court dealing with a case where a huge volume of gold had been smuggled into the country unabatedly in the last three years and about 3396 kgs of the gold had been brought into India during the period from July 2018 to March, 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure.

Holding that the High Court erred in interfering with the satisfaction of the detaining authority, the Court refused to accept the contention that the courts should lean in favour of upholding the personal liberty,

“the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and devised to afford protection to the society. When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society.”

The Court, hence, upheld the detention of the Gold smuggler.

[Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875, decided on 18.07.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. dealt with a bail application where the petitioner sought bail for the offence under Section 14 of the State Security Act and thereby granted the said bail to the externed petitioner.

The first bail application was filed under Section 439 CrPC by the petitioner who was externed by the District Magistrate under the State Security Act. The petitioner was found within the prohibited area of Dewas and was subsequently arrested. The learned counsel for the petitioner, Hitesh Sharma submitted that the offences had been tried by the court and the petitioner was ready to abide by the conditions.

The counsel for the State, Akshat Pahadia, submitted that there were several cases against the petitioner and therefore he was externed for a period of one year.

The Court observed that an investigation was over and the offences attracted the penalty of three years. It was further observed by the Court the fact that early conclusion of the trial was a bleak possibility and prolonged pre-trial detention being an anathema to the concept of liberty and the material placed on record did not disclose the possibility of the petitioner fleeing from justice, the Court was though inclined to extend benefit of bail to the petitioner but with certain stringent conditions in view of nature of offence. Hence, the bail was granted.[Jakir v. State of M.P., 2019 SCC OnLine MP 1286, decided on 26-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of Sheel Nagu, J., fourth time under Section 439 of Criminal Procedure Code for grant of bail where the prior bail application were rejected on merit and petitioner was given liberty to come again after the main prosecution witness was examined.

Facts of the case were that petitioner was arrested in connection with crime punishable under Sections 307, 323, 294, 147, 148, 149, 325, 427 IPC and Sections 25 and 27 of the Arms Act. Petitioner was alleged for murder where several police personnel were injured. It was brought before Court that the co-accused was already enlarged on bail and petitioner was in custody for 1 year and 4 months and yet Trial had not progressed.

High Court in light of the fact that the co-accused was already on bail and the time period petitioner had already spent in imprisonment observed that speedy trial under Article 21 of the Constitution was breached. With a view that Trial will take time to conclude and prolonged pre-trial detention was an anathema to the concept of liberty, the petitioner was granted bail. [Dileep Pardi v. State of M.P., 2019 SCC OnLine MP 425, dated 06-03-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Divison Bench of Mushir Alam and Qazi Faez Isa, JJ. allowed a petition seeking to set aside lower Court’s direction for deoxyribonucleic acid (DNA) test of a lady.

Respondent herein had filed a suit against the petitioner alleging that she was adopted by his father, late Abdul Qayum and brought up as his own daughter. However, the fact of adoption was concealed from her. In his suit, respondent sought declarations that Laila was not the real daughter of Abdul Qayum and, had no right to his legacy. Further, he filed an application seeking a DNA test to be conducted to determine whether Laila is the daughter of Abdul Qayum. The application did not, as per procedural requirement, cite any provision of law whereunder it was submitted; but the same was allowed. Aggrieved thereby, the instant petition was filed.

Petitioner’s counsel challenged respondent’s locus standi to question the petitioner’s paternity and contended that the suit filed by him was not maintainable under Sections 39 and 42 of the Specific Relief Act, 1877. He also referred to Article 128 of the Qanun-e Shahadat Order, 1984 according to which only a putative father may challenge the paternity of a child.

The Court opined that a declaration in suit can only be made in favour of a person who is entitled to any legal character or right, as to any property, which another is denying. In the instant case, petitioner had neither denied respondent’s legal character nor his right to any property. Reliance in this regard was placed on Abdur Rahman Mobashir v. Amir Ali Shah, PLD 1978 Lahore 113.

Further, Article 128 does not permit a putative brother, viz., respondent herein, to challenge his sister’s paternity. Judgment in Salman Akram Raja v. Government of Punjab, 2013 SCMR 203 was also relied on to hold that a free lady cannot be compelled to give a sample for DNA testing as it would violate her liberty, dignity and privacy guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan.

In view of the above, the impugned order was set aside. [Laila Qayyum v. Fawad Qayum, 2019 SCC OnLine Pak SC 2, Order dated 18-02-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of S.A. Dharmadhikari, J. allowed the bail application of an accused whose two previous bail applications had been dismissed on merit.

The applicant was accused of committing offence under Sections 457 and 380 of the Penal Code, 1860. Two bail applications filed by him had been repeatedly dismissed on merits. It was argued by him that he had been kept in custody since May, 2018 but charges against him had not yet been framed and there was a huge delay in the trial. Applicant submitted that his co-accused had been released on bail and thus only he cannot be kept in jail for an indefinite period.

The respondent submitted that no case for grant of bail was made out because as many as twelve criminal cases were pending against the applicant. Applicant’s counter was that out of these twelve cases, he had been acquitted in eight cases whereas four cases were pending in trial.

The Court noted observed that prolonged pre-trial detention is an anathema to the concept of liberty and allowed the applicant to be released on bail subject to furnishing a personal bond of Rs 1 lakh.[Dharampal Pardi v. State of MP, 2019 SCC OnLine MP 34, Order dated 07-01-2019]

Case BriefsSupreme Court

Supreme Court:

“When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large.” – Dipak Misra, CJI

These were the opening words by CJI in the judgment that stated elaborate preventive, remedial and punitive measures to meet the challenges of the agonising effect of honour crime.

When the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ sat for answering the question as to whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan, it held that the answer has to be an emphatic “No” and recommended the legislature to bring law appositely covering the field of honour killing. It further said:

“Class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution. And this right of enjoyment of liberty deserves to be continually and zealously guarded so that it can thrive with strength and flourish with resplendence.”

Stating that no authority has been conferred upon Khap Panchayats or any such assemblies under any law, the Bench explained:

“when a crime under IPC is committed, an assembly of people cannot impose the punishment. They have no authority. They are entitled to lodge an FIR or inform the police. They may also facilitate so that the accused is dealt with in accordance with law. But, by putting forth a stand that they are spreading awareness, they really can neither affect others’ fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.”

It was, however, made clear that an assembly or Panchayat committed to engage in any constructive work that does not offend the fundamental rights of an individual will not stand on the same footing of Khap Phanchayat.

Directing the State Governments to implement it’s directions within 6 weeks, the Bench enumerated the following steps to check the menace of honour killings ordered by the Khap Panchayats:

Preventive Steps:

  • The State Governments should identify Districts, Sub-Divisions and/or Villages where instances of honour killing or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years.
  • If information about any proposed gathering of a Khap Panchayat comes to the knowledge of any police officer or any officer of the District Administration, he shall inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.
  • The Deputy Superintendent of Police shall then immediately interact with the members of the Khap Panchayat and impress upon them that convening of such meeting/gathering is not permissible in law and to eschew from going ahead with such a meeting.
  • Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution.
  • If the Deputy Superintendent of Police, after interaction with the members of the Khap Panchayat, has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the participants in the assembly under Section 151 Cr.P.C.

Remedial Steps:

  • Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat, the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Penal Code including Sections 141, 143, 503 read with 506 of IPC.
  • Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose.
  • The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis.
  • The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/ Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week.
  • The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police incharge of the concerned sub-division to cause to register an F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C.
  • In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be.

Punitive Steps:

  • Any failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance.
  • The States must take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident had already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
  • The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Adi-Dravidar Welfare Officer to receive petitions/complaints of harassment of and threat to couples of inter-caste marriage.
  • These Special Cells shall create a 24-hour helpline to receive and register such complaints and to provide necessary assistance/advice and protection to the couple.
  • The criminal cases pertaining to honour killing or violence to the couple(s) shall be tried before the designated Court/Fast Track Court earmarked for that purpose. The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence. This direction shall apply even to pending cases.

[Shakti Vahini v. Union of India, 2018 SCC OnLine SC 275, decided on 27.03.2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The High Court recently addressed a petition wherein the petitioner argued that despite her having attained the age of majority and marrying the 2nd petitioner out of her own free will without any undue coercion, the respondents were harassing her with the help of the Police along with wrongfully framing them in false cases.

The Court referred to Lata Singh v. State of U.P., (2006) 5 SCC 475  which held that if a woman has attained the age of majority, she is free to marry whoever she wants to provided that person has attained the age of majority as well. It clarified, “There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system”. It was further held in this case, “In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished”. Thus, the Court directed the Police to take appropriate steps to ensure the protection and liberty of the petitioners. [Zubida Akhter v. State of Jammu and Kashmir,  2017 SCC OnLine J&K 712, order dated 15.11.2017]