Case BriefsSupreme Court

Supreme Court: In the Kathua Rape and murder case where one of the accused was found to be taking the statutory shelter under the guise of being a minor, the bench of Ajay Rastogi and JB Pardiwala*, JJ observed that it was gathering an impression that the leniency with which the juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes.

Observing that the rising rate of juvenile delinquency in India is a matter of concern and requires immediate attention, the Court said that

“There is a school of thought, existing in our country that firmly believes that howsoever heinous the crime may be, be it single rape, gangrape, drug peddling or murder but if the accused is a juvenile, he should be dealt with keeping in mind only one thing i.e., the goal of reformation. The school of thought, we are taking about believes that the goal of reformation is ideal. The manner, in which brutal and heinous crimes have been committed over a period of time by the juveniles and still continue to be committed, makes us wonder whether the Act, 2015 has subserved its object.”

The Court, hence, suggested that it was time for the Government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late in the day.

[State of Jammu and Kashmir v. Shubam Sangra, 2022 SCC OnLine SC 1592, , decided on 16.11.2022]


*Judgment by: Justice JB Pardiwala


For State: Sr Adv P.S. Patwalia

Case BriefsSupreme Court

Supreme Court: In the 2018 horrific case relating to the abduction, rape and murder of an eight-year-old girl in Kathua District of J&K by six men and one accused claiming to be a juvenile at the time of the incident, the bench of Ajay Rastogi and JB Pardiwala*, JJ has held that the respondent accused was not a juvenile at the time of commission of the offence and should be tried the way other co-accused were tried in accordance with the law.

Stating that law has to take its own course and that the Court was only deciding the issue of juvenility in the case at hand, it was clarified that the guilt or the innocence of the respondent accused shall be determined strictly on the basis of the evidence that may be led by the prosecution and the defence at the time of the trial.

The ghastly crime

The 8-year-old victim belonged to a nomadic Muslim community. She disappeared for a week before her body was recovered by the villagers a kilometer away from the Rasana village. The entire crime was calculated, ruthless and heinous. Its execution was vicious and cruel, by any stretch of imagination. One of the accused persons was the priest of a Hindu temple where the incident allegedly took place. The respondent herein is his nephew.

In all eight individuals were arrested in connection with the ghastly crime which includes the respondent herein. Since the respondent herein claimed to be a juvenile, his trial was separated. Out of the remaining seven, six accused stood convicted and one accused was acquitted. Three of those convicted were sentenced to life imprisonment and remaining three to five years rigorous imprisonment.

Is the accused really a ’juvenile’?

Sub-rule (3) of Rule 74 of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014, provides that in the absence of the certificates mentioned in subclause (i) to (iii) or in the event of any contradiction arising therefrom, the authority deciding the issue of age may refer the matter to a duly constituted medical board which, in turn, would record its findings and submit to the Juvenile Justice Board. However, in the case at hand, there are discrepancies in the certificates on record disclosing the date of birth of the respondent.

Unimpressed with the submission canvassed on behalf of the respondent that even if there are contradictions or discrepancies in the documentary evidence of record there is not a single date emerging on record on the basis of which it could be said that the respondent was major on the date of the alleged offence, the Court observed,

“That is not the correct way of looking at the core issue. The correct way of looking at the core issue is to closely examine whether there is any cogent or convincing evidence as regards the correct date of birth of the respondent accused and after ascertaining the same, reach to an appropriate conclusion. If, there is any doubt in this regard, there is no good reason why the matter should not be referred to a duly constituted medical board which shall, in turn, record its findings and submit to the Juvenile Justice Board. The word “may” should be read as “shall” having regard to the very object of sub-rule (3) of Rule 74.”

 Reiterating the settled principle of interpretation that the word ‘may’ when used in a legislation by itself does not connote a directory meaning, the Court explained that if in a particular case, in the interests of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word ‘may’ will not prevent the court from giving it a mandatory colour.

The Court observed that it is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor on the date of the incident and the documentary evidence at least prima facie establishes the same, he would be entitled to the special protection under the Juvenile Justice Act. However,

“when an accused commits a heinous and grave crime like the one on hand and thereafter attempts to take the statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of a common man in the institution entrusted with the administration of justice.”

It is also important to note that the Jammu and Kashmir High Court established a special team of five qualified doctors, one from the Department of Physiology, one from the Department of Anatomy, one from the Department of Oral Diagnosis, one from the Department of Forensic Medicine and one from the Department of Radio Diagnosis. They all in one word said that on the basis of the physical, dental and radiological examination, the approximate age of the respondent could be fixed between 19 and 23 years.  The Court found no reason to not rely on this report, especially when nothing much has been said on behalf of the respondent accused in regard to the credibility of the report. Hence, since the documents evidencing date of birth did not inspire any confidence, the Court had no option but to fall back on the report of the Special Medical Board in the interest of justice.

Hence, the impugned order passed by the CJM, Kathua and the High Court has been set aside and the respondent has been directed to be tried the way other co-accused were tried in accordance with the law.

[State of Jammu and Kashmir v. Shubam Sangra, 2022 SCC OnLine SC 1592, decided on 16.11.2022]


*Judgment by: Justice JB Pardiwala


For State: Sr Adv P.S. Patwalia

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a case relating to unwanted 23-week pregnancy of a 12-year-old rape victim, the division bench of Attau Rahman Masoodi and Om Prakash Shukla, JJ. has permitted the medical experts to proceed with the termination of pregnancy in the interest of justice to free the victim of the trauma and social miseries ahead.

The Court ordered that the petitioner must be provided due medical care equipped with all the necessities required for the purpose. Further, the Chief Medical Officer was directed to monitor financial implications inclusive of the food and accommodation of two extra family members of the victim.

Moreover, the Court permitted the medical board to obtain the necessary consent of victim’s father before termination of pregnancy and further directed that the tissues of fetus must be preserved for forensic analysis and use of the evidence in trial.

The matter will next be taken up on 20.9.2022

[Ms. X Thru. Her Legal Guardian Bharat Lal v. State of U.P., 2022 SCC OnLine All 639, decided on 12.9.2022]


Advocates who appeared in this case :

Ashish Kumar Singh, Advocate, Counsel for the Petitioner;

Chief State Counsel, Counsel for the Respondent.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: V. G. Arun, J., allowed medical termination of 28-week pregnancy of a 14-year-old girl.

The mother of the victim had approached the Court seeking permission to abort the victim's 28 weeks of pregnancy. Noticeably, the victim herein is a minor girl aged 14 years.

By its earlier order, the Court had directed the Superintendent of Medical College Hospital to constitute a Medical Board of competent medical practitioners to examine the victim and file a report before the Court.

Accordingly, the Medical Board, after examining the child, opined,

“Gestational age by Ultrasound is 27 weeks 5 days and correlated with clinical findings. Anguish caused by the continuation of pregnancy can be presumed to cause a grave injury to the mental health of 14-year-old unmarried girl. Hence Medical Board is recommending MTP.”

In the light of the suggestion of the Medical Board recommending medical termination of pregnancy (MTP) as continuation of pregnancy may cause grave injury to the mental health of the girl, the Court issued the following interim directions:

  • The petitioner is permitted to get the victim girl's pregnancy terminated at a Government Hospital.

  • On production of this order, the Superintendent of the hospital shall take immediate measures to constitute a medical team for conducting the procedure.

  • The petitioner shall file an appropriate undertaking, authorising the medical team to conduct the surgery at her risk.

  • If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment available so that it develops into a healthy child;

  • If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, as may be reasonably feasible, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.

[X v. Union of India, W.P.(C) No.26103 of 2022, decided on 16-08-2022]


Advocates who appeared in this case :

M/S. Babu Paul & Murali Manohar, Advocates, For the Petitioner.


*Kamini Sharma, Editorial Assistant has put this report together.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J. allowed a writ petition issuing directions to the Tripura State Electricity Corporation Limited to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner-employee under his service condition.

It was the case of the petitioner that while the petitioner was discharging his duties, he suffered an accident and out of that accident, he became disabled. Due to such disability, he could not attend his duties. It was the contention of the respondents that the salary of the petitioner was duly paid upto 16-03-2020. Thereafter, no salary was paid to the petitioner though he was all along willing to join to perform his duties commensurate to his disability. Report of the Standing Medical Board made it clear that petitioner was not in a position to perform his official and field level activities which may work out throughout the State and that his conditions may improve. In spite of that report, the petitioner was not paid his due salary and other allowances treating his absence from duty as unauthorized.

The Court reproduced the office memo dated 25-02-2015 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions and stated that it was further reviewed in the year 2016 where the rights of persons with disabilities were not in any way diluted rather expanded the rights of such persons. It mandates that the State-employer must create conditions in which the barriers posed by disability can be overcome.

The Court noticed that a plea has been taken that the respondents did not accept his joining report or leave application as he did not report to the joining authority in person however he expressed his willingness to join his duties by submitting an application to the authority concerned but it was refused on the pretext that the petitioner did not physically appear before the concerned authority.

“The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve. Keeping in mind the objectives of Rights of Persons with Disabilities Act, 2016, the respondents should realize the challenge the petitioner has been facing and accommodate him with humane approach. Any failure to meet the needs of disabled person will definitely breach the norms of reasonable accommodation.”

The Court relied on Vikash Kumar v. UPSC, (2021) 5 SCC 370 which had an observation that the Rights of Persons with Disabilities Act, 2016 is a “paradigm shift” and further overview of the scheme of 2016 Act was also discussed.

Keeping in mind the facets and objects of the 2016 Act the Court directed that:

(i) the respondents are to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner under his service conditions within a period of three month from today;

(ii) the salary and allowances payable to the petitioner shall be released from this month and regularize his service conditions by way of recalling all the earlier orders passed by TSECL treating his absence from duty as unauthorized absence. Those unauthorized absence period, according to the TSECL, shall be regularized and that would not have any bearing to the service of the petitioner;

(iii) if it is found that the petitioner is eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned/adjusted with such suitable duties which he would be able to discharge;

(iv) if the petitioner is found incapable of performing any kind of duties, then, the respondents are under obligation and shall pay all service benefits including the promotion to the petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation;

(v) the respondents shall utilize capacity of the petitioner by providing and environment around him and ensure reasonable accommodation by way of making appropriate modifications and adjustments in the spirit of the discussions and observations made herein above;

(vi) the petitioner shall appear before the constituted Medical Board of the State Government within 7(seven) days from today. The Medical Board shall examine and issue necessary certificate mentioning the extent of his disability in consonance with the RPwD Act; and

(vii) it is not advisable to send the petitioner to the Medical Board time and again.

The writ petition was thus allowed.

[Bijoy Kumar Hrangkhawl v. Tripura State Electricity Corpn. Ltd., 2022 SCC OnLine Tri 547, decided on 01-08-2022]


Advocates who appeared in this case :

C.S. Sinha, Advocate, for the Petitioner (s).

N. Majumder, H. Sarkar, Advocates, for the Respondent (s):


*Suchita Shukla, Editorial Assistant has reported this brief.

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that a cadet is akin to a probationer; hence, the employer has a right to discharge a Cadet who is not meeting the medical standards required for military service/training.  

Factual Background 

The applicant joined Officers Training Academy (OTA), Chennai on 05-04-2012 as a Lady Cadet; where she was available for training only for 19 days and was continuously absent from training from 18-04-2012 to 19-11-2012.  

Later on, the applicant was invalided out from service in low medical category due to the following disabilities: 

  • “Persistent Somatoform Pain Disorder” at 40% for life; and  
  • “Non-Supportive Ottis Media (LT) With Mild Hearing Impairment”, at 6-10% for life 

The disabilities were considered as neither attributable to nor aggravated by military service. Therefore, the claim of the applicant for ex-Gratia payment was rejected. Similarly, the first and second appeals of the applicant were also rejected.  

The respondent contended that the applicant’s claim of alleged development of disability (hearing impairment) due to pressure of military training was incorrect and unjustified since cadets are neither subject to hard physical or mental toughness training nor put through weapon training during their initial phase of training in the junior terms. A gradual and easy start is given to all new cadets to enable them to develop their capability to withstand tough military training in later phases of their training. 

Grievances of the Applicant 

As per the applicant, she was under stress and strain of military training which led to the occurrence of the injury. Therefore, both the disabilities should be considered attributable to or aggravated by military service and she should be paid the disability pension and Ex Gratia accordingly.  

The applicant submitted that she had applied for women entry of Short Service Commission (Technical) and at the time of medical board after Services Selection Board (SSB), she was declared temporary unfit due to Chronic Ottis Media (LT) with mild hearing impairment. Later on, after being operated Chronic Ottis Media (LT), she was declared fit in SHAPE-1 by the Army Medical Board. Thereafter, she joined OTA on 05-04-2012.  

Further, the applicant claimed that in May 2012, due to pressure of military training, she had developed a relapse of Chronic Ottis Media (LT) with mild hearing impairment and was treated first at MH Chennai and then at Command Hospital, Air Force, Bangalore, and was placed in medical category H-2 (Temporary) on the recommendation of ENT Specialist.  

Evidently, it was in June 2012 that the applicant was diagnosed with “Persistent Somatoform Pain Disorder” and was recommended to be medically invalided out of service in low medical category S-5.  

Findings and Conclusion  

The Tribunal relied on Narsingh Yadav v. Union of India, (2019) 9 SCC 667, wherein the Supreme Court had held that mental disorders cannot be detected at the time of recruitment and their subsequent manifestation does not entitle a person to disability pension unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. 

Noticing that the applicant had attained the training for a brief period of 15 days, the Tribunal affirmed the findings and opinion of the Medical Board and the Appellate Committee. The Tribunal held that a cadet is akin to a probationer and hence the respondents as an employer have a right to discharge a Cadet who is not meeting the medical standards required for military training/service. Therefore, the Tribunal upheld the opinion of the Medical Board that the applicant’s disability is neither attributable to nor aggravated by military service, and hence, she is not entitled to disability pension and Ex Gratia.  

In view of the above, the Original Application was dismissed.  

[Nira Chaudhary v. Union of India, Original Application No. 99 of 2021, decided on 28-04-2022]  


Appearance by:  

For the Applicant: Vinay Sharma holding brief of Col Y.R. Sharma (Retd), Advocate 

For Union of India: Dr. Shailendra Sharma Atal, Central Govt Counsel 


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Karnataka High Court: N S Sanjay Gowda, J., directed the Medical Practitioners to terminate the pregnancy in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971.

The facts of the case are such that the petitioner was subjected to rape when she was a minor; thereby the crime was registered by the Athani police station. The petitioner’s request for termination of her pregnancy was not entertained in view of the fact that the length of pregnancy was more than 24 weeks. Hence instant petition was filed seeking for a writ of mandamus to the respondent 2 to medically terminate the pregnancy of the petitioner who is now a major.

The Court further directed that a Medical Board be constituted comprising of Gynecologist, a Pediatrician and a Radiologist or Sonologist and a Psychiatrist and directed the Board to render an opinion as to whether continuation of pregnancy would constitute a grave risk to the physical and mental health of the petitioner vide order dated 29-11-2021. The Medical Board, thus advised that the pregnancy of the petitioner is required to be terminated as continuation of the pregnancy would endanger physical and mental health of the petitioner.

The Court observed that the petitioner is a student studying in 2nd year PUC and her mother is eking out of her livelihood as an agriculturist as her father is no more and she has been raised by her mother alone. As the petitioner is still studying and is being raised by a single parent, as affirmed by the psychiatrist, continuation of the pregnancy would definitely constitute grave risk to the mental and physical health to the petitioner.

The Court held “this is an extraordinary case which requires a direction to be issued to the 2nd respondent for terminating the pregnancy of the petitioner. The 2nd respondent shall ensure that the Medical Practitioners terminate the pregnancy in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971 forthwith.”[Kumari V v. State of Karnataka, WP No. 104672 of 2021, decided on 30-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Sangamesh S Ghulappannavar

For respondent: Mr. V S Kalasurmath

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that to get a decree of divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is necessary for the party seeking divorce to prove that the other party’s unsoundness of mind is incurable or that the mental disorder is of such kind that the petitioner cannot be reasonably expected to live with his/her spouse.

The instant petition was filed by the wife in a marital dispute challenging the Family Court’s Order allowing the application filed by the husband to constitute a medical board and to direct the wife to appear before it for the assessment of her mental condition.

Husband had initiated the divorce proceedings before the Court under Section 13(1)(iii) of the Hindu Marriage Act on the ground of mental order. He added in his submissions that the mental condition of the wife was not normal as she was suffering from obsessive-compulsive disorder as well as a borderline personality disorder.

The husband filed a petition before the Court below to direct the wife to undergo medical examination for borderline personality disorder before a medical board to be constituted for the said purpose, but the wife objected the same.

Analysis, Law and Decision

 Bench while analysing the facts and circumstances of the cases stated that the Court has the power to direct the parties to the litigation to undergo a medical test.

Further, Court referred to the Supreme Court decision in Sharda v. Dharmpal, (2003) 4 SCC 493, wherein it was held that even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country under Article 21 of the Constitution of India, a matrimonial Court has the power to order a person to undergo a medical test and such a direction need not be in violation of any right to personal liberty.

“…while exercising the power to order a medical test to be undergone by a person, the Court should exercise restraint and there must be strong prima facie case and sufficient material before the Court to pass such an order.”

 In the present matter, wife’s alleged mental order is an issue to be decided.

Divorce Decree

High Court expressed that, in order to get a divorce decree under Section 13(1)(iii) of HMA, the husband must establish that unsoundness of mind of the wife is incurable or her mental disorder is of such kind and to such an extent that petitioner cannot reasonably be expected to live with her spouse.

Family Court

The Family Court has the power to direct a party to appear before a medical board to undergo a medical examination and the question of such action being violative of Article 21 of the Constitution of India would not arise.

It was noted that the husband had produced documents wherein it was stated that the wife was treated by the psychiatrist for the alleged illness. The said documents were perused by the lower court.

“The fact that the wife’s alleged mental disorder is an issue to be decided in the case itself constitutes a prima facie case.”

Medical Board’s opinion regarding the medical condition of the wife may be of utmost importance for granting or rejecting the prayer for a decree of divorce under Section 13(1)(iii) of the HMA.

Further, while concluding its decision, Bench added that the above-stated opinion is relevant under Section 45 of the Evidence Act.

When a party to a litigation alleges existence of certain facts, the Court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged.

Therefore, the Family Court’s decision was justified in its order and no interference was required.[Devika M. v. Shibin Prakash, 2021 SCC OnLine Ker 1235, decided on 10-03-2021]


Advocates before the Court:

Counsel for the petitioner Sri. T.R. Harikumar

Counsel for the respondent Sri. Sharan Shahier.

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Biswanath Somadder and Dr Y. K. Srivastava, JJ. dismissed the present appeal since this was not a case where decision of the Medical Board was arbitrary, capricious or in violation of recruitment rules hence the court found no infirmity in the impugned order.

The issue was whether production of a subsequent medical examination report by the appellant-writ petitioner will override or set at naught, the medical opinion of the Regional/District Medical Boards, which show that the appellant-writ petitioner was suffering from an ailment in the left ear and accordingly was assessed unfit. The advocate for the appellant placed reliance upon a Single Bench decision of the High Court in order to contend that a fresh Medical Board ought to be directed to be constituted to re-examine the appellant.

The Court was of the view that petitioner failed to show that the medical opinion of the respective Medical Boards brought on record were doubtful as compared the medical report/opinion relied upon by the petitioner as all the medical opinions declare the petitioner that he is suffering from ailment in the left ear. The Court, emphasising the need for caution and circumspection, discussed the judgment in Union of India v. Parul Punia wherein it was stated:-

“9. …. In the present case the proper course would have been to permit an evaluation of the medical fitness of the respondent by a review medical board provided by the appellants. Otherwise, the recruitment process can be derailed if such requests of candidates who are not found to be medically fit for reassessment on the basis of procedures other than those which are envisaged by the recruiting authority are allowed. This would ordinarily be impermissible.”

The Court held that in cases where a recruitment process has been carried out as per prescribed statutory rules where under a procedure has been prescribed for testing the medical fitness of candidates by a duly constituted Medical Board, the report of the Medical Board is not to be normally interfered with, and that too, solely on the basis of a claim sought to be set up by a candidate on the basis of some subsequent report procured by him from a private practitioner. Since this is not the case of the petitioner that the decision of the Medical Board was arbitrary, capricious or not in accordance with the procedure under the relevant statutory recruitment rules, hence, there is no infirmity in the impugned order and the appeal stands dismissed. [Vivek Kumar v. State of U.P., Special Appeal Defective No. 117 of 2020, decided on 13-02-2020]