Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and B. V. Nagarathna, J. referring to it’s earlier order dated 13-04-2020 addressed the present petition and certain significant issues in the view of COVID 19 situation have been noted with regard to compliance of the same.

With regard to Non-Governmental Organisations (NGO) supplying food and rendering the services, a circular has been issued by the  Principal Secretary, Rural Development and Panchayat Raj, Government of Karnataka, and Member of the Committee directing all the Deputy Commissioners to co- ordinate the activities of NGOs for COVID-19 and also the volunteers at the district level and municipal level. 

Nodal officers at the district level to be appointed to co-ordinate with the NGOs and to identify  a lead NGO to co-ordinate with other NGOs was stated in the Circular issued by the Principal Secretary, Rural Development and Panchayat Raj Department on 15-04-2020.

Individual willing to supply food, either cooked food or in the form of ration kits are also plenty in number in the State. 

Court asked the State Government to create a machinery or mechanism so that the individuals could submit their willingness to provide cooked food and ration kits.

“Government must come out with an appropriate mechanism so that maximum advantage can be taken by the Government of those individuals who are willing to provide food.”

Plight of people belonging to the vulnerable sections of the society and marginalized sections of the society which consists of migrants, homeless persons, destitutes, sex workers, etc. who do not have a shelter, was considered.

For the above, it was stated that State Government has taken a policy decision that unless a person produces a ration card issued by the State Government or any other State, rations will not be provided through the public distribution system.

Another policy decision was with regard to vulnerable poor households and migrant workers with shelter would be provided dry ration or cooked food, as the case may be. State Government for the said stated that, identification of the people needing food or shelter or both would be done by the Revenue Department with the support of the respective Gram Panchayats or the respective local bodies in the districts.

State needs to elaborate on the quantum of dry ration or cooked food. State Government will also have to co-ordinate with the suppliers of LPG Cylinder so that provision for supply of dry ration becomes really effective.

On the above aspect, State Government must respond on the next date.

“… task of identification of those people who are in need of food must be undertaken by the State and other authorities/instrumentalities on a war footing.”

Further the Court noted that, BBMP has not evolved any mechanism to identify vulnerable sections of the society. The response received from them was that Marshals have been deployed but how many such people have been so far identified cannot be told yet.

Even after 22 days of lockdown, BBMP did not come out with any plan to identify the vulnerable sections of people. Thus, State government is directed to immediately step in and ensure that BBMP complies with its statutory obligations as well as the obligations under the directions issued contained in Circular dated 11-04-2020.

Further, the Bench directed the State government to co-ordinate with BBMP officers and submit a detailed report about the compliance made by BBMP with the directions in the Circular dated 11th April, 2020.

“Considering the seriousness of the situation within the city, now the State Government must step in.”

State Government will take a serious note of the fact that even after completion of 22 or 23 days of lockdown, BBMP has no plan or no scheme in place to identify the vulnerable sections of people to whom the BBMP was under an obligation to extend relief as provided in the Circular dated 11th April, 2020.

Lastly, extending the period of one month contained in directions (i) to (iii) of its order dated 24th March, 2020, the High Court directed that now the interim orders, bail orders due to expire will operate till 5th June, 2020. Also, eviction/dispossession/demolition orders already passed will remain in abeyance till 5th June, 2020.[Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 425 , decided on 16-04-2020]

Case BriefsSupreme Court

Supreme Court: Holding that non­governmental organisations substantially financed by the appropriate government fall within the ambit of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005, the bench of Deepak Gupta and Aniruddha Bose has held,

“If NGOs or other bodies get substantial finance from the Government, we find no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not.”

Noticing that the RTI Act was enacted with the purpose of bringing transparency in public dealings and probity in public life, the Court said that while interpreting the provisions of the RTI Act and while deciding what is substantial finance one has to keep in mind the provisions of the Act.

On the issue relating to what constitutes ‘substantial finance’, the Court said ‘substantial’ means a large portion. It does not necessarily have to mean a major portion or more than 50%.  No hard and fast rule can be laid down in this regard.  Whether an NGO or body is substantially financed by the government is a question of fact which has to be determined on the facts of each case. There may be cases where the finance is more than 50% but still may not be called substantially financed.

“Supposing a small NGO which has a total capital of Rs.10,000/­ gets a grant of Rs.5,000/­ from the Government, though this grant may be 50%, it cannot be termed to be substantial contribution. On the other hand, if a body or an NGO gets hundreds of crores of rupees as grant but that amount is less than 50%, the same can still be termed to be substantially financed. “

Another aspect for determining substantial finance is whether the body, authority or NGO can carry on its activities effectively without getting finance from the Government. If its functioning is dependent on the finances of the Government then there can be no manner of doubt that it has to be termed as substantially financed.

[DAV College Trust and Management Society v. Director of Public Instructors, 2019 SCC OnLine SC 1210, decided on 17.09.2019]

Case BriefsHigh Courts

Delhi High Court: Observing that the trial court, in the present case, did not seem to be alive to realities, Sanjeev Sachdeva, J. quashed an order whereby the accused-respondent (father of the prosecutrix) was discharged of the offence punishable under Sections 354 (outraging modesty of a woman) and 376(2)(f) (punishment for rape committed by a relative, guardian, teacher or person in position of trust or authority of a woman) IPC.

The trial court discharged the accused as he was blind and the allegations made against him were not specific. Also, the prosecutrix did not raise alarm when she had opportunities and did not file any complaint all this while. It is pertinent to note that the parents of the prosecutrix were divorced and as per the prosecutrix, she did not even remember as to when sexual assaults started to be committed upon her by her father. In the present complaint, she mentioned about incidents which happened when she was the age of 6 years old upto the age of 13-14 years old. She was 18 years old at the time of filing of the complaint. She mentioned that it was only when she was taught sex-education in her hostel, that she came to realise that she was being sexually assaulted. She then talked about it to her friend, who advised her about her options and thereafter they got in touch with an NGO.

The High Court noted that the prosecutrix had given a detailed description of the manner in which she was assaulted by the accused. It was observed: “A child who is subjected to sexual abuse and assault from a tender age of 6 and which assault continues till she is 14 years of age, would not even be aware that she is being abused or any offence is happening. The prosecutrix in her statement has stated that she was not aware of the abuse and became aware only when she grew up.”

Commenting on the flawed approach of the trial court, it was stated: “Trial court has erred in not appreciating that the accused is the father of the prosecutrix and was in a dominating position and keeping in the view the relationship, it would not be abnormal for the prosecutrix not to make a complaint against her own father. The reasoning given by the Trial Court is completely perverse and contrary to record.”

Satisfied that the allegations raised gave suspicion against the accused of having committed the alleged offence, the High Court allowed the present petition of the State which was filed after elucidating opinions from the Additional Public Prosecutor, the Chief Prosecutor, the Director of Prosecution, the Principal Secretary (Law and Justice) and also the Law Minister. The matter was remitted to the trial court for framing of appropriate charges against the appellant. [State (NCT of Delhi) v. X, 2019 SCC OnLine Del 7913, decided on 02-04-2019]

Case BriefsHigh Courts

“This is my time to sing, dance and play. This is my time to be happy. This is my time. Give it back to me.”

Sikkim High Court: The above-quoted word of Bhaskar Raj Pradhan, J., set the undertone of this judgment delivered by him. The facts of the present case disturbed the judicial mind of the Court and persuaded it to direct the Registrar General to place the judgment and record of the case before the Chief Justice to consider taking up the issue on the judicial side.

The appellant had filed an appeal against the Judgment of the trial court whereby he was convicted for commission of an aggravated sexual assault on a hapless 7-year old minor child. The appellant was the victim’s uncle. Having found the case sufficiently proved beyond reasonable doubt by the evidence of the minor victim along with her two minor siblings, the High Court upheld his conviction.

What appeared from the facts of the case was that the mother of the children had left the home. The uncle who was called in to take care of them had been convicted for sexual assault. Not only this, their father too had been convicted for commission of an aggravated sexual assault on the minor victim. The children were staying in different NGOs. After noting that the Special Judge had directed the payment of Rs 1 lakh as compensation under Sikkim Compensation to Victims or his Dependents Scheme, 2011, the Court noted several disturbing questions that remained unanswered: “It is quite obvious that the minor victim and her two minor siblings are all lodged in different homes run by NGO’s. No relatives seem to have come forward to take care of them. The father stands convicted. The mother is nowhere around the children when they need her the most. How long do these children remain in such homes? Are these homes best equipped to take care of the “best interest” of these children? Do these children have any choice of a better alternative? What is the role and responsibility of the State towards these children – all victims of crime who have been subjected to such cruelty?”

“Is enough being done? How do we better this unhappy situation?” This was the thought which disturbed the judicial mind and persuaded Justice Bhaskar Raj Pradhan to pass the aforestated directions. [Krishna Bahadur Chettri v. State of Sikkim, 2019 SCC OnLine Sikk 22, dated 01-04-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. hearing an application under Section 482 of the Code of Criminal Procedure, 1973, quashed the cognizance taken against the petitioner holding that the subject dispute was purely a civil dispute.

Chairman of an NGO named Bharat Bharati (Educational) Service Institution, instituted a complaint case against the petitioner (Managing Director of the said NGO) alleging non-disbursal of funds received by him from the central government in lieu of certain jobs done by the NGO for the forest department of the State. Cognizance of the said case was taken under Sections 406, 420, 467 and 120(B) of the Penal Code, 1860. Aggrieved thereby, the petitioner moved this Court under Section 482 of CrPC praying for quashing of the learned Magistrate’s order.

The Court observed that a purely civil dispute with regard to the distribution of money among the office bearers of the concerned NGO could not be said to be in the nature of any criminal offence as it was a pure and simple money dispute among the office bearers of the said NGO.

It was opined that where a person is aggrieved by non-payment of money, the only remedy available is under common civil law by way of filing a money suit. Reliance, in this regard, was placed on the judgment in Indian Oil Corpn. v. NEPC India Ltd, (2006) 6 SCC 736 where the practice of settling civil disputes by applying pressure through criminal prosecution was deprecated.

In view of the above, it was held that the institution of complaint case against the petitioner was the abuse of process of the court, and petitioner’s application was allowed.[Rameshwar Prasad Sinha v. State of Bihar, 2019 SCC OnLine Pat 48, Order dated 15-01-2019]