Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In an appeal relating to the grant of anticipatory bail for the commission of offences under Sections 452, 506(ii) and 195-A of the Penal Code, 1860 as well as under Section 3(2)(va) of the Scheduled Tribes (Prevention of Atrocities) Act, (SC/ST Act) 1989, A. Badharudeen, J. has observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered and when considering the question of prima facie case for considering bail application, the knowledge shall be understood and inferred from the prosecution records.

The Court noted that the prosecution allegation is that the accused persons/appellants who are not members of Scheduled Caste or Scheduled Tribe community, criminally trespassed upon the house of the complainant, who belonged to the said community on 08.07.2022. and threatened her with dire consequences, if she would not be abstaining from proceeding with the Sessions trial pertaining to the death of her son. Further, apprehending arrest in the above case, one of the appellants filed bail application seeking pre-arrest bail before the Special Court, and the Court dismissed the said bail application referring to Section 18 and 18-A of the SC/ST Act.

The Court dealt with the following questions in the present appeal:

(i) Whether grant of anticipatory bail is specifically barred in cases involving commission of offences under the SC/ST Act, 1989 and to what extent relaxation to Section 18 and 18-A of the SC/ST Act is permissible?

The Court took note of the ruling in Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 , wherein the Court held that “the scope of Section 18 of the SC/ST Act read with Section 438 of the Code of Criminal Procedure is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out” and observed that Section 18 of the SC/ST Act provides that nothing in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving the arrest of any person or accusation of an offence committed under this Act.

It further took note of the ruling in Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521, wherein the Court held that “the High Court has not given any finding in the impugned order that an offence under the aforesaid Act is not made out against the respondent and has granted anticipatory bail, which is contrary to the provisions of Section 18 of the aforesaid Act as well as the aforesaid decision of this Court in Vilas Pandurang Pawar case. Hence, without going into the merits of the allegations made against the Respondent, we set aside the impugned order of the High Court granting bail to the respondent”.

The Court also observed that after the ruling in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 , SC/ST Act was amended, and Section 18-A got incorporated in the Act which provides that a preliminary enquiry shall not be required for registration of a first information report against any person; or the Investigating Officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation has been made and no procedure other than that provided under this Act shall apply. Further, Section 18(2) provides that the provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any court.

The Court further took note of the decision in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 and observed that the law is well settled that even after incorporation of Section 18-A there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, the Court has the power to grant anticipatory bail if the prosecution allegations do not make a prima facie case.

Thus, there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, provided there is no prima facie case.

(ii) How the word `knowing’ in Section 3(2)(va) of the SC/ST Act to be understood?

The Court observed that, by reading Section 3(2)(va), it is emphatically clear that commission of offences specified in the schedule would attract an offence under Section 3(2)(va) of the SC/ST Act, and to attract the said offence, commission of the offences punishable under the IPC, shown in the schedule, should be committed by the accused against a member of the SC/ST knowing that such person is a member of a SC/ST.

The Court further viewed that, now the question is, how the word “knowing”, in Section 3(2)(va) of the SC/ST Act to be understood, and referred to Section 8(c) of the SC/ST Act, which provides that “if the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved”. Thus, it was observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered. When considering the question of prima facie case for the purpose of considering plea of bail during investigation and the period before trial, the knowledge shall be understood and inferred from the prosecution records.

The Court also viewed that on examination of the schedule in the SC/ST Act, Section 506 of IPC is an offence in the schedule and therefore commission of offence under it would attract an offence under Section 3(2)(va) of the SC/ST Act. Further, it was observed that the knowledge of the accused as to the status of the complainant as a member of the SC/ST community could be inferred prima facie from the prosecution materials. Therefore, prima facie commission of offence under Section 3(2)(va) of the SC/ST Act is made out. Thus, in this case Section 18 and 18-A of the SC/ST Act would apply and therefore, anticipatory bail cannot be granted.

[Abbas R.V v. State of Kerala, 2022 SCC OnLine Ker 4713, decided on 23.09.2022]


Advocates who appeared in this case :

Balamurali K.P., Advocate, Counsel for the Appellant;

P.V.Jeevesh, Advocate, Counsel for the Respondent;

Senior Public Prosecutor T.R.Renjith.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal filed under Section 378 of Code of Criminal Procedure (CrPC) against the judgment passed by the trial court, acquitting Mukhtar Ansari of all charges under Sections 353, 504, 506 the Penal Code, 1860 (IPC), Dinesh Kumar Singh, J. has convicted Mukhtar Ansari for offences under Sections 353, 504, 506 IPC and sentenced him to undergo rigorous imprisonment for 2 years with fine of Rs. 10,000/- for offence under Section 353 IPC. Further, for an offence under Section 504 IPC, he is sentenced to undergo rigorous imprisonment for 2 years with fine of Rs. 2,000/- and for the offence under Section 506 IPC, rigorous imprisonment for 7 years with fine of Rs 25,000/-.

In the present case, the complainant was a jailer in the prison where former Uttar Pradesh M.L.A Mukhtar Ansari is a prisoner, in 2003 some people had come to meet Mukhtar Ansari and the complainant ordered for their frisking, on which Mukhtar Ansari got highly annoyed and abused him and took revolver from one of the persons and pointed it towards the complainant and gave him death threats.

The Court observed that Mukhtar Ansari has reputation of most dreaded criminal and mafia don who had more than 60 cases of heinous offences to his credit, and no one can dispute his credibility of striking terror and fear in the minds and heart of the people including the Government officials. Further, during his incarceration in jail, he had committed several heinous offences including elimination of his political rivals, kidnapping/abduction, usurping private and public properties, amassing wealth and properties from proceeds of crime. Even inside the jail, his people would come to meet him without any hindrance created by any jail staff and the warden opened the gate and allowed the people to meet Mukhtar Ansari, out of his fear and terror.

The Court further observed that the complainant did not have any enmity with Mukhtar Ansari, and it appears that he was trying to enforce rules inside the jail and, therefore, ordered that no visitor should be allowed to meet the prisoners unless permission is granted.

It was also observed that one of the witnesses in his examination-in-chief, had said that Mukhtar Ansari got highly enraged by the fact that the Jailer was not allowing visitors who had come to meet him inside the jail without permission and he took out a revolver from one of the visitors who and extended verbal threats of killing the complainant. However, the said witness was not cross examined on 12.12.2003 when his examination- in- chief took place. Thus, the Court accepted the submission of the complainant that when the said witness was influenced by Mukhtar Ansari, an application came to be filed to recall the said witness, which was allowed by Trial Court, and then the witness to some extent did not support the prosecution case in his cross examination.

The Court placed reliance on the ruling in Dayaram v. State of M.P., (2020) 13 SCC 382, wherein it was held that “even if the witnesses were declared hostile during their cross-examination, their testimony, prior to cross-examination can be relied upon” and further took note of the ruling in Ramesh v. State of Haryana, (2017) 1 SCC 529, wherein it was held that “evidence of a hostile witness cannot be totally rejected but requires its closest scrutiny and portion of evidence which is consistent with the case of the prosecution or defence may be accepted”. Thus, viewed that evidence of a witness who has supported the prosecution case in examination-in-chief does not get effaced or washed off the record altogether and in such a situation, it is the duty of the Court to examine the evidence carefully and find that part of evidence which can be accepted and be acted upon. Thus, there is no legal bar for conviction upon the testimony of hostile witness, given in examination-in-chief, if it is corroborated by other reliable evidence.

The Court observed that Criminal case is built on edifice of evidence which is admissible in Law and referred to the decision in Swaran Singh v. State of Punjab, (2000) 5 SCC 668, wherein the Court observed that “criminal cases can be adjourned again and again till the witness gets tired or gives up. Adjournments are taken till the witness is no more or is tired. This results in miscarriage of justice. The witness is not treated with respect in the Court”.

Placing reliance on the ruling in Radha Mohan Singh v. State of U.P., (2006) 2 SCC 450, the Court observed that law is very clear that appellant court should not interfere with the judgment and order of acquittal unless the said judgment is perverse, or the view taken by the learned Trial Court is impossible view. Further, it is well settled that testimony of hostile witness does not get effaced completely and washed off record, and it is for the Court to closely scrutinize the testimony of such witness in the facts and circumstances of the cases and take into consideration while convicting or acquitting the accused on that part of the testimony which supports the prosecution case and can be relied on for convicting the accused.

It was also observed that “the witness who was given threats of life by pointing a revolver by Mukhtar Ansari, has fully supported the prosecution case in all respects in his examination-in-chief. Further, he does not have any enmity with Mukhtar Ansari, and there was no reason to falsely implicate him. Thus, there is no reason to disbelieve his testimony given in examination-in-chief and his testimony in cross examination which takes place after he could have been won over, does not appear to be credible”.

Thus, the Court observed that the Trial Court had completely ignored the evidence of that hostile witness given in examination-in-chief and had only considered his cross examination. Thus, the approach of the trial Court is palpably erroneous and against the well settled legal position, hence, the impugned judgment and order passed by the Trial Court is unsustainable. Further, the complainant was discharging public/official duty on the date, time and place of the incident and as Mukhtar Ansari used criminal force by pointing pistol towards him with intent to prevent and deter the complainant from discharging his duty as a Jailer, therefore, offence of assault or criminal force to deter public servant from discharge of his duties under Section 353 IPC, is clearly proved against Mukhtar Ansari and he is convicted for committing the said offence.

Moreover, Mukhtar Ansari abused the complainant and insulted him knowing that it would undermine the authority of the Jailer and would cause breach of peace inside the jail and outside inasmuch as if a public servant can be humiliated and abused, then authority of public functionary would get diminished, and people would not respect the lawful authority. Therefore, Mukhtar Ansari was also found guilty under Section 504 IPC i.e. intentional insult with intent to provoke breach of the peace, and as Mukhtar Ansari took pistol from a visitor and pointed towards the complainant and threatened him for his life. Thus, he is also guilty for criminal intimidation under Section 506 IPC.

[State of UP v. Mukhtar Ansari, 2022 SCC OnLine All 654, decided on 21.09.2022]


Advocates who appeared in this case:

Counsel for Appellant:- Government Advocate

Counsel for Respondent:- Advocate Abhishek Misra

Advocate Karunesh Singh

Advocate Satendra Kumar

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a bail application filed by the applicant charged under Sections 376-A, 376-B, 354 of Penal Code, 1860 (IPC), Sections 9-D and 10 of Protection of children from sexual offences, 2012 (‘POCSO Act’), and Section 3(2)(v) of Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act), Sadhna Rani Thakur, J. has without expressing any opinion on the merit of the case, released the applicant on bail subject to some conditions.

The Court noted that on the perusal of the First information report (FIR), it appears that in the absence of other family members, when the eight years old victim was alone at her home, she called the applicant to repair the dish connection, seeing the girl alone at her home, he started vulgar activities with her. In the statement under Section 161 of Code of Criminal Procedure, 1973, the victim has stated that when applicant came in the house to repair the dish connection, seeing the girl alone, he inserted his hand in her clothes and kissed her on lips. However, as per statement under Section 164 CrPC of the victim, the applicant after repairing the dish connection held her tightly and kissed on her lips, inserted his hand into her panty and also pressed her breast by inserting her hands therein.

The applicant submitted that there are no ingredients of Section 376 IPC as per the statements of the victim under Sections 161 and 164 CrPC. Further, no medical examination has been conducted as the parents of the victim refused to get her daughter medically examined. Moreover, the father of the victim is police personnel, and the FIR is only the misuse of that power. The applicant is 50 years of age and has been in jail since 13.04.2022.

The Court considering the seriousness of the charge, severity of punishment in case of conviction, the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India, and the decision in the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22 and without expressing any opinion on the merit of the case, released the applicant on bail subject to certain conditions.

[Manoj Saxena v. State of U.P, 2022 SCC OnLine All 624, decided on 2.9.2022]


Advocates who appeared in this case :

Umesh Pal Singh, Advocate, Counsel for the Applicant;

Government Advocate, Counsel for the Opposite Party.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, CJ and S. Ravindra Bhat and PS Narasimha, JJ has granted bail to Journalist Sidhique Kappan after considering the length of custody undergone by him ever since he was taken in custody on 06.10.2020. It is important to note that, last month, the Allahabad High Court had rejected his bail plea.

The Kerala journalist was arrested under the Unlawful Activities (Prevention) Act on his way to Hathras, Uttar Pradesh to report on the alleged gang-rape of a Dalit woman, who later died in the Hospital. He has been booked under Sections 153A, 295A, 120B of the Indian Penal Code, Sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 and sections 65 and 72 of the Information and Technology Act, 2000. While the charge-sheet has already been filed on 02.04.202, the matter has yet not been taken up for consideration whether charges need to be framed or not.

While the Court refrained from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter is still to be taken up at the stage of framing of charges, it directed that Kappan be produced before the Trial Court within three days; and that the Trial Court shall release him on bail, subject to such conditions as the Trial Court may deem appropriate to impose to ensure Kappan’s presence and participation in the matter pending before it. Apart from this, Kappan shall either in person or through a lawyer attend the proceedings before the trial court on every single date. He will also deposit his passport if not already deposited with the investigating machinery before his actual release.

The Court also imposed the following conditions on Kappan while releasing him on bail :

  1. For the first six weeks, Kappan has to stay in Delhi and within the jurisdiction of Nizamuddin police Station. He cannot leave Delhi without express permission of the trial court; He also has to record his presence in the concerned police station every Monday in a register maintained for the purpose.
  2. After six weeks, he may go back to his native place and stay at Mallapuram in Kerala but shall report at the local police station on every Monday and mark his presence in the register maintained in that behalf.

[Sidhique Kappan v. State of Uttar Pradesh, Crl.A. No.-001534-001534 / 2022, order dated 09.09.2022]


For Sidhique Kappan: Senior Advocate Kapil Sibal

For State: Senior Advocate Mahesh Jethmalani

Also Read

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a case related to allegation of murder and rape of a 12th standard school-girl, G.K.Ilanthiraiyan, J. viewed that there is no evidence to attract the offence under rape and murder and on perusal of the suicidal note of the deceased, it is very clear that the deceased felt difficulties in studies. Therefore, it is a clear case of suicide by her.

The Court observed that:

“It is an unfortunate and sorry state of affairs that the teachers who teach the students are facing threat from their students and their respective parents. It is very unfortunate that the petitioners have now been arrested and under imprisonment for advising the students to study well. Even as per the suicidal note, there is no evidence to show that the petitioners instigated the deceased to commit suicide soon before her death”

In the present case the deceased studied in 12th standard at Sakthi Higher Secondary School as a day scholar. Thereafter, she was boarded in the hostel of the said school. On 13.07.2022, the parents of the victim girl received a phone call from the school and were informed that the victim jumped from the third floor of the hostel. After 30 minutes, the parents received another call and were informed that their daughter died, and her body was kept in the Government Hospital. Thereafter the parents of the deceased verified the place of death and found that there was no evidence to show that the deceased jumped from the building,thus, her parents suspected the school authorities with regards to their daughter's death and lodged a complaint.

The FIR was initially registered under S.174 of the Criminal procedure Code, 1973 and was later altered to the offence under S. 305 of the Penal Code, 1860 and S. 75 of Juvenile Justice (Care and Protection of Children) Act, 2002 and S. 4(B)(ii) of Tamil Nadu Prohibition of Harassment of Women Act, 2002 against five accused persons.

The Court observed that the parents of the deceased compelled her to continue her studies in Residential School and the statements of the classmates of deceased revealed that the deceased felt difficulties in solving equations in Chemistry, further, as per the suicide note also, the deceased felt difficulties in solving the equations in Chemistry. Moreover, she requested the correspondent and Secretary in the suicidal note to return the tuition fees as well as the book fees to her parents. Therefore, it is a clear case of suicide and there is absolutely no evidence to show that the petitioners had instigated the deceased to commit suicide as alleged by the prosecution.

Placing reliance on the autopsy reports and expert opinion, the court observed that “the other injuries found on the body of the deceased are all ante-mortem injuries and there is no iota of evidence for rape and murder of the deceased as per the postmortem reports”. It further observed that the mark found in the right breast of the deceased happened due to gravel injuries, the blood stain in the inner garments is due to the extravasation of blood in the surrounding para vertebral muscles. Further, there is no injuries found on her private parts.

The Court observed that “when the teachers are directing their students to study well and to tell the derivation or equation, it is part and parcel of the teaching, and it would not amount to abetment to commit suicide. Therefore, the offence under S. 305 of Penal Code is not at all attracted as against the petitioners”, hence, bail was granted to all the petitioners.

[Kiruthika Jayaraj v. State of Tamil Nadu, Crl.O.P.Nos.20088,20135 and 20406 of 2022, decided on 26.08.2022]


Advocates who appeared in this case :

S.Prabakaran, Advocate, for the Petitioners;

Public Prosecutor Hassan Mohammed Jinnah and Additional Public Prosecutor A.Damodaran, Advocate, for the Respondent.

Fundamental Rights
Experts CornerSwarnendu Chatterjee

Introduction

In 2002, the Prevention of Money Laundering Act (PMLA) was passed. Numerous references to crimes involving drugs and other illegal substances, terrorism, corruption, and other organised crimes may be found in the statement of aim. Large volumes of the proceeds of such crimes are frequently laundered internationally, which has a negative effect on the financial systems of nations. Thus, the Act was created, which aims to seize the proceeds of certain crimes and penalise those who deal with them.

The Act’s requirements are enforced by the Directorate of Enforcement (ED), a financial investigation organisation within the Department of Revenue of the Union Government. The ED is authorised to issue summons, obtain statements, make arrests, conduct searches, and take property in order to conduct investigations. Despite possessing investigative authority, the ED is not considered a “police agency”. This holds true for additional specialised organisations as well, such as the Serious Fraud Investigation Office (SFIO) and the Directorate of Revenue Intelligence (DRI), which are permitted to look into economic offences by other laws.

These organisations are not required to abide by the Code of Criminal Procedure, 1973 (CrPC).

It should be noted that nearly 200 petitioners questioned the authority of these specialised investigation teams that focus on financial crimes. The earliest pending petitions date back to 2014. The PMLA was the subject of more than 80 of these petitions. These included applications submitted by various politicians accused of money laundering, including former Jammu and Kashmir Chief Minister Mehbooba Mufti, former Punjab MP Sarwan Singh Phillaur, and Lok Sabha Member Karti P. Chidambaram.1

Thus, in light of these considerations, it would be this author’s aim to understand the evolution of the law relating to bails in India and its interference with fundamental rights.

Constitutionality of the procedure for granting bails in India

P. Chidambaram INX Media case2

In the so-called case, a business called INX Media contacted the Finance Ministry in March 2007 about the issuance of equity and preference shares priced at Rs 10 each, which were to be owned by three non-resident investors. The request was granted by the Finance Ministry’s Foreign Investment Promotion Board (FIPB). Total foreign funding of Rs 4.62 crores was scheduled to be given to INX Media. Another request for downstream foreign fund investment made by INX Media was turned down by the FIPB and was made to its subsidiary, INX News Pvt. Ltd. The corporation continued to collect foreign funds worth Rs 305 crores in contravention of the FIPB ruling, and it also invested money in INX News.

Two investigations into the INX Media case3 have been conducted: one by the Enforcement Directorate and one by the Central Bureau of Investigation (CBI). In the CBI’s case against Chidambaram, the issue of bail centered on the “triple test”, or whether there were concerns that the defendant may flee, tamper with the evidence, or influence witnesses. The courts had to decide whether the “gravity of the offence” should be a criterion in denying an accused person’s right to bail in the ED case, which also contended that the senior Congress politician should not be allowed bail.

Lastly, this implies that the Delhi High Court decided to reject bail because it found the claims of official favouritism, corruption, and money laundering to be troubling enough. The Supreme Court has observed that while the seriousness of an alleged offence might be taken into consideration as one factor, it cannot stand alone as a legal concept and must be assessed in each case individually. The Bench also addressed Solicitor General Tushar Mehta’s claim that since the ED has not yet finished gathering all of the necessary material, it is possible that Chidambaram will influence additional witnesses in the future.

Surprisingly, the highest court has instructed Chidambaram to refrain from speaking publicly or participating in news interviews about the INX Media case4, which involves him or any other co-accused. In addition to a few other conditions, like getting permission before travelling abroad and helping with the inquiry as needed, this is a requirement of his bond. Senior attorneys who specialise in criminal law have called the gag order “uncommon” and noted that it has only occasionally been issued in the past. Other legal professionals, however, pointed out that the Madras High Court had followed a similar procedure when granting bail to Nirmala Devi, the main suspect in the Madurai Kamaraj University Sex-for-Cash case5.

After analysing the INX Media case6, it would be imperative to understand the Satender Kumar Antil judgment7, which will enable us to further put things in perspective.

Satender Kumar Antil v. CBI

In the recent Satender Kumar Antil v. CBI decision,8 the Supreme Court clarified when bail should be granted in situations when the accused was not in custody at the time the chargesheet was filed. In some cases, where a person is later arrested despite not being arrested during the inquiry simply because it is over, the judgment prevents needless harassment. Satender Kumar Antil was accused of demanding a bribe while working as an Assistant Provident Fund Commissioner at the regional office of the Employees Provident Fund Organisation, Noida, according to a chargesheet filed by the Central Bureau of Investigation (Anti-Corruption Branch), Ghaziabad, under Section 120-B of the Penal Code (punishment of criminal conspiracy) and Section 7 of the Prevention of Corruption Act (offence relating to public servant being bribed). Throughout the investigation, he was not detained. The trial court acknowledged the chargesheet and sent summons for Antil to appear in court.

When he did not show up, a warrant that could be released on bond was issued, and when he did not show up for the trial court again, a non-bailable warrant was issued. Antil requested anticipatory relief from the Allahabad High Court after fearing arrest, but it was denied since he had not appeared before the trial court and was working as an Assistant Provident Fund Commissioner in the relevant office at the time the bribe money was seized. He filed a special leave petition with the Supreme Court in opposition to this order dated 1-7-2021.

Further, even when two requirements were met—that they were not jailed during the investigation and that they cooperated with the investigating agency—the Supreme Court found it challenging to approve the routine practice of sending the accused to jail. The rules were established in three stages. Guidelines were provided that took into account the two circumstances and divided the offences into four different groups. The four categories are: (a) crimes punishable by imprisonment for a period of seven years or less that do not fall under category (b) or category (d); (b) crimes punishable by death, life in prison, or incarceration for a period exceeding seven years; and (c) crimes punishable by special Acts with strict bail requirements, such as the PMLA, the Narcotic Drugs and Psychotropic Substances Act, 1985.

It could be argued that the repercussions of the same, when analysed could be elaborated are as follows:

  1. The ruling brings to light a number of long-standing issues, including the overcrowding of jails with undertrial inmates who should not have been detained in the first place, the colonial mentality of investigating authorities, the disregard for rules like “bail is the rule while jail is the exception”, and more. Whether or not the judgment is followed will be the true litmus test.
  2. This is not the first instance in which the police and lower courts have disregarded required bail standards established by the Supreme Court. The Supreme Court’s decision in D.K. Basu v. State of W.B.,9 which gave specific criteria for arrest and detention, is an example of a landmark judgment that only exists on paper and is primarily intended for scholarly consideration.
  3. Similar to this, although being restated in the current ruling and set forth in Arnesh Kumar v. State of Bihar,10 the rules are often disregarded. “Bail is the rule, jail is the exception”, a well-liked legal tenet established by the Supreme Court in State of Rajasthan v. Balchand,11 but hardly ever put into practice. Examining the Satender Kumar Antil12 provisions, which the Supreme Court has repeatedly reaffirmed but which are rarely followed, is crucial in light of the past precedents that were disregarded.
  4. The Judge’s discretion is one of the main causes of the non-compliance with bail regulations. The fundamental goal of bail is occasionally defeated because Judges are often guided by their own individualised sense of justice.

The judgment under discussion serves as an important precedent for the Vijay Madanlal Choudhary case13 i.e. the recent judgment on bails and their relevance vis-à-vis fundamental rights, which will be discussed further below in order to paint a clear picture of the judiciary’s recent stance on the same.

Vijay Madanlal Choudhary v. Union of India (the PMLA case) and fundamental rights

Historically, the presumption of innocence typically granted to accused parties under criminal law is removed under Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA)14. The accused must establish beyond a reasonable doubt that they are innocent and convince the court that they will not commit another crime before being granted bail.

On July 22, the Supreme Court of India upheld a number of provisions of the Prevention of Money Laundering Act, 2002, including those that deal with the Enforcement Directorate’s authority over arrest, attachment, search, and seizure in a 545p. decision in Vijay Madanlal Choudhary v. Union of India15. As a result of this decision, the ED is now free to continue using a number of audacious authorities while conducting their investigation. The PMLA’s “dual bail requirements” are at the heart of this case. These powers can be broadly classified into two categories:

  1. The ability to make an arrest.

  2. The ability to attach property and conduct a search or seizure of any property used in money laundering.

And the four main issues with the verdict are as follows:

(i) Those that relate to ED’s power to arbitrarily attach and seize property of both accused and witnesses, which is directly at odds with Article 300-A of the Constitution (right to property).

(ii) Those that relate to ED’s ability to make arrests without the enforcement case information report (ECIR) and the difficulty of obtaining bail under Section 45 of the PMLA (twin conditions).

(iii) Those that relate to ED’s ability to conduct investigations without adequate restraints and submit statements recorded by other parties.

(iv) Issues relating to the burden of proof placed on the accused in court actions to seize property and in criminal cases involving money laundering.

It would be quintessential to elaborate on these issues in order to understand the debate at hand.

Attachment and seizure of property

A person’s movable or immovable property may be frozen or attached by the ED under the current Act, if it believes that the property is being used for money laundering or is “proceeds of crime”. The adjudicating authority must affirm any such order made by the ED. The property will remain attached upon the adjudicating authority’s confirmation of such attachment throughout the course of the money laundering case’s criminal court trial. Nevertheless, it is more challenging to have the property detached at the judicial level because it is the accused’s responsibility to demonstrate that the property attached does not constitute the proceeds of crime.

The difficulty that arises is that if someone’s property is attached, they may not be able to utilise it for six to seven years because the trials also tend to linger for lengthy periods of time. Even if they are found not guilty, it is possible that the State would appeal the ruling, at which point the higher court may decide to stay the lower court’s ruling. In conclusion, it may be numerous years before someone receives their property back. There are two provisions in the PMLA that deal with property: either you can search and take someone’s property (Section 17 of the PMLA) or you can attach (Section 5) the property. The ED typically has to note justifications for thinking the property is involved in money laundering in this situation. But in the absence of an ECIR mandate, there is no requirement to keep a written record of the entire inquiry, making it very simple for the investigating authority to just give some general justifications without connecting them to the specific offence under investigation. For instance, there is room for the ED to intervene if a scheduled offence has been committed in which person A has defrauded person B of Rs 1 crore. On the excuse that they just have reasons to suspect that person A has moved the money to his family members, the ED also has the authority to simply show up and seize the whole bank account of every member of person A‘s family.

How can one seize someone’s property for such a long time without providing adequate protections for the ED was one of the arguments brought up in the Supreme Court. Furthermore, it is arbitrary and unfair under Section 24 to place the burden of evidence on the owner of the attached property.

Therefore, the courts were required to intervene because of the way the property was attached and detained with the ED for such a long time under Section 17 or Section 5 of the PMLA. However, the courts stayed out of it. Instead, they merely refuted the assertion that there were not enough protections in place before approving the attachments. The ED can currently attach four residences owned by a person and ten of their properties; it just needs to establish prima facie that there is some semblance of a relationship with the primary offence. This renders the accused individuals and property owners helpless. The onus therefore falls entirely on that person to demonstrate that there is no real relationship.

In these situations, parties that have engaged in a legitimate transaction with a person who is afterwards accused of money laundering will find it challenging to prove that the money they received was unaware of it being proceeds of crime. The ED, not a regular individual, should be proving the illegality in that situation. And it gets worse for those who fall under the second sub-clause of Section 24, which in essence covers everyone. Even an accused party is not required. This directly contravenes the right to property under Article 300-A of the Constitution. Even while it may no longer be a fundamental right, it is still a constitutional right, and constitutional rights must be protected in some way. It has a position in the Constitution because of this.

Looking into arrests — Contravening the right to property

The PMLA disregards the right to property as well. The court has ruled that it is not required to record an ECIR. This appears to go against the established rules of criminal law, where it has been observed that some type of document, which provides details of the offences that an accused is suspected of committing, must be documented by the investigative agency. Without such a document, the accused faces the possibility of being charged without having a fair opportunity to defend himself.

However, even if the ECIR is not registered, ED still has the authority to detain and arrest that person. Add that to the challenges an accused faces when requesting bail in a PMLA case. A court may only issue bail if it is convinced that there are reasonable grounds to believe that the accused is not guilty of the alleged crime and that he is not likely to commit another crime while out on bail, according to Section 45 of the Act’s “twin requirements”.

As a result, anyone who has been detained and requests bail from the court must now demonstrate that it is unlikely both that he has committed money laundering and that, should he be released on bond, he will conduct another crime. Given that the accused does not even possess a copy of the ECIR (if one has been registered at all), it is challenging to convince a court that he has not engaged in money laundering because he is not even aware of the full extent of the accusations made against him.

The remedies open to a person are severely constrained if the ECIR is not recorded, as gaining bail is extremely challenging because only the grounds of an arrest must be given to the accused, and those grounds may be very vague and not include specifics of the offences that have been charged. If an ECIR copy had been made accessible, the accused may have demonstrated to the court that there is no evidence to support his bail request. Additionally, just like in FIRs, the accused may contest the legitimacy of the entire ECIR under Section 482 CrPC.

Room for numerous incriminating evidence

The PMLA’s provision for recording self-incriminating testimony while an inquiry is ongoing is another significant flaw in it. A person’s testimony may be impacted by a number of factors while giving a statement to the ED, such as lack of knowledge of one’s role in the case (they may assume they will remain witnesses and learn later that they stand in the role of an accused), fear, or coercion, but unlike in police investigations, all statements recorded by the ED are admissible as evidence in a court of law.

The court ruled that Article 20 only applies to accused persons and those who are summoned are not in the role of an accused. Petitioners had argued against the applicability of this article, claiming it violates Article 20 of the Constitution (protection against self-incrimination).

The issue with that logic is that the ED process is so opaque that even if someone is a prime accused in the case, they would not know it when they are called for questioning because they will not be given access to even a copy of the ECIR.

As a consequence, an accused person will be treated on an equal footing with a simple witness and may be asked to testify against themselves, which will be used against them at the trial stage. To give the PMLA a harmonic structure with the privilege against self-incrimination, the court should have added some protections. The same may have been accomplished by ruling that, despite the admissibility of any other testimony, any confession obtained from a witness under Section 50 of the PMLA shall not be included in evidence against him. But the highest court did not offer any such exception.

Burden of proof and other related issues

The burden of proof issue, which we briefly discussed in the lines above, is yet another major issue with the Act.

According to the Supreme Court’s ruling, ED must first demonstrate that you are the target of a prima facie case while charging you. However, under criminal law, where the court has said that the burden of proof will always be on the prosecution (and not just in proceedings before the adjudicating authority), merely establishing a prima facie case is insufficient to transfer the burden of proof to the accused. Because your life and freedom are in jeopardy according to criminal law.

A case that seems strong on the surface is called prima facie. At the very least, the burden of proof in money laundering cases, when a sentence of up to 10 years in prison is possible, should remain with the prosecution. Additionally, the Supreme Court has contrasted Section 24 with other clauses and laws. However, the majority of these additional rules reverse the burden of proof when specific existing facts support doing so.

The burden of proof falls on the accused under the Protection of Children from Sexual Offences (POCSO) Act, 2012, for instance. However, this is because it is an extremely delicate act and the survivor frequently finds it difficult to provide credible testimony, which puts the prosecution at a disadvantage. It is a law that serves society as a whole and for the greater benefit. To preserve the interests of the Act, a shift in the burden of proof is justifiable, but it is unclear how the crime of money laundering should be viewed as one where the prosecution will be unable to prove its case.

In an apparent effort to legitimise the vigorous prosecution and stringent bail conditions, the top court has also contradicted itself by asserting that money laundering is a stand-alone offence. This is due to their assertion that money laundering cannot occur without the presence of criminal proceeds and that a scheduled offence serves as a required prerequisite to the commission of money laundering. Given this apparent contradiction, it is unclear how, despite the fact that money laundering cannot occur without the presence of criminal proceeds, the burden of proof for the scheduled offence falls on the prosecution while it is the accused’s responsibility for the money laundering offence.

Furthermore, given that simple “possession” of the proceeds of crime has been affirmed as a legitimate basis for the allegation of money laundering, how can money laundering in most cases be more serious than the scheduled offence? This implies that even merely possessing the proceeds of crime, without using them, constitutes money laundering. Even in these situations, the money laundering trial will be skewed sharply against the accused as opposed to the trial for the scheduled offence.

In the interesting case of Nikesh Tarachand Shah v. Union of India,16 the Supreme Court ruled that this provision was unconstitutional. In 2018, the Union Government changed the clause. According to the ED, this modification brought the clause into compliance with Nikesh Tarachand Shah17. The petitioners claimed that the change restored the original twin requirements and undercut the judgment. It was argued that Section 50, which authorises the ED to force suspects to make self-incriminating statements under threat of a fine, violates the suspects’ fundamental rights under Article 20 of the Constitution. The petitioners argued that the investigative agencies effectively wield police authority and therefore be required to adhere to the Code of Criminal Procedure at all times. Importantly, because the ED is not a police organisation, any statements made by the accused to ED personnel during an inquiry may be used against him or her in court.

Hence, a three-Judge panel led by Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar upheld all of the PMLA’s contested sections on 27-7-2022. This decision does not address the issue of whether certain revisions to the PMLA could not have been passed by the Parliament via a Finance Act. The ruling of the larger Bench (5 Judges) of this Court in Rojer Mathew v. South Indian Bank Ltd.18 leaves the same open for examination before, during, or after. The term “investigation” in clause (na) of Section 2(1) of the 2002 Act is interchangeable with the duty of “inquiry” to be carried out by the authorities under the Act and does not limit itself to the issue of investigation concerning the offence under the Act. There were two requests for factual reports made throughout the hearing. It was observed that evaluating a statute should take into account more than just the wording of the law and should also take into account how the law is actually applied in practice. The purpose of the first report was to tabulate how frequently people were found guilty under the Act. It came out that this figure was a startlingly low 0.5%. From the perspective of personal freedom, this means that 99 out of 100 people should not have been detained and, even worse, should not have had their bail requests denied. However, this consideration was completely disregarded in the Vijay Madanlal Choudhary judgment19.

The way forward for fundamental rights

According to the Constitution, petitioners may at any time file a petition with the Supreme Court and request a review under Article 137 of the Constitution. After the review, they may also submit a curative petition. These, however, cannot be agitated like an appeal and can only be made on very specific grounds (such as inaccuracy that is obvious from the record alone, etc.). In fact, a review petition was filed by Karti P. Chidambaram and the Supreme Court vide order dated 25-8-2022 was pleased to issue notice in the review petition to the aspect of, (i) the reversal of presumption of innocence qua Section 45(2) of the PMLA; and (ii) non-supply of copy of ECIR.

If the Rojer Mathew20 decision rules against the State, the changes can be invalidated. It is disappointing to see that the court has provided a myopic view on the issues of personal liberty and other fundamental rights, even if the issue there is one of procedure. Of course, the Supreme Court can convene a five-Judge Bench to review this decision, but that is only likely to occur if a subsequent decision conflicts with a significant aspect of this decision (like the Suresh Kumar Koushal v. Naz Foundation21 was revisited and overturned after privacy was held to constitute a fundamental right in K.S. Puttaswamy v. Union of India22).

Nonetheless, it is unlikely that a ruling that merits an immediate reconsidering of the one under discussion will arise anytime soon because the rights diminished by this judgment are already pre-existing fundamental rights.

Lastly, it is hoped that the highest court, through later judgments, at least mitigates the impact of this verdict in order to prevent further harm. The court may issue rulings that limit or restrict the interpretation provided by this one, for instance, when it is dealing with particular instances brought by individuals who are being investigated for money laundering.

Conclusion

In the present case, it would be desirable for the entire court, consisting of nine justices, to convene in order to hear this case due to the broad scope, harsh character of its provisions, and influence on a large number of potential offenders, including leaders of political parties. Smaller Benches of two or three would necessarily present the issue that Judges were allocated according to their individual beliefs and preferences. The best course of action is to have the nine Judges who have served the longest sit in order to hear this case. This maintains a balance of opinions and prevents a Senior Judge from making decisions with little input from far more junior justices. After all, there is safety in numbers and some strength in seniority.

Furthermore, the only inference we can make is that these instances were not appropriate for institutionalisation because the Union Government will not consent to admitting the incompetence of its ED officers and prosecutors. If that is the case, then using the Act for unintended and unrelated purposes certainly suggests itself as a justification for starting these proceedings. If these rules are upheld, it must imply that the continued abuse of harsh laws against civilians is sanctioned by the courts.

The Act’s initial justification was to take action against criminals and the proceeds of their crimes relating to narcotics, terrorism, corruption, and other activities involving large sums of money and that are, by their very nature, detrimental to society globally.

Because it would be appropriate and necessary to subject the offenders and proceeds of such crimes to extraordinary surveillance, regulation, and punishment, if this had remained the exclusive focus, things might have been looked at differently.

Surprisingly, it was discovered that successive Governments led by various political parties had expanded the list of scheduled offences to include a broad spectrum of what would be regarded as “regular” criminal offences. Fraud, forgery, deception, kidnapping, infringement of copyright and trade marks, environmental crimes, and even the immoral trafficking of women are included in this.23

On the other hand, the PMLA eliminates these protections and places the accused at the mercy of an ED without any monitoring or procedure. The executive is free to choose which individuals would be subject to the draconian PMLA restrictions. The executive is unguided and unrestrained; by this, we do not just mean the ED officers, but also—and this is crucial—the political executive, which is in charge of these officers. There is undoubtedly no greater threat to liberty and fundamental rights than having the harshest penalties imposed on the basis of whim, fancy, extortionate motives, or political gain.

Conclusively, the PMLA’s strict provisions were maintained by the Supreme Court, however this weakens several citizen rights and the legal protections against administrative overreach. The panel headed by Justice A.M. Khanwilkar has supported the ED’s authority under the PMLA, ruling that the law’s strict provisions for property attachment and property arrest are both constitutional and free from arbitrary decision-making. Many of the PMLA’s provisions have faced harsh criticism for deviating from acknowledged legal norms and rules established by the court in earlier rulings. Hence, it is still a hope that the future judiciary will take effective steps to remedy this explicit wrong and ease some of the provisions of the draconian PMLA. It is only a hope that the sentinel on the qui vive shall uphold the decision of itself in Nikesh Tarachand Shah24 once the review petitions are heard and a verdict is delivered.


† Advocate-on-Record, Supreme Court of India.

The author acknowledges the work of Arushi Bhagotra, 4th Year — B.A. LL.B (H) — NLIU Bhopal.

1.<https://www.scobserver.in/cases/challenges-to-the-prevention-of-money-laundering-act-vijay-madanlal-choudhary-union-india-case-background/>.

2. P. Chidambaram v. CBI, (2020) 13 SCC 337.

3. (2020) 13 SCC 337.

4. (2020) 13 SCC 337.

5. CRL OP(MD) No. 3744 of 2019

6. (2020) 13 SCC 337.

7. 2022 SCC OnLine SC 825.

8. 2022 SCC OnLine SC 825.

9. (1997) 1 SCC 416 : AIR 1997 SC 610.

10. (2014) 8 SCC 273.

11. (1977) 4 SCC 308 : AIR 1977 SC 2447.

12. 2022 SCC OnLine SC 825.

13. 2022 SCC OnLine SC 929

14. <http://www.scconline.com/DocumentLink/RE7jhkh0>.

15. 2022 SCC OnLine SC 929.

16. (2018) 11 SCC 1.

17. (2018) 11 SCC 1.

18. (2020) 6 SCC 1.

19. 2022 SCC OnLine SC 929

20. (2020) 6 SCC 1.

21. (2014) 1 SCC 1.

22. (2017) 10 SCC 1.

23. <https://thewire.in/humour/in-the-supreme-court-of-erehwon-pmla>.

24. (2018) 11 SCC 1.

SCC Part
Cases ReportedSupreme Court Cases

   

Constitution of India — Arts. 300-A and 31 — Expropriation of private property by State — Compensation — Entitlement: State on ground of delay and laches cannot evade its legal responsibility towards those from whom private property has been expropriated. Right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Art. 300-A. It is cardinal principle of rule of law, that nobody can be deprived of liberty or property without due process, or authorisation of law. When it comes to subject of private property, high threshold of legality must be met, to dispossess an individual of their property, and even more so when done by State. [Sukh Dutt Ratra v. State of H.P., (2022) 7 SCC 508]

Criminal Law — Criminal Trial — Sentence — Principles for sentencing — Victimology — Just punishment — Recognises protection of victim’s right — Right of victim or their near and dear ones to seek enhancement of sentence: Victim’s right (including that of victim’s relations, heir or guardian), is a facet of human rights, a substantive and enforceable right and deserves equal regard. Criminal cannot be treated leniently solely on the ground of discretion vested in court. Victim’s relations, heir or guardian should be treated as victim. [Jaswinder Singh v. Navjot Singh Sidhu, (2022) 7 SCC 628]

Debt, Financial and Monetary Laws — Debt, Debt Recovery and Relief — Sale of debtor’s property — Maintainability of writ petition to set aside auction-sale: Hearing of writ petition challenging the auction-sale is not permissible, when proceedings invoked by petitioner in fora below were themselves found non-maintainable. [Deenadayal Nagari Sahakari Bank Ltd. v. Munjaji, (2022) 7 SCC 594]

Evidence Act, 1872 — Ss. 65-A and 65-B — Admissibility of electronic records — Non-compliance with requirement of certification of electronic evidence: Certificate under S. 65-B(4), Evidence Act is mandatory for production of electronic evidence, oral evidence in place of such certificate cannot suffice. [Ravinder Singh v. State of Punjab, (2022) 7 SCC 581]

Insolvency and Bankruptcy Code, 2016 — Ss. 5(13) and 53 — Claims of workmen/employees towards their wages/salaries during CIRP — Payability of, as CIRP costs: While considering the claims of the workmen/employees concerned towards the wages/salaries payable during CIRP, first of all it has to be established and proved that during CIRP, the corporate debtor was a going concern and that the workmen/employees concerned actually worked while the corporate debtor was a going concern during CIRP. Further, as per S. 5(13) only with respect to those workmen/employees who actually worked during CIRP when the corporate debtor was a going concern, their wages/salaries are to be included in CIRP costs and they shall have the first priority over all other dues as per S. 53(1)(a). Also, any other dues towards wages and salaries of the employees/workmen of the corporate debtor shall have to be governed by Ss. 53(1)(b) and 53(1)(c). [Sunil Kumar Jain v. Sundaresh Bhatt, (2022) 7 SCC 540]

Land Acquisition Act, 1894 — S. 23 — Compensation — Determination — Sale exemplars which may be considered: Sale instances of adjacent village either subsequent to land acquired or with respect to small areas of land — Whether may be considered, explained. [Ramrao Shankar Tapase v. Maharashtra Industrial Development Corpn., (2022) 7 SCC 563]

Negotiable Instruments Act, 1881 — S. 138 r/w S. 142 — Dishonour of cheque where a company is payee of that cheque — Filing of complaint in such a case — Maintainability — Prerequisites: When a company is payee of cheque based on which a complaint is filed under S. 138 of the NI Act, the complainant necessarily should be the company represented by an authorised employee. For maintainability of complaint in such cases, prima facie indication in complaint and sworn statement (either orally or by an affidavit) before court to the effect that complainant company is represented by an authorised person who has knowledge about transaction in question, would be sufficient. Such averment and prima facie material is enough to take cognizance and issue process. Issue as to whether aforesaid authorisation and knowledge about transaction is proper, is a matter for trial. [TRL Krosaki Refractories Ltd. v. SMS Asia (P) Ltd., (2022) 7 SCC 612]

Penal Code, 1860 — S. 300 [S. 300 Thirdly] and Ss. 341, 447, 504 and 506 — Case whether one of murder, when the assault is not made with any weapon, but only by legs and hands — Determination of: In this case, material clearly established that after deceased fell down with the help of co-accused, accused K kicked and assaulted deceased on his neck with his legs and hands. Ocular version supported by medical evidence, which indicated that the deceased suffered abraded contusion of reddish blue colour on the neck area and abraded contusion reddish in colour on the left side of the chest. Further, internal dissection revealed profuse bleeding over the muscles of the neck surrounding the arteries that were ruptured. Further, certain left side ribs also fractured. Ventral part of the sternum also broken into two pieces and the spinal cord at certain level also contused, edematous and elongated. Cause of death opined as haemorrhagic shock as a result of multiple injuries, hence, conviction of accused K under Ss. 302, 341, 447, 504 and 506, held, justified. [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521]

Rent Control and Eviction — Mesne Profits/Compensation/Occupation charges/Damages for wrongful use/trespass: Principles clarified regarding proper basis and reasonable manner of determination of mesne profits of residential property on termination of leave and licence agreement pending first appeal. [Anar Devi v. Vasudev Mangal, (2022) 7 SCC 504]

Service Law — Appointment — Invalid appointment/Wrong appointment/Illegal appointment: Appointment dehors statutory rules, reiterated, is void ab initio. [State of Odisha v. Sulekh Chandra Pradhan, (2022) 7 SCC 482]

Service Law — Judiciary — Promotion: In this case, for promotion to 25% of posts of Higher Judicial Service strictly on basis of merit through Limited Departmental Competitive Examination (LDCE) from Civil Judges (Senior Division), eligibility criteria applicable, only for Delhi Higher Judicial Service (DHJS), was modified, both in terms of: (A) Civil Judges who would be eligible, and (B) Period of qualifying service re different categories of Civil Judges, due to non-availability of candidates as per the existing prescribed criteria, and, parity of work performed by Civil Judge (Junior Division) and Civil Judge (Senior Division) in Delhi. Civil Judges (Junior Division), held, also to be eligible for promotion to DHJS via this channel if they satisfied the norms as specified herein. [All India Judges Assn. v. Union of India, (2022) 7 SCC 494]

SCC Part
Cases ReportedSupreme Court Cases

   

Advocates Act, 1961 — S. 16 — Procedure for designation of Senior Advocates: Clarification of Guidelines prescribed for Supreme Court and all High Courts in Indira Jaising, (2017) 9 SCC 766, given. Instead of ten marks to be allocated to a counsel who has put in between ten to twenty years of practice, held, marks be allocated commensurate with standing of person at Bar, that is to say, one mark each shall be allocated for every year of practice between ten to twenty years. [Amar Vivek Aggarwal v. High Court of P&H, (2022) 7 SCC 439]

Arbitration and Conciliation Act, 1996 — S. 34 r/w S. 19 of the MSMED Act, 2006 — Setting aside of award: Requirement of deposit of 75% of amount in terms of award as a pre-deposit as per S. 19 of the MSMED Act, is mandatory. [Tirupati Steels v. Shubh Industrial Component, (2022) 7 SCC 429]

Armed Forces — Pension — One Rank One Pension (OROP) Policy — Validity of OROP Policy Communication dt. 7-11-2015: OROP Scheme as originally envisaged, envisaging future enhancement in rates of pension to be automatically applied to past pensioners, while Communication dt. 7-11-2015 issued by Ministry of Defence to Chiefs of Army, Air Force & Navy stipulating future revision in pension to past pensioners “at periodic intervals” i.e. every 5 yrs, OROP Policy Communication dt. 7-11-2015, affirmed. Implications of Expression “automatically passed on” in original policy vis-à-vis “at periodic intervals” in Communication dt. 7-11-2015, explained. [Indian Ex-Servicemen Movement v. Union of India, (2022) 7 SCC 323]

Constitution of India — Arts. 21 and 39-A — Fair trial: Challenge to fairness of trial on account of trial being expedited by the trial court is not tenable, if the due procedure appears to be followed during the course of trial. [Mohd. Firoz v. State of M.P., (2022) 7 SCC 443]

Debt, Financial and Monetary Laws — Non-Scheduled Banks/NBFCs/Chit Funds/Saving Schemes/Financial leasing — Generally: Non-Banking Financial Companies (NBFCs) are solely and entirely regulated by RBI under the RBI Act, as opposed to under State regulations, namely, Kerala Money Lenders Act, 1958 and Gujarat Money Lenders Act, 2011. State enactments, as Kerala Act and the Gujarat Act are not applicable to NBFCs. [Nedumpilli Finance Co. Ltd. v. State of Kerala, (2022) 7 SCC 394]

Penal Code, 1860 — S. 124-A — Offence of sedition: In this case instances of glaring misuse of S. 124-A alleged and validity of S. 124-A was challenged on that ground. Union of India agreeing to re-examination to find out the manner in which the requirement of security interests and integrity of the State should be balanced with the civil liberties of citizens. Interim order pending such re-examination by Government, issued that: till the re-examination of S. 124-A IPC by the Government is complete, held, it will be appropriate not to continue the usage of the aforesaid provision of law by any of the Governments. Directions with regard to pending FIRs, investigations and criminal proceedings relating to S. 124-A IPC also issued. Central Government given liberty to issue directions to States/Union Territories to prevent misuse of S. 124-A IPC. [S.G. Vombatkere v. Union of India, (2022) 7 SCC 433]

Prevention of Money-Laundering Act, 2002 — Ss. 3, 4 and 8(5) r/w Ss. 2(1)(u), 5(1), 5(5) and 44(1) Expln. — Prosecution for offences under Ss. 3 and 4 of the PMLA — Maintainability of — Requirements of: It is the duty of court to look into the allegations and the material collected in support thereto and determine whether prima facie offence(s) under the PMLA are made out. Standard of proof for conviction for offences under Ss. 3 and 4 is that of proof beyond reasonable doubt. [J. Sekar v. Enforcement Directorate, (2022) 7 SCC 370]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24 — Lapse of acquisition proceeding — Claim for, by subsequent purchaser: Subsequent purchaser who purchased land after publication of notice under Ss. 4 and 6 of the Land Acquisition Act, 1894 and after award of Land Acquisition Collector, in view of law laid down in DDA, (2022) 8 SCC 771, held, not entitled to claim lapsing of proceedings under 2013 Act. [Delhi Admn. v. Pawan Kumar, (2022) 7 SCC 470]

Service Law — Penalty/Punishment — Judicial review/Validity — Interference with punishment imposed by disciplinary authority: Order of substitution of punishment of removal imposed by disciplinary authority to compulsory retirement by Tribunal which was affirmed by High Court on ground that respondent delinquent had completed 39 yrs of unblemished service and since entire defrauded amount was paid by him with interest and no loss was caused to Department, held unsustainable. [Union of India v. M. Duraisamy, (2022) 7 SCC 475]

Specific Relief Act, 1963 — Ss. 19(b), 10 and 20 — Specific performance of agreement to sell immovable property when property is sold to subsequent transferee with notice of the prior agreement to sell — Proper form of relief in such cases: It is not necessary for the prior buyer-agreement-holder to seek cancellation of sale deed executed in favour of a subsequent purchaser. It is sufficient to implead subsequent purchaser in suit and seek relief of specific performance against original owner and also seek direction to subsequent purchaser to join in execution of sale deed in order to completely convey title to the prior buyer-agreement-holder. [P. Ramasubbamma v. V. Vijayalakshmi, (2022) 7 SCC 384]

Measures
Op EdsOP. ED.

   

“Metrology” means the science of measurement and the “law of metrology” sets out the rules and regulations which govern the units, methods of weighment and measurement. In India, the law of measurement is set out under the Legal Metrology Act, 20091 (LMA/the Act) which also provides for a regulatory department under the Department of Consumer Affairs which deals with the rules relating to the units of weights and measurements that are utilised in commercial and trading activities such as sale or purchase of goods which are traded by the virtue of their weight, measure, or number. The Act was preceded by the Standards of Weights and Measures Act, 19762 and the Standards of Weights and Measures (Enforcement) Act, 19853.

It lays down the rules, regulations, requirements, and procedures required to be followed in order to ensure that the consumer buying any goods regulated by the Act is provided with symbols of measurements which are accurate, standard, and unambiguous along with being in compliance with the international system of units.4

All pre-packaged commodities need declaration5 under Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011 wherein every package shall bear a label which should make a declaration of the net quantity of the commodity in terms of the standard unit of weight and measurement. The said declaration should be definite, plain, conspicuous and in accordance with the provisions of the aforesaid rules. In case where the commodity is sold by number, the number of the commodity contained in the package should be mentioned. In the absence of these, no person i.e. manufacturers/packer/seller/importer/distributor/dealer should sell any such pre-packaged commodity, as it will be considered an offence under Chapter V of the Act.

The standard units of weight, measure and numeration are provided under Section 76 of the Act which states that the standard unit of weights and measures would be the base unit as specified in Section 57, and the standard unit for numeration would be the base unit as specified in Section 68. Section 5 of the Act provides the base unit of weights and measures as (i) length shall be the meter; (ii) mass shall be the kilogram; (iii) time shall be the second; (iv) electric current shall be the ampere; (v) thermodynamic temperature shall be the kelvin; (vi) luminous intensity shall be the candela; and (vii) amount of substance shall be the mole.

The Act is applicable to documentations pertaining to transactions/industrial production which include contracts for sale and purchase, royalties, toll, duty, assessment of work done, wages due and services rendered. In accordance with Sections 109 and 1110 of the Act, the provisions would apply to all transaction, dealing, contracts, price list, invoice, cash memo, advertisement, poster, or any other document. Thereby every such document where the weight and measure are specified should be done in accordance with the Act.11 Moreover, it is clear from Section 11 of the Act that it applies to all organisations whose operations are in any way related to standard weights and measures. 

Further, Section 11 of the Act prohibits quotation, announcement, issuance, publication, indication in a manner otherwise than in terms of standard units of weight, measure or numeration stipulated under the Act. The said provision provides that no person in relation to goods, things or service shall quote or announce (by word of mouth or otherwise) any price or charge; issue or exhibit any price list, invoice, cash memo; prepare or publish any advertisement, poster; indicate the net quantity of a pre-packed commodity; express in relation to any transaction or protection, any quantity or dimension in any manner which is in deviation with the standard units of weight, measure or numeration stipulated under the Act.

The standard unit of weight is kilogram (kg), and length is meter (m) or centimeter (cm) and any deviation from the same is prohibited under Section 11. Thus, it is clear from the aforesaid provisions that the standard units of weights and measures would be the base units of weights and measures specified in Section 5 and any violation from the standard units would be penalised in terms of the provisions of the Act.

The Legal Metrology (Packaged Commodities) Rules, 2011, particularly Rule 1312 provides for smaller units of measurement wherein the unit of weight shall be “gram” and unit of length shall be “centimeter”. Therefore, it is clear that in terms of the LMA and Packaged Commodity Rules, standard unit of weights and measures are kilogram, gram, meter, centimeter. It is pertinent to point out Section 4 which provides that every unit of weight or measure shall be in accordance with the metric system based on the international system of units.

Quantity

Unit Name

Symbol

Length

meter

m

Mass

kilogram

kg

Time

second

S

Electric Current

ampere

A

Thermodynamic Temperature

kelvin

K

Amount of Substance

mole

mol

Luminous Intensity

candela

cd

Rule 13(5)(i) of the Legal Metrology (Packaged Commodities) Rules, 2011 make it sufficiently clear that only SI system of units shall be used in furnishing the quantity of the packages. It is stated that special attention needs to be given while mentioning symbols of the measurement units declared on the packing of the commodity. Rule 7 provides for guidelines for printing the symbols which are provided below:

(a) shall be printed in roman (upright) type irrespective of the type used in the rest of the text;

(b) shall remain unaltered in the plural;

(c) shall be written, without a final full stop(period) unless the context otherwise requires;

(d) shall be placed after the complete numerical value in the expression for a quantity, leaving a space between the numerical value and the unit; and

(e) the symbol for units of weight or measure shall be printed in lower case letters except that the first letter shall be printed in upper case when the name of the unit is derived from a proper name.

In view of the aforesaid, it may be noted that symbols of units shall remain altered in plural i.e. kilograms should be written as kg and not kgs. Similarly, centimeters should be written as cm and not cms. It further provides that it should be written without a full stop. Lastly it clarifies that symbol for units of weight or measure should be printed in lower case letters.

In light of frequent violations under the LMA by various business owners/traders/dealers with respect to the declaration of quantities and incorrect representation of the measurement units/symbols, the Ministry of Consumer Affairs, Food and Public Distribution vide Notification dated 30-4-2020 issued to all the Controllers of Legal Metrology of all States/UTs made a “Declaration of Symbol of Units” wherein it was stated that a reference has been received regarding declaration of symbol of units in under the Legal Metrology Rules, 2011. It thereby directed all field officers not to take any coercive action for declaration of units in small or capital letters, in full or short form, provided that the units are declared in SI system. In view of the aforediscussed provisions, rules, and regulations, it is clear that while it is mandatory to use the SI systems of unit and to use the symbols of such units in strict manner, however with the 30-4-2020 advisory, no coercive action can be taken by the Legal Metrology Department for using full form, capital letters in the units, etc.

In Cadbury India Ltd. v. Controller of Legal Metrology13 it was held by the Karnataka High Court that the use of “angula” for the advertisement of 5 Star chocolate even though was non-metric, would not be in violation of Section 11(1)(c) of the Legal Metrology Act as the commercial has a humorous tone and was not meant to mislead the viewer. The mention of this case was important as it is important to note that a lot of the offences mentioned in the act are unlikely to have mens rea, an element of criminality and will not affect the interests of the public at large.

In Sobha Developers Ltd. v. Inspector of Legal Metrology14 the issue was in regard to what would be considered as “goods” since the commodity in question was immovable, an apartment in advertisement. The measuring unit used was square feet instead of the standard square meter and hence it was not in accordance with the metric system. The advertisement in the newspaper was said to be in violation of Section 4815 of the Act. The case went on to Karnataka High Court by means of writ where the Court settled the issue by holding that the Act was applicable in the present situation as the petitioner was in the business of selling apartments by measurements.

Offences and penalties

While the Act provides in detail of all compliances and the manners in which declaration of measurements/weight of commodities is to be made however even small and insignificant deviation from the provisions of the Act amounts to offence under the Act and can attract penalties as are mentioned under Chapter V of the Act. Section 11 of the Act prohibits declaring measurement units in any other manner from one stipulated under the Act. There is compounding of offences only if the offence is repeated within a period of three years. Corollary to that is any subsequent offence under Legal Metrology Act committed after a period of three years from the first offence would be treated as a fresh offence.

Section 4916 covers any offences that might be committed by a company. LMA lays down the need for nomination of directors to ensure that any breach of the provisions of the Act by the company can be taken up with the nominated Director of the company and such nomination continues until the Director either ceases to be a director or there is cancellation of the nomination by the company or the nominee himself. The penalty for a company who is in breach of the provisions of this Act is to publish an advertising such lapse at its own expense or as the court may direct.

Further, under Section 5117, the provisions of the Penal Code18 and Section 15319 of the Code of Criminal Procedure insofar as such provisions relate to offences with regard to weight or measure, shall not apply to any offence which is punishable under this Act.

It is pertinent to note that under Section 5020 of the Act any/all decisions or orders given by an officer of Legal Metrology are appealable to the Director of Metrology and from there to the Central Government. The time period for making such an appeal is sixty (60) days further extendable for a period of sixty (60) days by the appellate authority from the day of passing such order.

Exceptions on applicability

Certain goods which are not defined expressly under the Act would include “any goods” (movable/immovable) which requires any sort of measurement/weighing which includes even pre-packaged commodities.21

However, there are certain restrictions and limitations on the applicability of the Act. In terms of Section 5522 of the Act, it is specifically provided that the provisions pertaining to verification and stamping of weights and measures are not applicable in factories engaged in manufacture of arms and ammunitions, weights and measures used for scientific investigation or research and goods manufactured exclusively for export purposes.

Moreover, in Philips Electronics India Ltd. v. Govt. of A.P.23 the Madras High Court held that audiovisual equipment, television sets and electronic items would not come in the purview of the Act. Electronic items according to the Court are related to the field of science and therefore the Act of 2009 is not applicable to packages which are used to package electronics as it is for the customer's convenience.

Further the Legal Metrology (Packaged Commodities) Rules, 2011, do not apply on large consignments as provided under Rule 3, which stipulates that the rules would not apply on packages of commodities containing quantity of more than 25 kg or 25 litre and packaged commodities meant for industrial consumers or institutional consumers. However, cement and fertilizer industries are not covered under this provision and the Legal Metrology Rules are applicable on the same.

Conclusion

The objective of the Legal Metrology Act is to rationalise the metric system so as to have a uniform system which is unambiguous and therefore aids the consumer in understanding the measurements/quantity of the goods being bought/sold in transactions. Therefore, it is pertinent for business owners to ensure that (i) the declaration of weight and quantity of the product should be clear on the packaging and in compliance with the Act and Rules; (ii) every package should bear a label containing declaration of net quantity in terms of standard unit of weight or measure of commodity or number of commodity in package; (iii) the units should be SI units and the symbols for such units should be standard unit of weights and measures; and lastly (iv) it should be in small letters and not in plural.


† Partner at DSK Legal.

†† Principal Associate at DSK Legal.

1. Legal Metrology Act, 2009.

2. Standards of Weights and Measures Act, 1976.

3. Standards of Weights and Measures (Enforcement) Act, 1985.

4. Legal Metrology Act, 2009, S. 4. Units of weights and measures to be based on metric system. —Every unit of weight or measure shall be in accordance with the metric system based on the international system of units.

5. Legal Metrology (Packaged Commodities) Rules, 2011, R. 6 stipulate that declaration needs to be made on every package as follows:

  1. retail sale price of the commodity;

  2. size of the product;

  3. weight of the product;

  4. the common/generic name of the goods;

  5. details of the manufacturer;

  6. customer care number; and

  7. date of manufacturing/pre-packaged/imported item.

Any additional declarations required in the view of the specific commodity in question.

6. Legal Metrology Act, 2009, S. 7.

7. Legal Metrology Act, 2009, S. 5.

8. Legal Metrology Act, 2009, S. 6.

9. Legal Metrology Act, 2009, S. 10.

10. Legal Metrology Act, 2009, S. 11.

11. S. 11. Prohibition of quotation, etc., otherwise than in terms of standard units of weight, measure or numeration. — (1) No person shall, in relation to any goods, things or service, —

(a) quote, or make announcement of, whether by word of mouth or otherwise, any price or charge; or

(b) issue or exhibit any price list, invoice, cash memo or other document; or

(c) prepare or publish any advertisement, poster or other document; or

(d) indicate the net quantity of a pre-packaged commodity; or

(e) * * *

12. Legal Metrology (Packaged Commodities) Rules, 2011, R. 13.

13. 2013 SCC OnLine Kar 12.

14. 2019 SCC OnLine Kar 3559.

15. Legal Metrology Act, 2009, S. 48.

16. Legal Metrology Act, 2009, S. 49.

17. Legal Metrology Act, 2009, S. 51.

18. Penal Code, 1860.

19. Criminal Procedure Code, 1973, S. 153.

20. Legal Metrology Act, 2009, S. 50.

21. Legal Metrology Act, 2009, S. 2(l) “pre-packaged commodity” means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity.

22. Legal Metrology Act, 2009, S. 55.

23. 2012 SCC OnLine AP 341.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. dismissed a bail application of an applicant who was in custody since 29-06-2022 for the offence punishable under Sections 376, 506 of Penal Code, 1860.

Counsel for the applicant submitted that incident took place on 03-12-2020 then on 18-03-2022 prosecutrix pressurized the present applicant for marriage and, thereafter, on 12-04-2022, FIR was lodged. Applicant is a differently abled person working as Canteen Attendant in Ministry of Defence. The prosecutrix was a consenting party and allegation was only in regard to false promise of marriage. It was also submitted that the prosecutrix herself has refused to marry initially and later sent a message that the applicant can marry any other girl.

Government Advocate for the respondent-State submitted that on the last date, applicant had sought time to seek instructions because it was informed that applicant is willing to marry but because of family pressure, he has to wriggle out. It is also submitted that it is not a case of simplicitor consensual pre-marital sex. Both the applicant and the complainant are handicapped and knew each other. Applicant approached the complainant with a promise of marriage and enticed her in physical relationship. Later on, he refused to marry as soon as applicant could get a job with the defence establishment as his expectations were on wings but in the present hearing counsel for the applicant submitted that though sister of the applicant is willing for performance of marriage of the applicant with the complainant but since father of the applicant has refused because of age difference and caste difference, marriage is not possible.

The Court after hearing the parties noted that it was evident that applicant always had knowledge about the age difference between him and the complainant. There was also conscious knowledge of difference in the caste. The only uniting factor was emotional bonding on account of both being differently abled and there was a promise on part of the applicant but later on as soon as he could get a job, he has changed his attitude.

The Court was astonished by the fact that in the 21st century, still in the name of caste and creed, social differentiation is being created. The Court noted that prosecutrix has not been examined in the Court of law and she is a vulnerable witness. The court believed that if applicant is enlarged on bail then there is possibility of witness being tampered with.

The Court thus dismissed that bail application opining that to secure the interest of justice so also interest of a vulnerable witness, this is not the correct stage to extend benefit of bail to the applicant.

[Naresh Rajoriya v. State of Madhya Pradesh, Miscellaneous Criminal Case No. 34551 of 2022, decided on 04-08-2022]


For applicant: Ankit Saxena

For respondent: Aditya Narayan Gupta, Rajkumar Raghuwanshi


*Suchita Shukla, Editorial Assistant has reported this brief.

Andhra Pradesh High Court
Case BriefsHigh Courts

   

Andhra Pradesh High Court: Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC') unless such actions compelled the victim to commit suicide.

The wife of the deceased employee lodged a complaint alleging that her husband worked as Clerk for nine years in Primary Agriculture Cooperative Society (‘Society') and presently was working as Secretary. It was alleged that due to the pressure made by the accused, the deceased committed suicide. Based on the said complaint, the present crime was registered. Thus, instant petition was filed under Section 438 Criminal Procedure Code (‘CrPC') seeking pre-arrest bail to the petitioner/A3 in the event of her arrest in connection with the said registered offence punishable under Section 306 Penal Code, 1860 .

The Court noted that the averments of the complaint with regard to the pressure made by the petitioner who is CEO may not arise for the reason that in case of any defaults, the President and Secretary will follow the procedure contemplated under the Co-operative Societies Act and not the accused who happens to be the Chief Executing Officer ‘CEO'.

Placing reliance on Geo Varghese v. State of Rajasthan, 2021 SCC Online SC 873, wherein it was held mere allegation of harassment will not attract offence under Sections 306 IPC unless such actions compelled the victim to commit suicide.

Further placing reliance on M. Mohan v. State of Tamil Nadu, (2011) 3 SCC 626, the Court noted that mere allegations of pressure or harassment made by wife, in the instant case, will not suffice to attract ingredients of Section 306 IPC and to attract the offence under Section 306 IPC, there should be instigation or abetment on the part of the accused.

Thus, the Court held as there is no instigation or abetment made by the accused which led the deceased to commit suicide as indicated by the complaint and hence, ingredients of Section 306 IPC are prima facie not made out and the accused be granted bail.

[B Sridevi v. State of Andhra Pradesh, Criminal Petition No. 4976 of 2022, decided on 14-07-2022]


Advocates who appeared in this case :

O Kailashnath Reddy, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In a case where a mother administered poison to her daughters and she survived but the daughters died, D. Bharatha Chakravarthy J. took a lenient approach in sentencing a woman convicted under Section 302 and Section 304 Penal Code, 1860 on account of the ‘Nalla Thangal Syndrome’.

The present appeal arises out of an order dated 27-09-2019 of a Fast Track Court, Vellore, that found the accused guilty of Section 302 and 304 IPC (2 counts) and imposed a sentence of Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- for each count. The case was condemned as a glaring testimony of the perpetuating gender inequality in society. The accused was a mother of three girls- Lathika, Hasini and a one-and-a-half months old baby, on 22-07-16, when distraught from the overbearing taunts of the society about her misfortune for bearing only female children, she committed the alleged offence. She administered a poison- Organo Phosphorus compound to Hasini and the baby girl and then consumed it herself, in an attempt to commit suicide. Subsequently, while she was rescued, both the children died.

After the registration of the case under Section 302 and Section 304 of Penal Code, 1860 and filing of the final report, it was committed to the Principal Sessions Court, Vellore and thereafter was forwarded to the Trial Court. Pursuant to this, prosecution engaged in examination of witnesses and production of material evidence on record. After considering the same, the Trial Court verified the facts and concluded that this was an instance of the ‘Nalla Thangal Syndrome’ which is such a state of mind in which the mother kills her children before killing herself, because of the thought that there would be no one to look after them. The concept was founded by District Judge in the case In Re Sreerangayee v. Unknown,1972 SCC OnLine Mad 470 by considering the legend story of Nalla Thangal contained in Tamil literature.

Thus, condemning the pitiful view of society in regard to the birth of a girl child, and considering the above-mentioned relevant cases, the Bench upheld the decision of the Trial Court and disposed the appeal accordingly. The Court found it more appropriate to release the accused under and befitting to release the appellant/accused under Section 4, Probation of Offenders Act, 1958.

It is germane to mention that during Trial the appellant/accused begot one more female child, thus now having 4 children wherein two are dead and two are alive. Thus, the Court directed the appellant to execute a bond for good behavior for a period of two years and undertook to educate both the female children at least up to the under-graduate level and also to see their upbringing in the best possible way. She was also required to appear before the Trial Court every two years to confirm the same and finally, her husband also executed a bond, standing as a surety for the compliance of these directives.

[Sathiya v. State, 2022 SCC OnLine Mad 3969, decided on 14-07-2022]


Advocates who appeared in this case :

R. Jothi, Advocate, for the Appellant;

S. Vinoth Kumar, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Krishan Pahal, J. dismissed the bail application of Sidhique Kappan, the journalist who was arrested along with three others in October 2020 while on his way to Hathras, Uttar Pradesh allegedly to report on the gang-rape and murder of a 19-year-old Dalit girl noting that he had no work being in Hathras and that there were reasonable grounds to believe that the accusations against such person are prima facie true.

The FIR alleged that the applicant and other co-accused persons were heading to Hathras where the ill-fated incident had been committed with an intention to create caste struggle and to incite riots. The said persons were said to have been collecting funds and running a website ‘Carrd.com’. There was another website operated by the laptop which had the heading ‘Justice For Hathras’. It was also found that the incident of mob lynching, exodus of labourers and the Kashmir issues were also highlighted through the same website. The website also imparts training pertaining to concealing one’s identity during demonstrations and to ways to incite violence. The matter was registered under Sections 153-A, 295-A, 120-B Penal Code, 1860, Sections 17, 18 of Unlawful Activities (Prevention) Act, 1967 and Sections 65 and 72 of Information Technology Act, 2000.

Senior Counsel for the applicant contended that no pamphlets or printing papers were being carried out by the applicant or other co-accused persons in the car and that the applicant was unaware of any website with the name of ‘Carrd.com’ and ‘Justice For Hathras’. It was submitted that the applicant was going to Hathras to discharge his duty as a professional journalist and was illegally detained by Police in violation of his fundamental rights. It was further submitted that the applicant is an honest journalist and does not post any biased reports on the basis of his political leanings. The applicant has written several journalistic reports on the plights of dalits and minorities, but none of them promotes any sort of rivalry between the communities.

State has vehemently opposed the bail application on the ground that the applicant is a resident of Kerala and has nothing to do with the incident of Hathras and had deliberately with malafide intent come with the co-accused persons and was arrested at Mathura. It was further stated that the co-accused persons had collected funds from foreign national mediums which was utilized by co-accused persons for illegal activities. The applicant was in regular touch with co-accused persons and there were call detail records (CDRs) to corroborate the same. It was submitted that during the search of the house of the applicant at New Delhi 47 papers in Malyalam language were recovered pertaining to Students’ Islamic Movement of India (SIMI). Two AK-47 guns were also shown in the said documents, which also contained the popular slogan of SIMI ‘Welcome Mohammad Gajni’.

The Court noted that after the investigation it came up that the applicant had no work in Hathras. The Court believed that the State machinery was at tenterhooks owing to the tension prevailing due to various types of information being viral across all forums of media including the internet and the sojourn of the applicant with co-accused persons who did not belong to media fraternity was a crucial circumstance going against him.

The Court nullified the defence made by the applicant of him being a journalist and visiting Hathras for work by the claims made by the prosecution in the charge sheet and stated that tainted money being used by the applicant and his colleagues cannot be ruled out.

The Court considered the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 where the Supreme Court while overturning the High Court’s order of granting bail to the accused, had stated that Section 43(D)(5) prohibits a Court from granting bail to accused if on a perusal of a final report filed under Section 173 Cr.P.C., the Court is of the opinion that there are reasonable grounds to believe that the accusations against such person are prima facie true.

The bail application was dismissed considering the facts and circumstances of the case, nature of offence, evidence on record, complicity of accused, severity of punishment and the settled law propounded by the Supreme Court in the case of NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1.

[Sidhique Kappan v. State of U.P., 2022 SCC OnLine All 511, decided on 02-08-2022]


Advocates who appeared in this case :

Mr I.B. Singh, Mr Ishan Baghel, Mr Avinash Singh Vishen, Advocates, Counsel for the Applicant;

Mr Vinod Kumar Shahi, Mr Shivnath Tilahari, Advocates, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: V Sivagnanam J. directed the State police to add the offences under Sections 417 and 420 Penal Code, 1860 (‘IPC') on allegations that the accused husband has deceived the complainant- ex-wife and made her to marry him, wrongfully displaying that he is competent to consummate marriage.

The petitioner is the complainant whose marriage took place with the first accused took and after the marriage, the complainant found that he is not interested with his wife in the marriage life due to his impotency. Thereafter, the complainant came to know that due to his impotency, he got divorced from his first wife. Pursuant to this, the accused husband left the home on 04-01-2022 and the petitioner made a complaint on 15-02-2022 that got registered on 18-05-2022.

A perusal of the complaint given by the complainant clearly states about the non-disclosure of the impotency of the husband at the time of marriage and he made the complainant to believe that he is a competent person to live ordinary life as husband and wife without disclosing his incapacity and thereby, the accused-husband deceived the complainant and made her to marry him, claiming that he is competent to consummate the marriage. After the alleged deceit came to light, the accused-husband granted divorce to the wife by saying ‘talaq' and went to United States of America.

The case was registered under Sections 498-A and 406 IPC without including Sections 420, 417 and 379 IPC even though the allegation disclosed the fact of cheating committed by the accused persons. Thus, the instant criminal original petition was filed to direct the respondent police to alter the FIR by including Sections 420, 417 and 379 Penal Code, 1860 therein.

Relevant provisions of Penal Code, 1860

Section 417 Punishment for cheating —Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 420 Cheating and dishonestly inducing delivery of property. —Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Counsel for State submitted that the matter has been referred to the Social Welfare Department, Madurai, for the purpose of conducting a preliminary enquiry. After receiving the report from the Social Welfare Department, Madurai, they are ready to consider the alteration of F.I.R.

Thus, the Court directed the respondent Police to add the offences under Sections 417 and 420 IPC in the case and investigate and file the final report within four months, after receiving the report from the Social Welfare Department, Madurai.

[Irfana Nasreen v. The State, Crl. O P (MD) No. 11840 of 2020, decided on 20-07-2022]


Advocates who appeared in this case :

M. Radhakrishnan, Advocate, for the Petitioner;

R. Suresh Kumar, Government Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of A.M. Badar and Rakesh Kumar Verma, JJ., while dismissing an appeal observed that a sexual assault leaves a traumatic effect on a victim of a minor age which not only affects her physically but also affects her emotionally and psychologically which ultimately leads to the destruction of her personality. Therefore, the Bench upheld the conviction of a man who raped his two minor daughters for 6 continuous years.

Background of the case

The accused, the father of the two minor female victims, was exercising the position of control and dominance over his two daughters and had repeatedly committed penetrative sexual assault on the two victims.

The Additional Sessions Judge-cum-Special Judge (POCSO), Bhojpur at Ara, in POCSO Case No.4 of 2013, convicted him for the offences punishable under Section 376(i) of the Penal Code, 1860 and under Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to life imprisonment for the offence punishable under Section 6 of the POCSO Act. For the offence punishable under Section 10 of the said Act, he was sentenced to suffer rigorous imprisonment for five years. The trial Court had directed that the substantive sentences shall run concurrently. Challenging the impugned order of the trial court, the accused filed an appeal.

Analysis and Decision

The Bench observed that rape is a ghastly act that leaves the victim shattered for life as it causes not only physical but emotional and psychological trauma to the victim. Further, the Bench observed, “sexual activities with a minor girl, have a traumatic effect on them, which persists throughout their life and often destroys the whole personality of the victim. The victim of a sexual assault is not an accomplice, but she is a victim of the lust of another person.” Therefore, the court while dealing with such cases of sexual assault of a minor female, the Court is expected to shoulder great responsibility and is required to deal with such cases sensibly.

At this juncture, the Bench relied on the judgment given by the Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217, where it was held that rarely a girl or woman in India makes a false allegation of sexual assault. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. Such a girl would be conscious of the danger of being ostracized by society or being looked down upon by society including her relatives etc.

Further, the Bench opined that the evidence of a victim stands at a higher pedestal than that of an injured witness. Evidence of a victim of a rape case is required to receive the same weight as attached evidence of an injured witness. If the totality of circumstances emerging on record discloses that the victim of such crime does not have any motive to falsely implicate the accused, then, it is not required to seek corroboration to her evidence and the Court generally needs to accept her evidence.

Hence, the Bench, by dismissing the appeal upheld the conviction of the accused under Section 376(i) of the Penal Code, 1860 and Sections 6 and 10 of the POCSO Act.

[F v. State of Bihar, 2022 SCC OnLine Pat 1926, decided on 25-07-2022]


Advocates who appeared in this case :

Vikram Deo Singh, Jitendra Prasad Singh, and Shankar Kumar, Advocates, for the Appellant/s;

Abhimanyu Sharma, APP, Advocate, for the Respondent/s.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While dealing with an issue on joint proceedings, Vinod S. Bhardwaj, J., held that a proceeding where there is ‘Juvenile in conflict with law’ with an adult the proceedings cannot be done jointly.

The petition was filed under Section 482 Code of Criminal Procedure, 1973 (‘CrPC’) seeking quashing of order, passed by Magistrate, vide which the petitioner was declared as proclaimed offender. The bench observed that in terms of Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act’) order can only be passed by the Juvenile Justice Board (‘JJ Board’) and not by the Magistrate.

Facts:

The FIR was registered under Sections 323, 325, 506 of Penal Code, 1860 alleging that the petitioner was one of the Polling Agent at the time Panchayat Elections where a fight occurred between him and the complainant which was however settled by the respectable persons of both the sides. But the same day, while the complainant was present in his house, 20-25 people came on various vehicles carrying weapons and caused injuries. The petitioner was allegedly armed with a kirpan and is alleged to have participated in the commission of the offence along with other co- accused.

Arguments:

The counsel for the petitioner pointed out that this incident took place on 19-07-2013 and the date of birth of the petitioner is 19-02-1998 which was confirmed through his passport. Hence, it was contended that as the petitioner was less than 15 years of age on the date of alleged incident, he has been falsely implicated. On investigation, the petitioner was found innocent and was not charged by the Investigating Agency.

Still, the non- bailable warrant was issued against the petitioner on 13-10-2018 and was received back on 25-10-2018 furnishing that he was not found at his address. It was contended that the proclamation of the petitioner was affixed on 15-12-2018 adjourning the case until 18-01-2019. As the mandatory period of 30 days came to an end and then the petitioner was declared as proclaimed offender.

Issue:

Whether any joint proceedings can be carried out where a Juvenile and adult are accused of an offence?

Observation and Analysis:

The Court noted that as far as the order of proclamation is concerned, the mandatory period of 30 days is prescribed under Section 82 CrPC had not lapsed.

The Court observed that the factual aspect is not in dispute that the publication of the proclamation was affected on 15-12-2018 and the mandatory period of 30 days had not elapsed on 21-12-2018 and the case was adjourned solely for the said reason to 18-01-2019 when the order was issued.

It was observed by the Court as the offence in question was committed in 2013, the provisions of the JJ Act, 2000 as amended were applicable and the petitioner, who was less than 15 years of age on the date of the incident, would fall under the definition of ‘Juvenile in conflict with law’.

It was also observed that there can be no joint proceedings of a juvenile and other offenders as per Sections 2(k), 2(l), 2(p), 15 and 18 of the JJ Act, 2000. Therefore, only the JJ Board could pass any orders under Chapter II of the JJ Act, 2000. Accordingly, the Court held that the order passed by the Magistrate declaring the petitioner as the proclaimed offender was without jurisdiction.

Observing the above stated reasons, the Court allowed the petition and set aside the impugned order vide which the petitioner was declared as proclaimed offender.

[Sadhu Singh v. State of Punjab, 2022 SCC OnLine P&H 1784, decided on 06-07-2022]


Advocates who appeared in this case :

Mr. S.S. Rangi, Advocate, Counsel for the Petitioner;

Mr. Amarjit Kaur Khurana, DAG, Punjab, Counsel for the Respondents;

Mr. Ramanpreet Singh, Advocate.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Navneet Kumar, J., upheld the conviction of the appellant- accused guilty of killing his wife within a few years of marriage on her failure to fulfill the demands of the dowry. The deceased, Rita Devi, had gone missing from her husband’s home and her body was found in the Sakhua jungle.

This appeal is against the judgment of conviction passed by the Additional Sessions Judge charging the appellant -, for the offences punishable under Sections 304-B, 498-A, and 201 of Penal Code, 1860. For committing an offence under Section 304-B– of IPC, he was sentenced to Rigorous Imprisonment (‘RI’) for 7 years and further sentenced to undergo RI for 3 years and to pay a fine of Rs. 2000 and in case of default in payment of fine, he was further directed to undergo RI for 3 months for the offence punishable under Section 498-A and further sentenced to undergo RI for 3 years and to pay a fine of Rs. 2000 and in the case of default in payment of fine, he was further directed to undergo RI for 3 months for an offense punishable under Section 201 of IPC.

Facts:

The daughter of the informant, Rita Devi, was married to the appellant. Just after the solemnization of marriage, the appellant started demanding a Motorcycle and for that, the victim was assaulted and was subjected to cruelty. The informant also said that just 15 days back from the incident the accused assaulted the victim with respect to the demand of dowry and this assault continued since last 4-5 months continuously. Hearing this when the informant reached the victim’s house to meet the daughter, he found out that there was no one present in the house, and it was locked.

On 26-05-2002, the dead body of the victim was found in midst of the Sakuna jungle. The fardbeyan of the informant was recorded at the site of the incident. It was evident that the death has been caused due to strangulation as there were marks and swelling on the neck. This incident took place within 1 year of her marriage.

The police registered the case and submitted the charge-sheet and the Chief Judicial Magistrate took cognizance, the case was then committed to the court of sessions and after conducting a full-fledged trial passed impugned judgment of conviction and order of sentence which is under challenge in this appeal.

Observations and Analysis:

The Court was convinced with the finding of the Trial Court and upheld the trial court ruling and noted that there were no irregularities in the judgment of conviction and the order of sentence passed by the court.

[Pradeep Kumar Mandal v. State of Jharkhand, 2022 SCC OnLine Jhar 686, decided on 13-06-2022]


Advocates who appeared in this case :

Mr. S.P. Roy, Advocate, for the Appellant;

Mr. Purnendu Sharan, Advocate

Mrs. Nehala Sharmin, A.P.P., Advocate, for the Respondent.

Op EdsOP. ED.

   

Introduction

In February 2014, a two-Judge Bench of the Supreme Court in Aveek Sarkar v. State of W.B.3 ruled that the nude photograph of Boris Becker with his fiancée cannot be termed as obscene under Section 292 of the Penal Code4. The judgment has been hailed as a landmark judgment because the Court in this case discarded Hicklin test and decided to adopt the community standard test to determine whether a particular thing is obscene or not.

This was a welcome ruling because by this we finally got rid of the archaic Hicklin test which was propounded way back in 1868 in R v. Hicklin.5 The Supreme Court has now decided to adopt the community standard test which has been laid down by the US Supreme Court in Roth v. United States of America.6 However, it is pertinent to note that the American Supreme Court was forced to modify the community standard test because of its subjective nature. Hence, it can be said that even the current judgment has many flaws which need to be rectified in the due course of time.

Development of obscenity laws in United Kingdom, India and United States of America

Professor Laurence H. Tribe in his book Invisible Constitution has rightly argued that “when we ask questions, the kind of answers we actually get, depends to some degree who is answering them, including who is sitting on the side of Supreme Court”.7 The development of obscenity laws across various jurisdictions vindicates Laurence Tribe's remark without an iota of doubt. Different regimes and courts have attempted to define this term with their own set of societal understanding. The era of Victorian conservatism in England lead to evolution of the Hicklin test whereas a century later American Supreme Court took an altogether different approach and ruled that, one man's vulgarity is another's lyric.8

United Kingdom

History of obscenity legislation in Great Britain starts with King George III's proclamation of 1787, wherein he proclaimed that “his subjects must suppress all loose and licentious prints, books, and publications, dispensing poison to the minds of young and unwary, and he sought to punish the publishers and vendors of such publications”.9 Prior to the issuance of this proclamation obscenity was considered harmful only in those cases wherein it gave rise to breach of peace or it insulted religion.

Till 1857 any specific law concerning obscenity was not in place. However, there was a body of law enacted in various statues which sought to regulate obscenity in England. It was in 1857 when at the insistence of Chief Justice John Campbell British Parliament passed the Obscene Publications Act, 1857 (hereinafter referred as “the 1857 Act”), which authorised the Magistrates to find and destroy any obscene material.10

After the passing of 1857 Act, it was only in 1868 wherein in R. v. Hicklin11, the Queen's Bench was seized with a matter arising out of the newly passed 1857 Act. The question which posed before the Court was that whether a pamphlet entitled “The confessional unmasked” was obscene or not? Writing for the Court, Alexander Cockburn, C.J. laid down an authoritative definition and an authoritative test for obscenity under English Law. The Chief justice wrote that “the test for obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”.

The test laid down by the Queen's Bench12 had six constituent elements:

  1. Tendency to deprave and corrupt: The matter published had to have the tendency to “deprave and corrupt”, or to suggest to readers “thoughts of most impure and libidinous character”. However, the meaning of these terms was not clear as to what it suggests.13

  2. Not the reasonable person: The Court while deciding the question of obscenity was to judge the matter from the standpoint of a reasonable person, especially those whose minds are open to such immoral influences. As per Cockburn, C.J. reasonable person may include children or elder person i.e. person of more advanced years.14

  3. Presumed intent: While deciding the question of obscenity, purity of motive is no excuse for publication of indecent matter, neither the court had to look into the tacit or altruistic intent of the author. The question of obscenity was to be judged merely upon the selection of words by the author.15

  4. Irrelevance of contemporary books: The published work had to be judged on its own merits and it was not permissible for the court to look at other books which were in circulation at that time.16

  5. Accessibility: Circumstances of the publication in question becomes a relevant consideration and the court was to look into the accessibility of the publication. Thus, a medical treatise with illustration necessary for information of students or practitioners may not be treated as obscene, because it was intended to reach only to the limited audience though it might be indictable if exhibited in a shop window for every passer-by to see.17

  6. Work as a whole irrelevant: As per this test it was not the whole work or the theme which was to be looked into while deciding the question of obscenity, rather the presence of a single isolated paragraph may make the whole work obscene.18

However, the test laid down in R. v. Hicklin19 got partially modified by the Obscene Publications Act, 1959 which sought to replace the previous 1857 Act. The 1959 Act introduced provided some safeguards to the authors wherein the author cannot be charged for obscenity if he successfully proves that the publication in question is being justified as being for the public good on the ground that it is in the interest of science, art, literature or of other subjects of general concern.20 However due to some deficiency is the 1959 Act, British Parliament passed an amendment in the year 1964 to cure the deficiencies in order to strengthen the law against publishing obscene matters.

Section 1(1) of the Act took a shift from the traditional criminal liability and the issue of crime causation, or the motive of author has become immaterial. The present law as it stands today says “an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.21

Encompassing the principles of modern criminal liability, the essence of the offence is not the motive of the writer or the purpose of writing, but its tendency or the necessary effect to deprave and corrupt.22

India

If we read the history of colonial laws concerning the freedom of speech, we will find that the law of obscenity and sedition traces their origin in English Law of libel, but irrespective of their common law origin, there was a difference in its implementation. The law of sedition under the Penal Code23 was framed and implemented in such a manner which was considerably different from its English counterpart. However, the same was not the case with obscenity. The law concerning obscenity was modelled on similar lines as that in Britain.24

As it has been earlier mentioned that before the passing of 1857 Act, there was a body of law in England dealing with obscenity, but in India there was a complete void till 1856, when the then Governor General for the first time gave his assent to “An Act to Prevent the Sale or Exposure of Obscene Books and Pictures.”25 Modelled on the lines of English Town Police Clauses Act, 1847, the Act criminalised the distribution, sale, offer for sale, or wilful exhibition of any book, paper, print or representation in any shop, bazaar, street, thoroughfare, high road, or other such places of public resort.26

It is pertinent to note that the original draft of Penal Code prepared by Lord Macaulay nowhere mentions about a single provision regarding obscenity, except for a provision that penalised the outraging of the modesty of the woman by any sound or gesture.27 Section 292 was introduced in Penal Code by the Obscene Publications Act, 1925 (8 of 1925), in order to give effect to Article I of the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, which was signed by India in Geneva in 1925.28

Section 292(2) of the Penal Code penalises the sale, hire, distribution, exhibition, or circulation of any matter as mentioned under Section 292(1) of the Code. Section 292(1) of the Penal Code states that:

292. (1). … a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.29

However, it is pertinent to note that even after the enactment of the Penal Code, Hicklin test remained applicable with little modifications in deciding the question of obscenity both in colonial India as well as in independent India. Although few High Courts refused to accept the opinion of Cockburn, C.J. which stated that obscenity must be judged from the standpoint of immature persons, young and old, or from the perspective of those whose minds are open to immoral influences. But, apart from this the other limb of the Hicklin test was adopted by the High Courts in Colonial India.

Soon after the enactment of Constitution of India, the newly established Supreme Court of India in Ranjit D. Udeshi v. State of Maharashtra30 was asked to decide a matter pertaining to obscenity. In this case, Ranjit Udeshi who was a partner in a firm which owned a book stall in the City of Bombay. He was prosecuted under Section 292 of the Penal Code for selling and possessing the copies of D.H. Lawrence's classic text Lady Chatterley's Lover. Due to the titillating content, this book was considered as an obscene text under the Indian obscenity law. As a result, Ranjit Udeshi was convicted to pay a fine of 20 rupees or to suffer one week's simple imprisonment. The petitioner decided to challenge the constitutionality of Section 292 of the Penal Code.

In this case, Hidayatullah, J. adopted a modified version of Hicklin test. Writing the judgment for the Court, Hidayatullah, J. ruled three major modifications in the Hicklin test. The three major departures from the English Hicklin test were:

  1. Presence of sex and nudity in art and literature cannot be considered as the evidence of obscenity. Something more was required. Sex by itself was not enough to deprave and corrupt.31

  2. The work needs to be judged as a whole, and at the same time obscene words or passages had to be weighed against the non-obscene portions of the work, and it needs to be looked that whether non-obscene portion of the work were so preponderating as to throw the obscenity into shadow, or the obscenity is so trivial and insignificant that it can have no effect and may be overlooked.32

  3. Third departure from the test was in the form of defence to the offence of obscenity, if the publication in question was for the public good.33

The Penal Code was amended in the year 1969. Under the amended law the court was supposed to consider the work as a whole. The law inserted a “public good” exception which was also adopted by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra34.35

In Samaresh Bose v. Amal Mitra36, the Court was asked to decide that whether the Bengali novel Prajapati is obscene or not, as the novel depicted sexual encounters and used vulgar language. The trial court held the matter as being obscene. However, the Supreme Court disagreeing with the trial court finding observed that:

…the concept of obscenity is moulded to a great extent by the people who are expected to read the book. It differs from country to country, depending upon the standards of morality. Even the outlook of a Judge may differ from another Judge as it is a matter of objective assessment of the subjective attitude of the Judge hearing the matter.37

The Court further ruled that vulgarity and obscenity need not be confused with each other.38

Till 2014, the Supreme Court and the High Courts of our country followed the Hicklin test. However, in the year 2014, the Supreme Court in Aveek Sarkar v. State of W.B.39 formally abandoned the Hicklin test. In this case the Court was to decide that whether a semi-nude photograph of the iconic German tennis player with his dark-skinned fiancée was obscene or not. The photograph was first published in a German magazine, and then it was carried by Sportsworld and Anandabazar Patrika. The Court held that “a picture of a nude/semi-nude woman by itself could not be called obscene, unless it had the tendency to arouse the feeling of an overt sexual desire”.40 The Court placed more reliance upon the context in which the photograph appeared, and the message sought to be conveyed and found that it conveyed an important message to eradicate racism and apartheid in society.

The United States of America

In the United States of America, only “hardcore pornography” is considered as obscene under the First Amendment. However, the same was not always the case. In the year 1954, the American Supreme Court in Roth v. United States of America41 held that “sex and obscenity were not synonymous, and that if there was sex in art, literature or scientific works, that was not sufficient reason to deny the material the constitutional protection of free speech”.

The Court in this case further ruled that:

the material in question will be considered obscene if to the average person (not necessarily the reasonable person), applying contemporary community standards (not national or State standards) the dominant theme of the work taken as a whole, appeals to prurient interest (i.e. material having a tendency to excite lustful thoughts).42

However, the scope of the community standard test which was propounded in Roth case43 was subsequently restricted in Nico Jacobellis v. State of Ohio.44 The Court in this case ruled that the community standard test was limited only to hardcore pornography.

Eventually in 1974, the American Supreme Court in Marvin Miller v. State of California45 laid down a threefold test to determine whether something was obscene or not. Burger, C.J. wrote the majority opinion in which he laid the following guidelines:

(a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The contemporary community standard test laid down in Miller case46 required courts to determine whether something is obscene or not from the standpoint of the local community in which the trial takes place. This in the opinion of the researchers is quite a problematic ruling because the test is full of subjectivity. Something which is obscene for one cannot be obscene for all. In a heterogenous society it becomes even more difficult to determine or lay down a fixed community standard. Douglas, J. in a strong dissent has rightly ruled that “obscenity cannot be defined with precision. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a nation dedicated to fair trials and due process”.47 Douglas, J. reiterated this opinion in Paris Adult Theatre I v. Lewis R. Slaton48 that the contemporary community standard test is full of subjectivity and hence, it should be discarded. However, unfortunately the test laid in Miller case49 continues to hold the field.

However, there are a few exceptions to the contemporary community standard test as laid down in Miller case50. The first exception being that even those materials which will not be considered as obscene under Miller test can be regulated under some conditions. The American Supreme Court has upheld many laws which imposed time, place, or manner restrictions on sexually explicit but non-obscene speech.51

Secondly, the American Supreme Court has also ruled that mere possession of hardcore pornography cannot be considered as a crime because it violates right to privacy.52 Furthermore, the Miller Standard test does not apply in those cases wherein children are involved either as actors or consumers. The Court in Sam Ginsberg v. State of New York53 upheld a statute which made it a crime to sell sexually explicit non-obscene materials to minors. It is also pertinent to note that even possession of child pornography is considered as a crime and the accused cannot take the plea of right to privacy.54

Harm based test: A better alternative

The Canadian Supreme Court and the South African Constitutional Court have laid down the harm-based test to determine whether something is obscene or not. In Butler v. R.55, the Canadian Supreme Court classified obscene material into three categories. First are those that depict explicit sex with violence. The second is explicit sex without violence but subjects' participants to treatment that is degrading and dehumanising. Third being explicit sex without violence that is neither degrading nor dehumanising.

The Court further ruled that:

The first two categories of material can justifiably be outlawed and the same is also constitutionally permissible as well. The main objective of censoring such kind of material is not to preserve morals, but to protect the community from harm.56

The Constitutional Court of South Africa in De Reuck v. DPP57 upheld the constitutionality of the provision of a statute which criminalised the creation, distribution or possession of child pornography. The Court ruled that objectification and sexualisation of children violate their right to dignity. Hence, the law is constitutionally protected.58

A combined reading of both the judgments leads to the creation of harm-based test which understands harm in the context of protecting established constitutional values such as dignity and equality. This in the opinion of the researchers is a better test to regulate obscenity than the community standard test.

Conclusion and suggestions

“Freedom of expression … is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb the State or any sector of the population.” — Handyside v. United Kingdom59

If we look into the jurisprudence on obscenity laws, we will find that the Anglo-American approach is public morality based. On the other hand, the Canadian South-African approach is a harm-based approach. If we look into the Indian position on obscenity laws, we will find that it is mostly inspired by the Anglo-American approach. However, the Anglo-American approach suffers from the problem of subjectivity. Furthermore, it not only makes our obscenity law vague, but it also makes the fundamental rights of the citizens subservient to public morality.

Hence, the researchers believe that the Indian Supreme Court should discard the Anglo-American approach. Rather the Supreme Court should adopt the Canadian South-African approach which understands harm in the context of protecting established constitutional values such as dignity and equality.

Furthermore, the researchers believe that the morality clause as mentioned in Article 19(2) of the Indian Constitution60 neither depicts public morality or individual morality, rather it depicts constitutional morality. Hence only those works must be regulated which violates constitutional morality.

Now the question arises is what comes under the ambit of constitutional morality? Legal scholar Gautam Bhatia in his bookhasrightly argued that the most important aspect of constitutional morality is the right to equality.61 The author in his book has further contended that if we look into the Indian Constitution, we will find that there are many articles which ensure equality in Indian society (Articles 15-1862). Thus, a combined reading of all the articles lead to the creation of principle of anti-subordination: a concept which would end all sorts of discrimination existing in society. The same can also be applied in sexual content. If the content of the material results in any form of subordination, then the material is not constitutionally protected.63

For instance, in the case of pornographic films, scholars like MacKinnon and Andrea Dworkin have rightly argued that constructing a social reality of dominance and submission in a pornographic movie, does not merely depict subordination, but actually subordinates women. The content should not be viewed as a representation of reality but is a reality itself. Thus, such content needs to be regulated.64

Hence, the researchers believe that by applying the harm-based test, principle of anti-subordination and by interpreting morality under Article 19 as constitutional morality, we will be able to ensure that the law on obscenity is not used by the authorities to establish and then police norms of civility and behaviour, rather it is used by the authorities to restrict speech which is in violation of constitutional morality and Constitution.


* LLM, NLIU, Bhopal. Author can be reached at rajkrishnasahay1997@gmail.com.

** LLM, CUSB, Gaya. Author can be reached at rahulsingh.cnlu@gmail.com.

3. (2014) 4 SCC 257.

4. Penal Code, 1860, S. 292.

5. R. v. Hicklin, (1868) LR 3 QB 360.

6. 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957).

7. Laurence H. Tribe, The Invisible Constitution (1st Edn., 2008) p. 2.

8. Cohen v. State of California, 1971 SCC OnLine US SC 119 : 29 LEd2d 284 : 403 US 15 (1971).

9. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India, (1st Edn., 2017) p. 109.

10. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India, (1st Edn., 2017) p. 109.

11. (1868) LR 3 QB 360.

12. R. v. Hicklin, (1868) LR 3 QB 360.

13. R. v. Hicklin, (1868) LR 3 QB 360, 371.

14. R. v. Hicklin, (1868) LR 3 QB 360.

15. R. v. Hicklin, (1868) LR 3 QB 360.

16. R. v. Hicklin, (1868) LR 3 QB 360.

17. R. v. Hicklin, (1868) LR 3 QB 360. See also, Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India, (1st Edn., 2017) p. 113.

18. R. v. Hicklin, (1868) LR 3 QB 360. See also, Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 114.

19. (1868) LR 3 QB 360.

20. Obscene Publication Act, 1959, S. 13 (UK).

21. Obscene Publications Act, 1959, S. 1(1) (UK).

22. Durga Das Basu, Commentary on Constitution of India, Vol. 4 (9th Edn., 2014) p. 3784.

23. Penal Code, 1860.

24. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 108.

25. Mohit Kandpal, “Evolution of Obscenity from the Victorian Era to the Republic of India”, The NUJS Society for Advancement of Criminal Justice (5-1-2022), <https://www.nujssacj.com/post/evolution-of-obscenity-from-the-victorian-era-to-the-republic-of-india>.

26. Mohit Kandpal, “Evolution of Obscenity from the Victorian Era to the Republic of India”, The NUJS Society for Advancement of Criminal Justice (5-1-2022), <https://www.nujssacj.com/post/evolution-of-obscenity-from-the-victorian-era-to-the-republic-of-india>.

27. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 110.

28. Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (1st Edn., 2017) p. 110.

29. Penal Code, 1860, S. 292(1).

30. AIR 1965 SC 881.

31. Ranjit D. Udeshi v. State of Maharastra, AIR 1965 SC 881.

32. Ranjit D. Udeshi v. State of Maharastra, AIR 1965 SC 881, para 21.

33. Ranjit D. Udeshi v. State of Maharastra, AIR 1965 SC 881.

34. AIR 1965 SC 881.

35. Criminal and Election Laws Amendment Act, 1969.

36. (1985) 4 SCC 289.

37. Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, 313-314, para 29.

38. Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, para 35.

39. (2014) 4 SCC 257.

40. Aveek Sarkar v. State of W.B., (2014) 4 SCC 257, para 23.

41. 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957), para 15.

42. Roth v. United States of America, 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957).

43. 1957 SCC OnLine US SC 106 : 1 L Ed 2d 1498 : 354 US 476 (1957).

44. 1964 SCC OnLine US SC 156 : 12 L Ed 2d 793 : 378 US 184 (1964).

45. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973), para 17.

46. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973).

47. Marvin Miller v. State of California, 1973 SCC OnLine US SC 156 : 37 LEd2d 419 : 413 US 15 (1973), para 51.

48. 1973 SCC OnLine US SC 165 : 37 LEd2d 446 : 413 US 49 (1973).

49. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973).

50. 1973 SCC OnLine US SC 156 : 37 L Ed 2d 419 : 413 US 15 (1973)

51. Coleman A. Young v. American Mini Theatres Inc., 1976 SCC OnLine US SC 142 : 49 L Ed 2d 310 : 427 US 50 (1976); City of Renton v. Playtime Theatres Inc., 1986 SCC OnLine US SC 31 : 89 L Ed 2d 29 : 475 US 41 (1986).

52. Robert Eli Stanley v. State of Georgia, 1969 SCC OnLine US SC 78 : 22 L Ed 2d 542 : 394 US 557 (1969).

53. 1968 SCC OnLine US SC 78 : 20 L Ed 2d 195 : 390 US 629 (1968).

54. Sam Ginsberg v. State of New York, 1968 SCC OnLine US SC 78 : 20 L Ed2d 195 : 390 US 629 (1968).

55. 1992 SCC OnLine Can SC 16.

56. Butler v. R., 1992 SCC OnLine Can SC 16.

57. 2003 SCC OnLine ZACC 19 : [2003] ZACC 19 : (2004) 1 SA 406.

58. De Reuck v. DPP, 2003 SCC OnLine ZACC 19 : [2003] ZACC 19 : (2004) 1 SA 406.

59. (1976) 1 EHRR 737.

60. Constitution of India, Art. 19(2).

61. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (1st Edn., 2016).

62. Constitution of India, Arts. 15 to 18.

63. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (1st Edn., 2016) p. 128.

64. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (1st Edn., 2016) p. 128.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: K Murali Shankar, J. quashed the proceedings initiated against an advocate who happens to be the counsel of the accused in a case sub-judice in a Court of law. The Court reprimanded the practice of implicating advocates as accused, as in the given case the advocate accompanied the Advocate Commissioner to the disputed suit property which forms the subject matter of a sub-judice case and implicated for offences such as trespass, theft and criminal intimidation.

The petitioner is a practicing Advocate in the Courts at Dindigul for the past 29 years and he is the Counsel on record for the accused Balaguru and Leelavathy in title dispute sub-judice in a Court of law. The case of the prosecution is that when the defacto complainant and his family members went to Trichendur, all the five accused broke open the door of the defacto complainant’s house, trespassed into the house and had stolen Rs.1, 00,000/- cash, one laptop and some documents, that when the defacto complainant and his wife returned to their home from Trichendur, they were prevented from entering into their house and that the accused Leelavathi and Balaguru had caused criminal intimidation.

F.I.R was registered for the offences under Sections 147, 454, 380, 341 and 506(i) Penal Code, 1860 (‘IPC'), against 5 persons including the petitioner, charge sheet was filed and non-bailable warrant (‘NBW') was issued against the petitioner after showing him to be an absconding accused. Thus, an instant petition was filed by the petitioner under Section 482 Criminal Procedure Code (CrPC) for quashing the proceedings.

Based on alteration report filed by Sub Inspector before the Court, the Court observed that the alleged complaint of stealing cash, laptop and other documents was not true, that there was no stealing of such articles and that the defacto complainant with an evil intention to implicate the accused with theft case has raised false allegations.

The Court observed that as per the Advocate Commissioner’s interim report, the petitioner had visited the disputed property along with the Advocate Commissioner after 08.00 PM, on the occurrence day. It was noted that the nature of work of an Advocate is not only limited to the Courts, and they are expected to visit the property in dispute or the scene of occurrence to have first-hand information and direct such information about the property in dispute or the occurrence scene. Moreover, it is their bounden duty to accompany the Advocate Commissioner appointed in the cases for inspecting the disputed property and for other purposes.

The Court noted that a new trend has been emerging in implicating the Advocates as accused along with their clients with ulterior motive of achieving the intended result quickly or immediately. Thus, the Court held “permitting the prosecution to proceed against the petitioner is totally unwarranted and the same would amount to be an abuse of process of the law.”

[P Velumani v. The State, Crl O P (MD) No. 3653 of 2019, decided on 07-07-2022]


Advocates who appeared in this case :

Mr. M. Sheik Abdullah, Advocate, for the Petitioner;

Mr. K. Sanjai Gandhi, Government Advocate, for the Respondents(Crl. Side).


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

The facts of the case are such that the Supreme Court was left with no choice but to confirm his death sentence, even though in several cases, the Courts have refrained from awarding or approving death sentence even in the cases of gruesome killings, essentially on the premise that even a semblance of probability of reformation of the convict ought to be given a chance, rather than awarding capital punishment, which is of irretrievable nature.

The Crime(s)

The appellant kidnapped the victim girl, who was only 7½ years of age, who was even otherwise a mentally and physically challenged child, with betrayal of trust when the victim girl got lured with confectionary items given by him. He then brutally raped the victim girl and eventually mercilessly killed the girl by causing horrid injuries on her head. All these crimes were committed by using a stolen motorcycle.

The appellant, who was about 28 years of age and was having the family of wife, a daughter who was also about 8 years of age and aged parents, was continuously involved in criminal activities even prior to this crime ranging from Section 3 of Prevention of Damage to Public Property Act, 1984, Section 379 IPC and even 307 IPC.

It is important to note that the appellant’s criminal acts did not stop even after his conviction for this beastly crime. Even while in jail, the appellant’s conduct has not been free from blemish where, apart from quarrelling with other inmate and earning 7 days’ punishment, the appellant had been accused and convicted of the offence of yet another murder, this time of a co-inmate, a Pakistani National, while joining hands with three other inmates.

Aggravation/Mitigating Circumstances

The appellant has a family with wife and minor daughter and aged father and the crime was committed when he was only 28 years of age. However, these mitigating factors are pitted against following factors pertaining to the appellant himself.

  1. Contiuously involved in criminal activities prior to commission of the crime in question.
  2. The crime itself was carried out with the aid of a stolen motorcycle.
  3. Postconviction he not only earned 7 days’ punishment in jail for quarrelling with a co-inmate but he has been convicted of the offence of murder of another jail inmate.

When an attempt was made before the Court to suggest on behalf of the appellant that his overall conduct in prison is without any blemish except the allegation of his involvement in a case of murder, it observed,

“We could only wonder what more of criminal activity would qualify as blemish, if not the involvement and conviction in a case of murder of a fellow jail inmate! This is apart from the other 7 days’ punishment earned by the appellant for quarrelling with another jail inmate.”

Hence, the Court observed that read as a whole, the fact-sheet concerning the appellant leads only the logical deduction that there is no possibility that he would not relapse again in this crime if given any indulgence.

The Court confirmed the conviction of the appellant of offences under Sections 363, 365, 376(2)(f), 302 of the Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012; and the sentences awarded to the appellant, including the death sentence for the offence under Section 302 of the Penal Code, 1860.

[Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, decided on 24.06.2022]


*Judgment by: Justice Dinesh Maheshwari

Counsels

For appellant: Senior Advocate A. Sirajudeen

For State: Dr. Manish Singhvi