Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Amol Rattan Singh, J., held that police stations including the interrogation room should be covered by CCTV surveillance.

Petitioner sought a direction to respondents 1 to 3 stating that whenever he be taken for interrogation, videography be done of his leaving the jail premises till his reaching the police station concerned and during interrogation, a videography be also done.

Further, it was prayed that during the interrogation his medical examination be also conducted through a board of doctors or through a civil hospital, so that if any torture ‘is done to him’, then it can be revealed through the said medical examination.

Adding to the above, the petitioner also prayed that when he is to be taken outside the jail on remand, then either his family members or his lawyer be informed of the location, with his lawyer to be permitted to be present there, where he is being taken and appropriate security be also provided so that he may not be killed in a fake encounter.

Lastly, it was prayed that respondents 1 to 3 be directed to comply with the provisions of Section 31 of the Prisons Act, 1984.

On 3-12-2021, this Court had directed the DGPs of Punjab and Haryana to file affidavits in response to observations made in that order, in reply to which the affidavits were filed.

Analysis and Discussion

With the directions issued by the Supreme Court in Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184 also being to the extent that cameras be installed at not just entry and exit points and main gates of police stations, but also in all lock-ups, corridors, lobby and reception areas, verandas, out houses, rooms of officials, outside the lock-up rooms, station hall and in front of the police station compound, as also outside washrooms and toilets, the obvious implication is that no part of the police stations would be left uncovered by CCTV surveillance.

In view of the above, Court stated that in view of the above any interrogation room would also be covered by such directions.

DGP, Haryana and DGP, Punjab have been directed to file affidavits as to whether the directions laid down in the Supreme Court decision have been complied with or not.

The non-compliance of the directions issued by the Supreme Court in Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184, would amount to Contempt of Court and this Court would, naturally, also be bound to ensure that the directions issued by the Supreme Court are actually carried out at ground level by the States and Union Territory falling within the jurisdiction of this court.

High Court directed that in the case of every person who is in police custody or is being taken into police custody, all provisions of the CrPC, including Sections 41-B, 41-C, 41-D and 54, 55 and 55-A would be meticulously followed, with compliance reports in that regard to be made a part of the report under Section 173 of the CrPC, as regards even medical examination necessarily to be conducted in terms of Section 55-A thereof.

Bench reiterated that,

“police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force.”

Therefore, violation of the procedure laid down above especially leading to violation of human rights even in the case of worst criminal, cannot be ignored by any Court.

Lastly, the Court noted that it would be an excuse for India to take a plea that many other countries are far more advanced than India and therefore there can be no comparison with the methods adopted there, in interrogating accused persons here.

Bench highlighted that,

 We are the 5th or 6th largest economy in the world and therefore any such plea taken would only seem to be taken as an excuse to not actually adopt contemporary methods of investigation, including interrogation, rather than taking shortcuts by using third degrees methods etc.

High Court adjourned the matter to 9-2-2022. [Kaushal v. State of Haryana, CRM-M-43672 of 2021, decided on 7-1-2022]


Advocates before the Court:

Bipan Ghai, Sr. Advocate, with

Paras Talwar, Advocate, for the petitioner. Rajeev Anand, APP, for respondent 3.

Manreet Singh Nagra, AAG, Punjab.

Neeraj Poswal, AAG, Haryana.

Case BriefsHigh Courts

Delhi High Court: While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can‟t breathe”.

Petitioner complained of being mercilessly beaten, ill-treated and grievously injured by Delhi Police. Further, it was stated that he was never called for any enquiry apropos the alleged assault and/or the resultant injuries.

Photographs were annexed which showed that the petitioner was being assaulted by persons in police uniform.

The said assault was said to be questionable as the law does not permit people to be beaten up in police custody even during interrogation.

Petitioner contended that the so-called inquiry was a sham and mere paperwork and hence sought an inquiry to be conducted by an officer of a higher rank.

To inspire confidence in an inquiry, fairness of the procedure adopted and examination of the substantive issues, must be apparent. This fundamental principle has not been observed in the so-called “inquiry report”.

Analysis, Law and Decision

High Court stated that, a fresh inquiry was warranted because ex facie the photographs and the video had shown that two men (said to be the petitioner and his well-wisher) were being assaulted repeatedly by a posse of policemen who are in uniform and in civilian attire.

Court noted that the violent pushing, punching and elbow strikes, started the moment they petitioners the precincts of the police station. The two civilians were not violent when they walked into the said precincts and possibly could not because they were surrounded and held by policemen. No unruliness or assault was seen on any policeman by the petitioner or his well-wisher. For the physical assault and beating given to the private individuals, there appeared no immediate provocation, perhaps it was because of some pique of the policemen.

Criminal Act

Punishment for an assault or a criminal act is to be determined by a court of law. The police cannot be a judge in its own cause. The law does not permit people to be beaten-up in police custody or during interrogation.

In view of the above, Court directed the Deputy Commissioner of Police (Vigilance) to conduct an inquiry. [Mohd Areeb Umar v. State NCT of Delhi, WP (Crl) 2096 of 2021, decided on 27-10-2021]


Advocates before the Court:

Sufian Siddiqui and Rakesh Bhugra, Advocates

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and KM Joseph*, JJ has dismissed the bail plea of activist Gautam Navlakha arrested in relation to the Bhima Koregoan riots case.

Allegedly, some activists, including Navlakha, made inflammatory speeches and provocative statements at the Elgar Parishad meet in Pune on December 31, 2017, leading to violence at Koregaon Bhima in the district the next day. 

He was arrested from his residence in Delhi on 28.08.2018, where after he moved a Writ of Habeas Corpus in the High Court of Delhi. The High Court, on the same day, not only stayed his transit remand but also put him under house arrest. The order read,

“The petitioner shall, in the meanwhile, be kept at the same place from where the was picked up with two guards of the Special Cell, Delhi Police along with local Police that was originally here to arrest the petitioner, outside the house. Barring his lawyers, and the ordinary residents of the house, the petitioner shall not meet any other persons or step out of the premises till further orders.”

It is also important to note that on the same day, about 2 hours before the High Court passed the aforementioned order, the CMM had ordered a transit remand, directing the Navlakha to be kept in Police Custody for 2 days.

On 01.10.2018, the High Court of Delhi set aside the transit remand, as the transit remand ordered by the magistrate was found illegal on the ground that detention beyond 24 hours was clearly impermissible.

Next day, a writ was filed before the Supreme Court by “five illustrious persons in their own fields” against the high-handed action of the Maharashtra Police and the arrest of five Activists from their homes. In the interim orders, the Court extended the “benefit of house arrest” of the appellant, to others as well. The order of house arrest of appellant was extended.

In the present case, Navlakha, who was kept under house arrest for 34 days in the year 2018, had sought default bail on the ground that the period of 34 days be included within the period of 90 days under Section 167 of CrPC. 

It was Navlakha’s case that when the High Court passed the order of house arrest on 28.08.2018, it modified the remand from police custody to house arrest and hence, it would fall under Section 167 of CrPC.

On the other hand, NIA had argued that the very purpose of custody under Section 167 is to enable the police to interrogate the accused and if that opportunity is not present then such period of custody as alleged would not qualify for the purpose of Section 167.

The Court held that the house arrest of the appellant was not purported to be under Section 167 and hence, cannot be included within the period of 90 days under Section 167 of CrPC. 

The Court noticed that the CMM had not ordered detention for the period after 30.08.2018. Detention was ordered by him only for two days and the appellant was to be produced on 30.08.2018. By the order of the High Court of Delhi, the transit could not take effect. Therefore, the entire period after 30.08.2018 till 01.10.2018 cannot be said to be based on the order of the magistrate. The said period in fact is covered by the order of house arrest.

The Court noticed that if the House Arrest order is perceived as an order passed under Section 167 then there would not be any detention beyond 24 hours of the arrest which could be illegal.

“The appellant was an accused in a FIR invoking cognizable offences. He stood arrested by a Police Officer. He was produced before a Magistrate. A transit remand, which was a remand, under Section 167, was passed. Police custody followed. The High Court ordered that the appellant be kept in house arrest. The setting aside of the Order of transit remand will not wipe out the Police custody or the house arrest.”

While the Court agreed that the house arrest was, undoubtedly, perceived as the softer alternative to actual incarceration, it clarified that,

“That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court.”

[Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, decided on 12.05.2021]


*Judgment by: Justice KM Joseph

For Appellant: Senior Advocates Kapil Sibal and Nitya Ramakrishnan, Advocate Shadan Farasat

For Respondent: Additional Solicitor General S.V. Raju

 

Case BriefsSupreme Court

Supreme Court: In a major verdict, the bench of UU Lalit and KM Joseph*, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Upon being found guilty instead of sentencing the convict to a term in prison and in lieu of incarceration, as a condition of probation, the convict is compelled to confine himself to his place of residence. Such confinement is called House Arrest.

According to the data published by the National Crime Records Bureau (NCRB), there were a total number of 1350 prisons as of the year 2019, consisting of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 Other than the above jails.

The occupancy rate of these prisons has climbed to 118.5 percent in 2019 as on 31st December. The occupancy rate is alarming for male prisoners. In fact, during 2019, a total of 18,86,092 inmates were admitted in the jails. The figure of 4,78,600 prisoners as on 31st December, 2019 is the figure obviously after considering the number of prisoners who would have been inter alia bailed out. The number of under trial prisoners in 2019 was 3,30,487 which in fact constituted 69.05 per cent of the total no. of prisoners. Delhi had the highest occupancy rate of 174.9 percent followed by Uttar Pradesh which came second with 167.9 percent. This means that in Delhi a prison which was meant to be occupied by 100 persons, was used for accommodating 174 persons.

Also, a very large sum (Rs. 6818.1 crore) was the budget on prisons. Both aspects are relevant in the context of the possibilities that house arrest offer.

[Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382, decided on 12.05.2021]


*Judgment by: Justice KM Joseph

For Appellant: Senior Advocates Kapil Sibal and Nitya Ramakrishnan, Advocate Shadan Farasat

For Respondent: Additional Solicitor General S.V. Raju

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J., while dismissing a criminal writ petition seeking to challenge the grounds preferred for detention, said, “A Court is not a proper forum to scrutinize the merits of administrative decision to detain a person.”

Brief Facts

Petitioner in the instant case was arrested in the first week of October, 2018, detained illegally for several days and thereafter was implicated in FIR No. 22 of 2018 under Sections 307 Ranbir Penal Code (“RPC”), Sections 7/27 of Arms Act, Sections 3/4 Explosive Substances Act and FIR No. 25 of 2018 under Sections 307 RPC, Sections 7/27 Arms Act by the Police Station, Pulwama. Subsequently, the petitioner was placed under preventive detention following the detention order of the District Magistrate, Pulwama. Aggrieved by the impugned order, and alleging that the said detention was devoid of any procedural safeguards under the Constitution of India as well as the J&K Public Safety Act, the petitioner has moved before this Court.

Contentions

The Counsel for the petitioner made the following contentions;

  1. That the grounds of detention are vague, equivocal, obscure, indefinite, not connected or not proximately with the detenu and are mere assertions of detaining
  2. That the case mentioned in grounds of detention has no nexus with detenu and has been fabricated by police in order to justify its illegal action of detaining the detenu.
  3. That the detaining authority has mentioned two FIRs in the grounds of detention, however, no specific details have been put on records mentioning date, month or place of occurrence.
  4. That the respondents have not provided copies of the documents referred to in the grounds of detention and relied upon by the detaining authority, enabling the detenu to make an effective representation.
  5. That the detenu, who was already in custody of police in respect of aforesaid FIRs, reflected no immediate possibility of being released on bail and that there was no compelling reasons given in grounds of detention for passing such order.

Observation

The Court made noticeable remarks, while citing settled precedents and related legislations on the said subject matter. It reiterated that the Right to personal liberty is most cherished right guaranteed under our Constitution and has been transcendental, inalienable to a person independent of the Constitution and further explained the objective, administrative limits & checks while exercising the Preventive Detention Laws.

  1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; A person is not to be deprived of his personal liberty except in accordance with the procedure established by law and such procedure must be just, fair and reasonable.
  2. Sasthi Chowdhary v. State of W.B., (1972) 3 SCC 826; “It is pertinent to mention here that preventive detention means detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure conviction of detenu by legal proof, but may still be sufficient to justify his detention.”
  3. Haradhan Saha v. State of W.B., (1975) 3 SCC 198; “While the object to punitive detention is to punish a person for what he has done, the object of preventive detention is not to punish an individual for any wrong done by him but curtailing his liberty with a view to preventing him from committing certain injurious activities in future. Punitive incarceration is after trial on the allegations made against a person whereas preventive detention is without trial into the allegations made against him.”
  4. State of Maharashtra v. Bhaurao Punjabrao, (2008) 3 SCC 613; “Preventive justice requires an action to be taken to prevent apprehended objectionable activities. The compulsions of primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose their entire meaning, are the true justifications for the laws of preventive detention. This justification has been described as a jurisdiction of suspicion and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty.”
  5. Abdul Latif v. B.K. Jha, (1987) 2 SCC 22; “Under Article 22(4)(a), preventive detention for over three months is possible only when an Advisory Board holds that, in its opinion, there is sufficient cause for such detention. The Advisory Board must report before the expiry of three months. If the report is not made within three months of the date of detention, the detention would become illegal.” In the present case, Advisory Board has furnished its Report disclosing sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the State Interest.

With respect to legislative safeguards, the Court referred and stated,

  1. Article 22(4) & 22(5) of the Constitution of India; detenu to be informed, as soon as may be, the grounds on which the order of detention is so made and further ensure the earliest opportunity of making representation by him against such order.
  2. Sections 8,9,10, 13 of the Public Safety Act, 1978.

Decision

While dismissing the petition on lack of merit, the Court said, “The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not.” It further said that the grounds of detention in the present matter are definite and free from any ambiguity as pleaded by the petitioners. Furthermore, the records placed for the Court’s perusal show that detenu has been informed with sufficient clarity, about the facts and figures of what actually convinced the detaining authority while passing such order.[Riyaz Ahmad Bhat v. State of J&K, 2020 SCC OnLine J&K 507, decided on 30-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The Commission takes suo-motu cognizance of the matter and directs the issuance of notice to the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within 4 weeks including the status of the investigation of the cases registered in connection with both the cases of murder.

The Commission also directs to issue a notice to the Chief Secretary to the Government of Uttar Pradesh calling for a report on whether any relief has been granted to the NOK of the deceased as the state has failed to secure the right to a fair trial of the victim. He is also expected to inform the status of any disciplinary action initiated against the delinquent officers/officials.

According to the police, the deceased man was from Gorakhpur and had come to the village, looking for a teacher named, Sudhir Kumar Singh. As soon as he saw Singh, he took out his father’s gun and killed the teacher, according to the police. After shooting the teacher, the man tried to escape but on spotting a crowd outside the house, he climbed the terrace, waved the gun and fired to keep the villagers at bay. A police team followed him to the terrace but the man escaped and was caught by a crowd, which set upon him. The videos relating to the incident emerged later, showed the man in police custody before the mob grabbed and attacked him.

According to the media reports, several policemen were present on the spot when the incident occurred. Some of the policemen were seen trying to control the crowd but the blows did not stop even when the man lay motionless. The police station in-charge of the area has been suspended for negligence. The victim’s head appeared to have been bashed in as the ground was splattered with blood.

The Commission has perused the contents that cruel high handedness by the villagers, taking law in their hands that too in the presence of police force, cannot be denied. A well-equipped police team was present on the spot when the victim was brutally attacked with sticks and stones.

The police personnel present at the time of the fateful incident and their in-charge definitely failed to do their lawful duty. Human life has been lost due to the apparent negligence of the public authority. This is a serious violation of human rights.


NHRC

Press Release dt. 08-09-2020

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., while deciding a petition with regard to the investigation of Sanjeev Chawla alleged for acting as a bookie in fixing the India and South Africa cricket matches from 16-02-2000 to 20-03-2000, held that,

“Investigating Agency in the said matter is permitted to conduct an interrogation of the petitioner at Tihar jail complex only in terms of timeline stipulated in terms of Section 167(2) of CrPC, 1973, for a period not exceeding 15 days from the date of arrest.”

Background of the Case

Sanjeev Chawal (Petitioner) a citizen of United Kingdom was an accused under Section 173 of CrPC for the allegation of commission of offences punishable under Section 420/120-B Penal Code, 1860 in relation to,

An alleged conspiracy to fix matches during the India-South Africa Cricket series played through February-March, 2000 in alleged connivance with Hansie Cronje, Captain of South Africa Cricket Team.

Petitioner had allegations of being the main conduit in match-fixing.

Averments in the police report under Section 172 of CrPC submitted by the Crime Branch, three accused persons were arrested, Sanjeev Chawla (Petitioner) and Manmohan Khattar allegedly absconded having left for UK and Canada, respectively.

Petitioner had further been extradited on 12-02-2020.

Through the petition filed, petitioner submitted that trial court failed to consider and take into account the three Letters of Assurances of the Ministry of Home Affairs, whereby the Government of India had given a solemn sovereign assurance that at all times and during pre-trial custody, petitioner would be lodged at the Tihar Jail Complex, Delhi and that thus, no police remand could be granted and that the petitioner had been extradited from the United Kingdom only to face trial and not for any investigation.

Senior Advocate Vikas Pahwa, on behalf of the petitioner reiterated that the extradition had been granted only on the basis that the petitioner was being extradited to face trial and not for any investigation and thus, no investigation could be carried out nor permitted and that the pre-trial detention of the petitioner could only mean detention at the Tihar Jail and nowhere else as had been stated by the Government of India.

Further adding to the above, Clauses 9&10 of the Guidelines for Extradition issues by Ministry of External Affairs in India categorically spelt out the extradition could be granted only for the trial on the basis of the evidence made available in the charge sheet and not for the purpose of any investigation.

APP, Kewal Singh Ahuja on behalf of the Government (NCT of Delhi) submitted that during the investigation it was found that the present petitioner had played the most vital role in the commission of the crime. Statements of Hansie Cronje and Hamid Cassim before the Kings Commission allegedly clearly pointed to his deep-rooted involvement in the case.

It was submitted by ASG, through the status report that neither the Investigating Agency nor the Government of India, had given any assurances that on extradition no further investigation in the matter could be carried out and that for the purposes of a fair trial, petitioner has to be confronted with the evidence against him to unearth the whole conspiracy.

“..in terms of the law of the land Section 173(8) of the Cr.P.C., 1973 provides for continuing investigation even after the filing of the police report under Section 173(2) of the Cr.P.C., 1973”

Thus, in the above view, it is submitted that the police interrogation of the petitioner was very essential.

Union of India submitted that,

“…from the investigation conducted so far, there is sufficient evidence to prove that the accused persons namely Sanjeev Chawla, Hansie Cronje, Krishan Kumar, Rajesh Kalra, Sunil Dara @ Bittoo and Manmohan Khatter mentioned in Column No 11 of the chargesheet had entered into a criminal conspiracy to fix the cricket matches played between India and South Africa from 16.02.2000 to 20.03.2000 in India.”

Union of India relied on the Extradition Treaty and the instruments of ratification between India and U.K.

Adding to above submissions, UOI submitted that petitioner falls under the category of “fugitive criminal” in terms of Section 2(f) of the Extradition Act, 1962 and thus trial of the petitioner qua the alleged commission of offence punishable under Section 420/120 IPC has to be conducted in which would not preclude the Investigating Agency from invocation of the powers of investigation in terms of Section 173(2) of CrPC.

“… in terms of Article 11 Sub-clause 3 of the Extradition Treaty between the United Kingdom and India, it is not necessary that the extradition can be made only when a charge sheet has been filed but if the material placed is sufficient to justify committal for trial to indicate that there is prima facie material to satisfy the Requested State that the fugitive is involved in the offence/ offences, the same would suffice to grant the prayer for extradition.”

Decision

ASG Supreme Court of India Sanjay Jain on behalf of Union of India expressly stated that the terms of Letter of Assurances would be followed in letter and spirit and that petitioner would not be taken out of Tihar Jail except with permission, granted by Court in terms of Section 173(8) of CrPC.

Thus, the bench disposed of the petition with a direction to effect that impugned order of trial court is modified to the effect that the petitioner during the entire stage of pre-trial detention, trial and conviction, if any, in terms of Letters of Assurances would continue to be lodged at Tihar Jail.

Further, petitioner cannot be taken out of Tihar jail for the purpose of investigation or interrogation in police custody, through the investigating agency in the matter is permitted to conduct the same at Tihar jail only.

The period of investigation will end on 28-02-2020; whereafter no further investigation will be granted.

Court also stated that the Investigating Agency shall, however, take care to ensure that the petitioner is treated with dignity during the investigation and interrogation conducted. [Sanjeev Kumar Chawla v. State, Crl. M.C. No. 870 of 2020, decided on 20-02-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of L.T.B. Dehideniya, Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an application filed by the wife of the deceased, Rathnayake Tharanga Lakmali, on behalf of her husband Ranamukage Ajith Prasanna, pleading that the respondents and the State have infringed the Fundamental Rights of her husband guaranteed to him under Article 11 and 13(1) of the Constitution.

The petitioner submitted that on 16-09-2010, when she was at home with her husband and children, a team of police officers had come to their house, searched the house and had found nothing after which they had arrested the deceased and took him away in a vehicle stating that he was taken in order to record a statement. On the following day, the petitioner went to the police station where she was not allowed to meet the deceased and the next day she was told that the deceased had been taken to her house, when she reached her house she was informed by her mother that the deceased was brought home by the police team and shown to them, and the aunt of the petitioner was also present who stated that the police had not allowed the deceased to speak to them and that she had fed the deceased while he was handcuffed and the deceased had pleaded to the aunt to save him as he had the apprehension of being killed. On 19-9- 2010, the elder brother of the deceased had informed the petitioner that the deceased was shot and taken to the Embilipitiya Hospital. The Post-Mortem Examination (PME) was held on 21st September. The petitioner claimed that her statements were recorded prior to the PME and that she had not been allowed to be present at the time of the PME.

Respondents, on the other hand, claimed that live ammunitions were recovered at the house of the deceased at the time of the arrest further that facts were reported to the Magistrate of Embilipitiya through the Assistant Superintendent of Police (ASP) and a detention order was obtained hence,  the deceased was arrested and detained properly.

The aunt of the petitioner had described that the deceased had a pale and swollen face when he was brought home. Upon the conclusion of the inquest proceedings, before the Order was made, the petitioner had made an application before the learned Magistrate requesting that a JMO other than the JMO in Embilipitiya be directed to conduct the Post-Mortem Examination as she could not expect an accurate report from the latter. However, the Magistrate disallowed the application. Further, the Magistrate made an order and found that the deceased’s death was caused by the discharge of a bullet from a firearm and referred the matter to the Attorney-General. Supported from interim relief the Petitioner made an application to direct the learned Magistrate of Embilipitiya to exhume the body of the deceased and to conduct a fresh Post-Mortem Examination by a competent JMO of Colombo or Karapitiya Teaching Hospital, Galle. The Court, after hearing submissions of both parties directed the JMO of the Karapitiya Teaching Hospital, Galle to conduct a second Post-Mortem Report.

The Court while allowing the application stated that the right to life as implicitly recognised in Chapter III of the Constitution is reinforced by International Conventions ratified by Sri Lanka and expressed the view that Articles 11 and 13 have been violated by the respondents; further, the State has failed its responsibility and has violated the Fundamental Rights of the deceased. Accordingly, the Court directed the State to pay Rs 1 million to the petitioner. [Rathnayake Tharanga Lakmali v. Niroshan Abeykoon, 2019 SCC OnLine SL SC 14, decided on 17-12-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission, NHRC, India has taken suo motu cognizance of media a report that a resident of Kedi Mau village in Hunterganj of Chatra District, Jharkhand was taken into custody by the police on 24.11.2019 on suspicion of being a supporter of Naxalites and later died.

The family members of the deceased and the villagers have, reportedly, alleged that the victim was a farmer and he had been illegally arrested, physically tortured and killed by the police personnel. Reportedly, the police team asked him to guide them in the forest to arrest some Naxalites.

The Commission has observed that even if, the police personnel had apprehension that the victim was involved in the Naxal activities, his death in police custody cannot be justified in any manner. Apparently, the victim died in police custody and the sequence of events is indicative of possible abuse of power by the police force, violating the right to life of the deceased. A precious life has been lost and it is indeed a matter of concern for the Commission.

Accordingly, it has issued a notice to the Director-General of Police, DGP, Jharkhand calling for a detailed report in the matter within, six weeks including the Inquest report, Magisterial Enquiry Report under Section 176 (1a) Cr.P.C, Post-mortem examination report along with video CD and record of treatment at primary health centre and the district hospital where the deceased was reportedly taken before death.

The Commission has also directed the DGP, Jharkhand to sensitize the officers concerned and submit an explanation as to why this matter was not reported to the Commission within the stipulated 24 hours of the occurrence of the custodial death in spite of specific directions given to all the state authorities.

According to the media report, carried today on the 26th November, 2019, the son of the victim Bechan Ganjhu has stated his father was arrested by the police from their residence and later, he was beaten up. As the news of physical torture of the victim spread, the son of the victim, along with village head, reached the police station but he was not allowed to meet his father. In the evening when they were returning back, a message was given to them that the victim was not feeling well and he had been sent to the Sadar hospital. The villagers reached the hospital but they were not allowed to see the victim. Next morning, the police personnel informed the family about the death of the victim.

As mentioned in the news report, the victim was perfectly alright when he was arrested by the police. The villagers have also stated that they witnessed the victim being beaten up by the “Cobra” team of the police, who allegedly whisked away from the villagers from the spot. Reportedly, the police have claimed that after the arrest, the victim Bechan Ganjhuwhom was being taken to the police station when his condition deteriorated and he was taken to the primary health centre from where he was referred to the Sadar hospital and there he was declared dead by the doctors.

The Deputy Superintendent of Police of the area has, reportedly, also stated in a press release that they had arrested three persons associated with the Naxalites, who were planning big damage to the security forces. Reportedly, a gas cylinder, drill machine and IED material has been recovered by the police from the arrested persons.


National Human Rights Commission

[Press Release dt. 26-11-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of media reports that a woman and her two sisters were allegedly stripped and tortured inside a police station in Darrang district of Assam.

Reportedly, the incident happened while they were being interrogated by the police in connection with a case of their brother, who had, allegedly, eloped with the girl of a different religion. It is mentioned in the news report that the woman was carrying pregnancy of more than two months and due to injuries, she allegedly sustained at the police station, the pregnancy had to be terminated.

The Commission has observed that the contents of the media reports, if true, raise a serious issue of violation of human rights. Accordingly, notices have been issued to the Chief Secretary and the DGP, Assam calling for a detailed report on the matter within four weeks including medical treatment record of the victim and present status of her health condition.

The report must speak whether prior permission of the Judicial Magistrate was taken by the police team to arrest the women victims during the night of 08.09.2019. The Commission would also like to know whether any steps have been taken by the state authorities to provide any kind of relief and counseling to the victims.

The Commission has also observed that apparently, as reported in the media, the police authorities have violated Section 46 (4) of the Cr.P.C. by picking up the women victims, after the sunset. The brother of the victims is reportedly wanted in a criminal case and not the victims. The police authorities had taken the victims in their custody, in an illegal manner. The reported medical condition of one of the sisters is indicative of the fact that they were tortured by the police.

According to the media reports, carried today on 19th September, 2019, the incident occurred on 08.09.2019 and it came to light on 10.09.2019, when the victims, after failing to get any response from the police authorities, decided to approach the media. One of the sisters lodged the complaint with the Superintendent of Police, Darrang on 10.09.2019, alleging that she, along with her sisters was picked up from their residence by the officer-in-charge of Burha police outpost, in the night of 08.09.2019 and they were tortured inside the police station. Two policemen and a woman constable were reportedly involved in torturing them throughout the night asking the whereabouts of their brother. Later, one of the sisters, who was pregnant, was hospitalized and the doctors told her that her pregnancy is to be terminated.

As mentioned in the news report, a Sub-Inspector and lady constable who were accused to have been involved in stripping and torturing of three sisters, have been placed under suspension and a DIG rank officer has been assigned the task of supervising the investigation.


National Human Rights Commission

[Press Release dt. 18-09-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of respondent authorities, whereby petitioner was taken into preventive custody and lodged in Central Jail, Kotebhalwal, Jammu.

The main issue that arose before the Court was whether an order of preventive detention can be passed while the accused is already in police custody.

The Court observed that as per the judgment of Sama Aruna v. State of Telangana, (2018) 12 SCC 150, it is a settled proposition of law that a person cannot be taken into preventive detention while he is already in police custody. In that case, the Supreme Court had held that an order of preventive detention cannot be passed against an accused while considering a stale incident which took place a long time ago. The Court further observed that it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenu, to file an affidavit in order to attach a semblance of fairness to his actions.

The Court held that the respondents in the instant matter had placed the petitioner under preventive detention while he was already in police custody; this action on the part of respondents is unjustified. Further, the respondents did not even supply the material to the petitioner, which formed the basis of the order of preventive detention. Resultantly, the petition was allowed and the order of preventive detention was quashed.[Farooq Ahmad Bhat v. State of J&K,2018 SCC OnLine J&K 924, order dated 01-12-2018]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Birendra Kumar, J. granted bail to a person accused under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) having regard to the inordinate delay in conclusion of trial.

The appellant was an accused in an offence that related to the carnage in which a number of persons were butchered to death. A case was registered against him under Sections 147, 148, 149, 341, 324, 307, 120B, 302 of the Indian Penal Code, Section 27 of the Arms Act, Section 3 of the Explosive Substance Act and Section 3(2)(5) of the SC/ST Act. Aggrieved by an order of the trial judge refusing grant of regular bail to him, he preferred the instant appeal under Section 14-A (2) of the SC/ST Act.

It was noted that the report of the learned trial Judge revealed the case to be at the stage of prosecution evidence but no witness had turned up till the date of hearing of the present appeal.

Submission on behalf of the appellant was that he was not named in the first information report (FIR) and the informant in his further statement had disclosed the name of one Abhinash Sharma who faced trial and was convicted. Thereafter, there was no occasion to implicate another Abhinash Sharma, i.e., the appellant.

Considering the fact that the appellant had been in custody since the last eleven years and no prosecution witness had been examined during the trial, the court observed that it was highly unlikely that the trial would be concluded in the near future. Hence, the appeal was allowed directing the appellant to be released on bail on furnishing bail bond of Rs. 20,000.[Avinash Sharma v. State of Bihar,2018 SCC OnLine Pat 2017, decided on 06-11-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Uday U. Lalit and Dr D.Y. Chandrachud, JJ., gave certain directions pertaining to its earlier order in the case of  “Amrapali Group of Companies Case” and stated that 7 premises have been sealed.

The Apex Court on hearing the submissions and progress stated that for all the sealed premises the keys shall be handed over to the Forensic Auditors. The Forensic Auditors have submitted that the documents in respect of 46 companies have not been kept in a proper manner and are lying in a completely scattered fashion and disorganized manner.

The first task while keeping the note in regard to the “disorganized manner” in which the documents have been kept, the Court stated that this task of organization and cataloguing of the documents correctly is the need at present and further the documents which are presently lying in the custody are not secreted away.

The Supreme Court has further laid down certain directions while keeping the submissions of the Forensic Auditors and others in mind:

  • All three applicants and such personnel from their companies must render complete assistance during the organization and cataloguing of the documents.
  • Applicants shall remain personally present for next 15 days for the time specified, every day.
  • Police officer concerned shall personally supervise and see to it that the seals are opened at the specified time every day and are again resealed after the completion of that day’s operation.
  • Forensic Auditors are requested to depute representatives who will personally supervise the operation of cataloguing.
  • At no given point more than one premise will be de-sealed.
  • Operation for the day will be brought to the notice of Forensic Auditors so that the next day’s operations shall be planned out accordingly.
  • Till the documents required are supplied to the satisfaction of Forensic Auditors, the operations shall go on.
  • Forensic Auditors shall consider the feasibility of transferring the record which stands sealed from Rajgir and Buxar to any of the sealed places in Noida or Greater Noida.

The Supreme Court while concluding its order requested the internal auditors, the external auditors and the CFO who had worked with 46 companies in question to render assistance during the time of operation. Also, the three applicants will every day be brought to Hotel Park Ascent where they won’t be allowed to access mobiles or telephones or facility of meeting anyone without authorization by police.

The proceedings before DRT, Delhi in pursuance to this Court’s order are fixed for 15-10-2018, for which the representatives of the applicants shall be sent for representation with all the relevant documents and information.

The matter has been further listed for 24-10-2018. [Bikram Chatterji v. Union of India,2018 SCC OnLine SC 1923, Order dated 11-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Arun Mishra and U.U Lalit, JJ., in an order directed the police authorities to take in custody the directors of “Amrapali Group” as mentioned till the time all the documents as asked by the Supreme Court in its earlier order are handed over to the Forensic auditors.

The brief facts pertaining to the present order are that the Apex Court in its earlier order had repeatedly asked the “Amrapali Group of Companies” to hand over its original documents of accounts which they failed to do. In the earlier orders of the Supreme Court it was clearly stated and directed that all the account books, original documents etc. to be handed over to the forensic auditors, not only by the “Amrapali Group of Companies” but also those which were in possession of the statutory auditors.

The Supreme Court by looking at the non-compliance and violation of its earlier orders and justice being thwarted observed that “it is not only deliberate non-compliance of the order but effort is being made to fritter away the documents”. Therefore, the police authorities are directed to seize all the documents and to handover the documents to the forensic auditors after seizing them from the possession of 46 companies and their directors.

The Court also issued a notice to the contemnor-directors in order to show cause why proceedings for contempt be not initiated against them. It was again made clear that not even one single paper will remain with the auditors and directors of the Amrapali Group of Companies as all the documents to be handed over by the police to the forensic auditors.

The matter is listed for further hearing on 24-10-2018. [Bikram Chatterji v. Union of India, WP (C) No. 940 of 2017, Order dated 09-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. allowed an appeal filed against the decision of Bombay High Court whereby it had allowed a writ of habeas corpus directing the appellants to produce detenu under lawful custody.

One Mukesh Pandian, a private detective, was arrested by the police on information that he was obtaining and selling call record details of different people. In the course of investigation, Rizwan Alam Siddique (detenu) was also arrested on suspicion of obtaining call records of the wife of bollywood actor Nawazuddin Siddique. The said Rizwan was not cooperating in the investigation and in fact was found destroying evidence, pursuant to which he was arrested and produced before jurisdictional Magistrate who sent him to police custody. The respondent, wife of the detenu, rushed to the High Court and filed a habeas corpus writ  petition for production of her husband before the Court and setting him at liberty. The High Court, vide the order impugned, allowed the petition and set the detenu at liberty. The High Court also made scathing observations against the police officials concerned. Against the said order, the appellants filed the instant appeal.

The Supreme Court perused the record and considered submissions made by the parties. The Court relied on its earlier decisions in Saurabh Kumar v. Jailor, (2014) 13 SCC 436 and Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 and observed that the question — ‘whether a writ of habeas corpus can be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation?’ — was no more res integra. In Court’s opinion, no writ of habeas corpus could have been issued in such circumstances. When the writ was allowed, the detenu was under lawful custody pursuant to the orders of the Magistrate. The petition was filed without challenging the order of the Magistrate. It was not a case of continued illegal detention. Furthermore, since the petition was not maintainable in the first place, the High Court should have been loath in entering into the merits of arrest and recording scathing observations against the police officials. Therefore, the order impugned was set aside. The detenu had already been released after the order, so the Investigating Officer was directed to proceed strictly in accordance with law. The appeal was disposed of in the terms above. [State of Maharashtra v. Tasneem Rizwan Siddique,2018 SCC OnLine SC 1348, dated 05-09-2018]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: In a Single Judge Bench comprising of Ajit Singh, C.J., the conviction of the accused under Section 302/304 of the Indian Penal Code was held illegal as the confessions recorded by the accused when in police custody are inadmissible in evidence.

The brief facts of the case were, deceased Bhim Bahadur went to purchase articles from the weekly market and did not return for a very long time, which initiated his search by his daughters. Though his daughters were successful in finding him he did not return with them. The other morning his body was found for which an FIR was registered and further the body was sent for the post-mortem examination.

Appellants who were convicted and sentenced in the case claimed that the extra-judicial confessions which were recorded and the chain of circumstances made were not admissible as the confessions were recorded while they were in the police custody.

Therefore, the Hon’ble High Court, on considering the claim of the appellants stated that there was a glaring link missing amongst them. The fact that the appellants could not explain the death of Bhim Bahadur, drawing an inference through that against the appellants is an illegality committed on the part of the Trial Court. It was also observed by the High Court that the appellants were arrested on the basis of mere suspicion. On concluding its judgment, the Court stated that operation of Section 26 of the Evidence Act, the confessions recorded by the police was not admissible to any extent, further, this court found the appellants not guilty and be acquitted from jail. [Mintu Hasda v. State of Assam; 2018 SCC OnLine Gau 290; dated 06-04-2018]