Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J., slammed police authorities for tainted investigation and laxity in a sexual assault case. While warning the authorities of action for contempt for willfully and deliberately not complying with the Trial Court’s order; the Bench expressed,

“This is really surprising that in a case, which has been registered under POCSO Act and the victim is minor aged about 13 years, why the Investigating Officer has not made the victim as a charge sheet witness. Even the supervising authority has overlooked this fact.”

The instant case was about a minor girl who had been sexually assaulted. The applicant, who was accused of sexually abusing the victim, had highlighted some discrepancies in the investigation. The applicant contended the victim had not been examined in the case nor was she made a charge sheet witness. The applicant urged that in spite of several letters written to the SP and the D.I.G., the victim had not been produced and the applicant had been languishing put in custody for more than three years.

Evidently, a case was registered against the applicant under Section 341, 323 376 & 511 of IPC and Section 8 of the POCSO Act for sexually assaulting a minor girl aged about 13 years.

Expressing wonder over non-inclusion of the victim as a charge sheet witness, the Bench remarked, “This Court fails to understand as to why in an important case the victim has not been made a charge sheet witness.” Further, pursuing the order sheet of the Court below, wherein the Trial Court had directed the SP, DIG and DGP to produce the victim as Court witness, but the same had yielded no response; the Court came down heavily on the department, stating that,

All, the Superintendent of Police, DIG and D.G.P., Jharkhand did not take any action to produce the victim. These facts create doubt in the mind of the Court. Is the police authority taking side of the accused persons by not bringing the victim in the witness box, prima-facie this Court feels so.

Opining that, prima-facie, the authorities concerned could not be said to be bonafide, the Bench expressed,

“The questions are bound to arise if this type of investigation is made, leaving out the main person as witness in the charge sheet. Further, when the court directed to produce the victim, these officers shut their ears and did not even respond to the directions of the court. The letter of a court is not merely a letter.”

Hence, the Bench directed the authority to do what had been mentioned in the letter written by the applicant, since the letter was preceded by judicial order, the officers have committed contempt of court by not responding to those directions. The Bench expressed, “It is high time that this type of attitude should be taken note of and should be rectified. The rectification should come either internally or by external sources by punishing these officers after initiating a proceeding for contempt”. Thus, the DGP, Jharkhand was directed to look into the case and inform the Court by filing a personal affidavit on the following issues:-

  1. As to why the victim was not made a charge sheet witness.
  2. Who is responsible for not making the victim as charge sheet witness.
  3. If till date no responsibility had been fixed, the DGP shall fix the responsibility and furnish information as to what steps have been taken against those persons because of whose laches the victim had not been shown as charge sheet witness.
  4. Why the Superintendent of Police and DIG had not responded to the directions/letters of the Court which directs the officers to produce the victim as a court witness.
  5. What steps the DGP himself has taken to ensure production of the victim before the Court below pursuant to the order dated 16-01-2020 and letter dated 27-01-2020, which the court below had address to him for production of the victim.
  6. What steps DGP intends to take against the erring officials who have not produced the victim before the court so that her evidence could be recorded.
  7. Why not a contempt proceeding be initiated against the Investigating Officer, Officer-in-charge, the Superintendent of Police, and DIG, for wilfully and deliberately violating the orders of the court wherein the Trial Court had directed them to produce the victim as a witness.

The three week time was granted to the Director-General of Police, Jharkhand for making proper inquiry and verification to comply with the directions.[Anil Kunwar v. State of Jharkhand, B.A. No. 4304 of 2021, decided on 25-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Sudhanshu S. Choudhary

For the State: A.P.P. Nawin Kr. Singh

Case BriefsCOVID 19High Courts

Kerala High Court: K.Haripal, J., granted bail to the Police Officer accused of manhandling a doctor and subjecting him to violence. The Bench, though, stated,

“It is quite unfortunate that in spite of attending the duties in most diligent manner, they (doctors) have to suffer such indignation which go to the extent of suffering physical and verbal assault.”

 Background

The facts of the case were such that an FIR was registered under Sections 341, 294(b), 323, 332 read with 34 of the Penal Code,1860 and Sections 3 and 4 of the Kerala Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012, against the petitioner-a civil Police officer for man handling a doctor.  The case of the complainant doctor- Dr. Rahul Mathew was that he had been on night duty on  13-05-2021, when at about 04.15 A.M., a lady by name Laly was taken to the casualty for treatment. As it was reported that she was tested covid positive and was undergoing quarantine, though the complainant had rushed to the patient even without being in PPE kit; taking into consideration the urgency of the matter, but unfortunately, by the time he reached to the patient, she had died.

Alleging that there was delay in attending the deceased, the petitioner-son of the deceased abused the complainant and tried to manhandle him. Later, at about 7.30 A.M., two persons entered the complainant’s room, abused him, caught hold of his neck and slapped him. The complainant contended that the patient had died due to Covid complications. Even though her oxygen level was low, she was not taken to hospital on time.

On the other hand, the case of the petitioner was that the entire incident had happened due to the shock of death of his mother, that his mother did not get prompt medical attention when she was taken to hospital in a breathless condition. It was submitted by the petitioner that even after 10 to 15 minutes of their reaching the hospital, attention was not given; finally only with the help of an acquaintances, who was working as a helper in the hospital, the deceased was given oxygen; and by the time the doctor and nurses came, his mother had died.

Findings of the Court

Opining that, though the incident had happened in an emotionally charged stage, still the action of the petitioners could not be justified, the Bench stated,

“Even if they had a case that there was negligence on the part of the medical officer and hospital staff, that cannot be addressed by showing muscle power and manhandling the doctor in charge.”

The Bench stated that the version of the complainant indicated that on realising the seriousness of the situation, he had rushed to the place where the patient was brought even risking his own life without wearing a PPE kit. Thereafter, he suffered indignation and also physical assault.

“The petitioner is not an ordinary person but is part of the police department, a uniformed force, is expected to show utmost discipline. But he was taking law into his hands and was thrashing the medical officer in his room.” 

Considering the above mentioned, the Bench remarked that, “We cannot forget the sacrifices and devotion to the duty exhibited by the medical officers and health staff especially during the trying times when the pandemic condition was at its peak. The worsening situation could be bridled in our State only because of the devoted discharge of duties in a most religious manner by the medical staff. The huge pressure of work in a Government hospital is seen to be believed.”

However, noticing that the petitioner was a Civil Police Officer on probation, who was already under suspension due to his conduct and that the prosecution had no contention that he may flee from justice and will not make himself available for investigation and Trial, if found necessary; the Bench granted pre-arrest bail to the petitioner on condition to execute bond for Rs.50,000.[Abhilash Chandran v. State of Kerala, BAIL APPL. NO. 3959 OF 2021, decided on 25-06-2021]


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance before the Court by:

For the petitioner: Sr. Adv. P.Vijaya Bhanu, Adv. Nirmal V Nair, Adv. P.M.Rafiq, Adv. Manu Tom and Adv.  Sruthy N. Bhat

For the respondents: PP Santosh Peter and Adv. P. Sreekumar

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. dismissed the petition being devoid of merits.

The instant writ petition under Article 226 of the Constitution of India was filed for direction upon the respondents to lodge F.I.R. on the basis of written complaint made by the petitioner.

Counsel for the petitioner Mr. Afaque Rashidi submitted that submits that it is right of the petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R, which has not been done in the hand in hand.

Counsel for respondents Ms. Shivani Kapoor submitted that filing application under Article 226 of the Constitution is not an appropriate remedy. She submits that a proceeding under Section 107 CrPC has already been initiated. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered, proposed informant should approach before the Magistrate in terms of the Code of Criminal Procedure.

 The Court relied on judgment Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409 wherein it was held “the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police”

The Court further observed that if police is not registering the FIR, the remedy lies with the complainant to approach the Magistrate in terms of Code of Criminal Procedure. This alternative remedy is available to the complainant.

The Court held “since an alternative remedy is available to the petitioner, the Court is not inclined to exercise its power under Article 226 of the Constitution of India.”

[Agha Sahnawaz v. State of Jharkhand, 2021 SCC OnLine Jhar 330, decided on 08-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Atul Sreedharan, J., decided on a petition which was filed in the form of public interest litigation seeking direction to register FIR against Respondent 7 and Respondent 8, who are Police Constables posted at Police Station – Pardeshipura, Indore as they had misused their powers subjecting innocent rickshaw-puller to merciless beating. They prayed for a direction to the respondents to constitute an independent Committee or Grievance Cell, who may examine the complaints against excesses misconduct of the Policemen.

Counsel for the petitioner, Ms Shanno Shagufta Khan submitted that news article published in the newspaper Indian Express, Bhopal Edition on 8-4-2021 two constables of Police Station – Pardeshipura, Indore were placed under suspension after their video beating an auto rickshaw driver became viral on social media; allegedly for not wearing the mask in a proper manner. The counsel submitted numerous similar incidents which took place in the State. The counsel added that it was not only these cases but t a lawyer and two journalists were also subjected to assault by the police in Madhya Pradesh in last three months.

Mr Swapnil Ganguly, Deputy Advocate General for the respondent/State submitted that this Court in its order dated 17-5-2021 in Shekhar Choudhary v. State of Madhya Pradesh, W.P. No. 8655 of 2021 had already issued necessary order to the police directing that no citizen, who is found not wearing mask or not following social distancing norms or not following lockdown conditions, should be subjected to corporal punishment or beating and that in the current case charge sheet has been issued against Respondent 7 & 8 for taking appropriate disciplinary action.

The Court reiterated its earlier decision in Shekhar Choudhary v. State of Madhya Pradesh that policemen should rather counsel people by sensitizing them about the need of following Covid protocols such as wearing mask, following norms of social distancing or abiding lockdown/Corona curfew restrictions and directed the Superintendent of Police, Indore to take appropriate action against the erring police officials on complaints of excesses and beating by police.

[Osheen Sharma v. State of Madhya Pradesh, 2021 SCC OnLine MP 978, decided on 24-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Hot Off The PressNews

The National Human Rights Commission reiterating its recommendations for the payment of Rs 1 lakh each to the five victims of police atrocity has asked the government of Madhya Pradesh through its Chief Secretary to pay the balance amount of Rs. 50,000/- each to them.

Commission had registered the case on the basis of a media report alleging that five victim men, belonging to a tribal community, were assaulted by police and made to drink urine when asked for water at Nanpur police station in Alirajpur District of Madhya Pradesh in 2019.

The State Government, in response to the notices of the Commission, had confirmed that the victims were subjected to physical assault in the custody of police but it said that the allegations of forcing them to drink urine could not be substantiated.

It was also informed that the departmental proceedings against the eight erring police officials, including a Sub Inspector were initiated, but the Indore Bench of the Madhya Pradesh High Court, on the basis of a writ petition challenging the departmental proceedings, had stayed these until further orders. It was also informed that on the orders of the Tribal Welfare Department an amount of Rs. 50,000/- each was already paid to the five victims.


NHRC

Case BriefsSupreme Court

Supreme Court: In the case relating to the appointments to the post of Police Constables in the State of Uttar Pradesh, the 3-judge bench of UU Lalit, S. Ravindra Bhat and Hrishikesh Roy, JJ., has upheld State Government’s decision of shifting of candidates, who were earlier selected against posts meant for reserved categories, to the open category.

The Court has held,

“With the availability of 3295 additional posts, in the re-working exercise, if the candidates who were already selected against reserved posts were entitled to be considered against open category posts, that exercise cannot be termed as illegal or invalid on any count. These 3295 posts were part of the same selection process initiated in 2013 for filling up 41610 posts and as such the adjustment was rightly done by the State.”

In the present case,

  • By issuing an advertisement on 20.06.2013, selection process was undertaken to fill up 41610 posts of Police Constables [U.P. Civil Police/Provincial Armed Constabulary (PAC)/Fireman]. The petitioners had participated in the selection process as candidates of General Category.
  • After the requisite examinations, results were declared on 16.07.2015, in which 38315 candidates were successful. Thus, as on that date, there were vacancies which were not filled as no suitable candidates were available. About 2312 vacancies had remained unfilled and additionally, there were 982 vacancies arising out of causes such as nonreporting of the selected candidates.
  • In the circumstances, the Supreme Court in Ashish Kumar Yadav v. State of Uttar Pradesh, 2019 SCC OnLine SC 1968 issued following directions:

“It is accepted by the learned counsel for the State that the State did not undertake any process of selection in respect of those 2312 vacancies. In the circumstances it is directed:

    1. A) The State shall within a month from today complete the entire process of selection in respect of 2312 vacancies strictly in accordance with law.
    2. B) The State shall follow the principle of reservation while filling up these 2312 vacancies.
    3. C) While filling up these vacancies, the State shall adhere to the minimum required qualifying marks as devised during the process of selection but subject to this, the State shall consider all eligible candidates and go strictly in order of merit.
    4. D) The State shall before the next date of hearing, shall file a list of all the selected candidates.

It is also accepted that apart from these 2312 vacancies, there are still 982 vacancies to be filled up in the original selection.”

  • Consequently, selection in respect of 3295 posts was undertaken in accordance with the aforementioned direction and hence, certain candidates coming from ‘Reserved Categories’, who were initially selected against Reserved Categories’ seats, were now shown against ‘Open Category’ in the list published on 11.11.2019.

According to the petitioners in the present case, this shifting prejudiced the chances of ‘Open Category’ candidates and that there should not have been any adjustment of the candidates who were already selected in ‘Reserved Categories’ and all those seats should have been made available to the ‘Open Category’.

In response, the State gave details about the last selected candidates in various categories and has stated that the last selected person in ‘General Male Category’ was one Pawan Singh (having secured 313.616 marks). Except the petitioners at serial Nos. 22 and 24, who had secured 313.616 marks, none of the 48 petitioners had secured marks in excess of 313.616. It was stated that since large number of candidates had secured exactly 313.616 marks, tiebreaker principle was adopted in which these two petitioners got eliminated.

Upholding the selection process, the Court held that the selection in respect of 3295 posts was undertaken in accordance with the directions issued by this Court in Ashish Kumar Yadav v. State of Uttar Pradesh, 2019 SCC OnLine SC 1968 and the State Government and its functionaries were obliged to go strictly in order of merit and apply the principle of reservation.

[Pramod Kumar Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 223, decided on 16.03.2021]


*Judgment by: Justice UU Lalit

Know Thy Judge| Justice Uday Umesh Lalit

Appearances before the Court by:

For petitioners: Senior Advocate P. S. Patwalia

For State: Additional Advocate General Vinod Diwakar,

For Intervenors: Senior Advocates B. P. Patil and Vinay Navare

Case BriefsSupreme Court

“A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police.”

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and Krishna Murari, JJ has IPS Officer Satyarth Anirudh Pankaj as the senior officer, State of Uttar Pradesh to carry out further investigation in the Ram Bihari Chaubey murder case after it found the investigation and closure report submitted by the UP Police to be “extremely casual and perfunctory in nature”.

Directing that IPS Officer Pankaj will be free to select a team of competent officers of his choice, the Court directed that

“the investigation must be concluded within a period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police (DGP), Uttar Pradesh shall do the needful.”

Background

Ram Bihari Chaubey, was shot dead at his residence in Village Shrikanthpur, Chaubepur, Varanasi in the State of Uttar Pradesh, on 04.12.2015. Four unknown assailants were stated to have come on a motorcycle. Two of them entered the residence and shot the deceased, while the two others waited outside, after which they all escaped.

From the material collected during investigation it was apparent that the murder was committed due to political rivalry by hatching a conspiracy effectively with the help of BJP MLA Sushil Singh (the respondent no.5[1]). An affidavit filed before the Allahabad High Court, disclosed that Sushil Singh 24 criminal cases against him including under Section 302 IPC.  In five cases final report had been filed in absence of credible evidence. In nine cases, he had been charge sheeted but was acquitted.  Five criminal trials are still pending against him and he had also been put behind bars under the provisions of National Security Act by order dated 11.11.1998.

An affidavit was filed by the DGP before the Supreme Court on 22.02.2020 stating that there was   no cogent evidence against Sushil Singh despite discreet efforts. Investigation of the case was therefore closed on 30.01.2019 and report submitted in the concerned court along with other police papers on 04.06.2019 with regard to the 4 accused persons only and no further investigation was pending against any person.

Analysis

The Court took note of the fact that the investigation which had been kept pending since 04.12.2015 was promptly closed on 30.01.2019 after this Court had issued notice on 07.09.2018.

Further, the Closure Report filed before the Court simply stated that there was no concrete evidence of conspiracy against Sushil Singh and that the informant had not placed any materials before the police direct or indirect with regard to the conspiracy. As and when materials will be found against Sushil Singh in future, action would be taken as per law.

Recording that the investigation and the closure report are extremely casual and perfunctory in nature, the Court noticed that the investigation and closure report do not contain any material with regard to the nature of investigation against the other accused including Sushil Singh for conspiracy to arrive at the conclusion for insufficiency of evidence against them.

“The closure report is based on the ipse dixit of the Investigating Officer. The supervision note of the Senior Superintendent of Police (Rural), in the circumstances leaves much to be desired. The investigation appears to be a sham, designed to conceal more than to investigate.” 

The Court also reminded the police of its primary duty to investigate on receiving report of the commission of a cognizable offence.

“This is a statutory duty under the Code of Criminal Procedure apart from being a constitutional obligation to ensure that peace is maintained in the society and the rule of law is upheld and applied. To say that further investigation was not possible as the informant had not supplied adequate materials to investigate, to our mind, is a preposterous statement, coming from the police.”

On scope of judicial interference in investigations, the Court said that investigation is the exclusive privilege and prerogative of the police which cannot be interfered with but if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police.

“Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law.  If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation.”

The Court, hence, partially set aside the closure reports dated 02.09.2018, 17.12.2018 culminating in the report dated 30.01.2019 insofar as the non-charge sheeted accused are concerned only. Those already charge sheeted, were not interfered with.

Further, considering that the trial has commenced against the charge sheeted accused, the Court directed that further trial shall remain stayed.

[Amar Nath Chaubey v. Union of India, 2020 SCC OnLine SC 1019, order dated 14.12.2020]


[1] Ed Note: The order is silent on the name of Respondent No. 5. The name has been deduced from the Allahabad High Court verdict in Abhai Nath Chaubey v. State of U.P., 2019 SCC OnLine All 5782.

Case BriefsSupreme Court

Supreme Court: In a case where Sub-Inspector in the Railway Police was compulsorily retired for gross neglect of duty, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra* and KM Joseph, JJ has set aside the Bombay High Court order that directed re-instatement with consequential benefits, and payment of backwages to the extent of 50%.

The respondent, the present case, was charged with gross neglect of duty for failing to detect and prevent three instances of theft and abuse of authority by using unnecessary violence towards a passenger.

Holding that the High Court was not justified in setting aside the order of compulsory retirement, the Court said,

“A police officer in the Railway Protection Force is required to maintain a high standard of integrity in the discharge of his official functions. In this case, the charges proved against the Respondent “were of neglect of duty” which resulted in pecuniary loss to the Railways. The Respondent was a Sub-Inspector in the Railway Police discharging an office of trust and confidence which required absolute integrity.”

It was further stated that the primary object of constituting the Railway Protection Force is to secure better “protection and security of the railway property.”

“The restricted power of arrest and search conferred on members of this Force is incidental to the efficient discharge of their primary duty to protect and safeguard railway property, and to uphold the law.”

On the scope of interference by the High Court in exercise of its writ jurisdiction with respect to disciplinary proceedings, the Court said that it is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however interfere where,

  • the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice,
  • the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed themselves to be influenced by irrelevant considerations, o
  • the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion.

If however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ petition.

In the present case, the Court found that there was no allegation of malafides against the disciplinary authority i.e. Chief Security Commissioner, or lack of competence of the disciplinary authority in passing the order of compulsory retirement, or of a breach of the principles of natural justice, or that the findings were based on no evidence.

It hence, held that the High Court was not justified in re-appraising the entire evidence threadbare as a court of first appeal, and substituting the Order of punishment, by a lesser punishment, without justifiable reason.

[Director General of Police, Railway Protection Force v. Rajendra Kumar Dubey, 2020 SCC OnLine SC 954, decided on 25.11.2020]


*Justice Indu Malhotra has penned this judgment 

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., addressed a matter wherein it was stated that the law students in order to escape from the police have been using the Advocate Stickers on their vehicles.

Counsel, M. Subash Babu took note on behalf of the Chairman, Bar Council of India, New Delhi and Nirajan S. Kumar, Counsel took notice of the Chairman, Bar Council of Tamil Nadu and Puducherry.

Petitioner’s Counsel alleged that the students who have been studying in the Law Colleges are using Advocate stickers by sticking them in their vehicles in order to escape from the police.

Adding to the above, many instances have been reported in the newspapers, in which goondas have missed the Advocate stickers while carrying the contrabands as well as for criminal activities.

Bench directed respondents to answer the following:

Whether the Advocate sticker is legally authorized and whether it has got legal sanction and why not this Court bans the Advocate sticker as it is being used for criminal activities by sticking it in the vehicles in order to intimidate the Police and escape from the cluthes of law.

[V. Ramesh v. Vice-Chancellor, Dr Ambedkar Law University,  2020 SCC OnLine Mad 5519, decided on 11-11-2020]

Hot Off The PressNews

After the media persons were prevented from reporting the development in  and around Hathras after the Hathras Gang Rape case, the Editors Guild of India has issued a statement condemning the same.

“The Editors Guild Of India condemns the manner in which the law enforcement agencies of the Uttar Pradesh government, led by Yogi Adityanath, have prevented media persons from reporting on developments in and around Hathras after a brutal assault on a woman leading to her death and the hurried cremation of her body by the authorities without the presence of the family of the deceased.”

The statement also shows displeasure over the way the government has tapped the telephones of journalists engaged in covering the Hathras incidents.

“Worse, the tapped conversation of the journalists has been selectively leaked, leading to a social media calumny against them.”

The Guild states that such conduct of the law enforcement agencies of the Uttar Pradesh government undermines and obstructs the functioning of the media. It has, hence, demanded that the government creates conditions in Hathras that do not obstruct journalists in any way.

The statement also states,

“Hathras is the worst such case in the scale of interference but the Guild also notes with concern that such attacks against the media are becoming part of a growing trend seen in recent months, in which a few other state governments have also indulged in such harassment of journalists.”

Read the statement here


Also read

Hathras Gang-Rape | “Shocked by reports of events that led to victim’s cremation”, All HC orders registration of Suo Motu PIL

Gang Rape & brutality of 19-year-old women belonging to Scheduled Caste in Hathras district, UP: NHRC takes suo motu cognizance

Case BriefsHigh Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J., while addressing the Public Interest Litigation filed on the basis of a news report observed in regard to “Judicial Commission” that,

“In absence of any concrete evidence and facts, appointing Judicial Commission would be a futile exercise”

The present Public interest Litigation was filed based on a news item published in “The Hindu” newspaper on 10-05-2020 entitled “Police, not Judges, award punishment”.

Baglekar Akash Kumar wrote a letter to the Chief Justice in view of the incident reported in the above-stated news item. In the said news item 5 accused persons were alleged to have committed the offence under Section 319 of Penal Code, 1860.

The said accused persons were allegedly made to move barricades under the scorching summer sun by the police.

The above-stated act amounts to the torture inflicted by the police and hence necessary action was sought by the petitioner against the police personnel.

Further, the petitioner’s counsel submitted that since the identity of the accused persons was changed by the reporter of “The Hindu”, it remains unknown. Hence, to enquire into the veracity of news, a Judicial Commission should be appointed.

Petitioner’s counsel also relied on a Supreme Court’s decision in Sheela barse v. State of Maharashtra, (1983) 2 SCC 96.

Decision

Since the reporter himself is not in a position to reveal the identity of the accused persons, it is very difficult to find out the actual identity of the alleged accused persons, who ere allegedly forced to move barricades in hot summer days.

To appoint Judicial Commission would be a futile exercise in absence of concrete evidence and facts

Court in regard to Judicial Commission stated that,

Judicial Commission cannot be asked to go on a wild goose chase. The appointment of the Judicial Commission is a serious step. It cannot be taken lightly.

In the present matter, all the witnesses have clearly stated that they had helped the police voluntarily which gives the Court no reason to disbelieve their statements.

In view of the above circumstances, the bench is not inclined to appoint a Judicial Commission to examine the alleged incident.

In view of the above writ petition was disposed of. [Baglekar Akash Kumar v. State of Telangana, 2020 SCC OnLine TS 1005, decided on 04-09-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Rajeev Kumar Shrivastava, J., allowed the anticipatory bail application of the accused-applicant in connection with the FIR registered for offence punishable under Sections 420 and 34 of the Penal Code, 1860.

The applicant has an apprehension of his arrest resultant of the FIR bearing No. 131/2019 for the offence punishable under the aforementioned sections of the IPC, hence this application.

Counsel representing the applicant, Rajendra Singh Parmar has contended that the applicant has been falsely framed as he has not committed any offence. The applicant’s hard earned reputation would take a beating if he is arrested. The applicant has expressed his willingness to abide by any condition that may be imposed by the Court in the present matter. The counsel has relied on the case titled Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 while pleading for grant of bail to the applicant.

Counsel for the respondent, B.S. Gour vehemently objected to the application and prayed for its rejection.

After careful perusal of the facts, circumstances and arguments advanced, the Court found the above-stated case to be extremely relevant and relied on the same while delivering its Judgment. Relevant paragraphs from Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 have been reproduced below-

“7.1. From a plain reading of the provision under Section 41 CrPC, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC 9. Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. This provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.”

In view of the above, the Court has allowed the present anticipatory bail application giving the following directions-

“(i) that, the police may resort to the extreme step of arrest only when the same is necessary and the applicant fails to cooperate in the investigation.

(ii) that, the applicant should first be summoned to cooperate in the investigation. If that applicant cooperates in the investigation then the occasion of his arrest should not arise.”

[Rajendra Singh Parmar v. State of Madhya Pradesh, 2020 SCC OnLine MP 1834, decided on 31-08-2020]

Hot Off The PressNews

The Press Council of India (PCI) has taken Suo Motu cognizance of the alleged attack by a mob on three journalists, including a female reporter from Caravan magazine who were reportedly beaten, and threatened in North East Delhi on 11.08.2020 while they were covering news.

A Report has been called for from the Chief Secretary, the Commissioner of Police and the Deputy Commissioner of Police, Delhi.


Press Council of India

[Press Release dt. 25-08-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, India has taken suo motu cognizance of a media report that an Inspector of Govind Nagar police Station, Kanpur, Uttar Pradesh asked a 16 years old girl to dance in lieu of registering an FIR against the nephew of her landlord who has been molesting her. The girl with her family lives in a rented accommodation in Dabauli West area of Govind Nagar.

The Commission has issued a notice to the Director-General of Police, Uttar Pradesh calling for a detailed report within 6 weeks in the matter including action taken against the delinquent police officer and the status of the FIR registered on the complaint submitted by the victim’s family.

Reportedly, the girl’s family earns a livelihood by doing some Jagran parties, etc and they had tried to lodge a complaint against the nephew of their landlord accusing him of molesting the girl besides forcibly evacuating them from the rented portion of the house, a few days ago.

According to the media report, the Circle Officer of Govind Nagar, Kanpur has denied the allegations stating that there is no substance in the charges and prima facie, it appears that the girl has made the video viral in order to create pressure on the police. He has also stated that an investigation into the matter is underway.


National Human Rights Commission

[Press Release dt. 17-08-2020]

Case BriefsHigh Courts

Kerala High Court: T.V. Anilkumar, J. quashed the final police report against the petitioner which implicated him for offences under the Foreigners Act, 1946.

The petitioner, a British citizen with a British passport, landed in India at the International Airport, Thiruvananthapuram in February 2009.  The allegation against him was that contrary to the place of stay mentioned in the arrival card and handed over to the immigration authorities, he occupied a different hotel in Kollam and violated the relevant Rules and committed an offence punishable under Section 14 of the Foreigners Act, 1946.

The petitioner contended that even though he occupied a hotel different from what he had mentioned in the arrival card, he could not be imputed with any criminal liability inasmuch as he was holding a valid visa for the period in question.

The petitioner further contended that there were no allegations against him that he had committed any offences relating to national integrity or security affecting the country.

Rule 6 of the Registration of Foreigners Rules, 1992 which is very relevant in this context provides that a foreigner entering India shall submit a report to the Registration Officer specifying the details of stay which, however, is not necessary in respect of a person who is holding a valid visa for a period not more than 180 days and who does not remain in India beyond the said period.

The Court agreed with the contentions of the petitioner and reiterated that he was indeed a holder of a valid visa for his stay. Further, the mere change in hotels is in no way against the provisions of the Foreigners Act, 1946 or the Foreigners Rules, 1992.[Ahammed Muhammed Al Jalak v. State of Kerala, 2020 SCC OnLine Ker 3178, decided on 11-08-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J., while addressing a major issue with regard to the usage of racial terms stated that,

use of racially coloured terms is an issue much deeper than it appears to be, it shows the stereotypical mindset of the Police authorities which fractures their ability to provide “equality before law and equal protection of law”.

Issue: Referring to an African National in the Government and other documents

Advocate General, Atul Nanda informed in the FIR format, the Punjab and Government has removed reference to “caste” in compliance of the earlier judgment rendered by this Court in CRA-D No. 610-DB of 2017 — Rakesh Kumar v. State of Haryana and CWP-PIL No.3189 of 2017 — H.C. Arora, Advocate v. State of Punjab.

In the recent order dated 12-06-2020, Advocate General drew Court’s attention on another major issue which was pointed in the Circular/Memorandum issued by the Director General of Police, Punjab, Chandigarh which was as follows:

“using appropriate terms of reference for addressing persons from various nationalities in all official documents”

While adjudicating on the regular bail application of, an accused in a criminal case of Jalandhar (Rural) Police district, Punjab and Haryana High Court has taken a very serious view of use of word ‘Nigro’ or ‘Negro’ in the official records of investigation.

Court issued directions to ensure that no such incident as above occurs again in future.

High Court welcomed the prompt steps taken by the Punjab Government in the proper direction to expunge pejorative racial words used against foreigners visiting India for work or pleasure from future police record, which reform initiative, when realized fully, will enhance the image of India and keep away situations like the one encountered in the present case and that such slurs are avoided and desisted from by the keepers of law; which was only one example amongst many humiliations and insults regularly faced on the street and in the market place by foreigners and Africans in particular.

When the new dispensation filters down to the mind of each constable on patrolling duty and to every police station, backed by State sanction in the Circular, it will greatly help in inculcating a sense of pious duty in the lower executive authorities and keep them in check by disciplinary action and at the same time foster a sense of security among foreigners travelling to and in India, which is now backed with the State assurance in the guidelines that they will not be discriminated against or insulted on the basis of skin colour.

The offensive term occurred in the challan papers.

Court re-emphasized that the derogatory term is not only unprintable but is unspeakable in the present time, in public or in private dealings between African/foreigner and the police personnel and equally in social circles in Courts territory as elsewhere.

Further the Court added that, it is counselling of the policemen on a regular basis though sensitization workshops, with a drop of liberal education added to the programme that might make that crucial difference in the desired approach in dealing with Africans in India without personal comments and insults.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 should parallel in principle and precept, extend in its chain of thought processes to all foreigners in India that they should be not called by any derogatory name while dealing with them.

Significant words relevant to the present context in the Act are: “intentionally insults or intimidates with intent to humiliate”.

Crime or suspicion of commission of crime is to be dealt with in accordance with law and there is nothing personal about it for any policeman, as the offence is against the State and the laws must be enforced in a reasonable manner and by the procedure established by law. [Amarjit Singh v. State of Punjab, 2020 SCC OnLine P&H 881 , decided on 01-07-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J., while addressing a very serious observation in a matter with regard to “black people” being referred as “Negro”, stated that,

“Freedom does not lend its wings to our countrymen to fly anywhere they wish and in any manner they like and abuse foreigners on the street calling them ‘kalla’. To the contrary, freedom teaches love for human dignity and respect for fellowman.”

Bench while addressing a matter was appalled to note that to refer an African National in the challan papers presented under Section 173 CrPC the term “Nigro” was used.

Court on observing the above, stated that,

“…it is highly offensive word across the globe and no one has any business to use it, and much less the police.”

In view of the above, Court directed never to use the unprintable word in any police document including in challans or anywhere else on case papers including in investigation reports.

Bench also added that, police appears to have assumed that every black is a drug peddler and should be treated as such — this is terrible thinking.

Director General of Police, Punjab has also been requested to notify instructions after considering the above stated issue to the police force calling upon them never to use the offensive term ‘nigro’ or ‘negro’ while referring to “black” person in case papers.

The investigating officers and the police officials that record FIRs be immediately sensitized and warned on the issue by ensuring that no person should be looked down upon on the basis of the colour of his/her skin.

“…we should be reminded that India is rich in its traditions of ‘mehman nawazi’ and ‘atithi sanskar/satkar’ and prides itself on this.”

Court adding to its’ conclusion and analysis, stated that,

“We are, professedly, a tolerant sub-continent of “browns” in all its shades, but more often than not, display a perverted and primitive mind-set looking down on others without looking within ourselves.”

Strict action against the policemen who indulge in character assassination based on physical features, investigation of crime apart, investigation which should be non-aggressive in the search for truth and commission of cognizable offences.

The pernicious practice should be stopped forthwith and the police commanded on pain of disciplinary action never to address anyone by that description, forget about writing it down in official papers of permanent State record.

In the next date of hearing, Court should be informed of the action proposed in the above regard. [Amarjit Singh v. State of Punjab, 2020 SCC OnLine P&H 754 , decided on 12-06-2020]

Hot Off The PressNews

Editors Guild of India is concerned by growing tendency among police in various states to take cognisance of frivolous charges against journalists and convert them into an FIR

The Editors Guild of India is deeply concerned by the growing tendency among police in various states to take cognisance of frivolous charges against journalists and convert them into a First Information Report (FIR).

The latest instance is of the Delhi Police’s FIR against veteran journalist Vinod Dua, based on a complaint by Naveen Kumar, who has been identified as a spokesperson of the Bharatiya Janata Party. The accusations are a brazen attack on his right to free speech and fair comment. An FIR based on this is an instrument of harassment setting off a process that is itself a punishment.

The Guild unequivocally condemns this practice and urges the police to respect Constitutionally guaranteed freedoms rather than behave in a manner that raises questions on its independence.


Editors Guild of India

[Statement dt. 08-06-2020]

Case BriefsForeign Courts

Supreme Court of Canada: While deciding issues like application of entrapment framework to dial-a-dope investigations and whether, in the instant case, the police had reasonable suspicion that accused or phone numbers were engaged in drug trafficking at time police provided opportunity to commit offences, the 9 Judge Bench of Wagner C.J., and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., with a ratio of 5:4, held that Police need ‘good reason’ to suspect that someone answering a phone is involved in drug dealing before asking them to sell drugs. The Court observed that the police should be able to show the Courts that they had a “reasonable suspicion” that a certain crime was happening. Needing reasonable suspicion makes sure that Courts can review police actions to check whether they are acting properly.

The issues revolved around 2 entrapment cases. In the involving Ahmad (hereinafter A), the police got a tip that someone named “Romeo” was selling drugs over the phone. The officer called “Romeo’s” phone number. He didn’t know if the tip was trustworthy. He had a short conversation with “Romeo,” who agreed to sell him the narcotics. The police set up a meeting on basis of this call with “Romeo” and when the he turned up, he was searched and then arrested. “Romeo” turned out to be A. In the second case involving Williams (W), a police officer got information from another officer that someone named “Jay” was selling drugs. The information also came from a tip. The officer didn’t know if the information was trustworthy or recent. Another officer called Jay’s number to buy cocaine. “Jay” agreed to meet and sold him the drugs. “Jay” turned out to be W. The police arranged another drug deal eleven days later and a month later, police arrested W. The question was that whether both the cases constitute entrapment or not.

As per the majority, comprising of Abella, Karakatsanis, Brown, Martin and Kasirer JJ., observed that a court must examine all of the circumstances, and not merely the language used during the call, in order to determine whether police had formed ‘reasonable suspicion’ by the time the opportunity was provided. It was further noted that police don’t have ‘reasonable suspicion’ if they just have a tip and don’t know if it is reliable. They can develop reasonable suspicion by investigating if a tip is reliable before calling. The Court observed that in both the cases the police didn’t have reasonable suspicion before calling the phone numbers. However A wasn’t entrapped because police developed a good reason to suspect he was selling drugs while talking to him on the phone. They did this before they asked to buy drugs from him. The police didn’t confirm the tip during the phone call in W’s case though; therefore W was entrapped because the police asked to buy drugs from him before they had a good reason to suspect he was selling drugs. Dissenting in part, Wagner C.J. and Moldaver, Côté and Rowe JJ., observed that the rules of entrapment display incoherence, thus the framework needs revision. Under the revised policy, the focus should be on the police acting pursuant to a bona fide inquiry where they meet three requirements- firstly their investigation must have been motivated by genuine law enforcement purposes; secondly, they must have had a factually-grounded basis for their investigation beyond a mere hunch; and thirdly, their investigation must have been directed at investigating a specific type of crime within a tightly circumscribed location. [ R v. Ahmad, 2020 SCC 11, decided on 29-05-2020]