It has been stated that virtual currencies that are issued by non-monetary authorities, using encryption technology, distributed accounts or similar technologies, and exist in digital form, such as Bitcoin, Ethereum, etc., including so-called stable currencies such as TEDA, does not have the same legal status as legal tender and cannot be circulated in the market as currency.
The Karnataka Legislative Assembly has passed the Karnataka Police (Amendment) Bill, 2021 to amend Karnataka Police Act, 1963, banning all forms of gambling in the state, including online gambling.
Key features of the Bill are:
- The bill seeks to make gambling a cognisable and non-bailable offence and “include the use of cyberspace including computer resources or any communication device as defined in the Information Technology Act, 2000 in the process of gaming to curb the menace of gaming through the internet, mobile apps”.
- The bill stipulates that “games mean and includes online games, involving all forms of wagering or betting, including in the form of tokens valued in terms of the money paid before or after the issue of it, or electronic means and virtual currency, electronic transfer of funds in connection with any game of chance.”
- The bill provides for a fine of Rs 10,000 and imprisonment of six months for first time offenders. For a second offence, violators would receive a jail term of one year and a fine of Rs 15,000.
*Tanvi Singh, Editorial Assistant has reported this brief.
The Government of Goa has extended the last date for clearing the dues on water charges for all Domestic & non-domestic water consumers under the Dues Recovery and Settlement Scheme 2020-21 till October 31, 2021, vide notification dated September 16, 2021.
The scheme applies to the following:
- To those water consumers who have defaulted on dues up to 31st October 2020,
- The defaulting water consumers whose cases are referred to Revenue Recovery Court as on October 31, 2020
- Those water Consumers whose installations are either temporarily or permanently disconnected as on October 31, 2020.
*Tanvi Singh, Editorial Assistant has reported this brief.
Government Law College, Mumbai, in association with the Wildlife Conservation Trust and the Initiative for Climate Action, presents the 3rd Wildlife Protection Government Law College National Online Moot Court Competition, 2021.
The Wildlife Protection Government Law College National Online Moot Court Competition is India’s first wildlife conservation-focused Moot Court Competition. This years’ event marks its third edition, with the view of creating awareness on the challenges faced by wildlife among law students. The Competition is scheduled to be held online from 26th to 28th November, 2021.
Government Law College, Mumbai, is pleased to invite a team from your esteemed institution to participate in the enriching experience of this Moot Court Competition. The theme for this year’s Moot Proposition is Compensation as a tool to mitigate human- wildlife conflict.
Government Law College, Mumbai, established in 1855 is the oldest law college in Asia, a pioneer in legal education – an institution par excellence. The generations of legal luminaries who have been nurtured by this unique institution have made a seminal contribution to the evolution of the Indian Legal System.
Wildlife Conservation Trust (WCT) was envisioned to preserve and protect India’s rich natural heritage. Currently, WCT works in and around 160 Protected Areas across 23 states in the country covering 82% of India’s 50 tiger reserves. WCT aims to reduce anthropogenic pressure on forests and river systems with the involvement of the forest department, local communities, corporates and other NGOs, with a firm belief in landscape-level conservation, factoring in the needs of people dependent on these forests.
Government Law College, Mumbai and Wildlife Conservation Trust are pleased to announce Initiative for Climate Action (ICA) as our Knowledge Partner and DSP Investment Managers as our Supporting Partners for the 3rd Wildlife Protection Government Law College National Online Moot Court Competition, 2021.
The ICA is a Bangalore-based transformative climate action non- profit with a vision that imagines, enables and accelerates low- carbon and zero- carbon futures of justice and sustainability. The ICA is currently focusing on developing and disseminating contextual and actionable climate knowledge and building collaborative frameworks that enable people to work together to solve complex climate problems.
DSP Investment Managers (DSPIM) is an Indian asset management company (AMC), with a wide range of offerings across the risk-reward spectrum. DSPIM is backed by the 150+ year old DSP Group which has been very influential in the growth and professionalization of capital markets and the money management business in India. DSPIM has been an avid supporter of WCT’s initiatives & projects since several years. DSPIM is enthusiastic of its support to ‘Combating Wildlife Crime’ Project and looks forward to battling this grave issue and making a difference together. Visit us on www.dspim.com for more.
The Moot Proposition of the competition primarily deals with issues relating to Wildlife and Forest Law, highlighting the emerging legal landscape, and has been drafted by experts in the field. The participants will be made to go through extensive Mooting Rounds, to ensure that only the two best teams reach the Final Round of Arguments. All participants must present their Written Submissions prior to the Competition.
The Moot Court Competition will be conducted over three days where the participating teams will go through two Preliminary Rounds of Argument, Quarter-Final Rounds of Argument, the Semi-Final Rounds of Argument and ultimately, the Final Round of Arguments. Eminent lawyers and Judges of the highest standing in India, academicians and experts in the field of wildlife and forest law shall converge to adjudicate the various rounds of the Competition.
A unique feature of our Competition is a Panel Discussion which witnesses the representation of eminent personalities from the field of environmental law, wildlife conservation, media, etc. The panel discussion will provide teams the opportunity to learn from and interact with these diverse professionals.
Registrations for the competition are now open. Your esteemed university can provisionally register for the competition by sending an email to email@example.com stating your interest to register. Please note that registration is on a first-come first-serve basis. Participation is limited to 18 teams.
Only after the provisional registration has been confirmed will a link to a Google Form and details for the payment of registration fees be provided. The payment of registration fees will be through NEFT in the amount of Rs. 1,800/- (Rupees one thousand eight hundred only) the details of which will be provided once the provisional registration has been confirmed.
Please note that the teams must fill in the registration form and make the payment via NEFT before 26th September, 2021, latest. The teams will be required to upload the screenshot/proof of the same while filling the google form for registration.
For more details refer
Participants must be current students of any recognised law college in the country. Each team shall comprise three students- two speakers and one researcher.
Last date for registration for the competition: 26th September, 2021
Last date to seek clarifications: 30th September, 2021
Last date of submission of soft copies of Memorials: 27th October, 2021
Oral Rounds: 26th to 28th November, 2021.
Ms. Shreya Bohra :- 8652110006
Ms. Lubaina Sutarwala :- 9619812699
India has been a signatory to the UN Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances, 1971 and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same.
The administrative and legislative set-up in the field of narcotics has been put in place in India in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in this regard is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
The scheme of the Narcotic Drugs and Psychotropic Substances Act, 1985 trifurcates the substances into three kinds which are as follows:
(i) narcotic drugs;
(ii) psychotropic substances; and
(iii) controlled substances.
The Supreme Court and various High Courts in plethora of judgments have observed that such offences are of extremely heinous nature, as such substances can affect an entire generation of youth. Thus, the Act is framed and interpreted as one of the strictest legislations in the sphere of criminal law as far as grant of bail to the accused is concerned.
Importance of recovery in investigation of offences under NDPS Act
It is submitted that “recovery” and “possession” is a vital aspect of investigation under the NDPS Act. This is because the accused is “found” to be in possession of the prohibited substance, Section 54 of the Act gives rise to a presumption of commission of offence and Section 35 of the Act gives rise to a presumption of culpable mental state.
Therefore, the officer or the raiding party which effects recovery are witnesses to the said fact which would constitute an offence and therefore investigation of the said aspect has to be carried out by an independent agency. Investigation being a systemic process and not a forgone conclusion making the FIR itself lodged by the informant who himself affects recoveries to be treated as a gospel truth.
Such presumptions against the accused may be necessary however, they also cause grave prejudice to the accused. Moreover, firm belief on the FIR and the information provided by the informant does not rule out the possibility of a person being falsely implicated for commission of offence under the Act.
For instance, in a hypothetical situation, if an accused was never in possession of the alleged contraband, and the same has been planted upon him by the investigation agency, the accused would never be able to prove his innocence at the time when such search, seizure and arrest is being conducted; owing to above-stated presumption which the act itself draws against the accused.
Stringent conditions on bail under the NDPS Act
The conditions for bail also differ from the general rule of bail in criminal jurisprudence. Section 37 of the Act (in commercial quantity), two additional preconditions are imposed upon the accused in addition to the ones prescribed under Code of Criminal Procedure, which are to be satisfied before an accused can be enlarged on bail. Section 37 is reproduced hereinbelow for ease of reference:
- Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
* * *
(b) no person accused of an offence punishable for 3 offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
It is submitted that such a provision has been inculcated in the Act as there is compelling State interest which is involved in the implementation of the aforementioned Act owing to the very serious nature of the offences.
Safeguards available to the accused under the NDPS Act
It is a settled position in law, that no matter how strict a legislation is intended to be, it is necessary that it envisages some protections, compliances and procedures to be conducted during the implementation of the provisions of the Act, in order to prevent the misuse/abuse of the penal provisions of any legislation.
The NDPS Act, 1985 being no different, vide Chapter V prescribes certain mandatory procedural compliances which are to be conducted while conducting a search, seizure or arrest of an accused person.
Such provisions which deal with procedural compliances shall be discussed and deliberated upon in detail hereinbelow:
- Section 41 of the NDPS Act, 1985
Section 41 of the Act deals in detail with the power to issue a warrant for a search and seizure. Section 41 is reproduced hereinbelow for ready reference:
- Power to issue warrant and authorisation.— (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed.
(2) Any such officer of gazetted rank of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces to be empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42.
A bare perusal of the abovementioned provision shall make it clear that:
(a) Section 41(1) deals with the power of the Magistrate to issue the warrant, to conduct a search.
(b) Section 41(2) enshrines similar power to a gazetted officer of the departments mentioned therein or any other officer with the authorisation of such gazetted officer to conduct a search.
(c) The Magistrate or the gazetted officer as the case may be prior to taking any action under the captioned provision of the Act must ensure that they have a reason to believe that an offence under this Act has been committed.
Further with regard to the authorisation of the gazetted officer which finds mention in Section 41(2), the Supreme Court in T. Thomson v. State of Kerala has held that such authorisation under Section 41(2) is not required when the gazetted officer is himself conducting the search and is only required in case where the search is to be conducted by a subordinate to conduct the search on his behalf.
2. Section 42 of the NDPS Act, 1985
Section 42 of the Act empowers a gazetted officer or his subordinate mentioned under Section 41(2) to conduct search, seizure and arrest without warrant or authorisation. The captioned section is reproduced hereinbelow for ready reference:
- Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,—
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of Sub-Inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
The provision reproduced above may be understood in following manner:
(a) The above provision pertains only to the search of buildings conveyances and enclosed places.
(b) Officer empowered under Section 41(2) having reasonable belief owing receipt of an information or from his personal knowledge regarding commission of an offence under the Act has a right to conduct search in the manner prescribed in the provision after recording the information received in writing and obtaining authorisation in the manner prescribed under the Act.
(c) If the officer has reason to believe that an authorisation cannot be obtained as same would lead to affording of an opportunity to accused to conceal material evidences, the officer may conduct search without authorisation after duly recording such reasons to believe.
(d) Information received or reasons to believe for not obtaining an authorisation must be sent to a designated senior officer within 72 hours of recording the same.
The Supreme Court at numerous occasions has held the following with regard to Section 42 of the Act:
(a) Compliances under Section 42 of the Act are mandatory in nature.
(b) Non-compliance with the conditions contained therein can lead to serious repercussions such as vitiation of the search conducted and the trial held. 
(c) The purpose of this provision is to provide due protection to a suspect against false implication.
3. Section 43 of the NDPS Act, 1985
Section 43 of the Act prescribes the procedure which shall be followed while conducting a search in a public place. The provision is reproduced hereinbelow for ready reference:
- Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may—
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
With regards to the provision reproduced above it is pertinent to note the following:
(a) The above provision pertains only to the search of “public place” which are defined under the provision.
(b) Unlike Section 42, under the captioned provision does not make it mandatory for the officer conducting the search in “public place” to record the satisfaction or reasons to believe prior to conduct of search of a public place.
4. Section 50 of the NDPS Act
Section 50 of the Act specifies the conditions under which the search of a person may be conducted. The provision is reproduced hereinbelow for ease of reference:
- Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.
It is submitted that scope of the provision reproduced above is limited and it is only applicable in the instances wherein recovery of contraband has been effected as a consequence of body search and thus such a provision shall not be applicable if the recovery has been affected from a bag or any other belonging which the person was separately carrying.
Non-compliance and its impact on bail
All the statutory compliances which have been discussed above are mandatory in nature. Purpose of these compliances is to ensure that a person is not falsely implicated and he has a fair opportunity in order to defend himself. Further recently Kerala High Court in Sarath v. State of Kerala have held that non-compliance with the mandatory procedure for search, seizure and arrest in the manner as envisaged in the Act results in vitiation of such search and such factor can be considered at the stage of investigation in order to grant bail. So, if an accused can prove that the search and seizure conducted upon him was not in consonance or compliance with the procedure prescribed under the Act, the accused shall be eligible for grant of bail.
Thus, if a search, seizure or arrest of a person is conducted in neglect of the compliances as prescribed under the Act, and a person can show sufficient proof of the same, then such non-compliance can act as a mitigating factor against the stringent conditions of bail as imposed under the Act.
However, the onus to prove that there was grave negligence on the part of authorities in observing the compliances under the Act also lies on the accused and the court shall always presume that the authorities have complied. It is also pertinent to note that till date the courts have failed to define the extent or manner in which the non-compliance on the part of authorities need to be proven in order to make a case for grant of bail and this is an issue on which further clarity is warranted.
In the view above, it is safe to say that under NDPS Act, 1985, the State has compelling interest to safeguard the society from the drug menace and as such the Act provides for stringent bail conditions and reverse presumption against the accused. At the same time, the Act also provides for procedural safeguards qua the search, seizure and arrest non-compliance of which seriously impinges the case of the prosecution and vitiates the prosecution initiated under the NDPS Act.
† Partner, KMA Attorneys.The author can be contacted at firstname.lastname@example.org or +91-9971305252.
†† Senior Associate, KMA Attorneys.
††† Senior Associate, KMA Attorneys.
Appointment of Judges
President appoints Justice Abhijit Gangopadhyay, Additional Judge of the Calcutta High Court, to be a Judge of the Calcutta High Court and Justice Jyotsna Rewal Dua, Additional Judge of the Himachal Pradesh High Court, to be a Judge of the Himachal Pradesh High Court.
[Notification dt. 27-07-2020]
Ministry of Law and Justice
Orissa High Court: S.K. Panigrahi, J., while addressing a matter with regard to money laundering by way of ponzi schemes, stated that,
“Act of money laundering is done in an exotic fashion encompassing a series of actions by the proverbial renting of credibility from the innocent investors.”
Petitioner has sought bail in a complaint case pending before Sessions Judge, Special Court under PMLA.
Case under Sections 406, 420, 468, 471 and 34 of Penal Code and Sections 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 was registered on the basis of a complaint alleging that the complainant had been cheated and defrauded by alluring to invest Rs 10,000 in the attractive investment scheme of Fine Indiasales (P) Ltd.
Complainant further submitted that he had introduced 20 more people to invest in the said scheme.
Complainant neither received the financial product nor the product voucher as per the agreement with FIPL.
FIPL collected huge amounts of money from the public and ultimately duped huge amount from innocent public by giving false assurance of high return for their deposit of money.
In view of the above, complainant requested for an investigation.
FIPL floated a fraudulent scheme
According to the investigation it was found that, FIPL had floated a fraudulent scheme with a terminal ulterior motive to siphon off the funds collected from public.
The advertised scheme of FIPL, ex-facie appeared to be a bodacious Ponzi scheme, inducing the susceptible depositors by way of misrepresentation, promising immediate refund in case of any default and timely payment of return on the part of FIPL.
Investigation prima facie established that the accused persons connected with FIPL not only criminally conspired and cheated the depositors but also lured them into the scheme with a rogue mindset.
Machiavellian Layering | Shell Companies
Investigation revealed that the said money, stained with the sweat, tears and blood of multitudes of innocent people has since been moved around and subjected to Machiavellian layering through a myriad of shell companies and bogus transactions.
The collected amount was immediately transferred to different bank accounts of individuals as well as firms under the management and control of the Promotors/Directors/Shareholders of the said FIPL which is nothing but an act of sheltering.
Modus Operandi adopted while transferring the prodigious sum of ill-gotten wealth with the singular intention of concealing the original source of funds and to project the tainted money as untainted ex facie constitute the offence of money laundering.
On the cursory look, Court prima facie observed that dishonesty, untruth and greed eroded the faith of common investors.
One of the significant stages of money laundering is “layering”, and in the present case, multiple use of corporate vehicles was done and the amount was layered further.
The act money laundering involves the process of placement, layering and integration of “proceeds of crime” as envisaged under Section 2 (u) of the Act, derived from criminal activity into mainstream fiscal markets and transmuted into legitimate assets.
“…laundering of tainted money having its origins in large scale economic crimes pose a solemn threat not only to the economic stability of nations but also to their integrity and sovereignty.”
Proceeds of Crime
Petitioner along with others attempted to project the “proceeds of crime” as untainted money by transferring the same to different bank accounts in a bid to camouflage it and project it to be genuine transactions.
Bench added to its analysis that, offence of money laundering is nothing but an act of “financial terrorism” that poses a serious threat not only to the financial system of the country but also to the integrity and sovereignty of a nation.
Supreme Court’s opinion
Supreme Court of India has consistently held that economic offences are sui generis in nature as they stifle the delicate economic fabric of a society.
Perpetrators of such deviant “schemes,” including the petitioner in the present case, who promise utopia to their unsuspecting investors seem to have entered in a proverbial “Faustian bargain” and are grossly unmindful of untold miseries of the faceless multitudes who are left high and dry and consigned to the flames of suffering.
Reputational Damage of the Country
Abuse of financial system in the manner that occurred in the present case can inflict the reputation of the country in the world of business and commerce.
Alleged offence of money laundering committed by the petitioner is serious in nature and the petitioner’s role is not unblemished.
Hence, Court refused bail to the accused/petitioner. [Mohammad Arif v. Directorate of Enforcement, Govt. of India, 2020 SCC OnLine Ori 544 , decided on 13-07-2020]
Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:
There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into different circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other.
Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.
Advocates who appeared in the present matter:
Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.
Mr Ajay Patil, A.P.P. for the State.
Mr Satyam Nimbalkar for the intervener.
Forceful Sexual Intercourse
Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.
Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.
Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.
Distressed Mental Condition
Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.
Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.
In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.
Another point which seemed incomprehensible was the fact that she did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the accused and one other friend.
Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.
The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.
Further the Bench added that,
“…concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.”
Court also quoted Warren Buffet,
“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”
above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.
On granting bail to the applicant, Court stated that,
Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.
Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]