Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Madhav J. Jamdar, JJ., permitted the limited conduct of rituals of Muharram with the specified route and other restrictions.

Petitioner states that it is the oldest organization of the Shia Community.

Petitioner sought appropriate writ, order or direction to allow the rituals of Muhurrum to be performed during the present pandemic till 30-08-2020 daily for two hours.

Bench while pronouncing the order stated that since the present order is being passed as and by way of exception, is not intended to be used as precedent by other persons, to seek permissions, to hold any festivals which would involve by their very nature congregation of people.

General Secretary Shri Habib Nasir on behalf of the Shia Community gave the following undertakings:

  • There will be only one Taziya, which will be carried from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, in the entire State. No other Taziya other than the one mentioned hereinabove will be carried anywhere in the State.
  • Aforestated Taziya will be carried from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, via J.J. Hospital, Prince Ali Khan Hospital, Sales Tax Office circle in a truck i.e. transport vehicle large enough to accommodate it.
  • In no case whatsoever, any congregation of people at any point from the beginning till the end of the said journey of aforesaid one Taziya will be allowed.
  • One Taziya will be carried along the aforesaid route on Sunday 30th August 2020 from 4.30 p.m. to 5.30 p.m.
  • Not more than five persons will carry the aforesaid one Taziya on a truck, as aforesaid along with one videographer. However, after taking the aforesaid one Taziya down near the graveyard, it will be carried on foot, for a distance of not more than a hundred meter. The names, age and addresses of these five persons will be submitted with the office of the Police Commissioner, Mumbai by 5.00 p.m., on 29th August, 2020.
  • Petitioner and all its members will strictly abide by the rest of the guidelines issued by the Home Department, State of Maharashtra, regarding Muhurrum-2020, dated 19th August, 2020.

Further, the High Court also directed the State Government to impose a restriction over the gathering of people at the appropriate places by issuing appropriate orders including the point where aforesaid Taziya is to start its journey till the point where the journey will end.

To keep the traffic clear and escort the above-stated truck carrying Taziya, one pilot car shall also be provided by the State.

In view of the above, petition was disposed of.

[All India Idaara-E-Tahafuz-E-Hussainiyat v. State of Maharashtra, 2020 SCC OnLine Bom 881, decided on 28-08-2020]


Counsels for petitioner Rajendra Shirodkar, Senior Advocate Asif Naqvi, Jafer Nadeem, Archit Shirodkar i/b. Shehazad Naqvi.

A. A. Kumbhakoni, Advocate General a/w. Purnima Kantharia, Govt. Pleader, Geeta Shastri, Addl. Govt. Pleader, Akshay Shinde, B Panel Counsel for the Respondents.

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and  and B.V. Nagarathna, J. while dealing with certain issues amid COVID 19 outbreak, noted a very significant point, that,

media must ensure that no part of the stand taken by the State Government or no part of the orders passed by this Court should be misinterpreted or misquoted

In the present petition, the issue brought in is with regard to the Order issued by Kalaburgi District Administration which suggests that organizations distributing food to beggars, needy and homeless are committing violation of prohibitory order under Section 144 of Criminal Procedure Code, 1973.

In view of the above, it has been sought that the order should be modified in a manner that individuals, voluntary organizations, NGOs, etc. should be permitted to continue with the work of supplying the food to the underprivileged and poorer sections of the society.

Bench observed that,

“Voluntary organizations cannot be prevented from distributing food to the weaker sections of the society so long as they are following the norms of social distancing and taking other precautionary measures.”

Further the Court added to its observations that,

since its first order, Court has been suggesting to the State Government that activities of NGOs need to be coordinated. Thus State government must respond on the stated.

It will be appropriate if the State Government comes out with a direction for convening meetings with NGOs working in the field at various levels so that their activities can be co- ordinated

On a requisition made by the Chairpersons of the DLSAs to the concerned State officials, requisite number of passes shall be issued forthwith to enable the PLVs to perform the duties which are entrusted to them. The Director General of Police may also consider of issuing necessary guidelines to the police authorities to allow the PLVs to do their work on production of the certificates/passes issued by the DLSAs.

With regard to opening of shelter homes, Court stated that, considering the fact that nearly 1/3rd of positive cases of COVID-19 reported in the State are from Bengaluru Urban District, compliance by BBMP with the directions issued by the State Government is of utmost importance.

Another significant observation made through this order by the bench was that,

“… while reporting our orders, the media and in particular, the electronic media has to be very careful. The media must ensure that no part of the stand taken by the State Government or no part of the orders passed by this Court should be misinterpreted or misquoted.”

Cause of confusion and panic can be misrepresentation of the orders of this Court by the media. 

While noting the above observations and asking for State Governments response, the present petition is to be dealt on 16-04-2020. [Mohammed Arif Jameel v. Union of India, WP No. 6435 of 2020, decided on 13-04-2020]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of N. Kirubakaran and R. Hemalatha, JJ. while deciding a matter stated that,

“If we are not disciplined even at this hour of crisis, no one could save us.”

Present petition was filed seeking direction to the respondent with regard to ensuring 100% testing of all persons who were exempt from lockdown and were performing services involving public contact and to complete the same before completion of the lockdown and for such purpose a database to be build up.

Court stated that Disaster Risk Management fund, Home Ministry had released Rs 510 Crores which is not adequate, States that have lesser number of virus infected patients have been allotted more fund. Thus, Court in view of the same stated that it is not against allotment of more funds to other States, but concerned about Tamil Nadu getting lesser amount of fund, Central Government may positively consider increasing the amount.

It was noted that, 690 COVID Positive patients have been found but their families and friends have not yet come forward for testing as well as quarantining.

Pandemic spreads like a wild fire.

Many persons have come from foreign countries since the end of february and they have not voluntarily subjected themselves for testing and quarantining.

in the above view, Court appeals to such persons for voluntarily testing and quarantining as the same would enable the pandemic to be controlled in the interest of  the public.

Further, it has also been noted that lakhs and lakhs of people are affected because of the lockdown, thus Court directs the authorities to verify the persons who are without food and shelter and provide the same by having community kitchens.

Court observes that, inspire of several appeals made by authorities, public is not listening to them and they are living very closely and there is every chance to spread the dangerous pandemic. Thus it is requested to keep social distancing while moving out for purchasing essential commodities or visiting hospitals etc., If we are not disciplined even at this hour of crisis, no one could save us.

Pandemic is only in second stage and if it reaches to community spreading, there is likelihood of loss of lives. 

Thus, this Court appeals to the people to avoid going out or congregating and to maintain social distancing.

Bench asks the Additional Advocate General to file a status report in view of the above and Police Authorities to arrest as well as seize two wheelers or the 4-wheelers which are used in violation of Section 144 order, if anybody come out without reason  beyond 1.00 P.M. [India Awake for Transparency v. Secretary, Department of Health and family Welfare, 2020 SCC OnLine Mad 912, 08-04-2020]

COVID 19Hot Off The PressNews

To mitigate the spread of COVID-19, Delhi Police imposes Section 144 Criminal Procedure Code, 1973 and orders the following prohibitory orders to maintain public health, public safety and public order in Delhi:

  • Assembly of any kind for demonstrations, processions, protests etc is prohibited.
  • Any gathering social/cultural/political/religious/academic/sports/seminar/conferences prohibited.
  • Organisation of weekly markets (except for vegetables, fruits and essential commodities), concerts, exhibitions etc., is prohibited.
  • Guided group tours conducted by various private tour operators are prohibited.
  • Any individual suspected/confirmed with COVID-19 shall take measures for prevention/treatment i.e. home quarantine/ institution quarantine/isolation or any such person shall cooperate to render assistance or comply with the directions of the surveillance personnel.
  • Any person contravening this order shall be punishable under Section 188 of Penal Code, 1860.

The above order will be effective from 22-03-2020: 9 PM till midnight of 31-03-2020.

Case BriefsDistrict Court

Karkardooma Court: Naveen Gupta, Additional Session Judge, while addressing a bail application filed, denied the same and held that,

A peaceful protest is the essential right in a vibrant democracy as of ours, but this right is subject to certain exceptions provided under the Constitution of India.

In the present case, allegations in view of protests against the Citizenship Amendment Act (CAA) Section 144 CrPC had been imposed. During a flag march with large police on 26-02-2020, a noise of firing was heard. Pursuant to the firing, public persons were asked to disperse, but they refused to do so.

Further, SHO announced the crowd as unlawful assembly and again asked the people to disperse but the persons named in FIR including the applicant did not allow the crowd to remove themselves. Applicant instigated the crowd saying that they would not remove themselves even if, they die or whatever police officials do, they want freedom. In fact, the crowd was even asked to pelt stones.

In view of the above, Police used the force to control the situation, but the crowd remained there and thereafter, police used tear gas shells and fired in the air. Persons from the crowd started manhandling with police staff. Thus FIR was registered.

Applicants counsel submitted that there was a peaceful protest against CAA for las 49 days and no complaint of criminal activity had been moved against the protesters. It is one of the fundamental rights of citizens to protest and register their dissent.

Further, they contended that those police officials who were a part of the flag march did not record the entire alleged incident by videography. Moreover, the applicant was not present at the spot, rather she was picked up from her house.

Additional Public Prosecutor for the State submitted that, the said actions of persons named in FIR, as well as other persons of the crowd, clearly lead to infer that the assembly had turned into an unlawful assembly with a common object to overawe by criminal force the police officials in the exercise of the lawful power as well as to commit an offence.

Adding to the above contentions, APP submitted that, considering the background of applicant, there is a high chance of tampering with the evidence and threatening of witnesses by her, in case she is admitted to bail at the preliminary stage of the investigation.

Court’s Decision

Bench stated that,

Under Section 141 of Penal Code, 1860, ‘an assembly which not unlawful when it assembled, may subsequently become an unlawful assembly’. Referring to the Supreme Court decision in Ramachandran v. State of Kerala, (2011) 9 SCC 257“Common Object” may also be developed at the time of the incident.

Court stated that in view of the facts and circumstances along with the contents of the FIR, it shows that members of the assembly had been armed with a pistol. They had pelted stones. Instigation was also caused by the persons named in the FIR.

Applicant and members of assembly targeted the police officials with gunshot and pelting of stones etc.

Bench adding to the above also stated that it is guided with the principles laid down in the Supreme Court’s decision in Prashant Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, wherein it was held that,

“…factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”

Hence, while concluding its decision, the Court held that the charges in the present case are of serious nature.

When protectors of law are targeted in the manner as reflected in presnet FIR and that too, in the gaze of general public, such actions lower public confidence in the ability of police officers to do their duty.

Thus, Court view of above is not inclined to grant bail to the applicant. [State v. Ishrat Jahan, Bail Application No. 370, decided on 28-02-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Vivek Varma, J. while addressing the present petition requested the National Human Rights Commission (NHRC) to have a complete inquiry or investigation due to the alleged violation of human rights and negligence in the prevention of such violation.

Alleged display of police brutality upon students who were protesting against the introduction of the Citizenship Amendment Act, 2019 is the reason for the filing of the present petition.

At Aligarh Muslim University a huge number of students assembled to share solidarity with the students of other Universities who were protesting against the above-stated Act. On the evening of December 15th, peaceful processions according to the petitioner was lodged at the Library canteen of the University.

A huge contingent of the police forces moved towards the University circle and provoked the students by different means including intentional utterance of abusive words. Students were heavily injured by the brutal lathi-charge, rubber bullets and pellets.

Further, the petitioner stated that to disburse the assembly of the students, the force was used by the State. The contingent of police forcefully entered in different parts of the University including the library, hostels, classrooms, offices, etc. and brutally behaved with students. Police officials intentionally assaulted the students and also vandalized the vehicles parked on the University campus.

It has also been alleged that a large number of students were detained and tortured then on 16-12-2019, University Registrar issued notices to vacate the hostels.

Counter affidavit filed by the Inspector General, Law & Order U.P. and Senior Superintendent of Police, Aligarh stated that the students in violation of the precautions as per Section 144 CrPC gathered at the University circle and when the authorities noticed the hindrance being caused by some of the students in their routine functioning, Registrar, Aligarh Muslim University requested the District Magistrate, Aligarh to take appropriate steps.

Registrar of the University had sent a letter to the District Magistrate requesting the deployment of security forces to prevent any untoward incident. District administration received certain intelligence inputs and also information from the Proctor of the University about the assembly of the students inside the University campus and their march towards Bab-e-Syed apprehending unwarranted incidents.

Gathering taking advantage of darkness started pelting stones vigorously from various directions and that enormously destroyed University property. Having no other option, the district administration decided to enter into University campus to disburse gathering and preventing the property from being damaged.

Additional Advocate General submitted that the above-said action was taken to prevent loss to public and public property at large. He also stated that in accordance with Article 19 of the Constitution of India, the right available is only to assemble peacefully without arms. But in the above incident, the assembly was absolutely unlawful and was abating for violence.

Senior Advocate, Sri Colin Gonsalves stated that the petitioner’s demand is to have a complete investigation as there is a violation of human rights and commission of cognizable crime. He also referred to the observations made in the Supreme Court Case in Extra Judicial Execution Victim Families Assn. v. Union of India, (2017) 8 SCC 417, wherein it was stated that,

“..inquiry or investigation by the National Human Rights Commission is of civil nature and that too is not an effective measure to bring the culprits of doing wrong to board.”

 

Decision

On perusal of the above-stated aspects, the High Court stated that, under the Protection of Human Rights Act, 1993 the Commission may inquire suo motu or on a petition relating to the students for violation of human rights or abatement thereof or negligence in the prevention of such violation by a public servant.

There has been alleged violation of human rights and also alleged negligence in the prevention of such violation. The narration of the facts certainly demands a probe.

Court on perusal of the powers of the NHRC stated that the entire matter is to be inquired by the Commission.

Inquiry by the State Human Rights Commission also but in light of the fact that the National Human Rights Commission is already undertaking inquiry relating to similar allegations on a complaint filed by the students and some faculty members of Jamia Milia Islamia University, the Bench considers it fit to have an inquiry in the present matter too by NHRC.

Commission has been requested to complete the inquiry within a period of one month and to convey its findings and recommendations, if any, to this Court immediately after the conclusion of the inquiry/investigation. [Mohd. Aman Khan v. Union of India, 2020 SCC OnLine All 1, decided on 07-01-2020]

Case BriefsHigh Courts

Gujarat High Court: A Bench of Anant S. Dave, Acting CJ and Biren Vaishnav, J. disposed of a public interest litigation that challenged the ban on the viral online game PlayerUnknown’s Battlegrounds (“PUBG”), without passing any further orders as the notification extending the said ban was cancelled by the Police Commissioner, Rajkot City.

Pruthvirajsinh Zala — a first-year Law student of the Institute of Law, Nirma University — had filed a PIL challenging the constitutional validity of the notification which imposed a ban on PUBG in Rajkot City. The Rajkot Police commissioner had laid a 2 months ban on PUBG sinceMarch using powers under Section 144 CrPC and Section 37(3) of Gujarat Police Act. Later, the Police even arrested several people playing PUBG and booked them under Section 188 IPC (disobedience to order duly promulgated by public servant).

The petitioner who appeared in person before the Court, challenged that notification on the grounds that it was arbitrary and unreasonable at the very face of it, and violative of Articles 14, 19(1)(a), 19(1)(g), and 21. The Government Pleader submitted that the ban was merely for the school examination purposes and even the parents were happy about it. Per contra, the petitioner argued that such justification did not fall under the ambit of reasonable restrictions and it was based on mere anecdotal views lacking scientific nexus.

On 29-04-2019, the High Court had directed the State to file an affidavit in reply with regard to the contentions raised by the petitioner. On 08-05-2019, the State sought more time to file the affidavit. the petitioner informed the Court that the band had been extended for another 2 months vide notification dated 01-05-2019, even though the school examinations were over and summer vacations had begun. The Court granted one day’s time to State to file the affidavit. On 09-05-2019, the Court was informed that the Police Commissioner, Rajkot City had denotified the ban extended on PUBG.

In such view of the matter, the Court disposed of the petition observing that no further orders were required to be made.[Pruthvirajsinh Zala v. State of Gujarat, R/WP (PIL) No. 78 of 2019, decided on 09-05-2019]

In the communiqué received from Mr Pruthvirajsinh Zala, he quotes Martin Luther King, Jr. saying — “Our lives begin to end the day we become silent about the things that matter.” He says he strongly believes in constitutional values and human rights; and that he acted to protect the fundamental rights and prevent arrests of the citizens of Rajkot for merely playing a game.