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STATEMENT

Certain reports relating to recommendations recently made by the Collegium regarding transfer of Chief Justices/Judges of the High Courts have appeared in the media.

As directed, it is stated that each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same.

Further each of the recommendations was made after full and complete deliberations and the same were unanimously agreed upon by the Collegium.


Supreme Court of India

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On 14 February 2019, a suicide terror attack was conducted by a Pakistan based terrorist organization Jaish-e-Mohammad, leading to the martyrdom of 40 brave jawans of the CRPF. JeM has been active in Pakistan for the last two decades, and is led by MASOOD AZHAR with its headquarters in Bahawalpur.

This organization, which is proscribed by the UN, has been responsible of a series of terrorist attacks including on the Indian Parliament in December 2001 and the Pathankot airbase in January 2016.

Information regarding the location of training camps in Pakistan and PoJK has been provided to Pakistan from time to time. Pakistan, however, denies their existence. The existence of such massive training facilities capable of training hundreds of jihadis could not have functioned without the knowledge of Pakistan authorities.

India has been repeatedly urging Pakistan to take action against the JeM to prevent jihadis from being trained and armed inside Pakistan. Pakistan has taken no concrete actions to dismantle the infrastructure of terrorism on its soil.

Credible intelligence was received that JeM was attempting another suicide terror attack in various parts of the country, and the fidayeen jihadis were being trained for this purpose. In the face of imminent danger, a preemptive strike became absolutely necessary.

In an intelligence-led operation in the early hours of today, India struck the biggest training camp of JeM in Balakot. In this operation, a very large number of JeM terrorists, trainers, senior commanders and groups of jihadis who were being trained for fidayeen action were eliminated. This facility at Balakot was headed by MAULANA YOUSUF AZHAR (alias USTAD GHOURI), the brother-in-law of MASOOD AZHAR, Chief of JeM.

The Government of India is firmly and resolutely committed to taking all necessary measures to fight the menace of terrorism. Hence this non-military preemptive action was specifically targeted at the JeM camp. The selection of the target was also conditioned by our desire to avoid civilian casualties. The facility is located in a thick forest on a hilltop far away from any civilian presence. As the strike has taken place only a short while ago, we are awaiting further details.

The Government of Pakistan had made a solemn commitment in January 2004 not to allow its soil or territory under its control to be used for terrorism against India. We expect that Pakistan lives up to its public commitment and takes follow up actions to dismantle all JeM and other camps and hold the terrorists accountable for the actions.

[Dtaed 26-02-2019]

Ministry of External Affairs

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., upheld the order of the trial court discharging the respondent who was accused of committing offences punishable under Sections 304 and 323 IPC.

An FIR was lodged alleging that there was a dispute between families of the complainant and the accused. Consequent to an altercation, his father was assaulted by the accused persons. It was alleged that accused persons knew that his father was suffering from a heart ailment and had undergone angioplasty. Knowing the same, the accused persons assaulted the complainant’s father which resulted in his death. Immediately after the incident, the complainant along with his family members gave a vivid description and named all persons alleged to have been involved and their names were mentioned in the FIR. It is pertinent to note that the name of the present respondent was not mentioned in the FIR. It was mentioned in a supplementary statement given by the complainant under Section 161 CrPC after a gap of 5 months. Noticing that there was a substantial improvement in complainant’s case, the trial court discharged the respondent as stated above. Aggrieved thereby, the State filed the present revision petition.

Hirein Sharma, Additional Public Prosecutor appeared for the petitioner State. While the respondent accused was represented by Neeraj Anand, Advocate.

The High Court found no merit in the petition. It observed, “A statement which is recorded immediately after the incident has to be given greater credence as compared to a statement which is recorded after five months. The trial court has rightly observed in the impugned order that the addition of the name of the respondent appears to be an afterthought.” It was also noted as undisputed that during the interregnum of 5 months between the date of the incident and the supplementary statement, no incriminating material was found against the respondent. In the totality of the facts, the Court found no infirmity in trial court’s order discharging the respondent. The petition was thus dismissed. [State (NCT of Delhi) v. Nitin, 2019 SCC OnLine Del 7239, decided on 21-02-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sanjay Karol, Chander Bhusan Barowalia, JJ. allowed an appeal filed against the order of conviction passed by the trial court, whereby accused was convicted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

The main issue that arose before the Court was whether the trial court was justified in holding that the prosecution had successfully proved the guilt of the accused beyond reasonable doubt.

The Court observed that if the statement of official witnesses are confidence inspiring, conviction of the accused can be based upon their un-shattered testimony. There were several discrepancies in the statements of the IO and other official witnesses such as- independent witnesses were available on the spot but they were not called, one official was not sure whether the option of being searched before a police officer was given to the accused or not whereas the IO stated that he had given options to the accused of being searched before a magistrate but he volunteered to get searched before the police. Hence, it can be reasonably concluded that there were several discrepancies in the statements of the official witnesses and those statements were not backed by any other evidence.

The Court held that after analyzing the statements of the officials vis-à-vis the evidence produced, it can be said that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt. The statement of police witnesses were not confidence inspiring and were found to be full of contradictions, at the same point of time, independent witnesses, which were abundantly available were not associated and seal was not produced in the Court. Resultantly, the appeal was allowed and the order of conviction passed by the trial court was set aside.[Neer v. State of H.P.,2018 SCC OnLine HP 1572, order dated 05-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ. took notice of the status report filed by the Delhi Police in compliance of the previous order of the High Court.

In the report, Delhi Police disclosed that from 1 July 2017 to 30 June 2018, a total of 2,38,070 cases were registered and approximately 10 lakh witnesses were examined. It submitted that since IT is dynamic and existing technology becomes obsolete very soon, the storage device which is used now may not be operable while recording evidence before the Court and it may not be possible to retrieve the data at relevant time. Also, to successfully store and retrieve such data, an information retrieval system with huge capacity will have to be set up which require involvement of experts and might include issues of data security, hacking, ownership of clouds, etc.

The High Court considered the issues raised in the report and was of the view that with involvement of experts in the field, the said issues can be satisfactorily taken care of. The Court made following observations:

  • The recording of statements of witnesses and disclosure statements may be recorded by a body-wearable camera.
  • Digital recording of the proceedings under Section 161 CrPC will lend immense credibility to performance of the police.
  • Storing data in digital media will take far lesser space than manual records.
  • It is for the State to arrange the funds — either Government of NCT of Delhi or the Central Government — for installation of such technology.
  • The issues related to finance should not deter the State to implement the use of such technology in larger public interest and to preserve and advance the rule of law.

The Court issued notice regarding the same to the Commissioner, Delhi Police; Home Secretary, Delhi Government; and Secretary, Ministry of Home Affairs, Union of India. The matter is further listed on 10 September 2018. [Ramesh Kumar v. State (NCT of Delhi), Crl.  A. No. 395 of 2000, dated 20-08-2018]

Case BriefsHigh Courts

Bombay High Court: A writ petition filed against the decision of the Collector was allowed holding that the Collector ought to have exercised power of discretion before mechanically disqualifying the petitioner from contesting elections.

The petitioner was elected from Ward No. 3 for the Gram Panchayat at Aurad. She also contested from Ward No. 4 from where she lost the elections. The petitioner was not able to file statement of election expenses pertaining to Ward No. 4 in term of Maharashtra Village Panchayat Act, 1958. The petitioner made an application before the Collector for extension of 5 days time for filing such statement. However, the Collector, without responding to the said application, passed an order disqualifying the petitioner for 5 years from contesting the elections. Appeal preferred by the petitioner against that order was also dismissed by the Divisional Commissioner. Thus, the instant petition.

The Court, after hearing the parties and considering the facts and circumstances of the case, held that the Collector was not right in passing the order disqualifying the petitioner without first considering the application of the petitioner. Section 14B of the Act provides that the Election Commission may remove the disqualifications as provided under sub-section (1) after recording of reasons. The Court held that the Collector ought to have first considered the application of the petitioner and in view of the Court, the extension of 5 days time for filing of expenses statement should have been provided to the petitioner. Therefore, the order of the Collector was set aside and he was directed to first consider the application of the petitioner and appropriately exercise discretion as granted to him under Section 14B. [Tamjodevi Madarsha Bhandari v. Tahsildar, 2018 SCC OnLine Bom 936, order dated 04-05-2018]