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

Orissa High Court: A Division Bench of S.K. Mishra and A.K. Mishra, JJ. set aside a lower court’s decision of convicting the appellant based on circumstantial evidence.

The Assistant Sub-Inspector (ASI) found a dead body of a young woman which was severed into four pieces on the railway track. The trail of blood led to the house where the appellant was residing with his wife on rent. Upon investigation of the said rented house, the ASI found the house splattered with blood. He found one plastic mat covered in a pool of blood. The accused was not found in the house, although he was with the deceased the previous night. Considering the circumstances, the ASI lodged an FIR suspecting it to be a case of murder. Out of the 14 witnesses examined on behalf of the prosecution, three of them stated that they had heard the accused assaulting the deceased due to non-fulfilment of demand of dowry. Based on these statements and the circumstantial evidence, the learned Additional Sessions Judge, came to the findings that the accused and the deceased were residing in one house because of the trail mark of blood from the house of the accused to the railway track. Adding to it, doctors too confirmed the case to be of murder as the antemortem injury was inflicted by the sharp cutting weapon. The appellant was convicted and imprisoned for life under Sections 201, 302, and 498-A IPC, Section 4 of the Dowry Prohibition Act. 

The counsel for the appellant, Anima Kumari Dei, submitted that the entire judgment does not reveal that when and on which date the occurrence took place so as to put a nexus between the last seen of the deceased with the accused and the discovery of the dead body of the deceased since the FIR was lodged two days after the occurrence.

The Court held the following:

  • There is a considerable lapse of time between the time the accused and the deceased were last seen together and discovery of the dead body of the deceased, and therefore the last seen theory is not applicable in this case.
  • From the materials available on records, the chain of circumstances is not complete as to leave no reasonable ground for the conclusion consistent with the innocence of the accused.
  • There is also no cogent evidence on records to show that there was any torture for the demand of dowry or causing the disappearance of evidence as no specific of such incident has been stated to by any of the witnesses.

The Court set aside the conviction recorded by the Additional Sessions Judge as it was based on circumstantial evidence available and did not form a complete chain unerringly pointing towards the guilt of the accused.[Gopal Mallik v. State of Orissa, 2019 SCC OnLine Ori 254, decided on 18-07-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. quashed criminal proceedings against relatives of a man accused of torturing his wife and demanding dowry from her, holding that allegations against them were of general nature and as such, allowing proceedings against them to continue would amount to abusing the process of the Court.

The instant proceedings arose under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of a complaint case whereunder cognizance was taken against petitioner/husband under Section 498-A of the Penal Code, 1860 for demanding dowry and torture. Primary argument advanced on behalf of the opposite party 2/ wife was that her husband had remarried and was staying with two other wives at Mumbai and that he was refusing to accept her and her two sons without payment of Rs. 5 lakhs for purchase of a kholi.

Learned counsel for the petitioners Mr Uday Kumar submitted that they were the husband’s brothers and his sisters-in-law, who had nothing to do with the matrimonial discord between the parties. It was submitted that they had no objection if opposite party no. 2 and her two sons reside in the matrimonial/ancestral home of the husband.

The Court took note of judgment in Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, where it was held that allegations against husband’s relatives must be scrutinized with great care and circumspection. It was observed that allegations against petitioners were general and omnibus in nature. Admittedly, the main grievance of the wife was against the husband.

It was opined that since the petitioners had taken a categorical stand to give sufficient place/space to the opposite party  2, as per share of her husband, in the ancestral/ matrimonial home, therefore letting the criminal proceeding against them to continue would be an abuse of the process of the Court. Accordingly, the application was allowed.[Bablu Khan v. State of Bihar, 2019 SCC OnLine Pat 386, decided on 27-03-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Akshaya Kumar Mishra, J. acquitted the accused by setting aside the order of the Sessions Court since the allegation of dowry or violence were not proven and were vague.

The facts of the case are that the deceased had married the petitioner in 1997 and after a few days he started demanding for cash, T.V., cycle and for the inability to give those articles, the deceased returned to her father’s house and lodged written FIR. Based upon the testimony of the victim, the demand was found to have been proved. A concurrent verdict was passed in 1999 by the Addl. Sessions Judge dismissing the appeal against the judgment given in 1998 passed by the SDJM. However, the deceased had filed an affidavit in pursuance of the order stating that she was staying with her husband and both of them was blessed with two female children. In today’s date, the children are well settled and are living with their father peacefully.

The Court while setting aside the order passed by the Addl. Sessions Judge, held that there was no clinching evidence to hold the accused persons guilty for the reason that the allegation of torture was not specific and demand of dowry was not commensurate to the common man life. [Raibu v. State Of Orissa, 2019 SCC OnLine Ori 28, Order dated 24-01-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission (NHRC): The NHRC has taken suo motu cognizance of media reports that a 14 year old girl was detained at a police chowki and a police station in Noida for eight days. She was beaten, burnt with cigarettes and electrocuted there. Reportedly, the girl, a domestic help, was detained after her employer accused her of theft.

The Commission has observed that the contents of the media reports, if true, indicate cruelty of the police personnel for which the deserve exemplary punishment so that a message could be given that such inhuman acts by a public servant cannot be accepted at any cost. The law does not empower the police personnel to humiliate and harm the innocent citizens. Accordingly, it has issued a notice to the Director General of Police, Uttar Pradesh, calling for detailed report in the matter within 4 weeks. He is also expected to send the report about the steps taken for counselling/ rehabilitation of the victim.

According to the media report carried today on 31st May, 2018, the family members of the victim girl have stated that she was detained by the police on the 14th May, 2018, at Salarpur police Chowki, where she remained till 16th May, 2018. They were not allowed to meet her and she was released on the 16th May, 2018. The police again picked up the girl, the next day and this time her 17 year old brother was also taken into custody. Both of them were finally released in the night of the 22nd May, 2018, following the intervention by an NGO, Bachpan Bachao Andolan and an order from the Child Welfare Committee (CWC).

Reportedly, the CWC, on the 23rd May, 2018, also ordered a medical examination of the girl. The medico legal case report has revealed discoloured “brown-shaped circular discolorations” near her left and right wrists linking these to burnt marks. The report also mentions abrasions on the right forearm near the elbow and three discoloured abrasions on both wrists. The report specifically clarified that all injuries are more than 10 days old, caused by hard and blunt object.

The SHO of Police Station Sector-39, Noida has, reportedly, denied the allegations of illegal detention and torture. He has also claimed that the girl was not a minor. The MLC however, confirms that the girl is a minor. On a complaint filed by the NGO, the National Legal Services Authority (NALSA) has sought a report from the Senior Superintendent of Police, Noida through Noida District Legal Services Authority. As mentioned in the news report, the girl has alleged that the employer himself came to their house and demanded that she work as their domestic help and when she protested, he took away her on his scooter in front of the neighbours.

National Human Rights Commission

Case BriefsForeign Courts

High Court of Justice, Queen’s Bench Division  (England and Wales): Recently before the High Court, the statutory guidance,  ‘Adults at Risk in Immigration Detention’ issued under Immigration Act, 2016 was in question. This Guidance came into force in September 2016, in accordance with the Immigration (Guidance on Detention of Vulnerable Persons) Regulations.

The charity Medical Justice alleged that the government had adopted an extremely and unreasonably narrow definition of ‘torture’ in policy changes made last year in September relating to Article 1 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT). It was argued by petitioners that the new definition (impugned) had led to many detainees including the victims of human trafficking as not to be recognized as victims of torture. It was contended that the change in policy did not comply with the Government’s public sector equality duty under the Equality Act 2010.

Out of the seven claimants, two of whom were women submitted that they suffered severe ill-treatment at the hands of persons who were not state agents and were subjected to sexual violence, rape and human trafficking for sexual exploitation. After the new policy came into operation, both had fallen outside the definition of torture and were no more protected from detention. The counsel apprised the Court of the fact that the rest of the claimants also fell out of the new definition and these individuals had been seriously ill-treated by drug traffickers or because of their race, religion, or being homosexual or members of an ethnic minority. Counsel Ms. Harrison told the Court that torture did not only occur in police stations or by the state security forces, but also “in your own home or in hotels”.

On the other hand, counsel on behalf of Home Office Home Office submitted that it was not correct to suggest that its “adults-at-risk” policy excluded victims of torture who fell outside the UNCAT definition. It was contented  that it included those who had experienced any kind of traumatic event, of which torture is a part or example and likely to make them vulnerable, if placed in detention.

Justice Ouseley observed that the ‘chief problem’ with the UNCAT definition “is that it excludes certain individuals whose experiences of the infliction of severe pain and suffering may indeed make them particularly vulnerable to harm in detention”. Finally, he concluded and held that AARSG had fallen short of meeting the statutory purpose which it was required to meet on the basis that there were some, excluded from the scope of ‘Uncat torture’ and who would not fall under any other indicator but were still vulnerable to detention. [Medical Justice v. Secretary of State for Home Department, [2017] EWHC 2461 (Admin), decided on 10th October, 2017]