Monday, March 29, 2021

Supreme Court allows plea by Uttar Pradesh to transfer MLA Mukhtar Ansari from Punjab to UP

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The Supreme Court on Friday allowed a transfer petition filed by State of Uttar Pradesh (UP) seeking transfer of UP Member of Legislative Assembly (MLA), Mukhtar Ansari from Ropar jail in Punjab to Banda jail in UP (State of Uttar Pradesh v. Jail Superintendent, Ropar).

No absolute right to demand passport - Jammu and Kashmir High Court dismisses Mehbooba Mufti's plea seeking issuance of passport

The Bench of Justice Ali Mohammad Magray observed that Mufti's application for a passport was rejected by the passport officer, Srinagar as the police verification report recommended against the issuance of the same.

Monday, March 22, 2021


मोटर वाहन अधिनियम 2019 के तहत प्रावधान

 • 1 सितंबर 2019 को एक संशोधित मोटर वाहन अधिनियम लागू हुआ।

 नए कानून ने कई गैरकानूनी उल्लंघनों और दो और चार पहिया वाहनों के मालिकों द्वारा अपने गैर-जिम्मेदाराना कार्यों के कारण कई यातायात उल्लंघन और ड्राइविंग / सवारी की गलतियों के खिलाफ दंड बढ़ाया है।

मोटर व्हीकल एक्ट की धाराएं (MV Act 2020) – नए मोटर वाहन अधिनियम 2019 के तहत अपराध (Offences Motor Vehicle Act 2019) ड्राइविंग त्रुटियों के लिए दंड में काफी वृद्धि हुई है, खासकर यदि आप नशे में ड्राइविंग जैसे अन्य गंभीर अपराधों पर दण्ड (Fine) निम्न प्रकार से है।

Thursday, March 18, 2021

Supreme Court - 'No Coercive Steps' Is Like 'Status Quo' Order In Civil Matters, Which Is Worst Order To Pass (Interim Relief U/S 482 CrPC)

 "'No coercive steps' is like the status quo order in civil matters. Status quo is the worst order to pass! The courts may instead say that protection from arrest is granted for 2 weeks", commented Justice D. Y. Chandrachud on 18 March 2021.

This was in the context of a submission that a blanket ban on any coercive steps, granted by High Courts under section 482, CrPC by way of interim relief, operates to restrain the investigating agency from recording any evidence and even proceeding with the investigation, in addition to arresting the accused.

The bench of Justices Chandrachud, M. R. Shah and Sanjiv Khanna was considering the contours of the power of quashing under section 482, CrPC and the power to grant interim relief by way of bail/anticipatory bail, stay on coercive steps i.e. a stay on arrest and investigation.

"When the High Court says that there shall be no coercive steps, this would also mean that you cannot be interrogated. This hampers investigation!... The right to investigate is with the IO, not with the court. The discretion of arrest lies with the IO and not with the court. The court can exercise this power in anticipatory bail and bail pleas. But let's not say that the court will decide how the investigation is done or that the court can pre-injunct the rights of the IO... It is in your (the accused) interest also that the investigation is done",

"Upon the registration of the FIR, the accused is mainly worried about the arrest. So 438 is the remedy. If the FIR is investigated and no case is made out, then the police give A, B, C summary report, and it will be considered. It is in the interest of the accused also that the investigation is carried out. Nowadays, within one day of the lodging of FIR, quashing is sought. There is no time given to the IO", weighed in Justice Shah.

"Is the High Court justified in passing an order when there is an alternative remedy under section 438 of the CrPC which has been invoked? That way, you will be in 2 courts!", remarked Justice Khanna.

"If the counsel prays for pre-arrest bail, then he may be asked to specify if he has moved a 438 application before the sessions court. In that case, he must be asked to go there or withdraw the same. One cannot be given multiple chances. Normally, when counsel find that the court is not inclined under 482, they withdraw it and go under 438. The client may also engage another counsel to go under 438 and conceal that fact...As judicial officers, we tend to put sections and jurisdiction in parts. It leads to complications at times", expressed Justice Khanna.
'Courts must inculcate the fear of the law, of the consequences, whether it is civil or criminal jurisdiction'

 the bench had expressed regret that because of the inadequacy of civil justice administration, every matter is increasingly being given a criminal colour.

"Just now we were hearing the matter for alienation of property in public trust. We told the petitioner that if he didn't deposit 'X' amount of money, we won't dismiss the petition but we will impose an exemplary cost. It is important that the courts start insisting on this. Otherwise, there is no fear of the law, of the consequences, whether it is civil or criminal jurisdiction", explained Justice Chandrachud.
In the instant case, the petitioner had impugned an order of the Bombay High Court allowing another bidder to complete the formalities and procedure for the sale of the property of the public trust, on the repeated failure of the petitioner to deposit the requisite sum with the registry of the court and finally, on his cheque being dishonoured.

"I will tell you my mistake. About a year ago, I deleted an order of cost. The respondent came back and said 'We are not aggrieved by the SLP dismissal. You can ask the cost to be paid to the Supreme Court Bar Association or anywhere else but please don't delete it'. We had been led astray in deleting the order of cost...because there is so much work and ultimately, we are also dependent on the lawyers only", illustrated the judge.
The bench had on Wednesday expressed concern regarding the rising trend among High Courts across the country to routinely grant interim relief by way of a stay on any coercive action pending a writ petition or a plea under section 482, CrPC for quashing of criminal proceedings. Accordingly, the bench undertook to lay down guidelines in this behalf.

The bench was hearing an SLP arising out of a September 2020 order of the Bombay High Court on a writ petition. While granting time for the filing of a reply affidavit with additional documents, the High Court had in the interim directed that no coercive measures be adopted against the present respondents (director of a real estate development company and his business partners) in respect of the FIR registered by the present petitioner (Neeharika Infrastructure Pvt Ltd) with the Economic Offences Wing for alleged offences under Sections 406, 420, 465, 468, 471 and 120B of the IPC. On October 12 last year, a bench headed by Justice Chandrachud had issued a notice on the SLP and granted an ad-interim stay on the aforesaid direction of the HC. The bench had recorded that three orders were passed by the Additional Sessions Judge, City Sessions Court, Mumbai on 15 October 2019 under Section 438 of the CrPC granting interim protection from arrest to the respondents. Moreover, the protection which was granted by the Sessions Court was extended from time to time and nearly a year thereafter, a writ petition was moved before the Bombay High Court in which a blanket order has been passed on 28 September 2020.

While setting aside the "rakhi-for-bail" order of the Madhya Pradesh High Court, the Supreme Court issued a set of guidelines to be followed by Courts while dealing with sexual crimes.

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"Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment. 

The act perpetrated on the survivor constitutes an offence in law and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be. The law criminalizes outraging the modesty of a woman", observed the judgment delivered by a bench comprising Justices S Ravindra Bhat and AM Khanwilkar.

 "use of reasoning/language which diminishes the offence and tends to trivialize the survivor is to be avoided under all circumstances".

The judgment illustrated certain conduct and actions as irrelevant for adjudication - to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or "Indian" women, or that she had called upon the situation by her behaviour, etc.

The Court stated that such attitudes should "never enter judicial verdicts or orders" or be "considered relevant while making a judicial decision". They cannot be reasons for granting bail or other such reliefs.

Imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor, is especially forbidden. 

"The law does not permit or countenance such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behaviour what is a serious offence", the judgment authored by Justice Ravindra Bhat said.

The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge. Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence.

The Court issued the following guidelines.

(a)Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;

(b)Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;

(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and a copy of the bail order made over to him/her within two days;

(d)Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behaviour, or past "conduct" or "morals" of the prosecutrix, should not enter the verdict granting bail;

(e)The courts while adjudicating cases involving gender-related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;

(f)Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and

(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. 

Courts should avoid gender stereotypes such as the examples given below

Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that 

(i)women are physically weak and need protection;

(ii) women are incapable of or cannot take decisions on their own;

(iii) men are the "head" of the household and should take all the decisions relating to the family; 

(iv) women should be submissive and obedient according to our culture; 

(v) "good" women are sexually chaste;

(vi)motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother;

(vii) women should be the ones in charge of their children, their upbringing and care; 

(viii) being alone at night or wearing certain clothes make women responsible for being attacked;

(ix) a woman consuming alcohol, smoking,etc. may justify unwelcome advances by men or "has asked for it"; 

(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; 

(xi) testimonial evidence provided by women who are sexually active may be suspected when assessing "consent" in sexual offence cases; and

(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

Judges are trained on gender sensitization

The court-mandated that a module on gender sensitization is included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training.

The National Judicial Academy was requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges' continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning.

The Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.

The Court passed the directions in a petition filed by Advocate Aparna Bhat and few other SC lawyers seeking guidelines to prevent the courts trivializing sexual offences. The Court took into account the suggestions made by the Attorney General for India while passing the directives.

The impugned order was passed by Justice Rohit Arya of Madhya Pradesh High Court, who released a man, apprehended for outraging the modesty of a woman, on bail provided that he visits the house of the complainant and requests her to tie the Rakhi band to him "with the promise to protect her to the best of his ability for all times to come.

Monday, March 15, 2021

Accused Can Be Summoned U/s 319 CrPC Even On The Basis Of Examination-In-Chief Of Witness: Supreme Court

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Accused Can Be Summoned U/s 319 CrPC Even On The Basis Of Examination-In-Chief Of Witness: Supreme Court

In this case, the High Court of Punjab and Haryana at Chandigarh had allowed the revision application and quashed the Trial Court order summoning the accused. To allow the appeal, the bench referred to the Constitutional Bench judgment in Hardeep Singh v. the State of Punjab (2014) 3 SCC 92 and observed:

Considering the law laid down by this Court in Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination ­in ­chief of the witness concerned and the Court need not wait till the cross­examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination ­in­ chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.

Referring to the facts of this case, the bench observed that the Trial Court was justified in summoning the accused to face the trial as accused on the basis of the deposition of the injured eye witness. 

"As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination ­in­ chief of the witness and the Court need not wait till his cross­examination. If on the basis of the examination ­in­ chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial. At this stage, it is required to be noted that right from the beginning the appellant herein – injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not charge­sheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not chargesheeted. In any case, in the examination in­ chief of the appellant injured eye witness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination ­in ­chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein – injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the Court. Therefore, as such, the learned Trial Court was justified in directing to issue summons against the private respondents herein to face the trial.", the bench said while allowing the appea


Thursday, March 11, 2021

Rape victim voluntarily having sexual intercourse with someone else is immaterial in deciding rape case: Bombay High Court

The Aurangabad Bench of the Bombay High Court recently held that a rape victim having voluntary sexual intercourse with someone else is immaterial in deciding a rape case (State of Maharashtra v. Mahadu Dagdu Shinde).

Wednesday, March 10, 2021

RBI is "State" under Article 12, writ petition is maintainable against private bank discharging public functions: Calcutta High Court

Justice Sabyasachi Bhattacharyya made the observations while dismissing objections made to the maintainability of a writ petition filed under Article 226 of the Constitution against the General Manager, Consumer Education and Protection Cell (CEPC) of the RBI and the IndusInd Bank, among other respondents.

"Since the Reserve Bank of India is an instrumentality of the State, it comes squarely within the meaning of 'State' as contemplated in Article 12 of the Constitution. Thus, the writ petition is maintainable." 

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Law office of Satish Swami

Friday, March 5, 2021

Delhi High Court dismisses challenge to appointment of Dr. Najma Akhtar as Vice-Chancellor of Jamia Millia Islamia

The Delhi High Court on Friday dismissed a petition challenging the appointment of Dr. Najma Akhtar as the Vice-Chancellor of the Jamia Millia Islamia, New Delhi (M Ehtesham-ul-Haq vs UOI & Ors).

Thursday, March 4, 2021

Dying Declaration Cannot Be Discarded Merely Because Relatives Of Deceased Were Present In Hospital While Recording It: Supreme Court

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The Supreme Court observed that a dying declaration cannot be disbelieved merely because parents and relatives of the deceased were present in the hospital while recording it.

"It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate", the bench said while dismissing the appeal filed by a murder accused.

In the declaration, recorded by the Judicial Magistrate, the deceased stated that the accused has poured kerosene oil and set her ablaze. Challenging the concurrent conviction, the accused before the apex court contended that the dying declaration was tutored one and the same was made at the instance of family members of the deceased, who were there with the deceased in hospital at the relevant time. According to his version, the deceased made attempt to commit suicide, and he tried his best to extinguish the fire.

Examining the case records, the bench noted that the Magistrate, in her deposition, has clearly stated that the relatives of the deceased, Pooja Rani, were not there at the time of recording the dying declaration of the deceased.

"Further, merely because the parents and other relatives of the deceased were present in the Hospital when the statement of the deceased was recorded, it cannot be said that the said statement was a tutored one. It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate, who was examined as PW-16.", the court said while dismissing this contention.

To dismiss the appeal, the court noted that, if the dying declaration is considered along with the depositions of other witnesses, it clearly establishes the guilt of the accused beyond a reasonable doubt.

Wednesday, March 3, 2021

Using private image without consent entirely illegal: Bombay High Court

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"Using a private image without consent entirely illegal:" Bombay High Court orders Amazon Prime to take down Telugu movie until the image is removed.

A single-judge Bench of Justice GS Patel found that there was a prima face case in favour of Malik noting that the image has not only been used without consent but has also been used in a derogatory manner.

"The fact that the image has been illicitly used is bad enough. It only makes matters worse when used in a plainly derogatory and demeaning vein", Justice Patel stated in the order.

The Court, therefore, ordered that the film be taken down in all versions, irrespective of language and sub-titles until all the images of the plaintiff are completely deleted from the movie.

"It is not acceptable for them to merely pixelate or blur the images. The entire sequence which has the image of the plaintiff is to be removed immediately," the Court added.

"It would be standard procedure almost anywhere, and this would be true whether the issue is one of copyright in the photograph or of use with permission of an image of the model in question for a particular sequence. It seems to me self-evident that it is not possible to use the image of any person for a commercial purpose without express written consent. If images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty," the Court said.

Monday, March 1, 2021

"Can sexual intercourse between man and wife be called rape?"

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According to the complainant, the UP based couple had been in a romantic relationship, but she had "refused to enter into a sexual relationship till marriage".

Her consent was "obtained by fraud" since, in February 2014, the couple went to Manali where they performed "marriage rituals at the Hidimba temple.

The man denied that any marriage took place contending that the live-in relationship was a consensual one while the woman maintained that the consent for sexual intercourse was obtained "by fraud" since she had believed the temple wedding to be a "real marriage."

"Making a false promise of marriage is wrong. No one should falsely promise marriage and break off. But that is different from saying that the act of sexual intercourse is rape," observed the CJI led bench, adding that the top court had "settled the matter" in earlier Judgments.

The woman also raised allegations that the accused man had "brutally exploited" her, and she had to visit a hospital due to injuries caused to her private parts by the man. On another occasion, she had a fractured leg, it was alleged.

"Then you file a case for assault and marital cruelty. Why to file a rape case?" questioned the CJI, who also questioned whether the abuse within a "relationship of marriage" could be considered rape.

The Court proceeded to grant protection from arrest to the accused man for four weeks but declined to pass any orders on his plea to quash the FIR.