Tuesday, May 17, 2022

Calcutta High Court quashes criminal case against lawyer who provided incorrect legal advice

The Calcutta High Court recently quashed criminal proceedings against an advocate accused of providing false and improper legal advice that was instrumental in sanction of a bank loan to a now Non-Performing Asset (NPA)-turned company.
The High Court said that this did not lead to the conclusion that the petitioner entered into a criminal conspiracy to submit a false report.

There is no allegation or material in the charge sheet that the petitioner made any wrongful gain from the co-accused persons or he had any pecuniary benefit for preparing a wrong search report in favour of the company.

The act of the petitioner in submitting a wrong report without examining the basic tenets of ownership and possession of the property reveals his want of professional skill for which he may be held negligent, but in absence of tangible material it would not imply that he conspired with the principal accused persons in defrauding the bank.” 

While quashing the proceedings against the petitioner, the Court placed reliance on the Supreme Court decision in Central Bureau of Investigation, Hyderabad v K Narayana Rao, in which it was held that,

Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under sections 420 and 109 IPC along with other conspirators without proper and acceptable link between them.”

Supreme Court imposes ₹8 lakh costs on petitioner who challenged ban on 15-year-old petrol, 10-year-old diesel vehicles

The Supreme Court on 16-05-2022 imposed costs of ₹8 lakh on a petitioner who moved the court challenging the ban in Delhi on diesel vehicles older than 10 years and petrol vehicles older than 15 years.


"Two advocates who are practicing in the Supreme Court have entered into this misadventure. We warned them about this. An exemplary cost of ₹8 lacs is imposed on the petitioner. The registry will not entertain any writ petition by the advocate," the Court ordered.

(The Supreme Court had in 2018 -In a major order passed today, the Supreme Court directed that Transport Departments of National Capital Region (NCR) to immediately announce that all Diesel vehicles which are more than 10 years’ old and Petrol vehicles which are more than 15 years’ old shall not ply in NCR.)

Monday, May 16, 2022

Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies


The Supreme Court, recently, held that in cases of overlapping insurance policies, when the defined loss of the insured is fully indemnified by one insurer, the second insurer is not liable for the claim towards the same incident.

"A contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less. In the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance."

A Bench comprising Justices UU Lalit, S. Ravindra Bhat and P.S. Narasimha allowed appeal assailing the order of the National Consumer Disputes Redressal Commission (NCDRC), which directed the insurance company to pay Rs. 1.78 crores towards the claim raised by the insured. While opining that the insurance company was not liable to pay, the Apex Court noted that in the present case the issue was that of 'double insurance'/'overlapping policy', wherein the entity seeks coverage of risks of the same or similar incidents from two insurance policies.

Factual Background

United India Insurance Co. Ltd. (insurer) issued a Standard Fire and Special Perils Policy (SFSP Policy) to Levis Strauss (India) Pvt. Ltd. (insured) covering its stock in storage, first for a period of 01.01.2007 to 31.12.2007 and then 01.01.2008 to 31.12.2008. Levis Strauss & Co., the parent company of the insurer obtained a global policy

 (STP Policy) from Allianz Global Corporate & Speciality (Allianz) for the period of 01.05.2008 to 30.04.2009. It covered stocks of all its subsidiaries, including the insurer. Another 'all risks' policy (AR Policy) was issued by Allianz for the period of 01.05.2008 to 01.05.2009 covering stocks of its subsidiaries across the globe. 

On 13.07.2008, fire broke out in one of the warehouses containing the stocks of the insured. On 18.07.2008, the insured claimed Rs. 12.20 crores from the insurer. Subsequently, on 11.09.2009, the insurer repudiated the claim stating that Condition No. 4 of the SFSP Policy, excludes liability for loss payable under marine policy i.e. STP Policy. The insured approached the NCDRC, which allowed its complaint, without deciding whether the STP policy was a marine policy. On perusal of Clause 47 of the STP Policy, it noted that the said policy excludes the extent covered by the domestic policy. It held that though the loss of profit which the insured would have earned on the sale of the damaged stock was payable by Allianz, the loss suffered to the extent of cost of the goods would be payable by the insurer. It allowed the claim to the extent of Rs. 1.78 crores as the insured had received 19.52 crores from Allianz.

STP Policy is a marine policy

Section 4 of the Marine Insurance Act, 1963 postulates that a contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage.Referring to a catena of judgments, the Court noted that marine insurance policies in India include warehouse risks, combined with voyage and other marine risks. The STP policy also stipulates that it covers both marine and other risks. Moreover, the Policy describes itself as, 'Open Marine Insurance Contract'. It observed that the policy includes marine perils and is therefore a marine cover. 

As per Condition No. 4 of the SFSP Policy, the insurer was not liable to pay

The Court noted that Condition No. 4 of the SFSP Policy stated that in the event of occurrence of an insurance risk, if the insured was entitled to claim under a marine policy, the insurer cannot be held liable. Relying on Export Credit Guarantee Corporation of India Ltd. v. Garg Sons International (2014) 1 SCC 686; Vikram Greentech India Ltd v New India Assurance Co. (2009) 5 SCC 599; Sikka Papers Ltd v. National Insurance Co (2009) 7 SCC 777; Impact Funding Solutions Ltd. v. Barrington Support Services Ltd. (2016) UKKSC 57, the Court was of the view that the party who wishes to limit its liability must do so in clear words and that the insured cannot claim more than what is covered by the insurance policy. On a strict interpretation of Condition No. 4, the Court held that the insurer had excluded its liability from the risk covered under a marine policy, which in this case was the STP Policy. The Court also noted that there was no statutory or contractual obligation on the insurer to obtain a domestic policy in the conduct of its business and therefore, NCDRC had erroneously applied Clause 47.

Double Insurance

The insured had raised a claim of Rs. 12.2 crores with the insurer. Against the claim of Rs. 12.2 crores, it had already received about Rs. 19 crores from Allianz. Considering the same, the Court observed that a contract of insurance is one for indemnity of defined loss. In case of specific risks the insured cannot profit by double insurance. In this regard Castettion v. Prestton (1833) 11 QBD 380 was referred to, which had held that in case of a loss, the insured would be fully indemnified, but shall never be more than fully indemnified. The Court opined -

"Levi could not have claimed more than what it did, and not in any case, more than what it received from Allianz. Its endeavour to distinguish between the STP Policy and the SFSP Policy, i.e., that the former covered loss of profits, and the latter, the value of manufactured goods, is not borne out on an interpretation of the terms of the two policies. Even the facts here clearly show that Levi received substantial amounts towards the sale price of its damaged goods, over and above the manufacturing costs."

Marine Policy - Section 4 of the Marine Insurance Act, 1963 - A contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage - warehouse risks, combined with voyage and other marine risks, are considered as part of marine insurance policies in India(Paragraph 19).

Insurance Law - Exclusion of liability in insurance policies - as a matter of general principle, it is well established that if one party, otherwise liable, wishes to exclude or limit his liability to the other party, he must do so in clear words; and that the contract should be given the meaning it would convey to a reasonable person having all the background knowledge which is reasonably available to the person or class of persons to whom the document is addressed (Paragraph 19).

Insurance Law - Double Insurance - where an entity seeks to cover risks for the same or similar incidents through two different - overlapping policies - two or more insurers must have insured the same assured in respect of the same risk on the same interest in the same subject-matter - once the first insurer has paid a complete indemnity to the assured, the second insurer would be entitled to decline liability - in the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance(Para 46 and 47).

Monday, May 9, 2022

No vicarious liability under Section 141 -Section 138 NI Act - merely because a person was partner at firm which took loan: Supreme Court


The Supreme Court on 09-05-2022 held that criminal liability for cheque bounce cases under Section 138 of the Negotiable Instruments Act (NI Act) cannot be fastened on a person merely because he was a partner at the firm that had taken the loan or that he stood as a guarantor for such a loan.

"Vicarious liability under sub-section (1) to Section 141 of the NI Act can be pinned when the person is in overall control of the day-to-day business of the company or firm. Vicarious liability under sub-section (2) to Section 141 of the NI Act can arise because of the director, manager, secretary, or other officer's personal conduct, functional or transactional role, notwithstanding that the person was not in overall control of the day-to-day business of the company when the offence was committed. Vicarious liability under sub-section (2) is attracted when the offence is committed with the consent, connivance, or is attributable to the neglect on the part of a director, manager, secretary, or other officers of the company." 
"Therefore, unless the company or firm has committed the offence as a principal accused, the persons mentioned in sub-section (1) or (2) would not be liable and convicted as vicariously liable. Section 141 of the NI Act extends vicarious criminal liability to officers associated with the company or firm when one of the twin requirements of Section 141 has been satisfied, which person(s) then, by deeming fiction, is made vicariously liable and punished."

The Supreme Court at the outset noted that it was "an admitted case of the respondent Bank that the appellant had not issued any of the three cheques, which had been dishonoured, in his personal capacity or otherwise as a partner."

In the absence of evidence to establish that the appellant was responsible for the conduct of affairs at the firm towards the issuance of the cheques, the Bench noted that as per the Supreme Court decision in Girdhari Lal Gupta vs DH Mehta and Another, the conviction has to be set aside.

Sunday, May 8, 2022

Malicious prosecution by police - Madhya Pradesh High Court awards ₹42 lakh compensation to ST medical student who spent 13 years in jail

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A Bench of Justices Atul Sreedharan and Sunita Yadav passed the order on finding that the police had carried out the investigation to falsely implicate the appellant accused, and the prosecution had been malicious.

The case reveals a sordid saga of manipulative and preconceived investigation followed by a malicious prosecution, where the police have investigated the case with the sole purpose of falsely implicating the Appellant and perhaps, deliberately protecting a prosecution witness who may have been the actual culprit.

The fundamental right to a fair and unbiased trial was discussed, and in relation to this several cases were examined. A recent order of the Supreme Court in Nambinarayanan v Siby Mathew was considered, where compensation of ₹50 lakh was granted to former ISRO scientist Nambinarayanan, indicted by the Kerala Police and exonerated by the Central Bureau of Investigation.

Asking husband to produce salary slip during maintenance proceedings not in violation of privacy

The Madhya Pradesh High Court recently held that asking a husband to produce his salary slip during maintenance proceedings will not amount to a violation of his right to privacy under Article 21.

Giving an opportunity to the husband to file his salary slip for effective adjudication of the maintenance proceedings cannot be said to be depriving him of his life and personal liberty,” the Court held.

Tuesday, May 3, 2022

Recovery of excess increments paid to employee due to wrong interpretation of service rules unjustified: Supreme Court



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A Division Bench of Justices S Abdul Nazeer and Vikram Nath stated that such recoveries are more unfair, wrongful, improper and unwarranted than the corresponding right of the employer to get the amount.

"This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered," the Court observed.

Reliance was placed by the apex court on its decisions in Sahib Ram v. State of Haryana and Others (1995)Col BJ Akkara (Retd.) v. Government of India and Others (2006)Syed Abdul Qadir and Others v. State of Bihar and Others (2009) and State of Punjab and Others v. Rafiq Masih (White Washer) and Others (2015), where it had consistently granted relief against recovery of the excess wrong payment of emoluments/allowances from an employee.

Allahabad High Court issues non-bailable warrant against District Magistrate for "gross contemptuous act"


The Allahabad High Court recently issued a non-bailable warrant to Mathura District Magistrate (DM) Navneet Chahal for contempt of court, stating that its order had been "violated with impunity" 

Justice Saral Srivastava passed the order on finding that the DM had refused to implement a judgment of the High Court on the pretext that a review application had been filed against the same by the State government.

"

It is very surprising that despite a clear mandate issued by this Court, the District Magistrate, Mathura sat over in appeal of the order passed by this Court," the single-judge said.

Taking a dim view of the "very causal manner" in which the DM through his affidavit refused to grant the benefit of service rendered by the applicants prior to their regularization, the Court said,

"It is pertinent to note that it is settled in law that if the order of this Court is not stayed or set aside, the order shall remain in force in letter and spirit and nobody can be allowed to violate the order or act in the teeth of order of this Court."

The High Court was angered by the decision of the DM, calling it a "gross contemptuous act", and wondered how he could not understand the intent and simple language of its order.

In view of such "glaring" facts, the Court said that it could not shut its eyes. Therefore, to uphold its majesty and dignity, and to maintain public confidence in the judicial system, a non-bailable warrant was issued against the DM. He was, thus, directed to be produced before the Court in police custody on May 12.

Sunday, May 1, 2022

Magistrate Can Decide Validity Of Talaq In Wife's Petition Under DV Act If Husband Disputes Their Marital Status: Kerala High Court


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The Kerala High Court has ruled that a Magistrate is empowered to decide the pela of talaq raised by the husband in his wife's petition filed under the Domestic Violence Act if he disputes their marital status on that ground. 

Justice Kauser Edappagath thereby allowed a criminal revision petition holding that the finding of the appellate court that the Magistrate has no power to decide the validity of the talaq is wrong and only to be set aside.

"In a petition filed by the wife under the DV Act, if the husband disputes the marital status on the ground that he has divorced the wife by the pronouncement of talaq, the Magistrate has every power to decide whether the said plea is valid or not. "

The petitioners- wife and minor daughter- approached the Judicial Magistrate seeking protection, residential and monetary orders u/s 12(1) of the Protection of Women from Domestic Violence Act, 2005. It is the case of the petitioners that using all the gold and money given by her parents, the first respondent (her husband) constructed a house on his property in which they all resided. Therefore, according to the petitioners, this house is their shared household.

In December 2009, her husband and his brothers allegedly assaulted her on two occasions and she was stabbed with a knife in her head. It was after this that she approached the Magistrate with her daughter. 

However, the husband argued that he had pronounced triple talaq in December 2009 and that they were divorced since then. He denied all allegations of receiving gold from her parents and domestic violence. He contended that he constructed the house with his own funds and that it is not a shared household. 

Finding that the husband failed to prove the pronouncement of talaq, the Magistrate allowed the plea in part, granting the petitioner protection and residential orders, but not the relief of return of gold and money. 

This order was challenged by the husband in appeal, and the appeal was allowed on the ground that the Magistrate under the exercise of the power under the provisions of the DV Act cannot decide the validity of talaq. It was further held that prima facie there was material to show that the husband had pronounced talaq, therefore, the status of the petitioner is that of a divorced woman and she is not entitled to claim maintenance.

Aggrieved by this, the petitioner moved the High Court with a revision petition. 

The Court observed that the talaq allegedly pronounced by the husband was not valid in the eyes of law since he pronounced triple talaq at a go without following any of the procedures mentioned in the decisions of the Supreme Court. 

Therefore, the Magistrate could not have been held to be incompetent to decide the validity of the talaq, although the plea was filed under the Domestic Violence Act. 

Similarly, there was sufficient evidence to prove that the petitioner was subjected to domestic violence and yet the appellate court proceeded to set aside the order of the Magistrate on flimsy grounds. This finding of the appellant court was found to be perverse and not sustainable. 

It was also found that none of the definitions in the DV Act contemplates that on the date of filing an application, the party should be actually residing or living together. The very phrase, 'has lived together at any point of time' necessarily covers even the past cohabitation or past living together. 

The Court further held that even the continued residence or occupation of the shared household is not required for the entitlement of a wife to get a residential order. 

Therefore, it was held that the petitioners had satisfactorily proved that they were entitled to protection, residence, monetary and compensation orders which were rightly granted by the trial court. Since the appellate court had committed gross illegality in reversing the order of the trial court and dismissing the petition, the Judge found it to be a fit case where the discretionary power vested with this court u/s 397 r/w 401 of CrPC could be exercised.

As such, the revision petition was allowed and the judgment of the appellate court was set aside. 

Advocates P. Haridas, Renji George Cherian and P.C. Shejin appeared for the petitioners while Advocates B. Mohanlal and Public Prosecutor Sangeetha Raj appeared for the respondents. 


Monday, April 25, 2022

Anganwadi workers entitled to gratuity under Payment of Gratuity Act: Supreme Court

The Supreme Court on 25/04/2022 held that Anganwadi workers and helpers are entitled to gratuity under the Payment of Gratuity Act of 1972 .


A Bench of Justices Abhay S Oka and Ajay Rastogi ruled that the Payment of Gratuity Act will be applicable to Anganwadi centres, observing that time has to come to improve the working conditions of such workers.

"Time has come when the Central government/State governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure quality in the delivery of services and community participation and ... find out modalities in providing better service conditions of the voiceless commensurate to the nature of job discharged by them.

Justice Oka who authored the lead judgment said that Anganwadi workers are currently being paid very meagre remuneration and paltry benefits under an insurance scheme of the Central Government.

"It is high time that the Central government and State governments take serious note of the plight of Anganwadi Workers (AWWs) and Anganwadi Helpers (AWHs) who are expected to render such important services to the society," Justice Oka said in his judgment.

Saturday, April 23, 2022

Punishment imposed by a disciplinary authority can't be substituted merely on grounds that the employee had voluntarily deposited the defrauded amount.

Service Law - Disciplinary Proceedings - Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee.

"Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee", the Court said.

A bench comprising Justice MR Shah and Justice BV Nagarathna made the observation in Union of India's special leave petition challenging Madras High Court's order confirming the order passed by the Central Administrative Tribunal modifying the punishment imposed on a postal assistant from dismissal/removal from service to compulsory retirement.

Madras High Court directs State to immediately ban two-finger test used on survivors of sexual offences


The Madurai Bench of the Madras High Court on 21/4/22 directed the State government to immediately ban the practice of the two-finger test conducted by medical professionals on survivors of sexual offences .

The Court noted that the Supreme Court, in several decisions, had held the test to be unconstitutional. It thus deemed it necessary to issue a direction to the State government to end the practice.



"In view of the above judicial pronouncements, we have no doubt that the two finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith.-The Court

The Court also noted that High Courts in other states had also deprecated the practice. The Gujarat High Court in State of Gujarat v Rameshchandra Ramabhai Panchal held that the two-finger test is the most unscientific method of examination used in the context of sexual assault and has no forensic value.

Friday, April 1, 2022

Husband can also invoke provision for maintenance/ permanent alimony under Hindu Marriage Act: Bombay High Court

The Bombay High Court recently declined to interfere with a Nanded court's orders directing a school teacher to pay interim maintenance to her ex-husband, who claimed to have no sources of income.

Single-judge Justice Bharati Dangre held that the provisions relating to maintenance and permanent alimony under the Hindu Marriage Act can be invoked by the needy spouse which can also be the husband.

"The provision of maintenance / permanent alimony being a beneficial provision for the indigent spouse, the said section can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court." -Bombay High Court 

Article 14 has no application to dispositions under Will: Supreme Court

The Supreme Court on 30-03-22 held that in cases of execution of a will, there is no place for the Courts to see whether the distribution made by the testator was fair and equitable to all of his children.


"In the matter of appreciating the genuineness of execution of a will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a will." -Supreme Court

The Supreme Court held that none of the circumstances that the High Court set out to rule in favour of respondents created any suspicion regarding the execution of the wills.

"The law relating to suspicious circumstances surrounding the execution of a Will is already well-settled and it needs no reiteration....Cases in which suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned," 

Wednesday, March 30, 2022

Newspaper reports of no evidentiary value: Delhi High Court


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The Delhi High Court, while dismissing a petition seeking details of the Supreme Court Collegium meeting held on December 12, 2018, held that newspaper reports regarding the same hold no evidentiary value and cognisance could not be taken of unsubstantiated and unverified reports.

The High Court’s attention was drawn to certain newspaper reports that reported certain statements said to have been made by one of the Collegium members, saying that certain decisions were taken during the December 2018 meeting, and expressing disappointment that they had not been uploaded.

permanent injunction in favour of ANI in trademark suit against ANINEWSINDIA - Delhi High Court


The Delhi High Court recently granted a permanent injunction in favour of news agency Asian News International (ANI), restraining a website by the name of ANI News India from using the trademark ‘ANI'


The Court observed that internet users could be deceived into believing that the defendants as well as their website and various platforms are connected with the plaintiff.

“Defendant Nos.1 and 2 (the owners of the website) who are proceeded ex parte today are permanently injuncted from using the mark ‘ANI’ or any other derivatives including the logo form of ‘ANI’ as depicted in the plaint and in this order, either with or without the word ‘news’ and ‘India’ as ‘aninewsindia’, ‘aninews’ or in any other manner whatsoever including on the internet or any other social media platform including Instagram and Facebook, including the domain name containing the word ‘ANI’.”

The Court was informed that Google has already de-indexed the defendant’s website. It was said that though the two Facebook pages relating to ‘www.aninewsindia.com’ and www.facebook.com/aninewsindia1’, have already been pulled down, the personal Facebook page of the first defendant, who described himself as the Editor of ‘aninewsindia,’ is still operating. Justice Singh, therefore, directed that the said page be taken down within 36 hours.

Unmarried daughter can claim marriage expenses from parents: The case was remanded : Chhattisgarh High Court

The High Court held that Section 3(b)(ii) of the Hindu Adoptions and Maintenance Act includes in unambiguous terms, expenses for marriage.


A Division Bench of Justices Goutam Bhaduri and Sanjay S Agrawal held that Section 3 (b) (ii) of the Act includes expenses for marriage in unambiguous terms.

In Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriage,” the Bench observed while noting that a right was created and courts could not be in “denial mode” when such rights are claimed by unmarried daughters.

The Bench was hearing an appeal from an order of a Family Court which had dismissed an application by an unmarried daughter claiming an amount of ₹25 Lakh for the purpose of marriage.

An appeal was thus moved before the High Court. The appellant placed reliance on a judgment of the Madras High Court in the case of R Durairaj v Seethalakshmi Ammal to state that the maintenance amount would include the expenses of marriage, and the Family Court should not have dismissed the application.

Considering the provision, the Bench found that such a statutory attempt cannot be terminated at a threshold, and set aside the order of the Family Court.

Tuesday, March 29, 2022

POCSO survivor can be cross examined by State if she turns hostile: Karnataka High Court





The Karnataka High Court has held that a survivor in a case under the Protection of Children from Sexual Offences Act (POCSO Act) may be cross-examined by the State if she turns hostile.

The instant petition was filed on a complaint being registered for offences punishable under Section 376(n) read with Section 34 of Penal Code, 1860 i.e. IPC, Sections 4, 6, 8, 12 and 17 of the POCSO Act and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act. The State is before the Court in the subject petition challenging the order dated 16-09-2019 passed by the Principal District and Sessions Judge, Chamarajnagar whereby the Sessions Judge declined to permit the State to cross-examine the victim on her turning hostile in a case arising out of the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006.

The Court relied on judgment Doula v. State, Criminal Appeal No.100260/2016 decided on 22-07-2020 observed that in terms of sub-section (2) of Section 33 of the POCSO Act, the Special Public Prosecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall, in turn, put those questions to the child. Therefore, the victim is permitted to be cross-examined under the POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act.

The Court thus observed that from a perusal of the impugned order is that it runs counter to Section 33 of the POCSO Act, judgments rendered by various courts and resultantly becomes unsustainable. Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POCSO Act which mandates that while cross-examination questions shall be put to the Court and the Court, in turn, to put the same questions to the victim. The Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance.

Friday, March 25, 2022

A landlord whose property was used as a brothel cannot be prosecuted under the Immoral Traffic (Prevention) Act, if he/ she was unaware-Karnataka High Court




Justice 
M Nagaprasanna,  quashed the criminal proceedings against a landlord, on the ground that he was not aware that his property was being used to run a brothel.
"In the light of Section 3(2)(b) of the (Immoral Traffic Prevention Act) and the police themselves acknowledging that the petitioner was not aware of what was happening in the premises, permitting further proceedings to continue against the petitioner would degenerate into harassment and become an abuse of the process of law." 

The petitioner clearly stated in his reply that he was not aware that the premises were being used as a brothel and that he lived far away, which the police also acknowledged in the chargesheet filed against him, the Court noted.

It, therefore, allowed the petition and quashed criminal proceedings against the petitioner, while adding that the observations made by the court only apply to the present petitioner, and shall not influence proceedings against any other accused pending before any other forums.

Tuesday, March 22, 2022

Absence of medical report of victim would go in favour of rape accused: Calcutta High Court

Justice Bibek Chaudhuri held in the judgment that the victim had denied having herself medically examined and the same would go in favour of the accused.

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"If a girl of 13 years is violated by a grownup person like the accused, Subrata Pradhan, there must be marks of violence and injury on her private part. The said mark of injury would be visible at the time of medical examination of the victim. However, the victim denied having been examined medically. Thus, the absence of any report of medical examination of the victim would go in favour of the accused and he is entitled to get the benefit of the doubt." 

The Court set aside the conviction for the following reasons:

  • The statement made in the FIR itself was in the nature of hearsay. In the FIR, it was alleged that the victim girl was kidnapped on her way to school. However, she stated on oath that the accused picked her up when she was returning home from school and took her somewhere by vehicle;

  • The victim girl refused to get examined medically after she was produced before the medical officer. In her examination-in-chief, she stated on oath that she declined to get herself medically examined as there was no female doctor in the hospital. Assigning a reason for her refusal to get herself examined medically amounts to a material contradiction in the case;

  • In her evidence, the victim girl stated that the accused had taken away her medical documents from her school bag. This was not stated by her before the investigating officer. This amounted to a material contradiction in view of the fact that the specific case of the accused is that the accused and the victim girl had developed a relationship and the accused helped the victim girl in her medical examination;

  • The victim girl stated in her evidence that the accused brought her to the local police station. On the other hand, the investigating officer stated that he arrested the accused and the victim girl;

  • The prosecution did not try to collect the birth certificate of the victim girl or the school leaving certificate or any other documents to prove that she was a minor. The prosecution also failed to place her before the medical board for ascertaining of her age. In the absence of such evidence, she cannot be held to be a minor and the charge under Section POCSO Act cannot stand.