Author: LEXPEEPS editor

The right to protest in public places is not absolute and public places cannot be occupied indefinitely for such protests, the Supreme Court ruled that in a case highlighting the troubles faced by general public due to the road blockade at shaheen Bagh in south Delhi by protestors who were opposing the Citizenship Amendment Act(CAA). Dissent and democracy go hand in hand but protests must be carried out in designated areas, a three- judges bench, headed by justice Sanjay Kishan Kaul ruled. The Citizenship (Amendment) ACT, 2019 was passed last year which seeks to grant citizenship to non- muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.  The passage of CAA led to nationwide protests calling the CAA and the National Register of Citizens discriminatory. A women led protest 24/7 sit- in protest was also initiated in Shaheen Bagh, Delhi. The Shaheen Bagh protest result in the closure of the Kalindi kunj Shaheen Bagh stretch, including the Okhla underpass from 15. 12. 2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and thus a direction be issued to clear the same. The interlocutors made appreciable effort and submitted a report on 24.02.2020 which highlighted that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. The second report suggested that the views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance. While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors who all seemed to have a stake in the continuance of the blockade of the road.

The Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realizing of the protestors not fully realizing the ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.

The court noticed that the Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights which is freedom of speech and expression and right to assemble peacefully without arms that enable every citizen to assemble peacefully and protest against the actions or inactions of the State.

These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard. Noticing that in this age of technology and the internet, social movements around the world have swiftly integrated digital connectivity, publicity or effective communication, the court said that technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weakness.

The Court said that both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks- as has been opined by the interlocutors and caused inconvenience of commutors.

While interpreting the constitutionally guarranteed right to protest and to assemble in the Shaheen Bagh case, the Supreme Court does reiterate that protection of the rights should be balanced.

Fugitive Indian Businessman and former member of Parliament Vijay Mallya’s extradition from the United Kingdom to India has been stalled by “secret” proceedings that have commenced in the UK, the central government told the Supreme Court on Monday, a development suggesting that the former liquor baron may have sought asylum in the UK. Although the extradition proceedings against the liquor baron concluded in May after the UK high court rejected Mallya’s plea to approach the UK Supreme Court against the proposed extradition to India, the fresh proceeding have delayed his departure for India, the apex court was told.

“After extradition proceedings were complete, another secret proceeding has commenced, but we have not been notified and we are not a party to the proceedings. The extradition is not happening. Mallya  flew to the UK in March 2016 as a consortium of India banks, which claims that he owes them 9,000 crore in principal and interest on loans extended to his defunct Kingfisher Airlines, closed in on him to recover the money. He was subsequently declared a wilful defaulter in India. In London, speculation arose that most likely issue holding up Mallya’s extradition to India was an application for asylum, which is a process on which British authorities do not publicly comment in individual cases as a matter of policy and strict data protection laws. Mallya has lost a series of challenges to his extradition in the Westminster Magistrates Court and the high court since proceedings began after his arrest in April 2017. Under Uk rules, until an asylum application is determined, extradition cannot be carried out.

A ministry of home affairs spokeperson did not respond to HT’s queries on the matter. A high commission spokesperson had stated on June 5. Vijay Mallya last month lost his appeal against extradition, and was refused leave to appeal further to the UK Supreme Court. However, there is a further legal issue that needs resolving before Mr Mallya’s extradition can be arranged. Under United Kingdom law, extradition cannot take place until it is resolved. The issue is confidential and we cannot go into any detail. We cannot estimate how this issue will take to resolve. We are seeking to deal with this as quickly as possible. The UK home office has a backlog of over 1,00,000 asylum applications. In the year ending June 2020, the UK offered protection- in the form of asylum, humanitarian protection, alternative forms of leave and resettlement – to 16,952 people, latest official figures show.

The court also ordered Mallya’s lawyer to submit a concrete response on November 2 about the nature of the fresh proceedings in the UK, when those proceedings are likely to conclude and when Mallya will make an appearance before Supreme Court. Mallya’s lawyer Ankur Daigal told that he did not know what kind of proceedings were going on. He said, that he knew that it is enough that his plea against the extradition proceedings has been rejected. The bench directed proceedings has been rejected. The bench directed Mallya’s lawyer to inform  him by November 2 when the fugitive businessman would be able to appear in the court and when be able to appear in the court and when the confidential proceedings would be over. Advocate Rajat Nair on behalf of the Center told the bench that extradition has been requested as per the direction of the court. He said that no confidential extradition proceedings were going on which he was not aware of. He said that the Supreme Court of Britain has ratified the extradition proceedings of Mallya but that is not yet taking place.

Mallya has been based in the UK since March 2016 and remains on bail on an extradition warrant executed three years ago by Scotland Yard on April 18, 2017.

Justice SV Kotwal of the Bombay High Court today granted bail to Bollywood actress Rhea Chakraborty, Dipesh Sawant and Samuel Miranda in cases registered under the Narcotics Drugs and Psychotropic Substances (NDPS) Act by the NCB. The court, however, rejected the bail applications filed by Abdul Parihar and Showik Chakraborty, who are also accused of NDPS offences by the NCB.

Rhea Chakraborty’s bail application was allowed subject to furnishings a PR Bond of Rs. 1 lakh, among other conditions. The court had directed Rhea Chakraborty to appear before the nearest police station every day for 10 days after she is released on bail. Rhea has also restricted from leaving the country as a bail condition.

Dipesh Sawant and Samuel Miranda have been allowed bail subject to furnishing of a PR bond of Rs.50000/- each. Their passports are also directed to be impounded. Appearing for the NCB, the ASG Anil Singh requested for a stay on the order’s operation. However, the same was rejected by the court.

Advocate Satish Maneshinde, appearing for Rhea, requested for 1 month to furnish bail bond, which was allowed. Rhea Chakraborty, Showik Chakraborty, Abdek Basit Parihar, Samuel Miranda and Dipesh Sawant had filed bail applications before the Bombay High Court after their bail plea was rejected by a Special NDPS Court in Mumbai.

Justice Kotwal of the Bombay High Court had reserved the judgment after a marathon hearing of all 5 bail applications on September 29, which lasted beyond the Court’s usual working hours.

Rhea Chakraborty and the others are accused of having facilitated the procurement of drugs for consumption by late actor Sushant Singh Rajput.

Advocates Satish Maneshinde, Tariq Sayed, Subodh Desai and Rajendra Rathod argued for the accused in the matter, contending that they ought to be granted bail for the following, among other reasons:

1. The narcotics crime bureau had no jurisdiction to investigate in this matter because of the Supreme Court order of August 19, 2020 to hand over all investigations pertaining to the death of actor Sushant Singh Rajput to the CBI.
2. Even if NCB had jurisdiction, the offences that were charged on the accused were of a bailable nature. On this aspect, the counsel added that the quantities of the substance allegedly involved in the matter were small, and not commercial.
3. The charges against the accused under Section 27A of the NDPS Act were not made out with supporting evidence.

Additional Solicitor General Anil Singh appeared for the NCB and maintained his stand that NCB had the jurisdiction to investigation in the matter. He asserted that the NCB had enough evidence to show that the accused were all part of the larger drug cartel.

Rhea Chakraborty and the others were arrested by the NCB for alleged offences under the provisions of the NDPS Act. Upon making a remand application for judicial custody, the Additional Chief Metropolitan Magistrate at Esplanade Court granted 14 days judicial custody over the accused.

The Special NDPS Court rejected bail on September 11.

After the Special NDPS Court refused to grant bail, rhea and the others filed individual bail applications before the Bombay High Court, submitting 51 grounds for seeking bail.

Justice Kotwal gave a preliminary hearing to the applicants before listing the matter for final hearing on September 29, when he reserved the matter for verdict.

The Delhi High court Bar Association (DHCBA) has moved that High Court challenging the classification of law offices as “commercial activity” for the purposes of calculation of property tax under Delhi Municipal Act. “A professional activity like an advocate is not a business and cannot be deemed as a commercial activity and as such, the non- residential rates would not apply in the case of an advocate using premises for an office,” DHCBA has asserted that the classification of law offices as the commercial establishment is unintelligible and falls foul of Article 14 of the Constitution of India. Asserting that the offices of lawyers should be treated under the category “for residential purpose and public purpose”, DHCBA has asserted that the classification of law offices as the commercial establishment is unintelligible and falls foul of Article 14 of the Constitution of India.

Lawyers appear before the Hon’ble Court to represent their clients but in effect assist the Hon’ble court to dispense justice, and this cannot be a business or any commercial activity. It is also pleaded that while treating law offices as commercial units, the Assessing Authorities have also ignored the law laid by the Supreme Court regarding the profession of advocates not being a “commercial enterprise, industrial, mercantile, shop or business venture”. Professional activities of lawyers are done purely on the strength of their knowledge and skills. Even those who have separate offices have to carry briefs home for reading and necessary preparations for the next day’s hearing. It has been stated that the Bar Council of Delhi sent a representation to the municipal  corporations on July 21 for reduction of the ‘use factor’ 4to 1 for levy of property tax in respect of offices of advocates in Delhi. ‘Use factor’4 is for business buildings which attracts the highest tax.  The Petition also submitted that if the law offices were treated as commercial units, the Assessing Authorities would also ignore the Supreme Court’s rule of the profession of advocates not being a “commercial enterprise, industrial, mercantile, shop or business venture. “Hon’ble Justice Najmi Waziri presided over the petition. Citing recent developments that indicate immense mental and economic pressure on lawyers owing to the continued suspension of physical trials and limitations on proceedings only by video conferencing on urgent matters, the letter argues that the suspension of physical proceedings cannot continue at the expense of the livelihood of the vast majority of lawyers.

In light of this, the Bar Association is hoping to give way to a ‘hybrid system’ in compliance with the un- lockdown guidelines. Subsequently, the letter notes that the restriction of the proceedings of the Court and the judicial system to video conferencing only comes with its ‘inherent limitations’ which have led to a backlog of pending cases and that many sub-judice have been in a state of suspension for 4 months now, thus slowing the efficiency of the system of dispensation of justice. As an interim relief, the plea sought to stay the operation of November 2018 notice issued by the authorities for self assessment property tax return of the lawyers office. The plea has arrayed the three municipal corporations as parties

Introduction

The Apex Court set aside the order of the High Court dated 23 July 2020, which declined to permit Parvez Noordin Lokhandwalla to travel to the US for a period of eight weeks from 25 July to 6 September 2020. He urged that it was mandatory for him to return to the US within stipulated period of his departure from that country, failing which the conditions for revalidation of the Green Card would not be fulfilled. The High Court declined to relax the conditions imposed by it for the grant of interim bail on the ground that an FIR has been registered against him.

The Supreme Court bench consisted Justices DY Chandrachud and Indira Banerjee.

Court’s Decision

After hearing both the sides the Court shared its views:

• The conditions which a court imposes for the grant of bail-in this case temporary bail- have to balance the public interest in the enforcement of criminal justice with the rights of the accused. The human right to dignity and the protection of constitutional safeguards should not become illusionary by the imposition of the conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant permission as sought in this case must be carefully evaluated in each case.
• The appellant is an Indian citizen and holds an Indian passport. While it’s true that an FIR has been lodged against the appellant, should not itself prevent him from travelling to the US, where he is a resident since 1985, particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green card if the appellant were not permitted to travel. The record indicates the large amount of litigation between the family of the appellant and the complainant. The appellant has frequently travelled between the US and India even after the filing of the complaint and the FIR. The application for modification was incorrectly rejected by the High Court and the appellant ought to have been allowed to travel to the US for a period of eight weeks.
• The Court hence allowed the appellant to travel to the US for a period of eight weeks, subject to furnishing an undertaking to the Court before the date of the travel that he will return to India after the expiry of eight weeks and he shall be available on all dates of hearing before the court of criminal jurisdiction, unless specifically exempted from personal appearance.
• Hence, the order of the High Court dated 23 July 2020 was set aside.

Key Highlights

• Case name: Parvez Noordin Lokhandwalla v. State of Maharashtra & Anr.
• Case no.: Criminal Appeal No.648 of 2020
• Counsel: Adv Subhash Jha for appellant, Adv Sachin Patil for State.

• Delhi’s Guru Gobind Singh Indraprastha University has released a notice to take exams of intermediate semester LL.B students. The students are supposed to appear in the examination that is going to be conducted in offline mode From 27th of October. At the times when the cases are rising university’s move is totally unjustified from the student’s point of view.

The petrifying and severe impact of COVID-19 has shaken the world to its core. Further, most of the governments around the world have temporarily closed educational institutions in an attempt to contain the spread of the COVID-19 pandemic. In India too, the government as a part of the nationwide lockdown has closed all educational institutions, as a consequence of which, learners ranging from school going children to postgraduate students, are affected. It’s been almost four months since India’s national lockdown sent student lives into limbo. At universities across India, students are battling varying guidelines, changing exam dates and the whims of authorities as they prepare for their final year exams. All at a time when colleges have struggled to conduct classes online, share study material and well, teach. An online survey on college student; sentiments about conducting examinations amid the COVID-19 pandemic has drawn over 5,000 respondents in a single day, with 72.2% of the students backing results on the basis of the average of internal exams of current and previous semesters. As many as 87.1% of the students said they are not in the mindset to appear for physical or online exams even if the government relaxes the lockdown. While 93.5% did not want to be conducted during the pandemic, 92.9% said their parents will not send them to exam centres.

“There is a lot of uncertainty among students on how to face the situation. They are facing a situation of panic and are stressed because there are no clear-cut instructions from the university or government. Of those surveyed , 15.1% are third –year or final –year undergraduate students who have applied for admission to foreign universities. As many as 58% said their end semester mark sheet will affect admissions to these universitie, while 62.2% said it would affect their job prospects.

A lot of students had left for their hometowns before the nationwide lockdown was announced. Candidates from far-flung areas will face difficulties in coming back to colleges or universities. Hostel accommodation will be risky due to covid-19 restrictions. Students, especially those from economically weaker sections,  might face difficulties in making these arrangements. Besides, students might be asked to quarantine; that will be another challenge.

With classes, libraries and study centres closed, people have no recourse but to study at home, which is not always conducive to productivity. Like some students who live in remote areas or areas where connections are bad can face great difficulty in completing their exams .on time or even appearing in it. This can affect their grades and performance. Online examination process security is one of the critical challenges. Proper authentication, authorization process should be followed to ensure that the right candidate is appearing for the exam in a secure environment without any malpractices. Timely examinations can be bad. If any circumstance online examinations then they should give enough time to the students for the completion. Time should be set according to the level of questions. And for physical exams it will be hard for students to maintain social distance at all the times. Also students who would be suffering from general cold and cough will suffer as they won’t be allowed inside the examination centres. This can take a toll on their careers. This situation isn’t favourable for any kind of gathering and giving exams is going to violate that. Exam cancellation is of utmost importance for our safety. I only hope for some consideration regarding the same from the university.

It is noteworthy that the university doesn’t allow to make any kind of student unions and in these situations, students do not even have proper leadership to put forth their views with solidarity. Although students have seen taking the help of social media platforms like twitter and hashtags like

#IPUAGINSTSTUDENTS #IPUCHALEGACORONABADHEGA is fetching attention on twitter.

The single Bench of Justice Anup Jairam Bhambhani was considering the bail application of a 24 year old man, who is accused of coercing a 17 year old girl to have sexual intercourse with him and having consensual relationship, at the threat of publicizing her private pictures against her consent to embarrass her. Whereas the bail applicant had contended that he should be enlarged on bail since the investigation is complete and the charge-sheet in the matter has been filed, the prosecution had pleaded the application of Section 29 of POSCO to contest bail. Section 29 of the POSCO Act creates a ‘Presumption of guilt’ on the part of the accused if he is prosecuted for committing, abetting or attempting offences under Section 3,5,7 and 9 of the Act. It was submitted that evidence was not been recorded in courts by reason of the pandemic thus stated the detention of accused unfair and unwarranted. On another, opposing to grant of bail, the prosecution argued that since charges have alrady been framed in the matter. Section 29 of the POSCO Act will apply with full vigour, whereby the court must presume the applicant to the guilty of the offences charged till he proves otherwise; and as record clearly showed that the complainant was minor and question of physical relationship being consensual does not arise. It was submitted that while having sexual intercourse continuously with that girl and made her position worse and thus bail must not been given. Afterwards, the court observed that while hearing a bail application for offences alleged under the POSCO Act, certain very significant factor requires to be addressed, in addition to general principles of granting bail. It was noted that while ordinarily there is a ‘presumption of innocence’ via-a-vis an accused, Section 29 of the POSCO Act reverses this position. Section 29 of the POSCO Act creates a ‘presumption of guilt’ on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. It added that if a bail plea is considered at any stage ‘’prior to framing of charges”, then Section 29 has no application since upto that stage an accused is not being prosecuted. The POSCO Act was enacted to specifically address sexual offences against children and to establish Special Courts for trail of such offences and secondly presumption has been provided that the accused in case of sexual assault has committed the offence unless proved contrary.

Justice Bhambhani was of the opinion that if the accused is asked to disclose his defence or to adduce evidence in his defence even before the prosecution has marshaled its evidence, the same would be “anathema to fundamental criminal jurisprudence. Thus the court was in factors were that there was age difference of 4-5 years and also both were at an age when a reciprocal physical relationship between two was not so young. It was appeared to be very little to support any allegation of serious violence or injury that would betray brutality in the offence alleged. Thus it was held that even though trial had commenced and charges had been framed against the accused, the court allowed the bail plea as the complainant and the bail applicant were at an age when reciprocal physical relationship between them was not so young. Further, there was no element of brutality in the allegations and it was not a case where the accused had tried to threaten the complainant between the registration of FIR.

INTRODUCTION

The criminal revision is filed under Sections 397 and 401 of crpc , challenging the order , dated 25.09.2009 passed by the learned Judicial Magistrate No.II, Tirunelveli, in Crl.M.P.No.441 of 2009 in C.C. no. 4 of 2009. It is seen that the case was registered against the petitioner, who was arrayed as A8 and other accused under Section 408,467,468,477,471(A) r/w 120 (b) IPC and the petitioner herein filed the petition under Section 239 of Crpc seeking discharge. By the impugned order dated 25.09.2009, it is seen that the same was dismissed by the court below. Aggrieved by which, this revision has been preferred.

The revision petitioner has stated that during the relevant period between 03.06.2003 and 17.07.2003, A1 was the secretary of the Naduvakurichi Primary Agricultural Bank. The allegation is that the accused 1 to 3 had created forged document and thereby created misappropriation. The petition herein was an employee of the Central Co-operative Bank, holding the post of field manager and he has stated that he was nothing to do with the alleged offence. Learned counsel appearing for the petitioner drew the attention of this court to the charges framed against the petitioner / A8 and submitted that the petitioner herein was a field manager in the central co-operative bank and that no primary work was done by him. He was attending only supervising of the work done by the other officials. A hundred percent audit was conducted in the year 2004 in the Nduvakurichi Primary Agricultural Co-operative Bank, where discrepancies were noted and enquiry was ordered under Section 81 of the Co-operative Societies Act. The report of the enquiry officers was sent to the Director of prosecution , opined to take criminal action against the accused A1 to A3.

It is an admitted fact that so far as the petitioner and four other are concerned, the director of prosecution has given his opinion in writing. On perusal of the enquiry report that there was no intention on the part of the petitioners and others to fix any criminal liability on them and if any rules or orders were found violated by them, they might be departmentally dealt with. It is seen that the FIR was also registered originally against A1 to A3. Though the name of the revision petitioner did not find a place in the FIR and he was stated initially a prosecution witness, subsequently, he was arrayed as an accused.

Learned counsel appearing for the petitioner further submitted that under Section 84 of the Tamil Nadu Co-operative Societies Act 1983, the chief executive i.e the principal paid officer of every resistered society or the president of that society shall be bound to keep and maintain such account and other books and registers. According to the learned counsel appearing for the petitioner, as per section 84 of the Tamil nadu Co-operative Societies Act,1983, the petitioner is not responsible for the maintenance of the accounts and other books of the registered society and on this ground itself, the petitioner is entitled to be discharged from the criminal proceedings.

Per contra, learned Government Advocate appearing for the respondent/complainant submitted that the petitioner is not entitled to the relief of discharge, as sought for by him in the Revision. Learned counsel appearing for the petitioner further contended that A4 is a similarly placed officials, who preffered revision against the dismissal of his discharge petition. However this court allowed the revision and a copy of the order passed by this court in Crl.O.P(MD) No.s 981 and 982 of 2010, dated 28.04.2010 was also produced. In support of the contention. Learned counsel for the petitioner relied on the order passed by this court in favour of one Manoharan Jebaraj Julin, who was arrayed as A4 and further submitted that in the departmental proceedings, the petitioner was given punishment of stoppage of increment for about 6 months. A copy of the order passed by the Deputy Register , Co-operative  Societies , as special officer, dated 27.07.2007 available in the typed set was also brought to the notice of this court. After the enquiry, stoppage of increment for 6 months with cumulative effect was imposed on the petitioner by the Deputy registrar as Special Officer of the Tuticorin District Co-operative Bank Limited.

According to the learned counsel appearing for the petitioner, even as per the finding in the departmental proceedings, it could be construed only dereliction of duty and not an offence so far as the petitioner is concerned and the allegation against the petitioner would not be sufficient to initiate any criminal proceedings against the petitioner. According to the learned counsel appearing for the petitioner, there is no prima facie case made out against the petitioner to maintain the criminal complaint against the petitioner herein. The learned counsel appearing for the petitioner, in support of her contention, relied on the decision in Dy. Chief Controller of imports and Exports vs. Roshanlal Agarwal reported in 2003 (4) SCC 139. The petitioner has been arrayed as A8, on the ground that he had not discharged his duty in his supervising capacity as a field manager and he has not committed any offence, as alleged and further, as per the original FIR his name, does not find a place, he was admittedly stated only a prosecution witness. However, without sufficient grounds, subsequently, he was implicated as A8, which is not legally sustainable.

Learned counsel appearing for the petitioner further drew the attention of this court to the counter filed by the respondent herein and also the arlier counter filed in the case in Crl.O.P filed by the co-accused/ A4. As contented by the learned counsel for the petitioner. In both the counters only identically similar averments were made against the petitioner and the co-accused/ A4. Learned counsel appearing for the petitioner submitted that it is clear that the petitioner has been a similarly placed person as that of the co-accused A4, who was discharged by order dated 28.04.2010 passed in Crl.O.P.Nos 981 and 982 of 2010.

In the light of the decisions of the Hon’ble Apex Court, referred to by both the learned counsel, I am of the view that there is no prima facie case made out against the petitioner/ A8 who was subsequently arrayed as one of the accused in the criminal case and accordingly he is entitled to get discharge and accoprdingly, yhe impugned order passed by the court below is liable to be set aside.

In the result, the revision petition is allowed and the impugned order passed by the court below is set aside and the petitioner/ A8 is discharged from the criminal proceeding, as prayed for. Consequently, connected miscellaneous petitions are closed.

Introduction

The case of Smt. Selvi & Ors. Versus State of Karnataka was delivered on May 5, 2010 by the Apex Court. The bench consisted of Justice K.G. Balakrishnan, R. V. Raveendran and J.M. Panchal. The case was regarding the narco analysis test during the investigation in criminal cases.

Key Highlights

• The Court exercised its Criminal Appellate Jurisdiction
• This was Criminal Appeal No. 1267 of 2004

Court’s Decision

The Supreme Court observed in this case that the compulsory administration of the techniques like narco analysis test constitutes ‘cruel, inhuman or degrading treatment, in the context of Article 21. Hence, the Court held that no individual should be forcibly subjected to such tests, whether in the context of investigation in criminal cases or otherwise, as the same would amount to an unwarranted intrusion into personal liberty. Such techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases. For the cases of forcible tests during the investigation the , the Court said that no person who is a victim of an offence can be compelled to undergo any of the tests in question, such a forcible administration would be an unjustified intrusion into mental privacy and could lead to further stigma for the victim.

However, voluntary administration of such techniques in the context of criminal justice is permissible, provided that certain safeguards are in place. The Court stated,

“Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act.”

Finally the Court gave ‘Guidelines for the Administration of Polygraph Test ( Lie 249 Detector Test) on an Accused’ published by National Human Rights Commission and directed that they should be strictly adhered to and similar safeguards should be adopted for conducting the ‘ Narcoanalysis technique’ and the ‘Brain electrical Activation Profile’ test.

2020 Hathras Gang Rape

On 14 September 2020, a Dalit girl was allegedly gang- raped by four upper caste men in Hathras district, Uttar Pradesh, India. After fighting for her life for nearby two weeks, she lost the battle of her life. The incident took place on 14 september 2020, when the victim, a 19 year old girl went to a farm to collect cattle fodder. The victim was dragged away by dupatta around her neck injuring her spinal cord in the process. She was left paralyzed with a severe spinal cord injury that was permanently damaged. She was at first taken to the Chand Pa police station, where the police rejected her claims and humiliated them. Afterwards victim was initially admitted to the Jawaharlal Nehru Medical College and Hospital in Aligarh 15 days before her death. Later on shifted to Safdarjung Hospital in Delhi and due to her worse condition she was not able to survive and died on 29 september 2020. After her death inDelhi, India’s body was whisked away and despite the fierce protests of her family, was cremated around 2.30 am by the police. The police then tried to prevent the press from taking any  pictures or recording their actions. Meanwhile, on October1, the Additional Director General of Police, Prashant Kumar, apparently relying on the FSL stated that the cause of death was injury to the spinal cord , he denied of rape occurrence. With the reports indicates that the FSL samples which were taken showed that there was not any kind of fluids like sperm to be found there. However, the amendments to our rape law mandate that only penetration is required to establish rape or gang rape not a presence of sperm. The way the body of victim was cremated the judges points that it mandates the right to dignity and fair treatment is available to all in life and death. The historical reality of our country is that events like the gangrape have been common. In pre-constitutional feudal India, there was sanctioned control of the upper castes on the labour, especially for dalits. Our Constitution, recognizing the systemic degradation of lower caste persons, mandated prohibition on caste and sex based discrimination. But India’s case shows that no constitution has any meaning if those tasked with enforcing it have aligned themselves to an unconstitutional caste based code of loyalty. “why on earth was her body torn from the family and burnt in the dark somewhere like it’s a piece of trash? This is something like that, no dignity not even mercy in death”. Repeated rape cases have angered many Indians. Some are now demanding the capital punishments for rapists.“People often say a tough law can bring about change.

Law needs to be effective and the investigating agency and prosecution more efficient for which there is a dire need.’’Uttar Pradesh Yogi Adityanath recommended CBI probe in this case.