Tag: cases

CITATION

BLAPL No. 4592 OF 2020

BENCH

Justice S.K. Panigrahi

DECIDED ON

23.11.2020

RELEVANT ACTS

The Information Technology Act, 2000; the Constitution of India, 1950; and the Indian Penal Code, 1860.

BRIEF FACTS

The case’s factual matrix is that both the informant and the petitioner were in love with each other and were village mates along with classmates. Once, when the informant was alone at home, the petitioner took the advantage of the situation and went to her home and raped her, and recorded the heinous crime on his phone. After that, the petitioner blackmailed the informant that if she tries to tell to her parents then, he will kill her and would viral all the photos and videos of the petitioner on the social media account. The petitioner took advantage of the informant’s situation and maintained sexual relations with her. When the informant made her parents aware of the gruesome acts of the petitioner, he created a fake account of the victim and uploaded all the videos and photos on the account with the objective of traumatizing her. When the FIR was lodged, the police were unable to take any satisfactory measures on the said complaint which resulted in portraying the unsoundness of the system.

The learned counsel appearing on behalf of the petitioner contended that since the accused and victim are both adults, they are the best people to decide what is right or wrong. He asserts that the petitioner has an ITI diploma and is looking for employment, therefore his imprisonment will harm his career. He added that the petitioner is sincerely interested in getting married to the victim girl.

The learned counsel appearing on behalf of the informant contended that not only had the petitioner coercively engaged in sexual activity with the victim girl, but he had also cunningly recorded the private encounter and posted it to a fake Facebook account he set up in the victim girl’s name. Since the accused/petitioner is specifically accused of engaging in forced sexual activity against the victim’s will, the claim is quite serious. He further asserts that the case’s inquiry is still ongoing. The petitioner committed significant crimes, according to the entirety of the FIR’s allegations, the statement made under Section 161 of the Cr.P.C.¹ and other documents found in the records. At last, he contended that the victim has suffered grave mental trauma because of the tactics used by the accused.

ISSUES

Whether the victim’s rights, particularly her right to privacy, which is closely linked to her right to have those unpleasant photos erased, remained unanswered even though the Act stipulates criminal sanctions for those who commit such offences?

JUDGEMENT

The court held that although the impact of crime on the victim may vary significantly for the person(s) and case(s), the Indian criminal justice system is more of a sentence-oriented system with little emphasis on the disgorgement of victim’s loss and suffering. For some, the impact of crime is short and intense, while for others it is long-lasting. However, a lot of victims find the criminal justice system to be daunting, perplexing, and complex. Many people are unsure about how to get assistance. As in the present instance, the victim’s rights to have those submitted photographs and videos removed from Facebook’s servers are still unresolved due to a lack of suitable legislation. The court further added that without a woman’s permission, allowing such offensive images and videos to remain on a social media platform is an outright violation of a woman’s modesty and, more importantly, her right to privacy. In such situations, either the victim or the prosecution may, if so advised, seek the proper orders to safeguard the victim’s fundamental right to privacy by having the offensive posts removed from the public platform, regardless of the current criminal procedure.

CONCLUSION

The Court relied on cases decided in the European Union to examine the right to be forgotten issue. The General Data Protection Regulation (GDPR), which regulates the collection, use, and disposal of personal data, refers to the right to be forgotten. In accordance with Article-17 of the GDPR, Recitals 65 and 66, and if the controller has exercised due care, the victim has the right to have such information promptly deleted. Additionally, data controllers must make all necessary efforts to ensure that inaccurate data is deleted or updated as quickly as feasible in accordance with Article 5 of the GDPR. The victim cannot be expected to appear in court each time erroneous data or information is found, the Court noted, especially when the data is within the control of data controllers like Facebook, Twitter, or other social networking sites.

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CITATIONS

1. The Code of Criminal Procedure 1908, sec 161.

This article is written by Prerna Pahwa, a student at Vivekananda Institute of Professional Studies, New Delhi.

Case Number

Writ Petition (Criminal) 67/2017

Equivalent Citation

(2018) 11 SCC 1

Petitioner

Nikesh Talwar Shah

Respondent

Union of India and Ors.

Bench

Justice R. F. Nariman

Decided on

November 23, 2017

Relevant Act/ Section

Article 21 of Constitution of India, 1949; Section 45, 65 and 71 of Prevention of Money Laundering Act.

Brief Facts and Procedural History

The constitutionality of Section 45 of the Prevention of Money Laundering Act was contested in an appeal. Two requirements are imposed by Section 45 before the bond can be issued. The court must be satisfied that the prisoner was not guilty of such a crime and that he would not conduct any crimes while on release. Additionally, the prosecution must have the opportunity to oppose any motion for bail.

Judicial History

In Hussainara Khatoon v. Bihar State,¹ the Supreme Court was presented with the issues of several sub-treaties whose incarceration periods surpassed the incarceration periods required for the crimes against them. These sub-treaties made up 80% of the jail population. Following, Maneka Gandhi v. Union of India², the Court ordered the release of individuals whose prison terms had surpassed the sentence terms for their offences, in accordance with Article 21. In Mantoo Majumdar v. State of Bihar,³ the Supreme Court upheld the accused’s right to personal liberty once more and ruled that the petitioners should be released on their bail and without any sort of security because they had been imprisoned for six years while awaiting trial.

Issues before the Court

1. Whether Section 45 of the Prevention of Money Laundering Act, 2002 is unconstitutional or not?

The Decision of the Court

The senior attorney, Shri Mukul Rohatgi, argued that Section 45 of the PMLA is manifestly arbitrary, discriminatory, and in violation of the petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution when it imposes two additional conditions before the granting of the bond. He further stated that the goal was not to refuse bail to people charged with the offences listed in Part B above and that doing so would be discriminatory and a violation of Article 14 of the Constitution because it would amount to treating ‘unequals’ identically.

Additionally, according to skilled senior counsel, the three-year threshold mentioned in Section 45 of the 2002 Act is by itself arbitrary because it only refers to the predicate offence and not to the money laundering offence itself. Regarding the 2002 Act, there is no requirement for the categorization based on the quantity of money that is laundered, which might be a legitimate basis for classification. Furthermore, according to the experienced senior counsel, if the requirements of Section 45(1) are met at the bail stage, the defendants will be required to reveal their defense at a time when they are unable to do so since they were arrested and weren’t given bail at the beginning itself.

The Supreme Court took into account the discrimination brought about by (a) the classification of the offences under Section 45(1) and (b) the application of Section 45(1) to diverse circumstances with respect to the challenge under Article 14. The Supreme Court ruled that a classification based on the length of time spent in jail for a Scheduled Offence had no reasonable connection to the goal of the PMLA, which is to attach and reinvest significant sums of money obtained via criminal activity. Although the court believed that other serious crimes under the IPC (crimes with a maximum sentence of 10 years) that were not specifically mentioned in Part A could also be the source of the money or proceeds, a person accused of such a crime could still obtain bail without the need for an application of the impugned conditions.

Regarding the application of the impugned conditions, the Supreme Court, among other things, held that: Section 45(1) of the PML Act created a situation in which the same offenders in various cases might end up experiencing various outcomes in terms of the grant of bail, depending on whether or not Section 45(1) applied. This was deemed to be especially problematic because the decision to grant or deny bail had no bearing on the money laundering offence under the PML Act; rather, the denial of bail was based solely on the fact that the offence was being tried alongside the offences under Part A.

The contested conditions were arbitrary and discriminatory because they required the accused to prove that they were not guilty of “such an offence” and that they were not likely to commit “any offence” while out on bail. Even though they might demonstrate that they had good reason to think they were innocent of the money laundering charge, an accused was being denied bail for the Scheduled Offence based on the Impugned Conditions. A person might be granted anticipatory bail for the same offence of money laundering and the Scheduled Offence because the PMLA did not forbid the grant of one, but he would then be granted regular bail upon satisfying the conditions of the anticipatory bail.

The Supreme Court briefly addressed the challenge to the conditions under Article 21 after a lengthy discussion on the challenges to the impugned conditions based on Article 14, specifically whether the conditions, which reversed the presumption of innocence, violated the fundamental right to personal liberty. The impugned conditions, according to the Supreme Court, are “dramatic measures that make substantial intrusions into the fundamental right to personal liberty” and can only be supported on the basis of a “compelling state interest in confronting crimes of an exceedingly heinous kind.”

It may be important to note that the Supreme Court was not required to decide whether the contested conditions actually met the requirements of a “compelling state interest,” as it could ex facie invalidate the contested conditions on the grounds that they infringed the accused’s constitutional right to equality. Following the ruling in the Maneka Gandhi case⁴, Article 21 now provides protection not only from executive action but also from legislation that robs a person of his or her life and personal freedom.

While the Supreme Court’s decision, in this case, is significant and the inconsistent nature of the pre-bail conditions under the PMLA provided a compelling argument for their elimination, it may be worthwhile to speculate whether the Supreme Court would have reached the same conclusion regardless of whether the pre-bail conditions were constitutional (especially in cases involving economic offences).

It was clear that the Supreme Court could have reached no other judgement given the scheme of the Scheduled Offences under the PML Act. It is still unclear if an economic offence like money laundering requires severe or harsh provisions like the Impugned Conditions and whether the state has the authority to restrict an individual’s rights in such circumstances. Therefore, the Supreme Court did not specifically consider the justiciability of the pre-bail conditions, such as the Impugned Conditions, in the instance of economic offences.

It was contended that the phrase “there are reasonable grounds to believe that you are not guilty of such a crime” in Section 45 should be interpreted as the Court’s initial determination of a defendant’s responsibility. Second, the wise Attorney General asserts that when the bonus is generally provided concerning offences in general and referred to the State of UP through C.B.I. v. Amarmani Tripathi⁵ for this reason, the requirements stipulated in Section 45 (1) (ii) are there in a different form. The astute Attorney General claims that Section 45 is unarguable when read in accordance with the principle of harmonious construction. Its foundation was Section 24 of the PMLA, which reversibly shifts the burden of proof, and it heavily cited Gautam Kundu⁶.

In the case of individuals charged with fraud in connection with a company’s affairs, take into consideration the provisions of Section 212(6) of the Companies Act, 2013, which also foresees restrictions similar to the impugned conditions. It is highly unlikely that a constitutional challenge to such pre-bail conditions would be upheld on the basis that they are inherently excessive and unreasonable, especially in light of the Supreme Court’s prior declaration that “economic offences need to be viewed seriously and considered as grave offences affecting the economy of the country and posing a serious threat to the financial health of the nation.”⁷ As a result, it is currently unclear and pending court clarification whether the pre-bail requirements (similar to the impugned conditions) are legitimate and justiciable in the context of economic offences.

It was clear that the Supreme Court could have come to no other judgement given the (inaccurate) list of offences included in the PMLA Act. The question of whether economic crimes like money laundering required harsh or contentious conditions and if the state might restrict a person’s rights in such cases is still open.

Pre-bail conditions’ constitutionality was decided by the Supreme Court in the instant case, and inconsistent interpretations of their scope and applicability under the anti-money laundering law presented a compelling argument. It may be worthwhile to analyze if the Supreme Court would have deleted the conditions otherwise fiercely contested except for the ambiguity produced by the Amendment Act, 2012, given the finding about the legitimacy of the conditions prior to bail (particularly in economic crimes).

Citations

1. AIR 1979 SC 1360.
2. AIR 1978 SC 597.
3. AIR 1980 SC 846.
4. AIR 1978 SC 597.
5. (2005) 8 SCC 21.
6. (2015) 16 SCC 1.
7. Rohit Tandon v. The Enforcement Directorate, 2017 SCC online SC 1304.

This article is written by Sanskar Garg, a last-year student of School of Law, Devi Ahilya University, Indore.

Court

Supreme Court of India

Case No.

122 of 1958

Citation

1960 SC 1186; 1969 AIR 395; 1959 SCR Suppl.(1) 806.

Petitioner

Pandit MSM Sharma

Respondent

Sri Sri Krishna Sinha & Ors.

Date of Judgment

12/12/1958.

Bench

Chief Justice Sudhi Ranjan Das.
Justice Natwarlal H. Bhagwati.
Justice Bhuvneshwar P. Sinha.
Justice K. Subbarao.
Justice K.N. Wanchoo.

Facts

The applicant was the Editor of the Patna newspaper ‘Search Light’. There was a dispute in the Legislative Assembly of Bihar when one of the oldest members of the Assembly, M.P.N. Singh directed a speech censuring the Bihar administration, which the Chief Minister, Dr. S.K. Sinha, ran on 30th August 1957. Singh also quoted specific occasions of favoritism. The Speaker of the Assembly grasped that a part of the speech was offensive and directed it to be eradicated. However, no particular direction was designated to the Press. On 31st May, ’Search Light’ the daily newspaper published what had ensued in the Assembly. A prerogative motion was proceeded in the Assembly and cited to the Committee of Privileges. There was no polling and no time restriction was prescribed for the presentation of the investigation report, which was mentioned in the Rules of the House. According to Rule 215, if no time boundaries are endorsed, the report was to be presented within a month. After one year, on 18th August 1958, the applicant got a notice to reveal the cause, that is why no measure should be taken against him for the violation of privilege.

Issues

1. Could the British House of Commons utterly interdict the publication of its events or proceedings of such parts of them, as had been aimed to be eradicated?
2. Presuming that the British House of Commons possessed such strength and inevitably the State Legislature also had such privileges under Article 194 clause (3) of the Constitution, could the rights of the Legislature beneath that Article persuade over the fundamental rights pledged under Article 19 (1)(a)?

Contentions of the Petitioner

The bulletin emanated by the Secretary of the Assembly and the suggested measures of the Committee breached the freedom of speech of the petitioner under Article 19 (1) (a) and it also qualifies as the shielding of his personal freedom and liberty under Article 21 of the Constitution of India. As an editor of a newspaper, the applicant was authorized to the Freedom of Press. The notice presented to the petitioner by the Privileges Committee of the Assembly of Bihar was illicit and unlawful. The Constitution of the Privileges Committee is illegitimate as Bihar’s Chief Minister Dr. S. K. Sinha himself became the Chairman of the Committee.

Contentions of the Respondent

The offenders leaned on Article 194 clause (3) of the Constitution of India. Additionally, they argued that in the British House of Commons, the procès-verbal of the Assembly could not be printed. A speech, portions of which were conducted to be obliterated, cannot be published under any situation. Alike, the publication was an incomprehensible violation of the privileges and rights of the Assembly.

Obiter Dicta

Article 194 clause (3) granted privileges, powers, and immunities that were not explicit in Article 19. Liberty and freedom of the printing press were inferred in freedom of expression and speech, permitted to the Indian citizens under Article 19(1)(a) of the Constitution. At the beginning of the Constitution of India, the British House of Commons possessed the right to interdict the publication of paradoxically fair reports of the arguments and debates & events of the house. Thus, they also possessed the privilege to intercept the publication of imprecise or expunged genres of the debates and the events. The Assembly of Bihar had not furnished any law administering its powers or privileges.

It would be inappropriate to argue that the powers and privileges afforded by Article 194 and Article 105 to the Parliament and the State Assemblies must capitulate to the fundamental rights under Article 19 (1)(a). The provisos of Article 19(1)(a) must capitulate to the provisos of Article 194(1). Article 194(3) scrutinized the rules, enacted by the Bihar Legislative Assembly in the exertion of its powers under Article 208 of the Constitution, which constituted the privileges, power, and immunities of the Assembly. Any seizure of the personal liberty of the petitioner evolving from the parliamentary proceedings shall corresponding to the procedure established by law.

Judgment

Article 19(1)(a) shall be of no aid to the petitioner. Perhaps there might not be any violation of the rights of the petitioner to his liberty and life under Article 21 as well. However, the court directed that according to Article 194 clause (3) of the Indian constitution, the state assembly of Bihar had equivalent privileges, powers, and immunities as compared to the house of common at the dawn of the constitution. Consequently, the assembly possessed the power to interdict the applicant from publishing any portion of proceedings that was by order of the speaker, to be obliterated. The petitioner contended that Article 19(1)(a) of the Constitution predominated over Article 194(3) of the Constitution which signifies that Article 194(3) is subjected to Article 19(1)(a). The court declined this argument on the grounds that the vernacular of Article 194 put through only “clause (1) explicitly to other provisos of the Constitution”. Furthermore, “clause (2) to (4) [of Article 194] had not been expressed to be under the Article. Consequently, it can be presumed that the makers of the constitution did not mean to concern those clauses to other provisos of the Constitution.” Hence, Article 194(3) is not concerned with Article 19(1)(a) of the Constitution.

Therefore, the applicant crashed in resisting that the rights of the Bihar Legislative Assembly were subject to his fundamental right to freedom of speech and expression. The applicant challenged that Article 194(3) is in breach of his fundamental right to freedom of speech and expression under Article 19(1)(a). The Court expressed that a statute proceeded by a “State Legislature in the execution of earlier bit of Article 194(3) will not be a statute in implementation of constitutional rights, but will be one created in implementation of its ordinary legislative powers. Therefore, if such a statute curtails or abridges any of the fundamental rights, it will violate the provisos of Article 13 and it will be revoked.” However, the powers, prerogatives, or immunities of the Legislative Assembly bestowed by the later part of Article 194(3) preferred not to be revoked even if it is in conflict with fundamental rights since “Article 194(3) is the element of the Constitution and as extreme as Part III of the Constitution.” Considering the clash between Article 19(1)(a) and Article 194(3) of the Constitution, the bench opined that “the idea of euphonious construction must be embraced and so construed, the provisos of Article 19(1)(a), which are common, must capitulate to Article 194(3) which are special”.

Rationale

Simultaneously, the Assembly of Bihar had not enacted any law, considering its potential and proceedings the authorities of the British House of Commons were relevant to the Assembly. At the same time, Article 194(3) and Article 105(3) be considered upright in the same sovereign position as the provisos of the Constitution (part Ill) and could not be found clashing by Article 13; the object of euphonious construction must be embraced. Article 194 clause (3) of the Constitution is a peculiar clause. The freedom of the printing press in India glided from the freedom of expression and speech of the Indian citizens. No peculiar right is affixed to the press.

Conclusion

After the predominance of the court, the verdict in the case endorsed above, the Assembly was annulled several times. The Privileges’ Committee overhauled and lately endowed a new notice to the petitioner. The applicant proceeded to the Court looking around to resume the same disputes and arguments. The court carried that the concept of res judicata solicited, and the court’s decree could not be reopened. The decision is irrevocable to the petitioner.

References

1. Constitution of India.
2. Romesh Thappar v. The State of Madras, (1950) SCR 594.
3. Brij Bhushan v. The State of Delhi, (1950) SCR 605.
4. Express Newspaper Ltd. v. The Union of India (1959) SCR 12.
5. Ramji Lal v. Income Tax Officer, Mohindergarh (1951) SCRN127.
6. Laxmanappa Hanumantappa v. UOI (1955) 1 SCR 769.

This article is written by Ashmita Dhumas, who has completed BA LLB from Agra College and is doing a diploma in
Corporate Law from Enhelion.

Case Number

Civil Appeal no. 2030/1968

Equivalent Citation

1978 AIR 1613, 1979 SCR (1) 218

Petitioner

R. G. Anand

Respondent

Delux Films & ors.

Bench

Justice Syed Murtaza Fazalali, Justice Jaswant Singh, Justice R. S. Pathak

Decided on

August 18, 1978

Relevant Act/Section

Section 2 of the Copyright Act, 1957.

Brief Facts and Procedural History

The appellant-plaintiff is a theater play producer, playwright, and dramatist. A number of plays were written and staged by the appellant. On the other hand, the play ‘Hum Hindustani’ is what the appeal is about. He wrote this play in 1953, and it was performed for the first time in 1954. Since then, the piece has gained popularity. The second defendant, Mr. Mohan Sehgal, wrote the appellant a letter in November 1954 asking for a copy of the play, so that he could decide whether or not to make a movie about it. The appellant and defendant No. 2 afterward got together in Delhi. The second defendant announced the making of the motion picture ‘New Delhi’ in May 1955. Delhi saw the film’s release in September 1956. The movie was seen by the appellant.

In his lawsuit, the appellant claimed that the play “Hum Hindustani” served as the only inspiration for the movie “New Delhi,” that he had told defendant No. 2 about the play and had dishonestly mimicked it in his movie, violating the plaintiff’s copyright as a result. As a result, the appellant filed a lawsuit seeking compensation for damages, an accounting of the defendant’s profits, and a permanent order barring the defendants from showing the movie. The defendants denied liability in the lawsuit. The defendants argued that defendant No. 2, a film director, producer, and director of Delux Films, met the appellant at the invitation of a mutual friend, Mr. Gargi, and saw the play’s script, concluding that the play was unsuitable to produce a feature-length, mass-market motion picture. The defendants argued that there could not be a copyright on the topic of provincialism that anyone might use or adopt in their own way. The defendants additionally argued that both in terms of content, spirit, and climax, the movie differed significantly from the play. The simple fact that there are some similarities between the movie and the play can be explained by the fact that both the play and the film share a common source: provincialism.

The appellant was found to be the owner of the copyright in “Hum Hindustani” by the trial court, which also determined that there had been no infringement of the appellant’s copyright. After that, the appellant appealed to the Delhi High Court. The Delhi High Court’s Division Bench upheld the decision rejecting the appellant’s lawsuit.

Issues before the Court

1. Whether the film ‘New Delhi’ is an infringement of the copyright of the play name ‘Hum Hindustani’?
2. Whether Respondents-Defendants have infringed the copyright of the Appellants-Plaintiffs by making the movie named ‘New Delhi’?

Decision of the Court

The Supreme Court of India’s decision in this case which dealt with copyright under intellectual property rights was significant. A copyright violation in the area of cinematography is the subject of the lawsuit. When an original creative work is used or duplicated without the creator’s consent, copyright is violated.

The plaintiff was unable to show that the defendant in any way imitated his play. A reasonable inference of colorable imitation can be made if there are significant and unavoidable similarities between the copied work and the original. The Court ruled that an infringement action may only be brought if an infringement may be identified by a regular person. Since no obvious comparison could be found in this instance, the film was not perceived as a copy of the original play. As a result, the Supreme Court dismissed the appeal since there was no copyright infringement.

The learned counsel representing the appellant claimed that the Trial Court had applied the relevant legislation in an improper manner. The court also disregarded the legal arguments made regarding the copyright violation by courts in India, England, and the USA. The experienced attorney further claimed that the movie and the appellant’s play are inextricably linked. The setting was the same as the play’s, and the plot was essentially the same. The Punjabi and Madrasi backgrounds of the families involved were similar, and the play’s leading heroine was fond of singing and dancing. Finally, the knowledgeable attorney argued that the respondent attempted to imitate the stage performance, violating the appellant’s copyright, and produced the movie without obtaining the appellant’s permission.

On the other hand, the learned counsel representing the respondent in court categorically refuted the appellant’s assertions. He claimed that the play and the movie were very different from one another. Both of them featured various occurrences, and their core differences were substantial. The experienced attorney added that the Trial Court’s assessment was accurate. Therefore, there was no question that the appellant’s copyright had been violated.

The court’s verdict, which was presided over by Justice Fazal Ali, found that despite the fact that both the play and the movie are founded on the idea of “Provincialism,” the two are very different. The movie also shows other facets of “Provincialism,” such as “Provincialism” when renting out outhouses, which are not included in the play’s portrayal of “Provincialism” during the marriage. The film also shows the negative aspects of dowries, something the play does not. Although there may be some similarities because the idea in both the play and the movie is the same, the Court rejected the Appellants’ claim because it is well-established law that an idea cannot be protected by copyright. The court cited N.T. Raghunathan Anr. v. All India Reporter Ltd., Bombay¹. The court determined that a regular person would not view the play and the movie as being identical. The assertion that the copyright has been breached by the appellants cannot be upheld because the play and movie are so different from one another.

Ratio decidendi

According to the Court, there is no copyright for an idea or a storyline; rather, the manner, arrangement, or expression of such an idea can be protected. Some similarities are unavoidable if the source of the works is shared, but the court must determine whether or not those similarities are significant enough to amount to infringement. It is an infringement if a regular person describes the in question work as a copy or reproduction of the original work after viewing it. The concept need just be repeated, but it must be depicted in a unique way to qualify as fresh original work. If there are more differences than similarities, there was a bad purpose to duplicating.

Obiter Dicta

It becomes particularly challenging for the dramatist in circumstances when the plaintiff must demonstrate infringement of his copyright against a movie, according to Justice Fazal Ali. Because a movie is more able than a play to express broad concepts and ideas. However, it is considered infringement if, after watching both the play and the movie, it appears that the latter is a copy of the former. According to Justice Pathak, it is possible for someone who is using a copyrighted work to their advantage to cover broader topics and make minor adjustments here and there to the theme to demonstrate differences from the original work and elude detection of plagiarism. Additionally, Justice Pathak stated that he might have had a different opinion from the High Court if the facts of the current case had been reopened before this Court. However, as the District Judge and High Court, the Courts of Fact, have both dismissed the Appellant’s claim, this Court would not needlessly interfere with their choice.

The Supreme Court issued the following guidelines:

• No idea, subject, theme, story, or historical or fabled fact can be protected by copyright, and in such cases, copyright infringement is only allowed in the form, style, arrangement, and presentation of the idea used by the author of the copyrighted work.
• Whether the viewer, after reading or viewing both works, is certain and has the unmistakable impression that the later work appears to be a copy of the original.
• It must be established whether the similarities represent fundamental or important aspects of the expressive style of the copyrighted work. There is a need for substantial or significant copying.
• If the same idea is used but is expressed and portrayed differently, there is no copyright infringement.
• It is not regarded as a copyright violation when the published work contains significant variances or unintentional coincidences.
• Copyright infringement has been proven if the viewer comes to the conclusion following the incident that the movie is practically an exact clone of the original play.
• The burden of proof rests with the plaintiff when a film director violates a theatrical performance.

The Court decided in the Respondents’ favor on both issues and found no infringement as a result. The Supreme Court’s ruling in the relevant case is still used as a benchmark when copyright violations are involved. Even Section 13 of the Indian Copyright Act offers three categories under which copyright may exist, providing greater relief to the court system. It’s important to note that none of them refer to ‘ideas’ as a component of this specific intellectual property right.

References

1. AIR 1971 Bom 48, 1982 (2) PTC 342 (Bom).

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

CASE NUMBER

Writ Petition No. 57 of 1979

CITATION

1979 AIR 1369, 1979 SCR (3) 532

APPELLANT

Hussainara Khatoon and Ors.          

RESPONDENT

Home Secretary, State of Bihar

BENCH

A.D. Koshal, P. N. Bhagwati and R.S. Pathak, JJ.

DECIDED ON

9 March 1979

ACTS/SECTIONS

Article-21 and Article-39(A) of the Indian Constitution.

INTRODUCTION

Quick preliminary is the soul of law enforcement. It is a huge part of a fair preliminary that isn’t simply useful to the person in question yet additionally to the denounced. It assumes a significant part in staying away from the unsuccessful labor of equity. A denounced can’t be denied a rapid preliminary basically on the ground that he neglected to guarantee it. The case at hand is a milestone case, settled on 9 March 1979, which gave an expansive meaning to Article 21 and expressed that a rapid preliminary is a key right of each and every resident.

BACKGROUND

The case is an achievement judgment on the catalyst primer of cases that came to be seen as a chief right of each accused person. It is a part of the real association of value. The Constitutional responsibility upon the State to endeavor the confirmation of honors of individuals under Article 21 is exhaustive of the commitment to ensure there is a quick starter of cases. It furthermore ensures the choice to get to free legal organizations for the poor as a central piece of Article 21 of the Constitution. The Supreme Court precluded that the State ought to ensure free lawful guide and a rapid preliminary to regulate equity.

BRIEF FACTS

The writ demand has gone before the Court the becoming mindful of the appearance of under-fundamental prisoners in the region of Bihar. The territory of Bihar was facilitated to report a re-evaluated frame showing a year-wise division of the under-fundamental prisoners following dividing into two general classes viz. minor offenses and huge offenses that were not finished.

ISSUES RAISED

• On the off chance that the right to expedient preliminary is viewed as a piece of Article 21?
• Could the arrangement of the free legitimate guides at any point be upheld by the law?

ARGUMENTS ADVANCED

It has been declared in the counter-sworn proclamation to the course of the Court that various under-primer prisoners, up-and-comers in this, restricted in the Patna Central Jail, the Muzaffarpur Central Jail, and the Ranchi Central Jail, going before their release have been reliably made before the Magistrates at different events and have been remanded again and again to lawful authority by them. Nevertheless, the Court found this averment unacceptable as it doesn’t adjust to the course of making the dates on which these under-starter prisoners were remanded. In addition, to legitimize the pendency of cases, it has been seen that in 10% of the cases, the assessment is held up in view of the delay in receipt of notions from trained professionals. This clarification was prohibited by the Court as the State can by and large use more subject matter experts and develop more exploration communities.

JUDGEMENT

The court examined the issue of undertrial detainees not being delivered on bail and featured the requirement for a far-reaching legitimate administration program. It held that lawful administrations are a fundamental element of just, fair and sensible technique under Article 21. The court held that it is the sacred right of each and every denounced individual who can’t connect with a legal counselor by virtue of reasons, for example, destitution, neediness, or incommunicado circumstance to have a legal counselor given by the State assuming the conditions of the case and the necessities of equity so required. The court likewise explicitly coordinated that at the following remand dates, the judges ought to designate legal advisors (given by the State at its own expense) for under-trial detainees who are accused of bailable offenses or have been in jail past one portion of the most extreme discipline they could be given, to make an application for bail. At last, it urged the Government the need to present a thorough lawful administration program.

Thus, the court recommends to the State and the Central Government, a thorough legal help program that is directed not simply by Article 14 which guarantees comparable value, and Article 21 which presents the honor to life and opportunity, yet also exemplified in the laid out request typified in Article 39A. The State can’t deny the safeguarded right to a quick starter to the censured by contending cash-related or administrative failure. The court is in this way expected to embrace a protester strategy issue headings to State to take positive action to secure execution of the fundamental right to a fast primer.

REFERENCES

1. Project 39A, https://www.project39a.com/legal-aid-landmark-judgments ( Last accessed on 29 July,2022)

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.

CITATION

78/2019; 77/2019; 79/2019; 76/2019

BENCH

Justice Manojit Bhuyan; Justice Soumitra Saikia

FACTS AND BACKGROUND OF THE CASE

In the present-day, internet and social media platforms have gained importance over a period of time. The government’s frequent action of shutting down internet services for one region or another on the ground of ‘Public Safety’ has now become a hindrance in the life of people. Despite recognition of Right to Internet under Article 21 of Indian Constitution, it failed to provide relief to citizens. Due to the widespread protests in regions of north eastern areas, it led to chaotic situation in country, resultantly government was forced to shut down internet services as claimed by government of various states. In the instant case there were four petitioners namely Advocate Banashree Gogoi, Deva Kanya Doley, Randeep Sharma and Journalist Ajit Kumar Bhuyan who filed a Public Interest Litigation to challenge the notifications of Government of State of Assam that suspended the internet services on 11^th December 2019. Government banned internet services in 10 of its districts for a complete day and reasoned its action as to stop further protest that may happen due to the newly amended Citizenship Act.

LAWS INVOLVED

Article 32: The right of every citizen to move to Supreme Court if his/her any fundamental right is violated. Supreme Court can issue writs to any government authority, private authority or private individual for that matter.

Article 226: It provides power to High Court for enforcement of fundamental rights or other legal rights by way of issuing writs to any government authority, private authority or private individual for that matter.

Indian Telegraph Act, 1885: It provides that Indian Government has exclusive jurisdiction over maintain, establishment, operating, licensing and oversight over systems either wired or wireless. 

Section 5 (2) Indian Telegraph Act, 1885: It gives authority to governments both at central and state level for preventing of transmission of messaging during a situation of public emergency or for public safety or in the interests of sovereignty, integrity and security of India.

Temporary Suspension of Telecom Services (Public Emergency or Public Safety), 2017: It empowers the government to shutdown internet services in any particular region by way of notification based up on public emergency.  

ISSUE

Whether the State Government of Assam had enough reasons for contentment of public to justify the further continuation of ban on internet services?

DECISION OF COURT

It was recalled by court that an order dated 17-12-2019 has already been passed, that despite of restoration of normal conditions in state the Government of Assam refused to lift the ban on internet services; this results in freezing the entire working of cities. Due to the problems faced by many locals of state in their day-to-day lives, the Hon’ble Supreme Court passed an order that suggests the state government to restore internet services for fewer hours and to justify their action of continuing suspension. It was contented by petitioner that the term ‘Law and Order’ and term ‘Public order’ have different meanings and State Government is not making any effort for assessing the situation for peaceful ‘Public Order’. Whereas, State Government claimed it reviewed its decision where they put forward those inputs from various agencies and a meeting among State Authorities regarding the issue led to decision’s continuation.

It was argued the restoration of broadband services and lifting of curfew itself shows that ‘grave’ law and order situation has already waved away. Court stated that respondents have no reasons to justify that internet services disrupts law and order situation. Finally, court states that internet services play a major role in lives of people with advancement of Science and Technology, shutting down internet services would only cause further chaos in lives of people. The state government when issued notifications there was reasonable apprehension regarding law and order in society. Law surely does permit suspension of internet services whenever necessary however, in the current situation the State Authorities failed to assess the situation and to justify the continuation of ban on internet services. Court directed the Government of State of Assam to restore internet services on 19-10-2019 at 5.00 P.M. State is free to take any steps for stopping any violence that may take place in the future. The decision by court protects and extends the ambit of an individual Right to Receive and impart information providing no exception to state’s justification for ban. It gives a broad view over the protection of fundamental rights not based on mere apprehension of threat to ‘Public Safety’. The government must have enough reasons for internet shutdowns or for hindrance in way of any fundamental right if it failed to contentment of public for any action that harms one’s fundamental rights, it may suffer consequences.    

This case analysis is written by Simran Gulia, currently pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

Case Number

WP (Criminal No.) 115 of 2009

Equivalent Citation

AIR 2011 SC 1290, 2011 AIR SCW 1625

Petitioner

Aruna Ramchandra Shanbaug

Respondent

Union of India, State of Maharashtra, Dean- KEM Hospital Mumbai

Bench

Justice Markandey Katju, Justice Gyan Sudha Misra

Decided on

March 07, 2011

Relevant Act/Section

Article 21 of Constitution of India, Section 309, 306 of Indian Penal Code

Brief Facts and Procedural History

Aruna Ramchandra Shanbaug, the petitioner in this case, was a nurse at the King Edward Memorial Hospital in Parel, Mumbai. On the evening of November 27, 1973, a sweeper from the same hospital attacked her and used a dog chain to yank her back while wrapping it around her neck. Additionally, the sweeper attempted to rape her; however, when he discovered she was menstruating, he sodomized her instead. He tightened the chain around her neck in order to stop her from moving or causing any havoc. A cleaner discovered her body the following day, unconscious and covered in blood. It was thought that the chain’s strangulation caused the brain’s oxygen supply to stop, which led to brain damage. She entered a permanent vegetative state as a result of this incident, which permanently injured her brain (PVS). Later, journalist and activist Pinki Virani petitioned the Supreme Court under Article 32 of the Constitution, claiming there was no chance of her being resurrected and recovering. She ought to be released from her suffering and allowed to die through passive euthanasia.

The respondent parties, KEM Hospital, and Bombay Municipal Corporation submitted a counter-petition in response to this petition. The gaps between the two groups widened as a result. Due to the discrepancies, the Supreme Court appointed a group of three distinguished doctors to conduct an investigation and provide a report on the precise mental and physical state of Aruna Shanbaug. They thoroughly researched Aruna Shanbaug’s medical background and concluded that she is not brain dead. She responds differently depending on the situation. She favors fish soups and gentle religious music, for instance. If there are many people there, she feels uneasy and becomes upset. When there are fewer people around, she is at ease. The KEM Hospital personnel were adequately caring for her. She was constantly kept tidy. Additionally, they found no indication from Aruna’s body language that she was willing to end her life. Additionally, the KEM Hospital nursing team was more than happy to take care of her. Thus, the doctors opined that euthanasia in this matter is not necessary. She held this job for 42 years before passing away in 2015.

Issues before the Court

1. Is it acceptable to remove a person’s life support systems and equipment if they are in a permanent vegetative state (PVS)?
2. Should a patient’s preferences be honored if they have previously said that they do not want to undergo life-sustaining measures in the event of futile treatment or a PVS?
3. Does a person’s family or next of kin have the right to request the withholding or removal of life-supporting measures if the individual has not made such a request already?

Decision of the Court

This decision was made on March 7, 2011, by the prestigious Supreme Court of India Division Bench, which also included Justices Markandey Katju and Gyan Sudha Mishra. The Transportation of Human Organs Act of 1994’s definition of brain death and the doctor’s report were both used by the court to rule that Aruna wasn’t brain dead. She didn’t need the assistance of a machine to breathe. She used to exhibit various signs and felt things. She was in a PVS, but she was still in stable condition. The justifications offered here are insufficient to end her life. It wouldn’t be acceptable. In addition, the court stated during its discussion of the matter that Pinki Virani would not be the next-of-kin in this particular situation, but rather the personnel of the KEM Hospital. Therefore, KEM Hospital has the authority to make any such choice on her behalf. In this instance, it was the food that she was relying on for survival. As a result, removing life-saving measures, in this case, would entail denying her sustenance, which is not permitted by Indian law in any way.

The Supreme Court recognized passive euthanasia under specific circumstances. The High Court would have to approve the decision to end a person’s life after following the proper procedure, the court decided, in order to prevent future abuse of this option.

When a request for passive euthanasia is made to the High Court, the Chief Justice of the High Court must convene a Bench of at least two justices to decide whether the request should be accepted or denied. Before rendering a decision, the Bench should take into account the advice of a panel of three reputable physicians. The Bench also proposes these physicians after consulting with the pertinent medical professionals. Along with appointing this committee, the court also has to notify the state, kin, family, and friends and provide them a copy of the committee of doctors’ report as soon as it is practical. After the court has heard from all parties, it should then issue its ruling. In India, this method must be followed up till relevant legislation is passed.

Aruna Shaunbaug was refused euthanasia in the end after taking into account all of the relevant facts of the case. The High Court further ruled that if the hospital staff ever feels the need for the same thing, they may petition the High Court in accordance with the established procedures. By giving a comprehensive framework of standards that must be fulfilled, the decision in this case has helped to clarify the concerns surrounding passive euthanasia in India. The court also suggested that Section 309 of the IPC be repealed. Every aspect of the case has been covered in detail. Now, let’s talk about the appearance of two crucial characteristics that emerged in this situation and have been addressed previously. The court also advocated for the abolition of IPC Section 309.

India is now among the nations that have legalized passive euthanasia. However, there are still flaws in the way passive euthanasia is carried out. It was a laborious process because it was mandated that every case obtain approval from the High Court after the Shanbaug case. Passive euthanasia is now more difficult to put into practice thanks to the new ruling, which calls for the execution of the directive in the presence of two witnesses, verification by a judicial magistrate, approval from two medical boards, and a jurisdictional collector. The fundamental goal of passive euthanasia is to terminate the suffering of the person in question, therefore this delay is a significant obstacle. On the other hand, if the process is made too liberal and simple, it is always open to serious abuse.

The Supreme Court established standards for passive euthanasia in the case of Aruna Shanbaug. These regulations allowed for the removal of a person’s life support system, which might ultimately result in death. Passive euthanasia is now legal in India under certain circumstances that will be ruled by the High Court. Later in 2018, the Supreme Court issued a new ruling in the case of Common Cause v. Union of India¹, reinstating the right to a dignified death, legalizing passive euthanasia, and granting permission to remove life support from patients who are terminally ill and in a life-long coma. The Court also introduced the idea of “living wills” along with this. In these cases, the directions to be followed are-

1. A Passive Euthanasia application must be pending with the relevant High Court. In any case, two appointed authorities must make up the Bench that the Chief Justice of the High Court appoints, and they will decide whether or not to approve the grant.
2. The Bank must first consider the opinions of a three-person medical committee that it will select before making a decision. One of the three professionals should be an expert in the nerve system, while the other two should be specialists and therapists.
3. When a person goes missing, the High Court Bench will notify the State and those closest to the missing individual, such as guardians, companions, siblings, and sisters.
4. When it becomes available, the Court must send them a copy of the expert council report.
5. After hearing from each gathering, the High Court’s seat must announce its decision.
6. The Supreme Court must make a decision immediately. The court expressed its extreme gratitude to the KEM staff for their dedication over an extended period of time.

This case clarified the euthanasia-related concerns and established criteria for widespread euthanasia. In addition, the court recommended that Section 309 of the Indian Penal Code be repealed. The subject of passive euthanasia, which was previously hardly ever considered, started with this case. It significantly broadens the scope of Article 21 of our Constitution and explains the stance on the right to a dignified death. In the Indian context, this decision is hailed as progressive.

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REFERENCES

1. WP © 215/2005

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

CITATION

1992 AIR 1858, 1992 SCR (3) 658

APPELLANT

Miss Mohini Jain     

RESPONDENT

State Of Karnataka And Ors.

BENCH

Kuldip Singh (J)

DECIDED ON

30 July, 1992

ACTS/SECTIONS

Constitution of India, 1950-Articles 41, 45-Right to Education, Karnataka Educational  Institutions  (Prohibition of Capitation Fee) Act, 1984 ( Section 3)

BRIEF FACTS

Mohini Jain was a young lady initially from Meerut, Uttar Pradesh, and needed to seek after MBBS from a confidential school in Karnataka named Sri Sriddharatha Medical College, Agalokote, Tumkur. As per the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, it was laid out by the state government that Private Medical Colleges will charge just ₹2000 per annum from understudies conceded on Government seats, ₹25,000 from understudies from the territory of Karnataka and ₹60,000 from understudies of the other states in India. Aside from this, no expense ought to be requested from the understudy. This step was taken to guarantee that the Private Medical Colleges don’t charge cash from understudies in return for affirmation.

The administration of the school illuminated her that she would need to present an amount of ₹60,000 for each year however her dad passed on to the specialists that ₹60,000 is an enormous measure of cash and he was unable to manage the cost of that. On this premise, she was denied confirmation in the school. Miss Jain later affirmed that separated from the ₹60,000 the school likewise requested ₹4,50,000 as a capitation charge however this was denied by the school.

The Respondents guaranteed that she was approached to pay a measure of Rs. 60,000, and thusly, the Management got a call from the Petitioner’s dad who pronounced that he didn’t possess the ability to pay the extreme sum.

The Petitioner guaranteed that she was approached to pay an extra amount of around four and a half lakhs as capitation expense, which was denied by the Respondents energetically. Ms. Jain recorded a request under Article 32 of the Indian Constitution testing the notice of the Karnataka Legislature that considers requesting such excessive sums from understudies for the sake of educational cost.

The appeal guaranteed that the warning was violative of Articles 12, 14, 21, and 41 of the Indian Constitution as it conspicuously denied the Right to training to Indian residents on an erratic premise. The expense charged could without much of a stretch be recognized as a capitation charge. It was, in this manner, violative of Section 3 of the Act and against the excellencies of Right to Equality and Right to Education.

ISSUES BEFORE THE COURT

• Whether the Right to Education is ensured to the residents of India in consonance with Fundamental Rights, and whether charging a capitation expense infracts something similar?
• Whether the charging of capitation expense is violative of the fairness statement cherished in Article 14?
• Whether the criticized warning allowed the charging of a capitation expense dishonestly?
• Whether the notice is violative of the arrangements of the Act restricting the charging of such expenses?

ARGUMENTS ADVANCED

The Petitioner battled that the burden of such colossal charges for training by the confidential school is against the different articles under the Indian Constitution.

For this situation, the Respondent battled at first that the rules which have been continued in the confidential school with respect to the capitation expenses are not chargeable from those understudies who were equipped for the Government situates yet just from those understudies who were from various classes. They additionally contended that as they were following such grouping of seats in the school under merit list or under nonmeritorious list, which suggests that Government seats for up-and-comers who were under merit rundown and other people who were not. Accordingly, the administration leading group of the school has the option to charge expenses from the individuals who didn’t go under the legitimacy list.

One more contention by the Respondent was that as they were a confidential clinical school and there was no monetary guide which was given from the public authority Karnataka or the focal government furthermore basically these confidential clinical universities used to cause 5 Lakh Rupees as use for MBBS course. Ultimately, they additionally battled that the confidential clinical universities have consistently observed the Guideline of regulation and submitted to every one of the regulations for the smooth working of the organization and were legitimate in charging the capitation expenses.

HELD

After hearing the contentions from both the gatherings the Apex Court held that however the Right to Education isn’t explicitly referenced as a Fundamental Right; Articles 38, 39(a), (f), 41, and 45 of the Indian Constitution, it is clarified that the of the constitution makes it required for the State to instruct its residents. Article 21 of the constitution peruses “No individual will be denied of his life or individual freedom besides as indicated by the technique laid out by regulation”. Under Article 21 of the constitution and a singular’s poise can’t be guaranteed except if he has a Privilege of Education and taught himself. Further, the Court thought about the Universal Declaration of Human Rights, by the United Nations and a few cases that held that the Right to Life envelops more than “life and appendage” including necessities of life, sustenance, haven, and education.

Charging immense expenses limits admittance to instruction to the lower layers of society and makes it accessible just to the more extravagant segment of individuals. Poor meriting up-and-comers can not get confirmation because of the failure to pay the endorsed charges and as a result, in instructive establishments, a resident’s “All in all correct to Education” gets denied. Further, permitting the charging of an exceptionally high capitation expense disregards Article 14 of the Constitution of India the Court noted. The main strategy for admission to clinical universities ought to be founded on merit alone. The court likewise said that the judgment cannot is applied reflectively and cases past this cant receive the reward of the judgment.

CONCLUSION

The Hon’ble Court displayed its choice of standards of social government assistance and value. 10 years and a half before ‘Right to Education’ was officially presented in the Constitution. The judgment is moderate and somewhat radical. The Court was constant in its understanding of what summed as a capitation expense and its relevance — or deficiency in that department. Its exhaustive assessment of Fundamental Rights interlinked with the Right to training was exemplary. The Court underscored the Right to rise to the opportunity being similarly essentially as vital as the Right to uniformity itself. An extreme assertion in the recently changed Indian setting, the idea that the Right to training moved from the Right to life honored the philosophies of the days of yore. The Court put import on merit as opposed to monetary capital, a demonstration that should have been visible as an obstruction against privatizing instruction.

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.

CITATIONS

1990 AIR 1412

BENCH

Justice S.R. Pandian; Justice K. Jayachandra Reddy 

FACTS

Due to poverty and unemployment, many children are forced to work in manual labor or as maids but, those who get into the hands of people like pimps and brothel keepers are deceived by them, and eventually pushed into ‘Flesh trade’. The trauma they suffered after living in claustrophobic rooms for countless days makes them fearful of the outside world and they may suffer psychological problems for an infinite duration of time. Some of them may be unwilling to live a life of respect and dignity after suffering so much in their life and may surrender to the end of life. The petition was filed by a vigilant citizen Vishal Jeet, he requested the Hon’ble Supreme Court to give direction for inquiry of those police officials in whose jurisdiction the practice of forced prostitution, devdasi system, and jogin traditions were used widely and for rehabilitation of those who become victims of such system.

ISSUE

Whether Supreme Court can issue guidelines or not?

LAWS

Indian Constitution– Article 23: Provides that exploitation against human beings in the form of begar, forced labor, and trafficking of human beings must be prohibited and anyone who contravenes this law is punishable with the due procedure of law.

Article 32: It gives a citizen of India, Right to Approach the Supreme Court in case of violation of any right mentioned in Part 3 of the Indian Constitution. Supreme Court has the power to issue writs whichever is suitable for enforcement of violated Fundamental rights.

Article 35: Any offenses committed against any individual under Part 3 of the Indian Constitution must be punishable with the suitable legislation enacted by Parliament.    

Article 39 Clause (e): It directs that it’s a duty of the state to protect men and women are treated well and children must not be pushed to work in factories or any working companies due to their economic conditions.

Article 39 Clause (f): States must ensure that all children are treated with dignity and healthy manner and must not be exploited. 

Immoral Traffic (Prevention) Act, 1956– This act was made with the objective of punishing those who are involved in trading human beings as products for the purpose of sexual exploitation.

Indian Penal Code, 1860– Section 366A: Anyone who by whatever means forces or deceives a minor girl to do anything where she will be forced to be in illicit with another person shall be punishable with fine and 10 years imprisonment.   

Section 366B: Any person who is importing a girl under the age of 21 years from any country that is not India knowing that she would be forced to have illicit intercourse with another person shall be punishable with imprisonment of 10 years with a fine.    

Section 372: Any person who sells or buys a girl under the age of 18 years for the purpose of prostitution or is forced to have illicit intercourse with another person would be punished with imprisonment up to 10 years and liable to pay a fine. 

Section 373: Anyone who buys or has possession of a minor where she would be forced to have illicit intercourse with another person shall be punished with a fine and imprisonment up to 10 years.

Juvenile Justice Act, 1986–  Section 13: Empowers a police officer or any other official appointed by the state government to look after any neglected juvenile and bring them within the umbrella framework of this act.

Section 15: The Board can hold an inquiry under this act and can pass order which it may deem fit in favor of Juvenile.

DECISION OF COURT

Supreme Court denied giving any directions in this regard on the opinion that this is a socio-economic problem, hence, the measures must be taken carefully giving more emphasis to the prevention of such incidents and not the aftermath of such events. To obtain better results government must keep the laws in check. Supreme Court was of the opinion that issuing direction to the Central Bureau of Investigation to enquire throughout India about the social evils that girl children may face is not possible. The Supreme Court after hearing contentions of both the parties stated that both the Central and State government should organize a committee that would give advice to the government on the need for schemes for care, protection, and rehabilitation of victims of ‘Flesh Trade’. To suggest government laws that needed amendments and programs to create awareness among people who possibly may become victims of trafficking. Supreme Court also directed the government both at the state and central levels to ensure that Devdasi System and Jogin traditions come to an end. Governments must ensure the successful implementation of schemes made for the victims.  

This case analysis is written by Simran Gulia, presently pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

CASE NUMBER

1708  of 2015

CITATION

(2015), 834 SC

APPELLANT

RAJIV SINGH

RESPONDENT

STATE OF BIHAR

BENCH

V. Gopala Gowda, Amitava Roy

DECIDED ON

December 16, 2015

ACTS / SECTIONS

Sections 304B, 201, 498A of the Indian Penal Code , Section 365, Sections 3 and 4 of the Dowry Prohibition Act, 1961, Section 323 Cr.P.C, Section 313, Section 293 Cr.P.C.

BRIEF FACTS

An affectionate vacation excursion of a recently marry youthful couple met with a sad end, with the puzzling vanishing of the spouse from the organization of her significant other, on the train where they were going coming back home. The litigant, the spouse, in the orderly realities and conditions, stands charged and sentenced under Sections 304B, 201, 498A of the Indian Penal Code, what’s more, has been condemned to go through thorough detainment for shifting terms for the offenses in question. The High Court of judicature at Patna, having avowed the conviction and sentence recorded by the learned preliminary court, the litigant looks for a change in the moment procedures, challenge being laid to the judgment and request dated 16.05.2014 delivered in Criminal Appeal (SJ) No. 1169 of 2011.

A short introduction to the horrendous episode is imperative. Rani Archana Sinha got hitched on 29.04.2007 with the appealing party as indicated by Hindu rituals and had properly joined the marital home. Archana was a rehearsing advocate and had shown up in a cutthroat assessment in which, according to the outcomes proclaimed on 10.08.2007, she was not chosen. The couple arranged their special night outing to Darjeeling and continued thereto, by Capital Express on a similar date. They landed at New Jalpaiguri Station, and in the wake of visiting the spots of their advantage, as planned, they on 14.08.2007 boarded a similar help for the return venture at 1500 hrs. As the realities have unfurled from the First Information Report stopped by the appealing party with the Mokamah G.R.P.S. on 15.08.2007, the couple ate at Katihar Junction at 2000 hrs whereafter they turned in their particular billets No. 33 (appealing party) and negative. 35 (Archana) in mentor S 1 of sleeper class roughly at 2100 hrs.

According to the adaptation of the appealing party, he awakened at 0510 hrs on 15.08.2007 at Bakhtiarpur Station, to observe that his better half was absent from her introduction to the world whereafter, he began looking for her on the running train. As per him, when the train arrived at Patna Junction, he searched for her on different trains likewise thereat. His supplication is that on being enquired, the travelers in his mentor avowed that the woman was accessible in the train up to 0400-0430 hours. The litigant’s statement arranged subsequently, he revealed the matter first with the GRP, Patna, and at last stopped the First Information Report with Mokamah G.R.P.S.

ISSUES BEFORE THE COURT

• Whether Archana had vanished of consumption or real wounds or whether her passing had happened in any case than in typical conditions? Assuming such passing is demonstrated, whether it very well may be incidental and neither self-destructive nor desperate?
• Whether soon before her passing, she had been exposed to brutality and provocation by the litigant and any of his family members for or regarding interest for settlement?

HELD

In the current realities of the current case, the assumption engrafted under Sections 304B IPC and 113B of the Indian Evidence Act isn’t accessible to the arraignment as the fundamental central realities to set off such assumption have stayed unproved. The indictment has neglected to lay out for certain the demise of Archana. To repeat, the proof all in all bearing on endowment interest and provocation or abuse in association therewith is likewise not persuading.

On a combined examination of the proof on record, we are consequently compelled to hold that in current realities and conditions of the case, the indictment has neglected to demonstrate the charge under Sections 304B/498A/201 IPC against the litigant. The courts underneath, in our gauge, have neglected to look at and assess the proof on record in the right point of view both genuine and legitimate, and consequently have horribly failed in returning a finding of responsibility against him on the above charges.

It is very much dug on a basic level of a criminal statute that a charge can be supposed to be demonstrated just when there is sure and express proof to warrant lawful conviction and that no individual can be held liable on unadulterated moral conviction. Howsoever grave the supposed offense might be, generally blending the inner voice of any court, doubt alone can’t replace legitimate evidence. The deeply grounded cannon of law enforcement is “fouler the wrongdoing higher the evidence”. In undeniable terms, it is the command of regulation that the indictment prevails in a criminal preliminary and needs to demonstrate the charge(s) without question.

Doubt, despite how grave it very well might be, can’t replace evidence, and there is an enormous contrast between something that “maybe” demonstrated and “will be proved”. In a criminal preliminary, doubt regardless of areas of strength how should not be allowed to happen during verification. This is for the explanation that the psychological distance between “maybe” and “must be” is very enormous and separates ambiguous guesses from sure ends. In a lawbreaker case, the court has an obligation to guarantee that simple guesses or doubts don’t replace legitimate confirmation. The huge distance between “maybe” valid and “must be” valid, should be covered via clear, fitting, and irreproachable proof created by the indictment, before a blamed is censured as a convict, and the fundamental and brilliant rule should be applied.

In supplementation, it was held in confirmation of the view taken in Kali Ram versus Province of H.P. (1973) 2 SCC 808 that assuming two perspectives are conceivable on the proof cited for the situation, one highlighting the responsibility of the denounced and the other to his blamelessness, the view which is positive for the charged ought to be taken on.

This Court, among others, in Amitbhai Anilchandra Shah versus Focal Bureau of Investigation and another (2013) 6 SCC 348, while underlining the vitality of a fair, top to bottom examination had seen that researching officials are the head bosses in the law enforcement framework and dependable examination is the main step towards confirming total equity to the survivors of the case. It was decided that regulating law enforcement is a two-end process, where watching the guaranteed freedoms of the denounced under the Constitution is pretty much as basic as guaranteeing equity to the person in question.

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC , HOSHIARPUR.