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BACKGROUND

On 2nd February 2021, Mandeep Punia, who is a freelance writer for THE CARAVAN was granted bail by Chief Metropolitan Magistrate, North District, Rohini Courts Delhi.
Punia was accused of allegedly obstructing the police personnel in the course of their duty, he was detained by the Delhi police on 30th January at the Singhu border between Delhi and Haryana where he was covering the on-going farmer’s protest.
Various journalists came in his support and claimed that he was arrested on account of one of his Facebook post a day before his arrest, in which Punia narrated the police personnel connivance when a group of fifty-sixty showered stones on the protestors.

Court Proceedings

Courts of Metropolitan Magistrate are at the second-lowest level of the Criminal Court structure in India. According to Section 16 of the Criminal Procedure Code, 1973 (CrPc) in every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification, specify. Metropolitan Courts are to be established at such places in every metropolitan area having a population of ten lakh or more. It has jurisdiction throughout such metropolitan areas. The presiding officers of such courts shall be appointed by the High Court.
A Metropolitan Magistrate is a first-class magistrate under the general control of the District & Sessions Judge and is subordinate to the Chief Metropolitan Magistrate.

In the FIR Punia has been charged under the following IPC sections:
• Section 186, which deals with voluntarily obstructing public servant in discharge of public functions.
• Section 332, which deal with voluntarily causing hurt to deter public servant from his duty.
• Section 353, which covers assault or criminal force to deter public servant from discharge of his duty.

• Section 34, which covers acts done by several persons in furtherance of common intention.

Contentions

Advocate Sarim Naved, counsel appearing for Punia, contended before the Court that he is innocent and submitted that Punia had been peacefully carrying out his duties along with other journalists at the protest site. It was also highlighted that another journalist arrested by the police along with Punia was released later. On the other hand, Punia was not released because he didn’t possess an ID card, being a freelance journalist.
The State’s counsel, APP Banduraj Baghrawat opposing the grant of bail submitted that Punia stood accused of serious offenses of committing nuisance and instigating the protestors, and contended that he may indulge in instigating the protest in the future.

The Judgement

The court while analyzing the matter noted the 7 hours delay in Punia’s arrest and filing of FIR and also emphasized the very fact that the victims, witnesses, and the complainants were all police officials the Court concluded that there was no possibility of Punia influencing the course of the case if he were enlarged on bail.

“There is no possibility that the accused/ applicant can able to influence any of the police officials. Admittedly, the accused is a freelance journalist. Moreso, no recovery is to be effected by the accused person, and keeping the accused further in Judicial Custody would not serve any cogent purpose. It is well settled legal principle of law that ‘bail is a rule and jail is an exception’. Hence, considering the totality of facts and circumstances of the present case, submissions on behalf of both the parties as well as keeping in view the period of detention of the accused in judicial custody, he is admitted to bail”, reads the order
The court directed the release of Punia on bail for a bail bond of Rs. 25,000 subjected to other bail conditions.

Reported By – Anjali

Hina-Haneefa, a trans-woman files an affidavit in the Kerela High court, raising her voice against  Section 6 of the National Cadet Corps (NCC) 1948 Act which allows only males and females to enrol with the Corps.

WHAT IS CONTENTIOUS IN SECTION 6 OF NCC ACT?

This acts provides for the composition of a National Cadet Corps, which comes under the Ministry of Defence. 

Section 6 of the same lays out the enrolment criteria which are as follows:

Enrolment.—(1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over.

 (2) Any student of the female sex of any University or school may offer herself for enrolment as a cadet in the Girls Division: Provided that in the latter case she is of the prescribed age or over

Pertinently,  the act talks about the enrolment of only boys and girls, what is not to be ignored is the fact that this act came into existence in 1948, and the awareness regarding trans-genders identification as the third-gender and their rights came in somewhat later years, In the latest judgement, Navtej Singh Johar v. Union of India section 377 was classified as unconstitutional.

BACKGROUND

Hina-Haneefa, A student of Thiruvananthapuram University College, had gone threw two sex reassignment surgeries and procured a transgender identity card under the Kerala government’s Transgender Policy, 2015

She challenged NCC’s exclusion of transgender people from its programme in the college as she wanted to join NCC.

THE SUBMISSIONS MADE IN RESPONSE 

Kochi: In their submissions, The National Cadet Corps (NCC) informed the Kerala High Court that due to lack of any provision the transgender people cannot be allowed into NCC.

As per the existing policy, The divisions created in NCC as of now were only for girls and boys cadets, the NCC said.

The Central government told the Kerala High Court that

“There is no provision in the law allowing entry of Transgender persons to Armed Forces and National Cadet Corps (NCC) and it is the prerogative of the Central government to decide whether or not the same should be allowed”

In fact, before creating a new division for the third gender, the Central Government has to conduct a major exercise in terms of reviewing infrastructure facilities, modules and facilities that are binding to such divisions. Any induction of a candidate not from male or female gender without due deliberations by the authorities would have far-reaching ramifications. The issue of raising a new division is a policy decision.

In their submissions, they pointed out that Hina has registered herself as a trans-woman in the college and she can’t apply for the post of NCC cadet in the capacity of a female.

It was highlighted that one of the primary aims of NCC was to groom cadets for a future with the Armed forces whereas, there is no provision existing for the entry of transgender people (female/male) in the Indian Armed Forces.

THE COURT’S STANCE

In one of the prior hearings of the matter, the Kerala High Court rebuked the Central Government for failing to formulate a policy to enrol trans persons with the corps. It had commented that the world has developed and the government cannot afford to remain in the 19th century.

“Justice Devan Ramachandran, who was hearing the plea, had commented “Certainly there are three genders, male, female, and transgender. In this case the lady, the petitioner herein, has decided to assign to herself her gender as a woman and she has gone through surgery also. Nothing stops you from admitting her even under the NCC Act as a woman”

Isn’t it the government’s responsibility to protect the rights of the minorities be it trans-genders, religious or minorities in any other capacity, Judiciary has always come forward to play its role?

The High Court of Madras has recently granted relief to a lawyer by setting aside the order of a Principal District and Sessions Judge who had found him guilty of the usage of unparliamentary words in the virtual proceedings of the court. (G Samwell Rajendran v. The Principal District and Sessions Judge, Thoothukudi).

Facts of the case

Advocate G Samwell Rajendran was appearing before the Principal District and Sessions Judge virtually through a WhatsApp video call for an application of bail of his client when he suddenly started uttering certain unparliamentary words. This was observed by the learned Public Prosecutor, Stenographer, Protocol Officer and System Analyst. On this, the learned judge issued a show-cause notice under section 228 of IPC r/w section 345 of Cr.P.C. through email to the advocate concerned and the latter replied by email as well. The learned judge was not satisfied by the email received, and imposed s fine on the advocate of Rs. 200 and referred the matter to the Bar Council, against which the Advocate has filed for a revision this revision case. 

Arguments

The learned Principal District judge of Thootukudi reported that the advocate had during the virtual proceedings of the court had uttered the usage of some unparliamentary words which are unacceptable and cannot be brushed aside. Further, he noted that there is no dispute over the facts and the appellant was given the opportunity to file his reply through mail indicating sufficient time, which the court found unsatisfactory. 

On the other hand, the appellant had mentioned in his reply that because of poor signals he was attending the virtual proceedings in his car and someone had very rashly driven and caused scratches to his car. And in the spark of that moment, the appellant had abused the driver. The appellant had no intention to disrupt the proceedings of the court or insult the court of law. The appellant has further mentioned that he was not given the opportunity for a physical hearing and he, not being accustomed to the technology found a typographical error in his reply. Instead of writing, ‘this would not occur in future’, the judge mistakenly must have misunderstood ‘it would not occur in due course’. Moreover, he also submitted that even after paying the fine, the learned Principal District Judge had referred the matter to the Bar Council. 

Judgment

The high court mentioned in its judgment that considering the fact that the virtual courts have been introduced for the conduction of proceedings and that the appellant had extended his apology, the order of the district court must be set aside along with the fine being refunded to the appellant.

Report By Tanuj

The Supreme Court in its judgement recently held that it had now been made permissible to switch a charge that was under Section 149 of the Indian Penal Code into a charge that was under Section 34 of the Indian Penal Code if the facts prove that the crime was actually committed in the furtherance of an intention that was common.

[THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA & ORS.V. SHAJI POULOSE & ORS]

The bench comprised of Justices  SN V Ramana, Surya Khan and Aniruddha Bose and it observed that Sections 211 to 224 of criminal procedure code give significant flexibility to courts for altering or rectifying the charges as these sections deal in the framing of charges in criminal trials.

The bench while giving the judgement quoted the dictum laid down in the case of Karnail Singh v State of Punjab (1953). It had been held in this case that 

“…if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under section 34 then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to a formal matter.” 

The bench also made observations that even when the Sections 34 and 149 of the Indian Penal Code are both modes for apportioning vicarious liability on either individual members of a group there actually exists some important differences between the two provisions and Section 149 of the Indian Penal Code has been formulated to assign liability on the basis of membership of an unlawful assembly however Section 34 requires such active participation and a prior meeting of minds so that the section can be proved. Such common intention, however, is in reality usually referred to indirectly on the basis of the conduct of the individual and it is very rarely done with the help of direct evidence.

What do Sections 149 and 34 of the Indian Penal Code provide?

Section 149 of the Indian Penal Code provides for the vicarious liability of members who engage in an unlawful assembly for the crime committed by any member of the assembly for the furtherance of a common object and also makes such persons liable for the same punishment. The prerequisite required for invoking this section is that there should be more than 5 or at least 5 persons in the assembly.

Section 34 of the Indian Penal code, on the other hand, holds that whenever a criminal act is done by several persons in the furtherance of any common intention that is held by each one of them then each of such person is liable for that act in the same manner as if it was done by either of them alone.

In the present case, the Supreme Court was actually dealing with a situation where 3 out of a group of 7 persons who had been accused under section 307 of the Indian Penal Code which provides for an attempt to murder had been acquitted. Since the number of convicts under the assembly had now become less than 5 hence the application of Section 149 was not possible in the present case the issue, therefore, arose before the court as to whether it was lawful if the court could make the use of Section 34 of the Indian Penal Code that is the common intention in order to ascribe criminal liabilities to members of the group.

What the Supreme Court opined- 

With the reference made to various precedents, the Supreme Court came to the conclusion that Section 34 of the Indian Penal Code could be used in such a situation if the common intention had already been proved.

The Supreme Court was of the decision that the appellants  had not suffered any unfavourable effects when three of them had been held individually guilty for the offence by the Punjab and Haryana High Court for attempting murder without the aid of Section 149 of the Indian Penal Code thus on the said facts the Supreme Court was of the opinion that the requirements of Section 34 of the Indian Penal Code had been well established in the present case as the attack was apparently premeditated. 

Consequently, the conviction of the appellants under section 307 of the Indian Penal Code for the attempt of murder was thus upheld.

Report By-Alifya Kasimuddin

An interesting dauntless move made by the Principal Sessions Judge Abdul Rashid Malik in 

Sheikh Salman v. JKUT through SHO P/S Saddar, Srinagar

He stated that he gets a mobile call at 9:51 in the morning from the Secretary to Justice Javed Iqbal Wani of the Jammu and Kashmir high court when the bail plea moved by one Sheikh Salman was condemned to be heard. the contents of the call made by Tariq Ahmad Mota, Secretary to Justice Wani, were:

 “I have been directed by the Hon’ble Mr Justice Javed Iqbal Wani to convey you to make sure that no bail is granted to Sheikh Salman. If there is any Anticipatory bail pending, the direction is the same.”

 Ad rem, the president for Jammu and Kashmir High Court Bar Association (J&K HCBA)  Mian Abdul Qayoom is the father-in-law  Of Justice Javed Iqbal Wani.

Mr Qayoom was arrested during the clampdown launched last year, ahead of the Centre’s move to revoke J&K’s special status. Mr Qayoom was upheld in detention under the stringent Public Safety Act (PSA) and his release was opposed by Justice Wani, as government’s advocate.

The applicant in the case was alleged to be accused of being punishable for attempt to Murder, Wrongful restraint and Hurt which are covered under sections 307, 341 and 323 of the Penal code.

Mindfulness of a person’s right to liberty Abdul Rashid Malik took a courageous step

He directed in an order dated December 7 that the bail application be submitted to the Registrar Judicial of the High Court, and requested that the same may be placed before the High Court Chief Justice Gita Mittal 

 On 11th of December The bail application was further directed to Additional District and Session Court, The accused was granted the anticipatory bail in the same.

 Ad rem, In view of the retirement of the Chief justice Gita Mittal, Justice Rajesh Bindal has been appointed by the President as the Acting Chief Justice (CJ) of the Jammu and Kashmir Court

Report By Anjali Singh