Tag: supremecourt

-Report by Reyanshi Bansal

It has been held by the hon’ble Supreme court of India in the case of Brij Raj Oberoi v. The Secretary that the refusal of the renewal of leave was an arbitrable dispute.

FACTS

The state of Sikkim, the absolute owner of the Norkhill Hotel, had registered a deed of lease with the petitioner on December 9, 1997, with certain terms and conditions. One of such terms under clause 4 (xiii) directed that if the lessee communicates his interest in extending the lease for a further period in the last year of the lease tenure and if the proposal is accepted by the lessor, then the lease shall be renewable as is mutually agreed.

Following this, the appellant addressed a letter to the state through the secretary of the Tourism department proposing the terms and conditions for the renewal of said property along with the annual rent. This was rejected by the state to use the hotel as a heritage site for the purpose of increasing tourism, revenue and employment opportunities.

Brij Raj Oberoi filed an application under section 9 of the 1996 Act (Arbitration Act) so that disputes and differences could be decided through arbitration. In response, the respondent State contended that since the offer made by the petitioner had not been accepted, there was no case for arbitration. The contract only provides for reference to arbitration to discuss the rent and period of renewal. The commercial court directed that there would be no interference with the possession of the property till the matter is decided by Arbitration. While the respondent filed an appeal against the order before the High Court, the appellant filed an application for the appointment of an arbitrator.t The division bench of the High Court came to the conclusion stating that the clause for arbitration could not be invoked since there was a refusal of offer and not a dispute in the rent or terms and conditions. Hence, the application was rejected by the division bench of the High court. The appellant filed an appeal before the Supreme Court of India.

COURT’S DECISION

The Court observed that the division bench fell in error by interpreting the clause alone. The lease deed had to be analyzed wholly. Prima facie, the expression “shall” is used in the deed which connotes a command. As the offer terms and conditions were expressed, the proposal was to be accepted, and if it was not mutually agreed, the matter became arbitrable. It was observed that

“The arbitration clause cannot be rendered otiose by refusal of the Respondent State to renew the lease. The Respondent State may have formulated a policy for encouraging self-employment of local youth who are duly qualified and competent to run the hotel. Such policy decision cannot impact an existing agreement with a renewal clause. All disputes between the parties to the lease with regard to renewal and/or non-renewal, the period of renewal and the quantum of rent would have be decided by the Arbitrator, as observed above. The issue of arbitrability of the dipsute over non-renewal of the lease is within the realm of the Arbitral Tribunal/Arbitrator.”

Therefore, the appeals were allowed and the Former Chief Justice of Sikkim High Court, Justice Bhaskar Bhattacharya, was appointed as an arbitrator to adjudicate the disputes among the parties.

CASE NUMBER

Civil Misc. Petn. (Civil) No. 13066 of 1989 in Civil Appeal No. 2628 of 1980

EQUIVALENT CITATIONS

1990 AIR 464, 1989 SCR Supl. (2) 561, 1990 SCC (1) 259, JT 1989 (4) 573, 1989 SCALE (2)1426

BENCH

Sabyasachi Mukharji, V. Ramaswami, JJ

DECIDED ON

20^th December 1989

RELEVANT ACT

Contempt of Courts Act, 1971

OVERVIEW

The petitioner, in this petition, has prayed the court for convicting Respondents 1 and 2 for having committed contempt of court through violation of terms and conditions of the undertaking filed in the Civil Appeal No. 2628 of 1980.

ISSUE

Whether the Respondents 1 and 2 are guilty of contempt of court for violating the terms and conditions of the undertaking of the Civil Appeal No. 2628 of 1980?

BRIEF FACTS

Noorali Babul Thanewala, the petitioner has filed a suit against Respondents 1 and 2 of the Civil Appeal No. 2628 of 1980 for contempt of court stating that the terms and conditions of the undertaking have been violated and prayed the Hon’ble Supreme Court to direct to hand over the suit premises possession to the petitioner.

The petitioner, who is the owner and landlord of the Tika No. 3 City Survey House, bearing Nos. 344/345, Jambli Naka, Thane property, where the Ramakrishna Hindu Hotel or Ramakrishna Hotel restaurant is operated, filed Civil Suit No. 213 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name P.A. Dange, V.A. Dange, Haribhan Shivale, and Giri Anna Shetty. The suit was decreed by the Trial Court.

Respondent 1 has alone filed an appeal against the decree before the district court and it was dismissed by confirming the order of eviction. He further approached the High Court of Bombay under writ petition No. 354 of 1975 and the court upheld the lower court’s decree and dismissed the appeal. Finally, on approaching the Supreme Court, the appeal was dismissed on 18^th August 1987. However, the court allowed the appellant to continue the business till 31^st March 1989, stating, “appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file a usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered. In default of furnishing or filing the undertaking in the manner indicating within the time aforesaid the decree of execution shall become executable forthwith.”

Raghuram A. Shetty, the second respondent in this petition, filed Civil Suit No. 306 of 1989 in the Thane Civil Court sometime in the early months of 1989 asking for a declaration that the eviction order obtained concerning the subject premises in Civil Suit No. 213 of 1970 cannot be executed against him and for a permanent injunction against the petitioner. He also filed a request for a preliminary ban on carrying out the aforementioned decree. An interim injunction was granted as requested by the Thane Civil Court. This is how the petitioner, in this case, filed this contempt petition against the first respondent, the plaintiff in Civil Suit No. 306 of 1989, as well as the original tenant, K.M.M. Shetty.

The second respondent has filed a reply statement in which he contended that on November 29, 1986, P.A. Dange acquired the hotel business that was being operated by the tenant, K.M.M. Shetty, on the ground floor of the suit premises under the name and style of Ramkrishna Hindu Hotel, and that, according to an agreement dated January 2, 1967, the said P.A. Dange, with the tenant’s consent, transferred the said business and the exclusive possession of the later, on January 8, 1972, the tenant and the second respondent signed a new agreement under which the second respondent agreed to pay the tenant a royalty. To the petitioner’s knowledge, the second respondent was still occupying the property and operating a business, but he was not named as a party in the eviction suit or the subsequent proceeding, so he was not subject to the eviction decree. The landlord-petitioner has submitted a reply to this response.

This Court stated “the order granting the injunction against the petitioner from executing the eviction decree against the second respondent shall not be effective and that the petitioner is entitled to execute the decree for eviction against all people who are in possession of the property after discussing in detail the various developments of the case brought about by the first respondent as well as by the second respondent herein. The court found the first respondent guilty of contempt for wilfully disobeying the undertaking he made in front of the court.”

DECISION

The question that had been raised in front of the Hon’ble Supreme Court was the punishment to be given to the first respondent and the relief to the petitioner. The learned counsel for the first respondent had stated on behalf of his client stated that his client was an 84-year-old man, and was willing to hand over vacant possession to the petitioner and that he was unable to comply with the undertaking bona fide given the facts and circumstances.

The court stated, “When an order is given on the basis of an undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical.”

The court further stated, “To enforce an undertaking, it is treated as an order and if the terms and conditions of the undertaking are not complied by the party, there would be consequences upon them for the disobedience of an order for an injunction. It is established law that misconduct amounting to contempt includes violating an order of a court or an undertaking made by a party to a civil case in whose favour the court sanctions a certain course of action. In these situations, the remedy could be a warning to the contemnor to stop, a jail sentence, a fine, or any combination of those. We believe that a simple sentence of imprisonment or a fine will not serve the interests of justice in this case given the facts and circumstances and the fact that the undertaking was broken.”

The court decided that the first respondent is guilty of contempt of court due to the wilful disobedience of the undertaking. Accordingly, he was convicted and sentenced to pay a fine of Rs.500 within four weeks, failing which he would suffer simple imprisonment for one month, and also directed to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. The court also further directed the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men, and if necessary, with police help and hand over the vacant possession of the premises to the petitioner. However, the court discharged the rule issued against the second respondent.

CONCLUSION

The courts are considered to be the administrators of justice in the nation. The order or decree passed by them is required to be followed. Apart from the Contempt of Courts Act 1971, the Constitution prioritizes the process of contempt of court to maintain justice and equality in society. Under the Indian Constitution, the Supreme Court of India, i.e., the Court of Record can hold any party liable for contempt of court, if anything wrong has been committed against the decision of the courts under Article 129.

Also, Article 142 (a) states that the Supreme Court has the full authority to issue an order securing anyone’s attendance, the production of any documents, or the ability to penalize anybody for disobeying any law passed by the Parliament regarding the requirements specified in clause 1 of this Article. Since the Supreme Court has the authority to impose penalties for contempt of court, this does not imply that it can take any action that violates an individual’s right to personal liberty. We are aware that because the Indian Constitution is the custodian of all our rights, it must protect them and cannot infringe on them directly.

The Hon’ble Supreme Court made it clear that any person disobeying the decree of the court would be tried for contempt. The party’s non-compliance with the decree would disrupt the process of justice. The court has also made it clear that any undertaking given by the parties to the court will be considered an order and not adhering to the terms and conditions would also be considered contempt of court.

This article is written by K. Mihira Chakravarthy, 2^nd year, B.A. L.L.B student from Damodaram Sanjivayya National Law University.

-Report by Zainab Khan

It has been held by Hon’ble SC recently in the case of MAKHAN SINGH Vs STATE OF HARYANA that while recording a dying declaration, the deceased mental and physical health should be checked first so that the declaration can be free from any influence.

FACTS

The appellant was convicted u/s 304 -B of IPC for torturing and poisoning his deceased wife after demanding dowry. The charge sheet was filed against him on basis of two separate dying declarations given by his wife on 21st April 1998 and 24th April 1998 respectively. In the very first dying declaration deceased stated that she was suffering from fever and since many medicines were lying on Angithi by mistake she took medicine of green color. While in her second declaration she stated that the appellant and his parents administered the poisonous substance to her. It is on the basis of these 2 dying declarations, that the trial court declared rigorous imprisonment of 10 yrs to appellant u/s 304-B of IPC and Chandigarh High Court also upheld the trial court decision after reducing appellant’s sentence from 10 yrs to 7 yrs.

APPELLANT CONTENTION

The Learned counsel R.K.Rathore appeared for the appellant. He argued that Session Court and High Court haven’t taken much emphasis on 1st dying declaration which stated that the deceased had taken the wrong medicine by mistake. The deceased gave this declaration to Vani Gopal Sharma, Judicial Magistrate 1st class, being fully conscious and without any influence. She was mentally fit at that time as a certificate was issued confirming the same by Dr.Sobti. He further argued that 2nd dying declaration was taken after 3 days and in between these times the parents of the deceased persuaded her to give a declaration against the appellant. The counsel pleaded that since there’s a conflict in both the declarations, the appellant should get the benefit of the doubt, and the order of conviction should be set aside.

RESPONDENT CONTENTION

Learned Counsel Piyush Hans appears for the respondent. He argued that the trial court’s order is correct as the 1st dying declaration was given by the deceased under the influence of the appellant while the 2nd declaration was given by her free will. The Counsel relied on the judgments of – Harjit Kaur Vs STATE of Punjab, Sayarabano Vs STATE of
Maharashtra, Lakhan Vs State of Madhya Pradesh, and a few more.

JUDGEMENT

The court decided to examine both declarations independently. The first dying declaration was recorded after obtaining a certificate from the doctors that the deceased was mentally fit, whereas no such certificate was obtained in the second case. Further, the prosecution has not examined the judicial magistrate who recorded the first declaration which creates a doubt about the fairness of the IO. It was observed:

“In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no
circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth
reliance.”

On examining both the dying declarations and witnesses, the court opined that 1st dying declaration is considered to be more reliable and Trustworthy than the 2nd one. The Hon’ble SC while pronouncing its judgment dismissed the orders of High Court of Punjab and Haryana at Chandigarh dated and acquitted the appellant from all the charges.
The court observed-

“The court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording Conviction If found reliable and trustworthy.”

The appeal was allowed.

CASE NUMBER

Criminal Appeal No. 169 of 1957

EQUIVALENT CITATION

1962 AIR 955; 1962 SCR Supl. (2) 769

BENCH

Bhuvaneshwar Prasad Sinha, C.J., A.K. Sarkar, J.R. Madholkar, N. Rajagopala Ayyangar and S.K. Das, J

DECIDED ON

20^th January 1962

RELEVANT ACTS

The Indian Penal Code, 1860; The Indian Constitution of India, 1950

BRIEF FACTS

On 26 May 1953, the appellant, Kedarnath Singh, a member of the Forward Communist Party, delivered a speech in the village Barauni. He used the word ‘dogs’ for the CID officers commenting that they were loitering around and used the term Goondas for the members of the Indian Congress Party. He stated in his speech that the Congress Party was treating its people just like the Britishers. It was further stated by him that the money is being given by the Zamindars and capitalists to the members of the Congress Party and they’re being benefitted while the Kisans and Mazdoors are still suffering in society. He said that the Forward Communist Party believes in the revolution, which will arrive, engulf the capitalists, zamindars, and Congress leaders of India who have made it their business to plunder the nation, and on their ashes, a government of the country’s poor and oppressed citizens will be erected. He also targeted Vinobha Bhave’s land redistribution initiatives.

After the substantial oral evidence, the Trial Magistrate convicted Kedarnath Singh under Section 124A (sedition) and Section 505 (public mischief), of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a year. The convict approached the High Court of Patna and the issue was heard by late Mr. Justice Naqui Imam upheld the lower court’s decision and dismissed the appeal stating that the speech given by the appellant was certainly seditious. The Convict further moved to the Supreme Court of India through the special leave to appeal. The constitutional validity of the ss. 124A and 505 of IPC were questioned before the Division Bench on 5 May 1959, stating that those sections were inconsistent with Article 19 (1) (a) of the Constitution.

After reviewing the case’s judicial history, the Apex court was confronted by two conflicting rulings from the Federal Court in Niharendu Dutt Majumdar v. The King and The Privy Council in King-Emperor v. Sadashiv Narayan Bhalerao. When referring to both decisions, the Supreme Court expressed its belief that if the Federal Court’s decision and interpretation were upheld, the challenged passages would fall under the purview of legal limitations on the freedom of expression’s fundamental rights. However, if the Privy Council’s ruling and interpretations are upheld, the challenged parts could be declared unconstitutional under Article 19(1)(a) read in conjunction with Article 19 (2) of the Constitution.  By doing this, the disputed parts’ scope was constrained and their constitutional validity was confirmed in each of them. As a result, the appeal was denied, and the High Court was given the appeal of another connected matter.

ISSUES

1. Whether ss. 124A and 505 of the Indian Penal Code are ultra vires of Article 19(1)(a) read with Article 19(2) of the Indian Constitution.
2. Whether the intention of the accused is to create disorder, disaffection, or incitement to violence in order to be guilty of the offence of sedition law.

DECISION

The Supreme Court stated that Article 19 (1) (a) is a fundamental right guaranteeing the freedom of free speech and expression with reasonable restrictions under the purview of clause (2) which consists – (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. The constitutionality of the ss. 124A and 505 of the Indian Penal Code are consistent with the requirements of clause 2 of Article 19 to punish the wrongdoer and protect the state and public order.

Section 124A states as follows, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

The hon’ble court further stated “the Government is established by law and it is the symbol of the state. Any seditious acts or spreading hatred or producing disaffection against the Government would be within the penal statute as the feeling of disloyalty to the Government established by the law or enmity to it imports the idea of tendency to public disorder by the use of the actual violence or incitement to violence.”

The Court stated that it has to invalidate any law that unreasonably restricts the freedom of speech and expression that is at issue in this case because it is the custodian and guarantor of the citizens’ fundamental rights. However, the freedom must be protected from once more being used as a justification for denigrating and criticizing the legalized government in ways that incite violence or have the potential to cause a riot. A citizen is free to criticize or comment on the government or its policies as he sees fit, as long as he does not incite others to act violently against the legally established government or with the intent of causing a commotion. Therefore, it is the Court’s responsibility to draw a distinct line separating the scope of a citizen’s fundamental right guaranteed by Article 19(1)(a) of the Constitution from the legislature’s authority to impose reasonable restrictions on that right in the interest of, among other things, the security of the State and public order.

The court stated that clause (2) of Article 19 saves the Section from the vice of unconstitutionality. It is obvious that each of the elements that make up the s. 505 offense has anything to do with or has a direct impact on public order or state security. As a result, these clauses would not go beyond what could be considered legitimate limitations on the right to freedom of speech and expression. Therefore, the Supreme Court stated that the Criminal Appeal 169 of 1957 has to be dismissed and the Criminal Appeals 124-126 of 1958 would be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation given by them.

CONCLUSION

In a democratic nation like India, where the freedom of speech and expression is given a lot of importance, Section 124A of the Indian Penal Code seems like a hindrance or an obstacle that does not completely let the citizens of the nation exercise their fundamental right. Through the case of  Kedarnath Singh v. State of Bihar, the supreme court has established a clear-cut reason why sedition shouldn’t be seen as an obstacle. In the aforementioned case, where Kedarnath Singh was commenting on the ruling government in a very bad way which would have paved the way to create chaos in the society, the court stated that citizens have a right to pass comments and their views upon the government and its working but it shall not disturb the public order or incitement of violence in the society.

Thus, the outcome of the judgment made it clear that Sedition i.e., 124A is intra vires and it is a reasonable restriction imposed by law. Given the recent circumstances, there are a lot of cases lodged under Section 124A, sedition. The importance given to the maintenance of law and order in the country should also be given to the protection of the freedom of speech and expression of the citizens. There are high chances that the persons in power can use these sections to infringe the fundamental rights of the individuals.

This article is written by K. Mihira Chakravarthy, 2^nd year B.A. L.L.B. student from Damodaram Sanjivayya National Law University (DSNLU).

-Report by Riddhi Ray

The appeal of Buddhiyarin Bai V. State of Chhattisgarh came to the Supreme Court of India for reduction of the sentence of the lady against the judgment and order dated 26th February 2018, where she got punished with rigorous imprisonment of 15 years and a fine of 1 lakh rupees and extended imprisonment of 3 years on nonpayment of fine under section 20 (b) (ii) c of the NDPS Act, 1985.

Facts

A senior citizen lady named Budhiyarin Bai along with her two sons, Pila Ram and Rajkumar alias Raju and two other persons- Rajendra Tiwari and Idris Khan got accused of possession of commercial quantities of cannabis and delivery of them. A charge sheet had been filed against the lady and her two sons on 15th January 2011 for the joint possession of 0.5 quintals and 21.5kg cannabis under section 20 (b) (ii) c of the NDPS Act, 1985. An allegation against two co-accused i.e., Rajendra Tiwari and Idris Khan was that they had delivered the cannabis to the lady’s house in the Village Chikhali under the Police Station Dondi. It was in accordance with section 27 A of The NDPS Act, 1985.

The learned trial court under judgment dated 8th November 2012 set the four co-accused free from all charges and the lady became the main accused for the possession of such substances. Both the trial court and high court of Chhattisgarh did not consider the factor of the lady being poor, illiterate and a senior citizen, the punishment should be reduced.

Appellant’s contention

The counsel for the appellant contended that the trial was distinct but the court has given such strict punishment to the lady without examining the totality of the matter and the other salient facts into consideration.

Obiter Dicta

The court observed that-

“We are of the considered view that the offenses under the NDPS Act are very serious in nature and against the society at large and no discretion is to be exercised in favor of such accused who are indulged in such offences under the Act. It is a menace to the society; no leniency should be shown to the accused persons who are found guilty under the NDPS Act. But while upholding the same, this Court cannot be oblivious of the other facts and circumstances as projected in the present case that the old illiterate lady from rural background, who was senior citizen at the time of alleged incident, was residing in that house along with her husband and two grown up children who may be into illegal trade but that the prosecution failed to examine and taking note of the procedural compliance as contemplated under Sections 42, 50 and 55 of the NDPS Act, held the appellant guilty for the reason that she was residing in that house but at the same time, this fact was completely ignored that the other co accused were also residing in the same house and what was their trade, and who were those persons who were involved into the illegal trade providing supplies of psychotropic substances, prosecution has never cared to examine.”

Ratio Decidendi

While considering her appeal, the Apex court bench Justice Ajay Rastogi and CT Ravikumar noted that the minimum sentence for an offense committed under section 20 (b) (ii) c of the NDPS Act, 1985 is imprisonment of 10 years which may extend to 20 years and a fine of 1 lakh which may extend to 2 lakhs. Here the punishment that has been given is much higher than the minimum one and for that matter section, 32 B of the said act must be considered. But the same
has not been performed by the trial courts prior. And while judging her case the punishment for such an old illiterate lady who has no prior history of committing a crime can be reduced to 12 years with a fine of 1 lakh and in default, to further undergo rigorous imprisonment of six months which shall meet the ends of justice.

CASE NUMBER

Writ Petition (crl.) 208 of 2004

EQUIVALENT CITATION

AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234

BENCH

Justice Ashok Bhan & Justice Markandey Katju

DECIDED ON

07 July 2006

RELEVANT ACTS

The Code of Criminal Procedure, 1951; The Indian Constitution, 1950; The Indian Penal Code, 1860

BRIEF FACTS

The petitioner, Lata, is a 27-year woman who was pursuing her Master’s course in Hindi at Lucknow University. Due to the sudden demise of her parents, she had been living with her brother Ajay Pratap Singh at LDA Colony, Kanpur Road, Lucknow where she finished her intermediate in 1997 and graduated in 2000. The petitioner of her own free will left her brother’s house and married Bramha Nand Gupta at Arya Samaj Mandir. The petitioner’s husband had a business in Delhi and there has been a child out of this wedlock.

On 4^th November 2000, a missing person report was lodged at Sarojini Nagar Police Station, Lucknow by the petitioner’s brother. The police arrested the two sisters (Sangita Gupta, and Mamta Gupta), Rakesh Gupta (husband of Mamta Gupta), and the cousin of the petitioner’s husband (Kallu Gupta). It was alleged that Ajay Pratap Singh, Shashi Pratap Singh, and Anand Pratap Singh (brothers of the petitioner) were furious as the petitioner has undergone an inter-caste marriage. It was further alleged by the petitioner that her brothers have attacked the paternal residence of her husband, beaten up her husband’s mother and uncle, and created chaos in their house. It was also stated by the petitioner that they have cut away the harvest crops of the agricultural field of the petitioner’s husband and sold it and forcibly acquired the field. The Gupta helmet shop of the petitioner’s husband was also forcefully possessed by the petitioner’s brothers. It was further stated that they were threatening to kill the petitioner’s family members and also her.

They also filed a police report alleging the kidnapping of the petitioner against her husband and his relatives at Sarojini Nagar Police Station, Lucknow. On 17^th December 2000, Mamta, Sangita, and Rakesh were arrested while Kallu Gupta was arrested on 2^nd December 2000. Though there wasn’t any case instigated against them, their lives were spoiled. The petitioner went to safeguard her spouse and relatives from her brothers’ persecution. She feared for her and her husband’s lives and approached Rajasthan Women Commission, Jaipur. The Commission recorded her statement and sent it to the Superintendent of Police.

The final report was filed in Sarojini Nagar Police station by the SHO before the learned Judicial Magistrate. On 16^th May 2001, the Sessions Judge granted the petitioner’s husband and his relatives, bail on the personal bond mentioning that no offence has been committed by the accused persons. It was observed that neither was there any offence nor the accused involved in the offence. The SP Lucknow informed the National Human Rights Commission that all the accused were being released from jail on 17^th May 2001.

The Investigating Officer has recorded the statement of Lata Singh on 28 May 2001 where, she stated that she has married Bramha Nand Gupta at her own will and she was not coerced or forced to do so and also, she was provided with armed security. The petitioner’s statement was recorded under Section 164 of Cr.P.C. Despite her statement, the Chief Judicial Magistrate passed a committal order on 15^th October 2001, ignoring the fact that the final report had already been filed by the police. A protest petition was filed against the final report alleging that the petitioner was mentally unfit. On being medically examined by the Board of Doctors of Psychiatric Centre, Jaipur, it was found that the petitioner was not suffering from any sort of mental illness.

The Fast Track Court, Lucknow, issued non-bailable warrants against all four accused, and the accused filed a petition under Section 482 Cr.P.C. in the Allahabad High Court (Lucknow Bench), which was registered as Crl. Misc. No. 520/2003. The High Court ordered the accused to appear before the Sessions Judge, who would determine if an offense was committed. It was alleged by the petitioner that there is a threat to her life. It was further stated by her that there has been irreplaceable damage to her and her husband’s family because of her brothers who had a problem with an inter-caste marriage.

ISSUE

Whether the writ petition under Article 32 of the Constitution of India filed with the prayer to issue a writ of certiorari and /or mandamus to quash the Sessions Trial No. 1201 of 2001 under Sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 registered, maintainable?

JUDGMENT

The Hon’ble Supreme Court allowed the writ petition under Article 32 of the Indian Constitution and the Sessions Trial No. 1201 of 2001 under Sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 was quashed. It was further stated by the court to the police to take action against anyone who threatens or harasses or performs any violence against the petitioner or the petitioner’s husband or relatives of the petitioner’s husband in accordance with the law. It was observed by the court that the Hindu Marriage Act does not constrain anyone from carrying out an inter-caste marriage. In light of the petition’s claims, the criminal procedure was ordered by the High Court to be launched immediately against the petitioner’s brothers and others involved.

CONCLUSION

The case of Lata Singh v. State of Uttar Pradesh & Anr is a landmark judgment that has clarified the validity of inter-caste marriages. It can be observed from the court’s decision that any person who is a major has a right to choose the partner of their choice. It can be further considered to be a part of Article 21 of the Indian Constitution. The act of violence caused by the family members due to the inter-caste or different religion marriage is considered to be a barbaric practice which is unjust as it would be a curtailment of the fundamental right of a person because of some people’s feudal mindsets.

The court further opinionated that a family having a problem with such marriages can stop maintaining social relations with the couple and leave them but they do not have the authority to instigate violence against the married couple for that.  The court stated “In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major, he or she can marry whosoever he/she likes.”

India’s deep-rooted casteism and religionism are obstacles to a progressive nation. It is important to protect the interests of the youth who are carrying out inter-caste or different religion marriages as they pave the way to discard the toxic discrimination present within India. This landmark judgment has clarified that the Hindu Marriage Act does not prohibit inter-caste marriage and it has made it clear that major women marrying outside their caste is not wrong or prohibited by the law.

This article is written by K. Mihira Chakravarthy, 2^nd year B.A. L.L.B. student from Damodaram Sanjivayya National Law University (DSNLU).

-Report by Anjana C

The Supreme Court in the case of Shirdi Nagar Panchayat, Shirdi vs Appasaheb Narayan Chaudhari & Others sent the matter back to the High Court for considering it afresh. Shirdi Nagar Panchayat, dissatisfied by the order of the High Court in which they were directed to initiate preparation of land acquisition, had filed this appeal.

FACTS

The appellant had taken possession of the land to construct a water storage tank for the citizens in that area. However, it is stated in the writ petition filed by the private respondent (original petitioner) that once the pipeline was laid, the completed project was handed over to the Gram Panchayat. This was done without following the procedures laid down by the Land Acquisition Act, 1894; the land acquisition was not formally done in accordance with the procedures. Further, no compensation was paid under the Act either. Thereafter, the petitioners filed a writ petition in 2018 pleading for relief. It must be noted that the petition was filed after 35 years of the occurrence of the incident. The High Court, thereafter, ordered the appellant to prepare a proposal for the acquisition.

Appellant’s (Original Respondent’s) Contentions: 

An additional affidavit was filed before the Court by the appellant. This affidavit stated that the land was taken for constructing the tank by private negotiations and that the compensation amount was agreed upon, paid, and received.
The payment of compensation was supported by an extract of the cash book dated 12.11.1981 and the cash book for May 1983, and other documents showing an approximate payment of Rs. 1,21,000/- being paid to the original petitioners. The learned Counsel, on behalf of the appellant, states that in light of these documents, it is clear that all procedures were duly carried out by the appellants.

Respondents (Original Petitioner’s) Contentions: 

Senior Advocate Shri Neeraj Kishan Kaul, Counsel for the original writ petitioners, brought to light that the documents submitted by way of an additional affidavit were not presented before the Court, meaning the High Court had not considered this at the time of the order. They disputed the fact that they received compensation along with the fact that the land was acquired by private negotiations. It was also highlighted that other than the cash book, there has been no other documentary evidence regarding the compensation claimed to have been paid and received by the petitioners. The petitioners also disputed any proceedings under this Act being carried out. The learned counsel on behalf of the petitioners argued that they were not presented with the opportunity to rebut the affidavit submitted to the Court.

DECISION OF THE COURT:

On hearing all sides, the Court sought to discover the true nature behind the acquisition of the land and the compensation paid thereof. In this regard, it was decided to put aside the prior order in this case and remand the
matter to the High Court to start anew, giving the original respondent to file an additional affidavit with all necessary supporting documents while also providing the original petitioners a chance to discredit any of this information. All contentions of both parties will be kept open, and the High Court will consider all matters’ merit in accordance with the law. The appeal was accordingly allowed and disposed of to this extent.

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.

-Report by Aswati Sharma

The Hon’ble Supreme Court of India on Monday in the case of Varsha Garg vs State of Madhya Pradesh and Ors. ruled that Section 311 empowers the trial court to summon witnesses to arrive at a just decision.

The decoding registers, according to the bench of Justices Dhananjaya Y Chandrachud and AS Bopanna, are a pertinent evidence piece to establish the co-relationship between both the accused’s location as well as the cell phone tower. In this case, the appellant is the wife of an advocate who’d been brutally murdered outside his office on November 18, 2015, around 23:30 hrs. An FIR was filed under Section 302 read in conjunction with Section 34 of the IPC.

The CD which was produced during the trial was found to be corrupted hence an application was made to the trial court for the requisition of the copy CD which was available at the police station. An application was preferred for requisition of the said CD but this application was rejected by the trial court.

A Single Judge of the High Court granted the appellant’s petition to challenge the trial court’s order, noting that the CD was a crucial piece of evidence that was provided to all of the accused along with the charge sheet.

This order of the trial court was challenged before the High Court by the appellant under Section 482 CrPC dismissing the second application which has been called into question in these proceedings.

The submission urged by the Counsel of Appellant was that in any event, there was no bar in law to the filing of an application under Section 311 even after the closure of evidence.

The submission which has been urged by Counsel for Respondent is that given the bar contained in Section 301 CrPC, it is not open to the appellant who is the spouse of the deceased to pursue these proceedings.

Issues before the bench were:

While Section 301 limits the right of the private person to participate in criminal proceedings, the Court noted that Section 311 empowers the trial court to summon witnesses in order to reach a just decision. The State filed an application for the summoning of witnesses and production of the decoding register. As a result, Section 301’s prohibition does not apply. The court held in that context:

“―21 …Therefore, a reading of Sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether the invocation of Section 311 was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of Section 301(2) was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant‘s application without actually relying on the wide powers conferred on it under Section 311 CrPC for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.”

The Hon’ble Supreme Court allowed the appeal and set aside the impugned judgment and order of the High Court dated 8th April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13th November 2021 in Sessions Trial 227 of 2016 dismissed the application filed by the prosecution. The application was filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular.