Fortnightly Newsletter: April 16, 2018

April 16, 2018

Some glaring and horrifying incidents against humanity have been committed this fortnight. The Kathua rape and Unnao rape cases have reaffirmed the fact that women including small innocent girls are not safe in this country. However, the most dismal truth of the whole scenario is that people who should have been protecting and fighting for the justice of victim are creating impediments in initiating even criminal proceedings against the accused.

The headlines in newspapers and news channels gives us immense wrath, we express disappointment and feel sad for the victims and their families, but the fact is that at the end we aren’t able to do anything substantial to change this whole system. What most we can do is that we caution girls and ladies in our homes to be careful from strangers, we direct our small girls do be careful while playing in the park, not to visit neighbourhood etc. In short, we curtail their freedom, we tie shackles around their legs at an age when they should be carefree. Is this the India which we wanted for our children…certainly NO.

Important Decisions by the Supreme Court and High Courts

SC: Unauthorized Medical Practice- a Threat to Lives of People

Case name: Kerala Ayurveda Paramparya Vaidya Forum v. State of Kerala and Others  

In the case, the Appellants practicing in Sidha/Unani/Ayurveda system of medicine called as “Paramparya Vaidyas’ have been barred by the Supreme Court on account of not possessing licenses and requisite recognized qualification for registration entitling them to practice Indian system of medicines or their names have been entered in the appropriate registers after the commencement of this Act.

While passing its verdict, the Apex Court stated that That persons having no recognized and approved qualifications, having little knowledge about the indigenous medicines, are becoming medical practitioners and playing with the lives of thousands and millions of people.

Read more here.

SC: In Transfer Petition Court not to Determine Convenience of Petitioner Only

Case name: Harita Sunil Parab v. State of NCT of Delhi & Ors.

In the case, the Supreme Court while rejecting the appellants plea to transfer FIRs registered in Delhi to Mumbai observed that:

  • That the apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises.
  • That no universal or hard and fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial.
  • That convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension.

Read more here.

Hadiya case- SC says Choice of Faith is a Constitutional Right

Some remarkable observations made by the Apex Court in the case are enumerated below:

Invoking parens patriae jurisdiction– In the judgment, the Apex Court has elucidated on the exercise of Parens Patriae jurisdiction and stated that Constitutional   Courts   in   this   country   exercise parens patiae jurisdiction in matters of child custody treating the welfare of the child as the paramount concern. That there are situations when the Court can invoke the parens patriae principle and the same is required to be invoked only in exceptional circumstances.

The courts cannot in every and any case invoke the Parens Patriae doctrine.  The said doctrine has to be invoked only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the Court that the said parties have either no parent/legal guardian or have an abusive or negligent parent/ legal guardian.

Freedom of Choice of Faith– In the context of Hadiya converting to Islam after marrying Shafin Jahan, the Apex Court observed that expression of choice in accord with law is acceptance of individual identity and that curtailment of that expression and ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person.

Read more here.

SC: Grant of Anticipatory Bail does not Automatically Entitle Accused to Regular Bail

Case name: Satpal Singh v. The State of Punjab

In the case, the Appellant approached the Supreme Court against High Court’s order, whereby the Court had rejected his anticipatory bail application. The Appellant had been accused for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The High Court had rejected the Appellant anticipatory bail application under Section 438 of CrPC  on the ground that Section 37 of NDPS Act  stated that offences under the NDPS Act are cognizable and non-bailable. Here it would be relevant to mention that co-ordinate Bench of the High Court in the case had granted anticipatory bail to the appellant earlier.

One of the main issue that arose in the case was that when the application for anticipatory bail was the subject matter before the High Court, the Appellant approached the Sessions Court to seek regular bail.

The Three-Judge Bench of the Supreme Court while upholding the High Court’s view, noted that merely because an accused was under the protection of anticipatory bail granted under Section 438 of CrPC that does not mean that he is automatically entitled to regular bail under Section 439 CrPC .

Read more here.

SC: Time Ripe to Introduce Videography of Crime Scenes, Issues Directions

Case name: Shafhi Mohammad v. The State of Himachal Pradesh

In this case, the Supreme Court extensively discussed the substance and use of videography of the scene of crime. While assenting to the view that videography of crime scene during investigation is of immense value in improving administration of criminal justice, the Two Judge Bench of Apex Court remarked that:

“New techniques and devices have evidentiary advantages, subject to the safeguards to be adopted. Such techniques and devices are the order of the day. Technology is a great tool in investigation. By the videography, crucial evidence can be captured and presented in a credible manner. Thus, we are of the considered view that notwithstanding the fact that as of now investigating agencies in India are not fully equipped and prepared for the use of videography, the time is ripe that steps are taken to introduce videography in investigation, particularly for crime scene as desirable and acceptable best practice as suggested by the Committee of the MHA to strengthen the Rule of Law”.

Read more here.

SC on Judicial Review of Administrative Decisions

Case name: Municipal Corporation, Ujjain & Anr. v. BVG India Limited and Ors.

In the case, the Apex Court has held that the power of judicial review can be exercised only if there is unreasonableness, irrationality or arbitrariness and in order to avoid bias and mala fides.

That attempts by unsuccessful bidders with an artificial grievance and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness.

Read more here.

Delhi HC: No Charge Sheet to be Filed without Consent from Prosecution Branch

In a recent case, wherein the Delhi High Court took a suo motu cognizance of the case, the Court headed by Acting Chief Justice Gita Mittal has directed that the Delhi Police shall ensure that no charge-sheet is filed in any case without the written consent and approval of the Prosecution Branch.

Read more here.

Allahabad HC: Declaration u/S. 3D of National Highways Act Absolutely Vests Land with Govt.

One of the statutory provisions in dispute in a recent verdict of Allahabad High Court in the case of Vipin Agarwal v. Union of India was Section 3D of National Highways Act, 1956. Section 3D of the Act provides for declaration of acquisition of land by the Central Government for purposes as enumerated under Section 3A (1) of National Highways Act, 1956. The provision states that once a declaration of acquisition has been made under Section 3D then the same cannot be called in question in any Court of Law or by any Authority. According to the provision on the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.

The Allahabad High Court in the case dismissed the Petitioner’s prayer and made the following observations:

  • That on receipt of the report, the Central Government declares by notification in the Official Gazette that land should be acquired for the purpose mentioned in Section 3A(1). Section 3(2) of the Act provides that on publication of the declaration under Section 3D (1) the land shall vest absolutely in the Central Government free from all encumbrances. Thus, on publication of the declaration on August 7, 2012, the land stood vested in the Central Government free from all encumbrances and the erstwhile owner did not have any right to execute the sale deed in favour of the Petitioner.
  • Thus, the sale deed executed by the Petitioner was void ab initio and does not confer any right on the Petitioner to receive compensation.

Read more here.

Gujarat HC: Marital Rape ought to be a Crime and not a Concept

In a recent case Nimeshbhai Bharatbhai Desai v. State of Gujarat, the Gujarat High Court took up the controversial and much deliberated issue of marital rape in India. Hon’ble Justice J.B. Pardiwala while making remarkable observations on the concept of marital rape has condemned the inaction of the Government and Legislature on the act of marital rape in India.

Bench’s Verdict

  • Having regard to the position of law prevailing as on date in this country, the wife cannot initiate proceedings against her lawfully wedded husband for the offence of rape punishable under section 376 of the IPC.
  • That when the husband is alleged to have forced his wife for oral sex and actually indulges into the same, the same would constitute an offence under section 377 of the IPC.
  • Outraging Modesty of Women– If a person assaults or uses criminal force against any woman intending to outrage, or knowing it to be likely that he will thereby outrage, her modesty, he commits an offence under section 354 of IPC.

Read more here.

Madhya Pradesh HC: Employee Forced to do Extra Work- Employer can’t be Prosecuted for Abetment of Suicide

Case name: Shama Parveen Beg v. State of Madhya Pradesh & Anr.

In the case, it had been materially alleged that the deceased Haribabu who was working as a Peon under the Appellants committed suicide and the suicide note purportedly mentioned that that he was harassed by the appellants who forced him to work beyond his capacity against the rules and they used to abuse him with derogatory remarks by referring to his caste and due to the aforesaid harassment and humiliation he committed suicide.

The Madhya Pradesh High Court in the case held that prima facie there was no reasonable ingredients available to constitute the offence punishable under Section 306 of Indian Penal Code and the appellants could not be prosecuted on the basis of material available in the charge-sheet.

The Court held that Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. That the alleged act of abusing and taking extra work from the deceased, cannot be equated into the abetment the deceased to commit suicide.

Read more here.

Bombay HC: Major Unmarried Daughter can Claim Maintenance u/S 125 CrPC

Case name: Agnes Lily Irudaya v. Irudaya kani Arsan

In the present case, the Petitioner mother claimed maintenance for her major daughter under Section 125 of the Code of Criminal Procedure and the legal issue involved was whether a major daughter is entitled for maintenance under Section 125 of the Code of Criminal Procedure.

To arrive at its decision, the Bombay High Court relied upon its Division Bench judgment in the case of Vijaykumar   Jagdishrai   Chawla   vs.   Reeta   Vijaykumar   Chawala[1], wherein the Court while dealing with similar issue as to whether unmarried daughter is entitled to receive amount of maintenance from her father or mother so long she is unable to maintain herself out of her   own   earnings held that the father   cannot   be   extricated   from   his   liability   to   maintain   his unmarried daughter.

Read more here.

Delhi HC Issues Guidelines to Courts for Bail of Prisoners

Case name: Ajay Verma v. Govt. of NCT of Delhi

The petitioner in the case had raised a critical issue pertaining to inability of the prisoners to furnish bail bonds in terms of the orders granting bail to them and were, therefore, languishing in prisons for a long period of time despite orders of bail in their favour.

Taking a serious note of the condition of such prisoners, the Delhi High Court issued guidelines to the Trial Courts for ensuring that conditions of bail are met.

Read more here.

Bombay HC: Dying Declaration can’t be Rejected on Ground that it wasn’t Read Over to Declarant

Case name: Ganpat Bakaramji Lad v. State of Maharashtra

In this case, the Full Bench of Bombay High Court has rendered an in-depth analysis of the law relating to and the essentials of a dying declaration. In the case, in view of divergence of opinion, the seminal issue that was raised was Whether a Dying Declaration can be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded?

The Court in the case observed that a dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded. We hold and clarify that this can be one of the factors, if it assumes significance in the facts and circumstances of any case.

Read more here.

 

 

About the Author

Shilpi Sharan

- Shilpi Sharan is the Editor at Vakilno1.com - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.