ISSUE- IX (OCTOBER 26 - NOVEMBER 1)



VOX IURA MAGAZINE- ISSUE 9
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1. Acquittal Does Not Conclude Disciplinary Enquiry: SC Upholds Dismissal Of Police Constable Acquitted In A Murder Case

Case Name: State of Rajasthan v. Heem Singh, Civil Appeal No. 3340 of 2020.

Context: The Supreme Court while upholding dismissal of police constable reiterated that order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge.

Factual background:

Heem Singh was appointed as a constable in the police service of Rajasthan in 1992. In August 2002, he was named in an FIR in a murder case and later a charge sheet was filed under Sections 302, 201 and 120B IPC. During the pendency of the criminal trial, a memorandum was issued to him convening disciplinary proceedings under the provision of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. Sessions Court acquitted him and the co-accused, giving them the benefit of doubt. The disciplinary enquiry on the charge of murder proceeded with the same evidence. It finally concluded that though he had been given the benefit of doubt in the criminal trial, the charges against him stood established and he was thus dismissed from service. Though the single bench of the Rajasthan High Court dismissed his writ petition challenging the dismissal order, the division bench directed his reinstatement in service with consequential benefits but without back wages.

Holdings:

In appeal filed by the State against the High Court order, the bench comprising Justices DY Chandrachud and Indira Banerjee set aside the reinstatement ordered by the High Court, but directed (invoking Article 142) that the cessation from service will notionally take place on him completing minimum qualifying service. The Court made heavy reliance on the cases of Southern Railway Officers Association v. Union of India and Inspector General of Police v. S. Samuthiram, wherein it was held that unless the accused has an “honorable acquittal” in their criminal trial, as opposed to an acquittal due to witnesses turning hostile or for technical reasons, the acquittal shall not affect the decision in the disciplinary proceedings and lead to automatic reinstatement. The Bench noted that the respondent was acquitted of the charge of murder by the Sessions Court. However, the judgment of the Sessions Court contains a litany of hostile witnesses, and of the star witness resiling from his statements. The precedents indicate that acquittal in a criminal trial in such circumstances does not conclude a disciplinary enquiry. The Court also observed that there were circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.

2. In Transnational Child Custody Cases, ‘Mirror Orders’ From Foreign Courts Ensure Welfare Of Minor: SC

Case Name: Smriti Madan Kansagra v. Perry Kansagra, Civil Appeal No. 3559/2020.

Context: The Supreme Court applied the concept of ‘mirror order’ in a case involving transnational custody of a child. When a court allows the shifting of a child to foreign country, it may impose a condition that the parent in the foreign jurisdiction should also obtain a similar order of custody for the child from a competent court there. Such an order is called a ‘mirror order’. This condition is imposed to ensure that the courts of the foreign jurisdiction are also put on notice regarding the matter and to ensure protection of the child.

In a judgment passed on October 28, a three judge bench comprising Justices UU Lalit, Indu Malhotra and Hemant Gupta (2:1 majority) applied this concept while allowing the custody of a child to a man located in Kenya. The majority of Justices Lalit and Malhotra held that the father was entitled to the permanent custody of the child and allowed him to shift his son to Kenya. However, the bench imposed a condition that the father should obtain a mirror order from Kenya. Explaining the objective of mirror order, the judgment authored by Justice Malhotra stated:

“The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State. Such order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired”.

3. PLEA WANTED BAN ON PROTESTS, PROCESSIONS AGAINST THE LAWS

IN BRIEF -The Supreme Court on Tuesday dismissed a plea to enforce the controversial new agriculture laws.

ABOUT-The plea wanted a ban on protests and processions against the laws. It sought the framing of rules and guidelines to bar agitations in this regard. It even asked for a blanket bar on the dissemination of “propaganda” on social media against the parliamentary legislation.The petitioner said the laws were enacted to serve the farmers' needs through an agrarian crisis.

HELD-“You cannot ask for a general direction to implement the Act... You have to bring forth specific cases,”Chief Justice of India Sharad A. Bobde, heading a three-judge Bench, addressed lawyers representing petitioner, Hindu Dharma Parishad.

On October 12, the court had sought the government’s response on several other petitions challenging the Farmers Produce Trade and Commerce (Agriculture and Promotion) Act, 2020, Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act and the Essential Commodities (Amendment) Act of 2020. These petitions had translated the enactment of the new laws as a means to usher in an “anti-farmer exploitative regime”.

4. LACK OF INDEPENDENT WITNESS NOT FATAL ; POLICE OFFICER'S TESTIMONY SHALL BE SCRUTINIZED WITH GREATER CARE: SUPREME COURT

The SC in Raveen Kumar vs. State of Himachal Pradesh, has held that in NDPS cases, lack of independent witnesses are not fatal to the prosecution case. The court observed that in such cases, the Courts have to adopt a greater degree of care while scrutinising the testimonies of the police officers. If they are found reliable, they can form the basis of a successful conviction.

5. COURTS SHOULD INFORM ACCUSED ABOUT THEIR RIGHT TO 'DEFAULT BAIL’ ONCE IT ACCRUES:SC The Supreme Court has observed in M. Ravindran vs. The Intelligence Officer, that courts should inform the accused of the availability of their indefeasible right to avail “ default bail” once it accrues to them. The objects of Sec. 167(2) of CrPC are subset of overarching fundamental right guaranteed under Art. 21. The Hon’ble SC observed that if the court deliberately does not decide the bail application but adjours the case by granting time to the prosecution, it would be in violation of the legislative mandate.

6. HC REFUSES TO DIRECT CENTRE TO PAY GST COMPENSATION COURT: Madras High Court

The Madras HC refused to issue a direction to the centre to release Goods and Services (GST) Compensation of Rs.12,250 Crore to the Tamil Nadu Government. The Court expressed “hope and trust” that the money would be disbursed in due course taking in to account of financial difficulties faced due to COVID 19 Pandemic.

The further held that the provisions of the 2017 Act are director and not mandatory.

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