ISSUE–VI (OCTOBER 5 - OCTOBER 11)


VOX IURA MAGAZINE- ISSUE 6
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1. FILING OF CHARGE-SHEET BY ITSELF DOES NOT ENTITLE AN ACCUSED TO COPY OF THE STATEMENT RECORDED U/S.164 CRPC: SC

Case Name: Ms. “A” v. State of UP

Filing of charge sheet by itself, does not entitle an accused to copies of any of the relevant documents including statement under Section 164 of the Code, the Apex Court observed while setting aside the Allahabad High Court order which allowed the plea of former Union Minister and BJP leader Chinmayanand to seek a certified copy of the statement of the rape victim.

The three-judge bench headed by Justice Uday Umesh Lalit held that the right to receive a copy of statements recorded u/s.164 Cr.P.C will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before. The Court observed that the High Court ‘completely erred and failed’ in appreciating the directions issued in the judgment of State of Karnataka v. Shivanna @ Tarkari Shivanna, especially in a matter where the offences alleged against accused are of sexual exploitation.

Held: Though, a copy of the statement recorded under Section 164 of the Code was made over to the accused, the Supreme Court had set aside the order passed by the High Court and laid down that under no circumstances copies of statements recorded under Section 164 of the Code can be furnished till appropriate orders are passed by the Court after taking cognizance in the matter


2. SC AGAINST INVOLUNTARY NARCO TESTS

Content: Uttar Pradesh government decided to conduct narcoanalysis tests on the accused, victim's relatives and also on the police personnel as part of the investigation in Hathras rape and murder case.

Background: A Decade ago, in the case of Selvi v. State of Kerala, the supreme court of India observed that the compulsory administration of the techniques like Narco analysis tests constitutes 'cruel, inhuman or degrading treatment' in the context of Article 21. In conclusion, the court held that no individual should be forcibly subjected to such tests, whether in the context of investigation in criminal cases or otherwise, as the same would amount to an unwarranted intrusion into personal liberty.

Analysis: The Supreme Court finds that involuntary administration of Narco tests amounted to a restraint on personal liberty while asserting that such tests come into conflict with the ‘right against self-incrimination’. The said test could be used against the “individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice”. It also has an opinion that these tests may lead to future abuse, harassment and surveillance, even leakage of the video material to the press for a trial by media. Therefore, it observed that Such tests are an insult to human dignity and liberty and could have enduring effects.


3. RIGHTS OF ACCUSED SHOULD NOT BECOME ILLUSORY BY IMPOSITION OF DISPROPORTIONATE BAIL CONDITIONS: SC

Case Name: Parvez Noordin Lokhandwalla v. state of Maharashtra & Anr.

Background: The appellant was a Green Card holder in the US. On January 2014, a complaint was filed by Mehraj Rajabali before the JMFC Court, against the appellant alleging that the appellant fabricated a Power of Attorney by forging the signature of his brother. Based on the complaint an FIR was registered against the appellant on 22nd April 2014. On application for grant of anticipatory bail before the Sessions Court, the appellant and the co-accused were granted interim protection from arrest on 17th February 2018 and 16th April 2018. On 10th January 2020, the appellant arrived to India and was arrested on 21st February 2020 during his departure in Mumbai in pursuance of a look-out notice issued on the basis of an FIR dated 22nd April 2014.

Bombay High Court: In order to renew his Green Card, it was mandatory for him to return to the US within a stipulated period of his departure from that country so he filed an application for bail for a period of eight weeks before the Bombay High Court. On 19th May 2020, the High Court stating various conditions granted interim bail to the appellant. An interlocutory application was filed before the court to relax the conditions. The IA was heard by the high court but declined his visit to the US by its order dated 23rd July 2020.

Supreme Court (Special Leave Petition): The Apex Court set aside the order of the High Court and granted permission to the appellant to travel to the US for a period of eight weeks and held that the conditions which a court imposes for grant of bail have to balance the public enforcement of criminal justice with the rights of the accused. Emphasizing on the expression “any condition…otherwise in the interest of justice” of section 437(3) Cr.P.c the bench observed that the lodging of an FIR should not in the facts of the present case be a bar on the travel of the appellant to the US for eight weeks.


4. MERE INCLUSION OF CANDIDATE IN A SELECTION LIST DOES NOT CONFER UPON THEM A VESTED RIGHT TO APPOINTMENT – SC

Case Name: Commissioner of Police and Anr v. Umesh Kumar

Held: The respondents in the instant case appeared in the written examination for the post of ‘Constable (Executive) – Male’ in the Delhi Police. After the evaluation of the OMR sheets, candidates including the respondents were declared to be provisionally selected. However, some other candidates approached the Central Administrative Tribunal challenging the answer key and claimed that they had not obtained marks for correct answers for certain questions. Based on the recommendations made by the Expert Committee the results were revised later and the respondents were ousted. Some candidates approached the Tribunal challenging the revised result which was dismissed. The writ petition was filed before the Delhi High Court which directed their appointment. In the appeal before the Supreme Court, it held that mere inclusion in a selection does not confer upon them a vested right to appointment referring to the precedence Punjab SEB v. Malkiat Singh.

5. THE SC PERMITS ACCUSED DOCTORS TO RE-ENTER COLLEGE AND RESUME STUDIES IN PAYAL TADVI SUICIDE CASE:

Case Name: Ankita Kailash Khandelwal & Ors. V. State of Maharashtra & Ors.,

The Supreme Court permitted the doctors accused of abetting the suicide of Dr.Payal Tadvi to re-enter the college and hospital to pursue their courses of study.

Background: The three doctors, Dr. Ankita Kailash Khandelwal, Dr.Hema Suresh Ahuja and Dr. Bhakti Arvind Mehare are accused of abetting the suicide of Dr. Payal Tadvi by humiliating her and passing disparaging remarks about her caste. While granting conditional bail, the Bombay High Court had observed that they will not be allowed inside the BYL Nair hospital premises during the bail period.

Held: The bench comprising Justices Uday Umesh Lalit, Vineet Saran and Ajay Rastogi while allowing the appeals observed that “if law presumes an accused to be innocent till his guilt is proved, the appellants are presumably innocent persons, are entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution and are entitled to pursue their course of study so long as exercise of said right does not hamper smooth conduct and progress of the prostitution.” The bench further opined that the appellants must be allowed to go back to their courses of study otherwise the pendency of prosecution against them will further penalty in the form of prejudicing their career. Any such adverse impact will negate their rights under Article 21 of the Constitution.


6. NRI QUOTA NOT COMPULSORY IN MEDICAL ADMISSION; PRIVATE COLLEGES HAVE DISCRETION TO ABOLISH IT: SC

Case Name: Nilay Gupta v. Chairman NEET PG Medical and Dental

Held: The Apex Court has held that medical colleges need not compulsorily provide for 15% NRI quota. Private colleges and institution which provide for such professional and technical courses have the discretion to decide the extent to offer such NRI and management quotas. However, it is subject to the limits set by the judicial precedents, enacted law or subordinate legislation.


7. RELATED WITNESSESS TESTIMONY, IF FOUND TO BE TRUTHFUL, CAN BE THE BASIS FOR CONVICTION:SC

Case Name: Karulal vs. State of MP

Held: The Supreme Court observed that testimony of the related witness, if found to be truthful, can be the basis of conviction. If the witnesses are otherwise trustworthy, past enmity by itself will not discredit any testimony. The Court mentioned that, being related to the deceased does not necessarily mean that they will falsely implicate innocent persons.


8. SC ORDERS VIOLATED IN CHARDHAM PROJECT

Content: The chairman of a supreme court appointed expert committee has alleged violations of the court orders in the execution of Chardham road project in Uttarakhand.

Background: It is a 900 km, ₹12,000 crore enterprise to connect the Char Dham pilgrimage centres in Uttarakhand, namely Gangotri, Yamunotri, Kedarnath and Badrinath. The Supreme Court had ruled that width of roads constructed under Chardham project shall be 5.5 metres. This was ruled based on the recommendation of Ministry of Road Transport and Highway (MoRTH) for mountain roads.

For reference see: Article 6, Vox Iura Magazine- Issue II; https://www.voxiura.com/post/issue-ii-september-7-september-13


9. HATHRAS CASE: SC ASKS UP GOVT. TO FILE WITNESS PROTECTION

Held: The Supreme Court directed the State of Uttar Pradesh to file an affidavit stipulating witness protection plan for the family and witnesses of the 19-year old woman who was allegedly gang raped by four upper caste men in Hathras District, Uttar Pradesh. A bench of Chief Justice SA Bobde, AS Bopanna & V. Ramasubramanium also asked the state to find out whether the victim’s family had chosen a lawyer for representation. It further asked all parties appearing before the Court to put forth suggestions as to scope of the Allahabad HC proceedings and how the top court can make them more relevant.


10. ARREST OF JOURNALISTS ON WAY TO HATHRAS: KERALA JOURNALISTS BODY MOVES HABEAS PETITION IN SC:

The Kerala Union of Working Journalists (KUWJ) has filed a habeas corpus petition in the Supreme Court against the arrest of Kerala journalist, Sidhique Keppan, by the UP Police while he was proceeding to cover Hathras incident. Terming the arrest illegal and unconstitutional, the KUWJ has filed the petition seeking his immediate production before the SC and release from “illegal detention”. The petition contends that the arrest is made in violation of the mandatory guidelines laid down in the decision DK Basu vs. State of West Bengal and was made with the sole intention of obstructing the discharge of duty by a journalist.


11. CBI TAKES OVER HATHRAS CASE FROM THE UP POLICE

After a week of alleged gangrape and murder of 19-year-old Dalit Woman, the Central Government have issued a notification for a probe by the CBI.


12. PIL IN SC SEEKS DIRECTION TO DRAFT STATUES, RULES AND NOTIFICATIONS IN PLAIN LANGUAGE

A plea has been filed before the Supreme Court seeking for directions for the use of plain language in drafting and issuing of all government communications, and for issuance of handbooks of laws of general public interest which are easily understandable to the layman. The petition further seeks for direction to Bar Council of India to introduce a mandatory subject of “Legal Writing in plain English” in 3 year and 5 year LL.B courses in India. It also seeks for an imposition of page limit for pleadings and time limit for oral arguments before the Supreme Court.


13. FAIR AND FRANK REPORTING BY MEDIA CANNOT BE CURBED BECAUSE IT IMPACTS THE BUSINESS OF SOME CLASS OF PERSONS: J&K HC

Case Name: Mohammad Salim Pandith v. State of J&K & Another

Held: The J&K HC held that the limitations on freedom of the press cannot extend to the registration of criminal case against a reporter, who in the discharge of his duties and on the basis of information gathered by him, makes a report about certain incidents which he thought in the public interest should be published. It is immaterial that said report may have adversely affected the business of some person or persons as long as the reporter had reasonable grounds to believe that his report is true.


14. ALL NDPS OFFENCES ARE NON-BAILABLE, REGARDLESS OF CONTRABAND QUANTITY: BOMBAY HC

Case Name: Rhea Chakraborty v. Union of India

Held: Relying upon the judgment delivered by Apex Court in the case State of Punjab v. Baldev Singh, the Bombay High Court rejected bail to actor Rhea Chakraborty stating that all offences under the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 are non-bailable. Further observing the legislative history and section 37 of the NDPS Act, the court held that offenders involving smaller quantities are liable to arrest and cannot claim bail as it would defeat the object of the act.


15. SECTION 29 OF POCSO ACT APPLICABLE ONLY AFTER TRIAL BEGINS: HC

Content: The Delhi High Court ruled that the presumption of guilt ingrafted under Section 29 of the Protection of Children from Sexual Offences (POCSO) Act shall applies only once the trial begins, which means after charges are framed against the accused.

Background: Section 29 of POCSO Act states that when a person is prosecuted for committing an offence of sexual assault against a minor, the special court trying the case “shall presume” the accused to be guilty. Therefore, there is a reverse burden on the accused to prove his innocence. The High Court of Delhi has ruled that accused cannot be asked to disprove their guilt even before the foundational allegations with supporting evidence that suggests guilt are placed by the prosecution before the court. It also clarified that if a bail plea is being considered before charges have been framed, Section 29 has no application.


16. MINISTRY OF HOME AFFAIRS NOTIFICATION ON MANDATORY REGISTRATION OF FIR IN CASES IF SEXUAL VIOLENCES

Background: The family of the victim in the Hathra case has alleged that the local police refused to register FIR on time. Simultaneously two writ petitions were lodged for the direction. So, the Ministry released the advisory guidelines

Guidelines: The Women safety division of the ministry of Home Affairs has directed all the state Governments and UT Administrations to register FIR mandatorily and to conduct time bound investigations, in case the information is relating to the sexual offences against women. They were also advised to provide stringent punishment against the defaulting officers who do not follow the procedure under Cr.P.C. and Indian Evidence Act. They have also reminded about the Zero FIR under Section 154(1) of Cr.P.C. and failing which the person shall be prosecuted under Section 166A(c) of IPC.


17. INSENSITIVE REPORTING ON SUSHANT SINGH RAJPUT’S DEATH: NSBA IMPOSES RUPEES ONE LAKH FINE ON AAJTAK, DIRECTS ZEE NEWS, INDIA TV AND NEWS 24 TO APOLOGIZE

Held: The News Broadcasting Standards Authority (NSBA) has directed electronic news channels Aaj Tak, Zee News, News 24 and India TV to air an apology for insensitive reporting and sensationalizing the death of late-actor Sushant Singh Rajput. The self-governing authority has censured Aaj Tak, Zee News and News 24 channels for running insensitive tag lines that had the effect of violating the privacy and affecting the dignity of the deceased. Whereas, India TV along with Aaj Tak have been found guilty of showing images of Rajput’s corpse.

Offensive Tag Lines Run By News Channels: Referring to Aaj Tak’s infamous “Hit-wicket” tagline, the authority said, “it appears that the questions are being addressed to Sushant Singh Rajput, who is no more, therefore the taglines are offensive, violate privacy and affect the dignity of the deceased”. Referring to a tagline run by Zee News, ‘Patna ka Sushant, Mumbai me fail kyu?’ the authority said, “The tagline tends to give impression that committing suicide is failure and therefore violates the privacy and dignity of the deceased”. Similarly, it has concluded that the taglines run by News 24 were “offensive and affected the dignity of the deceased” by indicating that Sushant had forgotten that anti-suicide message given by him in his movie Chhichhore.

Observations and decision of NSBA: The NSBA observed that, “Undoubtedly, the media has the right to freedom of speech and expression. It cannot be doubted that when well-known public personality like Sushant Singh Rajput commits suicide, not only it becomes big news, but also a matter of discussion which can revolve around various complaints and hypothesis. Therefore, telecast of such programs can neither be discouraged nor criticized, per se. If the program carried by Aaj Tak, Zee News and News 24 were without taglines, it may not have violated the guidelines relating to privacy, sensationalisation and dignity of the dead. However, since the programs carried the aforesaid taglines, the NSBA is of the view that the said broadcasters have violated the Specific Guideline Covering Reportage”.

Allegedly, Aaj Tak falsely reported on the fake tweets stating that Rajput posted three tweets which he later deleted on June 14, 2020, hours before his death; however, the channel later deleted the tweets and took down the article. NSBA in respect of telecasting fake tweets observed that broadcaster should have conducted its due diligence and verification prior to telecasting/uploading the tweets and not subsequently. Telecasting the tweets without verification had the tendency of spreading misinformation amongst the public.

Lastly, the authority has also found that Aaj Tak violated its Guidelines on Privacy inasmuch as its reporters barged into Rajput’s parents’ house and questioned his various family members, who were shocked and in a grieving state. Therefore, Aaj Tak has been directed to pay a fine of Rs. 1,00,000 for its failure to conduct a due diligence before telecasting some tweets and attributing them to the actor. Inter alia, the authority has also directed Aaj Tak and India TV to apologize for publicizing images of Rajput’s corpse.

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