At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice Anish Gupta for a Division Bench of the Delhi High Court comprising of Hon’ble Ms Mukta Gupta and himself sets the ball in motion by first and foremost putting forth in para 1 that, “This appeal assails the impugned judgment dated 10th February, 2011 convicting the appellant for the offence punishable under Section 302/365/392/201 IPC and order on sentence dated 15th February, 2011 sentencing the appellant for imprisonment for life and a fine of Rs. 3000/- (simple imprisonment for six months in default of payment of fine) for offence punishable under Section 302 IPC, simple imprisonment for five years and a fine of Rs. 1000/- (simple imprisonment for one month in default of payment of fine) for offence punishable under Section 365 IPC, rigorous imprisonment for seven years and fine of Rs. 2000/- (simple imprisonment for three months in default of payment of fine) for offence punishable under Section 392 IPC and simple imprisonment for five years and a fine of Rs. 1000/- (simple imprisonment for one month in default of payment of fine) for offence punishable under Section 201 IPC. All sentences were to run concurrently.”

         The Incident

                                          To put things in perspective, the Division Bench then while dwelling on the incident in brief envisages in para 2 that, “As per the case of the prosecution on 28th January, 2004, a complaint Ex. PW-2/A was made by Sh. Charanjit Singh alleging that on 23rd January, 2004 at about 12 : 00 p.m. car No. HR-38FT-3125 (Tata Indica) from his taxi stand was hired by a person stating that he was going to Narora, District Bulandshahr, U.P. and the customer mentioned his address as J-124, Sarita Vihar. The customer mentioned that he would go to National Thermal Plant, Narora and would come back by the evening. The Indica car was driven by Dinesh Sharma (mobile No. 9810623545). The driver and the car did not return back by the evening and upon enquiries by the complainant, it was found that nobody from J-124, Sarita Vihar had hired any vehicle. The complainant suspected that the driver had been kidnapped alongwith the car and said he could identify the customer. On his complaint, an endorsement Ex. PW-7/A was made and FIR No. 55/2004 was registered under Section 365 IPC (Ex. PW-5/A). As per the call details of the driver’s mobile Ex. PW-7/DA, the last call was recorded at 12:44 p.m. and the last location on 25th January, 2004 was found at Sikanderabad, District Aligarh in Alpha Sector. Based on information by the brother of the deceased PW-3, Yagya Dev Sharma from a newspaper regarding the recovery of dead bodies from Hazara Nahar, the police party alongwith PW-2 and PW-3 reached PS Dholna and found two dead bodies recovered on 23rd January, 2004 and one dead body recovered on 25th January, 2004. PW-3 identified the photograph of the dead body recovered on 25th January, 2004 as that of his brother. Post mortem was conducted and a post mortem report Ex. PW-3/A was prepared and the investigation was handed over to S1 Hari Prakash. On 12th March, 2004, PW-2 met the IO and presented a black and white photo of the appellant who had been arrested in FIR No. Nil/04 under Sections 302/201 IPC at PS Atroli, District Aligarh. PW-2 alongwith PW-4 and PW-6, the other witnesses who were at the taxi stand when the Indica had been booked, identified the person in the photograph to be the same as the one who had booked the Indica on 23rd January, 2004. The photograph Ex. P-1 was seized by the police vide seizure memo Ex. PW-2/D and production warrants were issued against the appellant. It was found that appellant Devender was involved in a number of similar cases and despite production warrants, he was not produced. The IO received a letter from the appellant dated 24th April, 2004 Ex. PW-16/F where the appellant expressed to disclose entire facts to the case and requested to send production warrants to Bulandshahr. On 13th June, 2005, the appellant was produced in the Court of learned MM, New Delhi and was arrested vide arrest memo Ex. PW-8/A. Pursuant to his disclosure statements, the appellant also pointed out the place where the dead body was thrown. Even though PW-2 identified the appellant as the person who had taken the Indica car on 23rd January, 2004, the car itself was not recovered. A charge-sheet under Section 365/392/302/201/120B/34 IPC was filed and charges were framed to which the appellant pleaded not guilty and claimed trial. The prosecution examined 16 witnesses in support of their case, statement of the appellant was recorded under Section 313 CrPC and no evidence was led in defence. Since the appellant was involved in several cases, he could not be produced in the Trial Court for more than two years.”

        Analysis

                 Needless to say, the Division Bench then states in para 14 that, “Pursuant to examination of the evidence on record and appreciation of the contentions of the parties, this Court is of the considered view that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt for inter alia the following reasons.”

                        It is worth mentioning that the Division Bench then lays bare in para 15 that, “The appellant had been identified by three persons as the person who had hired the Tata Indica car HR-38FT-3125 driven by driver Dinesh Sharma (since deceased) on 23^rd January, 2004 at about 12 : 00 p.m. for visiting Narora, District Bulandshahr, U.P. The testimonies of these three witnesses PW-2, the owner of the taxi stand; PW-6, the brother of PW-2 and present at the taxi stand; and PW-4, another driver working at the taxi stand are clear, cogent, consistent and without any material contradictions. All three identified the appellant as the one who had hired the taxi on that day and also that Dinesh Sharma was the driver who had left in that taxi and had not returned on that or ever since. Their testimonies were also consistent regarding the appellant having given his address J-124, Sarita Vihar at the time of booking of the taxi but no one was found of that name or description at that address nor had the occupants of that Sarita Vihar address booked any taxi. It was therefore evident that the appellant while booking the taxi had given a false address thereby attempting to conceal his real identity and location to the owners of the taxi stand. The omission in the booking register Mark 16/X to note the name of the customer hiring the taxi (though the address J-124 Sarita Vihar was noted) would not discredit the otherwise consistent testimonies of three eyewitnesses to the fact of hiring the taxi by the appellant. Further, the identification of the appellant through the photograph by PW-2 at PS Atroli is fully corroborated by the testimony of PW-1, the then SHO at PS Atroli who had investigated the other case in which appellant was apprehended. The appellant’s contention that PW-2’s identification through the photograph lacks particulars and therefore must be discredited is therefore untenable. There is nothing on record to suggest that the witnesses knew the appellant or had any prior connect or enmity or ill-will to accept any suggestion by the appellant of false implication by these witnesses. Hectic and consistent efforts made by PW-2 and his associates, and PW-3 the brother of the deceased was obviously an honest and valiant attempt to locate the car (which belonged to PW-2) and the driver, after both went missing on 23^rd January 2004.”

           Be it noted, the Division Bench then notes in para 16 that, “As per the call detail records, Ex. PW-7/DA the last recorded call on the phone number of the deceased 9810623545 was at 12 : 44 : 01 on 23^rd January, 2004 (outgoing call to a number 9899459385). One other previous call at 12 : 24 : 57 which was also to the same number as an outgoing call were registered after the deceased would have started driving alongwith the appellant post the booking of the taxi at about 12 : 00 noon. As per the testimony of PW-12, the Nodal Officer of Airtel, there was no call detail available of 23^rd January, 2004 after 12 : 44 : 01 which was the last call registered on the mobile number of the deceased. It is evident that the deceased was not in a position to use his mobile thereafter.”

                              Do note, the Division Bench then discloses in para 17 that, “The recovery of the dead body of the deceased victim was on 25th January, 2004 from Hazara Nahar by the police team from PS Bulandshahr as is evident from the testimony of PW-14. The dead body was recovered with a rope around the neck and the photograph of that dead body was shown to the police team from Delhi accompanied by PW-3, the brother of the deceased, who identified the body.”

                     It would be instructive to note that the Division Bench then lays bare in para 18 that, “The post mortem report Ex. PW-13/A dated 25^th January, 2004 clearly shows that the death was due to asphyxia as a result of strangulation and since the time of death was about 4 days. The estimate of 4 days would not be exact or totally accurate since the deceased was clearly alive on 23^rd January, 2004 when the taxi had been hired by the appellant. It would be safe to assume that the murder of the deceased would have taken place on 23^rd January, 2004 itself being approximately 2-3 days prior to the post mortem. It is settled law that the time of death indicated in a post mortem report is only approximate and can have a range of error [refer to inter alia A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714, Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1]. PW-13 in his cross examination also states that the time of death in his report is only an approximate estimate.”

                       It is worth noting that the Division Bench then points out in para 19 that, “It is quite evident from the testimony of PW-1, the SHO of PS Atroli that when the appellant was apprehended with another Tata Indica car having a dead body in the rear seat, the body had a rope “fanda” around the neck. The dead body of the deceased as recovered from the Hazara Nahar also had a rope around the neck when found. Notwithstanding that there was an established chain of circumstance by which the prosecution proved the guilt of the appellant, this Court notes their submission that this could indicate a modus operandi of the appellant in hiring cars/taxis, murdering the driver and selling of the cars as noticed throughout these cases.”

                             Most notably, the Division Bench then hastens to add in para 20 that, “Most importantly, the prosecution had been able to present at least three witnesses who were able to give cogent and clear last seen evidence of the hiring of the car by the appellant from the taxi stand of PW-2 viz. PW-2, PW-4 and PW-6. All three had identified the appellant in the Court and PW-2 had originally identified the appellant as the one who had been arrested by PS Atroli, District Aligarh, U.P. This last seen evidence alongwith a lack of explanation by the appellant in his statement recorded under Section 313 Cr.P.C. to present any special circumstances exclusively within his knowledge regarding the fate of the car and the driver which he had hired from PW-2’s taxi stand, on 23rd January, 2004 would clearly inculpate the appellant for the offences for which he is charged by the prosecution.”

                               No less significant is what is then pointed out so usefully in para 21 stating that, “The learned APP has appropriately relied on a decision of this Court in Arvind @ Chhotu v. State, 2009 SCC OnLine Del 2332 where, in Para 103 of the said judgment, it is stated:

“103. We may summarize the legal position as under:—

(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.

(ii) It is not necessary that in each and every case corroboration by further evidence is required.

(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.

(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.

(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.

(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.

(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory.

The above circumstances are illustrative and not exhaustive. At the foundation of the last-seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction.”(emphasis supplied).”

Conclusion 

As a corollary, the Division Bench then holds in para 22 that, “In light of the above discussion and analysis, this Court finds that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt and duly supported by circumstantial evidence by the prosecution. Consequently, this Court finds no error in the impugned judgment of conviction and order on sentence by the learned Trial Court.”

Further, the Division Bench then directs in para 23 that, “Appeal is accordingly dismissed.”

Finally, the Division Bench then concludes by holding in para 24 that, “Copy of this judgment be uploaded on website and be also sent to Superintendent, Tihar Jail for intimation to the appellant and updation of records.”

             In a nutshell, we thus see that the Delhi High Court has clearly held in no uncertain terms that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt supported by circumstantial evidence that was forwarded by prosecution. So the conviction of the lower court was thus rightly upheld and then finally the Delhi High Court dismissed the appeal that was filed by the appellant! No denying it!

The post Guilt Of Appellant For Murder Of Deceased Proved Beyond Reasonable Doubt Supported By Circumstantial Evidence By Prosecution: Delhi HC appeared first on Legal Desire Media and Insights.

                                To start with, this brief, brilliant and balanced judgment authored by a single Judge Bench of the Karnataka High Court comprising of Justice Sachin Shankar Magadum sets the ball rolling by first and foremost putting forth in para 1 that, “The captioned writ petition is filed by the defendant No.2 questioning the order dated 30.05.2022 passed on memo filed by the petitioner/defendant No.2. Under the impugned order, the learned Judge has declined permission sought by the counsel appearing for the present petitioner/defendant No.2 to be present at the remote point while recording evidence of defendant No.2.”

              To put things in perspective, the Bench then envisages in para 2 that, “The present petitioner is a resident of Michigan, USA and is aged about 87 years and is suffering from various health issues. Therefore, the petitioner filed applications in I.A.Nos.27 and 28 under Rule 6 of the Video Conferencing Rules and also application in I.A.No.36 under Order 18 Rule 16 of CPC to examine the petitioner immediately. The said applications were allowed by the Trial Court thereby permitting the present petitioner/defendant No.2 and defendant No.5 to record their evidence through Video Conference. The Trial Court accordingly with the consent of parties to the suit, fixed the date of recording evidence through video conferencing on 06.06.2022. The petitioner filed memo on 25.05.2022 requesting the Court to make further e-mail correspondence towards logistic support and to inform the remote point coordinator to issue 5 entry passes to enable the petitioner to have assistance of his Advocate and also attendants.”

     While stating the precise reason behind filing of petition, the Bench then specifies in para 3 that, “The contesting defendants filed statement of objections to the said memo. The learned Judge vide impugned order at Annexure-A has refused to permit the petitioner’s Advocate to be present at the remote point while recording evidence of defendant No.2. It is this order which is under challenge.”

                            To be sure, the Bench then states in para 14 that, “Before I advert to the controversy involved between the parties, it would be useful for this Court to refer to the relevant Rules framed by this Court which is titled as “Rules for Video Conferencing for Courts”. The relevant definitions are culled out as under:

“2(v) ‘Court Point’ means the Courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.

2(x) ‘Remote Point’ is a place where any person or persons are required to be present or appear through a video link. 2(xii) ‘Required Person’ includes:

1. the person who is to be examined; or
2. the person in whose presence certain proceedings are to be recorded or conducted; or
3. an advocate or a party in person who intends to examine a witness; or
4. any person who is required to make submission before the Court; or
5. any other person who is permitted by the Court to appear through video conferencing.””

                            Needless to say, the Bench then mentions in para 21 that, “The respondents are objecting the presence of counsel at the remote point. The moot question that has to be examined before this Court is, as to whether the Court is vested with discretion to permit the counsel on record to be present at the remote point along with his client?”

                               It would be instructive to note that the Bench then enunciates in para 22 that, “Rule 14 refers to ‘Conduct of proceedings’. It would be useful for this Court to refer to Rules 14.1 and 14.7 which reads as under:

“14.1 All Advocates, Required Persons, the party in person and/or any other person permitted by the Court to remain physically or virtually present (hereinafter collectively referred to as participants) shall abide by the requirements set out in Schedule I.

14.7 The Court shall satisfy itself that the Advocate, Required Person or any other participant that the Court deems necessary at the Remote Point or the Court Point can be seen and heard clearly and can clearly see and hear the Court.””

                                 For sake of clarity, the Bench then clarifies in para 23 that, “On perusal of Rule 14.1, it is clearly evident that the said Rule clearly contemplates and enables all Advocates, required persons, party-in-person either to remain physically or virtually present who are collectively referred to as participants. The only rider to the said sub-rule is that the participants are required to abide by the requirement set out in Schedule-I to the Rules. Therefore, the “Required Person” as defined under Rule 2(xii) would not necessarily mean that it is only the witness, who has to be examined, has to be physically present at the remote point. This Court is unable to understand as to how the counsel on record can be denied a right of audience at the remote point. Rule 14 clearly contemplates and permits all Advocates including required persons or party-in-person to be physically present at the remote point. Further, Rule 14.7 also gives discretion to the Court in a given case to permit the Advocate or any other participants that Court deems necessary at the remote point or Court point.”

                 Frankly speaking, the Bench then observes in para 24 that, “The definition “Required Person” and further persons who can be permitted to be present at the remote point as contemplated under Rule 8.11 cannot be so narrowly construed and interpreted so as to exclude a counsel. If such a proposition is accepted, that would take away the valuable rights of a client who is entitled for apt assistance by his counsel on record. It is an established tradition that a trusting relationship between a client and Advocate is necessary for effective representation. Therefore, legal assistance before a witness is examined or cross-examined plays a vital role. The counsel appearing for either of the parties are the most important actors of most court room interactions. The Advocates on record are the central influence in the court room. Therefore, personal contact between a counsel and his client stand together in Court and therefore, is deemed very important in establishing trust which would ultimately result in establishing a litigants’ faith in the legal system overall and this trust is often built by the Advocates on record who are also officers of the Court. Mere presence of Counsel of a deponent under cross-examination at remote point would result in either prompting or tutoring the witness.”

   Most forthrightly, the Bench then states in para 25 that, “The definition “Required Person” under Rule 2(xii) coupled with Rule 8.11 authorizing a coordinator at the remote point to ensure that no person is present at the remote point cannot be read in isolation. The above said relevant rules have to be conjointly read along with Rules 14.1 and 14.7. A witness is entitled for legal assistance even when he is cross-examined. However, at the time of cross-examination, his counsel cannot prompt or tutor him. Based on mere apprehension, the above said rules cannot be narrowly interpreted so as to exclude the counsel on record who is an integral part of legal system and plays a vital role in dispensation of justice. The Advocates admittedly play a role as an Officer of the Court. His presence at the time of cross- examination of his witness is further more essential. It is a common fact that cross-examination often involves a battle of wits between cross-examiner and witness. At times, Advocates cross-examining the witness may have to use guile to expose the unreliability of the witness, as when the latter is lulled into a false sense of security and does not realise that he is being trapped or set up for questions which will effectively challenge him. Advocates often adopt such an approach which are essential to break the effect created by the witness in examination-in-chief or in his affidavit of the evidence in chief. Therefore, it is the counsel appearing for the witness who is subjected to cross-examination can object to the questions posed to the witness which are found to be contrary to ethical rules. In such circumstances, it is the Advocate who has to meticulously watch the proceedings of cross-examination and has to be vigilant to see that Advocate who is cross-examining does not lie or put untruths to the witness. The essence of the principle here is that the cross- examiner must not act dishonestly. He must not mislead the Court as well as the witness who is being cross-examined. Therefore, the presence of Advocate also plays a vital role when his witness is being cross-examined at the remote point. The presence of Advocate at the remote point would create a sense of security and would help him to face test of cross-examination. That cannot be misconstrued to such an extent that it would amount to prompting or tutoring. His mere presence at the remote point will not violate the Rules.”

          Quite commendably, the Bench then holds in para 26 that, “Therefore, in the present case on hand, defendant No.2 is entitled to seek legal assistance even when he is being cross-examined by way of video conferencing. Using video conferencing, the defendant’s rights cannot be sacrificed in the name of procedural efficiency. The adversarial model which is adopted for several decades cannot be abandoned under the garb that the Rules relating to video conferencing does not permit. Adversarialism is a cornerstone of the legal process; the system is predicated on this tenet. Denial of legal assistance while recording ocular evidence of a witness through video conferencing violates fundamental fairness.”

                            In the present context, the Bench then also makes it clear in para 27 that, “Looking to the recent trend, video conferencing does have a place in the legal system. The challenge is not to exclude it but to use it responsibly. The video conferencing can produce better results, but at the same time, certain highlighted issues which may prop up down the line have to be addressed effectively. The client is entitled to seek assistance and therefore, the clients interaction with his counsel on record is quite essential to a fair trial and a person who is supposed to be cross-examined is entitled to meet his counsel ahead of time to discuss every anticipated questions, concept or a piece of evidence. The Rules that are framed by this Court governing recording of evidence through video conferencing require all participants to follow the Rules in terms of Schedule-I which is annexed to the Rules.”

                               As a corollary, the Bench then observes in para 28 that, “It is in this background, the proposition floated by the counsel appearing for the contesting respondents cannot be acceded to. An Advocate should always be with his client. The Rules framed by this Court do not intend to support plaintiffs team or a defence team. The counsel appearing for respective clients are entitled to stand together and the same is necessary for an attorney-client relationship to function properly. A medium that interferes with the court’s main mission should be eliminated.”

         Quite forthrightly, the Bench then also clearly states in para 29 that, “The contesting parties are entitled to have a discussion with their Advocates on record as they need to discuss important decisions concerning vital documents, basic legal strategy prior to appearing in Court. Personal meetings are better for hastening out case strategies, fact gatherings and basic legal tactics. Therefore, it is in this context, if the proposition of respondents is accepted and if counsel appearing for a witness who is supposed to be cross-examined is denied a right of audience at a remote point, the apprehension that the ocular evidence recorded through video conferencing will not satisfy the prescribed requirements of a fair trial and the same would create a doubt in regard to legitimacy of a legal process may turn out to be a hard reality. Therefore, denial of right of audience to a counsel on record has its own ramifications and may result in violation of fundamental fairness and may also have impact on due process of law.”

     Furthermore, the Bench then states in para 30 that, “By introducing technology and by bringing in recording of ocular evidence through video conferencing, an attempt is made in all good faith to meet the standards of face-to-face trial. By bringing in new Rules, the Courts have to meet the established standards and traditions in recording evidence physically in the open Court. The dignity and ritual of physical presence in the Court was found to be absolutely necessary for public perception of justice. A very ceremony of trial and presence of fact finder may exert a powerful force for truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Now in a given case, where parties consent to record ocular evidence through video conferencing has to meet the above said standards. There is an apprehension that non-verbal cues are unavailable or harder to read when associated with video conferencing. Therefore, the presence of counsel of a witness to be cross-examined at a remote point becomes further more essential.”

                               What’s more, the Bench then stipulates in para 31 that, “In the light of the discussions made supra, now let me see whether the Court is vested with discretion to permit the counsel appearing for a witness who is supposed to be cross-examined to be present at the remote point. The remote point has to be considered as an extended court room. A Court includes a physical court and a virtual court and if a Court can have court point at one or more place, then the Rules clearly prescribe that the counsel on record can be present at all point either in the Court physically or through a video link or at a remote point physically. Rule 14.1 clearly contemplates persons who are entitled to participate in court proceedings. Rule 14.1 clearly indicates that all Advocates and required persons are entitled to remain physically or virtually present. A discretion is also vested with the Court under Rule 14.7 and it is well within the discretion of the Court in a given set of facts to permit Advocate, required person or any other participants that court deems necessary at the remote point or at the court point. If at all any mischief is played during the course of recording evidence, the Court is better placed to hold an enquiry in regard to any mischief that would be complained.”

         Of course, the Bench then rightly points out in para 32 that, “Unlike face-to-face hearing, a Judge has a privilege of replaying the recording and find out as to whether the witness is hoaxed or tutored. The court can also examine whether counsel on record has interfered and assisted the witness under cross-examination. The guidelines set out in Schedule-I coupled with Rule 5.6.4 clearly provides adequate protection. It is in this background, this Court would find that the apprehension of the respondents and objections raised in regard to entitlement of counsel on record to be physically present at remote point appears to be misconceived.”

                               Most significantly, the Bench then lays down in para 33 that, “If the order under challenge is tested in the light of the above said discussions made supra, this Court is of the view that the order under challenge is not at all sustainable. Mere bald allegations that if the counsel is permitted to be physically present at remote point, then every possibility of petitioner getting prompted, tutored or coaxed cannot be acceded to and such an objection is not at all sustainable. In fact, Rule 14 which lays down guidelines for conducting proceedings through video conferencing clearly contemplates and authorizes all Advocates to be present physically at remote point. A discretion is also vested with the Court in a given set of facts to permit the counsel or any other unconnected participants to be physically present at the remote point. It is in this background, this Court would find that the learned Judge erred in not exercising discretion judiciously. Therefore, the finding of the learned Judge that counsel appearing for the present petitioner/defendant No.2 is already present at the remote point and he can join recording of evidence by joining the link does not satisfy the requirements of a fair trial. The learned Judge erred in not exercising judicial discretion by permitting the counsel appearing for defendant No.2 to be physically present at the remote point.”

                                 In addition, the Bench then also most commendably notes in para 34 that, “If a coordinator at the remote point is already available and if the entire ocular evidence is video recorded, any slight mischief can be easily taken notice of and the consequences would follow if the counsel contravenes any of the courtesies and protocols applicable to a physical Court. Therefore, I am of the view that the counsel appearing for the defendant No.2 is entitled to be physically present at the remote point.”

                                     Finally, the Bench then concludes by holding in para 35 that, “For the reasons stated, supra, I pass the following:

                            ORDER

(i)    The writ petition is allowed;

(ii)  The impugned order dated 30.05.2022 passed in O.S.No.66/2016 on the file of the III Additional City Civil & Sessions Judge, Bengaluru is set aside. Consequently, the memo dated 25.05.2022 filed by the petitioner/defendant No.2 is allowed;

(iii) The coordinator at the remote point shall ensure that while recording evidence of the petitioner/defendant No.2, the persons who are permitted to be present at the remote point will not indulge in interfering with his cross-examination;

(iv)  Before commencing with the recording of evidence of petitioner/defendant No.2, the Court shall satisfy itself that the counsel appearing on behalf of petitioner/defendant No.2 can be seen and heard clearly at the remote point;

(v) The Court shall also monitor and take all necessary precautions that recording of ocular evidence of petitioner/defendant No.2 is conducted by strictly following the Rules.”

                                           In essence, the Karnataka High Court has thus made the entire picture pretty clear in this notable judgment about counsel being entitled to physically accompany a party to remote point while giving evidence via video conferencing. We have already discussed it in detail. It merits no reiteration that all the courts must definitely pay heed to what the Karnataka High Court has held so very explicitly in this leading case!

The post Counsel Entitled To Physically Accompany Party To Remote Point While Giving Evidence Via Video Conferencing: Karnataka HC appeared first on Legal Desire Media and Insights.

                                               To start with, the ball is set rolling in para 1 of this notable judgment wherein it is observed by Justice C Hari Shankar of Delhi High Court that, “By this application, the plaintiff seeks a restraint from release of a film “Lootcase” slated to be released tomorrow, i.e. 31^st July, 2020.” It is then stated in para 2 that, “The plaintiff claims to be the author and, consequently, the first copyright owner, of a script for a film titled “Tukkaa Fitt”. The script was written in 2010-2011, and was registered with the Film Writer’s Association, Mumbai on 14^th March, 2011.”

                                       To say the least, para 3 then states that, “It is further asserted, in the plaint, that the plaintiff was approached by the Director of M/s AAP Entertainment Limited, in 2011, for permission to utilize the script of the plaintiff and make a motion picture “Tukkaa Fitt”. The plaintiff agreed, whereupon Mr. Premal Parekh of M/s AAP Entertainment Limited, took over as producers of the proposed film “Tukaa Fitt”.”

                                               What ensued next is stated in para 4 that, “Thereafter, it appears that disputes arose between the plaintiff and the said producers, which came to be settled by the Disputes Settlement Committee of the Film Writer’s Association, Mumbai on 21^st September, 2011.”

                                           Furthermore, it is then pointed out in para 5 that, “It is further averred, in the plaint, that the production of the film “Tukkaa Fitt” was completed in November 2012 but that, as the producer of the film, unfortunately, died, the release of the film was halted. That position, it is stated, continues till date and the film “Tukkaa Fitt” is yet to be released.”

                                          Notwithstanding to what has been stated, it is then brought out in para 6 that, “Despite this fact, it is asserted in the plaint that as the trailer of the film “Tukkaa Fitt” was released on You Tube and other public media platforms in March, 2011, the work of the plaintiff has been in the public domain since then.”

                                    Be it noted, para 7 then envisages that, “It is further asserted, in the plaint, that on 18^th July, 2020, the plaintiff’s assistant informed the plaintiff of the imminent release of the film “Lootcase”, tomorrow, i.e. 31^st July, 2020. The plaintiff claims, that on getting to know this fact, he viewed the trailer of the film “Lootcase” and was shocked to find substantial similarities between the plot of the said film “Lootcase” and his script. A tabular statement of the said similarities, has been set out in para 13 of the plaint.”

                                    Needless to say, it is then aptly noted in para 8 that, “It is on this foundation that the plaintiff seeks an interim injunction, restraining release of the film “Lootcase”, to be released tomorrow, i.e. 31^st July, 2020.”

                                 After hearing the lawyers, it is then observed in para 15 that, “Having heard learned Counsel at length, I am unable to convince myself that any case for grant of interim relief can be said to exist.”

                               More significantly, the Delhi High Court then minces no words in para 17 to lay down explicitly, elegantly and effectively that, “It is clear, from a reading of very first principle, set out in the aforesaid paragraph, there is no copyright in any idea, subject, matter, theme or plot, and violation of copyright is confined to the form, manner and arrangement and the expression of the idea by the author of the copyright at work. In the present case, there is no earlier film, based on the script of the plaintiff, which could form the basis of a claim to copyright. The plaintiff as Mr. Neeraj Kishan Kaul correctly points out, bases his cause of action on a script, which never came in the public domain, and public knowledge of which is being sought to be attributed on the basis of a trailer, for a film which never saw the light of day. The cause of action, on the basis whereof the plaintiff premises his case, therefore, essentially remained inchoate. The trailer was not made by the plaintiff and the makers of the trailer have not ventilated any claim for violation of copyright. It is prima facie questionable, in the circumstances, whether any claim of copyright can be laid by the present plaintiff at all, in such circumstances.”

                                           Equally significant if not more is what is then stated in para 19 that, “On its face, the plot essentially revolves around a suitcase, carrying money, being lost, and various persons, including gangsters chasing to get hold of it. The plot idea is as old as the hills, and, without meaning any disrespect to the ingenuity of the plaintiff as a scriptwriter, it can hardly be said, prima facie, that the script of the plaintiff’s screenplay – which has been placed on record but the details of which this Court, for obvious reasons, deems it appropriate not to reveal – can lay claim to any such novelty as could be said to have been filched by the defendant. In fact, a comparison of the salient features of upcoming “Lootcase”, as manifested from the aforesaid trailer, vis-à-vis plaintiff’s script, reveal that there are considerable features in the plaintiff’s script which are missing in the trailer, and there are certain elements of the story as reflected in the trailer, which are not to be found in the script of the plaintiff. The mere fact that certain plot points, between the plaintiff’s script and the story of the upcoming film “Lootcase” as reflected in the trailer released on You Tube, may be common, cannot be the basis to lay a claim to copyright, as the plaintiff has chosen to do. The plot points, on which the plaintiff relies, such as persons losing bags of money, claiming the same and such bags being sought by members of the underworld, are plot points, which may figure in more than one cinematographic film and cannot, therefore, be said to be the exclusive province of the plaintiff. That apart, no copyright exists in a mere idea, plot or theme, as authoritatively held in R.G. Anand Vs. M/s Delux Films 1978 (4) SCC 118.”

                                 Be it noted, it is then observed in para 20 that, “There is yet another reason as to why I am not inclined to accede to the prayer of the plaintiff for grant of ad interim injunction. Mr. Aggarwal has acknowledged that, at the very least, the trailer of the film “Lootcase” was released on 16^th July, 2020. I may note, in this context, that Mr. Neeraj Kishan Kaul contests this statement and submits that the promos of his client’s film “Lootcase” had been in the public domain since June, 2019. Either which way, there is no justification for the plaintiff having approached this Court on the eve of the release of the film “Lootcase”, which is slated to be released tomorrow, i.e. 31^st July, 2020 and seeking injunction against such release. It is further submitted by Mr Kaul, that the story of the film has been covered in the print as well as electronic media since September, 2019.”

                              To be sure, it is then made abundantly clear in para 21 that, “This case, therefore, appears, prima facie, to constitute yet another example of the misuse of the judicial process”.

                                     Going ahead, it is then held in para 22 that, “In view of the above discussions, there is no case, whatsoever, for grant of any interim injunction, staying the release of the film “Lootcase”, twenty-four hours before it is due for release.” Finally, it is then held in the last para 23 that, “The application is dismissed.”

                                          All said and done, this extremely laudable, landmark and latest judgment by Justice C Hari Shankar of the Delhi High Court makes it absolutely clear that there can be no copyright in an ideas/theme. Therefore, it also refused to pass an injunction order as prayed by the plaintiff just shortly before the film “Lootcase” was to be released on 31^st July, 2020! Very rightly so! Also, it cannot be ignored that the promos of the film “Lootcase” had already been in public domain since June 2019 and thus the plaintiff who himself belonged to the film industry could not feign ignorance of the same! This alone explains why the Delhi High Court was of the view that the case appeared to be another example of “misuse of the judicial process”! No denying it!

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                               To begin with, this latest, landmark and laudable judgment authored by Justice Navin Sinha for himself and Justice Krishna Murari of the Apex Court Bench sets the ball rolling in para 2 by first and foremost observing that, “The appellant is aggrieved by orders dated 07.12.2016 and 14.06.2017, rejecting the writ petition as also the review application arising from the same.”

                                         While elaborating in detail, the Bench then observes aptly in para 3 that, “The appellant, during the year 1993 imported 96 tons of the chemical “Acetic Anhydride” under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 through the Inland Water Container Depot (ICD), Hyderabad under the Advance Licence Scheme. It claimed clearance of the consignment free of import duty in terms of Customs Notification nos. 203/1992, 204/1992, both dated 19.05.1992. The notification contained a scheme permitting import without payment of customs duty subject to fulfillment of certain norms and conditions. The Notification nos. 203/1992 and 204/1992 were amended by a Notification no. 183/1993 dated 25.11.1993, by which the subject imports became liable for duty, the exemption having been withdrawn. The Notification dated 25.11.1993 was further amended by another clarificatory Notification no. 105/1994 dated 18.03.1994 permitting the import of the chemical without customs duty subject to certain terms and conditions. The clarificatory notification was necessitated to obviate the difficulties faced by the importers like the appellant, who had imported the chemical under the advance licence issued by the Director General of Foreign Trade prior to the amendment Notification no. 183/1993 dated 25.11.1993.”

                                             While continuing in the same vein, the Bench then further very rightly points out in para 4 that, “The appellant was allowed to clear the consignments under the aforesaid three Bills of Entry without payment of duty. Subsequently the respondents issued show cause notice under Section 28 (1) of the Customs Act, 1962 with regard to the same consignments as having been imported after 25.11.1993. The appellant made a representation on 20.11.1997 seeking exemption. It was considered favourably in respect of three other consignments under Bill of Entry No. 312 dated 12.09.1993, Bill of Entry No. 28 dated 10.02.1994 and Bill of Entry No. 27 dated 09.02.1994. The entire consignments were imported under the same advance licence. In pursuance of the show cause notice the appellant was held liable to duty by order dated 12.2.1998 with regard to the consignment under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 respectively though these were also under the same advance licence. The respondents while considering the reply to the show cause notice and fixing liability for payment of customs duty did not make any reference to their notification dated 18.03.1994. The Commissioner (Appeals) on the same reasoning rejected the appeal leading to the institution of the writ application.”

                                         Interestingly enough, it is then disclosed in para 5 that, “Dismissing the writ application, the High Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief.”

                         On the one hand, it is pointed out in para 6 that, “Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No. 14288 of 2004 (CC No. 5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary.”

                          On the other hand, it is then just aptly pointed out in para 7 that, “Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified.”

                                        On the whole, the Bench then observes rightly after listening to both the sides in para 8 that, “We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfillment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption.”

                                             Most remarkably, it is then very rightly held in para 9 that, “It is unfortunate that the High Court failed to follow its own order in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.”

                                  No doubt, it is a brief but brilliantly written judgment. Before concluding, it holds in the last para 11 that, “The impugned orders are therefore held to be unsustainable and are set aside. The appeals are allowed.” Also, it ably cites the relevant case law titled National Insurance Co. Ltd. vs. Jugal Kishore (1988) 1 SCC 626 in para 10 and briefly stated very rightly holds that, “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.” There has not even an iota of doubt been left by the Apex Court Bench in this leading case to hold most clearly, convincingly and categorically that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.”

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                                      To start with, this notable judgment authored by Justice Deepak Gupta for himself and Justice Aniruddha Bose and delivered on January 13, 2020 sets the ball rolling in para 1 wherein it is observed that, “It’s so sad! We start with a lament because institutions set up to protect children have virtually forsaken them in a fight over their so called jurisdictions.” What more should the Apex Court write right at the outset to express its strongest displeasure on the way in which this ugly squabble broke out between the two top institutions meant to raise their voice in favour of children? The Apex Court has every reason to feel so strongly on this!

                                         Needless to say, it is then pointed out in para 2 that, “India is a signatory to the United Nations Convention on the Rights of the Child, 1989 which makes it obligatory upon the signatory States to take all necessary steps to protect the rights of the children as set out in the Convention. The Government of India enacted the Juvenile Justice (Care and Protection of Children) Act, 2000. This was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as ‘the JJ Act’).”

                                            To be sure, para 3 then states that, “It was felt expedient to enact a law constituting special commissions to protect the rights of children. Parliament enacted the Commissions for Protection of Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’). The CPCR Act envisages the constitution of a National Commission for Protection of Child Rights (hereinafter referred to as ‘NCPCR/National Commission’) under Section 3 and the State Commissions for Protection of Child Rights (hereinafter referred to as ‘State Commissions’) under Section 17. We shall deal with their respective functions and powers at a later stage but there can be no manner of doubt that these two Commissions – one at the National Level and the other at the State level – are expected to function in a spirit of cooperation. We expect such Commissions to consult, discuss and cooperate with each other while exercising their powers and fulfilling the powers and fulfilling the duties enjoined upon them by the CPCR Act. These two institutions are in the nature of siblings. The goal which they both set out to achieve is the same, viz., protecting children from all sorts of abuse, exploitation etc. We see no reason why there should be any disharmony and lack of coordination between these two institutions. This non-cooperation and lack of coordination can only occur when the persons manning the institutions put their own interests over the interest of the children. It is only when those in-charge of such commissions give themselves so much importance that they forget that they are the creation of statute, the only purpose of which is to protect children.”

                                           While continuing in the same vein and pooh-poohing the internecine squabble between the Commissions, para 4 then goes on to state that, “This case is a classic example where in the fight between the State Commission and the National Commission the children have been, all but forgotten. We are sorry that this Court has to spend its time resolving such disputes. This Court as well as the two major parties litigating before us definitely have better things to do.”

                                  To recapitulate, para 5 then goes on to reveal that, “From the material on record, it appears that news reports were published some time in February, 2017 indicating that a child-care institution based in Jalpaiguri in West Bengal had indulged in large scale trafficking of children. The NCPCR took cognizance of these reports on 03.03.2017 and two members of the NCPCR went to Jalpaiguri on 07.03.2017. They requested the State officials to provide them some information which, according to the NCPCR, was not provided. They finally summoned the Additional Director General of Police (ADGP), Criminal Investigation Department (CID), West Bengal (Respondent no. 1 herein) to appear before the NCPCR. This gentleman, instead of appearing before the NCPCR, chose to file a writ petition challenging the jurisdiction of the NCPCR to summon him. The High Court, by the impugned order dated 29.08.2017, stayed the direction of the NCPCR mainly on the ground that since the State Commission had taken cognizance of the matter on 24.02.2017, the NCPCR had prima facie no jurisdiction.”

                              Going to the root of the matter, para 16 then states that, “In the present case, the dispute is who started inquiry first – whether it was the WBCPCR or the National Commission. As far as the National Commission is concerned, there is no dispute that it started its inquiry on 07.03.2017 when its members visited Jalpaiguri to inquire into the matter. The stand of the National Commission is that they were, for the first time, informed on 24.07.2017 that the State Commission has taken cognizance and is inquiring into the matter even though they had written various letters to the various officials including the District Magistrate and the police officials in this regard. From the list of dates filed by the WBCPCR, it appears that on 12.07.2016 the Director, Child Rights and Trafficking, West Bengal (for short ‘the Director, CRT’) wrote to the District Magistrate, Jalpaiguri seeking a report on the illegal child trafficking there. An inquiry team was formed by the District Magistrate, Jalpaiguri on 0912.2016 and a report was sent to the Director, CRT on 11.01.2017. Thereafter, the Director, CRT passed an order that the Specialised Adoption Agency (for short ‘the SAA’), Jalpaiguri is not functioning as  per the provisions of Adoption Guidelines, 2015 and the JJ Act and 15 children from the SAA Jalpaiguri, run by the North Bengal People’s Development Centre (for short ‘the NBPDC’) were transferred to other institutions. On 17.01.2017, the Central Adoption Resource Authority (for short ‘the CARA’) filed a complaint with the CID, West Bengal. On 22.01.2017, a report appeared in local newspaper about this child trafficking racket. On 15.02.2017, a team was constituted by the CID, West Bengal to investigate the complaint made by the CARA. On 16.02.2017, a team of CID, West Bengal went to Jalpaiguri. On 17.02.2017, a letter was allegedly sent by the Chairperson of  the WBCPCR to the District Magistrate, Jalpaiguri informing that the State Commission had taken cognizance of the report published in the daily newspaper on 22.01.2017. On 19.02.2017, a formal First Information Report (FIR) was registered in the matter. The report dated 11.01.2017, referred to above, was  sent to the WBCPCR on 24.02.2017. Thereafter, news item again appeared on 26.02.2017 and two women officials of the concerned adoption centre were arrested. Admittedly, NCPCR took note of this instance on 03.03.2017 and on 07.03.2017 two members of the NCPCR visited Jalpaiguri to conduct an inquiry.”

                          While rapping the WBCPCR on its knuckles, the Bench of Apex Court then in para 17 minces no words to hold that, “We had requested learned counsel appearing for the WBCPCR to provide the file of WBCPCR in relation to this matter, which was provided. After going through the file, all that we can say is that the file is not maintained like an official file. The papers were kept casually. Except for the noting sheet, the other papers were not tagged. The other papers were also not paginated. In such a file, there can be additions and alterations at any stage. We, therefore, cannot place too much reliance on such a poorly maintained file and direct the WBCPCR to ensure that in future, files, especially of complaints, are maintained in a proper manner. According to the documents which form a part of this file, the WBCPCR took suo motu cognizance of the incident on 30.01.2017 on the basis of the newspapers report dated 22.01.2017. It was stated in the noting sheet that the matter be put up for appropriate action. Though this note is dated 30.01.2017 and was put up to the Chairperson, WBCPCR, it appears that the Chairperson wrote that she should be reminded after 10 days for follow up action. The file was again put up before the Chairperson on 13.02.2017. On 14.02.2017 it was ordered that the District Magistrate/District Children Protection Officer (DCPO) may be asked to submit a report. A draft letter was put up which was approved on 16.02.2017 and dispatched on 17.02.2017. The DCPO, Jalpaiguri sent the report through mail dated 24.02.2017. The matter was again placed before the Chairperson, who directed that the report be kept for records. The next noting on the file is of 15.03.2017. This note of 15.03.2017 has been put up with regard to the visit of the Chairperson and Secretary to Jalpaiguri on 10.03.2017 and 11.03.2017 to assist and monitor the situation after the recent cases of child trafficking. Though, the visit is dated 10.03.2017 and 11.03.2017, the note is put up on 15.03.2017 and approved on the same date. We are unable to understand why the note for the visit was not put up prior to the visit. We have perused the report prepared by the Chairperson of the WBCPCR and find that the report is more in the nature of allegations against the members of the NCPCR. The report virtually does not deal with the issue relating to trafficking of the children. We shall deal with this report at a later stage.”

                        While continuing in the same vein, it is then pointed out in para 18 that, “Even if we accept the record of the WBCPCR to be the gospel truth then also other than using the word ‘takes suo motu cognizance’ on 30.01.2017, the WBCPCR had taken no steps to inquire into the matter, which is the mandate of Section 13(1)(j) of the CPCR Act, till the visit of its Chairperson on 10.03.2017 and 11.03.2017. We make it clear that in every case a personal visit is not required but the manner in which this case has been dealt with leaves much to be desired. We see no reason why, if cognizance was taken on 30.01.2017, it was directed that the matter be placed for reminding the Chairperson to take follow up action after 10 days. These sort of matters brook no delay. Even after the matter was put up, no attempts were made to hold an inquiry. All that was done was to order the District Magistrate/DCPO to submit a report. That report was filed on 24.02.2017 and it was ordered that the report be kept on record. It appears that it is only after the visit of the members of the NCPCR that the WBCPCR actually felt it necessary to itself visit Jalpaiguri and take stock of the situation.” How can all this be overlooked?

                            Moreover, it is then pointed out in para 19 that, “As pointed above, as far as NCPCR is concerned, on 03.03.2017 a communication was sent by the NCPCR to the District Magistrate, Jalpaiguri wherein he was asked to give specific information with regard to the home in question. Thereafter, on 07.03.2017 two members of the NCPCR visited Jalpaiguri and even if the inquiry did not start on 03.03.2017, it definitely started on 07.03.2017. It found various deficiencies especially with regard to non-constitution of Child Welfare Committee (CWC) in New Jalpaiguri District from 23.08.2013-28.08.2015. It also found that ad hoc CWC was functioning which is against the provisions of law. Therefore, the NCPCR sent a letter on 16.03.2017 to the District Magistrate, Jalpaiguri seeking status of registration of homes, status of CWCs etc. On 23.03.2017, the NCPCR sent another letter to the District Magistrate specifically asking whether the WBCPCR had commenced an inquiry into the matter before the visit of the members of the NCPCR or after the initiation of the inquiry by the NCPCR. To this, no reply was given by the District Magistrate. Then, the NCPCR summoned the District Magistrate, Jalpaiguri on 12.04.2017 for personal appearance on 25.04.2017. The District Magistrate did not appear but send some information vide communication dated 21.04.2017. However, in this communication also there is no reply to the specific query as to whether the WBCPCR had initiated an inquiry into the matter. The NCPCR also took no steps for almost two months. On 20.06.2017 the NCPCR sought the following information from the ADGP, CID, West Bengal (respondent no. 1):-

“1. In this case, sale of as many as about 17 children has been mentioned in this case, in which children were sold both in the country and abroad. Since this organization has come in existence, how many children have been adopted through this organization, provide list of those to the Commission.

2. In this case, children were given to Non-Resident Indian and foreign couples both, hence this case seems to be case of international trafficking. Record concerning as to how many children have been given to Non-resident and foreign coupes be made available to the Commission.
3. According to newspaper, forged papers and papers of National Adoption Authority have been used in this crime in forged manner. Copies of papers seized by CID, statement & list/copies of evidence be made available to the Commission.
4. List of all the detained/arrested people in this case, copy of First Information Report, copies of all the investigation reports be provided to the Commission. Copy of the statement of detained people.
5. From the year 2013 to 2015 Child Welfare Committees had not been constituted in District Jalpaiguri in place thereof, Ad hoc Committee had been working. The following-mentioned papers/documents relating to this Committee be made available to the Commission:-
6. Copy of order for constituting ad hoc committee.
7. People included in the ad hoc committee, list of those with their names, posts/designations be made available to the Commission.

iii. Minutes of the meetings convened by ad hoc Committee during its tenure.

1. Decisions about how many children were taken by Ad Hoc Committee, copies of all the case files concerning with all those.

If any charge sheet has been filed in court, then copy thereof.””

                                   What’s more, it is then added in para 20 that, “On the same day i.e. 20.06.2017, the District Magistrate, Jaslpaiguri, was also directed by the NCPCR to give information pertaining to the constitution of ad hoc committee and members of the ad hoc committee. That very day another communication was sent by the NCPCR to the Department of Women & Child Development, West Bengal, to initiate an inquiry into the matter and inform the NCPCR about the report of the Government. According to the NCPCR, no response was received from any of the authorities. Thereafter, another reminder was sent on 13.07.2017. Left with no option, on 20.07.2017, summons were issued to the ADGP, CID, West Bengal to appear before the NCPCR in person on 25.07.2017 along with relevant documents. A communication was also sent to the Chief Secretary, West Bengal on 22.07.2017 asking for information. The ADGP, CID, West Bengal by letter/fax on 24.07.2017 informed the NCPCR that since WBCPCR has already proceeded with the matter, the NCPCR should stay its hand in the present matter. Meanwhile on 21.07.2017, a report was sent by the CID, West Bengal supplying some information but most of the information was not sent. Thereafter, the NCPCR issued summons to the ADGP, CID, West Bengal on 14.08.2017 to appear before the NCPCR on 29.08.2017. The ADGP, CID, West Bengal challenged these summons by filing a writ petition in the Calcutta High Court. The Advocate General of the State appeared for Dr. Rajesh Kumar, ADGP, CID, West Bengal. The High Court vide impugned order, prima facie, came to the conclusion that since the WBCPCR had taken cognizance of the matter on 24.02.2017, the NCPCR is denuded of its jurisdiction over the subject. The High Court, accordingly, stayed the summons.”

                                           While pooh-poohing the endless tussle which only served to worsen the matters further, para 21 then envisages that, “We are constrained to observe that in this clash of egos between the State Commission (WBCPCR) and the National Commission (NPCPCR) for this entire period, other than the police taking action, nothing was done on the administrative side to set matters right.”

                                      Of course, it is then acknowledged in para 22 that, “The police have acted, a case has been filed, accused have been arrested and we are told that most of the children have been reunited with their parents. We are purposely not commenting on the criminal aspects of the matter. We refrain from doing so because any comment from us may affect the trial of the accused who are entitled to a fair and free trial. In fact, since criminal proceedings in respect to the illegal adoptions had already started, no inquiry could actually be conducted by either of the two Commissions with respect to the same. However, the National Commission was definitely entitled to inquire as to why proper CWCs had not been constituted and under what orders were ad hoc CWCs functioning. The Commissions can also inquire into the factual aspects which led to the trafficking of the children, though not the actual crime itself. In fact, we are of the view that such inquiries are necessary so that such events do not occur in the future. In case, the CWCs had been properly constituted may be this unfortunate situation would not have arisen.”

                                              While castigating the shoddy manner in which the matters were dealt with, it is then stipulated in para 23 that, “Though we are of the view that an inquiry into the alleged illegal adoption could not be conducted because a criminal case had already been registered, at the same time, we cannot shut our eyes to the manner in which both the State Commission (WBCPCR), the National Commission (NCPCR) and the senior officials of the State CID have dealt with the matter. We have already commented on the lack of alacrity on the part of the WBCPCR which purportedly took cognizance of the matter on 30.01.2017 but no effective steps were taken to inquire into the matter till 10.03.2017 except calling for a report. The members of the NCPCR visited Jalpaiguri on 07.03.2017 and have recorded the statement of CWC members. According to the statements so recorded, one of the accused, who was Secretary of the NBPDC which was running the concerned SAA, prayed for certificates for 20 children to be declared legally fit for adoption whom they placed before Prospective Adoptive Parents (PAPs) without Legally Fit for Adoption (LFA) Certificates from CWC, Jalpaiguri. According to the statements, the members of the CWC were shocked that the legal procedure had not been followed. According to these members, they complained to the various officials but they were compelled to give certificates that the children were legally fit for adoption. In the absence of the parties who have made the statements, we would not like to make any further comment except to state that if any member of a CWC can be compelled or pressurized to give such a certificate then that member has no business of ever being appointed as member of CWC or in any capacity in a child rights institution.”

                            More significantly, it is then underscored in para 37 that, “As clearly held by us above, both the Commissions have to work for the best interest of the children in a spirit of cooperation. Unfortunately, in this case, there has been no cooperation rather mudslinging at each other. We would like to reiterate and re-emphasise that there are no jurisdictional issues involved.”

                                   Be it noted, it is then held in para 38 that, “In view of the above, we are clearly of the view that Dr. Rajesh Kumar should have furnished the information which appears to now have been furnished by the State authorities. If such information has not been furnished, the present incumbent holding the post of ADGP, CID, West Bengal is directed to furnish the information to the National Commission as well as to Juvenile Justice Committee of the High Court of Calcutta within 15 days from the date of receipt of certified copy of this judgment. The counsel for the State of West Bengal shall inform the present Additional Director General of Police, Criminal Investigation Department, West Bengal of these directions.”

                                            Most significantly, it is then held in para 39 that, “As is evident from the facts narrated above, both the State Commission (WBCPCR) and the National Commission have been woefully lax in the matter. Hence we direct that other than the issues which form part of the criminal case, all other matter relating to the issue in hand and larger issues of appointment of CWCs and heads of CWCs, not only as far as this case is concerned, but also for the entire State of West Bengal, should be monitored by the High Court of Calcutta, preferably by a Bench headed by the Chairperson of the Juvenile Justice Committee of the High Court of Calcutta in a public interest litigation. In furtherance of these directions, we direct the Registry of this Court to send a copy of this judgment to the Registrar General of the Calcutta High Court, who shall place the same before the Hon’ble Chief Justice of the High Court for constitution of an appropriate Bench. We request the Bench so constituted to deal with the matter as per the urgency involved and if required, to establish a fool proof mechanism so that such occurrences do not take place in future.”

                            On a concluding note, the Bench rightly slammed the clash of egos between the State Commission (WBCPCR) and the National Commission (NCPCR) as also the woefully lax approach of them. No doubt, it also very rightly after examining the records concluded that NCPCR had started inquiry before the State Commission (WBCPCR) got involved in this. It also further passed the right directions as mentioned in para 39! No denying or disputing it!

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                                   To start with, this notable judgment authored by Justice Prashant Kumar Mishra for himself and Justice Gautam Chourdiya sets the ball rolling by first and foremost observing in para 1 that, “These three connected appeals under Section 21 (4) of the National Investigation Agency Act, 2008 (for short ‘the NIA Act’) would call in question three separate orders passed by the trial Court (NIA Court) rejecting the appellant’s prayer for his release on bail under Section 439 of the Cr.P.C.”

                               To recapitulate, it is then pointed out in para 3 that, “The prosecution case, in brief, is that on 28-1-2017 an information was received by the concerned police that on the road between village Bastanar-Dankapara towards village Kandoli a banner has been put on along with pamphlets containing anti national contents. On receipt of the information the team of a Kodenar police led by the Station House Officer reached to the place and found a banner and anti national contents and few naxal pamphlets written in English propagating naxal movement. When the near by places were searched the police team found an explosive like material and few wires, which were further dug out with proper security. On this search a 7 kg Tiffin Bomb with 20 meters long wire and pamphlets were found. The pamphlets were having signature of ‘Vikalp’ as Spokesperson, Dandakaranya Special Zonal Committee CPI (Maoist) and Abhya as Spokesperson, Central Committee CPI (Maoist). This organisation has been banned by the Government of Chhattisgarh. Dehati Nalsi was recorded and on return the subject crime was registered at Police Station Kodenar primarily under Section 120-B of the IPC; Sections 4 & 5 of the Explosive Substances Act, 1908; and Sections 38 & 39 (2) of the Unlawful Activities (Prevention) Act.”

                                      To be sure, para 4 then states that, “During further investigation, it came to the knowledge that the Police Station Darbha has also registered Cr. No.7/2017 and seized pamphlets and literatures containing propagation of naxal movement. The Investigating Officer found email ID and mobile number written over the seized articles, which were further investigated on which one person named ‘Abhay Nayak, R/o Bangalore’ was suspected as a person who has committed the offence.”

                                     Going forward, it is then elaborated upon in para 5 that, “When the police team went to Bangalore (Karnataka) it got information that the appellant is not available in the country, but is travelling abroad with unknown location. Thereafter, Bastar Police issued Look Out Circular. The Immigration Bureau, New Delhi, informed the Superintendent of Police, Bastar that the appellant has been taken into custody. He was enquired by Bastar Police at Delhi and thereafter, upon his consent, Laptop, Mobile, Hard Disk, Pen Drive, etc. were recovered and brought to Bastar for further investigation. In his confessional statement the appellant admitted that for propagating naxal activities he acts as a Blogger and Spokesman via its Blog and Social Media sites i.e. Twitter, Google+, Yahoo, etc. to increase urban naxal cadre and influence urban youths. The appellant was arrested on 1-6-2018 and his residence was searched. The appellant was thereafter searched for two other offences.”

                                After hearing both the sides, it is then observed in para 10 that, “A perusal of the material available in the case diaries would reveal that the hand written diary seized from the residence of the appellant containing objectionable and anti national contents about the Indian Police and Para Military Force was sent to the State Examiner of Questioned Document, Government of Chhattisgarh (Hand Writing Expert) on 23-6-2018. The Hand Writing Expert’s report received by the police on 30-6-2018 mentions that all the writings have been written by one and the same person. Diary also reveals that when the appellant’s blog was data analysed by the Cyber Police Team of Bastar, the appellant was found to have officially created ‘CPI Maoist Naxalite’ blog and continued blogging on the site. Thereafter, he wrote his blogs as ‘abhay naxal revolution’, to hide his overtly and expressly Maoist connection. The appellant was also found to use fake ID number, proxy server and TOR to run his blog, which he did to hide his identity from the Government surveillance. The blog posts and proxies have been annexed with the return filed by the State.”

                                      What’s more, it is then also pointed out in para 11 that, “Record also contains material that on thorough examination of appellant’s e-mail ID, after seeking permission from the Special Court, Jagdalpur, various folders with naxal contents and anti national contents including press release, propaganda and audio video attachments having anti national and provocative contents were found. Mail from superior naxal cadres like Vikalp and Gudsa Usendi and connection with RDF (Revolutionary Democratic Front) and other anti national organization was also found. The scrutiny also revealed that the appellant is working with Rona Wilson, G.N. Saibaba, etc.”

                               Not stopping here, it is then more damningly also pointed out in para 12 that, “The data analysis also found that the appellant tried to contact other naxal sympathizers including foreigners and journalists for arranging interview with superior naxal cadres either directly or through virtual media. He has been visiting foreign countries for last one year to promote the naxal ideology and improve naxal movement in India. The investigating police have also found that appellant’s blog post ‘naxalrevolution.blogpost.com’ is a mirror website of ‘naxalrevolution-lal salam’, which is totally a Maoist social networking platform.”

                                     More significantly, the Chhattisgarh High Court Bench comprising of Justice Prashant Kumar Mishra and Justice Gautam Chourdiya then rightly holds that, “The law is, thus settled that while considering the prayer for grant of bail the material collected by the prosecution thus far need not be discarded nor its admissibility or otherwise is to be considered at this stage. If the case diary and other materials disclosed that the accusation against the accused is, prima facie, true, the bar under the proviso to sub-section (5) of Section 43D of the Unlawful Activities (Prevention) Act, 1967 would be attracted.”

                                  Moving on, it is then observed in para 16 that, “In the case at hand, there is material collected by the Investigating Officer which furnishes reasonable ground for believing that the accusation against the appellant is, prima facie, true. Thus, no case for inferring with the trial Court’s order is made out.”

                                         Finally, this commendable and laudable judgment concludes in para 17 wherein it is observed that, “As a sequel, all the criminal appeals, sands substratum, are liable to be and are hereby dismissed.” Very rightly so!

                                         No doubt, it is a very well written judgment and a well concluded judgment. It rightly placed reliance on National Investigation Agency v Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein the Apex Court had observed that, “The totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analyzing individual pieces of evidence or circumstance.” Support to Naxal movement which is a violent and committed to  terrorism in order to overthrow democracy in India cannot be justified under any circumstances! The UAPA Act rightly ensures that those accused of promoting Naxal ideology are not granted bail! This is what the Chhattisgarh High Court too has ensured in this latest, landmark and extremely laudable case also! Very rightly so! Naxal violence brooks no tolerance and there has to be no compromise on this at any cost and under no circumstances!

The post Bail – If Case Diary And Other Materials Disclose Prima Facie Case Then Bar Under Proviso To Section 43D(5) Of UAPA Will Be Attracted: Chhattisgarh HC appeared first on Legal Desire Media and Insights.

                              To start with, this noteworthy judgment authored by Justice Navin Sinha for himself and Justice Ashok Bhushan sets the ball rolling by first and foremost observing in para 1 that, “The appellant, a judicial officer of the rank of Additional District and Sessions Judge, assails his order of compulsory retirement dated 03.05.2016 at 56 years of age under Rule 56 (C) of the U.P. Fundamental Rules (hereinafter referred to as ‘the Rules’).”

                                   To recapitulate, it is then narrated in para 2 that, “The appellant while posted as a Chief Judicial Magistrate granted acquittal to the accused on 17.09.2007 in Criminal Case No. 4670 of 2005 “State vs. Mohd. Ayub” under Sections 467, 468, 471, 474, 420, 406 and 120B of the Indian Penal Code. A complaint was lodged against the appellant with regard to the acquittal. After calling for comments from the appellant, and perusing the judgment and the order of reversal in appeal, the Administrative Judge on 24.02.2009 recommended an enquiry. A vigilance enquiry, V.B. Enquiry No. 26/2009, was held by the OSD, Enquiry, High Court of Allahabad. The enquiry report dated 10.05.2012 was adverse to the appellant. His comments were called for on 28.06.2012. On 20.12.2012, the appellant was informed that on basis of the enquiry, a censure entry had been recorded in his character roll. The order of punishment was accepted by the appellant without any challenge. On 01.04.2016, a committee of three Hon’ble Judges constituted for screening of judicial officers for compulsorily retirement under the Rules recommended the compulsory retirement of the appellant which was endorsed by the Full Court on 14.04.2016 leading to the impugned order of compulsory retirement. The challenge laid out by the appellant to his order of retirement before the High Court was unsuccessful and thus the present appeal.”

                                On the one hand, it is pointed out in para 3 that, “Learned senior counsel Shri R Basant, appearing on behalf of the appellant, submitted that since joining the service in 1996-97 as a Civil Judge (Jr. Division) his Annual Confidential Reports (ACRs) till 2014-15 certify his integrity. The quota of cases allocated to the appellant being inadequate, his percentage of work was considered adequate. The adverse remark in 1996-97 for below performance had been expunged. An error of judgment in deciding a criminal case, while discharging judicial functions, cannot ipso facto lead to an inference of dishonesty. There was in fact no material to infer dishonesty or lack of integrity on part of the appellant in granting acquittal in the criminal case. Merely because a different view was possible does not justify the extreme step of compulsory retirement. The order of compulsory retirement being stigmatic in nature, the failure to hold departmental enquiry vitiates the same. The appellant was promoted to the post of Additional District and Sessions Judge on the basis of merit-cum-seniority and was confirmed in 2013. He had also crossed the efficiency bar. The punishment of censure therefore stands obliterated and was irrelevant for the purpose of compulsory retirement. The conclusion that the appellant had lost his utility and efficiency as a judicial officer to be declared deadwood was unsustainable without adequate consideration of his ACRs in the recent past years before retirement, at least from 2012 to 2015. Reliance in support of the submissions was placed on Ram Ekbal Sharma vs. State of Bihar and Anr., (1990) 3 SCC 504; Baikuntha Nath Das and Anr. Vs. Chief District Medical Officer, Baripada and Anr., (1992) 2 SCC 299; P.C. Joshi vs. State of U.P. and Ors., (2001) 6 SCC 491 and Ramesh Chander Singh vs. High Court of Allahabad and Anr., (2007) 4 SCC 247.”

                                    On the other hand, it is then pointed out in para 4 that, “Learned counsel for the respondent contended that the adverse remarks against the appellant for the year 1996-97 was never expunged as the explanation furnished was not found satisfactory by the District Judge which was informed to the appellant on 12.10.1998. His disposal was also found to be inadequate in subsequent years. The complaint against the appellant for granting acquittal was examined at several levels before the impugned action followed. The appellant never questioned the punishment of censure in connection with the very same order of acquittal. The entire service record of the appellant was considered by the Screening Committee and again by the Full Court. The fact that the appellant may have been promoted subsequently is irrelevant for the purpose of consideration of compulsory retirement. Reliance in support of the submissions was placed on Baikuntha Nath Das (supra); Union of India & Ors. vs. K.K. Dhawan, (1993) 2 SCC 56; Union of India & Ors. vs. Duli Chand, (2006) 5 SCC 680; Nawal Singh vs. State of U.P. and Another, (2003) 8 SCC 117; Pyare Mohan Lal vs. State of Jharkhand and Ors., (2010) 10 SCC 693; R.C. Chandel vs. High Court of M.P. and Anr., (2012) 8 SCC 58, and Punjab State Power Corpn. Ltd. and Ors. vs. Hari Kishan Verma (2015) 13 SCC 156.”

                                          To be sure, after considering the version of both the parties, it is then observed in para 5 that, “We have considered the submissions on behalf of the parties and also the precedents sought to be relied upon by them respectively. The High Court also noticed that another vigilance enquiry VB No. 06 of 2009 had also been initiated but was dropped. The enquiry which followed on the complaint against acquittal manifests that the appellant was provided proper opportunity of his defence at every stage. Quite apart from the scrutiny of his service records by the Screening Committee and again by the Full Court, the Division Bench again perused his ACRs and opined as follows:

“We have perused the expunged portion of the annual remarks of the petitioner and found that rating of the petitioner as fair officer has not been expunged. Likewise, in the year 2008-09, 2009-10, 2010-11, the petitioner was posted as Additional District & Sessions Judge, Fast Track Court No. 8, Pratapgarh and his disposal of work prescribed as Additional District Judge, Fast Track Court was found inadequate. Censure entry, recorded against the petitioner and considered by the Screening Committee and Full Court, still has not been expunged. The petitioner has never challenged the said censure entry, therefore, there is no substance in the arguments of the learned counsel for the petitioner that single censure entry relating to integrity could not be considered by the Screening Committee and Full Court. The expositions of law relied upon by the learned counsel for petitioner are of no help for the petitioner. The expositions of law relied upon by the learned counsel for the respondent is squarely applicable to the facts and circumstances of this case.””

                                  Be it noted, it is then observed in para 6 that, “The service records of the appellant have been examined by the Screening Committee, the Full Court as also by the Division Bench of the High Court. The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by malafides, overlooks relevant materials, could there be limited scope for interference. The court, in judicial review, cannot sit in judgment over the same as an Appellate Authority. Principles of natural justice have no application in a case of compulsory retirement.”

                                         It would be imperative to mention here that it is then envisaged in para 7 that, “The performance chart, as furnished by the appellant, demonstrates that his assessment from 1996-97 till 2014-15 rates him as a “fair” or “good officer” only, except for one entry of “very good” in the year 2011-12. The submission that his integrity was certified on each occasion leaves us unimpressed. There can hardly be any direct evidence with regard to integrity as far as a judicial officer is concerned. It is more a matter of inference and perceptions based on the conduct of the officer. The inadequacy of the present system of writing ACRs of judicial officers has deficiencies in several ways, was noticed in Registrar General, Patna High Court vs. Pandey Gajendra Prasad and Ors., (2012) 6 SCC 357.”

                                     To put things in perspective, it is then observed in para 8 that, “The complaint against the appellant with regard to the acquittal granted by him was first considered by the Administrative Judge, who was satisfied that it is a matter for further enquiry. The comments of the appellant were called for. A vigilance enquiry was recommended by the Administrative Judge, who obviously was not satisfied with the explanation furnished. The officer holding the vigilance enquiry was also a judicial officer who opined that the act of acquittal by the appellant was not above board. The comments of the appellant were again called for. The Screening Committee consisting of three Hon’ble Judges, on an overall assessment of the appellant’s service record, recommended his compulsory retirement. The Full Court scrutinised the service records of the appellant again while considering the recommendation of the Screening Committee and arrived at the conclusion that it was in public interest to compulsory retire the appellant. It is undisputed that the punishment of censure meted out to the appellant was never assailed by him.”

                                   More significantly, it is then observed in para 13 that, “A person entering the judicial service no doubt has career aspirations including promotions. An order of compulsory retirement undoubtedly affects the career aspirations. Having said so, we must also sound a caution that judicial service is not like any other service. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as akin to discharge of a pious duty, and therefore, is a very serious matter. The standards of probity, conduct, integrity that may be relevant for discharge of duties by a careerist in another job cannot be the same for a judicial officer. A judge holds the office of a public trust. Impeccable integrity, unimpeachable independence with moral values embodied to the core are absolute imperatives which brooks no compromise. A judge is the pillar of the entire justice system and the public has a right to demand virtually irreproachable conduct from anyone performing a judicial function. Judges must strive for the highest standards of integrity in both their professional and personal lives.”

                                          Most significantly, it is then held in para 14 that, “It has to be kept in mind that a person seeking justice, has the first exposure to the justice delivery system at the level of subordinate judiciary, and thus a sense of injustice can have serious repercussions not only on that individual but can have its fall out in the society as well. It is therefore absolutely necessary that the ordinary litigant must have complete faith at this level and no impression can be afforded to be given to a litigant which may even create a perception to the contrary as the consequences can be very damaging. The standard or yardstick for judging the conduct of the judicial officer therefore has necessarily to be strict. Having said that it is not every inadvertent flaw or error that will make a judicial officer culpable. The State Judicial Academies undoubtedly has a stellar role to perform in this regard. A bona fide error may need correction and counseling. But a conduct which creates a perception beyond the ordinary cannot be countenanced. For a trained legal mind, a judicial order speaks for itself.”

                                  Finally, it is then held in the last para 15 that, “In conclusion, we are of the considered opinion that the order of compulsory retirement of the appellant calls for no interference. The Appeal is dismissed.”

                                         Before closing, it would be sagacious to draw the right conclusions from this notable judgment. It makes it absolutely clear that it is not every inadvertent flaw or error that will make a judicial officer culpable. A bona fide error may need correction and counseling. But a conduct which creates a perception beyond the ordinary cannot be countenanced! All the judicial officers must always keep what has been stated so explicitly by the Apex Court Bench as it is squarely applicable on them!

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                                            To start with, this latest, landmark and extremely laudable judgment authored by Justice NV Ramana for himself, Justice Mohan M Shantanagoudar and Justice Ajay Rastogi sets the dice rolling by first and foremost stating in para 1 that, “The present appeal is directed by the appellant-State against the final order dated 06.11.2012, passed by the High Court of Madhya Pradesh (Gwalior Bench) in Criminal Appeal No. 659 of 2011, whereby the High Court partly allowed the appeal filed by the respondents-accused herein and reduced the sentence awarded by the Trial Court to the period already undergone for the offences under Section 326 of the Indian Penal Code [hereinafter referred to as ‘IPC’] read with Section 34 of IPC, and Section 452 of the IPC.”

                                        While presenting the prosecution version, it is then stated in para 2 that, “The prosecution case is that the complaint lodged a report on 15.04.2008 that at around 9 p.m., while he was sitting inside his house with three other people, the respondents-accused barged in, carrying weapons. More specifically, respondent nos. 1 and 3 were carrying axes, while respondent nos. 2 and 4 were carrying sticks. The respondents-accused asked the complainant why he had not kept his cow tied, and subsequently, on respondent no. 4’s exhortation, the respondents-accused attacked the complainant and the others present at that time resulting in various injuries to them. Respondents-accused then allegedly threatened the complainant that if he did not keep his cow confined, he would be killed.”

                                         To put things in perspective, it is then elaborated upon in para 3 while putting across what the Trial Court ruled upon that, “The Trial Court tried the respondents-accused and ultimately convicted them for the offences under Section 326 read with Section 34 of IPC as well as the offence under Section 452 of IPC. The respondents-accused were sentenced to undergo 3 years rigorous imprisonment and a fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) each for the offence under Section 326 read with Section 34 of IPC. They were further sentenced to undergo rigorous imprisonment for 1 year with a further fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) each for the offence under Section 452 of IPC. In case of default of payment of fine, they were to undergo further rigorous imprisonment for 6 months. All sentences were made to run concurrently by the Trial Court.”

                                 As a corollary, what follows next is illustrated in para 4 that, “Being aggrieved, the respondents-accused filed an appeal before the High Court, challenging only the quantum of sentence imposed on them by the Trial Court. Vide impugned order, the High Court partly allowed the appeal and reduced the sentence to the period of imprisonment already undergone by them, which was a period of 4 days, while enhancing the fine amount imposed upon them by Rs. 1500/- (Rupees One Thousand Five Hundred Only) each. The respondents-accused were directed to deposit the enhanced fine within a period of 30 days, failing which they were to undergo simple imprisonment for a period of 30 days.”

                                             As it turned out, para 5 then states that, “Aggrieved by the impugned order, the State has filed the present appeal challenging the order of the High Court reducing the sentence awarded to the respondents-accused. The learned counsel for the appellant-State submitted that the High Court erred in not considering the gravity of the offence and the facts and circumstances of the case, particularly the fact that the respondents-accused had undergone imprisonment of only 4 days.”

                                 Simply put, para 6 then enumerates that, “On the other hand, the learned counsel for the respondents-accused submitted that the High Court has correctly appreciated the facts and circumstances of the case in passing the impugned order, and therefore, the same does not merit any interference from this Court.”

                                   After hearing the learned counsel for the parties as mentioned in para 7, it is then envisaged in para 8 that, “At the outset, it is pertinent to note that the reasoning of the High Court, for passing the impugned order and partly allowing the appeals of the respondents-accused herein, is limited to one sentence. The High Court states in its order that looking to the nature of the offence, the fact that this is the first offence of the respondents and the period of sentence already undergone by them, it is passing the impugned order.”

                             It would be of immense significance to note what is then stated so eloquently, elegantly and effectively in para 9 that, “At this stage the observations of this Court in Accused ‘X’ v. State of Maharashtra, (2019) 7 SCC 1, in which two of us were part of the Bench, with respect to sentencing in India are relevant here-

49. Sentencing is appropriate allocation of criminal sanctions, which is mostly given by the judicial branch. [Nicola Padfield, Rod Morgan and Mike Maguire, “Out of Court, Out of Sight? Criminal Sanctions and No Judicial Decision-making”, The Oxford Handbook of Criminology (5^thEdn.).] This process occurring at the end of a trial still has a large impact on the efficacy of a criminal justice system.It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner. We need to appreciate that a strict fixed punishment approach in sentencing cannot be acceptable, as the Judge needs to have sufficient discretion as well.
50. Before analysing this case, we need to address the issue of the impact of reasoning in the sentencing process. The reasoning of the trial court acts as a link between the general level of sentence for the offence committed and to the facts and circumstances. The trial court is obligated to give reasons for the imposition of sentence, as firstly,it is a fundamental principle of natural justice that the adjudicators must provide reasons for reaching the decision and secondly, the reasons assume more importance as the liberty of the accused is subject to the aforesaid reasoning. Further, the appellate court is better enabled to assess the correctness of the quantum of punishment challenged, if the trial court has justified the same with reasons…”

                                                       (emphasis supplied)”

                                         While pooh-poohing the manner followed by the High Court in sentencing the accused, it is then pointed out in para 10 that, “In the present case, it is clear that there is no detailed analysis of the facts of the case, the nature of the injuries caused, the weapons used, the number of victims, etc. given by the High Court in the impugned order. The High Court while sentencing the accused, has not taken into consideration the second charge proved against the respondents-accused herein, under Section 452 of IPC. Even the fact that the respondents-accused had only undergone sentence of 4 days at the time of passing of the impugned order, brings into question the High Court pointing to the same as a reason for reducing their sentence. As such, the order of the High Court merits interference by this Court.”

                                     While underscoring the invaluable importance of the sentencing policy, para 11 then postulates that, “We are of the opinion that a large number of cases are being filed before this Court, due to insufficient or wrong sentencing undertaken by the Courts below. We have time and again cautioned against the cavalier manner in which sentencing is dealt in certain cases. There is no gainsaying that the aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society. In light of the same, we are of the opinion that we need to provide further clarity on the same.”

                                         While continuing in the same vein, it is then very rightly articulated on sentencing policy in para 12 that, “Sentencing for crimes has to be analyzed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defense, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).”

                                  Not stopping here, it is then stipulated in para 13 that, “Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.”

                               Of course, it is then rightly elaborated upon in para 14 that, “Coming to the appropriate sentence which is to be imposed on the respondents-accused in this case, the facts of this case need closer scrutiny. The respondents-accused entered the house of the complainant, attacked the others present with axes and with sticks. Four people, including the complainant, were injured. The injuries caused were incised wounds on the hands and backs of the victims, an incised wound next to the ear of one of the victims and bruising, etc. The respondents-accused were convicted for the offence under Section 326 read with Section 34 of IPC, which carries a maximum sentence of life imprisonment, or of imprisonment of a term which may extend to ten years, and fine. They were also convicted under Section 452 of IPC, which carries a maximum sentence of seven years along with fine.”

                               It cannot be lost on us that it is then also rightly pointed out in para 15 that, “The respondents-accused herein were males of age 33 years, 33 years, 28 years and 70 years respectively at the time of the incident. The main allegation as against the respondent nos. 1 and 3 is that they had used an axe to attack the victim. In this scuffle there is no dispute that some of the respondent-accused herein were also injured profusely. Further the motivation seems to be that the cow belonging to the victims had entered the household of the accused and the respondent no. 1 with his co-accused are proved to be the aggressor herein. From the perusal of the record, the injuries on some of the victims are not specifically attributed. The respondent group was numerically matched with that of the victims and there were two respondents-accused within the group carrying lathis. The bodily integrity was compromised as a result of the injury caused, but there was no evidence led to indicate any permanent establishments of any part. The scope of intrusion of privacy due to the assault is also minimal. There was no material destruction involved in the crime.”

                                 To put it succinctly, it is then observed in para 16 that, “In this context, we need to note that the facts of the case highlighted above, however, need to be balanced with the fact that this was the first offence committed by the respondents-accused and that the motive, which is stated to be trivial. There is a requirement to treat the crime committed herein differently than other objectionable situations such as police atrocities etc. [refer to Yashwant v. State of Maharashtra, AIR 2008 SC 4067]. Having regard to the fact that the occurrence of the crime is of the year 2008 and the respondents-accused have been, in a way, only ordered to undergo four days of jail term with a fine of Rs 1,500/-, we need to enhance the same to commensurate with the guilt of the respondents-accused.”

                            Going ahead, it is then observed in para 17 that, “Comparatively, having perused certain precedents of this Court, we are of the considered opinion and accordingly direct that for the commission of the offence under Section 326 of IPC read with Section 34 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 75,000/- (Rupees Seventy-Five Thousand Only)  each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months. For the offence under Section 452 of IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous imprisonment for 3 months and to pay a fine of Rs. 25,000/- (Rupees Twenty-Five Thousand Only) each within a period of 1 month, on default of payment of which they are to suffer simple imprisonment for 3 months.”

                                      Furthermore, it is then held in para 18 that, “For the offence under Section 326 of IPC read with Section 34 of IPC, the respondent no. 4, who is presently aged around 80 years, is sentenced to serve rigorous imprisonment for 2 months and to pay a fine of Rs. 50,000/- (Rupees Fifty Thousand Only) within a period of 1 month, on default of payment of which he is to suffer simple imprisonment for 1 month. For the offence under Section 452 of IPC, respondent no. 4 is sentenced to serve rigorous imprisonment for 2 months and to pay a fine of Rs. 15,000/- (Rupees Fifteen Thousand Only) within a period of 1 month, on default of payment of which he is to suffer simple imprisonment for 1 month.”

                                       Coming to the last two paras, para 19 holds that, “The above sentences are to run concurrently. Further, the respondents are directed to be taken into custody forthwith, to serve out their remaining sentence, as imposed hereinabove.” Lastly, the last para 20 concludes by holding that, “Accordingly, the appeal is partly allowed and the impugned order of the High Court is modified in the afore-stated terms.”

                                     On a concluding note, it may well be said that it is a very key judgment from the sentencing perspective in criminal cases as it lays down the tests to be applied in such cases which we have already discussed quite elaborately in various paras stated above of this noteworthy judgment! The three-Judge Bench of Apex Court very rightly cautions the High Courts and all the other lower courts that the aspect of sentencing should not be taken for granted, as this part of Criminal Justice System has determinative impact on the society! So the Judges should weigh carefully all the various factors which can tilt the sentencing before arriving at any decision!

Read Judgment here:

[embeddoc url=”https://legaldesire.com/wp-content/uploads/2019/10/10532_2013_3_1501_17728_Judgement_22-Oct-2019.pdf” download=”all”]

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                                          To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice Deepak Gupta for himself and Justice Aniruddha Bose by first and foremost observing that, ““Whether the State Legislature can enact a law providing an appeal directly to the Supreme Court of India?” is the question arising in this appeal.” The entire judgment, therefore, revolves rightly around this moot question. Very rightly so!

                                 To be sure, it is then envisaged in para 3 that, “Section 13 of the Act provides for an appeal against orders of the Rent Controller and the Tribunal. It reads thus:-

“13. Appeal.-(1) Notwithstanding anything to the contrary contained in this Act, a landlord and/or tenant aggrieved by any order of the Rent Controller shall have the right to appeal in the prescribed manner within the prescribed time to the Rent Control Tribunal.

(2) Appeal against an order of the Rent Control Tribunal shall be with the Supreme Court.”

                                   Needless to say, it is then pointed out in para 4 that, “A bare perusal of Section 13 shows that from any order of the Rent Controller an appeal lies to the Rent Control Tribunal and in terms of Section 13(2), an appeal lies as a matter of right to the Supreme Court.”

                                        What follows next is as mentioned in para 5 that, “When the present appeal, filed under Section 13(2) of the Act, came up for admission, while issuing notice we had also ordered as follows:-

            “xxx                   xxx                      xxx

Notice be given to the learned Advocate General of the State of Chhattisgarh and the learned Attorney General for India as to whether the provisions contained in Section 13(2) of the Chhattisgarh Rent Control Act, 2011 providing for an appeal to the Supreme Court of India against the order of the Rent Control Tribunal, Chhattisgarh would be within the legislative competence of the State Legislature.

              xxx                  xxx                           xxx””

Para 6 then further states that, “Pursuant to the notice, learned Attorney General has appeared and assisted the Court.”

                                As it turned out, it is then noted in para 7 that, “At the outset, we would like to point out that the Tribunal has been constituted in exercise of the powers vested in the State Legislature under Article 323B of the Constitution of India which deals with tribunal for other matters. Sub-clause (h) of Clause (2) of the said Article which empowers the appropriate legislature to constitute a tribunal to deal with the issues relating to rent and its regulations read as follows:-

“323B. Tribunals for other matters:-

(1)     xxx                        xxx                        xxx

(2) The matters referred to in clause (1) are the following, namely:-

         xxx                        xxx                         xxx

(h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants:”

                              Of course, it is then clarified in para 8 that, “It is not in dispute before us that the State has the power to constitute the Tribunal. The only issue is whether in terms of Section 13(2) of the Act, the State Legislature could provide an appeal as a matter of right from the order of the Tribunal to the Supreme Court.”

                                        What’s more, it is then laid down in para 9 that, “Article 246 of the Constitution specifically provides that Parliament has exclusive powers to make laws in respect of matters enumerated in List I (Union List) of the Seventh Schedule. As far as the Concurrent List, i.e. List III is concerned, both the Union and the State have the power to enact laws but if the field is occupied by any law enacted by Parliament then the State cannot legislate on the same issue.”

                                      Simply put, it is then made clear in para 10 that, “Entry 77 of List I of the Seventh Schedule reads as under:-

“77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practice before the Supreme Court.”

Entry 77 gives power to the Union in respect of jurisdiction and the powers of the Supreme Court. This power cannot be exercised by the State Legislature.”

                                  While continuing in the same vein, it is then enunciated in para 11 that, “It would also be apposite to refer to Entry 65 of List II of the Seventh Schedule, which reads as follows:-

“65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.”

A bare reading of Entry 65 clearly indicates that the State Legislature has no power to enact any legislation relating to jurisdiction and power of the Supreme Court. This power is specifically excluded.”

                                   Be it noted, para 12 then lays bare that, “Entry 46 of List III of the Seventh Schedule is also relevant. This reads as follows:-

“46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list.”

Even Entry 46 makes it clear that as far as the jurisdictional powers of the Supreme Court are concerned, they cannot be exercised under the Concurrent List. Therefore, the powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there. However, the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have.”

                                 More importantly, it is then observed unambiguously in para 13 that, “We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of Courts. As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded.”

                                  Equally important is what is spelt out in para 14 that, “We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature. Section 13(2) of the Act is accordingly struck down.”

                                     A key point is then made in para 15 that, “While dealing with the issue, we may make reference to the fact that the Rent Control Tribunal is a tribunal constituted under Article 323B of the Constitution.”

                             While referring to a landmark case of the past, it is then revealed in para 16 that, “In L. Chandrakumar vs. Union of India (1993) 4 SCC 119, this Court clearly held that tribunals constituted under Articles 323A and 323B of the Constitution are subject to the writ jurisdiction of the High Courts. In view of the law laid down in L Chandrakumar’s case (supra), the High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution against the orders of the Rent Control Tribunal.”

                                    Finally and no less importantly, it is then held in the last para 17 that, “In view of the above, we hold that an appeal under Section 13(2) of the Act directly to the Supreme Court is not maintainable. We, therefore, dismiss this appeal. However, we keep it open to the appellant to approach the High Court for redressal of his grievance under Article 227 of the Constitution. If the appellant does so, the High Court shall decide the matter strictly in accordance with law. Pending application(s) if any, stand(s) disposed of.”

                                         No doubt, on a concluding note, it has to be said that it is a very well written and well reasoned judgment which deserves unqualified appreciation. All the State Legislatures must always keep in mind in similar such cases what the Apex Court has so very rightly laid down in this case also  so elegantly, eloquently and effectively! As a corollary, no denying that it must always be ensured by all the State Legislatures that no law should be enacted which provides direct appeal to the Supreme Court in such cases  as  has  been  very held in this case!

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                                     To start with, the ball is set rolling in para 3 which is the first relevant para which states that, “The State has filed the present petition against a judgment dated 15.07.2019 passed by the learned Additional Sessions Judge. The said proceedings had commenced pursuant to the FIR bearing no. 679/2016 under Section 376 of the Indian Penal Code, 1860 (IPC), registered with P.S. Narela, on 13.09.2016.”

                                   To put things in perspective, it is then pointed out in para 4 that, “The said FIR was lodged pursuant to the complaint made by Ms P (name withheld to avoid any ignominy). She has stated that she had developed a friendship with the accused (respondent herein) in the year 2013. And, over a span of two years the same transformed into a love affair. She stated that she had been meeting the accused regularly and he had promised to marry her.”

                                            Furthermore, it is then stated in para 5 that, “She stated that on occasion, three months prior to 08.09.2016, he had invited her to his house to meet his mother. On visiting his house, she had found that his mother was not present and had gone to the house of respondent’s maternal uncle. She alleged that respondent had bolted the door and raped her despite her resistance. However, he had also promised to marry her and had asked her not to disclose the said incident to any other person.” Also, it is then stipulated in para 6 that, “She further alleged that the respondent had taken her to a hotel on 08.09.2016 and had thereafter, raped her. Although he had promised to marry her, he had resiled from his promise and had declined to do so.”

                               As it turned out, it is then revealed in para 7 that, “She had approached the police station on 13.09.2016, where her statement was recorded. She was, thereafter, medically examined in SRHC Hospital. However, she had declined any internal medical examination.” Further, para 8 then discloses that, “Ms P had deposed as PW2. Her parents (Raj Kumari and Brahm Dev) deposed as PW3 and PW4 respectively. One Sh. Sohan Pal, a friend of the respondent, had deposed as a defence witness (DW-1). He had testified that he knew the accused, as well as Ms P, and both of them had a love affair. He claimed that the accused had introduced Ms P to him in 2015. At the material time, she was undergoing a beautician’s course in Narela. He had testified that the accused wanted to marry Ms P, but Ms P’s father was opposed to the said liaison and therefore, their marriage could not be solemnised.”

                                      Needless to say, para 9 then holds that, “The fact that the respondent had established a physical relationship with Ms P cannot be disputed. Indisputably, Ms P had checked into a hotel with the respondent at about 10:00 pm on 08.09.2016 and had checked out of the said hotel on 09.09.2016 at 08:00 am. Clearly, the respondent and Ms P had done so for physical initimacy. The Trial Court had rightly observed that the only question to be considered was whether Ms P had consented for the physical relationship under a false promise of marriage.”

                                      What then ensues is elaborated upon in para 10 which states that, “After evaluating the evidence, the Trial Court had concluded that Ms P had established the physical relationship with the accused on account of love and affection and not on being induced by a promise of marriage.”

                                        While elaborating in detail, it is then pointed out in para 11 that, “It is relevant to examine Ms P’s (PW-2’s) testimony. She had deposed that she was friends with the accused and in the year 2013, she had visited his house to be treated for stomach ache by his mother. She also stated that the accused had proposed to her within two months of meeting her. Thus, admittedly, the accused had evinced his intention to marry her more than two years before the alleged incident of the accused establishing physical relationship with her (which according to Ms P was established three months prior to the accused taking her to the hotel on 08.09.2016). This clearly established that the inducement of marriage – if the action(s) of the accused could be termed as such – was made more than two years and six months prior to the alleged rape. Ms P’s testimony that she had objected to the accused touching her obscenely but had yielded on him promising marriage, is difficult to accept. This is so because Ms P had stated that the accused proposed marriage to her two months after he met her. Considering Ms P’s testimony that she had gone to the house of the accused in 2013 to be treated by his mother and had spent about two hours there it is apparent that, according to her, the accused had proposed to her two years and six months prior to the first incident of alleged rape.”

                                           Be it noted, para 12 then states that, “It is important to note that Ms P had unequivocally accepted in her cross examination that she and the accused were in love with each other and wanted to get married.” Para 13 then reveals that, “Ms P’s father (PW4) had deposed that in the year 2015, his daughter had told him about the respondent and the proposal for them to get married. He further stated that he was not agreeable to marriage between Ms P and the accused. This is also consistent with the testimony of DW-1. In her cross-examination, Ms P had admitted that her father was opposed to their marriage. Her mother (PW3) had also deposed that she did not want her daughter to get married to the accused.”

                                  To put it succinctly, it is then observed in para 14 that, “In view of the above, the Trial Court concluded that the “accused cannot be held guilty for not marrying the prosecutrix because he and his family members were ready for the marriage but the parents of the prosecutrix did not want that their daughter should marry the accused”. Given the testimony of the witnesses, the conclusion that the accused and Ms P did not marry on account of the opposition from the family of the prosecutrix is certainly a plausible view. The only reservation that this Court has to the above conclusion of the trial court is the implicit assumption that the accused was alleged to be guilty of not marrying Ms P. The accused was not on trial for not marrying Ms P, but on an allegation of committing the offence of rape.”

                                Truth be told, it is then pointed out in para 15 that, “There is also an inherent inconsistency in the testimony of PW-4. Whilst he deposed that Ms P had informed him about her friendship with the accused in the year 2015; in his cross examination, he stated that he became aware of their friendship at the police station.”

                                What’s more, it is then written in para 16 that, “The Trial Court reasoned that if the accused had established physical relationship on account of the promise of marriage, she would have disclosed the same to her parents. This Court finds no infirmity with the said reasoning as well. If the accused had induced Ms P to have physical relations on the false promise to marry, she or her mother, on becoming aware, would have disclosed the same to her father.”

                                        More importantly, it is then rightly underscored in para 17 that, “It is important to bear in mind that two consenting adults establishing a physical relationship, is not a crime. Jilting a lover, however abhorrent that it may seem to some, is also not an offence punishable under the IPC.”

                                    To be sure, it is then made clear in para 18 that, “In so far as consent to engage in a sexual act is concerned, the campaign ‘no means no’, that was initiated in the 1990’s embodies a universally accepted rule: a verbal ‘no’ is a definite indication of not giving consent to engage in a sexual act. There is now wide acceptance to more ahead from the rule of ‘no means no’ to ‘yes means yes’. Thus, unless there is an affirmative, conscious and voluntary consent to engage in sex; the same would constitute an offence.”

                                          Simply put, para 19 then says that, “In the present case, the prosecutrix claims that her consent was not voluntary but was obtained by inducing her on the pretext of a promise to marry. Plainly, this is not established in this case.”

                                    It cannot be lost sight of that it is then narrated in para 20 that, “The prosecutrix had, three months after the first alleged incident of rape, voluntarily checked into a hotel with the accused. They had checked into the hotel at about 10:00 p.m. on 08.09.2016 and had checked out of the same, the next day at around 08:00 a.m. Clearly, this was a voluntary act. There is no merit in the contention that this act was induced by a promise of marriage.”

                                           Most importantly, it is then most rightly pointed out in para 21 that, “Inducement to have a physical relationship by promising marriage must have a clear nexus with the moment promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time. In certain cases, a promise to marry may induce a party to agree to establish sexual relations, even though such party does not desire to consent to the same. Such inducement in a given moment may elicit consent, even though the concerned party may want to say no. Such false inducement given with the intention to exploit the other party would constitute an offence. However, it is difficult to accept that continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time, is induced and involuntary, merely on the assertion that the other party has expressed its intention to get married.”

                                  As things stand, it is then held in para 22 that, “In the present case, the prosecutrix appears to have used the allegation of inducement of physical relationship on the promise of marriage, to not only justify her physical relationship with the accused in the past, but also her conduct after the FIR was filed. The prosecutrix had refused an internal medical examination. In her testimony, she had done so because the accused had contacted her and again reiterated his promise to get married to her.”

                                  Now coming to the concluding paras. It is held in para 23 that, “The Trial Court had evaluated the evidence on record. It had also found serious inconsistencies in the testimony of PW-4. In view of the above, the Trial Court had acquitted the accused.” Last but not the least, para 24 then holds that, “This Court finds no infirmity with the impugned decision. The petition is, accordingly, dismissed.”

                               All said and done, this notable judgment makes it absolutely clear that a woman cannot justify continuing with an intimate relationship, which also involves engaging in sexual activity, over a significant period of time only on the pretext of the man’s promising to marry him. There have been many such cases where we see a woman indulging in sex with a men for a long period of time with consent and later blaming men squarely for heinous offence of rape by just saying that he had promised to marry her. It is high time and our rape laws must be amended in this direction to check the growing abuse of law on this score and if this is not done then the Apex Court must intervene just like the adultery law was amended after the landmark judgment delivered by the Apex Court in 2018 in Joseph Shine vs Union of India! A woman who with consent indulges in sex with a men for a long period of time should not later be allowed to scream “rape”. This is precisely what the Delhi High Court also has very rightly reiterated in this noteworthy case also!

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