Desist from undertaking two-finger test, avoid disclosing rape survivors’ identity: J&K HC to trial court | Jammu Kashmir News, Two-Finger Test India - The Daily Guardian
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Desist from undertaking two-finger test, avoid disclosing rape survivors’ identity: J&K HC to trial court

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In a well-written, well-articulated, well-analysed and well-reasoned judgment titled State of J & K V/s Md. Imran Khan in SLA No. 38/2018 delivered as recently as on 24 December 2020, the Jammu and Kashmir High Court while reminding the mandate of Section 228A of the J&K Ranbir Penal Code directed the Trial Courts of the Union Territories of Jammu and Kashmir and Ladakh “to avoid disclosing identity of rape survivors in their proceedings and judgments.” Furthermore, the Bench of Acting Chief Justice Rajesh Bindal and Justice Sanjay Dhar issued directions to all the health professionals of Union Territory of Jammu and Kashmir and Union Territory of Ladakh “to strictly desist from undertaking ‘two finger test’ known as ‘per-vaginum examination’ on the rape survivors. Very rightly so!

To start with, Justice Sanjay Dhar who authored this latest, learned, landmark and laudable judgment sets the ball rolling by first and foremost stating in para 1 that, “The State has sought leave to file appeal against the judgment dated 29.11.2017 passed by the learned Principal Sessions Judge, Bhaderwah (hereinafter referred to as “the trial Court”) in File No.07/Sessions Challan titled State v. Mohd. Imran Khan, whereby the respondent herein has been acquitted of the charge for offence under Section 376 RPC.”

While stating the prosecution case, the Bench then discloses in para 2 that, “Briefly stated, the case of the prosecution is that on 13.12.2014, the prosecturix went missing and in this regard a complaint was lodged before the police by the maternal grandfather of the prosecutirx. It was found that the prosecutrix had been kidnapped and taken away by the respondent in a car. FIR No.196/2014 for offences under Section 366 RPC was registered and investigation was set into motion. On 15.12.2014, the prosecutrix was recovered from the custody of the respondent/accused. The statement of the prosecutrix under Section 164-A Cr.P.C. was recorded. After investigation of the case, it was found that the prosecutrix, after being kidnapped, was raped by the respondent and accordingly, charge-sheet for offences under Sections 363/376 RPC was laid before the trial Court.”

While elaborating further on the progress of the case, the Bench then makes it known in para 3 that, “Charge for offence under Section 376 RPC was framed against the accused and he was put to trial. After trial of the case and hearing the parties, the learned trial Court came to the conclusion that the offence against the accused/respondent is not established and he was acquitted of the charge vide the impugned judgment.”

Simply put, it is then stated in para 4 that, “We have heard Mr. Aseem Sawhney, learned AAG and perused the record.”

Going ahead, the Bench then states in para 5 that, “It has been contended by learned counsel for the petitioner-State that the prosecutrix, in the instant case, was minor at the time of the occurrence and she had in her statement recorded before the Court fully supported the prosecution case. According to the learned counsel, the learned trial Court has disbelieved the statement of the prosecutrix on technicalities and for flimsy reasons.”

As a corollary, the Bench then puts forth in para 6 that, “Keeping in view the contentions raised by the learned AAG, a prima facie case for grant of leave to file appeal is made out. Accordingly, the application is allowed and the leave to appeal against the impugned judgment is granted in favour of the petitioner.”

Moving on, it is then directed in para 7 by the Bench that, “Main appeal be diarized. The same is admitted to hearing.” In para 8, the Bench then directs that, “Post admission notice be issued to the respondent.” Also, in para 9 it is then directed that, “The Registry shall prepare the paper-book and process the appeal for hearing in due course.”

To be sure, the Bench then makes it clear in para 10 that, “Before parting with the order, it is necessary to comment on certain things, which we have noticed from a perusal of the impugned judgment. The learned trial Judge has mentioned the name of the prosecutrix at several places in the said judgment, which is impermissible in law.”

Be it noted, it is then explicitly stated in para 11 that, “Section 228A of IPC prohibits disclosure of identity of the victim of certain offences, which includes offence under Section 376 IPC. In pari materia to the aforesaid provision is Section 228A of the J&K Ranbir Penal Code, which was applicable to the case at hand at the relevant time.”

Significantly, the Bench then makes it clear in para 12 that, “Although, prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape. Rape is not merely a physical assault but it is destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutrix.”

While citing the relevant case laws, the Bench then observes in para 13 that, “This issue has been a matter of discussion before the Supreme Court and various High Courts of the country in a number of cases. In State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384, the Supreme Court, while emphasizing that victims of sexual abuse or assault need to be treated with sensitivity during investigation and trial and that trial of rape cases should be generally held in camera, made the following observations:

“It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood.

The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout. In the present case, the trial court has repeatedly used the name of the victim in its order under appeal, when it could have just referred to her as the prosecutrix. We need say no more on this aspect and hope that the trial Courts would take recourse to the provisions of Sections 327 (2) and (3) Cr. P.C. liberally. Trial of rape cases in camera should be the rule and an open trial in such cases an exception.” (emphasis supplied).”

While continuing in a similar vein and citing other relevant case law, the Bench then holds in para 14 that, “In Bhupinder Sharma v. State of Himachal Pardesh (2003) 8 SCC 551, the Supreme Court while referring to Section 228A IPC, held as under:

“We do not propose to mention the name of the victim. Section 228A of the Indian Penal Code, 1860 (in short “IPC”) makes disclosure of the identity of victims of certain offences punishable. Printing or publishing the name or any matter which may make known the identity of any person against whom an offence under Sections 376, 376A, 376B, 376C or 376D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by the High Court or the Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228A has been enacted, it would be appropriate that in the judgments, be it of a High Court or a lower court, the name of the victim should not be indicated. We have chosen to describe her as “victim” in the judgment.””

For the sake of clarity, the Bench then makes it clear in para 15 that, “The afore-noted judgments of the Supreme Court were noted with the approval by the Supreme Court in the case of Nipun Saxena v. Union of India and others (2019) 2 SCC 703and it was held that though, the bar imposed under Section 228A IPC did not in term apply to the printing or publication of judgments of the High Courts and the Supreme Court because of the explanation to the said provisions, yet keeping in view the social object of preventing the victims or ostracizing of victims, it would be appropriate that in judgments of all the Courts i.e. trial Courts, High Courts and the Supreme Court the name of the victim should not be indicated.”

Of course, the Bench then rightly notes in para 16 that, “From afore-noted judgments of the Supreme Court, it is clear that all Courts are bound to avoid disclosure of name of rape victim(s) in the court proceedings as well as in their judgments. This dictum of law, it seems, has been ignored by the learned trial Court in the instant case. We, therefore, feel a need to reiterate and remind the trial Courts of the Union Territories of Jammu & Kashmir, and Ladakh to follow the aforesaid dictum in letter and spirit while dealing with cases of rape and crime against women.”

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It is worth noting that it is then mentioned in para 17 that, “Another issue that has come to our notice from the reading of the trial Court record and the impugned judgment is that the prosecutrix in this case has been subjected to “two finger test”. The International Covenants on Economic, Social and Cultural Rights, 1966, United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 provide that rape survivors are entitled to medical procedures conducted in a manner that respects their right to consent. As per these Covenants, State is under an obligation to make such services available to survivors of sexual violence and that proper measure should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.”

It is also worth noting that para 18 then states that, “On the basis of aforesaid Covenants, the Supreme Court in the case of Lillu and others v. State of Haryana, (2013) 14 SCC 643,came to the conclusion that “two finger test” and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, “two finger test” has been declared as unconstitutional.”

What cannot be also overlooked is then stated in para 19 that, “Apart from the above, Ministry of Health and Family Welfare, Govt. of India has issued guidelines and protocols for health professionals for dealing with survivors of sexual violence. Guideline 18-B is relevant to the context and the same is reproduced as under:

“18. Local examination of genital parts/other orifices

A…………………

B.In case of female survivors, the vulva is inspected systematically for any signs of recent injury such as bleeding, tears, bruises, abrasions, swelling, or discharge and infection involving urethral meatus & vestibule, labia majora and minora, fourchette, introitus and hymen.

•Examination of the vagina of an adult female is done with the help of a sterile speculum lubricated with warm saline/ sterile water. Gentle retraction allows for inspection of the vaginal canal. Look for bruises, redness, bleeding and tears, which may even extend onto the perineum, especially in the case of very young girls. In case injuries are not visible but suspected; look for micro injuries using good light and a magnifying glass/ colposcope whatever is available. If 1% Toluidine blue is available it is sprayed and excess is wiped out. Micro injuries will stand out in blue. Care should be taken that all these tests are done only after swabs for trace evidence are collected.

• Per speculum examination is not a must in the case of children/young girls when there is no history of penetration and no visible injuries. The examination and treatment as needed may have to be performed under general anaesthesia in case of minors and when injuries inflicted are severe. If there is vaginal discharge, note its texture, colour, odour.

• The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be documented.

• Genital findings must also be marked on body charts and numbered accordingly.””

Needless to say, the Bench then states in para 20 that, “From a perusal of the aforesaid guidelines, it is clear that “two finger test”, which, as per the medical term is called per-vaginum examination, has been strictly prohibited under the guidelines and protocols issued by the Ministry of Health and Family Welfare, Government of India. It is pertinent to mention here that these guidelines stand adopted by the Government of Union Territory of J&K and are applicable to the health professionals of the Union Territory with full force.”

More damningly, the Bench is then at pains to note in para 21 that, “Inspite of all this, in the instant case, it appears that the prosecutrix, who was minor at the relevant time, has been subjected to two finger test, which must have violated her privacy, physical and mental integrity and dignity.”

More significantly, the Bench then underscores in para 22 that, “It is the need of the hour to implement the ban on “two finger test” on rape survivors with full force and in this regard a direction is required to be extended to all the health professionals of Union Territories of Jammu and Kashmir, and Ladakh, so that the judgment of the Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare, Govt. of India, on the subject are taken seriously.”

Most significantly, the Bench then directs in para 23 that, “In view of what has been discussed hereinbefore, we direct that all the Courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments. A further direction is issued to all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh to strictly desist from undertaking “two finger test” known as “per-vaginum examination” on the rape survivors.”

Finally, the Bench then holds in the last para 24 that, “Copies of this order be sent to the Registrar General of the High Court and Secretaries to the Govt., Health Department of Union Territories of J&K and Ladakh with a direction to circulate the order to all Courts/Hospitals for ensuring its compliance in letter and spirit.”

In essence, it is a brilliant, bold and blunt judgment. It clearly, cogently and convincingly deprecates the reprehensible tendency to disclose the name of the rape survivors in the court proceedings as well as in the judgments by the courts and urges to desist from the same! Most relevant case laws are cited and relevant guidelines for health professionals issued by the Health Ministry is also stated as mentioned above. The two Judge Bench of the Jammu and Kashmir High Court comprising of Acting Chief Justice Rajesh Bindal and Justice Sanjay Dhar very aptly directs all the courts to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutrix.

One hopes fervently that all the courts would always strictly adhere to what the two Judge Bench of Jammu and Kashmir High Court have held so explicitly, elegantly and effectively in this leading case while dealing with rape cases! Two finger test must also be completely and strictly banned as it unabashedly lowers and degrades the sacred and supreme dignity of women which is completely unacceptable and cannot be justified on any pretext! No denying or disputing it!

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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