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Enrica Lexie Case: A study

Byron Sequeira

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The much-awaited Final award of the Enrica Lexie (also known as the Italian Marine case) is out, while the marines remain in Italy. On February 15, 2012, when the fishing boat ‘St. Antony’ set sail from Neendakara harbor in Kollam district in Kerala, little did the fishermen aboard it anticipate the danger which was awaiting them in the seas. They never thought such a tragic incident was awaiting them.

It must have felt like a regular day in their lives with the usual toil in seas for livelihood! The controversy had fomented an intense debate not only in India and Italy but also in the whole International Community. Moreover, it has caused a dangerous diplomatic crescendo between the two involved countries. Thus, the case provides the occasion for important reflections on a major and very debated topic of international law, i.e. the issue of state jurisdiction for crimes committed at sea.

 Factual Background

The Enrica Lexie is an Italian privately owned oil tanker. At the time of the incident, it was sailing from Singapore to Djibouti and had on board an Italian Vessel Protection Department (VPD), since the International Maritime Organization (IMO)had declared the waters alongside Kerala a high-risk area for piracy. The case dates back to 15th February, 2012 at a distance of about 20.5 nautical miles from the coastline, a fishing boat ‘St. Antony’ happened to pass “Enrica Lexie”, a tanker flying the Italian Flag. The two marines (Massimilano Latorre and Salvatore Girone) aboard the ship mistook ‘St. Antony’ for a pirate boat and had opened fire at it. After the report of an armed attack and the killing of two fishermen that were on board the Indian fishing boat St. Antony, the Enrica Lexie was intercepted by the Indian Coast Guard at 20.5 nautical miles from the coast of Kerala and compelled to dock at the Kochi Port. There, two members of the VPD, Massimiliano Latorre and Salvatore Girone, were brought into custody and charged with homicide, receiving a First Information Report (F.I.R.) on 19 February 2012.

On 22 February 2012, Italy filed a petition to the High Court of Kerala for the quashing of the F.I.R. and all subsequent acts. At the same time, Italy asserted exclusive jurisdiction over the Enrica Lexie and started a criminal process against Latorre and Girone, who were charged with murder before the Tribunal of Rome. Nevertheless, the Kerala High Court dismissed the Italian petition by stating that Indian Courts were also entitled to exercise jurisdiction over the case, and started proceedings against the two marines for murder, attempt of murder and mischief. Consequently, Italy filed a second written petition, this time addressed to the Supreme Court of India, ‘challenging the jurisdiction of the State of Kerala and the Circle Inspector of Police, Kollam District, Kerala, to register the F.I.R. and to conduct investigation on the basis thereof or to arrest the petitioner [s]’. With this second writ, Italy prayed ‘for quashing of F.I.R.’ since the same was ‘without jurisdiction, contrary to law and null and void.

On 18 January 2013, the Supreme Court of India ruled that the High Court of Kerala was not entitled to prosecute the case, but that ‘it is the Union of India which has jurisdiction to proceed with the investigation and trial of the Petitioner[s]’, and established that India had to ‘set up a Special Court to try this case’s. In April 2013, the Indian National Investigation Agency, the agency empowered to combat terrorism related crimes in India, was entrusted with the prosecution of the case. The agency decided to try the two Italian marines on the basis of the Indian SUA Act, by which India has implemented the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention). By invoking this law, Indian authorities qualified the incident as an act of maritime terrorism. This episode generated new diplomatic tensions since Italy strongly disagreed with equating the Enrica Lexie incident to an act of terrorism perpetrated by the Italian marines. Moreover, by applying this provision, Latorre and Girone could have faced death penalty. Eventually, India’s central government ordered the ad hoc tribunal to downgrade the charge from maritime terrorism under the SUA Act to murder.

On 26 June 2015, after several deferments of the trial by Indian Courts, Italy decided to submit the dispute to the International Tribunal for the Law of the Sea (ITLOS), pursuant to Annex VII of the UNCLOS, and asked the ITLOS to issue provisional measures stating that ‘India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident […] throughout the duration of the proceedings before the Annex VII Tribunal’. On 24 August 2015, ITLOS issued its provisional measures and ordered that ‘Italy and India shall both suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardise or prejudice the carrying out of any decision which the arbitral tribunal may render. The ITLOS later referred the matter to the Permanent Court of Arbitration. From 8 July to 20th July 2019, the hearing was held at the seat of the PCA at the Peace Palace, the Hague, Netherlands.

Legal Controversy

According to Italy, the incident was characterised by a series of violations of international law by the Indian authorities. Namely, Italy contended that i) Indian authorities ‘acting by ruse and by coercion’ intercepted the Enrica Lexie in international waters and caused it to change its course and put into port in Kochi; ii) Indian armed personnel ‘boarded the vessel, undertook a coerced investigation of the ship and interrogations of its crew’, and iii) sergeants Latorre and Girone were arrested and have been subject to the custody of the Indian courts ever since. Moreover, Italy claims that the only courts empowered with the right of prosecuting Latorre and Girone are Italian courts, by invoking the exclusive flag state jurisdiction. Italy, thus, maintains that Indian authorities lack both enforcement and prescriptive jurisdiction over the matter. On the other hand, India claimed that the case falls within its prescriptive and enforcement jurisdiction, and argues that ‘as the victims were Indian nationals and they were killed on board an Indian fishing vessel […] early assertion of jurisdiction byItaly does not preclude India from exercising jurisdiction over the killing of its nationals who were fishing in India’s exclusive economic zone’. The case is relevant and has received a widespread media coverage and doctrinal attention, since it illustrates ‘the complexity that arise in managing jurisdictional conflicts and deciphering the relationship between international and domestic law’. Using the Enrica Lexie incident as a case-study, the purpose of this article is precisely to underline how, despite the ratification of UNCLOS, the provisions of international law concerning state jurisdiction over the seas are not easy to interpret and apply, and can thus give rise to complex legal controversies between States.   

Holding of the Permanent Court of Arbitration

After a much long-awaited International controversy, on 2nd July 2020 the Permanent Court of Arbitration has unanimously held that India is entitled to claim compensation from Italy. It also held (by 3:2 majority) that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines. Further it was held that Italy has acted in breach of the Article 87, paragraph 1, subparagraph (a), and Article 90 of the United Nations Convention for the Law of the Sea and that India is entitled to payment of compensation in connection with “loss of life, physical harm, material damage to property (including to the ‘St. Antony’) and moral harm suffered by the captain and other crew members of the ‘St. Antony’”, which by its nature cannot be made good through restitution.

India’s stand

An application has been filed on behalf of Union of India, seeking disposal of the matters pending in the Supreme Court regarding the criminal proceedings against Italian marines in respect of the incident of firing of fishing boat near Kerala shores on February 15, 2012. The Union has stated that it has “decided to accept and abide” by the order passed by the Tribunal which held that India is entitled to claim compensation from Italy and that India is precluded from exercising its jurisdiction over the marines.

TAKEAWAYS FROM THE DECISION

There were many points which were decided in favour and against for India.

In favour

 1. The PCA tribunal Award holds that as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony”.

2. The Award finds that by interfering with the navigation of the “St. Antony”, Italy has acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.

3. The award reaffirms that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention and holds that the said finding in the award constitutes adequate satisfaction for the injury to India’s nonmaterial interest.

4. That there is no need to address the question of the compatibility with UNCLOS of India’s 1976 Maritime Zone Act and its 1981 notification.

5. The PCA retains jurisdiction, should either party or both parties wish to apply for a ruling from the PCA in respect of the qualification of compensation due to India.

6. That India has not acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 92 of the Convention.

7. That Article 97, paragraphs 1 and 3, of the convention are not applicable in the present case.

8. That India has not violated Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case.

 Against

1. The award concludes that the Italian marines are entitled to immunity in relation to the acts they committed on the disputed incident of 15th February 2012, and that India is precluded from exercising its jurisdiction over the Marines.

2. That India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required.

3. That Italy has not infringed on India’s rights under Article 88 of UNCLOS.

4. That Italy has not violated India’s sovereign rights under Article 56 and further has not violated 58, paragraph 3 of the Convention.

Concluding remarks

The ruling of the Arbitral Tribunal shouldn’t be considered a win or loss for either of the nations. However, the cardinal question on which the whole Enrica Lexie case was centred related to the prescriptive and enforcement jurisdiction of both India and Italy over the two marines. Finally, a decision has emerged given that the subject matter of the dispute involved certain grey areas of international law.

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Legally Speaking

POSSESSION/OWNERSHIP OF PROPERTY RELEVANT CONSIDERATION FOR PROCEEDINGS AGAINST ELECTRICITY THEFT, OBSERVES GUJARAT HIGH COURT

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The Gujarat High Court in its recent order in the case State of Gujarat Versus Balvantsinh Amarsinh Raj observed while upholding the acquittal of a man under Section 135 of the Electricity Act for alleged unlicensed connection has made it clear that possession/ownership of the property in question has to be factored into consideration.

The bench comprising of Justice Ashokkumar Joshi observed and rejected the State’s appeal on several grounds, which includes the fact that the Police did not call for any certificate or documents to show the ownership or possession of accused for the so-called place of occurrence.

The Court held that the order of the trial court has meticulously considered all the depositions of the witnesses and the state has failed to prove the case against the Accused-Respondent and the trial court’s order did not warrant any interference.

It was observed that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at by any reasonable person would not be arrived at.

The Deputy Engineer of the South Gujarat Vij Company Ltd lodged a complaint accusing the Respondent of theft of electricity. Alleging, the Applicant did not have a regular connection and he had obtained illegal direct connection from low transmission line. The allegations were made that an average bill of Rs. 2 lacs were prepared and issued to the Accused which was not paid by him and thus an instant complaint was filed.

The Trial’s court order is opposed by the APP by relying on the deposition of several witnesses who were said to be ‘reliable and trustworthy’ and other documentary evidence.

It was argued by the respondent that it was not proved by the Prosecution that the ownership of the premises belonged to the Accused. However, there was no need to interfere with the judgement order.

It was noticed by the bench of Justice Joshi that the lineman at the respective time was cross-examined and had admitted that he had no knowledge of the number of persons who were residing at the place. In the market, the captioned wire which was confiscated was easily available and did not contain any piece of marking paper. Further there was no PVC/Wire wiring at the residential place of the Accused person. It was also admitted by the Panch Witness that theft was not possible through the captioned wires. Another Panch Witness had turned hostile.

It was also admitted by the In-Charge PSO at the Police Station that he merely registered the offence and had done ‘nothing’ except for this. Consequently, there was also no evidence for the possession or ownership of the place of occurrence by the Accused.

Accordingly, the bench dismissed the State’s appeal.

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand

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Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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Legally Speaking

‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

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The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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Legally Speaking

VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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Legally Speaking

CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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