Honey trap case: Delhi High Court denies anticipatory bail to woman who ‘threatened’ man with false rape charges - The Daily Guardian
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Honey trap case: Delhi High Court denies anticipatory bail to woman who ‘threatened’ man with false rape charges

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Delhi HC

We see day in and day out endless debates, discussions and deliberations in various news channels, news portals and so also in other sources of media on how women suffers immeasurably at the hands of men and strident chorus of voices demanding the most strictest punishment for such men who dare to indulge in crimes of any kind against women. But what when women makes a hell of men’s life and coerces him to meet all her utopian demands? Mostly she escapes very easily and we rarely ever get to see any protest!

Simply put, we don’t see the same happening here when men is punished most wrongly. But his leading case is an exception! We must note here how in this learned, latest, laudable and landmark judgment titled Ishu vs The State in Bail Appln. 2837/2021 delivered just recently on August 16, 2021, the Delhi High Court has denied anticipatory bail to a woman who allegedly threatened a man of filing rape case against him if he failed to meet her demand of Rs 2 lakhs. It also commendably observed that, “This is a case of honey trap.” It must be also apprised here that the Single Judge Bench of Justice Subramonium Prasad of Delhi High Court was dealing with the anticipatory bail filed by a woman accused for offences punishable under Section 328 (Causing hurt by means of poison etc with intent to commit an offence), 389 (Putting person in fear of accusation of offence, in order to commit extortion) and 34 (common intention) IPC.

To start with, the Single Judge Bench of Justice Subramonium Prasad of Delhi High Court who authored this brief, brilliant, balanced and bold judgment sets the ball rolling by first and foremost putting forth in para 1 that, “The petitioner has filed the instant petition under Section 438 Cr.P.C. for grant of bail in the event of arrest in FIR No.118/2021 dated 10.04.2021 registered at Police Station South Rohini for offences punishable under Sections 328, 389 and 34 IPC.”

To put things in perspective, the Bench then enunciates in para 2 that, “The brief facts leading to this bail application are as under:

a) A complaint was filed by one Rishab Jain (Complainant) stating that he has a business of marble and tiles and he runs a Shop at B-81, Marble market, Mangolpur Kalan, opposite Indian Bank, New Delhi. He stated that on 01.04.2021, one Nikhil Bhattal, whom the complainant knew, came to his shop and asked for some good quality marble stones/tiles for renovation of his residence and he insisted that the complainant must visit his house. It is stated that when the complainant visited the house of the said Nikhil Bhattal, he introduced the complainant to his girlfriend, lshu @ Bobby (the petitioner herein). It is stated that the petitioner lives with Nikhil Bhattal. It is stated that the petitioner offered a soft drink to the complainant. It is stated that after consuming the drink the complainant started feeling dizzy. It is stated that the said Nikhil Bhattal asked the complainant to take rest and he left the room. It is stated that after Nikhil Bhattal left the room the petitioner herein came close to the complainant and started rubbing his head and thereafter the complainant became unconscious. It is stated that when the complainant regained consciousness he was shocked to see that the petitioner was rubbing his private part. It is stated that the complainant went outside the room. It is stated that when Nikhil Bhattal came back, the complainant narrated the incident to him. It is stated that on hearing about the incident Nikhil Bhattal got furious and broke the phone of his girlfriend. It is stated in the complaint that thereafter demands for a mobile phone, a TV and Rs.2,00,000/- in cash were made and the complainant was threatened that if demands are not met the petitioner herein would file a case of rape against the complainant. It is stated that after the incident the complainant was called more than 25 times for payment of money. The complainant also produced various voice recordings to substantiate that the petitioner and Nikhil Bhattal are demanding money from the complainant and threatening him that if their demands are not met a case of rape would be filed against the complainant. FIR No.118/2021 dated 10.04.2021 was registered at Police Station South Rohini for offences punishable under Sections 328, 389 and 34 IPC.

b) It is pertinent to mention here that the petitioner and Nikhil Bhattal also filed a complaint against the complainant herein, being FIR No.119/2021, dated 10.04.2021, for offences under sections 376/506 IPC.

c) The co-accused Nikhil Bhattal was arrested on 11.04.2021. He has been granted bail by this Court vide order dated 22.07.2021 in BAIL APPLN. 1520/2021.

d) The petitioner filed an application for anticipatory bail, being Bail application No.2776/2021, before the learned Sessions Judge, North West District, Rohini Courts, which was rejected vide order dated 30.07.2021.

e) The petitioner has, thereafter, approached this Court by filing the instant bail application.”

As it turned out, the Bench then envisages in para 3 that, “Notice was issued on 04.08.2021. Status Report has been filed. The Status Report indicates that in the voice recording the petitioner herein is also heard demanding a TV and a Mobile phone from the complainant. It is also mentioned in the Status Report that the petitioner is being heard threatening the complainant of dire consequences. It is stated in the Status Report that the petitioner has no permanent address and her mobile phone is also switched off. It is stated in the Status Report that despite making all efforts the Police has not been able to arrest find the petitioner and she is evading arrest.”

Needless to say, the Bench then states in para 4 that, “Heard Mr. Viraj Datar, learned Senior Counsel for the petitioner, Mr. Rahul Chandlok, learned counsel for the complainant and Ms. Kusum Dhalla, learned APP for the State and perused the material on record.”

On the one hand, the Bench discloses in para 5 that, “Mr. Viraj Datar, learned Senior Counsel appearing for the petitioner states that the fact that the petitioner was trying to prepare her defence and therefore the fact that she did not join the investigation does not mean that the petitioner was absconding. He states that the petitioner had gone to the Police Station and her statement under Section 164 Cr.P.C was recorded in the complaint filed by her against the complainant on allegations of rape. He states that the mere ipse dixit in the Status Report that the petitioner is absconding does not hold water. He states that the Police have not taken any steps/action against the petitioner by filing applications before the concerned Court to declare the petitioner a proclaimed offender. He further states that other than taking voice samples there is no necessity for arresting the petitioner and therefore the petitioner should be granted anticipatory bail.”

On the other hand, the Bench then reveals in para 6 that, “Per contra, Ms. Kusum Dhalla, learned APP contends that the petitioner was not available at her residence when the Police went there and the petitioner had not joined the investigation. She also states that the FIR was lodged on 10.04.2021 and the Police did not rush to the court by moving an application without taking all efforts to ensure that the accused against whom allegations are made joins the investigation. She states that the present case is one of honey trap and the fact that the petitioner gave her statement under Section 164 Cr.P.C. would have no relevance because the first step in a case of rape is to record the statement of the prosecutrix under Section 164 Cr.P.C.

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She further states that the moment the complainant filed the instant FIR the petitioner has gone into hiding and she has surfaced only when the co-accused, Nikhil Bhattal, was granted bail by this Court. She further states that the investigation is at a very nascent stage, qua the petitioner, the petitioner is alleged of an offence under Section 328 IPC for which the petitioner can be punished with up to ten years of imprisonment. She states that the conduct of the petitioner shows that she can abscond and therefore the petitioner ought not be granted anticipatory bail.”

Adding more to it, the Bench then states in para 7 that, “Mr. Rahul Chandlok, the learned counsel for the complainant supports the case of the prosecution and states that the petitioner and the co-accused have constantly threatened the complainant and have demanded money. He states that it is a case of honey trap and anticipatory bail ought not to be given to the petitioner.”

Most significantly and also most remarkably, what forms the cornerstone of this notable judgment is that the Bench then envisages eloquently in para 8 that, “A reading of the FIR shows that this is a case of honey trap. The allegation against the petitioner is that she has threatened the complainant and has demanded money. Material on record shows that only when the complainant filed the instant FIR, the petitioner filed her complaint under Section 376 IPC against the complainant herein. Investigation is at a very nascent stage. The petitioner is accused of an offence under Section 328 IPC which permits for imprisonment up to four years.”

Be it noted, the Bench then also points out in para 9 that, “The parameters that are necessary for consideration for grant of anticipatory bail are well settled. The Court while granting or rejecting to grant bail has to take into account several facts such as:

a. The nature and gravity of the accusation and the exact role of the accused ;

b. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

c. The possibility of the applicant to flee from justice;

d. The possibility of the accused’s repeating similar or other offences;

e. The court has also to take into account reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.”

Quite significantly, the Bench then remarks in para 10 that, “It is well settled that while considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely:

a) no prejudice should be caused to the free, fair and full investigation and;

b) there should be prevention of harassment, humiliation and unjustified detention of the accused.”

No less significant is what is then pointed out in para 11 that, “Charge-sheet qua the petitioner is yet to be filed. The petitioner’s voice sample has to be taken and the investigation has also to be conducted as to whether there are any other cases in which the petitioner is involved and as stated earlier the investigation is at a nascent stage. The petitioner is accused of an offence under Section 328 IPC, which is a serious offence. There is some justification in the contention of the learned APP that the conduct of the petitioner does show that there is a likelihood of her fleeing from justice and that she would not cooperate with the investigation. The probability of the petitioner and the co-accused, Nikhil Bhattal, extending threats to the complainant cannot be ruled out at this stage.”

As a corollary, the Bench then holds in para 12 that, “In view of the above, this Court feels that this is not a fit case where the petitioner should be granted bail in the event of arrest.”

Finally, it is then held in para 13 that, “Accordingly, the petition is dismissed along with the pending applications, if any.”

No doubt, whenever a woman is found to be brazenly indulging in any such act whereby she deliberately and maliciously tries to falsely implicate the men in a fake case, she must be denied anticipatory bail and dealt with most strictly. It is the bounden duty of our law makers to deliberate most seriously on this increasing misuse of penal laws against men and act promptly in this direction by inserting strictest punishment in all such cases when she is found to be falsely indulging in the same for greed of money or some other vested interest! Women is now matching shoulder to shoulder with men in all fields then why should she be given a blank cheque even now also to harass, humiliate and harangue men to the hilt whenever she wants, wherever she wants and whatever manner she wants?

It goes without saying that women also must be made to face the music and suffer jail term as also made to pay a heavy penalty for defaming men and implicating him without any sufficient cause! This is the crying need of the hour also! The earlier this is done, the better it shall be in the larger interests of our country as no women would be able to make a hell of the life of an innocent men as per her own whims and fancies! We all know too very well that how many women blatantly misuse anti-dowry laws against men and so also misuse domestic violence laws apart from other laws enacted for their benefit against men. This must end!

Sanjeev Sirohi, Advocate

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Young police officer lynched to death by mob has put humanity, spirit of Kashmiriyat to shame: J&K & Ladakh HC

‘It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.’ If bail is given even in such cases then who will fear the ‘rule of law’?

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In a brief, brilliant, bold and balanced judgment titled Peerzada Mohammad Waseem Vs Union Teritory of J&K in CrlA(D) No.10/2021 that was reserved on 26.08.2021 and then finally pronounced on 02.09.2021, the Jammu and Kashmir and Ladakh High Court has denied bail to a man accused of lynching a Deputy SP of 3rd Battalion Security after observing that his act has put humanity and spirit of Kashmiriyat to shame. While calling it a heinous and serious offence, Chief Justice Pankaj Mithal and Justice Sanjay Dhar observed most candidly, commendably, cogently and convincingly that, “It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.” If bail is given even in such cases then who will fear the “rule of law”? The best example to cite here is what happened in Kashmir Valley in 1990 when lakhs of Kashmiri Pandits were either killed or forced to leave as refugees in their own country as their houses were burnt, women were raped and still we saw little action on the ground! This was when Kashmiriyat was worst vandalized and burnt in reality as we all saw for ourselves!

To start with, this learned, laudable, latest and landmark judgment authored by Justice Sanjay Dhar for himself and Chief Justice Pankaj Mithal of Jammu and Kashmir and Ladakh High Court sets the ball rolling by first and foremost observing in para 1 that, “Through the medium of instant appeal under Section 21(3) of the National Investigation Agency Act (hereinafter referred to as the NIA Act), appellant has challenged the order dated 12.05.2021 passed by learned Additional Sessions Judge, TADA/POTA (Special Judge Designated under NIA Act), Srinagar, whereby bail application of the appellant has been dismissed.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts giving rise to the filing of the instant appeal are that on 22.06.2017, while the holy festival of Shabe Qadar was being observed in Jamia Masjid, Nowhatta, the appellant and the co-accused raised inflammatory slogans against the Government of India and they caught hold of deceased Mohammad Ayoub Pandit Dy. S. P. of 3rd Battalion Security, who had been deployed in the area to supervise the manpower for access control at Jamia Masjid on the occasion of Shabe Qadar. The deceased was beaten up, dragged and lynched to death by the mob, of which the appellant was a part. His pistol was also snatched and the dead body was dragged and left at Batagali Nowhatta. Police registered FIR No.51/2017 for offences under Section 302, 148, 149, 392, 341 RPC read with 13 of Unlawful Activities (Prevention) Act and investigation of the case was set into motion. After conducting investigation of the case, the challan was presented before the trial court against 20 accused. Out of these, 17 accused were arrested and produced before the trial court at the time of presentation of challan whereas one accused Sajad Ahmad Gilkar was killed in an encounter prior to presentation of the challan. Two more accused including appellant herein absconded and they could not be produced before the Court at the time of presentation of the challan.”

To put things in perspective, the Bench then enunciates in para 3 that, “In terms of order dated 12.12.2017, the learned trial court framed charges for the offences mentioned in the charge sheet against 17 accused who had been produced before it at the time of presentation of the challan. During pendency of the trial, the appellant was also arrested and produced before the trial court. Charges against him for offences under Section 302, 148, 392, 341 RPC read with Section 13 ULA(P) Act were framed by the trial court in terms of its order dated 16.05.2019. The appellant/accused pleaded not guilty and trial against him also commenced.”

While continuing in the same vein, the Bench then envisages in para 4 that, “It appears that after recording of statements of some of the prosecution witnesses, the appellant/accused moved an application before the trial court for grant of bail on the ground that material prosecution witnesses to the extent of his case have turned hostile and, as such, he deserves to be enlarged on bail. The bail application came to be dismissed by the learned trial court vide its order dated 16.09.2020. The appellant preferred an appeal against the said order before this Court which was registered as CrlA(D) No.17/2020. Vide order dated 26.02.2021 passed by this Court, the order of learned trial court was set aside and the appellant was given liberty to move a fresh application before the trial court.”

As we see, the Bench then observes in para 5 that, “It appears that the appellant moved another application before the trial court on similar grounds as were projected by him in his earlier bail application and the same has been rejected by the learned trial court vide the impugned order dated 12.05.2021.”

Be it noted, the Bench then points out in para 9 that, “The contention of learned counsel for the appellant that the appellant was impleaded as an accused at the time of filing of supplementary challan and he was not an accused in the original challan is factually incorrect. In the first charge sheet itself filed by the Investigating Agency before the trial court, the name of appellant is shown in Column No.2 indicating therein that the said accused has not been arrested. In fact, after the presentation of the challan, the learned trial court has, vide its order dated 16.10.2017, issued general warrants of arrest against two accused including the appellant herein after recording satisfaction that there are no immediate prospects of his arrest. So, it is not a case where appellant/accused has been implicated in the case after presentation of the charge sheet but it is a case where involvement of the appellant/accused is based upon the evidence collected by the investigating agency which forms part of the first challan itself.”

Furthermore, the Bench then hastens to add in para 10 that, “The record further shows that the contention of the learned counsel for the appellant that he has moved an application before the learned trial court in terms of Section 272 of J&K Cr. P. C, wherein he has admitted the remaining part of the evidence which the prosecution proposes to lead in support of its case, is also factually incorrect. We could not lay our hands on any such application on the trial court record nor there is any interim order of the trial court evidencing the said fact.”

It is worth noting that the Bench then remarks in para 11 that, “That takes us to the merits of the contention of the appellant that material witnesses who have deposed about the involvement of the appellant having turned hostile, as such, no amount of evidence that may be led by the prosecution in support of its case would lead to his conviction. In this regard, a perusal of the trial court record shows that protected witnesses Mark E, F and K, who, during investigation of the case, have in their statements recorded under Section 164 of Cr. P.C, deposed about the involvement of appellant in the occurrence being part of the unlawful assembly, have turned hostile when their statements were recorded before the Court. All these three witnesses have admitted having made statements under Section 164 Cr. P. C before the Magistrate in which they have implicated the appellant/accused. Protected witnesses Mark F and K have stated that they made these statements under pressure from police whereas protected witness Mark E has stated that he does not recollect what was stated by him. These three witnesses have been cross-examined by the prosecution as well as by the defence. The question arises as to whether at the time of considering the bail application, it is open to this Court to give a finding even on prima facie basis with regard to reliability and evidentiary value of the statements of these witnesses.”

Quite significantly, the Bench then makes it a point to state in para 12 that, “At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case cannot be undertaken. What is the effect of statements of hostile witnesses would be a moot point to be decided during the course of trial of the main case and cannot be decided during bail proceedings. The mere fact that material witnesses have turned hostile, in our opinion, by itself is not sufficient to grant bail because of the simple reason that this Court cannot imagine what would happen till the disposal of the case. If the Court were to accept or to rely upon the evidence of the prosecution recorded by the trial court, it would amount to appreciation of evidence on record which is impermissible in these proceedings. Till the completion of evidence and the trial, appreciation of evidence at the time of granting or rejecting bail, this Court cannot step into the shoes of the trial court for the purposes of appreciating the material on record.”

Adding more to it, the Bench then makes it clear in para 13 that, “What would be the effect of prosecution evidence led so far, is an issue which cannot be determined by this Court and the same has to be determined by the learned trial court at the conclusion of trial. Even the Investigating Officer, who is a star witness in the case, is yet to be examined and without examining him, this Court cannot even frame a prima facie opinion as to the merits of the prosecution case. It is a settled law that conviction of an accused can be based even on the statements of hostile witnesses and the Investigating Officer provided the same inspire confidence. This question can be determined only by the trial court and not by this Court in these proceedings.”

As an aside, the Bench then brings out in para 14 that, “Learned counsel for the appellant has contended that the appellant has been in custody for quite some time now and in the face of the fact that material witnesses have turned hostile, it may work harshly against the appellant if he is kept in custody till the remaining evidence of the prosecution is recorded, particularly when there are no chances of his conviction.”

Truth be told, it cannot be just glossed over that the Bench then specifically points out in para 15 that, “A perusal of the trial court record shows that it is only in May, 2019, that charges have been framed against the appellant/accused and until that date, he was absconding. Due to COVID-19 pandemic, the normal work of trial courts got seriously hampered and in spite of this, a large number of witnesses have already been examined by the prosecution in the case. Therefore, it cannot be stated that there has been any delay in trial of the case.”

Most significantly, what forms the cornerstone of this remarkable, robust and rational judgment is then illustrated best in para 16 wherein it is held that, “Apart from the above, we also need to take into account the gravity of the offence and the circumstances in which the offence has been committed by the accused including the appellant herein. It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.”

Finally and as a corollary, the Bench then holds in the last para 17 that, “For the foregoing reasons, we do not find any merit in this appeal and the same is, accordingly, dismissed.”

In conclusion, every Indian must feel proud that this notable judgment by Chief Justice Pankaj Mithal and Justice Sanjay Dhar of Jammu and Kashmir and Ladakh High Court has made it absolutely clear that there has to be zero tolerance for mob lynching. Kudos to them for this! The Court very rightly refused bail to the offender. If they are not deal most firmly then we will only see the rise of Talibani forces in our country also whom even hard line Muslims like the most famous AIMIM chief Asaduddin Owaisi demands should be declared a terror organization!

Of course, it goes without saying that Owaisi has hit the “biggest and tightest slap” with “full force” on the ‘face’ of all such “Muslim Maulvis” and “other Muslims” and so called “secular leaders” who are welcoming Taliban like former CM Farooq Abdullah and Mehbooba Mufti among others who are demanding that India maintain bilateral relations with Taliban as they have become a reality now! Shame to UN if it watches all this like a mute and helpless spectator! Violence in any form can never be justified and if India starts justifying Taliban then this will ensure the return of hardline Islam in India just like it existed prior to the advent of Britishers during Aurangzeb’s rule among others which India can never afford under any circumstances as it will ensure that democracy is buried and India is converted into a hard line Islamic state or India is partitioned again and again which no true Indian no matter whether he is a Hindu or Muslim or anyone else would ever justify under any circumstances just like imposing monogamy on Hindus alone in 1955 can never be justified under any circumstances and this my best friend Sageer Khan resented most!

It is high time and monogamy also must be imposed on one and all straightaway as the population explosion is rocking our country and hitting us hard which alone explains why Sageer Khan felt most strongly that it should be abolished for one and all as this will ensure that India progresses, prospers and emerges powerful! Even Delhi High Court had recently called for uniform civil code! If uniform civil code is going to take time then why can’t polygamy be outlawed just like Pandit Nehru most commendably outlawed polygamy and polyandry for Hindus in 1955 even though Dr BR Ambedkar in his Hindu Code Bill favoured retention of polygamy among Hindus in his Hindu Code Bill 1951 due to which I term Pandit Nehru as “Real Father And Real Reformer Of Hindus”?

It merits no flogging again and again that law must be same for one and all as Sageer Khan used to often underscore so that no Hindu like eminent film actor Dharmender among others are forced to convert to Islam just for the sake of marrying and same was the case of son of former Haryana Chief Minister and Congress leader Bhajan Lal! Kowtowing in front of “hardline Islam” which Taliban preaches will definitely destroy our nation as Sageer Khan often pointed out way back in 1993-95 and now even Owaisi just recently has gone all out in making it absolutely clear and thundering that Taliban is a “terror organization” which has to be mocked with full force and it must be declared so by the Centre right now without wasting any time! Very rightly so!

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Non-communication of right to make representation against detention order violates constitutional right: MP HC

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While fully, firmly and finally endorsing the Constitutional right to make representation against the detention order, the Indore Bench of Madhya Pradesh High Court has in a learned, latest, laudable and landmark judgment titled Lokendra Singh v/s The State of Madhya Pradesh & Others in Writ Petition No. 12166/2021 delivered just recently on September 6, 2021 has quashed a detention order on the ground that it did not contain a stipulation informing the detenue about his right to prefer a representation against his detention by the detaining authority. It must be mentioned here that a Division Bench comprising of Justice Sujoy Paul and Anil Verma relied on a catena of judicial precedent to support their observations which they drew and they shall be discussed later on. It must also be apprised here that it was the petitioner’s case that the detention order did not mention that a representation can be sought before the same authority, thereby violating a valuable right of the petitioner under Article 22 of the Constitution of India.

To start with, the Division Bench comprising of Justice Sujoy Paul and Anil Verma of Indore Bench of Madhya Pradesh High Court who authored this brief, brilliant, balanced and bold judgment sets the ball rolling by first and foremost observing in the opening para that, “The singular point raised by the petitioner is that in the detention order dated 07.06.2021, the learned District Magistrate has not mentioned that detenue – Narendra Thakur can prefer representation against the detention order before the same authority namely District magistrate thereby violating a valuable right of the petitioner flowing from Article 22 of the Constitution of India. This point is squarely covered by a recent Full Bench Judgment of this Court passed in W.P. No.22290/2019 (Kamal Khare v/s The State of Madhya Pradesh) which is followed in W.P. No.9630/2021 (Gurubachan Singh Saluja v/s The State of Madhya Pradesh & Others) by this Court.”

It certainly cannot be just glossed over that the Division Bench then very rightly points out in the next para that, “Shri Vivek Dalal, learned Additional Advocate General for the respondents / State fairly admitted that the detention order does not contain any such stipulation that petitioner can prefer representation against the detention order before the same authority. He further agreed that on this ground, Full Bench in Kamal Khare (supra) has held that the detention order stands vitiated because of infringement of said right.”

Quite significantly, the Bench then observed in the next para that, “This Court in Gurubachan Singh Saluja (supra) followed the Full Bench decision and opined as under:-

“6) In one of the aforesaid matters (WP No.9792/2021), this Court held as under:-

31) Indisputably, the detention order does not contain any stipulation that the detenu has right to prefer representation before the same authority namely, District Magistrate. The reliance is placed on the recent Full Bench judgment of this Court passed in the case of Kamal Khare (supra). To counter this argument, the bone of contention of learned AAG was that the said Full Bench decision is distinguishable. Full Bench judgment is based on a constitution bench judgment in the case of Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51. In Kamleshkumar (supra), the Apex Court was dealing with the provisions of COFEPOSA Act and the PIT NDPS Act and not with NSA Act. Hence, the said constitution Bench judgment could not have been relied upon.

32) We do not see much merit in this argument because similar argument was advanced by the Govt. before Full Bench in the case of Kamal Khare (supra) which is reproduced in extenso in para-14 of the said judgment. The similar argument could not find favour by the Full Bench.

33) In Kamleshkumar (supra), Apex Court opined as under:-

“6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya [1951 SCR 167, 186 : AIR 1951 SC 157] .) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention.

14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.

38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.”

EMPHASIS SUPPLIED

34) The Full Bench after considering the constitution Bench judgment opined as under:-

“20. The Supreme Court in Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315 dealing with the aspect whether the Life Insurance Corporation Act, 1956 is a special statute qua the Industrial Disputes Act, 1947 when it came to a dispute regarding conditions of service of the employees of the Life Insurance Corporation of India held that the Industrial Disputes Act would prevail over the Life Insurance Corporation of India Act as the former relates specially and specifically to industrial disputes between the workmen and employers. Relevant discussion in paragraph No.52 of the report would be useful to reproduce hereunder:-

“52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes – so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission – the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, or management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to.”

30. Now coming to the question as to what would be the effect of not informing the detenu that he has a right of making representation, apart from the State Government and the Central Government, also to the detaining authority itself, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) even examined this aspect in paragraph No.14 of the report and categorically held as under:-

Please read concluding on thedailyguardian.com

“14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”

33. In view of the above, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) analyzed the effect of not informing the detenu of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal. The relevant paragraph No.47 is reproduced hereunder:-

“47. In both the appeals the orders of detention were made under Section 3 of the PIT NDPS Act by the officer specially empowered by the Central Government to make such an order. In the grounds of detention the detenu was only informed that he can make a representation to the Central Government or the Advisory Board. The detenu was not informed that he can make a representation to the officer who had made the order of detention. As a result the detenu could not make a representation to the officer who made the order of detention. The Madras High Court, by the judgments under appeal dated 18-11-1994 and 17.1.1994, allowed the writ petitions filed by the detenus and has set aside the order of detention on the view that the failure on the part of the detaining authority to inform the detenu that he has a right to make a representation to the detaining authority himself has resulted in denial of the constitutional right guaranteed under Article 22(5) of the Constitution. In view of our answer to the common question posed the said decisions of the Madras High Court setting aside the order of detention of the detenus must be upheld and these appeals are liable to be dismissed.”

Emphasis supplied

35) Another Division Bench in WP No.5866/2015 (Salma vs. State of MP) opined as under:-

“On the last date of hearing opportunity was granted to the learned counsel for the State to examine the law laid down b the Apex Court, which has been made applicable in the various cases by the Division Bench of this Court, in the matter of compliance of provisions of Article 22 (5) of the Constitution of India in the matter of detention itself, intimating the detenu that he/she is entitled to make a representation before the Detaining Authority himself against the order of detention. Such law was considered and made applicable in view of the law laid down by the Apex Court in the matter of State of Maharashtra and others Vs. Santosh Shankar Acharya (2000) 7 SCC 463, vary same law was made application by this Court in W.P. No.1830/2015, W. P. No.3491/2015, W .P. No.3677/2015 & W. P. No.3683/2015 in the following manner :

Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others vs. Santosh Shankar Acharya (2000) 7 SCC 463 in para 5 and 6 in particular. The Supreme Court following the dictum in the case of Kamleshkumar restated that noncommunication of the fact to the detenu that he could make a representation to the detaining Authority so long as order of detention has not been approved by the State Government in case the order of detention has been issued by the Officer other than the State Government, would constitute infringement of right guaranteed under Article 22(5) of the Constitution and this ratio of the Constitution Bench of the Supreme Court in Kamlesh kumar would apply notwithstanding the fact that same has been made in the context of provisions of COFEPOSA Act. In para 6 of the reported decision, the Supreme Court rejected the similar objection canvassed by the learned counsel for the State relying on Veeramanâ s™ case and noted that the said decision does not help the respondents in any manner. Inasmuch as, in that case the Court was called upon to consider the matter in the context of situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. In none of the cases on hand the observation in the case of Veeramani will have any application. Suffice it to observe that the detention order and the disclosure of the fact that detenu could make representation to the detaining Authority before the State Government considered the proposal for approval has abridged the right of detenu under Article 22(5) of the Constitution. As a result, the continued detention of the detenu on the basis of such infirm order cannot be countenanced.

These petitions, therefore, must succeed. The impugned detention orders in the respective petitions are quashed and set aside and respondents are directed to set the petitioners/detenu at liberty forthwith unless required in connection with any other criminal case.” Emphasis supplied

36) In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order. Resultantly, impugned order of detention dated 10/05/2021 is set aside.

37) In view of foregoing analysis, the impugned order of detention cannot sustain judicial scrutiny.

38) Before parting with the matter, we deem it proper to observe that the main grievance of detenue/complainant was that the District Magistrate while passing the order of detention did not inform him about his valuable right to prefer a representation against the detention order before the same authority namely District Magistrate. Full Bench recognized the said right of the detenue in light of the constitutional bench judgment in the case of Kamleshkumar Ishwardas Patel (supra). Thus, in the fitness of things, it will be proper for the State to ensure that henceforth in the order of detention, it must be mentioned that the detenue has a right to prefer a representation before the same authority.” Emphasis Supplied

7) In view of the Full Bench decision in Kamal Khare (supra) which was followed by Indore Bench in aforesaid matter, we deem it proper to set aside the impugned orders of detention.” Emphasis Supplied.”

Finally, the Division Bench then holds that, “In view of dicta of Full Bench in Kamal Khare (supra), the impugned order dated 07.06.2021 has become vulnerable and is accordingly set aside. The Writ Petition stands allowed.”

In a nutshell, it can thus be said that the Indore Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Anil Verma have made it absolutely clear that the non-communication of ‘right to make representation against detention order’ violates Constitutional right under Article 22 of the Constitution of India. It was rightly mentioned that the Constitutional Bench in Kamleshkumar Ishwardas Patel case noted that Article 22(5) must be construed to mean that the person detained has a right to make representation against the order of detention. This representation can be made not only to the Advisory Board but also to the detaining authority and any other authority that is competent under law to revoke the order for detention and thereby give relief to the person detained.

Sanjeev Sirohi, Advocate,

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One contract, two arbitrations: Res Judicata in international arbitration contradicting public policy

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Speed is the essence of arbitration. Parties opt for arbitration believing that it is a timelier dispute resolution cog. Unfortunately, however, this is often not the case. Complex, commercial arbitrations take momentous time to finish off and prosperous parties would then have to corroborate with challenges to the tangibility as well as enforcement of the arbitral award. Arbitrations are an increasingly civil element of long-term commercial relationships. However, the confidentiality of arbitral proceedings means there is a little publicly available aisle in the contour of awards to work for us to understand the complex legal and practical issues that arise in subsequent proceedings when an earlier tribunal has rendered a decision on a particular matter.

So, in general words resolution of the disputes emanating under the international commercial contract via the rotation of arbitration is known as International Commercial Arbitration. In addition, the 1996 Arbitration & Conciliation Act discerns ICA specifically as arbitration of a legitimate linkage which shall be contemplated commercially if either of the bands is a foreign national or an inhabitant or a foreign person in a commercial context, in accordance with section 2(1) (f) for International Commercial Arbitration. It is used as a better alternative to litigation, and the complete process is controlled primarily by the parties themselves instead of following the national legislation or an established procedure rules. Most of the international commercial contracts contain a dispute resolution clause that specifies that if any dispute arises under the contract, it could be resolved through arbitration, rather than litigation.

The rule of res judicata is the enormous regulation which is solidified in all refined countries by the authorised structures. The precepts of the res judicata should be blended to arbitral tribunals since arbitral courts are an alternative to courts and when an award is required to be included in the country’s lawful order.

OVERVIEW: COMMON LAW STILL MUDDIED WATERS OF COURT, SOMEWHAT

That’s an interest that is in principle, Common to all disputes whether common law, civil law, or even international or any other system form whether in litigation or arbitration. However, an international arbitration difficulty arises when you try to drill down in any given case on precisely what has been decided, and what can be revisited the multiplicity of governing laws that have a bearing on rescue gives rise to complexities that tribunals need to resolve as part of their mandate. Questions of rescue as they commonly arise in long term legal relationships can take many forms, including international projects, a natural resource can check concessions partnerships shareholder agreements and various other long-term investments. Unfortunately, the private and confidential nature of arbitration means that judicial guidance is in the way of the waters.

OBLIGATORY LAWS APPLICABLE TO ARBITRATION: A STANDPOINT

Indian laws procure for dispute resolution of any international commercial disputes through arbitration and conciliation act 1996 arbitration involving a foreign party, and with its seat in India will be considered as an ICA. In this case, the first part of the 1996 act of arbitration and conciliation will apply. If the seat is outside India, however, part two of the Act would apply rather than part one. This mechanism aims to nail the commercial disputes between the foreign and Indian entities within the framework of the Indian arbitration laws. Now being an international or domestic arbitration, the arbitration is of two types, number one, institutional arbitration. Secondly, in ad hoc arbitration, the parties agree to have an arbitral institution, administer the dispute. These institutions establish their own arbitration rules which would apply to their arbitration procedures. These rules supplement the existing provisions of the Arbitration Act in matters of procedure, and the other details, as the legislation permits the dispute dealt by There may also be general and specific in nature, the arbitration Institute’s have fixed the arbitrators fees, administrative expenses, qualified arbitration panels rules governing the arbitration proceedings, etc, which exalted in smooth and orderly conduct of arbitration in India.

FINAL AWARD: INITIATING ARBITRATIONS UNDER MULTIPLE ARBITRATION AGREEMENTS

The filing of arbitrations established in multiple arbitration agreements, incorporated in two (or more) diverse agreements, in a single arbitration proceeding may be conceivable, but must be accomplished with caution.

ADR is an undertaking to ad lib machinery which ought to be competent of rendering substitute to the conventional outlines of untangling confrontations. The genealogy of the alternative resolution of disputes may be described in India. Corpses like the Panchayat, a group of people in a geriatric or persuasive hamlet who agree on a quarrel among locals, are still not exceptional today. The appointed judicial agent was the Kazi, which adjudicated disagreement between persons under the Principles of Muslim Law in Indian culture. There are several instances documented where the Kazi decided on a matter outside the law by getting the parties to approve a solution reached through conciliation without really adding that colour to the judgement. The 1996 Arbitration and Conciliation Act is a Parliament attempt to adopt an overall strategy to the settlement of alternatives to disputes in India. It is an act that enables conflict settlement either through arbitration or conciliation. In connection with international arbitration, the doctrine of res judicata might be combined. Res judicata fits in with the symposia on “post-award issues” solely to the extent that it concerns the repercussions of arbitrative awards. In this context, questions are arising as to whether a given arbitral award is res judicata in the same arbitrage (whereas the question arises of the effects in the subsequent phases of the same arbitrations of partial or interim awards), other arbitrations (whether or not based on the same arbitration agreement) and proceedings before domestic courts. Additional aspects of the doctrine which do not involve awards and which are therefore beyond the scope of this discussion are the res judicata effects of domestic judgments (for example findings of nullity or ineffectiveness of an Arbitrative Agreement) in arbitral or domestic courts and the res judicata effects in Arbitration Process.

The Final Award is the climactic ruling in an arbitration that has significant sequels, in the perception that it is the climax of an animosity, or a dispute shelved to an arbitral tribunal or a sole arbitrator, and it will concuss the contracts between the parties and may not chiefly be played against. In addition to stapling the legal or factual antagonisms between the parties, the Final Award may also speculate upon the version of contract stints or distinguish the respective liberties and obligations of the parties to a contract.

EPILOGUE

In other words, the arbitrator’s judgement on the application of the concept should also be respected by the court.

But while analysing circumstances of res judicata and restricting their powers accordingly, Arbitrators should meticulously do their analyses, since their wrong conclusion in relation to a prior award or judgement would likewise contradict public policy.

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Obliviating the oral regime

‘Judgments cannot be treated as mere counters in the game of litigation.’

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The above excerpt from the judgment of Lord Atkinson in ‘Somasundaran vs. Subramanian; AIR 1926 PC 136’, encapsulating the sanctity and solemnity of the court orders and judgments, was quoted with approval by Justice Chinnappa Reddy in ‘State of Maharashtra vs. Ramdas Shrinivas Nayak; (1982) 2 SCC 463’, where the Supreme Court was seized of the questionwhether the State of Maharashtra could be allowed to resile from the concession made before the High Courtas recorded in the judgment. During the course of hearing before the Court, Shri A.K. Sen, who hadappeared for the State of Maharashtra before the High Court, protested that he never made any such concession and invited the Court to peruse the written submissions made by him in the High Court. However, the Supreme Court declined the request and categorically observed that, “we cannot and we will not embark upon an enquiry. We will go by the judges’ record.”. The Court mentioned that the “Matters of judicial record are unquestionable” and that it is restrained by judicial decorum and public policy from launching an inquiry as to what transpired in the High Court. It was further observed by the Court that, “We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.”. The Supreme Court accorded utmost precedence to the judicial record; not allowing it to be contradicted by either the lawyer or the litigant, except the judge herself.

The recent judgment of the Hon’ble Supreme Courtdated 31st August 2021 in ‘Salimbhai HamidbhaiMenon vs. Niteshkumar Maganbhai Patel & Anr.; 2021 SCC OnLine SC 647’, embarks on the same spirit and principle enunciated in R.S. Nayak(supra), and observes that, “Judges speak through their judgments and orders. The written text is capable of being assailed. The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable.”. This observation came to be made by the Court apropos the procedure followed by the High Court in issuing an oral direction restraining the arrest of the first respondent. While the text of the order of that particular date did not contain any such direction, however, the subsequent order passed by the High Court adverted to such oral direction and directed immediate release of the accused. The Supreme Court found it ‘irregular’ and observed that a specific judicial order was necessary for grant of an interim protection against arrest to the accused. It also observed that, “Oral observations in court are in the course of a judicial discourse. The text of a written order is what is binding and enforceable.”. The Supreme Court, in this matter, has gone even a step further from R.S. Nayak(supra) and said that even a Judge cannot contradict the judicial record and are accountable for their actions.

Albeit, the Supreme Court has confined itself to the shortcomings of issuing oral direction in a criminal proceeding and the concomitant necessity of a written order, and has distinguished a criminal proceeding from a civil proceeding based on the infusion of interests of State and society in prosecution of the former, the same yardstick has been consistently applied by the Supreme Court in civil cases also. The principle is well settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.

In ‘Associated Tubewells Ltd. v. R.B. GujarmalModi; AIR 1957 SC 742’, the Supreme Court had deprecated the practice of referring to a conversation which took place in Court but not found a place in the written order, stating that,

“3. We cannot, however, part from this matter without placing on record our very strong disapproval of the course that the advocate — a very Senior Counsel of this court — has adopted in making this application. In the review application he has referred in detail as to what, according to him, happened in court on the prior occasion and what each Judge said in the course of the arguments. The review application sets out at length what the presiding Judge said and expressed in the course of the arguments and what his views were and what the other Judges of the Bench said and expressed and what the view of each was. These statements are followed by a confident assertion how and why the application was dismissed.

5. Judges of this Court cannot be dragged into a controversy as to whether the statements ascribed to them are correct, or express correctly and fully what they had in view. …. ..It is not consistent with the dignity of the Court and the decorum of the Bar that any course should be permitted which may lead to controversy as to what a Judge stated in Court and what view he held. Such matters are to be determined only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. To permit the atmosphere of the Court to be vitiated by such controversy would be detrimental to the very foundation of the administration of justice.”

The Supreme Court, with its earlier judgments, had set the tone for the course to be followed by the judges in abstaining from issuing oral directions. Now, with its latest pronouncement in Salimbhai(supra), the Supreme Court has decisively and succinctly laid down thereasons for eschewing such conduct, and observed that,“Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse. Most High Courts deal with high volumes of cases. Judicial assessments change with the roster. Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations.”.

A couple of months ago, the author also has had the misfortune of being caught up in such an ugly spectacle. There was no written order/direction by the Ld. Judge, yet the Counsel for the other side insisted than an oral direction was indeed issued. To the great dismay and discomfiture of the author, the Ld. Judge observed that this is a long-standing practice of this (Delhi) High Court that, at times, the Court issues oral directions and the parties abide by such directions. Hopefully, with the latest pronouncement of the Supreme Court, such things would cease in all High Courts, including the Delhi High Court. It can be very embarrassing for the Court and the Counsel. Your humble author can only add that in this day and age of virtual hearings, the written orders assume even a greater significance. It requires no gainsaying that VC is prone to frequent disturbances and disconnections, and this could potentially and occasionally lead to oral directions of the Court or oral undertaking of the Counsels going unnoticed, unheard or unregistered by the parties concerned. And when such oral directions/undertakings are not recorded in the written order, it may lead to a myriad of consequences and complexities; one such we have already seen in Salimbhai(supra). This may well change with the live transcription or telecast of court proceedings, as is done in the Central and State legislature/s and jurisdiction of other democracies like Australia, Brazil, Canada, England, Germany and US. While web portals like Bar&Bench, LiveLaw etc. have been transcribing the court proceedings in a few matters, there has been no occasion for the Court/lawyers hitherto to rely upon or refer to such transcriptions as means of confirming the oral directions/observations made by the Court. It’s anybody’s guess whether the Courts would repose their faith and trust in these online transcripts, or introduce a Court approved transcription/recording of proceedings. But until then, Hon’ble Justice D.Y. Chandrachud has sounded a cautionary note for all Courts to follow, and rightly so.

The Court mentioned that the “Matters of judicial record are unquestionable” and that it is restrained by judicial decorum and public policy from launching an inquiry as to what transpired in the High Court. It was further observed by the Court that, “We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.”. The Supreme Court accorded utmost precedence to the judicial record; not allowing it to be contradicted by either the lawyer or the litigant, except the judge herself.

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Sentencing on the same day as conviction denies an effective hearing: MP HC commutes death sentence to life imprisonment

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In a well-articulated, well-researched, well-analysed, well-reasoned, well-written, well-substantiated and well-concluded judgment titled In Reference (Suo Motu) vs Yogesh Nath @ Jogesh Nath in Criminal Reference Case No. 05/2020 & Criminal Appeal No. 4965/2020 that was reserved on 26 August, 2021 and then finally pronounced on September 8, 2021, the Gwalior Bench of Madhya Pradesh High Court made it absolutely clear that sentencing on the same day as conviction denies an effective hearing. This alone explains why the Gwalior Bench had just no inhibition in referring specifically to the most historic Bachan Singh’s case (Bachan Singh vs State of Punjab AIR 1980 SC 898) to observe clearly that the accused was denied an effective hearing. It must be mentioned here that a Division Bench of Justices GS Ahluwalia and Rajeev Kumar Srivastava made it a point to note that no sufficient opportunity was given to the accused-appellant for placing mitigating circumstances on record. It was further also pointed out that the trial court did not consider the grant of any alternative punishment or the possibility of reformation.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Rajeev Kumar Shrivastava for himself and Justice GS Ahluwalia of Gwalior Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost observing in para 1 that, “This judgment shall govern the disposal of Criminal Reference Case No. 05/2020 as well as Criminal Appeal No. 4965/2020, as both arise out of judgment dated 16.09.2020 passed by Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) in Special Sessions Trial No. 122/2017.”

To put things in perspective, the Bench then puts forth in para 2 that, “As per Criminal Reference Case No.05/2020, Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) vide judgment dated 16.09.2020 in Special Sessions Trial No. 122/2017, having found the accused guilty under Sections 363, 377, 302, 201 (Part-1) of IPC and under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’), has inflicted penalty of death sentence and has submitted the matter for confirmation under Section 366 of Cr.P.C.”

While elaborating on the facts of the case, the Bench then enunciates in para 4 that, “The short facts of the case are that on 28.04.2017, Ashok Adiwasi along with his family members, his wife Jasoda, daughters Pooja, Arti and sons Daulat & deceased ‘A’, attended the marriage ceremony of Varsha, who is the daughter of Dharmendra. Deceased ‘A’ was aged around 10 years. After attending the marriage function Ashok Aadiwasi returned back home with his family members excluding deceased ‘A’. As deceased ‘A’ was missing, hence Ashok Aadiwasi tried to search the deceased ‘A’ but his efforts left in vain. On the next day morning, he was informed that dead body of deceased ‘A’ is found in the dug of village Bara and the body of deceased ‘A’ is nude. This information was furnished to the Police Station Bahodapur. On account of that, Hemlata, Sub-Inspector of Police Station Bahodapur reached on the spot and recorded Dehati Nalishi. On the basis of Dehati Nalishi, thereafter FIR was set into motion at Crime No. 260/2017 and offence was registered under Sections 377, 302, 201 of IPC and under Section 3/4 of POCSO Act, on 29.04.2017, i.e., Ex.P/15.”

Needless to say, the Bench then states in para 7 that, “After completion of investigation, charge sheet was filed. The trial Court framed the charges under Sections 377, 302, 201 (Part-I), 363 of IPC and under Section 4 read with Section 3 of POCSO Act. The accused abjured his guilt and sought trial.”

Be it noted, the Division Bench then observes in para 109 that, “On perusal of trial Court’s judgment, it is apparent that the trial Court while passing the judgment on 16/09/2020, convicted the accused-appellant for offences as mentioned above. Thereafter, on the same day after hearing the counsel for the parties, awarded the accused appellant death punishment along with other punishments.”

Quite significantly, the Bench then observes in para 113 that, “On perusal of record, it is apparent that no sufficient opportunity was given to the accused-appellant for placing relevant mitigating circumstances supported with affidavit on record. The appellant-accused is aged around 25 years of age. The trial Court has not considered regarding alternative punishment to the appellant-accused and there is no any finding that in the absence of death sentence, the appellant accused would continue to be a threat to the Society. And also not answered that there is no possibility of reformation.”

Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in para 114 wherein it is postulated that, “For effective hearing under Section 235(2) of the Code of Criminal Procedure, the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court. This has not been done. The trial court made no attempt to elicit relevant facts, nor did the trial court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the accused has been denied an effective hearing.”

As a corollary, the Bench then finds no hesitation in observing in para 115 that, “Therefore, considering the aforesaid mitigating circumstances in the present case, we are of the considered view that in the case at hand verdict given by Hon’ble Apex Court in the case of Mulla & Anr. Vs. State of U.P. [AIR 2010 SC 942] followed for just decision of this case.”

As we see, the Bench then observes in para 116 that, “In the case of Mulla (supra), it is held that it is open to the Court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by the life imprisonment.

“85. … The court should be free to determine the length of imprisonment which will suffice the offence committed.” (emphasis supplied).”

It is worth noting that the Bench then observes in para 117 that, “Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the appellant, we feel that the appellant should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him.”

In view of the aforesaid, the Division Bench then in para 118 comes to the rational conclusion that, “For the above reasons, we are of the view that the present appeal is one of such cases where we would be justified in holding that confinement till natural life of the appellant-accused shall fulfill the requisite criteria of punishment considering the peculiar facts and circumstances of the present case.”

Truth be told, the Bench then ostensibly observes in para 119 that, “Accordingly, the death sentence awarded by the trial court to the appellant-accused is commuted to “life imprisonment” till his natural death. The appellant-accused shall not be entitled for any remission.”

As a kind gesture, the Bench then graciously concedes in para 120 that, “Before parting with this judgment, this Court would like to record its appreciation for the assistance rendered by Shri Vivek Jain and Shri S.S. Kushwaha, Advocates, who tried their level best to point out each and every minor discrepancy in the evidence of the prosecution in order to effectively put forward the case of the appellant-accused.”

Furthermore, the Bench then holds in para 121 that, “With aforesaid modification in sentence, the judgment dated 16/09/2020 passed by Fifth Additional Sessions Judge & Special Judge (POCSO Act), Gwalior in Special Sessions Trial No.122/2017 is hereby affirmed.”

Adding more to it, the Bench then holds in para 122 that, “The appellant-accused in Cr.A. No.4965/2020, namely, Yogesh Nath @ Jogesh Nath, is in jail. He shall undergo the remaining jail sentence till his natural death.”

In the fitness of things, the Bench then directed in para 123 that, “A copy of this Judgment be immediately sent to the accused-appellant in Cr.A. No.4965/2020, Yogesh Nath @ Jogesh Nath, free of cost.”

In conclusion, the Division Bench of Gwalior Bench of Madhya Pradesh High Court thus stands fully justified in this leading judgment in commuting the death sentence to life imprisonment and it has accorded valid reasons also for doing so as already discussed hereinabove and the most prominent being that sentencing on the same day as conviction certainly culminated in denying an effective hearing to the accused so that the accused could place the mitigating circumstances before the court. Moreover, there was no direct evidence in this case and there were various material contradictions and omissions in the statements of prosecution witnesses. In addition, no witness has proved last seen evidence. As if this was not enough, it also could not be glossed over that public hairs of the accused were collected by cutting them with the help of a razor and therefore the prosecution could not rely upon the DNA report of accused-appellant. To top it all, the DNA samples were also not collected properly for forensic test and sent after delay. So it was therefore quite palpable that death penalty had to be reduced to life term and the same was done accordingly!

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Right to monetary compensation for victims of wrongful imprisonment: Time for Parliament to enact a law on this

Siddharth Sijoria

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The deprivation of human dignity due to wrongful imprisonment is a serious violation of right to life. To remedy this violation, many countries have developed laws recognizing right to monetary compensation as a legal right. However , no legal framework to compensate victims exists in India. The Courts in its discretion may or may not compensate the victims of wrongful imprisonment. Recently on 17.08.2021, the Gwalior Bench of Madhya Pradesh High Court consisting of Justice G.S Ahluwalia and Justice R K Shrivastava delivered an important judgment granting monetary compensation for miscarriage of justice that resulted in over 11 years of wrongful imprisonment of 3 innocent persons. However in past, the Courts have denied compensation for over 10 years of wrongful imprisonment as no law for compensating the victim has been enacted by the Parliament. These divergent views adopted by the Courts render the remedy of compensation arbitrary, episodic and indiscriminate and not so easily available to all similarly situated individuals. Thus, enactment of a legal framework for compensation of victims of wrongful imprisonment is a necessity to remove the arbitrariness involved in awarding compensation.

India’s obligation to award Compensation stems from Article 9(5) and 14 (6) of International Covenant on Civil , Political Rights(ICCPR) which obligates India to compensate victim of wrongful prosecution in accordance with law. The Supreme Court of India in Rudal Shah v State of Bihar being mindful of India’s obligation under ICCPR noted that the Court in exercise of its inherent powers can grant monetary compensation as a public law remedy to the victims of assault , battery and false imprisonment to prevent violation of right to life under the Constitution. Many Countries have translated their commitment under ICCPR into domestic law and enabled the victim of wrongful imprisonment a statutory right to compensation by conferring powers on Courts or administrative tribunals for determining of compensation amount in cases of miscarriage of justice. Among others, the UK Model is most developed and offers a comprehensive legal framework for enforcement of right of compensation as it enlists determinants for calculation of quantum of monetary damages. The Criminal Justice Act, 1988 of the UK contains a separate chapter on right of compensation and requires the Secretary General of the State to pay compensation to a victim of wrongful punishment. It assesses the amount of compensation by taking into consideration a.) harm done to reputation, b.) seriousness of the offence, c.) severity of punishment, d.) conduct of investigation and prosecution. The law limits the amount of overall compensation depending on the duration incarceration i.e less than 10 years or more. In UK, a Criminal Case Review Commission also exist to ascertain if a person has suffered miscarriage of justice. Any person who believes that they have been subjected to wrongful punishment can apply to the commission to have their case reviewed. Moreover, the UK Police Act, 1996 imputes the liability of wrongful Acts of the Constables on Chief of Police and holds him accountable for misconduct of the Constables under his control, and treat him as a joint tortfeasor and provides for payment of damages from the police fund. Thus , the Indian Government must fulfil its commitment under the ICCPR and the UK Code can serve as a model legislation to develop an exhaustive code.

WAY FORWARD

In 2018, the Delhi High expressed concern over the arbitrary and indeterminable manner in which right to compensation is seen by Courts in India. It had requested the Law Commission to undertake a comprehensive examination of the issue and make its recommendation to the Government. In light of the High Court’s order, the Law Commission in its Report No. 277 “Wrongful Prosecution (Miscarriage of Justice): legal Remedies” dated August 2018 had recommended for development of legal framework to pay monetary compensation for wrongful punishment that results in mental and social trauma. It further recommended adoption of a model bill it has prepared to amend Code of Criminal Procedure and insert a new chapter concerning right to compensation (Bill Annexed with the law commission report) . The Law Commission’s recommendations are in consonance with the ICCPR obligation and Judicial verdicts in India . The Commission’s recommendations must be accepted to allow victims of wrongful imprisonment an opportunity to enforce his/her right to compensation for wrongful imprisonment.

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