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Pre-trial role of the police: Exhaustive or insufficient?

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From the data and statistics collected from, United Nations Office on Drugs and Crime, latest available till 2013, says there are 138 police personnel per lakh of the population in India. This has been substantiated by the Indian Parliament in 2014, that there was shortage of 5.6 lakh police personnel against the sanctioned strength of 22.8 lakh, which clearly takes the figures to 25% vacancy. State police has 24% vacancies in January 2016, as the strength sanctioned is 181 police personnel per lakh people. These statistics serve for two crucial purposes, firstly in questioning the qualitative work function of the police, secondly in analysing the work function of the police, in all the domains. Our Police force, is legally regulated by Police Act, 1861 and Modern Police Act,2015, primarily for executing its functions. But there are certain duties and functions which police is bound to perform in the light of Cr.P.C, which is again in consonance to their primary source of regulation. In this paper, the author has tried to analyse the duties and role of police, primarily pertaining to the Judicial functions, which will also ensure the exhaustive analysis of the checks and control, which serves as the threshold for the police personnel in the exercise of their duty. This paper, is an attempt to link the work function of police, pertaining to the police acts and Cr.P.C by taking into account various factors like modernisation, training prospects, pre-trail functions in a coherent way.

CHAPTER- 1

DUTIES OF POLICE IN THE POLICE ACTS

“ Independent India must choose, whether we will have a people’s police or a ruler appointed police, or in other words whether the people should rule or the parties shall rule. The Constitution has laid down that the people should rule, so the police must also be the people’s police”

– Khosla Commission in 1968

Under our highest organic law of the land, police is kept under the domain to State list, so it is the duty of the state to provide efficient and coherent police force, for proper policing. All the state polices are regulated by Indian Police Act,1861. The duties of the police enshrined under the Act, basically finds itself within the clutches of the test of time, with respect to colonialism vs democracy.

Section 23 of the Indian Police Act, clearly defines the general role and duty of the police officer and section 20 of the act, provides for the restriction which acts as a check and balance on the unfettered discretion of the police when exercising their duty. The changing times, drew great attention of the esteemed law makers of our country and for maintaining and preserving the social order and tranquillity of our state, so a new act was passed, Model Police Act of 2006, which exhaustively discusses the roles and duties of the police, in all the fronts.

The general duties of the police has been incorporated under section 57 of the Model Police Act, 2006, which brings out the general essence and theme of the concept policing, enshrined in our laws. In the present research, it is important to pay much heed to section 57(e), 57(f) and 57(g) of the Model Police Act, which basically deals with the role of Police in the trial procedures. Section 57(e), deals with the dynamic role of the police, which is really necessary for curbing the commissioning of the crimes and any other opportunity associated with such commission of the crime. Section 57(f) deals with the duty of the police, to accurately register all the complaints brought to their notice, by any form, right from in-person representation to the digital media information. In this regard it is pertinent to note, how the Hon’ble Rajasthan High Court, interpreted the idea, on telephonic FIRs, in the case of Tehal Singh v State of Rajasthan, by virtue of which the main essence of section 154 Cr.P.C has been maintained. Section 57(g) of the act, it deals with the duty of the police with regards to registration and investigation of the cognizable offences. This also furnishes, that free copy of the FIR to be given to the complainant. This provision of Cr.P.C is in full consonance with the spirit of section 154(1), 154(2) and section 156(1) of the Cr.P.C. All these changes were brought in the initial police act, in accordance to the guidelines and remarks made by Hon’ble Supreme Court in the case of Prakash Singh v Union of India.

(The essential functions of the police pertaining to the trial, which has been given in the police acts, has been discussed in the next chapter)

CHAPTER-2DUTIES OF THE POLICE UNDER CRPC

1) ARREST AND DETENTION IN THE CUSTODY

For prevention and detection of crimes, a police officer has the power and duty to arrest the accused on the reasonable grounds or reasonable suspicion or with appropriate orders(warrant of arrest). This has been enshrined under section 41 of the Cr.P.C, also the distinct power given to police under section 42 of the act is necessary for the further investigation and trial procedures. In case of the cognisable offence, a police can arrest the alleged culprit, without warrant and can investigate into the case, without any directions from the magistrate. In the case of non-cognizable offence there is an exception to the rule, as enshrined by section 42 of the act. The duties and procedure for the arrest should be made in consonance to section 41-B, 41-C and 41-D. Section 41-D, empowers the arrested to meet the advocate of his choice, during the process of interrogation and in regards to this Supreme Court has given some guidelines for arresting a judicial officer, which are not too exhaustive, in the case of Delhi Judicial Service Assn. v State of Gujarat. Also, section 57 empowers the police for the search of the place, who is sought to be arrested, which is further fabricated by section 51 which gives the police, power to search for the arrested person and if found something police officer can seize them under section 102 for producing it in the court and further under section 52, gives power to seize offensive weapons. According to section 53, it is the duty of the police to get the medical examination of the accused by the medical practitioner and Supreme Court held in the case of State of Bombay v Kathi Kalu Oghad, held that section 53 is not violative of article 20(3). It is further extended by section 54, where the arrested is examined by a registered medical practitioner.

By virtue of section 50(1), it is the duty of the police officer to inform the arrested person, his ground for arrest, which is in true consonance with the article 22(1) of the Constitution, which is a precious right as held in the case of Udaybhan Shuki v State of U.P. By virtue of section 50(2), it is again the duty of the police to inform whether the person arrested has right to bail, if arrested for non-bailable offence. In the case, Joginder Kumar v State of U.P and D. K Basu v State of W.B made it obligatory on the part of the police, to inform the relatives or friends of the arrested person and also to make an entry in a register maintained by the police, this has been incorporated with a view to maintain the dignity of the rights provided under article 21 and 22 of the Constitution. Under section 56 and 76 of the act, it is the duty of the police to take the arrested to the magistrate without any delay, which has been specified and formulated well in the section 57, which provides for the time threshold of 24 hours, with an exception as explained under section 167. The purpose for not detaining the arrested for more than 24 hours has been explained in the case of Mohd. Suleman v King Emperor and the Hon’ble Supreme Court portrayed this provision to keep a check on the healthy investigation by the police, and directed to be observed positively. Apart from this, as per the requirements of section 62, the procedure for the serving of the summons has to be done by a police officer in general, otherwise specified by the Courts. By virtue of section 79, the police officer has the power to arrest outside the jurisdiction, with the warrant of arrest.

2) PRE-TRIAL: INVESTIGATION BY POLICE

After the FIR is lodged, as per the ingredients of section 154, it is the duty of police under 154(1) to register the FIR, as held in the case of Lalita Kumari v Govt. of U.P, pertaining to any cognizable offence and such information must be definite and not vague. Further as per the mandatory provision of the section 154(2), it is the duty of the police to furnish the copy of FIR to the complainant, whose exception has been explained categorically in the case of State v Gnaneswaran. In the case of non-cognizable offences, complying with the provisions of section 155(1), a police officer cannot proceed to investigate without the orders of the magistrate and its non-compliance may be a material cause in vitiating the ultimate proceedings, as well as it may be violative of Article 21. When the police officers gets an order from the magistrate for investigating a non-cognizable offence, the police officers, save as powers to arrest gets the power to arrest as in the case of cognizable offence. The police officer, by virtue of section 156, gets power to investigate the cognizable offences, where under 156(3) a magistrate has the power to order investigation, only at the pre-cognizance stage. The right of the police officer for investigation under section 156 is unfettered and cannot be controlled by Judiciary. Another important procedural aspect is the prompt lodging of the FIR is necessary for recording the spontaneous version of the case, hence it is the duty of the police to do the same. While analysing the section 156, we find the concept of cognizance by magistrate under section 190. The police in complaints sent to them under section 156(3) may make the investigation of the offence and send a report to the Magistrate under section 173. It will deemed to have been taken on the police report not on the original complaint. A magistrate may take cognizance of the offence under section 190, and instead of ordering investigation under section 156(3) can examine the complainant under section 200, and if the magistrate finds the matter fit, can postpone the issue of process against the accused and can either inquire into the case himself, or direct an investigation by the police officer, as to whether there is sufficient ground for proceeding. When police officer receives the complaint under section 202 for investigation and report, he has all the powers which is required for the investigation, similar to his power in case of an offence invoked via section 154. Further by virtue of section 158, the duty of the police officer pertaining to the submission of report, for which the state government appoint the senior police officer for the same.

In case of the cognizable offence, after the lodging of the FIR, the police officer shall proceed to the spot, to investigate and after necessary discovery, may make arrest, as per section 157(1). Moving ahead with the procedural aspect, there is the power of police under section 160(1), to require the attendance of the witness maintaining the conditions specified therein. There is a proviso attached to the section pertaining to person below 15 years or age and person above 65 years of along with woman or a man who is physically disabled. In Queen Empress v Jogindra Nath Mukerjee, it was held magistrate cannot issue any process compelling a person to attend before a police magistrate. Further section 161 and 162 gives the power to the police, for examination of the witness. According to section 161(1), oral examination of the person acquainted with the facts and circumstances of the case. As per the provision, it is the legal duty of the person to attend the investigating officer, if required, as intentional omission is an offence under section 174 IPC. In Pushma Investment (P) Ltd. v State of Meghalaya, Gauhati High Court has held, police can require witness to attend the police station, if they reside within the limits of the station or the adjoining police station. Section 161(1) lays down certain prescriptions, to be followed pertaining to the rank of the police officer, which must be specified by the State Government, must be duly followed. Analysing the flavour of the section, we can understand that the person, who is being examined must answer all the question correctly, but this would not bound him as such, which can invoke criminal liability against himself. Furthermore, in the case of Gian Singh v State(Delhi Admn.), it was held that police can question the accused even on his right to silence, with due permission of the magistrate, in the judicial custody. While interrogation, if a person furnishes voluntary false information to the police, or gives false evidence can draw penal action under section 193 and 177 of IPC respectively. In this context, Nandini Satpathy v P.L Dani, case is extremely important, which says area covered by section 161(2) and Article 20(3) is substantially the same and the 161(2) of Cr.P.C is a parliamentary gloss on the constitutional clause. The Supreme Court held that, a person is bound to answer where there is no clear tendency to criminate. The concept of “Compelled Testimony” was brought into the picture, and in the case, some guidelines were framed which were to be followed. The most important one was that the accused must be allowed to meet his lawyer, during the interrogation, which was also held in the D.K Basu v State of W.B. In one of the guidelines of the Satpathy’s case, it was held, police has the duty to invariably warn and record the fact, about the right to silence against self-incrimination and after the examination of the accused, the police officer must take him to the magistrate or any responsible person(in case of absence of his lawyer).

Finally, all these guidelines were not binding in nature, but were necessary for bringing out the prudent police policy. The section 161(3) gives wide power to the police to record or not to record any statement during the investigation. Now section 162 and 163, broadly talk about the validity and admissibility of the nature of statements recorded by the police under section 161. Section 162, prohibits signing of any statement obtained by the police, during the course of investigation, supports that it protects the accused from zealous police officers and untruthful witnesses. This provision is time specific and is applicable only during the time of investigation, with an exception to the dying declaration which is admissible under section 32 of the Indian Evidence Act. Therefore, the statements not reduced in writing by the police cannot be used as contradiction, under section 145 of the Evidence Act. The Court cannot rely on the confessions of the accused and case diary statements of the witnesses to come to a conclusion, as statements of witness under section 161 are admissible to the limited extent permitted under section 162(1) proviso and 162(2). Finally, the pivotal provision to test the aforesaid examination comes into picture, section 163, by virtue of which statements cannot be recorded by the police by any kind of pressure or inducement. This section derives its aroma in the presence of section 24 of Indian Evidence Act and 163(1) is not only applicable to the police but to any person in authority. Finally, when the investigation is complete, there are certain procedures to be followed upon. When the evidence is deficient, the accused is to be released by the police, with a bond, with or without security, for the procedure, to be taken after cognizance and during the trial(Section 169). When the evidence is sufficient, the case has to be taken by the police to the magistrate, for the trial and if the offence is bailable he has to be released on bail, with a bail bond with or without securities(Section 170(1)). Secondly, as per provision 170(2), the police officer has to forward any weapon or article, or any security to the magistrate, in order to give evidence for the charge framed against the accused.

On the completion of investigation, a mandatory report is submitted by the Investigating Officer, which is commonly called, ‘Charge-sheet’, and it is given without delay (173(1)). It includes all the necessary details of as prescribed under section 173(2)(i) and submission of this report is a part of the investigation. In this regard it is pertinent to note that, the magistrate under section 156(3) has the power to further direct the investigation even after submission of the report by the police. This means it would not affect the power of the investigating officer to further investigate the case even after the submission of the report. Finally as per the section 174 the police has the power to investigate and report the cases in cases of unnatural and suspicious deaths and under section 175 the police has the power to summon at inquest, in order to investigate the case registered under section 174 and their statements are again governed by the section 162.

CONCLUSION

The role of police, their duties in the light of various police acts and under the Cr.P.C is undoubtedly exhaustive and coherent. The Pre-trial role of the police, right from arrest to the investigation is in full consonance to the spirit of the fair trial, an original form of natural justice. This has been elucidated in the above research, which deals with the role of the police which is to be expected right from arresting a person, by allowing the arrested certain basic human rights is really commendable.

The latent jurisprudence of all these rights clearly furnish that, our highest organic laws of the land, grants us certain Fundamental Rights, which is not jeopardised throughout the pre-trail role performed by the dynamic police. The investigation procedure, requires that magistrate and the judicial bodies are kept informed about the procedures adopted by the police, which keeps a check on the process.

The recording of statements by the police, has been always subjected to the evidence and its value, which again doesn’t give the draconian power to the police authorities, making the whole actions and procedures adopted by them smooth, justifiable and in the interest of the fair trial for the accused. Therefore, from the above discussion and research I am of the view that the role of police, is the pre-trial is exhaustive enough to make the process coherent.

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Legally Speaking

TAKING THE FREEDOM OF SOCIAL MEDIA SERIOUSLY

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Last week, a three-judge bench of the Supreme Court of India comprising Justices Dr. D. Y. Chandrachud, L. Nageswar Rao, and S. Ravindra Bhat issued a strong warning to the Central and State Governments not to curtail the freedom of speech and expression of people who are seeking help on social media platforms to get oxygen, essential medicines, and other things during the covid pandemic.“The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country”, observed the Court for protecting the social media users from harassment by the police and other administrative agencies of the centre and the states. This is a much-needed and timely intervention by the Apex Court that is likely to facilitate the smooth communication of information on the internet during this difficult time when social solidarity needs to be promoted in our society.

The directions given by the Apex Court will certainly protect people from harassment and torture by the police and other government agencies in some states that have shown less tolerance to digest their criticism on social media platforms during this pandemic. Unfortunately, some governments have wrongly interpreted the criticism as an attempt to disrepute them and they also warned the people to face the charges under draconian laws such as the National Security Act. This is nothing but rubbing salt on people’s wounds. Admittedly, social media has been very useful and effective in addressing the grievances of thousands of people who were unable to get any kind of help from the government during this covid crisis. Not only this, but social media has also unearthed the various omissions and commissions of the centre and the states who have failed the people utterly during this covid pandemic. It seems the governments want to clamp down on the use of social media to avoid their responsibility. This is not the way to deal with the people. At this time, the governments should come forward to address the public health issue and take people’s cooperation in fighting against the invisible coronavirus.

Sadly, in some states like U.P., the administration has filed criminal cases against the citizens who were seeking help on social media platforms like Facebook and Twitter. In Amethi, the police registered an FIR against a man who was asking people to send him an oxygen cylinder for his family member who was suffering from covid. Ironically, no government wants to accept the truth. Recently, a Division Bench of the Allahabad High Court had strongly criticized the functioning of the U. P. government during the corona crisis while hearing a PIL. “The ghost of corona is marching on the roads and streets of the major cities of the state…those who are resourceful will survive and the rest as histories of past pandemics tell us, may die for want of proper health care”, the Court had said about the corona infection in the State of Uttar Pradesh. Not only this, but the High Court had also asked the State Government to discard its “my way or no way” attitude. This is the time when the government should listen to the High Court’s suggestion and improve the health infrastructure in the state.

It is a matter of fact that governments have ignored the public health issue in our country. It has never been a big issue for debate and discussion in the elections. The people have also failed to raise this issue on social platforms that build a strong public opinion. Indian politics is badly plagued with caste, community, and religious issues. The time has come when people should make it an election agenda given the poor health infrastructure in the country. Today, thousands of people are dying because of the shortage of oxygen, beds, and essential drugs. People are getting their covid test reports after five-six days. They are badly fed up with the governments and their agencies. Where should they go to seek help if the state does not respond to their calls? This is a matter of national shame. During this time, some public-spirited citizens have come forward to help people on social media platforms. It is indeed an admirable effort that should be carried forward to protect people’s lives and livelihoods at this extremely difficult time. Not only common people, but some honest administrative and police officers have also taken serious note of such calls and sent the required help to the needy people. This is why even the Apex Court appositely admired this gesture in these words: “In these trying times, those desperately seeking help for their loved ones on these platforms should not have their misery compounded through the actions of the State and its instrumentalities. Further, there are two more crucial reasons why such a clampdown on information sharing must be absolutely stopped immediately”.

Given the above discussion, it is submitted that all governments should welcome constructive criticism at this time. They should not discourage people from getting help on social media platforms. In a difficult time like this, people’s complaints, criticism, anguish, and anger provide valuable feedback to the policy-makers that must be used in urgently plugging the holes in the public health system, fixing accountability of negligent medical officers, and making self-introspection to learn from the mistakes and prepare for the future in a better manner. No popularly elected government can avoid criticism in a democracy. When people will die, they will cry and the government is duty-bound to protect people’s lives.

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Legally Speaking

DEALING WITH BIOMEDICAL WASTE: A TOUGH GRIND AFTER THE PANDEMIC

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Biomedical waste is composed of animal and human waste, treatment equipment, for instance, syringes, needles, and the other different kinds of amenities in the process of research and treatment (Bio-Medical Waste Management Rules, 2016). Adequate biomedical waste management concerning the proper rules and regulations were consistently overlooked for years, specifically in a developing country like India.

India, the second most populated country worldwide after China and the world’s second worst-hit country by COVID-19 officially, and unofficially it is undoubtedly the worst affected. India now has 20.7 million confirmed cases of the deadly Covid-19 virus. However, the recovery rate among Indian population is also very remarkably high. The administration has also taken rigorous steps to tackle Covid-19, but this has resulted in piles of Bio-medical waste. According to Central Pollution Control Board (CPCB) data, approximately 4527 tons of bio-medical waste was generated in December 2020. This has unduly pressurised the waste management system of country. Lack of resources has further added to this problem of waste management. India faced severe consequences during the second wave of COVID-19 and responding to which the medical system is also overburdened. These critical conditions have also posed a challenge in the administration to manage the bio-medical waste generated in treating the patients found positive with Covid-19. The country has a total of 238,170 healthcare facilities, out of which 87,267 are bedded while the remaining 151,208 are non-bedded healthcare facilities (HCFs) generating BMW. According to a study, improper management and disposal of bio-medical waste could expose freely roaming animals and humans with diseases like Covid-19. Thus, it becomes imperative to think for effective management strategies and spare some resources to manage bio-medical waste.

Untreated and improperly managed BMW is a potential source of infection. Millions of contaminated personal protection equipment (PPE) (e.g., facemasks and gloves) would end up as wastes, which, if improperly managed, can pose environmental and health threats. In a recent study (Kampf et al., 2020) finds that the coronavirus can survive on material surfaces (e.g., metals, glass, and plastics) for up to 9 days. Such threats may be ameliorated in developed countries where green and sustainable waste management strategies, capable of containing such viruses, are practiced. However, the threats would be much higher in developing countries that have poor waste management strategies. In many developing countries, solid wastes are dumped in the open and in poorly managed landfills where waste pickers without wearing proper PPE would scavenge for recyclable materials (World Bank, 2019).

Thus, it is the right time to call upon the policymakers to ponder this problem, which could become an uphill climb later if not given due attention.

IMMEDIATE ACTION AND FUTURE POLICY RECOMMENDATIONS:

The lockdown had led to enhancement in the origination of the food and packaging waste from the domestic households, which should be disseminated as per the current waste accumulation rules. The occurrence of the collection of biodegradable waste could be modified according to the locality. However, the recyclable waste could be reduced according to the accessibility of the people as well as the trucks. As they should be helped to accumulate them in the sealed bags for a longer tenure. There would be more generation of infectious waste and toxic waste if more heed is given to sanitary products and other health care products. So, it is very much necessary that it should be accumulated in double lined sealed bags with a particular symbol. The food packaging and the other waste should be handled with possible care and caution as it should be carried in a double layered compostable bag.

There would be less charge on the management of the hazardous waste as more waste from the households is being compensated by the smaller number of wastes from the restaurants, eateries and the other complexes. It is necessary to be conscious for the exposure of the waste as long as it exposes the pathogen to spread. The people living at their home required to be more prudent as there is a need of dissemination of the waste. The propagation of the same should be done through advertisements, newspapers or other source of media.

Few Policy recommendations deliberately made for the policymakers which might assist a system to tackle the pandemic:

a) Identification of the key role: This is the prime duty of the government to recognize the part which has to be played by sanitation workers. For instance, UK government has specifically given key worker status to their workers as the government would be fulfilling all the requirements of their family during the COVID crises so they could continue their services.

b) Formulation of the Global Common Platform of Knowledge: It is very much necessary to formulate a platform as well as foundation of knowledge so that the people should gain the know how of handling the waste as they could curb themselves in need of the hour.

c) Pervasive standardization of the coding: The universal standards for the color coding are very much significant for disseminating the bio medical waste. As it would provide assistance to the identification of the type and the characteristic of the waste. Proper training to the workers in the regard would also be very much helpful.

d) Technology Based Solutions: To deliver the high quality by products, it is very much necessary to emphasize the gasification, hydrothermal, and carbonization kind of techniques. Additionally, there should be investment of research into it.

e) Implementations of the principals from circular economy: To reduce the amount food wasted, re-utilization of the food waste and nutrient recycling are the major fundamentals of the circular economy in the food system and should be executed both at producer as well as consumer level. Furthermore, the circular-based models’ execution would assist in deviation of the accumulated waste from the disposal sites to the recyclable plants; however, it would also help in declining the generation of the waste in the initial place.

f) Propagation Regarding Circular economy: People are not knowing about the methodology behind the circular economy so it is the dire need to aware people regarding the concept of circular economy. The fabrication of the recyclable products would, for instance, bioplastic and biodegradable products should be highly promoted as well rewarded.

g) Moving from awareness to Action: Just by propagating the general public regrading the same would not help rather they should be highly motivated to implement all the schemes practically. Media campaigning would really assist in effecting the people’s behavior and would also assist in the transformation of their musings to converting the economy into a greener one.

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Legally Speaking

UNLESS SELF-ADMINISTERED, NO VACCINATION CAN CURE EVIL OF VIRUS OF COMMERCIAL MINDEDNESS OF EDUCATIONAL INSTITUTIONS: GUJARAT HC

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While dealing with a case wherein a students mark sheet and other documents were withheld by the Medical Institute due to non-payment of the penalty and late payment charges, the Gujarat High Court just recently on 20 April 2021 in a latest, landmark, learned and laudable judgment titled Jawal Suruaj Chhasiya vs Dean, Surat Municipal Institute of Medical Education and Research in Civil Application (For Direction) No. 1 of 2021 in R/Special Civil Application No. 2861 of 2021 has minced no words to say in simple, straight and suave language hard hittingly that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or another pretext, thereby demeaning the sanctity of the very concept of the education.” All educational institutions must self-introspect on what Gujarat High Court has said so directly on their conduct and strive to reform in the time of corona when people are so much affected adversely facing acute shortage of money due to rising expenses generated due to this pandemic! There can be no denying it. The Single Judge Bench of Justice NV Anjaria was hearing the plea of a student who sought direction to his Institute not to withhold the mark sheet, degree certificate, attempt certificate and consequential entitlement for internship on account of non-payment of the penalty and late payment charges.

To start with, the Single Judge Bench of Justice NV Anjaria of Gujarat High Court sets the ball rolling at the very outset by observing that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or under one or another pretext, thereby demeaning the sanctity of the very concept of the education.”

While specifying about the prayer made, the Bench then mentions in para 2 that, “By filing the present Civil Application, the applicant-original petitioner has prayed as under.

(i) set aside the letter dated 25.03.2021 bearing No.SMIMER/OUT/5090 and order dated 25.03.2021 bearing No.SMIMER/Out/5097 issued by respondent No.1 as being against the reasoned order passed by this Hon’ble Court and be further pleased to direct the respondents not to withhold marksheet, degree certificate, attempt certificate and consequential entitlement for internship on account of nonpayment of penalty and late payment charges;

(ii) declare that there is willful disobedience of order dated 10.02.2021 passed by this Hon’ble Court in Special Civil Application No.2861 of 2021 by respondent No.1;

(iii) direct the respondent No.1 to allow the petitioner to join his internship training.”

To put it differently, the Bench then observes in para 2.1 that, “In other words, applicant-petitioner seeks release of his marksheet, degree certificate, attempt certificate and consequentially to undergo the internship. The applicant-petitioner is a student who has completed his M.B.B.S. course from respondent No.1-Surat Municipal Institute of Medical Education and Research, Surat, which is self-financed college run by respondent – Surat Municipal Corporation.”

While specifying further, the Bench then states in para 2.2 that, “The main Special Civil Application was notified today together with the present Civil Application, as was directed by the Court in order dated 09th April, 2021 to enable the Court to have the wholesome view of the controversy involved.”

While specifying the purpose of the petition, the Bench then makes it clear in para 3 that, “The prayer made in the main petition is to set aside decision reflected in communication dated 06th February, 2021 of respondent No.1 whereby petitioner No.1-student was debarred from attending classes and taking examination. It was next prayed to permit the petitioner-student to appear and to take examination of 9th Semester which was to commence from 11th February, 2021.”

More damningly, the Bench then points out in para 3.1 that, “When the aforesaid communication dated 06th February, 2021 is seen, the petitioner-student was prevented by respondent No.1-educational institute from appearing in Semester examination on the ground that petitioner-student had not paid the tuition fees, late fees and other charges in the nature of penalty and cheque bounce charges. Along with the said communication dated 06th February, 2021, the statement figured showing the details of the amount demanded from the student.”

While specifying the details, the Bench then lays bare in para 3.3 that, “Thus, the demand raised by respondent No.1 from the student was Rs.05,27,500/- each towards fees for 4th and 5th Semesters and Rs.01,31,875/- being the unpaid installment of fees for the 9th Semester. The total amount of Rs.11,87,875/- was sought to be recovered. It appears that cheques then submitted by the petitioner-student towards fees, were bounced.”

Needless to say, the Bench then states in para 3.4 that, “As the above tabular details shows, amount of Rs.02,43,095/- and Rs.02,31,326/- came to be demanded towards cheque return charges in respect of two cheques respectively in addition to late fee amount. It was on such ground that the petitioner-student was debarred.”

While elaborating further, the Bench then specifies in para 3.5 that, “It appears that this Court considered the controversy and order dated 10th February, 2021 came to be passed. The Court noted the case of the petitioner and that of respondent No.1 as were representated by the respective learned advocates.

“7. Mr. Aditya Pandya learned counsel for the petitioner would submit that the petitioner be permitted to appear in the examinations on an undertaking that the petitioner shall file stating therein that he will clear the entire amount of outstanding fees minus the penalty and the cheque return charges of an amount of Rs.11,86,875/- within a period of four weeks from today.

8. Mr. Kaushal Pandya learned counsel appearing for respondent nos.1 and 2 would submit that the institution has serious doubts on the genuineness of the conduct of the petitioner that the petitioner is willing to offer. He would submit that looking to the past history though the outstanding amounts of Rs.5,27,500/- in two separate installments were due in January 2018 and July 2018, cheques were issued in September, 2018, which were dishonored for which the institution had to initiate an appropriate proceedings. He would submit that the penalty charges and the cheque return charges are justified notwithstanding the principal amount of outstanding fees, the petitioner should not be given any indulgence in paying the fees in installments.””

What next follows is then stated in para 3.5.1 that, “The Court considered the rival submissions as above and then observed and directed as under,

“10. Considering the fact that the petitioner had secured admission to the MBBS course in the year 2016-17 being well aware of the actual fee that he would have to pay of Rs.10,55,000/-, he cannot now be permitted to wriggle out of this commitment. However, looking to the averments made in the petition that the petitioner’s family may have undergone financial crisis as a result of pandemic, only a limited indulgence can be given to the petitioner particularly in view of his past conduct in failing in his commitment by issuing cheques which were dishonored of the amount of Rs.11,86,875/- as the outstanding fees minus penalty and the cheque return charges. The petitioner is accordingly directed to;

(i) Handover cash or bankers cheque or demand draft in the name of the respondent no.1 of an amount of Rs.1,31,875/- to the competent officer of the respondent no.1 institution on or before 12.02.2021.

(ii) An amount of Rs.5,28,000/- in a similar manner shall be paid in the mode as above on or before 18.02.2021.

(iii) The remaining amount of Rs.5,28,000/- shall be paid in the mode as per (i) above on or before 28.02.2021. 11. The petitioner shall file an undertaking to the effect that he will abide by the terms and conditions enunciated herein above within a period of one week from today. Failure to file such undertaking and/or abiding with the terms of such undertaking shall automatically disqualify the petitioner of the benefit of the undergoing of the examinations of the 3rd MBBS-II as per the schedule at page no.23 (Annexure:G).””

To put things in perspective, the Bench then states in para 3.6 that, “Upon requiring the petitioner-student to pay the amounts as indicated and directed in paragraph 10 reproduced hereinabove, the Court observed that if the said payment and undertaking to be filed in that regard is not honoured, then only the respondent No.1 shall have right to withhold the marksheet and other testimonials of the petitioner-student. It is not in dispute that the amounts indicated in (i), (ii) and (iii) in paragraph No.10 of order dated 10th February, 2021 above has been paid by the petitioner-student and the undertaking filed in that regard has been honoured. The payment is evidenced by the copies of receipts produced with the Civil Application.”

To be sure, the Bench then observes in para 3.7 that, “It is noteworthy that on behalf of respondent No.1, as recorded in paragraph No.8 of the aforesaid order, the levy of penalty and cheque bounce charges proposed to be justified, but this Court in terms clarified that, it will not adjudicate those aspects in writ jurisdiction.”

As it turned out, the Bench then points out in para 4 that, “Prayers in the Civil Application as above were required to be made by the applicant-petitioner in view of order dated 25th March, 2021 passed by Dean of respondent No.1 Medical College. Thereby despite payment of amount of the fees by the student as directed by this Court, the Dean, by the aforesaid written order, provided that duties assigned to the petitioner-student in South-West Zone (Athwa Zone)for Rapid Antigen Test and COVID-19 vaccination shall be withdrawn as the petitioner had not paid the fees. It is further provided that petitioner shall not be entitled to be considered eligible for internship and that the duty given to the petitioner-student for COVID-19 and his internship were ordered to be suspended.”

As we see, the Bench then also makes it known in para 4.1 that, “In response to the Civil Application, reply affidavit came to be filed by respondent Nos.1 and 2 affirmed by one Dr.Rajkumar K. Bansal, stating to be holding the post of Dean of respondent No.1 Institute. The detailed contentions were canvassed and it was inter alia highlighted that petitioner had not paid the amounts mentioned in the above tabular form which included the penalty and cheque bounce charges. In support of such claim, Resolution No.167/2019 of the Surat Municipal Corporation was relied on which stated that as per the Standing Committee resolution, 18% interest will be recovered for the cheques which may bounce in respect of payments made by the tax payers, ijaradars and other general payments. Another Resolution dated 24th June, 2009 of the Corporation was also relied on which contemplate levy of late fee from the student. Learned advocate for respondent No.1 further relied on paragraph Nos.16 and 26 of the reply affidavit to vehemently defend the stand of respondent No.1.”

While adding more to it, the Bench then also points out in para 4.2 that, “Learned advocate for the petitioner submitted that the said Resolution for 18% interest on the cheque bounce charges was for different purpose and would not apply in the present case. He also disputed requirement of payment of late fees in light of the aforementioned order dated 10th February, 2021 passed by this Court, whereby the applicant-petitioner was required to pay amount of fees and that the petitioner has already paid the said amount. Learned advocate for the petitioner termed the approval and action on part of respondent No.1 educational institute to charge such exorbitant sum for cheque bounce charges etc. as razor-like arbitrary and unreasonable.”

To state the obvious, the Bench then observes in para 5 that, “There is no need for the Court to express anything about the claim of respondent No.1 for late fee to the extent of about Rs.03.00 lakhs and the cheque bounce charges to the extent of almost Rs.04.74 lakhs as in order dated 10th February, 2021 itself the Court has already observed thus,

“13. It is clarified that as far as the stand of the institution with regard to the penalty and the cheque return charges, the Court will not adjudicate those issues in this petition under Article 226 of the Constitution of India. … …””

For the sake of clarity, the Bench then clarifies in para 5.1 that, “By refusing that the Court would not go into the questions of levy of cheque bounce charges and late fee in the present writ proceedings, the Court has in that way rejected the sand of respondent No.1 Institute and the action of debarment against the student taken on the said ground is disapproved.”

More glaringly, the Bench then adds in para 5.2 that, “In the aforementioned order dated 10th February, 2021, the Court has already expressed to provide that the said issues could not be gone into in the writ jurisdiction. In view of that, the action on part of respondent No.1 to withhold the issuance of marksheet and other testimonials and to further withdraw the eligibility of the petitioner-student for internship and preventing the petitioner from undertaking the COVID-19 duty and vaccination duty assigned to him could hardly sustain. Astonishingly, order dated 25th March, 2021 further provided that the dues assigned to the petitioner for Rapid Antigen Test and COVID-19 vaccination shall also stand cancelled.”

Of course, the Bench then rightly points out without mincing any words in para 6 that, “While the arbitrariness is evident, it also smacks commercial approach on part of respondent No.1.”

Most significantly, the Bench then holds in para 6.1 that, “As a result, the Civil Application deserves to be allowed by setting aside order dated 25th March, 2021 passed by Dean of respondent No.1-Medical College, declaring that it is not only arbitrary but stands against the express directions issued by this Court in order dated 10th February, 2021. The respondents in particular respondent No.1 are directed to release the marksheet, degree certificate, attempt certificate and all other testimonials of the petitioner. It is further directed that the petitioner shall be treated as entitled to undergo internship and the said right shall not be denied to him on the ground of non-payment of penalty and cheque bounce charges.”

Finally, the Bench then holds in the last para 7 that, “The application stands allowed in terms of above direction. Direct service is permitted.”

In sum, the Single Judge Bench of Justice NV Anjaria of Gujarat High Court has ruled decisively in favour of the petitioner as he had a strong case which has already been elaborated upon and he was fully entitled to get the relief which he got also from Gujarat High Court. Thus we see that as a corollary, the Civil Application was thus allowed by setting aside the order dated 25th March 2021 passed by Dean of the Medical College declaring that it was not only arbitrary but stands against the express directions issued by this Court in an order dated 10th February, 2021. It is a no-brainer that by this brief, bold, brilliant and balanced judgment, the Gujarat High Court very rightly calls upon educational institutions to reform and refrain from charging exorbitant amounts from students studying in educational institutions and observes that, “No vaccination, unless self-administered, can work to contain the evil of virus of commercial mindedness on part of any educational institution in charging exorbitant amounts from the students under one or other head or under one or another pretext, thereby demeaning the sanctity of the very concept of the education.”

It is the bounden duty of the educational institutions to abide by what the Gujarat High Court has held so decisively and always desist from the urge to make more and more money which makes the students to suffer immensely for no fault of theirs! The virus of commercial mindedness has to be cured and for this the educational institutes must themselves come forward and adhere to what the Gujarat High Court has held so clearly, cogently and convincingly!

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BREACH OF RIGHT TO LIFE DURING COVID-19 ERA: FIXING GOVERNMENT’S LIABILITY TO COMPENSATE

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Life of an individual is of paramount importance and due to the spread of novel Coronavirus (Covid-19), people across the world are struggling to save their life and the lives of their loved ones. Once the life is lost, it cannot be restored. It is for this reason, Right to Life of a person is recognised as the most pivotal fundamental right enshrined under Article 21 of the Constitution of India (hereinafter referred to as ‘the Constitution’). The framers of the Constitution ensured that this right is available to citizens as well as non-citizens. Article 21 of the Constitution uses the word “person” in contrast to the word “citizen” in Article 15, 16, 18, 19 and 29 of the Constitution. This most pivotal right has been interpreted in its widest sense by the Courts in India to include various other important rights including the Right to Health which are not expressly provided under the Constitution. The Courts have interpreted “Right to Health” to be covered under the ambit of expression “life” as envisaged under Article 21. Reading Article 21 in consonance with various other provisions of the Constitution namely Article 38, 42 and 47, it is quite conspicuous that right to health is inherent to right to life and duty is casted on the State to ensure the effective realisation of this right.

Various newspapers across the nation are flooded with reports of non-availability of beds, shortage of oxygen cylinders/injections in both Government and Private Hospitals. The Central and State Government are taking corrective measures to ensure that appropriate medical facilities are provided to all persons. But despite all these efforts, a vast number of people were not able to get timely treatment. Here, a distinction is required to be drawn between the patients who were rendered medical treatment but could not be saved despite the best efforts of the Doctors, and patients who succumbed to death on account of the non-availability of medical facilities in the hospitals such as beds, oxygen, medicines, etc.

Article 21 stipulates that no person shall be deprived of his life and liberty except according to the procedure established by law. Nowadays, when the people of this Country are lying at the mercy of Central and State Authorities seeking medical aid, it is excruciatingly obvious that these authorities have failed to perform their constitutional duty. The question is whether failure on part of authorities to provide medical treatment results in deprivation and violation of the fundamental right of Right to Health?

VIEWPOINT OF THE COURTS ON RIGHT TO LIFE VIS-A-VIS RIGHT TO HEALTH AND COMPENSATION FOR ITS BREACH

The Supreme Court in the landmark case of Parmanand Katara v/s Union of India & Ors. (1989) 4 SCC 286 has categorically held that it is the obligation of the State/ Government to preserve life. The Court further observed that death by negligence does not tantamount to legal punishment. Every Doctor whether at Government Hospital or not, has a duty to extend medical assistance for the preservation of life. No law or state action can interfere to avoid/ delay the discharge of the paramount obligation casted on the members of the medical profession.

In the case of Paschim Banga Khet Mazdoor Samity v/s State of W.B.(1996) 4 SCC 37 the Supreme Courtrelying upon Parmanand Katara’s (supra) judgmenthas categorically held that it is the primary duty of the Government to secure the welfare of the people and it is the constitutional obligation of the State to provide adequate medical facilities for the people. In this case, the patient was denied medical treatment in a government hospital for non-availability of bed, the Supreme Court held it to be violative of Article 21 and directed the Government to pay compensation of Rs. 25,000/- to the patient. In another important decision of Delhi Jal Board v/s National Campaign for Dignity and Rights of Sewerage and Allied Workers & Ors., (2011) 8 SCC 568, the Supreme Court directed the State and its agencies/instrumentalities to pay Rs. 5 Lakhs as compensation individually, to the families of sewage workers died due to failure on the part of Government to put in place appropriate mechanism for protection of sewage workers and also to provide protective gears and equipments.

In the case of D.K. Basu v/s Union of India (1997) 1 SCC 416 the Supreme Court while dealing with violation of Article 21 on account of custodial violence has held that monetary compensation is an appropriate and effective remedy for redressal of established infringement of fundamental rights and the State is not entitled to the defence of sovereign immunity. The compensation granted under Writ proceedings either by High Court or Supreme Court is without prejudice to any other action like a civil suit for damages.

The Bombay High Court in the case of Pratibha Shinde & Ors. v/s State of Maharashtra & Ors.(2021) SCC OnLine Bom 87 while dealing with the case of the unfortunate death of an old lady suffering from Covid-19 on account of negligence on part of hospital administration in providing timely and proper medical treatment, fixed the accountability on the State Government by directing to pay compensation of Rs. 5 lakh to the legal heirs of the patient for violation of her fundamental rights.

The Patna High Court in the case of Shivani Kaushik v/s Union of India & Ors. CWJC No. 353/2021 has observed that inaction on the part of the State in providing adequate health care to the citizens, particularly during the prevailing Covid-19 situation, would be violative of Right to Life under Article 21 of the Constitution.

The Allahabad High Court while hearing the suo-moto petition In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive vide its order dated 04.05.2021 in a very ignominy and infuriated manner observed that “non-supplying of oxygen to the hospitals is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical oxygen.”

LIABILITY OF HOSPITAL

When it comes to fixing liability on hospitals, it is important to categorize them into two parts i.e. Government Hospitals and Private/ Non-Government Hospitals. Since the first and foremost obligation for the preservation of life is on the State, any negligence or non-availability of medicals facilities like beds, oxygen, medicines, etc. resulting in the delay of treatment or death of a person would result in deprivation of his life, for which compensation can be awarded to the victims (family members) in light of the aforesaid judgments.

During this period, the Central/ State Government has taken over the supply of oxygen and various other medicines/ vital drugs (like Remdesivir). Delay in supply affects the obligation of the medical professionals in rendering timely medical assistance to the patients undergoing treatment. It is the pious obligation of the Government to ensure timely supply of these essential lifesaving medical supplies to the hospitals at the earliest and delay in supplying of these essential commodities to the Hospitals (both Government and Private) for whatsoever reason would result in deprivation of life of an individual.

When it comes to affixing liability on Private Hospitals, it is quite conspicuous that the Central Government and State Government are liable for providing compensation where delay in supplying of oxygen and vital drugs to the Private Hospitals is on account of the Government authorities.

Though Private/Non-Government hospitals stand on a different footing as they are not owned by the government, however, they are performing public functions and there exists deep and persuasive control of the Government as it can be very well seen during the prevailing Covid-19 pandemic situation. In view of the judgments of the Supreme Court in the case of R.D. Shetty v/s International Airport Authority of India & Ors. (1979) 3 SCC 489and Ajay Hasiav/sKhalid Mujib (1981) 1 SCC 722 Private Hospitals can be construed as an instrumentality of State under Article 12 of the Constitution and also be made liable to pay compensation by the Supreme Court or the High Courts while exercising writ jurisdiction for any kind of medical negligence on their part. Apart from this, the victim always has a right to approach Consumer Forum or Civil Courts for seeking compensation and damages separately.

EPILOGUE

While fighting with the deadly virus of Covid-19, the world has seen multitudinous fatalities due to inadequacy of medical resources and lack of systematic governmental strategies. Talking about the present situation, India being a welfare State, is one of the worst affected country which is struggling hard to overcome the second deadly wave of Covid-19. The role of the Government is considered to be very crucial for fighting with the second wave of Covid-19 as it is the primary duty of the Government to secure the welfare of the people and to protect their life. But unfortunately, the Government has failed to discharge its duty in providing timely medical facilities. The patients have to run from post to pillar seeking proper and timely medical aid from the hospitals but due to inadequacy of proper medical supplies, they have no option but to create hue and cry making the situation abysmal. Had the Government prepared a systematic mechanism to tackle the present situation in advance, the lives of so many individuals would have been saved today. Shortcoming and lapses in providing medical treatment amount to a violation of right to life guaranteed under Article 21 of the Constitution.

To sum up, it would be safe to say that it is the paramount obligation of the Government to ensure proper medical treatment, denial of the same by whatsoever reason would results in violation of Article 21 thereby entitling the victims (family members) to receive monetary compensation for violation of the rights. Though no amount of compensation can outweigh the trauma, pain and suffering of the victims, monetary compensation is the manner known to law by which restitution of the family members can be done. The quantum of monetary compensation would depend on individual facts and circumstances of a particular case.

Adv. Mudit Maheshwari, High Court of M.P., Indore And Adv. Hardik Gautam, High Court Of Rajasthan, Jodhpur

Disclaimer: This article is meant for informational purposes only and does not purport to be advice or opinion, legal or otherwise, whatsoever. Views expressed in this article are personal views of the authors and have no connection with their professional duties.

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UNDERSTANDING THE NOTION OF SPECIAL KNOWLEDGE UNDER INDIAN EVIDENCE ACT UNDER SECTION 106: A SITUATIONAL AND PHILOSOPHICAL ANALYSIS

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1. PRINCIPLE OF THE SECTION

The section 106 of the Indian Evidence Act, 1872 is read as,

“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

This section is an exception to the general rule contained in section 101 of the act, namely, that the burden is on the person who asserts a fact. The basic principle pivoting this section is that it is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by a person other than the defendant. In Gurbakish Singh v Gurdial Singh, it was held that it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.

This section comes into picture only when the prosecution has proved its case beyond reasonable doubt that the accused has to prove the fact within his special knowledge to establish that he is not guilty . The burden of accused is discharged if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt . It is well settled that only when the prosecution led evidence, if believed, which would sustain a conviction, then the burden of proving anything would lie on the accused under section 106 of the act . This section applies only to the parties to a suit. The primary objective of the Court is to meet the epitome of Justice which can be unleashed only on account of the corroboration made by the person knowing the full truth facts and circumstances associated with the matter.

1.1. JUDICIAL TRENDS

a. In Senevirantne v R, the court held that Section 106 does not cast any burden on the accused to prove that he had not committed the offence by proving facts lying specially within the knowledge, that if anything is unexplained which the jury think the accused could explain then they, not only may, but must, find him guilty .

b. In Sawal Das v State of Bihar , the SC held that section 106 is applicable only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did the particular act. The observation of the SC was antonymous to the narrow construction of the section.

c. In Gurubachan Singh v State of Punjab, the court held that Section 106 only puts the evidential burden on the accused and it is not the legal burden which shifts from the prosecution. Section 106 is just a mere tool to assist the prosecution rather than a loophole in the law for prosecution to shrink their responsibility of proving a criminal case beyond a reasonable doubt.

2. INTENTION & MENS REA

In Srinivas Mall v Emperor, it was held that the court should bear in mind that unless the statute rules out mens rea as a constituent part of the crime an accused should not be found guilty an offence against the criminal law unless he has got a guilty mind. Analysing from the front of Section 106, it is well settled that Intention or guilty knowledge of the accused has to be proved by the prosecution and it is not the accused . This was also elaborated and iterated by the Court in the case of Gurubachan Singh.

It is not for prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. If the accused had a different intention, that is fact especially within his knowledge he must prove .

3. SITUATIONAL ANALYSIS

3.1. IN THE CASE OF ALIBI.

It is well settled in the case of Gurucharan Singh v State of Punjab, that burden to proof of alibi lies on the accused as it is specially within his knowledge but failure to prove does not help the prosecution, which has to prove the guilt beyond a reasonable doubt. This clearly holds and affirms the pivotal concept of the section as elucidated earlier.

3.2. PREVENTION OF CORRUPTION

The Supreme Court held that the offence under Section 5(1)(c) of the Prevention of Corruption Act is constituted when the property has been received by the accused for or in the name, or on account of the master or employer and it is complete when the servant fraudulently misappropriates that property. Therefore, in this regard the accused has to prove his innocence by virtue of the action of Section 106 of the Act .

3.3. N.D & P.S ACT

In Jagdish Budhroji Purohit v State of Maharashtra, it was held that when the factory from where the psychotropic substances were seized belonged to the accused, then burden was on him to prove how the offending articles came to be found in his factory. This again establishes the concept of special knowledge and jurisprudence of Section 106 of the Act.

3.4. NON-DELIVERY OR SHORT DELIVERY OF GOODS- RAILWAY

There is a duty on the part of the railway to disclose the manner of dealing with the consignments, as it includes those facts which are specially within the knowledge of the Railway administration and it must prove them . There is nothing in section 74-D of the Railways Act to indicate any legislative intent to override the dynamic provisions of Section 106 or Section 114 of the Evidence Act .

Under Section 80 of the Railways Act, there is a burden on the plaintiff to prove that the goods sent through railway was lost or damaged and he cannot take advantage of section 106. In the case of claim for compensation from railways, if the plaintiff does not call for any disclosure from railways, it was held that no duty lies on the railway to disclose anything or how the consignment was dealt with during the transit and no presumption can be drawn against the railway. However, the railway gets the immunity under section 74-A of the Railways Act, that short or defective delivery was due to the defective packing .

3.5. NEGLIGENCE

From the general perspective in the case of negligence, the burden of proof of negligence is on the part of the defendant lies on the plaintiff, but in the situations of res ipsa loquiotor, the burden lies on the defendant to show that he was not negligent . Therefore, the principle of section 106 is based on the ideology of res ipsa loquitor.

In the above cited case, where due to rash and negligent driving the bus turned turtle and by virtue of res ipsa loquiotor the negligence on the part of driver was presumed. It is to be noted that the best defence against negligence would be of the driver himself under section 106 of the Evidence Act (as it will amount to. Special knowledge of the fact, as of how bus met with an accident).

3.6. MASTER- SERVANT & HUSBAND-WIFE

In the case of a servant charged with misappropriation of goods of his master, if the failure to account is due to an accidental loss, the facts being within the servant’s knowledge, it is for him to explain the reason of the loss, by the action of Section 106 of the Act . This is analogous to the principle of the section 106, as the person having the special knowledge of the facts needs to assert and prove his case. In an application for maintenance by a wife, the onus is on the husband to disclose his income, by virtue of Section 106 . (As it is only within the knowledge of the husband).

3.7. FACTS WITHIN THE KNOWLEDGE OF THE PARTY

a. In case a dead body of a rape victim is found inside the house of the accused, the burden is on him to explain how the dead body happened to be there .

b. Where a housewife died of drowning in the well in the house of the in-laws, and at the time of the incident only accused were present in the house, burden was on them to prove what events happened that caused the death.

In these scenarios two things are pivotal which bring the role of section 106 into action,

i. Burden of Proof

ii. Special Knowledge of the accused.

This is because, what happened in one’s house or at a specific place and time can only be explained by the person witnessing it.

1. UNDERSTANDING & CONCLUSION

a. The burden of proof has two distinct meanings, the first being the burden of proof on pleadings which and the second being the burden of adducing evidence. While the first kind of burden remains on one side throughout the case, the second one may shift as per the need. Hence it is not the burden of proof that shifts, but the onus of proof that shifts. Thus, there is also a distinction between the terms ‘burden’ and ‘onus’. The first kind of burden is the legal burden while the second can be referred to as ‘evidential’ burden. The legal burden rests on the party which asserts the affirmative of an issue in the beginning of the trial.

b. Evidential burden, on the other hand, is an obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue with due regard being had to the standard of proof demanded by a party under such obligation. The object of placing the evidential burden on the defendant can be seen as a latent force to make the accused to go into the witness box and give evidence.

c. The burden of proof which has been envisaged in Section 101 of The Evidence Act is the legal burden which never shifts from the prosecution. Section 106 is not a proviso to the rule that burden of proving the guilt of the accused is upon the prosecution but on the contrary, the section is subject to the rule. Thus Section 106 is an exception to Section 101 of The Indian Evidence Act. The two judge bench of Gujarat High Court in State v Dhulaji Bavaji held that Section 106 could not be used to undermine that burden never shifts from the prosecution.

d. In Shanbhu Nath Mehra v State of Ajmer it was observed that Section 106 lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 10 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience.

e. The word “especially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder.

f. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

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THE CONUNDRUM OF EMERGENCY ARBITRATION: CONFIDENTIALITY IN THE COURT OF LAW

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COURT

Confidentiality is taken into account collectively of the key reasons why parties opt to opt for arbitration for settlement of their disputes as they are doing not need their disputes to be a subject of give-and-take. Considering the careful documents and the knowledge that parties exchange in Associate in Nursing arbitration, the thought is to shield the sensitive data, trade secrets, holding might which can be the subject matter of Associate in Nursing arbitration as its revelation may lead to irreparable loss. For the preceding reason, arbitration proceedings area unit unbroken confidential. However, is confidentiality much possible? what’s the legal basis of confidentiality? what’s its scope and what area unit the implications if it’s broken by a party? One of the major expectations of arbitration, namely, confidentiality, inflicts on arbitrators and the parties, the obligation to respect the confidentiality of arbitration. Section 42-A errs to deal with this interest as it lags the commitment of third parties to keep the arbitral record confidential.

UNICTRAL Model Law (Model Law) in 2006 entrusted arbitral tribunals to grant interim recourse to parties, a digit of arbitration institutions such as the International Centre for Dispute Resolution (ICDR), Stockholm Chamber of Commerce (SCC), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC) have altered their rules to provide parties with the antidote of emergency arbitration. The substantial upgrade in the position of international trade in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. In India too, the abrupt economic globalization & the transpiring accumulation in competition has headed to an expansion in commercial disputes. Identically, however, the proportion of industrial growth, modernization, and restoration of socio-economic circumstances has, in many instances, outpaced the rate of transition of dispute resolution mechanisms. In many parts of India, brisk development has intensified caseloads for already overburdened courts, further leading to notoriously listless adjudication of commercial disputes. As a consequence, alternative dispute resolution mechanisms, enclosing arbitration, have become more indispensable for businesses operating in India as well as those doing businesses with Indian firms. There has been only a modicum of cases in India which review the enforceability of the award ratified by an emergency arbitrator. The Bench of the Ld. Single Judge of the Delhi High Court, in its acting order dated 21 December 2020, examined & attributed how the award passed by the emergency arbitrator is enforceable in India.

BACKGROUND

Section 75 of the Arbitration and Conciliation Act, 1996 lets out that the parties shall keep confidential all issues about the conciliation. However, the provision does not apply to arbitration proceedings and applies only to conciliation proceedings. Even though there was no statutory referendum in the 1996 Act, there was an implied duty of confidentiality for various reasons including protection of sensitive evidence or intellectual property, etc., the reputation of parties in public, protection from potential declarations in similar matters, no intervention of independent parties, etc. Apart from the parties to the arbitration proceedings, some outsiders are strangers to the agreement but still sit in the arbitration proceedings They are not ruled by the arbitration agreement & have backing to confidential information delivered in the arbitration. Section 42-A wanes to honor this skepticism as it lasts to be voiceless on the obligation of these third parties to conserve the arbitral document confidentiality. The language of the section only imposes confidentiality on the parties, arbitrator and the arbitral establishment. The terminology of the domain only exacts hideaway on the parties, arbitrator and the arbitral institution in compliance with Section 14,15 & 37.

CONCEPT OF EMERGENCY ARBITRATION

Emergency arbitration is like a mode of interim relief, it’s a very forthcoming concept in the realm of arbitration, it’s mostly applicable for the parties that expect to insulate the investments and testimony that might otherwise be lost or diversified so it’s, an emergency arbitration is a game of time. It’s a very temporary and emergency arbitration like any other ADR mechanism that derives its power from the arbitration agreement itself. So, the main role of emergency arbitration comes up when there is no arbitral tribunal in place, or, there is a situation when setting up an arbitral tribunal will take a lot of time and there is no such time. emergency arbitration is the emergency arbitral tribunal is constituted only mostly two situations one, when there is no tribunal in place, and second when the situation is such that there is no time to appoint and go through the entire appointment procedure of the tribunal.

Instead of approaching the national courts, the parties can opt for an arbitrator game to save a lot of time. So, it’s the Tribunal is constituted for a limited period, or for a very limited purpose so as soon as the purpose is served or the timeframe in which the issues had to be decided. They lapse, the arbitration ends the emergency arbitration ends there itself. Emergency Arbitration is based on the concept of “urgent pro tem or conservatory measures.” In other words, it is for the parties who cannot await the long-drawn formation and composition of an Arbitral Tribunal. The reason behind the same is their need for interim relief at the earliest time frame possible, to either protect their position or to prevent the other party from the continuation of the breach they committed until the issue is finally adjudicated. It is agreeable that the Courts are capable of granting interim reliefs as well, but the same comes at the cost of compromise in efficiency and confidentiality, which neither of the parties may appreciate. Two legitimate mottoes that form its genesis are: firstly, the reasonable possibility that the claimant would succeed on merits fumus boni suggested amendments, such as the amendment to Section 9 of the Principal Act and so on, the initial concern of EA was not addressed.

DISCERNIBLE FAILURE OF STATUTORY IMPLEMENTATION OF EA IN INDIA

Future Retail Limited (“FRL”) is a listed corporation amassing retail chains in more than 400 cities across India. In spite of having such a flourishing business, the Covid-19 pandemic has had an overwhelming concussion on it. This had ensued in a rapid attrition of FRL’s assets. Subsequently, pertaining to this circumstance, FRL had agreed with Reliance Industries. Subsidiary this pact, the latter had rented out to compile the retail, wholesale, logistic and warehousing business of FRL. Besides, Reliance had agreed to discharge the liabilities, as well as invest in the concerned company. This transaction, as foreseen by the FRL, would deflect the company from getting on into liquidation. Moreover, the agreement would also sustain Amazon that has stakes in Future Coupons Pvt. Ltd (“FCPL”). In spite of these reasons, Amazon had lifted up an objection before the SEBI. In the fuss letter, Amazon voiced that the aforementioned transaction violated its contractual liberties, that is, its shareholder agreement (“SHA”), that had been entered into with the FCPL. Henceforth, to plop a clasp on the transaction, Amazon instituted emergency arbitration proceedings, as furnished in the SHA, under the SIAC Rules. This had transpired in an interim award being rendered, which purported to injunct FRL from progressing with the transaction entered into with Reliance Industries. India does not have any provisions distressing EA. Although the Arbitration and Conciliation (Amendment) Act of 2015 suggested amendments, such as Section 9 of the Principal Act and so on, the primary concern of EA was not addressed. Before this, the Law Commission of India, in its 246th Report, lucidly suggested the need for a concept of “Emergency Arbitrator”. The Commission intended to bring this under the ambit of Section 2, which defines an Arbitral Tribunal, by broadening the definition and including the concept of EA. However, as already witnessed from the Amendment Act of 2015, the same was not incorporated.

THE ELEMENT OF THE DISPUTATION

As per the outlay of the SHA between Amazon and Future Coupons, Amazon is to acquire 49% of its share capital. The indicated agreement also retains a roster of “restricted persons”, reeling off certain commodities with whom Future Group was not allowed off to come into any agreement. Despite these underlying provisions, Future Group entered into a transaction selling certain assets to Reliance, which is a part of Mukesh Dhirubhai Ambani Group, to save itself from becoming insolvent. It is also vital to recount through this acquisition, Reliance strives to acquire not only Future Group’s Retail assets but also its liabilities amounting to closely Rs 12,801 crores. In addition to this, Reliance has also conceded to fund a sum of Rs 2800 crores into the merged entity which, besides others, will be utilized to pay Future Group’s residual liabilities. Therefore, it is striking that this transaction will avert Future Group’s insolvency and, in the event, the transaction flunks, Future Group will indisputably go into liquidation. Amazon contends that Future Group oversteps the overheads of the SHA by entering into a sale the transaction with Reliance, as Reliance falls under the category of restricted persons enumerated in the agreement. Future Group contends that it is Amazon that stands in violation of the ForeignExchange Management Act (FEMA)-Foreign Direct Investment (FDI) Rules. Reading the conflation of agreements between Amazon and Future Group, Future Group contended that besides, Amazon, creating protective rights it is transgressing into controlling Future Retail, which requires prior approvals of the Government. Bereft such endorsements Amazon would be in violation of FEMA-FDI Rules. Relying on Hira Lal Patni v. Sri Kali Nath and Sushil Kumar Mehta the Court said that prima facie the present suit cannot be held to be not maintainable on two grounds: the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before have already been urged and considered by the Emergency Arbitrator. The arbitration between FCPL and Amazon is an International Commercial Arbitration placed in New Delhi, India and overseen by Part I of the A&C Act, however, conducted in conformity with SIAC Rules. Relying on NTPC v. Singer, the Court declared that while it is perfectly legal for the parties to choose a different procedural law, the issue which is required to be considered is whether the provisions of Emergency Arbitration of such procedural law, are in any manner contrary cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator.

PERTINENCE OF ARBITRATION

The relevance of arbitration often arises in situations where a party is up, one sits constrained to seek and cut back relief. The principle of seeking an interim relief is a substantial notion in the field of arbitration, and instead of, like, oh, it’s a very settled principle of law that any court of law or any arbitral tribunal can only grant such interim relief that isn’t able to find relief. The arbitrary emergency arbitrator gives interim relief that interim Relief has to be the limited purpose of that interim Relief has to be in the aid of the final release. So, the final release will be given by the normal arbitral tribunal, which could be constituted later, but it is basically in continuation. The wavering in cases where arbitration is being passed by the courts to the tribunal where the arbitration is referred, the courts to the tribunal takes a lot of time because the courts have to examine these, they discuss the validity of the agreement clause. So, all of it takes a lot of time, even when sometimes the Tribunal has appointed the proceedings are very consuming, so they cause delay. Also, the damages to the aggrieved party. In such cases, one party can seek emergency arbitration. So, the functioning of the tribunal is limited when the functioning of the courts, like in the present scenario is limited, a lot of parties have opted for emergency arbitration just to save time and get immediate relief sometimes they have to get the assets frozen or have the other side of the other party, or they need a very important state. So, in that case, they can invoke emergency arbitration.

CONUNDRUMS CONCERNING POTENTIAL IMPLEMENTATION OF EA IN INDIA

Firstly, the conundrum of enforceability of EA Awards remains a grey area. Chapter I and II of the Amendment Act of 2015, the foreign awards passed through the New York Convention and the Geneva Convention respectively are enforceable. However, the fix that emanates is that these two conventions discern the recommendations given under the 246th Law Commission Report and the amendment proposed by it in Section 2(1)(d) of the Act would bring India on to the same pedestal as other countries and help attain the global trend for Emergency Arbitrations. The dilemma can be etched in two ways, one in which the seat is in India and the other when the seat of arbitration is decided as a foreign state. The main problem arises in the case of foreign seated arbitration, as Domestic Arbitration Tribunal, emergency orders can be enforced under Section 17(2) of the Act. There remain many more ambiguities concerning India’s take on Emergency Arbitration. For instance, speculating that Emergency Arbitration is doable only under the ambit of institutional arbitration, what will be the outcome when a party has chosen for ad-hoc instead of institutional arbitration, can the party invoke Emergency Arbitration using such an agreement? In such a scenario, should the Courts be conferred the power to appoint an Emergency Arbitrator? Will the parties have to embark into a separate agreement to choose arbitral institutions for providing an Emergency Arbitrator? In the absence of regulatory legislation governing this aspect and judicial clarification, answering such questions is certainly not easy. With the amendments brought by the 2015 Act and the subsequent Arbitration and Conciliation Amendment Bill of 2018 being silent about the assorted concerns scrutinizing Emergency Arbitration, parties, for now, are without guidance as to how they should proceed with Emergency Arbitration if at all. However, it is germane to note that if enforceability of final adjudicated matters only, not EA-related matters. Therefore, the same mandates an address by the Indian Statute. In such a scenario, International Conventions like ICDR, ICC, SIAC, SCC and LCIA that have introduced the concept of Emergency Arbitrator Procedures can be referred to. The second conundrum that we may observe with respect to EA is the Court’s jurisdiction on the non-concerned parties. In other words, we observe that the Courts have the power and jurisdiction to entertain parties other than the two main parties in a suit before Civil Courts under the Civil Procedure Code. However, the same does not seem possible in EA because of the principle of party autonomy. Only those two parties that have signed the arbitration clause/agreement are bound by their respective Arbitration Agreement. Confidentiality of the matter and prevention of interference by any other party is also important. In such a scenario, either the EA is given special powers regarding the same, or any other provision may be made that specifically speaks out about the mandatory inclusion of an EA clause in an Arbitration Agreement to enforce the same.

CONCLUSION & THE WAY FORWARD

The predicaments employing Emergency Arbitration have been increasing globally in massive numbers, however, most of the jurisdictions have failed to cope up with the same. The interim reliefs given by the Emergency Arbitrators are uncertain and many at times, with no enforceability. That is precisely the reason the parties are bound to approach national courts. The Indian arbitration law does eventually embrace Emergency Arbitration, catch-all phrases in the enumeration of interim measures granted by Tribunals should be substituted with a more illustrative rather than an exhaustive list similar to the English Arbitration Act, 1996. Considering that the concept of Emergency Arbitration is at a nascent stage, it certainly does not come without obstacles. It is definitely hoped that with the various arbitration institutions providing for Emergency Arbitration and the Government’s push towards institutional arbitration as highlighted in the Arbitration Amendment Bill, 2018, the incorporation of provisions dealing with Emergency Arbitration in the Indian legislation will be encouraged in the near future.

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