In a recent troubling judicial pronouncement of the Nagpur Bench of the Bombay High Court in the matter of Satish Ragde v. State of Maharashtra (Criminal Appeal No. 161 of 2020), a single judge Bench of the Bombay High Court held that the application of Section 7 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO ACT”) would require either the removal of the clothes or the hand to be inserted within the clothes, whereby actual skin contact occurs to constitute the offence of ‘Sexual assault’, which is indicated by the following part of para 18 of the judgment which reads as follows:
“The act of pressing of breast of the child aged 12 years, in absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”
It would be pertinent, for the purposes of this discussion, that Section 7 of the POCSO Act is reproduced for the sake of reference. It provides that:
“7. Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual contact.”
From the reading of the above definition juxtaposed with the rationale of the single judge, the issue in this judgment boils down to the interpretation of ‘Sexual assault’ as provided in Section 7 of the POCSO Act and; whether it would cover a situation where the ‘contact’ / ‘groping’ occurred over the clothes of the child?
Admittedly, the single judge has clarified her mind in the judgment itself, vide para 26, that the meaning of “physical contact” that has been provided in Section 7 would naturally be construed as “direct physical contact i.e. skin to skin with sexual intention without penetration”. Thus, the entire question regarding the applicability of Section 7 in the present case pivots around this aspect that whether ‘physical contact’ would specifically mean ‘skin to skin contact’ or it would be construed in a simpliciter manner to cover all situations where there is any contact on any of the areas mentioned in Section 7 as long as the same is accompanied with a ‘sexual intent’.
As a matter of intellectual exercise, even before delving into the judicial exposition on the subject, it would be prudent to understand the mind of the legislature in relation to the legislative intent behind Section 7 which is to be read in consonance with the scheme of the Act. The foremost duty of the judge, while interpreting any provision of a statute, is to give effect to the intent of the legislature as long as it not ultra vires the constitutional provisions and contrary to the public good and principles of Natural Justice. The best way to gauge the mind of the legislature is by plain reading of the intent of the legislature which is apparent in the scheme of the Act. In order to determine the scheme of any Act, one need not look further than the Preamble of the Act itself.
The Preamble of the Act provides that the Act is meant “to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.”
It further provides that “it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child”. Therefore, the intent of the legislature as well as the scheme of the Act is ostensibly clear from the reading of the Preamble.
It is clear from the reading of the Preamble that the intent of the legislature while enacting the POCSO Act was to provide an additional layer of protection to children in the domain of sexual offences which were falling in-between the gaps of the pre-existing criminal law governing sexual offences which was covered under the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). In the light of the new legal regime as mentioned above, the single judge should have attempted to provide a beneficial interpretation to Section 7 which gave effect to the scheme of the Act, rather than taking a narrow interpretation curtailing the scope of Section 7, which was not otherwise naturally provided in the provision itself.
It should be further observed that the single judge unnecessarily created a peculiar rationale in order to arrive at her interpretation for Section 7 of the POCSO Act. The Single judge went into the question of interpretation of the phrase “any other act” which is provided in Section 7 to construe that the action of pressing the breast / groping over clothes would not be covered by the phrase “any other act”, which would be interpreted according to the principle of ‘ejusdem generis’, which provides that the words/phrases will be interpreted in the same manner as the words/phrases used in the immediately preceding part of the provision in order to construe that the meaning of the words would be of similar/same nature as that of the meaning of the preceding words/phrases of the provision. Therefore, according to the single judge, the action of pressing the breast over the clothes is not covered by the phrase “any other act” and subsequently the requirements of Section 7 are not being fulfilled, thereby leading to the failure to attract the application of Section 7. However, this was an incorrect and redundant interpretation of this phrase as it should have been provided a liberal interpretation, keeping in mind the scheme of the Act which stresses concern over the ‘best interests of the child’, even after the application of the principle of ‘ejusdem generis’. The application of the principle of ‘ejusdem generis’ to the phrase “any other act” would ensure that it is read to include those actions within its scope which involves touching of the private parts of the child coupled with sexual intent, rather than the phrase being read down to only mean the ‘touching’ of only the said body parts that are provided in Section 7 therein which should be a physical touching involving ‘skin to skin’ contact to qualify inclusion into the scope of the phrase “any other act” as provided in Section 7.
However, it is of utmost importance to mention here that even if we were to disregard the above redundant ‘intellectual exercise’ of judicial interpretation, even then, the single judge could not have arrived at such a flawed interpretation of the definition of ‘Sexual assault’ which is provided in Section 7.
This flawed interpretation was the result of the misconceived notion of the single judge that the “physical contact” contained in Section 7 meant ‘skin to skin’ contact which is what the single judge Bench termed as “direct physical contact”.
However, this unnecessary distinction as to what would constitute “physical contact” has not been provided in the wordings of Section 7, which would, therefore, mean that the term “physical contact” should have been construed in a simpliciter manner involving any touching of the said body parts that have been mentioned in Section 7, regardless of whether it is ‘skin to skin’ contact or ‘groping’ over the clothes.
In this regard, the single judge has, unfortunately, substituted her personal bias in lieu of the legislative intent behind the enactment of the POCSO Act and Section 7 specifically, and subsequently read-in a requirement which was never intended by the legislature.
The legislative intent behind the enactment of the POCSO Act was to provide additional layers of protection to the child victim and deter all forms of sexual offences, which may be inflicted upon a child, and thereby hindering their holistic and healthy growth. Therefore, the purpose of the POCSO Act is to specifically provide protections to children apart from the protections that have been otherwise provided in the IPC contained in the provisions pertaining to sexual offences, including the provision pertaining to ‘penetrative’ sexual assault contained in Section 375 of the IPC, which provides for the definition of Rape. In contrast, the POCSO Act goes beyond the IPC and provides for a specific provision dealing with the subject of ‘non-penetrative’ sexual assault, however, the same has been disabled by the absurd and redundant interpretation of the single judge, which is also disjointed from the legislative intent of the Parliament, which is evident from the Scheme of the Act itself.
The legislative intent behind the enactment of the POCSO Act was to provide additional layers of protection to the child victim and deter all forms of sexual offences, which may be inflicted upon a child, and thereby hindering their holistic and healthy growth. Therefore, the purpose of the POCSO Act is to specifically provide protections to children apart from the protections that have been otherwise provided in the IPC
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No need for a NOC to transfer flats built on land leased to the developer: SC
The Maharashtra government cannot require a “no objection certificate” from the collector in order to register the transfer of flats in cooperative societies built on land not provided directly by the state, the Supreme Court ruled last week.
The Court was hearing a petition filed by the state government challenging a decision issued by the Bombay High Court on September 29, 2009, which held that the state could not insist on payment of a premium and the issuance of a NOC for registering the transfer of plots when there is clear evidence that the land was allotted first to builders who built flats and then sold it to purchasers. Following that, the owners formed a cooperative society.
The HC decision was based on a petition filed by Aspi Chinoy, a senior advocate in Mumbai, and the Cuffe Parade Residents Association, who were residents of the 22-story Jolly Maker Apartments.
The top court bench of justices BR Gavai and BV Nagarathna dismissed the state’s appeal on Friday, “Since the land was not allotted to a society but to a builder on lease, who has constructed flats for private individuals, who have subsequently formed a Cooperative Society, the 1983 Resolution and 1999 Resolution would not be applicable to the members of such a society.”
The state had relied on two resolutions, dated May 12, 1983 and July 9, 1999, to levy a premium as a condition for granting permission for flat transfers.
The Resolution of 1983 provided for the grant of land at reduced rates to various categories of co-operative societies.
Following the 1983 Resolution, the government issued a modified resolution in 1999 that applied to co-operative societies to whom government lands were sanctioned at reduced rates.
Chinoy had approached the HC, questioning the resolutions’ relevance to their plot. He had challenged the collector’s letter of June 27, 2000 to the sub-registrar, Bombay City, Old Custom House, directing him not to register any transaction involving the transfer of flats in the buildings located in B.B.R. Block Nos. 3 and 5, Nariman Point and Cuffe Parade, Bombay, without first obtaining a NOC from the collector.
According to the residents, their building dates back to 1971, when the state government solicited bids for the lease of Plot Nos.93, 94, 99, 100, and 121 from Block V Back Bay Reclamation Estate. In response to the notice, M/s. Aesthetic Builders Pvt. Ltd. successfully won the bid and completed the construction of flats. On December 12, 1975, the building’s occupancy certificate was issued. Two years later, the owners established the Varuna Premises Cooperative Society Limited.
The bench said, “The present case is not a case where the land is allotted to a co-operative society by the government. The land was leased out to the builder, who was the successful bidder and after the ownership of flats was transferred to the private individuals, a society of the flat owners was formed.” The judges also lifted the stay on the refund order issued by the Supreme Court.
Chinoy claimed that the flat in which he lives was first sold to A Madhavan in 1972 and then to Reshmidevi Agarwal in 1978.
Chinoy then entered the picture by signing an agreement with Agarwal in December 2020 in exchange for five shares in the society.
Seeking centre’s response on plea for digitisation of medico-legal documents: Madras High Court
The Madras High Court in the case Dr. Mohamed Khader Meeran A.S v. State of Tamil Nadu observed and has recently sought the response of the Central and the State government on a plea seeking computerisation of medical records having legal importance, including postmortem report, injury report/ accident, etc.
The bench comprising of Chief Justice T Raja and Justice D Krishnakumar heard the case.
It was submitted by the petitioner, Dr Mohammed Khader Meeran that Medico Legal Examination and Postmortem Reporting (MedLeaPR) is a software developed by the National Informatics Centre (NIC) to issue various medico-legal reports and certificates digitally and to store the data in cloud storage in the encrypted form. Presently, the software is being used by many states and union territories in the country.
It was also directed by Madras High Court to implement this software in the state of Tamil Nadu by January 1st 2021. Thus, even though more than an year has passed, no effort has been made by any authority to implement the same, it was averred. The petitioner added that there is no standard proforma that exists in the State.
It was also contended by him that the present proforma is not at all at par with the standards prescribed by the Supreme Court in the case Samira Kohli Vs Dr. Prabha Manchanda And Anr., Civil Appeal No.1949 of 2004.
Further, the petitioner also submitted that documents like Injury Report, Post-Mortem Report (including viscera/chemical analysis report), report of examination after Sexual assault, age estimation reports have legal importance. However, if these are computerised, it would increase the efficiency of hospital administration, governments and the judiciary also.
The petitioner seek directions from the court to implement this software in all the Government hospitals.
Bail can’t be cancelled without giving notice to accused, giving him an opportunity of being heard: Allahabad High Court
The Allahabad High Court in the case Rajendra Kumar and 2 Others v. State Of U.P. Thru Prin Secy Home And Another observed that the cancellation of bail cannot be done without giving notice to the accused and giving him an opportunity of being heard.
The bench comprising of Justice Ajai Kumar Srivastava-I observed and has set aside the order of the Sessions Judge, Raebareli cancelling the bail granted earlier to Rajendra Kumar and 2 others in connection with a criminal case.
It was noted by the High Court that the impugned order cancelling the bail was passed without issuing notice to the accused/applicants and without affording them a reasonable and sufficient opportunity of hearing and the same was patently illegal being in flagrant violation of the rulings of the Supreme Court.
With this regard, it was also referred by the court to Apex Court’s rulings in the cases of Samarendra Nath Bhattacharjee vs. State of W.B. and another case of (2004) 11 SCC 165, Mehboob Dawood Shaikh vs. State of Maharashtra (2004) 2 SCC 362, and the case P.K. Shaji alias Thammanam Shaji vs. State of Kerala.
In the present case the accused/applicants were granted bail vide by the Sessions Judge, Raebareli on November 22, 2021. Later, the court was informed that the accused allegedly threatened the witnesses and the complainant to desist from prosecuting the case after being granted bail.
The court finds that the aforesaid conduct of the applicants was violative of the conditions of bail subject to which they were enlarged on bail, it has been directed by the trial court that the applicants be taken into custody and also passed the impugned order cancelling the bail granted to the applicants.
The Applicant challenging the order, moved the Court arguing that in this case and their bail was cancelled without giving them any opportunity of being heard.
The court noted that it is a settled law that once bail has been granted by a competent court after due consideration of the facts and circumstances of the case and the same should not be cancelled in a mechanical manner without there being any supervening circumstance(s) which are not conducive to the fair trial.
However, it was not made clear by the court that trial court would be at liberty to issue notice to the applicants stating therein the grounds which are to be considered by it for cancellation of bail being granted to the applicants.
Dispute Of Unregistered Partnership Firm Can Be Referred To Arbitration, Bar U/S 69 Partnership Act Not Applicable
The Calcutta High Court in the case Md. Wasim and Another v. M/S Bengal Refrigeration and Company and Others observed while hearing an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) for appointment of an arbitrator to resolve the dispute between the parties, wherein it was held that the bars for instituting a suit or any other proceeding under Section 69 of the Indian Partnership Act, 1932 (‘Partnership Act’) shall not be applicable to arbitral proceedings under Section 11 of the Arbitration Act.
The present case of the applicants was that, although unregistered, a partnership deed was executed between the applicants and the respondents containing an Arbitration Clause mandating the referral of all disputes and questions to a person who ahs been appointed unanimously to act as an arbitrator.
However, a dispute arose between the parties, subsequent to which, the applicants sent a notice to the respondents invoking the arbitration clause and proposing the name of an advocate as sole arbitrator to resolve the dispute. The respondent denied the appointment of an arbitrator alleging that the allegations raised by the applicants in their initial notice were false. The applicants filed the application under Section 11 of the Arbitration Act for appointment of an arbitrator, aggrieved in these circumstances,
The application was filled by the applicants and it was argued by the respondents that since the partnership firm was ‘unregistered,’ the dispute could not be referred to an arbitrator in view of the application of and the bar created by Section 69 of the Partnership Act, 1932. Further, their case was that since sub-sections (1) and (2) read with sub-section (3) of Section 69 of the Partnership Act restrict the filing of suit by any person as a partner of an unregistered firm including by means of a claim under ‘other proceedings,’ the appointment of an arbitrator could not be seek by the applicant, the partnership deed in their case being ‘unregistered.’
It was observed that Chief Justice Prakash Shrivastava relied on the Supreme Court decision in Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society Limited and on the Madras High Court decision in the case M/s. Jayamurugan Granite Exports v. M/s. SQNY Granites, wherein both of which held that arbitral proceedings shall not come under the expression ‘other proceedings’ of Section 69(3) of the Partnership Act, 1932 and that the ban imposed under Section 69 can have no application to arbitration proceedings and as well of the arbitral award under Section 11 of the Arbitration Act.
Accordingly, it was held by the Calcutta High Court that non-registration of the partnership firm would not attract the bar under Section 69 of the Partnership Act, so far as institution of proceedings as stated under the provision of Section 11 of the Arbitration Act is concerned.
Supreme Court: Terms Of Invitation To Tender Are Not Open To Judiciary Scrutiny Unless They Are Arbitrary, Discriminatory Or Mala Fide
The Supreme Court in the case Airports Authority of India versus Centre for Aviation Policy observed that the terms of invitation to tender are not open to judicial scrutiny, the top court has set aside a Delhi High Court’s order which had quashed the Airport Authority of India’s tender conditions for selecting Ground Handling Agencies (GHA) agencies at Group D Airports.
The bench comprising of Justice MR Shah and the Justice Krishna Murari observed and has stated that the Delhi High Court committed a “serious error” by entertaining a writ petition at the instance of a third party- an group of advocacy called Centre For Aviation Policy -when none of the GHAs challenging the tender conditions. Thus, the writ petition should have been dismissed on the ground of locus standi (Airports Authority of India versus Centre for Aviation Policy).
The court observed that in view of the matter, it is not appreciable how respondent No.1 (CAPSR) – original writ petitioner being an NGO would have any locus standi to maintain the writ petition, wherein challenging the tender conditions in the respective RFPs. Respondent No.1 cannot be said to be an aggrieved party in the case.
The Court stated that the even on merits, the High Court should not have interfered with the tender conditions, observed the Supreme Court. While referring to various precedents regarding limited scope of judicial interference in tender conditions
Further, the court stated that as per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide and as per the settled position of law, the terms of the Invitation to Tender are not being open to judicial scrutiny and the same being in the realm of the contract. The Government/tender/tenderer making authority must have a free hand in setting the terms of the tender.
The bench observed and has stated that the court cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been wiser, fair, or logical.
It was observed that the AAI approached the Supreme Court against the order of the High Court dated July 14, 2021, by which it has allowed the said writ petition of the NGO and has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1 and the stipulation that only the previous work experience in respect of providing the GHS to scheduled aircrafts shall be considered and will be acceptable. It was also found by the High Court that the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary.
Accordingly, the Supreme Court noted that the AAI explained before the High Court the rationale behind the respective conditions, namely, clustering of 49 airports into 4 region-wise sub-categories/clusters; criteria for evaluation of 36 months having experience in the past 7 years in providing 3 out of 7 Core GHS and the financial capacity and an Annual Turnover of Rs. 30 crores (modified as Rs. 18 crores) in any of the one of last three financial years.
The court stated that while having gone through the respective clauses/conditions which are held to be arbitrary and illegal by the High Court, the court is of the opinion that the same cannot be said to be malafide or/ arbitrary and/or actuated by bias. However, it was for the AAI to decide its own terms and fix the eligibility criteria.
Court sends Waqf Board scam co-accused to 14 day judicial custody
A Delhi court on Monday remanded Kausar Imran Siddiqui alias Laddan, co-accused in Delhi Waqf board scam case, to 14 days custody.
AAP MLA Amanatullah Khan is the primary accused in the case and is out on bail. The Anti-Corruption Bureau (ACB) has stated that Laddan is a fund manager for Khan. The Duty Sessions Judge at Rouse Avenue Court also expressed its displeasure over the non-presence of ACB on the previous date.
ACB had submitted to the court Ladan’s “handwriting sample” and sought 7 days of custody for him.
The court observed that the agency had not given any reasonable answer for its absence on previous occasion. Thereafter, he was sent to 14 day judicial custody.
AAP MLA was arrested for alleged irregularities in appointment in Delhi Waqf Board during his chairmanship.
Accused Kausar Imran Siddiqui alias Laddan was produced on a production warrant before the court on 27th September. He was interrogated and arrested with the permission of the court.
Laddan’s name came into the frame, when additional public prosecutor Anil Srivastava opposed Khan’s bail plea. He stated that a diary was recovered from Ladan’s house. It was alleged that he was Khan’s fund manager. Earlier, the (ACB) had said that money was sent to Dubai and other money transactions need to be investigated. It also stated that a large amount of money was transferred to a party via Dubai. There were 100 people who either received or paid money to Laddan. Out of these 37 people have transactions of crores of rupees.
This diary also has an entry about one Zeeshan Haider, who received crores of rupees. He is also a close associate of the accused, ACB had argued. The ACB has also submitted that Laddan is a nominated functionary of a political party. He has photographs with the accused during an iftar party. Additionally, 14 crores sale deed is recovered, which is said to be a ‘Benami property’.
Previously, Ladan was in judicial custody in another case lodged at Jamia Nagar police station. He was arrested from Telangana.
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