In the Court of Justice, both the parties know the truth, it’s the judge who’s on trial
Justice JR Midha
In the year 2021, the Supreme Court of India issued a slew of decisions. The key pronouncements are briefly reviewed in this article.
VIKASH KUMAR VS UPSC
The decision in Vikash Kumar is forward-thinking. By overturning Surendra Mohan’s decision, it recognises that people with impairments may perform their tasks if reasonable accommodations are made available to them. There have been numerous examples of judges with disabilities properly carrying out their duties in various places around the world. In a session organised by the Nyaya Forum of NALSAR University of Law, Justice Chandrachud stated that current technology has helped impaired people to the point where there is almost no difference between them and the general population today. He also stated that the first visually impaired Supreme Court judge must be appointed as soon as possible.
In the judgment, Justice Chandrachud cautioned against perpetuating the negative imagery around disability: “When competent persons with disabilities are unable to realise their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved. In their blooming and blossoming, we all bloom and blossom.”
NAWAL KISHORE SHARMA VS UNION OF INDIA
The Hon’ble Supreme Court of India is hearing an appeal against a decision of the High Court of Judicature of Patna, which refused the seaman’s claim for disability compensation by referring to clause 21 of the National Maritime Board Agreement. The appellant joined the Shipping Corporation of India’s (SCI) offshore section in 1988, and after eight years, he was freed and transferred to a foreign-going vessel with a new registry in 1996, at his own desire. He joined the crew in September 2009 and was dismissed in June 2010 after being declared permanently unsuitable for sea service owing to Dilated Cardiomyopathy after 9 months. The appellant argued, citing an article, that cardio vascular illness is one of the many occupational ailments that seafarers face, and that injury does not have to present itself outwardly or in the form of blood oozing, but should also include an impeded heart. It was also claimed that SCI violated Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995 by failing to accommodate the sailor in an alternate work that was suitable for his condition.
SAURABH SHARMA VS DIVISIONAL MAGISTRATE & ORS.
Writ petitions challenging the Delhi government’s imposition of penalties on those who did not wear masks when travelling alone in their automobiles were dismissed by a single-judge bench led by Justice Prathiba M Singh. According to the Court, the mask functions as a “Suraksha kavach,” protecting both the person wearing it and those around them. The court further said that “Scientists and international governments have advised wearing of a mask. The challenge of the pandemic was huge and the wearing of face masks is important whether a person is vaccinated or not”.
SUJATA VS STATE OF PUNJAB
This case is about a live-in relationship with a girl of a young age. “The Court is the Guardian of Tender Aged Girls Who File Protection Pleas Without Knowing The Consequences,” according to the courts. A protection petition based on a live-in relationship should be filled out with dignity and caution. The petitioner was ordered to appear before the inquiry officer within 10 days and was granted temporary bail. Courts view- (1) Where the girls minor before disposing of petition based on live-in relationship, the court has to give notice to the parents. (2) Find out whether she has understood the consequences of filling the protection petition. (3) whether she is capable of taking independent decision.
SATISH RAGDE VS STATE OF MAHARASHATRA
‘Satish Ragde,’ the accused, attempted to sexually abuse a 12-year-old girl. The attacker, who had been enticed to the victim’s house in order to present her with guava, touched the little girl’s breast and attempted to remove her salwar just as her mother approached his house. Her mother and their neighbour investigated his house and discovered her daughter imprisoned in a room. The daughter then told her mother about the incident, and they went to the police station to report it. Because the case involved the POCSO Act, the police filed a charge sheet with the Special Court. After recording his conviction under Sections 342, 363, and 354 of the Indian Penal Code, as well as Section 8 of the POCSO Act, the Special Court sentenced the accused to three years of solitary confinement and a fine of Rs.1500/-.
The accused went to the Bombay High Court, where J. Pushupa Ganediwala acquitted him under section 8 of the POCSO Act and found him guilty of outraging the modesty and wrongfully imprisoning the prosecutrix under sections 354 and 342 of the IPC for a year of rigorous imprisonment and a fine of Rs500. In addition, the accused was served with a non-bailable warrant. The learned counsel was unable to prove from the record that the minor girl’s mother and the little girl’s evidence could not be considered or that they were not competent witnesses, according to the Court. The girl’s responses to the questions were not irrational. Furthermore, she informed her mother about the incident as soon as it occurred, and the First Information Report was filed as a result. Both the mother’s and daughter’s testimony are consistent and valid under section 6 of the Evidence Act, implying that the Res gestate principle would apply.
The Court also considered that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is essential ingredient for the offence and the Court believed that stronger proof and severe allegations are necessary. The Court also stated that whether the accused removed the top of the prosecutrix or inserted his hand while groping her breasts is unknown, which would not constitute a direct physical contact or “Skin-to-Skin” contact between the accused and the victim as per the section 7 of POCSO Act. The act committed by the accused would apparently fall under the definition of “Outraging the modesty of a women” provided under Section 354 of the Indian Penal Code.
The bench acquitted the accused under section 8 of POCSO Act and convicted him for outraging the modesty & wrongfully confining the prosecutrix under section 354 & 342 of IPC for a period of 1 year of rigorous imprisonment and a fine of Rs500. Also, a non-bailable warrant was issued against the accused.
RAKESH VAISHNAV & ORS. VS UNION OF INDIA & ORS.
Farmers (Empowerment & Protection) Agreement of Price Assurance & Farm Services Act, 2020, Farmers Produce Trade & Commerce (Promotion & Facilitation) Act, 2020, and Essential Commodities (Amendment) Act, 2020 (‘farm laws’) were passed by Parliament in September 2020. The agriculture laws were promulgated as ordinances on June 5th, 2020, before being adopted by Parliament. The agricultural laws aim to make it easier for farmers to sell their output outside of the state-designated Agriculture Produce Marketing Committee (APMC), to govern contract farming, and to restrict the supply of particular food items in emergency situations such as war and famine.
With the passing of the farm laws and intensified farmers’ agitation, several petitions challenging the constitutionality of farm laws were filed. Soon, petitions in support of the farm laws were also filed. In the hearing on January 12th 2021, the three-judge bench led by CJI Bobde stayed the farm laws. Bemoaning the lack of progress, the Government has made to resolve this crisis, the Court set up a four-member Committee to negotiate between the farmers and the Government with the following members:
(1) Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India Kisan Coordination Committee
(2) Dr. Parmod Kumar Joshi, Agricultural Economist, Director for South Asia, International Food Policy Research Institute
(3) Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices
(4) Anil Ghanwat, President, Shetkari Sanghatana
Following the stay order, no hearings were held. On a different bench, Khanwilkar J, who was hearing the KisanMahapanchayat’s request to hold protests at Delhi’s Jantar Mantar, wondered whether the farmers’ right to protest encompassed occupying public areas indefinitely while the issue was before the Supreme Court. Farmers, on the other hand, continued to demonstrate in various parts of the country. The Prime Minister revealed the Union Government’s plan to repeal the farm laws in the forthcoming Winter session of Parliament in a national address on November 19th, 2021. The constitutional challenge will be moot if a repeal is enacted.
JAISHRI LAXMANRAO PATIL VS CHIEF MINITER OF MAHARASHTRA
The “Maratha” is a Hindu community that is primarily found in Maharashtra. Following the implementation of the Indian Constitution, the President of India constituted a 13 Commission under Article 240 to investigate the status of all such socially and educationally backward communities. The Supreme Court overturned provisions of a Maharashtra law that gave the Maratha group reservation, pushing the state’s total population above the 50% threshold imposed by the court in the 1992 IndraSawhney decision. “The half-standard… is to achieve the correspondence’s goal as engrafted in Article 14, of which Articles 15 and 16 are facets… “To modify the 50% is to have a general public that isn’t founded on equality but on the rank principle,” a five-judge Constitution Bench led by Justice Ashok Bhushan said in four separate decisions. The concept of popular government is an important part of our Constitution and our fundamental foundation. If the reservation exceeds the 50% limit… It will be a slippery slope, as the political pressure makes scaling back an equal difficult.”
ELECTION COMMISSSION OF INDIA VS VIJAYABHASKAR
The Supreme Court was hearing a case in which the Election Commission sought the Hon’ble court to order the media to refrain from broadcasting remarks made by Madras High Court justices against the election commission, in which they were accused and held guilty for the second wave. The Supreme Court correctly stated that an open court ensures that judges behave in accordance with the law. The Supreme Court stated that media reporting of judicial proceedings falls under the fundamental right of freedom of speech and expression, and that it is a part of press freedom. The election commission has a history of being a self-governing organisation, and it should continue to be so.
With the passing of the farm laws and intensified farmers’ agitation, several petitions challenging the constitutionality of farm laws were filed. Soon, petitions in support of the farm laws were also filed. In the hearing on January 12th 2021, the three-judge bench led by CJI Bobde stayed the farm laws. Bemoaning the lack of progress, the Government has made to resolve this crisis. The Court set up a four-member Committee to negotiate between the farmers.
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Electricity connection cannot be denied only because dispute regarding ownership of land is pending: Gujarat High Court
The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.
The Gujarat High Court in the case Yogesh Lakhmanbhai Chovatiya v/s PGVCL Through the Deputy Manager observed and has clarified that occupiers of a land cannot be denied electricity connection only because a dispute regarding ownership of the land is pending.
The bench comprising of Justice AS Supehia observed and referred to a division bench judgment stating that right and title and ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.
In the present case, the petitioner current occupiers of the land and submitted that they were denied an electricity connection only because the land that they were occupying was in the name of the Government. However, the proceedings were initiated by the Mamlatdar against them u/s 61 of the Gujarat Land Revenue Code for removal of encroachment. Further, to bolster their contention, it was relied by the petitioner on an order of the High Court and Sec 43 of the Electricity Act, 2003 which mandates the supply of electricity to any occupier or owner of premises.
The Petitioners could be said to be ‘occupier’ of the land in question and the connection could not be denied by the Respondent.
The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.
Further, the bench of Justice Supehia concluded while perusing Sec 43 that the provision stipulated that the licensee shall supply electricity to those premises where the application had been filed by the owner or the occupier. Consequently, a reference was made to the order of the Division Bench of the High Court in LPA No. 91/2010 wherein it was observed:
The Court stated that such power being not vested under the law with the company and as the company cannot decide the disputed question of right and title and this court is of the view that ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.
While keeping in view of the aforesaid provisions, it was directed by Justice Supehia that the Respondent-Company to supply electricity connection to the Petitioners in the premises of the property at the earliest in accordance with the list maintained by the name containing the names of the Petitioners in the list.
ANALYSIANG SECTION 194R OF THE INCOME TAX ACT
Recently, Section 194 R was inserted by the Finance Act 2022, which came into effect on July 1st, 2022. CBDT made certain recommendations via Circular 12 from the day of the addition of this section, it has become highly debatable. Before touching the issues of this section, we need to understand the legal provision of section 194 R.
In simple terms, the new section mandates a person who is responsible for providing any benefit or perquisite to a resident to deduct tax at source at 10% of the value or aggregate value of such benefit or perquisite before providing such benefit or perquisite. The benefit or perquisite may or may not be convertible into money, but it must result from such resident’s business or professional activities. As per this section, tax will be deducted by business or profession on any benefits or perquisites of a person who is residing in India. The benefit or perquisite can be in the form of cash or kind, or partially in cash and partially in kind. Tax deduction will be 10 percent if the aggregate value doesn’t exceed INR 20,000. In such a case, tax will not be deducted. Such conditions will not be applicable in If the turnover of business doesn’t exceed INR One Crore, If the turnover of the profession doesn’t exceed INR fifty lakhs, For instance, if a person is a sales agent and he exceeds the target allotted by the company and receives a new car worth INR 5, 00,000/-the value of INR 5,00,000 will be taxed under the head of Profit.
The intention of this section is to expand the scope of deducting tax on benefits or perquisites and to increase transparency in the reporting of benefits and perquisites received by an individual. Because this particular incentive is in kind rather than cash, recipients of such kinds of transactions do not include it in their income tax return. As a result, inaccurate income information is provided. Such an incentive or bonus in kind ought to ideally be reported as income under the 1961 Income-tax Act (ITA). Also, according to Section 28(iv) of the ITA, any benefit or perk received from a business or profession, whether convertible into money or not, must be reported as business income in the hands of the receiver. Now Section 194(R) gives the right to the payee to deduct the amount, whether in cash or kind, arising out of business promotion.
The terms “benefits and perquisites” are not defined under the IT act. If they receive any such perquisites or incentives, whether in cash or in kind, they must deduct TDS. In cases where the benefit is wholly in kind, the person providing such a benefit or perquisite is required to pay TDS on the value of such benefit or perquisite out of his own pocket. In this case, benefits and perquisites are determined as per the value of the purchased price and manufactured price. However, no taxes to be deducted u/s 194R on sales discount, cash discount, or rebate are allowed to customers.
In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment. The main goal of these conferences and seminars is to keep doctors up to date on the most recent advancements in medicine, which is advantageous for both the pharmaceutical industry and the doctors treating patients. Free medication samples provided to doctors by pharmaceutical corporations cannot be considered freebies in light of the aforementioned value.
Hence, under such circumstances, for such a sales effort, the pharmaceutical company may deduct its expenses. The promotion would, however, be taxable income in the hands of the receiver, and the pharmaceutical company would need to deduct TDS on it.
Another question that pops up is that in the case of gifts and perks received on special occasions like birthdays, marriages, and festivals, under such circumstances, Section 194R will only be applied if they arise out of business or profession.
As we know, we are heading towards digitalisation. There are many social media influencers who are playing a crucial role in marketing strategy. Income received by an influencer is calculated by deducting expenditure incurred on their business. Filming costs, such as cameras, microphones, and other equipment; subscription and software licencing fees; internet and communication costs; home office costs, such as rent and utilities; office supplies; business costs, such as travel or transportation costs; and others are examples of what can be written off as a social media influencer. To illustrate how Section 194 R will be applicable in such a situation, let’s consider Nandini is a social media influencer. She received an offer from a company for product promotion in another city. She charged her fee of Rs 88,000 and the travel expense incurred by her was Rs 25,000. Here, the company will reimburse her travel expenses. So, the travel expenditure incurred by the company is covered under the benefits and perquisites provided to Nandini. Hence, TDS is to be deducted under section 194R at the rate of 10%, i.e., Rs 2500 is deductible from the fees payable to Nandini.
There is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable. The Supreme Court took the same view in the case of PILCOM vs. CIT in reference to the deduction of tax under Section 194E. It was held by the Hon’ble Supreme Court that tax is to be deducted under section 194E at a specific rate indicated therein, and there is no need to see the taxability under DTAA or the rate of taxability in the hands of the non-resident.
In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment.
GUJARAT HIGH COURT: WRIT PETITION FILED AGAINST PRIVATE UNIVERSITY NOT MAINTAINABLE, REMEDY FOR ALLEGED ARBITRARY TERMINATION LIES UNDER CIVIL LAW.
The Gujarat High Court in the case Shambhavi Kumari v/s Sabarmati University & 3 other(s) observed and has declined to intervene in a writ petition seeking reinstatement with full back wages and benefits filed by an Assistant Professor against a private university, Sabarmati University.
The bench comprising of Justice Bhargav Karia observed and has clarified that the dispute regarding termination was ‘in the realm of a private contract’ and therefore, held that if on the part of the respondent, there is an alleged arbitrary action, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition would not be maintainable against the private educational institution governed by the Gujarat Private Universities Act, 2009.
In the present case, the petitioner was given a three months’ notice starting August 2013, allegedly without any reason. Consequently. Earlier, an application was filled by the petitioner before the Gujarat Affiliated Colleges Service Tribunal and thereafter, withdrew the application to file the writ before the High Court.
It was contested by the respondents that the petition was not maintainable on the ground that the University was a private University and did not fall within the term ‘State’ under Article 12 of the Constitution of India. Therefore, the employment conditions of the Petitioner would not bring her services within the realm of ‘duty or public function.’
It was observed that the petitioner, per contra, insisted that the University was established under the Gujarat Private Universities Act, 2009. However, Universities were established to provide quality and industry relevant higher education and for related matters and hence, it could not be said that the Universities were not performing public duty. It was directed by the State Government and pervasive control over the functioning of it as was mentioned in Sec 31-35 of Chapter VI of the Act. Reliance was placed on Janet Jeyapaul vs. SRM University and ors. where the Top Court had held that the writ petition was maintainable against the deemed university and whose functions were governed by the UGC Act, 1956.
The bench of Justice Karia, while taking stock of the contentions referred to Mukesh Bhavarlal Bhandari and ors vs. Dr. Nagesh Bhandari and ors where the Coordinate Bench of the High Court in similar circumstances had reiterated that merely because the activity of the said research institute ensures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of ‘public duty or public function.
It was observed that the High Court also rejected the reference to Janet Jeyapaul since in the instant case and held that in the realm of a private contract, the Petitioner termination was to be decided.
Further, it was observed that it is not necessary to go into the merits of the case with regard to the issue of show-cause notice for providing an opportunity of hearing resulting into breach of principle of natural justice and weather the action of the respondent University is unfair or not because all such disputes essentially are in the realm of private contract.
Accordingly, the bench dismissed the petition.
Gujarat HC Quashes Reinstatement Order: Industrial Dispute Act| Person Working In The Capacity Of ‘Consultant’ Cannot Be Deemed ‘Workman’
The Gujarat High Court In the case Santram Spinners Limited v/s Babubhai Magandas Patel observed and has struck down the order of the Labour Court which had held that the Respondent-workman was entitled to reinstatement along with 20% back wages in the Petitioner-institute. Thus, the High Court, after perusing, Form No. 16A which pertains to Tax Deducted at Source, concluded that the Respondent was being paid consultant fees and not a salary and the same had been ignored by the Labour Court.
The bench comprising of Justice Sandeep Bhatt noted that the Respondent had raised an industrial dispute, inter alia, claiming that he was working in the company of the Petitioner as a Technical Maintenance In-Charge while the respondent earning a salary of INR 9,000 per month. Thereafter, it was alleged by him that he was terminated orally in 1997. Consequently, the Labour Court ruled in his favour and ordered reinstatement and back wages.
It was submitted by the petitioner that the Respondent did not fall within the definition of the term ‘workman’ in Sec 2(s) since he was employed as a Maintenance Consultant, receiving consultant fees and not a salary and the respondent had failed to produce any documentary evidence such as TDS statement, appointment letter, bills to bolster his contention.
Further, it was also averred by the petitioner that the relevant documentary evidence was absent. It was stated that Form 16A was produced to show that if the Respondent was a consultant, then there was no need to deduct TDS. It was observed that the Form No. 26K was disagreed by the Labour Court, which was produced by the Company to show that the tax was deducted from fees for technical or professional services.
The bench comprising of Justice Bhatt firstly observed that the Respondent had admitted that he had no evidence with him to prove that he was working as a ‘workman’ in the Company of the Petitioner that his salary was fixed at INR 9,000 per month. It was stated by the Manager of the Company that the Respondent was rendering services as a consultant raising his Vouchers/bills regularly and being paid through cheque. As per the Bench, there was ‘ample evidence’ to prove that that the Respondent was employed as a technical consultant.
Justice Bhatt stated that it is pertinent to note that the learned Labour Court has committed gross error in holding that those documents are complicated and thus, the learned Labour Court has also erred in giving findings that since TDS is deducted by the petitioner company and therefore, the respondent is workman, who is serving in the petitioner institute and in my opinion, this finding of the learned Labour Court is against the settled proposition of law and is highly erroneous.
Therefore, the High Court affirmed that there was no evidence that the Respondent had been working for more than 240 days during the year preceding termination.
Accordingly, the High Court struck down the award of the Labour Court.
GUJARAT HIGH COURT QUASHES REINSTATEMENT ORDER: PERSON WORKING IN SUPERVISORY CAPACITY CANNOT RISE “INDUSTRAIL DISPUTE”
The Gujarat High Court in the case Gujarat Insecticides Ltd. & 1 other(s) v/s Presiding Officer & 2 others observed and has reiterated that a person working in “supervisory” capacity cannot raise an industrial dispute under the Industrial Disputes Act, 1947.
The bench comprising of Justice AY Kogje observed and further made it clear that while deciding whether such person is a workman or not, the Labour Court ought to carefully consider the evidence placed on record and there is no exhaustive list of work to differentiate between the management employee and the Workman.
In the present case, the Petitioner Company averred that the Respondent was working in the non-workman category and engaged in the ‘supervisory category’ and was drawing salary of more than INR 1600. Therefore, the dispute was not an industrial dispute within Section 2(s) of the Act, 1947.
It was insisted by the Respondent that he had worked with the company as a Maintenance Engineer and the duties assigned to him were of the nature of a workman’s duties as per the ID Act. The respondent was wrongly terminated by way of termination and without any procedure established by law and as such, was entitled back wages.
It was observed that the high court took into consideration the Respondent’s appointment letter and witness depositions regarding the nature of work performed by him to conclude that the Respondent in Grade-9 was indeed discharging duty of Maintenance Engineer. It was also specified by the depositions that the hierarchical grading in the petitioner-company as per which, the employees above Grade-7 were of the Management Cadre.
The High Court observed that the Labour Court has completely disregarded this evidence, which according to this Court is most relevant for the purpose of deciding the status of workman and the Labour Court has proceeded that the petitioner-company ought to have produced evidence in the nature of whether the respondent-workman has sanctioned any leave, sanctioned any overtime or prepared any gate passes for employees to go home or has made any ordered or Appointment dismissal. Thus, when the Labour Court, instead of referring to this evidence already on record to establish the nature of work of the respondent and has decided to chase the evidence which is not on record and then on the basis that such evidence not being on record, it was concluded that in the definition of workman, the workman will be covered, this is where, in the opinion of the Court, perversity has crept in.
Accordingly, the bench quashed the impugned order. Therefore, seeing the passage of time, it was held by the High Court that the allowances paid u/s 17B of the Act should not be recovered by the Petitioner company.
COURT CALLS FOR SENSITIZATION OF POLICE: DELHI RIOTS SITE PLANS PREPARED CASUALLY, S.65B CERTIFICATE NOT FILLED FOR DIGITALLY SOURCED EVIDENCE
The Court while dealing with a case related to 2020 Delhi riots, a city Court has called for sensitisation of investigating officers (IOs) on making the photos obtained from digital sources as admissible in evidence by filing a certificate under section 65B of Indian Evidence Act, 1872.
The bench comprising of Additional Sessions Judge Pulastya Pramachala observed and thus ordered that whenever, photographs are filed from digital sources it is needless to say that a certificate under Section 65-B of I.E. Act, is must to make those photographs admissible for the purpose of evidence. However, all the IOs are required to be sensitized this respect as well and it is high time to control the casual and callous approach of any IO.
It was also observed that court expressed displeasure over “casually prepared site plans” by stating that preparation of the same were not even expected in cases triable by the Metropolitan Magistrates.
Adding to it, the Judge stated that unfortunately this kind of site plan has been filed in such a serious case involving session triable case. Moreover, from the documents filed on the record, the court find that certain photographs have been placed, but without any certificate under Section 65-B of Indian Evidence Act.
In the present case, the court was dealing with an FIR registered on the complaint of one Salim Khan wherein it was stated by him that his spare parts and barber shop shop was looted and was put on fire during riots.
It was admitted by one of the accused Dharmender that his involvement in the matter and he, with other co-accused was seen carrying the carton of Rooh Afzah from the warehouse of a complainant in another FIR.
The Court stated that a serious re-look over the quality of evidence/documents place on the record in the case, is required by senior officer with all serious attention.
Further, the court added that in this case the ld. DCP (North East) is requested to go through the records and to submit his report, if the prosecution is to be carried on, on the basis of other materials and same site plan as placed on the record.
As in future, the Special Public Prosecutor undertook to be much careful.
Accordingly, the Court listed the matter for further hearing on August 17.
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