Test identification parade: Its purpose and objective - The Daily Guardian
Connect with us

Legally Speaking

Test identification parade: Its purpose and objective

Published

on

At the outset, let me begin by stating most unambiguously that the test identification parade is always conducted immediately after a criminal offence takes place so that the eye witness who does not know the accused identifies him/her and thereby the eyewitness credibility and reliability is also tested openly in this whole process. Also, it serves as a useful tool in enabling the police to draw the right inferences from it and helps it immensely in pursuing the investigation in the concerned case more pointedly and in right direction. It was held in State of UP v Neel Kanth AIR 1967 All 447 by the Allahabad High Court that the purpose of test identification parade is to test the memory and veracity of a witness who claims to identify an accused person as the participant or one of the participants in a crime. It was also held in Satya Narain v State AIR 1953 All 385 by the Allahabad High Court that its purpose is to find out whether the suspect is real offender or not. In Ankush Maruti Shinde v State of Maharashtra (2009) 6 SCC 667, it was held that the object of conducting test identification parade is two-fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

Apart from Section 9 of Evidence Act, we didn’t had earlier any specific provision pertaining to test identification parade. But by the amendment made in 2005 in Code of Criminal Procedure, a new Section 54A pertaining to identification was inserted which runs as follows: “Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court, having jurisdiction, may on the request of the officer–in–charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.’’

It is worth noting that the main purpose of test identification parade was enumerated by Justice Dr Arijit Pasayat in Heera v State of Rajasthan AIR 2007 SC 2425 wherein he observed: “The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.’’

EVIDENTIARY VALUE OF TEST IDENTIFICATION PARADE

It is imperative to mention here that the evidentiary value and usefulness of the test identification parade was explained exhaustively by the Supreme Court in the case of Ramanathan v State of Tamil Nadu AIR 1978 SC 1201 at pp. 1211 – 12 wherein it was held that, “Identification parades have been in common use for a very long time for the object of placing suspect in a line-up with other persons for identification. The purpose is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye – witnesses of the incident, but they claim that although they did not know him earlier, they could recall his features in sufficient details and would also be able to identify him if and when they happen to see him again. Such identification is in the interest of both, the accused and the investigating agency. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit. The line – up of the accused in a test identification parade is therefore a workable way of testing the memory and veracity of the witnesses and has worked well in actual practice.’’ In Ayyub v State AIR 2002 SC 1192, it was held by the Supreme Court that test identification parade as such is not a substantive piece of evidence. It is done only for the satisfaction of the prosecution that the investigation was moving in the right direction.

Having said this, I must also point out here that while examining the evidentiary value of the test identification parade pertaining to the facts of the case, the learned Judge Justice Singhal while delivering the judgment said that, “In the present case where there was satisfactory evidence to prove that at least two of the witnesses emphatically claimed that they had noticed the culprit and had in fact described him and claimed that they could identify him, the holding of a test identification parade was absolutely necessary. The fact that such parade was held within two days of the arrest and was supervised by a Judicial Magistrate with all the necessary precautions and arrangements, leaves no room for doubt that the evidence was of considerable importance.’’

Be it noted, in Ram Babu v State of UP, AIR 2010 SC 2143, it was held by the Apex Court that the purpose of test identification parade is to test and strengthen trustworthiness of the evidence of the witness in the court. The evidence generated by a test identification parade is used for corroboration. In Md Kalam v State of Rajasthan AIR 2008 SC 1813, it was held by the Supreme Court that test identification parade strengthens trustworthiness of identification in the court. It was also held that holding of such parade is not obligatory and accused cannot insist upon it. Further, delay in holding it is not fatal, but it should be held quickly to eliminate possibility of accused being shown to witnesses.

WHEN TEST IDENTIFICATION PARADE IS VALUELESS

I must also mention here quite clearly that the Supreme Court through many of its rulings has also categorically specified the situations under which test identification parade carries no value and is not worthy of being relied upon. As for instance, the Apex Court in State (Delhi Administration) v VC Shukla AIR 1980 SC 1382 at p. 1396 stated that the identification of the accused by the witness for the first time in the court without being tested by a prior test identification parade was valueless. In Hare Kishan Singh v State of Bihar, AIR 1988 SC 863 it was held by the Supreme Court that where one of the witnesses failed to identify the accused at the identification parade, identification by him of the accused in the court was useless. Also, in Hari Nath v State of UP, AIR 1988 SC 345 it was held by the Apex Court that holding a test identification parade after four months diluted its evidentiary value. Similarly in Soni v State of UP, (1982) 3 SCC 368, it was held by the Supreme Court that identification after 42 days cannot be relied upon to sustain conviction. But in Brij Mohan v State of Rajasthan, AIR 1994 SC 739 where test identification parade was held within 24 hours of arrest, held by the Apex Court to be good evidence, though the accused alleged that he was shown to the witnesses.

As we see, in yet another case Somappa Vamanappa Madar v State of Mysore, (1980) 1 SCC 479, 485, the Supreme Court pointed out that the witnesses ought to be questioned as to whether the accused had not been shown to them and in the absence of such questioning by the Magistrate or the accused, the evidence is not reliable. In Surendra Singh Rautela v State of Bihar, AIR 2002 SC 260, the eye-witness stated in his FIR that he could not identify the assailant, but at the test identification parade, he identified him. The Supreme Court rejected his evidence and held that such identification was a farce evidence and therefore not reliable. In Ahmed Bin Salam v State of AP AIR 1999 SC 1617, where the accused persons were shown to the witness and he identified them, this was held to be no identification parade. Thus, we can draw the logical inference from this that under no circumstances should the accused be shown to the eye witnesses prior to the test identification parade because if it is so shown , the Court will have no option but to throw away the case by concluding that this is no identification parade.

TEST IDENTIFICATION PARADE WHEN NECESSARY

The Supreme Court explained this in detail in Jadunath Singh v State of UP AIR 1971 SC 363. It was held that, “It seems to us that it has been clearly laid down by this court that the absence of test identification parade in all cases is not fatal and if the accused person is well known by sight it would be waste of time to put him up for identification. Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade.’’ In Mohammad Saleem v State, 1992 Cr LJ 1959 (Delhi) , the Delhi High Court in a case pertaining to rape and kidnapping held that test identification parade was necessary in view of the fact that the accused was not named in the FIR, nor was known to the witness previously and that the prosecutrix remained unconscious for five days after the alleged kidnapping. In Mahabir v State of Delhi AIR 2008 SC 2543, it was held that identification parade must be held at the earliest opportunity. One of the essential condition is that suspect should be unknown to the witness. If an accused is known to a witness, placement of accused for identification is a futile exercise. Test identification parade is necessary to be conducted as early as possible to eliminate the possibility of the accused being shown to the witnesses prior to the identification parade.

It must be mentioned here that in Ravi v State, AIR 2007 SC 1729, the Supreme Court held that in the case of an FIR against unknown persons, the test identification parade should be held as early as possible. A conviction cannot be based on a vague identification. In Chandan v State of Kerala 1986 CrLJ 1865 (Ker), it was held by Kerala High Court that normally, identification test is necessary (i) in case of dacoity, (ii) assembling of persons for the preparation of dacoity, (iii) riot, and (iv) any other offence the participants in which were not known to the witnesses from before. In short, if an accused is not previously known to a witness, the investigating agency has to consider whether a test identification parade should be arranged. When a stranger witness makes identification of an accused in court, the court, by way of caution or prudence seeks some assurance before accepting the identification is correct.

TEST IDENTIFICATION PARADE WHEN NOT NECESSARY

It would be imperative to mention here that in Asha v State of Rajasthan, AIR 1997 SC 2828, test identification parade was not considered necessary by the Apex Court where the FIR was lodged within one hour and the culprits were named therein. In a case of dacoity and murder in State of UP v Sukhpal Singh, AIR 2009 SC 1729, all the witnesses disclosed that they had known the accused persons and they were no strangers to them. They clearly identified them in the moonlight and lantern light. Under such circumstances, the Supreme Court held that holding test identification parade was not necessary. Similarly in Surendra Narayan v State of UP AIR 1998 SC 192, it was held that if the claim of the eyewitnesses that he knew accused from before is found to be true, failure to hold the test identification parade is inconsequential. In Jarnail Singh v State of Punjab, AIR 2010 SC 3699, it was held by the Supreme Court that where the accused identified by witnesses at the time of arrest itself, test identification parade would have been futile exercise.

TEST IDENTIFICATION PARADE IN COURT

Quite pertinently, in case of Suresh Chand Bahri v State of Bihar, AIR 1994 SC 2420, it was held by the Apex Court very clearly that identification of accused by witness in the Court is substantial piece of evidence where accused is not known previously by the witness. It was also held that test identification parade must be held at earliest possible opportunity with necessary safeguard and precaution. However, when accused had been seen by the witness for quite number of times at different points of time and places, it was held that no test identification is necessary. In State of Maharashtra v Sukhdev Singh AIR 1992 SC 2100, it was held by the Apex Court that the identification of the accused by the witness for the first time in the Court when such witnesses were not the strangers to the accused and got only a fleeting glimpse of the accused is not reliable. Similarly the Supreme Court in Sarwan Singh v State of Punjab AIR 2002 SC 3652 advised caution and restraint upon relying on identification parade made for the first time in Court. The Court held that, “It is well-settled that ordinarily identification of the accused for the first time in the Court by the witnesses should not be relied upon for the purpose of convicting the accused without definite corroboration. Since the identification for the first time in the Court cannot possibly be termed to be not admissible but it is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration, otherwise justice delivery system stands affected’’. In another case Dana Yadav v State of Bihar, AIR 2002 SC 3325, it was held by the Supreme Court that identification for the first time in the Court without any corroborative evidence should not form the basis of conviction unless there are exceptional circumstances to justify it. In this case, the accused was not named in the FIR. His identification in the Court was not accepted by the Supreme Court as a reliable evidence.

In George v State of Kerala AIR 1998 SC 1376, it was held that omission to hold the test identification parade, though not fatal makes the substantive evidence of identification in the Court by the witnesses after the lapse of time a weak piece of evidence which unless sufficiently and satisfactorily corroborated cannot be relied upon. In Raju v State of Maharashtra AIR 1998 SC 275, it was held that when the accused was known to the witnesses from before and no test identification parade was held immediately after his arrest, the identification of the accused by the witnesses for the first time in Court and that too about one year after the incident is not reliable.

However, we cannot gloss over that in RN Patel v State of Gujarat 1999 AIR SCW 4770, it was held by the Apex Court that it could not be held that in the absence of test identification parade, the evidence of eye-witnesses identifying the accused for the first time during trial should become inadmissible or totally useless. Whether the evidence deserves any credence or not would always depend on facts and circumstances of each case. Also, it is imperative to mention here that in Umesh Kant v State of Bihar AIR 2005 SC 726, it was held by the Apex Court that evidence of identification in test identification parade is not substantive evidence but identification in the Court is substantive evidence. In the absence of identification in Court at the time of adducing evidence, the result of test identification parade would be of little value.

It would be in order to mention here that in State of Haryana v Surender, AIR 2007 SC 2312, the injured eye-witness identified the accused in the Court. The test identification parade could not be held because of refusal by the accused to participate. The Supreme Court held that rejection of evidence of the eye-witness in the court without assigning reasons was not proper.

I would also like to invite my readers attention to the notable fact that in State of Haryana v Surender, AIR 2007 SC 2312, it was held that test identification parade has to be held by the police for the conduct of its investigation. It cannot be demanded by the accused. Non-holding of test identification parade does not render identification in Court inadmissible. Identification for the first time in Court cannot form the basis of conviction. It is only a corroborative evidence. In Ram Nath Mahto v State of Bihar, (1996) 8 SCC 630, there was dacoity with murder. The accused was convicted although the witness deposing in the Court did not identify the accused out of fear and was trembling at the stare of the accused whereas the witness had identified him in the test identification parade. The Court relied upon the evidence of the Magistrate who had conducted test identification parade.

TEST IDENTIFICATION PARADE BY POLICE OFFICERS

In Ramkrishan v State of Bombay AIR 1955 SC 104, it was held categorically by the Supreme Court that test identification parade must not be conducted by police officers. Any identifications made by any persons to a police officer in the course of investigations is valueless and the same is inadmissible in evidence. However, in Sheo Raj v State Air 1964 All 290 and Ali Bahadur v State 1998 (1) Crimes 557, it was held that mere presence of police constable is not a ground to reject the evidence of the identification parade.

REFUSAL OF ACCUSED TO SUBMIT FOR TEST IDENTIFICATION PARADE

In Suraj Pal v State of Haryana, (1995) 2 SCC 64, the prosecution was anxiously taking steps to hold the test identification parade but the appellants declined to submit themselves for that purpose. It was held by the Apex Court that it is true that they could not have been compelled to line up for test parade and so if they refused to submit for it they did so at their own risk. The prosecution could not be blamed for not holding the test parade. The reason given out by the appellants for declining to stand the test of identification was that they were shown by the police to the witnesses. This allegation was found to be baseless and unfounded by both the courts below. There was absolutely no basis to say that the appellants or any of them were shown to the witnesses. If the appellants had, in exercise of their own volition, chosen not to stand the test of identification without any reasonable cause, they did so at their own risk for which they could not be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable. The logical conclusion that we can draw from this ruling is that the accused should always be prepared to submit himself for test identification parade unless he has strong, bonafide and sustainable reasons for not submitting himself for the same which he must be able to prove also.

DELAY IN HOLDING TEST IDENTIFICATION PARADE WHEN FATAL

It is not in all cases that delay in holding test identification parade is fatal. It is only where there is unaccounted and unreasonable delay that it really affects its credibility. As for instance, in Puttan alias Kamal Prasad v State of Uttar Pradesh, AIR 1992 SC 2032, identification parade held after six months of arrest of accused. No explanation for inordinate delay in holding identification parade.

Held, conviction cannot be based upon it. There is no plausible explanation regarding the inordinate delay in holding the identification parade. In yet another case, Hari Nath v State of UP AIR 1998 SC 345, it was held that if there is unexplained and unreasonable delay in putting the accused for a test identification, the delay by itself detracts from the credibility of test. Also,in Shabad Pulla Reddy v State of AP, 1997 (7) Supreme 602, it was held that if there is unusual and unexplained delay in holding test identification parade, it would be difficult to hold that witnesses have correctly identified the accused. In Raj Kishore v State of Bihar AIR 1971 SC 1058 , it was held that identification parade held long after incident is of a little value. In Subhash v State of UP AIR 1997 SC 1222, it was held that since identification parade was conducted after four months of murder and no description was given by witness in FIR or during investigation, hence accused would be entitled to benefit of doubt. It is thus quite clear after analyzing all such cases that for test identification parade to be reliable, it must be conducted as soon as possible and there should be no unreasonable delay in holding the same. Also, before it is done, witness should not be allowed to see the accused because if the accused is exposed before the eye witness, it will render valueless the test identification parade to be conducted and the whole process will thus be rendered infructuous! This is best illustrated in the case of Mullagirivijram V State of AP, AIR 1993 SC 1243, where it was held that since witness saw the accused the identification is not reliable. Also, in Shaikh Umar Ahmad Shaikh and another v State of Maharashtra, 2000 (1) LW (Cr) 129 (SC), it was held that undoubtedly, the evidence of identification parade is not a substantive evidence, but its utility is for purposes of corroboration. Where there is strong possibility of suspects that accused being shown to eye-witnesses at police station, such identification parade lost its value and could not be relied.

CONCLUSION

All said and done, it merits no reiteration that the test identification parade is basically used to identify the key suspects and it is not a substantive evidence.

It has a lot of evidentiary value if it is carried out strictly as per the norms. We have discussed the different ruling also in this regard where we have seen when it is relevant. It goes without saying that the eye witnesses should not be shown the accused as that only serves to dent the credibility of the concerned eye witnesses.

It must be underscored here that all precautions must also be taken care of by the police in this regard. Only then will the test identification parade really serve its true purpose for which it is conducted!

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Emergence and influence of intellectual property in the sports industry

Starting from hunting in the olden times to justice and football moment, sports have been there in some form or the other since the inauguration of mortal life. Still, we know little of the issues engulfing sports in our country. Occasionally the players are facing problems like bullying and sexual importunity.

Published

on

The Indian sports request is fleetly growing and is a truly global miracle. Sports have become a significant part of any society. Sports go beyond religion, estate, and creed. Sport in India has noway really been taken seriously. It has always been seen as a source of recreation. Encyclopedically, the sports assiduity is a massive sector, bringing together entertainment, games, culture, and financial business together. It’s only in recent times that the marketable viability of sport in India has begun to be explored and exploited.

The extent of Intellectual Property Rights is mountainous in the sporting sphere. IP Rights are vested in nearly every element of the sports assiduity. Starting from Patents which stimulate technological progress that affect in better sporting outfit, trademarks and designs contribute to the distinct identity of events, brigades, and their gear. Brand- related rights induce the earnings demanded for broadcasters to invest in the expensive undertaking of broadcasting of sports events to suckers each over the world.

Also, Intellectual property( IP) rights stimulate the growth and creativity in all aspects of mortal conduct. They give the platform to transfigure good ideas into profitable gambles. This exploration paper tries to dissect how IP rights enable the world of sports in their development and identify the immense compass of IP in this arena. By nature, sports involve multiple layers of profitableactivity.However, laptops, or smart phones, If we formulate starting from remonstrating the ball on a muddy field to a colosseum filled with thousands of observers and millions more sticking on their boxes. Technologically developed and modified sports gears, seductive sportswear designs, and the girding makes sports a largely pleasurable and wanted exertion. But unlike numerous other similar events, every type of sport and the sports diligence need the protection in the form of IP rights, and a terrain that helps to enforces those rights. And therefore, this composition examines how the different orders of IP rights are useful in the sports sector to cover the means and induce value and stimulate growth.

Sports is big business and mega bucks are spent on organizing and commercializing major sporting events, similar as the FIFA, Cricket World Cup and the Summer and Winter Olympics. In this composition, we will consider in what ways the law is suitable to cover the substantial investments made in these sporting events by organizers and sports guarantors and merchandisers likewise, particularly in relation to the 2012 London Olympic Games and the rise of the miracle of so- called ‘Ambush Marketing’. Eventually, some general conclusions will be drawn. This blog explores how property rights in sporting specs-both real and intellectual-could give rise to information monopolies. As event organizers and promoters see the marketable advantage of the Internet, they’re producing their own news spots and contending for readership of the traditional news sources similar as journals, TV and radio. While the Internet is being heralded as the vehicle of lesser information diversity, the co-revision of sporting specs means that event organizers can decide an information monopoly in relation to their events. Intellectual property rights are seen by assiduity as a major pillar in sports entertainment as they cover the exclusivity of guarantors and the fiscal capacity of organizers. Trademarks are used to cover those IP rights but strategies like “ ambush marketing”, in which non-sponsor challengers take advantage of a sports event patronized by others, challenges those rights and therefore it’s needed to control it in any possible ways.

Starting from hunting in the olden times to justice and football moment, sports have was in some form or the other since the inauguration of mortallife. Still, we know veritably little of the issues gulfing the sphere of sports in our country. Occasionally the players are facing problems like bullying and sexual importunity. On the other hand, occasionally the players, themselves are giving rise to legal issues by unethical practices like doping. Any which way, the significance of law in sports is not denied. With the adding competitiveness and aggression amongst the players coupled with the adding financial benefits, players, trainers, and companies, etc. are getting further and further involved in malpractices. Match-fixing was first reported in 1965 when three players of a platoon had put against their own platoon. Unfortunately, moment we’ve contended cases of match- fixing in all the major sports events including FIFA, tennis crowns and justice crowns.

Moment, both for huntsmen as well as sports associations, sports isn’t just a career or passion, but is looked at as a huge business occasion. On conformation of a sports platoon, the brigades are generally honoured by a platoon name. For the purposes of identification, ensigns and fancy taglines are created. Off the field, on the marketable position, huntsmen get into signatures and announcements whereas sports associations get into branding, retailing, licensing, backing and other analogous conditioning.

Once all these creative rudiments are put into commercialization, their protection becomes essential. For case, moment impalpable means similar as the platoon names like Royal Contenders, Manchester United, events similar as Olympics, US Open etc., along with their various ensigns, totems, taglines, hold high marketable value and are significant factors of imprinting and selling conditioning and hence their legal protection is needed to help third party contraventions. On the other hand, broadcasting rights, licensing, auspices, and other important profit aqueducts also involve many legal conditions to guard the rights.

There’s no single law that protects all similar personal material and resolve all the issues that arise out of them. A set of multiple laws are resorted to in order to guard the business interests involved in sports. IP laws form major part of similar laws and are frequently pressed into service in diving colourful legal issues. IP is an marquee term used to describe parcels created by mortal intellect and includes patents, trademarks, trade secrets, imprints, designs and so on.

TRADEMARKS

Trademark is a distinctive sign or an index representing a trade or business. Trademarks typically are in the form of totem’s, captions, label lines etc. They’re the pointers of the source of origin of a particular product or service. Trademark is one of the most generally created IP associated with sports. It’s the one of the factors that aids brand structure of sports business. The names and titles of a ballot, label lines and other names associated with a sports platoon are able of being registered as trademarks and further help brand structure. The public conditions that measure fashion ability of sports are also grounded on trademarks. Therefore, trademarks have an immense value associated to sporting events or sports brigades. These trademarks piecemeal from being a symbol of identification, also add to ingrain value when used in colourful forms similar as merchandises, auspices etc. Announcement earnings and backing earnings are typically associated with trademarks to ascertain a ballot’s brand equity.

COPYRIGHT

Brand law protects the expression of ideas and not ideas in itself. Brand subsists in erudite workshop, musical workshop, cultural workshop, dramatic workshop, photos, sound recordings, and cinematographic flicks. Brand is defended from the moment the work is created. This right allows the proprietor of the brand to reproduce, make clones of the work, vend, make secondary workshop, acclimatize the work, licence, and assign the work. In the process of sporting events and its elevations, the maximum quantum of IP that’s created is brand. The artwork in the ensigns, the literature in the promotional material, the wares, software of computer and online games and so on are all subject matter of brand. There’s no obligatory rule to register imprints; still, looking into the judicial trends in India4, it appears that courts have emphasized on enrolment in order to claim remedies under the Copyright Act.

TRADE SECRET

A trade secret is a practice, process, pattern, or compendium of information which isn’t generally known or fluently acquired by which a business obtains a profitable advantage over its challengers. In sports associations or brigades, it’s possible that there’s some information which is non-public in nature and confidentiality has to be maintained. There have been multitudinous cases, where there has been a leakage of non-public information by the platoon members. For case, in 2008, expert quarterback Brett Favre, who quit Green Bay Packers and inked with the NewYork Spurts, called the Detroit Lions, and gave them some of the schemes that the Packers would be using on offense. By doing so, he violated trade secret law.

CONCLUSION

Commercialization of sports is so rampant that the competition amongst sports clubs or associations is not only on the event field but also in the business for making huge profits. Most sports clubs have ventured into exploitation of their intellectual property and are into different business such as merchandising, computer games, café’s, and so on. This adventure of sports clubs of earning profits by exploiting their IP makes it essential for them to adequately protect their IP. The protection of the various species of IP would be in various forms like registrations, agreements with proper terms and conditions etc. Lately, merchandising is one of the most lucrative businesses where the sports clubs have a larger stake.

Trademark is a distinctive sign or an index representing a trade or business. Trademarks typically are in the form of totem’s, captions, label lines etc. They’re the pointers of the source of origin of a particular product or service. Trademark is one of the most generally created IP associated with sports. It’s the one of the factors that aids brand structure of sports business. The names and titles of a ballot, label lines and other names associated with a sports platoon are able of being registered as trademarks and further help brand structure. The public conditions that measure fashion ability of sports are also grounded on trademarks.

Continue Reading

Legally Speaking

Claim of juvenility can be raised before any court, at any stage, even after final disposal of the case: SC

Published

on

It is really good to see that in a learned, laudable, landmark and latest judgment titled Ashok vs The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No(s). 643/2020 (Arising out of impugned final judgment and order dated 14-11-2017 in CRA No. 455/1999 passed by the High Court Of M.P. at Gwalior) that was delivered finally on November 29, 2021, the Apex Court has minced no words to make it clear that the claim of juvenility can be raised before any Court, at any stage, even after disposal of the case. So there should be no more confusion anymore pertaining to this! It must be specifically mentioned here that the Bench of Apex Court comprising of Hon’ble Ms Justice Indira Banerjee and Hon’ble Mr Justice JK Maheshwari observed that if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.

To start with, the ball is set rolling in this brief, brilliant, bold and balanced judgment first and foremost by observing in the opening para that, “By a judgment and order dated dated 29.07.1999, the Additional Sessions Judge, Gohad, District Bhind, Madhya Pradesh, convicted the petitioner inter alia for offence under Section 302 of the Indian Penal Code and sentenced him inter alia to life imprisonment in Sessions Trial No. 260 of 1997. In the cause title of the said judgment and order, the petitioner has been described as Ashok, S/o Balram Jatab age 16 yrs 9 months and 19 days, R/o Village Anjani Pura, District Bhind.”

In hindsight, the Bench then brings out in the next para of this notable judgment that, “The petitioner filed an appeal being Criminal Appeal No. 455 of 1999 challenging his conviction and sentence. The said criminal appeal has been dismissed by the High Court by an order dated 14.11.2017, which is impugned in the Special Leave Petition(Crl.) No. 643 of 2020, filed by the petitioner.”

To put things in perspective, the Bench then points out in the next para that, “The incident which led to the conviction of the petitioner, took place on 26.07.1997. The petitioner claims that the petitioner was born on 05.01.1981. The petitioner was, therefore, approximately 16 years and 7 months old on the date of the incident.”

As we see, the Bench then envisages in the next para that, “In this Court, the petitioner has for the first time contended that he was a juvenile on the date of the incident. His conviction and sentence are, therefore, liable to be set-aside. The claim of juvenility was not raised in the High Court.”

Needless to say, the Bench then further mentions in the next para that, “The learned Additional Advocate General, appearing on behalf of the State argued that the claim of juvenility has been raised for the first time in this special leave petition.”

Be it noted, the Bench then while elaborating further and shedding more light observes in the next para that, “The Juvenile Justice Act, 1986, which was in force on the date of commission of the offence as also the date of the judgment and order of conviction and sentence by the Sessions Court was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000. The Act of 2000 received the assent of the President of India on 30.12.2000 and came into force on 01.04.2001. The Act of 2000 defined juvenile in conflict with the law to mean a juvenile, who was alleged to have committed an offence and had not completed 18th year of age as on the date of commission of such an offence.”

In retrospect, the Bench then mentions that, “Under the 1986 Act, the age of juvenility was upto the 16th year.”

It is worth noting that the Bench then hastens to add in the next para that, “Section 7A of the 2000 Act as inserted by Act 33 of 2006 with effect from 22.08.2006 provided as follows:-

“7A. Procedure to be followed when claim of juvenility is raised before any Court.-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section(1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.””

Most significantly, the Bench then succinctly states what forms the cornerstone of this noteworthy judgment that, “The claim of juvenility can thus be raised before any Court, at any stage, even after final disposal of the case and if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.”

For the sake of clarity, the Bench then also wastes no time in pointing out in the next para that, “Even though the offence in this case may have been committed before the enactment of the Act of 2000, the petitioner is entitled to the benefit of juvenility under Section 7A of the Act of 2000, if on inquiry it is found that he was less than 18 years of age on the date of the alleged offence.”

Going ahead, the Bench then states that, “It is true as pointed out by the learned Additional Advocate General appearing on behalf of the State that the certificate of Akikrit Shash, High School, School, Endouri, District Bhind, Madhya Pradesh relied upon by the petitioner is stated to have been issued on 17.07.2021. The said certificate does not specifically mention that the date of birth 01.01.1982 had been entered at the time of first admission of the petitioner at the primary school level.”

What’s more, the Bench then further mentions that, “Furthermore, there is a birth certificate issued by the Gram Panchayat, Endouri, District Bhind, Madhya Pradesh which indicates the date of birth of the petitioner as 05.01.1982 and not 01.01.1982 as recorded in the school certificate referred to above.”

Adding more to it, the Bench then remarks that, “The entry in the records of the Gram Panchayat, Endouri, District Bhind, Madhya Pradesh, also do not appear to be contemporaneous and the certificate has been issued in the year 2017.”

Furthermore, the Bench then adds in the next para that, “However, as pointed out by Mr. M.P. Parthiban, learned counsel appearing on behalf of the petitioner that the Sessions Court has recorded the age of the petitioner as 16 years, 9 months and 19 days. The petitioner has been in actual custody for over three years.”

It cannot be glossed over that the Bench then enunciates that, “The 2000 Act has been repealed and replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 21 of the 2015 Act provides as follows:

“21. Order that may not be passed against a child in conflict with law. – No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force.””

Quite significantly, the Bench then holds and directs in the next para that, “Considering that the Trial Court has recorded the age of the petitioner as 16 years and odd, and has been in actual custody in excess of three years, which is the maximum for a juvenile, we deem it appropriate to grant the petitioner interim bail on such terms and conditions as may be imposed by the Sessions Court. We further direct the Sessions Court to examine the claim of the petitioner to juvenility in accordance with law, and submit a report to this Court within one month from the date of communication of this order.”

For the sake of clarity, the Bench then holds that, “The concerned Sessions Court shall be entitled to examine the authenticity and genuineness of the documents sought to be relied upon by the petitioner, considering that the documents do not appear to be contemporaneous.”

Without leaving any room for doubt, the Bench then holds that, “In the event the documents are found to be questionable/unreliable, it will be open to the Sessions Court to have the petitioner medically examined by taking an ossification test or any other modern recognized method of age determination.”

Finally, the Bench then holds that, “List after the ensuing winter holidays.”

In essence, the Apex Court Bench comprising of Hon’ble Ms Justice Indira Banerjee and Hon’ble Mr Justice JK Maheshwari have thus clearly, cogently, composedly and convincingly laid down that the claim of juvenility can be raised before any Court, at any stage, even after disposal of the case. We thus see that the Apex Court has made it clear that the juvenile can claim the benefit of juvenility even after final disposal of the case and the sentence, if any, passed by a Court, shall be deemed to have no effect. This is to ensure that a juvenile does not suffer immensely inspite of being even a juvenile.

No doubt, it is definitely a right step in the right direction and the Apex Court deserves all the kudos for having reiterated the right position of law on this which directly benefits the concerned juvenile even after a sentence is passed against him/her. There is no reason of any kind to differ with what the Apex Court has laid down in this case so convincingly and so sagaciously. Of course, it ought to be implemented in letter and spirit and all the courts are certainly duty bound to always abide by what the Apex Court has laid down in this leading case so very commendably!

Continue Reading

Legally Speaking

Addressing issues related to NRI marriages

Published

on

The institution of marriage is the nucleus of the social system. It forms the very foundation on which the splendid edifice of the social system stands. This sacred matrimonial bond gives birth to a plethora of rights and obligations. With the increase in Indian Diaspora, matrimonial alliances of Indian women with overseas Indian men are rising proportionately.

As reported by National Commission for Women, typical instances of issues that arise in NRI marriages are Abandonment of the women right after marriage, leaving her women during pregnancy, after child-birth, abandonment of mother-child duo; physical and mental abuse, desertion without reasonable cause, false information/Concealment about job, immigration status, earning, property, marital status and other material particulars, to deceive into the marriage, amongst others. Moreover, legal issues related to jurisdiction of courts, service of notices/orders, enforcement of orders; simultaneous retaliatory legal proceeding by husband in the other country, taking advantage of more lenient divorce grounds, obtaining ex-parte divorce and non-submission to the legal proceedings in any ways to summons, or even warrant of arrest are also encountered by women. Through the present article, author attempts to simplify the substantive and procedural laws applicable to the NRI parties to matrimonial disputes.

SUBSTANTIVE LAW

To understand the interplay of laws in cases involving NRIs, it is pertinent to mention that there are two sets of laws; one is Substantive that determines the rights and liabilities of the parties, whereas the other one is procedural which doesn’t create any right or liability rather lays down the procedural framework through which the substantive rights are legally enforced. Substantive Law governing the rights and liabilities of the parties to NRI Marriages is the Law under which the marriage is solemnised. All direct and incidental rights emanating from marriage, like maintenance, divorce, guardianship, custody, inheritance, succession and adoption are also regulated by the same substantive law. For example- If two Indian Citizens (Hindu by religion), marry in India as per Hindu Rituals, their matrimonial rights would be governed by Hindu Marriage Act, 1955 even if they are residing outside India.

Divorce cannot be granted on any ground which is not provided in the governing statute even if it is a valid ground in the country of their residence. To illustrate, Irretrievable Breakdown of Marriage is not a valid ground of divorce under Hindu Marriage Act, 1955; hence an NRI Couple cannot seek divorce on this ground in foreign country. If any Foreign Court has granted divorce on this ground, such a decree will be null and void in India. In Y. Narasimha Rao v. Y. Venkata Lakshmi, Supreme Court held that a Foreign Decree is not executable in India if the ground on which the divorce is granted by the foreign court is not a ground available under Indian Laws.

Section- 3 and 4 of the Indian Penal Code, 1860 (IPC) read with Section-188 of the Criminal Procedure Code, 1973 extend application of IPC to Indian Citizens residing abroad. If any person commits Matrimonial Offence which is punishable under IPC or any other special law in India in foreign land, the perpetrator can be booked and punished under Indian Laws. Matrimonial Offences are mentioned in Chapter XX (Section- 493-498A) of Indian Penal Code, special laws and personal laws. Dowry-related offences are punishable under Section- 304B of IPC and Dowry Prohibition Act, 1961. If in-laws while sitting in India exert pressure for dowry on their daughter-in-law living abroad, they can be booked for Abetment to Dowry/Cruelty as Section 108 of IPC expressly, states, “A person abets an offense who, in India, abets the commission of any act within and beyond India which would constitute an offense as if committed in India.”

PROCEDURAL LAW:

Procedural Laws are lex fori in nature and procedure is governed by the law where the suit is instituted. Civil Proceedings can be initiated either at the place where the spouse ordinarily resides, or place where the couple last resided together, or place where the petitioner is currently residing, whether overseas or India. Special power of attorney (SPA) can be used by the NRI husband/wife living abroad to file a divorce case in India. In case the errant party despite repeated summons doesn’t appear before the Indian Court, warrants may be issued and uploaded on Ministry of External Affairs Website and shared with the Indian Embassy Office in the Foreign Country for compelling his/her attendance.

Provisions related to Execution of Foreign Divorce Decree in India are contained in Section 13 and 44-A Code of Civil Procedure, 1908. For a foreign decree to be valid and enforceable in India, it must fulfil the conditions mentioned in Section 13. In Y. Narasimha Rao Case (Supra), Supreme Court ruled the following conditions of a valid foreign decree-

Both parties voluntarily and unconditionally subject themselves to the jurisdiction of the Foreign Court

Decision is given on the “merits” of the case

Ground of divorce in the decision of the Foreign Court must be a ground available under the Indian Law

Decree must be free from fraud or any misrepresentation

IMPOUNDING OF PASSPORT

Section-10 of The Passport Act lays down grounds and procedure for revocation of passport by Passport Authorities. Revocation or Impounding of a passport on account of any involvement of matrimonial offence is not per-se mentioned. However, passport may be revoked / impounded on the following grounds:

If the holder has been convicted of any offence by a court in India for an offence involving moral turpitude and sentenced to an imprisonment for not less than two years

If criminal proceedings are pending in a court in India

If a warrant or summons for appearance or an arrest warrant has been issued by a court

In Rajiv Tayal v. Union of India (2005) passport of NRI husband was impounded after continuous failure on his part to respond to summons by the Indian Courts under Section 10 of the Passport Act. The husband challenged the revocation order passed by Consulate General of India, New York by invoking writ jurisdiction which was rejected by the High Court and he was ordered to appear before the Indian Court. Fines can be imposed as per Schedule to the Act in case of non-disclosure of correct marital status/details of pending matrimonial case or minor suppressions of information regarding marital status/name of spouse etc.

REDRESSAL

NRI Cell of National Commission for Women is the nodal agency for resolving issues related to NRI marriages from across the country and abroad. Online Complaint can be filed with NRI Cell of NCW- http://ncwapps.nic.in/NRICellcms/ or sent via email- nricell-ncw@nic.in

Besides, Ministry of External Affair’s Online Consular Grievances Monitoring System- MADAD helps Indians abroad, including women married to NRIs. Distressed woman or any member of her family/friend can register a complaint under this Module.

For legal aid and advice on any matter, National/State Legal Services Authority can be contacted. As per Section-12 of The Legal Services Authorities Act, 1987, every woman is entitled to free legal aid in India. If the victim wishes to file case in India, complaint can be filed through NALSA Mobile Application or NALSA on-line complaint portal.

WAY FORWARD

To support Indian women in distress by providing financial and legal assistance, Ministry of External Affairs implemented Scheme, titled “Scheme for giving legal / financial assistance to Indian women deserted by their overseas Indian / foreigner husbands”. The scheme is available to Indian women who have been deserted by their overseas Indian / foreigner husbands or are facing divorce proceedings in a foreign country, subject to the conditions mentioned therein. Besides, Registration of Marriage of Non-Resident Indian Bill, 2019 which is currently referred to Parliamentary Standing Committee makes registration of NRI Marriages compulsory. Failure to register marriage within 30 days would lead to impounding of passport by the passport. Moreover, the Supreme Court is also yet to formulate guidelines for safeguarding the interest of NRI married women in the PIL filed by NGO, Pravasi Legal Cell.

(Bhawna Gandhi is a Delhi-based Lawyer and Columnist, currently working as Researcher at Delhi State Legal Services Authority)

Continue Reading

Legally Speaking

Why contract law is essential for business transactions

A contract with extensive operational content is used to manage all parties’ distribution operations, whereas a contract with significant technical material is used to monitor the cluster’s output activities. The parties’ relationships have a clear impact on the contract’s execution. The transactional relationship leads to a specific deal use, but the relative relationship leads to a non-specific deal use.

Published

on

Since the human race began and human society has developed, there have been many laws and policies practiced through out the decades. In the past when the barter system was in practice and people used to exchange goods amongst them, people were unable to meet their needs properly so for that the concept of money and company into light and was accepted by everyone. In the contemporary era, the economy is growing fastly and vastly and the globe has accelerated the corporate transactions and business with the help of a legal instrument that is known as “Contract”. The Law of Contract is one of the oldest mercantile laws being used in India since 1872. The term “Contract” is referred to as the agreement between two parties that are contractual in nature that describes the responsibilities of the parties where the offeror makes an offer to enter into a contract with the offeree. If the offeror agrees to do something or to refrain from doing something and accepts the offer, then contact is made.

The Law of Contract is not only an important thing for business rather it is an essential law to carry on trade, business or commerce smoothly as it definiteness in the business transactions that affects the entire society. India is considered as a developing country with a mixed economy and in the 21st century, several new businesses and startups are emerging across the country. Make in India, Startup India, Execute India, and few other initiatives were started by the government to make India grow in the global market. These got boosted up when the Pandemic hit the nation and everything went virtual. People started working from and this was the time when many new startups and businesses came and grew up.

Every business or startup goes through a business transaction. A business transaction is basically an event or an occasion that involves an interchange of goods or money or any kind of services between two or more parties. It is very important as it provides a brief view of the interactions taking place between the company or organizations for accomplishing the business objective.

Any contract is enforced by the law as it ensures that if any party fails to do whatever he/she has agreed to, then in that case the other party may approach the Court of Law. to demand the damages for the injuries done by the violation of the law. However, any contract can only be taken forward and executed if it satisfies these conditions – agreement, free consent, competence, consideration, legal objective, and the contract not expressly declared null and void. Basically, a contract is an agreement that is written and agreed upon by all the parties involved in it. It not only provides an oppurtunity and smoothness for the execution of all the tasks and the fulfillment of the target as written in the agreement. It acts as a path of positive attachment with the clients.

Contract management, in this context, is a strategy for managing legally drafted contracts with clients or anybody else. A contract guarantee is a common commercial practise that clarifies requirements and aids in the delivery of the intended outcomes as quickly as feasible. It is important to obtain a legally binding contract from a lawyer.

Contracts become particularly significant due to the following factors:

1. PREVENTION OF MISCOMMUNICATION AND MISUNDERSTANDING:

This is one of the most common issues encountered in any organization for various reasons. Contract preparation is a mandate to deter such situations. Both the parties have to read and follow all the negotiated laws as it has a huge effect on the disputes between the parties and thus can make a huge effect on the entire firm.

2. COMPREHENSIVE PROOF OF INFORMATION:

A contract’s principal purpose is to memorialise all of the details agreed upon by both parties. The contract provides a thorough understanding of the services provided by a third party as well as the financial obligations that must be met by the third party. This data will be used as legal facts and is extremely important to the transaction.

3. ENSURES CONFIDENTIALITY:

A Non-Disclosure Agreement (NDA) that covers all sensitive material is required to ensure confidentiality. The parties concerned are not entitled to the disclosure of the business or to a monetary exchange with the third party, according to this agreement. They will be held accountable for breach of contract if they reveal the information.

4. OFFERS PROTECTION:

The duration of the contract and the collection of responsibilities are specifically stated in the legal agreement, which plays an essential role in ensuring security between the parties. If one of the parties files a lawsuit against the other, the contract may be used as evidence.

5. WORKS AS A CORPORATE RECORD:

The contract is the primary and most important document establishing mutual consent to the procedures set forth in the agreement. According to the contract, it can be used for comparative reasons. The length of the contract is usually noted in the contract, which provides extra direction on termination terms. In the worst-case situation, the contract may be cancelled if the other party fails to follow the contract’s regulations or ignores the conditions.

Before, commercial transactions were far too simple. Two individuals used to agree to make a transaction and both parties kept their word, but today’s professionals are aware of the history of deal-breaking and litigation that have occurred in their industry. Contracts are regarded the most significant item in any business since they explain both parties’ expectations and protect both parties if those expectations aren’t met adequately and a lockin price is paid for the services. Because it is implemented in our daily lives, contract law is extremely important. Life will not run as smoothly as it should without the contract. Any agreement in today’s period involved a contract, whether it was for buying raw materials, renting property, collecting money, or employment. Much of what the government does, in their opinion, derives from the action of the appropriate Parliament, and the services they give are increasingly privatised and delivered in accordance with the contract.

Various studies have been conducted in the past to demonstrate how the contract is utilised to replace the parties’ loss of trust. The problem is that protecting against probable future occurrences is difficult, if not impossible. The participants’ primary goal is to protect oneself in the event of a possible relationship involving complex and unusual interactions. Contract negotiations are reviewed in five stages: bid, discussion, adaptation, preparation, and the final negotiating process. The end outcome will most likely be a one-sided deal. There may also be a link between the length of the conversations and the proximity of the meetings. Long-term interactions, according to the model, are likely to result in more notable closeness as the parties learn more about one another. On the other hand, if the parties already have a good connection, the conversations may be brief.

The aforementioned circumstances make contracts inevitable for any firm that wants to keep its sensitive information safe and secure from the bad guys. It also protects employees when they fail to follow the terms of the contract by deceiving them with promises. Furthermore, we tend to believe that the negotiation approach, the contract, and its application are at the heart of the study. As a result, the contract itself contains a critical outcome on the contract’s employment. During a right-of-use arrangement, an agreement made by the granting party is used to govern individuals at intervals the opposing party’s company. This horrible contract is used in a variety of ways. A typical contract is discovered to have a non-differentiated usage. A contract that is not as thorough as a long term is perceived in a very different light.

A contract with extensive operational content is used to manage all parties’ distribution operations, whereas a contract with significant technical material is used to monitor the cluster’s output activities. The parties’ relationships have a clear impact on the contract’s execution. The transactional relationship leads to a specific deal use, but the relative relationship leads to a non-specific deal use. However, drafting a contract that takes these issues into account might be a difficult and time-consuming process. It’s also a good idea to seek the advice of a seasoned professional.

The Law of Contract is not only an important thing for business rather it is an essential law to carry on trade, business or commerce smoothly as it definiteness in the business transactions that affects the entire society. India is considered as a developing country with a mixed economy and in the 21st century, several new businesses and startups are emerging across the country. Make in India, Startup India, Execute India, and few other initiatives were started by the government to make India grow in the global market. These got boosted up when the Pandemic hit the nation and everything went virtual. People started working from and this was the time when many new startups and businesses came and grew up.

Continue Reading

Legally Speaking

Unlocking the reality of preventive detention laws in India

Published

on

Criminal laws act as a tool to prosecute criminals and also to prevent or reduce the risk of an anticipated future harm. Such measures enable the state to criminalize conduct at an early stage in order to allow the authorities to take action, to incapacitate suspected future wrong doers, keeping them behind the bars for an extended period and all this is done in the garb of public protection and security. Classical theories of jurisprudence comprehend the relationship between states and citizens. A citizen’s obligation to obey to the sovereign is a tacit form of consent and in return the state owes a deemed duty to protect the citizens from hazards, threats and any form of violence. With this rationale, the state proceeds towards fostering in itself the power the prevent an individual or a group from committing any harm. Broadly, preventive detention is a measure if it is created to avert or reduce the frequency or impact of an unacceptable risk or harm.

MEANING OF DETENTION

There is no universally accepted definition of preventive detention but in general sense preventive detention means to detain a person in order to prevent him from committing any possible future crime. There is another similar type of detention called ‘administrative detention’ which is more often used in civil law countries and on the other hand preventive detention’ is more often used in common law countries. The major difference between two types of detention is that in a former case detention is a tool for administration and on the other hand in the later case detention is a tool to prevent a ‘potential threat’.

There is also a third type of detention, ‘punitive detention’ the main purpose of which is to punish the person for an offence committed only after a trial and conviction in a court of law. As the name suggests the major difference between punitive detention and preventive detention is that one talks about punishment and other about prevention.

CONSTITUTIONAL PARADOX OF PREVENTIVE DETENTION LAWS IN INDIA

India chose to be a democratic country with inherent values of human rights embedded in our Constitution. However, the irony lies in the fact that the Constitution makers still chose to grant exemption to prevention detention laws when once they were victims of the same despotic laws.

Under Entry 9 the Union list, Parliament has the absolute power to enact laws with regard to preventive detention for reasons connected with security, defence and foreign affairs of India. Under Entry 3 of the Concurrent, both the state and the central government have been vested with the powers of enactment of such laws which related to the maintenance of public order, maintenance of supplies and services essential to the community etc. Preventive detention finds place in Constitution and that too under Fundamental Rights. Article 22(3) provides that: “if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under Article22 (1) and 22 (2) shall not be available to that person.” This is why article 22(3) cannot be said as the fundamental right but a fundamental danger to the liberty of a person.

The Criminal Procedure Code of India also provides for Preventive detention under Section 151 as: “A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.”

In Union of India v Paul Nanickan and Anr, the Supreme Court of India stated: “the object of preventive detention is not to punish a man for having done something but to intercept him, before he does it, and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence.”

The main purpose for inserting preventive detention laws was to prevent the commission of a crime which are prejudicial to law and order of a state but it has failed miserably to serve its purpose and on the other hand is proving to be a tool to curtail the liberty of an individual.

Clause (3) of Article 22 is the main escape that outrightly exempts the applicability of rights of an arrested person as conferred by Article 22. Preventive detention thus allows detention without legal trial. At the same time, the constitution provides safeguards in case of misuse of preventive detention laws.

JURISPRUDENCE OF PREVENTIVE DETENTION LAWS VIA THE INDIAN JUDICIARY

The first case in post-independent India where the constitutionality of the Preventive Detention Act, 1950 was questioned was the AK Gopalan Vs State of Madras. The court gave a green flag to the Preventive Detention Act because of the presence of the explicit provisions of Article 22(5). Although the petitioner made a good attempt by challenging the law in violation of Article 14, 19 and 21 of the Constitution. Later, PDA lapsed in 1969 and Parliament enacted the Maintenance of Internal Security Act (MISA) two years later. The infamous emergency of 1970s exercised MISA as a political weapon to curb political criticism and dissent. MISA expired in 1978 but paved way for the birth of another preventive detention law which is National Security Act (NSA) which is in effect today. Simultaneously, in 1967 the government enacted Unlawful Activities Prevention Act (UAPA) to restrict the fundamental rights of freedom of speech and expression, freedom to assembly peaceably without arms and to form associations. UAPA has undergone half a dozen amendments since then and is currently also recognized as a terror law.

It is pertinent to note that, the law in India allows detention of individuals in order to prevent act that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard in the case of Ram Manohar Lohia v. State of Bihar, wherein the court differentiated the concepts pf ‘security of state, public order and law and order’. The Court concluded that law and order represent the largest circle within which there is a smaller circle of public order and the smallest circle is the security of the state. So, it can be seen that what may affect law and order might not affect public order, similarly what may affect public order might not affect security of state.

However, the state is trying to normalize preventive detention under the umbrella of ‘national security’ and invoking judicial remedies in preventive detention cases becomes a rare option. The Apex Court has also mistakenly made a dangerous viewpoint in the case of Union of India Vs Dimple Happy Dhakkad where the accused were already arrested under the regular criminal process but were also subject to the preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) as the case involved gold smuggling. Bail applications were rejected twice, The Apex Court very narrowly failed to consider the pre-existing detention of the accused when they were already languishing in jail for 2 months before the preventive detention order. The Supreme Court relied completely on the doctrine of the ‘subjective satisfaction’ of the detaining authority. The author undoubtedly admits the limitations of judicial review in detention orders but at the same time our Apex Court has itself widened the horizons of judicial review in arbitrary detention orders. The judiciary as in ADM Jabalpur has transformed itself to completely outlaw its tragic effect of fundamental freedoms and constitutionalism and overruled in the landmark Puttaswamy judgment. Moreover, the court in the case of Prabhu Dayal Deorah Vs. D.M Kamrup have rightfully assented to test the grounds on which the detention orders are passed on the lines of arbitrariness and vagueness. In another case of Bhawarlal Ganeshmalji v. State of Tamil Nadu, the court created a judicial requirement that the allegation must have a ‘live link’ with the present situation to justify the need of preventive detention.

It is significant to substantiate the recent judgment of Allahabad High Court in the Habeas Corpus case of NuzhatPerween Vs State of Uttar Pradesh. Briefly stating the facts of this case, Dr. Kafeel Khan (son of Nuzhat Perween) gave a public speech in Aligarh Muslim University. It was alleged that his speech incited feelings of communal disharmony and also lead to violent protests by some groups of students. A preventive detention order was passed against him to maintain public order in the district and he was put behind the bars. He applied for the bail and the bail was granted. What happens next is the episode which actually happens in our system. The executive did not enforce the bail order. When the court passed a second order to release Dr. Khan, the state claimed that the order was notified later and they have taken a preventive detention order authorized by the District Magistrate, Aligarh. When this matter reached the constitutional High Court of Allahabad, it took six months for a decision to be made. The inordinate delay is in itself a violation of the fundamental liberty of a person whose crime is a mere allegation. The petitioner mentioned that he did not have adequate material and thus his right to effective representation against is detention is violated. The Court agreed with this argument because the petitioner was given the CD of his speech but was given any means to play his disc. He was neither supplied the main transcript which was the primary basis for his preventive detention. Next, the court was asked to determine the contents of his speech as to whether it is of such a nature that a reasonable person could apprehend any disturbance to public order. The state correctly claimed that it is not open for the courts to wear the shoes of the preventive detention authority and the court cannot substitute their opinion in place of the ‘subjective satisfaction of the detaining authority’.

However, the court walked one step ahead and contradicting the above doctrine stated that ‘The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned.’ In line with this principle of judicial scrutiny in the detention authority, the court noted that the speech delivered by the detenu was presented in parts by the police and not holistically. The speech is in no way against the maintenance of public order and therefore the closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions.

In the recent bail order of the Delhi High Court in the case of Devangana Kalita Vs State of NCT of Delhi the court strongly observed that the state in its anxiety to suppress dissent has blurred the line of constitutionally guaranteed right to protest and terrorist activity. The Court uprightly confronted Section 43D(5) of the Unlawful Activities Prevention Act. Quoting the court ‘The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA’

In the latest 2019 amendment, individuals can also be designated as ‘terrorist’ by way of Section 35. Not just that, under Section 43D(5), bail can be denied by relying upon the prosecution documents even though they are inadmissible in courts. This archaic provision has been affirmed by the Apex Court of the country in the case of National Investigation Agency Vs. Zahoor Ahmed Shah Watali. This is the point of concern.

The tragic death of Father Stan Swamy is one such harshest reality of UAPA who was languishing in jail at the age of 84, a man who fought for the rights of the tribals and is applauded by the world. Many other renowned educators and activists like Professor Sudha Bhardwaj, Tamil Poet Varvara Rao etchave been detained under this law in the controversial ElgaarParishad and Bhima Koregaon case. Student activists have been put behind the bars for more than a year only because they dissent from those in power. The dissenting opinion of Hon’ble Justice DY Chandrachud in the Romila Thapar Case enlightens the current scenario of the arbitrariness of these laws. The complexity is embedded in Article 22 which guarantees protection against arrest and detention, yet it provides exception for preventive detention laws and our so called ‘democratic governments’ have time and again enacted preventive detention laws like MISA, UAPA, TADA, POTA, NSA etc. to curb voice raised against them.

CONCLUSION

All these legislations outlaw the fundamental rights coupled with the basic human rights. Article 10 of the Universal Declaration of Human Rights embodies the rule of fair hearing in every circumstance and this has been recognized as the basic human tenant. The state, under the misconception of protecting the security of the country, has actually put the country in a state of turmoil. Where at one instance Arnab Goswami is granted bail in 24 hours,

Father Stan Swamy was denied medical bail every time he knocked the doors of the court. The question is who actually are we protecting under these arbitrary preventive detention laws. The answer is none. We are actually protecting the state from dissent.

The constitutional courts of the country must remind themselves the crucial judgment if Maneka Gandhi Vs. Union of India which has expanded the horizons of Article 21 and the court also heard a batch of petitions challenging the National Security Act. In the case of A.K. Roy Vs Union of India upheld the validity of the Act by completely relying on Article 22 (3)(b). After this judgment, preventive detention laws have never been tested constitutionally and this settled proposition is proving to be very unsettling now. The author argues and concludes by stating that the narrowed interpretations of Article 22 have ceased to exist when the Apex Court re-affirmed due process into the constitution and the State cannot rely on this provision anymore while putting people behind the bars for months without giving them adequate legal representation. The judiciary must uphold constitutionalism of the constitution.

It is pertinent to note that the law in India allows detention of individuals in order to prevent acts that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the Constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard.

Continue Reading

Legally Speaking

SC RIGHTLY OVERTURNS TWO BOMBAY HC JUDGEMENTS ON POCSO

Published

on

In a most significant turn of events, we saw how just recently on November 18, 2021, the Apex Court in Attorney General for India v. Satish and another in Criminal Appeal No. 1410 of 2021 (@ Special Leave Petition (CRL) No. 925 of 2021) and connected appeals, held that touching a child with sexual intent even through clothing is an offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act thus setting aside two separate decisions of the Bombay High Court passed on January 15 and January 19 that made skin-to-skin physical contact a necessary condition to hold someone guilty of sexual assault. The Court directed the convicted persons top surrender within four weeks to undergo the remaining sentence of three years and five years awarded to them by a special POCSO court in 2020. It may be recalled that Attorney General KK Venugopal was the first to file an appeal against one of the High Court judgments in question. Later, we saw how the Maharashtra government followed by the National Commission for Women also filed appeals. Even the accused were represented in the case and the court appointed senior advocate Siddharth Dave to assist in the matter as amicus curiae.

While underscoring the detrimental effect of allowing such an interpretation, a Bench of Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi said that, “Restricting the interpretation of the words “touch” or “physical contact” to “skin-to-skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision.” Through two separate but concurring views, Justice Bela M Trivedi writing for herself and Justice UU Lalit and Justice S Ravindra Bhat traced the origin of the words “touch” and “physical contact” and noted that “skin-to-skin” contact was never intended to be incorporated by Parliament while enacting the POCSO Act in 2012.

To start with, it is first and foremost pointed out by the Bench in para 2 after granting leave as stated in para 1 that, “The four Appeals filed by the appellants – Attorney General for India, by the National Commission for Women, by the State of Maharashtra and by the appellant-accused Satish respectively, arising out of the Judgment and Order dated 19.01.2021 passed in Criminal Appeal No. 161 of 2020 by the High Court of Judicature at Bombay, Nagpur Bench, and the Appeal filed by the Appellant-State of Maharashtra, arising out of the Judgment and Order dated 15.01.2021 passed in the Criminal Appeal No. 445 of 2020 by the same Nagpur Bench, encompass similar contextual legal issues, and therefore, permit us this analogous adjudication.”

I. FACTUAL MATRIX IN CASE OF THE ACCUSED-SATISH

In hindsight, the Bench then recalls in para 3 that, “The Extra Joint Additional Sessions Judge, Nagpur (hereinafter referred to as the Special Court) vide the Judgment and Order dated 5th February, 2020 passed in the Special Child Protection Case No. 28/2017 convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (For short POCSO Act). Being aggrieved by the same, the accused-Satish had preferred an appeal being Criminal Appeal No. 161 of 2020 in the High Court of Judicature at Bombay, Nagpur Bench. By the Judgment and Order dated 19th January, 2021, the High Court disposed of the said appeal by acquitting the accused for the offence under Section 8 of the POCSO Act, and convicting him for the offence under Sections 342 and 354 of the IPC. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- in default thereof to suffer R.I. for one month for the offence under Section 354 and to undergo imprisonment for a period of six months and to pay fine of Rs. 500/-, in default thereof to suffer R.I. for one month for the offence under Section 342 of IPC.”

To put things in perspective, the Bench then envisages in para 4 that, “The case of the prosecution before the Special Court as emerging from the record was that the informant happened to be the mother of the victim aged about 12 years. The accused-Satish was residing in the same area where she was residing i.e. Deepak Nagar, Nagpur. On 14.12.2016 at about 11.30 a.m., the victim had gone out to obtain guava. Since she did not return back for a long time, the informant-mother went in search of the victim. At that time, one lady Sau Divya Uikey who was staying nearby, told her that the neighbouring person (the accused) had taken her daughter along with him to his house. The informant, therefore, went to the house of the accused. The accused at that time came down from the first floor of his house. The informant having made inquiry about her daughter, the accused told her that she was not there in his house. The informant, however, barged into the house of the accused to search her daughter as she heard the shouts coming from a room situated on the first floor. She went to the first floor and found that the door of the room was bolted from outside. She opened the door and found her daughter who was crying in the room. On making inquiry as to what had happened, her daughter told her that the accused had asked her to come with him and told her that he would give her a guava. He took her to his house. He then pressed her breast and tried to remove her salwar. At that time, the victim tried to shout but the accused pressed her mouth. The accused thereafter left the room and bolted the door from outside. The informant, on having learnt such facts, went to the Police Station along with her daughter to lodge the complaint. The said complaint was registered as Crime No. 405/2016 at Police Station Gittikhadan, Nagpur. It was further case of the prosecution that when the police rushed to the spot, they saw that the accused was trying to commit suicide by hanging himself. He, therefore, was sent to the hospital for treatment. The spot panchanama was drawn and the statement of the victim was got recorded under Section 164 of Code of Criminal Procedure before the Magistrate. After the completion of the investigation, the charge-sheet was filed in the Special Court, Nagpur against the accused. The Special Court after appreciating the evidence on record, passed the Judgment and Order of conviction and sentence as stated hereinabove.”

Briefly stated, the Bench then recollects in para 5 that, “The High Court in the appeal filed by the accused-Satish acquitted the accused for the offence under Section 8 of the POCSO Act and convicted him for the minor offence under Sections 342 and 354 of IPC by making following observations:

“18 . Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific details 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 certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.”

As a fallout, the Bench then reveals in para 6 that, “The above observations/findings made by the High Court, have caused the Attorney General for India, the National Commission for Women and the State of Maharashtra to file the appeals before this Court. The accused has also filed the appeal challenging his conviction for the offences under Section 354 and 342 of the IPC.”

Be it noted, the Bench then holds in para 40 that, “In the light of the afore-discussed legal position, if the findings recorded by the High Court are appreciated, it clearly emerges that the High Court fell into error in case of the accused-Satish in holding him guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act. The High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC. The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.”

It cannot be glossed over that the Bench then observes in para 41 that, “The interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. It may be noted that the principle of “ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, 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, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act.”

Quite significantly, the Bench then holds in para 42 that, “The surrounding circumstances like the accused having taken the victim to his house, the accused having lied to the mother of the victim that the victim was not in his house, the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother, were proved by the prosecution, rather the said facts had remained unchallenged at the instance of the accused. Such basic facts having been proved by the prosecution, the Court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under Section 30 of the said Act. The said presumption has not been rebutted by the accused, by proving that he had no such mental state. The allegation of sexual intent as contemplated under Section 7 of the Act, therefore, had also stood proved by the prosecution. The Court, therefore, is of the opinion that the prosecution had duly proved not only the sexual intent on the part of the accused but had also proved the alleged acts that he had pressed the breast of the victim, attempted to remove her salwar and had also exercised force by pressing her mouth. All these acts were the acts of “sexual assault” as contemplated under section 7, punishable under Section 8 of the POCSO Act.”

II. FACTUAL MATRIX IN THE CASE OF THE ACCUSED-LIBNUS

Of course, the Bench then lays bare in para 7 that, “The Additional Sessions Judge, Gadchiroli (hereinafter referred to as the Special Court) vide the judgment and order dated 5th October, 2020 passed in the Special POCSO case no. 07/2019 convicted and sentenced the accused-Libnus s/o Fransis Kujur for the offences punishable under Section 448 and 354-A (1)(i) of IPC and Sections 8 and 10 read with section 9 (m) and 12 of the POCSO Act. Being aggrieved by the same, the accused-Libnus had preferred an appeal being Criminal Appeal No. 445 of 2020 in the High Court of Judicature at Bombay, Nagpur Bench. Vide the Judgment and Order dated 15th January, 2021, the High Court maintained the conviction of the accused for the offences under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act and set aside the conviction of the accused for the offences under Sections 8 and 10 of the POCSO Act. The High Court considering the nature of the alleged acts and the punishment provided for the alleged offences, modified the sentence imposed by the Special Court to the extent he had already undergone, and directed to set him free.”

In this context, it would be instructive to note that the Bench then mentions in para 43 that, “So far as the case of the other accused-Libnus is concerned, the High Court vide its impugned judgment and order, while maintaining the conviction of the accused for the offences punishable under sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act, has acquitted the accused for the offence under Sections 8 and 10 of the POCSO Act. Pertinently the High Court while recording the finding that the prosecution had established that the accused had entered into the house of the prosecutrix with the intention to outrage her modesty, also held that the acts “holding the hands of the prosecutrix” or “opened the zip of the pant” did not fit in the definition of sexual assault. In the opinion of the Court, the High Court had fallen into a grave error in recording such findings. When the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty, of holding her hands and opening the zip of his pant showing his penis, are held to be established by the prosecution, there was no reason for the High Court not to treat such acts as the acts of “sexual assault” within the meaning of Section 7 of the POCSO Act. The High Court appears to have been swayed away by the minimum punishment of five years prescribed for the offence of “aggravated sexual assault” under Section 10 of the POCSO Act as the age of the prosecutrix was five years and the sexual assault if committed on the victim who is below 12 years is required to be treated as the “aggravated sexual assault” as per Section 9(m) of the Act. However, neither the term of minimum punishment nor the age of the victim could be a ground to allow the accused to escape from the clutches of Section 7 of the POCSO Act. The alleged acts of the accused in entering the house of the prosecutrix with sexual intent to outrage her modesty, holding her hands and unzipping his pant showing his penis to the prosecutrix having been held to be proved by the prosecution, they would certainly be the acts falling within the purview of the “sexual assault” as contemplated in the second part of Section 7 i.e. “……… or does any other act with sexual intent which involves physical contact without penetration”. The Court, therefore, has no hesitation in holding that the accused-Libnus had committed an offence of “sexual assault” within the meaning of Section 7 of the POCSO Act and the prosecutrix being below the age of 12 years, he had committed an offence of “aggravated sexual assault” as contemplated under Section 9(m) of the said Act, liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act. In that view of the matter, the judgment and order of the High Court insofar as it has set aside the conviction of the accused-Libnus for the offences under Section 8 and 10 of the POCSO Act is liable to be set aside, and the judgment and order of conviction and sentence passed by the Special Court is required to be restored.”

Order

As a corollary, the Bench then observes in para 44 that, “In the aforesaid premises, the judgments and orders dated 19.01.2021 and 15.01.2021 passed by the High Court of Judicature at Bombay, Nagpur Bench, at Nagpur in Criminal Appeal No. 161 of 2020 and Criminal Appeal No. 445 of 2020 respectively are hereby quashed and set aside; and the judgments and orders dated 05.02.2020 and 05.10.2020 passed by the Extra Joint Additional Sessions Judge, Nagpur in Special Child Protection Case No. 28 of 2017 and by the Special Court, Gadchiroli in POCSO Case No. 07/2019 are restored.”

It is worth noting that the Bench then holds in para 45 that, “Accordingly, the accused-Satish is hereby convicted for the offences punishable under Section 8 of the POCSO Act and under Sections 342, 354 and 363 of the IPC. He is directed to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/- and in default thereof to suffer simple imprisonment for a period of one month for the offence under Section 8 of the POCSO Act. Since he has been sentenced for the major offence under Section 8 of the POCSO Act, no separate sentence is imposed upon him for the other offences under the IPC.”

What is also worth noting is that the Bench then also holds in para 46 that, “The accused-Libnus s/o Fransis Kujur is hereby convicted for the offences punishable under Sections 354-A (1)(i) and 448 of the IPC as also for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act. He is directed to undergo rigorous imprisonment for a period of five years for the offence under Section 10 of the POCSO Act and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only) and in default thereof to suffer simple imprisonment for a period of six months. Since he has been sentenced for the major offence under Section 10 of the POCSO Act, no separate sentence is being imposed upon him for the other offences under the IPC and the POCSO Act.”

Furthermore, the Bench then directs in para 47 that, “Both accused – Satish and Libnus are directed to surrender themselves before the concerned Special Courts, within four weeks from today.”

It cannot be glossed over that the Bench then holds in para 48 that, “Before parting, it may be noted that in the case of the accused-Libnus, the State of Maharashtra while filing the Appeal before this Court had not produced the certified copy of the judgment of the High Court, however, had produced a copy of a certified copy, wherein the High Court had recorded acquittal of the accused for the offence under Sections 8, 10 and 12 of the POCSO Act, while maintaining his conviction under Sections 448 and 354-A(1)(i) of the IPC, whereas in the copy of the impugned judgment of the High Court downloaded by the respondent-accused produced on record by the learned Advocate for the accused, the High Court had recorded the conviction of the accused for the offence under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act. There being a discrepancy in the said two copies of the impugned judgment of the High Court, the learned Advocate for the respondent-accused had filed an I.A. bringing to the notice of the Court about such discrepancy. The Court, therefore, had vide its order dated 27.10.2021 directed the Registrar of the High Court to send the certified copy of the decision of the High court dated 15.01.2021 passed in Criminal Appeal No. 445 of 2020. Accordingly, the Assistant Registrar of the High Court of Bombay, Nagpur Bench, has sent the certified copy of the said judgment.”

Most astonishing is what is then stated by the Bench in para 49 that, “It is very surprising to note that the Registry of High Court of Bombay, Nagpur Bench, has certified the copy of the impugned judgment by affixing the stamp on the back side of every page of the judgment which is blank. The said copy of the judgment appears to have been downloaded from the website and, therefore, does not bear even the signature or the name of the concerned judge at the end of the judgment. The certificate that the said copy is a true copy of the judgment, is also not written at the foot of the judgment as contemplated in Section 76 of the Indian Evidence Act. Such a practice, if followed by the Nagpur Bench of the Bombay High Court, may allow the miscreants to manipulate or commit mischief in the judicial orders which are used as the public documents having great significance in the judicial proceedings. The Registrar General of the Bombay High Court, therefore, is directed to look into the matter and ensure that proper procedure for preparing the certified copies of the judgments/orders of the Court in accordance with law is followed.”

It then notes in para 50 that, “All the five appeals stand disposed of accordingly.”

Finally, the Bench then holds in para 51 that, “It will be failure on our part if we do not extend gratitude of appreciation for the enormous assistance rendered by learned senior Advocate Siddhartha Dave, learned Amicus Curiae Siddharth Luthra, learned Senior Advocate appearing on behalf of the accused through Supreme Court Legal Services Committee, Ms Geeta Luthra, learned Senior Advocate appearing for National Women Commission and all other advocates who have appeared in the matter.

The initiative taken by the learned Attorney General for India Mr KK Venugopal in filing the appeal with all sense of expressing his concern in the cause also deserve to be appreciated.”

It must be mentioned that Justice Ravindra S Bhat in his separate but concurring judgment said that, “The reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”

While cautioning Judges in interpreting provisions of the law, Justice Bhat said that, “It is no part of any Judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

On a concluding note, it must be said that all the Judges must always strictly adhere to what the Apex Court three Judge Bench in this extremely commendable, cogent, courageous and convincing judgment has laid down so clearly. It is clearly laid down that skin-to-skin touch is not must to judge POCSO offence. What is essential is sexual intent. If sexual intent is there then that is sufficient to convict the accused! We thus see that the Apex Court has in this notable case decisively rejected the narrow interpretation of sexual assault against children and rightly held that unacceptable behavior cannot be trivialized. Very rightly so!

Sanjeev Sirohi, Advocate

Continue Reading

Trending