The Verdict February 2021

Issue #2

For Latest Legal Updates | thelawculture.in

ISSUE HIGHLIGHTS

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SEXUAL ASSAULT

Bombay High Court: Skin

to Skin contact necessary

for conviction (POCSO)

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SOCIAL MEDIA CHAT

RECORDS: EVIDENCE?

Confusion regarding

admissibility of WhatsApp

chats as bona-fide

evidence in court

__

KANGANA RANAUT

SAGA CONTINUES

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This Edition of The Verdict covers the Criminal Side of the Law and the happenings

during the month of January.

The Verdict | Feb 2021

Skin to Skin Contact

Necessary for Sexual Assault - By Mudit Ahuja

In a controversial ruling by the Nagpur bench of the Bombay HC, Justice Pushpa Ganediwala acquitted the accused under Section 8 of the POCSO Act while holding him guilty under Section 342 and 354 of the IPC.

In the FIR it was alleged by the complainant that on December 14, 2016, the accused took the young girl to his house and pressed her breast while also attempting to remove her salwar. Subsequently, the girl’s mother reached the spot and rescued her daughter, following which a FIR was registered immediately.

The Court while examining the stringent nature of the POCSO Act observed,

“Considering the stringent nature of punishment provided for the offence (under POCSO), 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 detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’…. The act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty”.

The judgement was based on the interpretation of the words “physical contact” present in the definition of sexual assault to mean “direct physical contact i.e. skin to skin contact with sexual intent without penetration”

The Defense of

“Consensual Affair” - By Shrishti

In this case the court held that the kidnapping of a minor cannot in

itself be a defence as it would be undermining the essence of protectiveness in the offence of

kidnapping.

As per sections 361 to 366 of IPC

the apex court held that, Section 361 of IPC mentions the word enticement, which can be both

direct and direct in nature, even in the form of winning over the affection of a girl. Thus, the

prosecution should be able to prove this enticement and instigation in such cases because

mere recovery of a minor from the custody of a stranger is not ipso

facto establishing the offence.

The court did not uphold the defence as the bench stated that

the question also revolves around the knowledge and capacity of the minor to understand the nature of

her actions and voluntary abandonment on her part and instigation or enticement on the

part of the accused and there is no evidence to show that the

prosecutrix was aware of the full intentions or nature of the actions of the accused.

Though the mildness of the crime is to be taken into account while giving out a sentence.

[Anversinh @ Kiransingh Fatesinh Zala vs. State of Gujarat]

Insider Trading Not Applicable to

Offences Under IPC - By Mudit Ahuja

A bunch of criminal cases initiated by the State of Andhra Pradesh alleging that the petitioners had purchased lands in Amravati after being apprised of the fact that the area was being developed as State Capital after the partition of the erstwhile State of Andhra Pradesh in 2014.

The government in a bid to crackdown the beneficiaries of such a transaction had launched an SIT probe into the alleged scam which the Andhra Pradesh HC stayed in September last year. Several allegations of insider trading based on the information from the previous government were also invoked.

The Court in the judgement observed that there was no obligation on the land buyers to disclose the information relating to latent advantages and that the information regarding Amravati being made a capital was in the public domain and even the sellers were aware of the same.

The single judge Bench of Justice Manavendranath Roy observed,

“Insider trading is only made an offence in India under the SEBI Act, 1992 and it essentially deals with the same and purchase of securities in the field of stock market based on the non public price sensitive information. It is a special enactment which specifically and exclusively deals with the offences relating to sale of securities in the stock market. Insider trading is not made an offence specifically under the Indian Penal Code. No provisions akin to Section 12_A and 15-G of the SEBI Act is incorporated in IPC by the Parliament relating to private sale transactions of purchase or sale of land which is an immovable property by invoking the said concept/theory of insider trading. Therefore, the offence of insider trading is totally alien to our criminal law under IPC. It is a concept or offence totally unknown to our criminal law under the Indian Penal Code.”

Quashing the pending criminal cases, the Court concluded that,

“As they purchased the lands, in exercise of the said constitutional and legal right and acquired property from the sellers who willingly and voluntarily sold them to the petitioners for a valid sale consideration under registered sale deeds, the private sale transactions cannot be criminalized and no criminal liability can be attributed to the petitioners in the facts and circumstances of the case to prosecute them for any offences much less for the offences punishable under Section 420, 406, 409 and 120-B of IPC”.

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The Verdict | Feb 2021

Sedition Charges Against

Kangana Ranaut & sister

Rangoli Chandel - By Prety Priya

The Bombay High Court on Monday extended the interim relief of

no coercive action against actor Kangana Ranaut and her sister

Rangoli Chandel till January 25 in connection with a FIR registered

against them under sedition and other charges. The High Court also

directed the city police not to summon the duo for questioning till

then. Kangana and Rangoli appeared before Bandra police in Mumbai

on January 8 for recording their statement in the case, pursuant to an

assurance given to High Court in November last year.

The FIR, under sedition charges and for allegedly “trying to create

hatred and communal tension” through their posts on social media,

was registered pursuant to orders passed by the Bandra magistrate’s

court, directing the police to carry out an inquiry against Kangana and

Rangoli following a complaint lodged against them. A division bench

of Justice SS Shinde and Manish Pitale was hearing a petition filed

by the sister, seeking to quash the FIR and the order passed by the

magistrate on October 17, 2020. Public prosecutor Deepak Thakare

informed the court on Monday that the petitioners appeared before

the police on January 8 from 1 pm to 3 pm. Thakare commented-

“Kangana left before we could complete the interrogation, claiming

she has professional commitments. We will call her again for

interrogation. What is wrong in cooperating.”

To this Justice Pitale said “Kangana was there for two hours. Is this

not enough? How many more hours do you need for cooperation?”

The police said that they want to question her for three more days.

Advocate Rizwan Merchant, appearing for complainant Sahil Ashraf

Ali Sayyed, sought time to file an affidavit in response to the petition.

The Court then adjourned the matter till January 25.

“The interim relief by way of no coercive action against the

petitioners shall continue till then. The police shall not call the

petitioners till that day,” the court said. Justice Shinde said- “We

anyway have serious reservations against invoking Section 124(A) in

this case.”

Arrest or Not? - By Mudit Ahuja

On the second day of November, four men were booked after two of them allegedly offered namaz at Nand Mahal temple in UP’s Mathura district. Faisal Khan, one of the four, was arrested from Delhi after the FIR was filed. During Tuesday’s hearing, the counsel for Mohammed had submitted that the evidence which only included the photographs which went viral were not sufficient to prove the intention of the accused to disturb the communal harmony of the society.

While highlighting personal liberty as a precious fundamental right the court granted anticipatory bail to Mohammed. The single-judge bench consisting Justice Siddharth observed that,

“Courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required.”

“In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349, the apex Court has referred to the third report of the National Police Commission, wherein it is mentioned that arrests by the police in India are one of the chief source of corruption in the police,” stated the order.

“The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails”

State vs. Tabassum:

Rattan Lal Murder Case - By Prety Priya

The FIR in the matter was registered on the statement of Constable Sunil

Kumar. As per the FIR, on the 24th February 2020, the Protest was peacefully

going on at the service road (Wazirabad) but at around 1:00 PM, protestors

carrying baseball bats, iron rods and stones started gathering at the main road.

The FIR alleges that though senior officers tried to stop them and asked to

return at service road, but the protestors did not pay any heed to their

directions and became violent. The gathering grew out of control and starting

pelting stones on the police on duty.

Protestors were raising slogans against the said Bill as well as Government of India. It has been stated in the FIR after

repeated warning and finding no alternative, mild force and gas shells were used to disperse the crowd. Violent

protestors started beating people as well as police personnel, due to which he (Constable Sunil) sustained injuries on

his right elbow and hand and protestors also attacked upon DCP Shahdara, ACP Gokulpuri, and HC Rattan Lal due

to which they fell on the road and sustained grievous injuries and started bleeding. All injured persons were taken to

the hospital, where it was found that HC Rattan Lal had already died due to injuries sustained and DCP Shahdara was

unconscious and had sustained head injuries.

The Court noted-

“It is clearly evident that the protestors and organizers had motivated persons in the mob and certain unscrupulous

elements had surrounded the scene of crime and they appeared to be fully equipped with rioting material like stones,

sticks, sharp-edged weapons and other sort of raw weapons.”

Noting that everything was being done under a well-hatched conspiracy, the Court further remarked-

“Even burqa-clad women are clearly seen attacking the police party with sticks and other material in their hands and

they clearly appeared to be charged up. It has also come on record that some of the persons of the mob had taken

possession of rooftops of high-rise buildings at or around 25 feet road, having firearms and other rioting materials

with them.”

The Court also noted that her CDR details show that she had made as many as 15 calls to co-accused Shadab between

the period 25th January 2020 till 24th February 2020 and from the said CDR record, it was quite apparent that the

applicant has been constantly moving from one point to another point at the protest site/SOC, “meaning thereby that

she was quite active at that time.”

Denying her the benefit of bail, the Court said-

“This Court cannot lose sight of the fact that applicant did not cooperate in the investigation right from the day her

name cropped in the matter and instead absconded in the matter and the investigating agency was compelled to take

coercive measures against her.”

The Verdict | Feb 2021

Finality of Police

Investigation - By Shrishti

In the current case, the Calcutta High Court stated that whether a trial is fair or not is dependent on the nature and quality of investigation. If the investigation is rigged with loopholes and lack of crucial evidence, then the investigation would just be superficial in nature.

The court also stated that 173(8) of Crpc that allows for further investigation by the police does not act as a bar on courts if they deem it fit to pass other directions.

It held:

"Section 173 of the Cr.P.C. deals with Report of police officer on completion of investigation and sub-section 8 provides that nothing in the section shall preclude further investigation in respect of an offence after a report has been forwarded to the Magistrate. This court is of the view that Section 173(8) cannot prevent a Writ Court from passing further directions if the court deems it appropriate to do so in fit circumstances."

Since there was no collection of evidence from the spot of death, no evidence about the timings of passenger on trains to prove the possibility of an accident on that date , there was a lack of eye witnesses and statements from the locality to stablish that death was caused due to train and further no medical evidence was adduced as to the cause of death.

The court held that an investigation needs to be revisited if ex facie a suspicion is raised as to its fairness and dedication thus in the current case there is a clear case of the investigation being tainted.

Habeas Corpus:

Gujarat HC - By Mudit Ahuja

A division Bench of the Gujarat HC ordered the release of the interfaith couple wherein the women had married against the wishes of her father. The father had filed a FIR alleging that the women stole Rs 82,000 from the family’s residence before evading, getting married fraudulently and obtaining a fake marriage certif icate.

The couple got married on December 30 and subsequently travelled to Kerala for their Honeymoon. Responding to the FIR, the Gujarat Police travelled to Kerala and formally arrested the wife and the husband from Kerala.

The habeas corpus petition was f iled by the husband’s brother who had alleged that the arrest was made without a FIR or any allegations against him. Mere differences with the opinions of the woman’s father cannot be said to be a valid ground to arrest anyone. On January 4, the woman herself had also written to the police authorities that she had married and had left home on her own volition.

Hearing the habeas corpus petition, the Court directed the police to produce the individuals and spoke to them in confidentiality. Thereafter, condemning the undue fervour exercised by the police authorities in the matters involving interfaith marriages and ordering the immediate release of the individuals.

Demanding loan Equivalent to

Abetment of Suicide? - Prety Priya

The Nagpur Bench of the Bombay High Court ruled that demanding

outstanding loan from a defaulting borrower cannot be said to constitute

an offence of abetment to suicide. Bench of Justice VM Deshpande and

AS Kilor held:

“The demand of outstanding loan amount from the person who was in

default in payment of loan amount, during the course of employment as

a duty, at any stretch of imagination cannot be said to be any intention

to aid or to instigate or to abet the deceased to commit suicide.”

The criminal application was moved by Rohit (the appellant), seeking to quash an FIR registered against him

by the Maharashtra Police under Section 306 of IPC. It was alleged in the FIR that the petitioner harassed the

deceased, Promod Prakash, for repayment of loan, which ultimately lead him to commit suicide. The

petitioner’s counsel argued that the allegations against him were only in respect of demand of outstanding

loan amount which does not amount to any intention of applicant to abet the deceased to commit suicide. The

counsel stated-

“Abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing

and without a positive act on the part of the accused in aiding or instigating or abetting the deceased to

commit suicide, the said persons cannot be compelled to face the trial.”

The deceased had taken a loan of Rs. 6.21.000 from Mahindra and Mahindra Financial Service Limited for

purchasing a new vehicle. According to the contract, the deceased was liable to re-pay the loan amount in

four years by paying monthly installments of Rs. 17,800. He had paid only Rs. 15,800 and had assured that

he will pay the remaining amount later on. The FIR alleged that the applicant did not listen and started

harassing the deceased. The suicide note written by the deceased mentioned the involvement of the applicant

in the crime. The APP submitted that because of demand of outstanding loan amount, the deceased was under

tremendous mental pressure, which was the cause for commission of suicide by the deceased.

The Division Bench observed that the allegations against the accused were only to the effect that applicant

demanded outstanding loan amount from the deceased, which was a part of his duty being an employee of

the said Finance Company.

Accordingly, the Division Bench quashed the impugned FIR and held that none of the requirements of Section

306 of the Indian Penal Code are being satisfied.

The Verdict | Feb 2021

MJ Akbar v. Priya Ramani

Journalism or defaming? - By Prety Priya

The Bench of Justice Anjani Kumar Mishra and Justice Shekhar

Kumar Yadav in the Allahabad High Court was hearing Neeraj

Mishra’s plea seeking to quash an FIR registered under Section 153-B

(2), 505(2) IPC with a further prayer not to arrest him pursuant to the

said FIR. The Court granted protection from arrest to Neeraj Mishra,

who while protesting against the Hathras gang-rape incident, allegedly

said that Chief Minister of Uttar Pradesh is a ‘man of thick skin’. The

allegation read that the incident took place at about 6:00 pm in the

Hathras District regarding the rape of a girl (Hathras Gang Rape).

The counsel for the petitioner submitted that none of the offences as

enumerated in the impugned FIR dated 11.12.2020 is made out. The

petitioner’s counsel further submitted that in a democratic country,

agitating against the ruling party is the Constitutional right of leaders

of the opposition and therefore, agitation of petitioner, on the issue of

rape of a girl of ‘Balmiki Samaj’ couldn’t be termed as hatred or ill-

will between different religious groups, hence no

offence under Section 153-B (2) and

Section 505 (2) IPC is made out.

Noting the matter requires further

consideration, the court issued a

notice to the State of Uttar Pradesh

and granted it time to file a counter

affidavit within four weeks. The

Court said:

“Till the next date of listing or till the

submission of police report under

Section 173 (2) CrPC, whichever is

earlier, the petitioner shall not be

arrested in impugned FIR dated

11.12.2020 registered as Case Crime

No. 368 of 2020, under Section 153-B

(2), 505 (2) IPC, subject to

petitioner’s co-operation in the

investigation.”

Republic TV Sends Notice to 'Indian Express'

for Report on Arnab Goswami 'Bribing' BARC

CEO By Abhishek Ranjan

The Republic TV news channel has sent a

legal notice to The Indian

Express newspaper, in the aftermath of the

latter’s report wherein it claimed that

channel head Arnab Goswami bribed

BARC chief Partho Dasgupta, $12,000 for

two separate holidays and a total of Rs 40

lakh over three years, in order to raise it’s

TRP rankings. The report

by Express comes days after more than

1,000 pages of WhatsApp conversations

between the former CEO of the Broadcast

Audience Research Council and Goswami

became public, exposing a nexus between

the two that has led to reactions from

opposition parties and news consumers.

The notice uses several adjectives to

describe the report, calling it “vile, hateful

and malicious”. It says the report is “part

of a severely prejudicial campaign

engineered and implemented by the Indian

Express aimed at attempting to irreparably

destroy their (Republic TV’s) reputation

as well as the reputation of the Republic

Media network.” The notice also

reportedly says that the publication of

such a report at a time when the TRP scam

case is being heard by the Bombay High

Court amounts to “criminal contempt of

court.” Reference is made to Section 25 of

the Indian Evidence Act which lays down

that a confession made to a police-officer

shall never be proved as against a person

accused of any offence and under Section

26 it is clear that it is only when a

confession is made in the immediate

presence of a magistrate that it may be

considered valid. Previously, the Mumbai

Police had claimed that Partho Dasgupta

had in alleged connivance with another

ex-senior BARC official and Republic TV

Editor-in-Chief Arnab Goswami,

manipulated the television rating points

(TRP) of Republic TV and its Hindi arm.

The Crime Branch has charged him under

sections 409(criminal breach of trust by a

public servant), 420 (cheating) of the IPC.

Reassign Faruqui bail case to another

bench: Activist Saket Gokhale’s letter

petition to MP HC Chief Justice By Abhishek Ranjan

Activist Saket Gokhale has addressed a letter petition to the

Chief Justice of the Madhya Pradesh High Court urging that

the bail applications moved by comedian Munawar Faruqui

and three others accused of insulting Hindu deities should be

heard by a Bench other than Justice Rohit Arya in the ‘interest

of justice and fairness’. Gokhale's letter raises concern over

certain oral remarks reportedly made by Justice Arya during

hearing in the matter, which is stated to ‘carry a presumption

of guilt on the part of the accused’, even before a trial has

begun in the matter. The development comes a day after

Justice Rohit Arya, who is seized of the matter, expressed

disinclination to entertain the application and asked the

Petitioner's counsel if he wanted to withdraw the same. In the

course of his letter, Gokhale highlighted that a Station House

Officer had earlier told a media outlet on January 4 that there

was nothing incriminating found into the video footage

submitted by the complainant against the accused. Further, it

pointed out that the police had failed to produce their case

diary in an earlier bail hearing before the High Court and also

submitted that they had no documentary evidence to back the

alleged charges of hurting religious sentiments. Gokhale also

submitted that Justice Arya ought to have recused from

hearing the matter if he felt that he would not be able to

adjudicate fairly in the matter for whatever reasons. Faruqui

was arrested on January 2 along

with four others for allegedly

making indecent remarks

against Hindu deities and

against Union Home Minister

Amit Shah during a show held

at a cafe in 56 Dukan area of

Indore on January 1. Police had

booked five accused under

sections 295-A (deliberate and

malicious acts, intended to

outrage religious feelings of

any class by insulting its

religion or religious beliefs),

section 269 (unlawful or

negligent act likely to spread

the infection of any disease

dangerous to life) and other

provisions of the Indian Penal

Code (IPC). The complaint was

filed against them by Eklavya

Singh Gaur (36), son of local

BJP legislator Malini Laxman

Singh Gaur.

Supreme Court adjourns

Sanjiv Bhatt case hearing by

6 weeks.

By Abhishek Ranjan

The Supreme Court adjourned the hearing on a plea filed by

former IPS officer Sanjiv R. Bhatt challenging the

Gujarat High Court’s order which had refused to suspend the

life imprisonment awarded to him by a Jamnagar court on

June 20, 2019, in a 30-year-old custodial death case. A three-

judge bench comprising Justices Ashok Bhushan, R. Subhash

Reddy and M.R. Shah adjourned the hearing by six weeks in

view of the pendency of a review petition before the Supreme

Court. Senior Advocate Kapil Sibal, appearing for Bhatt, said

that out of 300 witnesses, only 37 have been examined.

He said this is a case of complete mistrial because his 22

witnesses have not been examined. He is not on merits and

that the procedure adopted is against him. Sibal submitted that

the case was related to the death of an accused, who was taken

into custody during communal riots in 1990. The person died

several days after he was released from custody. The deceased

had no injury on the body. The instant SLP filed in the

Supreme Court challenges the refusal of the Gujarat High

Court to suspend his sentence. Previously, Bhatt was directed

to undergo life-imprisonment by a Sessions Court in Jamnagar

in June 2019 for involvement in custodial death of Jamjodhpur

resident Prabhudas Vaishnani in November 1990.

The officer, who had filed an

affidavit in the Supreme Court

in 2011 accusing the then Chief

Minister Narendra Modi of

complicity in the 2002 riots, is

currently lodged at Palanpur

jail. In October 2019, the

Gujarat High Court had refused

to suspend his sentence

observing he had had scant

respect for Courts and had

deliberately tried to mislead

them. The incident relates to the

death of one Prabhudas

Madhavji Vaishnani in

November 1990, which was

allegedly due to custodial

torture. At the time Bhatt was

the Assistant Superintendent of

Police Jamnagar, who, along

with other officers, took into

custody about 133 persons,

including Vaishnani, for rioting

during a Bharat Bandh.

Vaishnani, who was kept in

custody for nine days, died ten

days after release on bail. As

per medical records, the cause

of death was renal failure.

Holding minor girl's hand

and opening pant's zip not

sexual crime under POCSO:

Bombay HC By Abhishek Ranjan

The Nagpur bench of the Bombay High Court has ruled that holding

the hands of a minor girl and opening the zip of pants does not fall

under the purview of 'sexual assault' or 'aggravated sexual assault' of

the Protection of Children from Sexual Offences (POCSO) Act. The

observation was made by a single bench of Justice Pushpa

Ganediwala on January 15 while passing an order on an appeal filed

by a 50-year-old man challenging a sessions court's order convicting

him for sexually assaulting and molesting a five-year-old girl. The

convict, Libnus Kujur, was in October 2020 convicted under

sections 354-A (1)(i) (outraging modesty) and 448 (house-trespass)

of the IPC and sections 8 (sexual assault), 10 (aggravated sexual

assault) and 12 (sexual harassment) of the POCSO Act. He was

sentenced to five years in jail. In her judgement, Justice Ganediwala

noted that while the prosecution has established that the accused

entered the house of the girl with an intention to outrage her modesty

or sexually harass her, it has not been able to prove the charge of

'sexual assault' or 'aggravated sexual assault'. The high court noted

that the definition of "sexual assault" under the POCSO Act says that

there has to be "physical contact with sexual intent without

penetration". "The acts of 'holding the hands of the prosecutrix

(victim)', or 'opened zip of the pant' as has been allegedly witnessed

by the prosecution witness (mother of the girl), in the opinion of this

court, does not fit in the definition of 'sexual assault'," Justice

Ganediwala said. The high court further said that the facts of the

present case are not sufficient to fix the criminal liability on the

accused (Kujur) for the alleged offence of aggravated sexual assault.

"At the most, the minor offence punishable under section 354-

A(1)(i) of the IPC read with section 12 of the POCSO Act is proved

against the appellant (Kujur)," the

court said. The prosecution's case is

that Kujur had on February 12,

2018 entered the house of the

victim when her mother had gone

to work. When the mother returned

from work, she found the accused

holding the hand of her daughter

with the zip of his pants open. The

mother, while recording her

evidence in the lower court, had

said that her daughter had informed

her that the accused person had

removed his private part from the

pant and asked the victim to come

to bed for sleeping. The high court

ended Kujur's conviction under

sections 8 and 10 of POCSO Act,

but upheld his conviction under the

other sections. The court, however,

said it was modifying the sentence

and noted that Kujur has so far

undergone five months in prison.

"Considering the nature of the act,

which could be established by the

prosecution and considering the

punishment provided for the

aforesaid crimes, in the opinion of

this Court, the imprisonment which

he has already undergone would

serve the purpose," the court said.

The court said the accused shall be

set free if he is not required in any

other case.

Continued: Supreme Court stays Bombay

HC's skin-to-skin order under POCSO Act The Supreme Court stayed the acquittal order of the

accused in the case where Nagpur Bench of Bombay

High Court had said that groping a minor's breast

without "skin to skin contact" can't be termed as sexual

assault. The order was passed by a bench headed by the

Chief Justice of India on a mention made by the

Attorney General, KK Venugopal. Attorney General

KK Venugopal submitted that the judgment which held

that 'skin to skin' contact is necessary for sexual assault

under POCSO Act is 'unprecedented' and is 'likely to

set a dangerous precedent'. The case dates back to

February 2020 when a 39-year-old man in Nagpur had

been charged for pressing the breasts of a minor. A trial

court in Nagpur had sentenced the accused to three

years’ imprisonment under section 8 of the Protection

of Children from Sexual Offences (POCSO) and under

section 354 IPC (assault or criminal force with intent

to outrage a woman’s modesty). The man had appealed

his conviction following which the Nagpur bench of

the Bombay High Court acquitted the man ruling that

“no direct physical contact — skin to skin with sexual

intent, without penetration" would not amount to

‘sexual assault’ under POCSO Act. The HC said the

issue before it was whether ‘pressing of the breast’ and

‘attempt to remove salwar’ would fall within the

definition of ‘sexual assault’ as defined under Section

7 and punishable under Section 8 of the POCSO Act.

While public prosecutor MJ Khan argued the offence

fell within the definition of ‘sexual assault’, the HC

held it was “not possible to accept’’ the prosecutor’s

submission. The court said the “basic principle of

criminal jurisprudence is that punishment shall be

proportional to the seriousness of the crime”. Justice

Pushpa Ganediwala of Nagpur bench had said “stricter

proof and serious allegations are required’’ given the

stringent punishment of three to five years’

imprisonment that ‘sexual assault’ under the POCSO

Act entails. The HC convicted the man for a “minor

offence” and sentenced him to one year in jail

overruling trial court's three years of punishment. The

man was on bail. The HC issued a non-bailable warrant

against him and said all his other sentences shall run

concurrently and he would be entitled for a set-off of

term undergone in custody. Few days earlier, the

National Commission for Women (NCW) had

announced that it will challenge the impugned

judgment, stating that the same will not only have

cascading effect on various provisions involving safety

and security of women in general but also put all the

women under ridicule and has trivialized the legal

provisions provided by the legislature for the safety

and security of women. Meanwhile, the National

Commission for Protection of Child Rights (NCPCR)

has asked the Maharashtra Government to file an

"urgent appeal" against the impugned judgment. The

NCPCR chief in his letter underlined that it seems that

the identity of the victim has been disclosed and the

commission is of the view that the state should take

note of this and initiate necessary steps.

v

KNOW THE LAW

Default Bail

In Criminal Law there is a general principle that ‘a person is innocent until proven

guilty’. The Law contains provisions for releasing an accused on different types of bails.

In many judicial pronouncements it has been held by the Apex Court that bail is a right

and liberty of a person and is important until he is proven guilty. Generally, we hear that

there are two types of Bail i.e., Anticipatory and Regular Bail. However, there is another

less heard form of bail which is known as Statutory Bail or Default Bail.

Bail is usually granted on the basis of merits, except default bail which is under Section

167(2) of the Criminal Procedure Code, 1973. Under 167(2) the trial judge grants bail

when police fail to file the charge sheet within stipulated time period after taking the

accused in police custody.

Sub-section (a)(I) of Section 167(2) provides 90 days custody with if the investigation

relates to the offence “punishable with death, imprisonment for life or imprisonment for

a term of not less than ten years”. Whereas sub-section (a)(ii) of Section 167(2) of the

Code provides 60 days custody for offences not punishable with death penalty, life

imprisonment or imprisonment of not less than ten years.

Thus, if the investigation is not completed within the stipulated time period, the

magistrate cannot send the accused into custody. Since such bail is granted by default

due to non-completion of investigation, it is called default bail.

By Animesh Upadhyay

The Supreme Court refused to grant the makers

and actors of Amazon Prime web

series Tandav protection from arrest. Multiple

first information reports have been filed against

them for allegedly hurting religious sentiments. A

bench of Justices Ashok Bhushan, RS Reddy and

MR Shah refused the relief from arrest. “Your

right to freedom of speech is not absolute,” the

court said. “You cannot play the role of character

that hurts the sentiments of a community.” The

court, though, issued a notice on their request to

club the FIRs filed against them in different states.

Uttar Pradesh, Bihar, Madhya Pradesh and

Karnataka are among the states where FIRs have

been filed against the show. At least

three complaints are also pending in Delhi,

Chandigarh and Maharashtra. The Supreme Court

also said that the petitioners were free to approach

high courts. Series’ director Ali Abbas Zafar,

producer Himanshu Krishna Mehra, writer

Gaurav Solanki, Amazon Prime’s India Head of

Originals Aparna Purohit and actor Mohammed

Zeeshan Ayyub had approached the Supreme

Court for protection from possible arrest. They

were booked under Sections 153-A, 295,

505(1)(b), 505(2) and 469 of Indian Penal Code,

1860 and under Sections 66, 66F and 67 of

Information Technology Act, 2000, however none

of the sections in the FIR actually apply to them.

The petitioners’ lawyer Fali Nariman told the

court that cases were being filed against them

SC refuses to grant

'Tandav' makers,

actors protection

from arrest even after they agreed to remove allegedly

objectionable content. The bench asked the lawyer

why the High Courts could not be approached for

the quashing of the FIRs. Nariman submitted that

six states have filed FIRs against the show. “And

it’s increasing every day,” he added. “There’s

some sort of concert in this and we want to avoid

it.” Senior advocate Mukul Rohatgi also argued on

behalf of the petitioners. “People get offended

with anything and everything these days,” he told

the court. “Please protect us with no coercive

steps. We deleted content without any protest.

Scenes have been deleted. It’s a political satire.”

The web series purportedly provides a

commentary on India’s political scene under the

Narendra Modi government. The show touches

upon farmer agitations to student protests to police

killings – all events that have happened under the

administration of the Bhartiya Janata Party. Amid

the intensifying backlash, Amazon Prime

Video had last week caved and agreed to make

changes to the series. The show’s director had said

that the team had no intention to hurt or offend the

sentiments of any caste, race, community or

religion.

SC stays order summoning BJP MP Manoj

Tiwari, others on defamation suit

The Supreme Court stayed the proceedings and the order passed by a trial court

summoning BJP MP Manoj Tiwari, party MLA Vijender Gupta and others on a defamation

complaint filed against them by Delhi's Deputy Chief Minister Manish Sisodia. A bench

headed by Chief Justice S A Bobde agreed to hear the pleas filed by Tiwari and Gupta who

have challenged the Delhi High Court's December 17 last year verdict which had upheld the

November 28, 2019 summoning order passed by the trial court. Tiwari, a member of

parliament from north-east Delhi constituency, has said in his plea that allegations in the

complaint do not meet the basic requirements of constituting the ingredients of offence of

defamation under the Indian Penal Code (IPC). Similarly, Gupta, a BJP MLA, has said that

the trial court had wrongly observed in the summoning order that there were sufficient grounds

to proceed against him and others for the alleged offence of defamation. The defamation case

was filed by Sisodia in 2019 against BJP leaders — Members of Parliament Manoj Tiwari,

Hans Raj Hans and Pravesh Verma, MLAs Manjinder Singh Sirsa, Vijender Gupta, and

Spokesperson Harish Khurana — for allegedly making defamatory statements about his

involvement in corruption of nearly Rs 2,000 crore in the building of classrooms in Delhi's

government schools. On November 28, 2019, the Additional City Metropolitan Magistrate,

Rouse Avenue Courts, New Delhi, issued summons to Tiwari and other accused on the

criminal complaint.

Though Tiwari approached the Delhi High Court challenging the summons, a single bench of

Justice Anu Malhotra rejected his plea on December 17, 2020. The High Court expressed the

prima facie view that the statements and imputations harmed the reputation of the Minister

and that the defence of Tiwari can be considered only at the trial stage. In the SLP filed before

the Supreme Court, it is argued that the Magistrate ignored Section 199(2) of the Code of

Criminal Procedure while taking cognizance of the complaint. As per Section 199(2) CrPC, a

defamation complaint in respect of statements against a Minister can be taken cognizance of

only by a Court of Sessions, that too on a complaint made by the Public Prosecutor. However,

the complaint was filed by Sisodia invoking Section 199(6) CrPC, which says that the section

does not affect the right of a person, against whom the offence is alleged to have been

committed, to make a complaint before the jurisdictional magistrate. It was argued that

recourse under Section 199(6) cannot be taken directly by a public servant without following

the scheme of state sanction under Section 199(2). Therefore, the summoning order was issued

without jurisdiction. It was further argued that the Magistrate took cognizance of the

complaint which was filed on the basis of inadmissible electronic evidence in the form of

CDs, which were not certified as per Section 65B(4) of the Indian Evidence Act. Tiwari

further contended the allegations against Sisodia were substantiated by various public

documents received through RTI replies. Therefore, such statements are covered by the good

faith and fair comments exceptions regarding the conduct of a public servant as per Section

499 of the Indian Penal Code. It was argued that the Magistrate erred in taking cognizance of

the complaint and that the High Court also erred in not interfering with the summoning order.

Invocation of Section 125(3) of Cr.P.C.

against defaulter cannot be faulted:

Allahabad HC

A Single Bench of Justice Dr. Yogendra

Kumar Srivastava held that, the liability of a

man to maintain his wife, children or parents

under Section 125 Cr.P.C is one of "continuing

nature" and a Magistrate cannot be faulted for

issuing warrant under Section 125(3) in case of

default. Section 125(3) of Cr.P.C. empowers a

Magistrate to issue a warrant or sentence a

person who, without sufficient cause, fails to

comply with the order for payment of

maintenance. The Judge observed that the

provision is essential to enforce an order for

payment of maintenance to the woman, child

and infirm parents so as to prevent destitution

and vagrancy, compelling those who can

support those who are unable to support

themselves but have a moral claim for support.

Reliance was placed on Poongadi & Ors. v.

Thangavel, (2013) 10 SCC 618, where it was

held that the proviso to Section 125(3) signifies

that it is a mode of enforcement and does not

create any bar or affects rights to claim arrears

of maintenance. It lays down the procedure for

recovery of maintenance by construing

maintenance to be a levy of fine.

By Abhishek Ranjan

Publishing accused’s

name on police

station flyboards,

violates privacy:

Allahabad HC

The Allahabad High Court held that the practice

of putting names of the accused persons on the

flysheet board at police stations without issuance

of proclamation under sec. 82 of Cr.P.C. is

derogatory to the concept of human dignity and

privacy enshrined under Article 21 (protection of

life and personal liberty) of the Constitution. The

judgment was delivered by a Division Bench

comprising of Justice Pankaj Naqvi and Justice

Vivek Agarwal. Justice Naqvi presided over the

bench and delivered a concurring opinion. The

bench directed the Director-General of Police

(DGP) to remove the names and identities of the

so-called Top 10 criminals along with their

criminal antecedents from these flysheet boards.

The DGP was also directed to ensure that a

circular in light of this judgment was sent to all

district police heads so as to ensure strict

compliance. The bench was ruling on a batch of

petitions filed by some aggrieved accused persons

challenging the policy of the UP police which

provided for preparation of an updated list of top

10 criminals at the level of each police station and

district to help the police keep a tab of active,

By Abhishek Ranjan

hardened and functional criminals. Referring to

Police Regulation 287, the court held that besides

public notices, it did not authorize the publication

of anything other than a proclamation issued

under the authority of a judicial officer who was

authorized to issue such proclamation. The court,

thus, concluded that the publication of the top 10

list was not permissible even on careful and liberal

consideration of Police Regulation 287. Referring

to the decisions of the Supreme Court in Kharak

Singh Vs. State of U.P (1963), Francis Coralie

Mullin vs. The Administrator, Union Territory of

Delhi and others (1981), the court said even

convicts and detenues could not be relegated to an

animal existence. The bench, however, observed

that merely, saying that State was discharging its

sovereign functions of governance by making

society aware about crime and criminals, they

cannot escape their responsibility for their failure

to learn to understand constitutionally sanctified

protections extended to individuals to preserve

their fundamental right of privacy and dignity. In

his separate but concurring opinion, Justice Naqvi

said it does not behove a State to dent the dignity

of an individual howsoever horrific his conduct

may be. Justice Naqvi held the action of police

officers in disclosing the identity of petitioners in

police stations in public gaze unwarranted and

uncalled for and as being violative of Article 21 of

the Constitution.

POCSO Act never intended to treat

adolescent boy as offender: Madras HC

The Madras High Court has said the POCSO

Act does not intend to punish an adolescent

boy for entering into a relationship with a

minor girl and batted for parental and societal

support for the couple "in the grips of

biological changes." Justice N Anand

Venkatesh observed that while the Act was

brought in to protect children from sexual

offences, a large array of cases was arising on

the basis of complaints being filed by families

of adolescents and teenagers involved in

romantic relationships. Therefore, the

"legislature has to keep pace with changing

societal needs" and bring amendments to the

Act, he said while quashing criminal

proceedings against an autorickshaw driver

facing charges under the Protection of

Children from Sexual Offences (POCSO) Act

for marrying a minor. He observed that the

provisions of the POCSO Act, as it stands

today, would surely make the acts of the boy

an offence due to its stringent nature.

Punishing an adolescent boy who enters into a

relationship with a minor girl by treating him

as an offender was never the objective of the

POCSO Act, he said. "An adolescent boy and

girl who are in the grips of their hormones and

biological changes and whose decision-

making ability is yet to fully develop, should

essentially receive the support and guidance of

their parents and the society at large," the court

observed. An adolescent boy caught in a

situation like this will surely have no defence

if the criminal case is taken to its logical end,

the judge added. Such a person who is sent to

prison in a case of this nature will be

persecuted throughout his life. In this context,

the Bench also recalled the case of Sabari v.

Inspector of Police, 2019 (3) MLJ Crl 110

where a Single Judge of the High Court

discussed that persons of the age group of 16

to 18 years are involved in love affairs and how

in some cases ultimately end up in a criminal

case booked for an offence under the POSCO

Act. The judge said the legislature has to keep

pace with the changing societal needs and

bring about necessary changes in law and more

particularly, in a stringent law like the POCSO

Act. Referring to studies, he said adolescence

is associated with many psychosocial and

developmental challenges, including the

processing of intense emotions and "first

loves". Regarding the present case, the court

said "the offences are purely

individual/personal in nature" and involved the

persons concerned and their families only.

Appellate Court's Jurisdiction Under Section 96

CPC Involves Rehearing on Questions of Law as

Well As Fact: Supreme Court

A Supreme Court bench comprising Justices S. Abdul Nazeer and

Surya Kant observed that an appellate court's jurisdiction under

Section 96 of the Code of Civil Procedure, involves a rehearing of

appeal on questions of law as well as fact. The court made this

observation while setting aside an order passed by Karnataka High

Court which had dismissed the appeal filed against a Trial Court

judgment. The Trial Court order dealt with a petition under Section

278 of the Indian Succession Act praying for issuance of a letter of

administration in respect of a will. In its judgment, the bench

referred to Section 96 of the Code of Civil Procedure, which

provides for filing of an appeal from the decree passed by a cryptic

order. In its judgment, the bench referred to Section 96 of the Code

of Civil Procedure, which provides for filing of an appeal from the

decree passed by a court of

original jurisdiction and Order 41

Rule 31 of the CPC which

provides the guidelines to the

appellate court for deciding the

appeal. The bench said that the

judgment of the appellate court

shall state (a) points for

determination; (b) the decision

thereon; (c) the reasons for the

decision; and (d) where the decree

appealed from is reversed or

varied, the relief to which the

appellant is entitled.

MARCH