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Kerala High Court: Citizens Can’t Be Charged For Questioning Police Authority Wearing Plain Clothes [READ ORDER]

“A policeman in uniform is immediately recognizable as a policeman, which implies that he is in charge of protecting the citizen from offenses and preventing crimes,” the court said.

By: Rashi Jain, SOA National Institute of Law

In the recent case of Avinash v State of Kerala, the Kerala High Court ruled that individuals who question a police officer’s authority cannot be charged with obstruction when the officer is not in uniform.

According to Justice Mohammed Nias CP, the Court upheld the decision by nullifying a case filed against an individual accused of interrogating a plainclothes officer.

Police officers must wear their statutorily-mandated uniforms while on duty to be easily recognized by citizens. “The uniform of a police man is his direct identification. A policeman in uniform is visible and a citizen immediately knows that he is a police man which will inform that the said individual is in charge of his protection and prevention of offences. It carries an undeniable symbolic value besides representing the State authority. The police uniform also symbolises pride, respect and authority over the citizens,” the order stated.

Police officers must appear before the Court in uniform on multiple occasions, and the Court stated that the requirement must be enforced fully. “The requirement of the police officer to wear uniform while in duty is to be enforced without exception. There have been instances where this Court had to remind the police officers to appear in Court in full uniform in the course of their official duty. This Court had also directed the officers under the Motor Vehicles Department to wear uniform prescribed under Rule 406 of the Kerala Motor Vehicle Rules, 1989 and the corresponding circulars to be implemented and to wear the uniform prescribed therein,” the Court said.

Therefore, it directed the State Police Chief to investigate the matter. It also issued instructions on ensuring that officers complied with the relevant statutory provisions and guidelines that require them to wear uniforms while on duty.

The Court issued the order on behalf of a lawyer who had requested that the final report filed against him be quashed due to shoving and abusing him while on traffic duty to prevent him from carrying out his duties. The official’s car was parked near a sign reading ‘No Parking.’ A sticker was attached to the car.

P. Arun Kumar, representing the petitioner, contested the report and proceedings.

According to Kumar, the Assistant Commissioner of Police (Special Branch) submitted before the Kerala State Human Rights Commission found, based on the petitioner’s complaint, that the police failed to investigate the matter properly, which led to the petitioner to take action against the officer.

According to the petitioner, the official posted the sticker in plain clothes, not in his uniform, so the petitioner, unaware of the officer’s job, questioned his authority on serious grounds. Consequently, none of the allegations leveled substantiated any wrongdoing, it was noted. 

As the officer was dressed in plain clothes, Justice Nias concurred with the petitioner. He said that the petitioner would not have known that the officer was a city police officer. Further, the Court found no evidence of an intention to obstruct the officer’s duties in the reports or the charge sheet.

Due to the petitioner’s remission of the fine imposed for parking in a no-parking zone, the Court granted the petition by quashing the final report.

“I have no hesitation, for the reasons stated above to quash the final report. The continuance of the proceedings will be a sheer abuse of the process of the Court, as no purpose will be served by a trial in the aforesaid circumstances and to secure the ends of justice, this petition under Section 482 of the Cr.P.C. is liable to be allowed,” the Court stated.

Nonetheless, the Court has emphasized the importance of police officers wearing uniforms on duty before parting.

There was a consensus that this is a statutory requirement, especially since Sections 43 and 44 of the Kerala Police Act mention police uniforms and vehicles and mention what makes them distinctive, exclusive, and easily identifiable, as well as why they must be.

“Since the police officer takes pride in his/her uniform and the visibility of a police officer is very critical for the police and the society, the requirement of wearing the same while on duty except where deviations are permissible, shall be scrupulously observed,” the Court ordered.

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Court Directions for MP/MLA Special Courts Do Not Imply That Cases Triable By Magistrates Should Be Transferred To Sessions Courts: Hon’ble SC [READ ORDER]

The Hon’ble Supreme Court clarified that the direction issued by it for the creation of a special court to hear criminal cases against sitting and former MPs/MLAs cannot be construed to mean that cases triable by Magistrates as per the Indian Penal Code and the Code of Criminal Procedure are to be transferred to the Sessions Court

By: Likivi K Jakhalu, Campus Law Centre, Delhi University

By a Notification dated 16 August 2019, the High Court of Judicature at Allahabad constituted Special District and Sessions Courts for sixty-two out of the seventy-four districts in Uttar Pradesh. 

The Chief Justice of India, NV Ramana, and Justice DY Chandrachud, and Justice Surya Kant clarified that the directions do not require High Courts to transfer cases to Sessions Courts, where they can be decided by Magistrates. 

Thus, the directions contained in the Order of 4 December 2018 do not affect the jurisdictional provisions of the Code of Criminal Procedure, 1973, and other special enactments applicable to criminal trials conducted per those enactments.

In accordance with directions from this Court, criminal cases involving former and current legislators are to be assigned to Sessions Courts or Magisterial Courts. It has to be per the governing provisions of the law as applicable. 

Consequently, where a case is triable by a Magistrate under the Penal Code, the case would have to be assigned/allocated to a Court of a Magistrate vested with jurisdiction, and the Order of this Court dated 4 December 2018 cannot be construed as a direction requiring the trial of the case by a Sessions Court. 

The Hon’ble Supreme Court noted that no Magisterial Courts in, the State of Uttar Pradesh, have been designated as Special Courts for the trial of cases triable by magistrates in accordance with directions dated 4 December 2018. 

The High Court of Judicature at Allahabad issued a Notification on 16 August 2019 based on an apparent misinterpretation of the directions contained in its Order. In light of this, the Hon’ble Supreme Court ordered the High Court of Judicature at Allahabad to ensure that criminal cases involving former and sitting legislators are allocated to as many Sessions Courts and Magisterial Courts as required. 

In this way, cases that are triable by a Magistrate are assigned to a designated Court of a Magistrate while those triable by a Sessions Court are assigned to a designated Court of Sessions. The Hon’ble Supreme Court further directed that those cases triable by Magistrates which are pending before the Sessions Court because of the Circular dated 16 August 2019 shall stand transferred to the Court of competent jurisdiction. 

As a result, the entire record and proceedings shall be transferred to the designated Magistrate, and the proceedings shall begin from the stage where the proceedings were before the transfer, thereby avoiding the necessity to start anew. 

The Hon’ble Supreme Court thus held that the directions that shall govern the generality of cases facing former or sitting legislators in the state of Uttar Pradesh whose cases, are to be tried in terms of the provisions of the Code of Criminal Procedure, 1973 or a specific enactment governing the trial of the charge against them are to be tried by Special Courts, the Sessions Courts or, as the case may be, Magistrates’ Courts.

Consequently, the High Court was directed to issue a fresh circular in conformity with the present order. 

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Status of Women Officers in Army’s Permanent Commission: Hon’ble SC warns Army to grant PC to eligible WSSCOs [READ ORDER]

In Nilam Gorwade vs. Manoj Mukund Naravane and connected cases, the Supreme Court held the Army guilty of contempt for not granting Permanent Commission to Women Short Service Commission Officers according to the ruling in the Lt. Col. Nitisha case.                                                              

By: Hemani Khadai

A bench constituting of Justice DY Chandrachud and Justice AS Bopanna heard a contempt petition filed by 11 officers alleging the Army’s non-compliance to the directions issued by the Court in the case of Lt. Col. Nitisha v. UOI (2020) of granting Permanent Commission to Women Short Service Commission Officers.

The applicants claimed that they were denied PC despite meeting the qualifying conditions laid down by the Court in Lt. Col. Nitisha v. UOI, paragraph 120 of the ruling (2020).

They claimed that, notwithstanding the Supreme Court’s judgment in the Babita Puniya case, the Army refused them permanent commission by adopting an arbitrary medical fitness standard and not examining their qualifications beyond the 5th or 10th year of service.

Justice Chandrachud remarked, “The army might be supreme in its authority, but the constitutional court is supreme in its jurisdiction.”

Further added, “We are holding the Army guilty of contempt. The reason we had asked you to submit an affidavit that PC has not been denied to any officer on the grounds of any consideration other than what we had said in our judgment was to put on notice.”

After consulting with army officials, ASG Sanjay Jain informed the Court that the judgment in Nitisha’s case would be appropriately implemented by following the directions in paragraph 120 and that all WSSCOs covered by paragraph 120 who have not yet been granted PC would be given PC subject to the limitations outlined in paragraph 120 of the judgment. 

The ASG reiterated that not only the 11 WSSCOs who filed a contempt petition as part of 72 and have yet to be awarded PC but also any officers who are not before the Court but satisfy the requirements of para 120 would be granted PC, pending their desire.

The bench then issued an order documenting the ASG’s submissions. To be on the safe side, the bench emphasized that officers with disciplinary and vigilance clearances will be eligible for a PC if they meet the other standards outlined in para 120.

In terms of paragraph 120(ii) of the directions of this Court, those WSSCOs who have disciplinary and vigilance clearances are eligible for the grant of PC, subject to their meeting the other conditions which have been specified in paragraph 120,” the bench noted.

In March, a different court led by Justice Chandrachud ruled in Lt. Col. Nitisha’s case that all women officers who meet the 60% cut-off are entitled to PC if they meet the medical conditions as well as the vigilance and disciplinary clearance requirements.

The petitioners claim that the results disclosed in September this year revealed that they were denied PC despite scoring above 60%, being medically fit, and possessing vigilance clearance, on additional grounds of “discipline, forging medical documents, disobedience of orders, lapses in government procurement, poor work ethics, un-officer like conduct, lack of professionalism, , poor performance in courses, etc.”. 

The petitioners have argued that even after the March judgment, the 72 petitioners were declared unfit and incompetent for PC. Their claim was rejected based on a September 2020 assessment by the Selection Board, which allegedly found charges against the petitioners on the above grounds. 

The Indian Army sought clarification from the Hon’ble Supreme Court on the grant of PC to women SSC officers who had purportedly failed this one condition, asking whether the March judgment meant PC had to be provided regardless of whether the criteria were met.

Justice Chandrachud told the Centre, “You implement the judgment as it stands.”

The bench dismissed the contempt petitions after issuing the aforesaid instructions. The Hon’ble Supreme Court ruled on March 25 in Lt. Col. Nitisha v Union of India that some phrases in the Indian Army’s appraisal process for granting PC to women officers were “arbitrary and unreasonable.”

The Court determined that the evaluation criteria maintained patriarchal gender stereotypes and amounted to “systemic discrimination.”

The bench mentioned that if any officers are ruled unsuitable for PC, they will receive a reasoned order detailing the cause for denial.

As mentioned in Para 7 of the Order, “In the event that they are not found suitable for the grant of PC, a reasoned order shall be communicated to them specifying the ground for rejection.”

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A Delhi Court Has Reprimanded The Delhi Police For Submitting Two Charge Sheets That Are Contradictory [READ ORDER]

While the charge sheet presented in court and supplied to defense counsel accused Shawez of the crime, the charge sheet shown to the public prosecutor and the victim’s family exonerated Shawez.

By: Himkiran Kaur Sethi

A Delhi court summoned the DCP Southeast and directed the Commissioner of Police to take action against officers who submitted two separate charge sheets in a juvenile girl’s rape case.

While the charge sheet shown in court and supplied to defense counsel accused one Shawez of the crime, the one presented to the public prosecutor and the victim’s family cleared his name and blamed a person called Umer.

The act is a slap on the Delhi Police emblem of “Shanti, Seva, Nyay” since the term Nyay (Justice) has been twisted and contorted according to these officers’ whims and fancies, according to Additional Sessions Judge (POCSO) South East, Saket Courts, Gaurav Rao. 

“If this continues, and the officials are not dealt with sternly, the public shall lose their faith in the police system. They not only have mocked the court/judicial system but also abused their power qua the people they have pledged to serve and protect,” ASJ Rao wrote in his order.

Earlier this month, when hearing the same case, the court highlighted this and described the Police’s actions as “high-level treason,” ordering the DCP to respond.

The DCP informed the court that the second charge sheet was still being corrected and that it was also in the police file “which was unintentionally supplied to the complainant,” adding that the deed was done without malice.

The judge, on the other hand, has stated that the officials’ malfeasance is quite big in this instance since the court has been misled, which is purposeful and intentional. 

“There cannot be any question of the draft charge sheet or the charge sheet which was yet to be corrected as both the sets of charge sheets bear the signature of the concerned officials of the same day/date. I am not inclined to believe that on the same day the charge sheet was corrected/amended and signed and both sets of the charge sheets were filed in the court. Moreover, the soft copy/CD/e-challan is different from the charge sheet/hard copy filed in the court,” the court said.

The court remarked that the DCP failed to justify the removal of two whole paragraphs from the charge sheet, which spanned 20-25 lines. These paragraphs provided the accused with a clean bill of health and placed blame on someone else, whose name was removed from the charge sheet produced in court. 

“How can the said action be justified and what more is required to hold that it was deliberate, motivated, and malafide,” the Judge asked.

Shawez was arrested on March 25 under IPC Sections 363 (kidnapping), 376 (rape), 366 (abducting or inducing a woman to compel her marriage), Sections 342 (wrongful confinement) and 506 (criminal intimation), as well as provisions of the POCSO Act, for allegedly holding a minor captive for six days and raping her.

The Court, on the other hand, dubbed the entire inquiry a farce since private remarks recorded by the prosecution and utilized as witnesses cleared the defendants. 

“Undoubtedly investigation is the sole prerogative of the police officials but it is expected that the investigation shall be concluded by them in a fair, honest, and transparent manner and the same should not be motivated or malafide,” the Court noted.

The court has requested that its order be presented to the Commissioner of Police and that the court expects the DCP to conduct an honest inquiry and produce a report with the court as soon as possible. The case has been rescheduled until Wednesday.

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Mumbai Sessions Court: Sexting In A Consensual Relationship Does Not Insult Modesty [READ JUDGMENT]

In State of Maharashtra v. Jignesh Vyas & Anr., the Court stated, “Sending such messages in the premarital stage can provide the feeling that someone is closer to him or her, to understand his/her emotions.”

By: Rashi Jain, SOA National Institute Of law

The Court recently ruled that sending sexually explicit messages to a proposed wife that did not object at the time was not discriminatory under Section 509 of the Indian Penal Code 

Additional Session Judge DD Khoche in his ruling pointed out that the accused had sent the messages to a woman who, at the time, had not objected to them and had stated her desire to marry him.

“Sending such messages in such a premarital period may delight the other one. It may give the happiness, may give the feeling that someone is closer to him and her, to understand their emotions,” the Court opined.

In 2010, Jignesh Chandulal Vyas was charged with offenses under Sections 376 (rape), 509 (outraging modesty), and 420 (cheating) of the Indian Penal Code.

As a matter of background, the woman had met the suspect through a matrimonial site in 2007. She tried to marry him despite opposition from the accused’s mother, who opposed the match. The complainant woman was adamant and moved in with the accused.

Marriage between the accused and the complainant was unable to take place because of disagreements between the two.

After that, she tried to call the accused on his mobile phone, but it was switched off. Through others, she was conveyed that he was out of the office when contacted on the office phone.

She complained about the accused after feeling deceived. The accused reportedly was charged under section 509 of the Indian Penal Code and section 420 of the Indian Penal Code in addition to the Dowry Prohibition Act. It is because he insulted the modesty of a woman.

Subsequently, the charge of rape was added on the ground that the man had a sexual relationship with the woman by giving false assurance of marriage.

The Court ruled that the woman should have conveyed her displeasure to the man when the accused had sent obscene messages to offend the modesty so that the accused wouldn’t repeat the mistake.

“The purpose of it was to put up his expectation before her, to arouse her with a similar feeling of sex, which may give the happiness even to her etc. However, in no way those such SMSs can be said as were sent to insult her modesty, and there is no intention in sending such SMSs. Had there been such intention, the words could have reflected the same,” the order stated.

According to the Court, both parties were initiating the sexual relationship to experience sex before marriage, rather than issuing a coerced relationship.

Based on the evidence, Judge Khoche concluded that the informant chose to engage in such sexual activity but that the promise of marriage was not untrue.

“Even after respecting the emotions of the informant, respecting her fighting for justice for a long period of near about 11 years or more, this Court is of the humble opinion that this is not the case which would show that the offence of rape has been committed by accused,” the order stated.

Additionally, the Court found no evidence of the accused’s intent to make a fake marriage vow. Judge Khoche noticed that the man had been in a relationship with the woman for more than two years and had honored the promise to marry the woman to the best of his ability.

“But it was the quarrel on the ground of stay after marriage, and after that, by getting tired of his indecisiveness and getting surrendered before his mother’s wish and failing to handle and tackle the problem adequately stood before him, he came back. It is certainly not the case of the false promise of marriage, and rather it is the case of his failure to make substantial efforts,” the order said.

Additionally, the Court stated that the two parties appeared to disagree on the subject of post-marriage domicile, as the man’s mother appeared to be averse to the idea of the accused and complainant living separately.

Judge Khoche reasoned that the accused, having been raised by his mother for at least 20-25 years, could not have immediately or vehemently rejected her wishes, having developed feelings of love, affection, and connection with her. In this case, as a young man, the accused may not have been prepared to leave the bride while also feeling obligated to obtain his mother’s consent.

“It is usual practice in Hindu tradition that all members of the family reside together. Even the new bride, who comes after the marriage at her in-­laws house, does not start to stay separately with her husband immediately but follows the tradition as far as possible or at least for a year or some months to stay together within-­laws. Therefore, it is also a tradition in Hindu families that while fixing the marriage, the groom and bride seek the consent of their relatives or at least family members,” Judge Khoche said in the order.

The Court, therefore, acquitted the man of all charges.

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