The bench observed that public display of affection is only allowed if not indecent, hence restricting indecency if the public interest and sentiment are affected

By: Sanidhya Sharma, O.P. Jindal Global University

While directing the statement of a home guard, Allahabad High Court, they observed and stated that any display of affection among the members of the LGBT community towards their respective partners in public is allowed and without a problem by the majority. It is all okay as long as it does not amount to indecency or that has the potential to disturb the public order, they cannot be objected to or bogged down by the perception of the majority population.

The petitioner Pramod Kumar Sharma was sacked on the charge of ‘indecency’ as it was shown in the video in which he was allegedly seen to be displaying affection to his same-sex partner. Justice Sunita Agarwal termed this to be vindictive in nature and she rejected the order by canceling the appointment in Bulanshahr for the home Guard on account of the viral video of the petitioner and directed the commandment general of Home Guards, Headquarters Lucknow, to take him back in service as he got fired.

The court passed the order while taking note of the counter affidavit that was filed by the district commandment as a reply, where it was stated that the sexual orientation of the petitioner was showing indulgence in indecent or in any untoward activity that has affected the public sentiment.

“Contradicting to the decision made, the High Court stated that the order was in violation to the decision made by the Supreme Court, in the case of Navtej Singh Johar vs Union of India reported in (2018) SCC 1, wherein it was observed by the Apex Court that the sexual orientation of the person is his individual and a private choice and if one treats it as an act of offense, this would be treated as the interference in the right to privacy of the person concerned.” This statement was stated by Justice Agarwal, giving a contradiction to the High court and the district commandment of the home guards.

The court observed that every individual has the right to privacy and affecting or violating it is itself a crime in disguise. Each person should be aware of his or her rights and if harmed shall take the matter straight to the court.

The High Court concluded by saying that the majority perception cannot be bogged down by the partners in the LGBT community if the display of affection in public is not indecent. Lastly, the court also stated that the petitioner shall be permitted to all the admissible dues and the payment shall be paid and given regularly as and when the same falls due. The writ petition that was filed was stated ‘allowed’ by the High Court. This decision was passed on 2^nd February and this decision came to light on Monday.

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The court says that there is no evidence against the accused and has therefore, quashed the FIR against him in the case of Vishwas Bhandari versus The State of Punjab & Anr.

By: Shannia Yesenia, LLB, Prima University.

The complaint was lodged by Rashmi Adhen, wife of Mohanjit Singh, alleging that her eldest daughter who is 17½ years of age, had been kidnapped by Vikram Roop Rai and Vishwas Bhandari by alluring her for marriage. Upon completion of the investigation, a report under Section 173 CrPC was filed against Vikram Roop Rai.

Furthermore, proceedings for declaring the appellant as a proclaimed offender were also initiated but Vishwas Bhandari was not tried since he had run away during that period. 

In the proceedings before the Court, the complainant appeared and recorded her statement while restricting her allegations in respect of Vikram Roop Rai only. In the cross-examination, she testified to have attended the marriage in Phagwara. The complainant stated that “My daughter has solemnised marriage with accused Vikram on 4 August 2013 both the families had solemnised the said marriage at Gurudwara Sahib of Khera Road, Phagwara. I have attended the said marriage, we prepared CD and also clicked photos of the said marriage. Thereafter, Lunch was served at Poonam Hotel, Phagwara. After marriage, my daughter and accused Vikram stayed with us.”

The learned Additional Sessions Judge held that neither the complainant nor the prosecutrix has disclosed the exact date of birth. Further, no birth certificate was produced to show that the age of the prosecutrix was less than 18 years on the alleged date of occurrence of abduction. 

The court observed that “Although the prosecutrix PW2 in her examination in chief has stated that the accused had abducted her on the pretext that he will be solemnized marriage but how and where abducted her has not been explained by her. Admittedly, it is stated by her that was known to her.”

Later, after Rai’s release, Vishwas Bhandari filed an appeal to the High Court to revoke the FIR and subsequent proceedings saying that neither the prosecutrix nor the complainant has leveled a shroud of allegation against him regarding the abduction of the prosecutrix but this petition was dismissed by the High Court.

In the appeal, the court said that there is no evidence against the accused and thus, the doings initiated against him based on FIR would be unarguable.

The bench comprising Justices Hemant Gupta and S. Ravindra Bhat observed that “We find that the evidence of the prosecutrix and the complainant before the Court shows that there is no allegation whatsoever against the appellant. The main allegation was against Vikram Roop Rai but the prosecutrix married him on 4.8.2013 and had given birth to two children out of that wedlock. In the absence of any allegation against the appellant, we find that the continuation of proceedings against him is nothing but an abuse of process of law.”

The order passed by the High Court is set aside and the entire proceedings consequent to FIR No. 31 of 2013 and charge sheet stand quashed.

On Thursday, 4^th February, the Karkardooma Court in Delhi refused to grant bail to Shahrukh Pathan @Khan, who pointed a gun at a cop during February 2020 Delhi riots, whose video had gone viral on the Internet.

By: Khushi Yadav, FIMT College, GGSIP University.

The Additional Sessions Judge, Amitabh Rawat, while denying bail to the accused observed that “The accused is alleged to have participated in the riots and has been duly identified. His picture speaks volume about the involvement and the conduct of the accused on the said day.” The Court further added, “What is material is the gravity of offence and the allegations against the accused which is quite grave. And added to it the conduct of the accused showing that he does not satisfy the triple test for grant of bail.”

The present case has been registered under sections 147/ 148/ 149/ 216/ 186/ 307/ 353/ 34 of Indian Penal Code read with section 25/27 Arms Act.

On 24 February 2020, near Jafrabad Metro station, the accused Shahrukh Pathan was caught brandishing a pistol with the audacity of firing and pointing it at police personnel HC Deepak Dahiya, who was deputed on that day for Law and Order Arrangements. The said person fired on public and also on him intending to kill him by keeping illegal arms. The person identified was accused Shahrukh Pathan @Khan. The whole incident was captured by a journalist on his mobile phone, which became breaking news on all the newspapers and news channels.

The court observed that the conduct of the accused was equally important. He absconded after the incident of 24 February 2020, and after a concerted effort, the applicant was arrested by the team of crime branch based on secret information from Shamli Bus Stand, Uttar Pradesh. The car used for escaping from Delhi after committing the crime was recovered from after Pradesh at his instant instance.

The court observed, “Going by the conduct of the accused and the manner in which he absconded and was arrested later on suggest that he is a flight risk”. “Even applicant’s father Sabir Ali @ Baldev Singh was convicted earlier in a NDPS case.”

Also, the illegal weapon along with two live cartridges and the shirt worn by him at the time of the incident was recovered at his instant from his home on 5 March 2020, during police custody remand. The presence of the applicant is also established through his CDR location.

Khalid Akhtar, counsel for the accused had submitted that the accused was arrested on 3 March 2020 subsequently. He was produced before the court and the police remand was allowed to interrogate the accused. The applicant has been languishing behind bars for the past 10 months despite the non-commencement of trial. He also stated that “thestatement of complainant HC Deepak Dahiya, in this case is, contradictory in terms of various news clippings and statement under Section 161 Cr.P.C.”

The counsel, while referring to a judgment of the honorable Supreme Court of India passed in Sanjay Chandra v CBI and many other judgments to seek bail, argued that due to the covid-19 situation, the trial has been suspended and in the pre-trial stage, the accused is incarcerated.

In the view of the above discussion, the judge was not inclined to grant the relief prayed for accordingly the bail application under Section 439 Cr.P.C. of accused Shahrukh Pathan @Khan stood dismissed. 

A Full Bench of Madras High Court has held that the recommendation of State Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993 are binding on the Government or Authority.

By: Mahima Jain, School of Law, DAVV, Indore.

The Bench has ruled that decisions taken by the Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993 are binding on the government and that the State does not have any discretion to avoid its implementation in the case of Abdul Sathar versus The Principal Secretary to Government, Home Department and others.

A Bench of Justices S Vaidyanathan, V Parthiban, and M Sundar rendered the decision following a reference made by a Division Bench in 2017 upon noticing divergent views in the matter.

“The recommendation of the Human Rights Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable. If the concerned Government or authority fails to implement the recommendation of the Commission within the time stipulated under Section 18(e) of the Act, the Commission can approach the Constitutional Court under Section 18(b) of the Act for enforcement by seeking issuance of appropriate Writ/order/direction,” the Court ruled.

Pertinently, Section 18 of the Human Rights Act deals with the steps a Human Rights Commission may take upon the completion of an inquiry into an alleged violation of human rights.

If the Commission finds that there has been a violation of human rights by a public servant, it can recommend that the concerned government authority carry out any of the following measures:

• to pay compensation or damages to the complainant or victim or the family of the complainant or victim;
• to initiate proceedings for prosecution or such other suitable action against the concerned person or persons;
• to take such further action as the commission may think fit.

Section 18 (b) adds that the Commission may approach the Supreme Court or the High Court for such directions, orders, or writs as that Court may deem necessary.

The High Court also held that since the recommendation of the H.R.Commission is held to be binding, an officer/employee concerned can resort to appropriate legal remedy at any stage qua complaint or inquiry by the Commission but only on substantial legal grounds.

The Madras High Court observed that the “recommendation of the Human Rights Commission under Section 18 is an adjudicatory order which is legally and immediately enforceable,” 

“Just because the victim sent a friend request to the accused does not give him the right and liberty to establish sexual relations with her,” observed the Himachal Pradesh High Court.

By: Anish Khondo, 5^th Year law Student at Christ (Deemed to be) University, Bangalore.

The prosecutrix, in this case, was a 13-year-old girl who had signed up on Facebook as being 18 years old. The victim had sent a friend request to a 19-year-old man who here is the accused.

Later when their friendship had developed, the accused took her to the hotel where the accused committed coitus. When the victim’s father found out that her daughter was missing, he filed an FIR, and consequently, then the victim and the accused were found at Lachhi Colony at Theog. 

Then, the Police took the victim to Civil Hospital, Theog, for medical examination, where the Doctor gave a positive report of DNA matching the bedding of the hotel.

The Investigator recorded her statement under Section 161 CrPC, which led to Sections 366-A (Procuration of minor girl) and 376 IPC (insertion).

The petitioner argues that the accused believed the victim to be of 18 years of age and committed the sexual act with her consent.

It was said that “since the victim was under 18 years of age and her consent is immaterial, prima facie amounts to statutory rape. The legislature has been clear regarding the said clause and states that a person will be held liable if he commits sexual intercourse with a girl less than 18 years of age, with or without her consent.”

The Court stated that the argument of the accused doesn’t hold any weight because when the petitioner saw the victim in person, he must have gathered that the victim is a child. After all, a girl of 13 years and 3 months of age cannot be presumed and believed to have an adult’s physical appearance.

Further Justice  Anoop Chitkara relied on the judgment given in Raghunath Ramnath Zolekar v State of Maharashtra where it said that “the defense while relying upon B (A Minor) v. Director of Public Prosecutions (2002 Appeal Cases), argued that mensrea is a part of Section 375 and 376 IPC and unless and until the knowledge of the accused that the prosecutrix being below the age of 16 years is proved, the penal liability for the said act will not be attracted.”

Lastly, the court after observing the facts and circumstances of the case denied granting bail to the accused.

Endnote:

Raghunath Ramnath Zolekar v State of Maharashtra, (Cr. Appeal No. 388 of 2010), (pp- 2) https://www.casemine.com/judgement/in/56b493ee607dba348f008c49