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“Politically Motivated” PIL Against Conduct Of BJP’s Rathyatra Dismissed By Calcutta High Court [READ ORDER]

“Filing of a writ petition by an advocate, who is directly connected with a political party in power raising issues against other political party during election time cannot be said to be in larger public interest….” said the Calcutta High Court

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

Background of the Plea

The plea stated that there are high chances of deterioration of the Covid-19 pandemic situation as well as chances of serious break down of law-and-order situation of the state if the Yatras are allowed to take place.

As per media reports, BJP has sought permission from the State Government to hold “Rath Yatra” throughout the state and the same would be commencing from February 6, 2021. As reported by the Indian Express, BJP plans to take out 5 such yatras from 5 of its organizational zones in the state, crisscrossing every Assembly constituency in the state.

The Calcutta High Court, on Thursday (11th February), dismissed a plea moved before it against Bharatiya Janata Party (BJP)’s ‘RathYatra’ in poll-bound West Bengal.

The Bench of Justice Rajesh Bindal and Justice Aniruddha Roy was hearing the plea of one Rama Prasad Sarkar, a lawyer by profession, seeking High Court’s intervention to prevent BJP from holding the “Rath Yatras” in the state. The petitioner, Rama Prasad Sarkar had contended that the conduct of the RathYatra may result in the spread of COVID-19 and create law and order problems.

A Bench of Justices Rajesh Bindal and Aniruddha Roy, however, opined that the petitioner’s position as a lawyer who is part of the Calcutta High Court Trinamul Law Cell, which is affiliated with the political party, presently in power in West Bengal, had rendered the writ petition politically motivated.

Filing of a writ petition by an advocate, who is directly connected with a political party in power raising issues against other political party during election time cannot be said to be in larger public interest. It can be said to be a private interest litigation,” the order said.

Moreover, the Court also took note of the submission made by Additional Solicitor General YJ Dastoor that the petitioner may not have sent his representation against the conduct of the RathYatra in time for the authorities to take a call on the issue.

In this regard, it was argued that while the petitioner’s representation is dated February 2, there is nothing to show that he had sent the representation on that date. Further, the writ petition was filed in the High Court on February 3.

The fact remains that when the writ petition was filed in this court, the representation filed by the petitioner may not have even been received by the addressees therein, even if sent by the petitioner,” the Bench opined, on this aspect.

Lastly, the Court observed that it is for the authorities in the State to have considered the issues. The Court also noted that a number of political rallies are being held at different places in the State. Stating that the present writ petition cannot be entertained as public interest litigation, the same was, accordingly, dismissed.

Counsel

Advocates Achintya Kumar Banerjee and Indumouli Banerjee appeared for the petitioner, who also appeared party in person. Apart from ASG Dastoor, Advocates PhirozeEdulji, MrinaliniMajumdar and RK Shah appeared for the Central Government.

Senior Advocates Mahesh Jethmalani and DhirajTrivedi, with M/s Neelanchan Bhattacharya and Advocates Billwadal Bhattacharya, Vikash Singh, RajdeepMajumdar, Mayukh Mukherjee, KP Dalpaty and Rahul Singh appeared for intervenors.

Advocates ParthaGhosh and Amal Kumar Dutta appeared for other respondents in the matter.

Advocate General Kishore Datta, Additional Government Pleader AbhratoshMajumdar and Advocate Sayan Sinha, appeared for the State.

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Mumbai Special Court Refuses To Grant Bail To POCSO Accused [READ ORDER]

“I find that the nature of accusations is serious and the applicant is alleged to have committed aggravated sexual assault. In the circumstances I do not find that the applicant is entitled for bail,” observed the Mumbai Special Court

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

In this case, the victim here is a 5-year-old girl who used to regularly visit the house of the applicant (accused) to play with her friend. It is submitted that the accused used to touch the victim on her chest and back and used to kiss her.

The learned SPP has submitted that the victim is very small and she is aware of the nature of touch and she has specifically stated in her statement about the same.

The accused also submitted that he lives with his wife and “He has never touched the victim. The mother of the victim was not allowing him to give chocolate or biscuits to the victim. The applicant is ready to abide by all the conditions imposed by this court. The investigation is completed and charge sheet is filed. Therefore, he is praying for his release on bail.”

The Advocate for the applicant has vehemently submitted that the applicant has never committed any offense. The victim, being a small child, regularly used to visit the applicant’s house and it cannot be said that the touch of the applicant was bad. He has further submitted that the investigation is completed and the charge sheet is filed and therefore prayed for bail.

It was also submitted by the victim that the applicant was her neighbour.

The prosecution opposed the bail application submitting that the nature of offence is serious. The applicant may threaten the witnesses and may commit similar nature of offence. Therefore, the prosecution prayed that the application is liable to be rejected.

The Special Judge under POCSO Act, Bharti Kale added that: “The victim has categorically stated that the applicant has touched on her body and she felt that it was a bad touch.”After considering all its circumstances, the court held “I find that the nature of accusations is serious and the applicant is alleged to have committed aggravated sexual assault. In the circumstances I do not find that the applicant is entitled for bail. Hence, I proceed to pass the following order.”

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The Suo Moto Case Of Kerala High Court Orders The State Government For Checking Drug Use Inside Educational Institutions [READ JUDGMENT]

The court has ordered the state government to enforce campus police for checking these institutions that can amount for less use of unwanted substances and also asked to enforce the NDPS Act, 1985

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

In Kerala High Court, a Division Bench on this Tuesday counseled the State government to institute campus police units in several educational institutions to prevent the use of unwanted substances like drugs in the campuses as the law enforcement agencies were not conducting any search in these institutions. The Bench comprising of the Chief Justice S. Mannikumar and Justice A.M. Shaffique directed the State government to assemble a meeting of all the key officials of Home, Excise, Health, Law, Education and Social Justice departments and representatives of the State Mental Health Authority to point out the programs to reduce the incidence of substance abuse among the youth.1 They have to conduct this regular checking inside these institutions and search each student if they are carrying any drug-related substances. 

This was instituted because of the rising drug use in Kerala which happened because the court issued a directive while organizing a suo moto case, that got started because of the letter issued by the former IPS officer and the former District Police Chief of Kottayam, N. Ramachandran who highlighted the drug use in the campus of schools and colleges and that letter also expressed concern over the increasing rate of crimes committed by youth under the effect of drugs and use of drugs in both the genders.

When the court registered the suo moto case, it had sought several reports from the top-ranking officials, police officers of the State that reported on the drug menace. It was noted that cases of drug abuse had suddenly increased in educational institutions and there has been a sudden rise which was seen by many throughout these years. There was a significant rise in the number of cases reported, and this was stated as a very serious problem in the institutions. 

Justices S Manikumar and AM Shaffique ordered the State government to take various measures to make it easier for the police and the excise personnel to enforce the famous Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 in these institutions.

The court ordered the authorities of colleges, schools, and universities will be provided with the guidelines to make the campuses drug-free as a charter of duties and responsibilities, that will be followed, strictly. 

The court observed, “On enquiry, it came to understand (sic) that around 400 institutions in the State are affected by drug abuse and out of the education institutions, 74.12% are schools, 20.89% are colleges and professional institutions, and 4.97% are other institutions viz., ITI, Polytechnics etc.”

The order also stated that the State Police Chief (SPC) should also seek assistance from the Student Police Cadets, the NCC, NSS, and other organizations that can help in spreading awareness about the legal consequences that will be faced if there are drug usage and any sort of trafficking and should also point out how it will affect the career and health of the students. It was added that “several schemes shall also be issued to ensure that the campuses of schools and the universities remain drug free and steps shall be taken to conduct the anti-drug programs in these institutions, increase the health awareness and they can also use the social media to influence several people.”2

The court also issued that the SPC should also establish several rehabilitation mechanisms and conduct counseling sessions to maintain the safety of the student who in case got into drugs and are not able to control and stop themselves.

Endnotes:

  1. Correspondent, Special. “HC Directive to Set up Campus Police Unit.” The Hindu, The Hindu, 10 Feb. 2021, www.thehindu.com/news/national/kerala/hc-directive-to-set-up-campus-police-unit/article33802576.ece
  2. Correspondent, Special. “HC Directive to Set up Campus Police Unit.” The Hindu, The Hindu, 10 Feb. 2021, www.thehindu.com/news/national/kerala/hc-directive-to-set-up-campus-police-unit/article33802576.ece
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Heart Ailments Is Not Covered Under Disability Act: SC [READ JUDGMENT]

The Supreme Court observed that Heart Ailment (Dilated Cardiomyopathy Condition) is not covered within the definition of disability in the Right of Person with the Disability under Disability Act while hearing a case against Patna High Court’s judgment

By: Pragnya Prachurya Acharya, Madhusudan Law University, Cuttack, Odisha

The Supreme Court observed that Heart Ailment is not covered under that disability definition under the Disability Act. The court gave this judgment while dismissing an appeal against the Patna High Court’s judgment. The apex court upheld the judgment of the  Patna High Court order of a shipping corporation of India. In this case, the Patna High Court had rejected a seaman’s claim for disability compensation under the Disability Act and the National Maritime Board Agreement. The bench which gave this judgment comprised of Justice Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy.

Majorly there were two issues raised before the Supreme Court:

  • One of the contentions of this case was that petitioner’s heart ailment should be understood as a disability under the Disability Act and consequential benefit should be accorded to him,
  • And the other issue was that the seaman is entitled to 100% disability compensation under Clause 21 of the National Maritime Board Agreement.

To the first issue raised before the Supreme Court, the bench noted that Section 2 (i) of the 1995 Act takes into account visual disability, locomotor disability, mental illness, mental retardation, hearing impairment, and leprosy.

The Supreme Court said that, “We would hesitate to import words which the legislature chose not to in their definition of disability.”

Further, the Supreme Court said that Heart Ailment was not covered in Disability Act when the 1995 Act was replaced by the Right of Persons with Disability Act 2016. The person with a disability as defined under Section 2(s) is a person with long-term physical, mental, intellectual, or sensory impairment that prevents his full and effective participation in society. It also noted Section 2(zc) defines “Special Disability” mentioned in the schedule of the 2016 Act.

The Supreme Court finally concluded that heart ailment is neither in special disability nor is same or relatable to what is mentioned in this section of the Disability Act of 1995 and 2016.

So the case of the appellant does not fall within these acts. It also does not hinder a person’s full and effective participation in society. So the Supreme Court believed that the High Court’s judgment was correct and Dilated Cardiomyopathy Condition would not facilitate any benefit to the appellant under section 47 of the Disability Act.

To the second issue raised in front of the Supreme Court that the sea-man be entitled to 100% disability compensation under Clause 21 of the National Maritime Board Agreement, Supreme Court observed that there is no link between the ship duty and the appellant’s medical condition. Therefore, the person is not entitled to 100% disability compensation.

The Supreme Court also noted that under Clause 5.9 F(ii), the compensation would be granted to the sea-man if the sea-man is found medically unfit for sea duties as a result of an injury while employment or an accidental injury in course of his employment in the sea vessel, but in this case, any of these conditions are not there.

It also said about Clause 21, which says that Clause 21 applies to any case of total disability, but this is not a case of 100% disability because heart ailment may stop the sea-man from performing the sea services but it will not be a barrier for him to perform other jobs.

So, the Supreme Court finally upheld what the High Court said and said that the interpretation of the High Court is correct and it granted the sea-man only severance compensation under Clause 25 of the National Maritime Board Agreement.

Anticipatory Bail in India
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Delhi High Court Grants Bail To Applicant Who Was Accused Of Blackmailing Victim To Have Physical Relations With Him [READ ORDER]

“In my opinion, making of tattoo is an art and special machine is required for the same. Moreover, it is also not easy to make such a tattoo which is on the forearm of the complainant if there is some resistance from the other side”. – Delhi High Court

By- Anish Khondo, 5th Year Law Student at Christ (Deemed to be) University, Bangalore

The prosecutrix, in this case, was a married woman who furnished a statement that the accused blackmailed her to have physical relations with him by threatening her and showing her nude photos and videos of her. “According to the prosecutrix between 29 September 2016 till May 2019 the petitioner kept on making physical relations with her by showing her nude photographs and again he made physical relations with her on 6 December, 2019”. It was also noted that the prosecutrix never tried to complain about this incident for the past 3 years.

Advocate Sahil Mongia appeared for the accused (petitioner) here and claimed that the statement about the blackmail and showing nude photos and videos were false. 

It was also stated that it was a consensual relationship which is evident from the fact that respondent No. 2 (prosecutrix) has got the name of the petitioner permanently tattooed on her forearm which shows her love towards the petitioner.

It was said that “that respondent No. 2 has clicked selfies with the petitioner, exchanged garlands with him, attended festivities and celebrated functions which is evident from the photographs filed on record. He further submitted that the respondent No. 2 has even sent friend request to the petitioner on face book.”

It was also said that the house in which the prosecutrix claimed to have been kept by the petitioner was in fact let out to the prosecutrix.

The Court further stated that “In my opinion, making of tattoo is an art and special machine is required for the same. Moreover, it is also not easy to make such a tattoo which is on the forearm of the complainant if there is some resistance from the other side. It is not everybody’s job and it is also not the case of the prosecutrix that the petitioner had anything to do with the tattoo business.”

Further, the mobile phone of the petitioner was seized but no nude photographs were found. The status report of the accused’s phone records showed that there was no recording of threats as alleged by the prosecutrix.

“There is a delay in registration of FIR, though delay is not fatal in every case but at this stage, no opinion is being expressed on the aspect of delay in lodging the FIR,” observed the Court.

Lastly, after examining all the circumstances of the case the Court granted bail to the accused on his furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount subject to the satisfaction of the concerned Court.

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