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‘Considering Age Factor Will Give Adverse Result’: Kerala HC declines Pre-Arrest to 18-Year-Old Accused of Transmitting Morphed Content Online [READ ORDER]

“These kinds of offenses are fast increasing in our society. So, to curb such kinds of offenses, granting of pre-arrest considering the age factor of the petitioner will give only an adverse result. Hence, I am not inclined to grant pre-arrest bail to this petitioner though he is a college student aged only 18 years”, the Judge noted in her Order.

By: Shannia Yesenia, LLB, Prima University.

The petitioner was a neighbor of the complaint and thus, he and the complainant’s family are close acquaintances who regularly visit each other’s home to play with their children. The applicant was alleged to have taken photographs of the wife in his phone, morphed it, and uploaded it on social media using a false account under her name. Learned counsel has stated that the petitioner is a college student currently pursuing his studies. 

“He is totally innocent of the allegations levelled against him. With the very same allegations the defacto complainant has submitted a complaint before the police and Crime No.1450/2020 was registered and when he moved bail application, the investigating agency reported that the offence alleged was only bailable offence. The same was recorded and bail application was closed. Thereafter he has been implicated in non bailable offences under the influence of the defacto complainant who is in inimical terms with the parents of petitioner. In fact, his mobile phone was seized by the investigating agency and major portion of the investigation is over is the submission of the learned counsel,” submitted the learned counsel. 

The learned Public Prosecutor vehemently opposed the application and submitted that the offenses alleged against this petitioner are grave and serious in nature and the investigation is only in progress.

Noting that there was prima facie material demonstrating that the photographs of the wife of the complainant have been morphed and transmitted, in this respect, the court repeated that the ITA was a complete code to deal with the publication or transmission of obscene materials in electronic form.

Moreover, the prosecution has also an allegation that by circulating the morphed sexually explicit photographs and pictures, the petitioner had collected money by using google pay. So definitely, time is required for the investigating agency. The seizure of the mobile phone of the petitioner alone is not sufficient to proceed with the investigation. It was submitted that “The offences alleged against this petitioner is an affront to a decent society. Granting of bail that too pre-arrest bail to such a person would only convey a wrong message to the wrongdoers. These kinds of offences are fast increasing in our society. So, to crub such kind of offences, granting of pre-arrest considering the age factor of the petitioner will give only an adverse result. Hence, I am not inclined to grant pre-arrest bail to this petitioner though he is a college student aged only 18 years.”

News, Top Stories

Family Court Does Not Have Plenary Powers to Do Away with Mandatory Procedural Requirements: Supreme Court

The Supreme Court ruled that a family court does not have plenary powers to do away with the mandatory procedural requirements which guarantee fairness and transparency for adjudication of claims (Aman Lohia vs Kiran Lohia).

By: Shailvi Gupta, Banasthali university, Jaipur.

A family court is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statute, the Court held.

“Family Court is expected to follow procedure known to law, which means insist for a formal pleading to be filed by both sides, then frame issues for determination, record evidence of the parties to prove the facts asserted by the concerned party and only thereafter, to enter upon determination and render decision thereon by recording reasons for such decision,” the judgment said.

The judgment was delivered by a three-judge Bench of Justices AM KhanwilkarBR Gavai and Krishna Murari in an appeal by a father (appellant) challenging a September 2019 order of a family court granting custody of the child to his wife after concluding that the father had “abandoned the petition”.

A guardianship petition was filed by the father under Section 7 of the Guardians and Wards Act, 18905 read with Section 7(g) of the Family Courts Act, 1984 on the assertion that the minor child was in his custody at the relevant time. The appellant sought himself to be declared guardian of the child.

The respondent wife also filed an application under Section 151 of the CPC for declaring her to be the sole and absolute guardian of the minor child.

This application was filed on September 13, 2019 and notice was issued to the appellant that day and the matter was posted for hearing on September 16, 2019 at 2 pm. Since the appellant did not enter appearance that day, the matter was posted for September 19, 2019.

In the meantime, the respondent filed another application under Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of the CPC to transpose her as the petitioner in the guardianship petition.

Eventually, the matter was heard on September 21, 2019. No notice of the transposition application was ever served on the appellant nor was he given notice regarding hearing of the said application before the Court, despite the fact that his counsel had been discharged from the case and the appellant was not represented by any other counsel.

The family court ruled that the appellant had abandoned the petition and transposed the wife as the petitioner in the main guardianship petition.

The main guardianship petition was also decided the same day against the appellant by holding that giving guardianship of the minor child, who was only two and half years of age, to the appellant, was not advisable.

It ruled that the father had dis-entitled himself to be declared as guardian of the minor child and that in “paramount interest and welfare of the child, the respondent mother needs to be declared as the sole, exclusive and absolute guardian and custodian of the minor child.”

The Supreme Court took exception to the procedure adopted by the family court in deciding the transposition application and guardianship petition.

“The (family) court could not have entertained the transposition application filed by the respondent ex parte and that too without ensuring that it was duly served on the appellant consequent to notice issued thereon by the Court,” the Supreme Court said.

On the family court’s finding that the appellant had abandoned proceedings, the top court said that here can be no legal presumption about the factum of abandonment of proceedings.

“The abandonment has to be express or even if it is to be implied, the circumstances must be so strong and convincing that drawing such inference. Family court does not have plenary powers to do away with the mandatory procedural requirements in particular, which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides,” the judgment said.

In the instant case, the Bench noted that the family court was “in a tearing hurry, may be because of the insistence of the respondent and her counsel to do so.”

“The nature of inquiry before the Family Court is, indeed, adjudicatory. It is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statue in that regard and also the foundational principle of fairness of procedure and natural justice,” ruled Supreme Court,” the Supreme Court further observed.

In the present case, there was substantial non-compliance with the prescribed mandatory procedure and infraction of principles of natural justice and it was not a technical irregularity to be overlooked, the apex court concluded.

The top court, therefore, set aside the family court order, ordered revival of the guardianship petition and remanded it back to the family court for fresh adjudication.

News, Top Stories

Delhi Court Awards Death Sentence to Convict Ariz Khan, Observes “Rarest of The Rare Case” [READ ORDER]

Additional Sessions Judge Sandeep Yadav pronounced the order on the sentencing of convict in Open Court.

By: Shannia Yesenia, LLB, Prima University.

Ariz Khan was sentenced to the death penalty by the Delhi Court regarding the Batla House encounter of 2008 where a police inspector and two other alleged terrorists were killed during the attack between the two parties. The court claims that it is a fit case falling in the “rarest of the rare” category deserving maximum sentence under the law.

“Convict on account of his despicable act has forfeited his right to live. After balancing mitigating circumstances against aggravating circumstances is concluded that it is the rarest of the rare case where convict deserves maximum sentence provided under the law. It is the level of magnitude, degree of brutality, attitude and mindset of wrongdoer behind the crime along with other factors which makes it a rarest of rare case. Protection of society and deterring criminal is an avowed object of law and this is required to be achieved by imprisonment appropriate sentence. The most appropriate sentence for convict like Ariz Khan will be death penalty. Interest of justice will be met if convict is awarded death penalty” held the court. 

Further, the court observed that several deadly weapons were retrieved from the flat where the incident had taken place.

It should not be forgotten that deadly weapons like AK-47 and two pistols were retrieved from the flat where the shootout took place. The defence has not able to clarify as to for which purpose these deadly weapons were kept by the convict and his accomplices in the flat. Considering the nature of devastation that these weapons can cause, it will be safe to conclude that these weapons were kept in the flat with a view to indulge terrorist and anti-social activities.”

The first question that has arisen before the court while deciding the quantum of sentence is as to whether there is any chance of reformation of convict. It has been proved on record that convict after the shootout managed to escape and run away from the spot. The convict eluded investigating agencies for almost ten years despite coercive process against him. Convict was declared proclaimed offender way back in the year 2009 and was arrested in 21018. There is no evidence on record that convict during investigation or trial showed any signs of reformation or repentance. Thus, the natural and inescapable conclusion is that there is no chance of reformation of convict.In addition to that, the court stated that the abhorrent and brutal act of convict in firing on police party without any provocation itself shows that convict is not only the threat to the society but is also an enemy of the state. Involvement of convict in various blast cases not only in Delhi but also in Jaipur. Ahmedabad and U.P. in which hundreds of innocent people were killed and injured further demonstrates that convict continues to be a threat to the society and the nation.

“Unbecoming of Indian woman to sleep after being ravished” – Karnataka HC Judge’s pronouncement after granting accused anticipatory bail
News, Top Stories

Polygraph Test Can Be Conducted Only After Obtaining Consent of Accused; Mere Silence Will Not Amount to Consent: Karnataka High Court

Polygraph test cannot be administered without obtaining the written consent of the accused person to whom it is to be administered, the Karnataka High Court ruled (Virendra Khanna v. State of Karnataka).

By: Shailvi Gupta, Banasthali university, Jaipur.

Mere silence of the concerned person will not amount to consent of such person, a single-judge Bench of Justice Suraj Govinda Raj held.

Such consent by the accused has to be categorical, without any doubt and should be made after being informed and made aware of the implications of the test. An accused person remaining silent and neither accepting or rejecting the administration of polygraph test will not amount to consent, the Court added.

“Mere silence of the said person would not amount to consent on behalf of such person. If a person were to refuse the administration of polygraph test, no such polygraph test could be administered and even if administered, the result of the said test would be void and cannot be considered by a Court of Law,” the judgment said.

The judgment was rendered in a plea challenging an order of a trial court dated March 29, 2020, which had directed one Virendra Khanna, a party organiser and an accused in a drug case registered in 2018, to undergo a polygraph test and to cooperate with the police in the probe by providing biometric passcode/passwords of his smartphones, and passwords for email accounts. From setting guidelines for search and seizure of smartphones, laptops, Electronic Gadgets, email accounts, the Court made many pertinent observations in its judgment.

It also held that an investigating officer has no right to disclose the private data seized from the smartphones or electronic gadgets of an accused to a third party, without the written permission of the concerned court.

Specifically, on polygraph test, the Court laid down the procedure to be adopted for such a test to be valid.

Accordingly, an application for a polygraph test has to be served on the person on whom the polygraph test is to be administered, and also on the lawyer, if any, of that person. The effect and impact of the polygraph test and any answers given during the conduct of the polygraph test has to be clearly made known to the said person, the Court said.

The consent in writing to be obtained from such a person before directing the administration of the polygraph test. Merely because an accused is silent, neither accepts or rejects the administration of polygraph test would not amount to consent being provided by the accused,” the judgment said.

In the instant case, the Court observed that the trial court had passed its order directing a polygraph test without there being any application filed by the prosecution. Further, no opportunity to be heard was provided either to the petitioner or his counsel and no consent was obtained for administration of the test, the High Court noted.

Placing reliance on the case of Selvi & Ors vs State of Karnataka & Anr, the Court held that obtaining the petitioner’s consent before conducting the polygraph test is critical.

“I am of the considered opinion that the trial Court ought to have taken into consideration the decision off the Apex Court in Selvi’s case and once the trial court had been informed and/or it was brought to the notice of the trial court that on account of the decision of the Hon’ble Apex Court a polygraph test could not be conducted without a consent of the person who has to be subjected to such a test, the trial court ought to have recalled its order rather than dismissing the same.”

With these observations, the Court set aside the order of the trial court.

News, Top Stories

SC Scraps MP High Court’S ‘RAKHI’ Order; Issues Guidelines For Bail in Sexual Assault Cases

Drawing a line for judges hearing sexual assault and molestation cases, SC also warned them against setting bail conditions reflecting stereotypical or patriarchal notions about women & their place in society.

By: Priya Kumari, B.A.LL.B., Maharashtra National Law University Aurangabad.

The Supreme Court set aside and expunged portions of the Madhya Pradesh High Court order that directed the man accused of having outraged the modesty of a woman to present himself before the complainant so that she may tie a “rakhi” on his wrist to be eligible for bail.

The top court’s verdict came on a plea filed by advocate Aparna Bhat and eight other women who had challenged the July 2020 High Court order arguing that “there is a strong likelihood that such observations and directions may result in normalizing what is essentially a crime and has been recognized to be so by the law.”

A bench of Justices A M Khanwilkar and S Ravindra Bhat said that Judges can play a significant role in society in getting over the harmful stereotypes and they have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. The bench further asked the National Judicial Academy (NJA) and the Bar Council of India (BCI) to create training modules on gender sensitisation for judges and lawyers.

The court said, “Using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment. The act perpetrated on the survivor constitutes an offence in law and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be.” 

While setting aside the order, the bench issued seven directions to be followed by lower courts while dealing with bail petitions in matters relating to crimes against women.

The following are the guidelines that have now been issued for all courts:

Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;

  • Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
  • In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and a copy of the bail order made over to him/her within two days;
  • Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society and must strictly be in accordance with the requirements of the CrPC. In other words, discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;

The courts, while adjudicating cases involving gender-related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;

  • Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments; and
  • Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
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