Case BriefsHigh Courts

Allahabad High Court: The writ petition was filed before a Division Bench of Abhinava Upadhya and Dr Yogendra Kumar Srivastava, JJ. where order passed by the Tehsildar, Kairana was challenged.

Petitioner alleged that there was a road accident in front of his house due to which two respondents entered into a dispute with the petitioner in consequence of which FIR was filed against the respondents. Later, a complaint before Tehsildar was filed by the respondents against petitioner alleging that petitioner was involved in the construction of the road on land not belonging to him. Accordingly, Tehsildar had issued a direction to SHO, Kairana to check if the alleged road was constructed. Petitioner had submitted that the above complaint was just to harass him.

Petitioner’s main contention was that Tehsildar, an executive authority could not have passed the above order and in case of any grievance by the respondent the correct forum to be approached was the Court of Civil Jurisdiction.

High Court observed that the dispute raised in this petition was of civil nature and Tehsildar had no jurisdiction to issue a direction to the SHO to interfere with the right of petitioner. Therefore, the impugned order was quashed. [Jagmal Singh v. State of U.P., 2019 SCC OnLine All 109, Order dated 29-01-2019]

Case BriefsSupreme Court

“In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.”

-Whittaker Chambers

Supreme Court: A Bench comprising of A.K. Sikri and S. Abdul Nazeer, JJ. disposed of a writ petition while approving the Witness Protection Scheme, 2018 finalised by the Union of India and making certain direction in connection therewith.

There were four petitioners in this matter all of whom were related to cases against self-styled godman Asaram and his son Narayan Sai. The petitioners Witness, father of a murdered witness, father of a child rape victim and a journalist who escaped a murder attempt by goons of Asaram and Narayana Sai and still faces death threats by a jailed sharpshooter. They prayed for a court-monitored SIT or a CBI probe. They stated that the prevailing feeling of fear amongst witnesses in the country seriously impairs the right of the people of this country to live in a free society governed by rule of law.

The Court noted the adversities faced by the witnesses and reproduced the reasons which make witness turn hostile as indicated by the Supreme Court in Ramesh v. State of Haryana, (2017) 1 SCC 529. It was noted that such a situation has created a problem of low conviction in India having serious repercussion on criminal justice itself. Therefore, the protection of witnesses is necessary to enable them to depose fearlessly and truthfully. This would also ensure ‘fair trial’, another concomitant of rule of law.

Earlier too, issues of identity protection and witness protection programme have been raised in various cases including NHRC v. State of Gujarat, (2009) 6 SCC 767; PUCL v. Union of India, (2004) 9 SCC 580; Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158; Sakshi v. Union of India, (2004) 5 SCC 518; Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.

During the pendency of the petition, the Union of India finalised the Witness Protection Scheme, 2018. Its essential features include identifying categories of threat perceptions, preparation of a “Threat Analysis Report” by the Head of Police, types of protection measures like ensuring that the witness and accused do not come face to face during the investigation, etc. The Scheme is the outcome of the efforts put in by the Central Government with due assistance not only from the State Governments as well as Union Territories but other stakeholders including Police personnel, NALSA, and State Legal Services Authorities, High Courts and even civil society.

The Supreme Court after considering various earlier decisions as well as Witness Protection Scheme, 2018 made certain directions which include:

(a) The Witness Protection Scheme, 2018 is approved and shall come into effect forthwith.

(b) Union of India, all States and UTs shall enforce the Scheme in letter and spirit.

(c)The Scheme shall be the ‘law’ under Article 141 and 142 of the Constitution till enactment of suitable legislation on the subject.

(d)Vulnerable Witness Deposition Complexes shall be set up in all district courts in India.

The petition was disposed of in the terms above. [Mahender Chawla v. Union of India,2018 SCC OnLine SC 2679,decided on 05-12-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajiv Sharma, ACJ. and Sharad Kumar Sharma, J., gave directions to ensure safety of school students from the moment they leave their home to when they reach back to the same.

The petitioner has brought before the Court a case of sexual assault committed on a student inside a school van in the State highlighting the barbaric nature of the act, which he assets to have increased with an alarming rate and thus he pleads to look into the matter with sensitivity as safety and security of students was a grave issue. The petitioner has also attached details of the recent crimes committed against the girl child in District Nainital.

The petitioner brought into light the threats attributed towards the parents of the students by a few persons in allegiance with the school administration in order to dissuade them to pursue the matter. Hence it was the responsibility of the School Administration/Management to ensure the safety of every student by taking necessary remedial steps to address this menace.

Accordingly:

  • Every Private School bus shall deploy female staff mandatorily entrusted with the duty to pickup and drop the student safely, information of which shall be communicated to parents through SMS along with GPS in the vehicle to locate its movement.
  • Deploy only those persons who have their roots in the city as drivers and conductors to transport the students.
  • Every transport vehicle was ordered to be fitted with the CCTV live display which should be available with the school along with CCTV cameras in the school premises.
  • Provide students with identity card fitted with electronic chip providing location of the student to the parents through mobile application/ software throughout the State.
  • Verification of the credentials of each and every staff member shall be done by the police.
  • The Senior Superintendent of Police, Nainital was directed to lodge FIR within 48 hours if the school fails with the dereliction of the above directions.

The Court concluded by cautioning the authorities to act with responsibility by complying the above directions failure of which, the court would not hesitate to recommend the cancellation of their affiliation/recognition. [Aklema Parveen v. State of Uttarakhand, 2018 SCC OnLine Utt 860, Order dated 25-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. disposed of a writ petition filed under Article 32 of the Constitution wherein the Court issued various directions concerning the people suffering from leprosy.

The petitioner sought directions to be issued to the Union and the States to conduct periodic national survey for determining new cases relating to detection rate of leprosy and to publish and bring in the public domain the reports of National Sample Survey on Leprosy conducted in 2010-2011 and further to conduct regular and sustainable massive awareness campaigns for the general public to dispel the fear associated with leprosy and support and encourage the people afflicted by the said disease to lead a life of equality and dignity. In the instant writ petition, the petitioner drew attention of the Court to the fact that although leprosy as a disease has been scientifically and medically proven to be curable and manageable with MDT, yet the fact remains that millions of people and their family members still suffer from leprosy and the social, economic and cultural stigma attached to the said disease. This fact reveals the lack of awareness and the prevailing misguided notions in the society pertaining to leprosy. Due to the disability that entails as a result of the disease, the people affected by leprosy suffer additional discrimination in the form of denial of access to health services, education and livelihood options.

Keeping in view the factual matrix in entirety and the submissions advanced by the petitioner, the Court thought it appropriate to issue various directions to the Union and the States, which, inter alia, include:-

  • Periodical national surveys for determining the prevalence rate and new cases detection rate of leprosy;
  • Organizing massive awareness campaigns to increase public awareness about the signs and symptoms of leprosy and the fact that it is perfectly curable by the Multi Drug Therapy (MDT), every year on Leprosy day;
  • MDT drugs to be available free of cost and not to go out of stock at all Primary Health Centers (PHCs);
  • All-year awareness programs about National Leprosy Eradication Program (NLEP);
  • The awareness campaigns must include information that a person affected by leprosy is not required to be sent to any special clinic or hospital or sanatorium and should not be isolated from the family members or the community;
  • Healthcare to leprosy patients, at both Government as well as private medical institutions, must be such that medical officials and representatives desist from any discriminatory behaviour while examining and treating leprosy patients;
  • The possibility of including leprosy education in school curricula should be explored;
  • The Union and the States should endeavour to provide MCR footwear free of cost to all leprosy affected persons in the country;
  • The Union Government may consider framing separate rules for assessing the disability quotient of leprosy affected persons for the purpose of issuing disability certificate in exercise of the power granted under the Rights of Persons with Disabilities Act, 2016; etc.

The writ petition was disposed of in the terms above. [Pankaj Sinha v. Union of India,2018 SCC OnLine SC 1502, decided on 14-09-2018]

Case BriefsHigh Courts

Allahabad High Court: A 2-Judge Bench comprising of Dilip B Bhosale, CJ. and Yashwant Varma, J., dealt with a public interest litigation for giving directions for the purpose of protecting shelter homes as a lot of cases were coming where the shelter homes management were in question.

The matter came for review before the Court for further directions pursuant to the earlier order passed in these proceedings. Additional Advocate General submitted that proposals formulated would help the Court in passing further directions and for formulation of policy for monitoring shelter homes in the State. Court noted that it was directed by the State to the Director, Academy of Management Studies, Lucknow to undertake a social audit of all shelter homes, however, no audit was actually conducted. In another order, a seven-member committee was created to formulate directives for shelter homes in the State. Interim directions were given to District Judges to form monitoring committee for inspection of shelter homes.

The Additional Chief Secretary had brought before the Court that currently there were no codified norms to protect the shelter homes except the ones established or run under the Juvenile Justice (Care and Protection of Children) Act, 2015. Court did not agree with the averments of Additional Chief Secretary and mentioned provisions of Swadhar Greh Scheme framed by the Union Government related to shelter homes.

Last direction to be given was related to installation of CCTV cameras which was contested by the Additional Chief Secretary to have been already installed. With above directions, the Court disposed of this petition. [Abuse of Girls in a Women Shelter Home, Deoria, In re, (PIL) No. 4112 of 2018, order dated 05-09-2018]

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench comprising of Rajiv Sharma and Lok Pal Singh, JJ., addressed a petition raising the concern of encroachment over the Gram Panchayat land by unscrupulous people, for which the bench issued directives in order to prevent the said act.

The petition brought a very peculiar and eye-raising concern of encroachment upon various water bodies, grazing land, playground, etc. For the said act of encroachment, State Government is the authority accountable to protect the water bodies as they serve the villagers for multiple purposes. Further, an important point noted by the Court was of the regularization of ‘encroachment’ by the Revenue Courts.

However, on analysing the situation and the importance of these water bodies and Gram Panchayat land towards the entire community and relying upon the Supreme Court cases of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 and Hinchlal Tiwari v. Kamla Devi, 2001 (92) R.D. 689, in which it was clearly laid down that ‘regularization of the encroachment of Gram Panchayat land is impermissible’, directions were issued to the State Government.

Therefore, the Hon’ble Court placed a clear vision to the State Government by issuing mandatory directions for the prevention of the ‘encroachment’ of water bodies as well as Gram Panchayat land, which were as follows:

  • Encroachments from all the village ponds, playgrounds and common grazing land to be removed in 6 months.
  • Illegal entries changing the nature of water bodies and common grazing land to be reversed in the original nature.
  • Fencing around the stated water bodies and common grazing land.
  • Quality of water to be maintained throughout the year.
  • Constitution of a committee in order to identify and locate the water bodies of respective jurisdiction. [Kunwar Pal Singh v. State of Uttarakhand,2018 SCC OnLine Utt 545, decided on 13-06-2018]
Case BriefsHigh Courts

Bombay High Court: In an highly structured and ornate decision concerning the deficiencies of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 placed in the form of a PIL, the Division Bench comprising of A.S. Oka and Riyaz.I.Chagla, JJ., have remarkably given the explanation on the objects of enacting the Trees Act, which clearly is a leading path towards the growth of trees rather than the destruction in urban areas.

The focal point of addressing the present PIL was the challenge placed by the petitioners on the validity of the amendment to the Trees Act. The talked about PIL in this case constitutes two petitions and the authorities involved in them are “Municipal Corporation of Greater Mumbai” and “Municipal Corporation of City of Thane”. The challenge in both the petitions is to the sub-section (6) added in Section 8 of the Trees Act and there is a challenge to the constitutional validity of the said provision on the ground of violation of Articles 14 and 21 of the Constitution of India.

The first and foremost submission posed by the petitioners was that in regard to the constitution of the Tree Authority and the kind of mindless decision making process they have adopted towards granting the felling of trees. Her contention is that the entire process is vitiated by illegality due to which they cannot be allowed to function. The next submission was made in regard to the primary challenge of the PIL which concerns sub-section (6) of Section 8, in which she states that, the said provision is arbitrary in nature and has no nexus with the purpose or object sought to be achieved and it certainly violates Article 14 of the Constitution of India. Along with the mentioned contentions, the other concern was that of the violation of a Fundamental Right of citizen under Article 21 of the Constitution of India due to the manner of exercise of power by the Municipal Commissioner under the above mentioned sub-section.

Further, even in the other writ, petitioner posed a similar issue by challenging his submission to sub-section (6) of Section 8 by stating that intelligible differentia is not present for the classification under the said sub-section which clearly carves the vagueness and ambiguity due to complete absence of guidelines.

Noting all the contentions posed by the petitioners and prioritising the issue by issuing various directions towards the alarming issue of decisions being taken for felling of trees by the authorities acting in an arbitrary manner, the Hon’ble High Court of Bombay has taken care of the issues by limiting the powers of the Municipal Commissioner by making the authorities a little more diligent towards the issue of felling of trees and therefore, allowing the citizens to appeal against such decisions. [Rohit Manohar Joshi v. Tree Authority, Thane; PIL No. 119 of 2017, dated 23.04.2018]

Case BriefsHigh Courts

Calcutta High Court: A Bench comprising of Joymalya Bagchi and Rajarshi Bharadwaj, JJ. issued directions for conducting of investigation and/or trial involving cases of murder and/or rape of minor children or other vulnerable victims, due to the investigation done in an extremely callous manner in the present appeal dealing with the murder and rape of a four year child.

The appellant along with her two minor children, was accused of murder and rape. A complaint was filed by the father of the victim stating that his youngest daughter was found missing while she was playing on the roadside before their house and lodged the complaint for the same at Nabadwip Police Station. Further he searched the house of sardar mondal but his wife Reksona bibi @ Eksona Bibi i.e. the appellant and her sons restrained him from doing so.

Later, P.W.2 saw the appellant with a sack and her sons patrolling in front of the house which she dropped off when asked about. The sack contained the dead body of the victim, following which the F.I.R was filed under Sections 376A/377/302/201/120B/34 of the  Penal Code against her minor sons and the appellant.

Learned Counsel on behalf of the appellant stated that the prosecution case is based on circumstantial evidence and has not been proved beyond doubt. Counsel appearing for the State submitted that the stated circumstances of recovering of the dead body from the appellant were also not explained by the appellant, therefore the conviction needs no interference.

Hon’ble Court observed that the most vital witness of the case did not support the prosecution case and was not declared hostile along with which no cross-examination was also conducted, also when asked about the cause of the death of the victim he sated that he is totally unaware about the cause of the death. Therefore, by scrutnising the statement of the witnesses and all the other circumstances, the Court is bound to hold that the prosecution has not been able to prove its case beyond doubt, which leaves no alternative than to acquit the appellant on the anvil of the benefit of doubt, leaving an unpleasant and brooding thought in one’s mind that the crime remains undetected and the offender goes unpunished.

Therefore, to pre-empt the recurrences in future, certain guidelines were issued for conducting investigation:

· Statement of vital witnesses must be recoded under Section 164 Cr.P.C, when any grave offence like murder and /or rape of minor children happens;

· If any vital evidence which is likely to establish guilt and has been seized, then it should be mandatorily be undergone forensic examination;

· Effective witness protection programme should be conducted so that they do not resile from their previous statements;

· A report should be filed by the public prosecutors by reviewing the manner in which the sensistive cases are being conducted to the Directorate of Prosecution, legal Remembrancer and the Principal Secretary, Home Department for their appraisal and guidance.

[Reksona Bibi @ Eksona v. State of W.B., 2017 SCC OnLine Cal 16185, order dated 29-11-2017]