A division bench of Karnataka High Court said, provide body cameras to all officers conducting arrests so that a record of the arrest may be made. Also ordered compensation be paid for hand cuffing the accused.
Tag: 2-Judge (Division) Bench Decision
Gopika Jayan and Anr Vs Faisal on 22 Jun 2022
A division bench of Kerala High Court, issued notices to Police and Judicial officers, in a Contempt Case against them.
From Para 1,
1. The afore captioned Contempt of Court case has been instituted alleging patent and flagrant violation of the directives and guidelines issued by the Apex Court in the Celebrated case Arnesh Kumar Vs. State of Bihar (2014(8) SCC 273)=2014 (3) KLJ 330.
From Para 6,
The case papers produced in this contempt petition do not show any application of mind. On the other hand, Annexure A1 FIR and Annexure A8 FIS were registered on 21.01.2022 at 8 pm on the premise of a mere man missing report in regard to the first petitioner. No allegation of deliberate abandonment or desertion of the child has been made even in Annexure A8 email. It was later that false allegations were raised that the first petitioner had deliberately abandoned the child and the respondent Police Officer has without any application of mind and without satisfying himself on the basis of any objective enquiry has sought for the arrest and remand of the petitioners. When the petitioners were called to the Police Station,
they were on the bonafide belief that the FIR was registered only as a man missing report under Section 57 of the Kerala Police Act. The respondent Police Officer had never properly apprised the petitioners that the offence has been duly altered and the records do not show as to how the respondent Police Officer was satisfied that the case involves deliberate and premeditated abandoning of the child in the facts and circumstances of this case. Further, neither the mother of the first petitioner, nor the Police authorities have any case that the 1st petitioner has at any prior point of time abandoned the child on any previous occasion. From the abovesaid aspects apprised to us by the learned Counsel for the petitioners, we see that a 22 year old young working lady and her colleague have been arrested and remanded at the instance of the respondent Officer. Prima facie, we would also observe in the same breadth that though, the first petitioner had given a statement before the learned Magistrate in terms of Annexure A6, the learned Magistrate has not taken into consideration those aspects regarding the harassment said to have been meted out to her by her so called step father and has not cared to make any proper satisfaction as to whether the case of deliberate and premeditated abandonment of the child is made out. This we say so in view of the first proviso to Section 75 of the JJ Act. Direction no.8 in Paragraph 14 of Arnesh Kumar’s case (supra) would also concede that authorizing detention without recording proper reasons as aforesaid by the Judicial Magistrate concerned shall also be liable for Departmental action by the appropriate High Court etc. It is by now, well established as an elementary proposition of criminal jurisprudence as can be seen from a reading of Arnesh Kumar’s case (supra), D.K.Basu Vs. State of West Bengal, [AIR 1997 SC 610], as well as Jogindar Kumar V. State of UP & Ors. [(1994) 4 SCC 260], that no arrest can be made merely because it is lawful for the Police Officer to do so and the existence of the power to arrest is one thing and justification of the exercise of it is quite another and no arrest shall be made without reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief that both as per the person’s complicity and even as to the necessity to arrest that person and denial of liberty is a serious matter, etc. These aspects of the matter have also been referred to in the celebrated decisions of the Apex Court in D.K. Basu’s case [AIR 1997 SC 610] and Joginder Kumar Vs. State of UP [AIR 1994 SC 1349].
From Para 8, Conclusion.
8. Accordingly, it is ordered that the Contempt of Court case will stand admitted. Issue notice to the respondent Officer, which shall be served on him through the Commissioner of Police, KochiCity. In case the respondent Officer is not available in the abovesaid address, then notice process shall be duly completed by affixture, in the presence of witnesses and report in that regard shall be duly given to this Court within three days.
From Para 9,
9. The Registrar General will forthwith call for a report from the learned Judicial First Class Magistrate, who has rendered Annexure A7 remand order dated 03.02.2022 on Crime No.44/2022 of Elamakkara Police Station, Ernakulam, as to how he could reach reasonable satisfaction, based on the parameters laid down by the Apex Court in the aforesaid decisions and the applicable legal principles and as to why the arrest and remand of both these accused persons was highly imperative. So also, it shall be explained as to how he has ordered that A1 (1st petitioner) is remanded to the District Jail, Kakkanad and A2 (2nd petitioner) is remanded to the Judicial custody to Borstal School, Kakkanad.
10. The Registrar General will forward a copy of the memorandum of this Contempt Petition with all the Annexures thereto as well as the additional documents to the learned Magistrate, who shall submit his explanation within two weeks from the date of receipt of a communication in that regard by the Registrar General.
Vishnu Kumar Tiwari Vs State of Uttar Pradesh on 09 Jul 2019
A division bench of the Apex Court held as follows:
From Paras 41 and 42,
41. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.
42. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition.
From Para 45,
45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.
Citations :
Other Sources :
https://indiankanoon.org/doc/80081494/
https://www.lawyerservices.in/Vishnu-Kumar-Tiwari-Versus-State-of-Uttar-Pradesh-and-Others-2019-07-09
Ms New Era Fabrics Ltd Vs Bhanumati Keshrichand Jhaveri and Ors on 03 Mar 2020
Supreme Court , based on Madras HC Advocates Association decision here, initiated Perjury proceedings.
5.3 We do not wish to comment in detail upon the intention behind making the aforesaid interpolations. At this juncture, all that is required to be assessed is whether a prima facie case is made out that there is a reasonable likelihood that the offence specified in Section 340 read with Section 195(1)(b) of the CrPC has been committed, and it is expedient in the interest of justice to take action. From the above discussion, it is evident that the handwritten modification made by the Petitioner in Column 12 of the balance sheet dated 19.09.2008 is a significant alteration from the terms as used in the original document. Hence we find that a prima facie case is made out that the Petitioner has fabricated evidence for the purpose of the SLP proceedings before this Court.
We further find that prima facie case is also made out against Mr. R.K. Agarwal, for having sworn in his affidavit before this Court as to the veracity of the facts stated and documents filed in SLP (Civil) No. 3309/2018, even though he had relied upon the original auditor’s report, which did not contain any handwritten interpolation, in his evidence before the Trial Court.
Swaran Singh Vs State of Punjab on 26 Apr 2000
From the decision of the division bench of Supreme Court, this is the concurring opinion of Justice D.P. Wadhwa. Wonderful, indeed!
D.P Wadhwa, J. (concurring)— I agree with the judgment pronounced by my noble and learned sister Ruma Pal, J. I, however, wish to add a few lines.
35. The first information report was lodged within 2-1/2 hours of the occurrence and the case registered against four persons, namely, Shamsher Singh, Jagjit Singh, Amrik Singh and Mittar Pal Singh alias Lovely. These four accused were named in the FIR. While Shamsher Singh surrendered a day following the lodging of the FIR, no steps were taken to apprehend the other named accused. The case was not only investigated by Sub-Inspector Karnail Singh, SHO of the police station concerned but also by Mohinder Singh, DSP, Baldev Sharma, DSP, Sanjeev Gupta, SP (Detective) and B.P Tiwari, DIG (Crime). When challan was put up, it was only against Shamsher Singh. A criminal complaint was filed by the complainant and all the accused were committed to stand their trial in the Court of Session for various offences. In the course of the trial, more than 50 prosecution witnesses were given up having been won over and the case hinged on the statements of seven witnesses which led to the conviction of Shamsher Singh and Jagjit Singh by the trial court, upheld by the High Court and now affirmed by this Court. The questions that arise for consideration are as to why the police did not challan the accused Jagjit Singh and why over 50 witnesses should have been given up. It only shows that the criminal justice system is in doldrums. There has to be honest investigation uninfluenced by any political or other pressure.
36. A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that, witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter is adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the courts, district courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trail. Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.
Citations : [2000 ACR SC 2 1648], [2000 AIR SC 2017], [2000 CRI LJ 2780], [2000 JT SC 6 623], [2000 RCR CRIMINAL 2 762], [2000 SCALE 4 153], [2000 SCC 5 668], [2001 SCC CRI 190], [2000 CRLJ 0 2780], [2001 SCC CR 0 190], [2000 AIR SC 1895], [2000 CRIMES SC 3 12], [2000 SUPREME 4 364], [2000 CRLJ 106 2780], [2000 CCR 2 149], [2000 SLT 4 138], [2000 SRJ 5 487], [2000 JCC SC 2 694], [2000 JT 6 623], [2000 CRIMES 3 12], [2000 RECENTCR 2 762], [2000 AIR SCW 1895], [2000 CRILJ 2780]
Other Sources :
https://indiankanoon.org/doc/489802/
https://www.casemine.com/judgement/in/5609ad6ae4b0149711411587
V.Sadagopan Vs Union of India and Ors on 21 Jun 2022
A division bench of Madras High Court held as follows:
4. In view of the above, it is clear that the writ petition is filed by the individual having no locus to challenge the validity of the Rule and he is not affected, rather if anyone is affected it is the educational institution. Hence, the writ petition deserves to be dismissed on the ground of locus as it is not otherwise a Public Interest Litigation.
Taking delay as ground:
5. That apart, the writ petition has been filed after a lapse of around 12 years to challenge the Rule brought in the year 2010. If it was affecting the educational institution, it is from the date of bringing the Rules. No justification for the delay in challenging the Rule has been given in the writ petition. Thus, the writ petition suffers from laches as well.
Sanjay Vs The State (NCT of Delhi) and Anr on 20 Jun 2022
A division bench of Apex Court held as follows:
We are of the considered view that in a matter involving personal liberty, the Court is expected to pass orders in one way or other taking into account the merits of the matter at the earliest. At any rate, posting an application for anticipatory bail after a couple of months cannot be appreciated.
We request the High Court to dispose of the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. If the main application could not be disposed of, for any reason, within the stipulated time, relief sought for in the interlocutory application shall be considered on its own merits. Till such time, we grant interim protection from arrest to the petitioner herein.
Elizabeth Dinshaw Vs Arvand M.Dinshaw and Anr on 11 Nov 1986
The Division Bench of the Apex Court held as follows (in regards to Custody of Children):
8. Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child’s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present.
Comity of Courts:
9. In Re H. (infants)1 the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural-born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer, L.J while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J.‡:
“The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.”
10. With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this.
Citations : [1987 SCC 1 42], [1987 SCR 1 175], [1987 CRIMES SC 1 71], [1986 SCALE 2 745], [1987 AIR SC 3], [1986 JT 1 795], [1987 SCC CRI 13]
Other Sources :
https://indiankanoon.org/doc/271434/
https://www.casemine.com/judgement/in/5609ac23e4b014971140e22f
Union of India and Ors Vs MS J.K.Mittal and Co and Ors on 28 Mar 2018
Supreme Court allowed the transfer petitions of UOI praying to transfer two case pending before High Courts of Delhi and Chhattisgarh.
Here is the earlier order, staying operation of the further proceedings in above pending Writs before High Courts of Delhi and Chhattisgarh.
State of Jharkhand and Anr Vs Govind Singh on 3 Dec 2004
A division bench of Apex Court held as follows:
10. When the words of a statute are clear, plain or unambiguous i.e they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. (See J.P Bansal v. State of Rajasthan 2003 5 SCC 134.)
11. As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As was noted by the Privy Council in Crawford v. Spooner 1846 6 Moo PC 1:
“We cannot aid the legislature’s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there.”
The view was reiterated by this Court in State of M.P v. G.S Dall and Flour Mills AIR 1991 SC 772 and State of Gujarat v. Dilipbhai Nathjibhai Patel JT 1998 2 SC 253. Speaking briefly, the court cannot reframe the legislation, as noted in J.P Bansal case for the very good reason that it has no power to legislate.
12. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis of the legislature.
13. Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the “language” is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making.
Citations : [2005 SCC CRI 1570], [2004 SCALE 10 174], [2005 CRIMES SC 1 49], [2005 AIR SC 294], [2005 SUPREME 1 477], [2005 SCC 10 437], [2004 JT SC 10 349]
Other Sources :
https://indiankanoon.org/doc/1029488/
https://www.casemine.com/judgement/in/5609ae07e4b0149711412c03
