Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023
Source:
https://www.livelaw.in/news-updates/kerala-high-court-motor-vehicle-act-road-accident-notional-income-deceased-child-rs-30000-loss-of-dependency-223334
Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023
Source:
https://www.livelaw.in/news-updates/kerala-high-court-motor-vehicle-act-road-accident-notional-income-deceased-child-rs-30000-loss-of-dependency-223334
Relying on Landmark judgment here, Single bench of AP HC held that,
From Para 6,
Chintakayala Vijay Vs State of AP and Ors on 05 Dec 20226. In the circumstances, this Writ Petition is disposed of directing the respondents herein to strictly comply with the directions of the Hon’ble Supreme Court. This would include the requirement of the respondents uploading all the complaints registered by the respondents on to the website of the police authorities or the website of the State Government, in the absence of any website being maintained by the police authorities. There shall be no order as to costs.
A Court-1 division bench of Uttarakhand High Court passed these directions regarding to handling of plastic solid waste by the producers, importers and sellers in the State.
Order Dt: 07-Jul-2022
From Paras 15-17,
Jitender Yadav Vs Union of India on 07 Jul 202215. We direct the respondent Uttarakhand State Pollution Control Board to state, on affidavit, as to how many manufacturers, brand owners or importers, have registered themselves with the said Board in terms of Rule 13 of the Rules. They should also indicate the particulars of those producers, importers, and brand owners, who have not sought registration and complied with their obligation under the said Rules, and who are manufacturing plastic products/raw materials or are importing into the State, or selling their brand of goods within the State of Uttarakhand, while using non-biodegradable plastic.
16. We also direct that those producers, importers and brand owners, who do not register with the Uttarakhand State Pollution Control Board within the next fifteen days, shall not be permitted to either produce, or import into the State of Uttarakhand, or sell products of their brands, in the State of Uttarakhand, and the State shall ensure that all such products, which are contained in plastic sachets or pouches or packaging, are not permitted to enter the boundary of the State, or sold, in any manner whatsoever. Wide publicity shall be given to these directions by the State, so that all concerned have notice of it.
17. Since the primary responsibility for collection of used multi-layered plastic, sachets, or pouches, or packaging is of the producers, importers and brand owners, and it is their obligation to prepare their plan for collection and to submit the same to the Uttarakhand State Pollution Control Board while applying for consent, the Uttarakhand State Pollution Control Board shall also require all producers, importers and brand owners to strictly comply with this requirement. The affidavit to be filed by the Uttarakhand State Pollution Control Board should also indicate as to how many producers, importers and brand owners have provided the said plans, and those producers, importers and brand owners, who do not provide their plans for collection in the next 15 days, shall not be permitted to either produce, import or sell their brands, in the State of Uttarakhand, in plastic receptacles.
Order Dt: 19-Oct-2022
From Paras 6-9
Jitender Yadav Vs Union of India on 19 Oct 20226. Till date, the Commissioners have not filed their respective affidavits disclosing as to what steps they have taken to monitor the working of the District Magistrates in the discharge of their obligations. What we find from the various affidavits filed before us is that the various authorities, including the State Level Monitoring Committee, have been issuing paper directions to authorities subordinate to them, particularly to the Urban Local Bodies, and the District Magistrates. However, there is no monitoring of the directions being issued, let to find out whether they are being implemented.
7. We make it clear that mere issuance of such directions on paper by the higher authorities cannot be considered as discharge by them of their respective obligations, as it falls on them to ensure that their directions are complied with. It is necessary that the higher authorities monitor the implementation of the directions issued by them, by calling for actual reports, and by undertaking site visits and ground surveys. However, that does not appear to have been resorted to at all. The issues we are confronted with cannot be resolved merely by sitting in a closed office room.
8. We direct the Commissioner, Kumaun and Commissioner, Garhwal, to hit the ground with the respective District Magistrates falling within their respective jurisdiction, and to make ground surveys, town by town and village by village, to ensure that Solid Waste Management is implemented in true letter and spirit. Compliance affidavits shall be filed by the Commissioner, Kumaun and Commissioner, Garhwal before the next date, failing which they shall remain present in Court to explain their non-compliance of our directions.
9. We direct the Registrar (Judicial) of this Court to create an E-mail ID, namely [email protected], which shall be open to the public at large to send their complaints regarding the solid waste, which is collected and not removed in any part of the State, be it within municipal limits, or in rural/forest areas. On the said E-mail ID, only complaints regarding solid waste, of whatever kind, would be entertained. Along with the complaint, the complainant should also upload the photographs to show the collection/ non-disposal of solid waste, clearly identifying its location. The complainant should clearly provide his/her identity and contact details. The complaints, which are received, shall be perused by the Registrar (Judicial) after 05:00 P.M. every day. These complaints shall be printed out, provided they relate to issues regarding solid waste in the State, and not otherwise. The complaints, as received, shall also be forwarded to the respective Commissioners of Kumaun and Garhwal electronically on their respective E-mail IDs, depending on whether the complaint relates to Kumaun or Garhwal region. It shall be the responsibility of the respective Commissioners to then have the complaints actioned. The Commissioners shall revert within two working days of the complaints being forwarded by the Registrar (Judicial) to inform as to what steps have been taken in respect of the complaints so received.
10. We direct the State to circulate the aforesaid Email ID in the entire State by publishing the same in daily newspapers and local Doordarshan channels, and encouraging the people to log their complaints with necessary particulars. All the District Magistrates are also directed to ensure the circulation of the said E-mail ID within their respective districts.
A division bench of Apex Court passed guidelines while disposing the appearance of the petitioners u/s 205 CrPC.
R.Annapurna Vs Ramadugu Anantha Krishna Sastry and Ors on 09 Aug 2000 (IK Ver)7. Consequentially, we quash the order of the High Court dated 3.10.1996. However, we hasten to add that this order of ours is passed without prejudice to the right of the respondents to move the trial court for discharge. We are disposed to afford some more reliefs to the respondents. We notice that among the respondent some of them are ladies. So, if any of the respondents would apply before the trial court for exempting them from personal appearance the trial court shall exempt them from personal appearance on the following conditions:
1. He or she would not dispute his or her identity as the particular accused mentioned in the charge sheet.
2. A counsel on their behalf would be present in the court whenever the case is taken up.
3. They would be present in the court on the date when such presence becomes imperatively needed.
Citations: [2000 ACR SC 3 2522], [2000 JT SC 10 479], [2002 SCC 10 401], [2001 AIR SC 0 2308], [2001 AIR SCW 2308]
Other Sources:
https://indiankanoon.org/doc/1021734/
https://www.casemine.com/judgement/in/5609ad69e4b014971141155c
https://legaldata.in/court/read/803964
https://www.courtkutchehry.com/Judgement/Search/t/301443-r-annapurna-vs-ramadugu-anantha
Index here.
A Full Bench of the Apex Court held as follows regarding a query, whether a PoA Holder can file a complaint u/s 200 CrPC in a NI Act case.
From Para 26,
A.C.Narayanan Vs State of Maharashtra and Anr on 13 Sep 201326) While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner:
(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint.
However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.
(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.
Citations: [2014 ALT CRL AP 1 44], [2013 SCALE 11 360], [2013 KERLT 4 21], [2014 AIR SC 630], [2014 CALLT SC 1 53], [2014 PLJR 1 216], [2013 OLR 2 884], [2013 BC 4 212], [2013 CTC 5 560], [2014 SCC 11 790], [2013 CLA SC 117 4], [2013 COMPCAS SC 180 258], [2014 AKR 1 314], [2013 KLJ 4 279], [2014 LW 1 698], [2013 PLR 4 733], [2013 NCC 2 854], [2014 ALD CRL SC 1 649], [2013 KHC 3 885], [2013 WLN SC 4 25], [2013 ALLCC 83 583], [2014 LW CRL 1 154], [2014 SCC CIV 4 343], [2013 SUPREME 6 705], [2014 CRLJ SC 576], [2013 AIOL 611], [2013 JT 12 524], [2013 SLT 8 133], [2014 DCR SC 1 135], [2013 SCC ONLINE SC 839], [2013 AIC 131 160], [2014 ECRN 1 486], [2013 BOMCR CRI SC 4 307], [2013 JCC NI SC 4 214], [2013 RCR CIVIL SC 4 382], [2014 JLJR SC 1 48], [2013 BOMCR SC 6 424], [2013 RCR CRIMINAL SC 4 306], [2013 ALLMR CRI SC 4048], [2013 MLJ CRL 4 213]
Other Sources:
https://indiankanoon.org/doc/47858029/
https://www.casemine.com/judgement/in/5609af2ae4b0149711415b31
https://www.legalauthority.in/judgement/a-c-narayanan-vs-state-of-maharashtra-4779
A single judge at Allahabad High Court, held as follows:
From Para 34,
Waseem Vs State of UP and Anr on 30 Aug 2022In paragraph No. 4 of the affidavit, it is mentioned that a meeting was convened on 26.8.2022 under the Chairmanship of Additional Chief Secretary (Home), Government of Uttar Pradesh, Lucknow, which was attended by Mr. B.D. Paulson, Secretary, Home Department, Government of U.P. Lucknow, Mr. Tarun Gauba, Secretary Home Department, Government of Uttar Pradesh, Lucknow, Mr. M.K. Bashal, Additional Director General of Police (Crime), U.P. Lucknow, Mr. Prem Prakash, Additional Director General of Police, Prayagraj Zone, Prayagraj (through video conferencing), Mr. Amit Pathak, Deputy Inspector General of Police (Public Grievance) DGP Headquarters, U.P. Lucknow, Mr. Rakesh Kumar Malpani, Special Secretary, Home Department, Dr. A.K. Singh, Special Secretary, Home Department, Mr. Shiv Kumar Pal, Government Advocate, High Court, Allahabad (through video conferencing), Mr. M.C. Chaturvedi, Additional Advocate General, High Court, Allahabad (through video conferencing) and Mr. Ashish Singh, Senior Prosecuting Officer and after due deliberation, following decisions were taken:
(i) Postmortem and injury reports must be typed out and made easily legible and practice of handwritten reports be discontinued.
(ii) During the postmortem examination, there should be DNA and fingerprint sampling and necessary software must be developed for this purpose.
(iii) In cases of gunshot injuries, instead of full body xray, the x-ray should be of the area where the wound is located. However, in such cases where the wound of entry or exit is not apparent, the need of taking x-ray be made mandatory.
(iv) During postmortem examination, the injuries on the dead body should be photographed in colour to highlight the same.
(v) An index be prepared to be appended with each case diary, which is submitted before the Prosecutor/Hon’ble Judges. It should be explored if necessary facility can be provided through CCTNS software.
(vi) A synopsis be prepared of the contents of the report containing the opinion of the investigating officer as encapsulated in the report under Section 173(2) Cr.P.C. An index should also be prepared for convenient perusal and reference. This synopsis be a part of the report under Section 173(2) Cr.P.C.
(vii) The importance of the role of the supervisory officer be emphasized and that the said officer should not function only as a post office. Every investigation must be scrutinized in a microscopic manner and any lacuna or lapse must be pointed out to the investigating officer. Provisions should also be made for training the investigating officer on a regular basis.
(viii) Senior Supervisory Officers must submit the report submitted by the police under Section 173(2) Cr.P.C expeditiously and not hold it back in their custody needlessly. In this context, a letter dated 05.05.2016 had already been issued by the Director General of Police, U.P. Lucknow.
(ix) Before ordering further investigation under Section 173(8), it is desirable to seek permission/give information to the concerned learned court, but the necessity of this step be examined in the light of the relevant and applicable statutory provisions and the judgements and observations passed by Hon’ble Apex Court and Hon’ble High Court. In all cases where the statements of witnesses are recorded using audio/video mode, the relevant material be made part of the case diary by means of compact disc/pen drive.
(x) The font size used for preparing the case diary be increased to a size, which would facilitate easy and legible perusal of the same. For this purpose, the cooperation of NIC be sought to implement the increase in font-size in the records, uploaded on the CCTNS.
(xi) The strict adherence be ensured to the statutory provisions encapsulated in Section 65B IPC and that investigating officer be trained to adopt a sensitive approach in these matters.
(xii) It was emphasized that proper directions be imparted to supervisory officers to ensure that they perform their duty efficiently and diligently. It was informed by the Additional Director General of Police (crime) that in all districts (pan state) training was being imparted in orderly room and by crime meetings. The Additional Chief Secretary (Home), Government of U.P., Lucknow issued directions that action be initiated against those investigating officer who displayed negligence in discharging their duties and thereby impair fair and proper investigation.
(xiii) In every district, the Joint Director (Prosecution) should head a legal cell, which should be established with the aim to educate all investigating officers with the latest amendments in criminal law and the judgements passed by the Hon’ble Apex Court and Hon’ble High Court.
(xiv) Lastly, it was decided that the necessary government order/circular/road-map, which was to be issued covered a vast range and the support and cooperation of technical and other departments was required.
A division bench of Apex Court held as follows:
From Para 10,
10. The judgment of the Division Bench of the High Court of Himachal Pradesh is incomprehensible. This Court in appeal found it difficult to navigate through the maze of incomprehensible language in the decision of the High Court. A litigant for whom the judgment is primarily meant would be placed in an even more difficult position. Untrained in the law, the litigant is confronted with language which is not heard, written or spoken in contemporary expression. Language of the kind in a judgment defeats the purpose of judicial writing. Judgment writing of the genre before us in appeal detracts from the efficacy of the judicial process. The purpose of judicial writing is not to confuse or confound the reader behind the veneer of complex language. The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges. Judgments of the High Courts and the Supreme Court also serve as precedents to guide future benches. A judgment must make sense to those whose lives and affairs are affected by the outcome of the case. While a judgment is read by those as well who have training in the law, they do not represent the entire universe of discourse. Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded.
11. We are constrained to remit the proceedings back to the High Court for consideration afresh. The judgment of the High Court is simply incomprehensible leaving this Court with no option than to remand the proceedings. The High Court must appreciate the delay and expense occasioned as a consequence and must make an effort to record reasons which are understood by all stake-holders.
From Para 13,
13. Amidst an overburdened judicial docket, a view is sometimes voiced that parties are concerned with the outcome and little else. This view proceeds on the basis that parties value the outcome and not the reasoning which constitutes the foundation. This view undervalues the importance of the judicial function and of the reasons which are critical to it. The work of a judge cannot be reduced to a statistic about the disposal of a case. Every judgment is an incremental step towards consolidation and change. In adhering to precedent, the judgment reflects a commitment to protecting legal principle. This imparts certainty to the law. Each judgment is hence a brick in the consolidation of the fundamental precepts on which a legal order is based. But in incremental steps a judgment addresses the need to evolve and to transform by addressing critical issues which confront human existence. Courts are as much engaged in the slow yet not so silent process of bringing about a social transformation. How good or deficient they are in that quest is tested by the quality of the reasons as much as by the manner in which the judicial process is structured.
From Paras 16, 17 and 18,
16. A judgment culminates in a conclusion. But its content represents the basis for the conclusion. A judgment is hence a manifestation of reason. The reasons provide the basis of the view which the decision maker has espoused, of the balances which have been drawn. That is why reasons are crucial to the legitimacy of a judge’s work. They provide an insight into judicial analysis, explaining to the reader why what is written has been written. The reasons, as much as the final conclusion, are open to scrutiny. A judgment is written primarily for the parties in a forensic contest. The scrutiny is first and foremost by the person for whom the decision is meant – the conflicting parties before the court. At a secondary level, reasons furnish the basis for challenging a judicial outcome in a higher forum. The validity of the decision is tested by the underlying content and reasons. But there is more. Equally significant is the fact that a judgment speaks to the present and to the future. Judicial outcomes taken singularly or in combination have an impact upon human lives. Hence, a judgment is amenable to wider critique and scrutiny, going beyond the immediate contest in a courtroom. Citizens, researchers and journalists continuously evaluate the work of courts as public institutions committed to governance under law. Judgment writing is hence a critical instrument in fostering the rule of law and in curbing rule by the law.
17. Judgment writing is a layered exercise. In one layer, a judgment addresses the concerns and arguments of parties to a forensic contest. In another layer, a judgment addresses stake-holders beyond the conflict. It speaks to those in society who are impacted by the discourse. In the layered formulation of analysis, a judgment speaks to the present and to the future. Whether or not the writer of a judgment envisions it, the written product remains for the future, representing another incremental step in societal dialogue. If a judgment does not measure up, it can be critiqued and criticized. Behind the layers of reason is the vision of the adjudicator over the values which a just society must embody and defend. In a constitutional framework, these values have to be grounded in the Constitution. The reasons which a judge furnishes provides a window – an insight – into the work of the court in espousing these values as an integral element of the judicial function.
18. Many judgments do decide complex questions of law and of fact. Brevity is an unwitting victim of an overburdened judiciary. It is also becoming a victim of the cut-copy-paste convenience afforded by software developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence. Introduced and popularized in judgment writing by Lord Denning, this development has been replicated across jurisdictions.
From Paras 20, 21, 22, 23 and 24,
20. It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility of the judgments. A Table of Contents in a longer version assists access to the reader.
21. On the note of accessibility, the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis. All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them. On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.
22. In terms of structuring judgments, it would be beneficial for courts to structure them in a manner such that the “Issue, Rule, Application and Conclusion‟ are easily identifiable. The well-renowned “IRAC‟ method generally followed for analyzing cases and structuring submissions can also benefit judgments when it is complemented by recording the facts and submissions.
23. The “Issue” refers to the question of law that the court is deciding. A court may be dealing with multiple issues in the same judgment. Identifying these issues clearly helps structure the judgment and provides clarity for the reader on the specific issue of law being decided in a particular segment of a judgment. The „Rule‟ refers to the portion of the judgment which distils the submissions of counsel on the applicable law and doctrine for the issue identified. This rule is applied to the facts of the case in which the issue has arisen. The analysis recording the reasoning of a court forms the “Application‟ section.
24. Finally, it is always useful for a court to summarize and lay out the “Conclusion‟ on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts. This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case.
Finally from Para 27,
State Bank of India and Anr Vs Ajay Kumar Sood on 16 Aug 202227. While we have laid down some broad guidelines, individual judges can indeed have different ways of writing judgments and continue to have variations in their styles of expression. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles.
A single judge bench of Telangana High Court passed note-worthy guidelines in disposing Domestic Violence cases.
From Paras 6 and 7,
6. The Protection of Women from Domestic Violence Act, 2005 is a legislation enacted to shield the rights of women which are enshrined and guaranteed under the Constitution of India, besides paving way to deal with the matters connected to and arising out of the family disputes in an effective and efficacious manner.
7. When the provisions contained in the said legislation i.e., The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act of 2005”, for brevity) are looked into, it is very clear that the proceedings that would be conducted are more civil in nature. The protection orders that would be granted under Section 18, the residence orders that would be granted under Section 19, the monetary reliefs that would be granted under Section 20, the custody orders that would be granted under Section 21 and the compensation orders that would be granted under Section 22, would be based on the applications that would be filed by the aggrieved persons, the domestic incident reports and the defence taken by the respondents therein. All those proceedings are civil in nature. No doubt, Section 28 (1) of the Act of 2005 lays down that the proceedings shall be governed by the provisions of Code of Criminal Procedure. However, it is specifically mentioned under Section 28(2) of the Act of 2005 that the Court is empowered to lay down its own procedure for disposal of the applications filed by the aggrieved persons or the Protection Officers. May be due to the fact that the power to deal with the domestic violence cases is given to the Magistrate, the litigant public are under the impression that the proceedings initiated under the Act of 2005 are purely criminal in nature.
Guidelines passed in Paras 12 and 13,
P Parvathi Vs Pathloth Mangamma on 7 Jul 202212. It is brought to the notice of this Court by the learned Assistant Public Prosecutor that number of Criminal Petitions are filed before the High Court seeking to quash the proceedings in domestic violence cases, only because the trial Courts are insisting the physical attendance of the respondents in those cases for each and every adjournment.
13. Therefore, before parting with the case, this Court considers it desirable to lay down certain guidelines for the Courts of Judicial Magistrate of First Class, which are empowered to deal with the domestic violence cases, to follow so that the parties would not rush to the High Court.
(1)The Courts of Judicial Magistrate of First Class which are dealing with the cases filed seeking various kinds of reliefs as laid down under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 should take note of the fact that the proceedings therein are more civil in nature.
(2)When the aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person presents an application seeking one or more reliefs that are enshrined under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005, upon service of notice as required under Section 13 of the said Act and upon making appearance by the opposite party i.e., respondents therein either in person or through their counsel, the Court shall not insist for their personal appearance for each and every adjournment.
(3)The Courts dealing with the cases under the Protection of Women from Domestic Violence Act, 2005 shall not even insist for filing an application under Section 317 Cr.P.C.
(4)The persons against whom the applications are filed seeking relief in domestic violence cases i.e., the respondents, however, shall appear in person if a specific direction is given for their personal appearance by the Court during the course of proceedings.
(5)The points enumerated above does not however apply during the course of proceedings that are conducted under Section 31 of the Protection of Women from Domestic Violence Act, 2005.
(6) Last but most important is that the Courts of Judicial Magistrate of First Class which are empowered to deal with the matters under the Protection of Women from Domestic Violence Act, 2005 shall make all endeavour to dispose of the applications filed for grant of various reliefs that are provided under Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 within a period of sixty (60) days from the date of first hearing, as required under Section 12(5) of the said Act.
Connects to a PIL here.
A single judge bench of Kerala High Court held as follows:
From Para 13,
13. I do not propose to go into the details of this case any further because, through the various interim orders already issued, the petitioner has
obtained relief – including DNA analysis of the foetus she was carrying, under the provisions of the Code of Criminal Procedure (Cr.PC). In fact, the learned counsel for the petitioner – Sri.Dheeraj Rajan, affirmed that no specific orders are now required and that a Final Report has also been filed by the Police.
From Para 14, (Invitation for views)
14. However, the trauma, which the petitioner has experienced and which may be forced upon victims in future, makes this Court to think in terms of having a Protocol for the purpose of empowerment of the victim – being gender neutral – to approach the law enforcement agencies and obtain succor and support in the initial stages of extreme fear, terror and despondency faced.
15. With the afore intent, I threw open discussions in this matter to the Bar, calling for suggestions from anyone who is interested in addressing this Court; and am glad that I did so because, I have had the benefit of the views and inputs from very eminent lawyers, both senior and junior.
16. The principles and imperative requirements of ‘Victim Protection Protocols’ are inexorably attracted whenever a sexual assault occurs; and I, therefore, requested the learned counsel appearing for the parties and who are assisting this Court upon the aforementioned invitation, as also the
learned Special Government Pleader – Smt.Ambika Devi, to offer their suggestions.
From Para 32, (Protocols follow)
XXX Vs State of Kerala and Ors on 05 July 2022Consequently, I order this writ petition, directing that protocols below are scrupulously followed in the case of a complaint regarding sexual attack or child abuse without exception:
a) The Government will, in addition to the steps taken earlier by it, continually publicize the Toll Free Number ‘112’ as an Emergency Support System to be known to every citizen, so that the victim of a child abuse or sexual assault can access it whenever required.
b) Every victim of sexual assault and child abuse must be encouraged to access the afore Toll Free Number or the Police Control Room Number ‘100’; and on such intimation being received, it will be fed into a digital system, to be then brought to the notice of the jurisdictional Police Station, for necessary steps under Section 154 of the Cr.P.C. In this regard, I record the undertaking of the State that a system as afore has already been put in place under the Emergency Response Support System (ERSS) Project.
c) This Court records the further undertaking of the State that calls made to the aforementioned Toll Free Numbers of ‘112’ and ‘100’ will only be
attended and responded to by well sensitized and trained personnel, who will make sure that the victim is given sufficient support from the inception, until the time she/he requires it thereafter.
d) On intimation of a sexual assault or child abuse being received by the afore Toll Free Numbers, the Police Control Room or the jurisdictional Police Station, will take immediate steps to contact the victim either personally or through phone without, however, summoning him/her to the Police Station.
e) While taking the statement of the victim, mandatory provisions of Section 157(1) of the Cr.P.C., namely, that same be recorded at his/her
residence or in the place of his/her choice and as far as practical, by a Police Officer in the presence of his/her parents/guardian/near relatives or social worker, shall be scrupulously complied with.
f) On the FIR being so registered, the investigating officer will forthwith assign a ‘Victim Liaison Officer’ in terms of the applicable circulars issued by the State Police Chief, who shall then contact the victim immediately so that he/she will feel safe and protected, being sure of such support.
(g) Simultaneous to the registration of the FIR or at the time when the Victim Liaison Officer is so assigned, the investigating Officer will disclose to the victim the numbers of the ‘One Stop Crisis Centre’ and that of the ‘VRC’, so that they can involve themselves and ensure that the victim suffers no further traumatisation and obtains the best psychological support and succor which, indubitably, is the sine qua non for the reparatory process of the victim’s psychological trauma.
(h) The Authorities concerned will ensure that the victim has constant access to the Victim Liaison Officer and to the ‘One Stop Crisis Centre/VRC’, as the case may be; and that this is made available 24 hours a day, at any time the victim requires it during his/her most difficult times.
(i) The ‘One Stop Crisis Centre’/’VRC’ is directed to offer not merely psychological assistance to the victim, but also legal support as may be required and will actively promote his/her return to normal life, through every possible facilitation as may be warranted. This shall continue as long as the victim requires, or until such time as the trial is completed.
(j) It is further ordered that the victim Liaison Officer (VLO), as also the ‘One Stop Crisis Centre’/’VRC’, shall make available every assistance necessary to the victim for the processes under Section 164A of the Cr.PC, and must actively guide and instruct, advising her/him of her/his rights under it, thus being able to exercise it diligently and with confidence.
The afore are, of course, not exhaustive; and I, therefore, leave liberty to any person, including the learned counsel for the parties or the members of the Bar, to seek any clarification from this Court, if so found necessary; in which event, more effective protocols for victim protection can certainly be thought of and incorporated.
A division bench of Supreme Court held as follows,
From Para 15,
15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn.
Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
(See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72).
From Para 19,
Commissioner of Income Tax and Ors Vs Chhabil Dass Agarwal on 8 Aug 201319. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
Citations : [2013 AD SC 8 620], [2013 CTR SC 261 113], [2013 ITR SC 357], [2013 JLJR 4 35], [2013 JT SC 11 387], [2013 PLJR 4 179], [2013 SCALE 10 326], [2014 SCC 1 603], [2013 TAXMAN SC 217 143], [2013 SCC ONLINE SC 717], [2013 TAXMANNCOM SC 36]
Other Sources :
https://indiankanoon.org/doc/51987756/
https://www.casemine.com/judgement/in/5609af2ce4b0149711415ba2
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