AUGUST MEHTA V. THE STATE OF JHARKHAND

[Cr. Rev.No. 1081 of 2013]

Recently the High Court of Jharkhand in the present case held that the 2018 Judgment of SCon quashing of adultery which was punishable under IPC to have a retrospective application.

The Court in the present petition set aside the order of the conviction. The court making such an order laid an emphasis on the Judgment passed in the case of Major General AS Gauraya and ANs v. SN Thakur, in which the court held that the SC’s judgment in 2018 will apply to pending proceedings for an offence committed before such an order.

Facts of the Case:

In the present case, the petitioner was convicted under section 497 for an offence of adultery and was sentenced by the Trial Court in 2008 with the rigorous imprisonment for two years. Later on, the session court confirmed the sentence passed by the trial court in October 2013. Against the order of the sessions court, the petitioner has filed the petition before the High Court of Jharkhand.

Stance of the Petitioner:

The Petitioner through its counsel submitted that the Hon’ble Supreme Court in the case of Joseph Shine v. Union of India, held that section 497 of IPC, 1860 to beunconstitutional, therefore the judgment of the Session Court for the conviction of the petitioner is not maintainable under the present law. The petitioners also referred to the case of Rupesh v.Shri Charandas, in which Bombay High Court Judgment observed the case of Joseph Shine and the conviction of the accused was set aside.

Stance of the State:

The counsel on behalf of the State, opposed the prayer of setting aside the conviction order, submitted that there is no denial that current position about the section 497 ofIPC, however, the judgments passed by the Hon’ble Courts were recorded on concurrent finding of the facts, therefore no interference should be called in the present case.

Finding of the Court:

The Jharkhand High Court, referring to the Supreme Court Judgment of quashing adultery as under section 497 of the Indian Penal Code, held that such an order will also be applied to the pending proceedings before the courts even if an act of adultery was committed prior to 2018 judgment to stuck downthe section. Therefore, the verdict of the SC will haveretrospectiveapplication. The HC also emphasized that neither SC had givenany indication in the verdict for it to be applied prospectively and nor any prospective operation of law was laid down.While passing such an order, Justice Anubha Rawat Choudhary, observed that according to the Article 14 of the Constitution of India, any law which is formed or declared by the Hon’bleSupreme Court has a binding nature on all the lower courts andtherefore, it needs to be applied to all the pending proceedings before the courtS

Anticipatory Bail invalid under Sec.438 of CRPC for Juveniles

In the case of Mohammad Bin Ziyad v State of Telangana, the court held that Anticipatory Bail Application by juvenile under Section 438 of Criminal Procedure Code is not maintainable. A writ petition was filed in the Telangana High Court to declare the action of respondents for not releasing the petitioner on bail in the event of his arrest as illegal and contrary to Section 12 of the Juvenile Justice Act, 2015 (JJ Act, 2015).Referring to the said objections, Mr. M.A. Mujeeb, learned counsel for the petitioner submitted that writ petition is maintainable as the JJ Act, 2015 is silent with regard to anticipatory bail. He placed reliance on the principle laid down in KishanKumar v. State ofHaryana for his contention.The counsel for the respondent addressed this issue by stating that there is no provision in the JJ Act, 2015 to grant anticipatory bail to a juvenile. The provisions of JJ Act, 2015 are more liberal than CrPC with regards to granting bail and therefore the petitioner has to avail remedy under Section 12 of the JJ Act, 2015.Section 12 of the JJ Act, 2015 deals with bail to a juvenile. Sections 437 and 439 of Cr.P.C. and Sections 8, 10 and 12 of the JJ Act, 2015 would prima facie support the view that power in respect of grant of bail to a juvenile is more liberal in the nature of command under Section 12 (1) of the JJ Act, 2015.The objects and reasons of the JJ Act, 2015 are “…and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration”. The provisions of the Constitution confer powers and impose duties on the citizens under Articles – 15 (3), 39 (e), 45 and 47 on the State to ensure that all of the needs of children are met and that their basic human rights are fully protected.The Court stated that “Section 12 of the JJ Act, 2015 provides for overriding effect due to use of non-obstante clause, therefore, the post arrest bail of juvenile in conflict with law is required to be dealt with under the special provision contained in Section 12 of the Act of 2015 and would exclude operation of Section 437 or Section 439 of Cr.P.C.”The Court relied on the judgement in K. Vignesh v. State wherein it was held that an application seeking anticipatory bail under Section 438 of Cr.P.C. at the instance of a child in conflict with law is not maintainable. Similarly a direction to the Juvenile Justice Board to release the child in conflict with law cannot be issued by the High Court in exercise of its inherent power saved under Section 482 of Cr.P.C.”The writ petition was dismissed.

Rajnesh vs Neha and Anr., Criminal Appeal No. 730 of 2020

Facts: This present criminal appeal arises out of Interim Maintenance Petition filed u/s 125 Cr.P.C. by the respondent wife Neha. The wife left her matrimonial home in January 2013 after the birth of the son who is also a respondent in this appeal. She has filed an application for interim maintenance on behalf of herself and her minor son. The family court gave an order that an interim maintenance of Rs. 15,000/- will be given to the RespondentNo.1 i.e. the wife, per month from 01.09.2013, and Rs. 5,000 permonth will be given as interim maintenance to the Respondent No. 2 i.e. the son from 01.09.2013 to 31.08.2015; and that the amount will exceed to Rs. 10,000 per month from 01.09.2015 onwards. A writ against the mentioned order of Nagpur Family Court, was filed in Bombay High Court. The High Court dismissed the petition. Later the matter was presented in the Apex Court.

 Issues:

a) Overlapping jurisdiction

b) Payment of Interim Maintenance

c) Criteria for determining quantum of maintenance

d) Date from which maintenance will be awarded

e) Enforcement of orders of maintenance

Judgment:The Supreme Court in the present case has framed guidelines on overlapping jurisdiction under different statutes for the payment of maintenance, payment of Interim Maintenance, to decide on the criteria for determining the quantum of maintenance and to give a verdict on the date from which maintenance is to be awarded, and enforcement of orders of maintenance. The Court while considering the above-mentioned issues, noticed that no party can be barred from approaching the court under one or more statutes as each and every Act is unique and independent in its own way. However, parallel operation of these acts would lead to multiplicity of proceedings hindering the courts in taking up other important cases. This would also cause contradictory orders. Hence, the court directed that in a subsequent maintenance proceeding, the applicant shall disclose all the previous maintenance proceedings, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. For the payment of interim maintenance, the court has ordered that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate Court, as the case may be, throughout the country. The court also gave guidelines on which the quantum of maintenance will be decided which includes status of living, financial capacity, termination of the relationship, if the wife is working and the expenses a father needs to cover for his child. The court also stated that in order to prevent a dependent from being reduced to destitution and vagrancy, it is necessary that maintenance be awarded from the date on which the application for maintenance is filed before the concerned Court.It is justly acknowledged by this latest landmark judgment that, “Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.” Thus at any cost, no person can deny paying the maintenance. 

Allahabad HC denies bail to Journalist for abatement of suicide

In a bail hearing for one Mr. Shameem Ahmad, co-editor of Daily Hindi Newspaper in Janma Prasaran Times, the court rejected his bail application and stated that “Journalist isn’t expected to dramatize horrifying incident and make news by putting his actor in danger of death”The facts of the case are that a landlord Zaved Khan wanted the now deceased Surendra Chakraborty to vacate the rented house. A case was already lodged against him for vacating the house. On 19th October 2020 Zaved started abusing him in filthy language and asked him to leave the house. When he told him his financial trouble and his inability to vacate the house, the landlord Zaved scoldingly asked him to “set himself ablaze and die, if he is not able to vacate the accommodation”.Journalist Shamim contacted the deceased Surendra and induced him to set himself ablaze in front of ‘Vidhan Sabha Bhawan’ so that they may filme the incident by videography and telecast the same on television. If it happens, the matter, so as planned will get highlighted and no one will force him to evict the house.

Later on, Surendra did the same, setting himself on fire and died consequent to that, while Shamim recorded it all.The counsel for the applicant submitted that the applicant and complainant did not know each other. Moreover, under Section 306 of the IPC a passing reference been made against any person would not be sufficient to invite the penalty. In order to constitute abatement for suicide, there must be course of conduct or any such actions of intentionally aiding or facilitating another person to end life, in the present case there is no evidence for the same.The State refuted these claims by showing evidence that established connection between the deceased and the applicant. The CCTV footage and the evidence of eye witness also proved how the journalist did not help the deceased and kept recording while the police tried to save him.

Moreover, the State submitted that his bail would adversely affect the witnesses in the case.The court held that Zaved the landlord cannot be indicted for abatement of suicide since the remark was made in passing and the deceased committed suicide after a few days of the remark and not immediately. On the other hand, the prima facie evidence against Journalist Shamim established the facts that he tempted the deceased to stage this death in front of the Legislative Assembly to stop Zaved from evicting him.The Court relied on the judgement of Sudha Singh v State of UP, which held that “…it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.”, thereby denying bail to journalist Shamim Ahmad.

Right of private defense (section 96-106)

Every person has a right has a right to defend his own person against injury or restraints, and his own property against any act which is an offence falling under the category of theft, robbery , mischief or criminal trespass, or which is an attempt to commit such an offence.I. Section 96 states that nothing is an offence which is done in the exercise of the right to private defense.There are four general points with the connection with the right of private defence:➢ There is no right private defense under the code against any act which is not in itself an offense under the code.➢ The right of private defense cannot be pleaded by person who believe they will be attacked, court the attack.➢ The general rule is that the accused must specifically plead the right of private defence.➢ Where a party of men is determined to clear their right for supposed by unlawful force, and they engage in a fight with another party of men, equally determined to clear their right by unlawful force, no question of the right of private defence can arise.A. Right to privatedefenceof the body (Section 97-98)➢ Section 97 states that every person has a right to defend his own body or that of another against any offence affecting the human body.➢ Section 98 states that every person has the right of private defence of the body against an act, which would otherwise be a certain offence, but is not that offence by reason of the doer being of unsound mind, a minor an intoxicated person or a person acting under misconception of fact.B. Acts against there is no right of privatedefenceof body (Section 99)➢ Section 99 states that there is no right of private defense of the body against an act which does not reasonably cause the apprehension of death or grievous hurt. If done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may  not not be strictly justificable by law.The right of private defense also exists when the act is done by the direction of a public servant.➢ Also there is no right of private defence of the body in a case in which there is time to have recourse to the protection of the public authorities.C. When right extend to the causing of death or any other harm to the offender (Section 100)There are acts of aggression mentioned if the right or private defense of the body extends to causing even the death of the offender in cases:i. An assault that gives grievous hurt.ii. An assault with the intention of committing rape.iii. An assault with the intention of gratifying unnatural lust.iv. An assault with the intention of wrongfully confining a person.v. An assault with the intention of kidnapping or abducting.vi. An act to throwing acid or attempt to do so.D. Right when commences, and how long it continues (Section 102):Section 102 states that the right of self-defense commences as soon as reasonable act of danger of the body arised from an attempt or threat to commit the offence, though the offence may not have been committed and continue as long as such act of danger to the body continues.In one case name Bayadas Bowri Vs. State of Assam, 1982)- the accused was a poor, disabled man with only one hand , a stronger person, assaulted him with a bamboo, and in his fight for life, the accused gave a blow with a pen-knife, which proved fatal. On these facts, the court held that if a disabled person used a pen-knife to escape death, it cannot be said to be an act done in excess, and the accused would be entitled to the protection of section 100.

Twitter loses Immunity under IT Rules, 2021

The Ministry of Electronics and Information Technology, Government of India filed an affidavit in the High Court of Delhi stating that Twitter hasn’t complied with the regulations under IT Rules, 2021 and would thereby lose the conditional immunity given under it.The Government implemented the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules 2021 on 25th February 2021 in the Official Gazette of India. Under the new rules all Significant Social Media Intermediary (SSMI) have to comply with the provisions of the IT Rules 2021.

According to the new Rules, all the SSMIs would not be liable for anything published on their platform unless they ‘initiate the transmission,’ or ‘select the receiver of the transmission,’ or ‘modify the information contained in the transmission’. Section 79 of IT Act states, “An intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”. This is subject to conditions listed under Section 79(2) and Section 79(3) of the IT Rules.Rule 3 provides for various due diligence obligations to be followed by all intermediaries to avail exemptions from liabilities mandated under section 79(1) of the Information Technology Act, 2000. Rule 4 provides for additional due diligence to be complied with by SSMIs.According to the Ministry, Twitter qualifies as an intermediary and an SSMI under Section 2(1)(w) of the IT Act 2000 and IT Rules, 2021 respectively. Thus, it was obligated to comply with the additional due diligence set out under Rule 4 of the IT Rules, 2021. A time period of 3 months was given to the SSMIs to comply with the IT Rules, 2021 which are mandatory.Under Rule 4, the SSMIs are mandated to appoint a Chief Compliance Officer, Nodal Contact Person, Resident Grievance Officer for various purposes, all of whom have to be resident of India.Under Rule 7, the provisions of section 79 (1) will not be available to the the intermediary if it fails to observe these Rules and it shall be liable for any punishment in respect of the offending content.

According to the Ministry, Twitter has failed to comply with the IT Rules, 2021 as on 1st July, 2021 for the following reasons:a. Chief Compliance Officer has not been appointed;b. The position of the Resident Grievance Officer is vacant;c. The position of Nodal Contact Person, (even on an interim basis), is vacant.d. The physical contact address, which was shown to be there on 29th May, 2021 is once not again available on Twitter’s website.Thus, the Ministry stripped Twitter of the Safe Harbour Immunity (Section 79) for non-compliance with the IT Rules, 2021.

Right of private defense of property

Acts against which right ofdefenceof property can be exercised.• Every person has right to defend his or other’s property whether it is movable or immovable➢ Against theft, robbery, mischief or criminal trespass, or any act which is an attempt to commit theft, robbery, mischief or criminal trespass.➢ Against the act of a luncatic, a minor, or an intoxicated person, or a person acting under a misconception of fact (Section 97-98)B. Acts against which there is no right of private defense of property This act is including in section 99 to lay down the limitation to the right of private defence of property. There are two acts against which the right of private defence of property cannot exercise.➢ There is no right of private defense if act done in good faith and public servant acting in good faith.➢ There is no right of private defense of property in cases in which there is time to have recourse to the protection of the public authorities.Section 99 provide private defense in no case extends to the infliction of more than it is necessary to inflict for the purpose of defense.C. Right when commences and how long it continues (Section 105)Under section 105 the right commences when a reasonable apphrension of danger to the proeperty commences:▪ Against theft▪ Against robbery▪ Against criminal trespass or mischief▪ Against house breaking by nightSection 102 and 105 indicate that the right of private defense of the body or property commences and continues as long as the danger lasts.D. Subject to the restrictions contained in section 99, the right extend to the causing of death or any other harm to the offender in the following cases –▪ In case of robbery▪ House breaking by night▪ Mischief by fire to any building, tent or vessel, used as human dwelling or as a place for the custody of property.

HC GRANTS PROTECTION TO LIVE-IN COUPLE

“Punjab and Haryana High Court has held in a petition submitted under Article 226/227 ofthe Constitution of India gave directions to respondent to protect their lives and liberty fromany danger at the hands of the respondents.”

A single bench of Justice Arun Kumjar Tyagi while hearing the present criminal writ petition passed the order for protection of the live-in couple. The present petition is presented by PushpaDevi and Another under Article 226/227 [Power of the High Court to issue certain writs] of the Constitution of India. The case involved a woman aged 21 years and a man aged 19 years, who are living together as a live-in couple. The petitioner has pleaded for protection and asked for issuance of directions torespondents in respect to protect their life and liberty against therespondents.In the present case both woman and man have attained the legal age of majority which is 18 years in India, however the boy hasnot attained the legal age of marriage applicable to the couple inIndia. The legal marriage age according to the Hindu Marriage Act and Special Marriage Act is 18 years for girls and 21 years for Boys.The petitioners have also contended that after the boy attains the legal age of marriage they will tie knot and will legally solemnize. Also, as they are major they can act according to themselves without the interference of anybody including theirfamily and friends. The petitions also contended that the respondents are forcibly making girls i.e. petitioner no. 1, marry another man against her will and choice. They have also threatened to kill both the petitioners for the sake of family’spride and prestige.Against such actions, on July 2, 2021, the petitioners made arepresentation to the Senior Superintendent of Police, MohaliDistrict requesting the protection. They were seeking theprotection against the threats made by the respondents, however no actions were taken on their side so far. Therefore, the petitioners approached the Hon’ble court to direct the respondents for issuance of the protection of lives and liberty of the petitioners.

The court after hearing the claims held that the petitioner being major according to the law of land, therefore can have a live-in relationship and are also entitled to the protection against anyharm by the respondents.The Court sent the copy of the order and petition to the Superintendent of Mohali District for the compliance. It also directed the respondent no. 2, the superintendent to look into the grievance of the petitioner and to take appropriate action for the protection of their lives and liberty as may be warranted by the circumstances.

UP’S PURC ORDINANCE 2020: A STEP TO COMBAT ‘LOVE JIHAD’

India is a nation with multiple cultures, religions, castes and faiths. In 1967, Odisha became the first state to bring in the “Orissa Freedom of Religion Act, 1967” to make sure that no one is forced into converting his/her religion. After this, various states in India introduced “Anti Conversion Laws”, for instance, Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968. Other states like Chhattisgarh, Arunachal Pradesh, Himachal Pradesh, Tamil Nadu, Gujrat, Jharkhand and Uttarakhand also introduced such Freedom of Religion Acts.

While some of these acts prohibited conversion to another religion by means of coercion or fraud alone, a few of these acts like Uttarakhand Freedom of Religion Act, 2018, also prohibited conversion of religion by means of marriage. Similarly, at present various states are considering bringing in separate laws and legislations to prohibit conversion of religion through marriage. While doing so the term ‘Love Jihad’ was used by political leaders, which is a theory that suggests that men from the Islamic community marry women of other religions just for the purpose of converting the woman’s religion. 

Recently, Uttar Pradesh Government has passed an ordinance against ‘Love Jihad’ called ‘The Prohibition of Unlawful Religious Conversion Ordinance, 2020’. This new Ordinance has the provisions which make an unlawful conversion a non-bailable and cognizable offence that can also send the accused in prison for up to five years along with the fine of Rs. 15,000/- for forceful religious conversion. To give an example, if the woman is from the SC/ST community or is seen as part of mass conversion then the jail term is for 3 to 10 years along with a fine of Rs. 50,000/-. 

Furthermore, Courts can also direct the accused to pay a compensation up to Rs. 5 Lakhs to the victim of such religious conversion. Additionally, anyone who desires to convert their religion voluntarily, will have to give a declaration in the form given in Schedule 1 of the ordinance at least 60 days in advance to the District Magistrate. The burden of proof is on the person who has caused the conversion. However, as per this ordinance, it is not necessary for a person to give any reasons behind his/her intention. On 29/11/2020 the first case was registered in Bareilly under this ordinance.

The Allahabad High Court has laid a significant ruling on this aspect on 11th November, 2020. The division bench of Justice Pankaj Naqvi and Justice Vivek Agarwal heard a plea for quashing of an FIR filed against Salamat Ansari & 3 Others under Sections 363, 366, 352, 506 IPC and Sections 7 and 8 the POCSO Act. Salamat married Priyanka Kharwar on 19 August 2019 after she converted to Islam. The FIR was filed by Father of Kharwar. The Court by deciding in favour of the couple observed that, “Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to the right to life and personal liberty. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.”

By observing so, the court set aside a past ruling of 2014 and of September 2020 dealing with similar subject matter and deemed them as “not good law”. Nevertheless, an appeal challenging the said HC order has been filed in the Supreme Court. 

Therefore, while some view such laws to be protecting the right to freedom of religion, some view it as intruding on the person’s right to choose and right to life & liberty. Hence, the constitutionality of such laws yet remain blurry. 

Central Information Commission issues show-cause notices to the authorities to disclose vital information on creation of Aarogya Setu Application.

The Central Information Commission on 27th October 2020 issued show-cause notices to the Central Public Information Officers (CPIOs) of the Ministry of Electronics and Information Technology (MeitY), National Informatics Centre and National E-Governance Division (NeGD) to show reasons as to why penalty u/s 20 of the Right To Information Act should not be imposed on them for prima facie obstruction of information and providing an evasive reply on an RTI application related to Aarogya Setu App. The statement comes after the Ministry and NIC were slammed by the CIC over their reply to an RTI, stating that they did not have any information about the “creation” of the Aarogya Setu application promoted by the government to contain the spread of COVID-19. 

The development comes in a complaint filed by one Saurav Das, stating that the relevant authorities had failed to furnish information about the process of creation of the App and other information related thereto.

 Information Commissioner Vanaja N. Sarna pointed out that the website of the application mentions that the content on it is “owned, updated and maintained” by MyGov and MeitY, and directed the CPIO of the Ministry to explain in writing why they did not have the requisite information.
Show-cause notices have been issued to S.K. Tyagi, Deputy Director and CPIO, D.K. Sagar, Deputy Director, Electronics, and R.A. Dhawan, Senior General Manager (HR and Admn) and CPIO, NeGD. The Commission directs the above-mentioned CPIOs to appear before the bench on 24.11.2020 at 01.15 pm to show cause as to why action should not be initiated against them under Section 20 of the RTI Act.