List of Current Affairs

Source: Delhi High Court

Why in News?

The Delhi High Court has issued a series of directions to be followed by the authorities and doctors while dealing with survivors of sexual assault who are pregnant in the matter of Nabal Thakur v. The State.

Background

• The Court issued directions while dealing with the bail application under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) filed by a man accused of sexually assaulting a minor girl.
• In the present matter the accused man was residing near the house of the survivor.
• He called her to his house on a false pretext and told her that he would not let her go till she attained majority, the girl was 16 years old at the time.
• The survivor was brought back to her home two months later and her medical examination showed that she was pregnant.
• The duration of pregnancy was found to be four weeks and five days.
• She disclosed before the doctors that the man established forcible physical relations with her.
• The Court rejected the man’s bail plea noting that the girl was repeatedly raped by the accused and therefore, there were no grounds for granting bail.
• It was also noted by the Court that despite the fact that the girl was admitted to a hospital on several occasions, she suffered a complete abortion at home due to which the sample of the fetus could not be preserved.

Court’s Observations

• Several lacunae were found in the medical records of the hospital concerned, the most crucial one being that evidence (the fetus) could not be preserved in this case due to the negligence of doctors therefore Justice Swarana Kanta Sharma issued the directions to be followed by hospitals and other authorities.
• The Guidelines are as follows:
  • Circulation of Existing Guidelines and SOPs: The Department of Health and Family Welfare, Government of NCT of Delhi and Ministry of Health and Family Welfare to ensure that the existing guidelines/Standard Operating Procedure for conducting examination of the victims of sexual assault are circulated in all the hospitals in Delhi.
  • Regarding Additional Directions Issued vide this Judgment: The abovesaid Ministries are also directed to circulate the additional directions contained in the present judgment which be added to the existing SOPs.
  • Production of Victim Within 24 hours of Order Before the Hospital when Pregnancy is Less than 20 Weeks: The investigating officer concerned will produce the victim for the purpose of medical termination of pregnancy within 24 hours of passing of order of Competent Authority before the Superintendent of the concerned hospital.
  • Preservation of Fetus: It is directed that the doctor concerned will ensure that the fetus is preserved, and the victim is not discharged in a hurry, resulting in putting the life of the victim in danger and loss of evidence in a sexual assault case.
  • Recording of Reasons for Discharge without Termination of Pregnancy: The doctor concerned will also mention, in case the victim is discharged without termination of pregnancy, the reasons for the same so that the crucial evidence in the form of fetus is not lost.
  • Recording of Details of Treatment for Medical Termination of Pregnancy: It shall be duty of the doctor concerned also to mention in detail, the treatment given to the victim of sexual assault including any medicines given or procedure carried out for the purpose of termination of pregnancy.
  • Difficulty in Reading MLCs and Need to File Typed MLC in Sexual Assault Cases: The Court being aware of the fact that when the Medico Legal Case (MLC) is being prepared by the doctor, due to various constraints and reasons and privacy of victim etc., it has to be handwritten. Therefore, the court directed that in cases where medical examination of a victim of sexual assault is conducted, all the hospitals concerned will ensure that along with the original MLC as well as discharge summary of such victim, a typed copy of the same is also prepared by the concerned hospital and provided to the investigating officer within a period of one week.
  • Typed Copy of MLC may be Sent by Electronic Mode to the Investigating Officer (IO): The typed MLC can also be sent to the IO through electronic means to save time.

Legal Provision

Criminal Procedure Code, 1973

• Bail means procurement on release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority.
• The provisions of bail are provided under Chapter XXXIII of CrPC within Sections 436-450.

Section 439 - Special powers of High Court or Court of Session regarding bail —

(1) A High Court or Court of Session may direct, —

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(1A) The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376 DB of the Indian Penal Code (45 of 1860).

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Laws on Sexual Abuse of Children

POCSO Act

• The Act was enacted to address criminalizing a range of acts including child rape, sexual assault, sexual harassment, and pornography involving a child. And it came into force on 14th November 2012.
• Section 2(d) of POCSO Act defines a child as any person under the age of eighteen years.
• The law mandates setting up of Special Courts to facilitate speedy trials in Child Sexual Abuse cases.

Indian Penal Code, 1860

The 2018 amendment to the Code made following additions regarding sexual assault on children.

Source: Supreme Court

Why in News?

A bench of Justices BR Gavai and Prashant Kumar Mishra noted that the incriminating circumstances should be of a conclusive nature, and they should exclude every possible hypothesis so as to prove the guilt of accused beyond reasonable doubt.

• The Apex Court gave the observation in the matter of Kamal v. State (NCT) of Delhi.

Background

• The prosecution’s case was that the brother of deceased found him dead, lying on a cot in his house, and filed First Information Report (FIR) expressing his suspicion on accused.
• The case of prosecution mainly relied on the circumstantial evidence proved by testimony of Prosecution Witness – 20 (PW) and PW-21.
• PW-21 gave several contradictory statements with regard to the identification of the accused.
• The PW-21 admitted he had seen the accused outside the deceased's house.
• In examination-in-chief he said that he was called by police at deceased's house on 16 September 2009 and police had told him that these accused had committed the murder of deceased.
• He again turned hostile during cross-examination and said he first saw the accused at the police station on 12 September 2009.
• The doubt on the witness's testimony arose as he had already seen the accused before the Test Identification Parade (TIP).

Court’s Observations

• The Court said it is a primary principle that the accused must be and not merely may be guilty before a Court can convict him.
• The Court further observed that if the accused are already shown to the witnesses in the Police Station, then the sanctity of TIP before the court is doubtful.

Test Identification Parade (TIP)

• The TIP is one of the methods of establishing the identity under Section 9 of the Indian Evidence Act, 1872 (IEA).
• Section 54A of the Code of Criminal Procedure, 1973 (CrPC) also provides a situation for identification of a person arrested.
  • Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence a TIP may be conducted.
• This is based on the idea of testing the veracity of a witness.
• A witness’s capability to identify from among several unknown people a person whom the witness had seen in the context of an offence is tested in the process.
• Identification parades shall be conducted and recorded by a Judicial Magistrate at the Jail as far as possible.
  • Even if a witness makes a mistake, it should be recorded.
• If it is conducted in the presence of police officer, it amounts to a statement within the meaning of Section 162 CrPC and becomes inadmissible evidence.
  • It cannot be then used for the purpose of corroboration.

Types of Identification Parade

Identification parades are held in criminal cases to identify:

• the persons living or dead known or unknown
• articles including firearms
• handwriting, photographs, finger and footprints

Circumstantial Evidence

• Evidence under Section 3 of the IEA is:
  • all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
  • all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
• Evidence in India is classified into two broad headers, Direct Evidence, and Indirect Evidence that is Circumstantial Evidence.
  • Direct Evidence are those which conclusively proves the fact whereas Circumstantial Evidence are chain of circumstances used to prove a fact.
• It marks its origin from the Roman system of law where it was used as a significant factor for the investigation of a case.
• It based on the principle that “Men may tell lies, but circumstances do not”.
• The five golden principles with regard to conviction based upon circumstantial evidence are very well crystalized in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984).

Source – Karnataka High Court

Why in News?

Recently the Karnataka High Court in the case of Nanjamma & Others v. Rajamma & Others, held that the relief of temporary injunction under Rules 1 and 2 of Order 39 of the Code of Civil Procedure, 1908 (CPC) is a discretionary remedy.

• This remedy requires a careful balance between the need for interim relief and the ongoing legal proceedings.

Background

• In 2014, the appellants filed a suit before the Trial Court seeking injunction and asserted their claim over a particular property.
• The Trial court by its order restrained the appellants from interfering or attempting to interfere with the respondents' right, title and interest and ownership of the property.
• Thereafter, the appellants filed an appeal before the High Court.
• While allowing the appeal, the High Court held that the Trial Court's approach in granting the temporary injunction was erroneous.

Court’s Observations

• Justice H.P Sandesh held that relief of temporary injunction granted under Rules 1 and 2 of Order 39 of CPC is a discretionary remedy and this discretion should not be exercised when material facts are suppressed before the Trial Court and that any false or misleading information in in obtaining such interim relief can be detrimental to the integrity of the judicial process.

Legal Provisions

Order 39 CPC

• It deals with the procedure to grant temporary injunctions and interlocutory orders.
• Rule 1 deals with cases in which a temporary injunction may be granted.
  • It states that the Court may by order grant a temporary injunction to restrain such act, where in any suit it is proved by affidavit or otherwise—
    • (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
    • (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, or
    • (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
• Rule 2 talks about Injunction to restrain repetition or continuance of breach. It states that
  • (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained.
  • (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

Injunction

• An injunction is a preventive remedy granted to a party aggrieved by the acts of another party, and thereby refraining the wrongdoers to pursue the acts performed by them, to evade any further injury and thus considers equity.
• It is of two types:
  • Temporary injunction is governed under the provisions of Order 39 of CPC. It restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further order of the court. It may be granted at any stage of the suit
  • Perpetual injunction which is governed by Specific Relief Act, 1963 (SRA). As per Sec.37(2) of SRA, a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually prevented from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.