List of Current Affairs

Source: Delhi High Court

Why in News?

Recently, the High Court of Delhi in the matter of Sanjay Kumar Pundeer v. State of NCT of Delhi, has held that an accused has a right to be released on default bail where the prosecution files a preliminary or incomplete chargesheet within the statutory period.

Background

• In this case, the First Information Report (FIR) was registered for the offences under Section 302 of Indian Penal Code, 1860 (IPC) in the year 2021.
• In September 2021, the accused was arrested.
• Upon completion of investigation, the chargesheet was filed in 2021.
• In 2022, two supplementary chargesheets were filed.
• Before the Sessions Court, the accused filed an application seeking default bail under Section 167 of Criminal Procedure Code, 1973 (CrPC).
• The Sessions Court dismissed the accused's application.
• Thereafter, a plea for default bail was filed before the Delhi High Court which was later dismissed by the Court.

Court’s Observations

• Justice Amit Sharma observed that an accused has a right to be released on default bail where the prosecution files a preliminary or incomplete chargesheet within the statutory period.
• The Court further held that the right of an accused to default bail under Section 167(2) of the CrPC would arise in a case where the chargesheet is not filed within the stipulated period.
  • The other circumstance giving rise to the right to default bail would be in case where the prosecution files a preliminary or incomplete chargesheet, within the period prescribed for offences mentioned therein and, in that process defeating the right of the accused to statutory bail.

Legal Provisions

Section 167, CrPC

• This Section deals with the procedure when an investigation cannot be completed in twenty-four hours. It states that -
  (1)Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
  
  (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
  
  Provided that -
  
  
  (a) the Magistrate may authorize the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding
  
  (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
  
  (ii) sixty days, where the investigation relates to any other offence,
  
  and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
  
  (b) No Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.
  
  (c) No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police.
• This Section (167), while enunciating the law on remand also affords protection to accused against detention during inordinate delay in completion of investigation.
• It provides that, wherein the investigation is not completed within the prescribed period of 60 or 90 days, as the case may be, thereafter the accused can avail his right of default bail on the expiry of the said period.
• In other words, where the investigation agency has not filed a chargesheet within a period of 60 days (or 90 days in the case of offences punishable with death or imprisonment for not less than 10 years) of the investigation then the accused becomes entitled to be released on bail.
• Thus, where no chargesheet has been filed within the stipulated period the accused can no longer be detained in custody, on the expiration of such period.
• In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni (1992), it was held that the Magistrate under Section 167(2) can authorize the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole.

Source: Supreme Court

Why in News?

• The Supreme Court (SC) has maintained the appellant's conviction in a dowry death case, even in light of a negative result in the viscera report, in the case of Buddhadeb Saha v. State of West Bengal.

Background

• A First Information Report (FIR) was lodged regarding Tuli Shah who was married to the appellant No. 1 (Buddhadeb Saha).
• At the time of marriage, cash and gold ornaments were given to the family of the husband of Tuli Shah, however she was harassed for want of more dowry soon after the marriage.
• In 2011 a couple of months after marriage, the deceased (Tuli Shah) committed suicide by consuming poison on account of incessant harassment by her husband at her matrimonial home.
• Upon completion of the investigation, a charge sheet was filed and the Trial Court framed charge for the offence punishable under Sections 304B, 498A, read with Section 34 of the Indian Penal Code, 1860 (IPC).
• Trial Court upon appreciation of the evidence on record concluded that prosecution had successfully established its case against the accused persons beyond reasonable doubt and accordingly held them guilty.
• An appeal was made against the above conviction to the High Court (HC) however the judgment of the Trial Court was affirmed.
• The appeal was hence made to the present court (SC) on the ground:
  • This is a case of no evidence as prosecution has not been able to establish the exact cause of death.
  • Emphasis was placed on the fact that the post-mortem report does not say anything about the exact cause of death and also, the histopathology report is silent about any traces of poison in the viscera.
    • The state however responded that, legislature has used word shall under Section 113B of the Indian Evidence Act, 1872(IEA), in view of the word “shall”, the Court is left with no other option but to draw the presumption that this is a case of Dowry Death.
    • State also submitted that, there was a long delay in forwarding the sample of viscera collected during the course of post-mortem to the Forensic Science Laboratory and possibly due to a delay, the histopathology report does not contain any information regarding the presence of poison in the viscera.

Court’s Observations

• The SC took note of a research paper published in IP International Journal of Forensic Medicine and Toxicological Sciences titled “Negative viscera report and its medico-legal aspects” in which it was mentioned that the Viscera Report may come negative due to three major reasons based on how:
  • Procedure is conducted.
  • Sample is collected.
  • Laboratory tests the samples.
• The SC further took notice of the case Mahabir Mandal v. State of Bihar, (1972) in which it was held that the absence of detection of poison in the viscera report alone need not be treated as a conclusive proof of the fact that the victim has not died of poison.
• The bench comprising of Justices J.B. Pardiwala and Prashant Kumar Mishra of SC in the present case has opined that one should not solely rely on the absence of poison detection in the viscera report as conclusive proof that the victim did not die from poisoning.

Legal Provisions

Dowry Death

• Dowry has been defined by Section 2 of Dowry Prohibition Act, 1961 as: Any property or valuable security given or agreed to be given either directly or indirectly—
  • By one party to a marriage to the other party to the marriage; or
  • By the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person;
    at or before or any time after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
    Explanation II — The expression “valuable security” has the same meaning as in section 30 of the IPC.
• Dowry Death is defined by Section 304B of IPC as:
  Section 304B - Dowry death —
  (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
  Explanation — For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
  (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life.
• Presumption as to dowry death is provided by Section 113-B of the Indian Evidence Act,1872.
  Section 113B - Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
  Explanation – For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).

Case Law

In Satbir Singh v. State of Haryana (2021), SC explained the interpretations in case of Dowry Death as:

• Section 304­B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.
• The prosecution must establish first the existence of the necessary ingredients for constituting an offence under Section 304B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113B IEA operates against the accused.
• The phrase “soon before” as appearing in Section 304­B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

Source: Madras High Court, Madurai Bench

Why in News?

The division bench of the Madras High Court (HC) has stayed the order of a single judge of the same court allowing the sale of Ganesh idols made using Plaster of Paris, in the case of District Collector, Tirunelveli v. Prakash.

Background

• A writ petition was filed by the respondent (Prakash) for issuance of Writ of Mandamus, seeking directions to the The District Collector, Tirunelveli District before the Single Judge of HC to not to interfere with his right of profession/business in selling idols including those of Lord Vinayak which has been guaranteed under Article 19(1) (g) of Constitution of India, 1950 (COI).
• The writ petitioner stated that he migrated with his family and settled at Tirunelveli City, for making ornaments, articles using clay, washable colour powders, etc.
• The learned Single Judge allowed the Petition, holding that the writ petitioner cannot be prevented from manufacturing or selling the idols using Plaster of Paris despite Revised Guidelines for Idol Immersion by the Central Pollution Control Board (CPCB), dated 12th May 2020 is in existence.
  • Stating further that the restraint on immersion is reasonable restriction, but the prevention of sale would amount to violation of petitioner's fundamental right.
• The District Collector, Tirunelveli District thereby presented the present appeal before the Division Bench.

Court’s Observations

• The Division Bench of Madras HC took note of the relevant clause from the Guidelines reproduced as - "Idols made up of only natural, bio-degradable, ecofriendly raw materials without any toxic, inorganic raw materials (such as traditional virtuous clay and mud as well as free from Plaster of Paris (POP), plastic and thermocol (polystyrene) should be encouraged, allowed and promoted and idols made up of Plaster of Paris (POP) shall be banned."
• The HC thereby observed that action may be taken against anyone to prevent manufacturing, selling or immersion of idols made of plaster of paris or plastics etc. in adherence to the revised guidelines while staying the order of the Single Judge.

Right to Profession

• Article 19(1)(g) of the Constitution ensures the right to practice any profession or to carry on any occupation, trade or business to all citizens, which can be limited by the government's authority to impose reasonable restrictions under Article 19(6) on their exercise.
• Restrictions can be imposed on following grounds:
  • Interest of the General Public: The State may impose such restrictions which may adversely affect the interest of the public.
  • Prescribe any Professional or Technical Qualification: Where a professional or technical qualification is essential for the practice of a profession such qualification can be made mandatory. Eg Passing the All-India Bar Exam is essential to practice law in India.
  • State Monopoly: Added by the First constitutional amendment, 1951 it allows the state to enact legislation to establish state monopolies, whether in part or entirely, for any trade, business, or industry.

Case Law

• Excel Wear v. Union of India (1978) : SC ruled that Section 25-O of the Industrial Disputes Act, 1947, which mandated employers to obtain government permission before closing their industrial undertakings, was deemed unconstitutional and void because it contravened Article 19(1)(g) of the Constitution, which guarantees the right to carry on a trade, business, or profession.