List of Current Affairs

Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Nimesh and Anr. v. State of Kerala and Ors., has held that an affidavit by the relative of the victim could not be grounds for quashing if the materials placed on record indicate the commission of the offence.

What was the Background of Nimesh and Anr. v. State of Kerala and Ors. Case?

• In this case, consequent to the committal of suicide by the mother of the petitioners, crime was registered alleging commission of offences punishable under Section 306 of the Indian Penal Code (IPC), by the petitioners, who are arraigned as accused Nos.1 and 2.
• The petition was filed before the Kerala High Court to quash the proceedings pending against the petitioners in a matter before the Panamaram Police Station, Wayanad.
• The petitioners submitted that the case of the prosecution that the victim committed suicide because of abetment is false and claimed that they were falsely implicated.
• The public prosecutor contended that the prosecution materials, including the suicide note of the deceased, display a pattern of harassment and threatening behavior from the petitioner’s towards the victim.
• The Court noted that merely because the sister of the 1^st accused filed an affidavit regarding settlement, shall not be a ground to quash the crime.
• Therefore, quashment sought for herein must fail and the High Court dismissed the petition.

What were the Court’s Observations?

• Justice A Badharudeen observed that when the facts of the case placed on materials and other materials prima facie would suggest commission of offence punishable under Section 306 of IPC by the accused persons, merely because the sister of the 1^st accused filed an affidavit regarding settlement, shall not be a ground to quash the same.

What is Section 306 of IPC?

Section 306 of IPC

• About:
  • Section 306 of IPC deals with the Abetment of suicide whereas the same provision has been covered under Section 108 of the Bhartiya Nyaya Sanhita, 2023(BNS).
  • It states that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
  • A bare reading of above provision would demonstrate that for an offence under Section 306 of IPC, there are twin requirements, namely, suicide and abetment to commit suicide.
  • Commission of suicide is not made punishable not because the commission of suicide is not culpable, but for the reason that the person culpably responsible would have departed from this world before he can face any indictment.
  • Whereas abetment of commission of suicide is viewed very seriously by law.
• Case Laws:
  • In the case of Randhir Singh & Ors v. State of Punjab (2004), the Supreme Court held that Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. A more active role, which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of IPC.
  • In the case of Amlendu Pal @ Jhantu v. State of West Bengal (2010), the Supreme Court observed that the Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life.

Source: Bombay High Court

Why in News?

Recently a bench of Justices Mangesh S Patil, RG Avachat and Shailesh P Brahme held that “If even one ingredient of an offence under the Indian Penal Code, 1860 (IPC) is missing in the act which has been made punishable under the special statute, the IPC section will not be excluded and still can be resorted to albeit”.

• The Bombay High Court gave this observation in the case of Awadhesh Kumar Parasnath Pathak & Ors v. State & Ors.

What was the Background of the Awadhesh Kumar Parasnath Pathak & Ors v. State & Ors. Case?

• There was a conflict between two division bench judgments of the Bombay High Court in the cases of Gagan Harsh Sharma v. State of Maharashtra (2019) and Awadhesh Kumar Parasnath Pathak v. The State of Maharashtra (2019) on the interpretation and application of certain provisions of the Information Technology (IT) Act, 2000 vis-a-vis the IPC.
• In the Gagan Harsh Sharma case, the division bench held that even dishonest and fraudulent acts fall within the scope of Section 66 of the IT Act. It observed that Sections 79 and 81 of the IT Act give overriding effect, and offenses pertaining to electronic records covered by the IT Act would take out the provisions of the IPC.
• In Awadhesh Kumar Parasnath Pathak case, the other division bench disagreed with the observations in Gagan Harsh Sharma, stating that the offenses defined under Sections 43 read with 66 and Section 72 of the IT Act are not the same as those defined and punishable under Sections 406, 408, and 420 of the IPC.
• The Supreme Court, while dismissing the SLP against Gagan Harsh Sharma, left the issue open to be decided in an appropriate case, commenting on the interplay between the IT Act and IPC provisions.
• Specific questions were referred to a larger bench of the Bombay High Court to resolve the conflict between the two division bench judgments on the interpretation and applicability of the IT Act and IPC provisions in cases involving electronic records and computer-related offenses.

What were the Court’s Observation?

• The Bombay High Court held that neither Section 43 nor Section 72 of the IT Act makes punishable an offence committed by two or more persons with a shared common intention.
  • The IT Act does not have any provision that covers offences committed with a shared common intention as defined under Section 34 of IPC.
• The common thread from various Supreme Court judgments is that if an act is an offence under a special statute overriding the IPC, the ingredients of the offence under the special statute and the IPC must be the same to exclude the IPC section.
  • If even one ingredient of the IPC offence is missing in the act punishable under the special statute, the IPC section can still be applied, subject to Sections 71 of the IPC and 26 of the General Clauses Act, 1897 regarding sentencing.
• The court made these observations as an abundant precaution to guide trial courts when faced with situations where they need to consider these aspects, even though the observations may not have been necessary to answer the referred questions.
• The court finally held that offences under the IT Act cannot be considered as committed with a shared common intention, and the IPC provisions can still apply if the ingredients of the IPC offence are not fully covered by the IT Act offence.

Comparison of Legal Provisions Involved in the Case

What are Landmark Cases Related to Special and General Law?

• Sharat Babu Digumarti v. State (NCT of Delhi) (2017):
  • The Supreme Court held that the IT Act is a special enactment.
  • For offences with a nexus to electronic records, the provisions of Sections 79 and 81 of the IT Act cannot be ignored in favor of the IPC.
  • Section 292 IPC (sale of obscene books) cannot apply if the special provision of Section 67 IT Act covers the offence related to obscene electronic records.
  • When the IT Act deals with obscenity in electronic form, it covers the offence under Section 292 IPC, as the special law prevails over the general law.
• Gagan Harsh Sharma v. State of Maharashtra (2018):
  • Relying on Sharat Babu Digumarti case, the Bombay High Court held that even a dishonest and fraudulent act falls within the scope of Section 66 of the IT Act.
  • It held that Sections 79 and 81 of the IT Act give overriding effect, and offences pertaining to electronic records covered by the IT Act and punishable under Section 43 read with Section 66 would take out the provisions of the IPC.
  • It stated that prosecuting under both IPC and IT Act for the same facts would violate double jeopardy protection.
• State of Uttar Pradesh v. Aman Mittal and another (2019):
  • This case dealt with the interplay between the Legal Metrology Act, 2009 and relevant IPC offences, like Gagan Harsh Sharma case.
  • The Gagan Harsh Sharma case was cited before the Supreme Court.
  • The Supreme Court left the issue open to be decided in an appropriate future case, observing that dismissal of the SLP against Gagan Harsh Sharma case did not amount to merging the High Court order.

Source: Allahabad High Court

Why in News?

Recently, the Allahabad High Court in the matter of Aman @ Vansh v. State of UP & Ors., has held that by falsely depicting the victim as a minor the accused persons are wrongly implicated under the stringent regime of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

• In relation to the medical report, the High Court also issued directions for police authorities/investigation officers.

What was the Background of Aman @ Vansh v. State of UP & Ors. Case?

• In this case, the applicant filed a bail application before the High Court of Allahabad.
• The applicant was in jail since 05^th December 2023 for the offences punishable under the provisions of the Indian Penal Code, 1860 (IPC) and POCSO.
• The learned counsel on behalf of the applicant stated that the victim was wrongly shown as a minor of 16 years in the FIR only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
• The Court noted that in the instant case, the medical examination to determine the victim's age was not conducted at the time of the applicant's arrest. Instead, the report was prepared later, revealing the victim's age to be 17 years old.
• The High Court granted bail to the accused.

What were the Court’s Observations?

• Justice Ajay Bhanot observed that by falsely depicting the victim as a minor the accused persons are wrongly implicated under the stringent regime of the POCSO only to cause their indefinite imprisonment.
• It was also stated that despite the statutory mandate the medical report to determine the victim's age is not drawn up and made part of investigations in a majority of cases. Absence of medical report determining the age of a victim came in the way of the Court dispensing equal justice. In these cases, this Court has developed a practice to call for such reports.

What were the Directions Issued by the Court?

• Medical Report determining the age of a POCSO Act offence is an imperative requirement of law and an absolute necessity of justice. So, the following directions are issued by the Court:
  • The police authorities/investigation officers shall ensure that in every POCSO offence a medical report determining the victim’s age shall be drawn up at the outset under Section 164A of the Criminal Procedure Code, 1973 (CrPC) read with Section 27 of the POCSO. The report may be dispensed with if medical opinion advises against it in the interests of the victim’s health.
• The medical report determining the age of the victim shall be created as per established procedure of law and in adherence to latest scientific parameters and medical protocol.
• The medical report determining the age of the victim shall be submitted under Section 164A of CrPC to the Court without delay.
• The Director General (Health), Government of Uttar Pradesh, Lucknow shall also ensure that the doctors who comprise the Medical Board are duly trained and follow the established medical protocol and scientific parameters for determining the age of the victims in such cases. Constant research shall be done in this field to keep the reports in line with the latest scientific developments.

What are the Relevant Provisions Involved in it?

Section 164A of CrPC

• This Section medical examination of the victim of rape. It states that-

(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely: —

(i) The name and address of the woman and of the person by whom she was brought.

(ii) The age of the woman.

(iii) The description of material taken from the person of the woman for DNA profiling.

(iv) Marks of injury, if any, on the person of the woman.

(v) General mental condition of the woman.

(vi) Other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation. —For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in section 53.

Section 27 of the POCSO

• This Section deals with the medical examination of a child. It states that—

(1) The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the CrPC.

(2) In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.

(3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.

(4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution.