List of Current Affairs

Source: Kerala High Court

Why in News?

Recently the Kerala High Court held that the power under Section 216 of Code of Criminal Procedure, 1973 (CrPC) to alter the charge exists only with the court and cannot be based upon an application by any of the parties.

What was the Background of State of Kerala v. Azeez Case?

• In 2006 the accused promised to two ladies to provide a cleaning job in Dubai.
• After collecting money, they were taken to Dubai.
• When they reached Dubai, they were confined in an apartment, and they consumed intoxicating substances. After that they were repeatedly raped.
• They were also compelled to have sexual intercourse with several strangers.
• However, they managed to escape and came back to India with the help of Indian Embassy.
• They lodged First Information Report (FIR).
• After the completion of investigation, a final report was submitted arraying the accused committed the offences under Sections 420, 376, and 342 read with section 120B of the Indian Penal Code, 1860 (IPC).
• The case was committed to the Sessions Court and is pending in Additional Sessions Court, Ernakulam (For the trial of cases relating to Atrocities & Sexual Violence against Women and Children).
• When the trial commenced, the prosecutor requested to incorporate Section 370 of IPC also as an additional offence to be charged against the accused.
• The Session Judge held that this provision was added by the Criminal Law Amendment Act, 2013 and the allegations was made in 2006, thus, the offence under Section 370 IPC cannot have any application.
• After that an application was filed before the High Court under Section 482 of CrPC to alter the charge under Section 216 CrPC.

What were the Court’s Observations?

• The High Court observed that prior to 2013, Section 370 IPC was related with the importation, exportation, removal, buying, selling or disposing of and even the acceptance, reception or detention of a person against his will as a slave, as an offence punishable with imprisonment for seven years.
• However, in 2013 Section 370 IPC replaced with the provision for trafficking a person.
• Notwithstanding the above substitution, the earlier provision will apply for offences committed until the coming into force of the Amendment Act of 2013.
• The High Court held that the request for the addition of the charge under Section 370 IPC, as it stood prior to 2013, cannot be made at the prosecution's instance.
• The High Court denied interfering with the order of the trial court due to the non-maintainability of an application by the prosecution to add or alter the charge.
• The Kerala High Court held the trial court will be at liberty to independently consider the alteration or addition of charge under any provision of law if it is so satisfied.

What is Alteration or Addition of Charges?

• About:
  • A charge may be altered or added by the court at any stage before the judgment is pronounced.
• Section 216 of CrPC:
  • Section 216 of CrPC deals with ‘court may alter charge’. This provision explains that courts shall have the power to alter or add to charge at any time before the judgment is pronounced.
  • When the court finds that there is sufficient evidence to prove any offence which was not charged by the court earlier, the charge may be altered during the trial.
  • If an alteration or addition to a charge is likely prejudiced to the accused, the court may proceed with the original charge.
• Purpose:
  • The main purpose of this provision is to serve the interests of justice.
• Section 217 of CrPC:
  • Section 217 of CrPC deals with ‘recalling of witness when charge is altered’.
  • The court can recall the witness when the charge is altered or added by the court after the commencement of the trial.
• Addition or Alteration of Charge under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):
  • Section 239 of BNSS covers addition or alteration of charge.
  • Section 240 of BNSS covers recall of witnesses when charge altered.

Which is the Landmark Judgment Cited in this Case?

• P. Kartikalakshmi v. Sri Ganesh and Another (2017):
• In this case the Supreme Court observed that if there was an omission in the framing of the charge and if it comes to the knowledge of the Court trying the offence, the power is always vested in the Court, as provided under Section 216 CrPC to either alter or add the charge and that such power is available with the Court at any time before the judgment is pronounced.
• After such alteration or addition, when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law.

What is the Legal Provision involved in this Case?

• Section 216 of CrPC: Court may alter charge. -

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2)Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge has been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may, either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

Source: Jharkhand High Court

Why in News?

Recently Jharkhand High Court in case of Raja Ram Mandal v. The State of Jharkhand has stressed that for the presumption prescribed in Section 113B of the Indian Evidence Act, 1872 (IEA) to come into effect, the prosecution needs to demonstrate with evidence that the deceased experienced cruelty or harassment regarding dowry shortly before her unnatural demise in her marital residence.

What was the background of Raja Ram Mandal vs The State of Jharkhand?

• The Criminal Appeals were filed against the judgment of conviction and sentence imposed by the Additional Sessions Judge-VII, Dhanbad, in a Sessions Trial.
• The appellants were convicted under Sections 304B of the Indian Penal Code (IPC) and sentenced to ten years of rigorous imprisonment.
• The prosecution's case centered around the marriage of the informant's sister to Raja Ram Mandal approximately four years prior.
  • Within six months of marriage, the sister allegedly suffered cruelty from her in-laws and husband due to unfulfilled dowry demands.
• On 2^nd May 2009, the informant was informed of his sister's death at her in-laws' residence. Allegations arose that she was killed due to a dispute over dowry demands.
• The accused were charged under Sections 304B of the IPC, and the Trial Court found them guilty. The Criminal Appeals were filed on behalf of the accused, asserting that the conviction and sentence were not based on a proper evaluation of evidence.
• The High Court highlighted Section 304B IPC, emphasizing that the prosecution must establish five crucial points:
  • the cause of death,
  • the timeframe of death in relation to marriage
  • the cruelty or harassment faced by the deceased from her husband or his relatives
  • the connection of such mistreatment to dowry demands
  • the occurrence of this mistreatment shortly before her death.

What were the Court Observations?

• The division bench comprising Justices Subhash Chand and Ananda Sen, observed, “The conjoined reading of Section 304B of the IPC and Section 113B of the IEA also shows that there must be material to show that soon before death, the victim was subjected to cruelty or harassment based on demand of dowry.”
  • “Since the prosecution has not proved from the evidence that the deceased was subjected to cruelty or harassment in connection with demand of dowry soon before her unnatural death in her matrimonial house within seven years of marriage.
  • The statutory presumption under Section 113B of the IEA cannot be applicable. This presumption will arise only when the prosecution has proved all the ingredients of the offence of Section 304B of the Indian Penal Code.
• The court said that learned Trial Court has wrongly raised the presumption against the appellant convict without giving its finding in regard to the commission of offence under Section 304B of the IPC,” the bench added.
• The Court observed that there was no evidence indicating any harassment for dowry on behalf of the convicted appellants.
• While the death of the deceased on 2^nd May 2009, was indeed unnatural, the prosecution did not present evidence linking this unnatural death to any harassment for dowry.
• The Court concluded that the prosecution did not sufficiently prove its case beyond a reasonable doubt.
• The judgment of conviction and the sentence imposed by the Trial Court were deemed to be based on flawed findings, warranting intervention, and consequently, both Criminal Appeals were deemed worthy of allowance.

What is Presumption as to Dowry Death?

• Legal Presumption:
  • The law presumes that a woman's death within seven years of marriage, where there's evidence of cruelty or harassment related to dowry demands shortly before her death, is a "dowry death".
• Burden of Proof:
  • The burden of proof shifts to the accused to show that the death wasn't related to dowry demands or harassment. This means the accused must prove their innocence regarding the dowry-related allegations.
• Legal Sections:
  • The presumption as to dowry death is established under Section 113B of the IEA, and Section 304B of the IPC.
• Time Frame:
  • The presumption applies to deaths occurring within seven years of marriage. This time frame is crucial in determining whether the death falls under the legal definition of a "dowry death".
• Objective:
  • The objective of this legal provision is to address the challenges of proving dowry-related crimes, which often occur within the family and are difficult to prosecute.
  • By creating a legal presumption, the law aims to provide better protection to women and deter perpetrators from engaging in dowry-related violence.

What are the Legal Provisions for Presumption as to Dowry Death?

• Dowry Death:
  • Section 304B of IPC deals with dowry death.
  • It states that 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.
• Presumption as to Dowry Death
  • Section 113B of IEA deals with presumption as to dowry death
  • It state that 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.
• Under Bharatiya Sakshya Adhiniyam, 2023 (BSA):
  • Section 118 of BSA covers the provision for presumption as to dowry death.

What are the Essential Conditions to Draw the Presumption as to Dowry Death?

• Death Within Seven Years of Marriage:
  • The death of the woman must occur within seven years of her marriage for the presumption to apply. This time frame is crucial and serves as a guideline for determining the eligibility of the case.
• Evidence of Dowry Harassment:
  • There must be evidence of cruelty or harassment inflicted upon the woman by her husband or in-laws for or in connection with demands for dowry.
  • This evidence typically includes witness testimonies, medical reports, or any other relevant documentation.
• Timing of Harassment:
  • The harassment or cruelty must have occurred "soon before" the woman's death.
  • The law does not specify a precise time frame, but the harassment should be sufficiently close in time to the death to establish a causal connection.
• Circumstantial Evidence:
  • The presumption is drawn based on circumstantial evidence surrounding the death and the circumstances leading up to it.
  • This evidence can include the woman's statements, family testimony, or any other relevant information indicating dowry-related harassment.
• Prosecution's Assertion:
  • It is the responsibility of the prosecution to assert and prove the existence of dowry harassment or cruelty leading to the woman's death.
  • The prosecution must present a compelling case supported by evidence to trigger the presumption as to dowry death.

What is the Nature of Presumption?

• Section 113B of IEA uses the word shall and not may and so it is a presumption of law.
• It becomes obligatory on the court to raise a presumption that the accused caused the dowry death.

What are the Landmark Case Laws Related to Presumption under Section 113B of IEA?

• In Shanti v. State of Haryana (1990), the Supreme Court decided that Sections 304B and 498A are not mutually exclusive. The Court has ruled that in order to convict someone accused of causing dowry death, the prosecution must present evidence proving that the dowry demand was accompanied by acts of harassment and cruelty.
• In Satbir Singh & Ors. v. the State of Haryana (2021), the Supreme Court held that the phrase ‘soon before’ as used in Section 304B of IPC cannot be understood to mean ‘exactly before’, the judgement stated.

Source: Supreme Court

Why in News?

A bench of Justice PS Narasimha and Justice Aravind Kumar upheld the constitutional principles governing the right to property, identified the essential sub-rights, and found the Corporation's actions to be illegal and violative of statutory provisions and constitutional principles.

• The Supreme Court made this observation in the case of M olkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.

What was the Background of Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors. Case?

• Facts:
  • The Kolkata Municipal Corporation (KMC) claimed to have acquired the property of Birinchi Bihari Shah under Section 352 of the Kolkata Municipal Corporation Act, 1980.
  • The property in question is Premises No. 106C, situated at Narikeldanga North Road, Kolkata – 700011.
  • Birinchi Shah succeeded the property through a deed of settlement executed by his father.
  • In 2009, when KMC attempted to forcefully occupy the property, Birinchi Shah filed a writ petition before the High Court seeking a restraint order against KMC.
  • In 2010, KMC deleted Birinchi Shah's name as the owner and inserted its own name in the official records, leading to another writ petition by Birinchi Shah.
• Trial Court (Single Judge) Views:
  • The Single Judge held that KMC had no power of compulsory acquisition under Section 352 of the Act and quashed the alleged acquisition.
• High Court (Division Bench) Views:
  • The Division Bench, in the impugned judgment, affirmed the Single Judge's order and held that there is no power of compulsory acquisition under Section 352.
  • The Division Bench directed KMC to either initiate acquisition proceedings under Sections 536 or 537 of the Act within five months or restore the name of the last recorded owner as the owner of the property.
• Appeal to Supreme Court:
  • After the Division Bench's judgment, KMC filed an appeal before the Supreme Court.

What are the Court’s Observations?

• Constitutional Right to Property:
  • As amended by 44^th Amendment, Article 300A of the Constitution of India, 1950 protects the right to property and requires compliance with fair procedure before depriving any person of their immovable property.
  • Providing just compensation alone does not complete the procedure for valid acquisition of property.
  • The Right to Property was initially recognized as a fundamental right under Article 19(1)(f) and Article 31 of the Constitution of India.
• Sub-rights Constituting the Right to Property:

The court identified seven sub-rights that form part of the constitutional right to property under Article 300A:

• • Right to notice of intention to acquire the property.
  • Right to be heard and raise objections against the proposed acquisition.
  • Right to a reasoned decision from the acquiring authority.
  • Duty of the State to acquire property only for public purpose.
  • Right of the property owner to restitution or fair compensation.
  • Right to an efficient and expeditious acquisition process.
  • Right of conclusion, i.e., final vesting of the property in the State after completing the process.
• Statutory Incorporation and Judicial Recognition:
  • Union and State laws on land acquisition have incorporated these sub-rights in various forms.
  • Courts have recognized the importance of these sub-rights, even independent of statutory provisions.
• Observations in the Present Case:
  • Section 352 of the Act does not provide any procedure for acquiring private property.
  • The appellant-Corporation blatantly violated statutory provisions by invoking Section 352(a) to acquire property without following due process, despite legal advisors raising concerns.
  • The acquisition under Section 352(a) was illegal, invalid, and in contravention of the Act.
• Dismissal of Appeal:
  • The High Court rightly allowed the writ petition and rejected the Corporation's case of acquiring land under Section 352.
  • The SC dismissed the Corporation's appeal against the High Court judgment.
  • The Corporation was directed to pay costs of Rs. 5,00,000/- to the respondent within 60 days.

What are the Sub-Rights of Right to Property?

• Right to Notice of Acquisition:
  • The State has a duty to inform the person of its intention to acquire their property through a clear, cogent, and meaningful notice.
• Right to be Heard:
  • Following the notice, the property-bearer has the right to communicate their objections and concerns, which must be given a meaningful and not a sham hearing.
• Right to a Reasoned Decision:
  • The authority must take an informed decision and communicate the same through a reasoned order to the objector.
• Duty to Acquire Only for Public Purpose:
  • Acquisition must be for a public purpose, which conditions the purpose of acquisition and must stand to reason with the larger constitutional goals.
• Right of Restitution or Fair Compensation:
  • Deprivation of the right to property is permissible only upon restitution, be it monetary compensation, rehabilitation, or similar means.
  • Fair and reasonable compensation is the sine qua non for any acquisition process.
• Right to an Efficient and Expeditious Process:
  • The administration must be efficient in concluding the acquisition process within a reasonable time, as delays are traumatic for the property-bearer.
• Right of Conclusion:
  • The culmination of the acquisition process is not just the payment of compensation but also the taking over of actual physical possession and final vesting of the property in the State.