List of Current Affairs

Source: Rajasthan High Court

Why in News?

A bench of Justice Anoop Kumar Dhand denied anticipatory bail to the accused in a case looking into several factors of the offence.

• The Rajasthan High Court denied the bail in the case of Dilip Sharma v. State of Rajasthan.

What is the Background of Dilip Sharma v. State of Rajasthan Case?

• Multiple First Information Reports (FIR) were registered against the petitioner Dilip Sharma alleging that he had fabricated and forged certain land pattas (title deeds) which were never issued by the Ajmer Development Authority (ADA).
• The petitioner was arrested and remained in police custody for one week before being granted bail.
• Prior to the petitioner's arrest, investigation in all four FIRs was clubbed together by orders of the Superintendent of Police. However, the petitioner was not arrested in the other three FIRs.
• While submitting the chargesheet, the Investigating Agency concluded that after fabricating the documents, the petitioner had destroyed the evidence and photographs used in preparing the forged pattas and documents.
• The petitioner challenged the validity of all four FIRs before the High Court by filing separate petitions, wherein he was granted interim protection.
  • While enjoying interim protection, the petitioner allegedly threatened the witness, whose statement was recorded, and the complainant.
• Two criminal complaints were filed against the petitioner before the Additional District Magistrate (City), Ajmer, who found a prima facie case and directed the petitioner to maintain peace for six months.
• An audio conversation surfaced where the petitioner admitted being ready to return Rs. 42 Lakh instead of Rs. 50 Lakh, leading to another FIR being registered against him.
• Based on these facts and allegations, the petitioner filed anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 now Section 482 Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) applications before the High Court.

What were the Court’s Observations?

• The court rejected the petitioner's anticipatory bail applications in all the FIRs.
• The court considered factors like the nature and gravity of allegations, likelihood of influencing witnesses, and the need for custodial interrogation.
• Despite the petitioner's arguments about repeated FIRs and prior availablity for interrogation, the court found the allegations serious enough to not grant anticipatory bail.

What is the Law Related to Anticipatory Bail under Bharatiya Nagarik Suraksha Sanhita?

• Subsection (1): Application for Bail Direction
  • Any person who believes they might be arrested for a non-bailable offence can apply to the High Court or the Court of Session.
  • The court, if it deems appropriate, may direct that the person be released on bail in the event of their arrest.
• Subsection (2): Conditions for Bail Direction
  • When issuing a direction for bail under subsection (1), the court can impose conditions based on the specifics of the case, including:
    • (i) The person must be available for police interrogation whenever required.
    • (ii) The person must not threaten, induce, or promise any person related to the case to prevent them from revealing facts to the court or police.
    • (iii) The person must not leave India without the court's prior permission.
    • (iv) Any other condition that could be imposed under subsection (3) of section 480, as if bail were granted under that section.
• Subsection (3): Arrest and Bail Procedure
  • If the person is arrested without a warrant by a police officer on the stated accusation and is willing to provide bail either at the time of arrest or while in custody, they should be released on bail.
  • If a Magistrate, upon taking cognizance of the offence, decides a warrant should be issued initially, they must issue a bailable warrant according to the court's direction under subsection (1).
• Subsection (4): Exclusion for Specific Offences
  • This section does not apply to cases involving arrests for offences under section 65 and subsection (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS).

What are the Landmark Judgments on Anticipatory Bail?

• Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr. (2010):
  • The Supreme Court highlighted the factors to be considered for anticipatory bail, including prima facie grounds for accusation, nature and gravity of accusation, severity of punishment, likelihood of absconding, conduct of accused, likelihood of influencing witnesses, and danger of justice being thwarted.
• Masroor v. State of U.P. (2009):
  • The Supreme Court observed that while granting bail, elaborately examining evidence should be avoided to not prejudice the accused, but reasons for prima facie concluding bail should be indicated, especially in serious offences.
• Nimmagadda Prasad v. CBI (2013):
  • The Court stated that while granting bail, the nature of accusations, evidence, severity of punishment, character of accused, possibility of securing presence, apprehension of influencing witnesses, public interest, etc. must be considered.
  • Only reasonable belief of a genuine case, not evidence establishing guilt beyond doubt, is required at this stage.

Source: Sikkim High Court

Why in News?

Recently the matter of Karan Chettri v. State of Sikkim has gained attention due to the Sikkim High Court's review of the Trial Court's sentencing for gang rape under Section 376D IPC. The High Court emphasized its authority under Section 397 of the Criminal Procedure Code, 1973 (CrPC) to revise the sentence despite the State's failure to appeal, ensuring compliance with the statutory minimum punishment of twenty years imprisonment for such offences.

• The case highlights the High Court's authority to correct sentencing errors and ensure adherence to statutory minimum punishments, even in the absence of an appeal by the State.

What was the Background of Karan Chettri v. State of Sikkim?

• Karan Chettri v. State of Sikkim and Nima Sherpa @ Nani Ko Bau v. State of Sikkim, both cases arose from a common FIR.
• The accused was found guilty, and the trial Court had sentenced the appellants to 12 years of imprisonment for the offence of gang rape under Section 376D Indian Penal Code 1860(IPC).
• The appellants challenged their conviction by the Fast Track Court at Gyalshing, Sikkim, under various sections of the Indian Penal Code, including Sections 450 (house trespass), 376D (gang rape), and 376(2)(l).
• The Appeal is filed in Sikkim High Court.

What were the Court’s Observations?

• The division bench was reviewing the appeal filed by the accused against their conviction for gang rape by the trial Court.
• The Sikkim High Court affirmed its authority under Section 397 of CrPC to exercise revisional powers despite the State's failure to appeal an incorrect sentencing order.
• It emphasized that the State's neglect in not appealing against the erroneous sentence does not bar the High Court from utilizing its revision powers under Section 397 and Section 401 of CrPC to potentially enhance the sentence.
• The court stated that the convict must be duly notified and provided with an opportunity to be heard on the matter of sentencing, either personally or through legal representation.

What is BNSS?

Introduction

• Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is one of the three criminal law bills introduced by the Union Government to replace the Criminal Procedure Code, 1973 (CrPC).
• BNSS was passed in Lok Sabha on 20^th December 2023 and in Rajya Sabha on 21^st December 2023.
• On 25^th December 2023, the President gave her assent to the three new criminal code bills.

What is Section 438 of BNSS ?

About:

• Section 438 of BNSS deals with the calling for records to exercise powers of revision, which was dealt with under Section 397 of CrPC, earlier. It states that—
• The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record.

Explanation —All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 439.

• The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
• If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

What is Section 442of BNSS?

• Section 422 of BNSS deals with the High Court's Powers of revisions which was dealt with under Section 401 of CrPC. It states that-
• In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 427, 430, 431 and 432 or on a Court of Session by section 344, and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 433.
• No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by advocate in his own defence.
• Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.
• Where under this Sanhita an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
• Where under this Sanhita an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

Case Law

• Easwaramurthy v. N. Krishnaswamy (2006), the Madras High Court held that the words 'direct that execution of sentence or order be suspended' mentioned in Section 397(1) of CrPC must be read 'dis-conjunctively' from words 'and if the accused is in confinement that he be released on bail or on his bond pending the examination of the record.
• Mohd. Hasim vs. State of Uttar Pradesh and Others (2016), where it was held that courts do not have discretion to reduce the sentence when there is a prescribed minimum sentence under the law.

Source: Karnataka High Court

Why in News?

Recently, the Karnataka High Court in the matter of Mrs. X v. State of Karnataka & Anr. has stated that a woman who is a victim of prostitution cannot be punished for offences punishable under Section 5 of the Immoral Traffic Prevention Act, 1956 (The Act).

What was the Background of Mrs. X v. State of Karnataka & Anr. Case?

• The fulcrum of the complaint is that on 13^th January 2013 the Police Sub-Inspector attached to the crime wing of Kundapura Police Station received an information that some girls are being illegally transported from Udupi to Goa in a tempo traveler for the purpose of putting them in the business of prostitution.
• It is after such interception; the facts emerge that accused No.1 along with accused No.9 were taking the petitioner (accused No.8) and others for engaging them in the business of prostitution by paying them Rs.10,000/- each.
• On the basis of the said incident, a crime comes to be registered and the Police after investigation file a charge sheet against all the accused including the petitioner, who is arrayed as accused No.8.
• The concerned Court takes cognizance of the offence punishable under Section 5 of the Act against the petitioner along with others.
• Thereafter, the criminal petition is filed before the Karnataka High Court to quash the proceedings against the petitioner (accused no. 8).
• The learned counsel appearing for the petitioner would vehemently contend that the petitioner is the victim of prostitution at the hands of other accused and, therefore, the petitioner should not be permitted to be prosecuted.
• The Criminal petition is allowed by the High Court.

What were the Court’s Observations?

• A single judge bench of Justice M Nagaprasanna observed that the provisions, the purpose or the object of the Act is not to abolish prostitution or the prostitute. There is no provision under the law which penalizes a victim who indulges in prostitution.
• It was further states that nowhere Section 5 of the Act would indicate that a woman who is a victim of prostitution should be punished for offences punishable under Section 5 of the Act. It clearly indicates that any person who procures or attempts to procure a woman or a girl for the purpose of prostitution would become liable for such prosecution.

What is Section 5 of the Immoral Traffic Prevention Act, 1956?

About the Act:

• This Act aims to prevent the commercialization of vices and the trafficking of females.
• It delineates the legal framework surrounding sex work.
• While the act itself does not declare sex work illegal, it prohibits running brothels. Engaging in prostitution is legally recognized, but soliciting people and luring them into sexual activities are considered illegal.

Definition of Prostitution:

• Prostitution, as per the act, is the sexual exploitation or abuse of persons for commercial purposes

Section 5:

• This Section deals with procuring, inducing or taking person for the sake of prostitution.
• It states that—

(1) Any person who—

(a) Procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or

(b) Induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) Takes or attempts to take a person, or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or

(d) Causes or induces a person to carry on prostitution;

shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years.

Provided that if the person in respect of whom an offence committed under this sub-section, —

(i) Is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and

(ii) Is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.

(3) An offence under this section shall be triable—

(a) In the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or

(b) In the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.

What is the Legality of Sex Work in India?

Sex Work as a Profession:

• The Supreme Court in the case of Budhadev Karmaskar v. State of West Bengal (2022), has recognized sex work as a “profession” and observed that its practitioners are entitled to equal protection of the law and criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
• The Court held that Voluntary sex is not a crime.

Highlights of Judgment in Budhadev Karmaskar v. State of West Bengal (2022):

• Criminal Law:
  • Sex workers are entitled to equal protection of the law and criminal law must apply equally in all cases, on the basis of ‘age’ and ‘consent’.
  • When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.
  • Article 21 of the Constitution of India, 1950 (COI) declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens.
  • Sex workers should not be “arrested or penalised or harassed or victimised” whenever there is a raid on any brothel, “since voluntary sex work is not illegal and only running the brothel is unlawful”.
• Right of Child of a Sex Worker:
  • A child of a sex worker should not be separated from the mother merely on the ground that she is in the sex trade.
  • Basic protection of human decency and dignity extends to sex workers and their children.
  • Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that the child was trafficked.
  • In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.
• Medical Care:
  • Sex workers who are victims of sexual assault should be provided every facility including immediate medico-legal care.
• Role of Media:
  • Media should take “utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.