Power of Police to investigate after submission of closure report

Arnab Goswami vs. State of Maharashtra:

Maharashtra High Court has decided to dismiss the Application seeking interim relief of Stay on arrest holding that there is no illegality in arrest and continued investigation after the submission of closure report due to the reasons stated by police, is not illegal. Hence there is no merit in the contention that arrest is illegal. It observed:

Bail in Writ Jurisdiction:

No doubt, regard being had to the parameters of quashing and the self-restraint imposed by law, this court has jurisdiction to quash the investigation and pass appropriate interim orders as thought apposite in law. However, the powers are to be exercised sparingly and that too, in rare and appropriate cases and in extreme circumstances to prevent abuse of process of law.
44. In State of Telangana vs. Habib Abdullah Jeelani & others (supra), their Lordships have observed that the Courts have to ensure such a power under Article 226 of the Constitution of India is not to be exercised liberally so as to convert it into section 438 of Cr.P.C. proceedings.

45. The principle stated therein will equally apply to the exercise of this Court’s power under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure while considering the applications for
bail since the petitioner is already in Judicial custody. The legislature has provided specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure.

Read Full Judgment:

Ingredients for offence of abetment of suicide

Offence of Abetment to commit suicide:

Suicide note naming the accused as abettor if sufficient:

As pointed out by the High Court, of course PW-1 to PW-5 have spoken about the borrowing of money by the deceased and also the execution of the promissory note. The sheet anchor of the prosecution’s case to prove the guilt of the accused is the suicide note (M.O.1)-written by the deceased. On perusal of suicide note (M.O.1), it is seen that in M.O.1 the deceased has written about the financial difficulties faced by him and his inability to meet the financial crunch and also his inability to repay the same. The tenor of M.O.1 only shows that the deceased was subjected to pressure for payment and was facing the financial difficulty. In M.O.1 (letter) there is nothing to indicate that there was instigation by the appellant-accused which had driven the deceased to take the extreme step of committing suicide.

The essential ingredients of the offence under Section 306 I.P.C. are:

(i) the abetment;

(ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide.

The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide.

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Contempt of court

The right to approach Supreme Court under Article 32 of the Constitution of India is itself a fundamental right.

Assistant Secretary, Maharashtra Vidhan Mandal Sachivalaya issued this letter to Arnab Goswami, Editor of Republic TV, as follows :

“You were informed that the proceedings of the House are confidential………….despite this, it has been observed that you have presented the proceedings of the House before the Supreme Court on October 8, 2020. No prior permission was taken from the Speaker of the Maharashtra Assembly before presenting such proceedings in court. You have knowingly breached the orders of the Speaker of Maharashtra Assembly and your actions amount to breach of confidentiality. This is definitely a serious matter and amounts to contempt,…….”

Article 32(1) of the Constitution of India reads as under :

“32(1). The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”

There is no doubt that if a citizen of India is deterred in any case from approaching Supreme Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country.

Show Cause for contempt:

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Scope of authority of Telecom Regulatory Authority to seek information.

Application by TRAI to disclose information/details:

Validity of insistence of TRAI about the disclosure of segmented discounts/concessions:

By the Telecommunication Tariff (30th Amendment) Order dated 16.01.2004, the definition of “Reporting Requirement” was substantially modified, so as to include the principles of non­discrimination and non­-predation. This was amended by the 42ndAmendment Order dated 07.03.2006. The 52nd Amendment Order dated 19.09.2012, introduced a penalty clause to the Reporting Requirement. Eventually the impugned order namely the 63rdamendment Order dated 16.02.2018 was issued. The amended definition of Reporting Requirement makes it clear that the Reporting Requirement is for the information and record of the TRAI.

Directions by Supreme Court:

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Delay in approaching High Court in Writ Jurisdiction

Exercise of discretion by High Court in Writ Petition:

There is no doubt that the High Court in its discretionary jurisdiction may decline to exercise the discretionary writ jurisdiction on ground of delay in approaching the court. But it is only a rule of discretion by exercise of self ­restraint evolved by the court in exercise of the discretionary equitable jurisdiction and not a mandatory requirement that every delayed petition must be dismissed on the ground of delay. The Limitation Act stricto sensu does not apply to the writ jurisdiction. The discretion vested in the court under Article 226 of the Constitution therefore has to be a judicious exercise of the discretion after considering all pros and cons of the matter, including the nature of the dispute, the explanation for the delay, whether any third ­party rights have intervened etc.The jurisdiction under Article 226 being equitable in nature,questions of proportionality in considering whether the impugned order merits interference or not in exercise of the discretionary jurisdiction will also arise. This Court in Basanti Prasad vs. Bihar School Examination Board and others, (2009) 6 SCC791, after referring to Moon Mills Ltd. vs. Industrial Court, AIR1967 SC 1450, Maharashtra SRTC vs. Balwant RegularMotor Service, AIR 1969 SC 329 and State of M.P. and Others vs. Nandlal Jaiswal and others, (1986) 4 SCC 566, held that ifthe delay is properly explained and no third party rights are being affected, the writ court under Article 226 of the Constitution may condone the delay, holding as follows:

“18. In the normal course, we would not have taken exception to the order passed by the High Court.They are justified in saying that a delinquent employee should not be permitted to revive the stale claim and the High Court in exercise of its discretion would not ordinarily assist the tardy and indolent person. This is the traditional view and is well supported by a plethora of decisions of this Court.This Court also has taken the view that there is no inviolable rule, that, whenever there is delay the Court must refuse to entertain a petition. This Court has stated that the writ court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution may condone the delay in filing the petition, if the delay is satisfactorily explained.”

Indefinite black listing of a firm by Government

The aforesaid discussion, therefore, leads us to the conclusion that the writ petition was not barred by unexplained delay as the appellant had been pursuing the matter with the authorities and it is they who sat over it, triggering rejection of appellants tender by the Rajasthan Government on 05.07.2019 leading to the institution of the writ petition on 24.07.2019. The High Court therefore erred in dismissing the writ petition on grounds of delay. The illegality and the disproportionate nature of the order dated 08.09.2009, with no third party rights affected,never engaged the attention of the High Court in judicious exercise of the discretionary equitable jurisdiction.Consequently, the impugned order of the High Court as well as order dated 08.09.2009 of the respondents are set aside, and the appeal is allowed.

[Source: VETINDIA PHARMACEUTICALS LIMITED v. STATE OF UTTAR PRADESH decided by SC on Nov. 6, 2020]

Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

Time limit of 60 days under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002:

Directory or Mandatory:

The true intention of the Legislature is a determining factor herein. Keeping the objective of the Act in mind, the time limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time limit does not render the District Magistrate Functus Officio.

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Confinement of Prisoner in Cruel and Inhuman Prison Conditions

Taylor, a Texas inmate, alleges that in September 2013, correctional officers confined him in a cell covered, nearly floor to ceiling, in “ ‘massive amounts’ of feces.” Taylor did not eat or drink for nearly four days. Officers then moved Taylor to another, frigidly cold cell, which was equipped with only a clogged floor drain to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but eventually, involuntarily relieved himself, causing the drain to overflow and raw sewage to spill across the floor. The cell lacked a bunk and Taylor was confined without clothing; he was left to sleep naked in sewage.

Court of Appeal:

The Fifth Circuit held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment but, concluding that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court held that the prison officials did not have “ ‘fair warning’ that their specific acts were unconstitutional.”

Supreme Court of USA

The officers were not entitled to qualified immunity; no reasonable correctional officer could have concluded that, under these extreme circumstances, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for an extended period of time. There was no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency nor that those conditions could not have been mitigated, either in degree or duration. While an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

It was held that:

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment. But, based on its assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court concluded that the prison officials responsible for Taylor’s confinement did not have “ ‘fair warning’ that their specific acts were unconstitutional.” 946 F. 3d, at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

The Fifth Circuit erred in granting the officers qualified immunity on this basis. “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U. S., at 741 (explaining that “ ‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’ ” (quoting United States v. Lanier, 520 U.S. 259, 271 (1997))); 536 U. S.,at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F. 3d, at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was “ ‘going to have a long weekend’ ”); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would “ ‘f***ing freeze’ ”).

Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.[2] We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

[Source: Taylor v. Riojas, 592 U.S. ___ (2020) USA]

Police Summoning a person from New Delhi to Kolkata on a facebook post.

Facebook post implying State bias towards a community:

The FIR contains a statement that the posts imply that:

(i) the State administration was going soft on the violation of the lock down at Rajabazar as the area is predominantly inhibited by a particular community and;

(ii) that the State administration is complacent while dealing with lock down violations caused by a certain segment of the community.

Reasonable Exercise of power of summoning:

The court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass.

Full Order of Supreme Court:

SLP(Crl) 4937/2020
1
ITEM NO.20 Court 6 (Video Conferencing) SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No.4937/2020
(Arising out of impugned final judgment and order dated 29-09-2020
in CRAN No. 2/2020 passed by the High Court at Calcutta)
ROSHNI BISWAS Petitioner(s)
VERSUS
STATE OF WEST BENGAL & ANR. Respondent(s)

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What is a shared residence under Domestic Violence Act.

In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence Under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality…”

[ Source: Kunapareddy Alias NookalaShanka Balaji Vs. Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774]

Section 2(s), of Domestic Violence Act defines shared household asunder:

“(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;”

Questions raised before the Court:

(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

(2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?

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A book about law relating to Bail or Jail

Law relating arrest, bail and personal liberty in India is governed by various legislations as also a number of precedents.

Click here to read free sample of Bail at Google Play Books.

Click here to read free sample of Bail or Jail at Amazon Kindle.

An ebook about law relating to Bail in India. It helps to determine how to get out of prison or jail quickly by explaining all aspects of this branch of Criminal Law.

As regards legislations, it is governed by Criminal Procedure Code, 1973. Offences governed by Indian Penal Code 1860 besides other specialised laws e.g. Narcotics Drugs and Psychotropic Substances Act, 1985, Benami Property Act or Customs Act, 1962 etc.

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