As per a report in the Livelaw, the bench of the High Court stated that “We may note that foreign national cannot claim that he has right to reside and settle in India in terms of Article 19 (1) (e) of Constitution of India.”

The court added that “Fundamental Right of any such foreigner or suspected foreigner is limited to the one declared under Article 21 of Constitution of India i.e. fundamental right for life and liberty and there is nothing which may suggest that his liberty has been curtailed in an illegal or unlawful manner.”

With this, the court dismissed a habeas corpus plea moved before it through which it was claimed that Azal Chakma, a Bangladeshi national, had been detained illegally, without any authority, in India.

Brief details of the case against Chakma

The habeas corpus writ petition had been filed in the Delhi Court by the maternal uncle of Azal Chakma. Through the said plea, directions were sought by the Court regarding production of the person that is missing or has been illegally detained.

Arguments by the petitioner: It had been contended by the petitioners that Chakma has had Indian citizenship by birth and had even carried his initial education in Gomati in state of Tripura and later in Shillong, Meghalaya. It was further averred that Chakma had lived in India all his life except for a very brief period. It had been claimed by the petitioners that Chakma held an Indian passport, Aadhar card, PAN card and driving licence issued by Indian authorities, and was running a business in Kolkata.

Arguments by the respondents: The Foreign Regional Registration Office (FRRO) had claimed that Chakma had been apprehended at the Indira Gandhi International Airport in Delhi in October 2022 during immigration clearance as he was attempting to depart for Bangladesh on the strength of fraudulently obtained Indian Passport. It was in this backdrop that his movements were restricted. The authorities also asserted that scrutiny of the case revealed that Chakma had been visiting India till the year 2016 on the basis of multiple Indian visas on a passport issued to him by Bangladesh, as per the report of Deccan Herald.

They authorities argued that after having leaving India on a Bangladeshi passport in June 2016, it was unclear how Chakma subsequently sneaked into India. In view of this, the authority alleged that Chakma had entered India illegally through porous border and had managed to obtain Indian documents in “fraudulent and dishonest” manner. Notably, in June 2023, Indian authorities had revoked Chakma’s passport.

Regarding the issue of restriction on movement of Chakma in India, the bench had been informed that the provisions of the Foreigners Act had been used to impose the same.

Observations by the Court:

While dismissing the plea, the bench found that there was a lack of a plausible response from Chakma regarding the issue of documents and the passport issued to him by the Bangladeshi authorities as well as in terms to how and when he had entered India after going to Dhaka on the basis of Bangladeshi passport.

The bench further observed that Chakma himself is to be blamed for his miseries as he has failed to explain as to how he came back to India when he had left India on a Bangladeshi passport, as per the Livelaw report.

Notably, the bench had been apprised that the High Commission of Bangladesh has already issued travel documents for his repatriation and Chakma be deported as soon as the authorities get a confirmed air ticket for him from the Embassy of Bangladesh.

Decision of the Court:

In view of the observations made by the Court as well as the arguments made by the parties, the bench held the restriction of movement imposed on Chakma to be in accordance to law. The Court stated that “It is not a case of preventive detention. His movements have been restricted in accordance with law so that he can be deported back,” as stated in the LiveLaw report.

The bench further added that “As per his own admission made before the Bangladeshi authorities when he had applied for visa for India way back in the year 2010 and 2011, he claimed himself to be a Bangladeshi national by birth and in such a situation, there is no question of termination of his alleged Indian citizenship which he never seemed to have acquired.”

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The post Delhi HC: Foreigners cannot claim right to reside and settle in India, protections limited to Article 21 appeared first on SabrangIndia.

The Supreme Court came down heavily on Kerala government’s announcement of  a three-day relaxation in Covid restrictions for Eid-ul-Adha (Bakr Eid). The apex court has called this move “wholly uncalled for” and reportedly said the relaxations were a result of the state giving in to “pressure groups”.  A two-judge bench of Justices RF Nariman and BR Gavai told the Kerala government, “Pressurehood of any manner cannot infringe upon the most precious right of Right to Life for citizens of India. If any untoward incident takes place due to this relaxation, public can bring to our notice and action will be taken accordingly” reported NDTV, adding the SC however, it did not cancel the government notification easing the lockdown in the state.

The court thanked petitioner PK Nambiar for bringing the issue to its notice and directed the state government to “pay heed to Article 21 and its order in the Kanwar Yatra case.” Last week the SC had cited the fundamental right to life to order the Uttar Pradesh government to stop the annual Kanwar Yatra congregations. According to news reports the SC said, “The Kerala government has given in to the demand of traders to relax lockdown norms,” adding that it “can’t quash the Kerala government notification. The horse has already bolted.”

Kerala Chief Minister Pinarayi Vijayan had announced the concessions at a press conference on July 17 and said that in view of Eid al-Adha shops selling textiles, footwear, jewellery, home appliances, electronic items, and essential items etc will be allowed to open on July 18-20 from 7 A.M to 8 P.M in category A, B and C areas. After the SC observations, the CM has greeted the people on the eve of Eid and asked them to “celebrate responsibly, following Covid protocols.”

Bakrid shares the message of selflessness. In difficult times, those who selflessly serve society inspire us. Hope this Bakrid inspires us to do so, in a spirit of friendliness and brotherliness. Let’s celebrate responsibly, following Covid protocols. Warm Bakrid wishes to all! pic.twitter.com/wgq5PkAGZR

— Pinarayi Vijayan (@vijayanpinarayi) July 20, 2021

Meanwhile, the Uttar Pradesh government announced strict directives to be followed for the festival that will be celebrated across India on July 21. Chief Minister Adityanath is reported to have chaired a Covid-19 review meeting with senior officials, and issued instructions in view of Bakr Eid. According to news reports, in UP, “not more than 50 people should gather at any place at a given time for any event related to Bakrid.” The UP government has also told its officials to ensure that “no cows, camels or any other banned animals are sacrificed anywhere.” Animal sacrifice can only be carried out at designated spots or within private property. According to reports, the UP government has imposed Section 144 in Gautam Budh Nagar (Noida) till August 30. This is being cited as needed for enforcing covid appropriate behaviour as well as to prevent “a threat to peace and law and order by anti-social elements during the upcoming festivals such as Shivratri, Raksha Bandhan, Bakri-Eid, Janmashtami, Muharram.” Only 50 people will be allowed entry into any religious place at the same time, and all social, political, sports, entertainment, academic and cultural gatherings will need prior permission from the district administration.

In Andhra Pradesh, the state government has issued an advisory for the Eid al-Adha, stating that large congregations must be avoided and prayers must not be offered in Eidgahs or open places, the government also stated in the release. Prayers have been allowed in the state’s mosques with 50 per cent occupancy and mandatory masks and  social distancing in place. According to news reports people have been advised to “carry their own prayer mat to the mosque” and the Imams have been “requested to make the Eid khutbah (sermons) short.” 

In Assam, while the state government has also banned public congregations, India Today reported that a day ahead of  Eid Border Security Force (BSF) and Assam Police seized at least 20 cattle in two separate operations from markets along the Indo-Bangladesh border. According to the report, “BSF personnel raided a cattle market at Fakirabazar area in Karimganj which was illegally set up near the Indo-Bangladesh border and seized 16 cattle.” In a separate operation, Karimganj district police raided another cattle market in Balia area, stated the news report, here the authorities “seized four cattle and apprehended six persons.” Police officials told the media that the market was set up in violation of Covid-19 protocols. 

On July 12, the Assam government introduced the Assam Cattle Preservation Bill 2021 to bring in more stringent measures to check the slaughter of cattle in the state. These include greater scrutiny of the process to obtain a “fit for slaughter” certificate by a Veterinary Officer, stricter rules regarding transport of cattle, especially across state lines, and restrictions on the sale and purchase of beef in areas inhabited by Hindus and other non-beef eating communities.  

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The Bombay High Court has observed that prisoners have a right to their medical records under right to life under Article 21 of the Indian Constitution. The vacation bench of Justices SJ Kathawalla and SP Tavade said that medical records include test results, prescribed medicines and upon such request made by the prisoner, prison officials should provide the same.

This observation was made by the bench while hearing a petition filed seeking medical attention for lawyer and activist Sudha Bharadwaj, accused in the Bhima Koregaon case. The bench further stated that prisoners should be allowed to make a phone call to an approved family member after any hospital visit.

Advocate Yug Chaudhry informed the court that after filing the petition, Bharadwaj had received medical attention, and thus, was not pressing for interim bail. Bharadwaj’s daughter, Maaysha Singh had filed the petition under Article 226 of the Constitution stating that her 60 year old mother had diabetes, hypertension, ischemic heart disease and pulmonary tuberculosis history, and that 3 of her co-prisoners had tested positive Covid-19. The family had also raised grievance that they were not given access to Bharadwaj’s medical records and neither were they allowed to speak to her after hospital visits.

Chaudhry brought to the court’s notice that this situation was faced by all prisoners, and if medical records are provided on request, it would cut down litigation as well. While ASG Anil Singh appearing for NIA submitted that it was for the state government to take the decision, he said that such facility should be extended only to Bharadwaj and not all prisoners.

The court, however, ordered that Bharadwaj’s family be given access to her medical records and she be allowed a phone call with a family member after hospital visit and also observed that all prisoners were entitled to the same as it is part of right to life under Article 21 of the Constitution.

The order may be read here:

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The Madhya Pradesh High Court has issued a slew of directions to the state government to deal with the Covid-19 crisis in the state where people are struggling with inadequate oxygen supply in hospitals, high priced treatments and illegal trade in life-saving drugs like Remdesivir. The bench of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan also highlighted the obligation of the state to ensure fulfilment of right to health guaranteed under the Constitution.

The court had taken suo moto cognizance of the letter forwarded by the Supreme Court whereby Senior Advocate Ashwani Kumar had highlighted a tragic incident where an elderly patient was chained to a hospital bed in Bhopal allegedly on his failure to make payment of fees for his treatment.

In September 2020, the court had directed the state to issue necessary directions to every hospital to display the rates for Covid treatment at their reception counters and publish the same in newspapers, to curb overcharging; and kept issuing slew of directions at following hearings.

The various interventions and submission made by the parties and the issued raised therein were summed up by the court:

• Several deaths have been reported due to non-availability of Oxygen

• There is an acute shortage of Remdesivir, a drug widely used in the treatment of Covid-19 and private hospitals are exploiting the situation by over-charging for it

• No dedicated Covid hospitals in most districts

• Oral instructions have been issued to all Private Labs/ Private Hospitals/Nursing Homes not to conduct any RTPCR and Rapid Antigen Tests

• Despite government prescribed rates for treatment, private hospitals were over-charging patients

• Private hospitals only providing beds to those who are ready to pay higher charges

• Most of the private hospitals are not providing cashless treatment to the patients having insurance cover

• the private hospitals empanelled and approved for Covid-19 treatment under Ayushman Bharat Yojana are also not accepting the Covid patients and the patients from Below Poverty Line having BPL cards under Deendayal Antyodaya Upchar Yojana are also not being provided treatment under that scheme by approved Hospitals

• There is lack of system whereby it could be known as to how many normal beds, ICU beds and Ventilators are available in Government and Private Hospitals as the portal “Sarthak” is not regularly updated

• Correct number of positive cases being suppressed by district administration

• Delay in Covid-19 test results and if person dies before getting positive report, the dead body is handed over to family without following Covid protocol

The amicus curiae as well as the counsels for the petitioners said that news reports have stated that patients are being asked to bring their own Oxygen cylinders with them and manage the vials of Remdesivir on their own.

Court’s observations

After taking these submissions into consideration, the court observed thus,

“It is the duty of the Government to ensure that common man is not made to suffer due to non-availability of Oxygen and life saving drug like Remdesivir. The Government has miserably failed to ensurethe availability of treatment to poor and needy, especially in semiurban and rural areas thereby violating the right to life of the citizens enshrined in Article 21 of the Constitution of India.”

The court stated that this was indicative of disorganised health infrastructure and the government miserably failing to manage this medical emergency despite advance warning. “the entire State machinery has been caught off-guard and has been found lacking in its efforts to provide basic health care to the citizens,” the court said.

The court’s directions

• The court has directed the government to ensure strict compliance of all directions issued by the court in this petition as well as the order issued by the government that private hospitals cannot charge more than 40% of the rate decided by the government for treating patients.

• The government should fix the rates for being charged by the private Hospitals and labs for treatment/tests

• State Government should ensure strict compliance of all such directions including about the treatment of poor patients under Ayushman Bharat Yojana reserving 20% beds for Ayushman Bharat Yojana beneficiaries and increase the empanelment of more private hospitals under the said scheme.

• The State Government should ensure regular and continuous supply of Oxygen not only to the Government Hospitals but also to private hospitals

• Since the State is wholly dependent on supply of Liquid Oxygen from other States it should initiate the process of setting up Liquid Oxygen Plant

• The State Government must come forward to assist private hospitals in setting up their Oxygen-Concentration Units by providing them soft loan by involving leading Banks and Financial Institutions

• The State Government should ensure the availability of Remdesivir injection and regulate its supply

• The State Government should be required to restore the facilities of 262 hospitals Covid Care Centres (CCC), 62 Dedicated Covid Health Centre (DCHC) and 16 Dedicated Covid Hospital (DCH)

• the State Government shall ensure that the District Collectors and Chief Medical & Health Officers in every District shall periodically hold meetings with the heads of all Government Hospitals, Private Hospitals/Nursing Homes and Diagnostic Centres/Labs to take stock of the day to day situation of the number of patients, availability of normal beds, ICU beds and Ventilators and also as per the requirement consider enhancing the capacity to cater to the need of a given place;

• the State Government shall ensure displaying of data with regard to availability of normal beds, ICU beds and Ventilators on its Sarthak portal on real time basis

• On the basis of regular vigil about the availability of normal beds, ICU beds and Ventilators, the District Collector should take day to day decision for increase in the number of such beds by procuring additional infrastructure to ensure continuous availability of medical health care

• the State Government should require all the private Hospitals/medicine shops to display the rates of Remdesivir per vial, separately for generic and branded injections, and all of them should be mandated not to charge more than the prescribed rates

• Even if supply of Remdesivir is regulated, the process should be hassle free and requisition by doctor and the supply should not exceed an hour

• the State Government should give due publicity to the Toll Free Number 1075 (with the STD code number of respective districts) of its Covid Command and Control Centres so that the Covid patients and their family members/attendants having any grievance may lodge complaint

• The government should take over marriage halls, stadium, schools, and set up more CCC, DCH and DCHC

• the State Government should consider reappointing those Medical Officers, Para Medical and Nursing Staff, who have retired during past two to three years

• Hospitals shall not refuse to attend the patients suffering from other serious ailments and provide them timely treatment depending on the seriousness of the ailments.

The court observed that the need of the hour in the time of crisis is to have the best of cooperation and coordination with the Hospitals and Nursing Homes in the private sector and seek their support for timely treatment.

The court has sought action taken reports in regards to these directions at the next hearing, May 10.

Right to health

In its order, the court gave specific emphasis upon the right to good health as being part of the right to life under Article 21 of the Constitution. The court also referred to Article 38, Article 39(e), Article 41 and Article 47, part of Directive Principles of State Policy.

“The right to health can be secured to the citizens only if the State provides adequate measures for their treatment, healthcare and takes their care by protecting them from calamities like Coronavirus,” the court stated. The court also referred to Article 25 of the Universal Declaration of Human Rights, ratified by India, which is considered as having the force of customary international law declares that “Everyone has the right to a standard of living adequate for the health…” as also the International Covenant on Economic, Social and Cultural Rights (ICESCR), which stated that the State should recognize enjoyment of the highest attainable standard of physical and mental health and should take steps for prevention, treatment and control of a pandemic.

The court also cited a catena of judgments passed by the apex court where it has interpreted Article 21 to include individual’s right to health.

“The right of the citizen to adequate healthcare emanates from the dignity and sanctity of the human life which belongs to all of them. Health, besides being a fundamental right, is a basic human right, which no popular government can afford to negate. Health has its own prerequisites of social justice and equality and that it should be accessible to all,” the court observed.

The court stated that the core obligation of the State in securing the right to life to all its citizens is non-negotiable. “Article 21 of the Constitution of India in this regard clearly casts a duty on the State to take whatever steps are necessary in securing such rights to access to health facilities to the citizens. It also includes an obligation on the State in ensuring access to all the citizens inflicted with disease of Coronavirus with life saving means and drugs such as Oxygen and Remdesivir in this case,” the court said.

The complete order may be read here.

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The Allahabad High Court observed that the Sessions Judge and Magistrates have not performed their duty and noted, “A mass disaster or Pandemic may severely obstruct our life and governing systems in many ways but the doors of the courts of law must remain open for the protection of Article 21 of the Constitution of India.” (Abhishek Srivastava v State of U.P Bail App No. 5384 of 2020) and (Sanjeev Yadav v State of U.P Bail App No. 5756 of 2020).

Criticising the conduct of lower courts, Justice Attau Rahman Masoodi remarked, “Non-performance of duty owing to holidays is firstly a serious dereliction of duty on the part of the Session Judges/magistrates.”

Background

The Court was hearing two bail applications on the ground of default on the part of the prosecution to file the charge sheet within the statutory period as provided under Section 167(2) of Code of Criminal Procedure which violated their right to personal liberty embodied under Article 21 of the Constitution of India.

The First Bail application (Bail No. 5384 of 2020) was filed by one Abhishek Srivastava and the second one (Bail No. 5756 of 2020) was filed by one Sanjeev Yadav. Abhishek Srivastava’s first remand order was passed on January 16, 2020, thereafter, the judicial custody continued from time to time and lastly, the remand was extended for a period of fourteen days, that is up to March 25, 2020.

Subsequently, due to Covid imposed lockdown, no remand orders could be passed from March 25 to June 26, 2020.

The period of 90 days (as mandated under section 167[2]) in his application expired on April 14, 2020 and in absence of any remand order since March 25, the applicant (Abhishek Srivastava) continued languishing in jail till the filing of the charge sheet on May 1 and thereafter until the rejection of default bail by the Magistrate on June 26.

Similarly, in the case of Sanjiv Yadav, his right of default bail accrued to him on April 29, 2020 on completion of 90 days. This right was very much alive when the charge sheet was filed in the court on May 5, however, he too was denied default bail.

The Single Bench then opined on Abhishek’s application, “The personal liberty of the accused applicant oscillated without any attention either by the prosecution or the guardian of justice i.e. courts. The duty on the part of the State to set the applicant free by apprising the court was given a complete go by to legitimize the default. Non-performance of the judicial duty also owes its failure to the nationwide lock-down due to Pandemic Covid19.”

So, the issue that the court was faced with was whether such a right guaranteed under Article 21 of the Constitution of India would stand eclipsed under the lock-down directives issued by the Government or any directives issued by the High Court applicable on holidays contrary to the mandate embodied under Section 167(2) Cr. P.C?

Section 167(2) empowers the Magistrate to detain an accused in jail for a maximum period of 90 days only.

Courts observations and final order

While taking note of the matter before it, the High Court said, “The District Judges were under a bounden duty to assign the remand duty to the courts of magistrate/Session Judge during the lock-down period and irrespective of the fact that the courts were closed, the remand matters were bound to be taken up and wherever the indefeasible right of personal liberty accrued to an accused incarcerated in jail, he ought to have been offered default bail in the manner prescribed under Section 167(2) of the Cr.PC.”

“The remand matters could not be ignored selectively by attaching preference or priority to fresh/first remand cases in derogation of the procedure applicable on holidays”, the Bench added. With respect to Abhishek Srivastava’s application, the court said, “The report forwarded by the District Judge, Lucknow is alarming and the selective role which the courts have played from March 25 to April 16, 2020 deserves to be condemned.”

The court also lamented over the unfortunate situation created by the State. “It is unfortunate to note that the legal services which the law contemplates as an essential service for victims was rendered inadequately by the State as well as by the legal services authorities during the Pandemic Covid-19. In the absence of the services of legal practitioners, the State was under a bounden duty to activate legal aid authorities to deal with the situation and the benefit of default bail accruing anywhere ought to have been effectively taken up before the courts”, he said.  

Regarding the two bail pleas filed by the petitioners, the court first noted that in Abhishek Srivastava’s application, “There is a clear dereliction of duty in Bail Application No. 5384 of 2020 (Abhishek Srivastava v. State of U.P.) and the position is amply evident from the report of the District Judge,” and directed the Magistrate to order for his immediate release.

With regard to the second Bail Application No. 5756 of 2020 (Sanjeev Yadav v. State), Justice Masoodi noted, “The prosecution has adopted a peculiar stand to justify the default. It is stated that the closure of court prevented them to file the charge sheet before the deadline i.e. April 29. The prosecution has taken a bald plea without showing any steps having been taken to file the charge sheet by approaching the court or through online service.”

Further, the Court said, “The right of default bail which undoubtedly accrued to the applicant became enforceable on 29.4.2020 (April 29). This right was very much alive when the charge sheet was filed in the court on 5.5.2020 (May 5) and survived thereafter.” The Court said that the applicant Sanjeev Yadav was entitled to be enlarged on bail.

The Allahabad High Court directed the Senior Registrar of this Court, in the light of report forwarded to the Court on September 29 by the District Judge, Lucknow, to obtain the relevant details of magistrates/Session Judges from District Lucknow/Hardoi who had failed to pass remand orders from March 25 to June 16.

The matter has now been listed on December 10.

The order may be read here:

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Right to default bail: Not just statutory, but a fundamental right

Right to default bail can’t be nullified by post facto complaint: SC

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In a significant ruling, the Madhya Pradesh High Court has held that production of victims and suspects before the media and disclosure of personal information of the suspect to the media or display of their photographs in newspapers or on any digital platform are violative of Article 21 of the Constitution of India.

The Gwalior Bench of Justice G.S. Ahluwalia passed this order in a writ petition on November 2. Suresh Agrawal represented the petitioner and Advocate General Purushendra Kaurav appeared for the respondents.

The court also added that, “parading of suspects in general public is also held to be violative of Article 21 of the Constitution of India. The publication of photographs of suspects whether with covered or uncovered faces shall also not be done under any circumstances.”

Further, the Bench directed the State Government to “implement the Witness Protection Scheme in its letter and spirit.” The Director General of Police, was also directed to issue necessary instructions with regard to providing protection to the witnesses as well as to ensure prompt appearance of witnesses including the police witnesses before the Trial Court.

Background

The petitioner, accused of encroaching upon a part of his landlady’s house, had alleged that his uncovered face’s photograph was published in the newspapers as well as on social media, by projecting him as a ‘hard core criminal’.

The police officer who had arrested the petitioner was placed under suspension and the said news was published in all the newspapers. Later, it was found out that his suspension was revoked.

Aggrieved by this, the petitioner filed a plea before the High Court. After notice was issued in the petition, a meagre fine of Rs. 5,000 was imposed on the police officers.

When asked about the law under which photographs of the uncovered face of an accused can be published, the State submitted a circular issued by the Director General of Police on January 2, 2014. The circular permitted the sharing of information and photos pertaining to an accused with the media subject to various restrictions.

Clause 6A of the said circular states that the suspect/accused should not be produced before the media but clause 8 allows the police to produce the suspect as well as the victim before the media after the recording of the police statement. Further, Clause 6B of the circular prohibited the display of photographs of an accused till the Test Identification Parade is conducted.

Court’s analysis of the circular

The court opined that the circular itself is self-contradictory in nature and that, “On one hand, it speaks about protecting the fundamental rights of an accused, but on the other hand, it gives liberty to the police men to violate the fundamental rights of the suspects/accused.”

Accordingly, the court quashed the clauses 6B, 8 and 11 of the circular dated January 2, 2014 issued by the Director General of Police in exercise of its suo motu power under Article 226 of the Constitution of India.

The Bench relied on a catena of cases and opined that, “privacy/reputation/dignity of a citizen of India, are integral part of Article 21 of the Constitution of India and cannot be infringed, unless and until a restriction is imposed by or under the authority of law and such restriction should be reasonable having nexus with object sought to be achieved. The Privacy/ reputation/dignity of any person, including a hardcore criminal cannot be violated, unless and until the reasonable restriction permits to do so.”

Adding on, the court also observed that, “tarnishing the reputation of a person, by the police, on the basis of its own investigation, amounts to prejudging the correctness of the allegations, which is unknown to Indian Law, and a person is presumed to be innocent, unless and until he is convicted. Thus, without there being any statutory provision putting reasonable restrictions, the police cannot violate the fundamental rights i.e., Privacy/dignity/reputation of a citizen of India, on the basis of an executive instruction issued by the Director General of Police.”

Focusing on the menace of media trials the court further noted that, “By producing the victims and suspects before the media, the police not only violates the fundamental rights of the suspect as enshrined under Article 21 of the Constitution of India but also encourages the media trials.

The police “instead of tapping its own back by disclosing the identity of the suspected persons in print, social or digital media, must concentrate on ensuring the timely appearance of the police witnesses before the Trial Court, so that the guilt of a person can be established”, ruled the court.

On the petitioner’s detention

The court took cognisance of the fact that the aggrieved petitioner was not only evicted from his shop without court orders, but also illegally detained by the police. Further, the court noted that it was a case of mistaken identity and that the petitioner was wrongly taken into custody as some other person with similar name and details was wanted in a criminal case.

The court referred to D.K Basu v State of West Bengal AIR 1997 SC 610 and said that, “If the petitioner was taken into custody under a mistaken identity, then there was no hurdle for the police to arrest him formally after following the requirements as directed by the Supreme Court in the case of D.K. Basu.”

It said in absence of any formal arrest, there was no occasion for the police, to publish the uncovered face of the petitioner in the newspaper or on any social media platform, thereby projecting him as a criminal.

“Thus, it is clear that for no reasons, the petitioner was not only kept in illegal detention, but his reputation was tarnished and his privacy and dignity was violated”, added the court. The Bench also issued a show cause notice to the respondent police officers to explain as to why they should not be punished for contempt of court.

In terms of compensation, the court noted that, “it is clear that violation of Fundamental Right of a person due to police misconduct, would not only give rise to a liability under Criminal, Tort and Public Law but pecuniary compensation can also be awarded.”

This matter has now been slated for hearing on November 9, 2020 where the Superintendent of Police, Gwalior has been directed to appear through video conferencing with the entire record for the assistance of the Court.

The order may be read here: 

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NHRC study recommends protecting the anonymity of rape accused until proven guilty

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