On August 20, the Supreme Court slams the Calcutta High Court over the objectionable observations made by the Division bench of the High Court while passing the impugned judgement against the conviction of accused charged under Section 6 of the POCSO, Act 2006 and Sections 363/366 and clause (n) of sub-section (2) and sub-section (3) of Section 376 of the IPC, 1860.

The High Court of Calcutta vide its impugned judgement dated October 18, 2023, set aside the conviction of the accused under the provisions abovementioned, where the High Court observed that while achieving ostensible objectives to protect all children below 18 years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationships.

The Supreme Court of India, expressed its displeasure with the observations and reasoning adopted by the High Court while passing the impugned judgement.

Brief background of the case

The victim, a girl who was fourteen years old at the time of the incident. The victim’s mother lodged a First Information Report (FIR) on May 29, 2018. The victim’s mother stated in her complaint that the victim, who was her minor daughter, escaped from her home at 5:30 p.m. on May 20, 2018 without informing anyone. On inquiry, it was found that the accused enticed her to leave her house. The accused did so with the help of his two sisters. The victim’s mother repeatedly visited the house of the accused and requested him to facilitate the return of her daughter. However, the victim did not come back. A female child was born to the victim.

The accused was arrested on December 19, 2021. The chargesheet was filed on January 27, 2022 against the accused for the offences for which he was convicted. Initially, the accused was charged with Section 9 of the Prohibition of Child Marriage Act, 2006. Later, the Ld. Special judge under the POCSO Act found that there was no evidence of marriage between the victim and the accused and the charge under Section 9 of the 2006 Act was held as not substantiated.

The Ld. Special Judge, Baruipur, South 24 Parganas, convicted the accused for the offences of punishable under Section 6 of the POCSO Act and Sections 363 and 366 of the Indian Penal Code, 1860.

Appeal against conviction before Calcutta High Court

The accused preferred an appeal before the Calcutta High Court against the Conviction. The Division Bench of the Calcutta High Court on October 18, 2023, vide its impugned judgment held that the offences punishable under Section 363 and 366 of the IPC were not made out and the High Court acquitted the accused for the two offences and while exercising its jurisdiction under Article 226 of the Constitution of India read with Section 482 of the CrPC, 1973 set aside the conviction of the accused for the offences punishable under Section 6 of the POCSO Act and sub-sections 2(n) and (3) of Section 376 of the IPC. The bench observed that the mother of the victim had disowned her and therefore, the victim was continuously residing with the accused along with their minor child.

State of West Bengal’s appeal against judgement/order of the HC

Aggrieved by the judgement and order dated October 18, 2023, passed by a Division Bench of the High court, the State of West Bengal preferred Criminal Appeal No. 1451 of 2024 before the Supreme Court as a suo moto writ petition, in pursuance of directions issued by the Hon’ble Chief Justice of India for challenging the impugned judgement. In the present case, senior counsel Madhvi Divan and Liz Mathew were appointed by the Supreme Court as amicus curia to assist the Court.

Observations of the Supreme Court against High Court’s Decision

The division bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan while setting aside the impugned judgement and order dated October 18, 2023 of the High Court of Calcutta observed that “the division bench has invited a very peculiar concept of “non-exploitative sexual acts” while dealing with the offences punishable under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act. We fail to understand how a sexual act, which is heinous offence, can be termed as non-exploitative”.

“When a girl who is fourteen years old is subjected to such a horrific act, how can it be termed as “non-exploitative”? The bench questioned.

The Bench has also invented a non-existent category of “older adolescents” and lamented about the lack of recognition of the consensual behaviour of older adolescents. The bench added that “We fail to understand this concept of “older adolescents”.”

In relation to the observation made by the High Court that by equating Suo Motu Writ Petition (C) no.3 of 2023 etc. Page 16 of 50 consensual and non-exploitative sexual acts with rape and aggravated penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents, the SC held that “what is shocking is the observation made in paragraph 23 of the impugned judgment where the High Court observed that while achieving ostensible objectives to protect all children below 18 years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationship”

The SC added that “surprisingly, carved out a non-existing category of romantic cases in the rape cases. While dealing with the offences under the POCSO Act, shockingly, the Court observed that the law undermines the identity of adolescent girls by casting them as victims, thereby rendering them voiceless.”

While expressing the disagreement with the observation of the High Court, the bench said that “the judges ought to have avoided expressing their personal views even assuming that there was some justification for holding the views. While the High Court observed this, it forgot that in the facts of the case, the Court was not dealing with the sexual acts involving adolescents above sixteen years, as the age of the victim was fourteen years and the accused was twenty-five years at the relevant time”

“The duty of the High Court was to ascertain on the evidence whether the offences under Section 6 of the POCSO Act and Section 376 of the IPC were made out. In view of “sixthly” in Section 375 of the IPC, penetrative intercourse with a woman under eighteen years of age, with or without her consent, constitutes an offence of rape. Therefore, whether such offence arises from a romantic relationship is irrelevant. How can an act that is an offence punishable under the POSCO Act be described as “a romantic relationship”? The High Court went to the extent of observing that the case of criminalisation of a romantic relationship between two adolescents of opposite sex should be best left to the wisdom of the judiciary. The Courts must follow and implement the law. The courts cannot commit violence against the law. The findings and observations in the impugned judgment, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained” the bench observed.

The division bench while questioning the observation of the High Court, added that “the duty of the High Court was to ascertain on the evidence whether the offences under Section 6 of the POCSO Act and Section 376 of the IPC were made out. In view of “sixthly” in Section 375 of the IPC, penetrative intercourse with a woman under eighteen years of age, with or without her consent, constitutes an offence of rape. Therefore, whether such offence arises from a romantic relationship is irrelevant. How can an act that is an offence punishable under the POSCO Act be described as “a romantic relationship”?

“The Courts must follow and implement the law. The courts cannot commit violence against the law. The findings and observations in the impugned judgment, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained” the bench remarked.

Helpless position of the victim

The division bench expressed concerns over the helpless position of the victim in the present case. Amicus Curiae Madhvi Divan emphasised that no opportunity was made available to the girl of fourteen or fifteen years of age to make an informed choice to decide whether to stay with the accused. She did not get any support from her parents and the State machinery when she required it the most. As held by us hereafter, the State machinery failed to act according to the law to take care of the victim. The situation in which she was placed at that time was such that she had no opportunity to make an informed choice about her future. She had no option but to seek shelter where it was provided to her i.e. in the house of the accused. In any event, it is doubtful whether she could have made an informed choice at the age of fourteen or fifteen.

Decision of the apex court

A division bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan while setting aside the impugned judgement and order dated October 18, 2023 of the High Court of Calcutta, held that “the accused is guilty of the offences punishable under sub-sections (2)(n) and (3) of Section 376 of the IPC and Section 6 of the POCSO Act. The issue regarding sentencing will be considered after the committee’s report is received”.

The bench held that “this extraordinary situation was created because the State machinery did not follow the provisions of law starting from sub-section (6) of Section 19 of the POCSO Act. The importance of rehabilitation of the victims of offences under the POCSO Act, which is a mandatory requirement of law, is being overlooked by all stakeholders. Perhaps, at levels, there is a need for introspection and course correction. We include even the Judiciary in that”.

The Court, while setting aside the impugned judgement and order of the High Court, passed the order that the Government of West Bengal should constitute a committee of three experts, including a clinical psychologist and a social scientist, to assist the victim in making an informed choice regarding her future. This committee will also review the support offered by the State to the victim and her child. The Court directed the State to provide details of the support measures to the committee and ensure that the committee’s recommendations are submitted by October 18, 2024.

The Supreme Court emphasised the need for introspection and course correction by all stakeholders, including the judiciary, in handling cases under the POCSO Act. The Court noted the failure of the State machinery in providing timely support and protection to the victim, which had led to this extraordinary situation

The Judgement can be read here:

Quashing of POCSO cases by High Courts on ground of Compromises

However, on the same page the Rajasthan High Court on January 5, 2024 in Avdhesh Kumar v. State of Rajasthan, SB Criminal Miscellaneous Petition No.7901/2023, quashes POCSO case on being informed of victim’s marriage with accused.

The Allahabad High Court also in Gufran Shaikh @ Gani Munawwar v. State of U.P. and Another (Application u/s 482 No. – 10258 of 2021), quashes the POCSO case while observing that “victim-accused living happily as wife-husband”.

The Himachal Pradesh High Court in Ranjeet Kumar Vs State of H.P. & Ors. (Cr.MMO No. 648 of 2023), held that POCSO cases can be quashed if victim & accused reach a genuine compromise.

The Bombay High Court in Shiva Chanappa Odala v. State of Maharashtra & Anr. (Writ Petition No 1366 of 2022), Quashes Sexual Assault Case under POCSO after Child’s Mother Consents.

There are several judgements in which High Courts appear inclined towards principle of compoundability instead of implementing the stringency of the 2006 Act in POCSO cases thereby shrinking the objective of the Act to protect children from sexual exploitation.

Brief about the POCSO Act: The POCSO Act, also known as the Protection of Children from Sexual Offenses Act of 2012, is gender-neutral and recognizes that both any child, irrespective of their gender, can be a survivor of sexual abuse. The Act significantly broadened the definition of what constitutes a sexual offense against a child and imposes harsh punishments for each of the acts enumerated. Additionally, it strengthened the definition of sexual assault to encompass both moderate and severe penetrative assault, along with non-penetrative assaults, and additional sanctions for people in positions of trust or power, such as government workers, faculty, and police officers.

Conclusion

In conclusion, the attempts made by the High Courts across the country in quashing of POCSO cases on view of compromises between victim and accused, has weakened the legislative intent behind the enactment of POCSO, Act 2006. Compromises like marriage between accused and the minor victim, undermines the principles of justice and the rights of victims. The objective behind the POCSO Act’ cannot be ignored merely because abusers marry minor victims to escape conviction.

Related:

1.9 lakh POCSO cases pending in Fast Track Courts: Ministry of Women and Child Development

Accused under POSCO granted bail on condition of marriage to victim: Allahabad HC

BREAKING: SC stays Bombay HC’s controversial POCSO judgment

The post SC: No compromise in POCSO cases, reverses HC verdict appeared first on SabrangIndia.

Students of Visva Bharati University in Bengal were ordered to end their agitation outside the residence of the vice-chancellor by today, September 3. The Calcutta High Court passed interim orders after hearing a petition filed by the university authorities seeking the court’s intervention to clear the impasse.

The students have been demonstrating since August 28 against the decision by VBU to expel three students on disciplinary grounds. As per media reports, the three students — Somnath Sow and Falguni Pan of economics and Rupa Chakraborty of Hindustani classical music — were expelled for three years on August 23 for taking part in a campus protest in January 2020. Already under suspension for about nine months, they were charged with “gross indiscipline and misconduct”.

The court has said that all demonstrations, banners, barricades and obstruction outside the residence of the Vice Chancellor shall be removed by the Officer-in-charge, Santiniketan Police Station.

Justice Rajasekhar Mantha has also said that the Vice Chancellor of the University in addition to his own Security Guards shall also be provided with three constables from the Santiniketan Police Station for his protection, and the locks on the administrative building and any other part of the University by the students shall also be broken open by the Officer-in-charge, and the premises shall be handed over to concerned persons.

The court has also said that, “No demonstration shall be conducted by any students or any persons within a distance of 50 meters of any portion or part of the University, particularly, the schools, Classrooms, the residence of the Vice Chancellor, teachers, professors, officials, staff library, the administrative buildings laboratories etc”. The Single-judge Bench has also directed that loudspeakers will not be permitted inside the University premises. 

The court also said, “None of the employees of the University including the V.C., Professors, Teachers, Officials and other staff shall be prevented from entering the University premises or the respective Schools and Departments under it. And all obstructions to any CCTV camera in the University at any place shall be forthwith removed and a report to this effect shall be submitted independently by the Registrar of the University and also the Officer-in-charge, Santiniketan Police Station.”

The court has also asked the Visva Bharati registrar to file a report on September 8, when the students will also be heard. It also noted in its order, “This Court notes with anguish that the functioning of a University which grooms the citizens of the future, has been disrupted.”

Submissions

The University, in its application submitted that the Vice Chancellor had been wrongfully confined since August 27, 2021 in his residence and his egress and ingress has been prevented. It also submitted that the VC had been unwell, and certain medical personnel of the University were not allowed to visit or examine him, and food was not allowed into his house.

The plea also stated that the administrative building and other portions of the University had been kept under the lock and key. “The University has come to a standstill at the instance of a section of the students and certain outsiders. It is also submitted that the students are being used as a front by certain influential persons for collateral purposes,” it said.

But the counsel for the State opposed and denied these allegations and submitted that the VC was never prevented from moving in and out of his residence. He also submitted that the State had sent Medical Officers to examine the VC headed by the Sub-Divisional Officer but were refused access by his own family members.

The matter will be taken up on September 8.

The order may be read here: 

Related:

Chargesheet calls me ‘veteran of sedition’, gives it a communal colour: Umar Khalid to court
Delhi Violence case: Court discharges 3 accused citing shoddy investigation

The post Visva Bharti college row: Calcutta HC orders no protests within 50 metres of campus appeared first on SabrangIndia.

The Calcutta High Court has granted interim bail to the four accused in the Narada sting operation case. The court had earlier stayed the interim bail granted to them by the CBI court and had put them under house arrest. The five-judge bench of Acting Chief Justice Rajesh Bindal along with Justices IP Mukerji, Harish Tandon, Soumen Sen and Arijit Banerjee heard the matter and decided to grant interim bail. On May 21, Justice Banerjee favoured granting bail to the four, differing with Acting CJ Bindal on the matter. The Bench then sent the four to house arrest, and transferred the case to a larger Bench.

Hearing

Solicitor General Tushar Mehta objected to the grant of interim bail to the accused persons stating that they are influential persons, who can tamper with evidence or make public statements regarding this case or gather a mob whenever they are called for further investigation or the case is taken up for hearing.

The court, however found it fit and proper to grant bail to the accused namely Firhad Hakim, Madan Mitra, Sovan Chatterjee and Subrata Mukherjee subject to following conditions:

1. Each accused shall execute a bail bond of `2 lakhs with two sureties of like amount
2. The accused shall make themselves available for interrogation as and when required by the CBI, by virtual mode, keeping in mind the lockdown imposed in the state
3. The accused shall not tamper with the evidence or attempt to intimidate or influence the witnesses
4. The accused shall not give any press interview or make any public comments in connection with the cases

The court has directed the accused to file an undertaking by May 31 that they will comply with these conditions and stated that violation may entail cancellation of the interim relief granted.

The interim order is to continue until disposal of the proceedings or until further orders.

Background

On May 17, The CBI arrested TMC ministers Firhad Hakim and Subrata Mukherji, TMC MLA Madan Mitra and ex-Kolkata mayor Sovan Chatterjee in connection with a Narada sting operation. The sting operation was carried out by Narada News portal CEO Mathew Samuel in 2014, but the tapes that show as many as 12 leaders taking bribes were made public only in 2016 around the time of elections. Interestingly, among the 12 were Mukul Roy and Suvendu Adhikari who have since jumped ship to the BJP.

The bail granted by CBI court to the four accused was stayed by the Calcutta High Court. “We are not touching the merits of the controversy but the manner in which pressure was sought to be put will not inspire confidence of the people in the rule of law. As during the period when the arguments were heard, the order was passed by the Court below, we deem it appropriate to stay that order and direct that the accused person shall be treated to be in judicial custody till further orders,” the high court had said on May 18.

On May 21, Justice Banerjee favoured granting bail to the four, differing with Acting CJ Bindal on the matter. The Bench then sent the four to house arrest, and transferred the case to a larger Bench.

The CBI has also filed a plea seeking transfer of the case from the CBI court to the High Court alleging that the Special CBI Court had come under pressure to grant the four leaders interim bail, and said, “If this mobocracy is not checked by the constitutional court, tomorrow we may have a situation where a gangster is arrested and his henchmen gherao the CBI office.”

The order may be read here:

Related:

Calcutta HC stays bail to Narada sting accused
CBI arrests TMC leaders in Narada sting case
Narada case: House arrest for four accused, HC divided on bail
Narada case: CBI withdraws appeal against Calcutta HC order granting house arrest to TMC leaders

The post Narada case: Five-judge bench of Cal HC grants interim bail to the four TMC leaders appeared first on SabrangIndia.

The Calcutta High Court stayed the bail granted to four people: two Trinamool Congress (TMC) ministers, one TMC MLA and a former mayor of Kolkata, arrested by the Central Bureau of Investigation (CBI) in the Narada sting operation case.

This, just hours after a special CBI court granted bail to TMC ministers Firhad Hakim and Subrata Mukherji, TMC MLA Madan Mitra and ex-Kolkata mayor Sovan Chatterjee, against a bond of Rs 50,000 with two sureties of Rs 25,000 each and on the condition that they would cooperate with the police.

All four had been arrested earlier on Monday leading to protests outside the CBI office and Governor’s residence given how two other high-profile accused: Mukul Roy and Suvendu Adhikari (who quit the TMC and are now BJP members) were not arrested despite being implicated in the same case. Chief Minister Mamata Banerjee too arrived at the CBI office in Nizam Palace and stayed put till the CBI court granted the four men bail.

But the CBI moved Calcutta HC that stayed the bail by the CBI. In its order, the HC noted the protests as well as the CM’s “dharna” at the CBI office observing, “This court has been called upon to deal with an extra-ordinary situation where Chief Minister of the State can sit on a dharna outside the office of the Central Bureau of Investigation (for short, ‘CBI’) along with her supporters, which had investigated the case and was to present a charge-sheet in court against the accused who are senior party leaders of the party in power in the State, some of them being Ministers. Not only this, the Law Minister of the State was present in Court where the accused were to be presented along with mob of 2000 to 3000 supporters.”

The court also recorded the CBI’s email to the Chief Justice and Registrar General of the HC where the investigation agency pointed out “certain glaring facts regarding the manner in which the Chief Minister, Law Minister and other senior Ministers of the Government in the State of West Bengal along with their supporters in thousands were obstructing CBI in discharge of its official duties.”

The order mentions the Chief Minister’s presence at the CBI Office and the presence of the Law Minister in the Court Complex of the CBI court multiple times and notes the plea to have the case transferred under provisions of section 407 of the CrPC. The High Court recorded the following in its order:

“With reference to the arguments in terms of provisions of Section 407 Cr.P.C. raised by the Ld. Solicitor General of India, it was submitted that the matter has to be listed before a Single Bench. There are certain pre-conditions which are required to be complied with for filing an application. It has to be accompanied by an W.P.A 10504 of 2021 6 affidavit. The material before the Court is not sufficient to exercise that power. He further submitted that he did not have any instruction with regard to the presence of the Law Minister in the Court. It was further argued that in case any application is filed under Section 407 Cr.P.C., all the affected parties are to be heard which include victim, accused and the witnesses of the case as well. In response, learned Solicitor General of India submitted that powers under Section 407 Cr.P.C. can be exercised by the Court if it is expedient in the ends of justice. The letter sent by the CBI to this Court mentions the presence of Chief Minister in the CBI Office. That itself is a sufficient ground for transfer of the case. The matter may be taken up immediately as otherwise the people will get a message that with mobocracy, any order can be secured by putting pressure.”

As far as the bail given to the four accused is concerned, the High Court said, “We are not touching the merits of the controversy but the manner in which pressure was sought to be put will not inspire confidence of the people in the rule of law. As during the period when the arguments were heard, the order was passed by the Court below, we deem it appropriate to stay that order and direct that the accused person shall be treated to be in judicial custody till further orders. The authority in whose custody they are kept shall ensure that they have all medical facilities available as are required and they are treated in terms of the provisions of the Jail Manual.”

The court then adjourned the matter till May 19. The entire High Court order may be read here:

About the Narada sting

The sting operation was carried out by Narada News portal CEO Mathew Samuel in 2014, but the tapes that show as many as 12 leaders taking bribes were made public only in 2016 around the time of elections. Interestingly, among the 12 were Mukul Roy and Suvendu Adhikari who have since jumped ship to the BJP. Interestingly, the BJP quietly removed a video of the sting operation from its Youtube site.

The Calcutta High Court had ordered a probe into the case in 2017, and the Supreme Court rejected a plea by the West Bengal government for a stay on the order for a probe.

Related:

CBI arrests TMC leaders in Narada sting case
BJP removes Narada sting operation from YouTube channel, faces storm of criticism 

The post Calcutta HC stays bail to Narada sting accused appeared first on SabrangIndia.

Justice DK Basu, the petitioner in the landmark case DK Basu vs State of Bengal (1997), and a retired Calcutta High Court judge breathed his last on May 9.

Justice Basu practiced at the Supreme Court, till he was elevated as a judge of the Calcutta High Court in 1987. He had also served as the Chairman of Legal Aid Services West Bengal (LASWEB) and as the Chairman of the National Committee for Legal Aid Services India.

He had written a letter to the then Chief Justice of India, Justice P. N. Bhagwati, highlighting custodial torture and deaths that occurred in custody and lock-ups. CJI Bhagwati had then taken cognisance of the letter and converted it into a writ petition in 1987.

This led to the court noting, “In almost every state there are allegations and these allegations are now increasing in frequency of deaths in custody described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to effectively deal with such allegations. Since this is an all-India question concerning all States, it is desirable to issue notices to all the State Governments to find out whether they desire to say anything in the matter.”

A slew of guidelines was issued by the Court on arrests and detention of accused persons, which holds value and relevance till today. They are:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags of their designation.

2. The Police officer must always carry a memo of arrest during arrest and it shall be signed by the arrested person, with his/her sign, date and time of arrest.

3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have at least one relative known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular station.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be informed why he is being arrested and made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6. An arrest diary must be made at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee must also be examined by a medical practitioner within every 48 hours in custody.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

10. The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.

11. There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest.

Related:

Revisiting DK Basu: The most relevant judgment of all time
Monitoring the condition of Indian prisons
Dr Mahavir Narwal, father of jailed anti-CAA activist Natasha Narwal, dies of Covid

The post Former Calcutta HC judge, DK Basu, passes away appeared first on SabrangIndia.

The Calcutta High Court had ordered the release of a Nepal prisoner incarcerated for 41 years in a Kolkata prison after it was assessed that he was intellectually disabled. The bench of Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy directed authorities to ensure his smooth transit through the Nepal Consulate.

The under trial prisoner (UTP) has been in the Dum Dum Central Correctional Home, on charges of murder, for nearly 41 years, as submitted by West Bengal State Legal Services Authority. Upon assessment, it was found that the UTP’s current mental age in terms of intellectual functioning is around 9 years. The whereabouts of his family were traced and it was found that his mother is 90 years old. His nearest relative came up and filed an affidavit that he is the UTP’s cousin.

The court checked materials on record and found that UTP was found to be mentally unfit to stand trial in 1982 itself, and there is no contrary report at any point of time even as of now before the Court of Session where the case is pending for trial.

The court thus exercised its powers under Section 482 of Cr.P.C. and Articles 226 and 227 of the Constitution. The court ordered that the UTP, Dipak Joshi @ Jaisi @ Jaishi be released from the Correctional Home and entrusted to the custody of his cousin. The court said that this is in consonance with court granting bail pending trial.

The court held that it would be impossible and impermissible to direct the UTP to execute any bond in view of the deficit in his mental capacity. The court, thus, asked the UTP’s cousin to execute a simple bond and give an undertaking to produce the UTP as and when directed by the Court.

The court directed that the UTP be released preferably within a day and directed all concerned Authorities to do the needful to facilitate the transit of UTP under the aegis of the Consulate General of Nepal at Kolkata.

The complete order may be read here:

Related:

Delhi court rejects news anchor’s pre arrest bail plea in rape case
Delhi HC grants bail to 4 accused in the 2020 violence
Right to Default bail is a valuable right: SC while granting bail to UAPA accused

The post Calcutta HC releases Nepali undertrial after 41 years in prison appeared first on SabrangIndia.

In a rather significant judgment that has paved a way for gender-neutral sexual harassment jurisprudence, the Calcutta High Court, has held that same gender sexual harassment complaints are maintainable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, popularly known as the POSH Act.

In a judgement delivered in November 2020, Justice Sabyasachi Bhattacharyya observed that sexual harassment construed under the Act pertains to the dignity of a person which related to his/her gender and sexuality which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the Act. The petition was filed against the Internal Complaints Committee of Vivekananda College, by the person against whom the Committee had instituted action under the Act despite being the same gender as the complainant. The complainant had alleged that the petitioner had vilified and defamed the complainant in public and thus the petitioner contended that this does not fall under the purview of definition of sexual harassment under the Act. The petitioner argued that action being taken against sexual harassment only pertains to a man being involved in the offence, which ingredient has to be factored in while appreciating the connotation of “sexual harassment” under the Act.

The petitioner also relied upon Vishaka & Ors. –vs- State of Rajasthan & Ors. 1997(7) JT 384, the judgement which was the point of inception for the POSH Act as the Vishaka guidelines laid out by the Supreme Court were the basis of the POSH Act. It was submitted that as per the said judgment, the meaning and contents of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality, including prevention of sexual harassment or abuse. Thus, the question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the Act and since the gender of the complainant and the respondent is the same, the question of the Act being invoked does not arise, argued the petitioner.

The court, after hearing arguments, held that there is nothing in the Act to preclude a same-gender complaint. “Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same gender marriages may be legalized,” observed the court.

The court held that the definition of sexual harassment under the Act “cannot be a static concept but has to be interpreted against the back-drop of the social perspective” and it “has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act”.

In what can be considered a landmark opinion voiced in the backdrop of the progression of the society, the court held that “a person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act”.

The court thus held that the complaint of sexual harassment at workplace against the same sex  was maintainable and dismissed the petition. The court directed that the concerned authorities may proceed with the complaint as the court had not looked into the merits of such complaint and hence the process should not be influenced by any observations made by the court.

The complete order may be read here.

Related:

12-year-old gang-raped, burnt to death in Muzaffarpur
Workers Front files petition against UP gov’t shutting down women’s helpline
Walayar rape case: Kerala HC sets aside Trial Court’s acquittal order

The post Sexual harassment complaint against same gender may seem odd but it’s not improbable: Calcutta HC appeared first on SabrangIndia.

A recent verdict of the Calcutta High Court can be termed as a ray of hope for victims or families of victims who are entitled to receive compensation from the government owing to any kind of injustice inflicted upon them or if they have been victims of crimes that make the government liable to pay them compensation.

In a case of human trafficking when the West Bengal government directed the victim to deposit 3/4th of their compensation amount in a bank, the Calcutta High Court ruled that it had no authority to impose any such conditions.

Justice Sabyasachi Bhattacharya delivered this verdict last week while hearing petitions filed by two victims of human trafficking who had been asked by the government to deposit three fourth of the compensation amount in a nationalised bank for a certain period. Justice Bhattacharya held that “The state pays the compensation because of its failure to secure the victims. So, it has no right to impose any condition while disbursing the compensation amount.”

In their petitions, the two victims had challenged the orders of the State Legal Aid Service that had asked the state government to impose the said conditions while disbursing the compensation. In turn, the state authorities said three fourth of the Rs 4 lakh compensation would have to be deposited in any nationalised bank in a Monthly Income Scheme in the name of the victim for a period of ten years, with auto renewal option. The order said that if the same was not complied with, necessary action would follow!

A high court lawyer said that after any victims of human trafficking are rescued, they have a right to claim compensation before the state or district legal aid service which then recommend the government to disburse the compensation.

Recalling an incident, a lawyer told The Telegraph, “ After the death of 167 people in a hooch tragedy at Sangrampur, the state had announced compensation of Rs 2 lakh each to the families of the deceased, but imposed a condition that the amounts would have to be deposited in a nationalised banks in their names and they would not be allowed to withdraw the cash for 10 years. Henceforth, the government cannot impose such condition.”

A similar situation had arisen when the Gujarat government led by then CM Narendra Modi had announced compensation for victims of Gujarat riots in 2002. Not only was the compensation, reportedly, lower than what was announced for victims of the Godhra train carnage, but the conditions imposed were also unfair. The government had a condition that 40 per cent of the compensation would be paid in cash while the rest would be in the form of Narmada Shrinidhi Bonds. Basically, compensation to victims of one of the worst genocides seen in the country in the 21st century was not only marred with discrimination but also with unfair conditions that did no good for the poor and hapless families, many of whom had become homeless in their own home state due to loss of property to the riots.

During this time, when the victims were waiting for justice to be served, Citizens of Justice and Peace had relentlessly worked on the ground with the victims and had held their hand throughout the battles in court. CJP had called out this move of the Gujarat government to be completely illegal, arbitrary and unconstitutional. CJP and its counsel maintained that the amount should be in consonance with the state’s obligations under Article 14 (guaranteeing equality before the law) and Article 21 of the Constitution of India.

Hence, this latest judgment from the Calcutta High Court is a welcome and a much needed precedent for victims of such crimes where government is liable to compensate them. The court held that the “State Legal Services Authority has no authority to control and monitor the amount of compensation disbursed to a victim who has attained majority. She or he has every right and the liberty to choose the mode of expending the compensation amount, as she/he feels appropriate for her rehabilitation after the trauma of the offence… The SLSA can at best offer post‐disbursal schemes to the victim to safeguard her/his best interests, but that has to be optional, chosen by the victim only in the event she/he opts for it, and not mandatory… Such a method is counterproductive to the scheme of Section 357A of the Code of Criminal Procedure and would be an illegal fetter on the personal liberty of the victim.”

The Court further referring to George Orwell’s dystopian book titled ‘1984’ said, “We are in 2020 now, and not in ‘1984’ (as contemplated by George Orwell). As such, the ‘Big Brother’ approach of the disbursing authority should be shunned and the victim should be free to spend the compensation granted to her/him at her/his option. The right to commit a mistake inheres in the right to personal liberty and freedom and should not be curtailed mandatorily and arbitrarily by the SLSA merely because it is in charge of the purse‐string, that too for such meagre amounts of compensation as contemplated under the Scheme.”

The judgment can be read here:

Related: 

PIL in Allahabad HC seeks stay on UP govt’s ordinance, calls it ultra vires to Constitution

MHA on CAA petition: Whole expanse of Article 21 cannot be made available to illegal migrants

The post Govt cannot make compensation conditional: Calcutta HC appeared first on SabrangIndia.

In the wake of flagrant violations on human rights of CAA-NRC protestors across the country and also in light of the debate over why other minorities like Rohingyas were excluded from purview of CAA, this order comes as a breath of fresh air; leaving some hope for human rights in the courts of law.

The Calcutta High Court on December 24, passed an order staying the deportation of a Rohingya couple to Myanmar. The order was given in response to a writ petition filed by the couple who have, as per their petition, already served their sentence in prison.

The petitioners submitted that now that they have completed their sentence, the government is trying to deport them back to Myanmar. They also submitted that such deportation would be tantamount to a death sentence in view of their plight in Myanmar which has the declared policy of an all-out onslaught on Rohingyas.

The court ruled, “in view of the imminent plight of the petitioners, who, despite having basic human rights in consonance with the Fundamental Rights provided by the Constitution of India as well as the U.N. Charter and the norms of any civilized society, a minimum protection ought to be given to the petitioners till the writ petition is decided, in order to uphold the spirit of humanity, if not the Fundamental Rights enshrined in the Constitution of India, which is the grundnorm of all Indian statutes”

The Court restrained the government by an order of injunction ‘from deporting the petitioners from India during pendency of the writ petition’ and also directed the government to ‘ensure that the petitioners are provided with the basic amenities, compatible with a life worthy of respect’.

The Court went a step ahead and even directed the government to allow the counsel of the petitioners to visit them from time to time.

Rohingyas are an ethnic group, majority of whom are Muslim. They have been denied citizenship in Myanmar since 1982 which has effectively rendered them stateless. They face extreme violence and persecution in Myanmar and hence have been compelled to flee to other neighbouring countries to find harbour. They are considered as the world’s most persecuted minority.

The order can be read here

The post Calcutta HC prevents deportation of Rohingya couple, wins hearts appeared first on SabrangIndia.