Petition highlights violation of Supreme Court order and demands action

The case, brought forward by Jabalpur resident O.P. Yadav, raises concerns about administrative integrity and calls for the removal of temples in police stations, citing Supreme Court rulings prohibiting the construction of religious structures in public spaces, especially state offices. Yadav, represented by lawyer Satish Verma, had argued that police stations, as public offices, should not accommodate religious edifices, as this violates the Supreme Court’s directive and raises questions about the separation of religion from state institutions. The petitioner has urged the court to initiate disciplinary action under civil service regulations against the SHOs who permitted these constructions. A hearing has been scheduled for November 19, 2024, when state officials are expected to respond to the notices.

Interim stay on temple constructions and broader implications for state neutrality

In response to the petition, a division bench comprising Chief Justice Kaith and Justice Vivek Jain issued an interim stay on further temple construction within police station premises across Madhya Pradesh. This order reinforces the Supreme Court’s guidelines aimed at maintaining secularism in public administration by barring religious installations in state institutions. According to Yadav’s petition, the presence of temples within police stations signifies an unwarranted religious influence within the executive branch, which he argues undermines the impartial role of law enforcement agencies. Photographic evidence submitted by Yadav depicts temple structures within police compounds, spotlighting a recurring issue of religion entering public administration—a practice that could erode constitutional values by compromising the secular nature of government agencies.

This case has significant implications for upholding the separation of religion from governance, a cornerstone of India’s secular constitutional framework. Government institutions, including police stations, are intended to serve citizens impartially, free from religious symbols or affiliations. By allowing religious structures like temples on state premises, the neutrality of these institutions could be compromised, potentially creating perceptions of bias or favouritism. This not only contravenes the Supreme Court’s directives against religious sites in public spaces but also risks encouraging demands for representation from other faith groups, turning government offices into spaces of religious contention rather than service and justice.

The judiciary’s intervention underscores the importance of secularism in preserving social cohesion and public trust. Upholding secular principles in state institutions is essential to ensure that every citizen feels represented and protected by an impartial administration. A clear boundary between religion and governance strengthens public confidence in equal treatment before the law and reinforces the state’s commitment to the rights of all citizens, regardless of faith. This case, therefore, could set a vital precedent, affirming the need for government institutions to prioritise constitutional values over religious affiliations, preserving their role as inclusive and unbiased entities in a diverse society.

The order may be read here:

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In a significant move batting for Right to Health of prisoners, the Madhya Pradesh High Court has directed the state government to establish Primary Health Centres (PHC) in prison premises to maintain the health of prisoners. 

The bench of Justices Sheel Nagu and Rajeev Kumar Shrivastava made this observation while dealing with the request of a convict to extend his suspension of sentence so that he can get good medical care for his ailments. The court found that many such application were being filed before it for want of good medical facilities in prisons and it has thus vouched for better health care facilities in prisons while upholding the human rights of prisoners.

This is the fourth application filed by the appellant under section 389(1) of the Criminal Procedure Code (CrPC) for grant of suspension of his sentence. He was convicted for murder in 2017. His sentences was suspended in June for 90 days and that period effectively ending on September 11, he was seeking extension of the same. His counsel argued that he was 65 years old and suffering from heart ailment that required further treatment. He submitted that continuous treatment and monitoring for his heart ailment is necessary which is not available in prison. He also stated that effective transport system for seriously ill patients (prisoners) from jail to hospital is also not available.

The court thus granted him the extension of another 90 days. However, the court also observed that many such applications were being filed mentioning grounds for medical treatment for releasing prisoners. The court observed that the ratio of doctors in prisons is very low. It also observed that primary healthcare facilities are not available in jail dispensaries and also secured transportation to hospital outside jail premises is not available.

The court has thus advised the state government to provide primary health services to the prisoners by keeping their records up-to date and to ensure that at least one primary health center should be established in jail campus having facilities to treat the ailments relating to heart, kidney, liver etc. The court has also asked the state to ensure that Specialist/Experts relating to aforesaid various ailments be provided in such primary health center to the prisoners.

The court also drew attention to the Supreme Court judgement in Parmanand Katara vs. Union of India & Ors.[AIR 1989 SC 2039] whereby, various directions have been given for the betterment of medical facilities in jail custody.

“Under the Constitution of India, role of judiciary in protecting the rights of the prisoners has been specified and judiciary has an obligation and a constitutional role to protect human rights of citizen as per the mandate of the Constitution. The prisoners are also human beings and their human rights are required to be safeguarded, as observed in the judgment passed by the Apex Court in the case of Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar:[AIR 1979 SC 1369],” the court observed.

The court has sought a detailed report from the state on these lines and the matter has been listed for first week of October.

The complete order may be read here:

Prisoners and right to health

The Model Prison manual, 2016 released by the Ministry of Home Affairs (MHA) enumerates rights of prisoners which includes health under ‘right to basic minimum needs’ which states that prisoners have “Right to fulfillment of basic minimum needs such as adequate diet, health, medical care and treatment, access to clean and adequate drinking water, access to clean and hygienic conditions of living accommodation, sanitation and personal hygiene, adequate clothing, bedding and other equipment.” Under the heading of “housing”, the manual states that “All accommodation provided for use of prisoners, particularly for sleeping, will meet basic requirements of healthy living.”

Under section 4.07.4, it puts the onus of medical care and health of prisoners on the medical personnel within prisons. It states that the medical personnel must “ensure the maintenance of minimum standards of hygienic conditions in the prison premises”. Medical care includes preventive care, curative care as well as general care with respect to admission in prison hospital. In Chapter VII titled “Medical Care”, the manual gives detailed guidelines on management of prison hospitals and what speciality of doctors should be available in such hospitals.

Under various sub-headings, the manual deals with the duties of the Chief Medical Officer which includes daily visits to prisons, attending to special needs of aged prisoners, treatment of drug addicts, control of diets and so on.

The complete analysis on Prisoners’ right to health may be read here.

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The Madhya Pradesh High Court declared the detention of a person accused of hoarding oxygen cylinders and selling them at higher price, to be invalid due to non-application of mind by the District Magistrate. The bench of Justice Prakash Shrivastava and Vishal Dhagat held that the detention order failed to take note of the fact that the petitioner was already in custody when the detention order was being passed, and it was required that his detention is justified with cogent materials that there is likelihood of his release and in view of his antecedent activities, he must be detained in order to prevent him from indulging in such prejudicial activities.

The petitioner, Rajeev Kumar Jain, challenged the order of his detention passed by the District Magistrate, Satna under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, as also the state government’s order approving the same.

The petitioner was booked on the basis of the written complaint of Drug Inspector, Satna, alleging that the petitioner who is the Manager of M/s Vindhya Engineering Company had illegally stocked oxygen cylinders in his warehouse and was selling oxygen cylinders at higher price to the general public. The police submitted that the petitioner did not have a valid licence for possession of non-metal oxygen (medical grade) and oxygen cylinders were seized from his godown. Accordingly, he was detained and the Advisory Board confirmed his detention for 3 months until August 3.

The counsel for the petitioner argued that when the detention order was passed, the petitioner was already taken into custody, and he could have been eligible for release on regular bail had he not been detained. “The fact that the petitioner was in custody and his likelihood of release on bail has not been considered by the detaining authority, therefore, the order of detention suffers from nonapplication of mind,” the counsel submitted. He also contended that the petitioner’s representation was not considered by the state government and was not placed before the Advisory Board. He has also submitted that the petitioner has no criminal antecedents and all oxygen cylinders were empty and oxygen cylinders are not the essential commodities.

The state’s counsel argued that oxygen is covered in the Schedule 1 of the National List of Essential Medicines, 2015 and that the use of liquid oxygen was allowed by the Government only for medical purposes keeping in view the Covid 19 Pandemic. He also submitted that a complaint was received against the petitioner that he was selling the oxygen at an exorbitant rate, therefore, the raid was conducted and oxygen cylinders were seized and that only 20 LPG cylinders were empty, rest were all filled.

Court’s findings

The court observed that a minute perusal of the detention order as also the grounds of detention clearly reveal that there is no mention of the fact that the petitioner was in custody and that he had applied for bail or there is his possibility of being released on bail.

In Rameshwar Shaw Vs. District Magistrate, Burdwan and anr AIR 1964 SC 334, the petitioner was detained under Preventive Detention Act, 1950, while he was already in custody and he court held that in such a case the satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner was clearly absent.

In Vijay Kumar Vs. State of Jammu & Kashmir and others, (1982)2 SCC 43, it has been held that if the detenu is already in jail for an alleged criminal offence when detention order was passed then the order must have clear mention of this fact and indicate that such detention was not sufficient to prevent the detenu from the prejudicial activities covered by the preventive detention law.

In Binod Singh Vs. District Magistrate, Dhanbad, Bihar and others, (1986)4 SCC 416 the court had held that if the prospects of the detenu’s imminent release are not considered then the continued detention is illegal on the ground of non-application of mind to the relevant factors.

The court inferred from these judgements and few other relevant judgements reiterating these observations, that “if the detenu is in custody at the time of passing the detention order then it is necessary for the Detaining Authority to mention this fact in the detention order and also consider the prospects of release of the detenu on bail and apprehension that the detenu would indulge in prejudicial activities in case of his release on bail”. The court took the view that if the detenu is in jail then the compelling necessity justifying the detention must be reflected to sustain the detention order.

The court found that the detention order suffered non-application of mind by the Detaining Authority as it had not stated its awareness of the fact the petitioner was already in custody, and also had not applied its mind to the possibility of the petitioner being released on bail.

The court thus allowed the petition and set aside the detention order and the state government order affirming the same.

The complete judgement may be read here:

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The Madhya Pradesh High Court has directed Magistrates to release such persons from custody in cases where the guidelines in the Arnesh Kumar judgement were not followed.

The bench of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan had taken cognisance of the overcrowded jails in the state on May 7. The bench had passed orders for releasing prisoners as per the Supreme Court’s directive that they should be released as per the  High Powered Committee’s (HPC) guidelines from last year for 90 days.

The amicus curiae Adv. Sanklap Kochar and Senior Advocate CU Singh submitted before the bench that despite the latest recommendations of the HPC after their May 12 meeting, there are still 45,582 prisoners across jails in the state as against their total capacity of 28,675. They both suggested that the HPC ought to consider recommending release of all such convicts on parole, who have either served out one-third of the substantive sentence awarded to them or if sentenced to life imprisonment, have completed incarceration of seven years or more.

They also suggested that the HPC should also consider recommending release of all women prisoners, both convicts and under-trial, regardless of the offence for which they have been convicted and the sentence awarded to them or the maximum sentence that may be awarded to them upon conviction. In response to this suggestion, the Additional Advocate General (AAG) and the Director General of Prisons stated that they will collate the data under all these three categories and provide the same to the HPC within 3 days.

CU Singh and Sankalp Kochar also submitted that the police are not following guidelines of arrest as laid out by the Supreme Court in Arnesh Kumar vs. State of Bihar and another (2014) 8 SCC 273. To this, the court responded, “This explains why there was an enormous increase of approximately 8,000 under-trial prisoners in different jails of the State during the period of lockdown even after release of about 7,500 prisoners-convicts on parole and UTPs on interim bail”. The AAG submitted that he would seek instructions on whether or not the Arnesh Kumar guidelines were being followed.

In Arnesh Kumar judgement, the apex court had observed that the law mandates for the police officer, before making an arrest should record his satisfaction as mandated by Section 41of CrPC that the arrest is necessary:

(i) to prevent such person from committing any further offence;

(ii) for proper investigation of the offence;

(iii) to prevent such person from causing the evidence of the offence to disappear or tampering with evidence;

(iv) to prevent such person from making any inducement, threat or promise to any witness from disclosing facts to the court or to the police officer &

(v) and that unless such person is arrested, his presence in the court when required cannot be secured.

The court had further stated that if in his opinion, the arrest does not satisfy the requirements of Section 41 of the Code, the Magistrate is duty-bound not to authorize his further detention and release the accused after recording his own satisfaction. The apex court had also highlighted the importance of Section 41-A of CrPC which provided that where arrest was not required, the police officer should issue a notice directing the accused person to appear before him at a specific place.

The details of the Arnesh Kumar judgement may be read here.

The Supreme Court deprecated the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 of the Code for effecting arrest. The Supreme Court observed that it seems that police has not learnt its lesson; the lesson implicit and embodied in the Code and is persisting with its colonial approach despite six decades of independence, as the power of arrest is being used as a tool of harassment and oppression of the citizen, which is “one of the lucrative sources of police corruption”.

The bench pointed out that “all these directions issued by the Supreme Court were intended to put a check on the arbitrary power of police in mechanically arresting a citizen accused of committing offences of rather lesser gravity, either without adequate sensitivity or with oblique motive.”

The court, thus, directed the DGP to immediately issue fresh directions to all the Police Stations in the State to adhere to the guidelines issued by the Supreme Court in Arnesh Kumar judgement in letter and spirit. The court also directed all the Judicial Magistrates, upon the accused being produced before them by the police for authorizing further detention, shall mandatorily examine whether or not stipulations contained in both Sections 41 and 41A of the Code, have been followed.

The court stated that if the Magistrate is satisfied that the mandate of both or any of those provisions has not been complied with by the police, he/she shall refuse to authorise further detention of the accused and shall direct immediate release of the accused. More significantly, the court ordered thus,

“if any arrest has been made without adherence to the aforesaid guidelines, the accused concerned would be entitled to directly apply to the court of competent jurisdiction for his regular bail on this ground alone.”

The court also directed the Registrar to again circulate the copy of the judgment of the Supreme Court in Arnesh Kumar judgement along with a copy of this order to all the District Judges of the State, for being served upon the Judicial Magistrates. Further, the court directed the Director of the State Judicial Academy to organise online/virtual programme for sensitising Magistrates and police officers accordingly. The court put the onus on the Director of the state’s police academy to coordinate with the Director of State Judicial Academy to work out the modalities for sensitising the police officers and put the onus on the DGP for compliance.

The amicus curiae and Adv. CU Singh also brought to the court’s attention the order passed by the apex court in its suo moto case of last year, whereby all the Juvenile Justice Boards (JJB) and Children’s Courts were directed to proactively consider whether a child or children should be kept in the Child Care Institutions considering the best interest, health and safety concerns. This included directing JJBs to consider releasing children alleged to be in conflict with law, residing in Observation Homes, on bail unless there are clear and valid reasons for the application of the proviso to Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Accordingly, the court directed Secretary of the MP State Legal Services Authority, Jabalpur to require the Member Secretaries of the respective District Legal Services Authorities to move an appropriate application through their Legal Aid Counsels before the respective Juvenile Justice Boards on behalf of the children in conflict with law, for their release from Observation Homes. The court directed that such applications be decided within 3 days of filing.

The court directed that the copy of the order be forwarded to the Director General of Police, State of M.P., Bhopal; Director General of Prisons, Bhopal; Member Secretary, M.P. State Legal Services Authority, Jabalpur; Director, MP State Judicial Academy, Jabalpur; Director, MP Police Academy, Bhopal and the Registrar General of MP High Court, Jabalpur for necessary action.

The court will hear the case next on May 31.

The complete order may be read here:

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The post Release persons not arrested as per Arnesh Kumar guidelines: MP High Court appeared first on SabrangIndia.

The Madhya Pradesh High Court dismissed a petition seeking action against the Election Commission for conducting by-elections in the state as well as Assembly elections in other states in violation of Covid guidelines. The Division bench of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan relied upon a precedent set by the apex court to state that Article 329 of the Constitution bars the jurisdiction of the court under Article 226 to entertain disputes arising during polling. The court however, issued directions to ensure that on counting day, Covid guidelines are not flouted.

The petition was filed by two lawyers, Phool Chand Paliwal and Umesh Trivedi seeking action against the Election Commission of India and State Election Commissions for conducting elections for the Legislative Assembly of Damoh (Madhya Pradesh) and so also for conducting elections for the State Legislative Assemblies of West Bengal, Assam, Tamil Nadu, Pondicherry and Kerala, during the ongoing second wave of Covid-19 by violating the Covid protocol and guidelines.

The counsel for ECI and the State Election Commission submitted as for the elections in other states is concerned, it is out of the court’s territorial jurisdiction and the by-election for State Legislative constituency Damoh (Madhya Pradesh) already took place on April 17 and the counting will take place on May 2. The petitioner relied upon a Supreme Court judgement to state that the election process commences from the date of issue of initial notification and concludes with the declaration of result and since the result of the by-election has not been declared as yet, the process should be considered as a continuing one. Trivedi stated that the petition can be entertained by this Court even now to nullify the entire process, since the entire process of election is marred by a number of illegalities. He argued that since several political workers, leaders and passengers were going to and coming from West Bengal, Assam, Tamil Nadu, Pondicherry and Kerala by various trains, by air and by road, part cause of action should be taken to have arisen within the territorial jurisdiction of this Court even in respect of other States.

The court found that the judgement relied upon, does not apply to the current situation. The court relied upon the apex court judgment in N.P. Ponnuswami vs. Returning Officer, Namakkal (AIR 1952 SC 64) where the court observed that no election can be called in question except by a petition to the concerned authority. Thus, the court held that the by-election mandates no interference be made during the process of election.

“We do not want to entertain the present dispute in respect of the elections which had taken place in the other States on the specious plea that mere travel of political leaders, party activists or passengers by trains, by air or even by road, to and from, those States would confer territorial jurisdiction of the dispute upon this Court,” the court observed.

However, while disposing of the petition, the court directed the respondent including the District Collector of Damoh to ensure that Covid related guidelines are followed by those who take part in the process of counting and that no crowd, at or near the counting centre, shall be allowed to assemble, inasmuch as, no political party or candidate, shall be allowed to carry out any victory procession in the crowd, and that special care shall be taken to ensure that no such political activity takes place on account of the declaration of the result on the day of counting which may, in any manner, contribute to or have the effect of spreading the Coronavirus.

The complete 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 Gwalior bench of Madhya Pradesh High Court, set aside a detention order under National Security Act (NSA) owing to procedural lapses and observed that such lapses had become commonplace and needed to be remedied. The division bench of Justice Sheel Nagu and Anand Pathak observed that the procedure laid down for preventive detention needs to be strictly followed “else it would render the order of preventive detention nullity”.

The petition was filed against the order of preventive detention under National Security Act (NSA) passed by District Magistrate, Guna. The counsel for the petitioner initially submitted that seizure of certain mis-branded and adulterated items from the petitioner did not lead to a situation which may give rise to prejudice to public order. The petition was further amended to  include grounds that the food items were not found to be unsafe for human consumption and the State had failed to demonstrate actual communication of order of detention to the Central government.

The court was inclined to allow the petition as the State failed to communicate the order of detention to the Central government and that the Magistrate took 3 days’ time from the date of detention order to forward the case to the state government for approval. Under NSA, the Magistrate is required to forward the detention order “forthwith” to the state government.

“The expression “forthwith” found in Sec. 3(4) of NSA obliges the State to explain each day’s delay in forwarding the case to the State Govt. for approval. Absence of explanation or the same being not satisfactory, renders the order of preventive detention, vitiated,” the court observed.

The court also commented on the practice of preventive detention while calling it an “anathema to the fundamental right of personal liberty”. The court emphasised that the procedure laid down for preventive detention needs to be strictly followed “else it would render the order of preventive detention nullity”. The court also said that it came across cases where on account of procedural lapses in following due process of law under NSA, detention order which may have been passed on justified grounds was nullified.

The court stressed upon the need to issue guidelines to all District Magistrates so that timeline provided in following due process of law. The court also made a general observation that original record produced from office of concerned District Magistrate missed out on essential elements and listed them out:

(i) The exact date of forwarding with proof of dispatch by the District Magistrate to the State for approval.

(ii) The exact date with material to show receipt of the order of preventive detention by the State.

(iii) The exact date of dispatch alongwith material of forwarding the order of approval by the State to the Central Govt.

(iv) The exact date of receipt by the Central Govt. of order of approval of the State Govt. alongwith ground.

(v) When an order of preventive detention is passed by District Magistrate/State against a person already in custody, then the order of preventive detention does not reveal in specific words that the competent authority was conscious of this fact and yet for reasons to be recorded in the order deems it necessary to preventively detain the person concerned.

The court stressed that satisfaction of competent authority is to reflect from the order of preventive detention or else it may not stand the test of law laid down by Apex Court in Shashi Aggarwal Vs. U.P. and ors [AIR 1988 SC 596]. The court decided to quash the detention order.

The court further directed that a copy of the order be sent to Chief Secretary of Govt. of MP and Principal Secretary of Law and Legislative Affairs, Bhopal for information and remedial action.

The complete order may be read here:

Related:

Protect arrestee’s human rights: Lawyers send open letter to UNHRC

SC reserves order in Gautam Navlakha’s plea for default bail

NHRC refuses to take action against illegal detention of women anti-CAA protesters

Independent probe into Shiv Kumar’s alleged custodial torture ordered by Punjab & Haryana HC

The post MP High Court pushes for guidelines to prevent procedural lapses in NSA detention orders appeared first on SabrangIndia.

The Madhya Pradesh High Court granted interim bail to Nalin Yadav and Sadakat Khan, who were arrested with comedian Munawar Faruqui by Indore Police in connection with an FIR against them for allegedly hurting religious sentiments.

The Single-judge Bench of Justice Rohit Arya referred to the Supreme Court order that granted bail to Munawar Faruqui on February 5. The High Court order read, “The applicant is held entitled for temporary bail maintaining parity in the light of the order dated 05/02/2021 passed by the Hon’ble Supreme Court in Writ Petition (s) (criminal) No(s). 62/2021 and SLP (cri.) No. 1045 of 2021 (supra) and this court in M.Cr.C Nos. 4562/21 and 3345/2021.”

According to Bar & Bench, the District and Sessions court at Indore had rejected the bail application moved by Sadakat Khan, who has been in custody since January 1, 2021.

The case

Comedian Munawar Faruqui, along with Sadakat, Nalin, Edwin Anthony, Prakhar Vyas and Priyam Vyas were arrested by Indore Police in the middle of a stand-up show on the basis of an FIR filed by Eklavya Singh Gaur, son of a local BJP legislator Malini Laxman Singh Gaur for allegedly making indecent remarks against Hindu deities and against Union Home Minister Amit Shah.

All six were booked under sections 295A (deliberate act to outrage religious feelings of a group), 298 (deliberate intention of wounding the religious feelings of any person), 269 (unlawful and negligent act to spread an infectious disease), 188 (disobey order of a public servant) and 34 (act done in furtherance of a common intention) of the Indian Penal Code. 

Faruqui’s bail was rejected twice by district courts and once by the High Court. Finally, after over one month of incarceration, the Supreme court granted him bail and also stayed the Uttar Pradesh production warrant issued against him in an old case. The top court had observed that the arrest guidelines were also not followed in this case. The order read:

“The learned counsel has pointed out to us that quite apart from the fact that the allegations made in the FIR are vague that the procedure contained in Section 41 Cr.PC. as adumbrated by our Judgment in “Arnesh Kumar Vs. State of Bihar & Anr.”, reported in (2014) 8 SCC 273, has not been followed before arresting the petitioner. This being the case, we issue notice in both the petitions, and stay the Judgment of the High Court. The petitioner is released on ad-interim bail on conditions to the satisfaction of the trial court.”

Subsequently, in the light of this order, co-accused Prakhar Vyas and Edwin Anthony were granted bail by the Madhya Pradesh High Court on February 12 and Priyam Vyas has also been released by a juvenile court.

The order may be read here: 

Related:

Stand-up comic Faruqui Munawar’s custody extended by two weeks
Sessions court denies bail to stand-up comic held for ‘insulting’ Hindu deities
BREAKING: Madhya Pradesh HC rejects comedian Munawar Faruqui’s bail plea
Breaking: SC grants ad interim bail to comedian Munawar Faruqui
Two of Munawar Faruqui’s co-accused get ad-interim bail, two more remain in jail

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In a bizarre order on November 26, the Madhya Pradesh High Court (Indore Bench) directed the accused to present himself before an advocate and social worker Mrs. Rashmi Pandey in the first week of February, March and April 2021 for counselling purpose and follow her instructions as a bail condition. (Anwar v. State of Madhya Pradesh MCRC No. 45683 of 2020)

Matter before the court

The petitioner Anwar was accused of posting a WhatsApp status “Tumne Dilli mein ek goli maari, humne MP mein aur Shajapur Shaheen Bagh bana diya (NO CAA NRC)” (You shot a bullet in Delhi, we made MP and Shajapur Shaheen Bagh). 

Subsequently he was booked under Sections 188 (Disobedience to order duly promulgated by public servant) and 505 [2] (Statements creating or promoting enmity, hatred or ill-will between classes) of the Indian Penal Code and was arrested on July 2, 2020 and has been under detention since. After the investigation in the case, a charge sheet was filed by the police.

The prosecution had alleged that his WhatsApp status was found to be prejudicial to the maintenance of religious harmony and could have adversely affected public tranquility.

Court’s order

The Single Bench of Justice Virendra Singh noted that the petitioner has no criminal antecedents, and directed him to be released on bail by furnishing a personal bond of Rs.30,000 to the satisfaction of the subordinate court.

Justice Singh also noted that if the Advocate and social worker Mrs. Pandey submitted a disconcerting report against the petitioner, the benefit of bail given to the petitioner would be reconsidered.

The order may be read here: 

Related:

Anti CAA protests: Madras HC quashes FIR against two
Anti CAA protests: Allahabad court protects two accused of sedition from arrest

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On October 16, 2020 Justice Akhil Kumar Srivastava of the Madhya Pradesh High Court has held that medical corroboration of the victim’s statement in a case of gang rape is not absolutely necessary. The order was passed in Harishchandra vs State of Madhya Pradesh (CRA No. 3608 of 2020).  Ms. Savita Choudhary represented the appellant/accused whereas Shri Anuj Singh, appeared for the State. There was no representation present in court for the complainant.

“After hearing learned counsel for both the parties and the entire material available in the PDF format and the fact that it is a case of gang rape and delay in lodging the FIR in rape cases is no ground to discard entire prosecution case and it is also not necessary that medically it should be corroborated and looking to the statement of prosecutrix recorded under section 164 of Cr.P.C. and other material available in PDF form and considering the entire material on merit, this Court is of the view that it is not a fit case in which appellant- Harishchandra may be released on bail under Section 439 of Cr.P.C. filed under Section 14-A of (POA) Act, hence, the appeal is hereby dismissed”, the Single Bench noted.

Justice Srivastava observed this while hearing an appeal filed under section 14A of the SC/ST (Prevention of Atrocities) Act (that allows appeal to a higher court) against the order of a lower court on June 9, 2020 passed by the Special Judge, S.C./S.T Act, Jabalpur, whereby it had refused to grant bail to the accused.

Background

The accused was charged for kidnapping, inducing her to into marriage, wrongful confinement, administering intoxicating drugs, criminal intimidation, repeated rape under relevant sections of the Indian Penal Code and the SC/ST Act and has been in custody in Jabalpur since September 6, 2018.

It was submitted by the Prosecution, that a missing report was filed by the uncle of the complainant and subsequently an FIR under the aforementioned sections against the accused and other co accused in 2018 at the Police Station Ghamapur District, Jabalpur, Madhya Pradesh. The counsel of the accused (Harishchandra), submitted that he has been in jail since September 2018 and the trial is still pending. Further it was alleged that he is innocent and that there is no direct or indirect allegation against him in this crime. There was a delay in lodging an FIR for which no explanation has been furnished was also argued. It was also submitted that the prosecutrix had gotten married to the accused and for which an affidavit sworn by her was filed with the bail application. Hence, there is no likelihood of his absconding and tampering with the evidence and should be granted bail.

But the counsel appearing for the State vehemently opposed the bail application and prayed for rejection of this appeal on the ground that it is a matter of gang rape and in her statement recorded under section 164 of Cr.PC, the prosecutrix had clearly stated against the appellant.

But the court denied the benefit of bail to the accused and dismissed his appeal.

With respect to medical corroboration in sexual assault cases, there have been some significant rulings. In B.C Deva vs State of Karnataka (2007) 12 SCC 122, the Division Bench of Justices R.V Raveendran and Lokeshwar Singh Panta of the Supreme Court had held that even though the medical evidence does not reveal any instance of forced sexual activity, the trustworthy oral testimony of the victim can be accepted by the court. In this case the victim’s oral testimony about being sexually assaulted was corroborated by her mother, father and two eye witnesses even though the medical reports did not reveal any signs of sexual intercourse. The court noted that, “Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.” Since the clothes of the accused and the victim was collected the next day of the incident, the court observed that the medical report cannot be given any importance because the clothes of the accused was taken into possession by the police on the next day of the incident and that there was no evidence to show that he handed over the same clothes to the police, which he was wearing on the day of incident. “The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away”, the Bench also noted.

Justices A Anand and S Majmudar of the Supreme Court in Ranjit Hazarika v State of Assam (1998) 8 SCC 635, had upheld the evidence provided by the prosecutrix and said that, “Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion?” In this case, a young 14-year-old girl was subject to rape by the accused in 1987 when he offered to walk her home and had non-consensual sexual intercourse with her. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. The Division Bench held that “this opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on no reasons.”

The order can be read here:

Related:

https://www.sabrangindia.in/article/allahabad-hc-quashes-rape-fir-parties-settle-dispute-getting-married

https://sabrangindia.in/article/women-lawyers-move-sc-against-madhya-pradesh-hc-rakhi-bail-order

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