Punjab & Haryana HC | SabrangIndia News Related to Human Rights Thu, 16 Nov 2023 08:40:43 +0000 en-US hourly 1 https://wordpress.org/?v=6.2.2 https://sabrangindia.in/wp-content/uploads/2023/06/Favicon_0.png Punjab & Haryana HC | SabrangIndia 32 32 Punjab & Haryana HC: Duty of the court to be more onerous, bail cannot be denied just because serious allegations https://sabrangindia.in/punjab-haryana-hc-duty-of-the-court-to-be-more-onerous-bail-cannot-be-denied-just-because-serious-allegations/ Thu, 16 Nov 2023 08:40:43 +0000 https://sabrangindia.in/?p=31104 The Court held that there was no prima facie case made out against accused under UAPA and Arms Act, granted relief of bail; allegations suggested that the accused was planning to commit some terrorist acts based on relations with Pakistan

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On November 9, a man booked under provisions of Unlawful Prevention of Activities Act (UAPA) was granted bail by the Punjab & Haryana High Court on the ground that no prima facie case had been made out against him. The man had been accused of allegedly planning to commit some terrorist acts based on relations with Pakistan.

The said judgment was delivered by a division bench of Acting Chief Justice Ritu Bahri and Justice Manisha Batra. The bench noted that no prima facie case has been made against the accused which points to him being part of any conspiracy to form membership of a terrorist gang with the aim of committing acts against the interest of the nation.

“On the basis of allegations as levelled against the appellant, prima facie no case can be stated to have been made out to presume that there had been any conspiracy between the appellant and the co-accused to form membership of a terrorist gang and to commit acts against the interest of the nation,” the bench ordered in its judgment. (Para 10)

Facts of the case:

The Court was deciding the bail plea of one Gursewak Singh, filed against the order of the Special Judge, Amritsar dismissing his bail application. It was alleged that Singh was a part of the gang who was hatching plans to commit some terrorist acts in different places in the country. Singh had been accused of having relations with “enemy country Pakistan” through mobile phones, wireless sets and other technological instruments. It was also submitted that as per disclosure statement of the co-accused the appellant and other accused had robbed 30 kg of gold from IIFL Gold Loan Branch, Gill Road, Ludhiana.

Notably, the FIR (First Information Report) lodged against the accused in 2020 invoked Sections 379-B (Snatching after preparation made for causing death, hurt or restraint), 382 (Theft after preparation made for causing death, hurt or restraint), 399 (Making preparation to commit dacoity), 402 (Assembling for committing dacoity), 411 (Dishonestly receiving stolen property), 467 (Forgery of valuable security, will, etc.), 468 (Forgery for purpose of cheating), 472 (Making or possessing counterfeit seal with intent to commit forgery), 473 (Making or possessing counterfeit seal with intent to commit forgery) of the Indian Penal Code (IPC). Sections 15, 16, 17, 18, 18B of UAPA and Section 25 sub sections 6, 7 and 8 of Arms Act and Section 52/54 of Prisons Act were also invoked in the FIR.

In February 2021, the Special Court had dismissed the application filed by Singh for regular bail. Later, in April 2022, the Special Court had also dismissed Singh’s application requesting grant of default bail under Section 167 (2) of the Code of Criminal Procedure (CrPC). A Special Leave Petition (SLP) was then filed by the accused before the Supreme Court. The same was set aside by the Supreme Court bench and the matter was remanded to the High Court with a direction to decide this appeal on its own merits. The current bail plea was now before the Punjab and Haryana High Court.

Submission by the appellant:

Singh (appellant in the bail plea moved) submitted that he had spent a period of three and a half years in custody. It was argued that that the entire prosecution in this case was carried out without obtaining any prior sanction from the competent authority. In addition to this, the appellant had alleged that no recovery had been effected from the appellant in this case, and the recovery of one pistol and four live cartridges was falsely planted upon the appellant in a case registered at Police Station Mohali which did not amount to commission of act of any terrorist activity. It was claimed that the appellant had been arrested on mere suspicion and no specific part whatsoever had been attributed to him qua commission of the offences he was accused of. Advocate Rajiv Malhotra had appeared for the appellant.

Submission by the respondent:

The plea filed by the accused was resisted by the respondents. It was alleged by the appellant and co-accused Gagandeep were accomplices in several crimes since long and had committed several crimes. They had relations with anti-national elements abroad and were committing unlawful activities. It was further clarified by the respondents that the sanction for prosecution of the appellant and other accused had been sought by the Investigating Agency in 2020. It was submitted by the respondents that there were serious allegations against the appellant and, therefore, it was stressed that he did not deserve to be given concession of bail and that the appeal was not maintainable. Alankar Narula, Additional Advocate General, Punjab had appeared for the respondents.

Observations by the Court:

On the issue of sanction of prosecution by competent authority, it was highlighted by the Court that that as per Section 45 of UAPA, no Court shall take cognizance of any offence falling under Chapter IV without previous sanction of the Central Government or as the case may be, the State Government. In this regards, the bench noted that the sanction for prosecution of the appellant and co-accused in this case had not been granted by the competent authority till the date of presentation of the challan and it was accorded later and then the said sanction is shown to have been filed in the Court along with supplementary challan report.

The court therefore held it to be “debatable as to whether the Court was even competent to take cognizance of the offences punishable under Sections 16, 17, 18 and 18B of UAPA till the date when sanction was granted under Section 45 of UAPA.” (Para 8)

In regards to the allegation of committing anti-national activities and proving the involvement of the appellant in those crimes, the court observed that no specific role has been attributed to Singh to support the allegations of being involved in anti-national activities. “No material has been brought forward by the prosecution to show the connection of the present appellant with the foreign contacts with which he along with co-accused is alleged to be involved in promoting the anti-national activities.” (Para 9)

On the charges invoked under IPC and the Arms Act, the bench held that “Further, from a perusal of the material placed on record, no specific and active role is shown to have been attributed to the present appellant qua commission of offences punishable under the provisions of IPC and Arms Act (for which he has been charge-sheeted).” (Para 10)

The bench also relied on the Supreme Court’s ruling in the case of Vernon v. The State of Maharashtra and another.

The bench also emphasised on the duty of the court to be more exhaustive in cases where stringent provisions of the UAPA are invoked as bail cannot just be denied because serious allegations are made. “The statute of UAPA has stringent provisions but that makes the duty of the Court to be more onerous and it is well settled that merely because allegations were serious, on that reason alone, bail cannot be denied,” the Court observed in Para 10 of the judgment.

“He is in custody w.e.f. 05.07.2020 (July 5, 2020). Only 1 out of 38 witnesses have been examined so far. No recovery whatsoever had been effected from the appellant in this case and one revolver and ten live cartridges were allegedly recovered from him in another case which was registered prior to this case at Police Station Mohali,” the court added. (Para 10)

Decision of the Court:

The judgment in the current case had been reserved on September 12, 2023. On November 9, weighing upon the aforementioned observations made by the Court in the said case, the Court concluded that on the basis of allegations as levelled against the appellant, prima facie no case can be held to have been made out for the court to presume that there had been any conspiracy between the appellant and the co-accused to form membership of a terrorist gang and to commit acts against the interest of the nation.

The court further stated that since the appellant has been in custody for a period of about three and half years and that the trial is likely to take time, the Court granted the relief. “Keeping in view the fact that the appellant is in custody for a period of about three and half years, that the trial is likely to take time and the entire attendant circumstances of the case, in our opinion, the appeal deserves to be allowed,” the bench noted in Para 11 of the judgment.

With this, the High Court bench set aside the order of Special Court rejecting the bail to Singh.

The complete judgment can be read here:

Related:

UAPA slapped on activists of Niyamgiri Suraksha Samiti: Kahalahandi, Orissa

Beyond UAPA: Examining other central and state laws granting vast powers to Govt

UAPA accused to be granted interim bail if prosecution sanction not granted within specified time: P&H HC

Bhima Koregaon Case: Mahesh Raut, youngest accused, granted bail by the Bombay HC!

Supreme Court punishes judge for denying bail, sends him to judicial academy

 

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Junaid murder case: Punjab & Haryana HC to hear bail cancellation plea https://sabrangindia.in/junaid-murder-case-punjab-haryana-hc-hear-bail-cancellation-plea/ Fri, 30 Jul 2021 04:16:10 +0000 http://localhost/sabrangv4/2021/07/30/junaid-murder-case-punjab-haryana-hc-hear-bail-cancellation-plea/ The court will hear the case after the State files its response as Junaid’s brother claims that the accused violated his bail conditions

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Bail CancellationImage Courtesy:ptcnews.tv

In fresh developments, in the murder case of Junaid Khan, a teenager who was lynched on a train and then left to die on a platform, his brother Mohammed Hasim has filed a petition seeking cancellation of bail of one of the accused. 

In 2017, when Junaid, Hasim and two other friends were returning from Delhi after Eid shopping, they were first verbally and then physically abused by a group of people which eventually led to Junaid being stabbed to death by one of the assailants. When the train stopped at Asaoti Railway Station, Junaid was thrown out of the train and was declared dead when he reached the hospital. After Junaid’s death, an FIR was registered the next day by his family members. The timeline of events that followed Junaid’s unfortunate death may be read here.

Sabrangindia had reported how even after the attack, the shocked and injured victims received no response from the Emergency Police and Helpline numbers. Junaid was killed, and his brothers Shakir and Hashim were also injured. The brothers who survived, had then also alleged that the Government Railway Police (GRP) officials just stood by and refused to help.

This incident had sparked the #NotInMyName Protests showing resistance to the repeated violence against minorities and targeted hate crimes. Four years later, there is little headway in the case itself. According to a report in Times of India the Supreme Court stayed the trial court proceedings in March 2018, and by October 2018, all six accused were out on bail.

On July 27, the Punjab and Haryana High Court granted time to the State to file a response to the petition seeking cancellation of bail granted to one of the accused, Naresh Kumar. Junaid’s brother, Mohammed Hasim filed the petition stating that he violated the conditions of interim bail by entering Faridabad district where he was directed not to enter. He submitted copy of news reports as well as proceedings of the Panchayat where Kumar was present. It is clear why the accused was directed not to enter Faridabad as Junaid’s family continues to reside in Faridabad’s Ballabhgarh town. The bench of Justice Anupinder Singh Grewal will take up the matter on August 31.

The order may be read here:

Related:

Remember the teenager named Junaid Khan?
Junaid Khan murder case: A chronology of events surrounding the case
This government has all but actually declared a war on its own people: Teesta Setalvad

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Social acceptance of live-in couples is increasing: Punjab & Haryana HC grants protection https://sabrangindia.in/social-acceptance-live-couples-increasing-punjab-haryana-hc-grants-protection/ Thu, 20 May 2021 08:18:31 +0000 http://localhost/sabrangv4/2021/05/20/social-acceptance-live-couples-increasing-punjab-haryana-hc-grants-protection/ This progressive order comes days after different judges of the same HC have been deeming live-in relationships as morally unacceptable

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Image Courtesy:livelaw.in

The Punjab and Haryana High Court has granted protection to a couple in a live-in relationship against the adult woman’s parents wishes who have been allegedly threatening to physically harm them.

Justice Sudhir Mittal held that Right to Life and Liberty includes the right to choose a partner of his/her choice and that the “individual also has the right to formalise the relationship with the partner through marriage or to adopt the non-formal approach of a live-in relationship.”

While noting that “social acceptance for live-in-relationships is on the increase”, Justice Mittal said that the concept of live-in-relationships has crept into our society from western nations and initially, found acceptance in the metropolitan cities, probably because, individuals felt that formalisation of a relationship through marriage was not necessary for complete fulfilment.

Contrary to what the state counsel argued, Justice Mittal ruled that live-in relationships are not prohibited in law nor does it amount to the commission of any offence. “The law postulates that the life and liberty of every individual is precious and must be protected irrespective of individual views”, read the order.

In order to further examine the issue, the court drew parallels between married couples and couples in a live-in relationship who choose their respective partners against the wishes of their parents. He observed that if married couples are entitled to protection, live-in couples are entitled to the same relief.  

Justice Sudhir Mittal asked,  “The Constitutional Courts grant protection to couples, who have married against the wishes of their respective parents. They seek protection of life and liberty from their parents and family members, who disapprove of the alliance. An identical situation exists where the couple has entered into a live-in-relationship. The only difference is that the relationship is not universally accepted. Would that make any difference?”

He continued, “In my considered opinion, it would not. The couple fears for their safety from relatives in both situations and not from the society. They are thus entitled to the same relief. No citizen can be permitted to take law in his own hands in a country governed by Rule of Law.”

Accordingly, the court directed the police to grant protection to the couple and “ensure that no harm comes either to the lives or liberty of the petitioners”.

This significant order comes days after the same High Court’s Single-judge Bench of Justice HS Madaan refused to grant protection to a couple living together, calling their relationship morally and socially unacceptable. Another Bench of Justice Anil Kshetarpal had denied protection to a couple where the couple was 18 to 21 years old stating that if such protection is granted the entire social fabric of the society would get disturbed.

Similarly in March, Justice Arvind Singh Sangwan dismissed the plea of two live-in partners seeking protection after holding that their live-in relationship contract clearly mentioned that it was not a marital relationship which was a “misuse of process of law as it cannot be morally accepted in society”.

The order authored by Justice Sudhir Mittal may be read here: 

Related:

Live-in relationship is morally and socially unacceptable: Punjab & Haryana HC
Punjab and Haryana HC suggest safe houses for inter-caste couples
Punjab & Haryana HC says interfaith marriage invalid as Muslim woman did not convert
Punjab and Haryana HC refuses to grant protection to live-in couple

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Live-in relationship is morally and socially unacceptable: Punjab & Haryana HC https://sabrangindia.in/live-relationship-morally-and-socially-unacceptable-punjab-haryana-hc/ Wed, 19 May 2021 04:10:48 +0000 http://localhost/sabrangv4/2021/05/19/live-relationship-morally-and-socially-unacceptable-punjab-haryana-hc/ Different judges of the high court in the recent past have passed such regressive orders, that not only go against orders passed by the court in the past, but also contravene precedents laid out by the apex court

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Image Courtesy:india.com

The Punjab and Haryana High Court refused to grant protection to a couple living together, apprehending danger from the parents of one of the petitioners. The bench of Justice HS Madaan while denying such protection called their live-in relationship morally and socially unacceptable.

This is not the first time the judges of this high court have taken such a regressive view towards relationships. A few days ago, another bench of Justice Anil Kshetarpal had denied protection to a couple where the couple was 18 to 21 years old stating that if such protection is granted the entire social fabric of the society would get disturbed. It is commonplace for couples in inter-caste of interfaith relationships to approach the high court for granting them protection as they apprehend threat from either or both families to life. While in the past, the high court has accepted such petitions with open arms, these single-judge benches have crushed hopes of these and many other young couples who placed their trust and faith in the judiciary to protect their rights.

In March, single-judge bench of Justice Arun Kumar Tyagi held the marriage between a Hindu man and a Muslim woman to be invalid, as all wedding ceremonies and rites were in accordance with Hindu traditions without the woman converting to Hinduism before solemnisation. Further, bench of Justice Arvind Singh Sangwan deemed the clause in the couple’s live-in relationship contract which clearly mentioned that it was not a marital relationship to be a “misuse of process of law as it cannot be morally accepted in society”.

On the other hand the bench of Justice Avneesh Jhingan had suggested that the states provide safe houses for inter-caste or inter-faith couples apprehending threat, so that they do not have to approach the court each time.

In Madan Mohan Singh v. Rajni Kant (2010), the Supreme Court held that, the live-in relationship if continued for long time, cannot be termed as a “walk-in and walk-out” relationship and that there is a presumption of marriage between the parties. Further, In landmark case of S. Khushboo v. Kanniammal (2010), the Supreme Court held that a live-in relationship comes within the ambit of Right to Life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two majors living together cannot be considered illegal or unlawful.

The May 11 order may be read here:

The May 12 order may be read here:

Related:

Punjab and Haryana HC suggest safe houses for inter-caste couples
Punjab & Haryana HC says interfaith marriage invalid as Muslim woman did not convert
Punjab and Haryana HC refuses to grant protection to live-in couple

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Punjab & Haryana HC asks Centre to consider reallotment of oxygen from nearby plants https://sabrangindia.in/punjab-haryana-hc-asks-centre-consider-reallotment-oxygen-nearby-plants/ Sat, 08 May 2021 04:22:25 +0000 http://localhost/sabrangv4/2021/05/08/punjab-haryana-hc-asks-centre-consider-reallotment-oxygen-nearby-plants/ The grievance of the states was that oxygen was to be transported from faraway plants and it was difficult to make arrangements

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Image Courtesy:india.com

The Punjab and Haryana High Court has directed the Centre to consider reorientation of the supply of oxygen to the states so that daily receipt of allocated oxygen is ensured. The issues raised before the bench of Justice Rajan Gupta and Justice Karamjit Singh was that the oxygen was allocated from distant places and the arrangements to transport it from these places was not falling in place resulting in shortfall.

Senior Advocate Rupinder Khosla, on behalf of the amicus curiae, informed the court of the severe shortfall in supply of oxygen to Punjab, Haryana as well as Union Territory of Chandigarh. The reason for this shortfall was that either the allocated quantity is not supplied or is to be supplied from distant places, such as, Rourkela and Jamnagar and by the time arrangements are made, the States are virtually left starving of oxygen.

Advocate General of Punjab, Atul Nanda informed the court that Centre had allocated it 227 MT oxygen where requirement is 300 MT and sufficient number of containers are not allotted to transport it. He also highlighted shortage of essential drugs and vaccination, where the shortfall is of 32 lakh doses for 45+ age group and for 18-44 age group, another 2.64 crore doses were required. The orders were place for the latter, however, doses have not been delivered.

Advocate General of Haryana, Baldev Raj Mahajan submitted that the State is facing extreme shortage of oxygen despite the fact that it has a plant located at Panipat which is manufacturing 260 MT, as it was not being allowed to get supply from this plant. Similar grievance was put forth by counsel for Chandigarh on shortage of oxygen.

The court observed that the issue raised was not of increasing allocation but of receiving the allotted quota, due to the oxygen plants being at distant places. The court thus directed the Centre to consider reorientation of the supply of oxygen from various plants in such a manner that the allocated quantity reaches the respective States before already allotted quota is exhausted to avoid loss of life. at present the situation in the three States falling within the jurisdiction of this court, appears to be critical and deserves immediate attention of the Union, the court added.

The court suggested that the two states and the UT may consider setting up of unified command centre for Chandigarh, Panchkula and Mohali as the working and business class have their work place or residence in either of the three cities and it may become easier to tackle the crisis. “In case, there is a common platform to deliberate upon the strategies to be adopted, it would be easier to tackle the challenges posed by the Pandemic,” the court stated.

The court was informed that hoarding of drugs was curbed as their supply through private chemists was stopped.

The court re-emphasized the need for adequate supply of oxygen and stated, “People in trauma cannot be made to run here and there in hospitals to get oxygen cylinders. The Governments need to be over sensitive and in an overdrive to reach out to patients in need of medical care and assistance.” The court strongly suggested that a common strategy needs to be drawn by regards availability of oxygen.

The case will next be heard on May 12.

The order may be read here:

Related:

Uttar Pradesh O2 crisis: FIR against Lucknow hospital for putting up shortage notice
Delhi HC directs tele calling, video calls, Covid vaccination for Tihar jail inmates
Hardly scope for getting first dose of vaccine: K’taka HC on vaccine shortage 

 

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Sex determination test, a malaise affecting society: Punjab & Haryana HC https://sabrangindia.in/sex-determination-test-malaise-affecting-society-punjab-haryana-hc/ Tue, 03 Nov 2020 13:59:04 +0000 http://localhost/sabrangv4/2020/11/03/sex-determination-test-malaise-affecting-society-punjab-haryana-hc/ The court said it is a classic case of misuse of the gift of technological development that destroys woman of future

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Image Courtesy:barandbench.com

The disturbing and illegal practice of prenatal sex determination led Justice Avneesh Jhingan of the Punjab and Haryana High Court to dismiss the applicants pre-arrest bail application and observe that, “Considering the disdainful attitude of the society to a female child and use of diagnostic equipment for female foeticide Act was enacted to curb the pre-natal sex determination. Despite the specific legislation the menace of sex-based destruction of foetus continues to plague the society.” (Hasan Mohammad v State of Haryana- CRM-M-34797 of 2020). 

Advocate Sarfraj Hussain represented the petitioner and Haryana Deputy Advocate General Pankaj Mulwani appeared for the State of Haryana.

“The Constitution guarantees equality to genders but prenatal sex determination deprives a female foetus to come to this world. In a civilized society, the sex of the foetus cannot be a determining factor for having a lease of life to see this world, if permitted the consequences would be devastating, the civilization itself would be endangered. To put in other words termination of female foeticide is destruction of woman of future”, the court noted.

The court expressed concern by further stating that, “Determination of sex of the foetus is a malaise which is affecting the society day in and day out. The desire to have a male child is an open secret. It has affected the gender ratio of the society.”

Background

An anticipatory bail application was filed in connection with FIR No. 226 dated September 29, 2020 for assaulting a public servant and cheating under relevant section of the Indian Penal code. He was also booked under Sections 4, 5, 6, 23 and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 for playing a pre-recorded abdomen ultrasound to declare the sex of the foetus.

After the police received secret information about an illegal activity being carried out, a decoy customer was deployed to get an ultrasound done, for determining the sex of the foetus. The payment was made through marked currency notes. Thereafter, the accused allegedly dramatised the conduct of ultrasound on the decoy customer and played a pre-recorded video (on an LCD) to show that ultrasound was being conducted in the name of sex determination.

The petitioner’s counsel argued that no charge against him under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 should be made out since he did not actually conduct an ultrasound or have an ultrasound machine in his clinic. There was also no complaint against him for his activities either, his counsel argued.

However, Justice Jhingan reasoned that since the accused misrepresented the machine he was using as an ultrasound machine and declared the sex of the foetus at the end of the alleged scan, he could be booked under the provisions of the Prohibition of Sex Selection Act. The court also strictly held that, “the person who is in active participation against an enactment, in other words is a party to the illegal act, is not expected to come forward to make a police complaint.”

Further, the court looked at the sections of the provision and laid down that Section 5 (1) says that no pre-natal diagnostic procedure shall be carried without explaining the side effects to the pregnant lady and without obtaining her consent. Section 5 (2) states that the sex of the foetus shall not be communicated to the pregnant woman or her relatives or any other person by words, signs or in any other manner. Section 6 prohibits various centres to use the diagnostic techniques for determining the sex of the foetus.

The court recorded that, “The persons who were being fleeced probably would not be aware that in the name of determination of sex they were shown pre-recorded video.”

On the basis of these observations, the single bench of Justice Avneesh Jhingan dismissed the petitioners’ anticipatory bail application on October 30, 2020.

The order may be read here: 

Related:

Cabinet clears reforms related to abortion, reproductive rights
A Colossal Calamity, Decreasing Sex Ratio: Supreme Court

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