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SUPREME COURT FORMULATES PRINCIPLES FOR RETRIAL AND JOINT TRIAL IN A CRIMINAL CASE

Advocate Sushila Ram 17 Oct 2021

A three Judges Bench of the Hon’ble #SupremeCourt of India comprising of Justices Dr. DY Chandrachud, Vikram Nath and BV Nagarathna, in the matter of Nasib Singh vs State of Punjab and Another [2021 SCC Online SC 924] vide its #Judgment dated 08-10-2021 formulated #principles governing the power of #Courts to direct #retrial, joint trial, and separate trial in a #criminal case.

In this case, an First Information Report (‘FIR’) No. 96/2012 under Sections 363, 366A, 376, 328 and 34 of the Penal Code, 1860 was registered by one, Mr. Nasib Singh, Sub-Inspector (SI), in charge of the Police Station at Ghagga, Badshahpur (the ‘Appellant’) against Mr. Balwinder Singh, Mr. Gurpreet Singh alias Aman and Mr. Sandeep Singh (‘Accused’) on 26-11-2012 for committing sexual assault on the Prosecutrix. On 26-12-2012, the Prosecutrix committed suicide leaving behind a suicide note and named the Accused to be responsible for her decision to end her life. As a result, the Appellant immediately arrested the Accused.

On the other hand, on 26-12-2012, another FIR No. 100/2012 was registered at the same Police Station against the Appellant (Nasib Singh, SI) implicating him with the other Accused in FIR No. 96/2012 for abetting the suicide of the Prosecutrix. It was alleged that though the Appellant received information from the Prosecutrix, no arrest was made and a proper investigation was not conducted. On 31-12-2012, another FIR No. 187/2012 was registered against the Accused for an offence punishable under Section 306 read with Section 34 of the Indian Penal Code (IPC) at Police Station Samana having jurisdiction over the matter.

The Additional Sessions Judge, Patiala, convicted the Accused in the trial and acquitted the Appellant on the ground that there was nothing on record to prove that he had conducted a tainted investigation under FIR No. 96/2012 and FIR No. 187/2012 vide its Judgments dated 29-11-2014 and 29-01-2015, respectively.

The Respondent had filed Appeals against the Judgments dated 29-11-2014 and 29-01-2015 passed by the Additional Sessions Judge, Patiala before the High Court of Punjab and Haryana (‘High Court’). The acquittal of the Appellant was challenged under these Appeals by the Respondent. The High Court vide its common Judgment dated 20-12-2019 disposed off the Appeals. The High Court directed and remitted the matters to the Additional Sessions Judge, Patiala to be tried together, as provided under Section 223 of the Code of Criminal Procedure 1973 (‘CrPC’) (What persons may be charged jointly). The High Court observed that there was apparent failure of justice in this case and hence, there is a necessity to remit back the case for retrial.

Aggrieved, the Appellant filed an Appeal before the Supreme Court of India against the common Judgment dated 20-12-2019 passed by the High Court. The Apex Court discussed the power to direct retrial under Section 386 of CrPC (Power of the Appellate Court). As per Section 386 (a), the Appellate Court may in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law.

To read more, please visit the link below:

https://theindianlawyer.in/supreme-court-formulates-principles-for-retrial-and-joint-trial-in-a-criminal-case/

#supremecourt #retrial #jointrial #criminalcase #lawyered

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SUPREME COURT HOLDS WILLINGNESS IS A RELEVANT CONSIDERATION FOR A DECREE FOR SPECIFIC PERFORMANCE

Advocate Sushila Ram 16 Oct 2021

A Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices M.R. Shah, and A.S. Bopanna passed a #Judgment dated 04-10-2021 in the case of K. Karuppuraj v. M. Ganesan, 2021 SCC OnLine SC 857 and held that for the purpose of passing a #decree for #specificperformance, readiness and willingness is a relevant #consideration and the same has to be established and proved.

In the present case, the Plaintiff and the Defendant entered into an agreement for sale (Agreement) of the property situated in Kaspa Coimbatore (Property). The Defendant agreed to sell the same for a sale consideration of Rs. 16.20 lakhs to the Plaintiff. At the time of execution of the Agreement, a part sale consideration of Rs.3,60,001/- was paid. There were certain conditions stipulated in the Agreement. One of the conditions was that the Defendant as the original owner was required to evict the tenants from the Property in question and thereafter to execute the Sale Deed on receipt of the full sale consideration.

Vide Notice dated 01-07-2006, the Plaintiff asked the Defendant to evict the tenants from the Property in question and further to execute the Sale Deed on receipt of the balance sale consideration. Thereafter, the Plaintiff filed a Suit before the Trial Court for specific performance of the contract. The Plaintiff averred that the Defendant did not evict the tenants and come forward to execute the sale deed. The Defendant contested the Suit by filing the Written Statement.

Before the Trial Court

The learned Trial Court framed the following issues:-

a) Whether the Plaintiff is entitled for specific performance?

b) Whether the Plaintiff was ready and willing to purchase the Property?

c) To what relief?

The Trial Court on appreciation of the evidence observed that the Plaintiff was not at all willing to purchase the Property with the tenants. Accordingly, the Suit was dismissed and directed the Defendant to refund the advance amount of Rs.3,60,001/- with interest @ 18% p.a. from the date of Agreement till the date of realization, to be paid within a period of two months.

Before the High Court

Aggrieved, with the Judgment and Decree passed by the learned Trial Court dismissing the Suit for Specific Performance, an Appeal was filed by the Plaintiff before the High Court of Judicature at Madras (High Court). Vide Order dated 27-11-2017, the High Court without even considering the evidence on record and without even framing the points for determination, set aside the Judgment and Decree passed by the Trial Court and allowed the Appeal. Consequently, the High Court decreed the Suit for specific performance of the contract.

To read more, please visit the link below:

https://theindianlawyer.in/supreme-court-holds-willingness-is-a-relevant-consideration-for-a-decree-for-specific-performance/

#supremecourtofindia #consideration #specificperformance

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SUPREME COURT CONCLUDES HALF-A-CENTURY OLD LITIGATION IN THE MATTER OF EXECUTION OF A MONEY DECREE

Advocate Sushila Ram 16 Oct 2021

The Two Judge Bench of the #SupremeCourt has in the matter of Dipali Biswas v Nirmalendu Mukherjee passed a Judgment dated 05-10-2021 and made the following observations in a half-a-century old #litigation, which is at the stage of execution of a simple #moneydecree that started in 1971 and is still continuing its fifth round of litigation before the Apex Court.

In this case, the long pending litigation started as follows:

1) One, Ms. Rama Rani Devi had filed a suit for recovery in a Money Suit in the year 1971 before the District Court, Bongaon, District 24 Parganas, West Bengal, against one, Mr. Sasadhar Biswas for recovery of Rs. 3000/-.

2) The District Court passed an ex-parte Decree dated 25-07-1974, thereby directing the Defendant, Mr. Biswas to pay the decretal amount in six equal instalments.

3) However, the Defendant failed to honour the Decree, hence, the Decree Holder filed an Execution Petition in 1975 seeking attachment and sale of a plot of land in Bongaon (Property). The Executing Court issued a Sale Proclamation on 16-07-1975. As per Order 21 Rule 66 of the Code of Civil Procedure 1908 (CPC), where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale…

4) Thereafter, the Judgment Debtor- Mr. Biswas filed an Application in 1975 to challenge the said Sale Proclamation issued by the Executing Court, on the ground of material irregularity and fraud, which was dismissed on 03-09-1975.

5) Thereafter, an Auction Sale was held on 30-05-1979, whereby, two brothers, Mr. Sachindra Nath Mukherjee and Mr. Dulal Kanti Mukherjee, emerged as the highest bidders. They offered a sum of Rs. 5500/-, as the highest bid amount and also deposited the money in Court.

6) The Judgement Debtor filed an Application before Executing Court in 1979 seeking setting aside of the Auction Sale on the ground of material irregularity in the Sale Proclamation.

7) During the pendency of this Application, the Judgment Debtor entered into a Compromise with the Auction-Purchasers which recorded that the Judgment Debtor would pay the entire money due to the Auction-Purchasers in cash, within 15-12-1980, after which the Auction shall be revoked and in case, he is unable to meet the deadline, then Auction would remain effective. However, the amount to be paid was not clearly specified in the said Compromise Memo. The decretal amount was around Rs. 3360/-, but the amount deposited by the Auction-Purchasers in the Court was Rs. 5500/-. The Judgement Debtor deposited around Rs. 3700/- on 15-12-1980 and failed to deposit the balance amount of Rs. 1800/- within the given timelines. Hence, the Executing Court dismissed the said Application, vide Order dated 16-12-1980.

8) However, the Executing Court later recalled its Order dated 16-12-1980 on 20-12-1980 and held that the Execution has been fully satisfied.

9) Aggrieved, the Auction-Purchasers filed an Application on 22-12-1980 challenging the Executing Court’s decision to recall its earlier Order dated 16-12-1980 behind its back. But the said Application was dismissed by the Executing Court, vide Order dated 12-09-1981.

To read more, please visit the link below:

https://theindianlawyer.in/supreme-court-concludes-half-a-century-old-litigation-in-the-matter-of-execution-of-a-money-decree/

#supremecourt #litigation #execution #moneydecree

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Rainbow is turning Grey – How can LGBTQ community get Right Legal Assistance and Support ?

Rtn. Adv. Sonia Rajesh 16 Oct 2021

The country we live in has a history of valor and countless examples of protecting the weaker section of society, what we don’t know is such protection and success stories have unheard painful episodes.While read more

While women in our country are still battling to overcome the domestic abuse and violence from intimate partners, the LGBTQ community is more vulnerable. Thankfully the “Protection of Women from Domestic Violence Act,2005” comes to the rescue.

As a practicing Lawyer in Bangalore, with over 15 years of experience and expertise in Family Law and Criminal Defense, I have observed many gaps in this area and there is lot more work that needs to be done to support the victims of abuse in the LGBTQ community. On 6 September 2018, the Court ruled unanimously in “Navtej Singh Johar v. Union of India” that Section 377 was unconstitutional "in so far as it criminalizes consensual sexual conduct between adults of the same sex". We await a similar landmark judgement to amend the existing act and protect the minority community drawing additional sections or perhaps rename it to “Protection of Women and LGBTQ from Intimate Partner Violence”. The day is not far for such judgement to come. Meanwhile the victims of LGBTQ community can seek relief not only through this act but also from various other sections as in the Indian Penal Code (IPC) and the Articles of Constitution of India that violates their rights.

Section 2(a) of the Protection of Women from Domestic Violence Act,2005, “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

As a Lawyer in Bangalore, at least for the aggrieved LGBTQ community, I argue this definition of the act can include and extend to the LGBTQ community, such precedence can be drawn from various judgements from both the Hon’ble High courts and the Supreme court of India.

Further ray of home for the LGBTQ community who is subjected to violence, comes from this act which defines the ambit of Relationship

Section 2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

The victim who is suffered discrimination, insult, violence, harm, injury and abuse (Physical, Verbal, Financial, Sexual etc…) from Parents, Friends, Employers, Society at large where a relationship exists and if proven can get a relief in the form of Protection Order, Financial compensation and Residence Orders.

The Magistrate can further order the accused to execute a bond, with or without sureties, for preventing the commission of any act of violence. Monitory relief may include where the victim is compensated by the accused for Loss of earnings, Medical Expenses, Loss caused due to damage or removal property, and a maintenance order can be passed.

In some cases, if the Victim from the LGBTQ community is a minor who is subjected to violence from the family member can be granted temporary custody to the person making application on their behalf.

Further, the aggrieved person need not wait for the case to complete, an interim and ex- parte order can be sought and if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of violence and the rights are infringed or that there is a likelihood that the respondent may commit an act of violence, he may grant an ex parte order in the favor of the victim.

A very important point, I can vouch with my 15 years of practice as a Lawyer in Bangalore, while proofs and evidence are important, in the matters of intimate partner violence, upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.

What are the types of Violence LGBTQ community is subjected to ?

LGBTQ community suffers more violence than the NON-LGBTQ community, such violence can extend from victimization including forced sexual activity without consent, sexual assault, blackmail, extortion, bullying, intimidation, and assault to name a few. Few examples I can quote from my experience interacting with clients are:

Forcing the person to attend conversion therapy, subjecting them to medication and seeking help from astrologers / occultists and non-certified medical practitioners or alternative therapists.

Forced by parents to get married with an assumption that after marriage the orientation will change.

In an intimate relationship, victimized by the partner capturing the nude photographs / videos and subjected to blackmail and extortion. This was the case where the person although married developed attraction towards same sex relationship and was blackmailed by the partner to expose his orientation to his family, to keep it a secret he was financial abused.

Forced to perform activities against their interest by the intimate partner, being bullied / harassed and troubled. Although both are of the same orientation, the dominant partner displayed vehemence and turned abusive.

Solicitated sexual favors in exchange of business and work. Unfortunately, the POSH Act protects women and it should extend to this section of community too.

Restrained from meeting the partner, telephone and access to the outer world was completely cut off, being locked in the room by the parents.

Subjecting the victim to continue the married relationship and not signing the divorce papers, just to save the family prestige, after knowing the orientation.

Victims are disowned by the parents and their rights to ancestral property are violated.

A recent case I am representing the victim, on threw light on the human trafficking element, especially from Bangladesh few people are trafficked into and are victims who suffer pain beyond words that can explain. The victims rights are infringed and suffer sexually transmitted diseases too.

There were few of many such examples, overall, the LGBTQ community is subject to similar prejudices and are victimized. The challenges exponentially grew because the people from this community suffer low self-esteem and are unable to stand up for their rights, they shy away to open up and seek legal advice as they fear being branded by the society. They suffer mental health issues such as depression or self-harm followed with suicidal thoughts.

How to seek Legal Advice ? How can a lawyer assist the Victims of LGBTQ Community?

1. Legal Consultation / Legal Advice:

The focus of this conversation will revolve around

Creating Awareness and Educating the legal rights that can be exercised
Possible options, merits of the actions, and the various ways you can proceed with litigation.
All pros and cons are discussed before taking any legal action, and how to seek intervention from Police and press criminal charges, FIR etc…

2. Mediation :

If you are willing to resolve the issue with the opposite party without going to the court or police

Start the process by sending a legal notice to the opposite party
Decide a time for negotiation / mediation
Resolve the Dispute and draw an MOU with terms and conditions
Compensation or Other call of action as per the agreed terms
Get the papers registered, matter gets disposed amicably.

3. Litigation :

If you are already in litigation, either as a victim or accused, or wish to initiate litigation

Prioritize the issues on which you need to draw litigation
Get ready with the draft / papers to be filed
The matter gets filed as per the jurisdiction
Ensure you carry the required proofs / evidence to show your rights are infringed
Key stages that follow the matters gets filed are Evidence Stage, Examination and Cross Examination Stage and the Final Arguments.
Judgement / Orders are passed.
If the opposite party feels the orders are not in their favor and goes for an appeal you will defend. If you believe the orders are not in your favor, you may appeal in the high courts within 60 Days from the orders are passed.

What LGBTQ cases are filed in the courts of India? What Judgements paved way for LGBTQ Rights?

Some quotable cases that draw precedence and a ray of hope for the LGBTQ victims that their issues will not only be heard but also will find justice upholding the rights.

1. NAVTEJ SINGH JOHAR V UNION OF INDIA

The Bench struck down Section 377 to the extent that it criminalized sex between two consenting adults.

2. NATIONAL LEGAL SERVICES AUTHORITY VS. UNION OF INDIA

The Court upheld the right of all persons to self-identify their gender. The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.

3. ARUN KUMAR VS. INSPECTOR GENERAL OF REGISTRATION

The court looked at the term ‘bride’, as mentioned in Section 5 of the Hindu Marriage Act meant only women or included transgender persons as well. This judgement expands the category of women to include transgender people to identify as women to be brides as well. In simple words, if a man is married to a Transwoman the marriage is valid, and the transwoman also get the rights of Maintenance, Spousal Support, Divorce and if subjected to violence by her intimate partner gets the relief as per the domestic violence act.

4. S SUSHMA VS. COMMISSIONER OF POLICE

This is the case where a lesbian couple who eloped to Chennai were being harassed by their families. The court said action would be taken against professionals involving themselves in any form or method of 'conversion therapy' which includes revoking their license to practice.

Justice Venkatesh also directed several reforms in institutions / schools / colleges to hold Parents Teacher meetings and explain parents about the issue’s LGBTQ community, also suggested changes in the school curriculum.

A very important direction from this judgement was to Police Department, if they receive complaints from the family or any other individual about consenting adults of the LGBTQ community, close the complaint without subjecting them to any harassment.

5. VAIBHAV JAIN & ANR VS. UNION OF INDIA & ANR also in a similar other case DR. KAVITHA ARORA & ANR VS. UNION OF INDIA

The petition of Vibhav Jain vs Union of Inida seeks a declaration stating that the Special Marriage Act ought to apply irrespective of gender identity and sexual orientation, the same is the prayer cited in the matter of Dr. Kavitha Arora & ANR vs Union of India.

In the matter of Vaibhav Jain and Anr v. Union of India the Petitioners have not only challenged the Special Marriage Act, an appeal also is recorded. Two gay men who got married in United States when they tried to enlist their marriage their application was declined. The appeal was filed to proclaim that the Foreign Marriage Act, 1969 should be perused to apply to same-sex relationships.

Conclusion

The current situation has many shades of gray that need to fade away for the rainbow to reflect true colors and enjoy the fundamental rights the Constitution of India provides to its citizens. While the journey towards equality, inclusiveness and non-discrimination has started, the LGBTQ community continues to face violence and discrimination.

Trust this blog post has helped you understand your legal options, and the course of action you may take when your rights are infringed. Feel free to reach me at lawyersonia@gmail.com or call at 9845944896 for counselling and discussion if you are facing issues and seek legal remedy.

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BAIL UNDER NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 TO BE GRANTED BY THE COURT OF SESSIONS

Advocate Sushila Ram 10 Oct 2021

Recently, the Narcotic Drugs and Psychotropic Substances Act, 1985 (the ‘#NDPS Act’) has been in the news and under much discussion due to some #highprofile #arrests for possession of #contraband #drugs.The read more

The NDPS Act prohibits any individual from engaging in any activity consisting of production, cultivation, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance. The provisions regulate and prohibit the operations and usage relating to narcotics drugs and psychotropic substances. It lays down that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import, inter-State, export-inter-State, import into India, export from India or trans-ship any narcotic drug or psychotropic substance, except for medical or scientific purpose and to the extent provided by the provisions of the NDPS Act.

The Act further provides punishment for several offences under Sections 15–32 (Offences and Penalties). Moreover, bail under the NDPS Act cannot be given to accused that are charged under Sections 19, 24 or 27A and offences relating to commercial quantities of drugs under Section 37 of the NDPS Act.

On 03-10-2021, the Bollywood superstar Shah Rukh Khan's son Aryan Khan along with 7 other co-accused were arrested in relation to possession of prohibited drugs on a cruise ship off the Mumbai coast by the Narcotics Control Bureau (‘NCB’), which is the nodal agency on the matter relating to drug law enforcement in India. The NCB detained the 8 Accused including Aryan Khan in a raid on the Cordelia Cruise Ship and charged the said Accused for committing offences under the provisions of the NDPS Act. They have been charged under Section 8 (Prohibition of certain operations) read with Section 20b (Punishment for contravention in relation to cannabis plant and cannabis), Section 27 (Punishment for consumption of any narcotic drug or psychotropic substance), Section 28 (Punishment for attempts to commit offences), Section 29 (Punishment for abetment and criminal conspiracy) and Section 35 (Presumption of culpable mental state) of the NDPS Act.

In this case, a total of 8 persons were arrested for possession of cocaine, MD (Mephedrone), Charas, MDMA (Ecstasy) and a large sum of money at the International Cruise Terminal, Mumbai. Under the NDPS Act, it is presumed that once an article is found in possession of an accused, he was in conscious possession of the article. However, the term possession carries different meanings in different contexts and circumstances therefore the same has to be decided with reference to the statutes applicable to the case.

On 04-10-2021, the said persons arrested in relation to the Cordelia Cruise Ship drug case were presented before the Magistrate Court, Mumbai. The Mumbai Court ordered and remanded the Accused in NCB Custody for detailed investigation till 07-10-2021.

To read more, please visit the link below:

https://theindianlawyer.in/bail-under-narcotic-drugs-and-psychotropic-substances-act-1985-to-be-granted-by-the-court-of-sessions/

#bail #drugs #court #arrests #aryankhan

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SUPREME COURT HOLDS THAT EXCLUSION OF A SIBLING SHALL NOT BE A GROUND TO SUSPECT THE GENUINENESS OF…

Advocate Sushila Ram 10 Oct 2021

A Two Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices Sanjay Kishan Kaul, M.M. Sundresh passed a Judgment dated 07-10-2021 in the case of V. Prabhakara v. Basavaraj K. (Dead) By Lr. & Anr. Civil Appeal No.1376-1377 of 2010 and held that an #exclusion of a #sibling shall not be a ground to suspect the genuineness of a #Will.

n the present case, the Suit Property belonged to one Ms Jessie Jayalakshmi (Deceased).

On 04-09-1985, a Registered Will (Exhibit 4) was executed in favour of one V Prabhakara (Appellant), by the Deceased, who had adopted the Appellant as her son. The Appellant’s brother, Mr. Vijay Kumar attested the Will.

The relationship between the Deceased and her husband (Respondent No. 1) got strained. On 26-03-1988, the Deceased and her husband obtained a divorce decree however; the Respondent No. 1 was permitted to reside in the Suit Property. The Respondent No. 1 refused to vacate the Suit Property, which is a residential house. The Appellant paid all the statutory dues for the Suit Property; a suit for declaration and for possession was filed in O.S. No. 51 of 1992 which was decreed on 11-12-2003.

Before the Trial Court

The Defendants/Respondents acknowledged the factum of execution of Exhibit P4, however they introduced another Exhibit D1, (an unregistered Will), allegedly executed by the Deceased in favour of the Respondent No.2, the son of Respondent No. 1. It is their case that Exhibit P4 has been replaced by Exhibit D1. It was also their contention that D1 spoke about the mortgage between the Deceased and her husband upon payment of Rs. 31,000 in the Deceased’s favour.

On 11-12-2003, the Trial Court decreed the Suit after it was satisfied that requirements of Section 63 of the Indian Succession Act, 1925 r/w Section 68 of the Indian Evidence Act, 1872 were complied with in order to prove Exhibit P4. Further, the Trial Court gave exhaustive reasoning while doubting the genuineness of Exhibit D1.

Before the High Court

Aggrieved, the Respondents approached the High Court invoking Section 96 of the Civil Procedure Code in RFA No. 692 of 2004 which was decided on 20-09-2006. The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading the High Court observed that there is no logic in the exclusion of the Appellant and PW2.

Incidentally, it has been held that evidence of PW3 would not be sufficient.

The High Court affirmed the reasons for doubting the genuineness of Exhibit D1 and the High Court dismissed the Suit and allowed the Appeal.

It was observed by the High Court that the exclusion of the Appellant’s siblings from the Will was not based on sound logic and that evidence by attesting witness was not sufficient enough to remove the suspicion around Exhibit P4.

To read more, please visit the link below:

https://theindianlawyer.in/supreme-court-holds-that-exclusion-of-a-sibling-shall-not-be-a-ground-to-suspect-the-genuineness-of-a-will/

#supremecourt #sibling #will

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SUPREME COURT LAYS DOWN GROUNDS FOR REVOKING BAIL

Advocate Sushila Ram 10 Oct 2021

A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices N.V. Ramana, Surya Kant and Hima Kohli passed a Judgment dated 04-10-2021 in the case of Vipan Kumar Dhir v. State of Punjab and another Criminal Appeal Nos.11611162 of 2021 (Arising Out Of SLP (Crl.) Nos. 54045405 of 2021) and held that the conduct of the #Accused, Gravity of Offence, Societal Impact etc. are grounds to revoke #bail.

In the present case, the Appellant (hereinafter ‘Complainant’), who is the father of the Deceased had lodged an FIR on 02-10-2017 against 7 Accused persons, 4 of whom were members of the in-laws family of the Deceased including the Respondent No. 2, who is the mother-in-law of the Deceased (hereinafter Respondent-Accused). The Complainant alleged that his daughter married the son of the Respondent-Accused on 28072017. Thereafter, the Deceased had to face harassment and was physically tortured by her in-laws on the pretext of dowry demands. His daughter died an unnatural death under suspicious circumstances on 02102017.

On 30092017 the Deceased contacted her father and informed him that she had to face humiliation and abuse because of her failure to meet their dowry demands. The Complainant assured his daughter that he would try to amicably settle the matter. However, that could never happen as on 01-10-2017 poison was administered to the Deceased which led to her unfortunate demise the following morning.

Subsequently, an FIR was lodged and the Respondent-Accused moved an anticipatory bail application before the Sessions Court, however the same got rejected on 21-12-2017.

Dissatisfied, the Respondent-Accused No. 2 (mother-in-law) approached the High Court of Punjab and Haryana (High Court) for a similar relief, however the Petition was dismissed as withdrawn on 08-03-2018. Meanwhile, as she was not cooperating in the ongoing investigation, arrest warrants were issued by the SHO of the concerned Police Station against the Respondent-Accused. However, the arrest warrant could not be executed as the Respondent-Accused had been on the run and was declared an absconder on 23-04-2018 under the provision of Section 82 of the Code of Criminal Procedure (CrPC).

Thereafter, the Court granted anticipatory bail to her younger son on 22-10-2019. Hence, taking advantage of this situation, she filed two Petitions before the High Court for quashing the Order that declared her a ‘Proclaimed Offender’ and further sought the relief of anticipatory bail.

To read more, please visit the link below:

https://theindianlawyer.in/supreme-court-lays-down-grounds-for-revoking-bail/

#supremecourt #bail

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Issues Faced by Transgender and Evolution in India

Aastha Thakur 6 Oct 2021

Transgender people have their imprint in cultures worldwide since the early civilization times. In many Sumerian texts on the transgender priests known as gala were discovered. In the pre colonization era in Americas many indigenous cultures where the third gender were given ceremonial importance. Indian history also has diverse range of religious communities where the very concept of Hijras and other Trangenders have been recognised in ancient history. The Hindu sacred epic Ramayana and Mahabharata provides the reliable existence of the third gender becoming the integral part of the ancient texts. Even assigned to highly respected role as political advisors, administrator, spies as well as guardian of the harems in royal courts of the Mughal empire in medieval India. Then why still they are considered as social outcasts and denied basic necessities in modern time. The for such condition, the society is directly or indirectly responsible.[1]

The name Transgender came from Greek meaning “keepers of the bed”. The WHO defines the “transgender” (also refer as TG people) as an umbrella term which differs from general presumption towards stereotypical gender norms set by society. Transgender refers to those community whose internal sense of gender is incongruent or different from the one assigned to them at birth. Individuals whose recognition is something related to gender identity and appearance not physical sex characteristics & sexual preferences. Many of them are even reluctant to accept who they are due to shame, society morals influence, losing family support etc. thus face legal, social as well as economic difficulties.

A study says the estimated transgender diverse individuals varies between 0.1% and 2% of the population depending on the inclusion criteria. In India, itself the first official count for census of third gender was around 4.9 lakh in 2011.

But still, being such major part of the population, the society so called stereotypes not find them respected and deserving candidate to get treated as normal human being. In India these people are struggling to survive and to take stands for themselves. Although its true, things have turn around by the introduction of government laws & policies. Its has become challenge for them to break the long-lived stereotypes and gender-norm established by the society. These community are still experiencing the challenges to overcome the socio-economic culture and fight for their right in the constitution.

As the wordings goes, one step forward, two steps back; eradication of deep-rooted situation is not so easy. Amelioration of society mind-set, providing sufficient access to education and work opportunity, access to public health policies is some of the pressing matters needs to be address for the betterment of the TG people. They are prone to discrimination, social stigma and generally have a traumatic life. Forced to live in the margins of society leads to number of violence committed against transgender. The discrimination and harassment faced by them mostly is due to the backward thinking of the people in society where third gender doesn’t fit in their reserved societal norms. Hence, there are many hurdles for transgender community to overcome with. Our constitution thrives to give equal equality rights to all citizens of India.

An American psychiatrist by name John F. Oliven was the one to coined the term “Transgender” in 1965 in his reference work called Sexual Hygiene & Pathology. In India, these individuals are addressed as hijras and aravanis by society. Since before 1800s the transgenders facing inequality and discrimination. The way how they appear or behave are often ridicule in the society and even in school they are not consider as the member of the community. The inequality stances do not end here, the extremeness of the level can be deduced when put into dilemma which bathroom to use and in which ward, they can get admitted for treatment. No doubt, the Hon’ble Court accepts their legal rights and identity, still social and legal scenario is way more different in reality.

HEALTH CONCERNING PROBLEMS & DISCRIMINATION

Trans people share similar health needs as the general population, but may have other specific health related issues, such as gender-affirming hormone therapy and surgery. The WHO/Europe acknowledge the fact that the trans community often experience a disproportionately high burden of disease, including domains of mental, sexual and reproductive health. The major barriers to health care access transphobia & discrimination. Globally, the discrimination against transgender people had given rise to the term “transphobia” – with dislike or bias against transgender people.

These communities are facing social exclusion in hospital forced to schedule their early mornings check-ups -when there are few patients in the hospital. In extreme biasness cases the doctors refused to even examine them causes distress for T-gender people. The vilification of transgender in health care has in fact became norm where the doctors exploit them. The patients also not make it easy for them, as female cohorts not feel comfortable enough to share their ward with transgender patient and male patients not make it any easier for them harassing and annoying them for who they are. Thus, health care has not been helpful in this cause, many incidents came forward where transgender people are harassed by the doctors and ward in-charge, sticking out as major setback in medical line.

Many transgenders are facing gender dysmorphia an internal confliction between the gender assigned at birth and gender later on they identify or adapt into. This can cause emotional and mental distress. Apart from that while transitioning. the intake of hormonal pills or drugs to achieve masculine or feminine effects carry risks like low or high blood pressure, cancer, liver damage and heart conditions. The much-needed awareness in society for eradication of the social stigma and labelled as social out caste is required. There is utmost need for social acceptance of transgender group.

Due to lack of education, these individuals are forced to work as sex workers, thus increasing the high-risk of HIV. Most of the sexually transmitted diseases can be fatal and can affect people no matter what their sexual orientation is. Such patients often experience hurdles receiving appropriate medical treatment due to lack of access to healthcare and sometimes due to increased poverty among this population. Many transgenders have strongly endorsed the demand of separate wards in hospitals, which has been further directed by various HCs which is still needed to be implemented by the state governments.

Alcohol & drug abuse is common among the transgender community. Around 37% of 300 transwomen consumes alcohol once a week. Reasons for this are prevalence of discrimination, depression and anxiety they face on every single steps. All these also contribute to their suicidal nature that affects suicide ideation or actual attempts.

The society need to understand that identification as transgender is not mental health, instead of medical treatment they should be treated psychiatrically. The World Health Organization has also removed the so-called “gender identity disorder” from its manual of diagnosis, a major win for transgender rights. Such reclassification can be a catalyst for countries to recognise and adopt strong proactive measures to eradicate the social stigma against transgenders.

EDUCATION

The education is the tool to make one self-efficient and independent in process. However, discrimination in education against Transgender students is increasing more and more and it’s becoming challenging to deal with. Being deprived of social and cultural participation they have restricted access to education and employment opportunities. Most of the transgender, dropout of school because of the harassment and discrimination they face. The general survey conveys that around 50 to 60 percent of transgenders never even attend schools under fear of discrimination and apprehension of being ridiculed.

Article 21-A confers rights to education to transgenders persons yet the pragmatic aspects tell different story. In many cases, they are even forced to drop out by their own parents forcing them to beg on traffic signals. Its topic of worry, that in 21^st century the families avoid to accept their child is transgender and ignore him/her. Furthermore, upon facing exclusion from both school and family they are forced to take low income or undignified work for livelihood like badhaias, sex workers and begging. Being pushed to survive through begging and dancing is again looked down by the dichotomous attitude of society.

WORKPLACE ENVIRONMENT

The workplace for the transgenders has number of issues and they experience ousted in the such atmosphere. The reported rates of harassment and discrimination in the workplace claimed to have directly harassment or mistreatment at work. At many workplaces they are restricted to use restrooms as not being consistent with gender identity or segregate them to use gender-neutral bathroom sometimes make them feel scare for their physical safety contributing to the discriminating behaviours. Many of the transgender feel pressure to obscure their identity or transition potentially limiting their career progress. These makes the matter worse as many transgenders employees faces anxiety, depression issues. There is need of stringent anti-discrimination policies at all workplace in the public and private sector and establish these policies should be made transgender inclusive to ensure there is no misuse of the benefits granted to them.

EVOLUTION IN TRANSGENDER RIGHTS

While in other countries, the awareness social movements were flourishing until recently the colonial law of India has criminalized the homosexuality under Section 377 of the IPC. It was the time of 1990s where India did see important socio-political shifts as an array of human rights programs and intervention led by gender minority rights or organization demands the gender equality rights. The government in 1994 gave the right of voting to transgenders. Despite this, their community got its legalized rights only recently. The decade of 2000s, brought the wind of change through HIV awareness programs increasing the engagement of gender and sexual minority-led organizations, channelling the social movements demanding social change and legal privileges.

In April 2008, the first state recognized board The Transgender Welfare Board was set up in Tamil Nadu the model of progressive development.[2] It objective mainly addresses the social protection issues suffered by TG people on daily life basis. On the historical day of April 15, 2014, the Supreme Court of India passed judgement recognising a third gender a neither male nor female, entitled to the reservation quota in education and jobs opportunities.[3] Whereas in 2018 SC unanimously decriminalises Section 377 of the IPC which criminalises the consensual unnatural sex found to be against the right to equality.[4] The minority community have even got legal protections through sanction of the Transgender Protection of Rights Bill by the Parliament in 2019. Herein, the transgender people are allowed to change their legal gender post-sex reassignment surgery under legislation passed in 2019.

Recently, the ministry of Social Justice and Empowerment has launched the National Portal for Transgender Persons in consonance with the Transgender Persons (Protection of Rights) Rules, 2020 making it easy to apply for their identity card and certificates. The government has also taken stringent action against any kind of violence against transgender persons which are punishable with imprisonment of up to 2 years. Under the provisions of the Transgender Bill, 2019 the Minister of Social Justice and Empowerment, has constituted the National Council for Transgender Person as advisory body for policy making affecting Transgenders community.

Unfortunately, the significance of the trans pride has not been considered in the bill. The new legislation bill undoes all the progress made by the transgender community over the past few years. The bill goes against the right to dignity and bodily autonomy privilege to trans people.[5] In layman word, getting an ID is tedious entails screening process which totally violates the human rights. It has also criminalized the act of begging without giving any alternatives solutions of sustenance to the community. Its is just bill prepared in haste undermining the rights of the transgenders individuals it seeks to protect.

The government need to re-evaluate their policies concerning trans-people assuring the social protection, providing access to basic amenities, housing, and health facilities and provisions for education and employment. The Karnataka State Policy for Transgenders, 2017 addresses these issues providing schemes and programmes created for its efficient working. The Policy however is stepping stones in this arena which should be act as a catalyst aspiring other state governments.

CONCLUSION

Its long run to the full inclusion of TG people in society, government need to implement stigma and discrimination reduction measures to ensure they are not victimized neither at school nor by society itself. The government-run facilities should be made available for the Transgender Community in healthcare areas, employment status and their upliftment in social status. Its upto government to bring in policy to ensure they are not discriminate against they could enjoy equal rights like any other citizens of India.

It is time we stop this century old stereotypes, working & helping those transgenders legally recognising and passing bills for their betterment in society providing equal opportunities at all spheres. We as one can achieve and realise this dream of “let live and let one live”.

[1] Historical Evolution of Transgenders Community in India by Michelraj. M ISSN No: 2230-7850

[2] Journal of Social Work Education and Practice [ISSN: 2456-2068]

[3] National Legal Services Authority v. Union of India W.P. (civil) No. 604 of 2013

[4] Navtej Singh Johar & Ors. v. Union of India (AIR 2018 SC 4321)

[5] The Transgender Persons (Protection of Rights) Bill, 2019

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RAPE AGAINST MEN BY WOMEN – NO NEUTRAL LAW IN INDIA

Kishan Dutt Retd Judge 1 Oct 2021

RAPE AGAINST MEN BY WOMEN – NO NEUTRAL LAW IN INDIARape is the fourth most serious crime in India and a serious problem worldwide. It is generally a crime committed by men against women, but have we ever read more

RAPE AGAINST MEN BY WOMEN – NO NEUTRAL LAW IN INDIA

Rape is the fourth most serious crime in India and a serious problem worldwide. It is generally a crime committed by men against women, but have we ever thought about it vice-versa? Historically, Rape was regarded as a crime committed by only men against women, but over time, it has been observed that members of other genders, such as men and transgender communities, are also victims of this crime. Anyone, regardless of age, gender or sexual relationship, can be raped. Although there are many such cases, most of them have not been reported because people fear that the report will raise questions about its effectiveness. Most cases of Rape against people other than women have not been reported. People have realized this, but they need to understand this type of crime, as it is necessary to maintain a proper legal system and get rid of this dreadful crime.

First of all, it is necessary to admit that the victims and offenders of Rape can be of any gender, and this crime can happen anywhere, such as in schools, offices, prisons, workplaces, schools, etc. Investigations on male rape victims did not begin until after the 1980s, and it mainly targeted the sexual harassment of minors. Even in the 21st century, it is difficult for male rape victims to report sexual abuse because we live in a society where if a man is sexually abused, people believe that he can protect himself by having a strong male power. Therefore, most people worry that reporting sexual abuse will raise questions about their sexual abilities, or a thought arises that if a man rapes them, they will be considered gay. Some people share their experiences, but mostly, the victims worry about not reporting their Rape to the public. A study by the US Centers for Disease Control and Prevention (Eastern Europe, USA) found that, according to reports, 1 in 17 people are forced to enter the house at a certain life stage. In a recent case in Mumbai, India, an RPF agent was accused of attempting to rape or commit a crime while still alive, but this patriarchal society does not believe that men can also be raped.

In most of these cases, consent is not taken. According to psychologist Sarah Khan, it is reported that less than one in ten male rapists are victims of male rape without any support and services, and there is a lack of a proper system of law against such crimes.

Indian Laws on Rape

Section 375 of the Indian Criminal Code (IPC) defines Rape as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age. A man is considered to rape when the following conditions are met: -

· He enters a woman's vagina, mouth, urethra or anus in any way or forces her to do so on him or others.

· Or insert or press any object or body part other than the penis into a woman's vagina, urethra or anus to any extent;

· Or manipulates any part of a woman's body to force her or others to enter into her vagina, urethra, the anus or any part of the body;

· Or put his mouth on the woman's vagina, anus, urethra, or force her to do this to him or another person.

According to the above definition, under Section 375 of the Indian Penal Code, it can be assumed that men always confront women. When a woman forces a man to have sex with her, it is not Rape but a perpetrator. Thus, it is an assumed fact that a man is considered to rape a woman. However, it does not consider the man's consent regarding the sexual behaviour of the woman and always considers the woman to be the victim. In many cases, it is seen that a man False Rapes a woman to take revenge or commit an illegal act.

This shows that India has no specific laws for male rape victims; although Section 377 of the IPC that states that, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished, is an exception to this, it is not sufficient to safeguard the rights of men in India.

The Protection of Children from Sexual Offences Act 2012 (POCSO Act) criminalizes sexual assault on boys, but there are no such regulations for adult men. Sexual abuse of adult men is treated differently from that of adult women. The reason for this trend is unclear. India may have regulations on the Rape of boys, but it should also have regulations on the Rape of adult men. The conservative view is that only men who use their power to exploit women make men vulnerable. Sexual assaults and crimes against women and children do not seem to have the sense of equality guaranteed by Article 14 of the Indian Constitution. All laws must be gender-neutral, so any strongest law designed to protect women must also consider sexual crimes against men and other genders.

Criticisms and pitfalls of criminal jurisprudence

The lack of gender neutrality may be one of the most important features of Indian rape laws. Indian law must be developed according to the needs and requirements of its subject. History has shown that some laws that focus on women's safety and well-being have been abused, prompting legislators and courts to intervene and correct mistakes. The promise of equality and equal protection provided for in the law contained in Article 14 of the Constitution seems to have lost contact with our legislators in drafting laws on sexual harassment. The judiciary does not intend to discriminate against male victims of sexual harassment, but unfortunately, men are rarely seen as victims on this issue. Sexual harassment laws that are not related to gender take time and must be passed by the government to eliminate unintentional gender discrimination and provide equal protection. However, the Supreme Court rejected the gender-neutral law, stating a valid classification for a crime committed by a woman on a man. CJI Dipak Misra stated that the court is not saying that a woman cannot rape a man, but those circumstances would come under different offences under IPC. A plea similar to this was made in the Supreme Court earlier this year that challenged the constitutional validity of adultery laws in the country that would only punish a married man having an extra-marital sexual relationship with another married woman. A bench comprising Justices A M Khanwilkar and D Y Chandrachud and Chief Justice Dipak Misra took a prima facie view that although the criminal law focuses on "gender neutrality", this concept was absent under Section 497 of the Indian Penal Code, which deals with the offence of adultery and therefore, referred this matter to a larger bench.

Conclusion

The penalty for any crime should be as severe as committed and should not be limited to any specific category. It should apply to all citizens, regardless of their gender. Pain is unparalleled, and everyone is the same. Whether male, female or transgender, survivors suffer the same physical, mental, and emotional distress. Gender terms indicate that a man cannot report a woman's sexual assault, because according to the definition of Rape, it can only be committed by a man. A person can file a lawsuit under the influence of violence or beating but not Rape. Even if the action is the same, the punishment for the person is not Rape. India is adapting and making changes to make itself a successful country. So why do we fall behind when the question of raping a man comes? The United Kingdom has gender-neutral laws. Therefore Indian legal system and its citizens must also recognize that even women can rape men. The law should also recognize men as victims and not just criminals. It is necessary to bring awareness about male sexual harassment, and the government and society must change the social stereotypes and hear the pain of male victims.

*****

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SUPREME COURT UPHOLDS CONVICTION OF ACCUSED FOR DISHONOUR OF CHEQUE

Advocate Sushila Ram 25 Sep 2021

A Three Judge Bench of the Hon’ble #SupremeCourt of India comprising of Justices N.V. Ramana, Surya Kant and A.S. Bopanna passed a #Judgment dated 23-09-2021 in the case of Triyambak S. Hegde Vs. Sripad Criminal Appeal Nos.849850 of 2011 and reiterated that when a person receives a #cheque from a person for discharge of debt or liability and the cheque is #dishonoured in terms of Section 138 of the #NegotiableInstruments Act, 1881 (Act), then the #presumption shall remain in favor of the holder of the cheque, unless the contrary is proved by the accused, under Section 139 of the Act.

Section 139 of the Act is reproduced below:

Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.

In the present case, the Respondent, Mr. Sripad approached the Appellant, Mr. Triyambak S. Hegde and informed him that he was facing a financial crunch because of which he intends to sell the house situated in Sirsi town. The Appellant agreed to purchase the same for the negotiated total sale consideration of Rs. 4,00,000/. An Agreement dated 06-06-1996 was executed by the Parties and the Respondent received an advance amount of Rs. 3,50,000/. Thereafter, the Appellant made some queries and discovered that the house was registered in the name of the father of the Respondent and that the Respondent did not have the authority to sell the same. Subsequently, the Appellant demanded the return of advance payment of Rs. 3,50,000/. The Respondent did not pay the entire amount, but issued a Cheque dated 17-05-1998 for the sum of Rs. 1,50,000/ (Cheque). On 20-05-1998, the Appellant presented the Cheque in a Bank for realisation, but the same got dishonoured with the endorsement of ‘insufficient funds’.

A Notice was then issued by the Appellant to the Respondent, thereby, informing the latter about the Cheque being dishonoured and further demanded payment of the Cheque amount. The Respondent received the Notice, but did not respond to the same. Subsequently, on 14-07-1998, the Appellant filed a Complaint under Section 200 of the Code of Criminal Procedure (CrPC) in the Court of the Judicial Magistrate, First Class (JMFC) at Sirsi which was registered as Criminal Case No.790/2000. The Complaint filed by the Appellant sought to prosecute the Respondent under Section 138 of the Act. The JMFC passed a Judgment dated 09-06-2005 and convicted the Respondent for dishonour of Cheque under Section 138 of the Act and sentenced the Respondent to undergo simple imprisonment for six months and to pay fine of Rs. 2,00,000/.

However, as the Respondent committed default in payment of fine amount, he was ordered to undergo simple imprisonment for a further period of three months. Out of the total fine amount the Respondent was asked to pay Rs.1,95,000/ to the Appellant as compensation.

Aggrieved by the Order dated 09-06-2005, the Respondent filed an Appeal before the District and Sessions Judge, Uttara Kannada, Karwar in Criminal Appeal No.57/2005. On the other hand, the Appellant also filed a Criminal Appeal No. 65/2005 before the District and Sessions Judge seeking that the compensation of Rs. 1,95,000/ was insufficient, hence, the sentence imposed by JMFC should be enhanced. However, vide Judgments dated 22-04-2006, both the Appeals were dismissed.

Thereafter, the Respondent filed a Criminal Revision Petition No.1282/2006 and the Appellant filed the connected Revision Petition No.1481/2006 before the High Court of Karnataka (High Court). The Single Judge vide Order dated 01-12-2009 allowed the Revision Petition filed by the Respondent and set aside the conviction Order passed by the Learned JMFC.

To read more, please visit the link below:

https://theindianlawyer.in/supreme-court-upholds-conviction-of-accused-for-dishonour-of-cheque/

#supremecourt #cheque #dishonour