Delhi High Court judgments and orders on Criminal Law

In J v. State of NCT of Delhi [77], the Court proceeded to cancel the bail of an accused in proceedings under Section 376 read with Section 313 of the Indian Penal Code, 1860 (‘IPC’) inasmuch as it found that the accused had been putting up status messages on social media which were threatening in nature and directed at the victim with a view to intimidate her.

In State v. Sumit Phogat [78], the Court held that an allegation of having established physical relations on a false promise of marriage under Section 376 of the IPC could not be said to have been substantiated when it was evident from the material on record that the parties had developed a strong and intimate friendship which was the reason for establishment of a physical relationship, and when it was the complainant’s own case that the accused had in fact taken her to a temple to get married and that she had declined the said offer.

While rejecting an application for re-calling of witnesses several years after their original testimony and cross examination, the Court in Jitender Kumar v. State of NCT of Delhi [79], observed that witnesses who are recalled in such a manner cannot be expected to rely on their memory after several years and, therefore, summoning them at this stage would not be in the interest of a fair trial.

In Bablu v. State [80], the Court reiterated that in the absence of a matriculation or equivalent certificate, a birth certificate or a certificate of date of birth from the school first attended, the age of the accused is required to be determined on the basis of a medical opinion to be conducted on the orders of the Juvenile Justice Board (‘JJ Board’).

In Javed v. State [81], the Court overturned a conviction for commission of offences under Section 392 and 397 of the IPC inter-alia on the ground that in the admitted case of the prosecution, the police officials had reached the scene of the offence on foot from their original location and considering the said distance being approximately 3 Kms., it was not possible to believe the case of the prosecution that the officials concerned had reached the scene of offence within a very short span of time of 5-7 minutes.

While reiterating that the mandate of Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) could not be said to be violated in a case where a person was not searched before a gazetted officer/magistrate inasmuch as he/she had declined such an offer despite being specifically apprised of the right to be so searched, the Court in Md. Sarvar v. State [82], held that offering the appellant a choice between searching the police party before being himself/herself being subjected to a search on the one hand, and being searched before a magistrate or a gazetted officer on the hand, would not tantamount to specifically intimating the accused of his/her legal right and would amount to a violation of the statutory mandate enshrined under Section 50 of the NDPS Act.

In Letminjoy Haokip v. State [83], the Court observed that the accused being a university student on the date of commission of offence, lack of previous criminal antecedents and the fact that he had surrendered voluntarily before the police on the day of the incident without attempting to escape from the law would be mitigating factors for reducing the sentence imposed. The Court further held that when it was an undisputed position that the family of the deceased victim had been compensated as per the customary practice of the community to which both the accused and the victim belonged, then, the fine imposed on the accused could also be justifiably waived.

In Manak Kala v. Union of India [84], the Court observed that in order to bring home the offence under Section 9(1)(b) of the Foreign Exchange Regulation Act, 1973, it was mandatory to establish that the accused had received payments by order or on behalf of any person residing outside India and through any person without a corresponding inward remittance from any place outside India and that such a pre-requisite could not be established solely on the basis of a statement made by an employee of the accused and which statement had immediately thereafter been retracted. The Court further observed that the authority concerned had to specifically adjudicate and render a finding in such a situation as to whether the statement was voluntary in nature or not and in the absence of the same, no evidentiary value could be ascribed to the said statement.

In Chhedi Paswan v. State [85], the Court observed that a minor inconsistency as regards the manner of rescue of the child victim from the spot where the offence of rape was perpetrated upon her would be liable to be ignored considering her tender age of thirteen years, coupled with the fact that she had suffered immense trauma and was in a near unconscious condition when rescued.

In Guddo Devi @ Guddi v. Bhupender Kumar [86], the Court held that extending of a loan in cash in excess of Rs. 20,000/-, though might fall afoul of Section 269 SS of the Income Tax Act, 1961 and might attract the penalties under the said Act, but would not, however, render the debt unenforceable or preclude the lender from invoking Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’) to recover the same.

In State v. Sonal Sahani [87], the Court refused to condone an inordinate delay of over 300 days in a petition seeking leave to appeal against a judgment acquitting the accused of the offences under Section 376 and 406 of the IPC and Section 4 of the Dowry Prohibition Act, 1961 inasmuch as it found that the mere explanation premised on bureaucratic red tape and the permission for appeal purportedly having to be secured after passing through various channels could not be accepted.

In Suresh Chander v. State [88], the Court observed that a plea that the accused had lost control of the vehicle which resulted in an accident causing the death of a person because of some mechanical fault in the vehicle would be destructive of the plea by the accused that he was not involved in the accident in question. Further, the Court observed that the allegation as regards the existence of such a mechanical fault had to be specifically established by the accused who had taken such a plea.

In Gulfam @ Zahoor v. State [89], the Court observed that a paper-cutter would also be a deadly weapon within the meaning of Section 397 of the IPC inasmuch as it has a handle and a sharp blade similar to a knife and is capable of causing a fatal injury.

In Manoj v. State [90], the Court held that though an accused was guilty of committing rape within the meaning of Section 376 of the IPC inasmuch as he had sexual intercourse with the prosecutrix when she was below the age of eighteen at the material time, the same would not amount to establishment of the factum of forcible sexual intercourse, and this was a relevant factor to be kept in mind while determining the quantum of sentence.

In Logix Corporate Solutions Private Limited v. State of NCT of Delhi [91], the Court held that an order dismissing a complaint under Section 138 of the NI Act for default and non-appearance would have the effect of acquitting the accused and a petition under Section 378(4) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) seeking leave to appeal against the said judgment would be maintainable.

In Manish Wesley v. State of NCT of Delhi [92], the Court held that in the absence of any specific averment in the charge-sheet as regards the involvement of a real-estate broker in the alleged cheating of the complainant/buyer by the accused/seller, no offence of conspiracy would be said to be even prima-facie made out against the broker inasmuch as he was merely a conduit for arranging an introduction between the buyer and the seller and was not required as a matter of trade-practice to have undertaken any due diligence unless specifically asked to.

In State v. Raju [93], the Court observed that inasmuch as the punishment for offences under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) was extremely severe and if the offence alleged is of such a nature that there is no possibility of any medical or forensic evidence being available to shed light on the controversy, then it was all the more important that the testimony of the child victim should not suffer from material discrepancies and contradictions.

In State v. Md. Chand @ Fukan [94], the Court observed that considering the vital reformatory basis underlying the grant of probation under Section 6 of the Probation of Offenders Act, 1958, (‘PO Act’) it could not be said that a conviction for offences under the POCSO Act would ipso-facto obliterate the right to seek probation.

In Allaudeen v. State [95], the Court held that in addition to the consistent testimony of a child victim, her demeanor in Court after seeing the accused, wherein the victim had started weeping as also trembling with fear, was also a pointer to the involvement of the accused in the offence under Section 6 of the POCSO and Section 506 of the IPC.

In Court on its Motion v. State [96], the Court issued a series of guidelines for recording the testimony of the victims and witnesses who are foreign nationals, in matters involving sexual assaults.

In Gurmeet Singh @ Lucky v. The State (NCT of Delhi) [97], the Court observed that even where the recovery of the article in question had been made from a public place, if it was established that the article was hidden from public view on account of having been concealed, as in the instant case under a tree, then the said recovery could not be discarded.

In Indrwati v. State [98], the Court while observing that an FIR doesn’t amount to an 'encyclopedia’ of all the facts of a case, further held that the mere omission in the FIR to state that the deceased was last seen with the accused would not ipso-facto result in the non-application of the last seen theory. The Court further observed that a minor discrepancy in the measurement of the weapon used in the commission of the crime and duly recovered thereafter would not tantamount to a major contradiction and the recovery could not be discarded on this ground.

In Kanwar Pal Sharma v. State [99], the Court reiterated that in the case of multiple dying declarations having been made by the victim, the Court was required to carefully scrutinize the same and when the name of the accused figured in one of the dying declarations, but was completely absent in the other, then the Court would be more circumspect.

In Mehulbhai Rasikbhai Bhimani v. Union of India [100], the Court held that a long delay between the alleged illegal activity and the passing of the consequential detaining order passed under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘COFEPOSA Act’) would indicate complete absence of a proximate-link and the order would accordingly be liable for interference.

In Mohammad Najib Haidari v. Union of India [101], the Court held that upon the passing of a reasoned order by the Foreigners Regional Registration Officer imposing restrictions on the movement of the petitioner under the provisions of the Foreigners Act, 1946, a habeas-corpus petition would no longer be maintainable

In Mohd. Zakir v. State [102], the Court observed that inasmuch as the requirement of producing a certificate under Section 65-B of the Indian Evidence Act, 1872 (‘Evidence Act’) is a procedural requirement, its production can be waived or relaxed in appropriate circumstances when so required and justified in the interests of justice.

In Pradeep Kumar v. State [103], the Court held that the inability of the accused to explain the presence of his fingerprints at the scene of the crime in his testament under Section 313 of the Cr.P.C. would lead to an adverse inference.

In Tinku Singh v. State [104], the Court observed that the brutal act of beheading the body of the deceased would dispel the applicability of the fourth exception to the Section 300 of IPC inasmuch as one of the preconditions for invoking the same is that accused should not act in a cruel and unusual manner.

In State v. Akash [105], while upholding an order of acquittal in proceeding under Section 307 of the IPC, the Court observed that multiple contradictory opinions given by the medical officers in relation to the nature of the weapon of the offence and the origin of the injuries suffered by the victim would require that the benefit of doubt be given to the accused.

In State v. Sameer Ali [106], the Court held that in order to apply the presumption under Section 113B of the Evidence Act in dowry death cases it was required to be established that the cruelty complained of must have occurred soon before the time of death, and this would axiomatically imply that there should be no long gap or interval between the cruel act complained of and the death of the victim.

In State v. Sonu Singh [107], the Court upheld an order of acquittal in relation to an offence under Section 302 of IPC inasmuch as it observed that there were material discrepancies and contradictions in the testimony of various prosecution witnesses including on the aspect of the underlying motive of the accused for committing the crime in question

In Surender Shah v. State [108], the Court issued various directions to streamline the functioning of the police authorities and anti-human trafficking units in matters relating to missing children.

While reiterating that the Court was entitled to adjudicate the matter on the basis of the percentage of purity of the recovered contraband, the Court in Paramjeet Singh v. State [109], and in Raju Diwakar @ Pappu v. The State [110], held that if after applying the said percentage the quantity fell short of the commercial quantity of two hundred and fifty grams, then the embargo on granting bail under Section 37 of the NDPS Act would not be applicable.

In Chandan Sawhney v. State [111], the Court while adjudicating the issue as to whether the establishment of a physical relationship between the prosecutrix and the accused was a result of a false promise of marriage, held that it was necessary to keep in mind the age, educational qualifications and family and societal background of the prosecutrix and on a conspectus of the relevant facts held that an educated, socially-prominent and empowered individual could not be said to have been falsely induced by none other than her former husband of twenty years from whom she had gotten divorced in the past.

the offence of cheating could not be said to have been made out when the only grievance was that a settlement agreement which had admittedly been in existence when the divorce proceedings between the parties were finalized was breached subsequently by the former husband, and the appropriate remedy was for the aggrieved party to invoke civil remedies to seek enforcement of the settlement agreement.

Jyoti Sawhney v. State (Govt. of NCT of Delhi)

In Jyoti Sawhney v. State (Govt. of NCT of Delhi) [112], the Court observed that the offence of cheating could not be said to have been made out when the only grievance was that a settlement agreement which had admittedly been in existence when the divorce proceedings between the parties were finalized was breached subsequently by the former husband, and the appropriate remedy was for the aggrieved party to invoke civil remedies to seek enforcement of the settlement agreement.

In Union of India v. Vinay Sharma [113], the Court held that the words ‘appeal’ or ‘application’ referred to in Rule 834 of the Delhi Prison Rules, 2018 would only refer to a petition or similar proceeding pending before the Supreme Court and their meaning could not be extended to cover a mercy petition lodged before the President of India. The Court further held that when all the convicts had been dealt with together and the death penalty imposed upon them was confirmed by a common judgment of the Supreme Court, then the death warrants of the convicts were required to be executed simultaneously and not separately.

In Gaurav Mavi v. State [114], and Pulkit Rastogi v. State [115], the Court elaborated on the effect of the rationalization of the sentencing structure in the NDPS Act and the distinction drawn between the recovery of a ‘small quantity’ and a ‘commercial quantity’.

In Anup Joshi v. CBI [116], the Court rejected the contention that upon bail having been granted to the co-accused, the same result should flow in the case of the petitioner inasmuch as it noted that the role attributed to the petitioner was of a much more serious nature than the other co-accused.

In Laxmi Satyanarayana Dutt Tadikonda v. Union of India [117], the Court while directing the withdrawal of a lookout circular against an accused chartered accountant, noted that when there was no allegation of non-cooperation with the investigation, then, the issuance of a look-out notice was not justified particularly in light of its serious repercussions and the fact that it is usually issued only in relation to persons with terrorist links, belligerent foreigners and absconding persons.

In Gulam Reza v. ITPL Infrastructure Private Limited [118], the Court reiterated that inasmuch as in a proceeding under Section 138 of the NI Act, the defense of the accused is a matter which falls within the special knowledge of the accused, and, therefore, the primary onus and burden remain that of the accused.

In Rekha Chaturvedi v. State [119], the Court reiterated that even if all allegations made in a complaint disclose the commission of a cognizable offence, the magistrate concerned is not bound to direct investigation by the police under in exercise of power under Section 156(3) of the of the Cr.P.C. without application of mind, and in a given case a magistrate may well come to the conclusion that the complainant can prove the averments in the complaint without the assistance of the police and accordingly proceed under Section 200 of the Cr.P.C.

In Nitin Sharma v. State (Govt. of NCT of Delhi), [120] the Court observed that the mere fact that there was videographic evidence demonstrating the consumption of alcohol by the prosecutrix in the presence of the accused, and her exhibiting an otherwise cheerful disposition during the said period, would not in any manner indicate the absolute innocence of the accused so as to entitle him to bail when charged with the offence of rape.

In Faizan @ Salman v. State, [121] while upholding the conclusion of the JJ Board that the accused was a major, the Court further observed that in the absence of any lapse in the procedure adopted by the doctors appointed to determine the age of the accused, the Court could not enter into the merits of the determination which had been conducted by specialists in the field.

In Anita v. State [122], the Court reiterated that at the stage of framing of charge, the Court is only required to weigh the evidence for the limited purpose of ascertaining the existence of a prima-facie case and a detailed examination is not required to be undertaken as if a full-fledged trial was being conducted.

In Vaninath Uppalapati v. State [123], the Court reiterated that mere possession of a cartridge by itself would not constitute an offence in the absence of any intention to use the same. The Court further observed that there being no recovery of a corresponding weapon connecting the accused with the intention to use the cartridge would lead to the conclusion that no offence was made out under the relevant provisions of the Arms Act, 1878 (‘Arms Act’).

In Kapila Bhudhiraja v. Deepak Bhudhiraja [124], the Court permitted the transfer of a case under the Protection of Women from Domestic Violence Act, 2005, (‘PWDV Act’) from one district court to another inasmuch as it found merit in the contention of one of the parties that the advocates at the concerned original court had intimidated and threatened the concerned party, thereby, making it difficult to continue to attend proceedings in the future.

In Ganesh Pun v. Union of India [125], the Court observed that the mere grant of default bail on account of failure of the prosecution to file the charge-sheet within the requisite period in a connected case would not inure any right to the petitioner for grant of regular bail in the subject case.

In Priyanka Batra v. Sandeep Grover [126], the Court reiterated that the avoidance of conflicting decisions on issues which are in controversy in more than one case would be a germane factor for the transfer of a criminal case from one district court to another.

In Naveen Ramani v. State [127], the Court observed that the old age and related ailments are not a ground for transfer of a criminal case from one district court to another, and the appropriate remedy would be for the party concerned to approach the concerned court with an application for exemption.

In Gurbachan Singh v. The State (Govt. of NCT of Delhi) [128], the Court reiterated that if the essential elements of negligent and rash driving having resulted in a death were established, then even though there was no such intention to cause death, a conviction under Section 279 and 304-A of the IPC could be said to have been brought home.

In State v. Tejveer @ Guddu [129], the Court reiterated that in the absence of any doubt as to the authenticity and reliability of the school certificate of the accused, in terms of Section 94 of the Juvenile Justice Act, 2015 (‘JJ Act’), the JJ Board could not order a medical test to determine the age of the accused.

In Ashish Aggarwal v. Sushil Kumar [130], the Court reiterated that Section 145(2) of the NI Act obliges the Court in the usual course, upon an application being filed by the accused, to summon the person who has given evidence on affidavit in terms of Section 145(1) of the NI Act.

In Sukhdev Singh v. State [131], the Court reiterated that the power under Section 482 of the Cr.P.C. could not be exercised where the allegations are required to be duly proved before a court of law.

In Mauktika Energy Pvt. Ltd. v. Asia Pragati Capfin Private Limited [132], and in Sunita Verma v. Permanand Verma [133] the Court observed that inasmuch as a fair trial was fundamental to the criminal justice system, the right of the accused to adduce defense evidence is a valuable right which could not be brushed aside lightly.

In State (Govt. of NCT of Delhi) v. Raman Kumar [134], while upholding an order for discharge, the Court held that the mere fact that the accused was sitting on the passenger seat when the driver of the car/co-accused proceeded to run over the victim resulting in the death of the victim, he/she could not be imputed with common intention within the meaning of Section 299 of the IPC.

In Jitender Kumar v. State (Govt. of NCT of Delhi) [135], while ordering the release on probation of a convict convicted for the offences under Sections 428, 468, and 471 of the IPC, the Court elaborated upon the underlying reformative push which forms the basis of the PO Act and that if the release of the youthful accused would result in genuine reformation and reduction of the scope of turning into a hardened criminal, then the necessary discretion should be exercised in his/her favor.

In Shyam Bir v. State (NCT of Delhi) [136], the Court permitted the accused to be released for the short sentence of imprisonment already undergone for a conviction under Sections 279 and 338 of the IPC read with Sections 134 and 187 of the Motor Vehicles Act, 1988, (‘MVA’) in light of the fact that the accused had a young family to support and his conduct in jail was found to be satisfactory and that he had offered to pay additional compensation to the injured person.

In Sonu Sawarkar v. State [137], the Court held that when a video-clip of a forcible sexual act being committed upon the victim was recovered from the mobile phone of the co-accused who was demanding money from the victim on the basis of the same, and the said video-clip was identified by the victim as having been shot by the petitioner/main accused, then, even in the absence of any evidence that the video clip was transferred from the petitioner’s phone to that of the co-accused, the offence under Section 67-A of the Information Technology Act, 2000 (‘IT Act’) and Sections 384 and 34 of the IPC could be said to have been made out.

In State (GNCTD) v. Ombir [138], the Court noted that the inflicting of a superficial injury during a scuffle or quarrel would not be sufficient to attract Section 308 of the IPC in the absence of other relevant evidence in this regard.

In Inspector Ram Niwas v. Govt. of NCT of Delhi [139], the Court upheld an order directing a Station House Officer (‘SHO’) to deposit costs of Rs.10,000/- for cancellation of non-bailable warrants issued against him by the trial court inasmuch as it noted that the SHO concerned had consistently and flagrantly violated the orders of the court on various occasions.

In Sanjeev Kumar Chawla v. The State [140], the Court reiterated that in terms of Section 167(2) of the Cr.P.C., the accused can be detained in either police or judicial custody from time to time but the total period cannot exceed 15 days, even though the nature of custody may change from time to time.

In Manoj Tyagi @ Monu v. The State (Govt. of NCT of Delhi) [141], the Court held that inasmuch as the legislature had consciously provided for the commission of sexual assault, as defined in Section 7 of the POCSO Act, with a child below the age of twelve years as being an aggravated sexual assault, the sole submission that there was no penetration of any kind during the commission of the act would not detract from its seriousness.

In Pashupati Mukhiya v. State [142], the Court observed that different statements recorded at different points in time, maybe years apart, of a child victim who was subjected to sexual assault might naturally exhibit certain discrepancies, and any minor discrepancy as to the exact place where the assault occurred would not be sufficient to discredit her testimony.

In State of NCT of Delhi v. Parveen [143], while construing the scope of Section 31 of the NI Act dealing with enhanced punishment for a repeat offender, the Court observed that the same does not take away the discretion of the Court to award a sentence of imprisonment and the maximum term for the offence would not automatically be attracted. The Court further held that even as far as the amount of fine was concerned, though the statutory language employed therein would indicate that flexibility in this regard is limited, the discretion of the Court however, would not still be completely obliterated.

While returning a reference made to it under Section 395 of the Cr.P.C. as being premature and non-maintainable, the Court in Court on its Motion v. State [144], observed that a magistrate, at the stage of hearing arguments on charge, was not empowered to make a reference to the High Court by indulging in speculation as to the issues which could possibly arise for consideration, including conjecture as to the validity of any act or ordinance or regulation.

In State v. Jagat [145], the Court while upholding an order of acquittal under Section 377 of the IPC read with Section 6 of the POCSO Act, highlighted patent and serious contradictions within the testimony of the child victim, as also when considered in conjunction with the testimony of the father of the victim, coupled with complete lack of corroborative evidence and the established existence of financial disputes between the father of the victim and the accused.

In Amit Sherwat v. State [146], the Court reiterated the five basic principles which must be established in order to bring home a case based on circumstantial evidence viz.

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

In Tej Singh v State [147], the Court reiterated that in heinous crimes such as rapes, economic or social status cannot be a mitigating factor for reducing the sentence.

In Umesh v. State [148], the Court held that merely because the witness could be shown to be related to the deceased, the same would not ipso-facto result in his/her testimony being discarded. The Court further observed that a related person could not be said to be axiomatically interested, and in order to demonstrate such interest, it was further necessary toestablish that he/she would benefit from seeing the accused person being punished.

In State v. Sandeep [149], the Court observed that only when an accused refuses to participate in a Test Identification Parade without any justification can an adverse inference be sought to be drawn, and on the contrary if the accused is able to demonstrate a justifiable and cogent reason for not participating in the same, then there can be no such adverse inference.

https://www.barandbench.com/columns/the-delhi-high-court-in-review-february-2020-part-i

Judiciary: Soul of the Constitution

Free and fair judiciary is the soul of the Indian Constitution. By its pro-activeness the Indian judiciary has overcome the orthodox constitutional philosophy and has expanded the scope of right to life so as to read within its compass the right to live with dignity, right to healthy environment, right to humane conditions of work, right to know, right to adequate nutrition and clothing and so on. While dispensing with justice in civil, criminal or constitutional matter a judge not being a party to the Lis always decides the Lis impartially with the best of his ability and knowledge. A judge is deemed to have no knowledge of law but he is enriched by the knowledge of the Learned Councils of both sides. Sitting in the Chair of the Temple of Justice he listens patiently both the parties and comes to a decision which being the toughest job is avoided by the others. While deciding a Lis he cannot satisfy both the parties at a time. Any person being aggrieved by a decision of the court may carry the Lis to the higher forum in appeal or revision or may prefer review of the decision in the same court. This is the eternal beauty of the Indian Judiciary.

Any sort of interference in the functioning of the court in dispensing with justice amounts to contempt; which may be civil or criminal. The Supreme Court being highest body of the Indian judiciary is the custodian of the Constitution and its judgment is binding upon all citizens under Article 141 of the Constitution. Unlike the Supreme Court the High Court of each State is also the Court of Records and enjoys with writ and supervisory jurisdiction under Article 226 and 227 of the Constitution. The Parliament and the State Legislature have right to enact law in their respective field but if such law contradicts with the basic structure of the Constitution or abrogates the fundamental rights guaranteed under Part III of the Constitution the judiciary has right to declare the same as void. That being the settled principle of law it is frequently noticed that some persons constantly attack the judiciary and make indecent statement which knocks down the very foundation of the Indian democracy. It is sadly enough that they are not illiterate or rustic persons but they are educated and sometimes hold responsible status in public life.  

A healthy democracy is a nightmare if Judiciary does not function freely, fairly and independently. To ensure free, fair and independent judiciary the peaceful environment of the court compound is very much essential so that a judge while dispensing with justice remains in peaceful mind and does not face extraneous situation in the court compound. A judge does not fall from the heaven but he is a man of the society with all common virtues of an ordinary man. A chaotic atmosphere inside the court room and also in the court compound distracts the thought-process of a judge. It is therefore, duty of the police to maintain peace and tranquility in and around the court compound. Excepting the Supreme Court and High Courts of different States we hardly find peaceful environment in the subordinate courts particularly the Magistrate Courts.

Recently we saw an unfortunate incident at Alipore Magistrates’ Court which makes this issue afresh. After arrest of one political leader cum minister by the CBI in multi-crores Sarada scam he was taken to produce before the Magistrate’s Court. Thousands of his supporters and party members came on the street, blocked all the public roads and railway tracks in protest of such arrest ignoring the sufferings of the people. Such acts are not only offences under Indian Penal Code but also offence under the provisions of the National Highway Act. The situation turned worst when the Chief Executive of the State joined hands with the law breakers. A panicky situation was also created inside the court compound by unlawful assembly of thousands of unruly persons in presence of police with shouting and slogans as if the court compound was situated in the State of lawlessness. Similar situation was also noticed inside the court room. Such a horror atmosphere is not congenial to a judge in dispensing with justice. It is no doubt an attempt to terrorize a judge by way of power projection which amounts to criminal contempt of the court also.

What wrong the CBI did? Has the CBI been ordered by the Central Government to investigate the Sarada Scam to malign the State Government? No. It is the Supreme Court of India that entrusted the CBI to investigate the Saradha scam spreading over not only in the State of West Bengal but in the States of Tripura, Assam and Orissa also. If the State machinery feels that the CBI has not been working in accordance with law it may approach the Supreme Court for suitable direction upon the CBI. Instead of doing so demonstration in front of the office of the CBI under the leadership of a State Minister and paralyzing the State in protest of arrest of their leader cum minister are ultimately an act of challenging the authority of the highest Court of India and also interference with independent functioning of the judiciary which will not be approved by any civil society. It is very sad to say that the innocent people were led to rise voice on the street by some persons with vested interest in favour of a person who is not only an accused of economic offence but who destroys the trust of the common people also under the cover of the constitutional oath.

http://echoofindia.com/reflex-action/judiciary-soul-constitution-74221

What do we do with juvenile offenders?

The Juvenile Justice Board verdict sending a juvenile to three years in a reform home for the December 16 gang-rape and murder of a 23-year-old physiotherapy student has not ushered in any sense of closure. The juvenile, 17 years old when the crime was committed and 18 now, was described by the police as the most brutal of the six rapists.

The barbarity of the crime, the rape victim’s subsequent trauma and her dogged fight from a hospital bed inspired nationwide protests demanding stringent sexual assault laws. While the Justice Verma Committee recommendations led to a series of amendments in criminal law, the committee refrained from suggesting changes to the Juvenile Justice (JJ) Act, 2000. 

 Two demands were made by those upset that the justice meted out by the JJ Act would not be commensurate with the magnitude of the offence perpetrated on the 23-year-old victim. One demand was to lower the age of juvenility from 18 to 16.

The other wanted juveniles to be tried under normal law for serious offences like murder and rape. Both were rejected by the Supreme Court in June. The court rightly noted that the JJ Act was consonant with the UN Convention on the Rights of the Child while raising the age-bar for childhood from 16 to 18 in 2000. 

It also reaffirmed the restorative, and not the retributive, principle of justice enshrined in the JJ Act that aimed to assimilate children in conflict with the law back into society after a stint in a reformatory.

While the SC termed the December 16 case as an aberration despite acknowledging its gruesome and diabolic execution, it relied on statistics (only 2 per cent of crimes are committed by juveniles) to uphold the JJ Act. In the gang-rape of a 22-year-old Mumbai photojournalist, two accused have claimed juvenility.

Often, these claims are made to elude the stiffer punishments meted out to adults in similar circumstances.

While there is no evidence that stringent punishment acts as deterrence, delivering justice to the victim is equally important.

In most US states, children over 10 or 13 years of age can be tried as adults for murder. There have been instances, in Florida, of 14-year-olds being sentenced to life in jail without parole. In France, the circumstances and personality of the juvenile is considered before slapping criminal charges. 

Even the UK made the break with the past, in 1993, when it tried two 10-year-olds for the murder of a toddler. The Supreme Court must look at these laws to evolve a reasonable amendment to the JJ Act. 

But what undermines the JJ Act is the poor condition of reform homes. In August, inmates of a juvenile home in Delhi drove out officials and guards and vandalised the home. A Delhi High Court-appointed committee certified that were revolting against despicable living conditions. 

The lofty ideal of restorative justice cannot be achieved when reformatories are dysfunctional. The circumstances in the December 16 and the Mumbai photojournalist gang-rape case were similar: a group of violent individuals who carefully plotted and executed the crime on a hapless victim over whom they enjoyed a position of power. Treating such individuals as juveniles does no credit to the restorative aims of the JJ Act.

 Source: http://health.india.com/diseases-conditions/what-do-we-do-with-juvenile-offenders/