Sunday, October 7, 2018

Supreme Court of India on Benefit of doubt when given in criminal trial

Supreme Court of India in Jose @ Pappachan v. The Sub- Inspector of Police, Koyilandy (2016) 10 SCC 519 in the following words:
"53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused.
Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."

Supreme Court of India on consideration of circumstantial evidence in criminal trial

Supreme Court of India in Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, the Supreme Court made the following observations, when considering convictions made on the basis of circumstantial evidence:
"Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between 'may be true' and 'must be true'. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively."

Friday, September 28, 2018

Adultery under Section 497 IPC is no longer a crime, could be a ground for divorce

On 27th Sept. 2018, Supreme Court of India in case Joseph Shine Vs. Union of India WP Criminal 194/2017 held that adultery u/s 497 Indian Penal Code is not an offense. Adultery could be a ground for divorce. Section 497 reads: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery." Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved wife if her husband was found to be in an adulterous relationship. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary. It is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution
We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere.
To treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We may also usefully note here that adultery as a crime is no more prevalent in People‘s Republic of China, Japan, Australia, Brazil and many western European countries The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party.

Thursday, September 27, 2018

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018,

On 20th March 2018, Supreme Court of India in case Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra, Criminal Appeal 416 of 2018, held that Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, process of Court was abused in this case; there is no absolute bar in this Act for anticipatory bail, arrest should be only after approval which can be scrutinized by Magistrate for further detention; to avoid false implication of innocent, complaint can only after enquiry by Deputy Superintendent of Police; in case of false complaint, complainant would be liable for disciplinary action and contempt of Court.
On 17th Aug. 2018, Parliament of India passed Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2018, which received assent of President of India to make it a law. By this amendment, decision of Supreme Court of India was nullified.
This matter was largely agitated and debated by public in India.
Our Law Firm is of the view that law should be amended on the basis of past data as this law was originally enacted in 1989. Article 15 of Constitution of India prohibits discrimination on ground of sex, caste, religion or place of birth. Since long this prohibition is not achieved and for extraneous consideration for political gain; political parties are trying to appease some group to keep them in their vote bank, which is abuse of democratic process. State should endure to make country free of caste, which State has failed in many decades. It is equally responsibility of State to prevent misuse of law or filing of false complaint. The Amendment is inclined to one side and ignored that on false complaint fundamental of right of liberty shall be breached without judicial review and a person shall be victimized without trial.

Sunday, September 23, 2018

Privacy is protected rights under Indian Constitution

On 24th Aug. 2017 nine Judges Bench of Supreme Court of India in case Justice K S Puttaswamy (Retd.) and others Vs. Union of India, Civil Writ 494 of 2014 held that right of privacy is protected as an interinsic part of the life and personal liberty under Article 21 and as part of freedoms guaranteed under Part III of Constitution of India subject to restrictions specified, relatable to that part.

Waiving of waiting period of six months for mutual consent divorce in India

On 12th Sept. 2017 Supreme Court of India in its judgement Amardeep Singh Vs. Harveen Singh Civil Appeal 11158 of 2017 , held that waiting period of six months in Section 13 (B)(2) (Divorce by Mutual Consent) of Hindu Marriage Act 1955 was not mandaotry and can be waived under certain circumtanses.

Section 377 Indian Penal Code and LGBT in India

On 6th Sept. 2018 Supreme Court of India, regarding LGBT, in case Navtej Singh Vs. Union of India Writ Petition Criminal 76 of 2016 declared that insofar as Section 377 Indian Penal Code, criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution of India. reading down Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution. History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.

Muslim's Triple Talak / Divorce illegal and void in India, offence

On 19th Sept. 2018 President of India promulgated an Ordinance - The Muslim Women (Protection of Rights on Marriage) Ordiannce 2018- Prohibited triple talaq (talaq-e-biddat); make such talaq void and illegal; punishable by imprisonment for a term which may extent to three years or / fine; Muslim woman entitled for subsistance allowance, custody of minor children; Offence compoundable at instance of married woman with permisson of Magistrate; No bail to accused without hearing Muslim woman. Complaint can be filed with Police Station.