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“Kissing and touching of private parts does not come under the purview of unnatural offences.” : Bombay High Court

Kissing and touching of private parts would not constitute an offence under section 377 of the Indian Penal Code. This is upheld by the High Court of Bombay through the learned bench led by HONOURABLE JUSTICE SMT. ANUJA PRABHUDESSAI in the case of Prem Rajendra Prasad Dubey v/s. The State of Maharashtra and Anr. BAIL APPLICATION NO. 3731 OF 2021.

Brief facts of the case are that the father of the victim lodged an FIR on 17/04/2021, alleging that they found out some money from the cupboard was missing. After some inquiry, they found out that the victim, a minor boy used to play a game called ‘OLA PARTY’ online. He had paid the money to the Applicant in the present case, to recharge the said gaming app. The victim told his parents that the Applicant had sexually abused him. The victim’s statement along with the FIR prima facie indicates that the Applicant had kissed the victim on his lips and touched his private parts. The Applicant is facing trial in Special Case No.272/2021 pending on the file of Additional Sessions Judge, Borivali (Div.), Dindoshi, Goregaon, Mumbai for offences under sections 377, 384, 420 of the Indian Penal Code and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

After hearing the learned counsel for the Applicant, Ms. Aneeta Vasani, the learned counsel for the Intervenor, Mr. Praveen Kamble and learned APP for the State, Ms. Rutuja Ambekar, as well as examining the records and considering the submissions of the learned counsel for the respective parties, the Hon’ble Judge, on 5th May, 2022 held that touching the private parts and kissing on the lips would not constitute an offence under section 377 of the Indian Penal Code. The Hon’ble judge granted bail to the Applicant i.e. the accused on the grounds that the offence under Sections 8 and 12 are punishable for maximum imprisonment upto five years and the Applicant is in custody for almost one year. According to the Hon’ble judge, in this case, charge is not yet framed and trial is not likely to commence in the immediate future. Hence, bail was granted to the accused on certain terms and conditions that the Accused is to be released on bail on furnishing P.R. bonds worth Rs.30,000/- with one or two solvent sureties. That until further instructions, the Applicant must report to Oshiwara Police Station every two months on the first Monday between 11:00 a.m. and 2:00 p.m. The Applicant must not interfere with the complainant or other witnesses, tamper with evidence, or try to influence or contact the complainant, witnesses, or anyone else involved in the case. The Applicant must keep the Trial Court up to date on his present address and mobile number, as well as any changes in residence or mobile information, if any. Unless exempted, the Applicant must cooperate with the trial’s conduct and appear in court on all occasions.

JUDGEMENT REVIEWED BY- ATIVA GOSWAMI

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S.370 IPC Can’t Be Invoked On “Presumption” That Accused Indulged Himself In Human Trafficking: Karnataka High Court

According to the Karnataka High Court, Section 370 of the Indian Penal Code cannot be invoked solely on the basis of a suspicion that an accused participated in human trafficking. 

“What can be gathered from the complaint and the chargesheet that is filed by the police is that, it is presumed that the petitioner had indulged himself in human trafficking and therefore, Section 370 of the IPC was invoked against the petitioner,” said a single judge bench of Honourable Justice M Nagaprasanna in quashing criminal proceedings initiated against one Rajkumar in the case of Rajkumar Vs The State Of Karnataka (Criminal Petition No.6118 Of 20). 

It added, “Exploitation is at the heart of the arrangement. There is no allegation of exploitation by the petitioner in any of the victims’ complaints. The Immigration Officer was suspicious because of the complaint, investigation, and conflicting statements of those who accompanied the petitioner. The petitioner’s companions had stated that they had handed over some cash to him, which raised suspicion. This, in my opinion, is insufficient evidence to charge the petitioner with a crime punishable under Section 370 of the IPC for human trafficking.” 

According to the facts of the case, the Assistant Immigration Officer at Bangalore International Airport checked and questioned three Indian nationals who were planning to travel to Kuala Lampur on July 20, 2019. 

During questioning, it was discovered that they were all traveling in a group, with another passenger named Rajkumar – the petitioner – accompanying them. Further questioning reveals that the passengers were being taken to Kuala Lampur by the petitioner for employment purposes on tourist VISAs, according to the complainant. 

It was also revealed that the petitioner had been introduced to them by another Amritsar-based agent named Kiran. A few of the people interviewed said they had paid money to Rajkumar and others. A complaint was filed against the petitioner for an offence punishable under Section 370 of the IPC based on the aforementioned interrogation and incident. 

“If any further proceedings are permitted to be continued in the case at hand, it would become an abuse of the process of law and result in miscarriage of justice,” the bench said after going over the complaint and the police chargesheet. 

It added, “It is a well-established principle that, in the end, if the petitioner is acquitted for lack of evidence, this Court should, in exercising its inherent jurisdiction under Section 482 of the Cr.P.C., obliterate the proceedings. One such instance is the one at hand.” 

As a result, the petition was granted. 

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Denying Bail For Offence Yet To Be Investigated Merely Because Accused Is Habitual Offender Is “Unjust”: Karnataka High Court

The Karnataka High Court has ruled that holding someone in jail for an unsolved crime simply because they are alleged to be habitual offenders or have criminal antecedents is ‘unjust.’ 

In the case of Injamam Shariff vs State of Karnataka (Criminal Petition No.4045/2022), a single judge bench led by Honourable Justice M Nagaprasanna made the observation while allowing the petition filed by one Injamam Shariff and granting him bail. The accused was detained on charges of violating sections 397 and 34 of the Indian Penal Code. 

According to the facts of the case, a complaint was  filed by T.S.Manoj on February 25, 2012, stating that two unknown persons arrived on a motorcycle, grabbed his collar, and threatened him with a knife. At the same time, the other individual grabbed his phone. 

The petitioner was arrested by the police on 02-03-2022, about a week after the complaint was filed, and he has been in judicial custody since then. The accused applied to the Sessions Judge for bail. However, the application was denied after the State raised objections, claiming that the petitioner was a habitual offender with criminal antecedents who was likely to commit another crime if released on bail. 

The allegations against him are baseless, according to the petitioner, and the phone has not been recovered from him. 

The prosecution opposed the plea, claiming that the matter is under investigation and that the petitioner was apprehended on the grounds that he has criminal antecedents and is a habitual offender while the investigation was underway. If he is released on bail, he will almost certainly commit the same crime that he has already committed. 

“The reasoning rendered by the learned Sessions Judge is fundamentally flawed,” the bench said after reviewing the facts of the case. “There is no recovery of the phone made from the petitioner’s hands,” it continued. Despite the fact that the matter is still under investigation and a FIR has been filed against unknown persons, the petitioner’s continued detention for an offence that has yet to be investigated is unjust. There isn’t even any preliminary evidence against the petitioner.” 

As a result, it granted bail on a personal bond of Rs.50,000 with one solvent surety for the same amount, subject to the satisfaction of the trial court. Other conditions were also imposed. 

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Under Town Planning Act For Mere ‘Alterations’ To Existing Building, Can’t Levy Betterment Charges: Karnataka HC Grants Relief To 150-Yrs Old School

The Karnataka High Court recently quashed a Bruhat Bengaluru Mahanagara Palike (BBMP) order demanding payment of betterment charges/fee from a more than 150-year-old school that plans to build additional floors on the existing school campus through an extension. 

The petition filed by Good Shepherd Convent in the case of Good Shepherd Convent vs State of Karnataka (Writ Petition No.47882 OF 2014) was allowed by a single judge bench led by Honourable Justice M Nagaprasanna, who quashed the corporation’s order dated 07-07-2014 demanding an amount of Rs Rs.69,70,520. 

According to the facts of the case, the petitioner-school, which was founded in 1854, is located in the heart of the city on about 23 acres of land. In June 2014, an application was submitted to the BBMP for a building license to add four floors to the existing school campus due to an increase in the number of students and the need for more classrooms. The BBMP responded with a demand for Rs.69,70,520/- in betterment charges. 

Senior Advocate D.L.N.Rao, who represented the petitioner, claimed that the building was built around 100 years ago with all necessary payments made at the time. Furthermore, betterment charges under Section 18 or 18A of the Karnataka Town and Country Planning Act would only be due when a change of land use is requested or the land is developed for the first time. Both of these instances are not present in this case. 

The petitioner, according to BBMP lawyer K.N.Putte Gowda, has not applied for any license or paid any betterment fee since the Act was enacted. The petitioner did not pay any of the statutory fees because it is a very old institution and all fees that were due previously have been paid. He went on to say that Section 18A of the KTCP Act empowers the BBMP to demand betterment charges, and that there is nothing wrong with the BBMP’s demand. 

The bench noted that Section 18A (of the KTCP Act) allows the BBMP to levy and collect a cess for carrying out a water supply scheme, a surcharge for forming a ring road, a cess for improving slums, and a surcharge for establishing a Mass Rapid Transport System from the owner of a building while granting permission for development. 

It was noted, “Permission should be sought for land or building development. The petitioner’s application for alteration and addition of four floors to the existing building was unequivocal.” 

It was pointed out that the petitioner had made no application for a change of land use, allowing the BBMP to demand a betterment fee/charge under Section 18(1) of the Act. 

The court went on to say, “The petitioner has not requested a change of land use, but has clearly stated in its application that the sanction sought is “addition and alteration.” No application has been filed under Section 14A of the Act.” 

“Accordingly, a combined reading of Section 505 of the KMC Act 1976, sections 18 and 18A of the KTCP Act, and the Rules would lead to an unmistakable inference that the BBMP’s demand is contrary to law,” it concluded. 

It also stated, “The learned counsel for the BBMP contends that because the petitioner, which was established many years ago, has not applied for such a sanction or paid any betterment fee, the BBMP has no other option but to issue a demand under Section 18A of the KTCP Act read with Rule 37A of the Rules sans countenance, as any charge, fee, or imposition of any impost in law can only be in accordance with law. The settled principle of law is that if there is no provision for charging a fee, there can be no demand, and if there is no provision for imposition of an impost, there can be no impost.” 

“This would not preclude the BBMP from inspecting the property and raising any demand strictly in accordance with law,” the court stated. 

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Power To Decide Applications For School Upgradation Is A “Public Power” Vested With State For Effectuating A Public Purpose: Karnataka High Court

According to the Karnataka High Court, applications filed with authorities seeking approval for school upgrades should be decided in a timely manner because the applications are filed for a specific academic year, and if the decision-making authorities take too long to decide on the applications, the academic year will have passed, rendering the applications irrelevant or infructuous. 

“The power vested with the respondents (authorities) to assess and dispose of an application for upgradation of the school is paired with a responsibility,” said a single judge bench of Honourable Justice P. Krishna Bhat in the case of We Care Charitable Trust vs State of Karnataka (Writ Petition No. 1682 of 2022).  The respondents should fulfil this obligation in a transparent and reasonable manner. Transparency is achieved by providing reasons for the respondents’ final decision. Respondents ensure reasonableness by allowing applicants to correct any faults discovered during the Institution’s inspection in accordance with the Rules.” 

The court further stated, “Assigning reasons for denial of permission would assist the petitioner (schools) in correcting the shortcomings so that they may submit a new application in a timely manner and be successful the next time. Even if they are not vested with public powers, public authorities are obliged to exercise such powers in a fair manner, which includes making decisions in a reasonable amount of time and providing sufficient justifications for their choices.” 

The facts of the case are that We Care Charitable Trust filed a petition challenging an order seeking to quash two decisions issued in the years 2019 and 2021 that denied the trust permission to improve its existing school by starting programmes for 9th and 10th grades. 

“A large number of litigations are appearing before this Court alleging failure on the part of respondents to evaluate the petitions seeking sanction for school upgradation, advancing two contentions, Specifically, such applications are not dealt with in a timely manner, and they are dealt with without providing adequate and understandable reasons.” the bench wrote. 

It further stated, “Institutions that desire to upgrade their schools submit the relevant applications to the responders and pay the required price. The respondents have the power to make decisions on such applications. Such authority is vested in the respondents for the purpose of carrying out a public aim.” 

The bench said, “Referring to Article 21A of the Indian Constitution—Right to Education,” “It is a fundamental right of every child born in this country to receive free and compulsory education until the age of fourteen, and thus the State, through the respondents, is obligated to ensure the establishment of a large number of schools to provide universal education to children up to the age of fourteen. The Constitution imposes a public duty on the state and its subordinate officials.” 

It stated, “Due to a shortage of finances, the government is unable to open sufficient numbers of schools to ensure universal primary and secondary education. As a result, private players must be allowed to open schools in order to serve a wide number of students across the state.” 

It stated, “Following the submission of the application by the managements, the respondents must conduct an inspection in accordance with the Rules and provide the managements with an opportunity to correct any defects discovered during the inspection, after which the application should be finalised. Respondents must operate in a reasonable, just, and fair manner throughout the application consideration process.” 

During the hearing, Advocate M.P.Srikanth informed the court that the petitioner had already filed a new application with the respondents seeking permission to upgrade the school by starting classes for 9th and 10th grade for the academic year 2022-2023, and that the court may issue appropriate direction to consider the application and dispose of it within a reasonable time. 

The learned Additional Government Advocate has no objections, and argues that if the petitioner has submitted an application, the respondents are obligated to analyse it in accordance with the law and issue appropriate orders. 

“The respondents shall evaluate and dispose of the petitioner’s application for upgradation of the school by initiating lessons for Standards 9th and 10th for the academic year 2022-2023 within a total period of six weeks from today,” it continued. 

Furthermore, during its inspection visit, the Three Member Committee shall notify the petitioner in writing of any faults discovered during the inspection. 

The respondents shall advise the petitioner in writing of any flaws in the institution for the purpose of upgradation while examining the case of the petitioner for school upgradation on the basis of the report of the Three Members Committee or on their own notice. The petitioner may be given a week to provide an explanation for the application. 

Furthermore, respondents must make a judgement on the petitioner’s application for school upgradation for the academic year 2022-2023 within two weeks of receiving such explanation from the petitioner and transmit that decision to the petitioner immediately. The responders must explain reasons for their decision to grant or deny permission for the school to be upgraded. 

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